Ban Report on the 8th Session of the Ad Hoc Working Group of Legal and Technical Experts to Consider and Develop a Draft Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal
Geneva, 19-23 April 1999
Report by Waldemar Braul for the Basel Action Network (BAN) and West Coast Environmental Law Association of Vancouver, Canada
Summary
The negotiations were attended by delegates from a majority of the Basel Parties. A sense of urgency dominated the negotiations, as many countries were anxious to reach a final version of the protocol to present to the next Conference of the Parties (COP 5), scheduled for Basel, Switzerland in December 1999. That Conference will mark the 10th anniversary of the Convention.
Greenpeace International represented by Kevin Stairs and myself for BAN and West Coast Environmental Law were the only environmental NGO representatives at the negotiations. Several industry groups were represented, including the International Chamber of Commerce.
The delegates made modest improvements to a draft which was, in my view, highly deficient. Kevin Stairs and I had modest success in convincing the delegates to depart from their entrenched positions on the two vital issues of ‘aftercare’ and ‘generator/transporter liability’. The delegates made marginal improvements to text which addresses other important issues, including Article 11 exemptions, disposal from recovery operations and the international compensation fund. I discuss these issues below in Parts II to VI. The draft protocol remains a seriously flawed document and warrants serious criticism at COP 5.
I. Background to the Liability Protocol Negotiations
The Basel Parties have been negotiating a liability protocol for almost ten years. The draft liability protocol which was the subject of the Geneva negotiations provides weak remedies to victims of damage caused by Basel Convention "hazardous waste". Earlier drafts included alternative principles which gave victims a broader basis for obtaining compensation. I was informed by several country representatives that the U.S., Canada, and several other developed countries succeeded in watering down victim remedies in the most recent negotiations (1998), when Greenpeace International, who had been active in the negotiations, did not attend.
At the outset of the negotiations, I distributed a 12-page brief (also on website) setting out our concerns with the draft protocol. The brief generally argued that the current draft fails to:
a) provide victims with effective remedies;
b) pass liability to those parties ultimately responsible for the problems arising from the generation and transboundary movements of hazardous waste;
c) serve as an incentive to reduce the generation of hazardous waste.
The brief further argued that the current liability principles would perversely encourage the shipments of hazardous wastes to developing countries and that the subject draft is premised on the unethical notion that victims in developing countries should not enjoy remedies found in developed countries.
The brief was read widely by the delegates, and many delegates expressed support for our arguments. I made some 15 representations on the floor, and generally emphasized the points of our brief.
The negotiations were focused on several fundamental issues, as discussed below. At the end of the week, however, the negotiations were not completed. It is uncertain as yet exactly when and where the negotiations will resume.
II. The failure to attach liability to the ‘aftercare’ of disposed hazardous waste
The draft protocol fails to address one of the most critical problems associated with Basel waste issues – gradual and long-term soil and groundwater contamination attributable to irresponsible disposal and recovery operations. The impacts of long-term leachate migration are probably more significant and costly to remedy than the sudden spills of hazardous waste (a problem which arguably is dealt with better under the draft protocol).
Our representations emphasized that leachate contamination occurring after so-called "completion of disposal" would not attract liability. "Completion of disposal" is the end point of the protocol’s scope under Article 3.1. The term "disposal" means any operation in Annex IV of the Convention. For example, one of these operations is D1 "Deposit into or onto land". Accordingly, the disposal is completed at the moment that the Basel waste is deposited at the landfill. Illogically, the notion of disposal does not extend to securing and monitoring the landfill over the long-term. The same analysis applies to many other operations described in Annex IV. We urged the Parties to adopt the concept of "aftercare" of disposal sites, as was considered in previous versions. We noted that earlier versions expressly provided, as an alternative, that liability extends to incidents arising during aftercare. This alternative was, without justification, dropped from the current draft.
Our representations on the after-care issue were not heeded. It was clear that the delegates did not have instructions to consider extending the protocol to aftercare as this had been previously ruled out.
III. The failure to include generators and transporters in the liability net
Our position during the negotiations was that the net of "liable parties" (of Article 4) should include the parties which are involved in the generation, transport and disposal of Basel hazardous wastes. Alternative 1 of Article 4 assigns liability to "notifiers" and "disposers". Neither definition ensures that generators or even transporters will be caught in the liability net. Generators and transporters would, if faced with the liability rules reflected in the current draft, have an incentive to take measures to ensure that they are not are not "notifiers", i.e, they will shift the liability onto "exporters". We were equally concerned that the operational control test (Alternative 2) will not capture critical parties. Previous versions of the protocol properly included generators, transporters and disposers in the net of "liable parties".
