Comments on the Analysis of the Basel Convention’s Secretariat Regarding Hazardous and other Wastes Generated on Board Ships (December 2012)

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The Revised legal analysis of the application of the Basel Convention to hazardous and other wastes generated on board ships (Revised Legal Analysis) prepared by the Secretariat of the Basel Convention offers insight on the question of hazardous wastes generated on board vessels, which is an issue of significant importance to the attainment of the objectives of the Convention. The critical importance of this issue can be clearly discerned after the 2006 incidents involving the Probo Koala’s illegal transboundary movement (TBM) of hazardous waste from The Netherlands to the Ivory Coast, and the deleterious impacts of the dumping therein on the environmental rights of more than 100,000 people.

However, while the request for the interpretation of the Convention meant to clarify its provisions with a view to addressing Basel’s shortcomings apparent in the Probo Koala incident, certain conclusions of the Revised Legal Analysis open loopholes in the Convention that diminish Basel’s level of protection and effectiveness.

The conclusions of the Revised Legal Analysis must be strengthened, so that the Basel Convention is capable of effectively controlling hazardous wastes generated on board ships that are not covered by Marpol. These comments address the interpretative conclusions of the Revised Legal Analysis prepared by the Convention’s Secretariat. The comments also put forward alternative interpretations that better comport with the principles of treaty interpretation established in customary law and codified in the Vienna Convention on the Law of Treaties (VCLT).

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