Tragedy 1: Export for Reuse is Better, and Legal Too

"Ending is better than mending, ending is better than mending, ending is better …" -                  - Brave New World / Aldous Huxley               

Export for repair and reuse is specifically legal.  Not just saying 'it's not explicitly banned'.  It is specifically and explicitly stated to be legal inside the text of the Basel Convention.

"B1110 Electrical and electronic assemblies:

• Electronic assemblies consisting only of metals or alloys
• Waste electrical and electronic assemblies or scrap⁽¹³⁾ (including printed circuit boards) not containing components such as accumulators and other batteries included on list A, mercury-switches, glass from cathode-ray tubes and other activated glass and PCB-capacitors, or not contaminated with Annex I constituents (e.g., cadmium, mercury, lead, polychlorinated biphenyl) or from which these have been removed, to an extent that they do not possess any of the characteristics contained in Annex III (note the related entry on list A A1180)
• Electrical and electronic assemblies (including printed circuit boards, electronic components and wires) destined for direct reuse,⁽¹⁴⁾ and not for recycling or final disposal⁽¹⁵⁾

14. Reuse can include repair, refurbishment or upgrading, but not major reassembly.

15. In some countries these materials destined for direct re-use are not considered wastes."

But more and more people are confused, or downright fooled, about international law.   "Sure, Africans are repairing as well as reusing, and reuse is better than recycling, but the export is illegal under the Basel Convention".

For an expert source on the Basel Convention, unamended, please consider the position of the Basel Action Network, in their 1999 piece "Why The US Must Ratify the Entire Basel Convention (or None At All)"  It's Jim Puckett's complaint about what he sees as the weakness of the Basel Convention, and saying that only nations which had voted for the Ban Amendment get it right.

"It is our conclusion that US ratification of the original 1989 treaty without simultaneous ratification of its Ban Amendment will equate to a net loss for the global environment and the protection of developing countries. Until the United States changes its position within the Basel Convention and decides to join the rest of the global community in ending the most abusive form of the international waste trade -- export of hazardous waste to developing countries it would be much better for the earth and its inhabitants to keep the US out of the game entirely."

The Basel BAN Amendment is a proposed, unpassed and unratified language which would make export for repair and reuse just as illegal as the export of waste.  It represents votes by representatives to the international secretariat.    They come together every couple of years, and BAN lobbies them to alter the rules in the convention (see video Part III).  Basel Action Network calls "loopholes" in the Convention, and perhaps they are and perhaps they aren't... but democracies leave those changes for legislatures and executive branches to decide (else many governments would never sign any treaty, if it could be changed by representatives appointed by non-elected officials in other lands, and the changes were binding on the democracies.).

Most see the Amendment as recommendations voted on by representatives of "parties" who attend Basel Convention meetings and conferences.  At Basel Action Networks urging, these committees take votes to add to the upcoming "Amendment".   Nations are free to incorporate the various "amendments" into their national laws, and many European governments do this (adapt Guidelines into the WEEE rules, for example).   But most nations don't, because it would be unconstitutional to have a bunch of people at a meeting who are not even citizens, much less elected representatives, vote in changes of law.

The USA, and most nations, take the position that once their legislatures ratify a Convention, that the language in the Convention as passed is the law until/unless the legislatures ratify later amendments adn suggestions.  Jim Puckett cannot attend a meeting in Vienna and vote a change to USA law.

That is a proposed AMENDMENT to the current Basel Convention Law.  It is not the law!

The current Basel Convention explicitly states under Annex IX (legal exports) section B1110 on electronics that electronic assemblies and cathode ray tubes specifically are legal for export for repair and that signatories can consider these "non-waste".   They are also specifically mentioned as non-waste commodities in the "cores" and refurbishing WTO agreement (Doha Round).



"Ending is better than mending..."

The confusion over Treaties and Conventions which are later debated or amended, after the nation has passed it, has been called "Post Treaty Revisionism".    And while BAN wants the Amendments to be adapted by the USA when BAN likes them, they complain about the same "Post Treaty Revisionism" when it goes against their thinking.

