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Int Environ Agreements (2008) 8:143–159 DOI 10.1007/s10784-008-9069-3 ORIGINAL PAPER

Shipping hazardous waste: implications for economically developing countries Sangeeta Sonak Æ Mahesh Sonak Æ Asha Giriyan

Accepted: 13 March 2008 / Published online: 4 April 2008  Springer Science+Business Media B.V. 2008

Abstract Trade in hazardous waste has given rise to great concerns. One source of transboundary trade in hazardous waste is the ship-breaking industry. Though end-of-life vessels provide incentives to developing countries in the form of raw materials, these same developing countries are not only ill equipped to manage hazardous waste in an environmentally sound manner, but they also lack the resources to mitigate health impacts arising out of the handling of hazardous waste. These concerns of weaker economies have been addressed by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. However, the shipping of vessels with hazardous waste for final disposal in developing countries continues. To illustrate the inequity involved in such negotiations, we present a case study of the French aircraft carrier ‘‘Le Clemenceau’’, which was sent to a shipyard in Alang, India, for disposal. This vessel became the focus of attention given its transport of an unknown amount of toxic waste, including asbestos. Similarly, there are reports that large quantities of toxic waste are still being imported by India from countries that ban the use of this waste. The use, import, and export of these chemicals raise serious environmental and health concerns. This paper assesses the implications of shipping such hazardous waste to developing countries and emphasizes the need for promoting research to plug the gaps and for implementing stringent measures to check the trade in environmental pollutants. Keywords

Basel Convention  Developing countries  Equity  Hazardous waste

S. Sonak (&)  A. Giriyan The Energy and Resources Institute (TERI), Western Regional Centre, 233/GH-2, Vasudha Housing Colony, Alto-St. Cruz, Bambolim, Goa 403202, India e-mail: [email protected]; [email protected] M. Sonak A/G-26, Kamat Arcade, Caranzalem, Goa 403002, India

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1 Introduction It is routine practice in the shipping industry to send ships to developing countries for scrapping. Indeed, several industrialized countries export end-of-life vessels to developing countries for disposal or recycling. This practice is based primarily on economics. The ship-breaking industry plays a major role in the economy of many developing countries. Ship-breaking was a common industrial activity in both the USA and Europe until the 1970s when increasing labor costs and more stringent regulations resulted in this industry being relocated to Taiwan and South Korea (Nes¸ er et al. 2008). In the 1980s, Taiwan and South Korea also lost interest in ship-breaking and focused on ship-building. At the present time, the major ship-breaking yards are located in Bangladesh, China, India, and Pakistan. Some years ago, Alang in Gujarat, India, used to be the most favored destination for shipbreaking, although China and Bangladesh now dominate the market. The end-of-life vessels that are sent to these developing countries for disposal are often loaded with hazardous waste, which can have severe implications for the environment and human health. Nes¸ er et al. (2008) report that the ship-breaking industry is an indispensable part of the economy for developing countries since it requires a small amount of investment and is locally a major source of employment. However, they also point out that it is one of the most hazardous activities of the maritime industry due to the structural complexity of the ships and the potential for exposure to asbestos, polychlorinated biphenyls (PCBs), lead, hazardous materials and chemicals, and excess noise, fire, and explosions. They further point out that the scrapping of old vessels is a serious challenge for the local environment and sometimes a challenge for the health of workers. Similarly, Harris and Kahwa (2003), citing Kanthak and Jayaraman (2001), observe that the dangerous shipbreaking practice, which has been reported in several developing countries, is an example of economic considerations overwhelming health concerns. Ship-breaking is carried out by ill-informed workers under poorly regulated conditions without due regard to proper health safeguards for both the workers and the environment (Harris and Kahwa 2003). These authors observe that these operations are so unsafe that asbestos is reported to have been found in workers’ residences. In recent years, the impact of hazardous waste on public health has received great attention (Harris and Kahwa 2003). Adequate resources have been channeled towards environmentally sound management of such waste in industrialized countries. However, developing countries are still ill equipped to manage hazardous waste in an environmentally sound manner, and they lack the resources to mitigate health impacts arising out of hazardous waste. The infrastructure required for dismantling vessels with due regard to accepted environmental as well as health and safety standards is lacking in many developing countries. Economic compulsions, the generation of employment opportunities, and the shortsightedness of national governments create incentives for the import of hazardous waste into developing countries. However, trade in hazardous waste has given rise to great concerns by national governments, international organizations and non-governmental organizations (NGOs) (Orloff and Falk 2003). In the light of this problem, parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal decided to address the issue as a matter of priority, taking into account that many materials carried on board by ships or contained in their structure, particularly in old ships, would be classified as hazardous wastes at the time of disposal. A central goal of the Convention is to end North–South trade in hazardous waste. Under the Basel Convention, exporting nations and

