The 1999 Basel Protocol on Liability and Compensation

Albers, Jan

doi:10.1007/978-3-662-43349-2_5

Jan Albers²⁴

Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 29))

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Abstract

In this chapter the provisions of the 1999 Protocol to the Basel Convention on Liability and Compensation for Damage Resulting from the Transboundary Movement of Hazardous Wastes and their Disposal (Basel Protocol or Protocol) shall be addressed and analysed in more detail. For this purpose, also a comparison between the provisions of the Basel Protocol and the respective provisions of comparable civil liability regimes is provided at the relevant points.

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Notes

1.
Article 3 of the Basel Protocol was subject to controversy and long-lasting discussions during the negotiation process of the Protocol. Initially it consisted of two paragraphs and 173 words. See AHWG Doc. UNEP/CHW.1/WG.1/1/5.
2.
Basel Protocol, Article 3(1).
3.
Basel Protocol, Article 2(2)(b), refers to Basel Convention, Article 1, which in turn refers to Basel Convention, Article 2(1) in respect of the term “wastes”.
4.
Basel Convention, Article 2(1).
5.
Ibid., Article 1(1)(a).
6.
Bamako Convention, Article 1(1), (2), Article 2(1) and Annexes I and II; Waigani Convention, Article 1, Article 2(1) and Annexes I and II.
7.
Izmir Protocol to the Barcelona Convention, Article 1(c), (d), Article 3(1) and Annexes I and II; Tehran Protocol to the Kuwait Convention, Article 2(1), Article 1(1)(a) and Annexes I and III.
8.
OECD Council Decision C(2001)107/FINAL, A(1), (2)(i) and Appendixes 1 and 2; EU Directive 2008/98/EG, Article 3(1), (2) and Annex III.
9.
This applies to the Waigani Convention, the OECD Council Decision C(2001)107/FINAL and the Tehran Protocol to the Kuwait Convention.
10.
This applies to the Bamako Convention and the Izmir Protocol to the Barcelona Convention.
11.
Directive 2008/98/EG.
12.
In addition, such wastes often fall under the national definition of hazardous wastes as outlined in the next section.
13.
Basel Convention, Article 1(1)(b).
14.
Ibid., Article 3.
15.
A list of these States and their respective national definitions of hazardous wastes can be obtained at www.basel.int.
16.
Basel Protocol, Article 3(6)(b).
17.
Basel Convention, Article 1(2) and Annex II.
18.
Abrams, ‘Regulating the International Hazardous Waste Trade’, 28 Colum. J. Transnat’l L. (1990), at 820.
19.
Kummer, The Basel Convention (1995), at 50.
20.
Kummer, The Basel Convention (1995), at 50.
21.
Kummer, The Basel Convention (1995), at 50.
22.
This applies to the Bamako and Waigani Conventions as well as to the Izmir Protocol to the Barcelona Convention. The EU Regulation 2008/98/EG provides a more detailed regulation of household wastes. Household wastes are not covered by the HNS and CRTD Conventions or by OECD Decision C(2001)107/FINAL.
23.
Tehran Protocol to the Kuwait Convention.
24.
Basel Convention, Article 1(3).
25.
See for an overview on the international regulatory regime on shipments of radioactive substances Nadelson, ‘The Contemporary Shipment of Radioactive Substances in the Law of the Sea’, 15 IJMCL (2000), at 215–220.
26.
1979 Convention the Physical Protection of Nuclear Material. It entered into force on 8 February 1987.
27.
Published on 19.05.2009 (IAEA Safety Standards Series, No. TS-R-1, Vienna 2009).
28.
The Code of Practice (INFCIRC/386) was adopted on 21.09.1990 by the IAEA.
29.
Kummer, The Basel Convention (1995), at 51.
30.
Basel Convention, Article 1(4).
31.
Kummer, The Basel Convention (1995), at 52.
32.
Kummer, The Basel Convention (1995), at 52; Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 299.
33.
Revised legal analysis of the application of the Basel Convention to hazardous wastes and other wastes generated on board a ship of the Secretariat of the Basel Convention of 7 October 2011, COP10 Doc. UNEP/CHW.10/INF/16, at 3–4.
34.
Ibid., at 7.
35.
The Report of the Basel Convention Secretariat’s technical assistance mission to Ivory Coast can be found at Doc. UNEP/SBC/BUREAU/8/1/INF/2, and annexed to OEWG Doc. UNEP/CHW/OEWG/6/2.
36.
Bamako Convention, Article 2; Waigani Convention, Article 2; EU Regulation 2008/98/EG, Article 2; an exclusion for only radioactive wastes is provided for by the Tehran Protocol to the Kuwait Convention, Article 1; HNS Convention, Article 4; CRTD Convention, Article 4; an exclusion for only wastes covered by the MARPOL 73/78 Convention is provided for by the Izmir Protocol to the Barcelona Convention, Article 3 and the 1972/1996 London Dumping Convention, Article 1.
37.
Basel Protocol, Article 3(1).
38.
Basel Convention, Article 2(3).
39.
Ibid., Article 2(9).
40.
See UNCLOS, Article 2(1), and supra, Sect. “3rd Tier: Prior Informed Consent Principle” in Chap. 3.
41.
The question of whether the term “State of transit” also covers the EEZ of a coastal State is discussed supra, Sect. “3rd Tier: Prior Informed Consent Principle” in Chap. 3.
42.
UNCLOS, Article 56(1)(b)(iii), provides that the coastal State has jurisdiction as provided for in the relevant provisions of the UNCLOS with regard to the protection and preservation of the marine environment.
43.
See ibid, Articles 211(5) and 220 (3), (5) and (6).
44.
See also Kummer, The Basel Convention (1995), at 21. Not entirely clear on this issue is Rummel-Bulska, The Basel Convention and the UNCLOS, in: Ringbom (ed.) (1997), at 87–88.
45.
Kummer, The Basel Convention (1995), at 52; Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 299.
46.
Basel Protocol, Article 3(6)(a).
47.
Basel Convention, Article 2(4).
48.
Basel Protocol, Article 3(4). The reference made to “illegal traffic” in Article 3(1) of the Protocol does not sufficiently describe the covered activities. “Illegal traffic” is defined by Article 2(21) and Article 9(1) of the Basel Convention as not including cases of re-importation according to Article 8 of the Convention.
49.
Basel Protocol, Article 2(2)(h).
50.
See Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 307.
51.
Basel Protocol, Article 6(1).
52.
Basel Secretariat, Implementation Manual (2005), at 4; these examples are given by ibid., at 4–5.
53.
HNS Convention, Article 1(8); Bunker Oil Convention, Article 1(8); 1969/1992 Civil Liability Convention, Article 1(8); CRTD Convention, Article 1(12).
54.
Basel Protocol, Article 3(1).
55.
Ibid., Article 3(1). This option represents a compromise that was reached during the negotiating process of the Basel Protocol; see AHWG Docs. UNEP/CHW.1/WG.1/1/5, at 5; UNEP/CHW.1/WG.1/2/4, at 5; UNEP/CHW.1/WG.1/3/2, at 5–7; UNEP/CHW.1/WG.1/7/2, at 4. The exercise of this option requires that prior notification be given to the Secretary-General of the United Nations, Article 32.
56.
According to Article 2(19) of the Basel Convention, the term “disposer” means any person to whom hazardous wastes are shipped and who carries out the disposal.
