May 2, 2023
Beware Improper Article 11 Agreements Contradicting the Basel Convention
The European Union, Norway, Liechtenstein, Iceland, Canada, United States and Mexico Initiate Invalid Article 11 Agreements to Avoid Plastic Waste Amendments
The History and Use of Article 11
During the Convention's negotiations in the late 1980s, it was a strongly held view that Parties to the new Convention should not be able to make reservations or exceptions for themselves to avoid the obligations of the Convention. This prohibition against reservations is found today in Article 6 paragraph 1 of the Convention.

At the same time, the negotiating Parties also wanted to ensure that Parties would not normally be allowed to trade in wastes with non-Parties. This was done in part to encourage ratifications, but also to create a level playing field of equal obligations among Parties while ensuring adherence to the Convention's obligations. However, at the same time, it was argued that at the early stages of the Convention there might be many non-Parties and essential trade in wastes might be disrupted. Further it was argued that the strict Party/non-Party trade prohibition might be discriminatory with respect to free trade considerations. Thus, an exception was created in Article 11 to allow Parties to trade with non-Parties by using legally binding agreements as long as the core obligations of the Convention are maintained in these bilateral or multilateral agreements.

Thus, Article 11 Agreements ratified after the entry into force of the Convention are allowed as described in Article 11's paragraph 1. They are accepted "provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by the Convention. These agreements or arrangements shall stipulate provisions that are no less environmentally sound than those provided for by the Convention..."

"Environmentally sound management" is defined in the Convention as "taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes." Abiding by the Convention itself is an obvious "practicable step" to protect human health and the environment. Ignoring Convention obligations clearly derogates from the environmentally sound management of plastic wastes.

Today, however, certain OECD countries are using Article 11 to create agreements that are far weaker or, in certain cases, completely ignoring the Basel Convention to avoid and circumvent the recent new Plastic Waste listings A3210 and Y48.

Most of these so-called Art. 11 agreements provide no control over the new plastic wastes instead of controlling these as required under the Convention. They are therefore clearly not legally valid under Article 11 requirement that such agreements be "no less environmentally sound than those provided for by the Convention."
Examples of Non-Compliance with the Basel's Plastic Waste Controls via Article 11
The European Union and EEA Double Standard: The current legislation of the European Union on waste trade, the Waste Shipment Regulation, does not implement the requirements of the new Basel plastic waste amendments for trade within the EEA (European Economic Area). A proposed revised Waste Shipment Regulation, presented by the European Commission, also fails to do so and continues to allow certain Y48 plastics controlled by the new Basel Plastics Amendments to be freely traded between the EU-European Free Trade Association (EFTA) member states making up the European Economic Area (EEA). Recent proposed amendments by the European Parliament argue that the current approach is neither legally correct nor environmentally sound and thus call for aligning the new waste shipment regulation fully with the Basel Convention's plastic waste amendments in relation to intra-EEA trade and remove the EEA member state Article 11 exclusion.

´╗┐Canadian Plastic Waste "Arrangement" with the United States: Shortly before the entry into force of the Basel Plastics Amendments in late 2020, the United States and Canada declared a "non-legally binding arrangement" as an Article 11 Agreement, allowing Canada to freely trade with a non-Party (United States) controlled waste under the Convention. This "arrangement" completely ignores the 2019 Basel Plastic Waste Amendments and the most basic Article 11 requirements.

Mexico Invokes the OECD Council Decision to Trade Plastic Waste with the non-Party US: Mexico has recently declared that they consider their concurrent membership in the OECD with the United States allow them to trade Basel controlled plastic wastes with the Unites States without following Basel control procedures. However, while there is an OECD decision in place that normally could serve as a valid Article11 agreement for those waste that are covered by both the Basel Convention and OECD council decision, the OECD Council has not adopted two of the three new plastic waste listings (Y48 and B3011) following an objection to the new listings being incorporated into the OECD Decision. The OECD decision can therefore NOT be considered a valid Article 11 agreement for plastic waste listed under Y48 and B3011 and trade of such plastic waste between Mexico (a Party to the Basel Convention) and the US (non- Party to the Basel Convention) violate the legal requirements of the Convention.
Accountability Lacking
In sum, despite the contradiction with the terms of Article 11, paragraph 1, Basel Parties (the EU member States, Iceland, Liechtenstein, Norway, as well as Mexico and Canada) continue to assert a claim to legitimate use of Article 11 to ignore all or in part, the plastic waste amendments. Unfortunately, the Basel Convention does not have a governing body to examine and enforce the validity of Article 11 agreements in order to hold Parties accountable for the above-mentioned violations.

All Basel Parties nevertheless should stand ready to condemn such invalid interpretations of Article 11 and, as appropriate, self-correct all such non-compliance. Failing to do so creates a dangerous precedent that weakens the Basel Convention. To allow any grouping of two or more countries to self-declare an Article 11 agreement which contradicts Article 11 itself, is to allow for illegal reservations by another name, and in time, a complete unraveling of the Convention.
END
In-depth Information Available
For more information on this threat to the governance of the Basel Convention, we refer you to the BAN Report: 


We welcome all delegates attending the COP16 in Geneva to join us for a side event on the subject sponsored by BAN and the Center for International Environmental Law (CIEL):

Side Event: