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exports of UEPs that are not tested and fully

functioning prior to export should be presumed

hazardous shipments. Other countries argue

that such shipments are not hazardous wastes

covered by the Convention. In practice, it can

be difficult to distinguish which shipments are

hazardous and which are not.

Developed vs developing
Another common misconception is that the Ban

Amendment would generally prohibit exports

from developed to developing countries. In real-

ity, owing to geopolitical changes over recent

decades, ‘OECD member’ no longer automati-

cally equates with ‘developed country’.

For example, Chile, Mexico and Turkey are

members of the OECD, but are in some policy

contexts considered developing countries; Saudi

Arabia, Singapore and the United Arab Emirates

are not OECD members, but nobody would

question their status as highly-developed econ-

omies. A number of the EU’s newest members

are not members of the OECD, for example

Bulgaria, Latvia, Lithuania and Malta. There-

fore, banning exports from EU and OECD states

to non-members of these organisations is not

necessarily the same as banning exports from

developed to developing countries. For example,

the Ban Amendment would prohibit exports

from Mexico to Singapore while allowing ship-

ments from Saudi Arabia to Turkey.

Enforcement difficult
A blanket export ban does not solve these prob-

lems but instead creates new ones.

Broad consensus exists today among NGOs,

policy-makers and industry representatives that

using poor countries for disposal of hazardous

wastes or for cheap, irresponsible informal

recycling is unacceptable. The big question is

how this can be effectively prevented. Support-

ers of the Basel Ban Amendment and similar

pieces of legislation strongly argue that a ban

on exports from OECD to non-OECD coun-

tries is the solution. Unfortunately, the mere

existence of a ban will not solve the problem.

Enforcement is extremely difficult even in the

most highly-developed countries, to say nothing

of developing countries, which often also lack

the legislation and institutional framework. Add

to this the reality of corruption in many coun-

tries and a blanket ban will merely force the

‘dirty business’ into illegality. For example, EU

legislation has prohibited hazardous waste

exports to non-EU and non-OECD countries

for years, but illegal exports to such countries

continue – notably to Africa – on a large scale.

Also, the proliferation of UEPs is no longer a

problem for traditional industrialised countries

alone: according to some estimates, more UEPs

will be generated in developing than in devel-

oped countries within the next decade. Banning

exports from EU and OECD members to all

other countries will not ensure that UEPs dis-

carded locally in non-OECD countries will be

managed in an environmentally sound manner.

Unintended effects
Not only does a blanket ban fail to stop illicit

exports, it also has unintended effects on legiti-

mate operators who abide by the applicable

legislation: it will prevent desirable transactions

that extend the lifespan of electronic equipment

or allow the extraction of valuable resources

from UEPs and create safe jobs in developing

countries. An example is repair and refurbish-

ment of UEPs in state-of-the-art facilities locat-

ed outside the OECD and the EU. It is for these

reasons that those wishing to promote a life-

cycle approach and green materials management

globally do not support the Basel Ban Amend-

ment as it stands. A more effective solution

would be to develop a global system to ensure

that UEPs are recycled only in facilities certified

to broadly-accepted international standards that

ensure environmentally sound management.

Basel and the USA
The Basel Convention prohibits its parties from

engaging in transboundary movement of haz-

ardous wastes with non-parties, except under

a special agreement. The USA, one of the very

few non-parties, may therefore not export haz-

ardous wastes to any of the 181 countries that

are currently Basel parties – whether or not they

are EU or OECD members – unless it concludes

an agreement with the country in question. The

USA has concluded a number of such agree-

ments, including with all developed countries

under the OECD Convention.

Should the USA accede to the Basel Convention

while the Ban Amendment is not in force, it

would be free to decide whether or not to

accede to the Ban Amendment also. If it accedes

to the Convention when the Ban Amendment

is in force, the USA would be bound by the

Convention, including the Ban Amendment,

unless it stated its intention not to be bound by

the Amendment. In both scenarios, therefore,

the USA would have a choice in the matter.

Unless the USA becomes a party to the Conven-

tion and to the Ban Amendment, and the Ban

Amendment is in force, it has no obligation to

enact national legislation implementing the Basel

Convention or the Ban. In this sense, the Respon-

sible Electronics Recycling Act (H.R. 2791) cur-

rently under discussion, which is very similar in

content to the Ban Amendment and presents the

same problems, would constitute a unilateral,

voluntary implementation of the Basel Ban by

the USA. The question could also arise whether

other agreements to which the USA is a party

might be impacted by such legislation.

Katharina Kummer Peiry MLaw, PhD is a globally-
renowned expert on the Basel Convention with
25 years’ experience in total, including fi ve years
as the Convention’s executive secretary. She is
the author of the defi nitive study on the Conven-
tion and is currently director of Swiss consulting
fi rm Kummer EcoConsult. www.ecoconsult.ch/v

Industrialised nations like the USA and Canada do not support the
Ban Amendment and are unlikely ever to ratify it.

Katharina Kummer Peiry

‘A blanket ban will
merely force the

dirty business into
illegality.’

RI-7 Basel Convention.indd 41 01-09-14 09:21