India, a victim of waste colonialism
It all began with a Boiler Explosion on toxics laden ship named SS Norway, owned by multinational company Norwegian Cruise Lines (NCL) of Star Cruise Ltd at Miami, US in 2003 that made it a dead ship. Thereafter it came to German port of Bremerhaven. It may be noted that the owner of the ship was indicted of Environmental Crime by US Justice Department. Newly discovered evidence confirm that as far back as 2004, the owners of the SS Norway had decided to dispose of the vessel but it misled German authorities by declaring that the vessel was going to Asia for re-use. The departure of the SS Norway (now SS Blue Lady, ex SS France) from the port of Bremerhaven, Germany on May 23, 2005, triggered a continuing criminal offense that persists to this day.
Under the Basel Convention and its Basel Ban Amendment, and European Union law, Germany is prohibited from disposing of the SS Norway by exporting it to any country outside of the European Union and to country not members of the Organization for Economic Cooperation and Development, 30 of the most industrialized nations in the world, without decontaminating the vessel of all the toxic wastes onboard.
The ship left the German port and came to Malaysia for refurbishment and conversion into a hotel or training ship. On 5th May, 2006, the ship left Malaysia for Dubai by informing the Malaysian authorities that it is going for repairs. In January 2006, the ship was sold to Bridgend Shipping Ltd, Monorovia, Liberia at a price of 10 Dollars. It was at this stage that the ship was once again renamed SS Blue Lady. After after Bangladesh refused entry to this ship in February, 2006, Hariyana Ship Demolitions Pvt Ltd bought the ship from Bridgend Shipping Ltd and started moving towards Indian territorial waters without permission when the matter was brought to the notice of the apex court it sought anchorage permission through Prodipto Ghosh, the then Union Environment Secretary on humanitarian grounds in May 2006. The court gave the permission on 5th June, 2006with no equity on the owners but the ship vanished for 25 days and came back to anchor 30 June, 2006. Subsequently, although the permission was only for anchoring, Ghosh in consultation with Gopal Subramaniam, Additional Solicitor General allowed the ship to beach on 15th August, 2006. Thereafter, the Technical Experts Committee headed by Ghosh started arguing that beaching is an irreversible process in its final report submitted to the Court on 30th August 2006.
Curiously, the final report of the Committee headed by Ghosh did not disclose to the court that on 31 July 2006, one Priya Blue Industries Pvt Ltd has written a letter to Gujarat Maritime Board (GMB) claiming itself to be “new buyers of the above vessel”. It may be noted that all earlier processes were based on the ownership claim of Hariyana Ship Demolitions Pvt Ltd, Priya Blue was never in picture; it is not made clear when it purchased the ship. No purchase document or proof of ownership of the ship has been presented till date.
Unmindful of these evident misleading and cunning machinations, the Supreme Court advanced “The concept of "balance" under the principle of proportionality applicable in the case of sustainable development…” and ruled that “It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship."
It is noteworthy that there were two judgments in this case dated 6 September 2007 and 11 September, 2007 in the Writ Petition (Civil) 657 of 1995 in the matter of Hazardous Wastes/Ship-breaking/Blue Lady. The Division Bench of Justice Dr. Arijit Pasayat and Justice S. H. Kapadia delivered both the orders. The same Bench was seized with Le Clemenceau case. The first order is a general order on the issue of ship-breaking. The second order is with specific reference to Blue Lady (SS Norway). This order gave a go ahead to dismantling of a asbestos and radioactive material laden ship named Blue Lady, which has been dumped in Indian waters.
September 6, 2007 order establishes that it is not in dispute that the entry of Blue Lady in Indian territorial waters and continued presence since June 2006 is in violation of Court’s order of 14th October, 2003, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Stockholm Convention on POPs and International Labour Organisation (ILO)'s Radiation Protection Convention, 1960. India is signatory to these international environmental and labour laws.
Exposing these mostly Bhojpuri and Oriya speaking causal and migrant workers and the villagers of Bhavnagar panchayats to all kinds of toxic exposures and threatening their source of livelihood i.e. fishing due to marine pollution has become a routine affair and a vulture story for the entire global and Indian media. By Government's own admission the underground water in Alang is heavily polluted, ship-breaking industry is known to have worse accident rate (2 workers per 1000) than the mining industry (0.34 per 1000) which is considered the worst in the world and 16 % of workers here are suffering asbestos related diseases.
