New ideas as regards the passage of ships carrying hazardous wastes: The 1996 Mediterranean protocol

The Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention), which is of global application, covers both land and marine transboundary movements of hazardous wastes. As a general principle, it provides that transboundary movements of hazardous wastes shall take place only with the prior written notification by the state of export to both the state of import and the state of transit, and the prior written consent, i.e. the authorization, of those states (Article 5(3)). However, as far as the sea is concerned, the Basel Convention includes a provision which protects two potentially conflicting elements, namely, the sovereign rights and jurisdiction of coastal states and the exercise of navigational rights and freedoms by third states. The legal problems raised by foreign ships passing through a state's territorial sea carrying hazardous wastes are not explicity addressed by other treaties. An intermediate and innovative solution that consists of a 'notification without authorization' scheme, can be found in a recently concluded regional treaty, the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal, adopted in Izmir, Turkey, on 1 October 1996 (the Izmir Protocol). The provisions of the Izmir Protocol are to be understood in the light of its limited sphere of application. It covers only a particularly dangerous category of ships, namely those carrying hazardous wastes and only a specific semi-enclosed sea, the Mediterranean, which is particularly threatened by pollution.