PROMOTING SYNERGIES BETWEEN

THE BASEL CONVENTION, THE BARCELONA CONVENTION

AND THEIZMIR PROTOCOL

Lucien CHABASON

Consultant

2006

INTRODUCTION

The present report was prepared at the request of the Basel Convention Secretariat, in co-operation with UNEP Regional Seas Unit.

It is intended to promote synergies between Basel Convention and Barcelona Convention with a view of making more effective the implementation of Basel Convention by using the framework of Barcelona Convention to this end.

The report is based on :

  • an analysis of legal issues
  • a review of potential interrelation between implementation plans respectively adopted by the two Conventions Governing Bodies
  • the identification of common priorities
  • a review of ongoing processes to be used as opportunities for preparing and supporting concrete projects

I - HISTORICAL AND LEGAL BACKGROUND

The decision to negotiate a new protocol to the Barcelona Convention on transboundary movement of dangerous waste was adopted at the Ninth Meeting of the Contracting Parties to the Barcelona Convention in Antalya (Turkey, 1993) and confirmed at their following meeting in Barcelona, 1995.

During that meeting, the Contracting Parties adopted the amendments to the Barcelona Convention including a new provision referring to dangerous waste. This new article (eleven) states the following: “The Contracting Parties shall take all appropriate measures to prevent, abate and to the fullest possible extent eliminate pollution of the environment which can be caused by transboundary movements of hazardous wastes, and to reduce to a minimum, and if possible eliminate, such transboundary movements”.

The decision to adopt a protocol for the implementation of the new article 11 of the Convention was strongly supported by many countries, especially developing countries, and by NGOs, although many of them had signed and even ratified the Basel Convention. At the time of the Barcelona meeting (1995), the Basel Convention had been in force since 1992. Therefore, Mediterranean countries were clearly informed of the existence of the Basel Convention when they expressed their will to adopt a Mediterranean legal instrument.

Following two meetings of national experts, the protocol was adopted in 1996 in Izmir (Turkey) ; 13 countries signed the protocol and the Final Act.

Issues at stake during the negociation of the Izmir Protocol

The Conference of Plenipotentiaries, which discussed and adopted the protocol, was not an easy one. More specifically, European Community and some of its countries members mainly opposed two provisions, indeed, one related to the definition of Dangerous Wastes which includes in its annex I the following category: Yo “All wastes containing or contaminated by radio nuclides, the radionuclide concentration or properties of which result from human activity “, the second to article 6-4 related to transboundary movement which includes a provision related to the need for prior notification to the transit state when the transboundary movement takes place through its territorial sea; as a consequence, the transit country is required “to bring to the attention of the state of export all the obligations relating to passage through its territorial sea in application of international law…”

This formulation, as finally adopted, was a compromise between those countries which supported the principle of prior authorization for transit through their territorial sea and those who were strongly opposed to such authorization, putting forward those provisions of the Law on the Sea referring to the freedom of navigation and especially the right for innocent passage through territorial waters.

Finally, among European Countries, only Greece and Italy accepted the compromise and signed the protocol which was finally adopted (Annex 1).

Status of ratification of Basel and Barcelona Conventions in the Mediterranean

As of 1st January 2006, although the amendments to the Barcelona Convention already entered in force following their ratification by 17 countries, when it comes to the Izmir Protocol, only five ratifications of the took place: Albania, Malta, Morocco, Tunisia and Turkey; six ratifications are required for the entry in force of a new protocol to the Barcelona Convention.

At the same time, all Mediterranean countries and the European Community had ratified the Basel Convention.

However only eight Mediterranean Countries had ratified the Ban Amendment: Albania, Cyprus, Egypt, France, Slovenia, Spain, Syria, Turkey as well as the European Community.

Questions about the lack of ratifications of the Izmir protocol

At their last meeting (Portoroz, Slovenia, 2005), the Contracting Parties to the Barcelona Convention expressed their concern about those protocols, which so far did not entered into force due to lack of ratifications Offshore, Izmir) and requested the Secretariat to start consultations with concerned countries.

During the ongoing MAP evaluation process, which started in 2005 and is being finalized, countries were requested to express their intention about further ratification of these protocols.

Among 17 Contracting Parties, which have not ratified the Izmir Protocol so far, four said they would ratify in 2005, and three in 2006/7. Two countries indicated they would not ratify. European Commission indicated that it would not be ratified in the foreseeable future.

Among the seven European countries and the European Union, only Italy expressed its intention to ratify, with no indication of date.

