Basel Action Network Accuses R2 Certified Companies of Illegal Acts

On June 17, Basel Action Network released another attack piece, accusing R2 Solutions of violating international law.  In doing so, BAN has indirectly attacked my company, which chose to pay for R2 Certification rather than accepting E-Stewards written offer to pay BAN to certify our operation to their own E-Stewards Standard.

Here's an "as concise" critique of BAN's "concise critique", based on the following international law.

Article 17 of the United Nations International Covenant on Civil and Political Rights states: 
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

"The [R2] Standard suffers greatly from its seeming intentional avoidance of international law as it refuses to acknowledge or recognize the definitions and obligations, decisions and guidelines of the Basel Convention, which all developed countries, except the United States have ratified and implemented and is now globally adopted by 180 countries." - Jim Puckett
There are three problems with BAN's analysis of their competitors at R2 Solutions.  The third is the most important.

1.  The Basel Ban Amendment has simply not passed.  

BAN has been feverishly promoting its passage since 1995, declaring it "just around the corner" in 1999.   Implying that legislation you support has already been passed, without mentioning that it hasn't, is outrageous.

The Annex IX of the actual current Basel Convention allows export for recycling, let alone reuse and repair, so long as no toxics are released.  The difference between R2 and E-Stewards is that BAN has tried to interpret any trans-boundary movement of material as a "release" to the environment.  That's of course preposterous, by that definition raw virgin mined material would be banned, warranty returns to Chinese factories would be illegal, and brand new product would be banned.   Does the Convention actually ban proper recycling, repair, raw materials, or new product, or define trans-boundary movement of the "focus material" itself as a "release"?  Of course not.  "Seemingly intentional" intent to avoid a law that hasn't been ratified?  Ludicrous.

For a witness to my interpretation, read Mr. Puckett's own letters to the Secretariat deploring the current international law, and demands for it to be amended.  His protests that the existing Convention allows the activities he objects to makes him an expert witness.   

2.  Even the Basel Convention itself is not de facto "international law".

Even where the Convention applies, BAN needs to be very careful in declaring that its standard is based on the Basel Convention, or that other interpretations of the Convention are "seemingly intentional" in disregarding his personal interpretation of those treaties.   How do the two standards treat my company's negotiations with a recycler in Angola?  If the USA recycling company trades with Angola, there is no violation of the Basel Convention.  Angola has not signed or ratified the Basel Convention, nor any of the African treaties modeled on it.  Puckett has declared my trade with Angola to be in violation of international law, and declares himself an expert in the international law, but is clearly wrong about my prospective trade with Angola.

And the OECD definition of "developing" nation is also being misused.  Sure as a technicality, Singapore (where RAM and hard drives are made) is "non-OECD".   But BAN's "white paper" directly equates trade with state-of-the-art, eat-off-the-floor, white marble floor Singapore facilities with an immoral act of dumping waste on children in Africa.  Singapore is non-OECD but is as modern as Silicon Valley California.    The generalization of work performed by non-white nations by Basel Action Network extends worldwide.   And Mexico is OECD (in fact the head of the OECD is Mexican).  OECD as an organization is not growing or developing at the same speed as actual development in emerging market nations.   African economies are growing 6% per year, but no African nation has been invited to join the OECD in 50  years.   Many African, Asian and South American economies are today larger than those of the original 1960s OECD charter (which neglected to include non-whitie Japan, BTW).

Indonesian dude accused by BAN in 2010.
BAN throws about buzz-words about "poor countries" as if implementation of the Basel Convention alongside the competing and equally international WTO laws (which BAN protests) was a simple thing.   The bottom line is that BAN appears to be implying that you need to pay them a subscription to their certification program in order to operate legally.   That's at best tricky business, and at worst, probably illegal.  Clearly, they don't know enough about the current international laws to make the case that their interpretations are superior to EPA's, or R2 Solutions, or my own.

As stated previously, the Annex IX of the current (not amended) Basel Convention allows export for recycling if no toxics are released, and allows export for repair if no toxics are released.  The current Basel Convention also leaves up to individual nations whether items like CRTs are even a "waste".  BAN admits these are the rules of the convention when they are advocating a "Ban Amendment", but interpreting the existing convention to their "certification" standard when the Amendment doesn't pass.

