Basel Secretariat Calls for Submissions of Bilateral, Multilateral, and Regional Agreements

The Secretariat of the Basel Convention (SBC) has called for submissions as part of its effort to maintain a collection of Bilateral, Multilateral and Regional Agreements and Arrangements which Parties have entered into with other Parties or non-Parties regarding transboundary movements of hazardous wastes or other wastes.

The collection is available on the Basel Convention website, but some texts are only available in the national language of the country concerned.

Such information is a valuable source of information for businesses and other entities engaged in the shipment of hazardous and other wastes between States, and the provision of relevant information to the Secretariat can help to ensure that the rules of each State, as well as Basel Convention rules, are complied with.

This is particularly important concerning shipments between Parties and non-Parties to the Convention, as there must be an Article 11 agreement between the States concerned for such shipments to be in compliance with the Convention. Furthermore, the notification of such agreements and arrangements to the Secretariat is a requirement under Article 11, paragraph 2, of the Basel Convention. Noting this requirement, Decision VII/36 adopted at the seventh meeting of the Conference of the Parties in October 2004, reminded Parties to transmit relevant agreements to the Secretariat. At the beginning of June 2006 the Secretariat sent a request to all Focal Points and Competent Authorities, asking every Party to transmit texts of bilateral, multilateral and regional agreements. However, to date, few Parties have responded to this appeal.

For more information, contact Sophie Schlingemann, Legal Consultant, SBC

Greenhouse Gas Inventory Experts Network Launched

A new network linking experts working on methodologies and systems for quantifying greenhouse gas emissions was launched during the United Nations Framework Convention on Climate Change subsidiary body meetings in Bonn, Germany, in May 2006.

The Greenhouse Gas Inventory Experts Network (GHG Network) is designed as a forum to connect those working on inventories at all levels, from the global level to specific projects and facilities.

“Until now, our community of inventory experts was fragmented and had no centralized venue for communication. Specifically, there was no on-line forum for experts in greenhouse gas inventories, emissions monitoring, and verification to interact and share information in this rapidly changing field. The result of this network will be more complete, accurate, and policy-relevant inventories at all levels, including project-based emissions trading systems. ” says Michael Gillenwater, moderator for the GHG Network.

Funded by the UNDP National Communications Support Programme (NCSP), the GHG Network is designed for new inventory practitioners (especially those in developing countries) to ask questions and for existing inventory experts to communicate with colleagues.

“By connecting experts, the Network will build a larger and more capable community of practitioners. I sincerely encourage national experts on greenhouse gas inventories, in particular those working in the GHG inventories teams for the preparation of their national communications, to join and actively participate in this network.” stated Martha Perdomo, who is the Global Manager of the UNDP-UNEP National Communications Support Programme (NCSP).

Now that the Kyoto Protocol has entered into force and the Clean Development Mechanism (CDM) is growing, greenhouse gas emissions – and the data that describe them - are becoming an increasingly important issue around the world.

“The infrastructure and methodologies needed to reliably quantify greenhouse gas emissions and sequestration are the foundation of effective climate change mitigation options. The groundwork for policies and projects begin with an emissions inventory, followed by the implementation of more rigorous emissions monitoring and verification systems.” stated Wiley Barbour, Executive Director of Environmental Resources Trust.

"The GHG Inventory Experts Network is a great initiative. In order for market mechanisms to work and carbon emissions to be valued, the accounting for carbon must be reliable and consistent. By putting together the latest knowledge, people and technology, the Network can help fill this need. Earth Council Geneva is proud to partner with the GHG Experts Network to leverage e-learning in offering training on GHG inventories and project baselines.” noted Gao Pronove, Executive Director of the Earth Council e-Learning.

Visit http://www.ghgnetwork.org/ for more information.

The Next Steps to Enhancing Compliance with and Enforcement of MEAs – A Perspective from UNEP
By Arnold Kreilhuber and Martin Krebs, Legal Officers at the Division of Environmental Conventions of UNEP

The last few decades have seen a rapid increase in Multilateral Environmental Agreements (MEAs) addressing a multitude of environmental concerns from climate change, biodiversity, and desertification to hazardous waste and chemicals. Each of these MEAs focuses on a specific problem, be it hazardous waste, trade in endangered species, climate change, or some other pressing concern. Despite their varying themes, these agreements also have a great deal in common: they all promote sustainable development and they all use similar principles, processes, and policy tools to achieve their goals.

