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Workshop on Illegal Traffic Overview of the Basel Convention and its Procedures

Workshop on Illegal Traffic Overview of the Basel Convention and its Procedures Laura Thompson Legal Expert Basel Convention Secretariat Bratislava, 3 to 5 October 2006. The Basel Convention at a glance. Adopted on 22 March 1989 Entered into force on 5 May 1992 168 Parties

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Workshop on Illegal Traffic Overview of the Basel Convention and its Procedures

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  1. Workshop on Illegal Traffic Overview of the Basel Convention and its Procedures Laura Thompson Legal Expert Basel Convention Secretariat Bratislava, 3 to 5 October 2006

  2. The Basel Convention at a glance • Adopted on 22 March 1989 • Entered into force on 5 May 1992 • 168 Parties • The goal of the Convention is “to protect, by strict control, human health and the environment against the adverse effects which may result from the generation and management of hazardous wastes and other wastes”

  3. Institutional Structure of the Convention International Level National Level Conference of the Parties (Governing Body) Directions Recommendations Directions Subsidiary Bodies • Open-ended Working Group • Expanded Bureau • Compliance Committee Secretariat Exchange of Information Competent Authority Focal Point Enforcement Officers

  4. Control System Established by the Convention The Basel Convention establishes a regulatory system for the monitoring and control of the transboundary movement and disposal of hazardous and other wastes, aiming at the reduction of the transboundary movement of such wastes and at the reduction of the quantity of wastes to a minimum A Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party, unless an agreement is concluded which establishes standards which are no less environmentally sound than those provided under the Convention

  5. When Does a Commodity Become a Waste? • Wastes are those substances or objects disposed of, intended to be disposed of, or required to be disposed of under provisions of national law. • Because the Convention covers wastes being transported for resources recovery, recycling, reclamation, direct re-use or alternative uses, constituents of such wastes may cease to be wastes and become products after completion of the disposal process.

  6. Hazardous Wastes Controlled by the Basel Convention • “Hazardous wastes” and “other wastes” are covered by the Convention. • “Hazardous wastes” are those wastes listed in Annexes I, VII and IX, which exhibit one of the hazardous characteristics listed in Annex III of the Conventions. • “Other wastes” are those wastes listed in Annex II • Examples include: obsolete stocks of pesticides, biomedical/healthcare wastes, used oils, used lead acid batteries, POPs wastes, electronic waste (“e-waste”). • Wastes considered hazardous under the national legislation of a Party, as notified to the Secretariat under Article 3. (http://www.basel.int/natdef/frsetmain.php)

  7. Annexes I and II • Wastes listed in Annexes I and II of the Convention are ascribed Y codes, identifying waste streams or constituents of wastes that are considered hazardous. • Hazardous characteristics are ascribed H codes. Such characteristics include, for example, explosive, flammable, oxidising, poisonous and corrosive characteristics. • Annex VIII and IX provide further clarification of the wastes covered by Annex I. • The Exporter/Competent Authority of the State of Export will ascribe the Y code. The Y code applied will be based upon the Exporter’s / Competent Authority’s knowledge of the origin and processes from which the waste was generated. • It is not uncommon to ascribe more than one Y number to a waste. For example, Y2 Wastes from the production and preparation of pharmaceutical products, could easily contain Y3, Y4 and Y42 wastes.

  8. Y Codes and HS Codes (1) • A significant number of hazardous wastes listed in the Convention can already be recognised in the World Customs Organisation’s Harmonised Commodity Description and Coding System (HS) and therefore can be ascribed HS Codes. For example, • HS Code 2710.91 – Waste oils containing polychlorinated biphenyls (PCBs), polychlorinated terphenyls (PCTs) or polybrominated biphenyls (PBBs). • Basel Code Y10: Waste substances and articles containing or contaminated with polychlorinated biphenyls (PCBs) and/or polychlorinated terphenyls (PCTs) and/or polybrominated biphenyls (PBBs); Y9 Waste oils/water, hydrocarbons/water mixtures, emulsions.

  9. Y Codes and HS Codes (2) • BUT some Basel Convention wastes are not identified in detail in HS • Decision VII/38 requested the Secretariat to strengthen cooperation and synergies on the identification of wastes in the World Customs Organisation’s Harmonised Commodity Description and Coding System, with the secretariat, the Harmonised System Committee and Subcommittee and the Scientific Sub-Committee of the World Customs Organisation.

