COP9 BASEL CONVENTION ON HAZARDOUS WASTES, JUNE 23-27, 2008

UNCLAS SECTION 01 OF 04 JAKARTA 001389

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E.O. 12958: N/A
TAGS: KGHG SENV KSCA KTIA PGOV ID
SUBJECT: COP9 BASEL CONVENTION ON HAZARDOUS WASTES, JUNE 23-27, 2008
- SUMMARY OF OUTCOMES


1. (U) SUMMARY. The ninth meeting of the Conference of the Parties
(COP9) to the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal was held June
23-27, 2008, in Bali, Indonesia. A major U.S. objective was
achieved in the creation of a partnership to address recycling and
disposal of computer waste. This partnership has the potential to
reorient the Convention to present day concerns and make it more
relevant. The COP also adopted the recommendation of the Ad Hoc
Joint Working Group on cooperation and coordination between the
Basel, Rotterdam and Stockholm Conventions, linked the evaluation of
the Convention's effectiveness with a yet to be developed strategic
framework beyond 2010, approved a modest increase in the budget, and
adopted an e-waste partnership workplan. Disagreement over the
requirements for entry into force of the Ban Amendment continued,
however, and many of the decisions adopted on other matters deferred
solutions to future COPs. Also, ministers and heads of delegations
gathered in a high level segment, the "World Forum on Waste
Management for Human Health and Livelihood," the COP9 theme, and
adopted the Bali Declaration on this subject.


2. (U) The Basel Convention was adopted in 1989, entered into force
in 1992, and has 170 Parties. It addresses the management, disposal
and transboundary movement of hazardous wastes. The Convention's
guiding principles are that transboundary movements of hazardous
wastes should be reduced to a minimum, managed in an environmentally
sound manner, be treated and disposed of as close as possible to
their source of generation, and be minimized at the source. END
SUMMARY.

MAJOR ISSUES ADDRESSED AT COP9:

SYNERGIES AMONG CHEMICALS CONVENTIONS
--------------

3. (U) The COP adopted the recommendation of an Ad Hoc Joint Working
Group (AHJWG) of the three chemicals Conventions (Basel, Rotterdam,
Stockholm) and added language to emphasize the importance of the
Basel Convention. The recommendation noted the legal autonomy of
each convention. The recommendation consists of five parts:
organizational issues, including coordination at the national level,
programmatic cooperation in the field, and coordinated use of
regional offices and centers; technical issues, including national
reporting, compliance mechanisms, and cooperation on technical and
scientific issues; information management and public awareness
issues, including joint outreach, information
exchange/clearing-house mechanism on health and environmental
impacts, and joint input into other processes and institutions;
administrative issues, including joint managerial functions,
resource mobilization, financial management, and joint services; and
decision-making, including coordinated meetings, extraordinary
meetings of the COPs, and a mechanism reviewing the adopted
arrangements. The recommendation, which must also be adopted by the
Rotterdam and Stockholm COPs, should strengthen global cooperation
on the sound management of chemicals, improve efficiencies, and
provides a positive example of bottom-up cooperation and why a
United Nations Environmental Organization isn't necessary.

STRATEGIC PLAN FOR IMPLEMENTING THE BASEL CONVENTION TO 2010
-------------- --------------

4. (U) The COP decided that implementation of the Strategic Plan
should continue until the adoption at COP10 of a new ten-year
strategic framework, which should follow a number of guidelines,
including full use of the Basel Convention Regional Centers (BCRCs)
and enhanced cooperation with the Rotterdam and Stockholm
Conventions. The COP requested Parties and others to provide the
Secretariat with information to facilitate an evaluation of the
Convention's effectiveness, which will serve as a basis for the
preparation by the Secretariat of the strategic framework, and
established an open-ended coordination group within an open-ended
working group (OEWG) to refine the framework for consideration at
COP10. Some stressed that effective implementation of the new
framework would depend on the availability of resources, and noted
that many activities under the Strategic Plan had not been carried

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out due to lack of funds.

