Supreme Court
Upholds Basel Convention but allows hazardous US Ship Exxon Valdez
Parliamentary Committees Intervention Will Be Sought To Stop Hazardous Waste Dumping ࠼br>
Hazardous
Waste Rules need to be revised for compliance with Conventionࠠ࠼br>
New Delhi 30/7/2012: The Bench of Supreme Court,
Justice Altamas Kabir and Justice J. Chelameshwar, upheld UNⳠBasel Convention
on the Control of Transboundary Movements of Hazardous Wastes and Their
Disposal but allowed the end of life ex US Ship Exxon Valdez (MV Oriental N) at
Alang beach, Bhavnagar, Gujarat.
The implication of this direction would be that all
the ships which are have entered or are entering the Indian territorial waters
have to show compliance of Basel Convention. In case there is non compliance, all
these ships should go back to country of origin.
The Applicant in the case, Gopal Krishna commented, ㅸxon
Valdez did not follow the Basel Convention and therefore according to the
judgment dated 06.07.2012 it should have been sent back to the country of
export. The Court ought to have applied Precautionary Principle not for the
purpose of dismantling the ship but for sending it back because the principle
implies that the pollution of hazardous nature has to be avoided particularly
when its impact on environment and human health are not known.伳pan style> A
copy of the Basel Convention and its Technical Guidelines is attached. ༯span>
ࠠࠠࠠࠠࠠ In
fact the Bench asserted in this order what they have said in their final
judgment dated 06.07.2012 namely that all Ships coming for dismantling have to
follow Basel Convention and if there is any violation, action should be taken
according to the Municipal Laws.
The main concern of the Applicant was that ships like
Exxon Valdez are End of Life ships and the entire ship itself is hazardous
waste which are regulated under Basel Convention as it is embedded with
asbestos waste, cables containing PCT, heavy metals, paint chips etc. the
argument was not that the Ship contains any hazardous waste in loose form. None
of the above mentioned authorities had given any inventory to the court about
hazardous waste contained in the body of the Ship.
The arguments which were advanced by ApplicantⳊadvocate Mr. Sanjay Parikh regarding following Basel Convention namely, that
there should be prior decontamination by the country of Export and prior
permission by the country of Import before Ship enter the Indian territorial
waters. These have been recorded in the judgment. ༯span>
It is noteworthy that Basel Convention is related to
the control of Trans-boundary movements of hazardous waste and their disposal.
Article 1, Article 2, paragraph 1 and 4 and Annex IV, paragraph B of the said
Convention are relevant. Ships destined for ship-breaking operations are within
the definition of "wastes" as defined by the Basel Convention. The
Convention defines "wastes" as: "substances or objects which are
disposed of or are intended to be disposed of or are required to be disposed of
by the provisions of national law" (Article 2, paragraph 1.).
The term
"disposal" is further defined to mean "any operation specified
in Annex IV to this Convention" (Article 2, paragraph 4). Annex IV
includes final disposal operations and operations which lead to recovery,
recycling, reclamation, direct re-use or alternative uses. Under Annex IV,
paragraph B., ships destined for ship-breaking will, in fact, fall within the
entry: "R4 Recycling/reclamation of metals and metal compounds".
Notably, ships destined for ship-breaking operations
are "hazardous wastes" under the Convention.
Article 1 of the
Convention determines the scope of the Convention and defines "hazardous
wastes". The definition of "hazardous wastes" includes, inter
alia, "wastes that belong to any category contained in Annex I, unless
they do not possess any of the characteristics contained in Annex III".
Ships destined for ship-breaking typically contain, inter alia, the following
Annex I hazardous substances to an extent that they do constitute hazardous
wastes:
-Y9 Waste oils/water, hydrocarbons/water mixtures,
emulsions;
-Y10 Waste substances and articles containing or
contaminated with polychlorinated biphenyls(PCBs) and/or polychlorinated
terphenyls (PCTs) and/or polybrominated biphenyls (PBBs);
-and a host of Y19 to Y45 constituents such as Y23
Zinc compounds, Y26 Cadmium; cadmium compounds, Y31 Lead; lead compounds, Y36
Asbestos (dust and fibers).The Parties to the Basel Convention further
supplemented Annex I and III by elaborating specific wastes as hazardous wastes
and including such wastes in Annex VIII. Annex VIII contains many entries of
specific wastes which are contained in ships destined for ship-breaking.