  10. Basel Rules From Start to FinishDefinitions to Be Acquainted With Competent Authority Focal Point Country of Export Country of Import Country of Transit Generator Disposer

  11. Basel Rules From Start to Finish Stage 1: Notification Generator Disposer 1. Conclude a contract specifying ESM 2. Inform of proposed movement 3(A). Refuse to allow export 3(B). Send Notification Country of Export Country of Import 3(B). Send Notification Country of Transit international border international border

  12. Basel Rules From Start to Finish Stage 2: Consent and Issuance of Movement Document Generator Disposer 6. If consent and proof of contract then issue Movement Document 4. Consent / Deny Movement (written form) Country of Export Country of Import 5. Confirm existence of contract specifying ESM 4. Consent / Deny Movement (written form) Country of Transit international border international border

  13. Basel Rules From Start to Finish Stage 3: Transboundary Movement of Hazardous Wastes Generator Disposer 7. 7. Send signed copy of Movement Document confirming receipt of shipment Country of Export Country of Import Country of Transit international border international border Transboundary movement of hazardous waste, which is always accompanied by a Movement Document

  14. Basel Rules From Start to Finish Stage 4: Confirmation of Disposal Generator Disposer 8. 8. Upon completion, send confirmation that disposal has taken place. 10. May wish to follow up in order to confirm completion Country of Export Country of Import 9. If no confirmation has been received, advise accordingly. Country of Transit international border international border

  15. Movement Document (1) The transboundary movement shall be accompanied by a movement document from the point at which a transboundary movement commences to the point of disposal. (Art. 4(7)(c)) Each person who takes charge of a transboundary movement of hazardous wastes should sign the movement document either upon delivery or receipt of the wastes in question. (Art. 6(9)) Inspections of the movement documents by customs officers of the States of Export, Import and Transit are integral to ensuring that the relevant prior informed consent has been secured.

  16. Movement Document (2)

  17. Movement Document (3) Upon inspection of the movement document, if doubt arises as to the validity of the information contained in the movement document, the customs officer is advised to take precautionary measures, by, for example, contacting the relevant competent authorities for the purposes of verifying the authenticity of the information on the movement document.

  18. National Reporting The Parties shall transmit to the COP before the end of each calendar year a report with the following, inter alia: • Designated competent authorities and focal points • Information regarding transboundary movements of hazardous wastes or other wastes in which they have been involved, including: • The amount of wastes exported, their category, characteristics, destination, any transit country and disposal method • The amount of wastes imported, their category, characteristics, origin, and disposal methods. • Available qualified statistics on effects on human health and the environment of generation, transportation and disposal • Information on bilateral, multilateral and regional agreements and arrangements concluded pursuant to Article 11 • Information on accidents occurring during the transboundary movement and disposal

  19. Packaging • Under Article 4(7)(b), Parties shall require that hazardous wastes and other wastes are packaged, labelled, and transported in conformity with generally accepted and recognised international rules in the field of packaging, labelling, and transport, and that due account is taken of relevant internationally recognised practices. • Customs should verify that the placards and labels correspond to the substances being shipped. • UNECE Committee of Exports on the Transport of Dangerous Goods and on the Globally Harmonised System of Classification and Labelling of Chemicals: http://www.unece.org/trans/danger/danger.htm

  20. Duty to Re-import • Article 8 provides that when a transboundary movement of hazardous wastes, to which consent has been given, cannot be completed in accordance with the terms of the contract, the State of export shall ensure the wastes are taken back into the State of export. • Accordingly, the State of export and any Party of transit shall not oppose, hinder or prevent the return of those wastes to the State of export. • Customs should be mindful of the need to facilitate the re-import of such wastes in these situations.

  21. Combating Illegal Traffic (1) Illegal traffic refers to any transboundary movement of hazardous wastes (Art. 9): Without notification to all States concerned Without the consent of a State concerned With consent obtained from States concerned through falsification, misrepresentation, or fraud That does not conform in a material way with the documents That results in deliberate disposal (e.g. dumping) of hazardous wastes in contravention of the Convention and of general principles of law

  22. Combating Illegal Traffic (2) Sanctions for Illegal Trafficking • Each Party is required to introduce appropriate national/domestic legislation to prevent and punish illegal traffic (Art. 9(5)) • In the case of illegal traffic as the result of conduct on the part of the exporter or generator, the State of Export shall ensure that the wastes in question are: a) taken back by the exporter or the generator or, if necessary, by itself into the State of export, or, if impracticable (Art. 9(2)(a)) b) are otherwise disposed of in accordance with the provisions of the Convention (Art. 9(2)(b))

  23. The Ban Amendment to the Basel Convention

  24. The Ban Amendment to the Basel Convention • Decision III/1 proposed the a new Article 4 A: Each Party listed in Annex VII (Parties and other States which are members of OECD, EC and Liechtenstein) shall prohibit all transboundary movements of hazardous wastes which are destined for final disposal operations to States not listed in Annex VII • Adoption in 1996 • 62 Parties have ratified • Not yet in force

  25. Protocol on Liability and Compensation • To provide for a comprehensive regime for liability and adequate and prompt compensation for damage resulting from the transboundary movement of hazardous wastes and other wastes and their disposal including illegal traffic in those wastes (Art.1) • Adopted in 1999 • 13 Signatories • 7 State Parties • Not yet in force

  26. For further information, please consult the Secretariat‘s website: www.basel.int

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