space Press Releases, News Stories

by Daniel Pruzin, The Bureau of National Affairs, Inc.

The United States has signed the convention but is not yet a full treaty partner. It is thus not bound by its provisions, as are the full partners.

Iwona Rummel-Bulska, executive secretary for the Basel Convention, said a special meeting of the legal experts is likely to be organized in September to complete the drafting work. "We're on the right path," she told BNA. "The agreement is there."

The goal of the protocol is to establish a means for assigning liability for incidents of chemical and other hazardous waste spills, whether accidental or otherwise, which involve cross-border shipments of waste. The mandate for drafting the protocol is established under Article 12 of the Basel Convention, which calls on parties to "cooperate with a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation" for damage arising from movements of waste covered under the convention.

Areas of Agreement

The experts have secured agreement on a number of key provisions in the draft protocol, including the type of damage to be compensated when a spill occurs and the time period under which claims for compensation can be made. The negotiators are also expected to agree that liability for waste shipments should extend from the point at which waste is loaded for transport until disposal is completed at the final destination point and that liability shall be covered by insurance, bonds, or other financial guarantees.

Differences remain, however, on how to assign strict liability for waste shipments, whether to set a financial cap on liability claims, and whether to establish an international trust fund to cover cleanup costs and compensation for waste spills where the liable party is unknown or unable to cover the costs.

Other outstanding differences include whether the protocol should cover waste shipments to countries that are not party to the protocol and whether the protocol should apply to shipments involving waste placed on national lists (so-called Article 1.1(b) waste) as well as waste specifically listed under the Basel Convention.

Criticism of U.S., Canada, Others

Environmental groups attending the April 19-23 meeting accused the United States, Australia, Canada, and New Zealand of seeking to severely limit the protocol's scope of application and of resisting calls from developing countries for the establishment of the international trust fund.

They also accused these countries of seeking an exemption for existing international waste trade agreements such as the Organization for Economic Cooperation and Development's "red- amber-green" waste accord which could undermine the effectiveness of the protocol.

Although the United States is not a full party to the convention, it has been taking an active part in the experts' meetings as an observer.

"We're not particularly happy with the protocol as it now stands," said Waldemar Braul, legal counsel with the Canadian-based West Coast Environmental Law Association as well as the Basel Action Network, a group of nongovernmental organizations working on issues related to the toxic waste trade.

"There's much more security regarding claims on waste shipments with this protocol," he admitted, adding that provisions such as the insurance requirement for liable parties would discourage questionable operators from entering into the global waste trade.

Industry Concerns

Industry representatives who attended the meeting also voiced concerns about the protocol. Scott Horne, managing director of government relations with the Institute of Scrap Recycling Industries in Washington, D.C., said his industry feared a repeat of the superfund experience in the United States and getting caught up in an international liability scheme for their waste, which is essentially nonhazardous.

"An alternative for assigning liability which would have been more rational is operational control liability, where there is more incentive to take due care during shipment," he said. "We hope that whatever comes out in the end will apply liability in a fair manner to the person who actually has control over the waste."

A representative of the insurance industry who asked not to be identified said that insurers were critical of the inclusion of both strict liability and fault-based liability provisions in the draft text as well as the long time period allowed for claiming compensation from waste spills.

The inclusion of both strict and fault-based liability schemes "means the number of potentially liable parties increases, which is not good," said the industry representative. "If insurers have to cover the liability of a whole range of people, their capacity gets used up and the amount of insurance available is much lower."

But, he added, "If liability is channeled to one party, insurers have more certainty, and there's more resources available."