Basel Action Network For immediate release:
Toronto, Canada. November 15, 2000. Environmentalists expressed outrage at what is the first known instance of a trade treaty openly undermining and flouting a multilateral environmental agreement (MEA). The North American Free Trade Agreement (NAFTA) tribunal ruled Monday that the Canadian government must pay compensation of up to $50 million (U.S.) to S.D. Myers Inc., an Ohio-based toxic waste disposal company which claims it was denied the "right" to import hazardous polychlorinated biphenyls (PCBs) waste from Canada while Canada banned the export of PCBs. Under NAFTA rules, there is no further chance for Canada to appeal the decision.
Canada ,which is a Party to the United Nations international treaty known as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, argued correctly that their 1995-1997 PCB export ban was justified under the Basel Convention. Under the Basel Convention, member parties to that treaty are obligated to reduce their exports of hazardous wastes to a minimum and instead provide adequate technical capacity for dealing with the wastes at home.
However the NAFTA tribunal argued that the Basel Convention does not obligate countries to avoid transboundary movements and ."where a party has a choice among equally effective and reasonably available alternatives for complying.with a Basel Convention obligation, it is obliged to choose the alternative that is .least inconsistent. with the NAFTA."
"The proponents of Free Trade treaties such as the WTO and NAFTA have been telling environmentalists for a long time now that they would refrain from undermining environmental treaties convened on a multilateral basis," said Jim Puckett of the Basel Action Network (BAN). "Now we see that three lawyers, representing a trade agreement consisting of but 3 nations has the arrogance to shoot down a treaty with over 130 member Parties," he said. "The very worst fears of those that protested in Seattle have come to pass."
The Basel Action Network (BAN), an international environmental network which serves as watchdog with respect to international waste dumping, claims that the tribunal erred seriously by failing to cite and note that the Basel Convention (in Article 4.9) does explicitly limit transboundary movement to but 3 possibilities: a) when the state of export lacks adequate technical capacity; b) when the wastes in question are required as a raw material for recycling or recovery industries in the State of import; or c) according to criteria decided by the Parties as long as such criteria do not differ from the objectives of the Convention.
In this case Canada possessed adequate technical capacity, PCBs are not ever recycled these days, but rather destroyed, and in fact the Basel Parties have produced no criteria with respect to Article 4.9. Thus BAN argues that under the Basel Convention, Canada not only had the right to ban the export of PCB waste, but was actually obliged to do so.
Further, as Canada is a Party to the Basel Convention and the United States is not, the only hazardous waste trade that is allowed between the countries must be subject to a specially allowed bilateral agreement. Yet nowhere is it stated in the treaty that countries are obligated to enter into bilateral agreements or make use of them at all times, particularly with respect to non-Parties.
"The entire reason the Basel Convention came into existence was to minimize the transboundary movements of hazardous wastes," said Jim Puckett. "NAFTA has just told Canada that it must actually violate the Basel Convention and all that it was designed to do, yet nowhere has it been stated that NAFTA holds dominance over the Basel Convention or any other international treaty. We urge Canada to refuse to abide by this outrageous and dangerous ruling."
For more information contact:
Jim Puckett Basel Action Network, Seattle, Washington Phone/Fax: 1.206.720.6426 Email: jpuckett@ban.org
For a copy of the Tribunal Decision, visit the Basel Action Network Website Front Page at: http://www.ban.org
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