Blue Lady Does a Riky & Demolishes the Clemenceau precedent


Supreme Court is yet to hear the matter regarding Riky ship although it preceded the Blue Lady case that was decided with its orders of 6th and 11th September, 2007. Like Riky, first a ship with dubious credentials leaves the shores of Germany. Then a in spite of manifest act of fraudulent misrepresentations month later, Indian Supreme Court allowed it to anchor even in the absence of legal grounds at Alang, Gujarat's massive shipbreaking yard, on humanitarian considerations. Unlike Clemenceau, this ship named Blue Lady(SS Norway, SS France)sailed through the law to live in the infamous company of Kong Frederik IX" alias "Frederik" alias "Riky" that sailed under the flag of an unknown country named Roxa. Blue Lady is unusual for the price at which it was bought at one stage. The price of this 16 floor and 315 meter long ship is 10 dollars.

GIVEN BELOW IS A SHORT NOTE BY SANJAY PARIKH, ADVOCATE FOR THE PETITIONER ON THE GENERAL RECOMMENDATIONS OF TECHNICAL EXPERT COMMITTEE BY THE TECHNICAL EXPERTS COMMITTEE (TEC) HEADED BY UNION ENVIRONMENT SECRETARY , MINISTRY OF ENVIRONMENT & FORETS (MOEF)

DECONTAMINATION:

1. The ship ought to be decontaminated prior to its export for dismantling, is concluded by this Hon’ble Court in its earlier judgement/order dated 14.10.2003 RFSTE Vs UOI reported in 2003 (9) Scale 303 = 2005 (10) SCC 510. The directions given by this Hon’ble Court were based on the recommendations of the High Powered Committee (HPC) constituted by this of experts under the Chairmanship of Professor M.G.K. Menon an eminent scientist. The High Powered Committee constituted pursuant to the directions of this Hon’ble Court, inter-alia, submitted recommendations on ship breaking and Hazardous waste. The counsel for the petitioner submitted a compilation of documents to show the origin of ship breaking issue [Terms of Reference NO. 14] and that “prior decontamination before export” was the core concern:
(i) Affidavit of Central Pollution Control Board (CPCB) dated 29.2.2000 stating that the ships should be properly decontaminated before export to India.
(ii) Order dated 20th April 2000 where the precise issue which was referred to High Powered Committee was that ships which come to India should be properly decontaminated before they are exported to India.
(iii) The Submission of Gujarat Maritime Board (GMB) before the High Powered Committee was that the Hazardous/toxic waste contained in the structure of empty ship should be removed by the exporting Countries as such wastes are banned under the Basel Convention. GMB categorically stated that a ship should be allowed to sail only when they are made completely hazardous/toxic free from every corner of the structure of the ship before being auctioned.
(iv) The report of the High Powered Committee –Professor Menon Committee after dealing in great detail with the Ship Breaking issue recommended that the “Ships-Destined for ship breaking on Indian Coast ought to be decontaminated as far as possible.”
(v) The judgment of this Hon’ble Court dated 14.10.2003 reported in RFSTE Vs. Union of India in 2005 (10) SCC 510 at page 536 all the directions given therein are important. Reading of directions 1, 2 and 16 makes the issue of prior decontamination very clear: such decontamination has to be ensured before arrival of the ship at the port of India. India’s stand in the Basel Convention should be that the ship should be decontaminated before its export to our country.



(vi) MoEF (which has changed its stand now in Blue Lady case) even in the French Ship (Le Clemenceau)) issue had filed an affidavit dated 10.2.2006 stating requirement of prior decontamination and that it is decontaminated “to the extent possible” without endangering ability of the ship to float.

These directions given by this Hon’ble Court on the basis of High Powered Committee recommendations, CPCB recommendations, GMB’s submissions, MoEF’s stand so far, can not be in any manner be diluted as it will be against the interest of the Country. It will be a clear case of dumping of Hazardous wastes, if a ship is allowed to enter in the Indian territory without decontaminating the entire Hazardous waste which contains lethal amount of asbestos/ PCBs, waste oil etc. It will affect our coastal area and the environment in an irreversible manner besides being a health hazard to the workers and people living in the vicinity. Merely because the land-fill facility is available in the 2006, after this Hon’ble Court’s directions in the year 2003, that it should not be indiscriminately filled up with the wastes dumped by the developed countries. It may be noted, leaving aside the fine distinction made between the ship for scrap and the hazardous waste, that ultimately such ship is a massive hazardous waste which is floating on the vessel. Such hazardous waste is otherwise banned under the Hazardous Waste Rules, 1989 as amended up to date.