57.
Basel Protocol, Article 3(3)(b).
58.
Ibid., Article 3(2)(a) or, as concerns movements destined for the operations specified in D13, D14, D15, R12 or R13 of Annex IV of the Basel Convention, Article 3(2)(b).
59.
Ibid., Article 3(3)(b).
60.
Ibid., Article 3(3)(b).
61.
Ibid., Article 3(4).
62.
See AHWG Docs. UNEP/CHW.1/WG.1/1/5, at 5; UNEP/CHW.1/WG.1/2/4, at 5; UNEP/CHW.1/WG.1/3/2, at 5–7; UNEP/CHW.1/WG.1/7/2, at 4.
63.
Basel Protocol, Article 2(2)(c)(i) and (ii).
64.
The Basel Secretariat, Implementation Manual (2005), at 4, gives the following example: Hazardous wastes are discharged from a truck due to a traffic accident. The persons present at the scene of the accident were poisoned by the emitted fumes and suffered personal injury within the scope of the Basel Protocol.
65.
The following example is provided in Basel Secretariat, Implementation Manual (2005), at 4: Corrosive wastes are packed in inappropriate containers and this results in leakage and damage to the truck. The damage to the truck is covered by the Basel Protocol, whereas the damage to the containers, if among the property of the liable person, is not covered by the Protocol.
66.
HNS Convention, Article 1(6)(a) and (b); CRTD Convention, Article 1(10)(a) and (b). See de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 276–277.
67.
The restriction “caused outside the ship” is tantamount to the restriction “property other than property held by the person liable” according to the Basel Protocol.
68.
The inclusion of this term makes clear that damage resulting from accidental occurrences like fire or explosions are not covered. See Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 23; Gunasekera, Civil Liability for Bunker Oil Pollution Damage (2010), at 71–74.
69.
CLC 69/92, Article I(6); Bunker Oil Convention, Article 1(9).
70.
Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 26–27.
71.
Basel Protocol, Article 2(2)(c)(iii).
72.
There can be no doubt that economic interests in the direct use of the environment are covered by the Protocol, such as fishery, whale watching, deep sea mining or other economic offshore activities.
73.
The Basel Secretariat, Implementation Manual (2005), at 4, gives the following example of an economic interest in an indirect use of the environment: In a tourist region, close to a restaurant that is known for its panoramic view and clean air, a lorry carrying hazardous wastes overturns and guests are now staying away due to a bad smell emanating from the wastes. Although no physical damage has been incurred by the restaurant and it is not physically prevented from offering its services, the loss of income deriving from the economic interest in the direct use of the environment is to be considered an economic loss covered by the Basel Protocol.
74.
The contrary view is voiced by Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 310.
75.
This example is given by Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 310.
76.
Measures of reinstatement and preventive measures may be taken in respect of any impact on the environment; hence, they are not limited to the protection of economic losses. See Basel Protocol, Article 2(2)(d) and (e).
77.
HNS Convention, Article 1(6)(c); CRTD Convention, Article 1(10)(c); CLC 69/92, Article 1(6)(a); Bunker Oil Convention, Article 1(9)(a).
78.
Basel Protocol, Article 2(2)(d). The Basel Secretariat, Implementation Manual (2005), at 4, mentions as an example, the costs for growing new plants in response to the destruction of plants caused by a spillage of obsolete pesticides during a transboundary movement.
79.
Basel Protocol, Article 2(2)(c)(iv).
80.
Ibid., Article 2(2)(d).
81.
Ibid., Article 2(2)(e). The Basel Secretariat, Implementation Manual (2005), at 4, mentions the example of costs incurred for the removal of hazardous wastes that have been illegally dumped in a river, threatening the fresh water supply of a village.
82.
Basel Protocol, Article 2(2)(c)(v).
83.
Ibid., Article 3(3)(c). As to the geographical coverage see also infra, Sect. “Geographical Scope of Covered Damage”.
84.
See Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 311.
85.
This is the usual procedure with regard to salvage contracts. See e.g. the LOF 2000 Agreement and the supplementary SCOPIC clause.
86.
HNS Convention, Article 1(6)(c), (d), (7); CRTD Convention, Article 1(10)(c), (d), (11); CLC 69/92, Article 1(6), (7); Bunker Oil Convention, Article 1(9), (10).
87.
1989 International Convention on Salvage.
88.
1989 Salvage Convention, Article 12(1), (2) and Article 13(1).
89.
In this respect the 1989 Salvage Convention provides for an innovative approach compared to the former 1910 Convention for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea including the 1967 Protocol thereto. For the historical background see Herber, Seehandelsrecht (1999), at 390–393; Rabe, Seehandelsrecht (4th ed., 2000), at 1016–1018.
90.
1989 Salvage Convention, Article 14(1).
91.
Ibid., Article 14(2).
92.
Ibid., Article 6(1).
93.
The LOF is approved and published by the Council of Lloyd’s. It is reprinted, along with supplementary clauses, such as the SCOPIC Clause, in Rose, Law of Salvage (8th ed., 2013), at 747 et seq.
94.
IOPC Fund Doc. 71FUND/EXC.52/9, at para 2.2; Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 33–34; Ganten, ‘Die Regulierungspraxis des internationalen Ölschadensfonds’, 40 VersR (1989), at 333; Jacobsson, ‘Entwicklung des Schadensbegriff im Recht der Haftung für Ölverschmutzungsschäden’, 70 DVIS, Reihe A (1990), at 12; Jacobsson, ‘Schadensersatzrecht für Ölverschmutzungsschäden’, 90 DVIS, Reihe A (1998), at 14; Kappet, Tankerunfälle und der Ersatz ökologischer Schäden (2006), at 111; Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 15.
95.
Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 34; Ganten, ‘Die Regulierungspraxis des internationalen Ölschadensfonds’, 40 VersR (1989), at 333–334.
96.
IOPC Fund Annual Reports of 1991, at 51; Annual Report 1992, at 57; Annual Report 1999, at 76–77; Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 34; Jacobsson, ‘Schadensersatzrecht für Ölverschmutzungsschäden’, 90 DVIS, Reihe A (1998), at 14; Kappet, Tankerunfälle und der Ersatz ökologischer Schäden (2006), at 111.
97.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 311 argues that in the context of the Basel Protocol no managerial or legal basis for such a distinction exists. However, the Basel Protocol does not determine under which conditions an intention of the salvor to prevent damage exists. This is to be determined by legal interpretation.
98.
Basel Protocol, Article 2(2)(c)(v) and (e).
99.
1989 Salvage Convention, Article 14(1), (3), Article 13(1)(h), (i) and (j).
100.
Ibid., Article 14(2).
101.
Ibid., Article 14(1).
102.
Reeder (ed.), Brice on Maritime Law of Salvage (4th ed., 2003), at 6-88–6-89; Rose, Law of Salvage (8th ed., 2013), at 6.024.
103.
Reeder (ed.), Brice on Maritime Law of Salvage (4th ed., 2003), at 6-180.
104.
Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 34; Jacobsson, ‘Schadensersatzrecht für Ölverschmutzungsschäden’, 90 DVIS, Reihe A (1998), at 14.
105.
