Shipbreaking and Le Clemenceau Row
Introduction
On 13 February 2006, the Supreme Court of India decided that the French carrier Clemenceau is to stay outside Indian waters and requested India's Defense Ministry to form a panel to assess the amount of toxic waste on the ship. [1] In the interim, the Court reportedly temporarily banned all demonstrations and Indian media articles on the decommissioned French aircraft carrier.[2]
The Clemenceau has long been looking for a final port, since France?s own naval shipyard bid for scrapping it was rejected as too expensive. In November 2003, France was forced to re-take possession of the warship after a Spanish company breached its contract by trying to take the vessel to Turkey before removing toxic material.[3] After a long legal battle in French Courts, the carrier left the French port of Toulon on 31 December 2005 for Alang, India, towed by a Russian tugboat. When the Clemenceau reached the Suez Canal, Egyptian authorities sought information on hazardous waste aboard the carrier from the French authorities. After a week-long wait, on 22-23 January 2006, the Clemenceau began to cross the Suez Canal.[4] The carrier was expected to arrive at Indian waters by March, but on 15 February 2006, the French Council of State?France's highest court on administrative matters? ordered a suspension of the ship's transfer and instructed a lower court to review the case. Minutes later, and just days before an official visit to India, French President Chirac ordered the Clemenceau to return to France via the Cape of Good Hope in South Africa.[5]
While the French authorities communicated to their Egyptian counterparts that the Clemenceau did not contain radioactive residues and that asbestos removal operations took place in Toulon Military Harbour, there is still uncertainty as to the exact amount of asbestos and other hazardous waste that remains on the vessel.[6] The head of Technopure, the company retained to decontaminate the Clemenceau in France, stated to the press that the Clemenceau contains more than 500 tons of asbestos.[7] The Basel Action Network, a non-governmental organization focused on ?toxic trade,? has estimated that in addition to asbestos, hundreds of tons of polychlorinated biphenyls (PCBs) remain on board the Clemenceau in solid matrix applications.[8] Technical studies by a consulting firm produced for Greenpeace affirm the presence of asbestos and PCBs on the carrier, besides lead and other dangerous chemicals.[9]
The French government has publicly denied these figures. In a communication to the Indian Monitoring Committee on Hazardous Waste, France stated that of the estimated 220 tons of asbestos originally in the vessel, only 45 tons remain in the structure of the ship.[10] The French government also noted that engineers and supervisors from the Indian shipbreaking companies received training in asbestos removal in France in March 2005, and that the removal and dismantling is to take place under the supervision of French companies, in accordance with applicable international standards. The French communication also affirmed that the Clemenceau [11]only had dry-type transformers which did not include PCBs. More recently, as the controversy has heated up, the French Ambassador to India proposed to take the remaining asbestos in the Clemenceau back to France.
The Clemenceau affair relates to several multilateral environmental agreements, such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention) and the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), as well as human rights treaties and the law of the European Union. This Insight will review some of the legal issues involved in the Clemenceau case, albeit without attempting to draw final conclusions.
Environmental Justice & Trade: Occupational Health & Environmental Rights
The Clemenceau row draws increased attention to shipbreaking and its associated labor, safety, and environmental concerns. During the last 15-20 years, this dangerous and labor intensive activity has migrated to sites in India, Pakistan, China and Bangladesh, where labor is cheap and environmental and occupational safety regulations are non-existent or not effectively enforced.[12] These shipbreaking sites lack dry docks; they utilize extreme tidal changes occurring twice a month, at the full moon and new moon, which allow for ships to be driven at full speed onto the shore and then dismantled on the beach. At these sites, vessels that carry the goods entering global commerce, or transport the oil that fuels the global economy, or engage in defense operations, are recycled into scrap steel. The number of vessels in the world that will need to be scrapped is increasing, particularly as single-hulled tankers are phased out.
