© 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_5
5. The 1999 Basel Protocol on Liability and Compensation
In this chapter the provisions of the 1999 Protocol to the Basel Convention on Liability and Compensation for Damage Resulting from the Transboundary Movement of Hazardous Wastes and their Disposal (Basel Protocol or Protocol) shall be addressed and analysed in more detail. For this purpose, also a comparison between the provisions of the Basel Protocol and the respective provisions of comparable civil liability regimes is provided at the relevant points.
A. The Regulatory Content of the Basel Protocol
I. Scope of Application
The scope of application of the Basel Protocol is determined in Article 3. This Article represents a very detailed and sophisticated provision that consists of 1,095 words, which makes up roughly 20 % of all words of the Convention.1
As a general rule it can be said that the Basel Protocol applies to damage due to an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal, including illegal traffic.2 Article 3 regulates in a detailed fashion the question to which movements, incidents and damage the Basel Protocol applies, and it moreover defines the temporal and geographical scope of application. Finally, it also prescribes under which conditions the States Parties may exclude the application of the Basel Protocol.
1. Transboundary Movements of Hazardous Wastes and Other Wastes
The Basel Protocol applies to transboundary movements of hazardous wastes and other wastes and their disposal, including illegal traffic.
(a) Wastes Subject to the Basel Protocol
(aa) Hazardous Wastes
The term “hazardous wastes and other wastes” is not defined independently within the Basel Protocol, but with reference to the Basel Convention.3 According to this, “wastes” are defined as substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by provisions of national law.4 Wastes are considered to be “hazardous wastes” in two cases:
(1) Autonomous Definition
The first case concerns wastes that come under the autonomous definition of hazardous wastes established within the Basel Convention framework. According to this, wastes are considered hazardous if they fall under any category contained in Annex I of the Basel Convention, unless they do not possess any of the characteristics contained in Annex III of the Convention.5 Annex I of the Basel Convention enumerates specific waste streams and constituents of wastes that are deemed to be generally or potentially hazardous, whereas Annex III contains a detailed list of particular hazardous characteristics. The definition of hazardous wastes, thus, requires two elements cumulatively. First, the waste in question must be attributed to a category of wastes that is considered to be generally or potentially hazardous, and, second, the waste must demonstrate specific hazardous characteristics in the individual case. The present inquiry does not allow for an in-depth analysis of the particular waste streams, constituents and hazardous characteristics of hazardous wastes covered by the Basel Convention. However, as considered in comparison with the relevant definitions found in other conventions and regulations, some brief conclusions can be drawn.
The definitions of hazardous wastes contained in other conventions and regulations dealing in particular with the transboundary movement of hazardous wastes resemble to a large extent the definition of the Basel Convention. This applies to the Bamako and Waigani Conventions,6 to the Izmir Protocol to the Barcelona Convention and the Tehran Protocol to the Kuwait Convention,7 as well as to the OECD and EU regulations.8 The only substantial difference concerns the fact that some conventions and regulations, as in the case of the Basel Convention, require that both elements of the definition simultaneously apply to the wastes in question.9 Other conventions or regulations, by contrast, only require one or the other of the two elements,10 or focus only on whether they display certain hazardous characteristics.11 The practical implication of these differences, however, is limited as they only have consequence in respect of atypical wastes, i.e. those which although generally considered hazardous are not considered as such in the individual case or those wastes which are generally non-hazardous display hazardous characteristics in the particular case.12
In contrast, the definitions of hazardous and noxious substances (HNS) as used by the HNS Convention and the definition of dangerous goods as used by the CRTD Convention differ considerably from the pattern of the Basel Convention, even disregarding the fact that the Basel Convention applies exclusively to waste substances and items. Both the HNS Convention and the CRTD Convention largely refer to substances and articles enumerated or referred to in existing conventions and regulations, like in Annexes I and II of MARPOL 73/78, in the IMDG and ADR Codes or in other IMO regulations. Due to the fact that such enumerated lists of covered substances may contain gaps, the definition of hazardous wastes based on abstract categories as used by the Basel Convention is more comprehensive. However, the HNS and CRTD Conventions also apply to substances, materials and articles that are not covered by the combined definition of hazardous wastes of the Basel Convention. To this extent, the scope of substances covered by the Basel Convention’s definition is narrower.
(2) National Definitions
Wastes are also considered hazardous under the Basel Convention if they are defined as, or are considered to be, hazardous wastes pursuant to the domestic legislation of the State of export, import or transit.13 In order for national definitions to be considered valid under the Basel Convention they must be reported by the respective State to the Secretariat of the Basel Convention.14 As of today, 24 States have notified the Secretariat with regard to wastes that are defined as hazardous pursuant to their domestic legislation.15 However, as regards the Basel Protocol—as opposed to the Basel Convention—further requirements must be fulfilled in order that the provisions apply to wastes considered hazardous pursuant to the national definition of Contracting States. This includes, first, that the national definition of hazardous wastes has been notified to the Basel Secretariat, particularly by the State of export or import, or both. By contrast, notification made only by a State of transit is not sufficient. The second requirement is that the wastes must in particular also be defined as hazardous (and so duly notified) by that State of export, import or transit in whose area of national jurisdiction the damage actually occurs.16
(bb) “Other Wastes”
The Basel Protocol also applies to “other wastes”. This term is defined by the Basel Convention as wastes belonging to any of the categories contained in Annex II of the Convention. This annex comprises exclusively household wastes and residues arising from the incineration of household wastes.17 Thus, despite the fact that the term “other wastes” suggests an understanding of “non-hazardous” wastes, the real meaning is more comparable to “hazardous-like” wastes.
Household wastes and the residual ash from their incineration cannot per se be considered hazardous according to the definition of “hazardous wastes” under the Convention. The inclusion of household wastes, therefore, represents a considerable expansion of the scope of the Basel Convention and, thus, has been criticised as eliminating a clear-cut distinction between covered hazardous and non-covered non-hazardous wastes.18 Nonetheless, household wastes, and particularly the residual ash from their incineration, contain as a general rule considerable amounts of matter such as heavy metals and other harmful substances. Therefore, they can also be considered generally or potentially hazardous. In view of this and also in the aftermath of the then recent M/V “Khian Sea” case, the States represented at the 5th Session of the Conference of Plenipotentiaries to adopt the Basel Convention introduced the definition of “other wastes” into the convention text so as to include household wastes and the residual ash from their incineration.19
Although it seems reasonable to include household wastes in the scope of the Convention, it must also be stressed that the choice of the term “other wastes” is unfortunate. The use of this term is the result of a compromise that was reached during the drafting process in response to the controversy of whether household wastes should be covered by the Convention or not. In the end, it was decided to include such wastes in the scope of the Convention but to abstain from defining them as hazardous.20 Thus, this second category of wastes covered by the Convention was introduced. However, since there is no difference in the treatment of both kinds of wastes throughout the Basel Convention and Protocol, the distinction between hazardous and “other” wastes is purely terminological.21 This artificial, terminological distinction gives much occasion for confusion and suggests coverage of the Convention which is far beyond the actual scope of application. But most of all, there is no need to refrain from defining household wastes as being hazardous under the Convention. An enumeration of household wastes and their incineration residues in Annex I of the Convention would allow for an even more differentiated classification. In that case household wastes would only be considered hazardous under the Convention if, in addition, they displayed in each individual case at least one of the hazardous characteristics laid down in Annex III of the Convention.
Other conventions relevant to the transboundary movement of hazardous wastes follow the example of the Basel Convention and include household wastes and their incineration residuals in their scope of application.22 However, only one convention introduced a similar distinction between hazardous and “other” wastes,23 which further shows that there is no need to introduce a second category of “other wastes”.
For the sake of simplicity, the term “hazardous wastes” shall in the following discussion be used to cover both hazardous and “other” wastes as defined by the Basel Convention.
(cc) Wastes Excluded from the Scope of the Protocol
The Basel Protocol does not apply to radioactive wastes, provided they are subject to other international control systems applying specifically to radioactive materials.24 This means that in the end most radioactive wastes will be excluded from the scope of the Basel Convention, since most radioactive wastes are subject to the relevant conventions and regulations of the IAEA.25 This applies in the first instance to radioactive wastes falling under the 1979 Physical Protection Convention.26 Other non-binding instruments include the 2009 IAEA Regulations for the Safe Transport of Radioactive Material27 and the 1990 Code of Practice on the International Transboundary Movement of Radioactive Waste.28 The Basel Convention, however, remains applicable to radioactive wastes which do not fall under the IAEA instruments. This particularly applies where the level of radioactivity remains below the limits of the IAEA instruments.29
In addition to the exclusion of radioactive wastes, the Basel Convention also excludes wastes which derive from the normal operation of a ship, provided that their discharge is covered by another international instrument.30 This exemption mainly applies to wastes falling under the MARPOL 73/78 Convention.31 The wording “normal operation of a ship” has been criticised as being ambiguous and potentially including routine cleaning operations on board a ship, and excluding such operations has not been seen as one of the aims of the Basel Convention.32 With regard to hazardous wastes generated on board a ship, the Secretariat of the Basel Convention, in the wake of the M/V “Probo Koala” case, has been concerned with the question under which conditions the movement of such wastes on board a ship to another country falls within the scope of the Basel Convention. The Secretariat of the Basel Convention, in a revised legal analysis prepared in October 2011, found that wastes generated on board a ship which conform to the definition of hazardous wastes under the Basel Convention basically fall within the scope of the Basel Convention and may basically come under the definition of “transboundary movement”.33 The Secretariat, furthermore, found that “specific industrial processes or activities on board a ship (such as refining oil products […]) might be considered distinct from the ‘normal operation of ships’”,34 so that those wastes do not fall under the exclusion clause for wastes that come under the MARPOL 73/78 Convention. However, in the particular case of the M/V “Probo Koala” the Secretariat was, due to a lack of information, unable to establish that the hazardous wastes causing pollution damage were distinct from wastes which derive from the normal operation of a ship.35
Similar exclusions of radioactive wastes and wastes covered by the MARPOL 73/78 Convention can also be found in other relevant conventions and regulations.36
(b) Transboundary Movements and Other Activities Covered by the Protocol
The Basel Protocol applies to the transboundary movement and the disposal of hazardous wastes, including illegal traffic.37
(aa) Transboundary Movement
The definition of the term “transboundary movement” requires that at least two States are involved in the particular movement. The starting point of the transport must be within an area under the national jurisdiction of one State, and it must either end in or cross an area under the national jurisdiction of another State. As long as this requirement is fulfilled, also those transports are covered which end in or cross an area not under the national jurisdiction of a State.38
The term “area under the national jurisdiction of a State” is defined as any land, marine area or airspace within which a State exercises administrative and regulatory responsibility in accordance with international law in regard to the protection of human health or the environment.39 It is clear that this term does not only cover any land territory, but also extends to the territorial sea of a coastal State.40 In contrast, it is questionable whether this definition furthermore comprises the EEZ of a coastal State. Practical importance is attached to this question, however, only in cases where the hazardous wastes are generated on board a vessel anchoring in the EEZ of a coastal State prior to the commencement of the transboundary movement. Since regular movements of hazardous wastes by sea are conducted at least from port to port, the territorial sea of the coastal State would be part of the movement anyway. If, however, the wastes are generated on board a vessel anchoring in the EEZ, then it should first be noted that, different to the term “State of transit”, the term “transboundary movement” is not restricted to movements “through” a State, but rather explicitly includes further marine areas within which a State exercises administrative and regulatory responsibility in regard to the protection of the environment.41 Such marine must be seen in the EEZ, since in the EEZ the coastal State exercises limited jurisdiction with regard to the prevention, reduction and control of pollution from vessels.42 The fact that this jurisdiction is limited to certain measures as provided for by the UNCLOS does not mean that the EEZ is not covered by this definition. This definition, firstly, does not require the competence of the coastal State to take specific measures. And, secondly, it can well be argued that according to the provisions of the UNCLOS the coastal State is given the competence to adopt laws and regulations as well as to enforce these rules in regard to the generation of hazardous wastes on board a vessel anchoring in its EEZ. Unlike the mere transit of a ship carrying hazardous wastes through the EEZ of a coastal State the generation of hazardous wastes on board a vessel anchoring in the EEZ may in general pose a significant threat for the marine environment.43 It should be concluded, therefore, that the term “area under the national jurisdiction of a State” also covers the EEZ of a coastal State.44
The Basel Protocol, finally, does not apply to transports of hazardous wastes from the high seas to a State, or to transports from a State directly to the high seas for disposal.45 It should also be stressed that the Protocol applies only to transboundary movements that have commenced after the entry into force of the Protocol for the respective Contracting Party.46
(bb) Other Activities
The scope of application of the Basel Protocol also comprises the subsequent disposal of hazardous wastes. The term “disposal” includes all operations specified in Annex IV to the Basel Convention.47 Finally, the Basel Protocol extends its application not only to cases of illegal traffic, but to all cases of re-importation according to Article 8 and Article 9(2)(a), (4) of the Basel Convention.48
2. Incidents Covered by the Basel Protocol
The application of the Basel Protocol presupposes the existence of an incident. The term “incident” represents the central term determining the application of the Basel Protocol in temporal and geographical regard.
