chemical conventions handbook

With respect to transport and transboundary movement of hazardous wastes Contracting Parties are obliged to ensure that;

Article 5. Competent Authorities, Focal Point and Dumpwatch

Article 5 clarifies the role of each member country in establishing a Competent Authority (most likely an environment agency) and a person within the Competent Authority who can fulfill the role of a Focal Point for receiving and distributing documentation related to the obligations of the Convention. Given the scarce resources in countries with economies in transition it is not deemed necessary to establish a new department to carry out these obligations but it is preferable that they are managed within existing institutions or agencies.

Parties are also obliged to nominate a national agency in the role of Dumpwatch.

The Competent Authority is required to receive notification if waste is to transit through its jurisdiction (Art 5.1)

The Competent Authority of a waste exporting country is to notify other states and Parties (or to cause the waste generator to do so) of the export proposal and the Competent Authority of a waste importing country must notify all affected Parties of its decision to allow or reject the import.

Article 6. Transboundary Movement and Notification Procedures

Article 6 provides the notification procedures of the Convention as they apply to the Parties. It describes how member countries intending to export hazardous waste have to notify all the countries that may be affected by the waste shipment. However, the Competent Authority can get the producer or the generator of the waste (this could be a private company) to notify the affected countries in writing. The notification needs to include specific information listed in Annex IV A and should be written in a language acceptable to the importing country. Only one notification per country is required (Art 6.1).

The country importing the waste must immediately issue an acknowledgement of the notification (to the exporter) and then has sixty days to request further information, to consider whether the import should go ahead (with or without conditions applied) or be rejected and must inform the exporter of its decision before the 60 days expire (Art 6.4).

The State of export cannot allow the waste to leave its country until it receives written approval for the waste import and written confirmation of a contract between the exporter and the waste disposer specifying environmentally sound disposal. Both of these documents must be received from the waste importing state before the waste can be moved across national boundaries by the exporter (Art 6.3).

In the case that the waste is only defined as hazardous by the exporting State;

If this information is not received by the State of export then the Competent Authority (of the State of export) must inform the State of import. (Art 6.8)

In the case that the waste is only defined as hazardous by the importing State;

In the case that the waste is only defined as hazardous by the transit State;

Note: The Bamako Convention has strict requirements of notification for each and every shipment of waste even if the waste is always of the same characteristics, from the same exporter, through the same routes of transit and so on. Other Conventions may allow exemptions for regular shipments and a single notification. This is not the case with for Parties to Bamako Convention.

The State of export must use a shipment specific notification for each and every shipment of waste movements to all transit and importing Parties and each of these notifications must include the required specifications detailed in Annex IV A of this Convention (Art 6.6).

Each Party to the Convention must also nominate a small, limited number of points of entry (i.e. ports, border crossings) to their country for hazardous waste. These are to be the only points at which hazardous waste is permitted to move across national boundaries. The Secretariat of the Convention must be notified of these points and this information will be distributed to all Contracting Parties (Art 6.7).

Each person who takes charge of a transboundary movement of hazardous waste must sign the movement document upon delivery or receipt of the wastes and Such persons shall also require that the disposer of the waste inform the exporter and the Competent Authority of the state of Export both when the waste has been received and when it has been disposed of as specificied in the contract (Art 6.8).

The burden of providing insurance for the movement of hazardous waste shall be provided by the private exporter or importer as required by any State of import or transit who is Party to the Convention (Art 6.

Article 7. Transboundary Movement from a Party through States which are not Parties

If a State is not a Party to this Convention and is to become a State of transit for a hazardous waste shipment then it must follow the notification procedures in Art 6.2 and Art 6.4 of the Convention. That is to say the State of transit shall promptly acknowledge to the notifier receipt of the notification. It may subsequently respond to the notifier in writing, within 60 days, consenting to the hazardous waste movement with or without conditions, denying permission for the movement, or requesting additional information.

Unless the non-Party State approves the transboundary movement, then the export state cannot allow the movement to proceed.

