1. Illegal Traffic: a short introduction
2. Basel Convention documents with regard to illegal traffic
3. National practice in combating illegal traffic
4. Useful links to other institutions concerned with the enforcement of international agreements on hazardous wastes
Illegal Traffic: a short introduction
Preventing, detecting and acting against illegal transboundary movements of hazardous and other wastes (“illegal traffic”) is a crucial element in the global waste challenge. Illegal traffic of hazardous waste is unfortunately still very common in all corners of the world (E.g. a press release of IMPEL of 8 November 2005 noted that a joint enforcement operation of European environmental authorities in 17 European seaports had shown that 48% of waste shipments were illegal under EU regulations.)
What is illegal traffic?
Under the Basel Convention, illegal traffic occurs if the transboundary movement of hazardous wastes is taking place under the following conditions:
- without notification pursuant to the provisions of the Convention to all States concerned;
- without the consent of a State concerned;
- through consent obtained by falsification, misrepresentation or fraud;
- when movement does not conform in a material way with the documents;
- or when movement results in deliberate disposal of hazardous wastes in contravention of the Convention and of general principles of international law.
Common methods of illegal traffic include making false declarations, the concealment, mixture or double layering of the materials in a shipment and the mislabelling of individual containers. Such methods seek to misrepresent the actual contents of a said shipment and, because of this, the meticulous and thorough scrutiny of national enforcement officers is required to detect cases of illegal traffic.
What can be done if illegal traffic occurs?
Generally stated, responsibility for the wastes rests with the entity whose conduct resulted in the illegal traffic.
If the illegal traffic arises as a result of conduct on the part of the importer or disposer , the State of import shall be responsible for ensuring that the wastes are disposed1 of in an environmentally sound manner by the importer or disposer, or if necessary by itself.
Likewise, if the illegal traffic is deemed to result from the conduct on the part of the exporter or generator , the State of export shall ensure that the wastes are taken back, or, if impracticable, disposed of in accordance with the provisions of the Convention.
However, where responsibility for illegal traffic cannot be assigned to the generator, exporter, importer or disposer , the Parties concerned or other Parties are to ensure that disposal is effected in an environmentally sound manner.
How do I report illegal traffic?
Confirmed cases of illegal traffic should be reported to the Secretariat using the " Form for Confirmed Cases of Illegal Traffic ".
What is the role of the Secretariat?
The Secretariat is not mandated to take a unilateral decision to intervene when a case of alleged illegal traffic is brought to its attention.
Under Article 16 (1) (i) of the Convention, the Secretariat's functions include assisting Parties, upon request, in the identification of cases of illegal traffic and to circulate immediately to the Parties concerned any information it has received regarding illegal traffic.
Also, under Article 19 of the Convention, any Party which has reason to believe that another Party is acting or has acted in breach of its obligations under the Convention may inform the Secretariat thereof, and in such an event, shall simultaneously and immediately inform, directly or through the Secretariat, the Party against whom the allegations are made. The Secretariat should then submit all relevant information to the Parties.
The Secretariat may also facilitate dialogue between Parties, if they so request.
How can illegal traffic be prevented and punished?
Under the Basel Convention, illegal traffic in hazardous wastes is considered a crime. To this end, the Convention provides that each Party should introduce appropriate national/domestic legislation to prevent and punish illegal traffic. Part VII of the Model National Legislation contains model provisions on illegal traffic. Parties are required to co-operate to achieve the prevention of illegal traffic. Parties are also encouraged to submit judgments of its courts dealing with illegal traffic to the Secretariat, so it can publish them on the forthcoming case law section of this web site . This would be a valuable information tool for other Parties.
In order to assist Parties in further
elaborating their domestic legal framework, the Conference
of Parties has also requested the Secretariat to prepare,
subject to voluntary funding for this purpose, a draft instruction
manual for the legal profession on the prosecution of illegal
IX/23) and has invited Parties to provide
the Secretariat with their comments on an existing draft outline of the manual as attached to decision VIII/24 of the eighth meeting of the Conference of the Parties (UNEP/CHW.8/16).
In addition, The Implementation and Compliance Committee of the Basel Convention has developed a directory of training institutions which offer courses that can help Parties to deal with cases of illegal traffic under the Convention. Relevant institutions which are interested in being included in the directory are invited to complete the forms (available in English, French and Spanish) and transmit them (saved as MS Word documents) to the Secretariat.
Where can I find guidance on what constitutes illegal traffic?
The Conference of the Parties, in recognition of the importance of the role of national regulatory authorities in preventing illegal traffic, adopted, by its decision VI/16 the “Guidance Elements for the Detection, Prevention and Control of Illegal Traffic in Hazardous Wastes” (available in Arabic, Chinese, English, French, Russian and Spanish). These Guidance Elements are intended to provide a practical guide to assist enforcement of national laws implementing the Basel Convention.
The Open-ended Working Group of the Basel Convention, on behalf of the Conference of the Parties, adopted a “Training Manual for the Enforcement of Laws Implementing the Basel Convention: Guidance for Safe and Effective Detection, Investigation and Prosecution of Illegal Traffic in Hazardous and other Wastes” (available in Arabic, Chinese, English, French, Russian and Spanish). This manual is intended to form a basis for training of law enforcement agencies and customs with regard to all aspects of illegal traffic of hazardous wastes. Parties are invited to use the manual, to report to the Secretariat on their experience in the use thereof.
Subject to the availability of funding,
the Secretariat, in collaboration with the Basel Convention
Regional Centres, continues to assist Parties, particularly
developing countries, through such methods as the organisation
of workshops, in implementing the guidance elements at the
Co-operation with other institutions
In addition, the Parties have instructed the Secretariat to work in co-operation with the World Customs Organization, the International Maritime Organization and Interpol to promote coordinated approaches to the prevention of illegal traffic.
The Secretariat has a separate section on its web site for the dismantling of ships, in which issues of illegal traffic may also arise.
Basel Convention documents with regard to illegal traffic
- Relevant Convention Articles (Arabic, Chinese, English, French, Russian and Spanish)
- Relevant decisions of the Conference of the Parties and the Open-ended Working Group (Arabic, Chinese, English, French, Russian and Spanish)
- Form for confirmed cases of illegal traffic
- Guidance Elements for Detection, Prevention and Control of Illegal Traffic in Hazardous Wastes (Arabic, Chinese, English, French, Russian and Spanish).
- Training Manual for the Enforcement of Laws Implementing the Basel Convention: Guidance for Safe and Effective Detection, Investigation and Prosecution of Illegal Traffic in Hazardous Wastes (Arabic, Chinese, English, French, Russian and Spanish)
- Model national legislation
National practice in combating illegal traffic
This section is currently empty. The Secretariat invites Parties to transmit relevant case studies, and decisions from national courts to place on this section of the web site.
Useful links to other institutions concerned with the enforcement of international agreements on hazardous wastes
Please note that ‘disposal', as defined in Article 2.4 of the Convention, does not merely refer to final disposal. It also includes activities such as resource recovery, recycling, reclamation, direct re-use or alternative uses (see Annex IV of the Convention).