the toxic truth - Greenpeace

118 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 9
“ I never realised that Trafigura would leave
the waste in Africa. I thought that if I would
continue making phone calls to Ahmed that
the company would not dump the waste at sea
but keep the waste onboard instead until the
ship would return to Europe. The reason why
I did not raise the issue higher up is because
my experience is that it would not be acted
533 upon. ”
While the individual police officer appears to
have acted out of a genuine desire to prevent
the waste from being dumped, the view that
the issue could not be reported to more senior
authorities is cause for concern.
Under the Basel Convention and European
Waste Shipment Regulation, the Dutch
state had an obligation to ensure either that
the waste was re-imported or, if that was
impossible, to ensure that it was disposed
of in an environmentally sound manner. The
European Waste Shipment Regulation states:
“ If such illegal traffic is the responsibility
of the notifier of the waste, the competent
authority of dispatch shall ensure that the waste
in question is: (a) taken back by the notifier or,
if necessary, by the competent authority itself,
into the State of dispatch, or if impracticable;
(b) otherwise disposed of or recovered in an
environmentally sound manner, within 30 days
from the time when the competent authority
was informed of the illegal traffic or within such
other period of time as may be agreed by the
534
competent authorities concerned. ”
Why did the regulators
fail so badly?
The question of why regulators in the
Netherlands failed on so many fronts was
considered in the report of the official enquiry
established by the municipality of Amsterdam.
Two key issues emerged, both of which require
some further scrutiny.
Regulators unclear about the law
Investigations by the Municipality of
Amsterdam (published in the Hulshof
Committee report) and by the UN Special
Rapporteur on the adverse effects of
the movement and dumping of toxic and
dangerous products and wastes on the
enjoyment of human rights, have highlighted a
lack of clarity amongst the different regulatory
bodies in the Netherlands as to which law
or regulations applied. 535 In particular, there
appeared to be a lack of understanding of
the requirements of the Dutch Environmental
Management Act and how it applied to the
waste that had been offloaded on to the APS
barge. Initially, the Municipal Department of
Environment and Buildings notified APS that
pumping the waste back would contravene
the Environmental Management Act. 536
However, following consultation with APS
and its lawyers, the Department changed its
position. 537 Port State Control, the institution
responsible for inspecting foreign ships and
whose mandate is based on provisions of the
MARPOL Convention, provided advice to the
Amsterdam Port Authority that was incorrect.
Port State Control told the Port Director 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 shipowner’s freedom of choice
to do so”. As detailed above, under the EU
Directive that gives effect to MARPOL, more
than one legal basis existed to prevent the
ship leaving with the waste on board. While
both the Dutch Environmental Management
Act and the MARPOL Convention were
referrenced by relevant authorities – albeit