How does R2 navigate these complex international laws and standards?   R2 simply states that trade "must be legal".  It is arguably a standard even stronger than Ban Amendment in some countries (like one which bans images of the Dahli Llama on hard drives).  That was a careful choice of words by R2 companies, a choice which avoids mis-characterizing trade in Angola, Singapore, Brazil, etc.  It's not perfect, but it's more sophisticated.  BAN was wrong to avoid the nuance in adapting E-Stewards rules, and now wishes R2 to repeat its mistake.

3. Basel Action Network fails to disclose their financial interest in the analysis.

BAN claims "seemingly intentional" mistakes by R2.  Once again, the BAN organization wants to have it both ways, playing both the role of the "whistle-blower" and the "salesman".   Make no mistake.   BAN earns money from their own standard, and BAN loses money when a company chooses to certify via R2 instead of E-Stewards.  If BAN had stated this up front, in due disclosure, the white paper could be taken more seriously.

The phrase "seemingly intentional" in Jim Puckett's "concise" critique opens the door to discuss BAN's "intent" in describing R2 as clearly illegal.   As stated above, BAN's case is anything but clear.  What is clear is Basel Action Network's financial motivation:

BAN is negligent in publishing a document which poses as a non-profit's unbiased report, and not disclosing, on page 1, their financial bias.    Period.  Even publishing a document without that disclaimer arguably discredits Basel Action Network as an advocacy organization.   

green, green
BAN is apparently comfortable accusing people of violating laws which either don't exist (Angolan and USA trade), or which have not been ruled by a competent authority (WTO vs. Basel Convention), or have not been passed yet (Ban Amendment).  Perhaps that's a proper role for an "e-waste" advocacy organization.  But in "covering the story" of BAN's representation of competing E-Stewards and R2 standards, periodicals like Resource Recycling's E-Scrap News should flag the bias.  Many people have been confused by their organization's obfuscation and oversimplification, and even BAN's use of the word "Basel" in their title confuses many people. More than one reader of this blog has made the mistake that the NGO is part of the UN (NFW).  

BAN has put their "Concise Critique" document on their website posing as a watchdog, not as a financially interested party.  That's the most serious mistake they made, going to credibility itself.

Reporters covering BAN's "analysis" need to source outside attorneys and diplomats before reporting baseless accusations that R2 Solutions is violating international law... perhaps even (gasp!) calling the employees at the Basel Secretariat, or EPA's assigned negotiators.   

Conclusion?   BAN has slandered R2, and has done so for money, in callous disregard for the actual studies which show that export of used electronics benefit the nations which import them.

The key difference between R2 and E-Stewards is this:   BAN has tried to interpret any trans-boundary movement of material as a "release" to the environment (failing Annex III).  Perhaps they believe that kind of a boycott, if ratified, will remedy the sad photos they show in their report.  It most certainly won't, as  most of the goods discarded in China and Africa are being discarded by Chinese and Africans, not imported from the USA.  And their belief in their own remedy does not justify the slander of over well-meaning reform measures.

Should the Convention be amended to actually ban proper recycling, repair, raw materials, or new product, or define trans-boundary movement of the "focus material" itself as a "release"?  Of course not.   That may be why BAN cannot get the amendment passed after 18 years of effort.   BAN has apparently given up hope on ever getting the Amendment passed (or at least before OECD nullifies it by inviting China, India, Brazil, etc. to join), and wants environmentalists to buy a bill of goods that their "certification" is required on legal grounds.

The E-Steward certification buys one thing.   BAN's support.  That support is more valuable when BAN poses a genuine threat to attack you.

This type of insurance-against-slander economy has gone on far too long.  Associating my company with photos of kids at Lagos dumps is insulting.  BAN's clear intent is to damage the reputation of companies who don't pay BAN money for its brand of "certification".   I like trading scrap and reuse items with black and brown people, and admit it.  Don't accuse me of violating international law.

This isn't an excuse for "unfair trade" in used electronics.  A photo of a black man engaged in a sad practice deserves compassion.   But it's anecdotal, and NOT analysis.  Admitting poisonous processes occur says nothing at all about the standards of the overseas recyclers and refurbishers seeking to be qualified by R2.   BAN seeks standards which bar emerging market entrepreneurs from competition for "good stuff", relegating Africans to refurbish African waste, just like a segregated sport.   They have followers among certain companies which shred equipment (rendering reuse and hand disassembly "competition" - most shredders are content to compete for scrap after the good equipment has been pulled).  And the growth of the emerging markets as consumers of electronics wins BAN favor with anti-gray-market companies who prefer not to compete with secondary and used equipment in "good enough" markets.   Like a white boxer afraid to face Joe Jackson, they call on the authorities to imprison the competition.