In this context the IOPC Fund adopted in 1980 a resolution, according to which “the assessment of compensation to be paid by the International Oil Pollution Compensation Fund is not to be made on the basis of an abstract quantification of damage calculated in accordance with theoretical models”. This resolution was adopted in response to a claim submitted by the Government of the USSR to the IOPC Fund in 1979, concerning ecological damage due to an oil spill that was caused by the first M/V “Antonio Gramsci” incident in 1979. See IOPC Fund Annual Report 1988, at 61–64; Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 34–35; de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 481–482.
106.
Basel Protocol, Article 2(2)(c)(iv).
107.
See Lawrence, ‘Negotiation of a Protocol on Liability and Compensation’, 7 RECIEL (1998), at 251; de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 490.
108.
Unlike the legal position under CLC 69, CLC 69/92 in Article I(6)(a) contains an explicit exclusion of purely ecological damage apart from the costs of reasonable measures of reinstatement actually undertaken or to be undertaken. See also Altfuldisch, Haftung und Entschädigung nach Tankerunfällen (2007), at 34–40; Kappet, Tankerunfälle und der Ersatz ökologischer Schäden (2006), at 73–79; de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 482–490.
109.
Gunasekera, Civil Liability for Bunker Oil Pollution Damage (2010), at 175; de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 490.
110.
Basel Protocol, Article 3(3)(a).
111.
Ibid., Article 3(3)(d). In this case Article 3(3)(b) applies mutatis mutandis.
112.
Ibid., Article 3(3)(a).
113.
Ibid., Article 3(3)(c).
114.
See also Kummer, The Basel Convention (1995), at 94; Basel Secretariat, Implementation Manual (2005), at 7–8.
115.
This scenario is dealt with by Article 11(1) of the Basel Convention.
116.
This scenario is covered by Article 11(2) of the Basel Convention.
117.
Basel Convention, Article 11(1).
118.
Ibid., Article 11(2).
119.
Ibid., Article 11(2).
120.
See Kummer, The Basel Convention (1995), at 94–96.
121.
A list of these agreements is available at www.basel.int.
122.
Basel Protocol, Article 3(7)(a), see also Article 3(7)(c).
123.
Ibid., Article 3(7)(a)(i).
124.
Ibid., Article 3(7)(a)(ii).
125.
Basel Secretariat, Implementation Manual (2005), at 8.
126.
Basel Protocol, Article 3(7)(b).
127.
Ibid., Article 3(7)(a)(iii).
128.
Ibid., Article 3(7)(a)(iv).
129.
See ‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 525–526; Long, ‘Protocol on Liability and Compensation’, 11 Colo. J. Int’l Envtl. L. & Pol’y (2000), at 259–260.
130.
See Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 526; Long, ‘Protocol on Liability and Compensation’, 11 Colo. J. Int’l Envtl. L. & Pol’y (2000), at 259–260; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 89.
131.
Basel Protocol, Article 3(7)(b).
132.
Such a mandate can be derived from Article 25(1)(a) of the Basel Protocol regarding the preparation of decisions by the Secretariat of the Basel Convention, and from Article 24(4)(d) of the Basel Protocol as regards the competence of the Meeting of the Parties to consider and make decisions about those issues.
133.
See Basel Protocol, Article 24(3).
134.
The Basel Protocol was opened for signature on 6 March 2000, see Article 26.
135.
Basel Protocol, Article 11.
136.
See Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 483.
137.
Further constellations involve cases in which the alternative agreement does not cover the particular hazardous wastes, attaches liability to different persons, imposes a different standard of liability (fault-based or strict), provides for a deviating statute of limitation, stipulates certain exclusions of liability, excludes, for example, damage on the high seas from its coverage, or simply concerns another aspect of liability, such as liability of the carrier for cargo damage.
138.
This may be the case if the alternative agreement does not attach liability to persons who would be liable under the Basel Protocol, if it does not provide compensation for types of damage that would be deemed recoverable under the Basel Protocol, if it establishes a shorter period of limitation, or if it stipulates exclusions of liability that are not recognised under the Basel Protocol.
139.
Basel Protocol, Article 7(1).
140.
See, for instance, the definition of the scope of application in Article 3 of the HNS Convention and the distinction between the territory of a State Party, including the territorial sea, the EEZ or a zone of 200 nautical miles, and the high seas.
141.
See Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 483; Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 315.
142.
‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Lawrence, ‘Negotiation of a Protocol on Liability and Compensation’, 7 RECIEL (1998), at 253.
143.
The respective conventions are outlined in the following section.
144.
According to Article 11 of the Protocol the alternative agreement prevails over the Basel Protocol if it had been opened for signature when the Basel Protocol was opened for signature, even if the agreement was amended afterwards.
145.
The HNS Convention has been outlined in detailed supra, Sect. “1996/2010 HNS Convention” in Chap. 3.
146.
1996/2010 HNS Convention, Article 1(5).
147.
Ibid., Article 4(3). See also supra, Sect. “The Evolution of the 1196 HNS Convention and its Main Content” in Chap. 3.
148.
Namely on 1 October 1996, see 1996 HNS Convention, Article 45(1).
149.
1996/2010 HNS Convention, Article 1(9).
150.
In addition, any person may be liable based on fault. See in detail infra, Sect. “Fault-Based Liability According to Article 5”.
151.
1996/2010 HNS Convention, Article 7.
152.
Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 191.
153.
1996/2010 HNS Convention, Article 1(6).
154.
See explicitly, Basel Protocol, Article 7(1). See also Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 317.
155.
See also Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 317. However, it should be noted that the purpose of Article 11 of the Basel Protocol is to make the HNS Convention applicable, supra, Sect. “Insufficiency of the Formal Criterion”.
156.
The CRTD Convention is outlined supra, Sect. “Liability for the Carriage of Dangerous Goods by Land” in Chap. 3.
157.
CRTD Convention, Article 5(1).
158.
Ibid., Article 3(3).
159.
Ibid., Article 1(9).
160.
Ibid., Article 1(10).
161.
The CRTD Convention was opened for signature on 1 February 1990, Article 22(1).
162.
The CLC is outlined supra, Sect. “Liability for Oil Pollution from Ships” in Chap. 3.
163.
1992 CLC, Articles II, III.
164.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 316.
165.
See Article 12 of both the Bamako and the Waigani Convention.
166.
Izmir Protocol to the Barcelona Convention, Article 14.
167.
See supra, Sect. “OECD Council Decisions” in Chap. 3.
168.
See in detail supra, Sect. “European Union Legislation” in Chap. 3.
169.
See ibid.
170.
Basel Protocol, Article 3(7)(a)(ii).
171.
The Waste Shipment Regulation No 1013/2006/EC merely provides that “this Article shall be without prejudice to Community and national provisions concerning liability”, see Articles 23(2), 24(10) and 25(5).
172.
See supra, Sect. “EU Environmental Liability” in Chap. 3.
173.
1924 International Convention for the Unification of Certain Rules of Law related to Bills of Lading (Hague Rules) as amended by the 1968 Visby Protocol and by the 1979 Protocol.
174.
1978 United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules).
175.
Under the Hamburg Rules the carrier is liable also for delay in delivery, see Article 5.
176.
For a detailed description see supra, Sect. “The LLMC Convention” in Chap. 3.
177.
Ibid.
178.
This issue is raised by Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 317–318 and 329–331.
179.
Article 11 of the Basel Protocol requires that the provisions of the alternative agreement “apply to liability and compensation for damage caused by an incident”.
180.
