What to Watch For at the Basel Convention COP, with Dr. Katharina Kummer Peiry

The former executive secretary of the Basel Convention reflects on the opportunities and challenges facing the convention ahead of the Conference of the Parties

06/07/2022 | Silverado Policy Accelerator

Beginning this week, diplomats from around the world are gathering in Geneva, Switzerland for the fifteenth meeting of the Conference of the Parties (COP) to the Basel Convention. This year’s gathering is the first in-person COP since the onset of the coronavirus pandemic, providing the parties with a much-anticipated opportunity to address issues related to the movement of hazardous — and, increasingly, non-hazardous — waste around the world.

For a preview of this year’s COP and an overview of the issues that are top of mind for the convention, we turned to Dr. Katharina Kummer Peiry, a member of Silverado’s Strategic Council and the former executive secretary of the Basel Convention. A globally renowned expert in the international law and policy of waste and materials management, Dr. Kummer Peiry is now the owner and principle of Kummer EcoConsult, a Swiss-based consulting firm specializing in environmental law and policy at the international level.

The following transcript has been edited for length and clarity.

Silverado Policy Accelerator: For those who may not be familiar with it, what is the Basel Convention, and what are its major objectives?

Dr. Katharina Kummer Peiry: The Basel Convention is an international treaty negotiated and adopted within the framework of the United Nations Environment Program in 1989. Its main objective was to prevent the dumping of toxic wastes from industrialized nations into developing countries. At the time, the industrialized world had started to recognize the dangers of these materials and had adopted legislation to ensure their safe handling. But this became more cumbersome and more expensive, so some unscrupulous traders hit on the idea of just shipping the material to Africa and other parts of the developing world and dumping it there. This came to public attention through the media and through NGOs in the mid-1980s, and the Basel Convention was negotiated in response to it.

I mention this in so much detail because the Basel Convention is now 30 years old, but you can still identify the underlying objective of preventing the export of hazardous waste from developed to developing countries. Nevertheless, since its adoption, the convention has changed quite a bit. There has been one formal amendment. But the development of a modern treaty takes place not only formally but also through decisions by its Conference of the Parties. This is the supreme organ of the convention in which all parties are represented. The COP determines the budget, the work program, funding, and means to facilitate implementation such as technical guidelines, partnerships and projects to assist countries with implementation. Such decisions are not formally binding but nevertheless influence the life of the convention. Following these developments, the objective of the convention is now more broadly to ensure safe and sustainable management of hazardous wastes.

Silverado: As you mentioned, the Basel Convention has historically been focused on helping nations protect their natural environments from mismanaged waste. Looking to the future, are there ways that the Basel Convention can also help countries achieve their longer-term climate and sustainability goals, including through the promotion of the principles of the circular economy?

Dr. Kummer Peiry: Today the Basel Convention is no longer focused only on import and export. Numerous instruments have been developed - including the technical guidelines on specific waste streams — that are intended to help parties manage these wastes in an environmentally-sound manner. There are also a number of partnerships by which countries and non-state actors get together to develop ways and means of handling certain substances. Accordingly, the convention already makes a contribution to sustainability and the circular economy.

If you look at the circular economy, though, there's one inherent limitation, which is that the Basel Convention only addresses the downstream part of the circular economy: wastes, which are materials that have reached the end of their useful life for their holder. It doesn't address the rest of the circular economy. There isn't any legal framework that would address the whole circle. So the Basel Convention can basically only work on that downstream part.

And even for the downstream part, there is a certain limitation. The Basel Convention is limited to specific types of waste —  those that it defines as hazardous. Everything else is not covered. The convention contains general principles on waste management, but its key provisions still deal with import and export, and, of course, that doesn't really cover the full extent even of the downstream part of the circular economy.

But this being said, there is a possibility for the Basel Convention to play a role on these issues, which would be for it to promote methods to make these wastes — these materials that no longer have a useful life — reenter the circular economy and become useful again. And I think here we have hit on the core issue that's under discussion now and that's been under discussion for the last 30 years.

Some progress has already been made in this respect. This was during the time that I was executive secretary of the Basel Convention. There was a paradigm shift from just regarding wastes as bad — as a problem, as something to be controlled and its unsound management to be prohibited. In 2010, at the 11th meeting of Conference of the Parties, there was recognition  of the concept of waste as a resource. It is probably surprising when I say this now, more than 10 years later, but at the time, this idea was actually difficult to get across. There was a lot of opposition, especially from environmental NGOs and developing countries, who maintained that this was just a way of reducing protection against the ill-effects of wastes. They felt that recognizing wastes as potentially valuable would mean less control and thus less protection,  which would undermine the very purpose of the convention.

