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Basel Convention Secretariat

United Nations Environmental Programme___________________________________

Key Elements of the Protocol

Laura Thompson Legal Expert

Secretariat of the Basel Convention

Regional Workshop Aimed at Promoting Ratification of the Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous

Wastes and their Disposal

Warsaw, Poland 18 – 20 January 2006



Main Goal of the Protocol

To provide for a comprehensive regime for liability and for adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes and their disposal including illegal traffic in those wastes (Art. 1)



Scope of application

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 completion of disposal (Art. 3)



Damage

Loss of life or personal injury;

Loss of or damage to property;

Loss of income directly deriving from an economic interest in any use of the environment, incurred as a result of impairment of the environment;

The costs of measures of reinstatement of the impaired environment; and

The costs of preventive measures (Art. 2 (2)(c))



Incident

Any occurrence, or series of occurrences having the same origin that causes damage or creates a grave and imminent threat of causing damage.(Art. 2 (2)(h))



Types of Liability

Strict Liability

Fault-based liability



Strict Liability

The exporter is liable for damage until the disposer has taken possession of the hazardous wastes and other wastes.

Thereafter the disposer is liable for damage. (Art. 4)



Exemptions to the Strict Liability

The result of an act of armed conflict, hostilities, civil war or insurrection;

The result of a natural phenomenon of exceptional, inevitable, unforeseeable and irresistible character;

Wholly the result of compliance with a compulsory measure of a public authority of the State where the damage occurred; or

Wholly the result of the wrongful intentional conduct of a third party, including the person who suffered the damage. (Art. 4 (5))



Fault-based liability

Any person is liable for damage caused or contributed to by his lackof compliance with the provisions implementing the Convention or by his wrongful intentional, reckless or negligent acts or omissions (Art. 5)



Contributory Fault

Compensation may be reduced or disallowed if the person who suffered the damage, or a person for whom he is responsible under the domestic law, by his own fault, has caused or contributed to the damage having regard to all circumstances. (Art. 9)



Combined Cause of the DamageWhere damage is caused by wastes covered by the Protocol and

wastes not covered by the Protocol, a person otherwise liable shall only be liable according to the Protocol in proportion to the contribution made by the wastes covered by the Protocol to the damage (Art. 7 (1))

Where it is not possible to distinguish between the contribution made by wastes covered by the Protocol and wastes not covered by the Protocol, all damage shall be considered to be covered by the Protocol (Art. 7 (3))



Right of Recourse

Any person liable under the Protocol shall be entitled to a right of recourse in accordance with the rules of procedure of the competent court (Art. 8):

Against any other person also liable under the Protocol; and

As expressly provided for in contractual arrangements.



Limits for the Liability

Financial Limits

Time Limits

Geographical Limits



Financial Limits

Financial limits for the strict liability are specified in Annex B to the Protocol, and do not include any interest or costs awarded by the competent court. (Art. 12 (1))

There shall be no financial limit on the fault-based liability. (Art. 12 (2))



Time Limits

10 years from the date of the incident. (Art. 13 (1))

5 years from the date the claimant knew or ought reasonably to have known of the damage. (Art. 13 (2))



Geographical LimitsThe Protocol only applies to damage suffered in an area under the national jurisdiction of a Contracting Party arising from an incident, unless :

The damage is suffered in an area under the national jurisdiction of a State of transit which is not a Contracting Party, provided that such State appears in Annex A and has acceded to a multilateral or regional agreement concerning transboundary movements of hazardous waste which is in force. (Art. 3 (3)(d))

The damage consists of loss of life or personal injury, loss of or damage to property or costs of preventive measures. (Art. 3 (3)(c))

The State of Export is a Contracting Party that has exclude, by way of notification to the Depositary, the application of the Protocol for such incidents which occur in an area under its national jurisdiction, as regards damage in its area of national jurisdiction. (Art. 3 (1))



Insurance and Other Financial Guarantees

Exporters and disposers shall establish and maintain, during the period of the time limit of liability, insurance, bonds or other financial guarantees covering their liability.



Competent Courts

The damage was suffered; or

The incident occurred; or

The defendant has his habitual residence, or has his principal place of business.

Claims for compensation under the Protocol may be brought in the courts of a Contracting Party where either:



Implementation at the National Level

Contracting Parties shall adopt the legislative, regulatory and administrative measures necessary to implement the Protocol and inform the Secretariat of adopted measures.

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Documents

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result of impairment

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