Thursday, 23 September 2010

Trafigura Guilty: Partial Translation of Court Decision

Last week I posted extracts from an article from the International Law Office with details of the Dutch court’s decision.  Tonight I include a translation of the relevant part of the court’s decision.

I realise that this may be of interest only to ‘anoraks’ but I believe it important to put as much information as possible into the public domain.

“Finally, Trafigura is charged with violating Section 18 of the European Waste Shipment Regulation (EWSR), for having exported waste from the EU to an ACP [Calum’s note: ACP = Africa, Caribbean, Pacific] country, Côte d’Ivoire (Ivory Coast). It has been established that the Probo Koala sailed, with waste on board, from the Netherlands via Estonia, Togo and Nigeria to Côte d’Ivoire, where the slops were offloaded on land.

According to Trafigura, the slops do not fall under the operation of the EWSR. It asserts that the waste was the product of the normal operation of ships. The EWSR does not apply to this type of activity.

The Court is however of the opinion that the slops did not originate from the normal operation of a ship. After all, the waste was produced during the washing of petrol aboard the ship, a chemical process that is normally carried out on land in refineries. This has nothing to do with the normal functions of a ship, specifically, that of a means of transport and a means of processing products which are only found at sea. This means that the EWSR does in fact apply to the slops, and that it is thus prohibited to export them from the EU to Africa.

Trafigura has also asserted that it cannot be proven that the slops were exported from the Netherlands to Côte d’Ivoire. According to Trafigura, at the time the vessel departed from Amsterdam, there was not yet a plan in place to transport the slops to Africa.

Furthermore, it asserts that the export to an ACP country was completed at the moment the ship sailed into the territorial waters of the first ACP country, and this was not Côte d’Ivoire.

The Court also rejects these defences.

The purpose of the EWSR is to protect the environment in the EU member states and in the countries outside of the EU. This concept is not compatible with the idea that the export of waste would have been completed once the waste had been transported across the border of an ACP state yet not offloaded. It is this offloading that is relevant here. This took place in Côte d’Ivoire.

The location where this export (which must be considered as a single incident) was started or continued is also relevant. This location was the Netherlands. It is therefore not significant whether or not it was clear at the time of the ship’s departure from the Netherlands that the Probo Koala would ultimately end up offloading the slops in Côte d’Ivoire.


For this reason, the Court deems the violation of Section 10.60 of the Environmental Management Act with which Trafigura has been charged as proven."

I suppose if I were ever in court I would want my lawyer to try every possible angle to win the case …. but then I might just tell the truth.

But ….

What is the truth in the Trafigura affair?

Would I know the truth if I saw it?

On whose side does the truth lie?

Does the truth ever lie?

 

I don’t know.

I’m confused.

I’m going to bed.

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