136. The Court notes that Article 4 of the Bamako Convention prohibits the import
and dumping of hazardous wastes. This text also provides that "All Parties
shall take appropriate legal, administrative and other measures within the
area under their jurisdiction to prohibit the import of all hazardous wastes,
for any reason, into Africa from non-Contracting Parties”.
137. It emerges from these various provisions of the Bamako Convention that it
behoves State parties, prevent the importation into their territory of toxic
wastes whose impact on human life they should be aware of. If such toxic
wastes are on the territory of a State, it has the obligation to act and limit
and repair the harmful consequences on human life.
138. It emerges from the instant Application, and notably from the submissions
of the parties, that the Respondent State was aware that the ship, Probo
Koala, was transporting industrial chemical waste but that it authorised the
company TRAFIGURA to unload its cargo44 on condition that it finds a
company that would treat the waste. The Court considers that such
authorization in itself constitutes a breach of the obligation not to infringe
the prohibition on the import of hazardous waste laid down in the Bamako
Convention. In the instant Application, the Respondent State had an
obligation to prevent the dumping of the toxic waste but failed to do so.
139. Furthermore, the Respondent State failed in its duty to ensure that the
company Tommy, to which it assigned the specialised task of treating the
waste, had the required skills and equipment to do the job. It also failed to
ensure that the company had effectively taken every necessary step to
respect its contract under conditions which guaranteed the safety of the right
to life of persons living around the coastal areas close to where the waste
was were dumped. In this regard, the obligation to protect, which laid on the
shoulders of the Respondent State, required it to act diligently considering
the nature of the substance concerned and the potential risk for the right to
44
See the response of the Respondent State received at the Registry on 22 November 2017, page 5,
§§ 3 to 5 and the Applicants’ reply received on 1 August 2018 2018, page 5, § 3.
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