Article 8. Duty to Re-import

Article 8 describes how the exporting country must establish measures to ensure that if a waste shipment cannot be completed with the appropriate approvals, documentation and insurance, then the wastes are returned to the exporting country. A transit country or import country must not hinder the return of these wastes. While recognising the need to return wastes if the procedures fail, an exporting member country need not re-import the waste if it can find an appropriate alternative but this new disposal needs to take place within 90 days.

Article 9. Illegal Traffic

Article 9 is concerned with identifying illegal waste and what to do about it and who must take specific actions. The Bamako Convention has strong sanctions against illegal waste movements including the development of national legislation that renders illegal waste movements a criminal rather than civil offence. Hazardous wastes shipments are considered illegal in the following circumstances (Art 9.1):

Parties to the Convention must develop national legislation that provides for criminal penalties on all persons who have planned, carried out and assisted such illegal imports. Penalties must be sufficiently high to punish and deter such activities (Art 9.2).

If the illegal conduct is by the exporter or generator of the waste, then the State of export shall ensure that those parties retrieve the waste within 30 days of becoming aware of the matter. If those parties do not comply the State of export must retrieve the waste. No affected States shall hinder the retrieval of the waste and legal actions must be taken against the contravenor(s) (Art 9.3).

If the illegal conduct is by the importer or disposer of the waste the State of import shall ensure that the wastes in question are returned to the exporter by the importer and that legal actions must be taken against the contravenor(s) (Art 9.4)

Article 10. Intra-African Co-operation

Article 10 focuses on the cooperation expected between African nations who are Party to the Convention and other relevant African organisations on information sharing, technology transfer, cleaner production initiatives to improve and achieve environmentally sound management of hazardous wastes in Africa (Art 10.1).

These activities include cooperation on; " bilateral and multilateral Information sharing to promote clean production methods and harmonization of technical standards and practices. " Monitoring programmes to investigate the impacts of hazardous waste on human health and the environment. " Development and implementation of new clean production technologies and practices and Improvement of existing technologies that minimizes the generation of hazardous wastes. " Studying the social, environmental and economic benefits of these new and improved technologies. " Environmentally sound technology and management systems transfer between countries to reduce generation of hazardous waste and to better manage that waste which is still generated. " Developing technical capacity among Parties especially those who require technical assistance in the field. " exchange and dissemination of information on the movement of hazardous wastes in conformity with Article 13 of this Convention (Art 10.2)

Article 11. International Co-operation Bilateral, Multilateral and Regional Agreements

Article 11 covers the other agreements or arrangements countries may enter into. Member countries can enter into agreements with non-Convention member countries for the shipment of hazardous wastes, as long as they are carried out in an environmentally sound manner

Any such arrangements shall stipulate provisions which are no less environmentally sound than those provided for by this Convention (Art 11.1).

The Secretariat of the Bamako Convention must also be informed of any bilateral, multilateral, or regional agreements entered into by Parties to the Convention as well as those entered into prior to this convention coming into force for them if they relate to the transboundary movement of hazardous waste. The Bamako Convention will have no effect on other agreements on the transboundary movement of hazardous waste within Africa provided that such movements are environmentally sound to the level required in this Convention (Art 11.2).

Each Contracting Party shall prohibit vessels flying flag or aircraft registered in its territory from conducting activities contrary to this Convention wherever they operate (Art 11.3).

The clause in which Parties shall also promote South -South cooperation in the implementation of this treaty (Art 11.4) refers to a preference for developing countries and those in economic transition to work together to improve economic, social and environmental standards through environmentally sound management of hazardous wastes.

The Bamako Convention also encourages African Nations to cooperate with international organizations (e.g. environmental and social justice organizations) in developing global public awareness of the need for environmentally sound management of hazardous waste and new technologies that are cleaner or non-polluting (Art 11.5).

Article 12. Liabilities and Compensation

The Conference of Parties are required to establish a working group to develop protocols on of liabilities and compensation for damage resulting from the transboundary movement of hazardous wastes.

Article 13. Transmission of Information

Article 13 describes the protocols for information sharing between parties to the Convention on issues such as accidents, administrative changes and a range of statistical data on waste generation, movements and Convention related requirements.

In the event that an accident occurs during the transboundary movement or disposal of hazardous waste that presents risks to the environment or human health in other States then those States have to be notified of the accident immediately (Art 13.1).