The methodology of interpreting treaty provisions is laid down in Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties (VCLT). The VCLT basically pursues the objective approach, according to which the treaty text, instead of the historic intention of the Parties, provides the basis for any interpretation and adaption of an ambiguous rule in the individual case. It distinguishes between, first, the general rule of interpretation which is set out in Article 31 (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”) and, second, the supplementary means of interpretation as specified in Article 32. The particular components of the general rule of interpretation, i.e. the interpretation according to the ordinary meaning, the systematic context and the telos of the provisions, are of equal importance and have to be applied complementary and in a combined manner. An interpretation according to the ordinary meaning rule has the consequence that the usual meaning of an expression, which may also derive from its technical or terminological context, is explored. The systematic context of a provision comprises the meaning that can be attached to a term or wording by taking into account the entire treaty including the preamble. The teleological interpretation of a treaty provision, finally, considers the objective and purpose of a provision, which are to be taken from the wording of the treaty itself. See to the methodology of the interpretation of treaties Crawford, Brownlie’s Principles of Public International Law (8th ed., 2013), at 379–384; Heintschel von Heinegg, in: Ipsen (ed.), Völkerrecht (5th ed., 2004), at 137–147.
181.
This issue is left open by Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 317, 330.
182.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 318, 330.
183.
As to this conflict see infra, Sect. “Potential Conflicts with the LLMC Convention”.
184.
Boyle, ‘Globalising Environmental Liability’, 17 J. Envtl. L. (2005), at 12; Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 33.
185.
Blay/Green, ‘Liability Annex to the Madrid Protocol’, 25 Envtl. Pol’y & L. (1995), at 28.
186.
Boyle, ‘Globalising Environmental Liability’, 17 J. Envtl. L. (2005), at 13; Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 34–35; See also Basel Secretariat, Implementation Manual (2005), at 9.
187.
Boyle, ‘Globalising Environmental Liability’, 17 J. Envtl. L. (2005), at 13.
188.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 34; Jacobsson, ‘Oil Pollution Liability and Compensation’, 1 Unif. L. Rev. (1996), at 263.
189.
Blay/Green, ‘Liability Annex to the Madrid Protocol’, 25 Envtl. Pol’y & L. (1995), at 28. In respect of the functions of strict liability see supra, Sect. “Liability Rules as a Remedy for Environmental Damage ” in Chap. 4.
190.
Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 505.
191.
See also Bergkamp, Liability and Environment (2001), at 5 and 119.
192.
Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 504.
193.
See supra, Sect. “Summary” (p. 155) in Chap. 3.
194.
An explicit formulation of this concept was later incorporated into Principle 7 of the 1992 Rio Declaration, which reads: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”
195.
A detailed description of the concept of common but differentiated responsibilities is provided by Beyerlin/Marauhn, International Environmental Law (2011), at 61–71; Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 132–136; French, ‘The Importance of Differentiated Responsibilities’, 49 Int’l & Comp. L. Q. (2000), at 35 et seq.
196.
This applies with regard to the general obligation of States to minimise the generation and transportation of hazardous wastes according to Article 4(2)(a)(b) and (d) of the Basel Convention, the obligation to co-operate in the development and implementation of new environmentally sound low-waste technologies (Article 10(2)(c)), the establishment of regional or sub-regional centres for training and technology transfer (Article 14(1)). See also Widawsky, ‘In My Backyard’, 38 Envtl. L. (2008), at 595, and supra, Sect. “General Obligation: Minimisation of Generation and Transportation of Hazardous Wastes” in Chap. 3.
197.
See also Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 136.
198.
In addition, there may also be other persons involved in hazardous waste movements, such as insurance underwriters providing coverage for different risks and perils associated with those movements.
199.
Under the HNS Convention strict liability is attached to the person registered as the owner of the ship, or in the absence of registration, to the person owning the ship (Article 4 HNS Convention). A similar regulation is provided for by Article III of the CLC. Article 5 of the CRTD Convention imposes strict liability on the carrier. The term “carrier” is defined by the Convention as the person operating the railway line or, alternatively, the person in operational control of the road vehicle or inland navigation vessel, which is presumed to be the person in whose name the vehicle is registered in a public register or, in the absence of such registration, the owner of the vehicle (see Article 1(8) CRTD Convention). The operator of a nuclear installation is strictly liable according to Articles 3 and 4 of the Paris Convention or is, alternatively, absolutely liable according to Article II of the Vienna Convention. Absolute liability is also imposed on and channelled to the operator of a nuclear ship by Article II of the 1962 Nuclear Ships Convention. Under the 2003 Kiev Liability Protocol strict liability for damage caused by an industrial accident is channelled to the operator, meaning the person or authority in charge of an activity (Art. 1 of the 1992 Helsinki Convention). Finally, strict liability is imposed on the operator of an installation according to Article 3 of the 1976 Mineral Resources Convention.
200.
Boyle, ‘Globalising Environmental Liability’, 17 J. Envtl. L. (2005), at 14; Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 37; Kummer, The Basel Convention (1995), at 241; Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 51–52.
201.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 37; Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 51.
202.
Boyle, ‘Globalising Environmental Liability’, 17 J. Envtl. L. (2005), at 14; Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 505.
203.
Kummer, The Basel Convention (1995), at 241.
204.
This may also involve persons who do not actually possess the wastes, but rather exercise indirect control, such as waste brokers and waste dealers and persons organising and notifying the transport to the State authorities.
205.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 51–52.
206.
See Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 52–53; This approach is incorporated, for instance, in the regulatory system of the CLC/Fund Convention for oil pollution damage, which provides for a two-tier system of liability involving the secondary liability of a compensation fund. The same regulatory approach is followed by the 1960 Paris Convention and the 1963 Vienna Convention, which are supplemented by a secondary layer of liability guaranteed by a public fund established by the 1963 Brussels Supplementary Convention and the 1997 Vienna Supplementary Compensation Convention (see supra, Sect. “Liability for Nuclear Damage” in Chap. 3).
207.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 53.
208.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 53–54.
209.
US Comprehensive Environmental Response, Compensation, and Liability Act.
210.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 54.
211.
A concept of allocating strict liability which deviates from the usual pattern is also established by the 2001 Bunker Oil Convention. This Convention channels liability not only to one person, but to a group of persons. Article 1(3) of the Convention defines the “shipowner”, who is liable according to Article 3, to be the owner, registered owner, bareboat charterer, manager or operator of the ship.
212.
See also Boyle, ‘Globalising Environmental Liability’, 17 J. Envtl. L. (2005), at 14.
213.
During the negotiations of the Basel Protocol an alternative option of allocating liability, according to which liability should be channelled to the person in operational control of the wastes, was contemplated. This option, however, could not prevail in the end; see Lawrence, ‘Negotiation of a Protocol on Liability and Compensation’, 7 RECIEL (1998), at 252; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 86.
214.
Basel Protocol, Article 4(1).
215.
See ibid., Article 3(1).
216.
See ibid., Article 3(2)(a) and (b).
217.
The generator is defined by Article 2(18) of the Basel Convention as “any person whose activity produces hazardous wastes […] or, if that person is not known, the person who is in possession and/or control of those wastes”.
218.
Exporter means according to Article 2(15) of the Basel Convention “any person under the jurisdiction of the State of export who arranges for hazardous wastes […] to be exported”.
219.
According to Article 1(1)(b) of the Basel Convention, which also requires that those wastes have been notified according to Article 3 of the Convention.
220.
Article 1(1)(b) of the Basel Convention requires that those wastes have been notified according to Article 3 of the Convention.