The relevant part of the 11 September order refers to former Attorney General of UK saying, "In his Keynote Address, on 'Global Constitutionalism', reported in Stanford Law Review vol. 59 at p. 1155, Lord Goldsmith, Her Majesty's Attorney General (UK), stated that British Constitution though unwritten is based on three principles, namely, rule of law, commitment to fundamental freedoms and principle of proportionality. European Convention on Human Rights ("ECHR") also refers to the concept of balance."
Reading through the 21-page keynote address of Lord Goldsmith published in Stanford Law Review one came across the paragraph that has been referred to in the court order. It reads as follows:
"The third principle is that of proportionality. One of the key themes of the ECHR is the concept of balance. The Convention took its lead in this respect from the Universal Declaration of Human Rights—and in particular, article 29which expressly recognises the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others. Under the Convention some rights are absolute. They are so fundamental that there can be no compromise on them. We take the view that the prohibition on torture is simply nonnegotiable. I regard the right to a fair trial as another of those fundamentals. That is why we have rejected reducing the burden of proof for terrorism offences and allowing secret evidence in terrorism trials."
It is shocking to note that the speech in question is not at all relevant to the plight of workers, villagers, environment, ship-breaking industry, Steel or Hazardous Wastes Management. Therefore, it does not appear to be a convincing rationale for knowingly letting the most vulnerable workforce and communities suffer from asbestos exposure.
By order dated 11/9/2007 this Division Bench of the Hon’ble Supreme Court of India granted permission for the dismantling of the ship Blue Lady at Alang, Gujarat based on the submission by Gopal Subramaniam, Additional Solicitor General to the effect that the ship does not have any more radioactive material and beaching is irreversible.
Contrary to the recommendations of the Technical Experts Committee, Gujarat Pollution Control Board, Gujarat Enviro Protection and Infrastructure Ltd (GEPIL) and the Priya Blue Shipping Pvt Ltd, the petitioner pointed out to the Court that the ship contained radioactive substances at thousands of places. But in the order passed by the Hon’ble Supreme Court it is merely stated, “There was also an apprehension rightly expressed by the petitioner regarding radioactive material on board the vessel Blue Lady. Therefore, an immediate inspection of the said vessel beached at Alang since 16.8.2006 was undertaken by Atomic Energy Regulatory Board (AERB) and by Gujarat Maritime Board (GMB). The apprehension expressed by the petitioner was right. However, as the matter stands today, AERB and GMB have certified that the said vessel Blue Lady beached in Alang no more contains any radioactive material on board the ship”.
In this regard it may be pertinent to state that the petitioner had referred to a letter sent by one Mr Tom Haugen (who had been the Project Manager for Engineering, Delivery, Installation, Commissioning and later services and upgrades as regards Fire Detection Installation Systems on board the Blue Lady) stating therein that the fire detection system on the Blue Lady contained 5500 detection points and had 1100 radioactive elements, Americium 241. However, a perusal of the aforementioned report of the inspection undertaken on 14.8.2007 shows that the entire inspection of 16 floors of 315 meter long ship seems to have been completed within a period of 4 hours (a commendable task no doubt) and the report states that they could detect only 12 smoke detectors containing Americium 241. Having found these 12 smoke detectors containing radioactive materials, the report concludes that the ship “now, does not contain any radioactive material on board”.
No mention is made as regards the balance 1088 smoke detectors containing Americium 241. In a letter to the Prime Minister dated 19th September, 2007, Haugen has reiterated the fact about enormity of radioactive material on the ship given the fact that he himself supervised its installation.
The Court has been misled into going only on the aspect concerning asbestos and has accepted that 85 % of the asbestos is contained in the form of wall partitions, ceilings and the roofing in rooms and galleries and if removed without damaging them, they would be reusable. Firstly, no mention seems to have been made as regards the balance 15 % of the asbestos contained on the Blue Lady, which in itself would come to 186 MT of asbestos-the only assumption that one could draw from the same is that the removal of this 186 MT of asbestos is bound to cause asbestosis, Mesothelioma, Lung Cancer and other related illnesses.