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polluting industries have to take care of their own toxic waste. The Convention places the onus on the exporters rather than on the importers. International conventions such as the Basel Convention attempt to address the issue of the imbalance of negotiating power between the industrialized and developing countries. The ban on the export of hazardous waste from developed to developing countries is expected to reduce the trade in hazardous waste. However, despite the implementation of several policies and conventions, industrialized countries still attempt to ship hazardous waste to those developing countries with fewer regulations in place, and the export of hazardous waste to developing countries for disposal of waste continues, although it has been reduced in recent years. This paper addresses the important question of how the Basel Convention, which seeks to control hazardous waste trading from North to South, can deal with the issue of shipbreaking in developing countries such as India, citing the Le Clemenceau case as an example. Le Clemenceau was sent to the ship-breaking yard in Alang, India for disposal. The vessel became the focus of several larger issues and questions related to the export of hazardous waste from developed to developing countries, in the light of the Basel Convention provisions. In this context, the effectiveness of international instruments is examined in this paper. As not much information on Le Clemenceau or on factual aspects of ship-breaking in Alang is documented in academic literature, the paper draws on news reports from the media, verbal discussions and informal interviews with informants in addition to the existing literature from published and electronic scientific journals and reports. Data and information obtained from grey literature was validated through interviews with key actors. Specifically, workers and officials of ship-breaking yards and of the shipping industry, authorities at the Gujarat Maritime Board, local communities and active fishermen in the Alang and Sosiya villages, and NGOs involved in environmental matters were interviewed to procure relevant information on Le Clemenceau and the socio-ecological conditions prevailing at the Alang–Sosiya Ship-Breaking Yard (ASSBY). Some data on the socio-ecological conditions in Alang were obtained from Government census records, which are updated every 10 years, and from the Gujarat Maritime Board, which is an official agency (managing authority) for the monitoring of ship-breaking in Gujarat.

2 North–South trade and the Basel Convention The 1989 Basel Convention, particularly the Basel ban, is a result of concerns regarding the consequences of trade in hazardous waste, especially the dumping of waste from the developed world to the developing countries that occurred in the 1970s and 1980s. Increased amounts of hazardous waste, increasingly stringent domestic regulations for its disposal, public environmental awareness coupled with lack of international legislation and cheaper disposal alternatives abroad have created incentives in industrialized nations for the export of hazardous wastes (Cortinas de Nava 1996; Choksi 2001; Tsimplis 2001). Prior to the Basel ban, Europe exported approximately 120,000 tonnes of hazardous waste to developing countries (Montgomery 1995; Johnstone 1998). Hazardous substances (Table 1), such as asbestos, mercury, ash, and residues containing heavy metals, clinical waste, PCBs, waste pesticides, and herbicides, among others, have been exported to India, primarily from the USA, Japan, Germany, UK, and France (Ghosh 2006). The north–south transport of asbestos is of particular concern because although most developed nations have reduced or banned the use of asbestos on account of health concerns, its use in India continues. Broughton (2005) observes that restrictions in developed nations on the use of

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146 Table 1 Data on the import of hazardous materials in India

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Year

Imports (tonnes or rupees)

Hazardous material

2004–2005

1123.9 tonnes

Mercury

30.06 tonnes

PCBs

216.6 tonnes

Asbestos brake linings and pads

2003–2004

101.1 tonnes

Clinical and related wastes

107 crore

Ash and residues of arsenic

32.8 tonnes

Asbestos material

20 tonnes

PCBs, PBBs

54.35 tonnes

PCTs

Source: Ghosh (2006)

5.25 tonnes

Asbestos brake linings and pads

PCBs, Polychlorinated biphenyls; PBBs, polybrominated biphenyls; PCTs, polychlorinated terphenyls

