Key Benefits:
945 OF 2005
(February 17)
Official Journal No. 45.826 of 18 February 2005
By means of which the "Basel Protocol on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal" is approved, concluded in Basel on 10 (10) December of a thousand nine hundred and ninety-nine (1999).
THE CONGRESS OF THE REPUBLIC
Having regard to the text of the Basel Protocol on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal, concluded in Basel on 10 (10) December of a thousand nine hundred and ninety-nine (1999).
(To be transcribed: photocopy of the full text of the international instrument mentioned).
BILL NUMBER 205 OF 2004 SENATE
By means of which the "Basel Protocol on Liability and Compensation for Resulting Damages
of Transboundary Movements of Hazardous Wastes and Their Disposal"is approved, concluded in Basel on ten (10) December of a thousand nine hundred and ninety-nine (1999).
THE CONGRESS OF THE REPUBLIC
Having regard to the text of the Basel Protocol on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal, concluded in Basel on 10 (10) December of a thousand nine hundred and ninety-nine (1999).
(To be transcribed: photocopy of the full text of the international instrument mentioned).
" BASEL PROTOCOL ON LIABILITY AND COMPENSATION FOR DAMAGES RESULTING FROM TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL
The Conference
Adopts the Basel Protocol on liability and compensation for damages resulting from transboundary movements of hazardous wastes and their disposal.
PROTOCOL ON LIABILITY AND COMPENSATION FOR DAMAGES RESULTING FROM TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL
Parties to the Protocol,
Having taken into account the relevant provisions of Principle 13 of the Rio Declaration on the Environment and Development of 1992, for which States shall develop national and international legal instruments on liability and compensation for victims of pollution and other environmental damage,
Being Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Elian-Nation,
Taking into account their obligations under the Convention,
Aware of the risk of harm to human health, property and the environment caused by hazardous wastes and other wastes and their transboundary movement and disposal,
Concerned about the problem of illicit cross-border traffic in hazardous waste and other waste,
Committed to Article 12 of the Convention, and highlighting the need for appropriate rules and procedures in the sphere of liability and compensation for damages resulting from cross-border movement and elimination of hazardous wastes and other wastes,
Convinced of the need for a regime of third-party compensation and environmental compensation to be established to ensure that adequate and prompt compensation exists for damages resulting from cross-border movement and elimination of hazardous wastes and other wastes,
The following have been agreed:
OBJECTIVE.
The aim of the Protocol is to establish a comprehensive regime of early and appropriate liability and compensation for damages resulting from transboundary movements of hazardous wastes and other wastes and their disposal, including trafficking illicit of such wastes.
DEFINITIONS.
1. The definitions of the terms set out in the Convention apply to the Protocol, unless otherwise expressly provided for.
2. For the purposes of this Protocol:
(a) By "the Convention" means the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal;
(b) 'hazardous wastes and other wastes' means hazardous wastes and other wastes referred to in Article 1 of the Convention;
c) For "damage" is understood:
i) Death or bodily injury;
(ii) Material damage or damage, except property of the person liable for damages in accordance with this Protocol;
iii) Loss of income directly derived from an economic interest in the use of the environment incurred as a result of a significant deterioration of the environment, taking into account savings and costs;
iv) Cost of impaired environment restoration measures, limited to the cost of measures effectively taken or to be taken; and
v) Cost of preventive measures, including any losses or damages caused by such measures, to the extent that damage is caused or caused by hazardous properties of waste that is the object of transboundary movements and disposal of hazardous wastes and other wastes subject to the Convention;
(d) "reset measures" means any reasonable measure aimed at assessing, restoring or restoring damaged or destroyed components of the environment. In national legislation it may be established who has the right to take such measures;
e) By "preventive measures" means any reasonable measure taken by any person in response to an incident in order to prevent, minimize or mitigate losses or damage or to sanitize the environment;
f) By "Contracting Party" means a Party to the Protocol;
g) By "Protocol" means this Protocol;
h) By "incident" means any event or series of events having the same source causing damage or posing a serious and imminent threat to cause it;
(i) 'regional economic integration organisation' means an organisation consisting of sovereign States to which its Member States have transferred their competence in respect of matters governed by the Protocol and which has been duly authorised, in accordance with its internal procedures, to sign, ratify, accept, approve, officially confirm or accede to the Protocol;
j) "Accounting unit" means special drawing rights in its form defined by the International Monetary Fund.
APPLICATION SCOPE.
1. This Protocol applies to damage resulting from an incident during a transboundary movement of hazardous wastes and other wastes and their disposal, including illicit trafficking, from the point where the waste is loaded in the means of transport in an area under the national jurisdiction of an exporting State. Any Contracting Party may, by notification to the Depositary, exclude the application of the Protocol, in respect of all cross-border movements of which it is the state of export, in respect of incidents occurring in the area under its national jurisdiction, in respect of damages in its area of national jurisdiction. The Secretariat shall inform all Contracting Parties of the notifications received in accordance with this Article.
2. The Protocol shall apply:
(a) In relation to movements intended for one of the operations specified in Annex IV to the Convention other than operations D13, D14, D15, R12 or R13, up to the time when the completion of the disposal has been made in accordance with paragraph 9 of Article 6 of the Convention, or in the event that such notification has not been made, until the disposal has been completed; and
(b) In relation to movements for operations specified in D13, D14, D15, R12 or R13 of Annex IV to the Convention, until the end of the subsequent disposal operation specified in D1 to D12 and R1 to R11 of Annex IV to the Convention. Convention.