The adoption of these instruments is just the beginning of a process. However, full implementation of their provisions is vital and essential to ensure their effectiveness and full value. While setting out to efficiently combat environmental degradation, alleviate poverty, and enhance intra- as well as inter-generational environmental justice embedded in the concept of sustainable development, there is wide concern that MEAs have not lived up to their promise to address environmental degradation. On of the main reason is, that MEAs are neither complied with nor enforced, and that they are inadequately implemented.

The United Nations Environment Programme (UNEP) has been mandated by its Governing Council to address the shortcomings of compliance by strengthening and facilitating effective implementation and enforcement of MEAs.

While respecting each MEA’s individual mandate and its legal autonomy and avoiding any duplication and interference with the processes based on the 2005 World Summit Outcome , UNEP is working closely with MEA Secretariats, the Parties to MEAs, and eminent experts to identify synergies and interlinkages that offer opportunities for collaboration at both the national and international level. The ultimate aim is to bolster the efficiency and the effectiveness of the United Nation’s portfolio of environmental treaties and ensure that they are mutually supportive in areas where cooperation can provide real benefits.

As part of this effort, in January 2006, UNEP initiated the Colombo Process on Envisioning the next Steps for Compliance with and Enforcement of MEAs. Representatives from MEA Secretariats and Compliance Committees, governments, and civil society gathered for two High-Level Meetings, in Colombo and Geneva, to discuss aspects of compliance and enforcement and to search for potential legal, structural, and institutional innovations that could enhance implementation of MEAs. During these deliberations, participants identified key challenges to the effective implementation, compliance with, and enforcement of MEAs that would benefit from a process of further consideration and action, including capacity-building efforts and the provision of resources by UNEP and its partners.

The challenges identified include the need to reinforce national measures to enhance national implementation, to involve and engage all stakeholders throughout the negotiation and in the implementation of MEAs, to mainstream environmental protection into economic development and poverty reduction issues, and to use economic and poverty reduction polices as an entry point for the effective national implementation of MEAs. Furthermore, there is a need to demonstrate the value of ecosystem services and extended cost-benefit analyses, and to invest in human resources that deal with the implementation of MEAs, including the training of personnel and officials such as parliamentarians, judges, prosecutors, customs officials and police officers. These trainings will focus on cross-cutting issues and the enhancement of synergies and interlinkages in the implementation of MEAs, for example through clustering and harmonization of national reporting.

The aim of the Colombo Process is to effectively address these issues, a goal that is echoed in the proposed strategic framework for the period 2008-2009 that UNEP submitted to the General Assembly of the United Nations : The framework includes in its overall objectives the support of the implementation of MEAs and the facilitation of interlinkages and synergies between them. It is envisaged that the overall outcome of the Colombo Process will further boost this important aspect of UNEP’s work and be translated into its future Programme of Work.

Click here for further information on the Colombo Process.

See Chapter 3 of Making Law Work: Environmental Compliance & Sustainable Development on Multilateral Environmental Agreements in Action, at http://www.inece.org/makinglawwork.html.

Aarhus Convention's Compliance Review Mechanism
By Jeremy Wates, Secretary to the Aarhus Convention, UNECE

Among the most dynamic innovations introduced by the Convention is its Compliance Review Mechanism, which gives the public unprecedented opportunity to participate in the implementation of the instrument. There is evidence that the Aarhus Convention’s Compliance Review Mechanism, now in its third year of operation, is beginning to have a positive influence on national norms and legal practice.

In response to an investigation by the Aarhus Convention’s Compliance Committee, Belgian government officials, parliamentarians, non-governmental organizations (NGOs) and members of the judiciary have recently begun to explore ways of strengthening the right of the public to have access to justice in Belgium. The investigation was initiated when a Belgian NGO wrote to the Compliance Committee claiming that the failure of some Belgian courts to grant standing to environmental NGOs in certain cases concerning the issuing of construction permits and planning decisions was in violation of the Convention.

The United Nations Economic Commission for Europe (UNECE) provides the secretariat to the Aarhus Convention and services its Compliance Committee. In a letter to UNECE, Bruno Tobback, Belgium’s Federal Environment Minister, listed a number of measures being taken to address the matter. A multi-stakeholder roundtable had been held in the federal parliament in mid-May 2006, and plans were under way for further training for the judiciary, consultations between the relevant ministers at the federal and regional levels, and the establishment of a national team of officers to follow up on the matter. Improvements in the law were also under consideration.

The Compliance Committee, in its findings which were adopted on 14 June 2006, did not in fact conclude that Belgium had failed to comply with the Convention. However, it noted that certain court decisions arising from proceedings initiated before the Convention’s entry into force would have conflicted with the Convention’s provisions had the proceedings been initiated after the entry into force. In other words, if those practices were to continue, Belgium would be in non-compliance. This finding was enough to prompt Belgium to initiate the above steps.

