Attempting an Interim Conclusion: Preconditions for an Effective Legal Regime on Liability and Compensation
© Springer-Verlag Berlin Heidelberg 2015Jan AlbersResponsibility and Liability in the Context of Transboundary Movements of Hazardous Wastes by SeaHamburg Studies on Maritime AffairsInternational Max Planck Research School for Maritime Affairs at the University of Hamburg2910.1007/978-3-662-43349-2_4
4. Attempting an Interim Conclusion: Preconditions for an Effective Legal Regime on Liability and Compensation
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.
A. Necessity of a Regime of Liability and Compensation
I. Insufficiency of Non-financially Oriented Treaty Compliance Mechanisms
One could argue that there is no actual need for additional rules on liability and compensation if the objectives of damage compensation and treaty compliance can be achieved by other mechanisms that are either already existing or that can be established without considerable efforts. Such alternative mechanisms could be seen in the treaty compliance mechanisms available in respect of the Basel Convention.
The practical benefit of an international convention, particularly in the field of international environmental law, depends on whether the Contracting States act in compliance with the respective substantive obligations. If non-compliance with the treaty obligations remains without consequences for the responsible State, the convention may eventually end up as a “sleeping treaty”.1 Traditional mechanisms to induce treaty compliance involve confrontational and mostly bilateral methods and strategies, such as countermeasures, the invocation of State responsibility and procedures of dispute settlement.2 These confrontational measures, however, have proven inadequate in the end, particularly as regards environmental matters. This is due to the fact that, in a large number of cases, primarily interests of private parties are involved, for which diplomatic and intergovernmental channels do not seem to provide an adequate forum. In addition, States are reluctant to adopt drastic and unfriendly measures for the sake of environmental concerns and rather prefer avoiding any adverse effects on their relations with other States. The more effective approach to ensure compliance, hence, is seen in pursuing preventive and co-operative mechanisms that take effect prior to the wrongful conduct in the form of collective supervision.3
One of those co-operative treaty compliance mechanisms is seen in reporting systems established under the respective conventions.4 Accordingly, the Parties of the Basel Convention are under the obligation to transmit annual reports, inter alia, on the status of implementation of the Convention through the Secretariat to the Conference of the Parties (COP).5 By means of this requirement the actual status of implementation of the respective States is made transparent to the other Parties and the treaty organs, which are thus in a position to evaluate the measures taken by each State. The reporting State, in turn, is urged to undertake the required implementation in order to avoid having to give a public justification for the non-compliance.6 This basic reporting obligation of the Basel Convention is accompanied by the function of the Secretariat to prepare and transmit reports based on the information received,7 as well as by the mandate of the COP to continuously review and evaluate the effective implementation of the Convention, including the taking of appropriate measures to support this effort.8 Despite the availability of these legal means, in practice the reporting system of the Basel Convention has been poorly utilised by the COP and the Secretariat for the purpose of achieving treaty compliance.9 Furthermore, this mechanism aims at ensuring compliance via the implementation requirements rather than the compliance of the acting private parties vis-à-vis the substantive obligations of the Basel Convention. Therefore, it cannot be considered an effective instrument for directly preventing illegal trade and ensuring compensation.
Another compliance feature of the Basel Convention is the right of every Party to request verification in case there is reason to believe that another Party has acted in breach of its obligations under the Convention.10 This provision, however, suffers from the substantial weakness that it neither empowers the Secretariat to undertake its own investigations nor imposes any other specific legal consequences.11 Thus, this feature can similarly not be considered an effective treaty compliance mechanism.
The Basel Convention, however, provides for another specific mechanism to ensure treaty compliance. In 2002, at COP6, the Mechanism for Promoting Implementation and Compliance was established as a subsidiary device of the COP.12 The objectives of this mechanism are to facilitate, promote, monitor and aim to secure the implementation of and compliance with the Convention’s obligations; additionally, the mechanism is designed to be non-confrontational, transparent and preventive in nature.13 Under the Mechanism, a Committee is established that is assigned with different functions. First, it is assigned with a “specific submission” task according to which the Committee, pursuant to a submission made by the Secretariat or a Party that failed to resolve the matter through consultations, determines whether an act of non-compliance actually exists. The non-confrontational nature of this function is evidenced by the fact that the submitting State is only allowed to participate in the proceedings if this is permitted by the accused State.14 The measures that may be taken by the Committee are non-binding and include the provision of the purportedly non-complying Party with advice, recommendations and information. If these measures are not considered sufficient, the Committee may present the issue to the COP to consider further action.15 Finally, the Committee is also assigned with an auxiliary “general review” task, according to which the Committee, as directed by the COP, reviews general issues of compliance and implementation under the Basel Convention.16 The Basel Compliance Mechanism, despite its rather modern approach of resorting to co-operative instead of confrontational measures, has been criticised, in the end, exactly because of these specific features. It is argued that the Committee lacks sufficient authority and means to conduct investigations and is not vested with sufficient powers to impose and enforce effective measures which might ensure compliance. The success of this Mechanism, therefore, largely depends on the good-will of the Party allegedly in non-compliance.17 It could be encountered that exactly the absence of confrontational means enhances the incentive of States to find an amicable solution by means of the Basel Compliance Mechanism in order to avoid further confrontational measures. However, the same effect could be achieved by bilateral consultations. It must be concluded, therefore, that the Basel Compliance Mechanism cannot replace the existing, general mechanisms of treaty compliance, but may only function as a supplementary device.
In summary, it can be concluded that there are traditional confrontational as well as rather modern co-operative compliance mechanisms available in respect of the Basel Convention. These mechanisms may provide certain reasonable approaches to encourage treaty compliance. However, these mechanisms fail to ensure compensation of the victims of pollution, and, most importantly, they are addressed to States Parties only and therefore do not have any direct effect on the private parties involved in the shipment of hazardous wastes. The objectives of liability and compensation, thus, cannot be entirely achieved through the existing mechanisms of treaty compliance.
II. Liability Rules as a Remedy for Environmental Damage
Rules on liability and compensation serve three main objectives: The first is a preventive one. The threat of incurring liabilities functions as a deterrent and creates an incentive to prevent damage; thus, liability aims at promoting compliance with the respective substantive rules. The second objective concerns the repressive function of liability and aims at denouncing the wrongfulness of the conduct. In doing so, liability contributes to an ex post enforcement of the substantive obligations, as well as to legal certainty and predictability. The third objective, finally, covers the compensatory aspect of liability and aims at shifting the injurious consequences from the injured party to the wrongdoer or the source of harm. It, thus, intends to restore the status quo ante as far as possible.18
In the absence of an effective international legal regime on civil liability, private parties involved in transboundary hazardous waste movements, from an economic point of view, have no direct interest in acting in conformity with the procedural obligations of the Basel Convention. In order to avoid the restrictive regulations and the incurrence of further costs for preventive measures, the legal status quo