(a) Terminological Scope of “Incidents”
An “incident” is defined by the Basel Protocol as any occurrence, or series of occurrences having the same origin that causes damage or creates a grave and imminent threat of causing damage.49 Based on this wording, it becomes apparent that the term “incident” has a broad meaning. First, it is not restricted to single events, but also covers series of events in case it cannot be established which single event has actually caused the damage. This applies even if neither of the single events taken by itself was capable of causing the damage. Furthermore, this term covers not only events actually leading to damage but also encompasses events that have not yet caused damage but create a grave and imminent threat of causing damage. By means of this extension it is ensured that incidents are covered even if it cannot, or cannot yet, be established whether later damage will actually occur or not. This shows that the existence of an incident must be determined from an ex ante point of view. The term “grave and imminent threat” is not defined in more detail. However, it seems appropriate to give it a wide meaning excluding only incidents where the damage is in any way unlikely to occur in the short term.50 This is due to the fact that the term “incident” fulfils two functions within the framework of the Basel Protocol. On the one hand, it determines the scope of application of the Protocol pursuant to its Article 3. On the other hand, it entitles and obliges the person in operational control of the hazardous wastes to take preventive measures in order to mitigate damage as of the time of an incident.51 To this end, however, it is rigidly required that the preventive measures are taken prior to the actual occurrence of damage, namely as soon as a grave and imminent threat of causing damage is assessed from an ex ante perspective. Finally, the term “incident” also has a broad meaning as far as the nature of the event is concerned. It is not limited to unexpected and unintentional events, as is the case with the term “accident”. It rather includes all events that may result in damage, including, for example, nautical measures of the ship’s master, usual handling operations during a transboundary movement, inappropriate packing and deliberate pollution.52
The definition of “incidents” under the Basel Protocol is identical to the definitions of the same term as adopted by other civil liability conventions.53
(b) Geographical and Temporal Coverage of Incidents
The application of the Basel Protocol to incidents is not unlimited, instead being restricted in geographical and temporal regard. In this context the particular difficulties associated with the application of the Basel Protocol to the international transport of hazardous wastes become apparent.
Transboundary movements of hazardous wastes involve at least one State of export and either a State of transit or a State of import. Sometimes even more States of transit are involved. As far as the hazardous wastes are shipped by sea, it is not only the territorial seas and the EEZ of the coastal States which are crossed but in most cases the high seas are crossed, too. In instances of a multimodal transport of hazardous wastes, also the legs of pre-carriage and on-carriage need to be taken into account. Finally, the application of the Basel Protocol is determined by the fact of whether or not the respective States are contracting Parties to the Protocol. It becomes apparent that several constellations of involved States and areas are conceivable, all of which the Basel Protocol attempts to deal with.
The starting point of the application of the Basel Protocol is defined in geographical terms. Where the State of export is a Party to the Basel Protocol the application of the Protocol begins at that point where the wastes are loaded on the means of transport in an area under the national jurisdiction of a State of export.54 The State of export is nevertheless given the right to redefine the point where the application of the Protocol begins to the point where the wastes leave the area of its national jurisdiction.55 This may be any land border or the point where the territorial sea of that State ends. The exercise of this option, however, requires that both the incident and the resulting damage occur within the area of national jurisdiction of the State of export; otherwise the point where the wastes are loaded on the means of transport remains decisive. If the State of export is not a Party to the Basel Protocol, but the State of import is a Party, the starting point of the application of the Protocol is defined in temporal terms. The Protocol then applies to incidents which take place after the moment at which the disposer56 has taken possession of the hazardous wastes.57
The endpoint of the application of the Basel Protocol is defined in temporal terms. Where the State of import is a Party to the Protocol, the application of the Protocol ends with the completion of the disposal process, i.e. with the notification of completion of disposal or, alternatively, with the notification of completion of the subsequent disposal operations, as far as movements destined for interim storage or processing operations are concerned.58 Where the State of import is not a Party to the Basel Protocol but the State of export is, the Protocol applies to incidents which occur prior to the moment at which the disposer takes possession of the hazardous wastes.59 If neither the State of export nor the State of import is a Contracting Party, the Basel Protocol does not apply, even if a State of transit is involved that is a Contracting Party to the Basel Protocol.60 In cases of re-importation according to Article 8 or 9 of the Basel Convention, the application of the Protocol ends when the hazardous wastes reach the original State of export.61
In summary, it can be concluded that the application of the Basel Protocol to incidents is restricted in geographical and temporal regard. The main criterion is the moment when the incident occurs. The Basel Protocol basically applies to incidents occurring up until the completion of the final disposal process. The commencement of the Protocol’s application, however, is defined in terms of location. This does not ultimately cause any difficulties, since the point “where” the wastes are loaded on the means of transport also defines the point “when” the wastes are loaded. The geographical description, thus, also contains a temporal aspect. The fact that the beginning of the application is defined in geographical terms is due to a dispute regarding the issue of whether damage in the State of export should be covered by the Protocol.62 A compromise was found by allowing the State of export to redefine the point “where” the application of the Protocol begins. This seems to be a politically reasonable solution. However, it would have been equally effective and resulted in increased clarity if both the endpoint and the starting point were defined in temporal terms. Furthermore, it should be emphasised that in cases where not all States involved in the transboundary movement of hazardous wastes are Parties to the Basel Protocol, the moment at which the disposer takes possession of the wastes constitutes the key threshold for the application of the Basel Protocol. Incidents prior to this moment are attributed to the sphere of the State of export; incidents after this moment are attributed to the sphere of the State of import.
3. Damage Covered by the Protocol
The Basel Protocol, finally, requires the occurrence of damage. The application of the Protocol to damage is, however, limited to certain types of damage as well as in respect of the place where the damage occurs.
(a) Terminological Scope of “Damage”
The Basel Protocol defines certain types of damage which are eligible for compensation under the Protocol.
(aa) Personal Damage and Damage to Property
Damage covered by the Protocol includes, first, loss of life or personal injury and loss of or damage to property other than property held by the person liable under the Protocol.63
Personal damage and damage to property are covered by the Basel Protocol to a different extent. Whereas loss of life and personal injury is covered per se,64 loss of or damage to property is eligible for compensation only as far as property is concerned that is not held by the person liable under the Protocol.65 The different coverage of these two types of damage corresponds to the legal position under other international regimes of civil liability for damage resulting from hazardous substances.66 It differs, by contrast, from the cover provided by the international regimes of civil liability for oil pollution damage. Those conventions require “pollution damage”, which presupposes damage caused outside the ship67 by contamination68 resulting from the escape or discharge of oil or bunker oil from the ship.69 Thus, “pollution damage” basically also comprises personal damage, however, only to the extent it occurred outside the ship due to a contamination from oil or bunker oil.70 The coverage of personal damage under the Basel Protocol is, therefore, broader to the extent that personal damage caused on the ship is covered. As regards both types of damage, coverage under the Basel Protocol is broader to the extent that such damage is covered irrespective of the actual cause of damage.
The fact that personal damage, unlike damage to property, is covered by the Basel Protocol even if the injured person is the person liable under the Protocol has an effect only in some specific constellations. The person liable would have to bear the damage to his own property anyway; however, in those cases where the person strictly liable under the Protocol is entitled to take recourse against a person at fault under the Protocol, this recourse action also covers the damage to property of the person strictly liable. A further constellation concerns the case where a claim for compensation against a person liable under the Protocol is limited in amount. If damage to one’s own property were also covered and considered in calculating the maximum amount of liability, the pro rata amount of compensation to be paid to third parties would be lower. And, finally, if there is a compensation fund active, then the person liable would be entitled to obtain immediate payments and response action from the fund, albeit pending a final legal assessment. Bearing in mind these particular advantages it seems to be an appropriate solution to privilege personal damage and to let it benefit from these advantages.
(bb) Loss of Income
The Basel Protocol covers loss of income to the extent that it is derived from an economic interest in any use of the environment and was incurred as a result of an impairment of the environment, taking into account savings and costs.71
According to this definition the coverage of economic losses under the Basel Protocol is restricted in three respects. First, the person affected must have an economic interest in any use of the environment; second, the loss must have been caused in consequence of an impairment of the environment; and third, the person affected must suffer a loss of income, taking into account savings and costs. Since this explicit wording includes “any” use of the environment, it is made clear that both direct72 and indirect73 uses of the environment are considered sufficient.74 By further requiring an economic interest it is also made clear that non-economic interests, such as the protection of endangered species and plants by means of a non-commercially managed marine conservation park,75 are not eligible for compensation under the Basel Protocol. However, those non-economic interests are partially taken into account within the scope of preventive or reinstatement measures and the related costs for prevention or reinstatement may be recoverable in this context.76
Under the HNS and the CRTD Convention, loss of profit is covered as well; the same applies to the CLC and the Bunker Oil Convention.77 However, the coverage of loss of income under the Basel Protocol is defined in a more detailed manner than is the case in respect of the other international civil liability conventions.
(cc) Measures of Reinstatement and Preventive Measures
Finally, the Basel Protocol covers costs of reinstatement measures as well as costs incurred for preventive measures.
