The Present Legal Framework
© Springer-Verlag Berlin Heidelberg 2015
Jan 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_33. The Present Legal Framework
In this chapter, the present state of the international legal framework governing liability and compensation for damage resulting from the transboundary movement of hazardous wastes by sea is outlined. To this end, this chapter not only examines the existing rules and provisions of international law, which apply de lege lata to transboundary movements of hazardous wastes by sea, but also describes and examines recent and current attempts at the international level to further develop this legal framework. In so doing, it is not only possible to give an overview of the rules and provisions currently applying to transboundary movements of hazardous wastes by sea, but also to take into account recent developments and emerging trends.
In the following sections it is examined, first, whether international responsibility and liability of States for damage resulting from the transboundary movement of hazardous wastes may arise from the legal concepts of either State responsibility or State liability. For this purpose, the general legal conception of international responsibility of States is outlined, and the attempts of the International Law Commission (ILC) to codify related rules are depicted. Subsequently, the principle of State responsibility is applied to the particular aspects of hazardous waste movements. In this context, also the applicable international and regional conventions and agreements providing for substantive rules relevant to the transboundary movement of hazardous wastes by sea are identified and examined in detail for their precise content and the impacts they hold for the constellations in question. Finally, the existing civil liability conventions and instruments shall be outlined and their legal ramifications shall be expounded upon.
A. The Legal Concept of International Responsibility
In order to examine the application of the existing rules and provisions of international law to the particular aspects and scenarios of transboundary movements of hazardous wastes by sea, it seems appropriate to first outline the legal concept of international responsibility and liability. In general, three legal constructs need to be taken into account: State responsibility, State liability and international uniform civil liability instruments.
First of all, however, some remarks concerning the terminology used in this context shall be made. The terms “responsibility” and “liability” are generally used in this book according to their common law meaning.1 “Responsibility” means the State of being legally accountable for a certain situation and, thus, comprises any legal consequence that is attached to this state of accountability. The term “liability”, by contrast, is narrower in meaning. It only denotes the state of being financially obligated as one of the possible legal consequences of being “responsible”.2
Independent of this distinction, these meanings cannot simply be transferred to the terms “State responsibility” and “State liability”. The issue of State responsibility and liability for wrongful and dangerous activities is the subject of a lively and controversial discussion, one which is compounded by inconsistent terminology.3 There seems to be agreement, however, as to the use of the term “State responsibility”. This term is generally understood to describe the state of being internationally obligated as consequence of an international wrongful act of State; hence, it requires a breach of an international obligation by the State in question. It becomes apparent that, different than the term “responsibility”, the decisive characteristic for the legal concept of “State responsibility” is to be identified in the origin of liability (in this case “liability ex delicto”) rather than in any other aspect, such as the particular legal consequence.4 By contrast, no such consensus exists as to the meaning of the term “State liability”. While some authors use this term to denote the legal consequence of being financially obligated (according to the meaning of the term “liability”), it is used in other contexts to denote the position of being internationally obligated in respect of damage that occurs due to injurious activities which are not deemed wrongful under international law (“liability sine delicto”).5 Pursuant to the conception of the term “State responsibility”, it seems consistent to also classify the term “State liability” according to the respective cause of liability. The term “State liability”, hence, will be used in this book to describe responsibility and liability arising from an injurious activity that is not deemed wrongful under international law.6
I. The Principle of State Responsibility for Internationally Wrongful Acts
The vast majority of rules in international law have been established in order to govern international relations among States and other subjects of international law. Irrespective of the respective source they derive from (conventions, custom, general principles of law, etc.), these rules constitute individual rights, stipulate standards of conduct and impose duties to act or, alternatively, to refrain from acting. They are commonly referred to as international “primary rules” or “primary obligations”.7
Even though primary rules may establish a well-balanced substantive solution regarding a particular subject matter, they cannot prevent States from infringing these rules for a variety of reasons. In that case the question arises whether an infringement necessarily entails legal consequences and, if so, what the possible legal consequences might be. Explicit rules concerning this issue barely exist and are mostly annexed to the respective primary obligations.8 An international treaty generally stipulating the legal consequences of any breach of an international obligation is not in force at present. In 2001, the International Law Commission (ILC) adopted its Draft Articles on Responsibility of States for Internationally Wrongful Acts, which have not yet entered into force.9 These Draft Articles, albeit not legally binding as such, reproduce to a large extent existing rules of customary international law and are, therefore, used as a de facto binding instrument nevertheless.10
In order to understand the legal concept of State responsibility one must first take a step back. In respect of international law as such, scholars and jurists have long debated its fundamental claim to validity.11 The international community lacks any superordinate political authority or central legislative body, and international law is characterised by the identity of its creator and the obligated subject(s).12 Therefore, the binding force of international law, unlike law at the national level, cannot simply be derived from a sovereign instance but instead has to be explained on the basis of underlying principles of law. Several schools of thought have evolved attempting to derive the legal force of international law from different fundamental principles.13 However, due to the rather philosophical nature of this issue, it might not be possible to determine one wholly accurate reason for the validity of international law. Therefore, one simply has to content oneself with the fact that international law is generally considered and treated as being valid and binding.14 This conclusion is of importance also for the justification of State responsibility. If the binding force of international law is a matter of fact, then the necessary logical consequence is that any infringement of international law is to be considered as an injustice and may not remain without remedy. Otherwise, the legal force of international law would be devoid of meaning. It must, therefore, be seen as an intrinsic consequence of the legal force of international law that any breach of a primary obligation necessarily entails the state of being internationally responsible.15 This outcome also corresponds to the legal concept of all domestic jurisdictions.16 Accordingly, the correlation between a breach of international law and the resulting state of being internationally responsible represents a general principle of law.17 Since this principle, furthermore, belongs to the customary international law established by international case law,18 treaty practice19 and legal doctrine,20 it represents a valid part of the corpus of international law.21
The principle of State responsibility is to be seen as supplementing the primary obligations of international law. It functions as a trigger, which on the occasion of a breach of a primary obligation creates a new legal relationship between the acting State and the victim State or States. It furthermore invokes the application of an entirely different body of legal rules.22 Since these rules are applied only in reaction to the breach of primary rules and solely within the new legal relationship, they are referred to as “secondary rules”.23 Secondary rules may cover two different functions: On the one hand, they may modify the legal conditions under which a State’s conduct is to be considered a breach of the respective primary obligation; in other words, they may determine the “if” of State responsibility. On the other hand, secondary rules may define the legal consequences of a wrongful act; thus they may determine the “how” of State responsibility.24
Secondary rules may derive from any source of international law, such as from treaty provisions, custom or general principles of law.25 Whereas secondary rules that determine the legal consequences of State responsibility are often laid down in express treaty provisions, secondary rules that modify the legal prerequisites of State responsibility mainly stem from customary international law. In case different obligations arise from customary law and express treaty provisions, the latter will prevail over customary rules by means of their specific nature (lex specialis derogat legi generali).26
It is not possible to describe the content of secondary rules in general terms. However, any secondary obligation serves three main objectives: The first is a preventive one. The threat of imposing secondary obligations on the offender serves as deterrence and creates the incentive to act in a legal way.27 Secondary rules, therefore, help to strengthen legal certainty and predictability. The second function is a repressive or corrective one. After an infringement has taken place, secondary rules provide an instrument to safeguard legally protected interests of the impaired State. They therefore aim at the protection and enforcement of the international legal order and also embody a punitive character.28 The third function, finally, covers the compensatory aspect of secondary obligations. By imposing duties of reparation and compensation on the violator of international law, secondary rules aim at shifting the injurious consequences from the impaired State to the creator or the source of harm and, thus, aim to restore the status quo ante as far as possible.29 Corresponding to these objectives the State whose particular rights were violated is entitled to certain remedies. Thus, as long as the internationally wrongful act is ongoing, the impaired State is entitled to demand the immediate cessation of the wrongful act and, if applicable, to require an appropriate guarantee of non-repetition.30 Furthermore, the impaired State may demand the restoration of the previous status quo (restitutio in integrum), or in the event this is impossible or involves a highly disproportionate burden, to demand compensation for both material and immaterial damages.31
II. Is There a Need for Autonomous Rules on State Liability for Lawful but Injurious Activities?
The application of the principle of State responsibility presupposes the breach of an international primary obligation. Since, however, not every transboundary harm can be traced back to a breach of an international obligation, there seems to be a legal gap concerning liability for damage resulting from harmful activities which are not prohibited by international law. This issue of “State liability” has not developed in a systematic legal fashion, but rather arose within the scope of certain activities usually involving a high risk of transboundary damage. Especially since the 1960s, increased technological development has given rise to a number of commercial activities that are conducted on a global scale and that offer huge benefits for entire economies. On the downside, various aspects of these activities pose an increased risk for human health and the environment, e.g. the concentration of large amounts of harmful substances in a small area. Three typical activities warrant mention are: the peaceful use of nuclear energy, the peaceful use of outer space and the use of the sea as a resource and transport medium.32 Correspondingly, a number of recent history’s major environmental disasters can be attributed to these activities, including, for example, the large oil spills emanating from the M/V “Torrey Canyon” and the Deepwater Horizon accidents, the Chernobyl Incident, the Cosmos 954 Crash as well as incidents in connection with hazardous waste transports.33 Nevertheless, these activities are not prohibited or even unwanted. In most cases they rather make good economic sense and have to be accepted as being economically indispensable.
Since it is not possible to fully eliminate the inherent risk related to these activities by the adoption of safety measures, a solution needs to be found by means of a legal regime that generally accepts the risk but provides for appropriate rules of allocating liabilities for damage. With this in mind, some authors advocate the recognition of an autonomous legal principle of State liability for lawful but injurious acts.34 Others, in contrast, reject this concept of an autonomous legal principle of State liability and rather attempt to solve this issue by referring to the existing principle of State responsibility and by partially redefining the underlying substantive obligations of States. In the end, the existence and legal validity of a principle of State liability which impose liability sine delicto simply depends on whether such principle is generally recognised by international jurisdiction, State practice and legal literature.
This question will be addressed in the following sections. But before doing so, those cases shall be identified in which no actual need for an autonomous legal concept of State liability sine delicto exists. Only after having identified such “false cases of liability since delicto” is it necessary to ascertain whether, in respect of the remaining “true cases of liability sine delicto”,35 present international law supports a principle of State liability sine delicto for lawful but injurious acts.
1. “False Cases of Liability Sine Delicto”
The term “false cases of liability sine delicto” summarises all such cases in which transboundary environmental harm is caused by an activity that is not as such prohibited by international law, but in which the resulting damage is nevertheless considered to constitute a breach of an international obligation. This can be the case in the context of obligations of result, i.e. instances which do not require a certain conduct of the State but instead demand that a particular result is achieved regardless of the manner. In such cases, the failure of the State to achieve the prescribed result regardless of the means may be considered an internationally wrongful act. Hence, the principle of State responsibility would be applicable, although there is no particular conduct of the State that is in breach of an international obligation.
(a) The General Approach
At the outset of this inquiry, there must be an identification and precise construction of the respective international primary obligations governing at least partially the transboundary movement of hazardous wastes by sea. Of particular significance in this respect are obligations deriving from international environmental law, which mainly attempt to regulate and diminish certain adverse impacts on human health and the environment.
The following conception of the basic structure of international obligations underlies the approach of identifying “false cases of liability sine delicto”:
(aa) Obligations of Conduct and Obligations of Result
International primary obligations can be divided, according to their regulatory content, into obligations of conduct and obligations of result. An obligation of conduct imposes on the State the duty to conduct itself or behave in a prescribed way or to refrain from a particular conduct or behaviour. Obligations of result, by contrast, stipulate a duty to ensure the occurrence or non-occurrence of a particular event or situation by whatever means.36 An indication of an obligation of result can be seen in the use of the term “ensure”, since this expression describes the final result of an activity rather than the actual activity leading to this result.
In addition, several variations and combinations of these types of obligations exist. This applies especially in respect of a more or less extensive margin of discretion that is left to the parties regarding the interpretation of terms and the final determination of particular standards or thresholds. For instance, international conventions may either specify fixed amounts or thresholds,37 or they may leave the determination of such thresholds to the discretion of the respective States or an interstate committee.38
In respect of obligations of result, States are in general free to decide in which way to achieve the prescribed result.39 However, the margin of discretion left to the States may be restricted in the individual case. Such restriction may be due in cases where it is established with almost absolute certainty that a particular activity will lead to the result prohibited by international law, without there being any opportunity for the State to avoid this result by taking any other measures apart from the complete prohibition of this activity. In this case, the margin of discretion generally left to the State is narrowed to only one legal manner of conduct, i.e. the complete prohibition of this activity. In such constellations, where there is only one path of conduct left that may prevent the prohibited result, it seems appropriate to classify as unlawful not only the later occurrence of the prohibited result, but also any act of permission or connivance of the State which does not prevent the activity that would later cause the prohibited result.40 Such obligations of result that exceptionally also comprise the activity causing this result may be denoted as “qualified obligations of result”.
Finally, there is also a further type of international obligation that cannot be classified as either an obligation of conduct or an obligation of result. These are programmatic obligations which do not impose binding rules or obligations but which, rather, establish policy-oriented provisions or define legal goals.41
(bb) Distinction Between Legal Acts and Factual Activities
It has just been outlined that in respect of obligations of result, there is a margin of discretion left to the States regarding the manner of achieving the prescribed result. Possible legislative and administrative means for the achievement of such a result include a complete ban of the activity causing the adverse effects, the adoption of precautionary or preventive measures, or the regulation and restriction of such activities.
This consideration, moreover, shows that there is a basic distinction underlying the legal structure of internationally wrongful acts. On the one hand there is the legally relevant conduct of the State, which comprises the implementation of legislative and administrative acts. And on the other hand, there is the factual activity mainly conducted by private parties that actually leads to the un wanted result.42 In line with this distinction, the term “activity” is mostly used to denote the factual conduct while the term “act” describes the conduct of the State in a legal sense.
(cc) Implications for the Application of State Responsibility
Given the distinctions between (i) obligations of conduct and obligations of result and (ii) legal acts and factual activities, it becomes apparent that in many of those cases assuming a need for an autonomous legal concept of State liability for lawful but injurious activities, in fact the principle of State responsibility applies, which already provides for a relevant regime of liability and compensation for internationally wrongful acts.43
This may be the case because international law imposes an obligation of result on the State which does not require a certain conduct of the State but rather imposes a particular result to be achieved by whatever means. Hence, the State is not under the obligation to prohibit a certain activity that potentially causes the internationally prohibited result, provided the State is able to ensure the non-occurrence of this result by other legislative or administrative means.44 This, however, also means that the permission of an activity that potentially causes an internationally prohibited result is not per se unlawful. For the same reason it is true that if the permission of an activity is in conformity with international law, this does not mean that the actual consequences of this activity are in conformity with the international law, too. It is rather possible that the actual consequences of such a lawful activity may constitute a breach of an international obligation of the State in that the State has failed to ensure the non-occurrence of this result by any other means.45 Applied to the cases of lawful but injurious activities under consideration, this means, for instance, that the operation of an industrial plant close to the border to an adjacent country may represent a lawful activity under international law, whereas the causation of transboundary harm by this plant constitutes the breach of an international obligation of the State to ensure that damage to another State’s territory is prevented.
From the distinction between legal acts and factual activities, however, it also follows that not any occurrence of an internationally prohibited result may be considered an internationally wrongful act of the State. The legally relevant acts of the State and the factual activities—which are mainly conducted by private parties—are not to be intermingled when assessing whether or not an international obligation has been breached. International obligations are principally addressed at States; private parties are in general not addressees of international norms.46 Consequently, an international obligation may be breached only by an act of the State rather than by the factual activity itself.47 Where an international convention attempts to regulate certain activities conducted by private persons by means of an obligation of result, it is not the activity itself which is judged against international law; the question is rather whether the entirety of the acts implemented by the State with a view to ensuring the prescribed result can be considered sufficient to comply with the international obligation. The standard of conduct to be complied with by the State is determined individually by the respective primary obligation. It is possible that a primary obligation imposes an absolute standard of conduct, according to which the State is absolutely responsible for the achievement of the prescribed result. In most cases, however, international obligations require a standard of due diligence, according to which the possibilities for the State to foresee the occurrence of damage and the capabilities of the State to regulate and control activities of private parties need to be taken into account.48
Notwithstanding this qualification, it becomes apparent that even if environmental damage was caused by an activity which is by itself considered to be in conformity with the international law, the consequences of this activity may nevertheless constitute a breach of an international obligation of the State. Brownlie, therefore, is right when he states that “[m]uch of State responsibility […] is concerned with categories of lawful activities which have caused harm”.49
(b) Further Enhancements of this Approach
Some authors even go beyond the basic approach to apply the principle of State responsibility to the unlawful consequences of a lawful activity. They advocate for the application of the principle of State responsibility even to the lawful activities that later cause an internationally prohibited result.
(aa) Equation of Activities and Its Consequences
According to one opinion, it may not be allowed to artificially distinguish between the conduct of an activity and the activity’s factual consequences. Both components rather form parts of an indivisible whole that must be considered as single entity. From this it follows that in case the consequences of an activity constitute a breach of an international obligation, the conduct of this activity must be contrary to international law as well.50 The main argument produced in favour of this view is the perception that a distinction between an activity’s conduct and its consequences would be necessary only if culpability was a prerequisite for international responsibility. Only in this case would the wrongfulness of the conduct and the consequences of an activity have to be established independently of each other. Since, however, culpability is not seen as a general requirement of international responsibility,51 there does not exist any reason to distinguish between the conduct of an activity and its factual consequences.52
This line of argumentation is not entirely convincing. It is true that today culpability is not considered to be a general requirement of international responsibility. However, from the distinction between primary rules and secondary rules of international law, it follows that the relevant primary rule remains decisive for the question of whether or not culpability is required to constitute a breach of that particular primary rule.53 But of even greater importance is that the posited view suffers from a confusion concerning the terms “acts” and “activities”. The relevant action to be judged against international law is the legal or administrative “act” of the State, which may consist in affirmative conduct or inactivity.54 The statement that the conduct and the consequences of an actual “activity” need to be considered as an indivisible entirety does not change the fact that it is not the “activity”, but rather the “act” of the State which is decisive in establishing an internationally wrongful act.55 It may be true that in most cases where an activity causes an internationally prohibited result this constitutes the breach of an international obligation of result by a State due to the State’s failure to ensure the non-occurrence of this result. However, since there are further legal prerequisites for the establishment of such an internationally wrongful act, the occurrence of the prohibited result and the State’s act of non-prevention may not simply be equated. The argument that the unlawfulness of the consequences of an activity would at the same time establish the unlawfulness of the conduct of this activity may not be reconciled with the legal conception of international obligations and responsibility. Finally, since there seems to be agreement in international law that unlawfulness entails prohibition,56 this consideration would lead to a de facto prohibition of all potentially harmful activities. This obviously cannot be an appropriate outcome.57
(bb) A Comprehensive Obligation to Prevent Damage
A second attempt to further enhance the application of the principle of State responsibility to lawful but injurious activities is provided by the view that favours a comprehensive coverage of any transboundary harm under the principle of State responsibility. The basis of this approach is an extensive construction and interpretation of the primary obligation of States to prevent transboundary harm, and, therefore, it concerns the scope of the substantive primary obligation rather than the principle of State responsibility. Due to its conceptual implications, this approach is nevertheless worth discussing at least in brief at this point.
