Talking in riddles
in an event hailed as a "major breakthrough" by Klaus Topfer, executive director of the United Nations Environment Programme ( unep ), a liability protocol which offers monetary compensation to victims hurt in the process of handling toxic wastes came into being in December 1999. While it is the first time that such a compensation mechanism has officially become part of an environment convention, the agreement fails to address the source of the problem.
Due to strict penalties for reckless waste disposal in their own countries, waste generators find it a hassle-free solution to sell the wastes to the middle-person exporter. Although the protocol holds exporters and importers responsible for damage caused by accidental spills of hazardous waste during transportation and disposal, it does not address the role of waste generators. As a result, the protocol is "very limited in scope; largely redundant; easily avoided... and contrary to the polluter pays principle...," states the Basel Action Network ( ban ), a Seattle-based non-governmental organisation ( ngo ) that has been actively following the negotiations. The agreement, which has taken 10 years to negotiate, was adopted as a protocol to the 1989 Basel convention at the fifth conference of parties (c o p -5) held in Basel, Switzerland, from December 6-10, 1999.
The protocol was initially intended to address the concerns of developing countries (about their lack of financial and technological capacity) for cleaning up unwanted hazardous waste dumps and spills in their regions. "It is clear that the rich countries of the Organisation for Economic Cooperation and Development (oecd) do not need this protocol because they already have their own system," says Philippe Roch of the Swiss Federal Office for Environment, Forests and Landscape. He pointed out that "in some years the main problems of toxic waste will occur in developing countries, not in the oecd nations, and that is exactly why we need this protocol."
However, environmentalists claim that by failing to punish waste generators the protocol is counterproductive to the objectives of the Basel convention. Waste generators, overwhelmingly based in industrialised nations, sell their wastes to exporters who import it to developing countries where strict legislation to prevent toxic waste disposal is slack or non-existent. Now that an official protocol absolves them of all blame, waste generators will have no compulsion to change their unsustainable production methods, which are responsible for creating the wastes in the first place.
"There are all sorts of incentives under the protocol to export hazardous wastes," says Roger Kluck, political advisor with Greenpeace International, further adding: "It is paradoxical that these negotiations have resulted in a mechanism which will be used to export waste and avoid liability." According to Kluck, by excluding the role played by waste generators, the protocol will encourage industries to hand over their wastes to middle-person export brokers, who would assume liability under the protocol but perhaps would not have the financial means to pay compensation.
The protocol has also failed to set up a mandatory fund to assist developing countries in emergency cases resulting from accidents during waste trade. Therefore, there is no provision for quick compensation during emergencies. Developing countries including China, Pakistan and the Philippines had particularly pushed hard for this provision, only to be faced by a staunch Northern block. Even the European Union ( eu ), which was supportive of developing country concerns during the protocol talks, remained unmoved on this issue.
Moreover, the protocol ignores the crucial :fter-care issue' related to waste disposal, which is the damage that might occur after disposal of hazardous wastes in recipient countries. Liability for the shipment of wastes will be covered only up to the point at which waste is disposed, and will not cover incidences such as leaks or seepage at waste disposal sites. According to a 1999 ban report, the gradual and long-term soil and groundwater contamination, which could be because of irresponsible disposal, is one of the most critical problems associated with the Basel waste issue. In fact, the ban report states "the impacts of long-term leachate migration (hazardous wastes that percolate through the soil to contaminate ground water) are probably more significant and costly to remedy than the sudden spills of hazardous waste. " Environmentalists claim that until the protocol is amended, it is unlikely to provide adequate relief for the victims of toxic wastes.
According to the protocol, exporters and importers are the two main agents, though national governments of the countries involved in the trading of wastes must ensure that its provisions are upheld during the transfer of wastes. The exporter will be held liable for damages from the point where the wastes are loaded on 'the means of transport' till they reach the disposer in the importing country. Once the waste reaches the disposer, they will be accountable for any mishaps until the wastes are disposed.
