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Basel Convention & Basel Protocol on Liability and Compensation
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Consultant's Study on financial limits of liability under the Protocol

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Implementation Manual of the Protocol

Nature of the Manual

This instruction Manual is a practical guide to implementation without any legally binding character. Nothing in this Instruction Manual should be construed as an agreement between the Parties regarding the interpretation of the protocol or the application of its provisions.

History of the Protocol

Article 12 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the “Convention”) provides that “the Parties shall co-operate with a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes”.

The Conference of Plenipotentiaries that adopted the Convention, held in March 1989, established a working group to develop elements that might be included in a Protocol on Liability and Compensation. The first meeting of the Conference of the Parties to the Convention, held in December 1992, decided to establish an ad hoc working group to consider and develop a draft Protocol on Liability. In 1993, on the basis of the work produced by the working group, the Protocol negotiations began. On 10 December 1999, the Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal (the “Protocol”) was adopted by the fifth meeting of the Conference of the Parties.

The Protocol is intended to respond to the concerns of developing countries about the lack of funds and technologies for coping with illegal dumping or accidental spills and its objective is to provide for a comprehensive regime for liability as well as adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes, including incidents occurring during illegal traffic in those wastes.

Key elements of the Protocol

The Protocol applies to damage due to an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal, including illegal traffic, from the point where the wastes are loaded on the means of transport in an area under the national jurisdiction of a State of export until the time at which the notification of the completion of disposal of the wastes has occurred.

The exporter of waste is strictly liable for damage until the disposer has taken possession of the waste. Thereafter the disposer is strictly liable for damage.

A claim made pursuant to the Protocol must be brought within ten years from the date of the incident, or within five years from the date the claimant knew or ought reasonably to have known of the damage, provided that this is no more than ten years from the date of the incident.

Those who are strictly liable under the Protocol, i.e. exporters and disposers, have to establish insurance, bonds or other financial guarantees covering their liability.

Translating the Protocol into domestic law

The content of the Protocol will be applied by and enforced in domestic courts. Thus, it is essential that States fulfil their obligation, which is expressly provided in Article 10(1) of the Protocol, to make the necessary provision in their domestic legislative, regulatory and administrative regimes to implement the Protocol.

The way in which this provision is made will depend on the legal system of each State and, in particular, on the national law regulating the execution of international agreements, i.e. whether a dualist or monist system applies.

In a “monist” system, treaties may, without legislation, become part of domestic law once they have been concluded in accordance with the constitution and have entered into force for the State concerned. When legislation is not required, such treaties are described as “self-executing”. However, national constitutions may also require additional features for the execution of treaties such as approval of the parliament, publication in the official gazette, etc. Furthermore, depending on their nature and purpose, some treaties may require the promulgation of laws to be applied by national courts. According to the monist tradition, a self-executing treaty may override any inconsistent existing domestic legislation and, in some States, such a treaty may also override future laws that are inconsistent. However, where parliament is supreme, later legislation can override a self-executing treaty. Accordingly, under a “monist” approach, once the constitutional requirements have been met and it has entered into force for the State concerned, only very few (if any) of the Protocol’s provisions may require additional regulatory measures to be executed by domestic courts.

In a “dualist” system, the rights and obligations created by treaties have no effect in domestic law unless legislation is promulgated to give effect to them; ratification of a treaty is insufficient to give the treaty provisions effect in domestic law. When the legislation is in force, the rights and obligations contained in the treaty are incorporated into domestic law and are enforceable in the domestic courts. By the dualist tradition, the provisions of treaties, as contained in the implementing legislation, will have the same status as other domestic law provisions and can be amended or repealed by later legislation. Accordingly, where the dualist theory applies, all the provisions contained in the Protocol will need to be incorporated into the domestic law in order to be applied by domestic courts.

In most countries, guidance in respect of the relevant applicable rules can be obtained from the Ministry of Justice or the Ministry of Foreign Affairs.

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