According to this view, the underlying basic obligation of States to prevent the occurrence of transboundary harm58 is construed and interpreted in such a way as to provide for a comprehensive scope.59 This obligation is understood to prevent the occurrence of any transboundary harm, not being limited to significant damage.60 It is construed as an obligation of result and, moreover, as an objective and absolute obligation. This means that a wrongful act of the State exists in any case where transboundary harm occurs, irrespective of which legislative and administrative measures have been taken by the State and irrespective of whether the State either is in a position to predict the later infringement or has the capability to regulate and control the activities conducted by private parties.61 In consequence of this extensive interpretation, any causation of transboundary harm would be considered an internationally wrongful act, which would entail the application of the principle of State responsibility.
It must be admitted that this approach would indeed lead to a situation where there is no need for an autonomous legal concept of State liability for lawful but injurious activities, since any causation of transboundary harm would be deemed wrongful and correspondingly entail the principle of State responsibility. This, however, would also mean that an activity which involves only a potential threat of transboundary harm must be prohibited by the source State, even if the activity is deemed beneficial or necessary for the economy of that respective State. Particularly smaller countries would thus not be allowed to operate any pollutant-emitting plants, which obviously cannot be an appropriate solution. In addition, it must be objected that such an extensive construction and interpretation of the obligation to prevent transboundary harm is not recognised by international law. It goes far beyond the content of this obligation as accepted by international jurisdiction, State practice and legal literature62 and, hence, may rather be understood merely as a well-meant but inapt political attempt at crafting a solution.
(c) Summary
In summary, it can be concluded that the need for an autonomous legal concept of State liability does not exist with regard to cases in which transboundary environmental harm is caused by an activity that is not as such prohibited by international law, but in which the resulting damage is nevertheless considered to constitute a breach of an international obligation. Of importance for this consideration is the distinction between obligations of conduct and obligations of result as well as the distinction between a legally relevant “act” of the State and the factual “activity” conducted primarily by private persons. If an international obligation of result is in place that obliges the State to ensure the occurrence of a certain result, it is basically left to the discretion of the State in which way to achieve this result. A complete prohibition of the activity leading to the prohibited result is not required, provided the State is able to ensure the non-occurrence of the result by other preventive or precautionary measures. From this it follows that the lawfulness of a State’s permission of a particular activity is to be distinguished from the lawfulness of the consequences of this activity. Consequently, even if a particular activity is deemed to be lawful under international law, the actual consequences of this activity may nevertheless constitute a breach of an international obligation of result.
By contrast, the further attempts to enlarge the coverage of the principle of State responsibility to lawful but injurious activities are not convincing and are not to be encountered in the body of valid international law.
2. “True Cases of Liability Sine Delicto”
The principle of State responsibility is not capable of either covering all transboundary impairments or providing for liability and compensation for every instance of environmental damage. Gaps of liability may exist especially with regard to damage that was caused notwithstanding the State’s having complied with the required standard of due diligence.63 Accordingly, it is being discussed whether and to what extent international law acknowledges a general legal concept of State liability within the meaning of strict liability sine delicto.
Rules of State liability sine delicto must be classified differently than rules of State responsibility ex delicto. Rules of State responsibility apply only in response to a breach of a substantive primary rule of international law and, thus, are referred to as secondary rules. They do not contain a legal valuation of their own, but merely adopt the legal valuation of the respective primary rule.64 By contrast, rules of State liability are not dependent on a breach or even on the existence of an underlying primary rule of international law. Rather, they predefine by themselves the substantive conditions under which liability shall incur and, thus, contain a legal valuation of their own. Rules of State liability, therefore, have to be classified among the body of primary rules of international law.65
(a) Explicit Rules of State Liability
Explicit rules of State liability can be found only sporadically in international law. For instance, in Article VII of the 1967 Outer Space Treaty and in Article II of the 1972 Convention on International Liability for Damage Caused by Space Objects, strict liability for transboundary damage caused by space objects is attached to the launching State. These rules are also referred to by several principles proclaimed by the UN General Assembly Resolution Relevant to the Use of Nuclear Power Sources in Outer Space.66
In UNCLOS, despite several explicit rules on State responsibility, no relevant rules on State liability can be found. Article 110(3) of UNCLOS establishes State liability, albeit not in the context of transboundary environmental damages.67 Article 263(3) of UNCLOS is concerned with liability for pollution of the marine environment arising out of marine scientific research. It does not contain an independent basis for liability, instead referring to Article 235 of UNCLOS, which, in turn, refers to existing civil liability regimes68 as well as to the general international law concerning State responsibility as a basis for liability.69
Finally, provisions in international conventions establishing a subsidiary liability of the State in case the otherwise liable individual or corporate entity is not available to provide compensation cannot be classified among the rules of State liability within the meaning of this consideration. This is because in such cases the State does not incur a genuine State liability, but rather assumes the liability of the involved private parties in the sense of a contingent liability. In this context, Article 9(2)(a) and (3) of the Basel Convention needs to be mentioned as an example which establishes a subsidiary liability of the State to ensure the re-importation or, alternatively, the environmentally sound disposal of hazardous wastes in the event of their illegal traffic.70
In summary, it must be stated, therefore, that, apart from space law, explicit rules on State liability are very rare in international law and remain an extraordinary appearance.
(b) Recognition as a General Principle of International Law?
In addition to the sporadic explicit rules on State liability established by sector-specific international conventions, it might also be possible that the concept of State liability for lawful but injurious activities is recognised as a general principle of international law.
This would be the case, first, if the concept of State liability represented a valid part of customary international law, as proven by State practice, international case law and legal literature. As set out above, only few instances of explicit rules on State liability can be found in the practice of States.71 International case law acknowledging a general liability of States for lawful but injurious activities does not exist. And finally, contrary to a few voices that argue in favour of a general principle of liability sine delicto as derived from the principle “to use your own property so as not to injure another’s” (sic utere tuo ut alienum non laedas),72 international legal literature in general remains rather adverse to the recognition of a general principle of liability sine delicto.73 As a result, it must therefore be stated that the concept of State liability for lawful but injurious activities does not represent a valid principle of customary international law.
Apart from this, the concept of State liability could form part of valid international law if it represented a general principle of law recognised by civilised nations.74 This is indeed assumed by some authors.75 However, solid evidence for this assumption has not been produced. In consideration of the significant differences between the legal prerequisites and the legal consequences of the respective domestic concepts of liability sine delicto, it must rather be concluded that a clear and consistent standard does not exist. A general principle of law recognised by civilised nations comparable in content to the concept of State liability for lawful but injurious activities, therefore, cannot be ascertained.76
This conclusion also reflects the recent position of the ILC regarding the issue of State liability. The ILC, which has contributed with its work to the foundation of the concept of State liability and which has remained one of the strongest supporters of this concept for a considerable time, has recently abandoned its efforts to codify a regime of State liability and changed its strategic approach towards the codification of certain precautionary standards77 as well as towards promoting the elaboration of international civil liability regimes.78
In summary, it can therefore be said, therefore, that a principle of State liability sine delicto for lawful but injurious activities does not find support de lege lata in international law.
(c) Implications of the Non-existence of a General Principle of State Liability
In the end, this result does not seem to be inappropriate.
Some authors assert that the existence of a principle of general State liability would involve certain advantages in comparison with the principle of State responsibility. These include that the concept of State liability would not entail the reproach of a violation of law upon the source State.79 Furthermore, the violated State would not bear the burden of proving the entire range of a breach of an international obligation by the source State, but only the actual causal chain leading to the infringement.80 And finally, the legal implication of prohibition would be avoided, this implication being associated with the wrongfulness of an act as resulting from the principle of State responsibility.81 However, these arguments voiced in favour of the concept of State liability refer only to a comparison with the principle of State responsibility. Since the concepts are designated for very different scenarios, i.e. for lawful activities of private persons or, alternatively, for wrongful acts of the State, the correct question must not be whether the principle of State responsibility or the concept of State liability represents the more appropriate approach. Instead, it must be questioned whether there is an actual need for an additional concept of State liability in scenarios where the principle of State responsibility fails to apply, or whether in such constellations it seems more appropriate to accept a certain level of transboundary damage in order to facilitate necessary economic activities.
In this context, it should be kept in mind that the international relations among States are governed by the substantive rules and provisions of international law that impose obligations on the States to act or behave in a certain prescribed way. The entirety of the international primary rules, thus, does not only provide for a comprehensive legal valuation of what is considered to be lawful and what is deemed unlawful by the international community, it also attempts to reconcile the respective conflicting interests. Whereas rules on State responsibility simply adopt this legal valuation, rules on State liability rather establish a legal valuation of their own. In this context, the existence of a general principle of State liability applicable to any injurious activities would have a particular negative effect. By means of imposing a general standard of liability, the differentiated and more specialised legal valuation of the respective primary rules would be negated. It becomes apparent that such a “lawnmower-solution” may not be considered a suitable and appropriate solution regarding the considerable range of circumstances that need to be taken into account in respect of the possible commercial activities which pose a potential risk of causing transboundary harm. Therefore, a general principle of State liability sine delicto must be considered an improper, alien element in the overall structure of international primary rules and, consequently, should be rejected.
In conclusion, it can be summarised that the concept of State liability for lawful but injurious activities not only lacks recognition as a general principle of international law, but also that is fails to provide for a necessary or even appropriate approach which might contribute to a reconciliation of interests. Rather, it seems appropriate to restrict international liability to the general principle of State responsibility, through which it is ensured that the substantive valuation of the primary rules is adequately taken into account. This, of course, does not mean that it is unnecessary to specify existing primary rules or impose further ones on States in certain fields of law. Furthermore, the creation of explicit provisions on State liability in certain sector-specific conventions may be considered a suitable and appropriate legal instrument in the individual case.
3. The Relationship Between Both Concepts
Since international law does not embrace a general principle of State liability for lawful but injurious activities, the question regarding the relationship between the concepts of State liability and State responsibility only becomes relevant in respect of cases in which State liability is imposed by means of explicit convention provisions.
In this regard Randelzhofer proceeds on the assumption that the two concepts are mutually exclusive. As far as liability arising from one particular incident is concerned, he argues that the act of the State can either be lawful, or it can be wrongful, but by no means can it be both at the same time.82 Although this statement is logically true, it nevertheless disregards the fact that both concepts concern very different premises of liability. Whereas State responsibility is concerned with internationally wrongful acts of the State, the concept of State liability focuses rather on the strict liability of the State for the injurious effects of lawful commercial activities conducted by private persons which fall under the jurisdiction of the liable State. Therefore, the assumption that a State incurs strict liability on account of an explicit provision of State liability allocating the adverse effects of a beneficial commercial activity to the source State does not preclude the finding that this State may at the same time be responsible for a breach of an international obligation, e.g. to ensure the non-occurrence of a particular type of damage or to implement certain supervisory instruments or precautionary measures.
It must be kept in mind that the concepts of State responsibility and State liability derive from different legal concepts. They have different legal prerequisites and impose different legal consequences; and in particular, they pursue different legal goals. Therefore, there is no reason to assume that one of these concepts encapsulates the other one, or that both concepts are mutually exclusive.83 This conclusion is furthermore in line with the conception of the ILC, which in its earlier work did not restrict the concept of State liability to activities allowed under international law.84 In summary, it can be concluded, therefore, that these concepts are not mutually exclusive; they rather complement each other and may principally be simultaneously applicable. Hence, the claimant State is given the opportunity to choose on which basis to bring its claim, taking account of the respective prerequisites and the legal content of the different claims.85
III. The Importance of Civil Liability Conventions
The third component of the international legal framework governing responsibility and liability consists in civil liability conventions. By means of civil liability conventions States commit themselves to implement into their domestic laws an internationally uniform regime of civil liability, according to which certain minimum standards of liability and compensation are ensured among the contracting States. But civil liability conventions do not only stipulate a certain uniform standard of substantial liability; they also ensure a mutual recognition of court decisions that are based on this uniform law and lay down rules which in most cases create the opportunity for forum shopping.
Civil liability conventions today represent the most important legal instrument for addressing transboundary environmental damage.86 This is mainly due to the numerous regulatory opportunities which may take account of the specific circumstances of the individual case. Thus, it is possible that by means of convention provisions, strict liability or fault-based liability or a combination of both forms is imposed on the responsible person. Moreover, a secondary liability of the State may be established, financial guarantees and insurance coverage may be required, and by means of exclusions of liability and maximum amounts of liability, the economic incentives of the private persons involved may be steered. The limitation of liability also facilitates the insurability of the financial risk attached to liability and, thus, ensures that compensation of the victim is available independently from the financial capacity of the liable party. Additional instruments, such as compensation funds, may ensure prompt emergency response and damage compensation. Finally, the codification of the preconditions for liability contributes to legal certainty and encourages economic activity as well as precautions being taken against damage. On the downside, it must be noted that a higher precautionary standard entails higher costs for the related preventive measures. If the precautionary standard and the standard of liability are set too high, this has rather the effect of encouraging the illegal conduct of commercial activities.
The high practical relevance of civil liability conventions is also in line with the recent approach of the ILC, which refrains from further attempts to codify general rules of State liability, but rather promotes the creation of sectoral regimes of civil liability.87
B. The Contribution of the International Law Commission
The allocation of responsibilities and the imposition of liability for transboundary environmental damage are governed by international law. Such rules cannot be dictated unilaterally but depend in their existence and scope on their being recognised by the community of States. Consequently, rules of international law are subject to a steady evolution which, due to the nature of affairs, proceeds without design. This applies particularly to customary international law. But also the international law found in conventions would remain fragmentary and incoherent in structure without any strategic guidance over the long term.
In order to determine the scope of existing rules in international law and to guide the codification of further rules, the installation of an interstate governmental organisation assigned with these tasks was envisaged as far back as the early 20th century. Thus, in 1924 the Committee of Experts for the Progressive Codification of International Law was established as a standing organ by the Assembly of the League of Nations. However, this Committee remained without practical significance as a result of the global turbulence witnessed in the 1930s and the subsequent outbreak of the Second World War.88 After the Second World War, this purpose was taken up again during the foundation of the United Nations in 1945,89 and in 1947 the United Nations General Assembly passed a resolution to set up the International Law Commission (ILC) as a permanent subsidiary organ.90
The ILC’s goals are defined as promoting the progressive development and codification of international law. The Commission’s focus lies primarily on public international law, but it is not precluded from considering private international law.91 It consists today of 34 “recognized” international law experts,92 and holds annual Sessions, with the 1st Session having been held in 1949.93 Even though the statutory procedural rules of the ILC differ depending on whether the progressive development or the codification of international law is concerned, this distinction has proven unworkable in practice, and the ILC rather follows a consolidated procedure that is divided into three stages.94 Prior to the initiation of this procedure, the decision of the ILC to concern itself with a certain legal topic is precipitated either by a formal request of the General Assembly, by an ascertained need to progress or further develop previous works, or by recommendations of working groups.95 Accordingly, in the first stage the ILC appoints one of its members as Special Rapporteur and collects information and documentation. The second stage comprises the first reading of the draft articles prepared by the Special Rapporteur and the submission of the approved drafts with commentaries to the General Assembly and to the governments. In the third and final stage, the Special Rapporteur reconsiders the draft articles after evaluating the respective government comments. A second reading of the revised draft takes place in plenary and the approved draft is again presented to the General Assembly along with recommendations regarding further actions.96 Possible recommendations to the General Assembly include taking no action, taking note of or adopting the report, recommending the conclusion of a convention or convoking a conference to conclude the convention.97
I. State Responsibility
Already at its 1st Session in 1949, the ILC identified the topic of State responsibility as being suitable for codification.98 Then, after a formal request of the General Assembly,99 at its 7th Session in 1955 the ILC appointed F.V. García-Amador as Special Rapporteur, who presented six successive reports on this issue. He was succeeded in his position in 1963 by Roberto Ago, who similarly presented eight reports between 1969 and 1978. At its 21st Session in 1969, the ILC laid down criteria for further efforts on this issue. According to this, the work was to be confined to internationally wrongful acts; the question of liability for lawful acts was separated and deferred to a later stage.100 This was confirmed at the 22nd Session when the ILC held the view that both issues could not be treated jointly and that the term “State responsibility” was to be understood as referring only to internationally wrongful acts. A further innovation was the recognition of a distinction between primary and secondary rules of international law.101 Pursuant to a recommendation of the General Assembly to prepare a first draft of articles on State responsibility,102 the ILC adopted Part One of these draft articles concerning the origin of international responsibility, this occurring on first reading over the course of the 25th through 32nd Sessions held between 1973 and 1980.103 Parts Two and Three of the draft articles concerning the content, forms and degrees of international responsibility as well as the legal consequences were prepared by the Special Rapporteurs Willem Riphagen and Gaetano Arangio-Ruiz, who were appointed in 1979 and 1987, respectively.104 It was not until the 48th Session in 1996 that the ILC completed the first reading on Parts Two and Three and transmitted the provisionally adopted draft articles to the General Assembly and the governments for comments.105 At the 49th Session, James Crawford was appointed as Special Rapporteur and the second reading of the draft articles took place. One of the major disputes in respect of these draft articles was the contemplated segregation of wrongful acts into crimes and delicts, which was addressed by Article 19. Since no consensus could be reached on this issue, it was agreed to defer this issue and to proceed without Article 19 as well as without the equally controversial provisions on dispute settlement.106 The second reading was subsequently completed at the 53rd Session in 2001, where the ILC adopted the final draft articles on responsibility of States for internationally wrongful acts,107 consisting in total of 59 Articles and the commentaries thereto.108
The General Assembly took note of the draft articles and repeatedly commended them to the attention of governments in 2001, 2004, 2007 and 2010.109 However, no further significant steps have been taken so far. While some voices support an immediate or at least early convening of a diplomatic conference for the adoption of an international convention—pointing out that this would both be the next logical step and ensure legal certainty—other voices instead favour postponing the decision on further actions. They emphasise that negotiating a convention would reopen controversial issues and jeopardise the delicate compromise represented by the present draft articles. Moreover, they argue that if only a small number of ratifications were to be recorded, this could hinder recognition of the draft articles as a part of accepted customary international law.110 However, regardless of the future actions taken or not taken with a view to concluding a convention, the draft articles on State responsibility are already referred to extensively in the international practice of States, and they are already used as a de facto source of law by both the ICJ111 and the ITLOS.112 , 113
II. State Liability
After the ILC decision to segregate the issue of State liability from the topic of State responsibility, between 1973 and 1977 the General Assembly urged to undertake a study on this issue.114 At its 30th Session in 1978, the ILC commenced its work under the title “international liability for injurious consequences arising out of acts not prohibited by international law” and appointed Robert Q. Quentin-Baxter as Special Rapporteur on this issue. Quentin-Baxter presented five reports between 1980 and 1984 and, amongst them, also a schematic outline of the proposed codification.115 This schematic outline is based on a “compound primary obligation” of States to prevent, minimise and remedy transboundary harm; it is, however, not conceived as an absolute obligation, so that failures to comply with this “negotiable duty”116 would not entail the application of the principle of State responsibility.117 Quentin-Baxter was succeeded in his position as Special Rapporteur by Julio Barboza in 1985. He, in turn, presented twelve reports between 1985 and 1996, amongst them the first ten draft articles in 1988 and, at the 42nd Session in 1990, a complete set of 33 draft articles on this issue.118 These draft articles proceeded to conceive of State liability as an autonomous legal concept of primary international law that must be understood as being distinct from the principle of State responsibility.119
This very early position of the ILC to conceptualise State liability as an autonomous legal notion distinct from the principle of State responsibility has faced broad criticism since the beginning.120 According to the ILC, this distinction was necessary since liability for environmental harm occurring in consequence of lawful but injurious activities cannot be traced back to a wrongful act of the State and, therefore, would have to be liability sine delicto.121 This argumentation, however, has been seen as suffering from a “conceptual confusion”122 and being “based on a fundamental misunderstanding”.123 As outlined above,124 it seems instead preferable to accept the existence of general international obligations of States to prevent transboundary damage which—as far as lawful activities conducted by private persons are concerned—are transformed into obligations to control and prevent. In the event the source State has failed to comply with this obligation, it is internationally liable according to the State responsibility principle even though the activity remains lawful as such. From this it becomes apparent that: (i) relevant situations could, indeed, for the most part be addressed without an autonomous concept of State liability and (ii) the artificial distinction between both concepts as well as the ILC’s approach to primarily apply the State liability concept to encounter lawful but injurious activities may be unfortunate and unnecessarily complicated. However, as far as the concept of State liability is concerned, it is true that it represents an autonomous concept distinct from the State responsibility principle and that is has to be classified as among primary international rules.125 Due to the changes in the final work of the ILC, which will be outlined in the following paragraphs, this conceptual discord may, moreover, be of less significance in the end.
