Reference: P371-1517
Submission from Switzerland on the draft guidances on“illegal traffic” and “insurance, bond and guarantee”
Guidance on Dealing with illegal traffic
Appendix 1, part II: Notification document for the take-back of waste, paragraph 2 of article 9 of the Basel Convention. This document is only a slightly modified standard notification document. Consequently, for simplicity reasons, we propose to use for any take back needing a notification the standard notification document. The fact that it is a take back can be mentioned in the field 11 under “reason for export”.
Guidance to improve the implementation of paragraph 11 of Article 6 of the Convention
Paragraph 21: If the shipment or disposal of waste cannot be carried out as originally intended the state of export obliges the exporter to take back the waste. If the exporter is unable or unwilling to do so, it is the duty of the state of export to organise the take back. Therefore the state of export is interested to the have the possible costs covered by a financial guarantee.
If the illegal traffic is a result of the conduct of the importer/disposer the state of import is in charge to oblige the importer/disposer to dispose of the waste in an environmentally sound manner. If the importer/disposer in unable or unwilling to meet its obligations the state of import organises the disposal. Therefore, the state of import should rather request a financial guarantee from the importer/disposer instead of the exporter. We believe it is against the sense of justice to oblige the exporter to cover also the risk of illegal traffic caused by the importer or the disposer. Moreover, as stated in footnote 18, it could be more difficult or expensive to obtain such guarantees.
The financial guarantee should cover the disposal operation as a whole, independently whether the waste comes from a transboundary movement or not. Illegal activities of a disposer are often not restricted to imported waste, but may also comprise domestic waste shipments. Provisions that allow financial guarantees from waste disposers facilitate a clear allocation of risks and the identification of the beneficiary of the financial guarantee. It reduces difficulties and costs to obtain financial guarantees for TBM. Eventually, local authorities bear less risk to pay the costs of illegal conduct of the disposer whether imported or domestic waste is concerned.
Chapter III / F: One aspect that is missing in this chapter is the amount of waste or number of shipments that are in transit or waiting to be disposed of. This amount corresponds to the risk to take back exported waste. In Switzerland, the period for delivering the certificates of disposal as stated in the contract between the exporter and the disposer is taken into consideration (Annex V, F). A similar concept is applied by the UK (Annex V, G). This helps to reduce the amount of funds that needs to be guaranteed. On the other hand, monitoring by the authorities is required to ensure that certificates of disposal are issued within the given period.
Chapter III / F: Another aspect worth to be mentioned in this chapter is the possibility to put in place financial guarantees pertaining to several notifications. Exporters with a high number of notifications per year or exporters who are exporting repeatedly the same type and amount of waste often make use of this option offered in Switzerland. In general, for the calculation of the amount of funds, the sum of the amount of wastes required for the single notifications are considered. However, if the waste is shipped to a high number of different disposers, the risk for take back (e.g. due to failure of the disposer) is estimated to be lower and therefore the amount of funds can be reduced by 10 to 30%. The procedure reduces the administrative burden of the exporter as well as of the authorities. The guarantee is valid until it is cancelled. It does not have to be extended every year. In addition less funds are bound because it avoids the situation of overlapping financial guarantees. In this case the financial guarantee for the former notification is still valid when the financial guarantee for the new notification is required. However, financial guarantees pertaining several notifications need to be properly monitored. It must be ensured that amount and type of waste always corresponds the initial calculation base.
1/2061.6-04.31-02-64978/00023/P371-1517