Both Le Clemenceau & SS Norway (Blue Lady) await dismantling permission
Supreme Court is due to hear the matter of SS Norway (Blue Lady)on 22nd January 2007. There are two clarification applications pending before the court in the wake of the September 6 and September 11, 2007 order by the Justice Arijit Pasayat and Justice S H Kapadia bench.
The Supreme Court had also directed Government of India to constitute a new Committee consisting of MoEF, GPCB, GMB, AERB that shall verify all the documents before ship is allowed for breaking. This committee is yet to be formed.
European and Norwegian silence in the matter especially in the aftermath of Le Clemenceau precedent is deafening.
On 7th January, 2008, UN delegates visited Alang and took pictures of SS Norway (Blue Lady) and proved both international and national media that had misreported that the ship has been dismantled wrong. Some 30 ships await permission from the apex court.
Also Le Clemenceau has not been dismantled yet. It might get permission until the end of 2008. In Brest, the French Defence Minister, Herve Morin, said that the choice of the industry would be known in one or two months, "no later than the end of February".
Perhaps Ms. Connie Hedegaard, Danish Minister for the Environment had a premonition of things to come when she wrote to the Indian Environment Minister in April, 2005.
She wrote, "The ship owners escaped Danish authorities, misleading Danish officials that had ordered the Kong Frederik IX to remain in Denmark until it had been decontaminated." The shipowners continue to violate rule of law as has become evident from the case of S S Norway and Le Clemenceau with impunity. But unlike Denmark, other countries like Norway and Germany have connived at the acts of omission of commission by the shipowners with India being callous towards environmental and occupational health of its citizens.
UNEP Meeting dwells on liability of shipowners
At the launch of the Global Programme for Sustainable Ship Recycling and a one-day seminar on 12-13 January 2008 in Dhaka, Bangladesh. It emerged that South Asian position was quite categorical in their demand for pre-cleaning of ships in the country of export. The South Asians also demanded a liability management plan from the shipowners. The delegates also visited Chittagong ship-breaking yard.
Civil Society walks out of IMO Workshop
Amid repeated references to Le Clemenceau, RIKY (Kong Frederik IX), SS Norway (Blue Lady, in the recent picture of January 2008) and their explicit acts of fraudulent documentation, the platform of labor, human rights, and environmental NGOs walked out of the International Maritime Organization's (IMO) workshop protesting against the lack of even an iota of sensitivity towards environment and workers issue in the ship-breaking industry. The workshop titled "IMO National Workshop on the development of the International Convention for the Safe and Environmentally Sound Recycling of Ships" happened during 7 – 10 January 2008.
IMO is developing a Convention providing globally applicable ship recycling regulations for international shipping and for recycling activities. Earlier, IMO had adopted Guidelines on Ship Recycling at the 23rd Assembly in November-December 2003.
At its 53rd session in July 2005, the Marine Environment Protection Committee (MEPC) agreed that the IMO should develop, as a high priority, a new instrument on recycling of ships with a view to providing legally binding and globally applicable ship recycling regulations for international shipping and for recycling facilities. MEPC 53 also agreed that the new IMO instrument on ship recycling should include regulations for the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound recycling, without compromising the safety and operational efficiency of ships; the operation of ship recycling facilities in a safe and environmentally sound manner; and the establishment of an appropriate enforcement mechanism for ship recycling (certification/reporting requirements). MEPC 53 further agreed that the above-mentioned instrument should be completed in time for its consideration and adoption in the biennium 2008-2009.
The IMO Assembly in November-December 2005 subsequently agreed that IMO should develop a new legally-binding instrument on ship recycling. The Assembly resolution A.981(24) New legally-binding instrument on Ship Recycling requests the Marine Environment Protection Committee to develop a new instrument that would provide regulations for:
- the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound recycling, without compromising the safety and operational efficiency of ships;
- the operation of ship recycling facilities in a safe and environmentally sound manner; and
- the establishment of an appropriate enforcement mechanism for ship recycling, incorporating certification and reporting requirements.
The interests of other stakeholders including the International Labor Organization, trade unions, the United Nation's Basel Convention, shipyard workers, green ship recyclers, and environmental and human rights organizations were deemed inappropriate.
The workshop did not have any presentation from any NGO or trade union. The contention of the Member Secretary, Gujarat Pollution Control Board (GPCB) saying that as per the recent Supreme Court order Decontamination Certificate is required after beaching. GPCB claimed that it has been entrusted the responsibility of occupational safety although it is ill equipped to deal with worker issue. The civil society representative was not allowed to voice environmental and workers' concerns.