In consequence of the Special Rapporteur Barboza’s reports, at its 44th Session in 1992 the ILC acknowledged that the topic comprises issues of prevention as well as issues of remedial measures, and it decided that, initially, articles on preventive measures should be drafted and the drafting process should be expanded to remedial measures only after their completion.126 This segregation was definitively accomplished at the 49th Session in 1997 when the ILC decided to split this topic into “prevention of transboundary damage from hazardous activities”, on one side, and “international liability in case of loss from transboundary harm arising out of hazardous activities”, on the other.127
The ILC proceeded first with the topic of “prevention of transboundary damage from hazardous activities” and at the same 49th Session appointed Pemmaraju Sreenivasa Rao as Special Rapporteur on this issue. During the following four Sessions occurring between 1998 and 2001, the ILC reconsidered and revised the draft articles previously received from Special Rapporteur Barboza at the 48th Session in 1996, and after a first reading transmitted to the governments a set of 17 draft articles for comments and observations. At its 53rd Session in 2001, the ILC adopted the final “Draft Articles on Prevention of Transboundary Harm from Hazardous Activities” (with commentaries thereto) and submitted them to the General Assembly along with the recommendation to elaborate a convention.128 These final draft articles contain a basic obligation of States to prevent and minimise risks of transboundary harm and, to this end, establish certain procedural requirements such as notification and consultation rules.129 The General Assembly took note of these final draft articles and requested the ILC to proceed with the second part of the topic.130
The ILC’s conceptual approach for dealing with the issue of State liability has significantly changed under the guidance of Special Rapporteur Rao since the revision of the 1996 draft articles. It was recognised by the ILC that no agreement could be reached among States for the establishment of primary rules imposing strict liability on States for damages caused by lawful activities of private parties. The ILC, from that point forward, has changed its approach and has focused on the promotion of civil liability solutions modelled on the existing civil liability regimes concerning maritime transportation and nuclear activities.131 According to this, the operator in command or control of the activity is seen and treated as the (strictly) liable party. The States are obligated insofar as they are required to implement into their domestic laws the rules and standards of liability set out in the ILC draft articles and, if necessary, to support financial remedies such as specially designated funds or a secondary liability of the State.132 The advantage of this approach, despite the fact that the financial capacity of private parties is limited, is that it attracts a wide consensus among States and, moreover, creates a direct economic incentive in the acting parties to act in accordance with the procedural requirements in order not to lose insurance coverage.
In line with this reconceived approach and pursuant to a request by the General Assembly, the ILC, at its 54th Session in 2002, decided to take up its work on the second part of the State liability issue under the title “international liability in case of loss from transboundary harm arising out of hazardous activities”, and to this end it appointed Pemmaraju Sreenivasa Rao as Special Rapporteur also for this issue. At its 56th Session in 2004 the ILC was intensively concerned with this issue and finally adopted on first reading a set of eight “Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities”, which it transmitted through the Secretary-General to governments for comments and observations.133 The aim of the draft principles, which are formulated as soft law, is to ensure compensation for transboundary damage caused by hazardous activities by urging States to (i) implement into their domestic laws civil liability remedies imposed on the operator of the activity and (ii) adopt other supporting financial measures.134 The second reading of these draft principles was completed at the ILC’s 58th Session in 2006, at which the ILC recommended to the General Assembly that is endorse the draft principles by a resolution and urge governments to take national and international action to implement them.135 At its Sessions in 2006 and 2007, the General Assembly commended these draft principles to the attention of governments.136
At its 65th Session in 2010 the General Assembly was, in respect of the State liability topic, mainly concerned with the question which form the draft articles and draft principles should take and in which way to proceed with this issue. The ILC had recommended that the draft articles on prevention should be adopted in an international convention, while the draft principles on allocation of loss should be endorsed in a resolution. However, no consensus in the General Assembly could be found in this regard. While some delegations expressed support for the idea of transforming the draft articles into a convention, emphasising the need for a uniform regime, the majority of the delegations opposed this idea and rather argued in favour of retaining the drafts in their current form and postponing the decision whether to adopt a convention.137 Their main argument was that these drafts represent a progressive development of international law without yet claiming sufficient support in customary international law.138
For now, a conclusion of this codification process has not been reached and is not yet foreseeable. It remains an open issue whether and, if so, in which form the draft articles and draft principles will become binding law.
C. State Responsibility in the Context of Transboundary Movements of Hazardous Wastes by Sea
It has been outlined above that two different legal concepts of international law may be of practical relevance for the imposition of responsibilities and liabilities in the context of transboundary movements of hazardous wastes by sea. The first relates to explicit provisions and customary rules of State responsibility, according to which responsibilities and liabilities are imposed on a State accountable for an internationally wrongful act. The second relates to liability in accordance with civil liability conventions. In this section, the question is raised under which conditions the States may incur liabilities under explicit provisions of State responsibility as well as under the customary principle of State responsibility.
Since rules of State responsibility represent secondary rules of international law, the legal prerequisites for responsibility are dependent on the existence and the precise scope of the underlying primary obligations. Therefore, the primary obligations of States relevant to the transboundary movement of hazardous wastes by sea are examined in detail in the context of the following investigation.
I. Explicit Provisions of State Responsibility in International Treaty Law
Explicit provisions concerning State responsibility that are established by international conventions represent leges speciales in relation to the customary principle of State responsibility.139 Therefore, it shall be determined in a first step whether and to which extent explicit rules of State responsibility arise from international treaty law.
1. The Basel Convention
The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention) represents the most important legal instrument on a global scale for the regulation of international hazardous wastes trades. It aims to achieve and strengthen the control and reduction of international hazardous waste streams by establishing a so-called “prior-informed-consent”-principle (PIC), which requires the previous written consent of all States involved in a hazardous waste transport before a transboundary shipment is allowed to take place.140
The Basel Convention does not contain an explicit regime of rules of State responsibility for the internationally wrongful acts of Contracting States. From the general conception of international law as well as from the explicit statement in Paragraph 15 of the Preamble to the Basel Convention, it rather follows that the provisions of the Basel Convention basically do not affect the application of the general principle of State responsibility. However, the application of this principle may be excluded by reason of specialty. This means that if the Basel Convention provides for a regime of rules conclusively governing the legal consequences of non-compliance by the State with regard to a particular subject matter—financial liability not necessarily having to be the specified consequence—such rules constitute a (sectoral) self-contained regime that overrules the general principle of State responsibility.141 Hence, the question arises whether Article 12, 8 or 9 of the Basel Convention may be considered as constituting a sectoral self-contained regime.
(a) Article 12
Article 12 of the Convention calls for the Contracting States to negotiate and adopt a supplementary protocol to the Convention that sets out in detail appropriate rules of liability and compensation (“pactum de negotiando”). Article 12, which is captioned as “Consultations on Liability”, only provides for the mandate placed on the Contracting States to elaborate a liability protocol without setting out any substantial rules or standards to be met. It, particularly, does not determine whether the prospective protocol shall primarily be directed at private persons and entities, or at States. Therefore, it provides a margin of discretion to the Contracting States which entails not only the possible content of the prospective protocol, but also the basic decision of whether to elaborate an instrument of State responsibility and liability, or to codify a civil liability protocol.142 However, it should be kept in mind that States are in general reluctant to enter into financial and political commitments, as would result in respect of a regime of State responsibility. Therefore, and in order to nevertheless gain the Contracting States’ support for the adoption of a supplementary protocol on liability and compensation, the final text of the 1999 Protocol to the Basel Convention contains no rules imposing direct financial responsibilities or liabilities on States.143
It becomes apparent that neither Article 12 of the Basel Convention nor the provisions of the 1999 Liability Protocol are concerned with the international responsibility of States arising from the internationally wrongful acts of Contracting States themselves. These provisions rather govern the financial liabilities of individuals and corporate entities in consequence of their involvement in the harmful activity of shipping hazardous wastes. Therefore, a sectoral self-contained regime cannot be seen in Article 12 of the Basel Convention in connection with the 1999 Liability Protocol.
(b) Article 8
Article 8 of the Basel Convention provides that in case a transport of hazardous wastes to which the consent of the States concerned has been given 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 re-imported by the exporter into the State of export. By contrast, even a subsidiary obligation of the exporting State to re-import the wastes itself does not exist under the Basel Convention. In consequence, it must be stated that Article 8 is not concerned with illegal traffic under the Basel Convention and is even less concerned with the non-compliance of Contracting States in respect of their obligations under the Basel Convention. Article 8, thus, does not contain a regime governing the legal consequences of internationally wrongful acts of Contracting States.144 It rather deals with legal and permitted transports which entail an increased risk of harm due to the fact that these transports have not been completed. In this sense, Article 8 is comparable to the concept of State liability, albeit not being targeted towards financial compensation. It imposes a primary obligation on the Contracting States aiming at a reduction of the risk of further damage. Article 8 may not be considered a sectoral self-contained regime.
(c) Article 9
Article 9 of the Basel Convention is concerned with hazardous waste transports that are classified as “illegal traffic” due to non-compliance of the acting persons with the procedural requirements laid down by the Convention.145 Article 9 establishes certain obligations in response to “illegal traffic”. To this end, it distinguishes between cases in which the reason for “illegal traffic” lies with the exporter or generator on the outgoing side, and cases in which the reason lies with the importer or disposer on the incoming side. In the former case, the State of export is under the obligation to ensure that the illegally transported wastes are taken back to the State of export either by the exporter or generator, or, if necessary, by the State itself.146 In the latter case, the same obligation is imposed mutatis mutandis to the State of import, which has to ensure that the wastes in question are disposed of in an environmentally sound manner by the importer or disposer or, if necessary, by the State itself.147 Article 9, thus, determines the legal consequences of hazardous waste transports that are deemed illegal because of the conduct of individuals or corporate entities.
This raises the question whether the “illegal traffic” of private persons may at the same time constitute an unlawful act of the State and, therefore, a breach of an international obligation of that State. It is only in that case that Article 9 may have to be seen as a conclusive regulation of State responsibility that overrides the application of the general principle of State responsibility. However, the answer to this question cannot be given solely on the basis of Article 9, which only describes the consequences of “illegal traffic”. Rather, it needs to be taken into account which particular obligations rest with the States in view of the conduct of private persons constituting the “illegal traffic”. First of all, States are under the general obligation to implement the procedural rules stipulated by the Basel Convention into their national laws148 as well as to comply with the Convention rules and provisions which are addressed at the States itself. This involves, first, the obligation to install sufficient instruments and mechanisms of monitoring and control as well as the obligation to establish competent authorities.149 Furthermore, the Basel Convention imposes on the Contracting States the obligation to prevent the conduct of any single transboundary movement of hazardous wastes, unless all notification and PIC-requirements have been fulfilled by the exporter or generator.150 This obligation to not allow the commencement of non-consented transports is an obligation of conduct. The States are responsible to undertake a certain conduct, namely enforcing the non-permissibility of non-consented transports and the monitoring and control of relevant activities of private persons. In contrast, this obligation does not require the States to ensure that any kind of “illegal traffic” is prevented, within the sense of a State guarantee for the non-occurrence of such illegal transports. Therefore, it is possible that a particular hazardous waste movement which is deemed to be illegal within the meaning of Article 9 does not at the same time constitute a wrongful act of the State itself.151 This, in turn, means that Article 9 is not necessarily concerned with internationally wrongful acts of States and, thus, cannot be classed among the body of rules of State responsibility. Article 9, therefore, cannot be considered a self-contained regime overriding the application of the general principle of State responsibility. It rather establishes a primary obligation of States to ensure the re-importation of illegally shipped wastes.
(d) Summary
In summary, it can be concluded that neither Article 12 in connection with the provisions of the 1999 Liability Protocol, nor Articles 8 and 9 contain rules of State responsibility. They rather establish the primary obligation of States to ensure the re-importation or proper disposal of hazardous wastes in case of illegal traffic or in case a transport cannot be completed according to the terms of the contract. These provisions, therefore, cannot be regarded as self-contained regimes of secondary rules conclusively governing the legal consequences of a breach of a primary obligation under the Basel Convention by the Contracting States. Hence, the general principle of State responsibility is not excluded by virtue of Article 12 in connection with the 1999 Liability Protocol or by virtue of Articles 8 or 9 of the Basel Convention.152
2. Other Conventions Relevant to the Trade in and Transport of Hazardous Wastes
Besides the Basel Convention, there are also regional conventions relevant to the trade in and transport of hazardous wastes which have a practical effect also on the global scale.153 This includes in particular two conventions that have been elaborated in consequence of the Basel Convention’s approach to implement a PIC-system instead of providing for a complete prohibition of hazardous waste trade. These conventions, therefore, establish a trade or import ban of hazardous wastes in their respective regional convention areas. The 1991 Bamako Convention154 was developed under the auspices of the former Organisation of African Unity (OAU) and imposes a general import ban on hazardous wastes from non-Contracting Parties to African countries.155 Likewise, the Contracting States of the 1995 Waigani Convention156 agreed on a general prohibition of all imports of hazardous waste into the South Pacific Region.157
Except for the general PIC-approach, both Conventions are shaped according to the model of the Basel Convention. They do not contain their own regime of liability and compensation for damage arising from hazardous waste transports, but call for the Contracting States to elaborate a protocol setting out relevant rules of liability and compensation.158 As of yet, such a protocol exists in respect of neither the Bamako nor the Waigani Convention. As with the Basel Convention, the mandate to negotiate in principle also allows for the elaboration of rules of State responsibility and State liability. Such obligations, of course, could only be imposed on the Contracting States of the respective convention, so that no responsibilities and liabilities could be imposed on non-Parties that are involved in hazardous waste exports into the respective convention area. The Bamako Convention, in addition, requires the Contracting States to impose strict and unlimited liability as well as joint and several liability on hazardous waste generators.159
Besides this pactum de negotiando, both Conventions stipulate in their Articles 8 and 9 obligations of the Contracting States to ensure the re-importation or proper disposal of hazardous wastes in case of “illegal traffic” or in case the transport could not be finished according to the terms of the contract. These rules are largely similar to Articles 8 and 9 of the Basel Convention and, thus, have to be construed in the same way. Since these obligations do not necessarily require an internationally wrongful act of the State, they cannot be classified among the rules of State responsibility. In summary, therefore, neither the Bamako nor the Waigani Convention contains explicit rules of State responsibility.
The same conclusion applies to the European Union (EU) Waste Shipment Regulation of 2006,160 through which the requirements of the Basel Convention and Decision C(2001)107/FINAL of the OECD Council161 are implemented in the EU area.162 In its Articles 22–25, the EU Waste Shipment Regulation imposes on exporting States and in certain cases also on importing States the duty of either re-importation or proper disposal in case of illegal transports or in case the transport could not be finished according to the terms of the contract. As with Articles 8 and 9 of the Basel, Bamako and Waigani Conventions, Articles 22–25 of the EU Waste Shipment Regulation must be understood to contain substantive primary rules that apply irrespective of any international wrongful act of the State. Rules of State responsibility, therefore, cannot be found in the EU law relevant to the trade in hazardous wastes.
