Brazil’s comments on the “Guidance Document on the Environmentally Sound Management of Used and End-of-life Mobile Phones”

The Brazilian Government appreciates the opportunity to present comments on the “Guidance Document on the Environmentally Sound Management of Used and End-of-life Mobile Phones”, pursuant to Decision OEWG-VI/21.

I. Context

2. The guidance document summarizes information contained in the guidelines prepared by the Mobile Phones Partnership Initiative’s project groups. Brazil would like to comment on chapter 4 of the guidance document, which concerns the transboundary movement of used and end-of-life mobile phones. It will be necessary, however, to refer to the guideline for the transboundary movement of collected mobile phones, prepared by project group 2.1, whose recommendations are summarised in chapter 4 of the guidance document.

3. The guideline classifies used mobile phones into three categories: i) mobile phones that have been tested and labelled as suitable for reuse without further repair, refurbishment or upgrading; ii) mobile phones suitable for reuse possibly after repair, refurbishment or upgrading in the importing country; iii) end-of-life mobile phones destined for material recovery and recycling or final disposal. The guideline correctly concludes that the first category is “outside the scope of the Basel Convention and these recommendations, and can be moved as commodity products” (p. 5). The document also correctly points out that the third category of used mobile phones, containing Annex I constituents, “are subject to the Basel Convention

transboundary movement controls, unless it can be demonstrated that these end-of-life mobile phones are not hazardous using Annex III characteristics” (p. 13). The conclusions are, therefore, either the application or the non-application of the Basel Convention transboundary movements controls.

II. The supposed “ambiguity” of the Basel Convention regarding mobile phones suitable for reuse possibly after repair, refurbishment or upgrading in the importing country

4. The guideline, however, proposes a different arrangement, outside the scope of the Basel Convention, for the second category of used mobile phones. The Mobile Phone Working Group concluded that such an arrangement was necessary because of a so-called ambiguity of the Basel Convention. According to the guideline: “Where there is ambiguity as to whether the Basel Convention applies to the transboundary movement of used mobile phones that have been evaluated and assessed to be likely suitable for reuse, possibly after repair, refurbishment or upgrading in the importing country, or where relevant national legislation is unclear or deemed not to cover collected mobile phones that have been evaluated, and are assessed to be likely suitable for reuse, Parties and Signatories may consider the voluntary notification procedure” (p. 13-14).

5. The alleged ambiguity would derive from the absence, from the Basel Convention, of minimum values of concentration, “so that a substance with quantitatively small hazardous constituent may be considered as hazardous waste"”(p. 10). The guideline concludes that “the Basel Convention leaves open the question of the burden of proof for the inclusion of a substance in its scope” (p. 10).

III. The applicability of the Basel Convention to mobile phones suitable for reuse possibly after repair, refurbishment or upgrading in the importing country

5. A non-fragmented read of the Basel Convention shows, however, that there is no ambiguity regarding the obligations established for its Parties. The Basel Convention establishes a system of presumptions (iuris tantum) regarding the hazardous nature of certain wastes, whose transboundary movement should be controlled. Unlike presumptions iuris et de iure, which do not allow a proof against, iuris tantum presumptions do accept a contrary proof. In this case, the presumption is set aside. The role of Annex III of the Convention is precisely to allow a proof against the presumption that wastes contained in Annex I are hazardous. Therefore, according to article 1(a) of the Convention, wastes that belong to any category contained in Annex I shall be “hazardous wastes”, unless they do not possess any of the characteristics contained in Annex III. The same applies to Annex VIII wastes.

6. According to the Basel Convention’s system of presumptions, it is allowed to move a waste outside of its transboundary movement controls (setting aside the presumption) if it is proved that it is non-hazardous (when it does not possess the characteristics of Annex III). In this case, the burden of proof is attributed to the exporter country. According to article 6.1, it is the responsibility of the State of export to first notify the State of import (or transit) and, therefore, to initiate the transboundary movement procedure. The decision to apply or not to apply the Convention is a decision to be taken by the State of export. If the State of export decides not to apply the Convention, it will not initiate the transboundary movement procedure. This decision should, however, be based on

reliable objective criteria to demonstrate that an Annex I or Annex VIII waste does not present Annex III characteristics. If the justification is ill-founded, the State will be on noncompliance and may face the legal consequences of such a situation.

