Proposal for a COUNCIL DECISION establishing the position to be adopted on behalf of the European Union with regard to the interpretation of paragraph 5 of Article 17 of the Basel Convention at the 10th Conference of the Parties to the Basel Convention (COP 10) on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal
Date: 2011-07-07
Institutions: European Commission
Subjects: Indonesia, Switzerland, cross-border transport, dangerous substance, environmental protection, international convention, waste disposal

EUROPEAN COMMISSION 

Brussels, 7.7.2011 
COM(2011) 411 final 

2011/0180 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union with regard to 
the interpretation of paragraph 5 of Article 17 of the Basel Convention at the 10th 
Conference of the Parties to the Basel Convention (COP 10) on the Control of 
Transboundary Movements of Hazardous Wastes and Their Disposal 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. The EU is a Party to the Basel Convention on the Control of Transboundary Movements of 
Hazardous Wastes and Their Disposal, done on 22 March 1989 (the "Basel Convention"). 

2.  The  Basel  Convention  establishes  a  control  procedure  for  the  export  and  import  of 
hazardous wastes between Parties. The Convention entered into force in 1992 and now binds 
175 Parties. 

3.  In  1995,  the  3rd  Conference  of  the  Parties  to  the  Basel  Convention  (COP3)  adopted  by 
Decision III/1 an amendment to the Convention prohibiting hazardous wastes exports for final 
disposal  and  recycling  from  what  are  known  as  Annex  VII  countries  (Basel  Convention 
Parties  that  are  members  of  the  EU,  OECD,  Liechtenstein)  to  non-Annex  VII  countries  (all 
other Parties to the Convention) (the "Ban Amendment"). 

4. The EU accepted the Ban Amendment on 30 September 1997. 

5. Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 
2006 on shipments of waste1 transposes the provisions of the Basel Convention and the Ban 
Amendment  into  EU  law  by  establishing  a  system  of  supervision  and  control  to  apply  to 
shipments  of  waste  within,  into  and  out  of  the  EU  and,  in  particular,  prohibiting  exports  of 
hazardous waste from the EU to non-OECD countries. 

6.  The  Ban  Amendment  has  not  yet  entered  into  force.  So  far,  69  Parties  to  the  Basel 
Convention have ratified the Ban Amendment. Parties have been unable to reach consensus 
on an agreed interpretation of paragraph 5 of Article 17 of the Basel Convention (Annex I to 
this Decision) which governs the number of ratifications required for the entry into force of 
amendments to the Convention. There have been persistent diverging views amongst Parties 
on how many Parties need to ratify the Ban Amendment before it can enter into force despite 
huge efforts since the 8th Conference of the Parties (COP8). 

7. Given the length of time that has elapsed since the adoption of the Ban Amendment and in 
order  to  break  the  deadlock,  the  Indonesian  President  of  the  9th  Conference  of  the  Parties 
(COP9) developed a statement "on the possible way forward on the Ban Amendment" that has 
been unanimously acknowledged by Parties through Decision IX/26. 

8. By this statement,  the  President  sought to launch a process which intends to reaffirm the 
objectives of the Ban Amendment and explore the means by which these objectives might be 
achieved.  He  called  upon  all  Parties  to  create  enabling  conditions  through,  among  other 
measures,  country-led  initiatives  conducive  to  attainment  of  the  objectives  of  the  Ban 
Amendment. Such country-led initiatives would serve to contribute to gathering momentum 
to encourage ratification of the Amendment and to expedite its entry into force. 

9. Responding to this invitation, Indonesia and Switzerland launched a country-led initiative 
with a view to developing recommendations for the 10th Conference of the Parties (COP10) 
for  a  way  forward  to  protect  vulnerable  countries  without  adequate  capacity  to  manage 
hazardous  wastes  in  an  environmentally  sound  manner  from  unwanted  import  of  hazardous 
waste  and  to  ensure  that  transboundary  movement  of  hazardous  wastes,  especially  to 

1 

OJ L 190, 12.7.2006, p. 1. 