PRIOR INFORMED CONSENT
2. The second important point is about the prior informed consent. This procedure is accepted in the Rio Declaration, Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal, Cartegena Protocol, Rotterdam Convention on Prior Informed Consent Procedure, Stockholm Convention on Persistent Organic Pollutants (POPs) etc. Prior informed Consent is therefore an important component of the International Environmental Jurisprudence by which the harmful effects on the environment of the developing country, caused by a developed country, can be checked/prevented. The said principle has also been incorporated in the Hazardous Waste Rules, 1989 as amended vide Rule 11, 12, 13 and 14. The provisions of the Stockholm’s Declaration, Basel Convention and Rio Declaration have been accepted as part of Article 21 of the Constitution. In RFSTE Judgment (Supra ) as well as in several other judgments, this Hon’ble Court has accepted International Environmental Principles and such conventions as part of Article 21 of the Constitution. This Hon’ble Court may peruse Article 21 of Stockholm Declaration, 1972, Articles 12 and 19 of the Rio Declaration 1992, Article 6 of the Basel Convention and Rules 11 to 14 of the Hazardous Waste Rules, 1989 which are enclosed for perusal of this Hon’ble court.
Being a signatory and having ratified the Basel Convention, Stockholm Convention on POPs and the Rotterdam Convention, the principles of international law become applicable including the requirement to follow prior informed consent which is one of the important principle in the Basel Convention. The Countries which are member states of this convention can not send hazardous waste to the developing country without their prior consent as this alone (1) gives an opportunity to the developing country to examine whether it can dispose of such wastes in an environmentally sound manner (2) preventing dumping of waste which is hazardous to the public health and environment. A note on the status of asbestos/asbestos waste is enclosed. PCBs are banned under the HW Rules of 1989. They are also banned under the Stockholm Convention on POPs and the Basel Convention. It is reiterated that export of ship for dismantling should be with prior informed consent. The procedure of such consent is known to MoEF, Pollution Control Boards and all the authority in the country. Even in the commercial transaction of import and export such procedures are followed. These are ordinary procedural aspects.

It is not safe and is against all international norms, against the principals of sovereignty that any ship without decontamination and prior informed consent is allowed to enter in the territory of our country. The procedure for filing application for anchoring, beaching and subsequently an appeal are all procedures which violate the directions of this Hon’ble Court in 2003.


The Blue lady is an example of such an illegality, which should not be allowed to get into the system. Our country should not depart from the procedure, which is followed by all other countries who are members of Basel Convention.

SEPTEMBER, 2007

Comments

Anonymous said…
Worldwide, between 200 and 600 large end-of-life ships are broken up and recycled every year, as their steel, other scrap metal and equipment constitute valuable raw materials. Most of this ship dismantling nowadays takes place in South Asia, on tidal beaches and under primitive conditions. While the industry provides thousands of jobs for migrant workers, a lack of environmental protection and safety measures leads to high accident rates, health risks and extensive pollution of coastal areas. Older ships contain many hazardous materials, including asbestos, polychlorinated biphenyls (PCBs), tributyl tin and large quantities of oils and oil sludge.

As many ships sail under the flag of an EU member state, and even more are owned by European companies, the situation is of concern to the EU. Community legislation is affected in so far as it prohibits the export of hazardous waste to developing countries.



European Community law on waste shipments:
Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste prohibits the export of hazardous waste from the Community to non-OECD countries.
With special regard to ships, recital 35 of this regulation reads:
"It is necessary to ensure the safe and environmentally sound management of ship dismantling in order to protect human health and the environment. Furthermore, it should be noted 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 important to recall that work is ongoing, involving inter-agency cooperation between International Labour Organisation (ILO), International Maritime Organisation (IMO) and the Secretariat of the Basel Convention, to establish mandatory requirements at the global level ensuring an efficient and effective solution to the problem of ship dismantling."

Source: http://ec.europa.eu/environment/waste/ships/
Anonymous said…
This pertains to world's biggest ship-breaking yard. Supreme Court of India is yet to hear the matter regarding dead Riky ship although it preceded the Blue Lady (SS Norway, SS France)case that was decided with its orders of 6th and 11th September, 2007. Quite like Riky, Blue Lady is unusual for the price at which it was bought at one stage. The price of this 16 floor and 315 meter long ship is 10 dollars. The court has allowed dismantling of the ship at Alang, Bhavnagar, Gujarat, India without decontamination. The decontamination cost in Europe was estimated at 17 million Euro. The ship exposes 30, 000 villagers and hundreds of workers to asbestos and radioactive materials to get mere
41, 000 MT of Steel. The crux of the matter is the shipowners have escaped decontamination cost by influencing gullible Indian officials of easy virtue in both the cases. These officials were in tears when Le Clemenceau was recalled.
Anonymous said…
Comments on the European Commission’s Green Paper on Better Ship Dismantling
[SEC(2007) 645]

by the Basel Action Network (BAN)
Submitted 30 September 2007

I. Introduction

The Basel Action Network (BAN) has been one of the leading non-governmental organizations (NGOs) focused on solving the global shipbreaking crisis and promoting environmental justice in waste management. We have been active on this issue globally since our inception in 1997 and have tracked the issue closely for many years at the Basel Convention, the International Maritime Organization, the European Unions and in the United States.

BAN welcomes the Green Paper on Better Ship Dismantling (Green Paper) while believing that it does not, as yet go far enough in assuming a global leadership role and pressing for the needed proactive reform on what has been a glaring lapse in sustainability and justice in international ship recycling, fostered too long by governments that have been cowed by a powerful shipping industry. We look forward to a (White Paper) prescribing more aggressive and urgent specific measures to begin to solve the crisis in a manner consistent with established principles and international law -- not only for the European Union but for the world.

