the toxic truth - Greenpeace

the toxic truth
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:
“ 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
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differently. ”
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:
“ 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
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Nations and applicable international law. ”
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
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Chapter 9