THE SIWG ON LEGAL CLARITY: FROM COP-10 to SIWG-3 Juliette Voinov Kohler Legal and policy advisor Third meeting of the SIWG, Geneva, September 2015

Origin and mandate COP-10 Decision BC-10/3 on the Indonesian-Swiss country-led initiative to improve the effectiveness of the Basel Convention: Secretariat requested to prepare for COP-11 consideration: A study on the implementation of the Convention as it relates to the interpretation of certain terminology used in the Convention, including: Waste/non-waste; Hazardous waste/non-hazardous waste; Re-use; Direct re-use; Refurbishment; Second-hand goods; Used goods; A study to identify options for dealing with the problem posed by used and end-of-life goods. OEWG-8 Decision OEWG-8/7 on the Indonesian-Swiss country- led initiative to improve the effectiveness of the Basel Convention: Secretariat requested to prepare a draft glossary of terms for COP- 11 consideration.

COP-11 Decision BC-11/1 on the Follow up to the Indonesian- Swiss country-led initiative to improve the effectiveness of the Basel Convention: Took note of the two studies prepared by the Secretariat Established a small intersessional working group (SIWG) on legal clarity to continue the work towards clarifying terminology used in the Convention; Parties to nominate experts by 30 June 2013 Mandated the SIWG to: complete the glossary of terms and consider options for further steps towards the consistent interpretation of terminology, including possible voluntary and legally binding options.

SIWG-1: Montreux, June 2014: Prepared draft glossary of terms with a focus on key terms that would help clarify the distinction between waste and non- waste; Prepared options for further steps towards the consistent interpretation of terminology.

OEWG-9 decision OEWG9/8 on Providing further legal clarity: Additional parties to nominate experts for SIWG by 15 October 2014; Parties invited to comment on the 16 terms to be defined in the glossary: direct reuse, disposal, final disposal, hazardousness, hazardous wastes, intent to dispose, non-hazardous wastes, non- waste, prevention, recovery, recycling, reduction, refurbishment, repair, reuse and wastes. SIWG mandated to: prepare a revised draft glossary including explanations develop recommendations on where further guidance would be useful, on whether any terms defined in previously adopted technical guidelines and guidance documents as well as the framework for the environmentally sound management of hazardous wastes and other wastes need to be updated as a result, and on options for further steps towards the consistent interpretation of terminology.

SIWG-2: Konstanz, January 2015 Agreed that the explanatory notes of “wastes” would encompass “intent to dispose” and that “prevention” and “reduction” could be defined by the EWG on ESM; Agreed on the definitions of : wastes, non-waste, hazardous wastes, hazardous characteristics, non-hazardous waste, disposal, final disposal, repair and refurbishment, while recognizing that there would be a need to return to consider the definitions in light of the discussion of the related explanations. Recovery and recycling: different views were expressed as to whether the former includes the latter. Reuse: differing views were expressed as to whether the term refers only to the stage of actual reuse of non-waste or whether it is a broader term that also covers any pre-processing or repair or refurbishment that might lead to reuse. Direct reuse: the group agreed that it applied only to non-waste, but different views were expressed as to whether no pre-processing, or no repair or refurbishment, be necessary Initiated consideration of the explanations of the term “wastes” and completed section (a) of these. Finalized options for further steps towards the consistent interpretation of terminology.

COP-12 COP-12 to consider draft glossary of terms developed by SIWG-2, set out in document UNEP/CHW.12/INF/52, taking into account comments thereon from Parties and others, set out in document UNEP/CHW.12/INF/55 (Brazil, EU, Japan, Mexico, Mozambique, Oman, Qatar, USA, BAN) Contact group co-chaired by Anne Daniel (Canada) and Joost Meier (Chile)

COP-12 Decision BC-12/1 on the Follow-up to the Indonesian- Swiss country-led initiative to improve the effectiveness of the Basel Convention: Took note of the glossary of terms and related explanations developed by SIWG-2 (UNEP/CHW.12/INF/52, annex 1) and decided that it shall serve as the basis for further work on the matter; Mandated the SIWG to complete the glossary and related explanations, taking into account the comments received from parties and observers (UNEP/CHW.12/INF/55), as well as the outcomes of COP-12 and to submit to OEWG-10 five months prior to its meeting; Invited OEWG-10 to finalize the draft glossary and related explanations as a useful piece of guidance; and to prepare a draft decision on these matters for consideration and possible adoption by COP-13;

Decided to initiate a process for the review of Annexes I, III and IV and related aspects of Annex IX to the Basel Convention, taking as a basis the legally binding options identified in section II a) and II b) of annex II to document UNEP/CHW.12/INF/52 (section II a) pertains to waste/non-waste and section II b) to hazardous/non- hazardous wastes); Parties and others to comment on these options by 30 November 2015; Secretariat/lead country to assess comments received on the options of section II a) and to prepare recommendations thereon for OEW-10 consideration; Secretariat to compile comments received on the options of section II b and to submit to OEWG-10.

Draft glossary of terms and related explanations set out in the annex 1 to document SIWG.3/2 (same as annex I to document UNEP/CHW.12/INF/52) Annex 2 to document SIWG.3/2: comparison of pre-COP-12 and COP-12 definitions set in the glossary of e-waste guidelines (CRP.33) Final edited version of that glossary set out in document UNEP/CHW.12/5/Add.1/Rev.1: includes definitions of: direct reuse, disposal, key function, failure analysis, fully functional, recycling, recovery, refurbishment, repair, reuse (NB: correction brought to CRP 33 definition of “repair”: missing words added) Document UNEP/CHW.12/3/Add.2: EWG on ESM draft “Terminology”: no current overlap between the terms defined therein and in the SIWG glossary (NB: includes “treatment”). Includes: minimization, prevention, source reduction, and waste management hierarchy. SIWG-3

Scenario note with co-chairs expectations: SIWG-3 to complete the glossary and related explanations Take into account comments set out in UNEP/CHW.12/INF/55 as well as outcomes of COP-12 - No new comprehensive proposal Continue work where SIWG-2 suspended it: from section b) of the explanations of “wastes” Consider then the remainder of the explanatory notes Revisit outstanding issues in the definitions/explanations.