1200 tonnes

Hazardous waste No 38249036 Incinerated ash

asbestos are primarily responsible for its increased market in developing countries. India has become a major consumer, using around 100,000 tonnes of asbestos per year, 80% of which is imported (Broughton 2005). Harris and Kahwa (2003) express concerns about asbestos use and pollution in developing countries related to improper use, handling and disposal of asbestos, and asbestos-containing materials and waste. They point out that information on the associated (negative) health effects is limited because of the limited research activity in these countries; consequently, asbestos is marketed aggressively solely out of commercial interests. Reports suggest that morbidity and mortality from asbestosrelated disease will continue in India without the enforcement of a ban or significantly tighter controls (Joshi and Gupta 2003, 2004; Broughton 2005). The ship-breaking yard at Alang had received 20,796 MT of asbestos up to October 2006,1 which was disposed of in secured landfills. At the end of the 1980s, the Nordic Council and the Organization of African Unity (OAU) pressurized the industrialized world to stop dumping hazardous waste in developing countries (Birnie and Boyle 2004). In 1988, the OAU declared that dumping of nuclear and industrial wastes in Africa would be viewed as a crime against Africa and its people. In 1991, the OAU resolved to ban the import and transboundary movement and management of hazardous wastes within Africa through the Bamako Convention on the Ban of the Import and the Control of Hazardous Waste into Africa, which entered into force on 21 March 1996. In terms of the global transboundary movement of hazardous waste, the Basel Convention is the main binding instrument (Malich et al. 1998). It aims to prevent the transboundary movement of hazardous waste from Organization for Economic Co-operation and Development (OECD) countries to non-OECD countries and ensure the protection of human health and environment. The Basel Convention and the events preceding it offer a good example of the increasing significance of the justice discourse in global environmental management of hazardous waste (Okereke 2006). The original proposal supported the transboundary movement of waste regulated by a Prior Informed Consent (PIC) approach (Kellow and Zito 2002). Many developing countries refused to sign the Basel Convention and proposed a total ban on the export of 1

Gujarat Maritime Board (2008). Retrieved on January 12, 2008, from http://www.gmbports.org/alang_ statsrecyc.htm.

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waste to developing countries (Kellow and Zito 2002). At the First Conference of the Parties in 1992, the United Nations Environment Program proposed a ban on exports to developing countries and Eastern Europe. The proposal met with opposition from the USA, Germany, Canada, Australia, UK, and Japan. However, Finland, Denmark, Norway, Switzerland, Italy, and Sweden endorsed a ban from OECD to non-OECD countries (Miller 1995; Kellow and Zito 2002). In February 1993, the European Commission (EC) adopted Regulation 259/93, which prohibited the export of wastes for disposal from EC States to non-EC States. In 1994, the Second Conference of the Parties to the Basel Convention finally agreed to introduce a ban on all export of hazardous waste from OECD to non-OECD countries for final disposal. However, the Basel ban is not in force to date and the USA, the largest producer of hazardous waste, is not yet a party to the Convention. Under the Basel Convention, waste cannot be exported to countries where there are reasons to believe that such waste cannot be disposed of in an environmentally sound manner. The proposed transboundary movement of hazardous wastes must be notified to competent authorities of the States. The exporting State is obliged not to permit any exporter of hazardous wastes to commence transboundary movement without written consent from the importing State, as well as any State of transit. The Convention places many obligations on the parties. For example, Article 4 of the Basel Convention states that the parties shall prohibit the export of hazardous wastes and other wastes to the parties that have prohibited the import of such wastes. It obliges all parties to take appropriate measures to prevent the import and/or not to allow the export of hazardous wastes if there is reason to believe that the wastes in question will not be managed in an environmentally sound manner. Furthermore, Article 6 obliges the State of export to notify, in writing, competent authorities of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes. The Basel Convention is an example of a instrument that could be used by developing countries to unite against a trade that is environmentally harmful, compelling industrialized countries to accept the instrument for the protection of the environment in poorer developing countries. Some industrialized countries, such as Denmark, strongly supported the ban against this unjust trade and compelled the EU into taking a decision in support of the ban (Birnie and Boyle 2004). Many OECD countries, however, supported only the regulation of trade in hazardous waste and argued against the complete prohibition of trade. Arguments in support of trade in hazardous waste include the one in which trade in hazardous waste is mainly aimed at recycling. Alter (1997) argues that recycling industrial waste conserves natural resources, reduces energy demand, minimizes waste disposal, removes hazardous constituents, and helps industrial growth in developing countries by providing raw material. Cortinas de Nova (1996) provides the following considerations for the export of hazardous waste: (1) the potential for future liability for damages resulting from management of wastes in the home country, (2) tightening of regulations for disposal of wastes, (3) lower costs for treatment and disposal in other countries, and (4) unavailability of appropriate treatment facilities in the country of origin. Nes¸ er et al. (2008) agree that on a global scale, shipbreaking may prove to be environment-friendly, if carried out properly, since it reduces the need for mining and production of new raw metal. Further, it is likely that restrictions on trade in hazardous waste would result in eliminating an economic source of raw materials for recycling operations (Alter 1997; Orloff and Falk 2003) and also reduce options for cost-effective waste disposal (Orloff and Falk 2003). Hence, industrialized countries were reluctant to move towards a complete ban for two reasons (Johnstone 1998).

