Download Response received from Canada

BC
UNEP/CHW/OEWG/6/INF/7
Distr.: General
3 July 2007
English only
Open-ended Working Group of the Basel Convention
on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal
Sixth session
Geneva, 3–7 September 2007
Item 7 (a) of the provisional agenda*
Legal and compliance matters: illegal traffic: review of the
outline of an instruction manual for the legal profession
Illegal traffic instruction manual: comments received pursuant to
decision VIII/24
Note by the Secretariat
Attached in the annex to this document are the responses that the Secretariat has received as
at 10 August 2007, pursuant to the decision VIII/24 of the Conference of the Parties. Responses are
reproduced in the language of submission to the Secretariat. As the references provided by the United
States of America are publicly available publications, and for reasons of economy, the Secretariat has
compiled them in a separate document (UNEP/CHW/OEWG/6/INF/7/Add.1) which will not be
distributed to the meeting but will only be made available on the Basel Convention website
(www.basel.int).
*
UNEP/CHW/OEWG/6/1/Rev.1.
100807
For reasons of economy, this document is printed in a limited number. Delegates are kindly requested to bring their copies to
meetings and not to request additional copies.
UNEP/CHW/OEWG/6/INF/7
Annex
Response received from Canada
Introduction
1.
Decision VIII/24 of the Eighth Conference of the Parties requested Parties and other to submit proposals
for items and the specific content pertaining to such items that could be addressed in an instruction
manual for the legal profession on the prosecution of illegal traffic. Further, the decision requested the
Secretariat to prepare a draft detailed outline of the manual, subject to the availability of funding, based on
the proposals and comments received. It also requested the OEWG to consider the draft detailed outline
and make appropriate recommendations to the Secretariat for the preparation of a draft instruction manual
for the consideration of COP-9.
2.
Below are Canada’s detailed comments on the outline. Once the outline is agreed at OEWG, we will be in
a position to provide more detailed material for the manual.
3.
In general, we are of the view that this should be a compendium of best practices, available through the
Basel website. Given that there are substantial differences in approach between domestic systems,
particularly those with adversarial versus inquisitorial approaches to prosecution, it may prove difficult to
provide information relevant to all without overloading the manual. It may also be possible to provide best
practices in various languages for consideration of those still preparing to implement laws.
4.
We may wish to discuss at the OEWG whether the title of the document and its scope should be for the
“legal profession” – this would appear to cover the private bar, as well as prosecutors and judges. It may
be more appropriate to limit the ambit to prosecutors.
Comments on the outline
2
5.
Section 1: In this context, we do not believe that general environmental principles and concepts are
relevant. Illegal traffic involves violation of the Basel Convention and national implementing legislation
which already define environmental principles and concepts. For that reason, legal information provided
to service prosecutions has to be of a very precise nature. It is not clear how a discussion of general
environmental principles will assist in prosecutions.
6.
Section 2: We agree that those members of the legal profession involved in the prosecution of illegal
traffic would benefit from a general knowledge of the Convention. This understanding of its provisions
and the context in which they were negotiated may help foster a sense of why prosecution of illegal traffic
is an important priority, and also provide understanding of public policy arguments at the time of
sentencing. At the same time, the manual would have to make it clear that offences have to be translated
into domestic law and it is under domestic law that the prosecution of offences occurs. While for certain
civil code countries the Convention may have automatically become part of their domestic law upon
ratification, the Convention requires further implementation to make it functional at the national level e.g.
establishment of fines for violations. There should also be some discussion at OEWG about the
independence of the judiciary, as each jurisdiction may have different practices relating to the training of
judges aimed at preserving such independence.
7.
Section 3: We consider it to be useful to outline what constitutes illegal traffic under the Convention, but
the manual will have to be clear that individual countries still need to refer to their specific national law
definitions and offences. A compendium of best practices could be of assistance in outlining reasonable
fines for those jurisdictions which have yet to enact implementing laws.
8.
Section 4: We have doubts about the appropriateness of including references to “investigating” and to
enforcement officers (inspectors and/or investigators). In Canada, enforcement officers are not part of the
federal prosecution service, but rather employees of Environment Canada. There is an arm’s length
relationship between enforcement officers and the Prosecution Service. The inspection and enforcement
aspects are undertaken by Environment Canada officials and when a case is ready for prosecution, it is
then referred to federal prosecutors, who remain independent of the enforcement officials. It is our view
that the enforcement aspects were already treated in the guidance elements and should not be the focus of
UNEP/CHW/OEWG/6/INF/7
this work. However, we are of the view that this is one section that would particularly benefit from a “best
practices” approach, particularly as regards practical matters of evidence.
9.
Section 5: We again question whether “judging” is the right focus for this section, particularly if it is
decided o focus on the prosecution. If the latter is the focus, then this could be retitled as “Prosecuting a
case of alleged illegal traffic”, which could be different to section 4, if that section were to focus on
preparing a case for prosecution, i.e. the lead up to the court case. As regards the italicized text under the
heading, in cases of prosecution, it is not clear that types of action or locus standi are relevant, as these are
matters of civil law. The burden and standard of proof, although likely to be similar, will vary to some
degree from country to country.
10.
Section 6: This is one section that could benefit from a best practices approach, although we could change
the title to “Sentencing for Illegal Traffic”. We consider it appropriate for this section to deal with
restitution, remediation and quantification or valuation of damage as long as these are related to the
penalty phase of a prosecution for illegal traffic. Contribution by Parties of creative sentencing options
would be a useful reference for other Parties. However, we do not feel that “potential mechanisms to
ensure compliance with judicial decisions at national level” is appropriate for inclusion. This is too big a
task for the Basel Convention to take on, as it applies across the board in any domestic legal system.
11.
Section 7: We support the inclusion of the checklist as an annex.
3
UNEP/CHW/OEWG/6/INF/7
Response received from Mexico

