The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal Salient Points (Insert Topic/s): PERSON 1-A 1) General Overview of Basel Convention a. Brief History (adopted in response to a public outcry following the discovery in Africa and other parts of the developing world of deposits of toxic wastes imported from abroad). b. Objective (to protect human health and the environment against the adverse effects of hazardous wastes) c. Scope (covers a wide range of wastes defined as “hazardous wastes” based on their origin and/or composition and their characteristics, as well as two types of wastes defined as “other wastes” - household waste and incinerator ash) d. Principal Aims ([1] the reduction of hazardous waste generation and the promotion of environmentally sound management of hazardous wastes, wherever the place of disposal; [2] the restriction of transboundary movements of hazardous wastes except where it is perceived to be in accordance with the principles of environmentally sound management; and [3] a regulatory system applying to cases where transboundary movements are permissible. e. Signatories a.k.a Parties to the Basel Convention (if necessary) 2) Wastes (including National Definition) | Management | Transboundary Movement | Disposal | Environmentally Sound Management of HW/OW 3) Entities Involved (to simplify, we may use State-Importer, State-Exporter and State of Transit – in layman’s term; different from the definition provided in the Convention) or you may use the definition provided in the Convention for: a. State of Import b. State of Export c. State of Transit d. Carrier e. Generator PERSON 1-B 4) General Obligation On HA&OW Origin: Signatories/Parties ensure 1. That the generation of HW&OW is reduced to a minimum (by taking into account Social, Technological and Economic Aspect) 2. The availability of disposal facilities (for the ESM of HW&OW) which shall be located within it - Where are adequate disposal facilities for HW&OW 3. To prevent pollution due to HW&OW (if pollution occurs, to minimize its consequences for HH&E) On Transboundary Movement: General Rule: Signatories or Parties may permit transboundary movement of HW&OW from Party of Export to Party of Import, provided that 1. the TM is compatible with ESM of HW&OW in order to protect HH&E. 2. the person (under its National Jurisdiction) transporting or disposing the HW&OW are authorized or allowed to perform the transportation/disposal. 3. the HW&OW are packaged, labelled and transported in conformity with generally accepted and recognized international rules and standards 4. proper documentation takes place from point of origin to point of destination. 5. the Party of Export does not have the capacity, facility or disposal site of the wastes in an environmentally sound and efficient manner 6. the Wastes are used as raw materials for recycling or recovery industries in the Party of Import EXCEPTIONS: 1. Signatories/Parties who notify their decision that they prohibit import of HW/OW (meaning Other Parties are prohibited to export HW/OW to such Parties which have prohibited the import) 2. Export of HW&OW to a Non-Party or Import of HW&OW from a Non-Party 3. Export of HW&OW for disposal within the area of south of 60◦ South latitude (this area pertains to the vast area of Antarctica). 4. All TM of wastes characterized as Hazardous are prohibited from State-Members of OECD1, EC and Liechtenstein to States not members of said group. You may insert here countries which prohibit TM of HW&OW 1 Organisation for Economic Co-operation and Development PERSON 2-A 5) Another important thing in this Convention is the Designation or Establishment of One or More Competent Authorities and One Focal Point in case of State of Transit (you may define these terminologies again). Competent Authorities are responsible for receiving notification of a TM between Parties and any other information related thereto. (Competent Authorities are ALSO responsible for RESPONDING to such notification). Note that: 1. All notification must be made in writing. From State of Export (Notifier) to State of Import. Notice contains the declarations and information as required by the provisions of the Convention (entities involved – exporter, generator, disposer, carrier; commencement date of the TM, means of transport, general description of the wastes, among others). From State of Import to Notifier. Notice contains consent2 or denying permission for the movement3. From State of Transit to Notifier. Notice contains consent or denying permission for the movement. 2. No commencement of TM until the State of Export received the written confirmation both from State of Import and State of Transit. 3. The process of TM as discussed shall apply mutatis mutandis to transboundary movement of hazardous wastes or other wastes from a Party through a State or States which are not Parties. 