3. (a) The Protocol shall apply only to damages suffered in an area under the national jurisdiction of a Contracting Party as a result of an incident as referred to in paragraph 1;
(b) Where the State of import, but not the State of export, is a Contracting Party, the Protocol shall apply only in respect of damage caused by an incident as referred to in paragraph 1, which occurs after the moment. in which the eliminator has taken possession of the hazardous wastes and other wastes. Where the State of export, but not the State of import, is a Contracting Party, the Protocol shall apply only in respect of damage caused by an incident as referred to in paragraph 1, which occurs before the time of the eliminator takes possession of the hazardous wastes and other wastes. Where neither the State of export nor the State of import is a Contracting Party, the Protocol shall not apply;
(c) Without prejudice to subparagraph (a), the Protocol shall also apply to the damage specified in paragraphs (i), (ii) and (v) of paragraph 2 (c) of paragraph 2 of this Protocol that occur in areas outside the national jurisdiction;
(d) Subject to the provisions of point (a), the Protocol shall also apply, in relation to the rights provided for in the Protocol, to damage suffered in an area under national jurisdiction of a State of transit that is not a Party Contracting party, provided that that State is listed in Annex A and has agreed to a multilateral or regional agreement which is in force on the transboundary movements of hazardous wastes. Point (b) is applied mutatis mutandis.
4. Without prejudice to the provisions of paragraph 1 of the Protocol, in the case of re-imports in accordance with Article 8, or Article 9 (2) (a) (a) and Article 9 (4) of the Convention, the provisions of the Protocol shall apply. until the hazardous wastes and other wastes have reached the original State of export.
5. Nothing in this Protocol shall in any way affect the sovereignty of States over their territorial seas and neither their jurisdiction nor the right in their respective exclusive economic zones and continental platforms of conformity. with international law.
6. Without prejudice to paragraph 1 and subject to paragraph 2 of this Article:
(a) The Protocol shall not apply to damage arising from a transboundary movement of hazardous wastes and other wastes initiated prior to the entry into force of the Protocol for the Contracting Party concerned;
(b) The Protocol shall not apply to damage resulting from an incident occurring during a transboundary movement of waste referred to in Article 1 (1) (b) (b) of the Convention unless the waste has been notified by the the State of export or import, or both, in accordance with Article 3 of the Convention and the damage caused has occurred in an area under the national jurisdiction of a State, including the State of transit, which has defined such waste as dangerous, or if they consider them to be in accordance with the requirements of Article 3 of the Convention. In that case, the objective liability shall be channelled in accordance with Article 4 of the Protocol.
7. (a) The Protocol shall not apply to damage caused by an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal, in compliance with a bilateral, multilateral, or regional agreement or arrangement agreed and notified in accordance with Article 11 of the Convention, if:
i) The damage has occurred in an area under the national jurisdiction of either Party to the agreement or arrangement;
(ii) There is a liability and indemnity regime, which is in force and applicable to the damage resulting from the aforementioned movements or elimination, provided that it fully complies or transcends the purposes of this Protocol to the offer a high degree of protection to people who have suffered the damage;
(iii) The Party to an arrangement arrangement provided for in Article 11 in which the damage has occurred, has previously notified the Depositary that the Protocol shall not be applicable to damages occurring in an area under its national jurisdiction due to a an incident that occurs because of the movements or removals referred to in this paragraph; and
(iv) Parties to an agreement or arrangement provided for in Article 11 have not declared that the Protocol shall apply;
(b) In order to promote transparency, a Contracting Party which has notified the Depositary that the Protocol is not applicable shall notify the Secretariat of the applicable liability and compensation schemes referred to in the Protocol. (ii) point (a) and shall include a description of the scheme. The Secretariat shall submit to the Conference of the Parties to the Convention, on a regular basis, summary reports on the notifications received;
(c) After a notification made pursuant to paragraph (iii) of (a), no action may be initiated under the Protocol in respect of the compensation for damages to which subparagraph (i) of subparagraph (i) applies.
8. The exclusion provided for in paragraph 7 of this Article shall not affect any of the rights or obligations under this Protocol of a Contracting Party which is not a Party to the agreement or arrangement referred to above, nor shall it affect the rights of transit States other than Contracting Parties.
9. Article 3, paragraph 2, shall not affect the application of Article 16 to all Contracting Parties.
OBJECTIVE RESPONSIBILITY.
1. The person who notifies in accordance with Article 6 of the Convention shall be liable for damages until the eliminator has taken possession of the hazardous wastes and other wastes. From that moment the eliminator will be responsible for the damages. If the State of export is the notifier or if no notification has been made, the exporter shall be liable for the damage until the eliminator has taken possession of the hazardous wastes and other wastes. As far as paragraph 6 (b) of the Protocol is concerned, paragraph 5 of Article 6 of the Convention shall mutatis mutandis. that time the eliminator shall be liable for damages.
2. Without prejudice to the provisions of paragraph 1 and in relation to wastes subject to Article 1 (1) (b) (b) of the Convention which have been notified as dangerous by the State of importation in accordance with Article 3 of the Convention. Convention, but they have not been notified as such by the State of export, if the State of import is the notifier, or the notification has not been effected, the importer shall be responsible until the moment when the eliminator has taken possession of the waste. From then on the eliminator will be liable for damages.
3. If hazardous wastes and other wastes are reimported in accordance with Article 8 of the Convention, the person who has notified shall be liable for damages from the time the hazardous wastes leave the disposal site, until the time when the waste enters the exporter's possession, if applicable, or the alternative eliminator.