The development of the IMO convention on ship recycling is progressing according to the work plan which foresees that the convention will be adopted by a diplomatic conference to be held possibly in Hong Kong in April 2009. Between now and the provisional date of the diplomatic conference there are only limited opportunities for further developing the draft convention and for resolving the numerous issues where agreement is still needed. The first such meeting is the 3rd Intersessional Working Group on Ship Recycling which is scheduled to be held from 21 to 25 January 2008.
The workshop attempted to argue that the draft treaty does not require that the shipping industry to ensure prior decontamination of toxic materials in the country of export. Under the influence of ship owners and ship owning countries like Norway, the workshop witnessed tough resistance to proposal of absolving ship owners to pay the bill for cleaning-up past contamination, improving the present situation or ensuring green shipbreaking capacity in the future. The workshop attempted to steer clear of well established "Polluter Pays Principle" although it was repeatedly raised by the Indian delegates. The ship recycling countries were being made to bear the financial burden of the entire industry in proposal.
The meeting has been dominated by shipping industry interests and the national shipping powers -- Norway, USA and Japan and others. There was an admission at the workshop that 90% of the documentation in the ship-breaking industry was fake and most of the certificates that relate to ship's ownership, workers and environmental safety are cooked.
Currently about 95% of the world's asbestos and PCB laden ships are scrapped by the world's poorest, most unprotected, and desperate workforce. That is immoral, and an affront to both human rights and the environment. But countries like Norway, leading the drafting of this Convention seem intent to perpetuate this disproportionate transfer of harm to the poor.
There is no mention of how radioactive materials will be dealt with in the convention. As it stands now, come in violation of major international norms and standards protecting Human Rights and the environment. These include in particular UN and ILO conventions protecting the right to a safe and healthy working environment and the Basel convention's control and even prohibition of certain toxic/ hazardous waste transfers
The findings made by a special 12-member Committee of Technical Experts, headed by Secretary, Ministry of Environment and Forests. The report by the generally conservative committee indicated that x-rays of workers show asbestosis disease in 16% of the workforce and an alarming rate of accidental death of 2 workers in 1000 per year. Asbestosis is a lung disease, which causes respiratory debilitation, and failure and can lead to lung cancer. There is no cure. This report has been accepted by the Supreme Court by its order dated 11 September, 2007. The matter is still sub judice. Meanwhile High Court Division of Bangladesh Supreme Court has also admitted a similar petition to set matters right over there.
Dr. Nikos Mikelis, Implementation Officer, Marine Environment Division, IMO who moderated the workshop was quite biased and he deemed the occupational health and local communities not germane to the issue of ship-breaking. Clearly, he acted as the mouthpiece of the shipowners.
Officially, the overall objective of the workshop was to gather and understand the views of Indian stakeholders on what is needed and on what are the difficulties for achieving sustainable and environmentally friendly ship recycling, bearing in mind economic, social, occupational health and environmental issues, as well as the recent directives of the Hon'ble Supreme Court of India and thereafter to input this understanding into the further development of IMO's draft Convention. Sadly, only commercial objectives were addressed, rest were ignored.
The presentation of papers at the workshop were from IMO Secretariat, Basel Convention Secretariat, ILO, India, etc at Maritime Training Institute, Shipping Corporation of India, Powai, Mumbai.
Given the admission of "cooking certificates" by shipowners at the workshop, it is not surprising to note that investigators suspect that the manager of Technopure, the company that carried out the first tranche of the Clemenceau asbestos between 2004 and 2005 in Toulon, has paid the head of the Ship Decommissioning Industries Corporation (SDIC), a subsidiary of Marine Eckhart to get this market through a network of false invoices.
Apart under investigation for "active corruption of a private person, forgery and use of forgeries", Jean-Claude Giannino, the manager of the company Technopure who has been involved in asbestos removal of the vessel, admitted having paid 185,000 euros Briac Beilvert, head of Parisian the SDIC (Ship Decommissioning Industries Corporation, a subsidiary of Marine Eckhart), a company under contract with the State for the dismantling and removal of asbestos from the ship. Briac Beilvert was placed under investigation for "receiving stolen from misuse of company assets, fraud and accepting bribes from private person" on July 13, 2007.