Member States must also inform each other through the Secretariat of;

Parties to the Convention are also required to set up information collection and provision mechanisms on hazardous waste. The information must be transmitted to the Conference of the Parties before the end of each calendar year (with details of the previous calendar year) and include;

Article 14. Financial Aspects

Article 14 explains the regular budgetary arrangements of the Convention (Art 14.1) and includes details of general budgetary matters, establishment of a revolving fund for emergencies arising from transboundary movement of hazardous waste (Art 14.3) and funding for establishment of regional training and technology centres (Art 14.2).

Article 15. Conference of the Parties

Article 15 describes how the Conference of Parties (COP) is established by Ministers of African Nations with Environment as a portfolio responsibility. The first COP will take place not later than one year after the Convention comes into force (Art 15.1) Meetings of the COP will be held on a regular basis and the quorum for such meetings will be two-thirds?.

The COP will develop rules of procedure and the financial rules (Art 15.2) and will also develop additional measures for the protection for marine and inland water environments from hazardous waste (Art 15.3).

The Convention also requires the COP promote harmonization of policies, strategies and measures among African nations to minimize harm to human health and the environment from hazardous waste.

It is also the role of the COP to amend the Convention as necessary to take into account newly available scientific, technical, economic and environmental information and to evaluate any amendments that may be necessary upon the in light of the experience gained through the operation of this Convention (Art 15.4) and any bilateral or multilateral agreements and arrangements. This may involve;

Organisations qualified in the field of hazardous wastes may be representd as observers at meetings of the COP. These may include 'any body or agency whether national or international, governmental or non-governmental.' In order to attend the COP as observers such bodies must inform the Secretariat and be subject to the rules of procedure adopted by the COP (Art 15.5).

Article 16. Secretariat

Article 16 describes the functions of the Secretariat of the Bamako Convention. This includes the arrangement of COP and associated meetings, generating reports based on information about the transboundary movement of wastes among Contracting Parties, subsidiary bodies, NGO's and intergovernmental entities.

The role of the Secretariat is essentially as a coordinating body for the Convention with the mandate to coordinate with international bodies and to communicate directly with the Competent Authorities, focal points and Dumpwatch in each member country.

The Secretariat also acts as a central communication point for the convention through which member countries can convey information to other Parties.

It is important for developing countries and countries in economic transition to be aware of the resources provided by the Secretariat which may not be available in their own country. This can include information on consultants or consultant firms with expertise to audit the transboundary movement of hazardous waste to ensure;

The Secretariat is also required to compile a database on approved national treatment and disposal facilities of member countries for dissemination to all Parties to this Convention as well as associated services such as sources of technical assistance, expertise, training and resource availability.

The Secretariat is also to assist in the identification of illegal waste traffic and to circulate any related information immediately to any Parties concerned as well as to coordinate international experts and provisions necessary for a rapid response to a hazardous waste emergency.

The Secretariat's function carried out on an interim basis by the Organization of African Unity (OAU) jointly with the United Nations Economic Commission for Africa (ECA) and will be reviewed after the first COP (see Art 15).

Article 17. Amendment of the Convention and of Protocols

Article 16 describes how the Convention can be amended in the future. Any member country may propose an amendment to the Convention (Art 17.1) and any Party to a Protocol may propose amendments to that Protocol however any proposed amendment should be submitted to member countries at least six months before the meeting (via the Secretariat) (Art 17.2), which needs at least two-thirds of the members to be present. The Secretariat should also send the proposed amendments to countries that have signed, but not ratified (agreed to be bound by) the Convention (Art 17.2).

Member countries should attempt to reach consensus when agreeing upon an amendment but if this can't be done, a two-thirds majority vote will apply (Art 17.3). It shall then be submitted by the Depository to all Parties for ratification, approval, formal confirmation or acceptance.

Amendment of a Protocol shall also be by consensus if possible and in the failure of consensus by a two-thirds majority of the Parties to that Protocol present and voting at the meeting. This is sufficient for the amendment of a protocol without submitting by the Depository to all Parties. (Art 17.4) For the purpose of Article 17, "Parties present and voting" means Parties present and casting a yes or no vote (Art 17.6).