221.
Basel Convention, Article 2(16) defines the importer as “any person under the jurisdiction of the State of import who arranges for hazardous wastes […] to be imported”.
222.
Basel Convention, Article 8.
223.
Basel Protocol, Article 4(3).
224.
Basel Convention, Article 9(2)(a).
225.
Since the term “person” also includes legal persons, liability may also be imposed on the original State of export itself if this State acted in private capacity; supra, Sect. “No Subsidiary Liability of the State”.
226.
Basel Protocol, Article 4(4).
227.
Ibid., Article 4(4), referring to Basel Convention, Article 9(4).
228.
This might be the case if, for instance, several persons notify the transport or if the wastes should be delivered to several disposal companies.
229.
Basel Protocol, Article 4(6).
230.
Ibid., Article 8, see also infra, Sect. “Right of Resource, Article 8”.
231.
This may be the case, for instance, if the wastes are temporarily stored during the transportation and it is only after they have been delivered to the disposer that residues emanating from the wastes cause damage by accumulation.
232.
Several conditions of delivery are defined, for instance, by the INCOTERMS, the International Commercial Terms, elaborated by the International Chamber of Commerce (ICC).
233.
Basel Convention, Article 2(19).
234.
‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 524; Long, ‘Protocol on Liability and Compensation’, 11 Colo. J. Int’l Envtl. L. & Pol’y (2000), at 258; see also ‘No Agreement on Draft Protocol’, 29 Envtl. Pol’y & L. (1999), at 154.
235.
Another criticism that has been voiced with regard to possible discrepancies with existing US laws is that the absence of a general secondary liability of the waste generator would contradict the liability provisions of the US Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), according to which the waste generator is subject to joint and several liability; see ‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Long, ‘Protocol on Liability and Compensation’, 11 Colo. J. Int’l Envtl. L. & Pol’y (2000), at 258. As to the liability of the waste generator under US CERCLA see Obstler, ‘Toward a Working Solution to Global Pollution’, 16 Yale J. Int’l L. (1991), at 98 et seq.; Greenfield, ‘CERCLA’s Application Abroad’, 19 Emory Int’l L. Rev. (2005), at 1704 et seq.
236.
See Basel Protocol, Article 14, and infra, Sect. “Compulsory Insurance or Similar Guarantees”. According to Article 14(3) of the Protocol, a document reflecting the coverage of the liability is to accompany the notification referred to in Article 6 of the Basel Convention.
237.
See also the very instructive paper of Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 71.
238.
‘No Agreement on Draft Protocol’, 29 Envtl. Pol’y & L. (1999), at 154; Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 525, 532; Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 189–190, 194–195.
239.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 66. This applies all the more since the traditional north-south pattern of legal hazardous waste transports seems to be outdated, see supra, Sect. “Quantities and Typical Patterns of Hazardous Wastes Movements” in Chap. 2.
240.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 66; see also the economic analyses of Helm, ‘How Liable Should An Exporter Be?’, 28 Int’l Rev. L. & Econ. (2008), at 263 et seq.
241.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 66–67.
242.
A comparable approach which includes the generator of hazardous wastes in a compensation regime applying to the aftercare period after the final disposal of the hazardous wastes has been established by the US CERCLA “Superfund” regulation. This, however, mostly concerns domestic cases and may, therefore, not simply be transferred to the international level.
243.
Basel Protocol, Article 4(5).
244.
Ibid., Article 4(5).
245.
Ibid., Article 4(5).
246.
As to Decision V/32 of COP5 see infra, Sect. “Background and Basic Legal Features of the Convention” in Chap. 3.
247.
See Article 7(2) of the HNS Convention, Article 5(4) of the CRTD Convention, Article III(2) of the CLC, Article 3(3) of the Bunker Oil Convention, Article 4(2) of the Kiev Protocol to the Helsinki Conventions, Article 3(3) of the Mineral Resources Convention. By contrast, absolute civil liability is imposed by Article II(1) of the Nuclear Ships Convention.
248.
Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 89.
249.
The causa proxima principle, which originates from the law on marine insurance, is accepted and applied also in the context of other civil liability conventions, such as the CLC and the Bunker Oil Convention, see de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 99; Zhu, Compulsory Insurance and Compensation for Bunker Oil Pollution Damage (2007), at 101–102.
250.
de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 100–101, who refers to the position of the IOPC Fund. Different, however, Zhu, Compulsory Insurance and Compensation for Bunker Oil Pollution Damage (2007), at 101–102.
251.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 313.
252.
See also Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 314.
253.
Fault-based liability according to Article 5 of the Basel Protocol requires an additional subjective element of personal fault or negligence (see infra, Sect. “Fault-Based Liability According to Article 5”), so that there are virtually no situations conceivable in which a person can be liable on the grounds of personal fault or negligence and at the same time acted have acted reasonably according to Article 6(2).
254.
The particular content and scope of this obligation needs to be determined in more detail by domestic legislation, see Basel Secretariat, Implementation Manual (2005), at 12.
255.
For the definition of “preventive measures” see Basel Protocol, Article 2(2)(e).
256.
Basel Protocol, Article 6(2).
257.
Ibid., Article 5.
258.
A similar approach to establish a supplementary tier of fault-based liability can be found only in 2003 Kiev Protocol to the Helsinki Conventions (Article 5).
259.
Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 504.
260.
Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 504.
261.
Such as the generator, exporter, carrier, importer or disposer.
262.
Basel Protocol, Article 5.
263.
According to Basel Convention, Article 2(14), the term “person” includes any natural or legal person.
264.
See also Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 33.
265.
This can be inferred from Article 7 of the Protocol, providing for special rules in case damage is caused by wastes covered by the Protocol as well as wastes not covered by the Protocol.
266.
See Bergkamp, Liability and Environment (2001), at 281–282; Gunasekera, Civil Liability for Bunker Oil Pollution Damage (2010), at 153.
267.
Gunasekera, Civil Liability for Bunker Oil Pollution Damage (2010), at 154.
268.
Bergkamp, Liability and Environment (2001), at 285–297; Gunasekera, Civil Liability for Bunker Oil Pollution Damage (2010), at 154–157; de la Rue/Anderson, Shipping and the Environment (2nd ed., 2009), at 236–239.
269.
Basel Protocol, Article 7(1).
270.
Ibid., Article 7(2).
271.
Ibid., Article 7(3).
272.
See also Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 312.
273.
Basel Protocol, Article 9.
274.
Ibid., Article 8(1)(a).
275.
Ibid., Article 8(1)(b). The Basel Secretariat, Implementation Manual (2005), at 14, gives the following example: The notifying exporter has entered into a contractual agreement with the carrier, according to which the carrier is responsible for any damage caused during the movement. After the notifier has been held strictly liable according to Article 4 of the Protocol and has compensated the claimant, he is entitled to recourse against the carrier pursuant to Article 8(1)(b).
276.
Basel Protocol, Article 8(2).
277.
In case two or more persons are strictly liable according to Article 4, these persons are subject to joint and several liability pursuant to Article 4(6), thus giving the claimant the right to seek full compensation from any or all of the liable persons.
278.
These scenarios are explicitly mentioned by the Basel Secretariat, Implementation Manual (2005), at 13.
279.
The issue of limitation of liability is outlined in the following section.
280.