As per news reports dated 22/12/2007, the French Department of Defense is preparing to choose the company in charge of dismantling the old aircraft carrier, Le Clemenceau. Launched in Brest in 1960, Le Clémenceau has hit the headlines in recent years. The company responsible for its dismantling should be designated in the coming days.
The dilution of a principle
The Supreme Court judgment permitting the dismantling of Blue Lady reverses key milestones in environmental jurisprudence.
Blue Lady, which contains hazardous waste, at the Alang shipyard. Despite the clean chit given by the Supreme Court to the company that would dismantle the ship, core environmental concerns remain unaddressed.
Environmental law has given rise to a few sound principles, which have been adopted by courts in almost every country. The “precautionary principle” is one such legal maxim that has gained universal recognition ever since it was contained in the World Charter for Nature adopted by the United Nations General Assembly on October 28, 1982.
It is well articulated in Principle 15 of the 1992 Rio Declaration on Environment and Development. It states: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” The maxim places the onus on the party accused of causing damage to the environment to prove his or her innocence. The Supreme Court has accepted the principle in several cases as being part of Indian environmental law.
So, when the two-Judge Bench of the Supreme Court, comprising Justices Arijit Pasayat and S.H. Kapadia, permitted dismantling of the hazardous ship Blue Lady at Alang port in Gujarat on the basis of the same principle, it seemed as if the principle had been turned upside down. The September 11 judgment, written by Justice Kapadia, suggests that while applying the concept of “sustainable development”, one has to keep in mind the “principle of proportionality” based on the concept of balance. “It is an exercise in which we have to balance the priorities of development on one hand, and environmental protection on the other hand,” the Bench observed.
The Bench’s direction came while it disposed of an interlocutory application filed by Gopal Krishna (who represents the Ban Asbestos Network of India) in the public interest petition filed by the Research Foundation for Science Technology and Natural Resource Policy against the Union of India (1999) seeking effective implementation of the Hazardous Wastes (Management and Handling) Rules, 1989. In his application, Gopal Krishna sought a direction from the court to the authorities in the Blue Lady case to ensure compliance with the guidelines issued by the court for the ship-breaking industry in October 2003. The Pasayat-Kapadia Bench referred to the Supreme Court’s decision in the Vellore Citizens’ Welfare Forum v Union of India (1996) case, in which it was held that the precautionary principle and the polluter-pays principle govern the law in India, as is clear from Articles 47, 48-A and 51-A(g) of the Constitution, and that these concepts are implied in various environmental statutes, including the Environment (Protection) Act, 1986. Also, in the Vellore Citizens’ Welfare Forum case, the Supreme Court observed that these principles were accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of Indian law.
What is inexplicable, however, is the Pasayat-Kapadia Bench’s attempt to justify the dilution of the precautionary principle by using the “principle of proportionality” and the “concept of balance”. Environmental law, as it has evolved, does not recognise any such dilution. The Pasayat-Kapadia judgment does not reveal any such support to its thesis either in international law or in domestic law.
Even in the Narmada Bachao Andolan case (2000) in which the Supreme Court cleared the construction of the Sardar Sarovar Project, there was no enunciation of the concept of balance. It only sought to restrict the application of the precautionary principle to cases where the extent of ecological damage likely to occur owing to a development project is not known. “Merely because there will be a change is no reason to presume that there will be ecological disaster,” the Court concluded in that case. The Court held that if ecological effects are known, mitigative steps are to be taken to avert them; therefore, precautionary principle cannot apply in such cases.
The Pasayat-Kapadia judgment relies on the keynote address delivered by Lord Goldsmith, former Attorney General of the United Kingdom, on “Global Constitutionalism”, as reported in the Stanford Law Review (Vol.59, at p.1155). Goldsmith used the concept of balance, outlined in the lecture, to justify a law enacted in the United Kingdom in the wake of 9/11 to deal with foreign nationals who were thought to present a risk to national security, but could not be deported. The law provided for their detention if they would not leave voluntarily. Goldsmith argued that the Act was enacted keeping in mind the need to strike a balance between collective security and individual liberty, and it contained significant safeguards. Applying this principle to environmental law would be alien to the precautionary principle, which has held the ground all these years.
The Bench then referred to Justice Pasayat’s own judgment in the case of T.N. Godavarman Thirumalpad (K.M. Chinnappa) v Union of India and Ors in 2002, wherein he first propounded the concept of balance. The paragraph cited by Justice Kapadia is as follows: “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.”