While some think of such labor abundance and extreme tides as elements of comparative advantage that attracts industry and influences its competitiveness, others view shipbreaking as evidencing a race to the bottom in regard to labor and environmental standards. Beyond the theoretical debate, certain factual points deserve attention. Shipbreaking allows for ships to be recycled, contributing a significant amount of steel ?22000 tons in the Clemenceau alone? to the economies of ?shipbreaking? countries.[13] At the same time, reports by NGOs such as Greenpeace and the International Federation of Human Rights have documented the occupational hazards and poor living conditions of workers in these sites, including the lack of training, equipment, or facilities to handle and dispose of the toxic wastes found in vessels.[14]
The seriousness of the death toll (estimated in the thousands over the last decades), exposure to toxic chemicals and other occupational safety concerns associated with shipbreaking, as well as the release of persistent organic pollutants to the global environment, has led international organizations to address the problem. The International Labor Organization (ILO) prepared guidelines for the protection of shipbreaking workers from work-related injuries and diseases, ill health, and incidents.[15] The International Maritime Organization (IMO) introduced its ?green passport? initiative, seeking to document the quantity and characteristics of materials found in vessels.[16] The Basel Convention Secretariat also prepared guidelines addressing the environmentally sound management of shipbreaking.[17] Furthermore, these three organizations established a Joint Working Group on Ship Scrapping to facilitate the exchange of views and ensure a coordinated approach.[18]
Exports of Hazardous Waste to Developing Countries: The Basel Convention
The Basel Convention was adopted in 1989 as a response to the environmental and human health impacts associated with the dumping of hazardous waste from industrialized countries in developing countries and Eastern Europe. The key objectives of the Basel Convention, now ratified by 167 countries, are: to minimize the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to dispose of hazardous waste in an environmentally sound manner; and to reduce the transboundary movement of hazardous wastes. To achieve these objectives, the Basel Convention is based on two pillars: first, a control system for the transboundary movements of waste, and second, the environmentally sound management of waste. In particular the Basel Convention prohibits, inter alia, the export of waste to countries that have not consented to their import, in writing, as well as the export of waste to countries lacking the ability to manage waste in an environmentally sound manner.[19] The Basel Convention also requires parties to prevent and punish illegal traffic, and to cooperate in addressing this form of environmental crime.
The application of the Basel Convention to ships destined for scrap was contested several years ago by some States, on the basis that a ship can not be a ship and a waste at the same time. The 7th Conference of the Parties (COP) of the Basel Convention addressed this question, ?noting that a ship may become waste as defined in Article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules.?[20] In accordance with this COP decision, Egypt, as the transit state under the Basel Convention, sought information from France about the Clemenceau before it allowed it to cross the Suez Canal. Egypt?s application of the Basel Convention is also of relevance to other transit countries that control international straits, such as the Bosphorus, Malacca, and Magellan Straits.
France has contested the application of the Basel Convention to the Clemenceau, arguing that the carrier is war material and thus exempt from its rules. This argument, however, does not appear to find support in the text or in the travaux préparatoires of the Basel Convention, which only exempts radioactive wastes and wastes derived from the normal operations of a ship that are subject to other international regimes.[21] While military vessels do receive particular immunity under the law of the sea, it is debatable whether the Clemenceau qualifies as a military vessel, as all operational elements have been removed from it and as it is being towed for scrapping. Even if the Clemenceau were considered a military vessel, the Basel Convention does not distinguish between military or civil waste in determining its scope of application.
As applied to this controversy, under the Basel Convention?s prior informed consent mechanism, France could not export the Clemenceau to India if India refuses to permit its import. Additionally, France could not export the Clemenceau to India if it has reason to believe the wastes will not be addressed in an environmentally sound manner. This obligation is significant in light of the challenges facing India in implementing the Basel Convention guidelines for the dismantling of ships at the shipbreaking site of Alang.