The only convention that provides for unlimited strict liability is the 1993 Lugano Convention which, however, never entered into force. A plea for strict and unlimited liability is presented by Louka, ‘Bringing Polluters Before Transnational Courts’, 22 Denv. J. Int’l L. & Pol’y (1993/1994), at 63 et seq.
281.
As to the 1976 LLMC Convention, see supra, Sect. “The LLMC Convention” in Chap. 3.
282.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 35–36; Kummer, The Basel Convention (1995), at 241–242.
283.
This argument, however, is not entirely convincing since unlimited liability would not prevent the liable persons from obtaining limited insurance coverage, which would moreover create an additional incentive for the liable person to act with particular care; see Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 36; Bocken, et al., Limitations of Liability and Compulsory Insurance, Report at the Request of the Basel Secretariat, at 12.
284.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 36.
285.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 36–37.
286.
Basel Protocol, Article 12(1).
287.
Ibid., Article 12(2).
288.
See supra, Sect. “The LLMC Convention” in Chap. 3.
289.
Supra, Sect. “Potential Conflicts with the LLMC Convention”.
290.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 330.
291.
This term includes the owner, charterer, manager and operator of a seagoing ship; see LLMC Convention, Article 1(2). The Convention also covers the liability of salvors, which, however, is of no relevance at this point.
292.
LLMC Convention, Article 2(1).
293.
Ibid., Article 4.
294.
It can be argued that the degree of fault required by Article 4 of the LLMC Convention is higher than the degree of fault required by Article 5 of the Basel Protocol since Article 4 requires the intent to cause loss or at least the knowledge that loss would probably result.
295.
Since the shipowner is usually not involved in the exportation and notification procedures, the provision in Article 5 of the Protocol, according to which also a lack of compliance with the provisions implementing the Basel Convention gives rise to fault-based liability, is of no relevance.
296.
For example, although eligible for compensation under the Basel Protocol, not all costs incurred due to measures of reinstatement are subject to limitation according to Article 2(1)(d) of the LLMC Convention.
297.
The same result is provided by Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 330.
298.
Basel Protocol, Article 12(2).
299.
Ibid., Article 12(1).
300.
See in this respect Article 9(1) of the HNS Convention, Article 9 of the CRTD Convention, Article V(1) of the CLC, Article 4(4) of the FUND Convention, Article V of the 1963 Vienna Convention, Article III(1) of the Nuclear Ships Convention, Article 6 of the Mineral Resources Convention, Article 9 in connection with Annex II of the 2003 Kiev Protocol to the Helsinki Conventions, Article 6 of the Bunker Oil Convention refers to the LLMC Convention, Articles 6 and 7 of the LLMC Convention. See also Article 4(5) of the Hague/Visby Rules, Article 6 of the Hamburg Rules, Article 59 of the Rotterdam Rules, and Article 8 of the 1974 Athens Convention.
301.
Basel Protocol, Annex B, Paragraph 1.
302.
Ibid., Annex B, Paragraph 2.
303.
A similar approach is provided for by Article 7 of the 1997 Protocol to amend Article V of the 1963 Vienna Convention as well as by Article 7 of the 1974 Athens Convention as regards liability for personal injury. These provisions determine certain minimum limits of liability accompanied by the right of the Contracting States to domestically determine higher limits of liability. A further different approach is adopted by Article 7 of the 1960 Paris Convention, according to which the Contracting States are free to domestically determine the limits of liability within a certain range (between 5 and 15 million SDR).
304.
See Article 9(2) of the HNS Convention, Article 10(1) of the CRTD Convention, Article V(2) of the CLC, Article 4(3) of the FUND Convention, Article 6(4) of the Mineral Resources Convention and Article 4 of the LLMC Convention.
305.
The same consideration applies to the 2003 Kiev Protocol to the Helsinki Conventions which, in Article 9(3), also excludes fault-based liability from the limitation of liability.
306.
Basel Protocol, Annex B, Paragraph 2(a) and (b).
307.
The “unit of account” is defined by Article 2(2)(j) of the Protocol as the Special Drawing Right (SDR) as defined by the International Monetary Fund.
308.
Basel Protocol, Annex B, Paragraph 2(b).
309.
Ibid., Annex B, Paragraph 2(a).
310.
Ibid., Annex B, Paragraph 2(a) sets out the following increments:
1. (i)
  1 million SDR for shipments up to and including 5 tonnes;
2. (ii)
  2 million SDR for shipments exceeding 5 tonnes, up to and including 25 tonnes;
3. (iii)
  4 million SDR for shipments exceeding 25 tonnes, up to and including 50 tonnes;
4. (iv)
  6 million SDR for shipments exceeding 50 tonnes, up to and including 1,000 tonnes;
5. (v)
  10 million SDR for shipments exceeding 1,000 tonnes, up to and including 10,000 tonnes;
6. (vi)
  Plus an additional 1,000 SDR for each additional tonne up to a maximum of 30 million SDR.
According to these figures, the limit of liability per tonne decreases from 200,000 SDR (in respect of smaller shipments of up to 5 tonnes) to 1,000 SDR per tonne (in respect of larger shipments of more than 10,000 tonnes).
311.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 319.
312.
See in this respect Basel Secretariat, Implementation Manual (2005), at 15; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 102.
313.
This would, of course, require that this lump sum include all minimum limits of liability as laid down in Annex B, Paragraph 2 of the Basel Protocol.
314.
In contrast, it might not be possible for a State to completely refrain from determining any limits of liability since such a regulation would undermine the general decision of the Basel Protocol to establish a limitation of strict liability. If a State fails to determine limits of liability by domestic law, the limits contained in Annex B to the Protocol will rather directly apply.
315.
Basel Protocol, Article 14(1).
316.
See ibid., Article 17(1).
317.
See also Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 319.
318.
Such provision can be found in Article 9(3) of the HNS Convention, Articles 10(3) and 11 of the CRTD Convention, Article V(3) of the CLC, Article 6(5) of the Mineral Resources Convention, and Articles 10 and 11 et seq. of the LLMC Convention.
319.
Basel Protocol, Article 19.
320.
See Meeson/Kimbell, Admiralty Jurisdiction and Practice (4th ed., 2011), at 314.
321.
See e.g. Long, ‘Protocol on Liability and Compensation’, 11 Colo. J. Int’l Envtl. L. & Pol’y (2000), at 260; Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 186.
322.
Basel Protocol, Article 23. See also Basel Secretariat, Implementation Manual (2005), at 15–16; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 102–103.
323.
Decision V/31 of COP5, 10 December 1999 (Doc. UNEP/CHW.5/29) at 57. See also Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 231; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 102.
324.
Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 231; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 103.
325.
Basel Protocol, Annex B, Paragraph 3.
326.
Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 96, argue that Article 13 of the Basel Protocol only refers to strict liability according to Article 4, while fault-based liability according to Article 5 remains unlimited. However, this opinion contradicts the express wording of this provision and is furthermore not in line with the systematic context of the provision.
327.
Basel Protocol, Article 13(2).
328.
Ibid., Article 13(1).
329.
Ibid., Article 13(3).
330.
The limitation period established by the Basel Protocol (5/10 years) corresponds with the time limits established by other civil liability conventions. Those limits are: 3/6 years in Article VIII of the CLC and in Article 8 of the Bunker Oil Convention; 5 years in Article 3 of the Mineral Recourses Convention; 3/10 years in Article 37 of the HNS Convention and in Article 18 of the CRTD Convention; 3/10 years or 20 years in Article V of the Nuclear Ships Convention; 3/15 years in Article 10 of the Kiev Protocol to the Helsinki Conventions.
