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Attempting an Interim Conclusion: Preconditions for an Effective Legal Regime on Liability and Compensation

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Responsibility and Liability in the Context of Transboundary Movements of Hazardous Wastes by Sea

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

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Abstract

The application of the customary principle of State responsibility to damage resulting from the transboundary movement of hazardous wastes by sea as well as the application of civil liability conventions, whether in force or not, to such movements have been outlined in the previous chapter. As an overall result, it has been ascertained that the current legal situation at the international level regarding liability and compensation for damage resulting from hazardous waste movements is insufficient and unsatisfactory. The question now must be whether the Protocol to the Basel Convention can be regarded as an appropriate and effective solution and what can be done to encourage ratification of this convention. To this end, a first step entails examining in this chapter the basic preconditions for a feasible liability regime.

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Notes

  1. 1.

    Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 240.

  2. 2.

    Rules on dispute settlement are contained in Article 20 of the Basel Convention.

  3. 3.

    Beyerlin/Marauhn, International Environmental Law (2011), at 318; Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 211–212, 238–239; Daniel, ‘Civil Liability Regimes as a Complement to MEAs', 12 RECIEL (2003), at 238; Handl, ‘Compliance Control Mechanisms', 5 Tul. J. Int'l & Comp. L. (1997), at 32–37.

  4. 4.

    For instance, as to the reporting obligations under Article 22 of the OSPAR Convention, which form part of the compliance mechanism of this Convention, see Lagoni, Monitoring Compliance and Enforcement of Compliance, in: Ehlers/Mann-Borgese/Wolfrum (ed.) (2002), at 158–160.

  5. 5.

    Basel Convention, Article 13(3)(c).

  6. 6.

    Shibata, Ensuring Compliance with the Basel Convention, in: Beyerlin/Stoll/Wolfrum (ed.) (2006), at 70–72.

  7. 7.

    Basel Convention, Article 16(1)(b).

  8. 8.

    These measures are specified in Article 15(5) of the Basel Convention and, inter alia, include the possibility of establishing subsidiary bodies.

  9. 9.

    Shibata, Ensuring Compliance with the Basel Convention, in: Beyerlin/Stoll/Wolfrum (ed.) (2006), at 71–72.

  10. 10.

    Basel Convention, Article 19.

  11. 11.

    Kummer, The Basel Convention (1995), at 233; Shibata, Ensuring Compliance with the Basel Convention, in: Beyerlin/Stoll/Wolfrum (ed.) (2006), at 73–74.

  12. 12.

    COP6 Decision VI/12 on the Establishment of a Mechanism for Promoting Implementation and Compliance (Doc. UNEP/CHW.6/40, at 45). This mechanism is based on Article 15(5)(e) of the Convention. The terms of reference (ToR) of this mechanism are annexed to this Decision.

  13. 13.

    ToR, Paragraphs 1–2.

  14. 14.

    Ibid., Paragraphs 9–18. See also Shibata, Ensuring Compliance with the Basel Convention, in: Beyerlin/Stoll/Wolfrum (ed.) (2006), at 80–81.

  15. 15.

    ToR, Paragraphs 19–20. This involves, inter alia, the issuing of a cautionary statement by the COP. See also Shibata, ‘The Basel Compliance Mechanism’, 12 RECIEL (2003), at 193–194.

  16. 16.

    ToR, Paragraph 21. See also Shibata, ‘The Basel Compliance Mechanism', 12 RECIEL (2003), at 194–195.

  17. 17.

    Shibata, Ensuring Compliance with the Basel Convention, in: Beyerlin/Stoll/Wolfrum (ed.) (2006), at 83–84; and with regard to the compliance mechanisms of the Basel Convention in general Kummer, The Basel Convention (1995), at 236–238.

  18. 18.

    Dahm/Delbrück/Wolfrum, Völkerrecht, vol. I/3 (2nd ed., 2002), at 867; Gaines, ‘International Principles for Transnational Environmental Liability', 30 Harv. Int'l L. J. (1989), at 324–328; Kummer, The Basel Convention (1995), at 210–211; Lefeber, Transboundary Environmental Interference (1996), at 1; Wolfrum/Langenfeld/Minnerop, Environmental Liability in International Law (2005), at 496–498.

  19. 19.

    Wolfrum, ‘Means of Ensuring Compliance and Enforcement', 272 RdC (1998), at 77, 79.

  20. 20.

    Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 304–315, 316–318; Boyle, ‘Globalising Environmental Liability', 17 J. Envtl. L. (2005), at 9–12; Daniel, ‘Civil Liability Regimes as a Complement to MEAs', 12 RECIEL (2003), at 240.

  21. 21.

    Supra, at Sect. “Background of the Convention” in Chap. 3.

  22. 22.

    In some cases, however, it is possible to impose stricter rules domestically, provided the international rules are to be considered minimum standards and do not, at the same time, guarantee a certain maximum standard.

  23. 23.

    Boyle, ‘Globalising Environmental Liability', 17 J. Envtl. L. (2005), at 6–8; Daniel, ‘Civil Liability Regimes as a Complement to MEAs', 12 RECIEL (2003), at 238.

  24. 24.

    Boyle, ‘Globalising Environmental Liability', 17 J. Envtl. L. (2005), at 8.

  25. 25.

    Beyerlin/Marauhn, International Environmental Law (2011), at 380; Boyle, ‘Globalising Environmental Liability', 17 J. Envtl. L. (2005), at 8; Kummer, The Basel Convention (1995), at 224–225; see also Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 303.

  26. 26.

    A possible solution could be to establish a “secondary burden of proof”, according to which in a first step the claimant State has to prove that the damage was most likely caused by the respondent State, which in turn has to produce evidence of compliance with pertinent rules by disclosing its internal documents, findings and data records.

  27. 27.

    See also Birnie/Boyle/Redgwell, International Law and the Environment (3rd ed., 2009), at 431.

  28. 28.

    The contrary view is held by Bergkamp, ‘Proposals for International Environmental Liability', 8 Eur. Envtl. L. Rev. (1999), at 326–327.

  29. 29.

    See supra, Sect. “State Liability” in Chap. 3.

  30. 30.

    For an analysis of the relationship between the Basel Convention and the GATT see Alam, ‘Trade Restrictions Pursuant to MEAs’, 41 J.W.T. (2007), at 1005–1010; Friedrich-Ebert-Stiftung (ed.), Zehn Jahre Basler Übereinkommen (1999), at 41–43; Krueger, International Trade and the Basel Convention (1999), at 64–81; Wirth, ‘Trade Implications of the Basel Ban', 7 RECIEL (1998), at 237 et seq. As to the relationship to the EC rules on the free movement of goods see Frenz, ‘Grenzüberschreitende Abfallverbringungen und gemeinschaftliche Warenverkehrsfreiheit', 20 UPR (2000), at 210 et seq.

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    Jan Albers

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Albers, J. (2015). Attempting an Interim Conclusion: Preconditions for an Effective Legal Regime 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_4

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