“Measures of reinstatement” are defined as any reasonable measures aiming to assess, reinstate or restore damaged or destroyed components of the environment.78 Costs incurred for such measures are eligible for compensation under the Protocol, albeit limited to the costs of measures actually taken or to be undertaken.79 The Protocol, furthermore, provides that the domestic law may indicate who will be entitled to take measures of reinstatement.80
“Preventive measures” means any reasonable measures taken by any person in response to an incident, to prevent, minimise, or mitigate loss or damage, or to effect environmental clean-up.81 The Basel Protocol recognises costs for preventive measures, including any loss or damage caused by such measures, to be eligible for compensation, to the extent that the damage arises out of or results from hazardous properties of the wastes involved.82
From these definitions it follows that preventive measures can be undertaken by any person in response to an incident, whereas measures of reinstatement can be taken only by persons entitled to do so by the respective domestic law. This distinction in the entitlement to claim compensation for expenses is to be explained by the fact that the Basel Protocol intends to provide different incentives to the respective persons. Thus, measures of reinstatement are to be undertaken only by competent personnel who possess the necessary knowledge, equipment and capacities to restore the impaired environment in an appropriate and sufficient manner. By contrast, all individuals should be encouraged to take preventive measures and, hence, to prevent and mitigate damage. An incentive for everyone to take preventive measures can be established only by allowing them to claim compensation for such costs from the person liable under the Basel Protocol. Apart from that, the same consideration applies to the fact that measures of reinstatement are covered only in an area under the national jurisdiction of a Contracting Party, whereas preventive measures are eligible for compensation even when they are taken on the high seas.83
As regards the definition of “measures of reinstatement”, some problems may arise from the inclusion of the reference to domestic law for the purpose of determining who will be entitled to take such measures. This particularly applies in international constellations in which a person entitled to take reinstatement measures under the domestic law of one Contracting Party may not be considered authorised to do so under the domestic law of another State.84 In the end, this situation will have a number of impacts on the availability of reinstatement capacities. Persons or companies specialised in salvage and reinstatement measures will provide their services only if they can be certain of being rewarded for their services. If this is not the case in certain areas, they will refrain from providing their services in those areas, or they will require the conclusion of an explicit service contract in advance.85 However, unlike usual salvage cases where the shipowner has a strong economic interest in salvage measures being conducted immediately in order to salve the vessel and the goods, there is no such incentive with regard to measures of reinstatement after an incident involving hazardous wastes. Therefore, no party has an urgent interest in concluding such an agreement. In consequence, reinstatement measures will be only minimally available in areas under the national jurisdiction of a State Party that does not in its domestic law designate parties that are entitled to take reinstatement measures.
Other international civil liability regimes provide cover for costs of measures of reinstatement and preventive measures to a similar extent.86
(2) Distinction from Salvage Remuneration
The coverage of costs of preventive measures under the Basel Protocol may lead to difficulties regarding their distinction from remunerations for salvage services under the 1989 Salvage Convention.87
The 1989 Salvage Convention gives salvors the right to claim remuneration for services carried out which result in the maritime salvage of a ship or cargo. The Convention basically pursues the “no cure-no pay” approach, which means that the salvor is given the right to reward only if the salvage operations have been successful. In this case, the reward is fixed with a view to encouraging salvage operations. By contrast, no payment is due in case the salvage operations have had no useful result.88 The Convention, furthermore, contains some specific regulations regarding environmental damage and in this respect breaks with the basic “no cure-no pay” rule.89 According to this, the salvor is entitled to special compensation, on the condition that he has carried out salvage operations in respect of a vessel which threatened damage to the environment, and provided that the compensation rewarded on the basis of the usual “no cure-no pay” rule is insufficient to cover his expenses.90 If, in addition, such salvage operations have been successful in preventing or minimising damage to the environment, the salvor is rewarded an increased remuneration of up to 30 % of the expenses incurred.91 The right to claim salvage remuneration under the 1989 Salvage Convention results by operation of law, irrespective of any explicit salvage contract.92 In practice, however, the salvor will mostly be able to push through the conclusion of a salvage contract under the Lloyd’s Standard Form of Salvage Agreement (LOF 2000/2011).93
Difficulties may arise in constellations where a maritime salvor undertakes salvage operations aiming at salving the ship and cargo and, at the same time, intends to prevent or minimise environmental damage caused by hazardous wastes. In such constellations of dual-purpose operations a distinction must be made between the remuneration for salvage operations and the compensation of costs incurred for preventive measures. Whereas costs for preventive measures are recoverable under the Basel Protocol and, to a different extent, also by means of a salvage reward, costs for salving the ship and cargo are eligible for compensation only under the “no cure-no pay” rule of the Salvage Convention. The first question, therefore, must be how to differentiate between salvage operations and prevention measures. A similar situation applies with regard to oil spills after tanker accidents and with regard to the question which preventive measures are covered by the legal regime of the CLC/Fund Convention. In this respect, international judgments and academic consensus have established the “primary purpose” rule, according to which the primary purpose of an operation is exclusively decisive for the classification of the entire operation, irrespective of whether any secondary intention exists.94 The determination of the primary purpose by means of a subjective criterion, however, involves difficulties and in some cases it simply fails. Therefore, it is considered to be a slight indication that pollution prevention is the primary intention if the expenses incurred by the salvor exceed the salved values of the ship and cargo.95 However, this consideration cannot sufficiently take into account the diverse circumstances of the individual case. Thus, if the primary purpose of an operation cannot be determined, it is acknowledged in international State practice that the costs for dual-purpose operations are divided into costs for pollution prevention and salvage costs.96 This rather Solomonic approach seems to provide a solution which is appropriate and is the most practicable under the circumstances. It is, therefore, consistent to also apply these criteria to marine accidents involving hazardous wastes as covered by the Basel Protocol.97
The second issue that arises in this context concerns the relationship between claims for compensation of preventive measures under the Basel Protocol and the right to claim salvage remuneration for preventive measures under Article 14 of the Salvage Convention. The content of both claims is different. Whereas under the Basel Protocol only the costs for reasonable preventive measures are recoverable,98 the remuneration awarded to the salvor must also take into account a fair rate for equipment and personnel, depending on the promptness of services and the availability, efficiency and value of the used equipment.99 Where the salvage operations have successfully prevented or minimised pollution damage the salvor is even awarded a remuneration increase of up to 30 %.100 Furthermore, and different from the CLC/Fund Convention regime, the person liable under the Basel Protocol will in most cases not be the shipowner whereas under the 1989 Salvage Convention, liability for special compensation rests with the owner of the vessel.101 As regards the relationship of both claims, one first need to bear in mind that a salvor is entitled to special compensation under Article 14 of the 1989 Salvage Convention only if he has carried out salvage operations in respect of the relevant vessel, regardless of whether this was the primary purpose.102 Thus, persons taking preventive measures under the Basel Protocol are not in all cases entitled to salvage reward; instead, it is only where a maritime salvor undertakes supplementary measures of damage prevention or minimisation that the claim for compensation of expenses is subject to the regimes of both the Basel Protocol and the Salvage Convention. In respect of the relationship between claims under the CLC/Fund Convention and the Salvage Convention, it is argued that such pollution measures are either “purely incidental” and recoverable under the Salvage Convention alone,103 or that they are eligible for compensation under the respective civil liability regime alone.104 However, both views fail to provide convincing arguments. This applies at least with regard to claims raised under the Basel Protocol. Distinct from the legal position under the CLC/Fund Convention, the Basel Protocol does not generally impose liability on the shipowner, this corresponding to the approach of the Salvage Convention. The legal position of the salvor under the Basel Protocol, therefore, differs significantly from his legal position under the 1989 Salvage Convention. Since there is no legal justification for restricting the application of one of these conventions, the only appropriate approach seems to be to give the salvor the right to choose on which legal basis to claim compensation and against which liable person.
(dd) Purely Ecological Damage
Ecological or environmental damage is not covered as such by the Basel Protocol. Ecological damage may consist, for example, in the impairment of the marine environment and in damage to natural resources due to the contamination by hazardous and noxious substances. The particular feature of ecological damage consists in the fact that the consequences of such damage, e.g. the impairment or destruction of natural resources or entire ecosystems, cannot be undone in a short time. In many cases ecological damage is of a permanent nature or the natural environment will need a long period to recover. This particular feature of ecological damage also shows the particular difficulties related to the compensation of ecological damage. Since there is no allocation of exclusive rights of use for the marine environment, there is no State or private party that can invoke the infringement of individual rights with regard to purely ecological damage. In addition, since ecological damage cannot be undone in most cases, the determination of the exact amount of damage is not possible. An assessment of loss by means of abstract or theoretical models does not seem to sufficiently take into account the unique circumstances of the individual case.105 Particular difficulties may arise with regard to the issue of causation in cases where ecological damage may be attributed to different causes.
Under the Basel Protocol ecological damage is covered, therefore, only to a limited extent. The Protocol acknowledges the existence of ecological damage and its eligibility for compensation within the definitions of loss of income, costs of measures of reinstatement of the impaired environment and costs of preventive measures. Particularly the explicit clarification of the Protocol that reinstatement measures are covered only to the extent that such measures are actually taken or to be undertaken106 underlines the fact that purely ecological damage, to the extent it goes beyond the actual costs of reinstatement and is not covered by the other types of damage, is not recoverable under the Basel Protocol.
(b) Geographical Scope of Covered Damage
The scope of application of the Basel Protocol is not only restricted by the time and place an incident takes place, but also with regard to the place where the consequent damage occurs.
The place where an incident takes place and the place where the actual damage occurs are not necessarily the same. For example, it is well possible that as a result of an incident taking place in an area under the jurisdiction of State A, hazardous wastes will be released in the marine environment and ultimately drift along with the ocean current to the coastal regions of State B, where they case pollution damage.
The Basel Protocol itself determines its scope of application with regard to such constellations. It basically applies to damage that occurs in an area under the national jurisdiction of a Contracting Party, regardless of whether a State of export, import or transit is concerned.110 It even applies if damage is suffered in an area under the national jurisdiction of a State that is not at all involved in the transboundary movement of hazardous wastes, provided this State is a Party to the Protocol. Moreover, the Basel Protocol also applies to damage suffered in an area under the national jurisdiction of a State of transit which is not a Party to the Protocol, but which is listed in Annex A of the Protocol and has acceded to an operative multilateral or regional agreement concerning transboundary movements of hazardous wastes.111 In contrast, the Basel Protocol does not basically apply to damage suffered in areas beyond any national jurisdiction, in particular on the high seas.112 An exemption from this rule is made for certain types of damage, such as for loss of life or personal injury, loss of or damage to property, and costs for preventive measures. Those damages are covered by the Protocol even if they occur on the high seas. This, however, does not include damage suffered in an area under the jurisdiction of State that is not a Party to the Protocol.113 In contrast, loss of income and costs for measures of reinstatement of the impaired environment are not covered by the Basel Protocol when they are suffered on the high seas.
This geographic restriction of covered damages under the Basel Protocol leads to appropriate results. On the high seas measures of reinstatement are mostly ineffective and must fail due to practical reasons. Since there is no allocation of exclusive rights of use on the high seas, there is also no economic incentive for an individual State or party to invest in the reinstatement of the marine environment. But what is even more significant is that in the absence of exclusive individual rights of use, a reinstatement of the impaired environment cannot be claimed since no State or party has seen its individual rights infringed such that a right of this nature could be enforced. Reinstatement measures conducted on the high seas, therefore, are of no practical relevance. This is different with regard to preventive measures. Such measures are taken in response to an incident and aim at preventing or minimising further damage, which may spread over great distances. Therefore, the Basel Protocol creates an incentive to take such measures by giving any person the right to claim compensation for such measures and by allowing recovery even for preventive measures that are taken on the high seas. Thus, the different geographic coverage of costs for reinstatement measures and preventive measures under the Protocol seems appropriate.
In conclusion, it can be summarised that the scope of application of the Basel Protocol is regulated in a very detailed and not always very clear manner. The application of the Protocol is determined by means of the definitions of transboundary movements of hazardous wastes, incidents and damages. The application to incidents and damages, furthermore, is restricted in temporal and geographical regard.
As regards the definition of hazardous wastes the Basel Protocol refers to the definitions of the Basel Convention. Wastes are covered by the Protocol if they belong to any category contained in Annex I of the Convention, unless they do not possess any of the characteristics contained in Annex III of the Convention. In addition, the Basel Protocol also applies to wastes that are defined as hazardous by the domestic legislation of the respective Contracting States. The explicit coverage of “other wastes” by the Protocol is somewhat confusing since this term does not mean “non-hazardous” wastes, as this wording would suggest, but only household wastes and residues from their incineration, which are in most cases hazardous as well. The conceptual distinction between hazardous and household wastes and the terminology of “other wastes”, thus, must be considered a shortcoming of the Basel Convention framework. The Basel Protocol does not apply to radioactive wastes subject to the control system of the IAEA and to wastes deriving from the normal operation of a ship as covered by the MARPOL 73/78 Convention. The term “transboundary movement” requires the involvement of at least two States. Thus, the Protocol does not apply, for example, to transports of hazardous wastes to the high seas for dumping or incineration.