Finally, depending on the chemical composition of the hazardous wastes in question, also the 2001 Stockholm POP-Convention163 may provide for applicable rules relevant in the context of transboundary movement of hazardous wastes. The Convention applies to an enumerated list of persistent organic pollutants (POPs). It restricts the production of POPs and imposes trade restrictions as well as other procedural requirements for their use and handling.164 Concerning non-compliance mechanisms and rules of State responsibility, the Convention in Article 17 calls for the Contracting States to develop and approve procedures and institutional mechanisms for determining both the existence of non-compliance and the legal consequences of the same. In contrast to Article 12 of the Basel, Bamako and Waigani Conventions, Article 17 of the POP-Convention is more clearly directed towards the elaboration of rules concerning in particular the responsibility of States. However, besides this mandate to elaborate rules and procedures, no positive rules addressing the issue of State responsibility are included in the Convention. This is also acknowledged by the Convention itself, which in Paragraph 10 of its Preamble refers to the customary obligation of States not to cause damage to the environment beyond the State’s own territory. In summary, it can be stated that explicit rules of State responsibility cannot be found in the 2001 Stockholm POP-Convention.
3. The Law of the Sea Convention (UNCLOS)
In 1994 the United Nations Convention for the Law of the Sea (UNCLOS) entered into force, to which until now 165 States and the European Union have thus far become Contracting Parties.165 Because of both the Convention’s widespread acceptance as well as its universal application to marine legal issues and activities, the UNCLOS represents the major global instrument in the field of the law of the sea and, therefore, is often referred to as the “constitution of the oceans”.166 The UNCLOS, however, also represents a framework convention that in many aspects only provides for general rules combined with a mandate directed at the States to elaborate sectoral or regional conventions in the relevant fields.167
This structure particularly applies to Part XII of the UNCLOS which is concerned with the protection and preservation of the marine environment and which in its Article 197 mandates the Member States to elaborate further sectoral legal regimes. Part XII comprises 11 Sections, of which the single article of Section 9 is concerned with State responsibility and consists of only one article. Article 235 Paragraph 1 restates the general principle of international law according to which States are responsible for the fulfilment of their international obligations and, in case of non-compliance, are liable in accordance with international law.168 This provision is a typical example of the framework character of the UNCLOS. Article 235 solely refers to the general principle of State responsibility recognised by customary international law and does not contain any legal rationale of its own. It is, therefore, to be seen as a simple declaratory or reference rule that cannot function as an autonomous basis for claims of compensation.169 Furthermore, being “liable” within the meaning of Sentence 2 is neither to be understood in a way that this provision constitutes a legal basis for State liability sine delicto, nor in way that it refers to an existing principle of State liability under customary international law. Sentence 2 is rather to be seen in connection with Sentence 1 of the same paragraph, namely referring to the general legal consequences of an internationally wrongful act as being determined by the customary principle of State responsibility and as potentially including financial obligations.170 Finally, also Paragraphs 2 and 3 of Article 235 have no particular significance as regards State responsibility. Paragraph 2 in connection with Article 229 incorporates a so-called “civil liability approach”, according to which the States are obliged “to ensure that recourse is available” in accordance with either civil liability conventions or the domestic law in cases where damage was caused by pollution of the marine environment.171 Paragraph 3 specifies the obligation of States to implement and further develop the international law relating to State responsibility and liability and establishes the obligation to implement further measures and instruments to safeguard the payment of adequate compensation, e.g. by compulsory insurance or compensation funds. In summary, Article 235 as a whole is of rather a declaratory and programmatic nature and thus does not provide any substantive rules of State responsibility.
In the UNCLOS no further rules of State responsibility can be found that are applicable to scenarios relevant in the context of transboundary movements of hazardous wastes. Article 139 Paragraph 2 contains an explicit rule establishing the international responsibility of States, this however being in connection with activities in the Area,172 which is not relevant for the present consideration.173 Furthermore, Article 232 concerns liability of States arising from unlawful enforcement measures with regard to the protection of the marine environment; and Article 262 concerns responsibility and liability of States in connection with marine scientific research. These provisions also lack a substantive rationale of their own, instead simply referring to the general rules of State responsibility being recognised as a general principle of customary international law. Finally, Article 304 clarifies in general terms that the provisions laid down by the UNLCOS regarding responsibility and liability for damage do not affect existing or future rules on State responsibility or State liability.
In summary, it can be said, therefore, that in the UNCLOS no explicit rules of State responsibility can be found that are relevant for the determination of responsibilities and liabilities of States with regard to damages occurring in the context of transboundary movements of hazardous wastes by sea.
4. Other Conventions Relevant to the Protection of the Marine Environment
Besides the UNCLOS, further sectoral or regional conventions relevant to the protection of the marine environment need to be taken into account when assessing international responsibilities and liabilities of States for damage resulting from the transboundary movement of hazardous waste by sea. In this context, the MARPOL 73/78 Convention and a number of regional conventions elaborated within the framework of the UNEP Regional Seas Programme are of particular significance.
The MARPOL 73/78 Convention174 is a global framework convention that only contains rules of control and enforcement with regard to the substantial provisions laid down in six Annexes to the Convention. For the transport of hazardous wastes by sea, Annexes II and III are of particular relevance. Annex II contains regulations for the control of pollution by noxious liquid substances transported in bulk; Annex III deals with the prevention of pollution of harmful substances transported in packaged form. Both Annexes also apply to wastes composed of noxious or harmful substances. Non-compliance rules are not contained in these Annexes, but Article 7 of MARPOL 73/78 establishes an explicit rule of State responsibility, according to which the State is responsible and liable to pay compensation if a ship has been unduly detained or delayed under Articles 4, 5 or 6 of the Convention (in connection with its Annexes). Although this provision concerns internationally wrongful acts of the State, it only encompasses the specific case that a ship has been unduly detailed or delayed. It does not apply to any other breach of a substantive obligation with regard to the protection of the marine environment as laid down in the Annexes to the Convention. Hence, the explicit rules regarding State responsibility established by MARPOL 73/78 are of no relevance for damages resulting from the transboundary movement of hazardous wastes by sea.
Relevant explicit rules on State responsibility may also arise from regional conventions aiming at the protection of the marine environment which have been elaborated in the framework of the UNEP Regional Seas Programme. This Programme was launched by the United Nations Environment Programme (UNEP) in 1974 in order to promote the creation of regional action plans and conventions for the protection of coastal and marine environments, taking account of the special requirements of the respective regions. Within this Programme, 13 Regional Seas Programmes have been established under the auspices of UNEP. Five further associated Programmes have been set up independently, outside the aegis of UNEP.175 In respect of 14 of these 18 Programmes, legally binding conventions have been adopted aiming at the protection of the marine environment at a regional level.176 These conventions pursue the “framework convention” model consisting of a legally binding general agreement that is supplemented by associated, but legally independent protocols, each concerning a specific issue. However, neither these conventions177 nor the respective Protocols concerning the transboundary movement of hazardous wastes178 contain explicit rules through which responsibilities or liabilities are imposed on the Contracting States in response to an internationally wrongful act of the State.
5. Summary
In summary, it can be concluded that explicit rules of State responsibility for damage which result in the context of transboundary movements of hazardous waste by sea cannot be found in the relevant international conventions. Even though the general issue of State responsibility is addressed in most of the relevant conventions, this only concerns the inclusion of a declaratory rule or reference rule that makes recourse to the general principle of State responsibility or, alternatively, to a rule that mandates the respective Contracting States to elaborate and adopt further legal instruments on liability and compensation. If such a “pactum de negotiando” is included, this rule is mostly worded in a form that allows for the elaboration of civil liability conventions as well as rules of State responsibility and liability. The latter case is expressly mentioned in Article 13 of the 1982 Jeddah Convention. However, apart from the 1999 Liability Protocol to the Basel Convention, no such supplementary instruments have been adopted so far; and the 1999 Basel Protocol does not contain rules on State responsibility.
Declaratory or reference rules which turn to the customary principle of State responsibility can be found, for example, in Articles 139, 232, 263 and 304 of the UNCLOS. The Basel Convention also addresses the issue of State responsibility only by means of a reference to the customary principle of State responsibility in Paragraph 15 of the Preamble. The Basel Convention as well as the Bamako and Waigani Conventions impose on their Contracting States the obligation to re-import or, alternatively, to dispose of hazardous waste in case of illegal traffic and in case the transport of which could not be finished according to the provisions of the contract (Articles 8 and 9). Since, however, these provisions do not depend on a prior breach of an international obligation by the State, they cannot be attributed to the body of secondary rules concerning State responsibility.
II. The Customary Principle of State Responsibility
Having a particular practical importance, the customary principle of State responsibility is a key supplement to the few provisions of international treaty law explicitly imposing State responsibility on the respective Contracting States. In the following sections it is examined whether and under which conditions States that are involved in a transboundary movement of hazardous wastes by sea may refer to the customary principle of State responsibility as a legal basis for claims for compensation.
The legal prerequisites for bringing a claim under the principle of State responsibility can be derived from the 2001 ILC Draft Articles on State Responsibility, which, albeit not legally binding as such, are already used as a de facto source of law by international courts like the ICJ and the ITLOS.179 According to these Articles the application of the principle of State responsibility presupposes an internationally wrongful act of the State.180 An internationally wrongful act consists of two constituent elements, i.e. (1) a legally relevant act that is imputable to the State and (2) a breach of an international obligation of the State as resulting from this act.181 After examining the particular scenarios in which an internationally wrongful act of the State may be assumed in the context of transboundary movements of hazardous wastes by sea, this section shall also outline the legal consequences of State responsibility.
1. Act of the State
The application of the principle of State responsibility requires, first, an act of the State which consists of either an action or an omission that is attributable to the State.
In its external relations a State is considered as a uniform subject of international law with full legal authority to act under international law. As a legal entity, however, a State is not able to act by itself; its actions instead being understood as conduct of its organs and representatives which is attributable to the State.182 This attribution is not a mere matter of causality, but rather a normative operation determined by international law. In this context, it should first be pointed out that the structure of the State and the functions that are performed by its organs and representatives are governed solely by the internal law of each State. Therefore, the domestic law remains applicable as to the determination of what constitutes a State organ and as to the designation of other persons empowered to exercise elements of governmental authority.183 In contrast, the legal prerequisites for the international responsibility of States can be specified solely by international law itself. The conditions under which conduct is deemed to be conduct of the State for the purpose of State responsibility are, thus, independent from the respective domestic laws. This means that the conduct of certain institutions performing public functions (such as the police) may be imputed to the State by virtue of international law, even if such institutions are not deemed to be State organs and are not otherwise empowered to exercise elements of governmental authority according to the respective domestic law.184 Relevant rules on the attribution of conduct to the State are laid down in Chapter II, Articles 4 to 11 of the ILC Draft Articles on State Responsibility. As a general rule, it can be said that the conduct of organs, agents and representatives of a State is attributable to that State, whereas the conduct of individuals and corporate entities acting solely in private capacity cannot be imputed to the State.185
It should be stressed, furthermore, that in general it makes no difference whether an action or an omission forms the legally relevant act entailing State responsibility. In certain situations, however, it may be difficult to identify the concrete conduct that ultimately constitutes the breach of international law. Particularly, if an omission is involved, it is necessary to determine first the concrete action that is required by law in order to be able to decide in a second step whether the related omission is of legal significance. Moreover, it is also possible that a combination of act and omission is to be seen as the relevant conduct.186 Therefore, not too much emphasis should be put on the distinction between acts and omissions.
(a) State Organs and Persons Empowered by the State
First of all, the conduct of any State organ is to be considered an act of the State under international law.187 The explicit emphasis on “any” State organ shows that this reference is to be understood in the most general sense. It does not only include State organs of the central government, but rather comprises any organ of the State and any governmental institution considered at all hierarchical levels exercising whatever functions. The capacity of acting as a State organ does, furthermore, not depend on whether legislative, executive or judicial functions are exercised.188 Moreover, in federal States the conduct of the organs of individual States is in general attributed to the federal State.189
It has been shown that the status of State organ is determined by the internal law of each State.190 This reference to the respective national laws and the possibly divergent definitions of State organs may lead to inconsistencies among States as to whether certain institutions are deemed State organs or not. However, in the end such divergences in the domestic concept of State organs have no practical impact. This is due to the fact that not only the conduct of State organs, but also the conduct of persons or entities that are otherwise empowered by the State to exercise elements of governmental authority is imputed to the State. Such attribution certainly requires that the person or entity is acting in that capacity in the particular instance.191 This form of attribution comprises particularly parastatal entities and persons in charge of a semi-official office, both entities and persons in charge of a semi-official office which have been empowered by the State to execute certain governmental functions. Thereby, it is of no relevance whether an entity is incorporated as a public, a semi-public or as a private entity.192 It also makes no difference whether or not the State owns assets or shares of that company or exercises corporate or regulatory control, provided the entity is in each case empowered to exercise public functions normally exercised by State organs.193
With regard to the transboundary movement of hazardous waste by sea it needs to be taken into account that the regulatory structures of domestic waste management differ considerably among the individual States. The waste treatment and disposal process may be regulated, governed and supervised at a central governmental level or at a local level, and those tasks may be assigned to a specific central authority or they may be spread over several competent authorities. However, considering the main procedural rules imposed by the Basel Convention, it becomes apparent that usually two functional authorities are involved in hazardous waste movements, namely the notification authorities and the customs authorities. In the individual case further sectoral authorities may be involved, which include, for example, the port authorities, the offices for foreign trade and also environmental or veterinary authorities. As a general rule, the conduct and the knowledge of such authorities and offices is to be attributed to the State because either they are deemed State organs by virtue of the domestic law or they are empowered by the respective State to exercise elements of governmental authority.
However, the transboundary movement of hazardous wastes is regulated and supervised not only by the competent authorities of a State; it is in fact also carried out by waste management companies that are to a different degree empowered by the State to perform public tasks. The actual disposal and shipment of hazardous wastes may be carried out by a State company, by a private company on which the State has a corporate, regulatory or factual influence, or by an autonomous private company. If such a company is empowered by the State to exercise certain tasks of public authority while carrying out the actual measures related to the treatment and shipment of hazardous wastes, this conduct of the company is attributed to the State irrespective of the particular corporate structure of the company. Relevant cases may involve waste management companies that undertake, at the same time, to perform certain functions on behalf of the State, such as tasks related to the notification and customs procedures. As a further example, one can mention companies that are designated by the State to have the exclusive right to perform hazardous waste shipments and, thus, hold a de facto monopoly.
If, in contrast, the company in question is not empowered by law to exercise governmental authority, its conduct may only be imputed to the State by means of the further rules of attribution as outlined in the following sections.
(b) Persons in Fact Acting for the State
In addition to the conduct of State organs and persons or entities otherwise empowered to exercise elements of governmental authority, also the conduct of private persons or entities may be imputed to the State, provided that this conduct is directed or controlled by a State. This particularly applies to cases in which a person or entity is in fact acting on the instructions of, or under the direction or control of a State in carrying out the conduct.194 Such constellations, hence, concern cases of factual State influence rather than cases of delegated public authority. The required degree of direction or control to be executed by the State is relatively high. A mere general dependence or support is not sufficient. An attribution of this conduct to the State rather requires that there is an actual direction or control of the State related to the particular conduct in a given case.195
In the field of transboundary movements of hazardous wastes such constellations of attribution mainly concern private waste management companies which are not empowered with public authority. Irrespective of any corporate linkage or the devolution of governmental powers, the conduct of such companies is considered conduct of the State only on the condition that the State by means of instruction, regulation or control in the individual case actually influences the conduct of the private entity. The particular difficulty with this rule of attribution is not a legal, but a practical one. If an injured State claims compensation for damage suffered as a result of a wrongful act of another State under the principle of State responsibility, the burden of proof lies in principle with the claimant State that has to establish in full the legal prerequisites of this claim, particularly the degree of direction or control performed by the opponent State in the individual case.196 From an external position, however, the claimant State has no insight into the internal structures and decision-making processes of the opponent State and the acting private company. Furthermore, it has no legal or actual possibility to investigate these internal affairs of the opponent State and, therefore, will typically not be able to gather sufficient evidence.
(c) Conduct Ultra Vires
In addition to the rules of attribution outlined in the previous sections, international law also acknowledges the attribution of conduct to the State in a further constellation relevant to typical scenarios in the context of transboundary movements of hazardous wastes by sea. According to this approach, the conduct of State organs and other persons or entities empowered with public authority is attributed to the State even if the person or entity acting in official capacity is exceeding the authority or competence which has been delegated by the individual instructions or respective internal laws of the State.197 This attribution of conduct ultra vires to the State is a necessary extension of the attribution of the regular conduct of State organs and other persons empowered with public authority. Since the internal law of the States remains applicable as to the determination of the notion of State organs and as to the assignment of public authority to other persons or entities, it would be possible for a State to avoid the attribution of conduct by simply referring to its internal laws, regulations or instructions. Consequently, there is agreement on the international level that a State must be responsible for all “official” acts of persons exercising governmental powers, irrespective of whether such conduct is within or outside the particular powers, e.g. criminal conduct in office.198
In the context of transboundary movements of hazardous wastes, this rule of attribution is of major significance in respect of cases of corruption and other types of official misconduct by the acting person in charge. It makes clear that the State is in principle also responsible if damage occurs which can be attributed to the conduct of an official person that has, for instance, arranged for or permitted an illicit export or import of hazardous wastes, or has accepted bribes securing the unlawful notification or approval of transboundary hazardous waste shipments.
(d) Interstate Attribution
A different kind of attribution concerns the interstate attribution of conduct which is relevant for the determination of the responsibility of a State in connection with the act of another State. According to this rule of attribution, in fact two different operations of attribution take place. In the first step, the conduct of State organs and persons or entities otherwise empowered with public authority is imputed to the State according to the general rules of attribution. Then, in a second step, the question arises whether such conduct of a State can be attributed to another State. International law provides for detailed rules in which such interstate attribution is endorsed.199 The only constellation that is relevant in the context of transboundary shipments of hazardous wastes relates to the case where a State aids or assists another State in the conduct of an internationally wrongful act. Such aid or assistance is attributable to the State of origin provided three conditions are fulfilled: First, the State conducting the aid or assistance must be aware of the circumstances of this conduct; second, the aid or assistance is given with a view to facilitating this conduct; and third, the act would be wrongful if committed by the State itself.200 Such attribution is of course without prejudice to the international responsibility of the State ultimately committing the act in question.201
With regard to the transboundary movement of hazardous wastes, it should be kept in mind that the rules of procedure laid down by, for example, the Basel Convention require a constant cooperation of the States involved in a movement in the form of mutual notification and approval. Therefore, it is well possible that one authority comes to know that the authority of another State is not acting in conformity with international requirements. It is, furthermore, possible that this authority, or rather the official person in charge, has a certain personal interest in nevertheless granting permission for the particular transport in question. This might be due to, for example, the acceptance of bribes, unofficial orders, or simply due to reasons of convenience. Provided the claimant State (which might be a State of transit that suffered damage caused by an unapproved transport) is in the position to prove these circumstances, the State that is aware of and supports the wrongful act of another State is internationally responsible for the wrongful act of the other State in consequence of the interstate attribution of this wrongful act. This, of course, has no effect on the international responsibility of the State actually conducting the wrongful act.
