UNEP/CHW.9/39
IX/25: Addressing the interpretation of paragraph 5 of article 17 of
the Basel Convention
The Conference of the Parties,
Recalling decision VIII/30 addressing the interpretation of paragraph 5 of article 17 of the Basel
Convention,
Requests the Open-ended Working Group to continue at its seventh session the development of
a draft decision to reach an agreed interpretation of paragraph 5 of Article 17 of the Basel Convention in
accordance with international law, taking into account the work of the Conference of the Parties on the
matter at its ninth meeting and the non-exhaustive list of possible elements for a draft decision set out in
the annex to the present decision.
Annex to decision IX/25
Non-exhaustive list of possible elements for a draft decision to reach an agreed
interpretation of paragraph 5 of Article 17 of the Basel Convention for
consideration by the Open-ended Working Group at its seventh meeting
[The Conference of the Parties,
25
1.
[Desiring to clarify the requirements for the entry into force of amendments to the
Convention in paragraph 5 of article 17 of the Basel Convention to facilitate their entry into force;]
26
[ [Agrees] [affirms] that matters of substance relating to interpretation of treaties
2.
should be resolved in accordance with established practices of international law, including article 31 of
the Vienna Convention on the Law of Treaties;]
27
[Agrees that paragraph 5 of article 17 of the Basel Convention [may] present[s] some
3.
ambiguities as to the requirements for entry into force of amendments to the Convention [to some
Parties];]
28
** [Emphasizes that the Parties to the Convention have the ultimate power to agree on
4.
the interpretation [and application] of the Convention;]
5.
adopted
29
** [Agrees that any decision adopted by a Conference of the Parties would need to be
25
Desiring to clarify the requirements for the entry into force of amendments to the Convention in paragraph
5 of article 17 of the Basel Convention [to facilitate their entry into force];
26
Affirms that matters relating to interpretation of treaties should be resolved in accordance with general
principles of international law, including article 31 of the Vienna Convention on the Law of Treaties;
27
[Agrees that paragraph 5 of article 17 of the Basel Convention [may] present[s] some ambiguities as to the
requirements for entry into force of amendments to the Convention [to some Parties];]
28
Emphasizes that the Parties to the Convention have the ultimate power to agree on the interpretation of the
Convention or the application of paragraph 5 of Article 17 of the Convention in accordance with article 31 of the
Vienna Convention of the Law Treaties;
29
[Agrees that any decision adopted by a Conference of the Parties pursuant to paragraph 4 of this decision
[in respect to article 17, paragraph 5,] would need to be adopted by consensus [if in the event it constitutes][if only
it constitutes] a subsequent agreement in the sense used in article 31, paragraph 3(a), of the Vienna Convention on
the Law of Treaties.];
[Recognises that according to the advice given by the Secretary General of the United Nations, as the
Depositary to the Convention, any decision, if it is a subsequent agreement in the sense used in article 31 paragraph
3(a) of the Vienna Convention on the Law of Treaties, adopted by consensus by the Conference of the Parties
pursuant to paragraph 4 in this decision would be definitive, binding and authoritative.];
[Recognises that according to the advice given by the Secretary General of the United Nations, as the
Depositary to the Convention, any decision pursuant to paragraph 4 above, would be a subsequent agreement in the
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UNEP/CHW.9/39
Alternative 1: [in accordance with rule 40 of the rules of procedure of the Basel Convention
Alternative 2: [by consensus∗]
Alternative 3: [without opposition∗]
in order to validly serve as an aid to the interpretation of paragraph 5 of article 17 of the Basel
Convention;]
6.
[Option 1: Resolves that the conditions for the entry into force of an amendment to the
Convention, as set out in paragraph 5 of article 17 of the Basel Convention, shall be deemed to have
been satisfied upon the ninetieth day after the receipt by the Depositary of the instruments of
ratification, approval, formal confirmation or acceptance from:
Alternative 1: [at least three-fourths of the current Parties to the Convention]
Alternative 2: [at least three-fourths of the States and political and/or economic integration
organizations that were party to the Convention on the date upon which the amendment was adopted]
Alternative 3: [a number of Parties equivalent to at least three-fourths of the number of States and
political and/or economic integration organizations that were party to the Convention on the date upon
which the amendment was adopted]]
7.
[Option 2: Agrees that in the application of paragraph 5 of article 17 of the Basel
Convention, three fourth of the Parties shall be calculated on the basis of those States and political
and/or economic integration organizations that were party to the Convention on the date upon which the
amendments was adopted;]
8.
[Option 3: Agrees that in the application of paragraph 5 of article 17 of the Basel
Convention, three fourths of the Parties shall be calculated on the basis of the number of Parties at the
time of deposit of each instrument of ratification, approval, formal confirmation or acceptance of
amendments;]
30
** [Determines that the present decision shall constitute a subsequent agreement in
9.
the sense used in article 31, paragraph 3 (a), of the Vienna Convention on the Law of Treaties;]
10.
[Resolves that this subsequent agreement shall enter into force … [Parties may wish to
consider how and when such a subsequent agreement might enter into force]]]
sense used in article 31 paragraph 3(a) of the Vienna Convention on the Law of Treaties, and the same adopted by
consensus by the Conference of the Parties would be definitive, binding and authoritative]
∗
The Parties may wish to consider these alternatives and their definitions further, in the light of the previous
discussions and work on this issue, as reflected in the annex.
**
The Parties may wish to note that the proposed alternatives contained in the footnotes of paragraphs 4 and
5 are interrelated, with paragraph 9 being deleted due to its proposed integration into paragraph 5.
30
[to delete]
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