History

Before agreement was reached at the tenth meeting of the Conference of the Parties in 2011 on the interpretation of paragraph 5 of Article 17 of the Basel Convention, in particular the interpretation of the expression "accepted them" in this paragraph, decisions were adopted on the issue at the eighth and ninth meetings of the Conference of the Parties, as well as at the sixth and seventh meetings of the Open-ended Working Group.

Parties and other stakeholders submitted comments on this issue, and advice was sought from the Office of Legal Affairs of the United Nations in its capacity as the Depositary of the Basel Convention.

  1. Decisions of the COP / OEWG 
  2. Comments from Parties and stakeholders 
  3. Advice from the Office of Legal Affairs of the United Nations 

Decisions of the Conferene Of the Parties (COP) / Open-ended Working Group (OEWG)

  • Decision VIII/30: Interpretation of paragraph 5 of Article 17 of the Basel Convention 
  • Decision OEWG-VI/16: Addressing the interpretation of paragraph 5 of Article 17 of the Basel Convention 
  • Decision IX/25: Addressing the interpretation of paragraph 5 of Article 17 of the Basel Convention 
  • Decision OEWG-VII/15: Addressing the interpretation of paragraph 5 of Article 17 of the Convention

Comments from Parties and stakeholders

Comments following decision VIII/30: Interpretation of paragraph 5 of Article 17 of the Basel Convention

Party Comments
European Union
Norway
United States of America

 

Comments following decision OEWG-VI/16: Addressing the interpretation of paragraph 5 of Article 17 of the Basel Convention

Party Comments
Bahrain
Canada
China
Costa Rica
El Salvador
European Union
Japan
Norway

 

Advice recieved from the Office of Legal Affairs of the United Nations

On several occasions, the advice of the Office of Legal Affairs of the United Nations (OLA) was sought in relation to the adoption and entry into force of amendments of the Basel Convention. Relevant excerpts of this advice are provided below.

Memorandum of 8 March 2004

The Secretariat had received a number of communications from Parties and entities indicating that there was considerable disagreement as to the correct interpretation of the requirement contained in Article 17 (5) of the Convention. Guidance was sought from the OLA as to the appropriate interpretation of the requirements under Article 17 and the number of ratifications required, and by which Parties, for an amendment to the Convention to enter into force.

Extracts of the response of the OLA can be found below:

  • "Amendments to treaties enter into force in accordance with the relevant provisions of such treaties."
  • "The ambiguity […] arises when attempting to calculate the number of deposited instruments in order for the amendment to enter into force […] in order to calculate a particular percentage, it is necessary to be aware of the total number of States concerned from which the required percentage will be calculated. It is also essential to be very clear of the time at which the total number of States is determined […]"
  • "Where the treaty is silent or ambiguous on the matter, the practice of the Secretary-General is to calculate the number of acceptances on the basis of the number of parties to the treaty at the time of deposit of each instrument of acceptance of an amendment. This method is sometimes called the ‘current time approach’ […]. Accordingly, States that became parties to a treaty after the adoption of an amendment but before its entry into force are also counted […]"
  • "It is only when a treaty specifies that the percentage should be calculated based upon the number of parties at the time of adoption of an amendment that the depositary, in compliance with the treaty itself, can adopt the ‘fixed time approach’."
  • "In the present case, article 17(5) of the Convention does not specify that the percentages should be calculated at the time of adoption […] Accordingly, the depositary is bound to adopt the ‘current time approach’ […] For example, the Amendment of 22 September 1995 to the Basle Convention will enter into force when three fourths of the States currently party to the Convention accept the amendment. Currently there are 159 parties to the Convention. Assuming that no additional States become party to the Convention, the Amendment will enter into force on the ninetieth day following the deposit of the 120th instrument of ratification, approval, formal confirmation or acceptance. It is noted, however, that the above percentage must be recalculated each time a State becomes party to the Convention."
  • "In addition, we are of the view that the “current time approach” should be adopted in relation to the entry into force of amendments to the Convention."

Letter dated 5 May 2004

Further to the response of 8 March 2004, a formal legal opinion was sought to allow the Secretariat to provide further guidance on this matter to the Parties. The OLA responded, confirming that the memorandum dated 8 March 2004 reflected the views of the OLA. The letter in response also noted that:

  • "[…] there is only one amendment to the Basel Convention deposited with the Secretary-General and there is no applicable precedent to guide us […] Furthermore, neither the provision in question itself nor the travaux préparatoires appear to offer assistance in the interpretation. In these circumstances the normal practice of the Secretary-General as depositary of multilateral treaties must be applied in the case of the Basel Convention and its amendments. In such circumstances, the practice of the Secretary-General is […] the current time approach […]"

Letter dated 12 February 2007

The eighth meeting of the Conference of the Parties adopted the decision VIII/30 initiating consultation amongst Parties on the interpretation to be applied to Article 17 (5) of the Convention, with a view to developing a draft decision establishing an agreed interpretation for submission to the ninth meeting of the Conference of the Parties.

Guidance was sought as to what majority would be required if the Parties wished to adopt a decision interpreting Article 17(5) of the Convention, particularly if that decision required a departure from the Depositary’s usual practice of applying the current time approach. The Secretariat provided the Depositary with the text of the Rules of Procedure of the Conference of the Parties.

The OLA responded as follows:

  • "The position of the depositary is taken on a subsidiary basis, only in the absence of a clear indication of the will of the Parties. Of course, if the Parties formally agree on a particular interpretation, whether the ‘current time approach’ or otherwise, that particular interpretation would then be followed."
  • "In the case of the interpretation of paragraph 5 of article 17 of the Basel Convention, a decision of the Parties by vote, requiring either simple majority or the majority of two thirds, would in accordance with article 13.3 (a) of the 1969 Vienna Convention on the Law of Treaties, ‘be taken into account, together with the context’ in the process of construction of the provision."