In his recent opinion piece titled “Nigeria report (almost) gets it right“, Mr. Robin Ingenthron has much to say about the recent United Nations University (UNU) report regarding significant volumes of electronic waste flowing from European ports to Nigeria locked inside used automobiles.
Basel Action Network (BAN) is appreciative of this work by UNU as it adds greatly to an understanding of e-waste smuggling in Europe and it is a real study – that is, it actually makes real observations of real wastes, on the ground, on the ships and in the ports, rather than merely academic exercises using corporate surveys or extrapolating from loose assumptions about e-waste trade by looking at trade data of surrogate materials.
Jim Puckett
Mr. Ingenthron is entitled to his opinions about the UNU study and his odd belief that pictures of impoverished children working in toxic jobs are some form of pornography. The comparison, in my view, cannot be further off the mark. But setting all of the opinions aside, BAN finds it remarkable and worrying that Mr. Ingenthron believes he is competent to tell the United Nations University that they are misreading the Basel Convention and that somehow the waste flows described in their report are legal.
I have personally been to every meeting of the Conference of the Parties to the Basel Convention since its adoption in 1989. I have attended every single Legal Working Group since that time and every Open-Ended Working Group meeting as well. I was an active participant of, and never missed, a meeting of the Mobile Phone Partnership Initiative (MPPI) and the Partnership for Action on Computing Equipment (PACE).
Currently, and for the past eight years, I have been involved as a member of the Expert Working Group finalizing a guideline on the distinction of waste and non-waste with respect to used electronics. I am also currently a member of the Expert Working Group on the Revision of the Annexes, as well as a member of the ENFORCE partnership on Basel Convention enforcement. In all of these meetings I have never seen Mr. Ingenthron, but I have occasionally seen members of UNU.
I mention the above to demonstrate that Mr. Ingenthron is not an authority on the Basel Convention despite his assuming that mantle in his opinion piece. Unfortunately, he has his facts and understanding of waste trade law terribly wrong, and in so doing has impugned the good work of the UNU, while perpetuating dangerous misinformation.
Looking at the specific language
Facts are important, truth is important, especially in matters of the rule of law, so I am compelled to write. Below are the realities of the Basel Convention and what it says about e-scrap exports:
- Annex IX of the convention was adopted in 1994 to assist parties in determining which waste streams are likely to be non-hazardous based on what we know about them. It is a guide, but it alone is not definitive. It defers to the overriding annexes I and III. To wit – the subtitle (or chapeau) of Annex IX reads:”Wastes contained in the Annex will not be wastes covered by Article 1, paragraph 1 (a), of this Convention unless they contain Annex I material to an extent causing them to exhibit an Annex III characteristic.” Article 1, paragraph 1 refers to hazardous wastes as defined by the convention itself and not by national governments. Annex I refers to the list of substances or waste streams, while Annex III is a list of hazardous characteristics. Under the convention, when a waste is in Annex I and exhibits a hazardous characteristic listed in Annex III it will then be considered a hazardous waste controlled under the convention. What the subtitle of Annex IX states is that this is true even if something is listed in Annex IX.
- So in the case of B1110’s third bullet that Mr. Ingenthron refers, this can only be seen as a non-hazardous waste and therefore outside of the scope of the convention if it does not “contain Annex I material to an extent causing them to exhibit an Annex III characteristic.” As so, much of electronic waste is in fact hazardous due to containing substances such as lead, cadmium, mercury and brominated flame retardants. And because, at the same time, these substances exhibit hazardous characteristics such as “toxic” or “eco-toxic,” it is still within the scope of the convention despite its appearance on Annex IX.
- Also ignored by Mr. Ingenthron is the fact the Basel Convention is not even the most important legal framework for the waste trade from Europe to Nigeria. We have the European Waste Shipment Regulation, which has incorporated the Basel Ban Amendment and makes all hazardous wastes listed by the European Union moving to developing countries illegal.
- We have the EU’s waste electrical and electronic equipment (WEEE) directive, which stipulates in its Annex VI that, with few exceptions, shipments of electronic wastes that are not tested and shown to be fully functional must be considered wastes and, if they contain hazardous substances, must be considered hazardous waste.
- We also have the Bamako Convention, which declares all Basel-listed substances, whether they exhibit hazardous characteristics or not, are illegal to import into the continent of Africa from outside the continent. To further clarify matters, the Bamako Parties decided at their first Conference of Parties that electronic waste that is not fully functional shall be considered hazardous waste (see Decision 15).
- And, we have Nigerian law, which strictly prohibits all electronic waste, including near-end-of-life electronics, from entering the country.
In conclusion, the Basel Convention and the Ban Amendment cover exports of used electronics containing hazardous substances, unless they are tested and shown to be fully functional. And in the case of this particular UNU case study, many other laws do as well. These are national, regional and global law and norms, and the UNU is correct in so stating.
Jim Puckett is the executive director of the Basel Action Network and can be contacted at jpuckett@ban.org.
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