Basel: Illegal Traffic and the Institutions

In one line

Five defects make a movement illegal traffic, the person whose conduct caused it decides who must take the waste back and within what time, and the Convention runs through a Conference of the Parties, a Secretariat, and a duty on every party to legislate.

Illegal traffic, article 9(1)

Five limbs. Learn them as a list, because a question will give you a fact pattern and ask which limb it falls under.

Any transboundary movement of hazardous wastes or other wastes is deemed to be illegal traffic if it is:

• (a) without notification pursuant to the Convention to all States concerned;
• (b) without the consent pursuant to the Convention of a State concerned;
• (c) with consent obtained from States concerned through falsification, misrepresentation or fraud;
• (d) that does not conform in a material way with the documents; or
• (e) that results in deliberate disposal, for example dumping, in contravention of the Convention and of general principles of international law.

Note what limb (e) does. It reaches back beyond the paperwork to the act itself, and it invokes general principles of international law alongside the Convention. That is the limb the Khian Sea's alleged dumping at sea would engage.

Note what limb (d) does. A movement fully notified and fully consented to is still illegal traffic if the cargo materially differs from what the documents describe. This is the answer to the drum labelled fertiliser.

Who must take it back, article 9(2) to (4)

The Convention allocates the duty by whose conduct produced the illegality.

In the first case the parties concerned must not oppose, hinder or prevent the return. In the second they must cooperate as necessary in the sound disposal.

Compare the two time limits. Article 8, the lawful movement that fails, gives 90 days. Article 9, illegal traffic, gives 30 days. The Convention treats illegality as more urgent than failure, which is the right way round.