FINANCIAL MATTERS
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5. (U) The Convention's finances are plagued by the low
prioritization that hazardous waste management receives in many
countries and competition among the growing number of multilateral
environmental agreements. In fact, most Parties were reluctant to
increase their contributions. The COP adopted a three-year budget
cycle as an one-time measure aimed at cost savings and facilitating
synchronization with the budget cycles of the Rotterdam and
Stockholm Conventions, approved a modest increase for the Basel
Convention Trust Fund, and established penalties for Parties in
arrears with their contributions (this action is primarily aimed at
Brazil, who has not paid their annual assessment in years). The
three-year budget delays COP10 to 2011.


6. (U) Disagreement remained over how BCRCs, deemed crucial to the
implementation of the Convention in developing countries, should be
financed. Many donors said the BCRCs should cultivate multiple
sources of financing, such as other chemicals conventions, the
Global Environment Facility (GEF),the Strategic Approach to
International Chemicals Management Quick Start Program, and the
Clean Development Mechanism under the UN Framework Convention on
Climate Change, and become self-sufficient in the medium and long
terms. Developing countries insisted on supporting the BCRCs
through increased contributions to the Technical Cooperation Trust
Fund (TCTF). The COP decision represents a compromise, asking the
Secretariat to prepare a strategic framework, subject to the
availability of funds, for the sustainability of the BCRCs that
should consider utilizing the TCTF. Some complained that donor
countries were not only unwilling to fund the BCRCs directly, they
also were reluctant to help them become sustainable. The COP
requested the Secretariat to conduct training activities with the
BCRCs and countries on accessing the GEF and other financing
mechanisms.

PARTNERSHIPS
--------------

7. (U) The COP adopted a workplan for the environmentally sound
management (ESM) of e-waste, including work on the Partnership for
Action on Computing Equipment (PACE),the Mobile Phone Partnership
Initiative (MPPI),technical guidelines for transboundary movements
of e-waste, and programs of activities for ESM of e-waste in
Asia-Pacific, Africa, and South America. Regarding PACE, the COP
agreed to establish a working group operating under its OEWG and
outlined a work program. This partnership will address a real and
growing environmental need and is of interest to U.S. business. The
U.S. has pledged $75,000, its entire contribution for FY2008, to the
Partnership Program. Regarding MPPI, the COP adopted four of the
five sections (one section was blocked by Brazil, who is not in
favor of partnerships in general) of the guidance document on ESM of
used and end-of-life mobile phones as a voluntary document, and
decided that the Mobile Phone Working Group had successfully
completed its mandate and that any follow-up tasks will be carried
out by an ad hoc follow-up group.

BAN AMENDMENT
--------------

8. (U) The Ban Amendment requires Parties listed in Annex VII (OECD,
EU, and Lichtenstein) to prohibit the transboundary movements of
hazardous wastes for final disposal and recycling to States not
listed in Annex VII. According to Article 17(5) of the Convention,
amendments enter into force between the Parties who accepted them
upon ratification by at least three-fourths of the Parties who
accepted them. Because of the way the provision is drafted, there
is disagreement among the Parties over the number of ratifications
required for amendments to enter into force. One group supports the
"current time" approach, whereby the number required is based on the
current number of Parties to the Convention - 170. The second group
supports the "fixed time" approach, whereby the number required is
based on the number of Parties at the time when the Ban Amendment

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was adopted - 82.


9. (U) At COP9, the Parties remained divided on how best to achieve
a decision on an agreed interpretation of Article 17(5). Many
delegations, including the U.S., said that any decision on the
interpretation of Article 17(5) that constitutes a subsequent
agreement in the sense used in Article 31(3)(a) of the Vienna
Convention on the Law of Treaties must be adopted by consensus, as
indicated by the UN depositary. Other delegations argued that
pursuant to the Basel Convention Rules of Procedure, which were
adopted by consensus, a COP decision on an interpretation of Article
17(5) could be made on the basis of a vote by a majority of Parties.
The COP ultimately adopted a decision that requested the OEWG to
continue the development of a draft decision on an agreed
interpretation of Article 17(5) in accordance with international
law.


