The Basel Liability Protocol 1999

In one line

Adopted in December 1999 under article 12 of the Convention, it channels strict liability to the notifier until the disposer takes possession and to the disposer thereafter, adds unlimited fault liability, requires insurance with a direct action, and has never entered into force.

Objective and scope

Article 1. The objective is a comprehensive regime for liability and for adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes and their disposal, including illegal traffic.

Article 3(1). The Protocol applies to damage due to an incident occurring during a transboundary movement and disposal, including illegal traffic, from the point where the wastes are loaded on the means of transport in an area under the national jurisdiction of a State of export. A contracting party may notify the Depositary that it excludes the Protocol for movements for which it is the State of export, as regards incidents and damage wholly within its own jurisdiction. A purely domestic leg is therefore excludable, and only by the State of export.

Article 3(2), when cover ends. For movements destined for an Annex IV operation other than D13, D14, D15, R12 or R13, cover runs until the notification of completion of disposal under article 6(9) of the Convention, or if no notification was made, until completion of disposal. For movements destined for those five interim operations, storage, blending, repackaging and exchange, cover runs until completion of the subsequent final operation in D1 to D12 or R1 to R11.

That second limb is the one to notice. Waste that arrives at a transfer station is not out of the regime. Liability follows it to the operation that actually deals with it.

Article 3(3), where the damage must be suffered. In principle, in an area under the national jurisdiction of a contracting party. Three refinements follow.

• Where only the State of import is a party, the Protocol applies only to damage from an incident after the disposer has taken possession.
• Where only the State of export is a party, only to damage from an incident before the disposer takes possession.
• Where neither is a party, the Protocol does not apply at all.
• Loss of life or personal injury, property damage and the costs of preventive measures are covered even in areas beyond any national jurisdiction, which is how a spill on the high seas is reached.
• Damage in a transit State that is not a party is covered where that State appears in Annex A and has acceded to a multilateral or regional agreement on movements of hazardous waste that is in force.

Article 3(4). In cases of re-importation under article 8 or article 9(2)(a) or 9(4) of the Convention, the Protocol continues to apply until the wastes reach the State of export.