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developing countries, constitute an environmentally sound management of hazardous wastes 
as required by the Basel Convention. 

10.  The  draft  recommendations  prepared  by  Indonesia  and  Switzerland  propose  to  resolve, 
without  prejudice  to  any  other  multilateral  environmental  agreement,  that  the  meaning  of 
paragraph  5  of  Article  17  of  the  Basel  Convention  be  interpreted  so  as  to  mean  that  the 
acceptance  of  three-fourths  of  the  Parties  at  the  time  of  the  adoption  of  the  amendment  is 
required for the coming into force of such amendment, noting that such an interpretation of 
paragraph 5 of Article 17 does not compel any Party to ratify an amendment. 

In  view  of  the  above,  at  COP10  the  Union  should  support  the  adoption  of  the  decision 
addressing  the  entry  into  force  of  the  Ban  Amendment  with  regard  to  the  interpretation  of 
paragraph  5  of  Article  17  of  the  Basel  Convention,  as  recommended  by  Indonesia  and 
Switzerland. 

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2011/0180 (NLE) 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Union with regard to 
the interpretation of paragraph 5 of Article 17 of the Basel Convention at the 10th 
Conference of the Parties to the Basel Convention (COP 10) on the Control of 
Transboundary Movements of Hazardous Wastes and Their Disposal 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192 (1), in conjunction with Article 218 (9), thereof, 

Having regard to the proposal from the Commission2, 

Whereas: 

(1) 

(2) 

(3) 

The  EU  is  a  Party  to  the  Basel  Convention  on  the  Control  of  Transboundary 
Movements of Hazardous Wastes and Their Disposal (the "Basel Convention") and to 
the  amendment  to  the  Convention  prohibiting  hazardous  wastes  exports  for  final 
disposal  and  recycling  from  a  list  of  developed  (mostly  OECD)  countries  to 
developing countries (the "Ban Amendment"); 

Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 
June 2006 on shipments of waste3 transposes the provisions of the Basel Convention 
and the Ban Amendment into EU law; 

The  Ban  Amendment  has  not  yet  entered  into  force  since  Parties  have  so  far  been 
unable to reach consensus on an agreed interpretation of paragraph 5 of Article 17 of 
the Basel Convention which governs the number of ratifications required for the entry 
into force of amendments to the Convention; 

(4)  With  a  view  to  solving  this  issue,  Indonesia  and  Switzerland  have  prepared 
recommendations  for  the  10th  Conference  of  the  Parties  to  the  Basel  convention 
(COP10);  the  recommendations  propose  to  resolve,  without  prejudice  to  any  other 
multilateral environmental agreement, that the meaning of paragraph 5 of Article 17 of 
the Basel Convention be interpreted so as to mean that the acceptance of three-fourths 
of the Parties at the time of the adoption of the amendment is required for the coming 
into  force  of  such  amendment,  noting  that  such  an  interpretation  of  paragraph  5  of 
Article 17 does not compel any Party to ratify an amendment; 

2 
3 

OJ C […], […], p. […]. 
OJ L 190, 12.7.2006, p. 1. 

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(5) 

(6) 

COP10 is called upon to adopt the decision addressing the entry into force of the Ban 
Amendment with regard to the interpretation of paragraph 5 of Article 17 of the Basel 
Convention. Such a decision will have legal effects; 

In  this  regard,  it  is  proposed  that  the  recommendations  prepared  by  Indonesia  and 
Switzerland with regard to the interpretation of paragraph 5 of Article 17 of the Basel 
Convention should be supported; 

HAS ADOPTED THIS DECISION:  

Sole Article 

At  the  10th  Conference  of  the  Parties  to  the  Basel  Convention  (COP10)  on  the  Control  of 
Transboundary Movements of  Hazardous Wastes  and Their Disposal, the Commission shall 
support, on behalf of the Union, the adoption of the decision addressing the entry into force of 
the Ban Amendment with regard to the interpretation of paragraph 5 of Article 17 of the Basel 
Convention, as recommended by Indonesia and Switzerland (Annex II to this Decision). 