Most USA companies have a niche.  Some may well be more "reputable" than others.   But whether you are an E-Steward or R2 or neither, to stand by during this virtual lynching of black technicians is unconscionable.  

BAN can make its case that the risk of bad practices is too high, and make its best case that the Ban Amendment of should 1995 be ratified.  But implying that there is international law supporting BAN's anti-trade agenda just shows the desperation the organization has sunk to after 18 years of pulling the "Ban Amendment" bandwagon.  Depicting anecdotes of slave and child labor as representing typical practices in emerging markets is beneath environmentalists collective green dignity.

For actual results of the trade in used electronics, there are many studies.  Alter-globalization beats boycotts of trade and shredding mandates, hands down.  Prohibitions don't work.

Here's the clean little secret.

Poor people always want to fix the stuff discarded by rich people.  That's true inside and outside of national boundaries, inside and outside of OECD, inside and outside of zip codes.  The "yankee ingenuity" of fixers and recyclers in emerging markets is legendary. That's what made Japan, Singapore, South Korea and other "networks of tinkerers".  Not all Chinese people look like those BAN festoons in its "critique", and not all Africans look like the Pieter Hugo depicted dirty little secret children on the cover of BAN's annual reports.   Collectively, this distinction between best actors and least actors is the reason that the Basel Ban Amendment has NOT been passed, after 18 years.  International laws, even the ones BAN wants to pass, won't stop that, especially in massive markets like China and India, which have slums and wealthy suburbs the size of many African and European nations.  "BAN Boycott saves Africa" is not a headline in Ghana, Egypt, or Nigeria.

In the words of the UNEP Report:  
"Refurbishing of EEE and the sales of used EEE is an important economic sector (e.g. Alaba market in Lagos). It is a well-organized and  a dynamic  sector that holds the potential for further industrial development. Indirectly, the sector has another important economic role, as it supplies low and middle income households with affordable ICT equipment and other EEE. In the view of the sector’s positive socio-economic performance, all policy measures aiming to improve e-waste management in Nigeria should refrain from undifferentiated banning of  second-hand imports and refurbishing activities and strive for a co-operative approach by including the market and sector associations."  - UNEP Study 2012
"I am very satisfied with the quality of the UNEP studies. I know well the authors and have worked with them and discussed findings with them."  - Jim Puckett, Executive Director,  

Law violation is a very serious allegation, and BAN must cease and desist in making reckless claims that R2 Certified companies like mine, or good people like John Lingelbach, are ignoring or violating them.  The Amendment has either passed or not passed.  If the latter (and it IS the latter), he must be more sacrosanct in his finger-pointing.   Basically, is accusing a competing recycling certification program of violating tomorrow's environmental laws, yesterday.  That's what happened to Boxer Joe Jackson, and that's what is happening to Hurricane Joe Benson.

Angolans are being arrested despite the fact their nation has signed neither the Convention nor African treaties equivalent, based solely on Mr. Puckett's patently false claims that Angolan importers are violating international law, or implied case that R2 Standards are Poisoning Children.  Mexicans are being accused of violating international law, despite the fact that Mexico is OECD.   The defamation of R2, a competing paid certification program, by an organization that charges money to perform its own certification, does not meet the definition of objective analysis.   

BAN's "concise critique" is nothing more, and no less crass, than a tobacco health study paid for by a tobacco company.   If a single African, Asian, or Latino is arrested or loses business as a result of BAN's reckless statements, it will be a black eye to the entire Environmental Sustainability movement.

Take a deep breath, E-Stewards.  Negative marketing is a category killer, attacks like this cheapen all kinds of recycling certifications, from recycled content to LEEDS.  Burger Mart attacks McBurger, disguised as a "beef advocate", and just reduces hamburger sales across the category.  The approach damages NAID, it damages ISO, it damages RIOS, and damages the tens of thousands of dollars that companies like mine have paid, using our best judgement, to adapt one of the competing certifications.

John Merrick: I am not an elephant! I am not an animal! I am a human being! I am a man!

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