Having taken into account the relevant provisions of Principle 13 of the 1992 Rio Declaration on Environment and Development, according to which States shall develop international and national legal instruments regarding liability and compensation for the victims of pollution and other environmental damage,
Being Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,
Aware of the risk of damage to human health, property and the environment caused by hazardous wastes and other wastes and the transboundary movement and disposal thereof,
Committed to Article 12 of the Convention, and emphasizing the need to set 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,
Convinced of the need to provide for third party liability and environmental liability in order to ensure that adequate and prompt compensation is available for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes,
1. The definitions of terms contained in the Convention apply to the Protocol, unless expressly provided otherwise in the Protocol.
(a) "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 within the meaning of Article 1 of
the Convention;
(ii) Loss of or damage to property other than
property held by the person liable in accordance with
the present Protocol;
(iii) Loss of income directly deriving from an
economic interest in any use of the environment,
incurred as a result of impairment of the environment,
taking into account savings and costs;
(iv) The costs of measures of reinstatement of the
impaired environment, limited to the costs of
measures actually taken or to be undertaken; and
(v) The costs of preventive measures, including
any loss or damage caused by such measures, to the
extent that the damage arises out of or results from
hazardous properties of the wastes involved in the
transboundary movement and disposal of hazardous
wastes and other wastes subject to the Convention;
(d) "Measures of reinstatement" means any reasonable
measures aiming to assess, reinstate or restore damaged or destroyed
components of the environment. Domestic law may indicate who will
be entitled to take such measures;
(e) "Preventive measures" means any reasonable
measures taken by any person in response to an incident, to prevent,
minimize, or mitigate loss or damage, or to effect environmental cleanup;
(h) "Incident" means any occurrence, or series of
occurrences having the same origin that causes damage or creates a
grave and imminent threat of causing damage;
(i) "Regional economic integration organization" means
an organization constituted by sovereign States to which its member
States have transferred competence in respect of matters governed by
the Protocol and which has been duly authorized, in accordance with its
internal procedures, to sign, ratify, accept, approve, formally confirm or
accede to it;
1. The Protocol shall apply to damage due to an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal, including illegal traffic, from the point where the wastes are loaded on the means of transport in an area underthe national jurisdiction of a State of export. Any Contracting Party may by way of notification to the Depositary exclude the application of the Protocol, in respect of all transboundary movements for which it is the State of export, for such incidents which occur in an area under its national jurisdiction, as regards damage in its area of national jurisdiction.The Secretariat shall inform all Contracting Parties of notifications received in accordance with this Article.
(a) In relation to movements destined for one of the operations specified in Annex IV to the Convention other than D13, D14, D15, R12 or R13, until the time at which the notification of completion of disposal pursuant to Article 6, paragraph 9, of the Convention has occurred, or, where such notification has not been made, completion of disposal has occurred; and
(b) In relation to movements destined for the operations specified in D13, D14, D15, R12 or R13 of Annex IV to the Convention, until completion of the subsequent disposal operation specified in D1 to D12 and R1 to R11 of Annex IV to the Convention.
3. (a) The Protocol shall apply only to damage suffered in
an area under the national jurisdiction of a Contracting Party arising
from an incident as referred to in paragraph 1;
(b) When the State of import, but not the State of export, is a Contracting Party, the Protocol shall apply only with respect to damage arising from an incident as referred to in paragraph 1 which takes place after the moment at which the disposer has taken possession of the hazardous wastes and other wastes. When the State of export, but not the State of import, is a Contracting Party, the Protocol shall apply only with respect to damage arising from an incident as referred to in paragraph 1 which takes place prior to the moment at which the disposer takes possession of the hazardous wastes and other wastes. When neither the State of export nor the State of import is a Contracting Party, the Protocol shall not apply;
(c) Notwithstanding subparagraph (a), the Protocol shall
also apply to the damages specified in Article 2, subparagraphs 2 (c) (i),
(ii) and (v), of the Protocol occurring in areas beyond any national
jurisdiction;
(d) Notwithstanding subparagraph (a), the Protocol shall,
in relation to rights under the Protocol, also apply to damages suffered
in an area under the national jurisdiction of a State of transit which is
not a Contracting Party provided that such State appears in Annex A
and has acceded to a multilateral or regional agreement concerning
transboundary movements of hazardous waste which is in force.
