© 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_6
6. Concluding Summary
The results of the legal research conducted in respect of the different aspects of the issue of liability and compensation for damage resulting from the transboundary movement of hazardous wastes by sea have been outlined in detail at the end of the respective chapters. At this point, therefore, only a compilation of the major results shall be given and a recommendation shall be made as to the further steps which should be taken.
After having outlined the economic background and the commercial and political interests involved in the transboundary movement of hazardous wastes in the Chap. 2, the following Chap. 3 was concerned with the examination of the rules and provisions of current international law applying de lege lata to certain aspects of liability related to hazardous waste movements. This analysis resulted in the conclusion that the rules and provisions of international law, which are currently valid and in force, cannot serve as a basis for a comprehensive and sufficient legal framework governing liability and compensation with regard to damage resulting in the context of hazardous waste movements. In general, there are two concepts of international responsibility and liability that need to be distinguished. These include, first, the international responsibility and liability of States and, second, the approach of imposing civil liabilities on private persons adopted by international uniform law. Regarding the international responsibility and liability of States, it has been shown that a customary principle of State liability for lawful but injurious acts is currently not acknowledged by international law, whereas the principle of State responsibility for internationally wrongful acts represents a valid principle of international law. The essential requirement for the imposition of State responsibility is the determination of a breach of an international obligation by the State. A relevant primary obligation may basically arise from any international or regional convention or agreement. Therefore, a comprehensive investigation into the existing international legal regimes has been conducted, which revealed that only in a very limited number of constellations may a State be held internationally responsible for the causation of damage in the context of transboundary movements of hazardous wastes by sea. This finding is basically due to the fact that most waste shipments are initiated and conducted by private persons, for which a State cannot be held “directly” responsible. A State may be “indirectly” responsible for the conduct of private persons only if it infringes an international obligation of its own with regard to the conduct of private persons. This may be the case, for example, if the State fails to comply with the general obligation to implement the respective PIC, ESM or other procedural requirements of international conventions into its national laws, or if it fails to subsequently regulate, control and enforce compliance with these rules. In this context, relevant rules arise from the Basel Convention and its regional counterparts, as well as from the MARPOL 73/78 Convention, the London Dumping Convention and the Stockholm POPs Convention. Since, however, most of these general obligations are conceived as rules of due diligence, the imposition of State responsibility, furthermore, requires that the State knew or ought to know about the actual circumstances of the case and the illegal conduct of the private person resulting in damage. Moreover, the particular damage for which compensation is sought must be considered as having been caused by the internationally wrongful act of the State. A further major disadvantage of resorting to the principle of State responsibility is that compensation based on this principle may only be sought by States, which are, however, reluctant to bring environmental claims before the international courts due to diplomatic and political reasons. Consequently, the principle of State responsibility cannot be seen as a suitable approach to ensure the compensation of victims of pollution resulting from the incidents involving hazardous wastes. A similar outcome applies to the analysis of the existing and nascent international conventions establishing a uniform regime of civil liability. In this context, above all the 1996/2012 HNS Convention must be mentioned, which is, however, not yet in force and only covers certain aspects of hazardous waste movements, failing to apply to any land leg of transport and the final stage of disposal. As a general result, it must be summarised, therefore, that the present state of international law as regards liability and compensation in the context of hazardous waste movements is fragmentary and unsatisfactory.