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the toxic truth
chapter 9
approximately 500,000mg/l (during a later court case Captain Chertov was found guilty of providing false information). Given this information, it is difficult to understand why the authorities did not carry out an on-board inspection and further tests on the waste. The official enquiry by the Municipality of Amsterdam later expressed the opinion that:
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had the Port State Control found cause – given the uniqueness of the events, and the discrepancy with regard to the next port of destination mentioned in the advanced notification of arrival (Paldiski, Estonia), the statement ‘to sea for orders’ in the other forms and the later statement of ‘next convenient opportunity’, to implement a more thorough inspection, and made the decision to take the necessary steps to secure the provisional arrest of the Probo Koala – the decisionmaking in Amsterdam might have turned out 526 differently.
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What actually happened in Amsterdam in July 2006 was the opposite of what was legally required. As noted in Chapter 3, the Amsterdam Port authorities were informed by Port State Control that “no legal basis existed under the MARPOL regulations to prevent the ship from reloading the slops and delivering them to another port, given the adequate storage capacity on board and the shipowner’s freedom of choice to do so”, and the Municipal Department of Environment and Buildings gave APS permission to reload the waste from the barge to the ship.527 The failure to properly apply the legal framework was strongly criticized by the official enquiry.
Breach of the International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights (ICESCR), to which the Netherlands is a state party, guarantees “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health…” The Committee on
Economic, Social and Cultural Rights (CESCR) has stated that:
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To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United 528 Nations and applicable international law.
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The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights, adopted by a group of experts on international law and drawn from international law, aim to clarify the content of extraterritorial state obligations to realize economic, social and cultural rights.529 The principles highlight that “States must desist from acts and omissions that create a real risk of nullifying or impairing the enjoyment of economic, social and cultural rights extraterritorially. The responsibility of States is engaged where such nullification or impairment is a foreseeable result of their conduct.”530 The recognition by the CESCR of states’ responsibility for human rights impacts outside their territorial jurisdiction, in certain circumstances, reflects a growing body of legal opinion that such responsibility is vital to the adequate protection of human rights. When decisions taken or actions initiated in one state result in human rights harm in another state, both states may bear responsibility, particularly where the negative impacts were reasonably foreseeable. Similarly, the failure of one state to take legitimate action to control or regulate the acts of its agents or of non-state actors domiciled in its territory, may create the context in which human rights abuses occur in another state but cannot be adequately addressed or effectively remedied. At a minimum, respecting the right to health in other countries means states must take account