Subparagraph (b) will apply mutatis mutandis.
4. Notwithstanding paragraph 1, in case of re-importation under Article 8 or Article 9, subparagraph 2 (a), and Article 9, paragraph 4, of the Convention, the provisions of the Protocol shall apply until the hazardous wastes and other wastes reach the original State of export.
5. Nothing in the Protocol shall affect in any way the sovereignty
of States over their territorial seas and their jurisdiction and the right in
their respective exclusive economic zones and continental shelves in
accordance with international law.
(a) The Protocol shall not apply to damage that has arisen
from a transboundary movement of hazardous wastes and other wastes
that has commenced before the entry into force of the Protocol for the
Contracting Party concerned;
(b) The Protocol shall apply to damage resulting from an incident occurring during a transboundary movement of wastes falling under Article 1, subparagraph 1 (b), of the Convention only if those wastes have been notified in accordance with Article 3 of the Convention by the State of export or import, or both, and the damage arises in an area under the national jurisdiction of a State, including a State of transit, that has defined or considers those wastes as hazardous provided that the requirements of Article 3 of the Convention have been met. In this case strict liability shall be channelled in accordance with Article 4 of the Protocol.
7. (a) The Protocol shall not apply to damage due to an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal pursuant to a bilateral, multilateral or regional agreement or arrangement concluded and notified in accordance with Article 11 of the Convention if:
(i) The damage occurred in an area under the national jurisdiction of any of the Parties to the agreement or arrangement;
(ii) There exists a liability and compensation
regime, which is in force and is applicable to the
damage resulting from such a transboundary
movement or disposal provided it fully meets, or
exceeds the objective of the Protocol by providing a
high level of protection to persons who have suffered
damage;
(iii) The Party to the Article 11 agreement or arrangement in which the damage has occurred has previously notified the Depositary of the nonapplication of the Protocol to any damage occurring in an area under its national jurisdiction due to an incident resulting from movements or disposals referred to in this subparagraph; and
(iv) The Parties to the Article 11 agreement or
arrangement have not declared that the Protocol shall
be applicable;
(b) In order to promote transparency, a Contracting Party that has notified the Depositary of the non-application of the Protocol shall notify the Secretariat of the applicable liability and compensation regime referred to in subparagraph (a) (ii) and include a description of the regime. The Secretariat shall submit to the Meeting of the Parties, on a regular basis, summary reports on the notifications received;
(c) After a notification pursuant to subparagraph (a) (iii) is made, actions for compensation for damage to which subparagraph (a) (i) applies may not be made under the Protocol.
8. The exclusion set out in paragraph 7 of this Article shall neither affect any of the rights or obligations under the Protocol of a Contracting Party which is not party to the agreement or arrangement mentioned above, nor shall it affect rights of States of transit which are not Contracting Parties.
1. The person who notifies in accordance with Article 6 of the
Convention, shall be liable for damage until the disposer has taken
possession of the hazardous wastes and other wastes. Thereafter the
disposer shall be liable for damage. If the State of export is the notifier
or if no notification has taken place, the exporter shall be liable for
damage until the disposer has taken possession of the hazardous wastes
and other wastes. With respect to Article 3, subparagraph 6 (b), of the
Protocol, Article 6, paragraph 5, of the Convention shall apply mutatis
mutandis. Thereafter the disposer shall be liable for damage
2. Without prejudice to paragraph 1, with respect to wastes under
Article 1, subparagraph 1 (b), of the Convention that have been notified
as hazardous by the State of import in accordance with Article 3 of the
Convention but not by the State of export, the importer shall be liable
until the disposer has taken possession of the wastes, if the State of
import is the notifier or if no notification has taken place. Thereafter
the disposer shall be liable for damage.
3. Should the hazardous wastes and other wastes be re-imported
in accordance with Article 8 of the Convention, the person who notified
shall be liable for damage from the time the hazardous wastes leave the
disposal site, until the wastes are taken into possession by the exporter,
if applicable, or by the alternate disposer.