Done at Brussels,  

For the Council 
The President 

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Paragraph 5 of Article 17 of the Basel Convention 

Annex I 

"Instruments of ratification, approval, formal confirmation or acceptance of amendments shall 
be deposited with the Depositary. Amendments adopted in accordance with paragraphs 3 or 4 
above shall enter into force between Parties having accepted them on the ninetieth day after 
the receipt by the Depositary of their instrument of ratification, approval, formal confirmation 
or  acceptance  by  at  least  three-fourths  of  the  Parties  who  accepted  them  or  by  at  least  two 
thirds of the Parties to the protocol concerned who accepted them, except as may otherwise be 
provided in such protocol. The amendments shall enter into force for any other Party on the 
ninetieth  day  after  that  Party  deposits  its  instrument  of  ratification,  approval,  formal 
confirmation or acceptance of the amendments." 

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Indonesian-Swiss  country-led  initiative  to  improve  the  effectiveness  of  the  Basel 
Convention 

Annex II 

"CLI/2010/3/1 

Proposal prepared by Indonesia and Switzerland  

Introduction 

(1) 

(2) 

(3) 

By  its  decision  IX/26,  the  Conference  of  the  Parties  to  the  Basel  Convention 
acknowledged  the  “President’s  statement  on  the  possible  way  forward  on  the  Ban 
Amendment”  set  out  in  the  annex  thereto  and  invited  Parties  to  take  that  proposed 
way forward into consideration wherever possible. 

In  his  statement,  the  President  sought  to  launch  a  process  to  reaffirm  the 
Amendment’s  objectives  and  to  explore  means  by  which  they  might  be  achieved. 
The President called upon all Parties to create enabling conditions, through, among 
other  measures,  country-led  initiatives  conducive  to  the  attainment  of  those 
objectives.  

Based on that statement, the Governments of Indonesia and Switzerland announced 
their  readiness  to  organize  a  country-led  initiative  to  discuss,  in  an  informal  and 
dynamic  manner,  views  from  various  sides  on  a  way  forward  to  ensure  that  the 
transboundary  movements  of  hazardous  wastes,  especially  to  developing  countries 
and  countries  with  economies  in  transition,  constitute  an  environmentally  sound 
management of hazardous wastes, as required by the Basel Convention. 

The process  

(4) 

(5) 

Three  physical  meetings,  supported  by  the  Basel  Convention  Secretariat  and 
consultants, have taken place as part of the Indonesian-Swiss Country Led Initiative 
(the  ‘CLI’).  The  first  took  place  from  15  to  17  June  2009  in  Bali,  Indonesia,  the 
second from 12 to 15 January 2010 in Wildhaus, Switzerland, and the third from 24 
to  28  September  2010  in  Hilterfingen,  Switzerland.  The  outcome  of  the  first  two 
meetings  was  presented  to  the  seventh  session  of  OEWG  on  10-14  May  2010 
(UNEP/CHW/OEWG/7/7 and UNEP/CHW/OEWG/7/INF/8). 

The  documentation  and  outcomes  of  meetings  under  the  CLI  were  circulated  to 
Parties and other stakeholders by e-mail and through the Basel Convention website. 
All Parties and stakeholders were afforded the opportunity to comment on the issues 
to be discussed and a number of stakeholders that were not directly involved in the 
CLI provided valuable input to the process.  

(6) 

The first meeting considered the available statistics on the transboundary movements 
of  waste  and  discussed  the  possible  reasons  why  transboundary  movement  takes 

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(7) 

(8) 

place to countries where environmentally sound management cannot be assured. This 
led to the preparation of an analysis of these reasons. 