4. When TM cannot be completed and no alternative arrangement can be made to dispose such wastes in ESM, the State of Export shall ensure that the wastes in question are taken back within 90 days from the date of such notice. With or without conditions (such as a requirement that Any transboundary movement of hazardous wastes or other wastes shall be covered by insurance, bond or other guarantee 3 Or requesting additional information 2 PERSON 2-B 6) The Convention also discussed about ILLEGAL TRAFFIC. Illegal traffic is any TM of HW&OW i. Without notice ii. Without consent iii. With consent but acquired through falsification, misrepresentation or fraud iv. That does not conform in material way with the documents v. That results in DELIBERATE DISPOSAL (e.g. dumping) of HW&OW in contravention of the Convention and of the general principles of International Law Note a. In case of illegal traffic, responsible party (whether exporter, importer, State of Import, State of Export) shall take back the wastes and ensure that such wastes are disposed in an ESM within 30 days from the time the Illegal Traffic has come to the attention of the Party in good faith. PERSON 3 7) Liability and Compensation for Damage (tuloy ko bukas) a. TM are not always without accident. And in cases of accident which likely to present risks/danger to HH&E in other States, these States are immediately informed. b. To date, we have the Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal. i. This protocol provides for a comprehensive regime for liability and for adequate and prompt compensation for damage resulting from the TM of HW&OW and their disposal including illegal traffic in those wastes. ii. When we talk about damage for the purpose of this Convention, we talk about anything related to the TM of HW&OW from [1] injury to loss of life; [2] loss of property held other than the person liable; [3] loss of income because of the impairment of the environment; [4] cost to reinstate the impaired environment; (AGAIN, any damage resulting from the TM of HW&OW) iii. Under the protocol, the Disposer (means any person to whom HW&OW are shipped and who carries out the disposal of such wastes) is liable the moment he has control over (or possesses) the wastes. Otherwise, liability falls to the State of Import, State of Export, exporter or importer as the case may be. As a rule, then, the Entity who has control over the HW&OW is liable to pay for the compensation for damage resulting from such TM of HW&OW. 1. State of Import is liable the moment the HW&OW are within the control (or in the possession of the Disposer). 2. State of Export is liable before the HW&OW are within the control of the Disposer. iv. Liability is only up to the extent of the damage is caused by the HW&OW covered by this Convention. (Then, no liability if the damage is caused by wastes not covered by the Convention; However, this is without prejudice to some other international law covering such wastes). v. However, no liability shall attach to the accountable person if he proves that the damage was 1. The result of force majeure4 or act of God5 or 2. The result of wrongful intentional conduct of a third person 3. The result of compliance with a compulsory measure of a public authority of the State where the damage occurred Note that: the Compensation may be reduced or disallowed when the entity who suffered the damage contributed to the damage. vi. The liable person has a right of recourse against any other person liable under the Protocol and the contractual arrangement. This is in accordance with the rules of procedure of the competent court. vii. The provision of any bilateral, multilateral or regional arrangement entered into by concerned parties relevant to liability and compensation for damage resulting from TM of HW&OW is preferred over the Protocol. viii. Claims for compensation must be brought within 5 years from the date of knowledge of the incident but within 10 years from the date of the incident. Otherwise, not admissible. 4 5 both naturally occurring events and events due to human intervention. only natural occurring events 8) Other Matters a. The Secretariat (from the word itself – it is equivalent to a Secretary) who [1] arranges meetings; [2] prepares and transmits reportorial matters between or among Parties, as well as; [3] coordinates with relevant international bodies; has the information (or the masterlists) of all AUTHORIZED sites and facilities (of parties) (for the disposal of HW&OW). b. Settlement of the dispute between Parties as to the interpretation or application of, or compliance with, this Convention or any protocol thereto is through negotiation or any other peaceful means of their own choice (otherwise, it shall be submitted to the International Court of Justice or to