Shipbreaking: An Environmental, Social and Economic Failure

Shipbreaking as it is practiced today by the shipping industry and for the last twenty years, is a classic policy failure in all aspects of the “triple bottom line” -- of social, environmental and economic yardsticks. Its current “profitability” is maintained solely due to a sanctioned and institutionalized gross cost externalization, where the polluter has all-too conveniently not had to pay and the very real human and environmental price is rather paid, by virtue of unfettered free markets, by those too politically or financially weak to be able to ever present the bill. Thus, the trade in toxic ships to developing countries for hazardous waste “management” must be seen not only as an affront to morality, human rights and the environment, but also as an affront to sound and efficient economics, as ship owners are given carte blanche to ride the waves of economic distortion provided by ease of externalization via globalization. In this game of avoidance, the true environmental and social costs fail to be recorded on the ledgers but are rather recorded in the scandal sheet snapshots of the contaminated beaches and dead and dying workers in India or Bangladesh.

EU must Uphold Established Principles Embodied in the Basel Convention

The Basel Convention was created in large part to prevent this form of cost externalization, this exploitation of weaker economies and workforces, this disproportionate burdening of desperate workers with harm. It called for producer responsibility and national self-sufficiency in hazardous waste management universally and in 1995 the Convention passed a global export ban (Basel Ban Amendment) for the OECD/EU/Liechtenstein group on the export of hazardous waste of all kinds for any reason to insure that national self sufficiency is first practiced by the rich developed countries. The European Union to their great credit not only took leadership in passing the Basel Ban but moreover was quick to implement it through the Waste Shipment Regulation.

Due to the constant mobility of ships and the disassociation of flag states (i.e. flags of convenience) with ownership or economic beneficiaries, it is well understood that neither the Basel Convention nor the Waste Shipment Regulation (WSR) is well suited to regulate ships that might seek to circumvent the Basel or WSR controls and bans. Nevertheless it is absolutely vital that the EU, in its shipbreaking policy does not retreat from the principles of the Basel Convention and the Waste Shipment Regulation simply because ships are more difficult to regulate as hazardous waste than is their cargo. Rather they must move aggressively to plug the loopholes rather than institutionalize them.

EU Must Assume Global Leadership Role in Shipbreaking Reform

Just as the EU has been the backbone upholding the Basel Convention and the Basel Ban Amendment to date globally, the EU must assume a global leadership role in upholding established principle and develop policy that not only is consistent with the Waste Shipment Regulation for ships, but works to create that level playing field of responsibility worldwide.

Unfortunately the EU is already stepping away from established principles embodied in the Basel Convention and Waste Shipment Regulation in their negotiations at the International Maritime Organization as that body deliberates on a new Convention on Ship Recycling (IMO Convention). While the Basel Convention Parties, the European Council, and the Environment Commissioner Dimas have repeatedly called for an “equivalent level of control” to be established in the IMO Convention, so far the EU has failed to aggressively take action to ensure such equivalency and the shipping industry dominated IMO has forged ahead with a regime which by design, places responsibility away from ship-owners or states with jurisdiction over ship-owners and instead has placed the few responsibilities currently obligated under the new regime on flag states (e.g. flags of convenience) and on recycling states. Both of these groups of states have little incentive to provide diligent regulation as both are current economic beneficiaries of the unaccountable status quo.

It is clear that if the EU does not step forward to uphold international principles, we will witness a dramatic turning back of the clock in an age where environmental issues need far more rigor and not less.

EU Must Assert Its Own Principles at the International Maritime Organization

The IMO Convention now being negotiated utterly fails in the first instance to minimize the transboundary movements of hazardous wastes on board ships, and to prevent their disproportionate burdening of such harm on weaker economies, communities and laborers. It is devoid of the basic principles now well established in international law and policy including the precautionary principle, the substitution principle, the polluter pays principle, the principle of environmental justice, the principle of producer responsibility, the principle of common but differentiated responsibility, the principle of corporate social responsibility etc.

Further, the convention has not aimed for an “equivalent level of control” of that of the Basel Convention and has fallen woefully short of that expectation by any real yardstick. Indeed, even under its own inadequate terms, the convention lacks control procedures, lacks enforcement teeth and is to be governed by entities (shipbreaking states and flag states) that have already demonstrated a lack of willingness to be accountable or to reform the status quo.

It is therefore incumbent on the EU, not only to prescribe interim measures to be taken prior to entry into force of the IMO Convention, and to prescribe unilateral measures for the EU, it is essential that the EU member states demand in the remaining months of negotiation an “equivalent level of control” or greater than that of their own Waste Shipment Regulation in the new IMO Convention. To fail to do so is to undermine one’s own legislation and policy.

The fact that the IMO effort which is now very close to completion, and has been allowed to so dramatically depart from established principle, utterly failing so far to come close to providing an “equivalent level of control” to that of the Basel Convention, is alarming and clearly due to the outsized power of the shipping industry in shaping national policy.

