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)
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.