So it was quite hard to get this concept across at the time, but since then, it’s come a long way. Of course, a lot more could be done, but I think the fundamental recognition of the idea is there.

Silverado: On that topic, the parties to the Basel Convention are poised to adopt a new proposal that would place all non-hazardous used electronics under the control of the convention. Some observers have raised concerns that this amendment would impede access to critical minerals that are collected from recycled electronics which, under the proposed regulations, would potentially not be able to be transferred to countries that have the capacity to recycle them and put those materials back into use. Do you think those concerns are justified?

Dr. Kummer Peiry: I would say the concerns are indeed justified. Quite obviously, if additional materials are considered to be hazardous waste, they would be subject to the strict controls established by the convention. And this, of course, could impede trade — as is already happening for some waste streams containing valuable materials.

But of course, the opposite is also true, and the concerns that prompted these proposed amendments are also justified. The concern is that these materials, even if they're not considered hazardous under the current definition of the convention, could be exported to countries — and are actually being exported to countries — where there is no capacity to handle them. One example that is often discussed is that of used clothes from developing countries that are exported to Africa with the idea of doing good, but then they end up on dump sites or being burned. Even things like used clothes — which are not hazardous — contain some substances that you don’t want to leach into your drinking water.

So basically both concerns are justified, in my opinion. The ideal solution would be to find a way of addressing both these sets of concerns — essentially, to find a system that allows faster, easier, and more practical transfer of materials to countries that are able to recycle them and extract the useful resources, while also protecting those countries that do not have the means of handling the substances.

Silverado: Are there other procedural issues within the Basel Convention that could impede this sort of useful trade?

Dr. Kummer Peiry: The convention has as its cornerstone something called the “prior informed consent procedure.” At the time of the negotiation of the convention, this procedure was itself a compromise between those who wanted to ban any export of hazardous waste for any purpose to anywhere in the world and those who raised the concerns that you just mentioned, which even at the time were already on the table. This procedure provides that for any intended movement of hazardous waste covered by the convention, the  prospective state of export must notify the prospective state of import by providing specific information that is set out in an annex to the convention, for example  the composition of the wastes, where it's supposed to go, what's to be done with it, and so on. The movement can only proceed if and when the state of import — and any state of transit, which also has to be notified — gives its written consent.

In practice, this procedure is extremely  cumbersome, and it often does result in significant practical restrictions on trade. Material can just sit somewhere for years, as the convention does not provide a deadline for the importing state to accept or deny the movement. The convention also leaves quite a lot of leeway for states to establish the details of the procedure. In the European Union, for example, it's extremely complicated. They have added layers  of requirements, so it’s very difficult to get waste material across national borders. In developing countries, you have the opposite problem: there are hardly any rules on the details of the procedure. Sometimes, even when you're talking to a national authority, nobody is really sure what wastes are actually covered and what procedures apply.

So this is something that in practice leads to a lot of delay and amounts to trade restrictions. And the concern is that if non-hazardous substances — or those that are not defined as hazardous under the convention — are also covered by this procedure, then that will lead to delays.

Silverado: Is there a way to resolve that problem within the framework of the Basel Convention, or would it require a fundamental reworking of that framework?

Dr. Kummer Peiry: My personal opinion is that there would be a need for a fundamental reworking. The discussions have gone on for years, and it's always the same issue — the question of which substances  should be covered and which should not be covered. This is a huge issue, for example, in the technical guidelines on e-waste that have already been discussed for many years: what should be the distinction between electronic waste (covered) and used electronics (not covered)? This discussion is closely linked to the question of where export should be allowed. So I don't really think that the discussion that will take place at the upcoming COP will actually solve these problems.

Again, I see it in the broader context of how the whole system could be reworked to allow desirable operations while preventing undesirable ones. Because, of course, there will always be countries that are equipped to handle certain materials and others that are not, and if you just define a control measure, and you define which wastes are covered, it doesn't really address that particular problem. Applying the same control to all countries and all wastes  doesn't really help.

So there are three things that I would propose specifically, totally acknowledging that they will not be easy to achieve. The first would be to reform the prior informed consent system to make it less cumbersome and also, possibly, to introduce different levels of control for different types  of substances. One possibility would be to use a defined level of hazardous contents as a criterion for the level of control that should apply.  This is done by some national laws  but not by the Basel Convention. Also, a very basic reform could be the introduction of a deadline by which a response has to be given.  Of course, it would be a huge task to do this, and so far as I know, it has never really been proposed by anyone  — even though everybody knows what the problems are, or at least everybody who is actually dealing with this in everyday life.