Already the IMO negotiations have made it abundantly clear that the shipping industry has thrown its considerable political and financial weight within European capitals (e.g. Germany, Greece, Malta, Norway), and will likewise press the same weight in Brussels and beyond in order to prevent reforms in global shipbreaking practices. Instead the shipping industry seeks policies that “greenwash” the problem while maintaining the very lucrative current practice of exploiting weaker economies and desperate labor forces for managing a ship at the end of its life.

While it is certain that this Green Paper, which in our view does not go far enough in its call for reform, will be attacked and attempts made to water its down, it is vital that such industry influence be resisted as the EU is the world’s last real hope for a principled and adequate solution to the crisis.

EU: Special Moral Responsibility for Preventing Transfer of Harm to Developing Countries

The EU bears a great moral responsibility in this regard due to their role in the single-hulled oil tanker phase-out and due to their role and promises made during last year’s waste dumping scandal in Cote d’Ivoire. Indeed it is largely due to European Union action following the Erika and Prestige oil spill disasters that over 2,000 single hulled oil tankers are now slated for global phase-out within the next five to ten years. Those phase-outs however were unfortunately not accompanied by legislative mechanisms or assurances to see that the global phase-out done in the name of protecting the European environment would not translate to a convoy of toxic waste ships dumped on the beaches of South Asia, devastating the environment there and more disturbing, leading to the deaths of thousands of workers through accidents or occupational disease. EU special responsibility to seek remedy to avoid this horrific outcome was recognized at the outset of the speech given by Environment Commissioner Dimas on April 25th 2006.

Further in the Autumn of 2006, the European Union found itself in the throes of one of the world’s most tragic cases of toxic waste dumping when the European based Trafigura company was implicated in the export from the Netherlands of oily slops waste off-loaded from the vessel Probo Koala and subsequently reloaded in Amsterdam and dumped in the waysides of Abidjan in the Ivory Coast. The export ended up killing ten persons and causing massive sickness, soil and water contamination, and astronomical clean-up costs. Following that case Environment Commissioner Dimas warned that “European governments need to be more aware of what is happening in their harbors and on their ships,” and he stated that he would “seek ways and means to reinforce the existing waste shipment regulation and its implementation by the member states” promising to put forward a proposal to “criminalize certain environmentally damaging practices such as the one perpetrated”.

While the infamous Probo Koala case is known to have caused at least 10 deaths, it is likely that less dramatic, but no less deadly impacts, will be felt from the massive amounts of asbestos, PCBs and other toxic substances found on board vessels flying a European flag, leaving European ports or under European ownership on a regular basis. It is incumbent therefore on the European Union to live up to the expectations of preventing future scandalous hazardous waste exports in violation of the letter or the spirit of the Waste Shipment Regulation and the Basel Ban Amendment and take urgent action to avoid the slow-motion Probo Koala’s playing out in South Asia each day.

EU Must Take Immediate Independent Action

It is abundantly clear that the IMO Convention, written largely by the industry profiting considerably from the problems currently faced will prove to provide far too little too late. If the IMO Convention does not achieve an “equivalent level of control” to that of the Basel Convention/WSR, then the EU will be morally, if not legally obliged to utilize and improve the more rigorous regime and reject the weaker. Further, unilateral action now is not only morally necessary but such action is likely to be the only pressure that will succeed in ensuring that the IMO regime is eventually strengthened from its current ineffectual state.

Apart from the glaring inadequacies summarized above, in any event, it is unlikely that the IMO Convention will be in place in time to address the single-hulled tanker crisis. It will likely not be in force until around 2015, and even then there is little guarantee that key countries such as current shipbreaking states will ratify it.

Finally, it must be borne in mind that not only for the intervening years but after the entry into force of the IMO Convention, should the EU choose to ratify it, and should the Basel Convention give it exclusive competence over ships as waste, there will still be a need to maintain a dual regime, for example for warships and for smaller vessels not covered by the IMO Convention. As stated in the Green Paper, the EU itself currently possesses 100 government owned Naval vessels and these ships are not going to be covered by the IMO Convention.

The EU therefore must avoid the temptation to “sit on their hands” and await a “solution” at the IMO. They should strive diligently to achieve a meaningful IMO Convention with an equivalent or better level of control to the Basel Convention -- but the EU must not be so na├»ve as to assume that outcome as being probable.

The shortcomings of the status quo and IMO Convention therefore need to be addressed permanently in the EU arena and addressed immediately. BAN makes the following specific recommendations in this regard:


