The Research On Prior Informed Consent Rules Of Basel Convention

Hazardous waste is a by-product of industrialization,and industry is the main source of hazardous waste.In the mid-to-late 1980 s,industrialized countries faced prominent problems such as large amount of hazardous waste generated and high processing costs.At the same time,developing countries’ demand for imported hazardous wastes,which are used as industrial raw materials,based on economic development,combined with the inadequate domestic environmental regulatory system in developing countries,has led to the massive transfer of hazardous wastes to developing countries.In this process,dangerous wastes are dumped across the border and major environmental pollution incidents occur frequently.The transboundary movement of hazardous waste poses a serious threat to human health and the environment,and the international community recognizes the need for joint action in the transboundary context of hazardous waste.As a result,the United Nations Environment Programme hosted and adopted the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.In order to control the transboundary movement of hazardous wastes,the Convention provides for a prior informed consent system,that is,before any proposed transboundary movement of hazardous wastes,the exporting country must notify the importing country and obtain its consent.At the same time,in order to guarantee the operation of the Convention’s prior informed consent system,the Conference of the Parties at its fifth meeting adopted the Basel Protocol on Liability and Compensation for Damage Caused by Transboundary Movements of Hazardous Wastes and Their Disposal.The Protocol provides for liability for violations of transboundary harm in violation of the prior informed consent procedure.So far,in the control of hazardous waste transboundary activities,the legal logic of "obligation-responsibility" has been formed,and the legal enforcement power of the convention has gradually become prominent.Regrettably,the Protocol has not entered into force for a number of reasons.The prior informed consent system is the core system of the Convention.It is necessary to study this system.As a State party to the Convention,in-depth study of this system is also of practical significance.The prior informed consent system set out in the Convention is actually a procedural setting for international cooperation in the field of transboundary movements of hazardous wastes.On the one hand,the procedure emphasizes the notification obligation of the notifier and on the other hand guarantees the autonomy of the importing country.It can be said that the right of prior informed consent of the importing country is essentially to guarantee the “meaning autonomy” of the country in the field of transboundary movement of hazardous waste.In addition,the basis for the prior informed consent procedure is the contractual relationship between the exporter and the importer,which means that the transboundary movement of hazardous waste is a private law act.Based on this,the protocol should focus on private law relief for transboundary harm rather than overemphasizing national liability for transboundary harm.At the same time,the scope of application of strict liability should also be limited,as strict liability is the exception of the system of liability principles.Therefore,the content of this article is mainly composed of four parts: The first part introduces the basic content of the Convention’s prior informed consent system,including the concept of the prior informed consent system and the rights and obligations of the system to the relevant subjects.After understanding the concept and operation of the prior informed consent system,the second part analyzes the inherent legal principles of the prior informed consent system.The prior informed consent system essentially guarantees the autonomy of the contracting parties,which is an international cooperation procedure based on private law.The third part discusses the issue of liability for violation of the prior informed consent procedure,including state liability,civil liability and criminal liability for breach of notification obligations.The fourth part focuses on the analysis of the implementation of the Convention in China.Including the import and export of hazardous wastes in China and the transfer of hazardous wastes within the country on the prior informed consent system,as well as the legal consequences of our violation of the prior informed consent system.Rethinking the deficiencies in our country’s prior informed consent system,And based on the provisions of the Convention on the Prior Informed Consent System.The liability system in the field of hazardous waste management should be innovated and the administrative system for hazardous wastes should be improved to implement the implementation of the system.