arbitration) c. Co-operation among Parties are encouraged to improve and achieve ESM of HW&OW. d. The Convention does not in any way affect the Sovereignty of States over their territorial sea, their exclusive economic zones and their continental shelves in accordance with international law. e. The Convention does not prohibit Bilateral, Multilateral or Regional Arrangements regarding TM of HW&OW among Parties and Non-Parties. (Provided, the arrangements are not contrary to the provision of the Convention) i. Having said that… Parties may also propose amendment/s to the Convention including the Protocol. Of course, this should be backed up by relevant scientific and technical support. (consensus, otherwise, 3/4) f. Who are the agencies involved in the TM of HW&OW Copied from http://www.basel.int/TheConvention/Overview/tabid/1271/Default.aspx The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989 by the Conference of Plenipotentiaries in Basel, Switzerland, in response to a public outcry following the discovery, in the 1980s, in Africa and other parts of the developing world of deposits of toxic wastes imported from abroad. The Convention entered into force in 1992. Objective: To protect human health and the environment against the adverse effects of hazardous wastes. − What are these hazardous wastes? Scope of Application: covers a wide range of wastes defined as “hazardous wastes” based on their origin and/or composition and their characteristics, as well as two types of wastes defined as “other wastes” - household waste and incinerator ash. Principal Aims: ▪ the reduction of hazardous waste generation and the promotion of environmentally sound management of hazardous wastes, wherever the place of disposal; − requiring States to observe the fundamental principles of environmentally sound waste management (article 4) ▪ the restriction of transboundary movements of hazardous wastes except where it is perceived to be in accordance with the principles of environmentally sound management; and − hazardous wastes may not be exported i. to Antarctica ii. to a State not party to the Basel Convention, or iii. to a party having banned the import of hazardous wastes (article 4) − Parties may, however, enter into bilateral or multilateral agreements on hazardous waste management with other parties or with non-parties, provided that such agreements are “no less environmentally sound” than the Basel Convention (article 11). − In all cases where transboundary movement is not, in principle, prohibited, it may take place only if it represents an environmentally sound solution, if the principles of environmentally sound management and non-discrimination are observed and if it is carried out in accordance with the Convention’s regulatory system. ▪ a regulatory system applying to cases where transboundary movements are permissible. − Based on the concept of prior informed consent, it requires that, before an export may take place, the authorities of the State of export notify the authorities of the prospective States of import and transit, providing them with detailed information on the intended movement. − The movement may only proceed if and when all States concerned have given their written consent (articles 6 and 7). − The Basel Convention also provides for cooperation between parties, ranging from exchange of information on issues relevant to the implementation of the Convention to technical assistance, particularly to developing countries (articles 10 and 13). − The Secretariat is required to facilitate and support this cooperation, acting as a clearing-house (article 16). − In the event of a transboundary movement of hazardous wastes having been carried out illegally, i.e. in contravention of the provisions of articles 6 and 7, or cannot be completed as foreseen, the Convention attributes responsibility to one or more of the States involved, and imposes the duty to ensure safe disposal, either by re-import into the State of generation or otherwise (articles 8 and 9). − The Convention also provides for the establishment of regional or sub-regional centres for training and technology transfers regarding the management of hazardous wastes and other wastes and the minimization of their generation to cater to the specific needs of different regions and subregions (article 14). SUMMARY (taken from CONVENTION’s PREAMBLE): When we talked about the Basel Convention, we are dealing with HAZARDOUS WASTES and OTHER WASTES, as well as their TRANSBOUNDERY MOVEMENT and their DISPOSAL. Of course, these wastes pose risk of damage to human health and the environment. In fact, transboundary movement and disposal of such waste are GROWING INTERNATIONAL CONCERN. As such, there is a NEED for STRINGENT CONTROL. And the most effective way of protecting (our health and the environment) from the dangers posed by such wastes