Finally, since this questionnaire whose results are synthesized in MAP document UNEP/DEC/MED270/info.9 dated 18 July 2005, and submitted to the meeting of the Contracting Parties, November 2005, no additional ratification took place.

Pending the final output of the consultation undertaken by the Secretariat (MEDU), one can feel that the difficulties with ratifying the Izmir Protocol will continue.

It is unlikely that the European Union and some European countries would later on decide to ratify, both for substantive and legal reasons.

The main substantive reason is the lack of similarity in the definition of Dangerous Waste between the Basel and the Barcelona Conventions due to the inclusion of radioactive wastes in the Izmir Protocol.

The issue of “radioactive waste” is of specific nature. The Izmir Protocol includes this category among the definition of Dangerous Waste, which the Basel Convention does not do. It means that the definition by the Izmir Protocol is more comprehensive than Basel Convention’s but not incoherent. It is the right of a regional agreement to adopt more rigorous provisions provided it applies only to the Contracting Parties to the Regional agreement and does not conflict with international law and principles.

The legal issue has to do with the rules related to the transit in the territorial sea as addressed in the Izmir Protocol which seems problematic for some European countries. European accession requires the acceptance of all country members and not only European Mediterranean countries. In case the European Community would access to the Izmir Protocol, the later would become part of the European legal order (under control of the European Court of Justice), therefore applicable to all European countries including the non-Mediterranean ones.

Therefore those positions which were expressed by some European countries during the process of ratification of the Basel Convention in relation with maritime issues should be scrutinized.

During the ratification process of the Basel Convention, Germany and United Kingdom (European Union country members) formulated Declarations related to the issue of transit through the territorial sea.

Germany made the following declaration upon signature and confirmed upon ratification:

"It is the understanding of the Government of the Federal Republic of Germany that the provisions in article 4, paragraph 12 of this Convention shall in no way affect the exercise of navigation rights and freedoms as provided for in international law. Accordingly, it is the view of the Government of the Federal Republic of Germany that nothing in this Convention shall be deemed to require the giving of notice to or the consent of any State for the passage of hazardous wastes on a vessel under the flag of a party exercising its right of innocent passage through the territorial sea or the freedom of navigation in an exclusive economic zone under international law."

In this Declaration, the expression “giving of notice…for the passage of hazardous wastes on a vessel… territorial sea” is clearly in contradiction with the provisions of the Izmir Protocol.

UK position is related to the Declaration made by Egypt after its ratification as follows.

Concerning the process of ratification of the Basel Convention, on 31 January 1995, the Egyptian Government made the following Declaration :

“ The Government of Egypt informed the Secretary-General that its instrument of accession should have been accompanied by the following declarations :

First declaration : passage of ships carrying hazardous wastes through the Egyptian territorial sea :

The Arab Republic of Egypt, upon acceding to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which was done on 22 March 1989 and is referred to hereafter as "the Convention", and, in accordance with article 26 of the Convention, declares that : In accordance with the provisions of the Convention and the rules of international law regarding the sovereign right of the State over its territorial sea and its obligation to protect and preserve the marine environment, since the passage of foreign ships carrying hazardous or other wastes entails many risks which constitute a fundamental threat to human health and the environment ; and

In conformity with Egypt's position on the passage of ships carrying inherently dangerous or noxious substances through its territorial sea (United Nations Convention on the Law of the Sea, 1983), the Government of the ArabRepublic of Egypt declares that:

Foreign ships carrying hazardous or other wastes will be required to obtain prior permission from the Egyptian authorities for passage through its territorial sea.

Prior notification must be given of the movement of any hazardous wastes through areas under its national jurisdiction, in accordance with article 2, paragraph 9, of the Convention.

Second declaration: imposition of a complete ban on the import of hazardous wastes:

The Arab Republic of Egypt, upon acceding to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which was signed on 22 March 1989 and is referred to below as "the Convention" ; and

In accordance with article 26 of the Convention, declares that:

In accordance with its sovereign rights and with article 4, paragraph 1(a), of the Convention, a complete ban is imposed on the import of all hazardous or other wastes and on their disposal on the territory of the ArabRepublic of Egypt. This confirms Egypt's position that the transportation of such wastes constitutes a fundamental threat to the health of people, animals and plants and to the environment.”

The British Government expressed the following objections to the Egyptian Declaration (9 October 1995) :

“The Government of the United Kingdom of Great Britain and Northern Ireland cannot accept the first declaration of Egypt (passage of ships carrying hazardous wastes through the Egyptian territorial sea) [...]. Not only was this declaration out of time, but like all other declarations to similar effect, it is unacceptable in substance. In this connection the United Kingdom Government recalls its own statement upon signature confirmed upon ratification.”