In 1995 the Third COP adopted an amendment to the Basel Convention, banning the export of hazardous waste from Liechtenstein, OECD and EU Member States to other countries for final disposal and recycling. Upon entry into force of this amendment, exports from developed to developing countries will not be permitted, regardless of local environmental conditions and disposal capacity. The European Union has implemented the amendment even before it enters into force, via the Council?s Regulation on waste shipments, which is binding and directly applicable in EU member states.[22]
France has been involved in other incidents that may breach the Basel Convention, as evidenced by the case of the Sea Beirut. The UN Special Rapporteur on the ?illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights? reported that, despite their knowledge that the ship contained asbestos, the French port authorities did not notify the competent environmental authorities in Turkey. Although Turkey has repeatedly requested that France take back the ship, France has not done so. The UN Special Rapporteur has expressed its view that France is obliged under the provisions of the Basel Convention to repatriate the Sea Beirut.[23]
Persistent Organic Pollutants and the Stockholm Convention
Persistent organic pollutants (POPs) are a class of chemicals that persist in the environment, are capable of long-range transport, bioaccumulate in human and animal tissue, and have significant impacts on human health and the environment. POPs released to the environment can travel through air and water to regions far distant from their original source. PCBs are a type of POP often found on Naval vessels constructed prior to the 1980s. While PCBs are also regularly found in older merchant ships, Naval vessels generally contain more PCBs due to the more extensive wiring and use of flame ratardant materials. No information regarding PCBs in solid matrix form aboard the Clemenceau has been made available. However, if PCBs or other POPs are released to the environment in Alang, they may affect not only the local population, but also human health and the environment in other countries.
The Stockholm Convention establishes strict restrictions on trade in listed chemicals, both among parties and between parties and non-parties. The Stockholm Convention bans the import or export of PCBs and equipment containing PCBs, except for their destruction or irreversible transformation, or otherwise for their disposal ?in an environmentally sound manner when destruction or irreversible transformation does not represent the environmentally preferable option or the POP content is low.?[24] In addition, the Stockholm Convention bans disposal operations that may lead to recovery, recycling, reclamation, direct reuse or alternative uses of POPs. Whether the technology exists at Alang to destroy PCBs found in vessels is an open question.
Shipbreaking in the United States & the European Union
Shipbreaking is a problem not only in developing countries. The United States is facing serious difficulties with a growing number of vessels that can no longer serve their purpose. At this time, tens of ships are anchored at ports around the United States, imposing maintenance costs in the millions of dollars and risking serious environmental pollution. The General Accounting Office reported that key factors contributing to the current backlog of surplus ships awaiting scrapping are the Navy?s downsizing following the collapse of the former Soviet Union, the unavailability of overseas scrapping, and a shortage of qualified domestic scrappers.[25] In a Pulitzer Prize-winning investigative report, The Baltimore Sun showed how domestic US scrappers exposed workers to cancer-causing asbestos and PCBs, and how they disposed of controlled hazardous waste without adequately respecting environmental and occupational safety laws.[26]
Overseas scrapping was suspended in 1994 after the US Environmental Protection Agency (EPA) advised the Navy that the export for disposal of PCB materials with concentrations of 50 parts per million or greater was prohibited by US environmental laws.[27] In 1997, the EPA negotiated agreements with the Navy and with the Department of the Navy and the Maritime Administration (MARAD) to allow for the export of ships for scrapping. These agreements required that, inter alia,: (1) all liquid PCBs are removed prior to export; (2) solid PCBs that are readily removable and do not affect the structural integrity of the ship are also removed; and (3) countries to which the ships may be exported for scrapping are notified so that they have the opportunity to refuse to accept the ships. In 1998, Vice President Gore placed a one-year moratorium on such exports, which effectively ended in 2003 when MARAD awarded a contract for the scrapping of 13 vessels in Hartlepool, United Kingdom. Even though environmental groups challenged MARAD?s decision to export vessels on several grounds, ultimately the U.S. District Court for the District of Columbia allowed the export of 4 ships for scrapping.[28]
The exported ships, however, faced legal difficulties in the United Kingdom, as the private contractor lacked the necessary permits to dismantle the vessels.[29] The UK environment secretary agreed to temporarily dock the four obsolete vessels that arrived at Hartlepool in November 2003, and no date has yet been set for the transport of further vessels.[30] At the same time, the United Kingdom received complaints from members of the European Union, as well as from the European Commission, regarding its decision to import ships for scrapping. Mirroring that transaction, and in light of EU legislation prohibiting the export of hazardous waste to non-OECD countries, the European Commission has also requested France to provide information on the Clemenceau.[31] Cases brought to court in other European countries, such as The Netherlands and Turkey, have banned either the export or import of contaminated vessels for scrapping.[32]
Shipbreaking in Indian Territory
The matter of the Clemenceau came before the Supreme Court of India as a result of a public interest petition seeking to stop the entry of the vessel into India.[33] The Indian Supreme Court had previously addressed the Basel Convention, hazardous waste, and shipbreaking in October 2003, directing that, inter alia: (1) before a ship arrives at port, it should have proper consent from the concerned authority, stating that it does not contain any hazardous waste or radioactive substances; and (2) the ship should be properly decontaminated by the ship owner prior to the breaking.[34] The Supreme Court had also established the Hazardous Waste Monitoring Committee, in order to monitor issues concerning the Basel Convention and hazardous waste generally.