II. Specific Recommendations

1. Improve and Provide Guidance for Enforcement of the Waste Shipment Regulation for Ships: Now that the European courts have asserted that ships are waste and subject to the Waste Shipment Regulation in the case of the Clemenceau, Riky, Otapan, and others, it is clear that member states need far better guidance and perhaps amendments to the waste shipment regulation to allow proper implementation. It is unacceptable to allow the type of uncertainty and half-hazard implementation as occurs currently to continue.
a. Guidance Document
One of the first and most immediate steps to be taken, perhaps in the Waste Shipment Regulation Correspondence Group, is to provide member states with a guidance document on how to better implement the intent of the Waste Shipment Regulation and the Basel Convention in the case of ships. Much as the Correspondent’s Group for the WSR made the issue of exports of post-consumer electronic waste (WEEE) more easily implemented and enforced through the establishment of Guidelines, similar guidance needs to be produced to help Member States better implement the regulation and to deal with the nuances of post-consumer ship waste – with an aim to close some of the identified loopholes for ships and ensure consistent EU wide application. That Guidance must include criteria for determining:
1. What is an “Exporting State”. The concept of exporting state must clearly involve not only flag state but be include port state and state with jurisdiction over the owner. This may involve registry of European shipowners, and pre-determination mechanisms for assuming ships of a certain age to be waste. Indeed a hierarchy of exporting state should be established where first the port state is the determiner, then the state with jurisdiction of over the owner and thirdly, flag state.
2. When a ship is “Intended to be discarded” (i.e. Destined for breaking yards) and therefore a waste. What evidence is needed to determine when a ship becomes a waste? What evidence (e.g. affidavit, proof of insurance, etc.) should be provided by an owner to assure competent authorities that a ship will not in fact be broken when evidence exists to the contrary?
3. Whether export of substances like asbestos and PCBs should ever be considered an export for “recycling” rather than final disposal despite greater proportions of recyclable steel.

b. Development of New Enforcement / Legislative Mechanisms
It is very likely that new mechanisms will need to be developed and put in place to prevent circumvention of the WSR. These are likely to include:
1. Mechanisms to pre-determine a ship as waste. A predetermination of a ship as a waste can be applied to ships of a certain age and then all departures from European ports will need to notify export for breaking. BAN has produced a paper that explores possible workable mechanisms for this. This paper can be found at: http://www.ban.org/Library/BAN_Submission_shipbreaking_jan04.pdf
2. Mechanisms to prevent re-flagging or re-registration of owners to avoid the waste shipment regulation. Many ships are registered and flagged by EU member states. It must not be possible for these ships to be readily re-flagged to avoid the WSR. Mechanisms to prevent this such as prohibiting this practice after a certain age, or after their phase-out has been ordered, must be explored to avoid a massive flagging out. Likewiser beneficial owners must not be allowed to easily shift their offices outside of the EU.
4. Mechanisms that can be put in place to assure prosecution and/or return to sender if the WSR is violated. It must be possible to recall ships exported illegally like the SS Norway and Riky.
c. Amendments to be considered to Waste Shipment Regulation
Following an examination of the issues in the development of the guidance documents discussed above, it will likely be necessary to make some of the reforms needed to close the loopholes for ships -- legally binding. The Commission must be prepared to develop and table such new legislation.

2. Pre-Cleaning Necessary Prior to Export to Developing / non-EFTA countries: As the Waste Shipment Regulation including the export bans found in Articles 34 and 36 are to be implemented fully for EU ships (those leaving an EU port state, those owned by owner in EU state, and those flying EU flag), it must be assured that a thorough pre-cleaning of all hazardous substances takes place prior to onward transit to non-OECD countries. If it is determined that export of ships bearing non-recyclable wastes such as asbestos and PCBs as was determined by the Dutch courts in the case of the Otapan, constitutes export for final disposal, then pre-cleaning will also be a necessity even for exports to OECD countries such as Turkey, Mexico or the USA. Such pre-cleaning will open up the possibility for onward breaking in environmentally sound Asian destinations or elsewhere and thus alleviate some of the lack of capacity in the EU for full shipbreaking facilities. This will be useful also in providing avenues for getting clean secondary steel to Asian destinations where its demand is high and jobs are wanting.
Therefore the toxic waste remediation businesses capable of safely removing PCBs, toxic paints, asbestos etc. need to be identified and a Pre-Cleaning Guidance document developed. Any ship recycling fund created (see below) can be applied for paying for this phase of ship breaking – remediation/pre-cleaning. Some ships may need to be towed following pre-cleaning due to the presence of asbestos in the engine room and in some vital structures. But many ships such as WWII vintage warships will need to be towed in any event due to their condition. The repeated statement by the shipping industry that pre-cleaning prior to export is not feasible is belied by the facts. It is rather a matter of “how clean is clean” and costs. Currently ships are pre-cleaned to a high standard prior to artificial reefing programs such as is done in Canada. Further, many businesses have approached BAN about the future desire to model their businesses around a future of OECD pre-cleaning mandates.
However, the best time for pre-cleaning is likely to be during the useful life of the ship during maintenance and repair stops. Credit from the Ship Recycling Fund (discussed below) can be used for this practice and perhaps at a special rate to encourage life-time pre-cleaning. In this way engine rooms can be cleaned of asbestos and thus after it is ready for dismantling it can sail under its own power to any destination.