The application of the Basel Protocol, further, requires an incident. This term has a broad meaning and also covers long-term events as well as events that have not yet caused damage but which are likely to cause damage in the future. In other words, all those events are covered that create a grave and imminent threat of causing damage. The coverage of incidents under the Basel Protocol is also restricted in geographical and temporal regard. The application of the Protocol basically begins at that point and at that moment the wastes are loaded on the means of transport in the State of export. The State of export, however, may postpone the beginning of the application to the moment the wastes leave the area of its jurisdiction. If the State of export is not a Party to the Basel Protocol, the application begins at that moment the disposer takes possession of the wastes. The application of the Protocol ends with the notification of completion of disposal or, in case the State of import is not a Party to the Protocol, when the wastes are delivered to the disposer.
Finally, the Basel Protocol only applies to certain types of damage, and this is, moreover, restricted in geographical regard. The Basel Protocol covers loss of life and personal injury as well as damage to property other than the property held by the person liable, irrespective of whether this damage occurs in an area under the national jurisdiction of a Contracting Party or on the high seas. Loss of income is covered by the Protocol only if this loss derives from an economic interest in any use of the environment and if it results from an impairment of the environment. Such losses, however, are only covered if they are suffered in an area under the national jurisdiction of a Contracting Party. Finally, the Basel Protocol also covers costs for measures of reinstatement of the impaired environment and costs for preventive measures taken in response to an incident. Whereas reinstatement measures can be taken only by persons designated by the domestic law and only within an area under the national jurisdiction of a Contracting Party, preventive measures are covered that are taken by any person and even if they are conducted on the high seas. This is to be explained by the intention of the Basel Protocol to encourage any potential person to undertake preventive measures, while only certain designated persons are to be encouraged to undertake measures of reinstatement.
II. Relationship to Other Civil Liability Regimes
The relationship of the Basel Protocol to other international regimes of civil liability and compensation is explicitly regulated in Article 3(7) and in Article 11 of the Protocol. These provisions provide a kind of a general subsidiarity of the Basel Protocol in relation to other civil liability regimes, on the condition that those regimes meet certain regulative standards as defined by Article 3(7) and Article 11 of the Protocol.
1. Requirements in General
There is one major difference between the two scenarios dealt with by Article 3(7) and Article 11 of the Basel Protocol. Whereas Article 3(7) of the Protocol concerns the relationship of the Protocol to other liability agreements regarding particularly the transboundary movement of hazardous wastes, Article 11 of the Protocol regulates the relationship to other general agreements on liability and compensation. Since both provisions impose different legal standards which must be met by the respective agreement of liability and compensation in order to override the application of the Basel Protocol, it is necessary to make a clear distinction between these two scenarios.
(a) Article 3(7) of the Protocol
Article 3(7) concerns the relationship of the Basel Protocol to other liability agreements regarding, particularly, the transboundary movement of hazardous wastes that are concluded and notified in accordance with Article 11 of the Basel Convention. Article 3(7) provides that an agreement concluded and notified in accordance with Article 11 of the Basel Convention overrides the application of the Basel Protocol provided that certain requirements are fulfilled by that agreement.
(aa) Legal Requirements
According to Article 3(7) of the Protocol, the alternative agreement must first come under the ambit of Article 11 of the Basel Convention. Article 11 of the Basel Convention addresses the relationship of the Basel Convention to other bilateral, multilateral or regional agreements or arrangements regarding the transboundary movement of hazardous wastes. Thus, those agreements must not necessarily contain rules of liability and compensation. Within Article 11 of the Basel Convention, a fundamental distinction114 is made between agreements the States accede to after the Basel Convention enters into force for them115 and agreements the States enter into before the Basel Convention enters into force for them.116 As regards the former kind of agreements, the Basel Convention stipulates that the Parties to the Basel Convention may enter into such “post-Basel” agreements provided these agreements do not derogate from the environmentally sound management of hazardous wastes as required by the Basel Convention and on the condition that the provisions stipulated by such agreements are not less environmentally sound than those of the Basel Convention.117 In addition, the States that accede to such agreement must notify the Secretariat of the Basel Convention of the respective agreement.118 As regards agreements the Parties to the Basel Convention entered into before the Basel Convention became applicable to them, the Convention stipulates that such “pre-Basel” agreements will not be affected by the provisions of the Basel Convention provided those agreements are compatible with the environmentally sound management of hazardous wastes as required by the Basel Convention and on the condition that those agreements have been notified to the Secretariat of the Basel Convention.119 A further requirement in order for both “post-Basel” and “pre-Basel” agreements to take precedence over the Basel Convention is that that the agreement in question applies only to hazardous waste movements which take place exclusively among the Parties to this agreement.120 In other words, in the event that only one of the States involved in a movement of hazardous wastes is a Party to such agreement but at least one of the other States involved is not, the Basel Convention remains applicable to the entire transport. At present, 12 bilateral and 9 multilateral agreements coming under the ambit of Article 11 of the Basel Convention have been notified to the Secretariat of the Basel Convention.121
However, not all agreements that come under Article 11 of the Basel Convention are capable of overriding the application of the Basel Protocol. In this respect, Article 3(7) of the Basel Protocol stipulates further requirements. According to this, the Protocol foregoes applicability122 only on the conditions that the damage occurred in an area under the national jurisdiction of one of the Parties to the respective agreement123 and—of primary importance—that there is a liability and compensation regime which is in force, is applicable and stipulates provisions that fully meet or exceed the objective of the Basel Protocol by providing a high level of protection to persons who have suffered damage.124 Such a liability and compensation regime must not necessarily be part of the respective agreement or arrangement, but may also be contained in another applicable legal instrument or, for instance, be found in the domestic law that is referred to.125 In such cases, for the purpose of promoting transparency as to the liability and compensation regime applicable instead of the Basel Protocol, the State Party to such an agreement must notify the Secretariat of the Basel Convention regarding the applicable liability and compensation regime and enclose a description of this regime.126 Article 3(7) of the Basel Protocol, furthermore, requires that the Secretary-General of the United Nations will have been notified of the non-application of the Protocol by the State in which the damage occurs127 and that the respective agreement does not declare that the Basel Protocol will be applicable.128
Article 3(7) of the Basel Protocol, read in conjunction with Article 11 of the Basel Convention, also determines that agreements within the ambit of Article 3(7) of the Basel Protocol are eligible to override the application of the Basel Protocol only in case of “internal” transports among the Parties to such agreements. Constellations in which the applicable regime of liability and compensation changes during the course of the movement are not possible, to the extent the movement is covered by the Basel Protocol. It has been outlined above that Article 11 of the Basel Convention only covers agreements applying to transports that take place exclusively among the Parties to this agreement. In case only the State of export or the State of import is Party to this agreement, this agreement will not be covered by Article 11 of the Convention. Due to the express wording “entirely among the Parties” in Article 11 of the Convention, this also applies to any State of transit involved in the movement. In addition, according to Article 3(7)(a)(i) of the Protocol, damage must occur in an area under the national jurisdiction of a Party to this agreement. Following this, it becomes apparent that there might not be any constellation where in respect of a particular movement two regimes of liability will apply. Either the Basel Protocol is displaced by the other agreement in respect of the entire transport or the Basel Protocol remains applicable for the entire transport.
(bb) Objections Raised Against This Provision
Article 3(7) of the Basel Protocol has been subject to broad criticism. Particularly developing countries and NGOs have argued that the primary purpose of this provision is to exclude the application of the Basel Protocol for industrialised countries that fall under the relevant OECD decisions and regulations concerning the transboundary movement of hazardous wastes. Were that the case, the majority of hazardous waste movements would not be covered by the Basel Protocol and, in respect of waste movements between OECD countries and non-OECD countries, only the importing countries would remain liable under the Basel Protocol.129 Industrialised countries, in turn, have argued that in respect of intra-OECD or, alternatively, intra-EU movements, the provisions of the Basel Protocol would not be necessary since there are already relevant legal systems in force.130 Neither of these arguments is fully convincing.
The objection that allowing the application of regional agreements and arrangements would undermine the significance of the Basel Protocol cannot be raised in respect of the OECD and EU regulations alone. The same consideration basically applies, for example, to the Bamako and Waigani Conventions as well as to other regional or bilateral conventions and agreements, provided that either the envisaged liability protocols to the respective conventions will enter into force, or that these conventions or agreements will be amended with regard to an explicit reference to an existing liability regime, which may also be contained in the respective domestic laws. What is important, however, is that the Basel Protocol stipulates a qualitative requirement with regard to the agreement at issue. Such agreement may only take precedence over the Basel Protocol if it fully meets or exceeds the protection level of the Protocol. By means of this provision the legal aim of the Basel Protocol becomes apparent. The purpose of the Protocol is not the application of the Protocol as such, but rather to ensure the application of a regime of liability and compensation that provides a specific minimum standard of protection that is defined to be the standard of the Basel Protocol. This purpose, however, can also be achieved by allowing the application of regional or bilateral agreements containing or referring to a regime of liability and compensation that has been previously notified to and evaluated by the Secretariat of the Basel Convention.
Furthermore, the objection that in respect of hazardous waste movements between OECD and non-OECD States, only the importing countries would remain liable under the Basel Protocol is not correct. Irrespective of the question of whether the OECD regulation may be considered an agreement within the ambit of Article 3(7) of the Basel Protocol, this regulation would not be able to replace the Basel Protocol in respect of such transports anyway. It has been set out above that regional or bilateral agreements may only override the application of the Basel Convention and Protocol if all Parties involved in the transboundary movement are Contracting Parties also to the respective agreement. This does not apply to hazardous waste movements from OECD countries to non-OECD countries.
However, another issue becomes obvious that must actually be considered a major weakness of this provision. The Basel Protocol does not define the procedure how to determine whether the respective regional or bilateral agreement actually meets or exceeds the protection level of the Basel Protocol. In this context it should be considered that any Party to the Basel Protocol that is also a Party to a regional or bilateral agreement is obliged to notify the Secretariat of the Basel Convention about the applicable regime of liability and compensation and to enclose a description of this regime.131 Therefore, it seems appropriate that the decision of whether the other regime of liability fully meets or exceeds the protection level of the Basel Protocol be prepared by the Secretariat of the Basel Convention or any subsidiary body for later consideration and final decision at the Meeting of the Parties.132 However, to the extent the Protocol does not explicitly specify this or any other procedure, a certain lack of clarity remains.
In summary, it must be concluded, therefore, that the objections voiced with regard to Article 3(7) of the Basel Protocol and the possibility of Contracting States to exclude the application of the Protocol with regard to movements among Parties to other agreements are not persuasive. Such exclusion only encompasses transports taking place exclusively among Contracting Parties to such an agreement; hence, it is not conceivable that two different regimes of liability could apply in respect of one movement. Moreover, the Basel Protocol requires in a qualitative regard that the respective agreement fully meets or exceeds the level of protection provided for by the Basel Protocol. By this means, the Basel Protocol constitutes a minimum standard of liability and ensures that the respective agreement does not fall below this standard. From a legal perspective there is, therefore, no cause for concern. From a practical perspective, a weakness of the Protocol may consist in the fact that the Protocol does not provide just how to determine whether or not the respective agreement fully meets or exceeds the level of protection of the Basel Protocol. Such rules of procedure, however, may be elaborated in detail at the Meeting of the Parties.133
(b) Article 11 of the Protocol
In contrast to Article 3(7), Article 11 of the Basel Protocol determines the relationship of the Protocol to other general agreements on liability and compensation that are not specially focused on the transboundary movement of hazardous wastes. According to this provision, the Basel Protocol does not apply to damage caused by an incident during the same portion of a transboundary movement, provided this damage is covered by an alternative bilateral, multilateral or regional agreement on liability and compensation, which is in force for the Party concerned and had been opened for signature before the Basel Protocol was opened for signature,134 even if the alternative agreement was amended afterwards.135
(aa) Difficulties Related to the Dual Coverage of Movements
It becomes apparent that Article 11 of the Protocol, in contrast to Article 3(7), does not require that the alternative agreement applies to all States involved in the particular hazardous waste movement. Thus, the Basel Protocol abandons the approach of Article 3(7) for avoiding the application of two different liability regimes in respect of one particular movement. Pursuant to Article 11, it may be possible that in respect of one particular transport of hazardous wastes the application of the Basel Protocol is excluded only for certain stages of the transport, whereas in respect of other stages the Basel Protocol remains applicable. This situation has been criticised as causing uncertainty about the applicable regime and as leading to protracted litigation.136 This objection seems valid.