4. If hazardous wastes and other wastes are reimported in accordance with Article 9 (2) (a) (a) or Article 9 (4) of the Convention, subject to Article 3 of the Protocol, the person who reimports shall be liable for damages until the waste enters the exporter's possession, if applicable, or the alternative eliminator.
5. The person referred to in paragraphs 1 and 2 of this Article shall not be liable if that person proves that the damage has been the result of:
(a) An act of armed conflict, hostilities, civil war or insurrection;
b) From an exceptional, unavoidable, unpredictable and irresistible natural phenomenon;
c) Exclusively from compliance with a mandatory provision of a public authority in the State where the damage occurred; or
d) Exclusively from the intentional unlawful conduct of a third party, including the person suffering from the damage.
6. If two or more persons are liable in accordance with this Article, the claimant shall be entitled to seek full compensation for the damages to any of the persons responsible or to all of them.
BLAME LIABILITY.
Without prejudice to the provisions of Article 4, any person shall be liable for damages caused by failure to comply with the provisions of the Convention or for his or her voluntary, reckless or negligent acts or omissions, or have contributed to such non-compliance or acts or omissions. This Article shall not affect the national legislation of the Contracting Parties governing the liability of the servants and agents.
PREVENTIVE MEASURES.
1. Subject to any provision of national legislation, any person who has operational control of hazardous wastes and other wastes at the time of an incident shall take all reasonable steps to mitigate the damage arising from that incident. incident.
2. Without prejudice to any other provision of the Protocol, any person who is in possession and/or has control of hazardous wastes and other wastes for the sole purpose of taking preventive measures, provided that person has acted reasonably and in accordance with any national law governing preventive measures, shall not be liable under the Protocol.
COMBINED CAUSE OF DAMAGE.
1. Where the damage is caused by waste covered by this Protocol and wastes not covered by the Protocol, any person otherwise responsible shall only be liable under the Protocol in proportion to the contribution to the damage. caused by the waste covered by the Protocol.
2. The proportion of the contribution of the waste to the damage referred to in paragraph 1 shall be determined in relation to the volume and the properties of the waste concerned and the type of damage that occurred.
3. In the event of damage where it is not possible to differentiate between the contribution made by the waste covered by the Protocol and the waste not covered by it, all the resulting damage shall be deemed to be covered by the Protocol.
RIGHT TO INTERJECT.
1. Any person responsible under the Protocol shall have the right to appeal in accordance with the rules of the competent court:
(a) Against any other person who is also responsible under the Protocol; and
b) As expressly provided for in contractual arrangements.
2. Nothing in the Protocol shall affect any other rights to bring proceedings for which the responsible person may enjoy in accordance with the law of the competent court.
CONCURRENT FAULT.
The compensation may be reduced or refused if the person who suffered the damage, or a person who is responsible under national law, has caused, or contributed to, his or her own fault, in the light of all the circumstances.
APPLICATION.
1. The Contracting Parties shall take the legislative, regulatory and administrative measures necessary to implement the Protocol.
2. In order to promote transparency, the Contracting Parties shall inform the Secretariat of the measures taken to implement the Protocol, including the limits of liability established in accordance with paragraph 1 of Annex B.
3. The provisions of the Protocol shall apply without discrimination based on nationality, domicile or residence.
CONFLICTS WITH OTHER LIABILITY AND INDEMNITY AGREEMENTS.
When the provisions of the Protocol and the provisions of a bilateral, multilateral or regional agreement apply to liability and compensation for damages caused by an incident during the same portion of a movement The Protocol shall not apply provided that the other agreement is in force between the Parties concerned and has been opened to the signature when this Protocol was opened to the signature, even if the agreement was amended. later.
FINANCIAL LIMITS.
1. The financial limits for liability under Article 4 of the Protocol are specified in Annex B to the Protocol. Those limits shall not include the interests or the costs awarded by the competent court.
2. A financial limit shall not be established for liability in accordance with Article 5.
TEMPORARY LIMIT OF LIABILITY.
1. Claims for compensation under the Protocol shall only be admissible where they are submitted within 10 years of the date of the incident.
2. Claims for compensation under the Protocol shall only be admissible where they are filed within five years from the date on which the claimant met, or reasonably must have known, the damage, provided that the limits are not exceeded. temporary established in accordance with paragraph 1 of this Article.
3. Where the incident consists of a series of events having the same origin, the time limits laid down in accordance with this Article shall begin to run from the date of the last of those events. When the incident consists of a continuous event, the deadline will start running from the end of that continuous event.
INSURANCE AND OTHER FINANCIAL GUARANTEES.
1. Persons responsible under Article 4 shall establish and retain for the period of the temporary limit of liability insurance, bonds or other financial guarantees covering their liability in accordance with Article 4 (1) of the Treaty. Protocol for an amount not less than the minimum limits specified in paragraph 2 of Annex B. States may fulfil their obligations under this paragraph by means of a self-insurance declaration. Nothing in this paragraph will prevent the use of franchising or copayments between the insurer and the insured, but failure to pay by the insured of any franchise or copay shall not represent a defence against the person who has suffered the damage.
2. In respect of the liability of the notifier, or exporter within the meaning of Article 4 (1), or of the importer in accordance with Article 4 (2), only insurance, bonds or any other financial guarantee shall be used. referred to in paragraph 1 of this Article in order to compensate for the damage referred to in Article 2 of the Protocol.