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1. Trade could represent an effective means of treating and disposing of waste. 2. A ban on trade in recyclables could be counter-productive. Bailey (1992) concludes that (1) environmental laxity does not attract foreign investment and (2) increased foreign investment in developing countries may ‘become the vehicle for improving environmental conditions’. Similarly, Alter (1997) argues that trade restrictions can only limit foreign investment in recycling and, thereby, limit facilities to improve GDP (Gross Domestic Product) in developing countries. Alter (1997) further argues that it is puzzling why the Convention apparatus regards some ‘wastes’ as too hazardous to be managed by a non-OECD country when it originates from an OECD exporter, and should be banned, while the same material from a non-OECD country is acceptable and that as the trade among non-OECD countries continues to grow, there is potential for environmental mismanagement. Despite the fact that the OECD states have the capacity or facilities to dispose of the wastes in an environmentally sound manner, examples such as Le Clemenceau show that the transboundary movement of hazardous waste still takes place to countries that have limited facilities or capacity for proper disposal. This raises serious doubts on the effectiveness of existing international mechanisms to safeguard the environment and human health in developing countries. 3 Ship-breaking yard at Alang 3.1 Description of the site The Alang–Sosiya Ship-Breaking Yard, the second largest ship-breaking yard in the world, is geographically situated on the western coast of the Gulf of Cambay (Fig. 1). It has a gentle slope with a hard and firm rocky bottom, which is convenient for bringing ships right up to the scrapping yard afloat with minimum investment and risk factors. According to Reddy et al. (2004) the yard encompasses 67 km2 with a small creek bifurcating into nearly two equal parts. The southern part is called Alang, while the other is known as Sosiya, popularly called the Alang–Sosiya ship scrapping yard. In all, there are 112 shipbreaking plots in Alang and 80 plots in Sosiya, each having a length of 50–240 m and a width of 30–120 m. Statistical data up to October 2006 reveal that about 4327 ships have been beached in a span of 20 years; these were mainly cargo vessels, oil tankers, passenger liners, and warships, adding up to about 26–27 million tonnes of light dead tonnage (LDT; a unit used to measure th mass and scrap metal value of an empty ship). On average, the ship-breakers are able to dismantle a ship of about 10,000–13,000 tonnes in 1–2 days. A study carried out at a ship-breaking location at Alang reports that at a near shore station near Alang, the concentrations of various metals, such as iron (Fe), manganese (Mn), cobalt (Co), copper (Cu), zinc (Zn), lead (Pb), cadmium (Cd), nickel (Ni) and mercury (Hg), were 25–15,500% higher than those at another control station at Piram (Tewari et al. 2001). The iron and steel recovered from the ship-breaking activities account for an estimated 10–15% of India’s steel production. 3.2 Socio-economic conditions at Alang In 1961, the census report indicated that the Alang–Sosiya area contained ten villages with a total population of roughly 7000–8000. Thirty years later, the 1991 census indicated that the population of the area had grown to almost 20,000. Before the advent of ship-breaking