In an exemption provision much criticised by environmentalists, the protocol allows member-nations to opt-out of the protocol if they have entered other bilateral, multilateral and regional agreements on transboundary movements of wastes. This exemption would be granted only if the agreements drawn up by the nations have their own liability and compensation scheme that "fully meets or exceeds the objectives" of the protocol, and the damage takes place within the national jurisdiction of the participating countries. According to ban , industrialised countries that already have legal systems on hazardous wastes can easily avoid their protocol obligations by using this provision. ban points out that as the vague wording of the protocol is "non-specific and thus subject to subjective interpretation," there is little assurance whether the agreements between these nations will be even as comprehensive as the (already) weak protocol.
Emerging conflicts The discussion on providing funds for accidents in waste trade was centred on the establishment of a global fund. This was to be in addition to whatever compensation the protocol covers and would provide quick compensation during emergencies. Colombia, supported by South Africa, Peru and Morocco, called for mandatory contributions to a global trust fund, which the us strongly opposed. In the end, the protocol could only state the use of 'existing mechanisms' to ensure adequate compensation.
The deficiencies of the liability protocol are all the more disappointing as the provision to redress mishaps that occurred during trade in wastes had been a top priority since the Basel convention. Since 1993 a working group of legal and technical experts begun negotiations towards this end. During the talks, delegates - particularly from Australia, Canada and the us - showed little support for the need for a liability protocol and cast doubts on the policy of granting substantial remedies to the victims of toxic waste disposal.
At c o p -5, a group of industrialised countries including Australia, Canada, Japan, Korea, New Zealand and the us , vigorously defended the exemption provision, and refused to compromise on the establishment of a mandatory fund. A deadlock was however avoided since many delegates were keen on "any agreement, rather than no agreement."
The adoption of the protocol signifies a beginning rather than an ending. It will enter into force only after being ratified by 20 countries, and therefore, a strong level of commitment from governments of both developing and industrialised countries is essential. At present, many delegates remain dissatisfied with the protocol's current framework. The non-participation of some rich countries in the Basel dialogue, which largely hinder the productivity of the agreement, has also been a thorny issue. Mostafa Tolba, former executive director of unep , who was a guest of honour at the c o p , called attention to the role of the us , which has signed but not yet ratified the convention. "The convention's impact will certainly be incomplete as long as the us is not a party. I fail to find an explanation for this when the us delegation... regularly pressed for assurance that the convention provisions are not inconsistent with the us national laws and regulations," he said.
What does the future hold? The matter of ratifying the protocol is an immediate issue. According to Jim Puckett of ban , "if Europe takes the ratification of the protocol seriously, it will proceed fairly rapidly." But ratification could prove to be difficult if countries continue placing economic viability before the issue of damage to environment and human life. The us admits that the possibility of the protocol putting restrictions on trade in non-dangerous recyclable wastes could act as a deterrent to it signing the agreement." If we were to find that kind of trade would be unreasonably choked off, we would certainly move to have the liability provisions changed or, failing that, I think it would be a very serious question whether we would ratify," says Daniel Fantozzi, director of the us state department's office of environmental policy.
The role of developing countries in the Basel ballgame also cannot be overlooked. India, who actively participated as a g 77 leader in the Basel negotiations, underwent a change of stance due to the economic repercussions of trade controls in hazardous wastes. India's environment minister T R Baalu told c o p -5 that the convention's rules on export and disposal of wastes would have to be reviewed.
The establishment of a mandatory compensation fund to provide funds in emergency cases where money is needed quickly or when those responsible for the accident go missing will be another dominant issue in the future. For many environmentalists, the problem of international trade in wastes is as much about ethics as environmental destruction since it involves a case of rich countries 'poisoning the poor'.
But for now, in the protocol we have a "breakthrough" mechanism in environmental governance, whose deficiencies hint at a certain double standard procedure operating against the developing nations at the negotiation table.
Reported by Achila Imchen