The possible coverage of one transport by two different regimes of liability and compensation may cause difficulties also with regard to the question when and to which extent the alternative agreement overrides the application of the Basel Protocol. Article 11 stipulates that the alternative agreement overrides the Basel Protocol “whenever the provisions of the Protocol and the provisions of a[n alternative] agreement apply to liability and compensation for damage caused by an incident”. This definition is far from clear. In particular, it remains unclear whether the alternative agreement prevails over the Basel Protocol even where it generally applies but does not, for instance, cover the particular type of damage.137 In abstract terms the question is whether the fact that the alternative agreement does not impose liability in a specific case re-opens the application of the Basel Protocol, or whether the decision of the alternative agreement not to impose liability in a specific case is also binding and precludes the application of the Basel Protocol. In the end, this question can be answered in most cases by a simple reference to the distinction between the legal prerequisites of application and the legal consequences thereof. The scope of application is defined by each convention and agreement in terms of substance as well as in geographical and temporal regard. Where a particular event of damage falls under the definition of application of an alternative agreement, the same event of damage may not be covered at the same time by the Basel Protocol. This means that if the alternative agreement considers itself applicable to that certain kind of waste as well as to that incident and damage in a geographical and temporal regard, then any legal consequences that will follow from this event of damage are governed exclusively by that agreement. This applies even in case the alternative agreement does not impose liability in the specific case, although liability would be established under the Basel Protocol.138
Conversely, the Basel Protocol remains applicable in any instance the event of damage does not fall under the scope of application of the alternative agreement. In particular, this also applies to incidents involving different hazardous wastes, only some of which are covered by the alternative liability regime. In that case both the alternative regime as well as the Basel Protocol applies concurrently. This outcome is reaffirmed by the Basel Protocol, which provides that in such situations a person liable under an alternative agreement will be liable under the Protocol only “in proportion to the contribution made by the wastes covered by the Protocol to the damage”.139
(bb) Meaning of “Portion of a Transboundary Movement”
A further ambiguity of Article 11 arises from the requirement that both the incident and the resulting damage must have occurred during the same portion of a transboundary movement. The term “portion of a transboundary movement” is defined neither in the Basel Protocol nor in the Basel Convention. The extent or duration of such portion is, therefore, unclear. One could think about dividing a transboundary movement into a land portion and a sea portion. Another possible distinction could be to assume one portion for each area that comes under the national jurisdiction of a different State. But still it remains unanswered whether, for example, the passage through the high seas may constitute its own discrete portion of a transboundary movement, or whether a new portion might begin with any transhipment of the cargo. And even more: Could it be possible to assume that in any instance where a vessel alters her course this must be considered a new portion of a transboundary movement?
In order to give an answer, the legal purpose of this requirement needs to be taken into account. Article 11, by means of this requirement, intends to avoid as far as possible inconsistencies and ambiguities regarding the applicable regime of liability and compensation, which could arise particularly in cases where the incident and the resulting damage occur at different places. In such cases the legal consequence could be that the liability regime applicable to the incident does not cover the damage in geographical or temporal regard, whereas the other regime of liability covers only the damage and not the incident. In order to avoid that none of such liability regimes would ultimately apply, Article 11 of the Basel Protocol allows for a prevailing application of the alternative agreement only if it covers both the incident and the damage. The concept of a “portion of a transboundary movement” must take this into account. Possible alternative agreements, such as the HNS Convention, contain detailed rules regarding the question what kind of damage is covered in which maritime zones.140 Consequently, it seems appropriate to assume a “portion of a transboundary movement” in accordance with the distinction of national territories and maritime zones and to ensure, by this means, that an event of damage is excluded from the application of the Basel Protocol only where it is in its entirety subject to another regime of liability and compensation. An individual portion of a transboundary movement, thus, should be assumed for each territory including the territorial sea, the EEZ and the high seas. Any further distinction, such as the consistent course of a vessel, is superfluous.
(cc) Insufficiency of the Formal Criterion
Article 11 of the Basel Protocol has been strongly criticised, moreover, for providing far-reaching exclusions from its scope of application. It is objected that Article 11 does not impose any qualitative requirement regarding the alternative agreement which is comparable with the requirement imposed by Article 3(7) of the Protocol. It is, thus, possible that the alternative agreement overrides the application of the Basel Protocol even where it provides a standard of liability that is below the protection level of the Basel Protocol.141 Instead of imposing a qualitative requirement, Article 11 rather focuses on a formal criterion. The alternative regime will prevail over the Basel Protocol on the condition that this regime had been opened for signature before 6 March 2000, the date when the Basel Protocol was opened for signature. This provision is said to be specifically designed for the HNS Convention,142 but other conventions also fall within its scope.143
It is obvious that from a formal perspective this objection is true. By virtue of Article 11 the Basel Protocol declares itself inapplicable in case the event of damage is covered by another regime of liability and compensation, irrespective of whether this alternative regime fully meets or exceeds the level of protection established by the Basel Protocol. To this extent Article 11 can indeed be considered a major loophole of the Basel Protocol. From a practical perspective, however, the impact of Article 11 remains limited. By means of the formal requirement of Article 11, according to which the alternative agreement had to be opened for signature before the Basel Protocol was opened for signature on 6 March 2000, it is ensured that any convention or agreement that possibly comes under the ambit of Article 11 was known at the time the Basel Protocol was signed. Therefore, it is not possible to circumvent the provisions of the Basel Protocol by creating a new agreement with a lesser standard of liability. One could surely argue that States could undermine the application of the Basel Protocol by subsequently amending an agreement that comes under Article 11, to the extent that liability under this amended agreement would be considerably lower than under the Basel Protocol.144 However, such approach appears to be rather improbable.
The formal criterion of Article 11 is, nevertheless, insufficient in another respect. Since the temporal aspect is in the first instance the decisive factor for the application of the alternative regime on liability and compensation, Article 11 does not take into account that a convention or agreement may be established after the Basel Protocol was opened for signature and that such a convention or agreement could provide a more specialised and sophisticated regime applying only to particular aspects of transboundary movements of hazardous wastes. Thus, it might be possible that with regard to certain types of hazardous and noxious substances, such as for PCBs or POPs, a specific regime of liability and compensation might be set up in future which provides a more detailed and more suitable solution as regards liability and compensation for these particular substances. With regard to such cases it would have been the better approach to establish a quantitative criterion in Article 11 which was modelled on Article 3(7) of the Protocol, rather than establishing a rigid and formal criterion by which more suitable, but newly established agreements are simply ignored.
2. Relationship to Single Civil Liability Instruments
(a) Relationship to the HNS Convention
The 1995/2010 HNS Convention, which has not yet entered into force, establishes rules on liability and compensation for damage arising from the carriage of hazardous and noxious substances (HNS) by sea.145 It applies to HNS that are shipped on board a ship as cargo as well as to residues thereof. As regards the definition of HNS, the Convention refers to existing lists of HNS contained in other IMO instruments, such as in the MARPOL 73/78 Convention or in the IMDG Code.146 Damage caused by radioactive substances and pollution damage as defined in the CLC are excluded from the scope of application, whereas waste materials are basically covered by the HNS Convention.147
Since wastes are not excluded from the scope of the HNS Convention, the HNS Convention and the Basel Protocol potentially overlap. The HNS Convention imposes a regime of liability and compensation without being particularly focused on the transboundary movement of hazardous wastes. It, therefore, falls within the ambit of Article 11 of the Basel Protocol. The HNS Convention, furthermore, was opened for signature before the Basel Protocol,148 which means that, provided the incident and damage occur during the same portion of the transboundary movement, the HNS Convention will by virtue of Article 11 of the Basel Protocol prevail over the Basel Protocol to the extent the HNS Convention applies.
However, it should be noted that the scope of application of the HNS Convention and the scope of the Basel Protocol are not fully coincident. The scope of the Basel Protocol is broader in three respects: First, the Basel Protocol covers in temporal and geographical regard the entire transboundary movement, also including the pre-carriage and the on-carriage by, for instance, land transport, as well as the subsequent disposal process. The HNS Convention, by contrast, is limited to the carriage by sea from tackle to tackle.149 Second, the scope of the Basel Protocol may be broader with regard to the covered substances in the individual case. It applies to broad categories of hazardous wastes defined by means of their characteristics, even comprising household wastes, whereas the HNS Convention applies to substances previously defined in enumerated lists. Finally, the Basel Protocol imposes liabilities on several persons involved in hazardous waste movements, as there is the notifier (which may be the generator or the exporter), the importer and the disposer of the hazardous wastes.150 Liability under the HNS Convention, by contrast, is channelled to the shipowner.151
According to this, even in the event that both conventions enter into force, they are not fully coincident. The Basel Protocol will remain applicable in addition to the HNS Convention as far as concerns aspects of the transboundary movement that are not covered by the HNS Convention.152 Consequently, it will be possible that two regimes of liability will apply with regard to one transport of hazardous wastes. This, however, only applies in a temporal and geographical regard concerning the different legs of transport. There is an unmistakeable border between the application of the Basel Protocol prior to the loading on and after the discharge of the hazardous wastes from the ship (the tackle-to-tackle period). To this extent, both Conventions are mutually exclusive.
A simultaneous application of both Conventions, moreover, appears to be improbable. Such situation may arise only in those cases where damage was caused by hazardous wastes, only part of which are deemed to be HNS, and where it is possible to distinguish between the portions of damage caused by each kind of wastes. The HNS Convention provides that where it is not reasonably possible to separate damage caused by the HNS from that caused by other factors, all such damage will be deemed to be caused by the HNS.153 Since it will not be possible in most cases to distinguish between the portion of damage caused by the hazardous wastes deemed to be HNS and the portion of damage caused by hazardous wastes deemed not to be HNS, the HNS Convention, hence, will be applicable in most cases by virtue of this provision. However, if it is reasonably possible to separate between the portions of damage caused by hazardous wastes deemed to be HNS and those deemed not to be HNS, both the HNS Convention and the Basel Protocol remain applicable to the respective portion of damage.154
Finally, the issue as to which person is liable for compensation depends on the legal consequences stipulated by the respective applicable regime of liability and compensation, rather than being related to the question of which convention applies. Where it is established that a convention applies to a particular event of damage, then this convention will solely and exclusively determine to which person liability is attached and to which extent.
