space Press Releases, News Stories

by Daniel Pruzin, International Environmental Reporter, BNA

The agreement, adopted after nearly seven years of on-again, off-again negotiations, will be attached as a protocol to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (INER Reference File 1, 21:3701).

The agreement was the highlight of the fifth Conference of the Parties to the convention, which met in Basel, Switzerland, December 6-10 to mark the convention's 10th anniversary. (See related articles in this issue.)

"This is the first time it has been accepted [in an environment convention] that there is a specific responsibility and a [corresponding] liability, and that is really a huge step forward," United Nations Environment Program Executive Director Klaus To`pfer said. The UNEP chief earlier noted that about 3 million tons of toxic and hazardous waste are shipped across national borders each year.

Application of Protocol

Negotiations on the protocol were mandated under Article 12 of the Basel Convention, which called 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."

The new protocol will apply 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 national jurisdiction of a state of export."

Liability for the shipment will continue until the point at which disposal of the waste has been completed but will not cover so-called after-care incidences such as leaks or seepage at waste storage sites.

Strict and Fault-Based Liability Provisions

Two key provisions under the protocol are Articles 4 and 5 setting out strict liability and fault-based liability for waste shipments. Under the strict liability provisions, persons who notify waste shipments in accordance with Article 6 of the Basel Convention (which requires contracting states or their waste generators/exporters to inform concerned governments about proposed cross-border hazardous waste shipments) will be held liable for damage resulting from an accident until the disposer has taken possession of the waste, at which point the disposer will be held liable.

If the exporting state is the notifier or if no notification has taken place, the exporter--but not the generator--will be held liable for damage until the disposer has taken possession of the waste.

The fault-based liability provisions state that any person who causes or contributes to an accident by ignoring Basel Convention requirements or through wrongful intentional, reckless, or negligent acts will be held liable for damages resulting from the spill.

Minimum Compensation Levels

While the protocol does not set out any financial limits for fault-based liability, it does set out minimum levels of compensation for strict liability. Although financial limits for strict liability are to be determined by national law, liability for notifiers or exporters for any one incident must be no less that 1 million SDR (Special Drawings Rights, an international currency) (US$1.38 million) for shipments up to 5 tons of hazardous waste, 2 million SDR for shipments up to 25 tons, 4 million SDR for shipments up to 50 tons, 6 million SDR for shipments up to 1,000 tons, and 10 million SDR for shipments up to 10,000 tons.

Beyond these amounts, an additional minimum of 1,000 SDR will be fixed for each additional ton of waste up to a maximum of 30 million SDR (US$41.4 million) for any one incident.

For disposers of waste, the minimum limit of liability will be fixed at 2 million SDR (US$2.76 million) for any one incident. These figures are to be reviewed on a regular basis, taking into account potential risks to the environment posed by waste movements and the nature, quantity, and hazardous properties of the wastes.

U.S. Concerns

Daniel Fantozzi, director of the U.S. State Department's Office of Environmental Policy, said the current minimum limits are a problem for the United States because of the potential impact on trade in nondangerous recyclable wastes. The United States has signed the Basel Convention, but the agreement has yet to be ratified by Congress; nevertheless, U.S. officials have been participating in the liability protocol negotiations as observers.

Recyclable waste "can be in bulk shipments with very low hazardous components, but because of those components they would be caught by the agreement," he noted.

"It might be very unreasonable to have the kinds of levels of liability floors stipulated in the agreement because of a really low level of risk," he said. "And if we were to find that that kind of trade would be unreasonably choked off, we would certainly move to have the liability provisions changed or, failing that, I think it would be a very serious question whether we would ratify."

NGOs Say Protocol Sets 'Dangerous Precedent.'

While negotiators congratulated themselves on the agreement, critics charged the protocol will do little to stem the flow of cross-border waste shipments and may even encourage the international waste trade.

"The liability protocol is the sad result of 10 years of effort by the industrial lobby to reduce the original intention to a text with as many holes and exclusions as Swiss cheese," charged Kevin Stairs, political adviser with Greenpeace International. "The protocol is a dangerous precedent and is unlikely to ever, provide adequate relief for victims of toxic waste or serve as an incentive to avoid hazardous waste trafficking."