The Court was misled by the ingenious arguments (curiously advanced by the Learned Additional Solicitor General) that “in the present case, the vessel does not contain single kilogram of asbestos and/or ACM as cargo”, though it had never been the stand of the petitioner that asbestos or Asbestos Containing Material (ACM) was being sought to be brought in as cargo.
It is interesting to note that in the observations/recommendations made in the 29th Report of the Committee on Petitions (14th Lok Sabha), dated 17.8.2007 it has been submitted that “the committee are extremely are concerned that the ship contains an estimated 1240 MT of ACM and about 10 MT of PCBs as inbuilt material and as a part of its structure. In case the asbestos fibers are inhaled or the PCBs are consumed by humans beings, the same may cause cancer unless proper precautions are taken for safe handling of these materials by the workers. The committee strongly deprecate the repeated stand taken by the ministry that since no hazardous waste have been allowed on boards as cargo, there is no violation of the Hon’ble Supreme Court directions. The Committee need not emphasize that hazardous waste whether as cargo or inbuilt material are equally detrimental to the environment and to the human health.” The Environment Ministry gave oral evidence before the Committee but did not disclose the radioactive content of the ship.
The petitioner brought to the notice of the Court that asbestos waste is banned in India and Asbestos is banned in some 45 countries and even World Trade Organisation has passed a verdict against it because of its carcinogenicity at every level of exposure. There is indisputable evidence that safe and controlled use of asbestos is impossible but the Additional Solicitor General misinformed the court about its safe use and re-use. Gopal Subramaniam, Additional Solicitor General, an opponent of Citizen's Right to Information argued that asbestos is safe for Indians. Therefore, compensation for asbestos victims is not possible. He justified Hazardous Waste
Dumping in India because asbestos waste in structure is not hazardous arguing that asbestos waste is banned in India but that applies to 'virgin' asbestos!! He misled the Court by persuading it to rely on an unreliable report of Prodipto Ghosh, Chairman Technical Experts Committee on Hazardous Wastes relating to Ship-breaking, which had submitted that there is no radioactive material on the ship. Subramaniam was compelled to partially admit the presence of radioactive material on Blue Lady but showed his characteristic disrespect for truth. Consequently, the court has not clarified whether ‘ban on asbestos waste’ rule has been violated and if not then where will it apply if not in this case.
Allen Todd Busch, Vice President & General Manager, Titan Salvage, a Crowley Company one of the largest and most respected salvage companies operating has written to the Prime Minister saying, “the primary reason the court has ruled in favor of breaking the vessel, in its current position, is because there is a belief that the vessel can not be removed from where it now rests. This is not the case. We have the capability and expertise to refloat the vessel. Please allow us to present to the Prime Minister and India’s Court our credentials, history and experience that there is actually very high probability that the BLUE LADY is not at all in an "irreversible" position, as the esteemed Court has found.” Also as per the Technical Report from Aaage Anderson (Memo on Refloating Blue Lady) who was involved in the Le Clemenceau case, the ship in question can be refloated.
The Court has not considered a very crucial contention raised by the petitioner with regard to “Prior Informed Consent” which has been accepted in the Rio Declaration, Basel Convention, Cartegena Protocol, Rotterdam Convention, Stockholm Convention etc-this principle has also been incorporated in Hazardous Wastes Rules 1989. As per the principle no member state can send hazardous waste to a developing country without its prior consent. Another important aspect raised by the petitioner has been given a complete go by namely, that a ship ought to be decontaminated prior to its export for dismantling (which view was expressed by the Hon’ble court in its earlier judgement of 14.10.2003 and reiterated in 6.9. 2007 order).
Apart from the above, the petitioner had also raised apprehension regarding the security aspect and the violations thereof with regard to the entry of the ship in the Indian territorial waters-that despite the ship purchaser having obtained an order permitting anchoring in Indian territorial waters on humanitarian grounds, the ship was taken to Dubai for 25 days and thereafter brought back to India. Despite the petitioner expressing his apprehensions regarding the implication of the above action as also bringing to the notice of the court a Naval Intelligence report that the mafia was involved in the ship-breaking activities in India and that the same coupled with the fact that the Blue Lady (despite allegedly being a ship which on dismantling would yield 41, 000 MT of Steel and provide employment to 700 workmen) was sold for a paltry sum of 10 dollars to the purchaser, no attention has been focused on this aspect.
