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the toxic truth could receive and manage the waste, underscores the point that the MARPOL Convention and the associated port reception regime were never intended to deal with such waste material. The travaux préparatoires and a plain reading of MARPOL make it clear that such wastes were never meant to be covered by the Convention, and are in fact not covered by MARPOL. Therefore they are not excluded from Basel, and the Basel Convention applies to transboundary movement of such wastes since they are inescapably considered hazardous wastes under the Convention. This understanding of the meaning of waste generated as a result of the normal operations of a ship, under MARPOL, is further supported by the work of the IMO on the adequacy of port reception facilities in line with MARPOL Convention requirements. The IMO has recognized that provision of reception facilities is crucial for effective MARPOL implementation. The adequacy of port reception facilities has been regularly considered by the IMO’s Marine Environment Protection Committee (MEPC), which has stated that, to achieve adequate reception facilities, a port should have regard to the operational needs of users and provide reception facilities for the type and quantities of waste from ships normally using the port without causing undue delay for the ships. None of the qualitative definitions of “adequate” port reception facilities considers or envisages facilities to deal with waste that is generated during industrial processes carried out on board a ship. MARPOL did not envisage these types of wastes and there are no known MARPOL port facilities that can receive and manage the kind of waste that was carried by the Probo Koala. Statements made by a Dutch court that subsequently found Trafigura guilty of illegally exporting hazardous waste from Europe are pertinent. The court stated: “ [caustic washing of gasoline] essentially boils down to the moving of an industrial process from land to sea. The ship was not used for its designated purpose as a ship, but instead as a floating factory which was carrying out a process for which it was in no way necessary for the ship to be at sea since all of the resources necessary may be obtained on land. ” 363 The court went on to observe: “ one must not forget that this was the first known incidence of gasoline being washed with caustic soda on board a ship. APS could therefore not be expected to be prepared for 364 this. ” Additionally, while “normal operations of a ship” was not defined in IMO negotiations, the use of the word “normal” within an international treaty text cannot be considered meaningless. Taken together with the guidance on adequacy of port reception facilities, which focuses on the requirements of ships normally using the port, it is untenable to claim that waste produced by industrial processes carried out on board a ship was envisaged by the MARPOL Convention or the associated port reception facility regime. The situation was further clarified in May 2012 when the IMO adopted an amendment to the International Convention for the Safety of Life at Sea (SOLAS) to prohibit the blending of bulk liquid cargoes during the sea voyage and to prohibit production processes on board ships. The regulation enters into force on 1 January 2014. Trafigura’s efforts, since the dumping in Abidjan, to secure confirmation that the waste was MARPOL waste and not Basel waste have been extensive. However, a review of Trafigura’s own statements on the waste shows that they knew, or ought reasonably to have known, that it was not MARPOL waste. There is no suggestion in any of the emails (quoted extensively in this report) that Trafigura considered that the waste could be easily dealt with by any port reception facility authorized to deal with MARPOL waste. On the contrary, the internal emails clearly show that Trafigura had not identified a waste disposal option before commencing the caustic washes on board the Probo Koala. APS was a registered port reception facility, able to process MARPOL wastes, and it had told Trafigura that it could not process the Probo Koala waste. Although the Dutch authorities did not act correctly in letting the Probo Koala leave Amsterdam in 2006, this does not alter the fact that Trafigura knew the character of the waste, even before they created it, as is clearly stated in the email (quoted above) from UK-based executive Naeem Ahmed on 28 December 2005, sent to colleagues and Trafigura’s chairman, Claude Dauphin, which specifically referred to the fact that waste produced as a result of caustic washing was hazardous. Finally, the company clearly accepted that the waste was not MARPOL waste prior to the dumping in Abidjan, since its communication to Puma on 17 August 2006 stated that “Due to the COD being larger than 2000 mg/l these are not to be considered as MARPOL slops but as chemical slops…”. 