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INDIA

26º

24º

GUJARAT GULF OF KUCHCH

22º ALANG GULF OF KHAMBHAT

68º

70º

72º

74º

76º

78º

Fig. 1 Map of India showing Alang

activities, most villagers were involved in agriculture and animal husbandry, with a small sea-faring minority engaged in fishing and allied activities. Since the establishment of ASSBY, agriculture and animal husbandry have deteriorated and the milk and oniongrowers’ cooperatives are no longer in business, possibly because the level of the water table has dropped from 15 to 130 m in the last 20 years, and water quality has also declined because of saline intrusion.2 3.3 Working conditions at ASSBY Towards the end of 2003, around 15,000 workers were employed in 80 working plots. Normally, over 90% of these workers are migrants from some of the most underdeveloped States of North India. About 80% of these laborers are illiterate and stay in rented shanty dwellings without adequate potable water, electricity, and drainage systems. They are in the age group of 19–45 years. The wage rate ranges between INR 30 (\1 USD) and INR 250 (approx. 6 USD) per day for an 6-h (or longer) shift. This large variation is due to ‘ship-breakers arbitrariness’ in dealing with workers’ wages and the lack of negotiating capacities of the unorganized labor. The sub-contracting system used for most shipbreaking operations also makes rule-compliance difficult. Further, employment is only seasonal and lasts for about 180 days a year. 2

Impacts and challenges of a large coastal industry. Alang–Sosiya Ship-Breaking Yard, Gujarat, India (2004). United Nations Education, Scientific and Cultural Organization (UNESCO), ‘‘Coastal region and small island papers 17, UNESCO, Paris. Retrieved on February 1, 2007, from http://www.unesco.org/ csi/pub/papers3/alang3.htm.

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3.4 Occupational safety The ship-breaking industry presents an unsafe work environment with a high risk of injury and accidents due to unsafe equipment and machinery and inadequate safety devices (Harris and Kahwa 2003; Nes¸ er et al. 2008). The workers’ educational and training levels are quite low. Safety control measures are absent, and personal protective equipment is not available to workers. Ship-breakers do not follow any code of ethics. On most occasions, the workers work overtime, but get paid for normal duty, leading to declining productivity, a low quality of life of workers, and an increase in accidents due to fatigue. The average life expectancy of Alang workers is 40–50 years. Officials of the Gujarat Maritime Board, however, claim that the ASSBY has good infrastructure and safety measures and that the workers are required to undergo a training program for 3 days. 3.5 Health and social security Workers at Alang are not permanent employees and, as such, have no insurance for health or life. Apart from basic insurance facilities provided by the ship-breaker, neither the employer nor the government takes responsibility for medical expenses and social security. Elementary health facilities are available at government hospitals. In the case of accidents, the contractor or the ship-breaker (primary employer) only provides for transport to the government hospital. The general rule appears to be that employers pay for only direct and immediate medical expenses. Workers are neither compensated nor provided medical facilities for the chronic diseases, such as tuberculosis, malaria, dengue fever, hepatitis, and respiratory infections, to which they are vulnerable due to working conditions.3 Ship-breaking workers generally do not receive any wages/benefits when absent on medical grounds.

4 Le Clemenceau: a Trojan Horse? Had Le Clemenceau not been ordered to return to France, it may have been the ‘Trojan Horse’, letting loose several contaminants in an economically developing nation. It is therefore possible that the export of Le Clemenceau to the Indian shores at Alang evoked widespread response amongst various sections of society in India. A number of reports appeared in local, national, and international news journals and magazines.4 In India and other developing countries, the action of French authorities to send the ship to India with toxic waste was criticized. However, at the international level, it 3

Status of Ship breaking Workers in India, A Survey by International Metalworkers’ Federation, IMF-FNV project in India, 2004–2007-A Report. Retrieved on February 1, 2007, from http://www.imfmetal.org/main/ files/06042810465779/Shipbreaking_survey.pdf.