i.ࠠࠠࠠࠠ࠼/span>The
ship-breaking operations in non-OECD countries like India do not constitute
environmentally sound management as required by the Convention. Ships destined
for ship-breaking contain significant quantities of asbestos, PCBs, hydraulic
fluids, paints containing lead and/or other heavy metals, tributyltin or TBT
antifouling coatings, contaminated holding tanks, and other substances
rendering them hazardous waste and extremely dangerous to human health and the
environment when scrapped in the existing ship-breaking yards.
ii.ࠠࠠࠠࠠ In
addition, Article 4, paragraph 3 requires the Parties to "consider that
illegal traffic in hazardous wastes or other wastes is criminal."Article
4, paragraph 4 requires that "Each Party shall take appropriate legal,
administrative and other measures to implement and enforce the provisions of
this Convention, including measures to prevent and punish conduct in
contravention of the Convention."Therefore, each Party has a legal
obligation to prohibit such ship exports and must do so with respect to all
persons ("any natural or legal person" - Article 2, paragraph 14)
subject to its jurisdiction, e.g., exporters, importers, brokers, owners, those
persons in possession and/or control of the ship, captains, etc.
iii.ࠠࠠࠠࠠIn
order to export a ship for ship-breaking, there is a legal requirement to
decontaminate it such that it no longer contains Basel Convention hazardous
substances prior to export.
iv.ࠠࠠࠠ࠼/span>Among
other things, what is emphasized in the Convention is prior informed consent
and the disposal of waste in an environmentally sound manner. India has signed
and ratified the said convention, in the order dated 14.10.2003- (2005)10 SCC
510 it has been observed that the Basel Convention is a part of Article 21 of
the Constitution.
v. Basel
Technical Guidelines under the Basel Convention on Ship dismantling read as
follows:
㔲ansboundary movements of hazardous wastes or other
wastes can take place only upon prior written notification by the state of
export to the competent authorities of the states of import and transit.伳pan style>
vi. ༯span>The Basel
Convention Technical Guidelines specifically points out: Ballast water which is
fresh, brackish or marine water that has intentionally been brought on board a
ship in order to adjust the shipⳠstability and trim characteristics in
accordance with various operating conditions 㭡y contain pollutants, such as
residual fuel, cargo hold residues, biocides, oil and grease, petroleum
hydrocarbons, and metals (e.g. iron, copper, chromium, nickel, and zinc).
Ballast water in cargo tanks (oil) is referred to as dirty ballast water. The
transport of large volumes of water containing organisms from shallow, coastal
waters across natural oceanic barriers can cause massive invasions of neritic
marine organisms. Because ballast water is usually taken from bays and
estuaries with water rich in animal and plant life, most ships carry a diverse
assemblage of aquatic organisms. Aggregate sediments typically found in ballast
tanks will contain living species which reflect the trade history of the
vessel.䠼/span>
It further adds: ᔨe arrival condition of the
dismantling candidate is most likely that of 㩮 ballast䮠The discharge of
ballast water/ sediment species into the coastal sea-area may be a potential
source for introducing unwanted organisms which threaten the ecological balance
in the surrounding seas and thereby represent a direct threat to biodiversity.
Ballast water can be the carrier of viruses and bacteria transferred to humans
causing epidemics. In order to limit the biological threat represented by the
introduction of invasive species via ballast water, the vessel should undergo
recommended de-ballasting.ࠠࠠࠠࠠ
In view of the July 30 and July 6, 2012 judgments of
the Court, Union Ministry of Environment & Forests will have to revise its
Hazardous Rules to become complaint with the CourtⳠorder and Basel Convention.
༯span>
The
Applicant will approach the relevant Parliamentary
Committees to seek their intervention because CourtⳠorder and
international
law is being violated through subordinate legislations and through
creating a fait accompli situation like in the case of end of life ships
like Riky, Blue Lady, Platinum II and now Exxon Valdez to facilitate
hazardous waste dumping. ༯span>
A separate application is being filed in the larger matter
of hazardous waste management in the country to ensure compliance with CourtⳠdirections
of the October 14, 2003 order and the recommendations of the Supreme Court
Monitoring Committee on Hazardous Wastes.࠼span style>Bangaldesh
Supreme Court order had taken cognisance of the hazardous materials on
ship and has reproduced its diagram both are attached.