3. The notification referred to in Article 6 of the Convention shall be accompanied by a document setting out the coverage of the responsibility of the notifier or exporter within the meaning of Article 4 (1) or the importer with pursuant to Article 4 (2) of the Protocol. A test of the coverage of the responsibility of the eliminator shall be submitted to the competent authorities of the importing State.
4. Any claim under the Protocol may be made directly to any person providing insurance, bonds or other financial guarantees. The insurer or the person providing the financial guarantee shall be entitled to require that the person responsible in accordance with Article 4 be called during the proceedings. Insurers and persons providing financial guarantees may invoke the same defences as the right to invoke the person responsible in accordance with Article 4.
5. Without prejudice to the provisions of paragraph 4, a Contracting Party shall indicate, by notification to the Depositary at the time of signature, ratification, approval of the Protocol or accession to it, if its legislation does not provide for the right to establish a direct application in accordance with paragraph 4. The Secretariat shall keep a register of the Contracting Parties which have submitted notifications under this paragraph.
FINANCIAL MECHANISM.
1. In the event that compensation under the Protocol does not cover the costs of damages, additional and complementary measures may be taken to ensure prompt and appropriate compensation using existing mechanisms.
2. The Meeting of the Parties shall keep in check the need and the possibility to improve existing mechanisms or to establish a new mechanism.
STATE RESPONSIBILITY.
The Protocol shall not affect the rights or obligations of the Contracting Parties under the rules of general international law as regards the liability of States.
COMPETENT COURTS.
1. Claims for compensation under the Protocol may only be brought before the courts of a Contracting Party where:
a) The damage has been suffered; or
b) Incident occurred; or
c) The defendant has his or her usual residence or his c principal of business operations.
2. Each Contracting Party shall ensure that the courts are competent to hear such claims for compensation.
RELATED ACTIONS.
1. Where related actions are initiated before courts of different Parties, any court other than that where the first action was initiated may suspend proceedings while the proceedings are pending in the first instance.
2. A court may, at the request of one of the Parties, decline jurisdiction if the law of that court permits the consolidation of related actions and another court has jurisdiction over both actions.
3. For the purposes of this Article, it shall be estimated that the shares are related when they are so closely related that it is appropriate to know them and to determine them together to avoid the risk of different procedures irreconcilable.
APPLICABLE LAW.
All matters of substance or procedure relating to claims that the competent court has before them that are not specifically regulated in the Protocol shall be governed by the law of that court, including all provisions of that court. law on conflict of laws.
RELATIONSHIP BETWEEN THE PROTOCOL AND THE LAW OF THE COMPETENT COURT.
1. Subject to the provisions of paragraph 2, no provision of the Protocol may be interpreted as limiting or undermining any of the rights of persons who have suffered damage or in the sense that it limits the provisions of the Protocol. relating to the protection or rehabilitation of the environment which may be adopted in accordance with national legislation.
2. No claim for damages based on the objective liability of the notifier or the exporter responsible in accordance with paragraph 1 of Article 4 or the responsible importer pursuant to paragraph 2 of the Article 4 of the Protocol but in accordance with the Protocol.
MUTUAL RECOGNITION AND EXECUTION OF STATEMENTS.
1. Any judgment of a court having jurisdiction under Article 17 of the Protocol, which is enforceable in the State of origin and is not already subject to ordinary forms of review, shall be recognised in any Contracting Party as soon as the formalities required by that Party have been satisfied, except that:
a) The statement has been fraudulently obtained;
(b) The defendant has not been notified within a reasonable period of time or given sufficient opportunity to present his or her defence;
c) When the decision is irreconcilable with a previous sentence pronounced in a valid manner in another Contracting Party on the same cause and on the same Parties; or
d) When the statement is contrary to the public policy of the Contracting Party in which recognition is sought.
2. Any sentence recognised under paragraph 1 of this Article shall be enforceable in each Contracting Party as soon as the formalities required by that Party have been satisfied. The formalities shall not permit the reopening of the matter.
3. The provisions of paragraphs 1 and 2 of this Article shall not apply between the Contracting Parties which are Parties to an agreement or arrangement which is in force on mutual recognition and the enforceable quality of judgments under the terms of the which the sentence would be recognizable and enforceable.
RELATIONSHIP TO THE PROTOCOL WITH THE BASEL CONVENTION.
The provisions of the Convention relating to its Protocols shall apply to the Protocol unless otherwise provided.
ANNEX B. AMENDMENT
1. At its sixth meeting, the Conference of the Parties to the Basel Convention may amend paragraph 2 of Annex B in accordance with the procedure laid down in Article 18 of the Basel Convention.
2. Such an amendment may be made before the Protocol enters into force.
FINAL CLAUSES
MEETING OF THE PARTIES.
1. A Meeting of the Parties is hereby established. The Secretariat shall convene the first meeting of the Parties together with the first meeting of the Conference of the Parties to the Convention after the Protocol enters into force.
2. Thereafter, ordinary meetings of the Parties shall be held together with the meetings of the Conference of the Parties to the Convention, unless the meeting of the Parties decides otherwise. The extraordinary meetings of the Parties shall be held when the meeting of the Parties considers it necessary or where any of the Contracting Parties so request in writing, provided that, within six months of the date on which the request to be communicated to you by the secretariat, at least one third of the Parties support that request.
3. At their first meeting, the Contracting Parties shall adopt by consensus the rules of their meetings, as well as their financial regulations.