331.
In respect of the 1992 CLC, see Kappet, Tankerunfälle und der Ersatz ökologischer Schäden (2006), at 65.
332.
German law, for example, provides that if negotiations take place between the parties to the claim, the limitation period will be suspended until they are considered to have failed. In addition, the claim will become time-barred at the earliest three months after the end of negotiations. See Section 203 of the German Civil Code (Bürgerliches Gesetzbuch—BGB).
333.
Basel Protocol, Article 14(1). The Protocol provides further that if a State is considered to be the liable person pursuant to the rules in Article 4, it may fulfil its obligation to provide insurance or other financial guarantee by a declaration of self-insurance.
334.
Ibid., Article 14(2).
335.
See also Røsæg, ‘Compulsory Maritime Insurance’, 258 SIMPLY (2000), at 181 et seq.
336.
The availability of insurance and other financial guarantees for liabilities in the context of the transboundary movement of hazardous wastes is outlined by Bocken et al., Limitations of Liability and Compulsory Insurance, Report at the Request of the Basel Secretariat, at 30 et seq.
337.
Basel Protocol, Article 14(1).
338.
Ibid., Article 14(4). This provision also states that the insurer has the right to require the liable person to be joined in the proceedings and that the insurer may invoke any defence the liable person would be entitled to invoke.
339.
Ibid., Article 14(5). In this case, however, the Contracting State is required to notify the Depositary of the non-implementation at the time of signature, ratification, or approval of, or accession to the Protocol. The Secretariat is to maintain a record of the Contracting States which have opted against the implementation of a direct action against the insurer.
340.
According to Article 6 of the Basel Convention this can be the notifier, the exporter or the importer.
341.
Basel Protocol, Article 14(3).
342.
See Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 321, who gives the following example: If the importation of hazardous wastes is refused because of insufficient insurance coverage and if during the re-importation of these wastes an incident occurs causing considerable damage, the exporting party is liable on the basis of fault according to Article 5 of the Basel Protocol and, thus, is not entitled to invoke the limitation of liability.
343.
See ‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 518–519; Lawrence, ‘Negotiation of a Protocol on Liability and Compensation’, 7 RECIEL (1998), at 252; Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 194; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 94. See also the references in Footnote 345.
344.
Between the 1st and 6th Session of the Ad Hoc Working Group to Consider and Develop a Draft Protocol, Draft Article 8 was concerned with the establishment of a compensation fund. Draft Article 8 read as follows:
“1. The Parties to this Protocol shall establish an international fund, hereinafter ‘the Fund’, for immediate response measures in an emergency situation and for compensation to the extent that compensation for damage under the civil liability regime is inadequate or not available.
2. The Parties to this Protocol shall adopt as soon as possible, the legal instrument establishing the Fund.”
After the 6th Session, the establishment of a compensation fund was made subject of Draft Article 16, which read:
“1. The Parties to this Protocol commit themselves to the establishment of an international Fund, hereinafter ‘the Fund’, as a means to ensure that compensation will be available at all events and entrust the Fund to be created with the following functions:
1. (a)
  to minimize damage from accidents arising from transboundary movement of hazardous wastes […] or during the disposal of the wastes;
2. (b)
  to provide for compensation when the liable person is or remains unknown, or is or may become financially incapable of meeting his or her obligations;
3. (c)
  to provide for compensation when the liable person is exempted from liability in conformity with Article 4 paragraph 3.
2. The Parties to this Protocol shall endeavour to adopt, as soon as possible, the legal instrument required for the establishment of the Fund. […]”
345.
The Draft Article implementing the compensation fund was finally deleted during the 9th Session of the Ad Hoc Working Group. As to the discussing on this issue during the negotiation process, see Reports of the Ad Hoc Working Group, AHWG Docs. UNEP/CHW.1/WG.1/1/5, at 5–6; UNEP/CHW.1/WG.1/4/2, at 4–5; UNEP/CHW.1/WG.1/5/5, at 6–7; UNEP/CHW.1/WG.1/6/2, at 7; UNEP/CHW.1/WG.1/7/2, at 8; UNEP/CHW.1/WG.1/8/5, at 7; UNEP/CHW.1/WG.1/9/2, at 5–8; UNEP/CHW.1/WG.1/10/2, at 7.
346.
Basel Protocol, Article 15(1).
347.
Ibid., Article 15(2).
348.
The Technical Cooperation Trust Fund had been set up in the wake of Decision I/7 of COP1 (Doc. UNEP/CHW.1/24) in order “to support developing countries and other countries in need of technical assistance in the implementation of the Basel Convention”.
349.
Decision V/32 of COP5 (Doc. UNEP/CHW.5/29).
350.
The obligation to set up an emergency fund is laid down in Article 14(2) of the Basel Convention. The Ad Hoc Working Group, which was established by Decision I/5 of COP1 (Doc. UNEP/CHW.1/24) to develop a Protocol on Liability and Compensation, had been requested by Decision I/14 of COP1 to also consider the elements necessary for the establishment of an emergency fund.
351.
Decision V/32 of COP5, Paragraph 1 (Doc. UNEP/CHW.5/29).
352.
Decision V/32 of COP5, Paragraph 2 (Doc. UNEP/CHW.5/29).
353.
Decision V/32 of COP5, Paragraph 3 (Doc. UNEP/CHW.5/29).
354.
See Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 326.
355.
See in particular the “Interim Guidelines for the Implementation of Decision V/32”, COP6 Doc. UNEP/CHW.6/40, at 62.
356.
Decision V/32 of COP5, Paragraph 4 (Doc. UNEP/CHW.5/29).
357.
The Interim Guidelines for the Implementation of Decision V/32 were approved by Decision VI/14 of COP6 (Doc. UNEP/CHW.6/40) and are annexed to this Decision at 51–72. They are also printed in COP6 Doc. UNEP/CHW.6/10.
358.
Decision IX/22 of COP9 (Doc. UNEP/CHW.9/39). The standard form is annexed to this Decision and is also available at www.basel.int.
359.
Draft Report on the Implementation of Decision V/32 in Responding to Emergency Situations. The Report is available at www.basel.int.
360.
See supra, Sect. “The Factual Perspective: Transboundary Movements of Hazardous Wastes by Sea” in Chap. 1.
361.
See Draft Report on the Implementation of Decision V/32, at 4–5.
362.
According to Decision V/32 of COP5, Paragraph 8 (Doc. UNEP/CHW.5/29), contributions can be earmarked for any of the purposes mentioned in Paragraphs 2–4. They can, furthermore, be earmarked for such purpose in general or for specific activities.
363.
See Draft Report on the Implementation of Decision V/32, at 5.
364.
Long, ‘Protocol on Liability and Compensation’, 11 Colo. J. Int’l Envtl. L. & Pol’y (2000), at 258–259; Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 130; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 94; Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 329; Widawsky, ‘In My Backyard’, 38 Envtl. L. (2008), at 603–604, 619–623.
365.
Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 240; Kummer, The Basel Convention (1995), at 255; Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 329.
366.
Murphy, ‘Prospective Liability Regimes’, 88 AJIL (1994), at 58.
367.
See also Kummer, The Basel Convention (1995), at 253.
368.
Basel Protocol, Article 17(1)(a) to (c).
369.
