Page 76 - BaselSozlesmesi

BASEL SÖZLEŞMESİ THE BASEL CONVENTION

2. Without prejudice to paragraph 1, with respect to wastes under Article 1, subparagraph 1 (b),
(i) The damage occurred in an area under the national jurisdiction of any of the Parties to the of the Convention that have been notified as hazardous by the State of import in accordance with
agreement or arrangement; Article 3 of the Convention but not by the State of export, the importer shall be liable until the
disposer has taken possession of the wastes, if the State of import is the notifier or if no notifica-
(ii) There exists a liability and compensation regime, which is in force and is applicable to the tion has taken place. Thereafter the disposer shall be liable for damage.
damage resulting from such a transboundary movement or disposal provided it fully meets,
or exceeds the objective of the Protocol by providing a high level of protection to persons who 3. Should the hazardous wastes and other wastes be re-imported in accordance with Article 8 of
have suffered damage; the Convention, the person who notified shall be liable for damage from the time the hazardous
wastes leave the disposal site, until the wastes are taken into possession by the exporter, if appli-
(iii) The Party to the Article 11 agreement or arrangement in which the damage has occurred cable, or by the alternate disposer.
has previously notified the Depositary of the non-application of the Protocol to any damage
occurring in an area under its national jurisdiction due to an incident resulting from move- 4. Should the hazardous wastes and other wastes be re-imported under Article 9, subparagraph
ments or disposals referred to in this subparagraph; and 2 (a), or Article 9, paragraph 4, of the Convention, subject to Article 3 of the Protocol, the person
who re-imports shall be held liable for damage until the wastes are taken into possession by the
(iv) The Parties to the Article 11 agreement or arrangement have not declared that the Pro- exporter if applicable, or by the alternate disposer.
tocol shall be applicable;
5. No liability in accordance with this Article shall attach to the person referred to in paragraphs
(b) In order to promote transparency, a Contracting Party that has notified the Depositary of 1 and 2 of this Article, if that person proves that the damage was:
the non-application of the Protocol shall notify the Secretariat of the applicable liability and
compensation regime referred to in subparagraph (a) (ii) and include a description of the re- (a) The result of an act of armed conflict, hostilities, civil war or insurrection;
gime. The Secretariat shall submit to the Meeting of the Parties, on a regular basis, summary
reports on the notifications received; (b) The result of a natural phenomenon of exceptional, inevitable, unforeseeable and irresis-
tible character;
(c) After a notification pursuant to subparagraph (a) (iii) is made, actions for compensation for
damage to which subparagraph (a) (c) Wholly the result of compliance with a compulsory measure of a public authority of the
State where the damage occurred; or
(i) applies may not be made under the Protocol.
(d) Wholly the result of the wrongful intentional conduct of a third party, including the person
8. The exclusion set out in paragraph 7 of this Article shall neither affect any of the rights or ob- who suffered the damage.
ligations under the Protocol of a Contracting Party which is not party to the agreement or arran-
gement mentioned above, nor shall it affect rights of States of transit which are not Contracting 6. If two or more persons are liable according to this Article, the claimant shall have the right to
Parties. seek full compensation for the damage from any or all of the persons liable.

9. Article 3, paragraph 2, shall not affect the application of Article 16 to all Contracting Parties.
Article 5: Fault-based Liability
Article 4: Strict Liability Without prejudice to Article 4, any person shall be liable for damage caused or contributed to by
his lack of compliance with the provisions implementing the Convention or by his wrongful inten-
1. The person who notifies in accordance with Article 6 of the Convention, shall be liable for damage until tional, reckless or negligent acts or omissions. This Article shall not affect the domestic law of the
the disposer has taken possession of the hazardous wastes and other wastes. Thereafter the disposer Contracting Parties governing liability of servants and agents.
shall be liable for damage. If the State of export is the notifier or if no notification has taken place, the
exporter shall be liable for damage until the disposer has taken possession of the hazardous wastes and
other wastes. With respect to Article 3, subparagraph 6 (b), of the Protocol, Article 6, paragraph 5, of the
Convention shall apply mutatis mutandis. Thereafter the disposer shall be liable for damage.

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