The Committee’s Chairperson, Mr. Veit Koester of Denmark, commented that the case showed the compliance mechanism working at its best: “Even without the unpleasant business of having to find a Party in non-compliance, the consideration of the case has led to positive steps being taken – largely thanks to the willingness of Belgium to cooperate with and listen to the Committee and to take the initiative. It also illustrates the value of having a mechanism which responds to input from the public, without which the issue might not have come to the attention of the Committee.”

Several multilateral environmental agreements have developed mechanisms to strengthen and support compliance. However, the Aarhus Convention’s Compliance Review Mechanism is unusual in that it allows any member of the public to trigger a review of a Party’s compliance simply by writing to the Compliance Committee. The Compliance Review Mechanism may also be triggered by a Party making a submission about compliance by another Party or even about its own compliance, or by the secretariat making a referral to the Committee.

In addition, the Committee may examine compliance issues on its own initiative and make recommendations; prepare reports on compliance with or implementation of the provisions of the Convention (at the request of the Meeting of the Parties); and monitor, assess and facilitate the implementation of and compliance with the reporting requirements under article 10, paragraph 2, of the Convention.

In the first test of the Compliance Review Mechanism, in 2005 the Meeting of the Parties to the Convention upheld the findings of its Compliance Committee that three countries – Turkmenistan, Ukraine and Kazakhstan – had failed to comply with certain provisions of the Convention. Kazakhstan has since taken steps to implement the recommendations endorsed by the Meeting. Representatives of Turkmenistan discussed the recommendations with the Committee at its June 2006 meeting.

See Chapter 3 of Making Law Work: Environmental Compliance & Sustainable Development on Multilateral Environmental Agreements in Action, at http://www.inece.org/makinglawwork.html.

Using EMS certification to drive environmental compliance
By Roberto Jiménez and Brian Kraus

Environmental agencies across the globe are encouraging regulated organizations to certify their environmental management system (EMS) to standards such as ISO 14001 and EMAS. Some agencies are beginning to use certification as a way to distinguish between high-performing and ‘problem’ organizations within their regulated community.

At the same time, there is a rising concern in the environmental field that current approaches to EMS certification are yielding little in the way of meaningful compliance assurance and performance improvement. In order for environmental agencies to use EMSs certification as a tool for measuring performance, auditors who operate in the EMS certification field need to shift their focus from document and conformance-centered approaches to the real dynamics of environmental performance: management behaviors and the techniques employed by managers to deliver results.

There has been remarkable growth in third-party certifications of EMSs. Since 1996, more than 90,000 organizations in 127 countries have been certified. It is expected that certifications to EMS standards will continue growing over the coming years. This growth is in part due to the significant uplift in the level of activity by the government agencies and industry-sector associations around the world in the call to promote – and in many cases require – the uptake of EMSs and third-party certification of them. Some examples include:

The UK’s Environment Agency has issued a statement encouraging the uptake of EMS.

• The US Environmental Protection Agency is offering meaningful incentives to organizations who meet a defined set of EMS requirements
• Major automotive industry companies requiring EMS certification of their suppliers.
• Chemical industry trade organizations requiring their members to implement certified EMSs by the end of 2006.
• The Mexican environmental agency is providing incentives such as less frequent inspections if organizations are certified under an EMS program.

Even as EMS certifications increase, there is a growing body of anecdotal and empirical evidence which has found little or no correlation between certified EMSs and a variety of environmental performance metrics. One large study conducted on behalf of the UK’s Environment Agency concluded “EMSs do not lead to direct improvements in outcomes, as measured by incidents and complaints or by legal action than those without.” The findings of these studies are surprising for many: the broad-based uptake of management systems in the environmental field was seen as a natural progression away from end-of-pipe thinking and most expected it to lead to significant operational efficiencies and other environmental performance gains.

Many environmental professionals – especially those with significant experience – anticipated that the established approach to EMS certification (one where the auditor focuses on reviewing documented policies, procedures and work instructions) would yield little in the way of meaningful performance improvement. These professionals understood that EMS auditors who focused on reviewing bureaucracy were not taking proper account of how organizations and their leaders actually deliver results. They understand that the right environmental outcomes will arise in an organization, if – and only if – mainstream operational managers apply the techniques they naturally use in the pursuit of their operational goals to address the environmental aspects of the activities for which they are responsible.

In order for environmental agencies (and society) to get a much better return on investment from EMS, auditors (including government inspectors) who operate in the field will need to shift their focus from reviewing documents for conformance to one where they are reviewing management techniques and behaviors and techniques employed by managers to deliver results.

