THE PRESENCE OF the obsolete vessel SS Blue Lady – ex Norway, France – off the Alang coast as it awaits disposal has generated a lot of concerns from environmental and human rights groups. Foremost among their concerns is the possible law violations, both international and domestic that India will be committing if it allows the vessel to be broken in Alang without prior hazardous waste decontamination. There are two international agreements and a Supreme Court of India ruling that are threatened to be contravened. These are the Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes and their Disposal (Basel Convention) and the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention) and the Directions of the Supreme Court on Ship Breaking No. 657/95. 

 

The Basel Convention was the international response to the blatant and rampant toxic waste dumping scandals in the mid to late 1980s. It was adopted in 1989 at Basel, Switzerland, and finally came into full force of international law in 5 May 1992. India ratified the convention on 24 July 1992. Currently, the convention enjoys the overwhelming ratification of 168 countries.

 

The Basel Convention is the primary international instrument having jurisdiction over toxic wastes contained in end-of-life vessels. It aims to control and minimize the export and generation of toxic wastes, placing responsibility on the countries that generate the waste. The Convention also strives to become the driver for cleaner technologies.

 

Experts have estimated that the SS Blue Lady contains as much as 1,200 tonnes of asbestos, a substance strictly controlled under Basel. The presence of polychlorinated biphenyls or PCBs, a cancer causing man-made chemical and a persistent organic pollutant that biomagnifies in the food chain poisoning top predators, in the vessel is another serious concern. Unfortunately, the owners of the ship failed to develop a complete inventory of all the hazardous wastes, thereby, creating uncertainty about the types of hazardous wastes on board the vessel and their quantities.

 

As a party to the Basel Convention, India has committed itself to prohibit the import of hazardous wastes and other wastes if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner (ESM). ESM is defined under the convention as, ‘taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes.’

 

The obligation to prohibit the SS Blue Lady is paramount given the situation in India where the wastes, particularly PCBs, will not be managed in an environmentally sound manner. Simply put there is no facility in India that is capable of meeting the requirements set under the Stockholm Convention, which makes it likely that ESM of PCBs and similar toxins will not be achieved. Moreover, the ESM obligation is proactive, as it requires the Indian government to take the most practicable step to protect its people and environment. And this is to deny entry of the vessel until it is totally pre-cleaned of all the toxins. 

 

India should look to Bangladesh and France for guidance on how to observe its Basel obligations. In February 2006, the Bangladesh government, citing the Basel Convention and raising the environmental pollution and public health concerns that the entry of the ship may cause if the vessel was scrapped in Bangladesh without prior decontamination, issued an inter-ministerial decree prohibiting the vessel from entering its territory. France on the other hand, recently recalled its obsolete aircraft carrier, the le Clemenceau, which was already in India, when the French Supreme Court ruled that the export of the vessel violated French laws. The Bangladeshi prohibition and the French recall are in complete alignment with their Basel obligations.

                       

In addition to prohibiting the import of the SS Blue Lady, India should also be taking steps to prosecute and hold the Indian ship owners responsible for illegally bringing toxic wastes into India. The convention considers several scenarios as illegal traffic in hazardous wastes, and one of which is when an export is conducted without the exporting nation notifying the importing or transit states of the impending shipment. The SS Blue Lady was exported from Malaysia to India without notification as required under Basel, clearly making the export of the ship illegal traffic. 

 

Lastly, India has in the past played fast and loose with its Basel obligations, particularly in the case of the Riky, an obsolete Danish ferry that was exported to India for disposal. After realizing that the vessel was fraudulently exported out of Denmark, the Danish government pleaded with the Indian government to allow the vessel to return to Denmark. Instead of simply returning the toxic waste, India claimed that the ship was not a waste under the Basel Convention despite Denmark’s assertion that as exporting state they believed it was a waste. Further, and most unbelievably, the Indian government made the outlandish claim that ‘waste on board’ only means cargo and not the structural material waste that is clearly the issue of concern for all with respect to ship scrapping. 

 

The Indian government must stop playing the evade-Basel-game. The dangers posed by the SS Blue Lady and similar wastes are real and long-term. It owes it to its people and to the community of nations to uphold the Basel commitments it freely undertook.

The other international treaty that India has been blatantly evading is the Stockholm Convention on Persistent Organic Pollutants, currently observed by 125 nations. India ratified and became a party to Stockholm on 13 January 2006.

 

The Stockholm Convention strictly controls the disposal of polychlorinated biphenyls or PCBs, another toxin which the SS Blue Lady contains. The older vessels, particularly those built before 1979, have a high-probability to contain very significant quantities of PCBs. Most of these PCBs are in solid matrix form and found in paints, gaskets, insulation materials, electrical wiring, etc. PCBs were popular and used in various applications prior to 1979 because of its stability and fire retardant properties. PCBs are listed in Annex A of the Stockholm Convention, and are targeted for global phase-out and strict trade and destruction criteria. 

 

One of the most crucial provisions in Stockholm on the disposal of PCBs is the requirement that PCBs are ‘disposed of in such a way that the persistent organic pollutant content is destroyed or irreversibly transformed so that they do not exhibit the characteristics of persistent organic pollutants or otherwise disposed of in an environmentally sound manner when destruction or irreversible transformation does not represent the environmentally preferable option….’

 

In this case, it must be noted that the ship-breaking yards of Alang do not possess the technological means to dispose of PCBs in ‘such a way that meets the very high threshold established by Stockholm.’ Thus, any PCBs onboard of the SS Blue Lady disposed of in India would be a violation of Stockholm Convention.

 

Further, in its ‘Directions of the Supreme Court on Ship Breaking No. 657/95’ the Indian Supreme Court delineated several provisions that must be followed in India, three of which are: prior to arrival in port the vessel must have proper consent from the appropriate agency, stating that it does not contain any hazardous waste; the ship should be properly decontaminated by the owner prior to breaking; and complete inventory of hazardous waste must be made.

 

It is clear that the exporters of the ship are in violation of the court ruling considering that the vessel has not been properly decontaminated, and no complete inventory of hazardous waste on board has yet been provided. The judicial decisions have the force of law behind them, and to violate the ruling would be an affront to the India’s apex court.

 

It is apparent that the SS Blue Lady poses a grave and imminent threat to the environment and health of the workers and communities in Alang. India, therefore, must enforce the legal commitments it has undertaken to prevent this catastrophe from happening. India must not allow itself to be swayed by wealthy ship owners into accepting what is clearly an affront to international law and human rights. India has a long list of legal reasons to deny the shipment. If they fail to do so, they reveal themselves to be corrupted by an industry with a dismal track record for concern over human health and the environment or international law.

 

 

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