Regional Workshop Aimed at Promoting Ratification of the Basel Protocol on Liability and Compensatio

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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 Key elements of the
Protocol Maiko IgarashiAssociate Legal
Officer, Secretariat of the Basel
Convention Addis Ababa, Ethiopia

30 August-2 September
2004

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Scope of application1.     Typ
e of damage 2.    Stages of a transboundary
movement
3.
Geographical location
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Damage1. Loss of
life or personal injury2. Loss of or damage to
property other than property held by the person
liable in accordance with the present Protocol3.
Loss of income directly deriving from an
economic interest in any use of the environment
incurred as a result of impairment of the
environment4. The costs of measures of
reinstatement of the impaired environment5. The
costs of preventive measures
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Stages of a transboundary movement covered by the
ProtocolThe 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
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Geographical locationThe
Protocol applies to damage suffered in an area
under the national jurisdiction of a Party. In
the case of areas beyond any national
jurisdiction, the Protocol applies only for the
following types of damage1.   Loss of life or
personal injury2.   Loss of or damage to
property other than property held by the person
who is liable3.   Costs of preventive measures
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Two types of liabilityStrict Liability
(Article 4)Fault-based Liability (Article 5)
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Strict LiabilityThe
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.
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Fault-based LiabilityAny
person is liable for damage caused or contributed
to by his lack of compliance with the provision
implementing the Convention or by his wrongful
intentional, reckless or negligent acts or
omissions.
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Combined cause of the damageWhere
the damage is caused by a combination of wastes
that are covered and not covered by the Protocol,
the person who would be liable in accordance with
the Protocol, will only be liable in proportion
to the contribution made to the damage by the
wastes covered by the Protocol.
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Right of recourse

• Any person liable under the Protocol is
  entitled to a right of recourse
• Against any other person also liable under
  the Protocol and
• As expressly provided for in contractual
  arrangements

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Financial LimitsMinimum
financial limits for strict liability are
specified in Annex B to the Protocol.
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Time limit of Liability1. 10
years from the date of the incident2. 5 years
from the date the claimant knew or ought
reasonably to have known of the damage but must
not exceed 10 years from the date of the incident
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Competent courtsClaims may be
brought in the courts of a State where
either1.  the damage was suffered2.  the
incident occurred3.  the defendant has his
habitual residence, or has his principal
place of business.
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Insurance and other financial
guaranteesExporters and disposers have to
establish and maintain during the period of the
time limit of liability, insurance, bonds or
other financial guarantees covering their
liability.
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ImplementationThe
Contracting Parties must adopt the legislative,
regulatory and administrative measures necessary
to implement the Protocol.