The  second  meeting  considered  further  this  analysis  of  possible  reasons  for  the 
transboundary  movement  of  hazardous  wastes  where  environmentally  sound 
management  could  not  be  ensured,  and  also  considered  a  paper  on  the  impacts  on 
human  health  and  the  environment  of  transboundary  movements  of  hazardous 
wastes. In light of these discussions the meeting developed a list of possible elements 
for a way forward. 

third  meeting  focused  on 

The 
the  preparation  of  concrete  proposals  for 
recommendations for consideration by the Conference of the Parties. A more detailed 
paper  describing  the  background  to  these  recommendations  is  set  out  in  an 
explanatory note that is distributed together with the present document  

General considerations 

(9) 

(10) 

(11) 

The  entry  into  force  of  the  Ban  Amendment  is  a  matter  of  political  importance. 
Obstacles  to  its  entry  into  force  and  ways  of  addressing  those  obstacles  were 
considered and  draft  recommendations prepared for transmission to the Conference 
of the Parties... Parties are not obliged to ratify the Ban unless they become Parties 
after the Ban has entered into force. 

Consideration of data on waste flows and on health effects indicated that movements 
between non-Annex VII countries continue to increase based on demand from both 
sides and illegal movements and management of hazardous waste arising within non-
Annex VII countries are cause for concern. These would not be addressed by the Ban 
Amendment. 

Therefore, a number of the recommendations arising from the CLI process deal with 
ways  of  addressing  these  issues  and  improving  standards  of  waste  management 
practices, enhancing efforts for combating illegal traffic, helping vulnerable countries 
to protect themselves against unwanted imports, and clarifying certain aspects of the 
implementation of the Basel Convention. 

Proposed action 

(12) 

The  Conference  of  the  Parties  may  wish  to  adopt  a  decision  along  the  following 
lines: 

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The Conference of the Parties 

(1) 

Addressing the entry into force of the Ban Amendment 

Recognising  that  there  are  vulnerable  Parties  who  are  unable  to  handle  hazardous  and  other 
wastes in an environmentally sound manner, but who continue to receive such wastes, which 
results in serious harm and needs to be addressed as a matter of urgency;  

Noting  that  the  amendment  to  the  Basel  Convention  adopted  by  decision  III/1  of  the 
Conference  of  the  Parties  is  one  way  of  meeting  that  challenge  but  that  other  ways  exist  to 
meet  that  challenge  responsibly,  especially  through  a  stringent  application  of  the  prior 
informed consent procedure, strengthening environmentally sound management and national 
legislation; 

Bearing in mind decision VIII/30 of the Conference of the Parties emphasising that the Parties 
to the Convention have the ultimate power to agree on the interpretation of the Convention 

Stressing the need for the Parties to agree on an interpretation of paragraph 5 of Article 17 of 
the Basel Convention as an important step in the development of the Convention, 

(1) 

• 

• 

• 

(2) 

Welcomes the practical initiative and activities that have taken place in response to 
the  call  of  the  President  of  the  ninth  meeting  of  the  Conference  of  the  Parties  for 
Parties to expedite ratification of the Ban Amendment, so as to facilitate its entry into 
force,  and  further  invites  Parties  to  continue  to  undertake  concrete  actions  towards 
encouraging and assisting Parties to ratify the Amendment, including: 

Specific  actions,  such  as  the  Nordic  Initiative,  to  assist  Parties  facing  legal  and 
technical difficulties in ratifying the Ban Amendment; 

Regional meetings; 

Country-specific studies of the implications of ratification and entry into force. 

Resolves, without prejudice to any other multilateral environmental agreement, that 
the meaning of paragraph 5 of Article 17 of the Basel Convention be interpreted so 
as  to  mean  that  the  acceptance  of  three-fourths  of  the  Parties  at  the  time  of  the 
adoption of the amendment is required for the coming into force of such amendment, 
noting that such an interpretation of paragraph 5 of Article 17 does not compel any 
Party to ratify an amendment." 

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