4

Some of the publications are as follows: (1) Basel Action Network, articles on ship Recycling. Retrieved on February 6, 2007, from http://www.ban.org/Library/Editorials/060616_ship_recycling.html; (2) Economist, 12 October 2005, Vol. 377 Issue 8456, Special Section pp. 10–12; (3) Basel Action Network (2006) Briefing: France’s Export of Decommissioned Aircraft Carrier Clemenceau in Violation of International and National Law. Retrieved on February 6, 2007, from http://www.ban.org/Library/ban_clemenceau_ summary_of_violations.pdf; (4) Front line, Volume 23, Issue 02, Jan. 28–Feb. 10, 2006. Retrieved on February 1, 2007, from http://www.flonnet.com/fl2302/stories/20060210006601900.htm; (5) Hindu articles. Retrieved on February 1, 2007, from http://www.hindu.com/thehindu/holnus/001200602162072.htm and http://www.hindu.com/2006/02/07/stories/2006020705181300.htm; (6) Times article, Anger greets toxic liner ruling. Retrieved on January 24, 2007, from http://www.timesonline.co.uk/article/0,,25689– 2292750,00.html.

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was argued that it is in the interest of developing countries to dismantle decommissioned ships. This paper explores the implications of shipping hazardous waste to developing countries, including the following contentious issues. 1. What is the precise definition of waste, particularly in the context of ‘materials of war’? 2. Can a ship or a vessel that is to be disposed of be classified as a ‘ship’ as well as ‘waste’ at the same time? 3. Is a ‘decommissioned defense vessel’, excluded from the scope of internationally binding regulations for transboundary movement of hazardous waste on grounds of ‘sovereign immunity’? 4. Did the French authorities breach the provisions of the Basel Convention in attempting to export Le Clemenceau to India, without applying a PIC approach, based upon the submission of incorrect statistics and particulars? 5. Was there laxity in the implementation of national as well as international regulations on the part of the Indian authorities in permitting the import of Le Clemenceau? Le Clemenceau was decommissioned in France in 1997 and sailed for Alang from the Toulon harbor in France on 31 December 2005. Built in 1957, it weighs 27,307 tonnes. Before it entered Indian waters, environmentalists in India, including Greenpeace activists, started campaigning against it, primarily because of the toxic waste on board. Ships built in, or prior to the 1960s, are believed to contain toxic materials, such as asbestos for fire-proofing and insulation, PCBs for heat and fire-resistance in electrical gadgets, as well as Pb, Hg, Cd, and other toxic metals used in paints and other applications. Le Clemenceau allegedly contained more than 500 tonnes of asbestos and some PCBs. The ship had 22,000 tonnes of steel that was expected to get a good domestic price and was thus financially attractive. The import of asbestos waste is banned under the Hazardous Wastes (Management and Handling) Rules, 1989, as amended in 2003, under the Environment (Protection) Act, 1986 of India. The EU banned it in 2005, and France banned all forms of asbestos, and products in 1977. Although it is possible to decontaminate asbestos and other toxic materials in their own country, most ship-owners prefer to send it to countries where the costs of disposal are low. Turkey, Greece, and later, even Bangladesh, did not agree to accept Le Clemenceau for ship-breaking. A court in France allowed transporting the vessel to India for breaking when the French authorities argued that the ship was decontaminated of all toxic materials including 115 tonnes of asbestos and was a warship. As such, it should not be considered as waste, subject to the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal, as well as other international legally binding instruments, such as the European Waste Shipment Regulation, which implements the international Basel Convention in the EU. The same authorities also stated that there might be 45 tonnes of asbestos materials still in the ship. However, the environmentalists alleged that there was still more than 500 tonnes of asbestos and some amounts of PCB, reflecting the negligence of the French authorities for not conducting a full inventory of hazardous materials on board and assessing their impact on workers at the Alang ship-breaking yard and on the marine environment in general. The Indian Supreme Court also appointed a Supreme Court Monitoring Committee (SCMC) on Hazardous Wastes.5 The SCMC invited the French company ‘Technopure’, 5

Appointed by the Supreme Court of India vide order dated 14 October 2003 in WP No. 657. Supreme court monitoring committee on Hazardous waste management. Retrieved on January 24, 2007, from http://www.scmc.info/reports/quarterly_reports/le_clemenceu.htm.