The Hazardous Waste Monitoring Committee reported to the Indian Supreme Court on January 9, 2006 that the entry of ?Le Clemenceau? within the exclusive economic zone (EEZ) extending 200 nautical miles off the Indian coast would be in violation of its October 2003 directions. On January 16, 2006, the Supreme Court ruled that, pending a hearing on 13th February, the Clemenceau should not be allowed to enter India?s EEZ. Then on 13 February 2006, the Supreme Court decided to hear India?s Defense Ministry regarding the amount of toxic waste on the ship. In the interim, the Clemenceau is to stay outside the Indian waters.
Toward a New Convention on Ship Recycling
In 2005, the IMO Assembly requested the IMO?s Marine Environment Protection Committee to develop a new legally-binding instrument on ship recycling.[35] According to the IMO Assembly?s resolution, such instrument should regulate ship recycling, including, inter alia, ship construction, operation and preparation, so as to facilitate safe and environmentally sound recycling; the operation of ship recycling in a safe and environmentally sound manner; and the establishment of an appropriate enforcement mechanism. The IMO Assembly also requested that the draft instrument be completed in time for consideration and adoption in the 2008-9 biennium.
About the author
.Marcos A. Orellana is adjunct professor, American University Washington College of Law, and Director, Trade and Sustainable Development Program, Center for International Environmental Law (CIEL) in Washington DC.
Footnotes
[1] Le Monde, Le ?Clemenceau? Ne Pourra Pas Entrer en Inde Avant d? Examiné par la Marine Indienne, 13 February 2006.
[2] BBC News, India Media Ban over ?Toxic? Ship, 13 February 2006.
[3] Financial Times UK, Activists Give Chase to Warship Sailing into Retirement: France Faces Fierce Resistance to its Attempts to Scrap an Aircraft-Carrier in India, January 21, 2006.
[4] Le Monde, Le ?Clemenceau? a Commencé sa Traversée du Canal de Suez, 23 January 2006; Le Monde, L?Errance du ?Clemenceau? au Large du Canal de Suez, 14 January 2006.
[5] CNN, Chirac Orders Back Toxic Warship, 15 February 2006; BBC News, Chirac ?Orders? Toxic Ship Home, 15 February 2005.
[6] The Hindu, Clemenceau & Cobras: The Exact amount of Asbestos Carried by the Ship is Not Known, 26 January 2006.
[7] L.Express.fr, Les tribulations du Clemenceau: Le Clem poursuit sa route, 24 janvier 2006.
[8] Basel Action Network, The French Deception: PCBs and the Clemenceau, 31 January 2006 (examples of solid applications containing PCBs in concentrations of at least 50 ppm include: cable insulation; rubber and felt gaskets; thermal insulation material; transformers, capacitors, and electronic equipment, etc.); See also, Basel Action Network, France?s Export of Decommissioned Aircraft Carrier Clemenceau in Violation of International, and National Law, 12 January 2006.
[9] MetaFil As, Rapport Nr. 2006-1010, The Clemenceau Case, Potential Hazardous Materials Assessment, 2 February 2006.