"There's all sorts of incentives under the protocol to export hazardous waste," added Roger Kluck, legal advisor to the Basel Action Network (BAN), a Seattle-based nongovernmental organization that has been following the negotiations closely. "It's paradoxical that these negotiations have resulted in a mechanism which will be used to export waste and avoid liability."

Kluck charged that the exclusion of waste generators from the strict liability provisions will act as an incentive to waste exports by encouraging firms to hand over their waste to export brokers or other "notifiers" who would assume liability for the shipments but perhaps lack the financial means to pay out any claims for damage. The exclusion could eventually undermine U.S. superfund legislation, he added.

"Under superfund provisions, a waste generator in the United States who disposes his waste in a landfill which is not run properly is jointly liable for any damage," Kluck said. "So a generator is always on the hook, which encourages a firm to ensure that the waste is being handled correctly. All this is being undercut by the option to terminate liability under the protocol, which acts as a significant and real incentive to export."

Exemptions

Criticisms of the protocol also focus on the exemptions. Under Article 3, paragraph 6, the protocol will not apply to damage resulting from a spill involving cross-border movements of waste pursuant to a bilateral, multilateral, or regional agreement covered under Article 11 of the Basel Convention.

The agreement must have its own liability and compensation regime that "fully meets or exceeds" the aims of the protocol, and the damage must take place within the national jurisdiction of parties to the agreement.

This provision has been pushed by advanced industrialized countries mainly with the goal of excluding their own arrangements such as the Organization for Economic Cooperation and Development's "red-amber-green" waste shipment accord.

"The vast majority of hazardous waste shipments now taking place occur within the OECD, so most waste shipments won't be covered under the protocol," Kluck said. "Developing countries don't want this [exemption]; they want the protocol to act as a minimum global norm."

Philippe Roch, head of the Swiss Federal Office for the Environment, Forests, and Landscape and president of the COP-5 meeting, said the protocol was mainly designed to address an anticipated shift in waste generation from the industrialized world to the developing world.

"It is clear that OECD countries do not need this protocol because they already have their own system," Roch said. The protocol is "made especially for developing countries ... in some years the main problems of toxic waste will occur in developing countries, not in the OECD, and that is exactly why we need this protocol."

The U.S.'s Fantozzi said that developing countries now realize they are increasingly on the exporting end of the waste trade both with OECD countries as well as among themselves. "To that extent the protocol can have a very positive effect even if OECD countries aren't involved at all," he maintained. "The whole idea that hazardous waste is traded from the OECD to developing countries is just wrong."

Other exemptions industrialized countries managed to secure from the liability protocol include hazardous waste placed on national lists (as opposed to waste specifically listed under the Basel Convention). Several OECD countries opposed developing country efforts to include national list waste within the protocol's scope, arguing that it would be difficult to verify whether items placed on these lists are actually hazardous to the environment.

In addition, the protocol will not apply to other bilateral, multilateral, or regional agreements covering liability and compensation if the agreements were in force or were opened for signature at the time of the protocol's completion, even if the agreements are amended afterwards. This exemption is specifically designed for the International Maritime Organization's International Convention on Liability and Compensation for Damage in connection to the Carriage of Hazardous and Noxious Substances, which was opened for signature in May 1996.

Global Fund

One of the issues which held up final agreement on the protocol concerned developing country demands that a global fund be set up to provide compensation for cleanup of waste spills where the liable party is unknown or is financially unable to cover the costs. A number of industrialized countries have argued that the establishment of such a fund is premature and that negotiators should return to the proposal after first examining whether enough incidences of such a sort occur to justify a global fund.

Negotiators eventually agreed on wording for the creation of a vague "financing mechanism" under which parties may consider "additional and supplementary measures aimed at ensuring adequate and prompt compensation ... using existing mechanisms."

African countries argued through the final day of the COP-5 meeting for stronger wording that would make participation in the financing mechanism obligatory for wealthier countries, but in the end they gave in on the promise that their demand would be reconsidered in the near future and that assistance would be provided to African countries in order to help them put in place accident prevention measures.

"In the spirit of compromise, Africa will adopt the draft protocol with the understanding that we are in an interim period during which parties will review the financial mechanism to be established,"

Zambian Environment Minister Benjamin Mwila said on behalf of the African group of countries shortly before COP-5 president Roch banged the gavel adopting the protocol.

The protocol will enter into force after it has been ratified by 20 countries.