365 (Emphasis added.) This is one of the many points at which Trafigura should have considered whether the Basel regime was applicable to the waste. It is not credible that a company with so much experience in international trade in petroleum-related products was unaware of the Basel regime and the possibility that, if the waste was not MARPOL, this regime might apply. In legal actions taken forward in the Netherlands, one of Trafigura’s main defence arguments was that the waste produced on board the Probo Koala was excluded from the application of the European Waste Shipment Regulation, which gives effect to the Basel Convention, on the grounds that it was “waste produced from the normal operation of a ship” and that, therefore, the prohibition on export of the waste to an ACP state did not apply. 366 The court rejected this argument, taking the view that “ship generated waste” consisted of waste which was “generated on board as a result of unavoidable circumstances” 367 and included products such as “sanitary waste” 368 or “food remnants”. 369 The court determined that what had occurred on the Probo Koala was “entirely 85 Chapter 7
86 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 7 different” 370 since Trafigura was essentially “moving … an industrial process from land to sea”. 371 The Court of Appeal, in upholding a guilty verdict against Trafigura for illegal export of hazardous waste (see Chapter 13 for details), suggested that the MARPOL regime might apply to the waste while it was on board the Probo Koala, but stated that the Basel regime and the European Waste Shipment Regulation applied to the waste once it was offloaded to the APS barge. The decision to dispose of the waste in Abidjan Trafigura’s decision to dispose of the waste in Abidjan was taken after many other options had failed. The company chose Abidjan despite the fact that the city did not have the required facilities for MARPOL waste and was a prohibited destination for Basel waste. The waste on board the Probo Koala was not MARPOL waste. But even if it had been, it should only have been treated in countries that had the appropriate facilities. 375 Côte d’Ivoire did not possess any facilities of this type. The International Maritime Organization (IMO) maintains a database of reception facilities at ports around the world so that mariners can establish whether a particular port’s facilities are adequate for the type of waste they are seeking to dispose of. The entry for Abidjan shows no facilities listed. The fact that Abidjan does not have appropriate facilities was confirmed by independent experts. A technical assistance mission to Côte d’Ivoire mandated by the Basel Convention Secretariat, found that: “ the Abidjan port is not equipped with the necessary facilities for the offloading and treatment of wastes covered by the MARPOL 376 Convention. ” However, although the court raised this possibility (that the two legal regimes might apply to the waste in different contexts), it did not consider in any detail the nature of the activity that took place on the Probo Koala; nor did the Court of Appeal hear full arguments with regard to interpretation of the MARPOL Convention. 372 Therefore the Court of Appeal’s comment on this issue cannot be viewed as definitive. The Court of Appeal characterized the process on board the Probo Koala as a “highly unusual process”. 373 As the review of the travaux préparatoires for MARPOL described above shows, the Convention was never meant to cover the type of waste carried by the Probo Koala. In fact the Court of Appeal gave very little attention to this aspect of the case, and the primary focus was on the waste after it had been offloaded to APS. 374 As explained above, Trafigura has argued that it thought the waste it was shipping out of Europe in July 2006 was MARPOL waste. An assessment of Trafigura’s internal emails undermines the credibility of this claim, as detailed above. But whatever claims the company can try to make about believing the waste was MARPOL waste at the time the Probo Koala left the EU, Trafigura can make no such claims about the waste at the point of dumping in Abidjan on 19 August 2006. By the time the Probo Koala had reached Abidjan, a Dutch police officer had informed the company that the waste must be disposed of as chemical waste. Trafigura expressly acknowledged that the waste could not be considered MARPOL waste, in an email sent to Puma, which stated: “ Please note details of the composition of the slops for your guidance: • COD (Chemical Oxygen Demand – measured approx 21,000 mg/l … • Total organic Chlorine (TOCl) – measured > 5 pct … Due to the COD being larger than 2000 mg/l these are not to be considered as MARPOL 377 slops but as chemical slops… ” (emphasis added) Trafigura offloaded waste in Abidjan when it knew, or should have known, that this was illegal under international law, which
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