SUNS4504 Tuesday 7 September 1999

Environment: Teetering from high hopes to disappointment

Geneva, Sept 6 (Someshwar Singh) -- Developing countries and several environmental NGOs have been disappointed by the draft agreement on a Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal during talks held here last week.

The meeting last week, an UN Environment Programme press release of 27 August had anticipated, would make an effort to finalise the draft text of the agreement. But the meeting failed to finalise the draft, and the draft with some differing views will now go before the Fifth Conference of Parties to the Basel Convention, to be held in Basel Switzerland 6-10 December.

An UNEP press release issued Monday, however, described the talks as having made progress on the issue of liability and added that the question of whether or not to establish an Emergency and Compensatory Fund for assisting developing countries faced with unwanted wastes has proved more difficult.

The Basel Action Network (BAN), an NGO grouping, condemned the draft agreement as a "toothless, barking dog."

The NGO coalition said that developing countries were taken by surprise at the revelation that many member states of the European Union and the OECD wished to be excluded from the requirements of the protocoland instead make use of bilateral, or multilateral agreements with add-on, or national liability provisions of their own making.

These provisions could be weaker than those of the protocol itself, BAN said.

Rift between the developing countries and their richer counterpart has widened as the latter are reportedly unwilling to commit to the creation of a fund to provide compensation in instances when the courts cannot, and also to fund preventive measures.

This fund is viewed by many developing countries as one of the pillars of the proposed agreement.

"First, the richest and most powerful countries reduced the Protocol to a few limp strands of spaghetti," said BAN coordinator, Jim Puckett. "Then, once that mission was accomplished, they said this is not for us, but rather it's for you developing countries."

Developing countries and environmental organizations, said BAN, accused the OECD countries of negotiating in bad faith as the latter have spent many sessions "working steadily to successively weaken the protocol and then, in what was to be the last session, revealed their clear intentions to circumvent it."

Germany and Austria reportedly even claimed on the floor that they never wanted the protocol and without an opt-out provision would not ratify. But with such provision, ask developing countries, where is the incentive to ratify, or even make contributions to a fund?

The fifth meeting of the Conference of Parties (COP-5) of the Basel Convention will take place in Basel, Switzerland from 6 to 10 December 1999 and will mark the Convention's tenth anniversary.

If adopted and ratified, the protocol will for the first time established a rigorous system for assigning liability in the event of an accident involving hazardous wastes.

According to UNEP, this liability is to be strict, regardless of fault. However, the protocol is also expected to place a cap on financial liability. The exact amount of this cap will still need to be agreed.

Another outstanding issue is the scope of the protocol: should it cover only the hazardous wastes as defined under the Basel Convention or also as those defined in national legislation.
According to BAN, the protocol draft allows producers of hazardous wastes to avoid liability simply by passing toxic wastes to brokers for export - a move which contradicts both 'Polluter pays principle" and would in fact provide actual incentives for industry to export its waste to avoid domestic liability.

"Such incentive flies in the face of the Basel Convention's objective to reduce global waste trade," said BAN.

"Countries like Canada, USA, Australia, and Germany must move from protecting the interests of their industrial lobbies to the Protocol's original intent - protecting victims of toxic wastes," said Waldemar Braul, BAN legal advisor from Canada's West Coast Environmental Law Association (WCELA).

"Without fundamental strengthening, the Basel Liability Protocol will be a global embarrassment and a dangerous precedent for other international efforts for providing protection to victims of industrial hazards."

The effort of the OECD countries to avoid any liability, and ensure a "cap" on liability for their corporations, in the Basel protocol, appears to be a fore-runner of similar tactics on a bio-safety protocol.

While insurance companies are fighting shy of providing cover against environment and other such risks for bio-engineered products and crops, giant seed companies pushing bio-engineered products on the developing world, are trying to make sure that national laws ensure that the companies would not be liable for any liability.

A report from Pakistan (SUNS #4501) said that the Monsanto corporation has been pressuring and lobbying the government of Pakistan to delete provisions from a draft law on implementing plant varieties protection required under the WTO's TRIPs under consideration.

The Pakistan draft law would require a genetically modified or transgenic plant to clear tough environmental impact and biosafety assessments, and would bind the owner of the genetically modified or new transgenic variety to pay compensation for hazards and damages.

A protocol for bio-safety of genetically modified products and organisms, under the UN Convention on Bio-Diversity (CBD) has been held up by opposition of the US (not a signatory) and somecountries associated with it (including Australia, Canada and Argentina).

A new round of consultations on the protocol is due to be held in Vienna next week.