Negotiation of a protocol on liability and compensation for damage resulting from transboundary movements of hazardous wastes and their disposal

Between 1987 and 1998, 3,800 tonnes of waste from various European countries and the United States was transported to Koko, Nigeria in a deal arranged by an Italian trader with a Nigerian national, who received US$100 a month for storing the wastes in a dirt lot. While eventually arrangements were made to return the wastes, residents near the site fell ill and persons involved in the clean-up suffered chemical burns and other illnesses. In response to incidents of this nature a global convention was negotiated: the Basel Convention on the Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention), which entered into force in 1992. The Basel Convention aims to minimize the generation and transboundary movements of hazardous wastes. Under this Convention, exports of hazardous wastes - including those destined for recycling such as lead acid batteries - are only permitted if the exporting state has received prior consent from the state of import. In addition, exports are only permitted where the exporting state has reason to believe that the wastes Will be handled in an environmentally sound manner in the state of import.

Since entry into force, the Basel Convention regime has Placed further restrictions on transboundary movements of wastes. The first Conference of the Parties (COP-1) agreed to ban exports of hazardous wastes for disposal (e.g. PCBs) from industrialized to developing countries. The second Conference of the Parties (COP-2) took a decision to ban exports - including for recycling or recovery - from OECD to non-OECD countries. The third Conference of the Parties (COP-3) agreed to amend the Convention to prohibit exports from Annex VII countries (OECD, EU and Liechtenstein) to non-Annex VII countries. At the time of adoption of this decision, some Parties made statements asserting that in their view OECD to non-OECD trade could continue on the basis of bilateral agreements under Article 11 of the Convention, and this issue remains unresolved. While the ban amendment has created some uncertainty in relation to the liability protocol negotiations, there remains scope for a liability protocol in relation to shipments between developing countries (non-Annex VII countries), South-North shipments (from non-Annex VII to Annex VII countries) and in relation to North-North shipments (between Annex VII countries) (see below).

The absence of rules on liability and compensation in the Basel Convention itself which could address the compensation issues which arose in relation to events such as the Koko incident described above, was a source of criticism at the time of its adoption. The final compromise on this issue was reflected in Article 12 of the Convention which states that 'The Parties shall cooperate with a view to adopting, as soon as practicable, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes'. The need for rapidly developing a protocol on this subject was emphasized by statements made at the time of adoption of the Convention. Resolution 3 of the Basel Conference called for the convening of a working group to draft elements which could be included in a future protocol on liability and compensation. COP-1 established an ad hoc working group of legal and technical experts (hereafter 'Working Group') to consider and develop 'a draft protocol on liability and compensation, possibly including the establishment of an International Fund for compensation for damage resulting from the transboundary movements of hazardous wastes and their disposal'.

Despite this sense of urgency, progress by the working group has been slow. It has met roughly once a year - 6 times in total - since COP-1, and its mandate was again renewed at the recent fourth Conference of the Parties (COP-4) held in Kuching, Malaysia from 23 to 27 February 1998.6 As at the time of writing (July 1998) the most recent meeting of the Working Group was in Geneva from 24 to 26 June 1998.

This article outlines the state of the negotiations to date on the liability protocol. It demonstrates that in spite of some progress at the fifth and sixth negotiating sessions, a number of complex issues remain unresolved in the negotiations.