In conclusion, it should be pointed out that, as a general rule, the HNS Convention prevails over the Basel Protocol to the extent the particular event of damage is covered by the HNS Convention. For the remaining cases the Basel Protocol remains applicable as a supplement to the HNS Convention. This particularly concerns damage occurring during the pre-carriage or on-carriage of the hazardous wastes, including the subsequent disposal process. It also applies in the rare cases where the portion of damage caused by hazardous wastes deemed to be HNS can be separated out from the portion of damage caused by hazardous wastes deemed not to be HNS. The basic prevalence of the HNS Convention during the maritime carriage of the hazardous wastes should be viewed with some degree of scepticism. Notwithstanding the indisputable advantages of this regime of liability, which is modelled after the generally approved maritime civil liability pattern and which is equipped with its own HNS Fund, the HNS Convention does not attach liability to a person other than the shipowner and does not establish fault-based liability. The possibility that one transboundary movement could be subject to the application of two different liability regimes with fundamentally divergent distributions of liability does not contribute to legal certainty. In the end, one will have to ask why States should undertake the efforts to implement the sophisticated provisions of the Basel Protocol if the largest part of its scope of application is overridden by the 1996/2010 HNS Convention, anyway. One could counter that most incidents might occur outside the “tackle-to-tackle” period to which the HNS Convention applies. However, in order to increase the importance of the Basel Protocol and to ensure a consistent and uniform arrangement of liability throughout an entire transboundary movement of hazardous wastes, it would be advantageous to exclude waste substances from the scope of application of the HNS Convention.155
(b) Relationship to the CRTD Convention
The 1989 CRTD Convention represents the counterpart of the HNS Convention regarding the land transport of dangerous goods.156 It imposes strict and limited liability on the person in control of the road vehicle or inland navigation vessel or on the person operating the railway line for damage caused by any dangerous goods during their carriage by road, rail or inland navigation vessel.157 It covers the period from the beginning of the process of loading the goods onto the vehicle for carriage until the end of the process of unloading the goods.158 Dangerous goods are defined by means of reference to the classes of the ADR,159 also including waste substances and articles. The Convention also contains a provision, according to which in cases where it is not reasonably possible to separate damage caused by the dangerous goods from that caused by other factors, all such damage is to be deemed as having been caused by the dangerous goods.160
Since the CRTD Convention is not particularly focused on the transboundary movement of hazardous wastes, it will fall within the ambit of Article 11 of the Basel Protocol upon its entry into force.161 It will, therefore, override the application of the Basel Protocol to the extent it applies to the particular event of damage. The findings made above in respect of the relationship of the Basel Protocol to the HNS Convention and the Basel Protocol’s remaining scope of application apply mutatis mutandis to the relationship of the Basel Protocol to the CRTD Convention. If both, the HNS and the CRTD Convention were to enter into force, the remaining scope of application of the Basel Protocol would be limited to the final disposal process, to the cases in which wastes defined as hazardous under the Basel Protocol would not be considered HNS or dangerous goods, and to cases in which the incident and the resulting damage do not occur during the same portion of a transboundary movement as required by Article 11 of the Basel Protocol.
(c) Relationship to the Civil Liability Convention
Strict and limited liability of the shipowner for pollution damage caused by oil carried as cargo on board or in the bunkers of a tanker is established by the Civil Liability Convention (CLC).162 The CLC applies to oil that has escaped or has been discharged from a ship as a result of an incident, provided the damage occurred in the territory, including the territorial sea, in the EEZ or in a zone of 200 nautical miles of a Contracting State.163 Since waste oils are not excluded from the scope of application, the CLC also applies to certain aspects of transboundary movements of hazardous wastes. To this extent it prevails over the provisions of the Basel Protocol by virtue of Article 11 of the Protocol.164 Particularly on the high seas, however, the application of the Basel Protocol is not affected.
(d) Relationship to Other Regimes of Liability and Compensation in the Field of Transboundary Movements of Hazardous Wastes
The Bamako Convention and the Waigani Convention do not contain their own regime on liability and compensation, but contain the mandate of the Contracting States to elaborate a protocol setting out relevant rules of liability and compensation.165 The same applies to the Izmir Protocol to the Barcelona Convention,166 whereas the Tehran Protocol to the Kuwait Convention does not contain a “pactum de negotiando” for developing a supplementary regime on liability and compensation. However, in none of these cases has a liability protocol yet been adopted. Provided that one of these instruments enters into force, it will be considered an agreement falling within the ambit of Article 3(7) of the Basel Protocol. Thus, it would prevail over the provisions of the Basel Protocol on the condition that its standard of liability fully meets or exceeds the level of protection of the Basel Protocol.
(e) Relationship to the OECD and EU Regulations
It has already been outlined above that it is doubtful whether OECD Council Decision C(2001)107/FINAL on the Control of Transboundary Movements of Wastes Destined for Recovery Operations comes under the ambit of Article 11 of the Basel Convention.167 But even if this were the case, the additional requirements set out in Article 3(7) of the Basel Protocol would not be fulfilled. Neither does this Decision contain a regime of liability and compensation nor does it refer to any other regime already existing in another legal instrument or in domestic law. OECD Council Decision C(2001)107/FINAL, therefore, cannot override the application of the Basel Protocol.
The same outcome applies to the EU legal framework on the transboundary movement of hazardous wastes, which is comprised by the Directive 2008/98/EC on Waste and the Waste Shipment Regulation No 1013/2006/EC.168 These EU instruments must be considered agreements within the meaning of Article 11 of the Basel Convention.169 However, in order to override the application of the Basel Protocol, these instruments must contain or refer to an existing liability and compensation regime which is in force, applicable, and fully meets or exceeds the level of protection as provided by the Basel Protocol.170 Neither the Directive on Waste nor the Waste Shipment Regulation contains or refers to an existing regime of liability and compensation.171 The 1993 Lugano Convention is not in force and the EU Environmental Liability Directive imposes liability on operators of particular activities under public law, rather than imposing civil liability.172 The domestic laws of the EU Member States may not be considered sufficient in this respect either. Specifically, it is not ensured that the domestic laws provide for civil liability to an extent that is comparable to the level of protection provided by the Basel Protocol. This particularly applies in respect of the liable persons as well as to the coverage of activities during the course of a transboundary movement.
(f) Relationship to Regimes of Liability for Cargo Damage
The Hague/Visby Rules173 and the Hamburg Rules174 impose limited liability for presumed fault on the carrier in case of loss of or damage to cargo.175 These regimes of liability and compensation, therefore, concern a different aspect of liability and the legal relation among a different circle of persons. Liability for cargo damage under the Hague/Visby and Hamburg Rules is based on a presumed breach of a contractual obligation of the sea carrier of a cargo vis-à-vis the contractual partner in a contract of affreightment or the lawful holder of a bill of lading. It does not concern liability for damage suffered in consequence of an incident by third persons and, thus, does not fall within the meaning of “damage due to an incident” or “damage caused by an incident” as required by Article 3(7) and Article 11 of the Basel Protocol.
(g) Relationship to the LLMC Convention
The LLMC Convention does not provide a legal basis for liability and compensation, but rather establishes the right of shipowners and persons in comparable positions to limit their liability in respect of claims raised by third parties in respect of personal damage, damage to property and consequential losses occurring in direct connection with the operation of a ship.176 Since claims for compensation that are raised as a result of a transboundary movement of hazardous wastes are not excluded from the scope of the LLMC Convention, those claims are basically subject to limitation under the LLMC Convention.177
It could be argued that the LLMC Convention falls within the ambit of Article 11 of the Basel Protocol, with the consequence that during the sea leg of a transboundary movement of hazardous wastes no liability at all is imposed on any person involved. This would be due to the fact that the Basel Protocol would hold itself inapplicable by virtue of its Article 11 and the LLMC Convention does not provide a legal basis for liability.178 This conclusion, however, cannot be seen as convincing in the end. Although it must be admitted that the wording of Article 11 of the Basel Protocol allows such interpretation,179 the terms and the wording of a convention text are not the sole basis for the construction of treaty provisions. The systematic context and the telos of the provision in question need to be taken into consideration in equal measure.180 Accordingly, it should be noted that Article 11 of the Basel Protocol aims at governing the relationship to other regimes of liability and thus tries to solve possible conflicts with other legal instruments that establish liability in a different manner. Article 11, thus, requires by implication that the alternative agreement itself provides for a legal basis of liability and compensation. Consequently, it may well be argued that the LLMC Convention, which only establishes the right to limit liabilities, does not fall within the scope of Article 11 of the Basel Protocol.181
A further possible interpretation of Article 11 is that the application of the Basel Protocol is excluded only to the extent the provisions of an alternative agreement apply. With regard to the LLMC Convention this would mean that the Basel Protocol remains applicable as far as the establishment of liability is concerned, whereas the provisions regarding the limitation of liability in the Basel Protocol are overridden by the provisions of the LLMC Convention. Such an interpretation, however, can hardly be brought into accordance with the wording of Article 11, which explicitly states that “the Protocol shall not apply” instead of solely stating that “the provisions of the Protocol shall not apply”. Furthermore, the systematic context and the object and purpose of Article 11 do not indicate that a distinction between different provisions or parts of the Basel Protocol as regards its application is allowed. Since the LLMC Convention only concerns the limitation of a shipowner’s liability, such a solution would also be of minor expediency concerning the liability of any other persons involved in a transboundary movement of hazardous wastes. It is therefore to be concluded that by virtue of Article 11, the LLMC Convention excludes the application of the Basel Protocol neither in toto nor in parts.
In consequence of this interpretation, the relationship of the LLMC Convention to the Basel Protocol independent of Article 11 of the Basel Protocol needs to be clarified. The first possible solution would be that as soon as the Basel Protocol is applicable the operation of the LLMC Convention would be entirely excluded. However, there are no rules or indications in the provisions of the Basel Protocol or in the LLMC Convention that would justify such a conclusion. Furthermore, the Basel Protocol only intends to establish certain minimum standards of liability, leaving room for additional provisions established by other civil liability conventions.182 Consequently, the more convincing arguments speak in favour of the alternative solution. According to this, the LLMC Convention applies additionally and supplementary to the Basel Protocol. The overlapping areas, however, are limited. Practical significance may emerge only, if at all, in case fault-based liability according to Article 5 of the Basel Protocol is attached to the shipowner. In such a case liability under the Basel Protocol would necessarily be unlimited according to Article 12(2), whereas under the LLMC Convention the shipowner is entitlement to limit his liability to a certain extent.183
The Basel Protocol provides for two different rules governing its relationship to other international regimes of civil liability and compensation: both of these rules establish a kind of a general subsidiarity of the Basel Protocol on the condition that certain regulatory standards are met by the respective legal regimes. The Basel Protocol basically distinguishes between its relationship to other regimes regulating in particular the transboundary movement of hazardous wastes, which is governed by Article 3(7) of the Protocol, and its relationship to other general regimes of liability and compensation, which is determined by Article 11 of the Protocol.
Article 3(7) stipulates that the alternative agreement must be a bilateral, multilateral or regional agreement regarding the transboundary movement of hazardous wastes within the meaning of Article 11 of the Basel Convention. This agreement must contain or refer to a regime of liability and compensation which is in force, applicable and stipulates provisions that fully meet or exceed the objective of the Basel Protocol by providing a high level of protection to persons who have suffered damage. By stipulating this qualitative requirement it is ensured by the Basel Protocol that only those alternative agreements may take precedence over the Basel Protocol which fully meet or exceed the protection level of the Protocol. No reference is made to formal criteria like the entry into force of the alternative agreement or its geographical scope. A particular weakness of this qualitative requirement, however, is that the Protocol does not define the procedure by which it is to be determined whether the alternative agreement actually meets or exceeds the protection level of the Basel Protocol.
According to Article 11 the Basel Protocol does not apply if another general agreement on liability and compensation is in force for the Party concerned and the agreement had been opened for signature before the Basel Protocol was opened for signature. This provision has encountered broad criticism for different reasons. It has been criticised, first, that it abandons the approach of avoiding the application of two different legal regimes in respect of one movement of hazardous wastes and, furthermore, that it makes reference to the ambiguous term “portion of a transboundary movement”. But above all else, the establishment of a formal, temporal requirement for the application of the Basel Protocol—instead of a qualitative requirement—has met with criticism. Even though it is not possible to circumvent the substantive requirements of the Basel Protocol by creating a new agreement with a lesser standard of liability, the strict temporal requirement is insufficient in another regard. Irrespective of any considerations of adequacy, it excludes the later ratification of a convention or agreement even where that subsequent instrument provides a more specialised and sophisticated regime of liability which is established with a view to particular aspects of transboundary movements of hazardous wastes, such as liability for damage caused by PCBs or POPs.