3. Fund based on Polluter Pays / Individual Producer Responsibility Principles: Legislation in keeping with the principles of producer-pays and producer responsibility, creating a ship environmental fund is essential in order to internalize costs currently borne by the environment and the health of those in developing countries. It is also necessary to avoid costs being externalized in other ways, such as “loss at sea” or ship abandonment or disappearances should the EU begin to ramp up enforcement at home without setting aside funds already determined to manage costs at end-of-life.
Further, the fund, if created intelligently, can become a market driver for toxic free ship design and ships designed for ready recycling. It can only accomplish this very worthy goal if it is created to prescribe individual responsibility of ship owners and not collective responsibility so that a competitive advantage can be gained by those with less toxic, better designed vessels. That is, a ship that is non-hazardous from the beginning or has had its hazardous substances remediated, will not subsequently entail a requirement on the part of the owner to pay so much into the fund as the remediation costs will be eliminated through upstream preventative measures.
There are many options for creating such a market-based incentive for cost internalization, but perhaps what might work best is for the EU to require that any ship using its ports must possess “ship life insurance” which would recover the costs of scrapping and any pre-cleaning in an environmentally sound manner. Through annual life insurance premiums based on the current hazardous waste inventory (IMO Convention’s so called “green passport”), and the certificate of life-insurance, both of which would permit the ship to enter EU ports, funds can be set aside for the eventual pre-cleaning and dismantling. Per ship type, and the hazardous substances carried, an estimate would be made of the required funds (and annual premiums to be paid) on the basis of the estimated pre-cleaning and scrapping costs involved in a certified green shipbreaking yard. The pre-cleaning and shipbreaking costs should be paid by the ship-owner, but could be refunded out of the fund, on submission of proof (e.g. a certificate) of clean scrapping or pre-cleaning.
While this mechanism may sound complicated, it will require some level of complicated legislation to reign in and internalize the costs of what to this point has been an industry unaccountable and out of control. Certainly the experience of the WEEE directive and the end-of-life vehicles take-back legislation will allow past mistakes to be avoided.

4. The EU Must Establish a Certification System for Green Shipbreaking/Pre-Cleaning: The EU should take the global lead and establish a third-party audited certification system for Green Shipbreaking based on the IMO, ILO and Basel Technical Guidelines. This system will be linked to the fund above but will set the global standard by which all facilities world-wide can be assessed. The fund above will pay the costs of running this program. It is essential that his system not simply endorse the status quo but require global improvement at the outset.
For example a principle of “double containment” already required for land-based hazardous waste remediation facilities should be required of any shipbreaking yard currently managing hazardous wastes. Double containment would preclude operating shipbreaking operations involving hazardous paints or PCBs or asbestos over water. Rather the containment provided by the hull of the ship must be augmented with an impermeable barrier to soil or water (e.g. cement floor). In practice this means moving the ship out of the water into a barrier area with collection possible for accidental or incidental releases of paints, and particulates.

5. Developing and Subsidizing Green Shibreaking/Pre-Cleaning: Based on the obligation of national responsibility for waste management embodied in the Basel Convention -- “ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous and other wastes, that shall be located, to the extent possible, within it…” (Article 4, 2, b), it is fully justifiable to utilize state aid for establishing such capacity (e.g. for Shipbreaking and Pre-cleaning). This is particularly true due to the fact that EU policies and EU government ships are a significant cause of the capacity shortfall (phase-out of single-hulled tankers). A subsidy is further justified, at least prior to establishment of the ship-recycling fund, as the competitive disadvantage of environmentally unsound yards have made it impossible to develop green capacity in the private sector in the EU. It is clear and compelling therefore that the EU must act at once to ensure such green yards to comply with their legal and moral obligations. Such structural assistance will also provide jobs, and new opportunities for the EU economy such as the opportunity to break non-EU ships (e.g. from Russia, Japan, Australia, Canada etc.) and other structures such as oil platforms.

6. Aid to Shipbreaking in Developed Countries to be De-Linked from EU Shipbreaking Strategy:
As noted above, it is an obligation of the European Union under international law to ensure adequate capacity for pre-cleaning and shipbreaking. It also makes good business sense for them to do so.
Improving the yards in non-OECD countries on the other hand should be seen as a separate effort with a separate motivation – as developmental aid to those countries wishing it. It should not be seen as an avenue to avoid responsibility for upholding EU obligations under the Basel Convention and WSR.
It is unacceptable to take a stance that export of hazardous waste can be seen as a means to provide developing countries with sustainable development or jobs. Such jobs are not sustainable if all externalities are accounted for in the greater context of the infrastructure and capacity of developing countries to manage hazardous waste. Indeed if providing sustainable jobs was the goal there are other far more clean and profitable enterprises to promote in developing countries.
The fact is that it is an absolutely unrealistic expectation that shipbreaking yards in developing countries will be able in the foreseeable future to prevent cost externalization from the pollution inherent in ships and operate in an environmentally sound manner. Even if by some miracle a brand new yard could be established in a developing country with state-of-art technology, the infrastructural context of that technology that is necessary to ensure that it functions with adequate protections and safety-net will not be so easily transferred as part of any capacity building exercise.
For example, what guarantees are possible that enforcement and monitoring of the technology and compliance with national laws will be assured? What guarantees are possible that workers have the right to assemble, to bargain collectively for better conditions, and have access to independent occupational health clinics. What guarantees are there that the tort law is such that victims of occupational disease or injury can be adequately compensated? What assurances are there that the emergency response and medical infrastructure in a community can come to the aid of workers? What guarantees are there downstream from the technology the waste management infrastructure is adequate to prevent further contamination and exposure to workers from toxic paints, asbestos, PCBs etc? There is no way to guarantee these things. And even if such guarantees were possible, the export of the world’s ships to developing countries still would violate the principle of environmental justice – which does not accept a people or community receiving a disproportionate burden of harm simply because they exist in a lower wage community. It is for this reason absolutely inappropriate to simply look at the technology of the shipbreaking facilities as being determining factors and to expect developing countries alone to solve the problem of global waste management in any sector.
For these reasons, efforts to improve the situation in developing countries must be seen as urgent short-term measures designed to prevent the most egregious abuses and unnecessary suffering, based on developmental aid policies and not as a solution for the EU ship capacity issue. Capacity building for shipbreaking in Asia or other locations should largely be de-linked from the EU shipbreaking strategy and such efforts should be spearheaded out of the Directorate-General on Development and not out of the environment Directorate-General.
However if a large pre-cleaning and towing trade develops, it will be incumbent on the EU to ensure that while the ships delivered are toxics-free, they are still managed in a manner not likely to be injurious to the health and safety of workers. For example, aid may involve installation of cranes and other safety equipment and training to avoid manual lifting and handling of the broken ships and parts.