(e) Persons Solely Acting in Private Capacity
As a general rule, the conduct of private persons and corporate entities which do not represent State organs and are not otherwise empowered to execute governmental powers, and which do not act under the State’s factual direction or control, cannot be imputed to the State.202 This, however, does not mean that States cannot at all be responsible with regard to the conduct of individuals or corporate entities under their jurisdiction. The responsibility of States for such conduct may be incurred in an indirect way, namely by taking into account the State’s own obligations under international law with regard to the conduct of private parties. A State, thus, may be under an international obligation of result, according to which it is obligated to ensure that a particular activity is prevented or that certain procedural requirements are complied with. If in such case the State knows or ought to know about any wrongful conduct of private parties and does not prevent this conduct, although it is able to do so, the State incurs international responsibility for its failure to comply with its own obligations under international law.203
In the context of transboundary movements of hazardous wastes the States involved are under the obligation of result to implement the procedural rules and to establish effective control mechanisms as prescribed particularly by the Basel Convention. This may also include ensuring the strict observance of absolute trade restrictions.204 Obligations of States may furthermore derive from the customary international law, such as from the obligation to control and prevent as far as possible harmful activities conducted within their jurisdiction.205 The particular content of these obligations will be outlined in the following sections.
(f) Summary
In summary, it can be said that due to the harmonisation of procedural rules at the international level, State authorities are to a large extent involved in the administration of transboundary movements of hazardous wastes. The conduct of such authorities is generally to be considered an act of the State. The same conclusion basically applies to illegal transports that take place with the knowledge and/or support of the local administration. Under certain conditions, illegal conduct of State representatives can, moreover, be attributed to other States involved. Considering this, it becomes clear that in most cases of illegal transports of hazardous wastes, the conduct of the persons in charge can be attributed to the State. By contrast, the conduct of individuals or corporate entities acting in solely a private capacity cannot be attributed to the State. However, the State can be responsible for such conduct indirectly, namely if in such cases the State at the same time fails to comply with an international obligation to control and to ensure the non-occurrence of the transports in question.
2. Breach of an International Obligation
(a) Requirements in General
The second central element of State responsibility is the breach of an international obligation caused by the act of the State. The term “breach of an international obligation” is defined as an act of the State that is not in conformity with what is required of it by an international obligation.206 However, on a closer view this definition is of no real assistance. It does not determine the conditions under which an act of a State is deemed to be “not in conformity with an international obligation”. In other words, it is unclear what precisely is required to constitute a breach of an international obligation. Does an act of a State, in order to be deemed internationally wrongful, generally require a violation of a legal position of another State, or even physical damage? And is personal fault in terms of the culpability of the person acting on behalf of the State principally a necessary prerequisite? The answer to these questions can certainly not be conceived in general and abstract terms. It rather depends to a large extent on the particular content of the respective primary obligation. The primary obligations, therefore, represent the major yardstick for the determination of the precise requirements for an act being deemed in non-conformity with a respective obligation. Which basic conclusions can be drawn from the international primary obligations and whether or not there are, in addition, general requirements that must be fulfilled irrespective of the content of the particular obligation will be examined in the following sections.
(aa) Relevance of the Respective Primary Obligation
Whether or not the conduct of a State is in conformity with an international obligation can be established only on the basis of the respective primary obligation itself.207 From this obligation it can be ascertained, for example, what substantive conduct is required, which standard of conduct needs to be observed, what result needs to be achieved, or which further particular requirements are to be fulfilled.208
According to the ILC Draft Articles on State Responsibility, it is made clear that State responsibility may arise out of a breach of primary obligations “regardless of its origin or character”.209 This means that there is no difference as to whether the obligation arises from international treaty law, customary international law or from other sources of international law (such as unilateral acts) or as to whether the obligation has an international, regional or bilateral scope.210 By also referring to the “character” of the obligation, it is made clear that the character, meaning the particular properties of that obligation and its classification, is of no relevance. Thus, the principle of State responsibility applies to obligations of result as well as to obligations of conduct.211 It further applies irrespective of the standard of conduct to be complied with by the State. Also, no distinction is made between international crimes and delicts.212 The only requirement is that the obligation is in force for the State in question at the time of the legally relevant act.213
Even though it is not possible to specify in abstract terms the requirements for a breach of an international obligation, it is nevertheless possible to identify some general rules that derive from the characteristics of the respective obligation. In this context, some conclusions can be drawn from the character of the obligation as one of conduct or one of result. The decisive factor for the distinction between these types of obligations is whether the obligation’s essential purpose is to require the State to perform a particular act or to ensure the achievement of a certain situation.214 The common wording “to take appropriate measures to ensure” can, as a general rule, be understood to indicate an obligation of result. As far as an obligation of conduct is concerned, an act of the State is in breach with this obligation if the actual conduct imputable to the State does not correspond with the conduct required by the obligation, irrespective of the factual consequences of this conduct.215 By contrast, an obligation of result is breached on the condition of any divergence between the result prescribed by that obligation and the result that actually occurred. If an obligation of result prescribes that a certain situation is to be prevented, this obligation is breached if this situation occurs nevertheless. In any case entailing an obligation of result, the legal or administrative measures actually undertaken or omitted by the State to achieve this result are of no relevance.216
Some peculiarities must be observed in respect of international conventions that were created with a view to regulating the conduct of private persons and companies. This, particularly, also applies to the Basel Convention, bearing in mind that most transboundary movements of hazardous wastes are actually carried out by private parties. The Basel Convention as well as the relevant regional conventions, thus, are not exclusively concerned with the conduct of States, but rather ultimately aim to regulate the conduct of the private parties involved.217 Since, however, international law is solely addressed at States and other subjects of international law, individuals and corporate entities are not directly bound by international law.218 In order to apply the rules and provisions laid down by international conventions, such as the Basel Convention, it is necessary that these rules are “made valid” for private parties. This can be achieved either by means of an act of transformation, by which international rules are reworded as part of the domestic law, or by means of an act of adoption or incorporation, by which international rules as such are given domestic legal force.219 Only after such act of transformation or incorporation are individuals or corporate entities (indirectly) bound by an international obligation. By contrast, the State remains responsible at the international level for the fulfilment of its international obligations arising from the respective convention. This involves, first, that the State complies with the obligations directly addressed at the States, such as the duty to establish competent authorities, to co-operate with a view to the exchange of information, or to fulfil a financial obligation. In addition, and with regard to rules and obligations ultimately addressed at private parties, the State is required to transform or incorporate these rules into the domestic law within a certain timeframe. And even after having undertaken this act of transformation or incorporation, the State is not discharged from this obligation. From the perspective of the State, an obligation to transform or incorporate substantive rules into the domestic law changes upon the act of transformation or incorporation into an obligation to further regulate, control and ensure the enforcement of such rules.220 Because of the fact that the obligation of States to implement the substantive rules of an international convention into the domestic law and to further regulate, control and ensure the enforcement of such rules is not explicitly laid down in international conventions, but inherently results from the international obligation of the State, such derivative obligations are also denoted “relative obligations”.221
It follows from the foregoing, that the origin and character of the respective primary obligation may provide some general conclusions as to the particular conditions of a breach of this obligation. However, the general conclusions that can be drawn from the obligation’s basic character cannot hide the fact that in the end the precise content of the individual primary obligation remains the only decisive criterion for determining whether a State’s act is not in conformity with this obligation.
(bb) A General Requirement of Damage?
It has been the subject of debate in international scholarship whether the State claiming compensation under the principle of State responsibility must have necessarily sustained damage, irrespective of the content of the obligation that has been breached.222 In order to give an answer one needs to draw a distinction: As far as damage is understood in terms of material damage, such as environmental damage or other damage to the territory of the affected State, such general requirement cannot be based on a corresponding practice of States or international jurisdiction. Moreover, such requirement would contradict the common practice of States, according to which, for example, the failure of a State to implement the substantive provisions of an international convention into the domestic law is recognised as an internationally wrongful act, even though in this case no material damage has been sustained. If, in contrast, damage is conceived in a wider meaning including the non-material violation of legal positions under international law, this general requirement would be superfluous since it would be fulfilled in any case. International obligations are always established with a view to other States and, therefore, a breach of an international obligation necessarily entails the violation of a corresponding right of the respectively affected State.223
In conclusion, it must be stated, therefore, that damage within the meaning of a non-material violation of a legal position of another State is not a general requirement for the establishment of State responsibility. The question of whether physical damage is required to constitute a breach of an international obligation, in contrast, depends on the respective primary obligation.224 A general requirement of physical damage does not exist.225
(cc) A General Requirement of Fault?
One of the most controversial issues in the law of State responsibility has been seen in the question of whether or not fault constitutes a necessary element of an internationally wrongful act that must be established irrespective of the content of the particular primary obligation.226 This question involves the very fundamental dispute in international law of whether subjective responsibility (like in most national laws) or objective responsibility represents the more suitable approach to determine responsibilities of States in interstate constellations.
Fault in this context is described as the particular subjective and psychological attitude, the moral culpability of the individual actor that consists either in the intentional (malice, dolus) or at least negligent (recklessness, culpa) causation of the particular conduct or result.227 The theory of fault responsibility goes back to Grotius, and in its initial strict form it required that the State itself be at fault in order to establish an internationally wrongful act.228 Other supporters later modified this doctrine that henceforth has focused on the personal fault of the person acting on behalf of the State, and has imputed this personal fault to the State.229 According to this doctrine, fault forms a necessary subjective element of a wrongful act and, thus, provides in the first place a criterion to distinguish between adverse effects that simply have to be accepted by the international community and conduct entailing State responsibility. The criterion of fault is supposed to be of decisive importance particularly in respect of State obligations with a view to the conduct of private parties. But also in respect of obligations directly addressed at States, the requirement of fault takes on an indirect effect. In the latter case the presence of fault is deemed to be legally presumed unless the lack of fault is clearly established, such as in case of fortuitous events or force majeure.230 However, there are strong conceptual arguments articulated against this doctrine of fault responsibility. Specifically, it encounters quite fundamental complaints when the subjective concept of fault, which is based on the individual and psychological attitude of humans, is being applied, or even attributed, to the State as an abstract and artificial entity. Furthermore, the community of States is built on objective relations and obligations to which the attribution of subjective categories like dolus, culpa and fault seems to be incongruous.231 In response to these objections there has been an attempt to maintain the doctrine of subjective responsibility by conceiving the notion of fault to be a normative one that is established not by a subjective or psychological attitude of the acting person, but rather by any behaviour which is non-compliant with an international obligation.232 However, such a view renounces the essential meaning of the notion of fault and would in the end amount to an objective conception of responsibility.233
In contrast, the doctrine of objective responsibility does not consider subjective fault as a necessary element of an internationally wrongful act. According to this theory, the responsibility of States can be determined by purely objective criteria. What is decisive is, first, whether there is a violation of the right of another State established by any non-conformance with an international obligation234 and, second, the imputability of this conduct to the State.235 Such pure objective consideration, however, would be tantamount to the State being absolutely responsible for complying with its international obligations. This makes it necessary to establish a normative adjustment of this outcome. In contrast to the subjective theory, this adjustment is not achieved by an additional requirement of fault, but by an interpretation of the content of international obligations in a way that the standard of behaviour, which must be complied with by the State, is not an absolute one, but a standard of due diligence.236
In international jurisdiction, references can be found both to the subjective theory237 and to the objective theory.238 This, however, also means that there is no consistent case law in support of an additional general requirement of fault. Of particular significance, furthermore, is the recent work of the ICJ which, when adopting the Draft Articles on State Responsibility in 2001, did not include fault as a necessary element of State responsibility.239 The international practice of States, therefore, strongly tends towards the theory of objective responsibility.
Today, the theory of objective responsibility in its strict form has been further developed. Under a recent approach there is still no general requirement of fault in order to establish a breach of an international obligation. However, it is stressed that the relevant primary obligation remains decisive for the determination of the particular requirements of an act being in non-compliance with this obligation. It is, therefore, possible that a particular obligation requires fault on the part of the person acting on behalf of the State in order to establish an internationally wrongful act.240 A general requirement of fault, however, is not imposed by current international law.
(dd) Due Diligence as the Relevant Standard of Behaviour
It has been outlined that the particular prerequisites for an act of a State being in breach of an international obligation are determined predominantly by the content of the respective primary obligation. Furthermore, international law rather follows the approach of objective responsibility and does not in general require fault on the part of the person acting on behalf of the State. If, however, the international responsibility of States would only be dependent on the fact that a particular conduct or result is from a purely objective perspective not in conformity with what is required under an international obligation, a too far-reaching standard eventually amounting to an absolute responsibility of the State would result that. Therefore, a normative adjustment of this outcome is necessary, which is achieved by imposing a standard of due diligence on State conduct.241
The determination of the level of care required by the standard of due diligence is not an easy task. The particular level of care differs depending on the respective primary obligation and must be determined individually for each single obligation.242 The determination of the applicable level of care is not to be confused with the question of whether the primary obligation is one of conduct or result. It rather concerns the question of whether the State is either absolutely responsible for the particular conduct or for the achievement of the particular result, or whether it is responsible for this outcome only within the realms of a certain degree of diligence taking account of the individual circumstances of the case and the possibilities for action. The issue of which level of care needs to be observed, furthermore, is to be distinguished from the question whether or not a State may invoke general defences precluding the wrongfulness of the act of the State, such as fortuitous events or force majeure.243
From the objective conception of interstate relations and obligations it follows that the applicable level of care must also be an objective one that is based on and conceived in objective terms. This standard thus forms part of the international obligation itself, rather than being attributable to an additional subjective criterion of fault.244 This does not mean that the fault or negligence of the acting person is of no relevance, but such behaviour is considered to be a part of the State’s conduct as a whole.245 The particular level of care must be determined individually for each primary obligation. In this context, the respective obligation itself provides the major criterion for the determination of the applicable level.246 The level of due diligence which is derived from the respective obligation, then, applies to all States in equal measure. This may be different only if the provision contains an individualised obligation depending on the affiliation of the State to a certain regional area or on the economic performance and industrial capacity of the State.247 Finally, it should be noted that the “usual” level of care applied by States in their internal affairs does not have any implication on their international obligations.248
The standard of care required by an international obligation can be an absolute one. This would be the case, for example, if an obligation requires the States to ensure that a certain result is achieved in any event, notwithstanding any possible objections or defences such as the lack of actual control or foreseeability of the course of events. The typical consequence of a breach of such obligations is that responsibility of the State pursuant to the principle of State responsibility would be absolute (by contrast, responsibility of the State would be strict if the State is allowed to rely on certain predetermined objections or defences, as a result of certain circumstances deemed to break the chain of causation). The majority of international obligations, however, do not require an absolute level of care excluding such objections and defences. This raises the question of how to determine the exact level of care which is due in respect of obligations which do not demand an absolute level of care. For this purpose, three criteria have been developed which need to be taken into account and weighed according to their significance in the particular case. These criteria include (1) the ability to control and influence the actual activity that causes the threat of an infringement, (2) the degree of the predictability of harm, and (3) the importance of the right or legal interest to be protected. How due diligence is to be understood will be a function of how these three criteria are collectively weighted and assessed. Easily controlled activity which carries a readily foreseeable and significant risk of harm would thus be held to a more exacting expectation of care.249
In summary, it can be concluded, therefore, that the specific level of care compelled by the standard of due diligence must be determined on a case-by-case basis. The assessment depends on the content of the particular obligation and needs to take account of the particularities of the case, such as the possibility of the State to control the activity causing the breach of an obligation, the probability of damage and the significance of the impaired rights and interests.
(b) Obligations Arising from International Conventions
In this section, obligations of States arising from international conventions relevant to the transboundary movement of hazardous wastes by sea shall be outlined and their particular content as well as their significance for the transports in question shall be examined. This examination will allow for an assessment of which scenarios and under which particular circumstances a State is in contravention of its respective obligation and, consequently, will be internationally responsible under the principle of State responsibility.
Relevant provisions imposing international obligations on States may derive from global, regional and bilateral instruments. They may be established as a part of the international law concerning the transportation of hazardous wastes, from the body of the law of the sea, including several sectoral conventions, as well as from conventions established in other, related legal fields.
(aa) The Basel Convention
The central legal instrument on a global scale for the regulation and control of international hazardous waste streams is to be found in the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention). The Basel Convention imposes on its States Parties the obligation to reduce as far as possible the generation and transport of hazardous wastes and, if a transboundary movement of such wastes cannot be avoided, requires the observance of strict procedural rules, including the prior informed consent of all States concerned and an environmentally sound management of hazardous wastes.