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which had carried out the decontamination of the ship, to appear before the committee and provide details. ‘Technopure’ claimed that it removed a total of 70 MT of asbestoscontaminated waste from the ship. The officials of ‘Technopure’ reported that there was still a minimum of 500 MT of asbestos-contaminated material on board the ship. They also informed the committee that much of this material could and should have been removed in France. The apex court issued an interim order to prohibit the entry of Le Clemenceau into Indian waters. The SCMC could not produce a conclusive report. However, in the meanwhile, the apex court in France (Conseil d’Etat) ruled against the decision to send the ship to India, and the French president recalled the ship. Thus, in the context of Basel Convention, the contentious issues raised on the entry of Le Clemenceau in India can be answered as follows: 1. The Convention defines ‘waste’ as any substance or object, which is disposed of or intended to be disposed of, or is required to be disposed of, by the provisions of the national law. 2. The world shipping industry had earlier urged that the vessel could not be a ‘vessel’ as well as ‘waste’ at the same time. The parties to the Basel Convention, along with several legal experts, resolved this issue6 and, thereafter, ships can be treated as ‘waste’ under the Basel Convention. 3. French authorities had argued that the vessel being ‘material of war’ had to be kept out of the purview and scope of several binding international regulations on grounds of sovereign immunity. Environmentalists successfully countered the claims by urging that definitions of ‘waste’ are without military exemption. Assuming Le Clemenceau to be a ‘material of war’, neither the Basel Convention nor the Waste Shipment Regulation (EEC) No. 259/1993 of 1 February 1993, currently in force in the EU and consequently in France, for implementation of the Convention of European Countries, provides any exemption for military waste material with respect to their respective rules on the transboundary movement of hazardous waste. Further, the Basel Convention is applicable only to waste. A warship can become waste only after it is decommissioned and is intended to be disposed off, in which case it ceases to be a ‘material of war’. Obviously, therefore, a decommissioned vessel cannot claim any ‘sovereign immunity’ under the Basel Convention. 4. French authorities submitted incorrect statistics about the hazardous waste on board the ship. They did not conduct a full inventory of hazardous waste. The negligence displayed by the French authorities was clearly in breach of the Basel Convention. 5. While the French government is to be blamed for shipping hazardous waste, the Indian government is also to be blamed for accepting the toxic waste. The Indian authorities ought to have exercised greater caution and vigilance, particularly as Egyptian and Turkish authorities had already rejected the import of Le Clemenceau for breakage in their yards.

5 Indian perspectives India signed the Basel Convention on 15, March 1990, ratified the convention on 24th June 1992, and acceded to the Convention on 22 Sept 1992. These steps demonstrate India’s 6

Decision VII/26 arrived at in October 2004 at the Seventh Conference of Parties stating as follows: ‘‘Noting that a ship may become waste as defined in Article 2 of the Basel Convention and at the same time it may be defined as a ship under other International Rules’’.

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commitment to address transboundary movement and the disposal of hazardous waste. Misra and Pandey (2005) explain that the law on the import and export of hazardous wastes to India is contained in the Hazardous Wastes (Management & Handling) Rules 1989 enacted by the Central Government under the Environment (Protection) Act, 1986. The Hazardous Waste (Management and Handling) Rules, 1989 was amended on 6 January 2000 to bring them in compliance with the Basel Convention. Rule 11 provides that import of hazardous wastes from any country to India and export of hazardous wastes from India to any country for dumping or disposal shall not be permitted. However, Rule 12 states that the import and export of hazardous wastes shall be permitted as raw material for recycling or reuse. This rule further provides that the Ministry of Environment and Forests (MoEF) shall be the nodal ministry to deal with the transboundary movement of hazardous wastes. Sub-rule (6) of Rule 12 provides that any party importing or exporting hazardous wastes shall comply with the Basel Convention, to which India is a signatory. Schedule 8 enumerates the hazardous wastes prohibited for import and export. There is specific reference to asbestos, dust, and fibers in this schedule. This assumes relevance in the context of asbestos believed to be on board Le Clemenceau. From the Indian perspective, at least four points in the Le Clemenceau case merit attention: • • • •

lack of precise and accurate knowledge of the contents on board Le Clemenceau socio-economic compulsions posing severe constraints upon decision-making in India influence exerted by the powerful lobby of ship-breaking agents in India laxity in enforcement of law and regulations