10. (U) A number of Parties urged the COP to focus less on legal
technicalities and more on the objectives of the Ban. Many welcomed
the COP9 President's proposal to explore means through which the
Ban's objectives could be met, as well as an offer by Switzerland
and Indonesia to lead an informal brainstorming session to that
effect. Others called for the prompt entry into force of the Ban
Amendment, which they said would put pressure on all countries to
ratify and enforce it. Furthermore, because Parties have been
reluctant to modify the Ban Amendment before its entry into force,
they said that only this action would enable the Ban Amendment to be
revised in light of technological and economic developments, in
particular increased trading of non-traditional waste products, such
as old computers, and the possibility that, with the
industrialization of many non-OECD countries, growth in South-South
trade in hazardous wastes would increase.

DISMANTLING OF SHIPS
--------------

11. (U) The COP adopted a decision that requests the OEWG to conduct
a preliminary assessment of whether the ship recycling convention,
as adopted, would establish an equivalent level of control and
enforcement to that established under the Basel Convention, based on
a review of the treaties in their entireties, and after having
developed the criteria necessary for such an assessment. The OEWG
is to transmit the results of this assessment to COP10 for its
consideration. The COP decision also invited Parties to provide
comments on criteria to be used in making such an assessment. The
COP decision further requested the Secretariat to continue to follow
the ship recycling convention and to transmit the COP's decision to
the IMO for consideration by the Marine Environment Protection
Committee.

TECHNICAL MATTERS
--------------

12. (U) Brazil has been motivated politically to take the lead in
developing technical guidelines on ESM of used tires, as they have a
trade interest in depicting used tires as hazardous. Brazil has
been uncooperative throughout the guideline development process and
has not incorporated many of the comments they received during the
intersessional period, including those from the U.S., the EU and
industry. They have resisted any efforts to make the guidelines
more current. For example, they were adamant about heading the
table of contents section on management as "environmentally sound
disposal" versus "environmentally sound management," as the
Convention, which was drafted 20 years ago, defines recycling as a
disposal operation. The final decision extended the mandate of the
intersessional working group, requested Brazil to provide a format
for comments and to prepare a revised version of the guidelines
prior to OEWG7, and requested the Secretariat to report to COP10 on
progress on the guidelines for their possible adoption. The U.S.,
Canada, and the EU have agreed to work intersessionally with Brazil
to try to move the guidelines forward.


13. (U) In the decision on ESM of mercury waste, the COP agreed that
further development of the guidelines should be included in the OEWG

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2009-2011 work program and to establish an intersessional working
group. On persistent organic pollutants, the U.S. was unsuccessful
at eliminating language proposed by Norway and the International
POPs Elimination Network aimed at reopening low-level POPs
thresholds. Norway indicated that they are studying the levels,
which they believe are too high. Parties decided that the way
forward would depend on Norway's study results.

COMMENT
--------------

14. (SBU) One member of the U.S. delegation who has followed the
Basel Convention for many years said she could not recall a meeting
where the U.S. was marginalized to the extent at COP9. The U.S. was
not permitted to participate in the contact group discussions on the
Bali Declaration, although the final text was uncontroversial.
Furthermore, the U.S. was informed on the afternoon of the second
day of negotiations in the finance contact group that the U.S. could
listen but could not make interventions, even though the U.S. had
not made an intervention that day. However, the U.S. was able to
participate fully in all other contact groups and secured an
invitation to the Indonesian COP President's lunch with Heads of
Delegations to discuss a way forward on the Ban Amendment. Still,
the head of the U.S. delegation raised the issue within the
JUSSCANNZ coordination group, in a meeting with the UNEP Executive
Director, with the Basel Convention Executive Secretary, and in an
intervention during the High Level Segment. On balance, we share
concerns that the COP is interested in U.S. participation with
respect to technical and financial assistance, but is reluctant to
intervene if Parties attempt to marginalize the U.S., a non-Party,
during discussions and the decision-making process. This again
points to the necessity of U.S. ratification and ability to
participate fully as a party to better protect and promote U.S.
interests as the Basel Convention develops.


15. (U) This telegram was prepared by Tiffany Prather and the U.S.
Delegation. U.S. Delegation: Daniel Fantozzi, DOS/OES/ENV; Tiffany
Prather, DOS/OES/ENV; John Kim, DOS/L/OES; Robert Tonetti,
EPA/Office of Solid Waste; Patricia Whiting, EPA/Office of Solid
Waste.


HUME