(1) Background and Basic Legal Features of the Convention
First attempts to elaborate a legal regime governing the trade in and transport of hazardous wastes were made in the beginning of the 1980s.250 In 1981, the United Nations Environment Programme (UNEP) convened the first Montevideo Programme for the Development and Periodic Review of Environmental Law and charged it with the task to developing a strategic guidance plan in the field of environmental law. This Programme recommended to UNEP that it work towards the conclusion of international agreements and the development of international principles, guidelines and standards relevant, amongst others, to the transport, handling and disposal of toxic and dangerous wastes.251 UNEP thereupon established a working group on this issue, whose endeavours finally led to the approval of the UNEP Cairo Guidelines in 1987,252 which laid down major principles related to the management of hazardous wastes. Since, however, these guidelines were conceived as a form of non-binding soft-law which sought to induce the States to implement these principles into their domestic law, it lacked real authority.253 At the same time, UNEP convened a working group representing about 100 States, international agencies and NGOs to elaborate an international binding convention on the control of transboundary movements of hazardous wastes. On the working group’s sixth and final meeting on 22 March 1989 in Basel, Switzerland, the final draft of the Basel Convention was adopted and subsequently signed by 53 States and the EU.254 The Basel Convention entered into force on 5 May 1992. Since then, it has become the most important legal instrument governing international hazardous waste trades, being commonly accepted on a global scale. It has been ratified so far by 180 States and the European Union.255
The Basel Convention aims to achieve and strengthen the control and reduction of international hazardous waste trade streams. Its objectives are to minimise the amount and hazard level of wastes, to avoid the generation and transportation of hazardous wastes as far as possible and to encourage the environmentally sound management (ESM) of hazardous wastes by facilitating the transfer of technology and know-how. Furthermore, waste transports and their way from the source to the disposal site are to be traceable in order to avoid “disappearance” or improper handling as well as illegal shipments outside the legal frame of the Basel Convention.256
Concerning its regulatory content the Basel Convention first adopts general rules and principles related to the reduction of the generation and transboundary movement of hazardous wastes. This includes the obligation of States to reduce the generation of hazardous wastes to a minimum257 as well as the proximity and self-sufficiency principles according to which each State must ensure the availability of sufficient domestic waste disposal facilities to enable the treatment and disposal of hazardous wastes as close as possible to the place of its generation.258 Thus, with regard to the admissibility of transboundary hazardous waste movements, the Basel Convention provides a restrictive system under which such transports are permitted and, to this end, pursues a three-tier concept of requirements:259 At the first tier, the Basel Convention prohibits any transport of hazardous wastes to non-Parties of the Convention and to the Antarctic.260 Furthermore, it reproduces the general rule that every Party has the sovereign right to unilaterally ban the import of hazardous wastes, entailing a corresponding obligation of the other Parties to prohibit the export of hazardous wastes to that Party.261 At the second tier—as far as an export to a particular State is not generally prohibited—hazardous waste transports are only allowed to take place on condition that it is ensured that the import State will manage the wastes in an environmentally sound manner262 and, in addition, that either the State of export lacks appropriate disposal capacities or the wastes are needed as raw materials in the State of import.263 At the third and final tier, a requirement is set that prior to and during the conduct of a transport all parties involved must fulfil the formal requirements of notification and approval. The State of export is obliged to notify the transport to both the State of import and transit States.264 Those, in turn, have to give their written consent to the particular transport before it may commence (so-called prior informed consent—PIC).265
Any non-compliance with these procedural requirements of formal notification and approval as well as fraud, misrepresentation or non-conformance of the actual transport with the transport documents renders the transport “illegal traffic”266 that has to be prohibited and punished by domestic law.267 Furthermore, illegal traffic leads to the obligation of the responsible Party to ensure the re-importation of the hazardous wastes by the exporter or, if necessary, by the State Party itself.268
During the years following the entry into force of the Basel Convention, the Conferences of the Parties of the Basel Convention (COPs) agreed on further enhancements to strengthen the importance of the Convention. Particularly, in September 1995, the Third Conference of the Parties (COP3) decided to add a new Article 4a comprising a prohibition of any export of hazardous wastes from developed countries269 to developing countries.270 This so-called “Basel Ban Amendment” or simply the “Basel Ban” applies to hazardous wastes that are destined both for final disposal and for recycling and recovery operations. It has not yet entered into force.271 The reluctance of States Parties to ratify the Basel Ban Amendment may be explained by the fact that this issue represents one of the most controversial disputes, if not the crucial question surrounding the Basel Convention. The ban-issue centres upon the very fundamental decision as between the two opposing approaches of either pursuing a complete ban or following a prior informed consent principle (PIC). In other words, it concerns the question of whether a complete prohibition or, alternatively, an admission of a limited trade in hazardous wastes within a controlled and regulated procedure is more suitable to achieve the Convention’s principal aim of reducing undesirable hazardous waste movements into economic inferior States.272 In the end, however, this controversy may be of less practical significance owing to the subsequent practice of States after the adoption of the Basel Convention. In consequence of the absence of a total ban of hazardous waste exports from developed to developing countries in the Basel Convention the number of regional conventions providing for a total ban of hazardous waste transports or imports, instead of pursuing the PIC-approach, increased.273 In this respect the already mentioned 1991 Bamako Convention, the 1995 Waigani Convention and the 1996 Izmir Protocol to the Barcelona Convention can be mentioned as examples. It is furthermore to be mentioned that the Basel Ban has de facto already been implemented into the EU legislation on the exportation of hazardous wastes.274
A further defect of the Basel Convention was seen in the absence of a distinct regime of liability and compensation for damages occurring in the course of permitted or illegal hazardous waste transports. During the negotiation process of the Convention, this issue of liability and compensation turned out to be highly contested among the different delegations. Therefore, it was decided to put this “hot potato” aside for a later consideration, and to concentrate on achieving an agreement upon the procedural and other substantive rules and aspects of hazardous waste transportation.275 To this end, Article 12 was introduced into the Convention and calls for the States Parties to co-operate in the elaboration of a Protocol to the Convention that sets out appropriate rules and procedures in the field of liability and compensation. In the course of those negotiations, finally at the Fifth Conference of the Parties (COP5) in December 1999 the Parties reached agreement upon a Protocol on Liability and Compensation. It is conceived not as an amendment, but as a supplement to the Basel Conventions and needs to be ratified separately.276
(2) Obligations Imposed on States
It has already been outlined that the Basel Convention imposes some general obligations on States concerning a reduction of the generation and transportation of hazardous wastes as well as specific obligations imposing procedural requirements with regard to the conduct of transboundary hazardous waste movements, these being configures in a three-tiered framework of requirements. These obligations are examined in this section in more detail with a view to determining their precise nature and content.
(i) General Obligation: Minimisation of Generation and Transportation of Hazardous Wastes
The first general obligation imposed by the Basel Convention on its States Parties is the obligation to “take the appropriate measures to [… e]nsure that the generation of hazardous wastes and other wastes within it is reduced to a minimum”.277 The scope of this obligation is limited in two respects. First, States are only obliged to “take appropriate measures” and, second, the obligation is ambiguous in respect of the concrete result to be achieved. The generation of hazardous wastes is to be “reduced to a minimum”, which by itself is an unequivocal objective. However, according to the further wording, “social, technological and economic aspects” need to be taken into account. Thus, the concrete “minimum” of hazardous waste generation to be achieved is relaxed in its definition and will differ from one case to another depending on the respective circumstances. These particulars have an influence on the character of that obligation. The wording “to take appropriate measures to ensure” is usually indicative of an obligation of result since it states nothing other than the very content of an obligation of result. In the present case, however, the obligation does not define a concrete outcome. Therefore, it must rather be concluded that it represents an obligation of conduct that requires the State to take actions towards the achievement of a certain legal aim. Such endeavours of the State are thus prevailing. Finally, it should be stressed that the general standard of due diligence applies to this obligation.
In order to establish a breach of this obligation, it is necessary to first define the particular “minimum” to which the hazardous waste generation must be reduced in the individual case. In a subsequent step, it must be ascertained whether the measures actually taken by the State are sufficient to achieve this particular “minimum”. It consequently becomes apparent that, with regard to both issues, the content of this obligation is far from being definite. First, “social, technological and economic aspects” need to be taken into account when defining the particular “minimum” to be achieved. And, second, the State has the discretion to decide which particular measures it considers appropriate and implements to achieve this particular “minimum”. From a practical perspective, therefore, it will hardly be possible to establish that the failure of a State to adopt a certain measure constitutes a breach of this obligation. A different conclusion may result only in very obvious constellations, especially where a State fails to take measures which are considered simply indispensable for achieving the minimisation of hazardous waste generation.
The obligation to reduce the generation of hazardous wastes is supplemented by further related rules. The States Parties are under an obligation to co-operate in “the development and implementation of new environmentally sound low-waste technologies and the improvement of existing technologies with a view to eliminating, as far as practicable, the generation of hazardous wastes”.278 Furthermore, States Parties “should” establish regional or sub-regional centres for training and technology transfer regarding, in particular, the minimisation of the generation of hazardous wastes.279 And finally, the Preamble of the Convention establishes the reduction of the generation of hazardous wastes as a target serving to protect the human health and the environment.280 However, these supplementary rules are of even less binding force. They represent programmatic declarations of political intent or the determination of legal aims rather than legally binding primary obligations. Concrete rules of conduct, therefore, do not arise from these provisions.281
In addition to the obligations regarding the minimisation of the generation of hazardous wastes, the Basel Convention also contains general obligations concerning the minimisation of their exportation and transportation. In accordance with the principles of proximity and self-sufficiency,282 the States Parties “shall take appropriate measures to [… e]nsure the availability of adequate disposal facilities […] that shall be located, to the extent possible, within it, whatever the place of their disposal”.283 Furthermore, States “shall take appropriate measures to [… e]nsure that the transboundary movement of hazardous wastes and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes”.284 Concerning the regulatory character of these obligations, the findings outlined in respect of the obligations to minimise the generation of hazardous wastes apply accordingly. Since the primary intention of these obligations, again, is to require the States to take actions towards the achievement of a certain legal aim, they must be regarded obligations of conduct. Due to the inclusion of the term “to the extent possible”, the particular circumstances of the individual case, such as the relevant economic, social and technological aspects, need to be taken into account even though this is not expressly mentioned.
(ii) First Tier: Absolute Trade Restrictions
The first tier of the Basel Convention’s three-tier concept of requirements for the permissibility of transboundary movements of hazardous wastes involves general export restrictions to certain States and areas. According to the Convention, a Party “shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party”.285 The Parties are, furthermore, under the obligation “not to allow the export of hazardous wastes or other wastes for disposal within the area south of 60° South latitude”.286 And finally, the Parties “shall prohibit or shall not permit the export of hazardous wastes or other wastes to the Parties which have prohibited the import of such wastes”.287 These obligations establish particular trade bans for the transportation of hazardous wastes to or from certain States or areas. If one considers the precise wording, it becomes apparent that they are conceived as “relative” obligations288 that are expressly addressed to the States Parties, whereas the intended legal result, i.e. the non-transportation to certain areas and States, relates to the conduct of the involved private parties. But one has to be precise: These obligations do not impose on States the obligation to ensure that the respective conduct of private parties, which is described by these obligations, is not taking place in the first instance. Such a wording would suggest an obligation of result. In this case, the obligations instead directly focus on the legal and administrative measures to be taken by the State and, therefore, emphasise the particular conduct owed by the State. In conclusion, they must be considered obligations of conduct, according to which the (only) obligation of the States Parties is to domestically prohibit such transports. Finally, it should be stated that the general standard of due diligence applies. A breach of these obligations, thus, is conditioned upon a failure in the State’s conduct regarding the legislative and administrative implementation of these obligations.
Following from their character as relative obligations, the content of these obligations changes after they have been implemented into the various national legal regimes. The act of implementation forms a caesura by which the State’s original obligation to implement evolves into the obligation to further regulate, control and ensure compliance and enforcement.289
(iii) Second Tier: Environmentally Sound Management
The second tier of requirements for the permissibility of transboundary hazardous waste movements under the Basel Convention is concerned with the general requirement of an environmentally sound management of hazardous wastes. According to this, the States parties “shall take appropriate measures to [… n]ot allow the export”, or, as the case may be, “[p]revent the import of hazardous wastes and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner”.290 In addition to this, the States “shall take the appropriate measures to ensure that the transboundary movement of hazardous wastes and other wastes only be allowed if: (a) The State of export does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites in order to dispose of the wastes in question in an environmentally sound and efficient manner; or (b) The wastes in question are required as a raw material for recycling or recovery industries in the State of import”.291 From the wording and the regulatory content of these obligations it becomes apparent that they are conceived as obligations of conduct. Although the States are basically obliged to “take appropriate measures”, which generally indicates an obligation of result, the very core action required by the State is the legal or administrative act of non-allowance or prevention of certain transports, which consists in a particular conduct by the State rather than in a result to be achieved. The phrase “take appropriate measures” in this context may be understood as referring to the applicable standard of conduct, which is one of due diligence.292
The precise content of these obligations remains indefinite in some respect. The central term “environmentally sound management” (ESM) is defined by the Convention as “taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes”.293 This definition actually is not of great help since it again relies on indefinite terms, as there are “practical steps”, “adverse effects” and the “manner which will protect human health and the environment”.294 Consequently, in the following years the Secretariat of the Basel Convention elaborated a number of Technical Guidelines for the ESM regarding certain types of hazardous wastes, which provide manageable criteria for an environmentally sound treatment tailored to the particular types of wastes.295 In the end, it can therefore be said that there is a set of general criteria which has been developed to provide in more detail a definition of what must be considered an ESM of the particular hazardous wastes. Another question, with regard to the first obligation mentioned above, is under which conditions an exporting State has “reason to believe” that hazardous wastes are not disposed of in an environmentally sound manner in the importing State. A corresponding right of the exporting State to actively investigate and to collect data exists neither under the Basel Convention nor according to customary international law.296 Therefore, in accord with the applicable standard of conduct, i.e. due diligence, the “reason to believe” can be determined only on the basis of the information received from the importing State. With regard to the second obligation mentioned above, concerns have been voiced about the inclusion of the criterion of “efficient” domestic disposal as a factor in the authorisation of transboundary hazardous waste movements. It was argued that by virtue of this term, hazardous waste exports could be justified solely by lower disposal costs abroad, provided that minimum environmental standards are observed.297 This contention, however, is not especially convincing. The term “efficient” must be understood in a broader, global context relating to the social, economic and technological circumstances of a State as a whole. Considering this, it is appropriate to permit hazardous waste transports if it is not possible for the State of export to keep available sufficient disposal and treatment facilities for any particular kind of hazardous wastes.
A breach of the ESM provisions, thus, may be established if a State allows the export or, alternatively, the import of hazardous wastes although, based on the information in its possession, it ought to have reason to believe that the wastes in question will not be managed in an environmentally sound manner, or it ought to know that neither are sufficient capacities for an ESM lacked by the State of export nor are the wastes required for recycling or recovery operations by the State of import. However, due to the fact that these obligations involve several indefinite legal terms, the particular requirements for a breach of these obligations are pending further clarification on a case-by-case basis by international case law.
(iv) Third Tier: Prior Informed Consent Principle
The third and final tier of the Basel Convention’s three-tier concept of requirements for the permissibility of hazardous waste transports concerns the procedural rules of notification and approval to be observed during the performance of each individual transport. According to this, the “State of export shall notify, or shall require the generator or exporter to notify, in writing […] the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes”.298 In turn, the State of import “shall respond to the notifier in writing, consenting to the movement with or without conditions, denying permission for the movement, or requesting additional information.”299 The same duty is incumbent upon each State of transit.300 Until the point at which the State of export has received written confirmation from the notifier that it has received the written consent of the State of import and each State of transit, the State “shall not allow the generator or exporter to commence the transboundary movement”.301 Finally, any transport of hazardous wastes “shall be covered” by insurance, bond or other financial guarantee.302 As soon as the disposer receives the wastes, as well as upon completion of the disposal, the disposer is required to inform both the exporter and the exporting States. If no such information is received by the exporting State or the exporter, they “shall so notify” the State of import.303 These provisions, as a whole referred to as the Prior Informed Consent (PIC) Principle, establish procedural rules that in detail prescribe the particular conduct required by States with regard to the conduct of private parties.304 According to the wording that precisely describes the factual, administrative or legal acts required by States, these obligations represent obligations of conduct, to which the general standard of due diligence applies. This outcome also applies as far as these rules impose a duty to ensure that a certain action is performed by private parties. This results from the fact that within its scope of discretion, the State may decide whether the act of notification is to be performed by the State itself or by the generator or exporter under its jurisdiction.
A lively debate has emerged during the drafting process of the Basel Convention concerning the extent of the application of the PIC procedures to coastal States. This debate particularly includes the question whether a coastal State is to be considered a State of transit within the meaning of the Basel Convention if a vessel carrying hazardous wastes is only passing through its EEZ.305 According to Article 6(1) and (4) of the Basel Convention prior notification and consent is required with regard to “the States concerned”, which also comprises any State of transit. The legal definition of the term “State of transit”, however, is ambiguous as regards the coverage of maritime zones and has left room for different interpretations by the signatory States.306 This definition covers any State “through which” a hazardous waste movement takes place.307 By using this wording this definition avoids making a clear reference either to the territory of a coastal State, or to the “area under the national jurisdiction of a State” as defined in Article 2(9) of the Convention.308 However, due to the avoidance of an explicit reference to the EEZ or, at least, to the “area under the national jurisdiction” of the coastal State it must be concluded that an inclusion of the EEZ into the definition of a “State of transit” is not intended. What remains is that a movement must have taken place “through” a State, which can thus only be understood as referring to the territory of the State. Since, according to Article 2(1) of the UNCLOS, the sovereignty of a coastal State is extended beyond its land territory to its territorial sea, also the territorial sea of a coastal State must be considered as a part of its territory. Consequently, the definition of the term “State of transit” must be understood to cover the territorial sea of a coastal State, but not the EEZ of that State.
In consequence of the different positions of States concerning the coverage of maritime zones a further “disclaimer clause” was included in the Convention text at the end of the negotiation process. Article 4(12) of the Basel Convention, however, has no substantive, regulatory content; it merely intends to clarify that the obligations contained in the Convention have no effect on the existing rights and obligations of States established in international law and, specifically, in the international law of the sea.309 In this context, it needs to be highlighted that the interpretation of the term “coastal State” in a way that it includes the territorial sea and excludes the EEZ of a coastal State is consistent with the provisions of the law of the sea. The competence of the coastal State to establish the PIC requirements of the Basel Convention in its territorial sea follows from Article 21(1)(f) of the UNCLOS. The corresponding obligation of foreign ships to comply with those obligations is laid down in Article 21(4) of the UNCLOS. This outcome, however, is different with regard to the EZZ. Article 56(1)(b)(iii) of the UNCLOS establishes jurisdiction of the coastal State with regard to the protection and preservation of the marine environment only as far as this is provided for in the relevant provisions of the UNCLOS. Those relevant provisions could be seen in Article 211 (5) and in Article 220(3), (5) and (6) of the UNCLOS. However, these provisions refer to international rules and standards for the prevention, reduction and control of pollution particularly from vessels. It is doubtful that the establishment of a notification and prior consent requirement regarding the mere transit of vessels carrying hazardous wastes through the EEZ of a coastal State can be related to the prevention, reduction and control of pollution from vessels. This is at least true in cases where there is no indication whatsoever that there is a specific threat of damage to the marine environment emanating from the vessel carrying hazardous wastes. It must be concluded, therefore, that coastal States do not possess the necessary competence under the international law of the sea to require prior notification and consent in accordance with the rules of the Basel Convention as far as ships are concerned that are merely crossing their EEZ. The exclusion of the EEZ from the definition of the term “State of transit”, thus, corresponds with the competences of coastal States under the international law of the sea.
