Regional Workshop aimed at Addressing Aspects and Obstacles to the Process of Ratification of or Accession to the Basel Protocol on Liability and Compensation (18-20 January, Warsaw, Poland)

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Regional
Workshop aimed at Addressing Aspects and
Obstacles to the Process of Ratification of or
Accession to the Basel Protocol on Liability and
Compensation (18-20 January, Warsaw, Poland)

• Civil Liability-BOSNIA AND HERZEGOVINA
  (Presentation Ms. Azra Basic, Federal Ministry
  of Physical Planning and Environment)

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The legislative in connection to
the Liability and Compensation

• The Basel Convention is adopted in
  2001(estabilished Focal Point,established three
  Competent Authority, export hazardous waste from
  country).
• Law on waste management (Official Gazette of
  Federation of Bosnia and Herzegovina, No.
  33/03), entered into force on 19 July 2003.
• Law on waste management (Official Gazette of
  Republic Srpska, No.53/02), entered into force
  on 2002.
• Decree on financial guarantee for transboundary
  movement of hazardous waste (Official Gazette
  of Federation of Bosnia and Herzegovina, No. 41
  /05).
• Framework Law on environmental protection-chapter
  XIV-Civil liability for Environmental Damage

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The framework Law on waste management, Article
5.In the case of accident,who is responsible?
Who should pay?

• The holder of the waste pays (i.e. Polluter pays
  principle)
• Producer responsibility
• Polluter pays principle means that the producer
  or holder of waste shall cover the costs of
  prevention, of the recovery and disposal of
  waste, including aftercare, monitoring and also
  that the producer is financially responsible for
  preventive and restorative measures, in case he
  is causing or being likely to cause damage to the
  environment
• -"holder" means the producer of the waste or the
  natural or legal person who is in possession of
  it (waste management act, Art.4)
• The producer and holder of wastes shall collect,
  take care of recovery and/or disposal of wastes
  produced by his activity or possessed by him
  (waste management act, Art.24)

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What types of damage are covered in accordance
with the Laws?

• In accordance to framework Law on waste
  management, article 54 covered damage to the
  environment (it is responsibility to the entity
  level to undertake direct waste management
  tasks-first of all emergency actions or cleaning
  up actions-in case the responsible person may not
  be identified and the interest of the protect
  human health, flora and fauna and the environment
  require direct and quick action.
• the transport of waste mast be covered with
  financial guarantee in accordance with the Decree
  on financial guarantee for transboundary movement
  of hazardous waste
• In accordance to the framework Law on
  environmental protection, Article 104. the
  operator of an activity dangerous to the
  environment is liable for the damage caused
  through this activity to persons, property or the
  environment, irrespective of fault.
• If a dangerous activity causes damage to the
  environment, then the operator who is liable also
  has to compensate for the costs of the assessment
  of the damage and the costs for reasonable
  measures of reinstatement. The compensation
  requirement also encompasses the costs of
  reasonable measures to prevent or mitigate damage
  to the environment as well as the costs of damage
  to persons and property that were caused by such
  measures (framework Law on Environmental
  Protection, Article 109.)

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Which is the relevant agency for the enforcement
of liability?

• The institutions of environmental matters
• The national courts
• The nature of the liability (strict/fault based)?
• Current legislation (Decree on Financial
  Guarantees for Transboundary Movement of
  Hazardous Waste, Official Gazette of Federation
  of Bosnia and Herzegovina, No. 41 /05).
• If damage to the environment cannot be restored
  through reasonable measures, then the responsible
  person is liable for the compensation of the
  value of the destroyed environmental assets,
  Article 109.-Law on environmental protection.

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-The time limits to the liability-The minimum or
maximum financial limits to the liability

• The time limits is 12 mounts in accordance with
  the Decree on financial guarantee for
  transbounary movement of hazardous waste
  (Official Gazette of Federation of Bosnia and
  Herzegovina, No.41/05).
• The minimum financial limit always corresponds to
  the minimum cost of waste treatment in an
  environmentally friendly way, including the
  associated transport, or return of waste to the
  original owner.
• The compensation amount orientates itself upon
  the economic and ecological value of the
  environmental assets. If the value cannot be
  determined or cannot be determined with
  reasonable economic effort, then the court should
  determine the amount of damages according to the
  principle of equity, applying this principle the
  necessary costs for the restoration, the risk of
  the activity to the environment, the extent of
  individual fault, and the benefits gained from
  the harmful activity are to be considered
  (framework Low on environmental protection,
  Article 110. )

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The there any existing insurance coverage in
respect of any or all incidents and/or damage
contemplated by the Protocol?

• The federal and cantonal environmental protection
  funds shall be established by the Law on
  environmental fund (Official Gazette of
  Federation of Bosnia and Herzegovina, No. 33
  /03).
• The Federation environmental protection fund is
  established for- the promotion of the
  development of an environmentally safe economic
  structure the prevention of environmental
  damage the remediation of environmental damage
  which has occurred the conservation of nature
  protection areas the motivation and promotion of
  the most efficient techniques and alternatives
  the improvement of public environmental
  awareness, and environmental research.
• Loss of life, loss or damage to property,cost of
  measures of reinstatement, the cost of preventive
  measures, loss of income directly deriving from
  an economic interest in any use of environment-in
  accordance with Protocol.
• Damage to property, cost of measures of
  reinstatement, financial security for operator of
  an dangerous activities- in accordance with BiH
  Laws.

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Have you identified any gaps in your liability
legislation that could lead to cases where
damage caused by accidents remain uncovered?

• The current legislation primarily specifies that
  after damage has occurred, appropriate
  compensation must be provided, but does not focus
  on preventive approach.

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Thank you for your attention!