[10] Pinky Anand, D.N. Goburdhun & Sanjeev Sahay, Advocates for the Government of France, Clemenceau Ship Being Exported From France for Dismantling at Alang Gujarat, January 2006.
[11] The Calcutta Telegraph, France Offers to Take Ship Waste, 8 February 2006.
[12] See generally, John Sawyer, Shipbreaking and the North-South Debate: Economic Development or Environmental and Labor Catastrophe?, 20 Penn St. Int?l L. Rev. 535 (2002).
[13] New York Times, Graveyard of Ships a Blessing to Steel-Poor Pakistan, 24 November 1980; New York Times, On an Indian Shore Where Ships Go to Die, Profit Is Law, 9 August 1998.
[14] Greenpeace & International Federation of Human Rights (FIDH), End of Life Ships: The Human Cost of Breaking Ships, December 2005.
[15] ILO, Safety and Health in Shipbreaking: Guidelines for Asian Countries and Turkey, 2004.
[16] IMO, Guidelines on Ship Recycling, 2003 (as amended by resolution A.980(24) (2005).
[17] UNEP, Secretariat of the Basel Convention, Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, 2003.
[18] See Report of the Joint Working Group, ILO/IMO/BC WG2/11, 14 December 2005.
[19] Basel Convention, Article 4.
[20] Basel Convention, COP Decision VII/26. Environmentally Sound Management of Ship Dismantling, 2004, UNEP/CHW.7/33.
[21] See Cyril Uchenna, Travaux Préparatoire of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 18 J. Nat. Resources & Envtl. L. 1 (2003-2004).
[22] Council Regulation (EC) No 120/97 of 20 January 1997 amending Regulation (EC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, Official Journal L 022 , 24/01/1997 P. 0014 ? 0015.
[23] E/CN.4/2005/44, pg. 11 (15 February 2005).
[24] Stockholm POPs Convention, Articles 3, 6 & Annex A, Part II. UN Doc. UNEP/POPS/CONF/4 (2001).
[25] US General Accounting Office, Federal Surplus Ships: Government Effort to Address the Growing Backlog of Ships Awaiting Diposal, [GAO report], at pg. 4.
[26] Will Englund & Gary Cohn, The Shipbreakers, The Baltimore Sun, 7-9 December 1997.
[29] In 1989 the Navy became aware of the presence of PCBs in solid materials on board of older ships; GAO report, at pg. 5.
[28] See Matt Cohen, U.S. Shipbreaking Exports: Balancing Safe Disposal with Economic Realities, 28-SPG Enviros Envtl. L. & Pol?y J. 237 (2005); Takako Morita, N.I.M.B.Y. Syndrome and the Ticking Time Bomb: Disputes over the Dismantling of Naval Obsolete Vessels, 17 Geo. Int?l Envt?l. L. Rev. 723 (2005); Viola Campbell, Ghost Ships and Recycling Pollution: Sending America?s Trash to Europe, 12 Tulsa J. Comp. & Int?l L. 189 (2004); Jeffrey Luster, The Domestic and International Legal Implications of Exporting Hazardous Waste: Exporting Naval Vessels for Scrapping, 7 Envt?l Law. 75 (2000).
[29] EXHC 3193 (Admin), Friends of the Earth Limited v. The Environment Agency & Able UK LTD, 11 December 2003.
[30] BBC News, Bid to Allay ?Ghost Ship? Fears, 8 February 2006.
[31] Le Monde, Bruxelles demande a la France des Explications sur le ?Clemenceau,? 3 February 2006.
[32] Sandriens case, The Netherlands, Council of State, Case No. 200105168/2, 19 June 2002; Sea Beirut case, Turkey, Izmir 2nd Administrative Court, Case No. 2002/496, Decision No. 2003/1184, 30 September 2003.
[33] See Research Foundation for Science Technology National Resource Policy v. Union of India & Anr., WP 657/1995. (This case has come up before the Supreme Court of India numerous times).
[34] Id., Order dated 14 October 2003.
[35] IMO Assembly resolution A.981(24).