4. Should the hazardous wastes and other wastes be re-imported
under Article 9, subparagraph 2 (a), or Article 9, paragraph 4, of the
Convention, subject to Article 3 of the Protocol, the person who reimports
shall be held liable for damage until the wastes are taken into
possession by the exporter if applicable, or by the alternate disposer.
5. No liability in accordance with this Article shall attach to the
person referred to in paragraphs 1 and 2 of this Article, if that person
proves that the damage was:
(b) The result of a natural phenomenon of exceptional,
inevitable, unforeseeable and irresistible character;
(c) Wholly the result of compliance with a compulsory
measure of a public authority of the State where the damage occurred;
or
(d) Wholly the result of the wrongful intentional conduct of a third party, including the person who suffered the damage.
Without prejudice to Article 4, any person shall be liable for
damage caused or contributed to by his lack of compliance with the
provisions implementing the Convention or by his wrongful intentional,
reckless or negligent acts or omissions. This Article shall not affect the
domestic law of the Contracting Parties governing liability of servants
and agents.
1. Subject to any requirement of domestic law any person in
operational control of hazardous wastes and other wastes at the time of
an incident shall take all reasonable measures to mitigate damage
arising therefrom.
2. Notwithstanding any other provision in the Protocol, any
person in possession and/or control of hazardous wastes and other
wastes for the sole purpose of taking preventive measures, provided that
this person acted reasonably and in accordance with any domestic law
regarding preventive measures, is not thereby subject to liability under
the Protocol.
1. Where damage is caused by wastes covered by the Protocol and wastes not covered by the Protocol, a person otherwise liable shall only be liable according to the Protocol in proportion to the contribution made by the wastes covered by the Protocol to the damage.
2. The proportion of the contribution to the damage of the wastes
referred to in paragraph 1 shall be determined with regard to the volume
and properties of the wastes involved, and the type of damage
occurring.
1. Any person liable under the Protocol shall be entitled to a right
of recourse in accordance with the rules of procedure of the competent
court:
1. The Contracting Parties shall adopt the legislative, regulatory
and administrative measures necessary to implement the Protocol.
2. In order to promote transparency, Contracting Parties shall
inform the Secretariat of measures to implement the Protocol, including
any limits of liability established pursuant to paragraph 1 of Annex B.
Whenever the provisions of the Protocol and the provisions of
a bilateral, multilateral or regional agreement apply to liability and
compensation for damage caused by an incident arising during the same
portion of a transboundary movement, the Protocol shall not apply
provided the other agreement is in force for the Party or Parties
concerned and had been opened for signature when the Protocol was
opened for signature, even if the agreement was amended afterwards.
1. Claims for compensation under the Protocol shall not be
admissible unless they are brought within ten years from the date of the
incident.
2. Claims for compensation under the Protocol shall not be
admissible unless they are brought within five years from the date the
claimant knew or ought reasonably to have known of the damage
provided that the time limits established pursuant to paragraph 1 of this
Article are not exceeded.
3. Where the incident consists of a series of occurrences having
the same origin, time limits established pursuant to this Article shall run
from the date of the last of such occurrences. Where the incident
consists of a continuous occurrence, such time limits shall run from the
end of that continuous occurrence.
1. The persons liable under Article 4 shall establish and maintain during the period of the time limit of liability, insurance, bonds or other financial guarantees covering their liability under Article 4 of the Protocol for amounts not less than the minimum limits specified in paragraph 2 of Annex B. States may fulfil their obligation under this paragraph by a declaration of self-insurance. Nothing in this paragraph shall prevent the use of deductibles or co-payments as between the insurer and the insured, but the failure of the insured to pay any deductible or co-payment shall not be a defence against the person who has suffered the damage.
2. With regard to the liability of the notifier, or exporter under
Article 4, paragraph 1, or of the importer under Article 4, paragraph 2,
insurance, bonds or other financial guarantees referred to in paragraph 1
of this Article shall only be drawn upon in order to provide
compensation for damage covered by Article 2 of the Protocol.
3. A document reflecting the coverage of the liability of the notifier or exporter under Article 4, paragraph 1, or of the importer under Article 4, paragraph 2, of the Protocol shall accompany the notification referred to in Article 6 of the Convention. Proof of coverage of the liability of the disposer shall be delivered to the competent authorities of the State of import.