Centering EMS audits on behavioral aspects and the thinking and practice that underpin it has been well tested and is producing remarkable environmental performance gains, such as reduced incident rates, much enhanced compliance with regulations and sharp reductions in ongoing impacts on people and the environment. A multinational automotive supplier that implemented this approach for its ISO 14001 certification did not receive a single compliance order at any of its 150 locations in 25 countries.

The implementation and certification of EMS is a growing trend across the globe. For most organizations, there probably isn’t a higher profile environmental initiative. Unfortunately, many organizations will continue to approach EMS certification in the traditional way. They will continue to be disappointed with the results they obtain from the enormous effort they expend on the EMS. Conversely, those who focus their EMS efforts on those factors which are fundamental to performance improvement (changing the behaviors of people who work within the organization) can achieve extraordinary performance gains for their organizations.

Using Audits and EMS to Measure a Firm’s Environmental Performance
By Heather Stork, PE, CPEA, Senior Associate, VBA Compliance Assurance, vbahstork@aol.com

The use of environmental compliance audits and environmental management systems (EMS) as tools to measure a company’s environmental performance continues to escalate. Companies are creating a proactive approach, rather than a reactive approach, to environmental compliance. With this shift in focus, more attention is being paid to the importance of using qualified, independent auditors when assessing environmental compliance and EMS success.

Organizations, such as the Auditing Roundtable (Roundtable) and The Institute of Internal Auditors (IIA), have established core principles and auditing standards that include professional proficiency of auditors as a key component to a successful audit. The International Standards Organization (ISO) requires companies seeking ISO 14001 certification to utilize qualified, independent auditors to perform the required assessments for qualification. Regulatory agency programs, such as the Environmental Protection Agency’s (EPA) voluntary compliance audit programs and Performance Track, are calling for the use of qualified, independent auditors as a criterion for inclusion in these programs. Public and private companies are developing environmental mission statements and policies that incorporate an auditing function requiring the use of qualified, independent auditors, some of which include an accreditation requirement for internal and external auditors. The Sarbanes-Oxley Act of 2002 promulgated requirements to protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws. Many companies are expanding the principles behind Sarbanes-Oxley to other areas of an organization, including environmental, security, health and safety issues.

Although the auditing programs vary, one thing holds true for each – the use of qualified auditors is a key component of a successful audit program. The proliferation of audit programs, service providers, and certification programs can make the task of choosing qualified auditors a challenge.

In 1997, the IIA and the Roundtable joined together to develop a certification program whose sole commitment is the advancement of the individual EH&S auditor and the EH&S auditing profession worldwide. This joint venture culminated in the creation of the Board of Environmental, Health and Safety Auditor Certifications (BEAC), and the Certified Professional Environmental Auditor (CPEA) designations. With the creation of the CPEA, BEAC has created a nationally and globally recognized certification program that follows rigorous standards to ensure that those receiving and retaining auditor certifications are qualified to do so. To earn one of the CPEA designations, candidates must meet the highest qualification standards in the market. By choosing an auditor with a CPEA designation, a facility can be assured that the auditor is sufficiently competent, possessing exceptional knowledge, skill, and understanding demonstrated by highly effective and fully qualified environmental, health, and safety auditing professionals.

BEAC has achieved remarkable success since its formation and has quickly established itself as a worldwide certification board of choice for top specialty auditors. To bolster that fact, take the following examples:

• Facilities seeking to join EPA’s Performance Track program must undergo an independent, assessment of it EMS. EPA’s requirements for this assessment state that an individual certified as an EMS lead auditor by BEAC meets the requirements for a qualified auditor. Many equivalent state programs also recognize BEAC certifications specifically as indicating an individual is qualified to perform the audit functions (www.epa.gov/performancetrack/).

• BEAC is a member of the Council of Engineering and Scientific Specialty Boards (CESB), a third-party accreditation board. CESB has granted full accreditation to BEAC's Certified Professional Environmental Auditor (CPEA) certification.

• In 2000 and 2001, BEAC signed Letters of Agreement with the American Industrial Hygiene Association (AIHA) and the American Society of Safety Engineers (ASSE), respectively, whereby the AIHA and ASSE recognize BEAC's CPEA certification.

• BEAC, the Roundtable and the Canadian Environmental Auditing Association (CEAA) signed a Declaration of Co-operation to further advance the environmental, health and safety auditing profession and to mutually recognize certification and training programs.