In consideration of these findings it must be concluded that the establishment of the formal criterion in Article 11 of the Basel Protocol cannot be considered an optimal solution (although the practical relevance of this shortcoming is limited). It would have represented a better solution to have abandoned the approach of a formal, temporal criterion and to have established a qualitative criterion modelled on Article 3(7). Under such an approach, the legal distinction between the two scenarios governed by Article 3(7) and Article 11 of the Basel Protocol would be superfluous and both cases could have been regulated within one single provision.
As regards the relationship to the individual international civil liability conventions, it can be summarised that the HNS Convention, upon its entry into force, will prevail over the Basel Protocol by means of Article 11 of the Protocol. This, however, only concerns the sea leg of the transport; the Basel Protocol remains applicable in respect of the pre-carriage and the on-carriage. The application of the Basel Protocol will also be excluded by means of its Article 11 if and to the extent the CRTD Convention or the CLC will apply to the wastes in question. Any future liability Protocol that will be established in connection with the Bamako or Waigani Conventions or the Izmir Protocol to the Barcelona Convention will prevail over the Basel Protocol by means of the latter’s Article 3(7), provided that these future instruments contain or refer to a regime of liability and compensation that fully meets or exceeds the protection level of the Basel Protocol. Finally, the LLMC Convention remains applicable in addition to the Basel Protocol, although the LLMC Convention would only be relevant in respect of transboundary movements of hazardous wastes as regards the limitation of a shipowner’s fault-based liability.
III. The Liability Regime of the Basel Protocol
There are several features that can typically be found in international civil liability conventions. A common ground of those conventions is that uniform law is established among the Contracting States, by which uniform standards of liability are set and the judicial enforcement of liability is ensured. The scheme of liability of those civil liability conventions also follows a consistent structure. Usually, strict liability is established which is channelled to the person in operational control of the dangerous activity or hazardous substance (such as the shipowner, the carrier or the plant operator). In some cases secondary strict liability might be attached to other persons involved, or an additional fault-based liability might be imposed, which in this instances comes along with the right of any liable person to take recourse against any other persons liable. Strict liability is usually excluded if damage resulted under circumstances that are beyond the control of the person liable. Liability is, moreover, typically limited in amount and time, and it is accompanied by supplementary financial mechanisms like compulsory insurance or the establishment of a compensation fund.184
The present section examines the liability regime of the Basel Protocol, meaning the entirety of the provisions establishing civil liability of the persons involved in transboundary movements of hazardous wastes by sea.
1. The Basic Concept of Liability of the Basel Protocol
The Basel Protocol basically follows the usual pattern of civil liability conventions as outlined just above. It establishes, in Article 4, strict liability of the notifier and the exporter or, alternatively, of the disposer of the hazardous wastes. Strict liability is supplemented and adjusted by means of fault-based liability according to Article 5, which is imposed on any person responsible for a lack of compliance with the substantive provisions of the Basel Convention or for a wrongful intentional, reckless or negligent act or omission. Article 8 of the Protocol, finally, provides that any person liable under the Protocol is entitled to take recourse against any other person also liable under the Protocol.
(a) The Concept of Combining Strict and Fault-Based Liability
Strict liability and fault-based liability each possess characteristics which can have positive effects in different situations. By combining both types of liability in one legal instrument the respective positive effects can be consolidated and, thus, as optimal a solution as possible can be achieved.
Strict liability has the advantage that compensation for damage is made available not only if damage was caused by a deliberate or negligent act, but also in case of an accident or misfortune.185 A further major advantage of strict liability is that it overcomes the obstacle of proving fault or negligence on the part of the defendant party. Particularly if data and information of complex and technical industrial processes or installations are required to which the claimant party has no access, if the observance of appropriate standards of reasonable care by the defendant State is in dispute, or if with regard to environmental damage a multitude of possible causes come into question, the burden of proof that rests with the claimant State in case of fault-based liability may amount to a heavy and insurmountable obstacle that inhibits the successful enforcement of claims.186 This outcome is considered to be hardly acceptable, especially in constellations where the injured party does not derive any benefit from the harmful activity.187 Strict liability, which only requires proof of damage and the establishment of a causal link to an activity conducted by the defendant party that comes under the ambit of the respective convention, avoids lengthy disputes about the existence of fault or negligence on the part of the defendant party. A further advantage of strict liability is that in practice an increased incentive is created to amicably settle most claims out of court.188 Finally, strict liability strengthens the incentive of potentially liable parties to invest in damage precaution, rather than to subsequently dispute the existence of fault on their own part.189
The imposition of fault-based liability, by contrast, ensures that if any person contributed to the occurrence of damage by fault or negligence, this person is liable particularly because he failed to meet the required standard of reasonable care. Fault-based liability, thus, is also an expression of the polluter-pays principle.190 It contributes to legal certainty and imposes financial responsibilities on grounds of the moral aspects of fairness and justice.191 However, since the determination of fault presupposes the existence of a legal rule that has been neglected, it may lead to appropriate results only in highly regulated areas.192
The combination of strict liability and fault-based liability in one legal instrument consolidated the respective positive effects of these elements. Strict liability averts enduring disputes regarding the establishment of fault or negligence on the part of the liable person. By this means it is ensured that in the first instance fast and efficient compensation is made available, which allows an optimal combating of environmental damage and a prompt compensation of victims of pollution. Only on a secondary level is the strictly liable person entitled to take recourse against any other person who is strictly liable or liable based on fault or negligence. At this secondary level the final allocation of financial responsibilities among the liable persons involved, as well as the aspects of who is to be considered the “real” responsible party based on categories of fault and negligence, are prioritised, irrespectively of any predominant concerns of promptness and efficiency. At this stage, the person who takes recourse hence may also decide whether to take action against another person liable on the basis of strict liability, which is limited in amount but which does not impose a high burden of proof, or to take recourse against another person liable based on fault, which includes the burden of proving fault or negligence, but which is unlimited in amount.
(b) No Subsidiary Liability of the State
The Basel Protocol imposes strict liability on any of the persons mentioned in Article 4 and fault-based liability on any person according to Article 5. The term “person” is defined in Article 2(14) of the Basel Convention as any natural or legal persons, and thus basically also includes States, provided the State acts in a private capacity and does not exercise sovereign rights in the particular case. Consequently, States may be exposed to civil liability under the Basel Protocol if they themselves or by means of a State-owned company are to be considered the exporter, importer or disposer within the meaning of Article 4 or to be considered any person within the meaning of Article 5 of the Protocol.
The Basel Protocol, however, attempts to avoid the imposition of civil liability on States. This becomes clearly apparent in the provisions of Article 4(1) and (2), which provide that if the State has notified the transport, it is not the State which will be held liable but the exporter or the importer of the wastes. The Basel Protocol also fails to establish any explicit rule imposing subsidiary liability on the State which would apply in case sufficient compensation cannot be obtained from a liable person. Nevertheless, this approach for avoiding the imposition of civil liability on States cannot be considered a weakness or insufficiency of the Protocol. By means of compulsory insurance and the establishment of a trust fund the risk of insufficient compensation being available from the liable person is minimised. Moreover, subsidiary liability of the State does not seem to be an appropriate approach. It has already been outlined above193 that with regard to damage caused by the activity of private persons the State usually lacks sufficient information about the conduct of such activities and, consequently, cannot sufficiently control and supervise these activities. The imposition of subsidiary civil liability would thus involve a substantial extension of the States’ financial commitment, even though they are not directly involved in those commercial activities. Given the fact that States have shown themselves reluctant to ratify the Basel Protocol in any event, it is unlikely that a consensus among States for an additional financial commitment could be found. It is to be expected that the establishment of a subsidiary civil liability of States would only further hamper the entry into force of the Basel Protocol.
(c) Common but Differentiated Civil Liabilities?
The legal concept of common but differentiated responsibilities has found its way into the international practice of States particularly in the aftermath of the 1972 Stockholm Conference.194 This concept is characterised by the understanding that the traditional rigid approach of employing identical obligations on all States and treating them strictly equally, which is derived from the principle of sovereign equality of all States, does not appropriately take into consideration the different capabilities and stages of development of States. According to this competing conception, an equal treatment of all States rather requires that different obligations be imposed on States depending on their individual capabilities and their stage of development. In other words, this approach tries to avoid the fact that the equal treatment of unequal States ultimately leads to inequity.195
The concept of common but differentiated responsibilities has been developed primarily in the context of the protection of the ozone layer and the climate change debate. Recent fields of application involve the international protection of biological diversity and combating desertification. One could now argue that also the transboundary movement of hazardous waste represents an issue requiring a differentiated treatment of developing and developed States, since mainly the latter group of States profited from these activities in the past. One could, furthermore, argue that the concept of common but differentiated responsibilities could be implemented in the context of global waste movements by imposing common but differentiated civil liabilities on the acting persons. This could be achieved by means of a civil liability regime that provides for a differentiated scheme of liability which applies different rules of liability on the acting persons or companies depending on whether they are based in a developing or developed country.
It needs to be considered, however, that the environmental risk underlying the transboundary movement of hazardous waste is not fully comparable to the environmental risks associated with the protection of the ozone layer or the climate change debate. The common feature of those cases is that they involve a steady process of deterioration of the global environment, which has commenced in the past due to an exhaustive use of natural resources and the environment by the industrialised countries. The transboundary movement of hazardous waste is indubitably an issue of global concern, yet it does not per se cause a steady deterioration of the global environment in a manner that affects the global community as a whole. In most cases it rather poses a significant threat to human health and the environment which is limited to a certain area. Moreover, the person or at least the State of origin of this pollution may in most cases be identifiable. Hence, there is basically no actual need to stipulate differentiated responsibilities of States on a global level. The Basel Convention nevertheless establishes elements of a “common but differentiated responsibility” by making the general obligations of States regarding the generation and transportation as well as technology transfer contingent on their respective social, technological and economic capabilities.196 A further implementation of this concept, particularly within the scheme of civil liability, would not be appropriate. The purpose of imposing civil liability is not to allocate global responsibilities for the exhaustive use of natural resources in the past, but rather to ensure compliance of the acting private persons with a standard of due precaution as regards the conduct of ultra-hazardous activities.197 The concept of common but differentiated civil liabilities thus does not represent an appropriate approach for determining civil liabilities in the context of transboundary movements of hazardous waste.
2. Strict Liability According to Article 4
In the transboundary movement of hazardous waste by sea usually several persons are involved. This includes on the outgoing side the generator and the exporter of the wastes and on the incoming side the importer and the disposer. Further persons involved are the person who notifies the transport, the waste brokers and dealers, in most cases a forwarding agent, one or more actual carriers and the person owning, operating or chartering the respective means of transport.198
Article 4 of the Basel Convention undertakes the function of allocating strict liability among these persons. In this section, this allocation of strict liability shall be examined in more detail.
