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Amnesty international and greenpeace netherlands
Chapter 7
Exporting the waste and disposing of it in Côte d’Ivoire was unlawful
Under EU law you no longer allowed to transport such waste across EU borders.
The European Waste Shipment Regulation (EWSR) prohibits the export of all waste from the EU to one of the African, Carib bean and Pacific group of states (ACP countries) such as Côte d’Ivoire.356 On 23 July 2010, a Dutch court found that Trafigura had violated this prohibition.357 This was upheld on appeal.
Referring to this same email, the Dutch court concluded that Trafigura had not only violated this prohibition deliberately, but had done so with malicious intent:
Indeed, an internal email shows that Trafigura was aware that the movement of waste material across borders was subject to legal restrictions, even before it started caustic washing operations. The email, copied to Trafigura’s chairman Claude Dauphin, referring specifically to the waste that would be generated from caustic washing stated:
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It not only did this intentionally, but in this case, one may even say that malicious intent was involved. In fact, the e-mail which [name 7, Ahmed] sent to his co-workers and superiors on 28 December 2005 even indicates that there was knowledge of illegal waste export: “… Under EU law you [are] no longer allowed to 359 transport such waste across EU borders.
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Arguing that it was MARPOL and not Basel waste Trafigura has, on several occasions, sought to argue that the waste that it created on the Probo Koala was not subject to the Basel Convention and the European Waste Shipment Regulation, and that it was MARPOL waste. Specifically, in its defence to the Dutch criminal prosecution, as well as its defence to a UK personal injury claim (issues dealt with in Chapter 13), Trafigura has argued that the waste was in fact MARPOL waste and that the prohibition on movement of waste to developing countries did not apply to the waste on board the ship.360 The Basel Convention applies to waste and hazardous waste (as defined under the Convention) that moves between two states. The Basel Convention has a specific exclusion for “wastes which derive from the normal operations of a ship”. These are not included within the scope of the Convention because such waste is covered by the
1973/78 International Convention for the Prevention of Pollution from Ships (MARPOL Convention). Trafigura’s assertion that the waste was MARPOL waste, deriving from the normal operation of a ship, does not stand up to scrutiny. The Center for International Environmental Law carried out a study of the travaux préparatoires (the preparatory work and studies) for the MARPOL Convention.361 This research reveals that, while “normal operations of a ship” was not defined in the International Maritime Organization (IMO) negotiations, the term was clearly understood in the preparatory work, studies conducted and summaries of the negotiations. A review of these documents shows that the only waste generation envisaged by MARPOL was waste generated by the ship as a vehicle (eg ballast, oils, lubricants, fuels and
wastes generated by its crew acting to maintain the vehicle or facilitate the movement of the ship, such as paints, sewage, food packaging and food waste). None of the studies conducted by the IMO to prepare the MARPOL Convention considered the possibility of wastes generated by industrial processes carried out on board a ship. Nor did the MARPOL Convention contain any reference to port reception facilities for receiving this type of waste. Indeed, the waste created on board the Probo Koala presented enormous challenges when it came to finding anywhere to safely and properly dispose of it, precisely because the MARPOL regime never considered accommodating such wastes, which are normally generated on land. Trafigura only identified one facility capable of dealing with the waste: the facility in Rotterdam.362 The fact that Trafigura could not identify any MARPOL port facilities that