is THE REDUCTION of their GENERATION to a MINIMUM in terms of QUANTITY and/or HAZARD POTENTIAL. E.g. development and implementation of environmentally sound low-waste technologies, recycling options, good house-keeping and management systems MANAGING these WASTES is CONSISTENT with the PROTECTION of HUMAN HEALTH and the ENVIRONMENT. WHO has the primary responsibility to manage such wastes? The STATE who has the SOVEREIGN RIGHT to ban the entry or disposal of FOREIGN HAZARDOUS WASTES and OTHER WASTES in its TERRITORY. CONSISTENT with such BAN, STATES are convinced that such WASTES be disposed of in the STATE where they were generated. Of course, the disposal is compatible with ENVIRONMENTALLY SOUND and EFFICIENT MANAGEMENT. When TRANSBOUNDARY MOVEMENT is UNAVOIDABLE from STATE-Origin to any other State, such Transboundary Movement is permitted ONLY when conducted under CONDITIONS which do not endanger human health and the environment. And on such Transboundary Movement, the STATES, having CONTROL, should take measures for the proper EXCHANGE OF INFORMATION. OUTLINE Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal Preamble Article 1. Scope of the Convention Article 2. Definitions Article 3. National Definitions of Hazardous Wastes Article 4. General Obligations Article 4A. General Obligations Article 5. Designation of Competent Authorities and Focal Point Article 6. Transboundary Movement between Parties Article 7. Transboundary Movement from a Party through States which are not Parties Article 8. Duty to Re-import Article 9. Illegal Traffic Article 10. International Co-Operation Article 11. Bilateral, Multilateral and Regional Agreement Article 12. Consultations on Liability Article 13. Transmission of Information Article 14. Financial Aspect Article 15. Conference of the Parties Article 16. Secretariat Article 17. Amendment of the Convention Article 18. Adoption and Amendment of Annexes Article 19. Verification Article 20. Settlement of Dispute Article 21. Signature Article 22. Ratification, Acceptance, Formal Confirmation or Approval Article 23. Accession Article 24. Right to Vote Article 25. Entry into Force Article 26. Reservations and Declarations Article 27. Withdrawal Article 28. Depository Article 29. Authentic Texts Annex I. Categories of Wastes to be Controlled Waste Streams Waste having as constituents Annex II. Categories of Wastes Requiring Special Consideration Annex III. List of Hazardous Characteristics UN Class Code Characteristics Test Annex IV. Disposal Operations A. Operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternative uses B. Operations which may lead to resource recovery, recycling, reclamation, direct reuse or alternative uses Annex V A. Information to be provided on Notification Annex V B. Information to be provided on the Movement Document Annex VI. Arbitration Annex VII. Parties and other States which are members of OECD, EC, Liechtenstein Annex VIII [List A - Wastes contained in this Annex are characterized as hazardous under Article 1, paragraph (a) of this Convention, and their Designation on this Annex does not preclude the use of Annex III to demonstrate that a waste is not hazardous] Annex IX. [List B – Wastes contained in the Annex will not be wastes covered by Article 1, paragraph 1 (a), of this Convention unless they contain Annex I material to an extent causing them to exhibit an Annex III characteristic] Protocol on Liability and Compensation for Damage Resulting From Transboundary Movements of Hazardous Wastes and Their Disposal The Parties to the Protocol Article 1. Objective Article 2. Definitions Article 3. Scope of Application Article 4. Strict Liability Article 5. Fault-Based Liability Article 6. Preventive Measures Article 7. Combined Cause of the Damage Article 8. Right of Recourse Article 9. Contributory Fault Article 10. Implementation Article 11. Conflicts with Other Liability and Compensation Agreements Article 12. Financial Limits. Article 13. Time Limit of Liability Article 14. Insurance and Other Financial Guarantees Article 15. Financial Mechanism Article 16. State Responsibility Article 17. Competent Courts Article 18. Related Actions. Article 19. Applicable Law Article 20. Relation between the Protocol and the Law of the Competent court Article 21. Mutual Recognition and Enforcement of Judgments Article 22. Relationship of the Protocol with the Basel Convention Article 23. Amendment of Annex B Article 24. Meeting of the Parties Article 25. Secretariat Article 26. Signature Article 27. Ratification, Acceptance, Formal Confirmation or Approval Article 28. Accession Article 29. Entry into Force Article 30. Reservations and Declarations Article 31. Withdrawal Article 32. Depositary Article 33. Authentic Texts Annex A. List of States of Transit as referred in Article 3, subparagraph 3 (d) Annex B. Financial Limits