(a) The Approach of Channelling Strict Liability According to Spheres of Responsibility
According to the traditional approach of civil liability regimes, strict liability is usually channelled to the person in operational control of the industrial installation or means of transport or to the owner or operator of such installation or transport vehicle.199 This approach of “channelling liability” through only one person has the advantage that it simplifies the identification of the person liable in consequence of a particular incident and avoids disputes and uncertainties concerning contributory fault of other persons involved.200 Furthermore, it facilitates the availability of reasonably priced insurance coverage since it reduces the number of persons required to obtain insurance cover and, thus, also avoids overlapping insurance coverage.201 By channelling liability particularly through the operator or owner of the industrial installation or means of transport, account is taken of the fact that the operator or owner of an industrial installation or transport vehicle is usually in the best position to exercise effective control over the source of potential danger and, thus, may most effectively prevent the occurrence of damage.202 There are, however, also drawbacks related to this approach. Channelling of liability to only one person also means that no other potentially liable person may be addressed by the claimant, which may turn out to be unfavourable particularly in cases where the liable party is dissolved, becomes insolvent, lacks sufficient funds or insurance cover, or simply invokes a limitation of liability which he is entitled to claim.203 Moreover, in the context of transboundary movements of hazardous wastes by sea the actual circumstances differ from the usual pattern underlying civil liability conventions. The process of exporting hazardous wastes is not limited to the transportation of such wastes alone. Rather, it also involves the entire set of procedures related to the export including the final disposal process of the hazardous wastes. Hence, there is not only one primary player involved in the transboundary movement, but rather different persons exercise operational control over the hazardous wastes, depending on which stage of the movement is concerned.204 Channelling liability to only one person would not sufficiently take into account these underlying conditions of transboundary waste movements. It would rather create a disincentive in the other persons involved to exercise the best possible care in order to prevent the occurrence of damage.205
There are two further general approaches for the allocation of strict liability that might come into consideration in the context of transboundary movements of hazardous wastes by sea. First, a combination of primary strict liability of the person in operational control of the wastes could be supplemented by a secondary strict liability of any other person involved in case sufficient compensation cannot be sought from the person primarily liable.206 Another approach is to establish joint and several liability, which would allow the claimant to bring claims against any of the persons involved in the transboundary movement in full amount, even if this person contributed in only small proportion to the occurrence of damage. The person who compensated the claimant in full would, in turn, be entitled to claim compensation payment from the other liable persons involved according to their particular contributing negligence or fault.207 However, both approaches also carry considerable disadvantages. They involve a high number of potential defendants and legal proceedings in the first or second tier, ratcheting up legal and other costs related to litigation.208 As experienced in practice with regard to the US-CERCLA,209 joint and several liability also discourages a readiness to negotiate settlements and creates an incentive to hold responsible in the first instance the person with the “deepest pockets”, irrespective of this person’s actual portion of contributing fault or negligence. This approach, therefore, has been criticised as being ineffective and also as being surrounded by a sense of unfairness.210
Since none of these approaches by itself seems to sufficiently take into account the particular features associated with the transboundary movement of hazardous wastes by sea, the Basel Protocol pursues a different concept.211 This concept is in principle based on the approach of channelling liabilities to only one person, but this approach is modified with regard to the particular needs and circumstances of the transboundary hazardous waste movement, and to this end also includes elements of the approach of joint and several liability. The Basel Protocol does not focus on one single person throughout the entire movement. It rather always channels liability to another person, depending on which particular stage of the movement is concerned. The Protocol, thus, creates spheres of responsibility which are attributed to the person who in the respective stage of the transboundary movement generally exercises control over the hazardous wastes. As a consequence, the Basel Protocol ensures that each occurrence of damage can be allocated to the sphere of responsibility of one person, depending on which particular stage of the movement the damage occurs.212 By this means the Basel Protocol allocates strict liability to the notifier (which can be generator or the exporter), the importer or the disposer of the hazardous wastes.213 It is only in case there are several persons strictly liable at the same time that the Protocol imposes joint and several liability among these persons.
(b) Allocation of Strict Liability Under the Basel Protocol
In general terms, it can be said that the Basel Protocol establishes a temporal break at the moment when the disposer takes possession of the hazardous wastes. Prior to this moment liability is basically imposed on the notifier, whereas incidents occurring after this moment are basically attributed to the sphere of responsibility of the disposer.
(aa) The Regulation in Detail
In the first two sentences of Article 4(1) of the Basel Protocol the general rule allocating strict liability is laid down. According to this, the person who notifies the movement in accordance with Article 6 of the Basel Convention is liable for damage until the disposer has taken possession of the hazardous wastes. Thereafter the disposer is liable for damage.214 It becomes apparent that this provision does not explicitly define the commencement and the end of liability. Therefore, the commencement and the end of liability are determined by the Protocol’s scope of application. According to this, liability of the notifier commences at that point where the wastes are loaded on the means of transport in an area under the national jurisdiction of the State of export or, if the State of export opted to shift the starting point of the application to the point where the wastes leave the area of its national jurisdiction, liability commences at that point.215 Liability ends if damage occurs after the completion of final disposal process.216 Another issue related to this general rule is that the “person who notifies” is not defined separately by the Basel Protocol or the Basel Convention, so that it is necessary to refer to Article 6 of the Basel Convention governing the duty to notify. According to this, either the generator217 or the exporter218 is to be considered the “person who notifies”. Although Article 6 of the Basel Convention also allows notifications of the State of export, such constellations are of no significance concerning the allocation of strict liability. Article 4(1) of the Basel Protocol provides that if the State of export is the notifier or if no notification has taken place, the exporter of the wastes will be liable for damage.
In case damage occurs which involves wastes that are considered hazardous only by the State of export not the State of import219 and provided this damage occurs in an area under the national jurisdiction of the State of export or a State of transit which also considers these wastes as hazardous, Article 4(1) of the Protocol provides that Article 6(5) of the Basel Convention applies mutatis mutandis with regard to the allocation of liability. This means that the liability provisions applying to the importer or disposer apply mutatis mutandis to the exporter. This, however, does not encompass the provisions applying to the disposer since Article 4(1) furthermore provides that (only) “[t]hereafter the disposer shall be liable for damage”. Consequently, the regulatory content of this provision in unclear and it is doubtful whether such constellations will ever become relevant in practice. Liability of an importer is limited, according to Article 4 of the Protocol, to those cases where the wastes are considered hazardous only by the State of import, so that that no liability at all is imposed on the importer regarding the constellations under consideration. A corresponding rule regarding wastes that are considered hazardous only by the State of import220 is laid down in Article 4(2) of the Basel Protocol. According to this, the importer221 is liable for damage until the disposer has taken possession of the wastes provided that the State of import is the notifier or that no notification has taken place. Thereafter the disposer will be liable for damage.
With regard to cases of re-importation according to Articles 8 and 9 of the Basel Convention, strict liability is allocated among the persons involved according to Article 4(3) and (4) of the Protocol. When a transboundary movement of hazardous wastes cannot be completed in accordance with the terms of the contract, the State of export is under the obligation to ensure that the wastes are taken back by the exporter within 90 days.222 Strict liability in this situation is imposed on the original notifier, meaning either the generator or exporter, from the time the hazardous wastes leave the disposal site until the wastes are taken into possession by the original exporter or the alternative disposer.223 When a transboundary movement of hazardous wastes is deemed illegal as the result of conduct on the part of the exporter or generator, the State of export is under the obligation to ensure that the wastes in question are taken back by the exporter, the generator or, if necessary, by the State of export itself.224 In this case, strict liability is imposed on the respective person225 who is under the obligation to re-import until the wastes in question are taken into possession by the original exporter or by the alternate disposer.226 Liability is also imposed on the person who re-imports hazardous wastes if responsibility for illegal trafficking cannot be assigned to either the exporting or the importing side and the States involved through co-operation reach the result that the wastes in question are to re-imported to the State of export.227
Finally, the Basel Protocol establishes joint and several liability among the persons strictly liable under the Protocol. In case two or more persons are strictly liable228 the claimant is entitled to seek full compensation for the damage from any or all of the persons liable.229 The person from whom compensation is sought may then take recourse action against any other person also liable under the Basel Protocol.230
(bb) The Temporal Break When Liability Shifts to the Disposer
The basic idea underlying the allocation of strict liability according to Article 4 of the Basel Protocol is that liability shifts from the notifier or exporter to the disposer at that moment when the disposer takes possession of the hazardous wastes. However, the wording of the provision in this context is ambiguous and requires further clarification.
First, Article 4 does not specify whether it is the moment when the incident occurs or when the damage occurs which is relevant for the allocation of liability. This issue may become relevant in cases where the damage does not occur simultaneously with the incident, but only after some passage of time.231 Although the wording of Article 4, by repeatedly referring to the term “damage”, implies that the moment when damage occurs is crucial for the allocation of liability, such an understanding can hardly be brought in line with the legal context and the purpose of this provision. The allocation of liability to either the notifier or the disposer takes account of the fact that only the respective person is able to execute operational control over the wastes at that time and, thus, is the only person able to prevent as far as possible the occurrence of an incident resulting in damage. If, for instance, the disposer could be held liable for damage that was caused by an incident which took place even before the disposer had taken possession of the wastes, this would mean that the disposer has no chance to prevent the occurrence of damage and, thus, the imposition of liability. The correct understanding of Article 4 must, therefore, be to make the allocation of liability dependent on the moment when the incident occurs.
A further ambiguity of Article 4 is to be seen in the definition of the “possession of the disposer”, since according to the wording of this provision it remains unclear under which conditions the disposer has actually taken possession of the hazardous wastes. As a general rule, the parties to a contract concerning the sale of hazardous wastes are free to decide at what time delivery of the wastes is to be deemed to be performed.232 Depending on the respective terms of delivery the individual carriers involved in the chain of transportation are to be considered the agents of either the seller or the buyer. Thus, if hazardous wastes are sold to a disposer abroad, it is basically possible that delivery within the meaning of the sales contract is performed already upon delivery to the freight forwarder at the seller’s premises or upon loading of the wastes on board the seagoing vessel. This attribution of the conduct of agents to either the seller or buyer leads to appropriate solutions regarding the level of the sales contract, however, with regard to the allocation of liability in the context of transboundary movements of hazardous wastes it cannot be considered suitable. This outcome would rather undermine the sophisticated allocation of liability as provided for by Article 4 and would allow the persons involved in a hazardous waste movement to circumvent the liability provisions of the Basel Protocol by means of a simple contractual clause.
As to the resolution of this ambiguity, the legal definition of the term “disposer” does not help either. Under the Basel Convention and Protocol the disposer is defined as “any person to whom hazardous wastes […] are shipped and who carries out the disposal of such wastes”.233 This definition does not contain any clear statement about whether or not agents are included by the term “disposer”. However, it cannot be assumed that agents are per se excluded from the scope of this definition. This is due to the fact that in many cases the contracting disposer is not the person actually operating the disposal site to which the hazardous wastes are delivered. In case an agreement is in place between the contractual disposer and the operator of a disposal site, delivery to this disposal site must be deemed to constitute delivery to the contractual disposer. Therefore, it is necessary that delivery to the operator of the disposal site, who is deemed to be an agent of the contractual disposer, is considered sufficient within the meaning of the term “disposer”. Consequently, it must be summarised that the term “disposer” must, on the one hand, include agents within the meaning of subcontractors, who are for example actually operating the disposal plant; whereas on the other hand, it seems appropriate to exclude agents from this definition who are acting on behalf of the disposer regarding the transportation of the hazardous wastes. As a result, it thus seems appropriate to construe the definition of the term “disposer” and thus “delivery to the disposer” in a geographical fashion, meaning that it includes the delivery to the operator of the disposal site, irrespective of whether this operator is the contractual disposer or an agent of this person, but disregards any previous processes of delivery to agents of the disposer as agreed upon in the sales contract.
(cc) Non-establishment of a General Secondary Liability of the Generator
A major point of criticism voiced against the allocation of strict liability under the Basel Protocol involves the Protocol’s failing to establish a general secondary liability of the generator of the hazardous wastes. It is argued that in the present shape of the liability provisions the generator is enabled and encouraged to circumvent strict liability by simply selling or handing over the wastes to a third company, which in turn undertakes to arrange the exportation of the hazardous wastes and to submit the formal notification.234