4. Any claim under the Protocol may be asserted directly against
any person providing insurance, bonds or other financial guarantees.
The insurer or the person providing the financial guarantee shall have
the right to require the person liable under Article 4 to be joined in the
proceedings. Insurers and persons providing financial guarantees may
invoke the defences which the person liable under Article 4 would be
entitled to invoke.
5. Notwithstanding paragraph 4, a Contracting Party shall, by
notification to the Depositary at the time of signature, ratification, or
approval of, or accession to the Protocol, indicate if it does not provide
for a right to bring a direct action pursuant to paragraph 4. The
Secretariat shall maintain a record of the Contracting Parties who have
given notification pursuant to this paragraph.
1. Where compensation under the Protocol does not cover the
costs of damage, additional and supplementary measures aimed at
ensuring adequate and prompt compensation may be taken using
existing mechanisms.
1. Claims for compensation under the Protocol may be brought in
the courts of a Contracting Party only where either:
1. Where related actions are brought in the courts of different
Parties, any court other than the court first seized may, while the actions
are pending at first instance, stay its proceedings.
2. A court may, on the application 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.
1. Subject to paragraph 2, nothing in the Protocol shall be
construed as limiting or derogating from any rights of persons who have
suffered damage, or as limiting the protection or reinstatement of the
environment which may be provided under domestic law.
1. Any judgement of a court having jurisdiction in accordance with Article 17 of the Protocol, which is enforceable in the State of origin and is no longer subject to ordinary forms of review, shall be recognized in any Contracting Party as soon as the formalities required in that Party have been completed, except:
(c) Where the judgement is irreconcilable with an earlier
judgement validly pronounced in another Contracting Party with regard
to the same cause of action and the same parties; or
(d) Where the judgement is contrary to the public policy of the Contracting Party in which its recognition is sought.
2. A judgement recognized under paragraph 1 of this Article shall
be enforceable in each Contracting Party as soon as the formalities
required in that Party have been completed. The formalities shall not
permit the merits of the case to be re-opened.
1. A Meeting of the Parties is hereby established. The Secretariat
shall convene the first Meeting of the Parties in conjunction with the
first meeting of the Conference of the Parties to the Convention after
entry into force of the Protocol.
2. Subsequent ordinary Meetings of the Parties shall be held in
conjunction with meetings of the Conference of the Parties to the
Convention unless the Meeting of the Parties decides otherwise.
Extraordinary Meetings of the Parties shall be held at such other times
as may be deemed necessary by a Meeting of the Parties, or at the
written request of any Contracting Party, provided that within six
months of such a request being communicated to them by the
Secretariat,
3. The Contracting Parties, at their first meeting, shall adopt by
consensus rules of procedure for their meetings as well as financial
rules.
(b) To provide for reporting and establish guidelines and
procedures for such reporting where necessary;
(c) To consider and adopt, where necessary, proposals for
amendment of the Protocol or any annexes and for any new annexes;
and
(b) Prepare reports, including financial data, on its
activities carried out in implementation of its functions under the
Protocol and present them to the Meeting of the Parties;
(c) Ensure the necessary coordination with relevant
international bodies, and in particular enter into such administrative and
contractual arrangements as may be required for the effective discharge
of its functions;
(d) Compile information concerning the national laws
and administrative provisions of Contracting Parties implementing the
Protocol;
(e) Cooperate with Contracting Parties and with relevant
and competent international organisations and agencies in the provision
of experts and equipment for the purpose of rapid assistance to States in
the event of an emergency situation;
(f) Encourage non-Parties to attend the Meetings of the
Parties as observers and to act in accordance with the provisions of the
Protocol; and
(g) Perform such other functions for the achievement of
the purposes of this Protocol as may be assigned to it by the Meetings of
the Parties.
The Protocol shall be open for signature by States and by regional economic integration organizations Parties to the Basel Convention in Berne at the Federal Department of Foreign Affairs of Switzerland from 6 to 17 March 2000 and at United Nations Headquarters in New York from 1 April to 10 December 2000.