General Provisions

Parties to the convention that wish to support an amendment must deposit instruments of ratification, approval, formal confirmation or acceptance of amendments with the Depository

Any amendments adopted enter into force on the ninetieth day after the receipt by the Depository of the instrument of ratification, approval, formal confirmation or acceptance by at least two-thirds of the Parties who accepted the amendments to the Protocol concerned (Art 17.5).

Article 18 Adoption and Amendment of Annexes

Article 18 describes how Annexes to the Convention and related Protocols are adopted or amended. The Annexes are an important part of the Convention and are restricted to scientific, technical and administrative matters (Art 18.1).

The introduction of new annexes to the Convention of any related Protocols shall be subject to the same requirements set out in Article 17 with respect to consensus and voting scenarios.

If any Party cannot accept a proposed additional Annex to the Convention or to a Protocol to which it is a Party then it must notify the Depository in writing within 6 months of the communication of the adoption by the Depository. In turn the Depository must immediately notify all Parties of this notification being received. A Party may at any time replace such an objection with an acceptance and the annex shall then enter into force for that Party.

The new annex shall come into effect 6 months from the date that the Depository notifies member Parties of the adoption of the annex. At this point the annex will apply to all member Parties except those who have lodged an objection as described above (Art 18.2).

An amendment to any annex of this Convention or relevant Protocols is required to follow the same process described above to amend this Convention or any Protocol. (Art 18.3).

Note: If the Convention or a Protocol must be amended as a result of an amendment to an annex or the introduction of a new annex then the Convention or relevant Protocol must be amended before the new or amended annex can come into force. (Art 18.4).

Article 19 Verification

Article 19 describes the circumstances where a member country thinks that another member country is acting illegally with regards to the Convention. In this case, they should inform the Secretariat and the country concerned. The Secretariat will then conduct an investigation into the allegation and submit a report to all Parties of the Convention.

Article 20 Settlement of Disputes

Article 20 describes the process to settle disputes between member countries. In the case of a dispute between member countries, the countries concerned must seek a settlement through negotiation, mediation or other peaceful means (Art 20.1). If the member countries cannot settle their disputes, the issue will be submitted to an ad Hoc arbitration group established by the Conference of Parties or submitted to the International Court of Justice (Art 20.2)

The procedures of the Ad Hoc arbitration group are detailed in Annex V of this convention.

Article 21 Signature

This Article explains that the Convention was open for signing by Member States of the Organisation for African Unity in Bamako and Addis Ababa between 30th January 1991 to 31st July 1991.

Article 22. Ratification, Acceptance, Formal Confirmation or Approval

This article describes the processes by which countries agree to be subject to the rules of the convention. This is done by means of ratification, formal confirmation, acceptance or approval of the Convention which is sent to the Depository. (Art 22.1)

Article 23. Accession

The Convention is open for accession by member States of the OAU from the 1st August 1991. The instruments (documents) of accession are to be deposited with the Depository.

Accession is another term 'for agreeing to the rules' of the convention.

Note: If a country has not signed onto the Convention, {meaning that it supports the Convention}, but wants to be bound by the rules, it can accede (rather then ratify) the Convention. Accession and ratification have the same effect in international law.)

Article 24. Right to Vote

Each Contracting Party to this convention has one vote.

Article 25. Entry into Force

This Convention enters into force on the ninetieth day after the deposit of the tenth ratification (or accession) from Parties who are signatory to this Convention (Art 25.1).

Thereafter for each State who ratifies or accedes to the Convention , the convention will enter into force on the ninetieth day after such State deposits its ratification (Art 25.2).

Article 26. Reservations and Declarations

Each country must accept all the articles of the Convention and cannot agree to only part of the Convention (Art 25.1). When ratifying the Convention, a country may make a statement indicating that its agreement to the Convention is consistent with its laws and regulations. Such a declaration should not change the legal effect of the Convention (Art 25.2).

Article 27. Withdrawal

After the Convention has been in force for three years, a member country may withdraw from the Convention but has to do so in writing (Art 26.1). The withdrawal will take effect one year after the written notice of withdrawal has been received by the Depository (Art 26.2). During this time, a member country is still bound by the obligations of the Convention (Art 26.3).

