The tenth session of the Ad Hoc Working Group of Legal and Technical Experts to Consider and Develop a Draft Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, held in September this year, almost completed the negotiations. However, a few issues still remain unsolved:
- whether the Protocol shall provide for emergency assistance and compensation for damage in situations not (fully) covered by the Protocol, e.g. the person liable is unknown. The Compensation Mechanism (Article 16)
- whether the Protocol shall apply to waste considered as hazardous by individual parties, in addition to those identified as hazardous in the Basel Convention (Article 3, Para 5 (b))
- the issues of exemption of application of the Protocol for bilateral, multilateral and regional agreements entered into in accordance with Article 11 of the Basel Convention (Article 3, Para. 6)
- what are the actual figures for the financial limits for the liability (Annex X to Article 13)
In order to assist the Parties in their negotiations during the fifth meeting of the Conference of the Parties (Basel, 6 - 10 December 1999), the Secretariat of the Basel Convention prepared the attached draft texts for Article 3, Para 5 and Para 6, Article 16 and a Draft Decision on the enlargement the scope of the Technical Co-operation Trust Fund of the Basel Convention.
The draft texts, which may be useful during the negotiations on these issues at the fifth meeting of Conference of the Parties, are found below.
Following the meeting in September on the Draft Protocol on Liability and Compensation, the Secretariat of the Basel Convention has initiated a study on availability of financial guarantees to cover the liability, which may arise under the Draft Protocol on Liability and Compensation. The report of the study, which is being prepared by a consultant, will be send in an electronic version to the Competent Authorities and Focal Points as well as the Permanent Missions to the United Nations Office in Geneva on 29 November 1999.
(19 November 1999)
Draft Proposal For Articles 3(5), 3(6) And 16 Of The Draft Protocol On Liability And Compensation For Damage Resulting From Transboundary Movements Of Hazardous Wastes And Their Disposal
Article 3: Scope of application
- Notwithstanding paragraph 1 of this Article, this Protocol shall not apply:
- to damage that has arisen from a transboundary movement of hazardous wastes or other wastes that has commenced before the entry into force of this Protocol for the Party concerned;
- to damage due to wastes falling under Article 1, paragraph (b) of the Convention unless those wastes have been notified in accordance with Article 3 of the Convention by the state of export and/or import and the damage arises in the territory of that state, in which case liability shall be channelled in accordance with Article 4 of the Protocol.
- The Protocol shall not apply to damage due to an incident occurring during a transboundary movement of hazardous wastes and other wastes or their disposal pursuant to a bilateral, multilateral or regional agreement or arrangement concluded in accordance with article 11 of the Convention provided that:
- (i) the damage occurred within the national jurisdiction of any of the Parties to the agreement or arrangement;
- (ii) there exists a liability and compensation regime, which is in force and is applicable to the damage resulting from movements mentioned above provided it is not less protective to the victims in terms of meeting the objectives of this Protocol, especially in the case of illegal traffic;
- (iii) the Parties to the abovementioned article 11 agreement have not declared that the Protocol shall be applicable.
In order to promote transparency, a Party or Parties to an article 11 agreement or arrangement shall notify the Secretariat of the non-application of this Protocol and of the applicable liability and compensation regimes referred to in paragraph (ii) above. The notification will also contain a description of the regime and its legal texts. The Secretariat shall submit to the Conference of the Parties to the Convention, on a regular basis, summary reports on the notifications received.
- The exclusion set out in paragraph 6 of this article shall neither affect any of the rights or obligations under this Protocol of a Contracting Party which is not party to the agreement or arrangement mentioned above, nor shall it affect rights of transit states which are not Contracting Parties.
- Article 3 paragraph 2 shall not affect the application of article 16 to all Contracting Parties.
In addition to and for supplementing the system of liability and compensation set out in this Protocol for the purpose of ensuring adequate and prompt compensation for all damage resulting from the transboundary movement of hazardous wastes, emergency and compensation measures may be taken by using existing mechanisms.