1. The Protocol shall be subject to ratification, acceptance or
approval by States and to formal confirmation or approval by regional
economic integration organizations. Instruments of ratification,
acceptance, formal confirmation, or approval shall be deposited with the
Depositary
2. Any organization referred to in paragraph 1 of this Article
which becomes a Contracting Party without any of its member States
being a Contracting Party shall be bound by all the obligations under the
Protocol. In the case of such organizations, one or more of whose
member States is a Contracting Party, the organization and its member
States shall decide on their respective responsibilities for the
performance of their obligations under the Protocol. In such cases, the
organization and the member States sha
3. In their instruments of formal confirmation or approval, the
organizations referred to in paragraph 1 of this Article shall declare the
extent of their competence with respect to the matters governed by the
Protocol. These organizations shall also inform the Depositary, who
will inform the Contracting Parties, of any substantial modification in
the extent of their competence.
1. The Protocol shall be open for accession by any States and by
any regional economic integration organization Party to the Basel
Convention which has not signed the Protocol. The instruments of
accession shall be deposited with the Depositary.
2. In their instruments of accession, the organizations referred to
in paragraph 1 of this Article shall declare the extent of their
competence with respect to the matters governed by the Protocol.
These organizations shall also inform the Depositary of any substantial
modification in the extent of their competence.
1. The Protocol shall enter into force on the ninetieth day after
the date of deposit of the twentieth instrument of ratification,
acceptance, formal confirmation, approval or accession.
2. For each State or regional economic integration organization
which ratifies, accepts, approves or formally confirms the Protocol or
accedes thereto after the date of the deposit of the twentieth instrument
of ratification, acceptance, approval, formal confirmation or accession,
it shall enter into force on the ninetieth day after the date of deposit by
such State or regional economic integration organization of its
instrument of ratification, acceptance, approval, formal confirmation or
accession.
1. No reservation or exception may be made to the Protocol. For
the purposes of the Protocol, notifications according to Article 3,
paragraph 1, Article 3, paragraph 6, or Article 14, paragraph 5, shall not
be regarded as reservations or exceptions.
2. Paragraph 1 of this Article does not preclude a State or a
regional economic integration organization, when signing, ratifying,
accepting, approving, formally confirming or acceding to the Protocol,
from making declarations or statements, however phrased or named,
with a view, inter alia, to the harmonization of its laws and regulations
with the provisions of the Protocol, provided that such declarations or
statements do not purport to exclude or to modify the legal effects of the
provisions of the Protocol in their application to that State or that
organization.
1. At any time after three years from the date on which the
Protocol has entered into force for a Contracting Party, that Contracting
Party may withdraw from the Protocol by giving written notification to
the Depositary.
List of States of Transit as referred to in Article 3, subparagraph 3 (d)
1. Antigua and Barbuda
2. Bahamas
3. Bahrain
4. Barbados
5. Cape Verde
6. Comoros
7. Cook Islands
8. Cuba
9. Cyprus
10. Dominica
11. Dominican Republic
12. Fiji
13. Grenada
14. Haiti
15. Jamaica
16. Kiribati
17. Maldives
18. Malta
19. Marshall Islands
20. Mauritius
21. Micronesia (Federated States of)
22 Nauru
23. Netherlands, on behalf of Aruba, and the Netherlands Antilles
24. New Zealand, on behalf of Tokelau
25. Niue
26. Palau
27. Papua New Guinea
28. Samoa
29. Sao Tome and Principe
30. Seychelles
31. Singapore
32. Solomon Islands
33. St. Lucia
34. St. Kitts and Nevis
35. St. Vincent and the Grenadines
36. Tonga
37. Trinidad and Tobago
38. Tuvalu
39. Vanuatu
1. Financial limits for the liability under Article 4 of the Protocol
shall be determined by domestic law.
(iv) 6 million units of account for shipments
exceeding 50 tonnes, up to and including to
1,000 tonnes;
(v) 10 million units of account for shipments
exceeding 1,000 tonnes, up to and including
10,000 tonnes;
(vi) Plus an additional 1,000 units of account for
each additional tonne up to a maximum of 30
million units of account;
(b) For the disposer, for any one incident, be not less than
2 million units of account for any one incident.
3. The amounts referred to in paragraph 2 shall be reviewed by
the Contracting Parties on a regular basis 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 the wastes.