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Update on the enforcement and illegal traffic activities under the Basel Convention

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Author: Juliette Kohler

Author: Juliette Kohler

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  • Decade I : Control System Activities to set up a framework for controlling the transboundary movement of hazardous and other wastes Included establishing procedures for prior notification of competent authorities, putting in place a waste tracking system through the movement document Development of general criteria for ESM Decade 2: ESM More emphasis on developing technical guidelines on management of priority waste streams, Active promotion and use of cleaner technologies and production methods Prevention of illegal traffic Improving technical and institutional capacity Harmful and potentially fatal exposure to hazardous and other wastes occurs principally following breaches of the two pillars of the Convention (a) through the illicit transport and dumping of hazardous and other wastes; (b) through the improper management of hazardous and other wastes
  • According to article 4(3): « The Parties consider that illegal traffic in hazardous wastes or other wastes is criminal ». Article 9(5) of the Convention requires Parties to introduce appropriate national/ domestic legislation to prevent and punish illegal traffic Article 9(2) states that 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))
  • 4.1 General information about the BC/RC/SC : This information basically exists and would be of an introductory type, but it needs to be put in the same format as the other modules. The fundamental principles of each treaty would be presented in a synthetized manner. 4.2 The role of customs under the three conventions : This section will describe the importance of customs for each Convention and for the three conventions, as a way to increase their coordination and cooperation at the international/regional/national level (synergies decisions). To provide further insight, the section will explain the types of control measures and procedures developed under each convention, as well as their similarities and overlaps. In this regard, it will be essential to identify the chemicals that are common to the three conventions and to develop simplified charts/decision trees when presenting the different conventions’ control regimes. 4.3 Detection/screening/risk assessment (the trigger for customs to take action). Goal of the module is to assist customs to determine what to check and when to check. This may include issues like profiling, intelligence-led approaches, suspicious shipments, movement document, notification document (PIC), site monitoring, ad hoc or routine, placards and labeling, packaging, concealment methods or modus operandi of illegal shipments. 4.4 Identification/classification: Goal is to assist customs to determine if the shipment contains BC/RC/SC substances/objects. This module will include visual, scientific and legal aspects of identification: pictures of the substances/wastes covered, techniques for analysis and sampling, handling (safety) precautions, legal definition of wastes within a country, use of trade names, BC and HS codes (and their relationship), link between HS codes and the substances covered by SC, RC and HS codes (and their relationship), link between the covered substances/wastes and products containing the covered substances (with pictures), brief presentation of GHS as the international recognized labeling system for hazardous substances. This module will also provide information on the immediate steps that customs may need to take following identification/classification (notification to competent authorities/decontamination/seizure/storage). 4.5 Quarantine/Containment/Ship back procedure/repatriation/prosecution: Goal is to inform customs of the next steps, i.e. once a shipment has been deemed illegal. Cooperation among relevant institutions: Goal is to assist customs determine who does what under the BC/RC/SC regimes and who can assist with what type of assistance. This will include the role of enforcement (e.g. police and judiciary) and non enforcement entities (competent authorities), governmental and non governmental institutions, at the national, regional (e.g.: use of laboratory facilities in BCRCs) and international levels (WCO, Interpol, INECE, IMPEL TFS), the relationship with the private sector (port authorities, shipping industry, generators, clearing agents, exporters and disposers). It may also include a sample of a MoU between customs environmental agencies and other competent authorities.
  • Transcript