It follows from the expression “only” in Article 17(1) that Contracting States may not establish jurisdiction over claims raised under the Basel Protocol in constellations not mentioned in Article 17(1) of the Protocol.
370.
The specific consequences resulting from the reciprocity of this rule and the different domestic limits of liability have been outlined supra, Sect. “Practical Implications”.
371.
According to Article 18(3) of the Protocol, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.
372.
Basel Protocol, Article 18(1).
373.
Ibid., Article 18(2).
374.
Ibid., Article 19. As regards the relationship of the provisions of the Basel Protocol to the conflict of laws rules under the Rome II Regulation of the European Union (Regulation (EC) No 864/2007 on the Law Applicable to Non-contractual Obligations) see Basedow, ‘Rome II at Sea’, 74 RabelsZ (2010), at 127–128.
375.
Basel Protocol, Article 20(2). This applies to strict liability imposed by Article 4(1) and (2) of the Basel Protocol.
376.
Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 323. This applies to strict liability imposed by Article 4(3) and (4) of the Basel Protocol.
377.
Basel Protocol, Article 20(1).
378.
Ibid., Article 21(3). As regards the law of the European Union, relevant rules can be found in Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.
379.
Basel Protocol, Article 21(1) and (2).
380.
Ibid., Article 21(1)(a) to (d).
381.
Basel Secretariat, Implementation Manual (2005), at 22.
382.
Basel Protocol, Article 24(1) and (2).
383.
Ibid., Article 24(3).
384.
Ibid., Article 25. The particular tasks assigned to the Secretariat are listed in Paragraph 1. Paragraph 2 clarifies that these functions are to be carried out by the Secretariat to the Basel Convention.
385.
Ibid., Article 10(1).
386.
Ibid., Article 10(2).
387.
Ibid., Article 29(1). As regards the present state of ratifications, see supra, Sect. “Evolution of the Protocol” in Chap. 3.
388.
Ibid., Article 32.
389.
See supra, Sect. “The Factual Perspective: Transboundary Movements of Hazardous Wastes by Sea” in Chap. 1.
390.
It should be mentioned that the exact facts of these cases are not entirely known, so that this excursus can only give a rough overview.
391.
See supra, Sect. “Wastes Excluded from the Scope of the Protocol”.
392.
A Basel Convention Secretariat’s technical assistant mission to Abidjan in Ivory Coast was undertaken in 2006 in accordance with Decision V/32 of COP5 to enlarge the Technical Cooperation Trust Fund. The report of the mission can be found at Doc. UNEP/SBC/BUREAU/8/1/INF/2 and is annexed to Doc. UNEP/CHW/OEWG/6/2.
393.
As regards the different interests involved in hazardous waste movements, see Chap. 2. The economic background is outlined in Chap. 4.
394.
Translation of: “[M]anches Buch wäre viel deutlicher geworden, wenn es nicht so gar deutlich hätte werden sollen”, Kant, Critik der reinen Vernunft (1781), at 19.
395.
The advantages related to this approach are outlined in detail supra, Sect. “The Concept of Combining Strict and Fault-Based Liability”.
396.
A similar approach was later pursued by the 2003 Kiev Protocol to the Helsinki Conventions.
397.
Those interests involve most of all the commercial interests of the waste exporting and waste disposing industries, the interests of the insurance sector, the interests related to the protection of human health and the environment and interests related to the conservation of natural resources. Political camps are formed depending on the respective national waste treatment and management policy of States, which is for the most part independent of the States’ classification into developed or developing countries.
398.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 32.
399.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 32.
400.
Churchill, ‘Facilitating Civil Liability Litigation’, 12 Yb. Int’l Env. L. (2001), at 32.
401.
COP7 Doc. UNEP/CHW.7/INF/11, at 5; COP7 Doc. UNEP/CHW.7/INF/11/Add.1, at 3; OEWG Doc. UNEP/CHW/OEWG/4/INF/4, at 2; COP8 Doc. UNEP/CHW.8/INF/16/Add.1, at 5.
402.
Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 231.
403.
The Regional Workshop Aimed at Promoting Ratification of the Protocol held in Addis Ababa, Ethiopia in August/September 2004 under the aegis of the Basel Secretariat revealed that no participating country had experienced any incident which would have been dealt with under the Protocol, see COP7 Doc. UNEP/CHW.7/INF/11, at 3.
404.
See supra, Sect. “Summary of the Major Achievements and the Major Defects of the Basel Protocol”.
405.
This issue was raised already during the negotiation phase of the Basel Protocol, see ‘No Agreement on Draft Protocol’, 29 Envtl. Pol’y & L. (1999), at 154; ‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 532.
406.
See also ‘No Agreement on Draft Protocol’, 29 Envtl. Pol’y & L. (1999), at 154; ‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Choksi, ‘1999 Protocol on Liability and Compensation’, 28 Ecology L. Q. (2001), at 532; Tsimplis, ‘The 1999 Protocol to the Basel Convention’, 16 IJMCL (2001), at 329.
407.
This concerns, for instance, the rather theoretical possibility of circumventing either the application of the Protocol or its level of protection by means of a bilateral or multilateral agreement that comes within the ambit of Article 3(7) or Article 11 of the Protocol, as well as the alleged failure to address the aftercare of hazardous wastes subsequent to their final disposal. See ‘No Agreement on Draft Protocol’, 29 Envtl. Pol’y & L. (1999), at 154; ‘Compensation and Liability Protocol Adopted’, 30 Envtl. Pol’y & L. (2000), at 44; Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 194–195.
408.
COP7 Doc. UNEP/CHW.7/INF/11, at 5; OEWG Doc. UNEP/CHW/OEWG/4/INF/4, at 2; COP7 Doc. UNEP/CHW/OEWG/5/INF/6, at 4; COP8 Doc. UNEP/CHW.8/INF/16, at 4; COP8 Doc. UNEP/CHW.8/INF/16/Add.1, at 5.
409.
COP7 Doc. UNEP/CHW.7/INF/11, at 4–5; OEWG Doc. UNEP/CHW/OEWG/4/INF/4, at 2; OEWG Doc. UNEP/CHW/OEWG/5/INF/6, at 4; COP8 Doc. UNEP/CHW.8/INF/16, at 4; COP8 Doc. UNEP/CHW.8/INF/16/Add.1, at 4; Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 236.
410.
COP8 Doc. UNEP/CHW.8/INF/16/Add.1, at 5; Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 231; Soares/Vargas, ‘The Basel Liability Protocol’, 12 Yb. Int’l Env. L. (2001), at 85.
411.
For example, Sharma, ‘The Basel Protocol’, 26 Delhi L. Rev. (2004), at 196, asserts that “the treaty offers very little that is positive and much that is highly negative.” And furthermore: “What was adopted at Basel in 1999 […] represents a successful attack on the Basel Convention’s own fundamental principles and a dangerous international precedent”. However, this statement represents a polemic exaggeration which cannot be traced back to a factual basis.
412.
See Daniel, ‘Civil Liability Regimes as a Complement to MEAs’, 12 RECIEL (2003), at 237.
413.
See also Kummer, ‘The Basel Convention: Ten Years On’, 7 RECIEL (1998), at 232.

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Albers, J. (2015). The 1999 Basel Protocol on Liability and Compensation. In: Responsibility and Liability in the Context of Transboundary Movements of Hazardous Wastes by Sea. Hamburg Studies on Maritime Affairs, vol 29. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-43349-2_5

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