Responsibility and Liability in the Context of Transboundary Movements of Hazardous Wastes by Sea : Existing Rules and the 1999 Liability Protocol to the Basel Convention

The term “hazardous wastes” covers a wide range of disused products and production wastes generated not only in industrial sectors, but also in all areas of everyday life. Hazardous wastes are to a large extent shipped by sea to third countries for recycling or disposal. While the procedural requirements for such movements are laid out in the 1989 Basel Convention, explicit rules of responsibility and liability for resulting damages are neither provided by the Basel Convention nor by other international conventions. The Liability Protocol to the Basel Convention of 1999 has not yet entered into force. This book examines the existing rules of responsibility and liability applying to States and private persons and outlines the conditions under which liability may be incurred. Subsequently, the advantages and shortcomings of the 1999 Liability Protocol are analyzed. Although this Protocol faces substantial political headwind, from a legal perspective it includes principally useful and reasonable approaches and should therefore be ratified. 2. ''True Cases of Liability Sine Delicto''(a) Explicit Rules of State Liability; (b) Recognition as a General Principle of International Law?; (c) Implications of the Non-existence of a General Principle of State Liability; 3. The Relationship Between Both Concepts; III. The Importance of Civil Liability Conventions; B. The Contribution of the International Law Commission; I. State Responsibility; II. State Liability; C. State Responsibility in the Context of Transboundary Movements of Hazardous Wastes by Sea; I. Explicit Provisions of State Responsibility in International Treaty Law Preface; Contents; Abbreviations; 1 Introduction; A. The Factual Perspective: Transboundary Movements of Hazardous Wastes by Sea; B. The Legal Perspective: Existing Rules and the 1999 Liability Protocol to the Basel Convention; C. The Structure of This Book; 2 The International Trade in Hazardous Wastes and Its Economic Background; A. Hazardous Wastes: Properties and Economic Importance; I. Sources and Composition of Hazardous Wastes; II. Volumes of Generated Hazardous Wastes; III. Forms of Waste Treatment and Disposal; IV. The Commercial Value of Hazardous Wastes; V. Summary I. The Principle of State Responsibility for Internationally Wrongful ActsII. Is There a Need for Autonomous Rules on State Liability for Lawful but Injurious Activities?; 1. ''False Cases of Liability Sine Delicto''; (a) The General Approach; (aa) Obligations of Conduct and Obligations of Result; (bb) Distinction Between Legal Acts and Factual Activities; (cc) Implications for the Application of State Responsibility; (b) Further Enhancements of this Approach; (aa) Equation of Activities and Its Consequences; (bb) A Comprehensive Obligation to Prevent Damage; (c) Summary 1. The Basel Convention(a) Article 12; (b) Article 8; (c) Article 9; (d) Summary; 2. Other Conventions Relevant to the Trade in and Transport of Hazardous Wastes; 3. The Law of the Sea Convention (UNCLOS); 4. Other Conventions Relevant to the Protection of the Marine Environment; 5. Summary; II. The Customary Principle of State Responsibility; 1. Act of the State; (a) State Organs and Persons Empowered by the State; (b) Persons in Fact Acting for the State; (c) Conduct Ultra Vires; (d) Interstate Attribution; (e) Persons Solely Acting in Private Capacity; (f) Summary B. The Transboundary Movement of WastesI. Reasons for the Emergence of Hazardous Waste Movements; II. Quantities and Typical Patterns of Hazardous Wastes Movements; III. The Involvement of Waste Brokers and Waste Dealers; IV. Illegal Traffic and Shipments Off the Official Path; V. Summary; C. The Interests Involved; I. Private Parties; II. State Interests; III. Hazardous Waste Trade as ''Environmental Racism''?; IV. Summary; D. The Risk Potential of Hazardous Waste Movements; 3 The Present Legal Framework; A. The Legal Concept of International Responsibility Front Matter....Pages i-xxv Introduction....Pages 1-9 The International Trade in Hazardous Wastes and Its Economic Background....Pages 11-33 The Present Legal Framework....Pages 35-192 Attempting an Interim Conclusion: Preconditions for an Effective Legal Regime on Liability and Compensation....Pages 193-202 The 1999 Basel Protocol on Liability and Compensation....Pages 203-304 Concluding Summary....Pages 305-310 Back Matter....Pages 311-370