The governments of Finland, Netherlands and Sweden, others members of the European Union, expressed similar objections.

It should be noted that Egypt Declaration is coherent with the stand this government took during the above referred Izmir Plenipotentiaries meeting, when Egypt and some other countries supported the idea of prior authorization while finally accepting a compromise.

Finally, it should be noted that article 26 of the Basel Convention excludes reservation and exception as well as Declarations or statements, which would “purport to exclude or to modify the legal effects of the provisions of the Convention on their application to that State”.

In substance, keeping in mind that the territorial sea is under full sovereignty of the Coastal State which creates to it an obligation vis-à-vis any danger for the environment within its territorial sea, the combination of article 4-12 of the Basel Convention (Annex 2) with its article 26 which does not allow Declarations which would modify “the legal effects of the provisions of the Convention in their application to that state”deserves further interpretation. One could say that there is some ambiguity about the status of transit through the territorial sea under the Basel Convention; this was reflected by the Declarations as well as the temptation by some countries to make use of a regional sea framework, such as the Barcelona Convention, to make more explicit the issue of transit of dangerous waste shipping in the territorial sea.

Later on, in 1996, during the Izmir Negotiation, it was made clear by some European countries that the principle of innocent passage would oppose any mechanism of authorization for the transit in territorial sea; even the compromise which would look more in line with the provisions of the Law of the Sea was not accepted. This meeting came immediately after the above-mentioned Declarations and the following objections.

To summarize, it seems clear that reluctance from European countries to sign and ratify the Izmir Protocol can be explained through the interpretation of some European countries of the application of Basel Convention concerning the transit in territorial sea as expressed during the ratification process.Their understanding of this issue clearly contradict the relevant provisions of the Izmir Protocol.

Further developments on transit of dangerous substances in the Mediterranean

Further on, in relation with two major accidents which affected Spain and France marine environment and coastal zone, there was some evolution within European positions vis a vis maritime navigation control by coastal states within EEZ and territorial sea.

After the “Prestige” accident, at their bilateral meeting (Malaga, 27 November 2002), France and Spain adopted a proposition (to be submitted to the approval of the European Council for its support) through which “a tanker more than 15 years old carrying polluting substances would be obliged to make a declaration to the (coastal state) authority when getting into the EEZ”. The declaration would provide information on the content. Coastal states would express his right to control the ship.

Whatever the fate of this recent Declaration, it shows that these two important Mediterranean coastal States considered that the right (and even the obligation) of coastal states to exert control on ships moving through maritime areas under their jurisdiction does not conflict with the Law of the Sea provided their might be a danger for the coastal environment; in fact, article 56 of the Law of the Sea was mentioned during that meeting as a legal basis for controlling and intervention within the EEZ.

However, in spite the intention officially expressed by the French Government to ratify the Izmir protocol (Comité interministeriel de la Mer; Nantes, mars 2000), the status of ratification of the Izmir Protocol remained unchanged.

Finally, it appears that the provisions of the Izmir Protocol related to the transit of Dangerous Wastes in the territorial sea, do not conflict with the Law of the Sea. Moreover, they are not incoherent with the Basel Convention: they provide a more explicit and precise approach of this issue, which is especially relevant in the Mediterranean as a semi-closed sea.

However, even if the Izmir protocol is correct with regards to the Law on the Sea, and in line with recent developments related to the prevention of pollution in maritime areas under sovereignty or jurisdiction after the Erika and Prestige accidents, it does not mean that European countries would be ready to accede/ratify the Protocol within a predictable delay. Even if recent developments on the issue of ships controlling within areas under jurisdiction allow some evolution in traditional positions related to the principle of freedom of navigation, when it comes to the transit of radioactive wastes, an issue which is already covered by specific conventions and which is excluded from the Basel Convention scope, it is unlikely that their inclusion within the Izmir Protocol could be accepted by the European Community and some other countries.

Therefore even if , as mentioned in MAP evaluation, some countries would decide to ratify the Izmir Protocol thus allowing its entry into force, the protocol will lack the necessary strength and legitimacy in case European Union and European Countries would not ratify.

Conclusion

In conclusion, despite its adoption by 13 countries and possible entry into force, due to the absence of most countries and the E.C., it would be problematic to build on the Izmir Protocol as an effective instrument.

By comparison, the fact that the Basel Convention is binding for all Mediterranean Countries is an asset, which encourages to make use of this framework in the Mediterranean context rather than building on the hypothetic future of the Izmir Convention.