    • 1. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal Update on the enforcement and illegal traffic activities under the Basel Convention An integrated capacity building symposium of the enforcement chain: brainstorming symposium Paris, 9-10 June 2011
    • 2. Main Goal of the Convention To protect, by strict control, human health and the environment against the adverse effects resulting from the generation and management - including transboundary movements - of hazardous wastes and other wastes
    • 3.
      • Content
      • Enforcement of the Basel Convention: legal framework
      • Enforcement, illegal traffic and
      • COP-10
    • 4. Enforcement of the Basel Convention: Legal framework
    • 5.
      • The intertwined pillars
      • of the Basel Convention
      • The minimization of the generation of hazardous and other wastes
      • The requirement of environmentally sound management (ESM) of hazardous wastes and other wastes
      • The regulation of the transboundary movement of hazardous wastes and other wastes - the “PIC procedure”.
    • 6. Illegal Traffic in BC Wastes (1) Illegal traffic refers to any transboundary movement of BC wastes (Art. 9): (a) Without notification to all States concerned; (b) Without the consent 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; (e) That results in deliberate disposal (e.g. dumping) of BC wastes in contravention of the Convention and of general principles of law
    • 7. Illegal Traffic in BC Wastes (2)
      • Parties are required to consider illegal traffic as a crime under their legislation
      • Parties are also required to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, including measures/legislation to prevent and punish conduct in contravention of the Convention
      • (Art. 4.4 and 9.5)
    • 8.
      • In cases of TBM “deemed” to constitute illegal traffic as result of the conduct of the exporter or generator, the State of export shall ensure that the wastes in question are:
      • - Taken back by the exporter or the generator or the State of export; or
      • - Are otherwise disposed of in accordance with the provisions of the Convention (Art. 9.2)
      • Secretariat, upon request, to assist Parties in resolving potential cases of illegal traffic (Art. 16)
      Illegal Traffic in BC Wastes (3)
    • 9.
      • Enforcement, illegal traffic
      • and COP-10:
      • “ Prevention, minimization and
      • recovery of wastes”
      • Cartagena, Colombia,
      • 17-21 October 2011
    • 10.
      • The Strategic Framework 2012 - 2021
      • OEWG-7 (10-14 May 2010) agreed in principle to vision, guiding principles and strategic goals and objectives
      • Guiding principles include:
        • Ensuring that every Party has national legislation and regulation in place, as well as enforcement mechanisms, to control TBM, and prevent and combact illegal traffic
        • Respect each Party’s national legislation and regulation regarding the control of TBM
      • Strategic goals and objectives include:
        • Goal 1: Effective implementation of Parties’ obligation on TBM of hazardous wastes and other wastes
          • Objective 1.2: to prevent and combat illegal traffic in hazardous and other wastes
      • Means of implementation and indicators : TBD
    • 11. Strategui
      • Implementation and Compliance Committee
      • Proposed 2012-2013 pow: guidance on « take back »
      • Recommends that COP-10 establishes a partnership on preventing and combating illegal traffic (PPCIT)
        • to bring together and improve coordination among relevant entities with a specific mandate to deliver capacity building activities on preventing and combating illegal traffic, such as WCO, Interpol, UNEP, individual Parties, the Basel Convention Regional Centres, networks and the Secretariat,
        • with a focus on the development of tools and training materials, the organization of workshops, as well as information exchange
        • mandate to be given to the ICC to develop TORs
    • 12.
      • Instruction manual on the prosecution of illegal traffic of hazardous wastes or other wastes for the legal profession
      • COP-8 mandate, renewed by OEWG-7, draft to be submitted to COP-10
      • Nominations for the establishment of a group of experts received from more than 20 countries
      • Basis: draft outline prepared by SBC
      • Next steps (subject to COP-10 approval): training, if possible in cooperation with partners
    • 13.
      • Draft outline ( UNEP/CHW/OEWG/6/12)
        • Enforcement of the Basel Convention at the national level (legal systems)
        • What do judges and prosecutors need to know about the Basel Convention?
        • Illegal traffic of hazardous wastes and other wastes (definition of the crime, its constitutive elements)
        • Preparing to prosecute a suspected case of illegal traffic (competence, whom to prosecute, collection of evidence…)
        • Trial of a case of alleged illegal traffic of hazardous wastes or other wastes
        • Sentencing of illegal traffic
        • Keeping informed about illegal traffic
    • 14.
      • Progress report on other illegal traffic and enforcement-related activities (1)
      • Joint BC/RC/SC WCO e-learning tool for customs: 6 modules
        • General information about the BC RC and SC
        • The role of customs under the three conventions
        • Detection, screening, risk assessment (the trigger for customs to take action)
        • Identification and classification (assessing whether a shipment is deemed illegal)
        • Quarantine/Containment/Ship back procedure/repatriation/prosecution (what do do once a shipment is deemed illegal)
        • Cooperation among relevant institutions (at every step of the customs’ work)
    • 15.
      • Progress report on other illegal traffic and enforcement-related activities (2)
      • Training tool for police in cooperation with Interpol
      • Trainings of customs via GCI
      • Joint BC/RC/SC legal kit
      • Joint BC/RC/SC legal trainings
      • SBC enforcement projects
    • 16. Se SBC projects with an enforcement component
    • 17.
      • Three types of projects with enforcement component focused on TBM: Probo Koala, SIDS, e-waste
      • Focus on competent authorities, port authorities, customs, law makers.
      • Presentation of prosecutors draft manual during SIDS workshop (July 2011)
      • E-waste Africa programme (Benin, Nigeria, Ghana, Cote d’Ivoire, Liberia, Tunisia and Egypt): development of an enforcement manual with some information on prosecution
    • 18. THANK YOU! For further Information: SECRETARIAT OF THE BASEL CONVENTION International Environment House 15 Chemin des Anemones Chatelaine CH-1219 Geneva, Switzerland Website: www.basel.int E-mail: sbc@unep.org