Article 28. Depository

The Secretary-General of the Organization of African Unity is the depository for this Convention and related Protocols.

Article 29. Registration

Once the Convention enters into force, it will be registered with the United Nations.

Article 30 Authentic Texts

The Arabic, English, French and Portugese texts of this Convention are equally authentic and legitimate.

ANNEX I. CATEGORIES OF WASTE WHICH ARE HAZARDOUS WASTE

Annex 1 describes the types of waste covered by the convention for example, clinical waste, copper compounds and waste containing PCBs.

For a full discussion of the Annexes including the wastes covered by the Convention, visit the Implementation Tools section.

ANNEX II. LIST OF HAZARDOUS CHARACTERISTICS

Annex II lists the hazardous characteristics of wastes covered by the Convention, such as explosive, flammable, oxidising and corrosive.

ANNEX III. DISPOSAL OPERATIONS

Annex III lists the various categories of hazardous waste treatment and disposal but does not distinguish between disposal and treatment or indicate preferred treatment or disposal practices.

ANNEX IV (A). INFORMATION TO BE PROVIDED ON NOTIFICATION

This describes the information to be provided on a notification form which includes such things as country of export, transit countries etc.

ANNEX IV (B). INFORMATION TO BE PROVIDED ON THE MOVEMENT DOCUMENT

This Annex describes the information to be provided on a movement document which includes such things as the generator and exporter of the wastes, a description of the waste and the actual site of disposal etc.

ANNEX V. ARBITRATION

Annex V describes the dispute resolution process which is summarized below.

ARTICLE 1

Unless the agreement referred to in Article 20 of the Convention provides otherwise, the following arbitration procedures shall apply.

ARTICLE 2

A member country which is claiming that another member has broken the rules of the Convention will notify the Secretariat, indicating that both countries agree to have the dispute considered by arbitration (a form of judgement).The country claiming the concern will specify which part of the Convention they believe the other country is disobeying. The Secretary will notify all member countries and give them information about this dispute.

ARTICLE 3

The arbitration tribunal (the judging panel) will consist of 3 member countries. Each of the member countries to the dispute will appoint an arbitrator (judge). The two selected arbitrators will choose a third arbitrator to be the chairman of the tribunal. The chairman of the tribunal should not be a national of one of the member countries in dispute or be a resident or be employed by any of the member countries concerned.

ARTICLE 4

If the chairman has not been selected within two months of the appointment of the second arbiter the Secretary-General of the OAU shall designate a chairman within a further two month period. (Art 4.1). If one of the parties to the dispute does not appoint and arbitrator within two months of the initial request then the Secretary-General of the OAU shall designate the chairman of the arbitral tribunal within a further two months period. Upon appointment the chairman shall request that the Party that has not appointed an arbitrator to do so within two months. After this period the Secretary-General of the OAU can appoint an arbitrator within a further two month period.

ARTICLE 5

The tribunal must make its decision in accordance with both international law and the provisions of this Convention but is permitted to establish its own rules of procedure.

ARTICLE 6

The decisions of the tribunal are based on a majority vote. The tribunal may take all appropriate measures to establish the facts of the case and if requested by the Parties recommend essential interim measures of protection. The absence of any Party shall not delay or pose an impediment to the proceedings.

ARTICLE 7

The tribunal may hear and determine counter-claims directly related to the matter in dispute.

ARTICLE 8

The expenses of the tribunal shall be borne by the Parties (unless the tribunal decides otherwise) to the dispute in equal shares. The tribunal shall record its expenses and provide a final statement to the parties.

ARTICLE 9

Any Party that has an interest of a legal nature in the subject- matter of the dispute which may be affected by the decision in the case, may intervene in the proceedings with the consent of the tribunal

ARTICLE 10

The tribunal must reach a decision within 5 months of the date of establishment and any extension of a time limit should not exceed a further 5 months.

The tribunal's decision is final and binding on all Parties to the dispute and must be accompanied by a statement of reasons for the decision.

Any dispute which may arise between the Parties concerning the interpretation or execution of the decision may be submitted by either Party to the arbitral tribunal which made the decision. If that tribunal cannot be reconvened then another shall be constituted for the purpose of considering the interpretation of the decision.