Le Clemenceau, a toxic ship under Indian & French Law
The Financial Express, an Indian financial daily reported the `routine' announcement of French government on August 29, 2004 that passed almost un-noticed. It was reported that the French government has discarded aircraft carrier Le Clemenceau and this would be sent to Alang shipbreaking yard in Gujarat (India) for recycling.
The contract for the demolition of the ship was signed on June 23, 2004 between France and the German company, Ship Decomissioning Industries Corporation (SDI), managed. At present Le Clemenceau is in Toulon where part of the dismantling has been completed.
So far it has not come to India only because the appeal court of Paris has been approached by the environmental groups of France to save Indian workers from health hazards involved in the dismantling of this ship.
But the Supreme Court constituted Hazardous Waste Monitoring Committee has visited Gujarat and has given clearance to Le Clemenceau, the French ship. It has been claimed that 90 percent of the asbestos has been removed from the ship. This is as per Supreme Court order seeking "Decontamination of ships before they are exported to India for breaking".
Indian Supreme Court and its Monitoring Committee ought to take note of Article 2.1 of the Basel Convention defines waste 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" and the Decision of October, 2004 at the Seventh Conference of the Parties (COPVII), clarified any remaining ambiguity saying:"Noting that a ship may become waste as defined in article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules."
It is surprsing that even the Monitoring Committee is not taking cognisance of a point of law and its further evolution since October 14, 2003 order of the court.
The court has explicitly said in its 2003 order that the petitioner seeking relief from the trade in hazardous wastes has relied upon the Basel Convention meant "to minimize the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to reduce the transboundry movement of hazardous wastes" which was signed by India on 15" March, 1990 and ratified on 24" June, 1992.
Given the fact that the very ratio (reason) of the order is Basel Convention, the Committee is duty bound to take note of the Article 2.1 of the Basel Convention and the Decision of the COPVII.
Also as per Hazardous Wastes (Management and Handling) Amendment Rules, 2003 since import of asbestos waste is banned, allowing even 10 % of asbestos is illegal but one wonders whether the Monitoring Committee in its infinite wisdom feels otherwise.
The court recalled its order dated 5t' May, 1997 having directed "that no authorization/permission would be given by any authority for the import of hazardous waste items which have already been banned by the Central Government or by any order made by any Court or any other authority and no import would be made or permitted by any authority or any person, of any hazardous waste which is already banned under the Basel Convention or to be banned hereafter with effect from the dates specified therein."
It would interest to read the recommendations of Monitoring Committee.
Meanwhile the Appeal Court in Paris heard the case on 22nd April, 2005 and said that the company has
to act for the protection of the health of workers not only in France but also out of France in respect of the international conventions.
The appeal court considered that it is necessary to judge on the facts. Therefore, the judge has decided that the contract between the French State and the Ship Decommissioning Industries Corporation (SDI) about the transfer of Le Clemenceau to India has to be communicated to the environmental associations in order to discuss of the legacy of this contract (in relation to the convention of Basel [on waste transfer] and to the European and French regulations about asbestos and waste export).
The judge will have to pronounce a new decision on the next date of hearing on issues such as:
Is the Le Clemenceau transfer covered under the Basel Convention ?
How the French State and the SDI can argue to be able to send Le Clemenceau in India with asbestos in it?
How they can argue about how they are respecting the different international and national regulations about such a transfer?
How the contract between them is taking in account the regulations on dangerous waste and contamination for the Indian workers?
But the fact which is quite manifest from the above is that the transfer of the Clemnceau is not considered as without problem by the French Justice system but it seems to be the case under the Indian Justice system.
As of now it appears that it is impossible for Clemnceau to come to India before the decision on the above questions of the justice.
The French judge has decided that every day delayed in the communication of the contract, SDI and the state will have to pay a penalty of 1500 euros per day for delay.
Indian environmental groups agree with their French counterpart when they say that sending this toxic ship to India is socially irresponsible, because the Indian ship-breaking sites are not equipped and the personnel trained to work under safe conditions.
The Court of Appeal considered to be not very convincing the "industrial secrecy and of the businesses" behind which the State and SDI sheltered to refuse to produce their contract.
The French Court's opinion can be deemed an instructive Appeal to the ship-owners with regard to the fate of the old tankers to simple hull to the effect such ships must be withdrawn from the market. Majority of these ships contain toxic substances such as asbestos and polychlorobiphényles.