4. The functions of the Meeting of the Parties shall be:
a) Examine the application and compliance of the Protocol;
b) Take the necessary steps for reporting and establish, where necessary, guidelines and procedures for such presentation;
(c) Examine and adopt, where necessary, proposals for amendments to the Protocol or its Annexes and for the inclusion of new Annexes; and
d) Browse and take any additional measures that are necessary for the purposes of the Protocol.
SECRETARY.
1. For the purposes of the Protocol, the Secretariat shall have the following functions:
(a) Organise the Meetings of the Parties provided for in Article 24 and provide services to those meetings;
b) Prepare reports, including financial data, on the activities that they perform in the performance of their duties under the Protocol and submit them to the Meeting of the Parties;
(c) To ensure the necessary coordination with the relevant international bodies and, in particular, to specify the administrative and contractual arrangements that may be necessary for the effective performance of their tasks;
d) Collect information on the national laws and administrative provisions of the Contracting Parties applying the Protocol;
e) Cooperate with the Contracting Parties and with the relevant and competent international organizations and bodies in the supply of experts and equipment in order to provide prompt assistance to States in the event of emergency;
(f) Encouraging States that are not Parties to attend meetings of the Parties as observers and in accordance with the provisions of the Protocol; and
g) To perform the other functions assigned to you by the Meetings of the Parties for the achievement of the objectives of this Protocol.
2. The Secretariat of the Basel Convention shall carry out the secretarial functions.
FIRMA.
The Protocol shall be open to the signature of States and regional economic integration organizations Parties to the Basel Convention in Bern at the Federal Department of Foreign Affairs of Switzerland, from 6 to 17 March 2000, and in the United Nations Headquarters in New York, April 1 to December 10, 2000.
RATIFICATION, ACCEPTANCE, FORMAL CONFIRMATION, OR APPROVAL.
1. The Protocol shall be subject to ratification, acceptance or approval by the States and to formal confirmation or approval by regional economic integration organisations. Instruments of ratification, acceptance, formal confirmation or approval shall be deposited with the Depositary.
2. Any organisation referred to in paragraph 1 of this Article which becomes a Party to this Protocol without it being a Party to any of its Member States shall be subject to all the obligations set out in the Protocol. Where one or more Member States of such organisations are Parties to the Protocol, the organisation and its Member States shall decide on their respective responsibilities for the implementation of the obligations incumbent upon them. under the Protocol. In such cases, the organisation and the Member States shall not be entitled to exercise the rights set out in the Protocol at the same time.
3. In their instruments of formal confirmation or approval, the organisations referred to in paragraph 1 of this Article shall specify the extent of their powers in matters governed by the Protocol. Those organisations shall also inform the Depositary, who shall inform the Contracting Parties, of any major changes in the scope of their powers.
ADHESION.
1. The Protocol shall be open to the accession of States and regional economic integration organisations which are Parties to the Basel Convention which have not signed the Protocol. The instruments of accession shall be deposited with the Depositary.
2. In their instruments of accession, the organisations referred to in paragraph 1 of this Article shall specify the extent of their powers in matters governed by the Protocol. Those organisations shall also inform the Depositary of any major changes to the scope of their powers.
3. The provisions of Article 27 (2) shall apply to regional economic integration organisations which adhere to the Protocol.
ENTRY INTO EFFECT.
1. The Protocol shall enter into force on the ninetieth day after the date on which the 20th instrument of ratification, acceptance, formal confirmation, approval or accession has been deposited.
2. With respect to each State or regional economic integration organization which ratifies, accepts, formally approves or confirms the Protocol or adheres to it after the date of deposit of the 20th instrument of ratification, acceptance, approval, formal confirmation or accession, the Protocol shall enter into force on the ninetieth day after the date on which that State or regional economic integration organisation has deposited its instrument of ratification, acceptance, approval, formal confirmation or accession.
3. For the purposes of paragraphs 1 and 2 of this Article, instruments deposited by a regional economic integration organisation shall not be considered to be additional to those deposited by the Member States of that organisation.
RESERVATIONS AND STATEMENTS.
1. No reservations or exceptions may be made to the Protocol. For the purposes of the Protocol, notifications made pursuant to Article 3o, paragraph 1, Article 3 (6) or Article 15 (5) shall not be considered as reservations or exceptions.
2. Paragraph 1 of this Article shall not prevent the signing, ratification, acceptance, approval or formal confirmation of the Protocol, or by joining it, a State or an organisation of regional economic integration, making statements or statements, whatever their wording and title, with a view, inter alia, to the harmonization of their laws and regulations with the provisions of the Protocol, provided that such statements or statements are not interpreted as having the object of to exclude or amend the legal effects of the provisions of the Protocol and their application to that Protocol; Status or organization.
COMPLAINT.
1. At any time after the expiry of a period of three years from the date of entry into force of the Protocol in respect of a Contracting Party, that Contracting Party may denounce the Protocol by notification made by the written to the Depositary.
2. The complaint shall be effective one year after the date on which the Depositary has received the notification, or at any later date indicated in that notification.
DEPOSITARY.
The Secretary-General of the United Nations shall be the Depositary of the Protocol.
AUTHENTIC TEXTS.
The Arabic, Chinese, Spanish, French, English, and Russian texts of the Protocol are equally authentic.