Even as it was becoming clearer that the Blue Lady (SS Norway, SS France) can be sent back, the Additional Solicitor General misled the court into believing that since beaching is irreversible, Blue Lady cannot be sent back. The ship in question is in illegal traffic as per all relevant laws in the Rule Book. There is documentary proof that such ships are required certification for prior decontamination of the ship in the country of export. In the case of Blue Lady let alone decontaminating the ship as per the court’s order, it has till date not even been claimed that it has been decontaminated.
It is quite sad and disappointing that the Hon’ble Supreme Court has not dealt with the application filed by Bhagvatsinh Haluba Gohil, Sarpanch, Village Sosiya, Tehsil Talaja, and District Bhanvnagar on behalf of 30, 000 villagers and 12 panchayats of Bhavnagar district of Gujarat have filed the case through their heads of village councils (Sarpanch) in the Supreme Court. These villages are in the vicinity of Alang ship-breaking yard. They have sought directions asking the court to "direct that the ship named "Blue Lady" (SS Norway) be not allowed to be dismantled at the Alang Ship-breaking yard." The villagers have argued that "The dismantling of the ship would have hazardous effect on the residents of the villages near the Alang ship breaking yard as the ship contains large amount of asbestos which, when exposed is hazardous to the health of the residents living in the twelve villages."
An acclaimed scientist, a former Union Minister, Prof M.G.K. Menon, wrote to Chief Justice of India as Chairman, Supreme Court’s High Power Committee on Hazardous Wastes seeking compliance with Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal in Blue Lady matter and argued that it should be sent back to Malaysia or Germany from where it came without decontamination.
Following oral evidence from Ministry of Environment & Forests, Prabhunath Singh, Chairman, Parliamentary Petitions Committee deprecated the repeated stand taken by Environment Ministry on Blue Lady that since no hazardous wastes has been allowed on board as cargo, there is no violation of Supreme Court directions in a report to tabled in the Lok Sabha on 22 August, 2007 in response to a petition raised by Basudev Acharya, senior parliamentarian arguing that Blue Lady's entry in our territory violates India's sovereignty. Earlier Kalraj Mishra, Member, Parliamentary Committee on Industry had demanded that Blue Lady is 50 times more toxic than the French ship Le Clemenceau that was sent back, therefore, it should be sent back.
Dismantling of Blue Lady would set a very bad precedent for it seems contrary to established Prior Informed Consent Procedure given the fact that the court is yet to hear the application on the issue of asbestos exposure to these villagers in Alang, the scrapping of Riky and whether or not Blue Lady has complied with the Supreme Court order of 14th October, 2003 and September 6, 2007. In effect, Justice Arijit Pasayat has ruled that Contaminated Ships are banned but Blue Lady (SS Norway) is irreversible and Justice S H Kapadia implied that although Blue Lady beached illegally in Alang since beaching is irreversible so accept the fait accompli!
In any case hazardous and poisonous material does not become non-hazardous and non–poisonous because the Environment Ministry and Additional Solicitor General thinks so. While the verdict illustrates the priority the India’s apex court accords to human life and environment, it also exposes European position on ship-breaking and asbestos. Has European laws changed after toxic ship Le Clemenceu was recalled due to a verdict by French court?. Germany allowed violation of Basel Convention by permitting illegal traffic of Star Cruise's 45 years old ship.
Blue Lady story shows how hazardous industries, substances, wastes are being transferred to India in full public glare due to the connivance of Indian authorities who have compelled the highest court to decide matters on technical and humanitarian grounds rather than on legal basis. More specifically it is a case of ship owners successfully escaping exorbitant decontamination cost in Europe. It drives home a message as to how globalisation of waste takes place and how waste colonies are established both within the countries and across the countries to keep harmful materials away from the rich with the help of either indulgent or gullible government servants.