In conclusion of this section, it should be stressed that the establishment of a breach of the PIC requirements is relatively simple. Since the particular act to be performed by the State is explicitly described by the Convention, the determination of whether or not these rules have been observed does not require an additional legal assessment or the consideration of any relevant social, economic or technological circumstances. An internationally wrongful act thus exists, for example, if a State of export permits the commencement of a hazardous wastes shipment without having received the prior confirmation of the notifier that it has received the prior written consent of all States concerned. According to the view posited by this work, a prior consent of coastal States is not required as long as the shipment is merely conducted through the territorial sea or the EEZ of such States.
(v) Further Obligations Imposed by the Basel Convention
In addition to the above-mentioned general obligations and the core requirements of the Convention regarding the prior informed consent of the States involved when performing a transboundary hazardous waste movement, the Basel Convention also imposes additional or supplementary obligations on the States Parties.
This first concerns the obligation to re-import hazardous wastes in case a transboundary movement cannot be completed in accordance with the terms of the contract, as laid down by Article 8 of the Convention, as well as in case the transport has been carried out in contravention of the requirements imposed by the Convention, as stipulated by Article 9. It has been shown that these rules represent ordinary primary rules of international law and cannot be ascribed to the body of rules of State responsibility or State liability.310 According to the common wording of Articles 8 and 9, States “shall ensure” that the wastes in question “are taken back”. Furthermore, a secondary duty to perform the re-importation is imposed on the States themselves in case the private parties concerned are unavailable or incapable of doing so. From this it becomes apparent that these obligations do not confine themselves to requiring the performance of a certain conduct, but rather oblige the States to ensure the occurrence of a particular result. Thus, they represent obligations of result, to which the general standard of due diligence applies. A breach of these obligations is established solely on the condition that in consequence of an illegal or uncompleted shipment, the hazardous wastes in question are not shipped back even though so required by Articles 8 and 9 of the Convention.
Further obligations concern interstate co-operation and the exchange of information. States Parties are obliged (i) to co-operate in order to improve and achieve environmentally sound management of hazardous wastes311 and, for this purpose, (ii) to make available information with a view to promoting the harmonisation of technical standards and practices and the development, implementation and transfer of new technologies and management systems.312 In addition, States are under the obligation to monitor and report information on various issues, such as on accidents occurring during the transboundary movement of hazardous wastes, on particulars concerning the domestic regulatory system and on the number and extent of transboundary hazardous waste transports in which they have been involved.313 These supplementary obligations complete the framework of duties imposed on States Parties by the Basel Convention and serve the purpose of putting the States and the Basel Secretariat in position to fully comply with their main obligations and functions under the Convention. They are not targeted at regulating the permissibility or performance of hazardous waste transports as such, so that a breach of these obligations will be of no importance as concerns State responsibility for damages occurring during the transport of hazardous wastes.
(3) The Application of the Basel Convention to End-of-Life Ships
A further issue relevant to the Basel Convention concerns its application to end-of-life ships that are intended to sail to another country in order to be dismantled. Since end-of-life ships often contain hazardous components like oils, asbestos and PCBs, which may be released to the environment during the dismantling process and may cause serious damage to health of the workforce, a likely debate has emerged regarding the application of the PIC and ESM requirements of the Basel Convention to those ships. This issue is of considerable practical importance, since States in whose ports ships are anchoring prior to its last journey might be under the obligation to prevent the departure of the vessel unless the procedural requirements of the Basel Convention are fulfilled.
(i) The Dismantling of End-of-Life Ships
The procedure of ship dismantling is usually initiated by the decision of the shipowner to terminate the commercial operation of the ship and, instead, to realise the value of the raw materials (predominantly steel) that are contained in the ship. To this end, the shipowner usually sells the ship to a cash buyer, who renames the ship, registers it in another registry and resells it to a shipbreaking yard. Large dismantling capacities for sea-going ships can today be found mainly in India, Bangladesh, China and Pakistan. After the ship has been sold to a cash buyer the ship usually sails with a last cargo of material, such as scrap metals, to the shipbreaking yard and then is run aground at the beach at high watermark. This procedure is commonly referred to as “beaching”. Subsequently, the ship is often dismantled manually and without sufficient protective gear for workers and without any measures to protect the coastal environment. While the steel and the other raw metals are sold for large profits on the commodities market, the remaining waste materials are often simply burned or deposited without further treatment at dumping grounds. In this way, it is possible to generate proceeds from the dismantling of the ship of up to 20 million Dollars for large vessels.314
(ii) The Definition of “Waste”
In a situation where the shipowner intends to sell his ship for the purpose of dismantling in a third country and where this ship contains hazardous components it is argued by interest groups that such a ship generally falls within the scope of the Basel Convention, with the consequence that the port State would be obliged to prevent the departure of the ship unless the relevant ESM and PIC requirement have been complied with.315 A less strict position is held by the Parties to the Basel Convention, who assume that the definition of “waste” under the Basel Convention is basically to be understood in a broad meaning. The Parties to the Convention, consequently, adopted at COP6, in 2002, the Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships.316 Moreover, at COP7, in 2004, the Parties formally recognised that “a ship may become waste as defined in article 2 of the Basel Convention and that at the same time it may be defined as a ship under international rules”.317 The precise meaning of this statement, however, remains ambiguous. This applies all the more since the Basel Convention in its convention text explicitly provides that nothing in the Convention affects any rights, freedoms and obligations of States as provided for in international law, particularly in the international law of the sea.318
What is for sure is that the question of whether or not an end-of-life ship comes under the scope of the Basel Convention cannot be answered in general terms, but rather depends on the individual case. The focus of this consideration clearly lays on the interpretation and construction of the terms “wastes” and “hazardous wastes” as defined under the Basel Convention. Only if the ship as such is to be considered “waste” under the Convention, it is possible to subsequently determine whether this particular waste also comes under the definition of “hazardous wastes”.
An end-of-life ship comes under the definition of “waste” of the Basel Convention if it is disposed of or is intended to be disposed of or is required to be disposed of by the provisions of national law.319 Based on this definition, a ship becomes waste, at the latest, when it is disposed of. This is the case when the ship is actually being dismantled at the shipbreaking yard.320 But also the previous period beginning in that moment when the ship is “beached” at the shore and is waiting to be scrapped represents a disposal operation,321 so that the ship is to be considered waste as of this moment.322
A highly contentious issue involves the question whether a ship may become waste already before the moment when it is “beached”. This would be the case if the ship is intended to be disposed of already at an earlier stage. In order to give an answer, one first need to determine who the person is that decides about the intended purpose of the ship. Since this issue is not addressed by the Basel Convention, it is necessary in this respect to resort to the relevant national laws. Most national laws consider the actual possessor of the wastes to be the person that decides about the intended purpose.323 At this point it becomes apparent that the provisions of the Basel Convention are not properly aligned to the peculiarities of sea-going vessels and thus simply do not fit when it comes to cases of ship dismantling. It must be kept in mind that unlike usual wastes, sea-going ships are registered in a public registry allowing for an easy identification of the owner. The typical situation underlying regular wastes, according to which the actual owner of the wastes can hardly be identified, does not apply to ships. With regard to ships, it is, therefore, not necessary to focus on the actual possessor of the wastes in order to ensure effective risk prevention. Consequently, there can be no justification to restrict the shipowner’s fundamental right to property by relying on the intention of the actual possessor of the ship instead of on the intention of the shipowner.324 It must be concluded that only the shipowner is in a position to determine the purpose of the ship. Since, however, the shipowner is in general not the possessor of the ship, which is usually (bareboat) chartered to an operator, it is obvious that the provisions of the Basel Convention do not come to sufficient results regarding ships.
The most ambiguous issue, however, is to define the precise moment as of which the ship is intended to be disposed of by the shipowner. It is obvious that purely objective criteria like the age or a poor condition of the ship cannot be decisive, considering that a ship can easily be overhauled or rebuilt in order to serve another purpose, such as a museum or hotel ship. It is, therefore, necessary to focus on the subjective intention of the shipowner. Since such intention is often not explicitly expressed, it is argued that it is possible to extrapolate the intention to dispose of a ship from external indicators.325 In particular, it is assumed that as of the moment the shipowner enters into a sales contract with a cash buyer or shipbreaker the ship is intended to be disposed of and, thus, represents waste.326 Such approach, however, must fail from the outset, since it is nothing more than the fiction of intent to the detriment of the shipowner and the replacement of the subjective criterion of “intention” by objective circumstances. In cases where a sales contract is concluded or where other external indicators are present it is actually far from certain that the shipowner intends to dispose of the ship.327 Such external indications can also be explained by other reason, such as to be seen during the recent shipping crises when hundreds of ships were laid up for an indefinite period. Those ships are surely not intended to be disposed of during this period.
Consequently, the subjective intention of the shipowner to dispose of a ship needs to be determined in each individual case. But does already the sale of a ship to a cash-buyer or a shipbreaker manifest this intention? When entering into a sales contract regarding the ship the shipowner’s predominant aim is to realise the value of the raw materials contained in the ship. It is true that such aim to generate a (last) economic benefit from a disused item does, in general, not preclude that this item is intended to be disposed of.328 However, as regards the sale of end-of-life ships the shipowner’s intention is not to generate an economic benefit from the disposal of the ship, his intention amounts to nothing more than to the previous sale of the ship. In other words, the intention to sale an end-of-life ship cannot be equated with the intention to dispose of the ship in accordance with any of the disposal operations listed in Annex IV of the Basel Convention.329
It may now be argued that the intention of the shipowner is not restricted to the sale of the ship, but also comprises the later disposal of the ship.330 At this point, again, it becomes apparent that the definition of “waste” under the Basel Convention does not take account of the factual circumstances relevant to end-of-life ships that are sold for the purpose of dismantling. Ships, even when they are sailing to their last destination at a shipbreaking yard, are used as a means of transport. Even if the ship is supposed to be dismantled after its arrival, it is still intended to serve as a vehicle enabling transportation. If such ship would have to be considered “waste” already at the moment the shipowner takes the decision to dismantle the ship at a later time, this ship would, as of this moment, be subject to the export restrictions of the Basel Convention and, thus, could effectively not be used as a means of transport anymore. It must be concluded, therefore, that only the current purpose given to the ship by the shipowner can be decisive with regard to the definition of the term “waste”; any later (or subsequent) purpose must remain irrelevant in this context. The intention of the shipowner to use the ship as a means of transport and his intention to dispose of the ship are thus mutually exclusive. Only in that moment when the ship is “beached” at the shipbreaking yard, the intention of the shipowner to use the ship as a means of transport ends and, in lieu thereof, the ship is intended to be disposed of.331
Finally, a ship also becomes waste if it is required to be disposed of by the provisions of national law. It is therefore possible that a State creates national law, according to which an end-of-life ship under certain objective conditions is required to be disposed of by the owner and, thus, would be considered “waste” under the Basel Convention. However, such national law can only be lawful and valid if it is not in contravention with the provisions of the UNCLOS or the corresponding rules of customary international law. Under the UNCLOS and the customary international law ships that hold the required IMO certificates enjoy the freedom of navigation and may only be detained in those cases provided for in the UNCLOS.332 The UNCLOS, however, does not allow the detention of a ship based on the ground that the owner did not comply with the procedural requirements of the Basel Convention.333 As long as the ship is seaworthy and does not threaten damage to the marine environment it may not be restricted in the exercise of its navigational freedom.334 Consequently, it is not possible to restrict the freedom of navigation by means of an obligation under national law to dispose of a sea-going vessel under certain conditions.
As a result, it can be concluded that an end-of-life ship can be considered “waste” under the Basel Convention only at that moment when it is “beached” at the place of dismantling. An earlier intention of the shipowner to dispose of the ship does not exist, since prior to the moment when it is “beached”, it is still intended to be used as a means of transport. The intention to use a ship as a means of transport and the intention to dispose of the ship are mutually exclusive. In addition, any provision of national law, according to which a ship is required to be disposed of prior to this moment would conflict with the navigational rights and freedoms as guaranteed by international law and, thus, would be legally void.
(iii) Simultaneity of Ship and Waste?
The outcome of the previous section, according to which the intention of the shipowner to use the ship as a means of transport and his intention to dispose of the ship are mutually exclusive, seems to contradict the decision of the Parties to the Basel Convention, according to which “a ship may become waste as defined in article 2 of the Basel Convention and that at the same time it may be defined as a ship under international rules”.335 In order to assess whether a conflict actually exists, again, one needs to be precise.
At first, this statement needs to be seen in the light of the other provisions of the Basel Convention, including particularly Article 4(12). According to this, it is established that no provision of this Convention affects the exercise of navigational rights and freedoms by ships of all States as provided for in international law and as reflected in relevant international instruments. This, however, would be the case if the definition of the term “waste” is interpreted in a way that a ship, which still serves the purpose as a means of transport, is at the same time considered to be “waste” so that the export restrictions of the Basel Convention would apply. It has been outlined in the previous section that as long as a ship holds the required IMO certificates, is seaworthy and does not threaten damage to the marine environment, it enjoys the freedom of navigation as laid down in the UNCLOS and as accepted by customary international law. Therefore, it may not be detained by coastal States.336 The declaration of the Parties to the Basel Convention, according to which a ship may at the same time be considered waste, would amount to a restriction of the navigational rights and freedoms of ships as established by international law and, thus, also contradicts Article 4(12) of the Basel Convention.
In addition, it should be noted that a decision made by the Conference of the Parties to the Basel Convention is not legally binding as such. It may be considered as a political intention and as a recommendation for the interpretation of legal terms.337 But even in this regard this decision is hardly useful. It does not define under which conditions a ship may at the same time be considered waste, but confines itself to describing the intended outcome of a legal interpretation.338
It can be concluded, therefore, that the decision of the Parties to the Basel Convention, according to which a ship may at the same time be considered waste is not in conformity with the international law establishing and guaranteeing navigational rights and freedoms of ships of all States. Consequently, this decision should not be taken into account when determining whether or not end-of-life ships come under the definition of “wastes” of the Basel Convention. It thus remains true that the intention of the shipowner to use a ship as a means of transport and the intention to dispose of this ship are mutually exclusive.
(4) Summary
In summary, it can be said that the Basel Convention imposes a wide range of particular obligations on the States Parties, most of which represent obligations of conduct. To these belong the general obligations to reduce to a minimum the generation and transportation of hazardous wastes. In order to achieve this goal the States are obliged to take “appropriate measures” while taking into account the respective social, technological and economic circumstances of the States concerned. Since, therefore, the particular measures to be taken have to be determined on a case-by-case basis, a breach of these obligations will be hard to establish in practice. Furthermore, obligations of conduct are to be found in the context of the Convention’s three-tiered concept of requirements for the permissibility of transboundary movements of hazardous wastes. First, a State Party is responsible for an infringement if it fails to prohibit either by law or by administrative act the transport of hazardous waste to non-Parties or to the Antarctic. Secondly, a State may be responsible for the non-compliance with the requirements of the environmentally sound management principle. In this respect, again, it is necessary to first determine what is the precise content and meaning of the “environmentally soundness” of waste treatment in the particular case and which measures therefore are deemed to be “appropriate”. In addition, within the context of the applicable due diligence standard, it needs to be taken into account what the State could have reasonably assumed as to the manner in which the wastes will be treated in the State of import. Therefore, in practice it will hardly be possible to establish that a State has breached the obligations deriving from the environmentally sound management principle. Finally, a State may be internationally responsible for non-compliance with the requirements of the prior informed consent principle. A breach of these obligations is established in case the State either itself acts in contravention of these rules or fails to legally or administratively transpose these rules into domestic law applicable to the private parties concerned. Apart from the general obligations and the core obligations of the Basel Convention concerning the permissibility of transboundary movements of hazardous wastes, which represent obligations of conduct, the Basel Convention also lays down obligations of result. These involve the obligations to re-import the hazardous wastes in case their transport is deemed illegal or cannot be completed according to the terms of the contract. A breach of these obligations is established solely on the condition that the hazardous wastes in question are not shipped back despite such action being required by the obligation applicable. Finally, it should be stressed that as to all of these obligations the general standard of due diligence applies, meaning that in each particular case the concrete actions available to the State need to be taken into account in order to assess a potential breach of these obligations.
(bb) Other Conventions and Regulations Relevant to the Trade in and Transport of Hazardous Wastes
In addition to the Basel Convention, further international conventions provide for substantive rules relevant to the trade in and transport of hazardous wastes.
(1) The Bamako Convention
(i) Background of the Convention
In response to the waste dumping incidents which occurred in Africa during the 1980s, the former Organisation of African Unity (OAU)339 in 1988 adopted Resolution 1153, by which it declared that “the dumping of nuclear and industrial wastes in Africa is a crime against Africa and the African people”, and by which it emphasised its determination to pursue the approach of a total ban of hazardous waste imports from non-African countries to Africa.340 Consequently, the OAU did not perceive its position as being sufficiently taken into account in the course of the subsequent negotiations of the Basel Convention, during which it transpired that the African countries were not able to push through their position concerning a total ban of hazardous waste exports to developing countries.341 The Basel Convention, instead, adopted a general principle of prior informed consent whose global application makes no distinction between developed and developing countries. The OAU-countries, therefore, initially refrained from signing the Basel Convention and instead advocated the elaboration of an African regional convention.342 Finally, in 1991, the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa was set up under the auspices of the OAU. It entered into force on 22 April 1998 and, as of today, has been ratified by 25 States.343
The Bamako Convention is designed as a regional convention which is open for accession only by African countries.344 Despite its regional character, the Bamako Convention nevertheless has a significant global impact. This is due to its interactions with the Basel Convention, as a result of which the trade restrictions of the Bamako Convention indirectly apply also to the Parties of the Basel Convention.345 Since States may become Parties to both Conventions,346 the import ban established by the Bamako Convention is recognised by the Basel Convention, thus imposing upon its Parties the corresponding obligation to prohibit any export of hazardous wastes to the Contracting States of the Bamako Convention.347
(ii) The Obligations Imposed by the Convention
Regarding its scope of application the Bamako Convention provides for broader provisions than the Basel Convention. This applies especially to the catalogue of covered wastes348 as well as to the activities349 and the means of transport350 covered by the Convention.