16 November 1999
For reasons of economy, this document is printed in a limited number. Delegates are kindly requested to bring their copies to meetings and not to request additional copies.
United Nations Environment Programme
UNITED NATIONS CONFERENCE OF THE PARTIES TO THE BASEL
CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF
HAZARDOUS WASTES AND THEIR DISPOSAL
Basel, 6-10 December 1999
Draft Decision on the Enlargement of the Scope of the Technical Cooperation Trust Fund of the Basel Convention in order to Assist Developing Countries or Countries with Economies in Transition in Cases of Incidents Causing Damage or Risk of Damage To Health or Environment Occurred During A Transboundary Movement of Hazardous Wastes Covered by the Basel Convention
Recalling its decisions I/14, II/2, III/3 and IV/20 concerning the emergency fund
Recalling its decisions I/5, II/1, III/2 and IV/19 concerning the adoption of a Protocol on Liability and Compensation
Referring to its decision /V on the adoption of the Protocol on Liability and Compensation
- Decides to enlarge the scope of the Technical Co-operation Trust Fund of the Basel Convention to assist developing countries or countries with economies in transition in cases of emergency and compensation of damage resulting from accidents arising from transboundary movements of hazardous wastes.
- Decides that the Secretariat of the Basel Convention may, upon request, use the funds referred to in paragraph 6 to assist a developing Party or a Party with economy in transition in case of an incident occurred during a transboundary movement of hazardous wastes covered by the Basel Convention in order to:
- estimate the magnitude of damage occurred or damage that may occur and the measures needed to prevent damage
- take appropriate emergency measures to prevent or mitigate the damage
- help finding those Parties and other entities in position to give the assistance needed
- estimate the possible costs and use the Technical Co-operation Trust Fund to compensate the damage and restore the environment in case the Protocol on Liability will not cover entirely the damage. This subparagraph will become operational upon the date the Protocol will enter into force
- Also decides that the Secretariat of the Basel Convention may, upon request, use the funds referred to in paragraph 6 to assist a developing Party or a Party with economy in transition in developing its capacity building and in putting in place measures to prevent accidents and damage to the environment caused by hazardous wastes.
- No later than one year after entry into force of the Protocol on Liability and Compensation, the Parties shall evaluate the information made available by the Secretariat on:
- functioning of this interim arrangement mechanism;
- the number of incidents arising from transboundary movements of hazardous wastes and other wastes and their disposal which involve damage, as that term is defined in the Protocol;
- with regard to each incident, the nature of the damage, the costs of preventive measures and measures of reinstatement;
- With regard to each incident, the extent to which damage was not compensated.
- This evaluation shall be done in order to decide on the need to maintain, improve, change or propose additional measures with the following objectives:
- to provide for the costs of preventive measures and measures of reinstatement for damage from accidents arising from transboundary movements of hazardous wastes and other waste under the Convention or during the disposal of the wastes; and
- to provide for compensation when the person liable is or remains unknown, disappears or cannot be found, or is or may become financially incapable of meeting his or her obligation, or the liable person is exempted from liability in conformity with Article 4, paragraph 2, and with regards to illegal traffic.
- Urges Parties to provide voluntary contributions to Technical Co-operation Trust Fund to support the activities referred to in paragraphs
2 and 3.
- Give a mandate to Extended Bureau to issue guidelines for the Secretariat to implement the tasks assigned to it by this decision.
- Urges Parties to co-operate and provide advisory services, technical support and equipment for the purpose of responding to a damage involving hazardous and other wastes.
- Urges each Party which has not yet done so to establish a national system for responding promptly and effectively to incidents occurring during a transboundary movement of hazardous wastes.
- Decides that the Secretariat shall present through the Extended Bureau a report for the 6th Meeting of the Conference of the Parties on implementation of this decision.