the toxic truth - Greenpeace

84 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 7
Exporting the waste and
disposing of it in Côte
d’Ivoire was unlawful
The European Waste Shipment Regulation
(EWSR) prohibits the export of all
waste from the EU to one of the African, Caribbean
and Pacific group of states (ACP countries)
such as Côte d’Ivoire. 356 On 23 July 2010, a
Dutch court found that Trafigura had violated
this prohibition. 357 This was upheld on appeal.
Indeed, an internal email shows that Trafigura
was aware that the movement of waste
material across borders was subject to legal
restrictions, even before it started caustic
washing operations. The email, copied to
Trafigura’s chairman Claude Dauphin, referring
specifically to the waste that would be
generated from caustic washing stated:
arguing that it was Marpol and not basel waste
Trafigura has, on several occasions,
sought to argue that the waste that
it created on the Probo Koala was
not subject to the Basel Convention
and the European Waste Shipment
Regulation, and that it was MARPOL
waste. Specifically, in its defence to
the Dutch criminal prosecution, as well
as its defence to a UK personal injury
claim (issues dealt with in Chapter 13),
Trafigura has argued that the waste
was in fact MARPOL waste and that the
prohibition on movement of waste to
developing countries did not apply to
the waste on board the ship. 360
The Basel Convention applies to waste
and hazardous waste (as defined under
the Convention) that moves between
two states. The Basel Convention has
a specific exclusion for “wastes which
derive from the normal operations
of a ship”. These are not included
within the scope of the Convention
because such waste is covered by the
1973/78 International Convention for
the Prevention of Pollution from Ships
(MARPOL Convention).
Trafigura’s assertion that the waste
was MARPOL waste, deriving from the
normal operation of a ship, does not
stand up to scrutiny.
The Center for International Environmental
Law carried out a study of the
travaux préparatoires (the preparatory
work and studies) for the MARPOL Convention.
361 This research reveals that,
while “normal operations of a ship”
was not defined in the International
Maritime Organization (IMO) negotiations,
the term was clearly understood
in the preparatory work, studies
conducted and summaries of the negotiations.
A review of these documents
shows that the only waste generation
envisaged by MARPOL was waste
generated by the ship as a vehicle
(eg ballast, oils, lubricants, fuels and
“ Under EU law you no longer allowed to
358
transport such waste across EU borders. ”
Referring to this same email, the Dutch court
concluded that Trafigura had not only violated
this prohibition deliberately, but had done so
with malicious intent:
“ It not only did this intentionally, but in this
case, one may even say that malicious intent
was involved. In fact, the e-mail which [name
7, Ahmed] sent to his co-workers and superiors
on 28 December 2005 even indicates that
there was knowledge of illegal waste export:
“… Under EU law you [are] no longer allowed to
359
transport such waste across EU borders. ”
wastes generated by its crew acting to
maintain the vehicle or facilitate the
movement of the ship, such as paints,
sewage, food packaging and food
waste). None of the studies conducted
by the IMO to prepare the MARPOL
Convention considered the possibility
of wastes generated by industrial processes
carried out on board a ship. Nor
did the MARPOL Convention contain
any reference to port reception facilities
for receiving this type of waste.
Indeed, the waste created on board
the Probo Koala presented enormous
challenges when it came to finding anywhere
to safely and properly dispose
of it, precisely because the MARPOL
regime never considered accommodating
such wastes, which are normally
generated on land. Trafigura only identified
one facility capable of dealing with
the waste: the facility in Rotterdam. 362
The fact that Trafigura could not
identify any MARPOL port facilities that