LIST OF TRANSIT STATES TO WHICH
IS REFERRED TO IN PARAGRAPH 3
(D) OF ARTICLE 3o.
| 1. Antigua and Barbuda | 21. Micronesia (Federated States of) |
| 2. Bahamas | 22. Nauru |
| 3. Bahrain | 23. Niue |
| 4. Barbados | 26. Palau |
| 5. Cape Verde | 24. New Zealand, on behalf of Tokelau |
| 6. Cuba | 25. Netherlands, on behalf of Aruba and the Netherlands Antilles |
| 7. Cyprus | 26. Palau |
| 8. Dominica | 27. Papua New Guinea |
| 9. Fiji | 28. Dominican Republic |
| 10. Granada | 29. Samoa |
| 11. Haiti | 30. Saint Kitts and Nevis |
| 12. Comoros Islands | 31. Saint Vincent and the Grenadines |
| 13. Cook Islands | 32. Saint Lucia |
| 14. Maldives | 33. Saint Thomas and Prince |
| 15. Marshall Islands | 34. Seychelles |
| 16. Solomon Islands | 35. Singapore |
| 17. Jamaica | 36. Tonga |
| 18. Kiribati | 37. Trinidad and Tobago |
| 19. Malta | 38. Tuvalu |
| 20. Mauritius | 39. Vanuatu |
FINANCIAL LIMITS.
1. The national law shall determine the financial limits for liability under Article 4 of the Protocol.
2. (a) The limits of the liability of the notifier, exporter or importer for any incident shall not be less than:
i) One million accounting units for shipments equal to or greater than five tonnes;
(ii) Two million accounting units for consignments exceeding five tonnes but equal to or less than 25 tonnes;
iii) Four million accounting units for shipments exceeding 25 tonnes but equal to or less than 50 tonnes;
iv) Six million accounting units for shipments exceeding 50 tonnes but equal to or less than 1,000 tonnes;
v) Ten million accounting units for shipments exceeding 1,000 tonnes but equal to or less than 10,000 tonnes;
vi) More than one thousand additional accounting units for each additional tonne up to a maximum of 30 million accounting units;
b) The limits of liability for the eliminator shall not be less than two million accounting units for any incident.
3. The Contracting Parties shall periodically review the quantities referred to in paragraph 2 taking into account, inter alia, the potential risks posed to the environment by the movement of hazardous wastes and other wastes and their disposal, recycling, and the nature, quantity and hazardous properties of waste.
| I hereby certify that the foregoing text is a true copy of the Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes ad their Disposal, concluded at Basel on 10 December 1999, the original of which is deposited with the Secretary-General of the United Nations. For the Secretary-General, The Legal Counsel (Under-Secretary-General for Legal Affairs) Hans Corell United Nations, New York 3 March 2000 | Je certifié que le texte qui préceede est une copy according to Bale's Protocole of the responsabilité et l' indemnisation en cas de dommages resultant de mouvements transfrontières et de l' elimination de déchets dangereux, conclu à Bale le 10 décembre 1999, dont l' original se trouvé déposé auprès du Secretaire general of l' Organization des Nations Unies. Pour le Secretaire general, Le Conseiller juridique (Secretaire general adjoint aux affaires juridiques) Organisation des Nations Unies New York, le 3 mars 2000 " |
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., September 18, 2003
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister,
(FDO.) CAROLINA BOAT ISAKSON.
DECRETA:
ARTICLE 1o. Approve the "Basel Protocol on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal," concluded in Basel, the ten (10) December of a thousand nine hundred and ninety-nine (1999).
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Basel Protocol on liability and compensation for damages resulting from cross-border movements of (i) the Commission will be required to make a statement on the basis of the information provided by the European Commission and the Council of the European Union on the basis of the information provided by the European Commission. international regarding the same.
ARTICLE 3o. This law governs from the date of its publication.
Dada en Bogotá, D. C., a ...
Presented to the honorable Congress of the Republic by the Minister of Foreign Affairs and the Minister of Environment, Housing and Territorial Development.
CAROLINA BOAT ISAKSON,
Minister of Foreign Affairs;
SANDRA DEL ROSARIO SUAREZ PEREZ,
Minister of Environment, Housing and Territorial Development.
REASON EXPOSURE
Honorable Senators and Representatives
On behalf of the National Government and in compliance with the provisions of Articles 150 numeral 16 and 189 numeral 2 of the Constitution Policy of the Republic of Colombia, we present to the honorable Congress of the Republic the Draft Law through which the " Protocol of Basel on responsibility and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal ", concluded in Basel, Ten (10) December of a thousand nine hundred and ninety-nine (1999).
I. Background
The international community concerned about the situation that became evident in the 1980s in relation to the inadequate waste management and vulnerability of developing countries in the face of the massive arrival of waste shipments coming from the countries of the North to be buried or dispersed in their territory, initiated, under the auspices of the United Nations Environment Program, the negotiation of a legally binding instrument on management and environmentally sound disposal of hazardous waste. This process culminated in 1989 with the adoption by more than 158 countries of the "Basel Convention on the control of transboundary movements of hazardous wastes and their disposal".
Colombia approved the Convention by means of Law 253 of 1996; and it became part of it through the deposit, before the Secretariat of the United Nations, of the Instrument of Ratification, act that was fulfilled on 31 of December 1996. The Constitutional Court in Judgment C-377 of 22 August 1996 declared the exequability of the Basel Convention on the condition that the Government of Colombia will make a declaration or demonstration, in the sense that the article 81 of the Constitution prohibits the introduction into the national territory of nuclear waste and toxic waste. In compliance with the aforementioned ruling, the National Government, at the time of the ratification of the Convention, made the following statement:
" The Government of Colombia in accordance with Article 26, number 2 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Removal, done at Basel on 22 March 1989, DECLARES that for the effects of the application of this international instrument, Article 81 of the Political Constitution of the Republic prohibits the introduction into the national territory of nuclear waste and toxic waste. "
The main objectives of the Convention are:
To minimize transboundary movements of hazardous wastes and other wastes subject to the Convention.