Here's a warning (by BAN.org itself) about the practice of using committee meetings to tweak the treaty.  In its 2004 Briefing Paper "Running From Basel:  Post Treaty Revisionism Threatens Landmark Treaty", BAN warns earnestly about the committees and groups that debate "guidelines" which are not explicitly in the Convention...

"Recently BAN has become concerned that the industry partnerships launched by the Bsel Convention since COP6, by their very nature, create an environment to exercise programs that circumvent or avoid the legal obligations of the Basel Convention... we have noted that due to overwhelming participation by industry in the partnership programs, as opposed to Parties or NGOs that might understand the Basel Convention as a legal instrument, the emphasis has been on inappropriate deregulation - for example pretending that mobile phones are not a hazardous waste." - Basel Action Network

So mobile phones are now hazardous waste?  Not sure I see that in the Basel Convention at all.  But BAN's point is clear, that a committee guidance document can change the understood intent of the treaty the governments ratified.  I don't understand why it's better if an NGO does it than industry, but either way, it lacks force of law so long as it remains a "guideline", otherwise "post treaty revisionism" could get a Nigerian born TV repairman thrown in jail for something that was explicitly legal in the original Convention.






The original language of the Basel Convention allows that export for reuse and repair, for electronics, is not "waste disposal".   BAN had urged the Convention not to adapt the exclusions in Annex IX B1100 reuse and repair exclusion in the first place,  BAN didn't get its way, and now wants Amendments to be ratified, and it they aren't ratified, wants to pretend they were, or to use committee meetings (PACE, MPPI) to imply that the "law" or "treaty" has been revised in his favor.

Because Jim feels personally convinced that the export for reuse and repair will become a "reuse excuse" for a "digital dump", he has lobbied successfully to get "guidelines" passed in the PACE committee to urge for testing and packaging changes... using the very "Post Treaty Revisionism" he protested ten years ago (October 2004).

In 2006, BAN issued a paper "Preventing the Digital Dump: Ending “Re-use Abuse”

Such re-use exports have been touted as a means to bridge the “digital divide” and satisfy the great desire and need in the developing world to become a part of the information age through access to information technology. However there is a very ugly side to this “re-use” trade as well and it is time that we begin to be able to tell the difference. 

In Tragedy 2, I will take excerpts from that briefing paper to show how BAN created a fake "investigation" statistic which influenced the resulting Guidelines, which were then issued by Interpol as a "litmus test" for dumping, and used by the UK to put Joe Benson in prison for something he'd been doing harmlessly for over 20 years.

These GUIDELINES, prepared by voluntary committee members with no official elected or government appointed role in most cases do indeed "raise the bar" over the Basel Convention Guidelines.  INTERPOL has released inspection recommendations based on these Guidelines, and UK inspectors used the Guidelines as evidence for suspicion and search of Joe Benson's African clients containerloads (Mr. Benson was not the exporter, technically, but that's another discussion).

In Tragedy 2, I will break down this "slippery slope" which leads from a treaty that explicitly recognizes Benson's right to own personal property and to trade in legal commodities, into a "guideline" passed by a committee.    I'll show you how a fake statistic is used to rush judgement, and trick enforcement officials to use the "guidelines" to seize goods and imprison traders.

• A Treaty is negotiated which allows export for reuse and repair.
• A small NGO which protested language in that treaty succeeds in getting a subcommittee to review guidelines for the export for reuse and repair.
• The small non-democratically-elected-or-appointed committee compromises with the NGO to raise the standards for "export for repair" to read "tested working".
• Benson is accused and convicted of violating those guidelines.

In this process, the explicit language protecting the right to repair and reuse in the original Convention is undermined and rewritten by a small group.  Some are well-intentioned but do not know that the repair industry is better and more skilled in poor countries.  Some are EU and USA refurbishers who want to protect their own jobs.  Some are representing OEM or software companies whose interests conflict with refurbishers in Africa.

Export for reuse and repair is NOT ILLEGAL.  It is both environmentally preferable and NOT illegal.  And the process of using international committee expert appointments to undermine the business model Joe Benson used for 25 years is an example of why the USA is suspicious of ratifying such treaties.  I would personally prefer the USA sign and ratify so that it had a stronger voice and interest in keeping the treaties from being undermined... but can see the nuance of both sides of this story.