Secretariat of the Basel Convention United Nations Environment Programme 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 Igarashi Associate Legal Officer, Secretariat of the Basel Convention Addis Ababa, Ethiopia 30 August-2 September 2004

Secretariat of the Basel Convention United Nations Environment Programme Scope of application 1. Type of damage 2. Stages of a transboundary movement 3. Geographical location

Secretariat of the Basel Convention United Nations Environment Programme Damage 1. Loss of life or personal injury 2. Loss of or damage to property other than property held by the person liable in accordance with the present Protocol 3. Loss of income directly deriving from an economic interest in any use of the environment incurred as a result of impairment of the environment 4. The costs of measures of reinstatement of the impaired environment 5. The costs of preventive measures

Secretariat of the Basel Convention United Nations Environment Programme Stages of a transboundary movement covered by the Protocol 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

Secretariat of the Basel Convention United Nations Environment Programme Geographical location The 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 damage: 1. Loss of life or personal injury 2. Loss of or damage to property other than property held by the person who is liable 3. Costs of preventive measures

Secretariat of the Basel Convention United Nations Environment Programme Two types of liability Strict Liability (Article 4) Fault-based Liability (Article 5)

Secretariat of the Basel Convention United Nations Environment Programme 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.

Secretariat of the Basel Convention United Nations Environment Programme Fault-based Liability Any 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.

Secretariat of the Basel Convention United Nations Environment Programme Combined cause of the damage Where 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.

Secretariat of the Basel Convention United Nations Environment Programme 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

Secretariat of the Basel Convention United Nations Environment Programme Financial Limits Minimum financial limits for strict liability are specified in Annex B to the Protocol.

Secretariat of the Basel Convention United Nations Environment Programme Time limit of Liability years from the date of the incident 2. 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

Secretariat of the Basel Convention United Nations Environment Programme Competent courts Claims may be brought in the courts of a State where either: 1. the damage was suffered; 2. the incident occurred; 3. the defendant has his habitual residence, or has his principal place of business.

Secretariat of the Basel Convention United Nations Environment Programme Insurance and other financial guarantees Exporters 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.

Secretariat of the Basel Convention United Nations Environment Programme Implementation The Contracting Parties must adopt the legislative, regulatory and administrative measures necessary to implement the Protocol.