This limited scope of Article 4 attracted little discussion during the week; the negotiations were preoccupied other significant issues. Even if the negotiations had turned to consider the scope of "liable parties", my impression (based on discussions with delegates) is that they did not have instructions to broaden the scope.
IV. The use of Article 11 agreements as an exemption to the Liability Protocol
Article 3.3(f) of the draft protocol proposed to exclude the Protocol in shipments between Parties which have entered agreements under Article 11 of the Basel Convention. Our brief argued that entering Article 11 agreements does not constitute a justifiable basis for an exemption. At most, Article 11 exhorts Parties to apply the principle of "no less environmentally sound". The current Convention merely defines "environmentally sound management" to mean "taking all practicable steps … against the adverse effects which may result from such waste management". The Convention does not specify these "practicable steps". Nor does the Convention set out formal criteria for entering Article 11 agreements – an agreement arguably could be as simple as an exchange of letters between Parties. The Article 11 exemption would therefore be viewed as an attractive means by which rogue operators to avoid protocol victim compensation.
These arguments were taken seriously by the delegates, and there was substantial debate devoted to ensuring that safeguards govern the use of Article 11 agreements. Although negotiations over the Article 11 exemption issue has not been concluded, there was substantial if not unanimous support for the view that the exemption could apply only if the applicable Article 11 agreement includes liability principles at least as substantial as those found in the liability protocol. The exact wording needs to be determined in future negotiations, but for the moment our key concern – that Article 11 agreements should not be used broadly to exempt the protocol – has been alleviated.
V. Application of the liability protocol to disposal of residual waste from recovery operations
At the outset of the negotiations, I stated our concern that the scope of liability would, illogically, end on completion of a recovery operation as described in Annex VIB. I pointed out that the protocol draft was silent on possible incidents attributable to residues from recovery operations and urged the Parties to remedy this gap. I noted that previous versions of the protocol contemplated that "completion of disposal extends to the disposal of the residues".
Our concern was addressed by the delegates as a matter of principle and the pending negotiations are intended to find the appropriate statutory text. I stress, however, that this is a minor concession because the broader after-care problem has not been addressed (as discussed above in II).
VI. The international fund problem
Our position is that an international fund should be established to supplement compensation for victims of incidents arising from the transboundary movement of hazardous wastes. I argued that the supplementary fund is necessary because there will be limited insurance liability available for "liable parties".
Historically, the international fund has not received much attention in the negotiations. Many of the fundamental elements such as who pays, who can apply for funds, and who determines pay-outs have not been addressed in any detail. During the recent negotiations, the Parties essentially decided to study the fund. This is hardly a progressive step, but does indicate that there is at least a basis for putting the fund’s operational elements into place.
VII. Other comments
Certain delegates – notably those from U.S., Canada and Australia - appeared to be most active in casting doubt on the policy of granting substantial remedies to victims of pollution. These and other delegates (mostly from developed countries) showed little if any support for the need for a liability protocol as part of the larger Basel Convention regime. You should expect, at most, restrained and highly qualified support for a liability protocol which gives effective remedies to victims of pollution.
A common view in Geneva is that the liability protocol will be the main issue at COP 5, (especially since the Basel Ban confrontation seems to have quieted for the moment) It was clear that the negotiators did not have a mandate to develop a broad basis for victim remedies. It was also clear that the delegates recognized that this liability protocol might serve as a precedent for other U.N. Conventions and undoubtedly decided to take a cautious approach.
The challenge for environmental NGO’s such as Greenpeace, BAN and West Coast Environmental Law is to graphically highlight the shortcomings of a Liability Protocol presented for adoption at COP 5. One useful contribution to the debate would be a survey of victim remedies now available in developed countries and a comparison of these remedies with the draft Liability Protocol. Such a survey and comparison would enable the Parties (especially developing countries) to assess their positions on the fundamental policy issues such as aftercare and generator/transporter liability. It is disquieting that such a survey and comparison have not been undertaken by the Convention.
My preliminary observations of remedies found in several developed countries leads me to the conclusion that the protocol’s current weak liability principles reflect a double standard: the underlying premise of the current draft is that victim damages are considered less significant than those in developed countries. This is not only an unethical result, but will also, perversely, cause developed countries to ship their hazardous waste to cheaper developing countries, in contradiction to the goals of the Basel Convention. For these reasons, my personal conclusion is that the current liability protocol should not be adopted. A bad protocol is probably worse than no protocol at all.
Waldemar Braul
WALDEMAR BRAUL*
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