The second issue — which is being worked on for electronics, as mentioned  — is to have clear definitions of the types of wastes covered by the convention. Technical guidelines exist on some types of wastes, but not on others, and they are not compulsory and thus not used by all states. In many countries, if you ask somebody in a national authority about a modern device that did not exist 15 years ago, nobody knows if this is covered or not and what procedure applies to it nationally.

The third thing I believe would be useful would be to introduce a system  in which the permissibility of export and import is not defined by categories of countries, as is currently the case. The Ban Amendment that has recently entered into force prohibits the export of waste to a certain category of countries, which in my opinion is not a fully satisfactory solution. It would be much better to have a definition of the capacity that a country has to have in order to be allowed under the convention to accept the import of certain substances. One way of doing this, for example, would be to require facilities to be certified to an internationally recognized standard in order to accept specific types of wastes. So, not to just distinguish between developed and developing countries, because there are huge differences within these categories of countries, for example between the poorest countries and the newly industrialized countries. Instead of using these two categories, there should be clear definitions of what requirements a country must meet in order to be able to import certain types of wastes.

I believe that if these three things – a reform of the prior informed consent procedure, clearer definitions of the wastes covered by the convention, and criteria for countries and facilities to accept specific types of wastes - could be achieved, it would go a long way towards solving the problems that will again be discussed at the forthcoming COP, and meeting the challenge of prohibiting the undesirable while promoting the desirable. Obviously, this is not going to happen overnight:  it’s a long-term and very ambitious way of thinking. I haven't really had time to think this through in much detail, but just off the top of my head, one idea would be to say, when negotiating the amendments that are now on the table, “Let’s accept the amendments on condition that that we will revise the prior informed consent procedure to provide a simplified procedure for the new materials to be covered.” So you would not have the same procedure as you have for hazardous waste, but have one that is less strict and less cumbersome. The European Union, for example, has such a system, where there are different levels of control in accordance with different categories of waste.

Silverado: The convention has already expanded its scope to include some types of plastics, and now it is considering expanding even further to include electronics. Do you think the convention is moving in the right direction by extending its control even deeper into the non- hazardous waste categories?

Dr. Kummer Peiry: My view is  that preventing the type of operation that goes on around the world — having substances that are not super hazardous but that are still dangerous if they're not handled correctly end up in dump sites or in unsound recycling—  is necessary. So I can see the idea behind including additional substances that are not currently considered hazardous. But I think that this alone would not be moving in the right direction, because then you have the problem of preventing  desirable operations, for example those that allow the extraction of rare earth metals and other important secondary raw materials,  that we talked about before. Accepting the proposed amendments would need  to go hand-in-hand, in my opinion, with an approach that would prevent this type of trade restriction — for example, a simplified control procedure for those materials.

Silverado: Is there anything else you’ll be looking out for at the upcoming COP?

Dr. Kummer Peiry: There’s one thing that I would like to add to everything that I've said. It’s quite obvious that the solutions I have proposed would be very difficult to achieve, and part of the reason for this is that the UN’s current negotiating constellations and the methods used do not necessarily allow this. The UN still adheres to what I would consider to be totally outdated negotiation methods, where you have a room full of people speaking in six languages, with  interpretation in six languages, and everybody making their statements. There is no real problem-solving method. In the world outside the UN — in the business world and in education for example — there are modern negotiation techniques that are designed to have a large group of people look at a problem and come to solutions acceptable to all, such as the World Cafes method, for example, or Open Space, with a trained moderator managing the process.

The other thing is that for the negotiation of technical issues under the Basel Convention, there will be technical experts, but these experts are government people. You actually have nobody there who knows how this works on the ground — nobody from the recycling industry, nobody from the manufacturers, nobody from the shippers. To me, it seems sort of obvious that this doesn't really work. To find a solution, you have to have the people there who do the work on the ground.

I have tried in my time, especially when I was executive secretary of the Basel Convention, to introduce these modern negotiation techniques where possible. But at that time, it was basically a lost cause. Now, this was 10 years ago, so maybe it will be easier now. But I think, on a fairly pessimistic note, that as long as the old negotiating techniques and constellations are used, progress will be extremely slow, and you don't really get the people there who can tell you the solutions.