7. The Basel Convention does not provide for pre-shipment consultations among States to determine if a waste is hazardous or not. It should not be expected, therefore, that the decision to apply or not the Convention be transferred to the State of import, as the voluntary notification procedure of the guidance document suggests.

8. The lack of national legislation to cover this matter should not be a reason to allow the circumvention of the Basel Convention by voluntary arrangements. One of the general obligations of State Parties, according to article 4.4 of the Convention, is the following: Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention.

9. Brazil considers the “decision tree procedure” (appendix 4b of the guidance document) a good template for governmental authorities when deciding whether the Basel Convention should be applied or not. Since the guidance document is not legally binding, States are free to adopt the means they deem more appropriate to fulfill their obligations under the Basel Convention.

IV. The completeness of international law and the absence of “lacunae” in the Basel Convention

10. Unlike the guideline suggests there is no gap, or “grey area”, or “ambiguity”, or “lacunae”, in the Basel Convention. As demonstrated above, the Convention simply establishes a system of presumptions regarding the hazardous nature of a waste. The guideline adopts a spurious interpretation of the Basel Convention in order to identify an unreal gap.

11. The completeness of the rule of law is an a priori assumption of every system of law, such as the system created by the Basel Convention. Law provides an answer for every conceivable situation that may arise – in this case, for every case concerning the transboundary movement of hazardous wastes. Judges, or, in the case of the Basel Convention, governmental authorities, do not have the liberty to refuse to give a decision on the ground of a supposed ambiguity of the law applicable to an individual case. The prohibition of a “non liquet” is an a priori legal principle. In the case of the Basel Convention, governmental authorities of the State of export are not allowed to refuse to decide whether the Basel Convention applies or not to a certain waste.

V. The voluntary notification procedure as an override of the existing law

12. Based on an unreal gap of the Basel Convention, the Mobile Phone Working Group proposes the filling of this “gap” by a voluntary notification procedure outside the scope of the Convention. The filling of this unreal gap is,

in fact, an override of the existing law. If the constituents of the used mobile phone subject to repair, refurbishment or upgrading in the importing country do not present the characteristics of Annex III, it is outside the scope of the Basel Convention. The Conference of the Parties, and the Mobile Phone Working Group, are not, therefore, competent to adopt recommendations or suggest arrangements for the transboundary movements of these goods.

13. However, it is likely that some of the constituents of a used mobile phone do present Annex III characteristics. Furthermore, it is also likely that an amount of hazardous constituents will be discarded during repair, refurbishment or upgrading in the importing country. In this case, the transboundary movement is subject to the Basel controls. If the used mobile phone subject to repair, refurbishment or upgrading in the importing country is subject to the Basel Convention controls, the voluntary notification procedure is contrary to its provisions. According to article 4.9(c): Parties shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes and other wastes only be allowed if: c) The transboundary movement in question is in accordance with other criteria to be decided by the Parties, provided that those criteria do not differ from the objectives of this Convention.

14. The voluntary notification procedure is contrary to the objectives of the Convention - particularly preamble paragraphs 4, 8, 10, 15, 18.

VI. Conclusion: possible way forward

15. The applicable law to the transboundary movement of hazardous wastes among the Parties to the Basel Convention is its text. As to the control of the transboundary movements of used mobile phones subject to repair, refurbishment or upgrading in the importing country, there are only two options: the applicability of the Basel Convention or its non applicability. In the view of Brazil, the “decision tree” procedure is a good template to assist governmental authorities of the exporter country to determine if the Basel Convention is applicable or not. It fulfills the objective of a guideline, which is to promote the implementation of the Convention and to strengthen the Basel regime.

16. The recommendations of the guidance document regarding the transboundary movements of used mobile phones subject to repair, refurbishment or upgrading in the importing country are inconsistent with the legal and environmental integrity of the Basel Convention. They also represent an inadmissible precedent to possible guidelines, in the future, on the transboundary movement of other electronic wastes to be addressed by partnerships.

17. Brazil strongly recommends the deletion of the voluntary notification procedure (appendix 4a) from the guidance document on the environmentally sound management of used and end-of-life mobile phones. Paragraphs 59 (b) and 61 (5) and (6) should also be deleted. The same recommendations for the transboundary movements of end-of-life mobile phones destined for material recovery, recycling and final disposal should be replicated for used mobile phones subject to repair, refurbishment or upgrading

in the importing country. The “decision tree” procedure should be retained as a template for exporting countries when deciding if such a transboundary movement should be subject to the Basel Convention rules.