In that case, the petitioners wanted the Court to restrain Kudremukh Iron Ore Company Limited from carrying out mining activity in the vicinity of the Kudremukh National Park. After a lengthy discussion about the merits of giving primacy to environmental concerns in any project, Justice Pasayat (who was a member of the three-Judge Bench then) observed: “The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach upon the said resources” (emphasis added).
Indeed, these are the only two paragraphs in that lengthy judgment that support the so-called concept of balance. The three-Judge Bench in that case allowed Kudremukh Iron Ore Company Limited to continue mining in the reserved area until 2005 in accordance with the recommendation of the Forest Advisory Committee, not on the ground of the concept of balance but on the plea that the committee was a statutory body and that the Court should not interfere with its advice to the government. In other words, Justice Pasayat’s observation in the case as carried in these paragraphs was an obiter dictum and was not relevant to the Bench’s decision.
In the Blue Lady case, the Bench articulated its principle in these words: “In an emergent economy, the principle of proportionality based on the concept of balance is important. It provides level playing field to different stakeholders. Ship-breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in.”
It further observed: “Even in the case of Blue Lady, the figures indicate that 700 workers would be employed in ship-breaking. Further, 41,000 MT [metric tonne] of steel would be made available. To that extent, there will be less pressure on mining activity elsewhere.” The Bench remarked that Amartya Sen gave importance to the concept of balance in his book Development as Freedom. However, a careful reading of the book shows that Sen does not even refer to this concept, let alone give it any emphasis.
The Bench added that though the court was not in favour of discontinuance of the ship-breaking activity, it should be strictly and properly regulated. In the case of Blue Lady, the court was satisfied with the approval given by the Committee of Technical Experts on Ship Breaking Activities, appointed by it, to the Dismantling Plan submitted by the recycler company. According to the plan, the major quantity of the ACMs (asbestos containing materials) on board is in the form of wall partitions, ceiling and roofing in rooms and the gallery, and is reusable. Therefore, the panels, partitions, ceilings and so on had to be removed in such a way that the ACMs were not damaged, the Bench said. The Bench reasoned that in the light of the many conditions to be fulfilled by the recycler to ensure safety during dismantling, the principle of sustainable development based on the concept of balance stood satisfied.
Despite the clean chit given by the Bench to the recycler company that would dismantle the ship, core concerns remain unaddressed. The application for clarification, filed by Gopal Krishna, in the Supreme Court on October 4, raises several such concerns.
The September 11 judgment notes: “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” (emphasis added).
In his application, Gopal Krishna says: “A bare perusal of the AERB report of the inspection undertaken on 14.8.2007 shows that the entire inspection of 16 floors of the 315-metre long ship seems to have been completed within a record period of four hours. The issue regarding radioactive materials on board the ship was only sought to be addressed after Gopal Krishna had referred to a letter sent by Tom Haugen (who had been the project manager on board the Blue Lady) stating therein that the fire detection system on the Blue Lady contained 5,500 detection points and had 1,100 radioactive elements, namely, Americium-241. No mention has been made in the AERB report as regards the balance 1,088 smoke detectors containing Americium-241, it having stated that 12 smoke detectors were removed.”
The Bench’s finding that the ship’s beaching near Alang is irreversible is also contested. In its September 6 order the Court observed: “Beaching refers to running aground on the beach a ship meant for breaking by the beaching method. This ship is sailed into the beach under its own power or is towed by barges. A beached ship is rendered immobile, and cannot usually be refloated. Beaching is thus irreversible.”
In August 2006, M.G.K. Menon, former Union Minister and Chairman of the Supreme Court’s Committee on Hazardous Wastes, wrote to the Chief Justice of India that Blue Lady should be sent back without decontamination to Malaysia or to Germany, from where it had come. He said that any effort to dilute the court’s order on October 14, 2003, on the basis of his report to try to remove the concept of prior decontamination would be against the workers in the ship-breaking yards, and also be in violation of the Basel Convention.
On October 24, the Pasayat-Kapadia Bench posted for further hearing Gopal Krishna’s application seeking clarification of the September 11 judgment after four weeks without staying the dismantling of Blue Lady at Alang. In the light of the many inconsistencies in the September 11 judgment, if dismantling is allowed to proceed at Alang, India may be seen as a dumping ground for hazardous waste of developed countries. •
SS Norway (Blue Lady) will have to wait for hearing of two clarification application in the court.