7. Green Shipbuilding to be Mandated: Clearly the ultimate solution to preventing harm from toxic substances at a ships end-of-life is to eliminate their deployment at “beginning-of-life”. Due to the weakness of the draft IMO Convention on the issue of greening the design of ships and reducing toxic inputs(i.e. only banning already banned substances!), it is vital that the EU take up this matter unilaterally through legislation. Much as they have done in the electronics Industry through the ROHS Directive (Restrictions on Hazardous Substances), a list of unacceptable compounds in ships needs to be drawn up with a mechanism for adding additional substances through implementation of the Substitution Principle. As is in the ROHS directive, any ship sold to a European ship-owner and that wishes to operate in European waters must have a certificate on board certifying that the ship, if built after a certain date, is clean of the “red” listed material.

8. Continued Subsidies for Shipping Industry must be Linked to Using Green Shipbreaking/Pre-Cleaning: All community funding and support mechanisms for the shipping industry and state aids for maritime transport should be made dependent on the beneficiary's use of clean and safe dismantling facilities in the EU for all ships under its control (flag, jurisdiction of over owner, port).

III. Questions Posed by Commission for Public Consultation

How can the enforcement of current Community law (Waste Shipment Regulation) affecting end-of-life ships be improved?
See Part 1 above.
What is the best mix of measures to divert EU-flagged or EU-owned vessels to dismantling sites with high environmental and safety standards?
See Parts 1,2,3,4,5,7,8 above.
Would guidance on waste shipment rules and definitions on end-of-life ships help to improve implementation of rules and business practices, and what form should it take?
See Part 1 above.
What is the best way of steering the current negotiations on the IMO Ship Recycling Convention in order to improve ship dismantling practices globally?
The EU must insist as has been agreed at the Basel Convention and in the Environment Council decisions, that the IMO Convention achieves an “equivalent level of control” as that of the Basel Convention. The EU member states must be far more aggressive in demanding this in the IMO negotiations. Efforts there to date have been watered down by aggressive industry lobbies via Maritime Ministry influence. It is likely however that the only way the IMO will be sufficiently moved to even approach achieving an equivalent level of control as that of the Basel Convention is by the EU moving independently to create higher standards in Europe and continuing to aggressively uphold the Waste Shipment Regulation application to ships. Further, the EU must demand that third party auditing and certifying of all facilities, national legislation and enforcement mechanisms and downstream waste management facilities are meeting high standards ensuring environmentally sound management.
See also introductory points made in this document above.
Should the EU aim at global environmental and safety standards under the IMO Convention that are comparable with EU standards?
Yes. To do otherwise is to create double standards and perpetuate environmental injustice. We cannot accept this particularly when the EU has largely created the surplus of ships needed to be disposed by actions taken to protect its own environment. This cannot translate into harm to the environment or health of others.
See also introductory points made above and Parts 4, 5, and 7 above.
Should the EU become a party to the Ship Recycling Convention in order to achieve more ambitious and coherent environment and safety standards on ship dismantling?
Unless and until the IMO establishes a Convention with at least an “equivalent level of control” as that of the Basel Convention and the Basel Ban Amendment, in letter or in spirit, then the EU and member states should not become a Party. To do so would be to turn back the clock and weaken global norms for environmental justice and prevention of the transboundary movement of hazardous wastes. In any event the EU should not relinquish their requirements for military ships and other ships not covered under the Convention.
How can the EU best ensure that European ships are dismantled in a safe and environmentally sound way during the interim period before the IMO Convention becomes effective? What about ships owned by the public sector? Will national strategies and voluntary commitments by ship-owners be sufficient? What additional measures would be needed at EU level?
The question presumes the IMO Convention will be effective. There is no evidence to that effect to date and already the drafting of the Convention is almost completed. The EU must act with a sense of urgency, regardless of the outcome of the IMO Convention. National strategies and volunteerism is not enough. See all our points above in regard to EU actions needed.
Should the EU and its Member States take an active role in increasing the EU's own ship recycling capacity? Should state aids and EU funds be used to help increase capacity and how?
Yes. See Parts 2, 3,4,5,8 above.
What measures and actions should the EU take to encourage South Asian states to introduce and implement higher environmental and safety standards for ship dismantling.
The greatest incentive for improvements in conditions of South Asian yards will be the re-direction of ships away from such yards that do not meet the global standard. If Asian yards wish to compete it should be on the basis of high standards, and not the lowest common denominator. It is not the job of the European Union to improve distant yards for the sake of EU ships or ships under EU control. In some instances, there is reason to urgently improve these yards for humanitarian and environmental reasons in countries lacking the capacity to do so. However, it must be understood also that the countries of India and China have considerable resources to improve their own yards and protect their own environments and population. It must be understood that for these countries it is a lack of will, not means. Rather the EU has to consider its own legal and moral obligations to provide its own hazardous waste management capacity for all sectors. The Basel Convention obligations require national self-sufficiency in hazardous waste management. Any aid to improve the yards must be de-linked from any notion that the EU will pursue a policy therefore of sending its own ships (from port states, flag states, states with jurisdiction over owner) to Asia.
See Part 6 above
What measures and actions should the EU take to encourage ship-owners to direct end-of-life ships to dismantling sites with high environmental and safety standards?
Establish a fund wherein ships when entering EU ports pay a fee which will be refunded when they utilize European Shipbreaking yards. At the same time enforce the Waste Shipment Regulation.
See Parts 1,2,3,4,5,7,8 above.
How should the EU secure sustainable funding for clean ship dismantling in accordance with the polluter pays principle, and what measures and actions should it take?
See Part 3 above.
Anonymous said…
History of the SS France, SS Norway, BLUE LADY:

* May 17-22, 2003: Ayman Al-Zawahiri ("Al-Qaeda's No.2") explicitly threatens NORWAY in an audio tape.
* May 22-25, 2003: Country of NORWAY shuts down consulates, embassies, evacuates civilians, and heightens military security and threat levels.
* May 25, 2003: Mysterious "Boiler Explosion" on an unspecified CRUISE SHIP in the port of MIAMI
* May 27-29, 2003: Reports indicate the SS NORWAY, flagship of NORWEGIAN Cruise Lines had a major fire and calamity the prior weekend.
* May 29, 2003: ... with a crew of 911, 4 killed, 9 additional injured, passengers distraught, "may never sail again"
* Sep 11, 2007: Indian Supreme Court rules illegally that smuggled cruise ship may be broken despite blatant policy violations.
Anonymous said…
*Gujarat to concentrate on shipbuilding*

October 01, 2007 a
Indian Express

Ahmedabad, September 30

From running the largest shipbreaking yard in the world, Gujarat may soon vie for its share in the rapidly growing shipmaking industry in the world.
Gujarat Maritime Board (GMB) has signed as many as 31 MoUs worth Rs 12,948 crore with various Indian firms to develop shipbuilding industry in the state.

Also, Korean Maritime Consultancy (KOMAC) is likely to to collaborate with Jindal Shipyard Ltd. to set up a shipyard in Dahej.

The MoUs were signed during the two-day international seminar at Science City.

Addressing the media after the seminar on Sunday, Gujarat Minister for Industries Anil Patel said "in principle" approval has been granted to 15 proposals for shipbuilding yards amounting to Rs 7,033 crore.

Three expressions of interest amounting to Rs 2,300 crore have been received from Goodearth Maritime Ltd, ABG Shipyard Ltd and L&T Infrastructure Development projects Ltd to develop shipbuilding yards at Jakhau,
Jodia-Navlakhi and Kachchigadh Shivrajpur respectively.

Twelve more MOUs amounting to Rs 3,515 crore were also signed on Sunday for projects like Shipbuilding yard, RO-RO service, off- shore-related port
facilities, ship simulators, etc. apart from a Rs 100 crore agreement signed for VTPMS project in Gulf of Cambay, the Minister added.

The Minister also pointed out that the framework of a draft policy for
shipbuilding in the state, too, was worked out at the seminar.

"Our aim is to set up shipyards in Gujarat on Cluster concept," said Patel, adding that GMB intends to set up 100 shipyards along Gujarat coastline by 2020.

Dwelling upon the highlights of the draft shipbuilding policy, the minister said while the state government is looking at setting up shipbuilding parks across the coastline, it would also grant SEZ status to these parks.

Shipbuilding activities will be given industry status, helping the ship builders reap the benefits of other industries, Patel added.

He further pointed out that GMB will invite private players to set up at least 10 to 15 shipyards in each cluster through open bidding.

GMB will also be open to partnership with private parties with a maximum of 49 per cent stake where it will provide the anciliary support and the operations will be handled by the private party, Patel added.

Korean Maritime Consultancy (KOMAC) Chairman Dr Dong Shik Shin pointed out that a well-drafted masterplan and single window clearance would go a long way in facilitating the shipbuilding industry in the state. His firm will soon collaborate with Jindal Shipyard Ltd. to set up a shipyard in Dahej.
http://www.indianexpress.com/printerFriendly/223017.html

--
Blue Norway said…
there were actually 19 injured, another 11 minor injuries reported, and http://BlueNorway.Org has been updated ;)
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