Remove the waste as close as possible to your generating source.
Ensure strict control of hazardous waste movements across borders, as well as the prevention of their illegal trafficking.
Prohibit shipments of hazardous waste to countries that lack legal, administrative and technical capacity to handle and eliminate them in an environmentally sound manner.
Assist developing countries in the environmentally sound management of hazardous waste that they generate.
The implementation of the Convention will help to combat the illicit trafficking of dangerous substances that both environmental deterioration generates for the country, without leaving aside its ultimate goal that is to protect human health and the environment from the dangers of these wastes, under the premise that they should be disposed of in an environmentally sound manner in the country where they were generated, while also trying to reduce the amount of generation of the waste, and that is where the utmost importance of the same.
For its part, the Protocol on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal, the Basel Convention, was adopted on 10 December 1999 by the Fifth Session of the European Conference of the Parties after a negotiation process of more than ten years. The objective of this instrument, which requires fifty ratifications to enter into force, is to establish a global liability regime, as well as a mechanism to ensure prompt and adequate compensation for damages resulting from the movement. transboundary hazardous wastes and other wastes, including incidents involving illicit trafficking in accordance with the definition of the Convention. While the Basel Protocol establishes an objective liability regime as most existing instruments in this field, it also provides liability for liability in cases where the damage is caused by the failure to comply with the provisions of the Basel Protocol. the obligations of the convention.
II. Protocol text and its importance
The definition of the "damage" brought by Article 2o, literal (c) of the Protocol is considered to be very complete, and includes:
Loss of life or personal injury.
The loss or damage to the property.
The loss of income derived directly from an economic interest in any use of the environment, incurred as a result of environmental damage.
The cost of restoring the damaged environment, limited to the costs of measures that are currently being undertaken or to be undertaken.
And the costs of preventive measures.
The Protocol defines what constitutes "reset measures" of a damaged or destroyed environment. These are any reasonable measures aimed at evaluating, restoring, or restoring damaged or destroyed components of the environment1.
In relation to who is considered to be responsible for the eventual damage, the Protocol imposes an objective responsibility on a number of persons reflecting the complex nature of the multipart relationship of such a movement and the particularities of The provisions of the Basel Convention2. Therefore, responsibility is imposed in a different manner on the notifier, which has the waste, the exporter, the importer and the importer. The notifier of a transfrontier movement is responsible for the damage until the person who has the waste takes possession of the same. From there on, the one who has the waste takes responsibility.
The exporter, for his part, is responsible either when the State is the notifier or when no notification has taken place in terms of the provisions of the Convention. The importer is responsible for the waste referred to in Article 1 (1) (b) of the Convention which has been notified as dangerous by the State of importation in accordance with Article 3 of the Convention but not by the State of export.
Several exemptions have been applied in respect of the objective liability imposed pursuant to Article 4. These are applied when the damage is the result of an act of armed conflict, hostilities, civil war or insurrection; a natural phenomenon of exceptional, inevitable, unforeseeable and irresistible character; exclusively of the fulfillment of a mandatory provision of a public authority in the State where the damage has occurred; or exclusively of the intentional unlawful conduct of a third party.
In the case of objective liability, the responsibility of the notifier, exporter, importer and eliminator in the case of any incident is limited in accordance with the number of tons of shipments3. Persons responsible under the objective liability regime must establish and maintain during the period of the time limit of liability, insurance, bonds or other financial guarantees covering such liability. There are no financial limits to liability based on guilt.
In terms of liability based on culpability, Article 5o includes a provision whereby " any person shall be liable for damages caused by failure to comply with the provisions for the application of the Convention or for its acts or Voluntary, reckless or negligent omissions or those who have contributed to such non-compliance or such acts or omissions. ' The Protocol provides that when the available compensation does not cover the costs of damages, "additional and complementary measures may be taken to ensure prompt and appropriate compensation using existing mechanisms" (Article 15). Where compensation under the Protocol is inadequate, the financial mechanisms established under Article 14 of the Basel Convention should be used. The possibility for the meeting of the Parties to the Protocol to improve such existing mechanisms or to establish new ones to provide better services to their objectives is expressly provided for. Responsibility is also limited in time. Compensation claims must be established within five years from the date on which the claimant knew or could reasonably be aware of the damage; but in no case will measures be introduced after ten years from the date of the incident that caused the damage.
The jurisdiction over compensation measures falls to the courts of the Contracting Party in which the damage was sustained or where the incident occurred; or where the plaintiff has his or her usual resistance or main centre of commercial operations. In terms identical to those examined in the other instruments, mutual recognition and enforcement of court judgments in the territories of all Contracting Parties4is provided for in the Protocol.
The jurisdictional application of the Protocol is limited in several respects. As a general rule, the Protocol applies to damage due to an incident occurring during the transboundary movement of hazardous wastes and other wastes and their disposal, including illicit trafficking, from the point where the waste is loaded in the means of transport in an area under the national jurisdiction of an export state5. The application of the Protocol is regulated in accordance with the various operations specified in Annex 4 to the Convention.
