the toxic truth - Greenpeace

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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 526 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 528 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 115 Chapter 9
116 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 9 of foreseeable risks to the right to health in another state, and take action if they have the legal and technical capacity to do so. As the previous sections of this chapter have shown, the Dutch authorities not only had sufficient information to indicate that the material being carried by the Probo Koala was hazardous and that exposure to the material could trigger negative health impacts, they had legal obligations and the capacity to act to stop the material leaving their territory in order to prevent harm to health of people outside their territory. Both the Basel and MARPOL conventions specifically deal with waste that is being moved across territorial jurisdictions by ship. The overriding concern that underpins MARPOL, the Basel Convention, and EU and Dutch law on both ships’ waste and movement of waste, is the prevention of harm to the environment and human health due to improper disposal of waste. Despite the lack of certainty about which laws applied, the Dutch authorities acted in complete disregard of this objective. Regardless of any confusion, this core objective should have prompted more action. International and European law on waste control and management, including both Basel and MARPOL regimes, are premised on action by states other than the state where waste may ultimately be delivered. If sole responsibility for the harmful impacts of toxic waste dumping are seen as resting only with the state where delivery occurs or where the impacts are felt, then the central rationale for international law in this area would be eroded. The government of Côte d’Ivoire bears responsiblity for the violations of the right to health of the people of Côte d’Ivoire because of its failures to comply with its obligation to enforce laws to prevent the import of hazardous waste into the country. However, as these violations of the right to health resulted from the forseeable failure of one or more states to discharge their legal obligations under the Basel and MARPOL regimes to prevent the export and transit of hazardous waste, the other states also bear responsibility for their failure to comply with their international obligations in relation to Article 12 of the ICESCR. The Netherlands, therefore, has breached its obligation under Article 12 of the ICESCR to protect the right to health in other countries. After the dumping, there was intense public debate in the Netherlands, involving various officials and agencies. Officials and representatives from agencies involved in the decision-making in Amsterdam in July 2006 engaged in this public debate. toP LeFt: Lodewijk Asscher, assistant mayor for Port Affairs in Amsterdam and Marijke Vos, assistant mayor for Environment, Human Resources, Public Space and Green in Amsterdam. © ANP/eVert eLZiNGA bottom LeFt: Karla Peijs, minister of Transport. © ANP/SuZANNe VAN De KerK
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