VIII/24 Tráfico Ilícito
A) Propuesta de Temario, Contenidos Específicos, Datos Adicionales y/o Experiencias sobre Casos Relevantes
para el Manual de Instrucciones para el Control y Persecución del Tráfico Ilegal de Materiales y Residuos
Peligrosos (Integrado por la PROFEPA) con la aportación del INE)
4

INTRODUCCIÓN
Antecedentes y Objetivos
Diagnóstico del Tráfico Mundial

COOPERACIÓN INTERNACIONAL
Sinergias
Creación de Capacidades
Sistema de Notificación

MATERIALES Y RESIDUOS PELIGROSOS DE ATENCIÓN PRIORITARIA
Aldrin
Dieldrin
Endrin
Mirex
Toxafeno
DDt
Mercurio
Lindano
Bifenilos Policiorados
Acumuladores de Vehículos Automotores conteniendo Plomo
Baterías Eléctricas a base de Mercurio o Niquel-Cadmio
Lámparas Fluorescentes y de Vapor de Mercurio
Esquilmos de Desmantelamiento de Buques y Aeronaves

PROCEDIMIENTOS
Descripción del Procedimiento General para Controlar y Prevenir el Tráfico Ilegal de Materiales y Residuos
Peligrosos.
Descripción del Procedimiento por parte del Estado Exportador, como consecuencia de la conducta ilícita del
exportador o generador
Procedimiento para Devolver al Exportador, los materiales y residuos peligrosos considerados como objeto del
tráfico ilícito.
Procedimiento para Devolver al Exportador, los materiales y residuos peligrosos considerados como objeto del
tráfico ilícito.
Descripción del Procedimiento por parte del Estado Importador, como consecuencia de la conducta ilícita del
importador o eliminador
Descripción del Procedimiento General para Eliminar los Materiales y Residuos Peligrosos Considerados
Como Tráfico Ilícito, en Caso de que el Tráfico Ilícito no pueda Atribuirse al Exportador o Generador ni al
Importador o Eliminador

BIBLIOGRAFÍA Y LITERATURA CITADA

ANEXOS
Formatos
Directorio de Instituciones y Organizaciones
UNEP/CHW/OEWG/6/INF/7
Response received from Pakistan
We suggest that each party should comply with Article 9
We have no relevant case regarding the proposed instruction manual.
5
UNEP/CHW/OEWG/6/INF/7
Response received from the United States of America
1.
Federal Civil Environmental Enforcement: Process, Actors and Trends (authors are John C. Cruden
and Bruce S. Gelber);
2.
Protecting public health and the environment through criminal enforcement: U.S. EPA’s criminal
enforcement program (written by Andrew Lauterback and Peter W. Kenyon).
_______________
6