However, the Protocol applies to damages suffered in an area under the national jurisdiction of a Contracting Party. However, it provides for the following exceptions which allow their application in areas beyond any national jurisdiction6. The exceptions are as follows:
a) By death or bodily injury (article 2.2.c.i);
(b) For material damage or damage, except property of the person responsible for the damage (article 2.2.c.ii);
c) For the cost of preventive measures, including any loss or damage caused by such measures (article 2.2.c.v), and
(d) the Protocol shall also apply to damage suffered in an area under national jurisdiction of a State of transit which is not a contracting party, provided that that State appears in Annex "A" which has acceded to a multilateral agreement or This is a regional policy which is in force for the cross-border movement of hazardous waste 3.3. (d).
III. Considerations
According to FAO reports7 there are half a million tons of toxic waste scattered around the world and in poor storage conditions, so its potential for environmental pollution and agricultural production is huge. In the case of Colombia, article 81 of the National Constitution prohibits the introduction of toxic waste, and in this sense the international instruments that are commented contribute to strengthening that prohibition.
In this sense, it can be stated that both the Basel Convention and its Protoc olo of liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal are the legal framework International regulations governing the movement of hazardous waste between states. The Protocol in particular responds to the question of how to deal with a situation in which damage occurs within the framework of the activities envisaged by the Convention. It is worth noting that it is currently one of the few, if not the only, precedent in the field of international environmental law.
Consequently, it is important to note that both the Convention and the Basel Protocol are framework instruments which leave a wide scope for the development of policies, standards and guidelines for each country's internal legislation. hazardous wastes.
Finally, while we are aware that the internal implementation of the mandates of the Protocol requires an important strengthening of the institutional capacity in both the judicial branch and the executive branch, we nevertheless consider that In view of the difficulty of applying internal regulations to a foreigner in the event of an accident during the transboundary movement of hazardous waste, the Protocol is a fundamental tool for achieving a fair, timely and equitable compensation for any damage that may occur in our territory.
For the above considerations, the National Government, through the Minister of Foreign Affairs and the Minister of Environment, Housing and Territorial Development, requests the honorable National Congress to approve theProtocol Basel on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal, concluded in Basel, ten (10) December of one thousand nine hundred and ninety-nine (1999).
Of the honorable Senators and Representatives,
CAROLINA BOAT ISAKSON,
Foreign Minister;
SANDRA DEL ROSARIO SUAREZ PEREZ,
Minister of Environment, Housing and Territorial Development.
ACT 424 OF 1998
(January 13)
By which we order the follow-up to the international agreements
signed by Colombia.
COLOMBIA CONGRESS
DECRETA:
ARTICLE 1o. The National Government through the Foreign Ministry will submit annually to the Senate and Senate Foreign Relations Committees, and within the first thirty days of the After the legislative period beginning every July 20, a detailed report on how the existing International Conventions signed by Colombia with other States are being complied with and developed.
ARTICLE 2o. Each dependency of the National Government charged with implementing the International Treaties of its competence and requiring reciprocity in them, will transfer the relevant information to the Ministry of Foreign Affairs and East, to the Commissions Seconds.
ARTICLE 3o. The full text of this law shall be incorporated as an annex to any and all International Conventions that the Ministry of Foreign Affairs presents to the Congress.
ARTICLE 4. This law governs from its enactment.
The President of the honorable Senate of the Republic.
AMILKAR ACOSTA MEDINA.
The Secretary General of the honorable Senate of the Republic,
PEDRO PUMAREJO VEGA.
The President of the honorable House of Representatives,
CARLOS SQUIRLA BALLESTEROS.
The Secretary General of the honorable House of Representatives,
DIEGO VIVAS TAFUR.
COLOMBIA-NATIONAL GOVERNMENT
Publish and execute.
Dada en Santa Fe de Bogota, D. C., on January 13, 1998.
ERNESTO SAMPER PIZANO
The Foreign Minister,
MARIA EMMA MEJIA VELEZ.
EXECUTIVE BRANCH OF PUBLIC POWER
PRESIDENCY OF THE REPUBLIC
Bogotá, D. C., September 18, 2003
Approved. Submit to the consideration of the honorable National Congress for the constitutional effects.
(Fdo.) ALVARO URIBE VELEZ
The Foreign Minister,
(FDO.) CAROLINA BOAT ISAKSON.
DECRETA:
ARTICLE 1o. Approve the "Basel Protocol on liability and compensation for damages resulting from the transboundary movements of hazardous wastes and their disposal," concluded in Basel, the ten (10) December of one thousand nine hundred and ninety-nine (1999).
ARTICLE 2o. In accordance with the provisions of Article 1 of Law 7ª of 1944, the " Basel Protocol on liability and compensation for damages resulting from cross-border movements of (i) the Commission will be required to make a statement on the basis of the information provided by the European Commission and the Council of the European Union on the basis of the information provided by the European Commission. international regarding the same.
ARTICLE 3o. This law governs from the date of its publication.
The President of the honorable Senate of the Republic,
LUIS HUMBERTO GOMEZ GALLO.
The Secretary General of the honorable Senate of the Republic,
EMILIO RAMON OTERO DAJUD.
The President of the honorable House of Representatives,
CORRALES JATTIN ZULEMA.
The Secretary General of the honorable House of Representatives,
ANGELINO LIZANO RIVERA.
COLOMBIA-NATIONAL GOVERNMENT
Communicate and comply.
Execute, upon revision of the Constitutional Court, in accordance with article 241-10 of the Political Constitution.
Dada in Bogotá, D. C., on February 17, 2005.
ALVARO URIBE VELEZ
The Foreign Minister,
CAROLINA BOAT ISAKSON.
The Minister of Environment, Housing and Territorial Development,
SANDRA SUAREZ PEREZ
