Since July when Trafigura was found guilty in the Dutch courts for the illegal exporting of wastes and for submitting incorrect data about the wastes I have been looking for more information about the court’s decisions. I now have that courtesy of International Law Office and I acknowledge their copyright over the quotes from their article.
I’m delighted also that the arguments I made in my post - Trafigura: Probo Koala Waste – Amsterdam - were those which the court decided were valid and that those of my adversary in argument, Dr Busch, failed.
The main argument centred around which of two conventions - MARPOL or Basel - applied to the waste. There was a second leg to Trafigura’s defence which, to my mind, is amazing but I’ll come to that later.
MARPOL applies to waste produced on board a vessel and if the Probo Koala’s waste fell within this remit Trafigura would have been found innocent because MARPOL waste can be discharged at any major port.
Basel, however, applies to any waste excluding that produced during the NORMAL operations of a ship. If the Probo Koala’s waste was seen as being from the normal operations of the ship then MARPOL would apply and if it arose from abnormal operations then Basel would apply and Trafigura would be found guilty.
The article in ILO states,
“The court found that the waste should not have been exported to an African, Caribbean and Pacific Group country (which includes Côte d'Ivoire) as stipulated under EEC Regulation 259/93, and it did not agree that the waste was to be regarded as ship waste, and therefore did not fall within the scope of the International Convention for the Prevention of Pollution from Ships (MARPOL).
The trading company argued that all waste on board a ship was included in the MARPOL convention, and therefore the regulation had not been violated as it did not apply. The court found that the toxic waste did not result from the normal use of a ship as stipulated by the exemption under the regulation. It was held that although the waste was produced on board the Probo Koala, that did not mean that it could be regarded as waste under the MARPOL convention. To achieve this, the waste had to be shown to result from the normal use of a vessel.
The court emphasised that the regulation aims to protect third-world countries against toxic waste dumping, and accordingly it is important to apply the regulation and any exemptions strictly. Only the waste which unavoidably results from activities on board a vessel is exempt.
The court considered that washing naphtha could not be considered within the 'normal use' of a ship, and furthermore this process did not necessarily need to be performed on board a ship at sea. Therefore the exemption under Article 2(a) of the regulation and the MARPOL convention did not apply, and exporting toxic waste from Amsterdam to Côte d'Ivoire was not permitted.”
Basel applies. Trafigura are guilty. This echoes my post!
Clearly the judge read my thoughts before making his decision!!!
The second legal argument made by Trafigura was reported as follows.
“Trafigura alternatively argued that the waste was not exported from the Netherlands since at the time that the Probo Koala left Amsterdam, The court considered that washing naphtha could not be considered within the 'normal use' of a ship, and furthermore this process did not necessarily need to be performed on board a ship at sea. Therefore the exemption under Article 2(a) of the regulation and the MARPOL convention did not apply, and exporting toxic waste from Amsterdam to Côte d'Ivoire was not permitted.”it was not known that it would sail to Côte d'Ivoire. However, the court considered this explanation not to be in line with the purpose of the regulation: to maintain the quality of – and protect – the environment.”
I find this an astounding argument. Had this view prevailed then any waste, however toxic, could be exported to any country simply by stating that the final destination of the waste was not known at the time of leaving port.
This would indeed have been a polluter’s charter.
Thankfully this argument was rebuffed.
My head is swelling by the second at my insight into the thinking of the Dutch court.