• In 2004, BEAC and the American Chemistry Council (ACC) signed a joint Memorandum of Understanding to facilitate implementation of ACC’s Responsible Care Management System® (RCMS®) third-party certification requirement.

• The IIA has formally approved recognition of the professional accomplishments of the CPEA and further acknowledges that the CPEA designation has been accepted as a designation for the CIA exam, Part IV, Professional Recognition Credit.

• Those with BEAC CPEA certifications enjoy outstanding benefits that include:

• Verification of experience, education, and technical proficiency;

• Confirmation of professional preparation and commitment to professional excellence; and

• An alternative to and/or extension of other relevant certifications.

Click here to learn more about BEAC, its certification programs, and requirements for certification.

 See Chapter 9 of Making Law Work: Environmental Compliance & Sustainable Development on Compliance Assistance & ‘Beyond Complinace,’ including a discussion of certification systems, at http://www.inece.org/makinglawwork.html.

International Regulation of Mobile Phone E-Waste: Is the Basel Convention Enough?
By Alva Wright, J.D. Candidate, University of Maryland School of Law

International attention is being drawn to the problems caused by electronic waste, including mobile phones, and how efforts can be coordinated to control this type of hazardous waste.

Although e-waste falls within the scope of the Basel Convention, it is up to individual nations to adopt local and regional laws to protect their citizens from the dangers of mobile phone e-waste. This can be accomplished not only by putting the pressure on industry and requiring producer responsibility, but also by helping to prevent the illegal trade of all e-waste.

Waste from discarded electronic equipment (e-waste) is recognized as the fastest growing waste stream of industrialized nations. Each year 20 to 50 million tons of e-waste are generated worldwide. The main issue is that mobile phone parts are no different than the components of computers, except that they are smaller.

In 2004, a University of Florida study sponsored by the U.S. Environmental Protection Agency (U.S. EPA) found lead, brominated flame-retardants, beryllium, hexavalent chromium, arsenic, cadmium, and antimony in the average mobile phone, many of which are on the U.S. EPA’s list of persistent bioaccumulative toxins (PBTs). PBTs are associated with damage to the nervous system, reproductive and developmental problems, cancer and negative genetic impacts. Additionally, all of the above mentioned substances are listed under Annex I of the Basel Convention (“Categories of Wastes to Be Controlled”).

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is a legally binding international agreement regulating the disposal and transboundary movement of hazardous wastes. Under the Basel Convention much of the e-waste exported to other countries is illegal. Furthermore, most developing countries lack recycling infrastructures to deal with e-waste. In 2002 the secretariat of the Basel Convention launched the Mobile Phones Partnership Initiative (MPPI) to confront the waste problems associated with mobile phones.

Parties to the Basel Convention are forbidden from trading in hazardous wastes with non-Parties except under the provisions set out in Article 11, whereby Parties may enter into bilateral or multilateral arrangements either with other Parties or non-Parties on condition they adhere to the purpose of the Convention. The Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (the Waigani Convention) is one such agreement. Adopted in 2001 and covering 24 countries, it bans the import of all hazardous and radioactive wastes into South Pacific Forum Island Countries. Other agreements include Africa’s Bamako Convention.

Many nations are embracing the concept of producer responsibility. In 2002, the European Union European Commission (EC) implemented the Waste Electrical and Electronic Equipment directive (WEEE) in which manufacturers instead of government became responsible for recycling old computers. In addition, the EC implemented the Restriction of Hazardous Substances (RoHS) which required the phasing out of lead, cadmium, mercury, hexavalent chromium, polybrominated biphenyls (PBBs), and polybrominated diphenyl ethers (PDEs), from electronic devices placed on the EU market after July 1, 2006.

Similarly, Canada has started to focus on Extended Producer Responsibility (EPR), which, like WEEE, places the burden on producers to properly manage their products at the end-of-life stage. With no federal law to regulate e-waste in the U.S. states have begun to individually take on the issue. By 2003 26 states had introduced various 52 e-waste bills. Finally, Japan has introduced the 3R (reduce, reuse, and recycle) initiative calling for an increase in recyclable materials, the reuse of raw materials and manufacturing wastes, and an overall reduction in resources and energy consumption.

In sum, the protection of human health and the environment from the hazards of e-waste is a three-step top-down process of regulation: 1) international; 2) regional; and 3) domestic. The Basel Convention is a starting guideline addressing the transport of all hazardous wastes in general, but more needs to be done through the use of Article 11 Agreements and the aggressive teamwork of an international community. Additionally, individual countries should focus new domestic laws on producer responsibility to give manufacturers the motivation they need to design more environmentally friendly phones and use more environmentally sound procedures during processing.