Apart from that the Bamako Convention basically follows the model of the Basel Convention and adopts its basic structure and regulatory approach. But also in respect of its regulatory content, the Bamako Convention contains in some respects stricter provisions which are designed to remedy the perceived shortcomings of the Basel Convention.351 It basically distinguishes between hazardous wastes generated outside of Africa and those generated within Africa.352 In accordance with this distinction the Bamako Convention pursues two different goals: First, the complete prohibition of the importation of hazardous wastes generated outside of Africa to African countries; and, second, the establishment of a regime of prior informed consent and environmentally sound management in respect of the transboundary movement and treatment of hazardous wastes generated within Africa.353
With regard to the first goal, the Bamako Convention imposes on its Member States the obligation to “take appropriate legal, administrative and other measures […] to prohibit […] for any reason” the transportation of hazardous wastes from non-Parties into Africa.354 The Parties shall furthermore “[c]o-operate to ensure that no imports of hazardous wastes from a non-Party enter a Party to this Convention.”355 The application of these obligations is comprehensive and does not allow for any exemptions or less stringent rules in respect of wastes destined for recovery or recycling operations.356 As a result, these rules amount to a complete import ban of all hazardous wastes shipped from a non-Party, irrespective of whether this is an African or non-African State, into the national territory of a State Party to this Convention. In contrast, the Convention does not prohibit the export of hazardous wastes from Africa to non-States Parties.357 The transport of hazardous wastes from a Contracting State out of the Convention area is only limited insofar as the Parties “agree not to allow the export of hazardous wastes for disposal within the area South of 60° South Latitude”358 The Convention finally provides that the Parties “shall, in the exercise of their jurisdiction […] prohibit the dumping at sea of hazardous wastes, including their disposal in the seabed and sub-seabed”.359 The regulatory character of these obligations generally corresponds to the regulatory character of the absolute trade restrictions established under the Basel Convention. From the precise wording of these obligations, which require that the State “shall take appropriate measures”, “shall co-operate” with a view to a certain result, and “shall not allow” or “shall prohibit” certain activities, it becomes obvious that the purpose of these obligations is not to prescribe the occurrence of a certain factual result that has to be achieved by the State by whatever means necessary. These obligations rather emphasise the legal or administrative conduct of the State with regard to the activities of private parties and, therefore, must be considered obligations of conduct, to which the general standard of due diligence applies. A breach of these obligations is constituted by any failure of the State to domestically prohibit such transports or to sufficiently control, monitor and enforce this prohibition.
In respect of its second goal, the Bamako Convention establishes a prior informed consent principle as regards transboundary movements of hazardous wastes among States Parties, reproducing in almost identical terms the relevant provisions of the Basel Convention.360 However, one difference is that the Bamako Convention requires that the written confirmation of the State of import is received directly by the State of export, instead of merely requiring that the notifier confirms with the State of export that it has received the written confirmation from the State of import.361 Nevertheless, the same statements and findings as made in respect of the PIC-procedure of the Basel Convention apply to the PIC-requirements of the Bamako Convention. These obligations thus represent ones of conduct. Since the particular conduct required from the respective State is precisely described by these provisions, the determination of a breach of these provisions should not involve major difficulties.
Finally, the Bamako Convention prescribes that if a transport of hazardous wastes cannot be completed in accordance with the terms of the contract the exporting State “shall ensure that the wastes in question are taken back into the State of export, by the exporter”. The same applies to cases of illegal traffic, where the State of export “shall ensure” that the wastes are taken back “by the exporter or generator of if necessary by itself” or, alternatively, that the State of import “shall ensure” that those wastes are returned to the exporter by the importer.362 These provisions, again, are carried over almost verbatim from the relevant provisions of the Basel Convention and thus have to be considered obligations of result since the States have to ensure the occurrence of a particular result by whatever means necessary. The applicable standard of behaviour is the general standard of due diligence. A breach of these obligations of re-importation is thus established solely on the condition that hazardous wastes which have been shipped illegally or incompletely are not taken back notwithstanding the fact that the State knew or ought to have known about the circumstances rendering the transport illegal or incomplete.
(iii) Summary
It can be concluded that the obligations imposed by the Bamako Convention resemble to a large extent those of the Basel Convention. This basically also applies to the establishment of ban on the import of hazardous wastes into the Convention area. In fact, both Conventions establish a ban of hazardous wastes shipments from non-Contracting Parties to Contracting Parties. In fact, the Basel Convention goes even further and additionally bans any hazardous waste movements from Contracting Parties to non-Contracting Parties. The unique impact of the import ban established by the Bamako Convention only results from its locally restricted Convention area. Regarding the establishment of an import ban, the Bamako Convention thus does not provide stricter rules than the Basel Convention. In other respects, however, the Bamako Convention indeed provides for stricter rules and thus may in theory be considered as a suitable and effective supplement to the Basel Convention. From a practical perspective, however, the significance of the Bamako Convention is quite limited. This is to be explained by the inability of its Contracting States to either effectively implement the provisions or ensure compliance by local and national authorities.363
Regarding the legal character of the obligations, the findings made in respect of the Basel Convention apply accordingly. The obligations are ones of conduct to which the general standard of due diligence applies. Establishing a breach of these obligations is not likely to involve major difficulties as far as concerns a failure of the State to implement the procedural rules into the national law. The same basically applies to any failure of the State to comply with the sole obligation of result, namely to ensure that illegally or incomplete shipped hazardous wastes are re-imported by the State of export.
(2) The Waigani Convention
Acknowledging the need to prohibit the importation of hazardous and nuclear wastes into the South Pacific Region and the need to create a complementary regime to the Basel Convention that takes into consideration particular regional concerns, in September 1995 the Member States of the Pacific Island Forum (PIF) adopted the Waigani Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region. The Waigani Convention entered into force in 2001 and today has 13 Member States.364
The regulatory content of the Waigani Convention to a great degree corresponds to the obligations imposed by the Bamako Convention.365 The Convention establishes a ban on the importation of hazardous wastes from outside the Convention Area into any Pacific Island Developing Party.366 In contrast, shipments of hazardous wastes among Pacific Island Developing Parties as well as exports out of the Convention Area are not prohibited. In respect of those shipments the Convention provides for a distinct regime of PIC-requirements that are taken almost verbatim from the Basel and Bamako Conventions.367 The Convention, finally, also stipulates an obligation of re-importation in cases of illegal traffic or where a transport cannot be completed in accordance with the terms of the contract.368 In accordance with the corresponding findings in respect of the Basel and Bamako Convention, these represent obligations of conduct, except for the obligation of re-importation, which has to be considered an obligation of result. The elements of an internationally wrongful act under the Waigani Convention are thus largely the same as under the Bamako Convention.
(3) The Cotonou Agreement
In June 2000, the then 15 Member States of the European Union and 78 States of the African, Caribbean and Pacific Group of States (ACP Group) signed in Cotonou, Benin a partnership agreement between the European Union and the ACP Group intending to promote and expedite the political, economic, cultural and social development of the ACP Group.369 The Agreement entered into force on 1 April 2003 and succeeded the previous Lomé IV Convention of 1989370 that had expired in February 2000. Whereas the Lomé IV Convention contained a provision according to which the “Community shall prohibit all direct or indirect export” of hazardous wastes and “the ACP States shall prohibit the direct or indirect import into their territory”,371 the Cotonou Agreement abandons the approach of a trade ban and does not provide for any binding rules on the transboundary shipment of hazardous wastes. It rather focuses on the “[c]ooperation on environmental protection and suitable utilisation and management of natural resources” while “[t]aking into account issues relating to the transport and disposal of hazardous waste.”372 The Agreement furthermore encourages its Parties to ratify as quickly as possible the Basel Convention.373 From this wording it can be inferred that these obligations are of mere programmatic character reflecting a political intent rather than a rule directly binding on the Contracting Parties.
(4) OECD Council Decisions
The Organisation for Economic Co-operation and Development (OECD) consists today of 34 highly developed countries and aims at the promotion of economic progress and world trade. The Environment Directorate of the OECD Secretariat has been concerned with the issue of transboundary movements of hazardous wastes since the 1970s, which led to a number of Decisions and mixed Decision- Recommendations of the Council in this field. A Decision of the OECD Council is binding on the OECD Member States; the same applies to a Decision-Recommendation as far as its mandatory part is concerned.374
The OECD first focused on hazardous wastes in general and imposed on its Member States the mere general obligation to “control the transfrontier movements of hazardous waste”.375 Particularly with a view to exports of hazardous wastes out of the OECD area for final disposal, the Council, in 1986, adopted a comprehensive set of requirements including obligations (i) to apply no less stringent controls than on movements involving only Member States, (ii) to prohibit movements absent the consent of the importing country and the prior notification of any transit country, and (iii) to prohibit movements unless the wastes are directed to an adequate disposal facility in the importing country.376 In addition, a draft of an international convention among OECD countries on this issue was elaborated in 1988.377 Since, however, in 1989 the Basel Convention was adopted and already contained all of the relevant provisions and principles envisaged by the draft convention, the OECD Council ultimately suspended its work on this convention.378 The obligations imposed by the Council decisions of 1984 and 1986 remain binding for the OECD members; they do not, however, reach the distinct requirements of the Basel Convention nor its level of protection and, thus, do not come under Article 11 of the Basel Convention. These rules are consequently of no practical relevance.379
After the adoption of the Basel Convention the OECD focused on the issue of transfrontier movements of wastes for recovery operations. The Council, in 1992, adopted a Decision which applied to all wastes shipped between OECD countries and designed for recovery operations a set of different procedural requirements that varied depending on the respective category of wastes.380 This set of requirements was revised in 2001, when in conformance with the respective lists of the Basel Convention the former classification comprising three categories was reduced to a system of two categories.381 No specific trade restrictions apply to wastes on the green list,382 whereas wastes on the amber list383 are subject to a control system including, inter alia, the requirements of a written contract and prior notification and at least the tacit consent of the importing country. Regarding its practical significance, it should first be stressed that this OECD Decision applies only to waste shipments among OECD countries and is, therefore, of no relevance for the environmentally dangerous exports of wastes to developing counties. This is of particular importance considering that States which are not members to the OECD cannot invoke the breach of an individual or “subjective” right vis-à-vis an OECD Member State that is contravening the internal OECD rules. In addition, it may well be argued that the OECD rules do not meet the procedural requirements of the Basel Convention since they allow for a tacit consent of the State of import. The State of import may furthermore decide in general not to raise objections concerning movements to specific recovery facilities.384 Thus, the OECD Decision of 2001 cannot be considered an agreement within the meaning of Article 11 of the Basel Convention.385 In conclusion, it must be said that the Basel Convention prevails within its ambit over the OECD Decision. This applies to shipments of hazardous wastes covered by the amber list contained in the OECD Decision.
(5) European Union Legislation
The European Union (EU) legislation on the management of wastes is both very comprehensive and very distinct. The rules on the transboundary movement of hazardous wastes represent only one component of this overall framework.
The general basis for the European Union legislation on wastes is provided by Directive 2008/98/EC on Waste.386 This Directive replaced former Directive 2006/12/EC387 which had been newly created only 2 years earlier. The new Directive also includes general rules on hazardous wastes and on waste oils that previously had been subject to separate directives.388 As regards its content the Directive on Waste stipulates basic legal definitions and lays down a set of general requirements to be observed by the domestic legislation of the EU Member States, including, for example, rules on the prevention, recycling and disposal of wastes.389 Particularly with regard to hazardous wastes, it furthermore imposes obligations to control, not to mix and to properly label hazardous wastes.390 This general Directive on Waste is supplemented by further specific EU regulations concerning particular hazardous wastes and particular types of waste. This involves, in respect of particular hazardous wastes, the EU directives on titanium dioxide,391 on PCBs and PCTs,392 and on POPs.393 In respect of particular types of waste, specific regulations are provided by the EU directives on packaging and packaging waste,394 on end-of-life vehicles,395 on waste electrical and electronic equipment396 and on spent batteries and accumulators.397
The EU regulations on the transboundary movement of wastes form part of the body of rules concerning particular types of waste treatment.398 The central instrument is Waste Shipment Regulation (EC) No 1013/2006,399 by which the requirements of the Basel Convention and Decision C(2001)107/FINAL of the OECD Council are implemented in the EU area.400 This Regulation also takes into account the principles of origin and proximity as prescribed by general EU environmental law.401 It applies to hazardous and non-hazardous wastes as well and covers any involvement of EU Member States in transboundary waste shipments, to the extent there are exports, imports or transits of wastes, as well as transports solely among Member States. The specific obligations imposed by the Waste Shipment Regulation depend on several factors. First, a distinction is made as to whether the shipment is among Member States or concerns an export, import, or transit of wastes. Here again, within the respective set of rules, different obligations apply to wastes destined for disposal as opposed to wastes destined for recovery operations. With a view to waste exports to non-EU members (Articles 34 et seq.), a further distinction is made according to the respective State of destination and its accession to relevant international conventions. Finally, different rules apply to shipments of hazardous and non-hazardous wastes in accordance with the classification of wastes into either a green list (Annex III) or an amber list (Annex IV).
The particular content of these obligations cannot be examined in detail at this point.402 However, as to the question of whether in the context of transboundary movements of hazardous wastes claims for damage compensation can be based on the customary principle of State responsibility—invoking a breach of the relevant EU legislation—the particular content of these obligations is of minor importance. This is due to the fact that non-compliance with existing EU legislation will not give rise to claims under international law. As far as the Waste Shipment Regulation contains rules relevant to the export of hazardous wastes from EU members to third States, the internal EU Directive does not constitute an international commitment of EU States vis-à-vis third States, and, accordingly, third States cannot invoke the infringement of a corresponding individual or “subjective” right. On the other hand, as far as concerns hazardous waste shipments exclusively among EU members, the EU Waste Shipment Regulation may basically be considered an arrangement within the ambit of Article 11 of the Basel Convention.403 Since the Regulation also meets the regulatory standards required by Article 11, it takes, to this extent, precedence over the provisions of the Basel Convention.404 Transboundary shipments of hazardous wastes within the EU area are thus exclusively governed by and judged against the EU Waste Shipment Regulation. Its breach, however, does not entail the application of the principle of State responsibility. The application of this general rule of customary international law is overridden by the internal EU non-compliance rules that represent leges speciales.405
In summary, it can be concluded that a breach of the relevant EU legislation on the transboundary shipment of hazardous wastes under no circumstances constitutes an internationally wrongful act within the meaning of the principle of State responsibility.
(cc) The Law of the Sea Convention
The most important global legal instrument on the law of the sea is the 1994 United Nations Convention for the Law of the Sea (UNCLOS), which provides a comprehensive coverage of maritime issues and consolidates the main general principles and obligations in this legal field. It is, therefore, often described as “the general part” as regards the legal framework of the law of the sea.406
(1) Background and Basic Legal Features of the Convention
The UNCLOS entered into force on 16 November 1994, 12 years after its adoption in Montego Bay in Jamaica,407 this following 9 years of negotiations undertaken during the Third UN Conference on the Law of the Seas between 1973 and 1982. For its States Parties this Convention replaced the four Geneva Treaties on the Law of the Sea408 which had been signed in 1958.409 As of today, 165 States and the European Union have become Contracting Parties to the UNCLOS.410 Because of both its widespread acceptance as well as its universal coverage of maritime legal issues, the Convention has since its creation been commonly referred to as the “constitution of the oceans”.411
Unlike the earlier Geneva Treaties on the Law of the Sea, the UNCLOS pursues a comprehensive and universal approach by restating the relevant rules as to almost all aspects of the law of the sea. To a large extent, it codifies pre-existing principles of customary international law and also incorporates the essential rules of relevant international treaty law. The UNCLOS, furthermore, reflects a change of sentiment with regard to the oceans representing a global resource that is in need of protection. Pollution is no longer seen as an implicit right covered by the freedom of the seas. The Convention rather acknowledges a fundamental obligation to control and prevent those impacts on the marine environment caused by human activities.412 It moreover introduces a balance of powers system, juxtaposing the interests of exploitation and preservation.413 To this end, it monopolises the economic utilisation of marine resources414 by allocating this right to the respective coastal States.415 Conversely, it guarantees to the benefit of flag States and the community as a whole the freedoms of navigation and of conducting activities not related to the exploitation of natural recourses. The UNCLOS thus implements both the mare clausum and the mare liberum concepts.416 The realisation of the Convention’s attempt to strike a reasonable balance between rational exploitation and conservation of the sea’s living and non-living recourses was made possible only by means of a comprehensive package deal.417 The Convention is on the one hand comprehensive in scope and protected against deviating party agreements; on the other it is limited to general obligations and to those mandates given to competent institutions to elaborate specific rules. Thus, the UNCLOS itself largely abstains from defining substantive rights and obligations, instead establishing a general regulatory framework that requires a subsequent specification of these general rules by substantive provisions elaborated by global or regional legal instruments in the respective fields.418
The UNCLOS consists of 17 chapters (Parts). Parts II to VII deal with rights and obligations of States in respect of certain marine areas, such as in the territorial sea, in the exclusive economic zone (EEZ), or on the high seas. Parts VIII to X are concerned with particular geographic circumstances. The regime of the deep seabed, the “Area”, is contained in Part XI. The seabed is declared to be part of the common heritage of mankind,419 and its exploitation is made subject to the supervision of the newly created International Seabed Authority (ISA).420 The protection and preservation of the marine environment is dealt with in Part XII of the UNCLOS. Part XII starts with some general obligations of States to protect and preserve the marine environment and this applicable to any kind of marine-related activities (Articles 192–206). These general obligations are followed by more specialised rules dealing with particular sources of pollution (Articles 207–212). These rules largely do not contain detailed substantive obligations, but refer to existing or future legal instruments that are supplemented with expanded rules of enforcement (Articles 213–233).
(2) Obligations Imposed on States
The following sections shall outline the particular obligations of States under the UNLCOS which are of relevance in the context of transboundary movements of hazardous wastes.
(i) The Obligation to Protect and Preserve the Marine Environment, Articles 192, 194(1)
Article 192 of the UNCLOS states that “[s]tates have the obligation to protect and preserve the marine environment”. This provision embodies the core principle of the protection of the marine environment and to this extent restates customary international law.421 However, the content of this principle as such is not sufficiently prescribed in order to be applied directly. It rather announces the programmatic goal of the entire set of rules and therefore has to be defined in more detail by further provisions.422
The most important concretisation of this general principle is made by Article 194(1) of the UNCLOS. It obliges States to “take […] all measures […] that are necessary to prevent, reduce and control pollution of the maritime environment from any source”. It becomes apparent that this obligation protects the international community as a whole and, therefore, is to be considered an obligation erga omnes.423 It covers the entire maritime space including the high seas and does not depend on the violation of the national territory or any other individual or “subjective” right of another State.424