Prima facie, Le Clemenceau was an attempt to export hazardous waste to an economically developing country, guided by the sole consideration of low disposal costs to the ship owners. The claim by the French authorities that the vessel was decontaminated of all toxic material was far from accurate Timely intervention of judicial authorities for the implementation of the Basel Convention provisions proved to be effective, as Le Clemenceau was recalled to France. The Basel Convention itself, thus, proved to be an effective instrument in preventing the export of hazardous waste from a developed country to a developing country. Second, the social security network is nearly absent in developing countries such as India. Low wages, harsh working conditions, absence of protective gear for workers, and untrained workers are common at the ship-breaking yards of India and other developing countries. It is therefore likely that where poverty and unemployment are major concerns, environmental management, pollution, and occupational hazards become secondary issues. The ship-breaking industry is labor-intensive, and it provides ample employment opportunities. It also provides raw materials, which is a major financial incentive for scrapping vessels. The scenario at the ship-breaking yards has changed after 1990s. The number of ships scrapped at Alang increased from 5 in 1982/1983 to 333 in 2001/2002 (Table 2). Thereafter, there was a decrease in the numbers, with only 101 ships scrapped in 2005/2006. In the last 3– 4 years, there has been a dramatic increase in ship freight rates and, consequently, it is more economical to keep old ships in working condition than to dispose them of. Nes¸ er et al. (2008) have also observed a drop in the number of ships scrapped at Aliag˘a in Turkey, and they too attribute this to the increase in freight rates. Reduction in the number of ships dismantled has affected the Alang yard and the employment opportunities offered by it. Further, it has also influenced decision-making regarding ship-breaking, resulting in the acceptance of toxic waste. Hence, episodes such as Le Clemenceau have to be examined in the light of the situation existing in non-OECD countries.

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154 Table 2 Ships broken at the Alang ship-breaking yard from 1982 to 2006

Source: Gujarat Maritime Board (2008) (see Footnote 1 for complete reference) LDT, Light dead tonnage

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Year

Number of ships

LDT

1982–83

5

2,4716

1983–84

51

259,387

1984–85

42

228,237

1985–86

84

516,602

1986–87

61

395,139

1987–88

38

244,776

1988–89

48

253,991

1989–90

82

451,243

1990–91

86

577,124

1991–92

104

563,568

1992–93

137

942,601

1993–94

175

1,256,077

1994–95

301

2,173,249

1995–96

183

1,252,809

1996–97

348

2,635,830

1997–98

347

2,452,019

1998–99

361

3,037,882

1999–00

296

2,752,414

2000–01

295

1,934,825

2001–02

333

2,727,223

2002–03

300

2,424,522

2003–04

294

1,986,121

2004–05

196

938,975

2005–06

101

480,405

2006–07 up to August-07

185

358,616

4453

31,530,701

Total

The Le Clemenceau incident raised concerns about social inequity, which had earlier been ignored owing to the presence of a powerful lobby of ship-breaking agents. Though ship-breaking is one of the most hazardous occupations, falling in the category of hazardous waste management, it is not always covered by normal labor and social protection laws as it does not have industry status in India; as such, the Indian Factory Act of 1948, which provides certain benefits to employees, is not applicable to it. Apart from a few guidelines, a comprehensive government policy towards ship-breaking is lacking in India. The ship-breaking industry is labor intensive, and competitiveness depends on the supply of cheap labor. Not only has the Indian government failed to address this critical issue of social inequity, but by increasing the import of vessels with hazardous waste to the shipbreaking yard, it has signaled the support for and encouragement of these activities. Further, a strong political will is lacking in developing countries such as India. This is caused by policy distortion and dilution, on the one hand, attributable to those having a vested interest in continuing the transport of hazardous waste, and by the weak enforcement of the law, on the other hand, which can be attributed to corruption (Rose-Ackerman 1978; Desai 1998; Ascher 1999; Lopez and Mitra 2000; Wilson and Damania 2005).

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6 Discussion The shipping industry is an good illustration of environmental inequity arising as a result of asymmetrical economic status and, consequently, of the fragile negotiation capacities of the weaker economies. Le Clemenceau provides an excellent example of the inadequacy of international institutional mechanisms. Being a decommissioned ship, it is questionable whether Le Clemenceau can be categorized under ‘vessels and aircraft that are entitled to sovereign immunity’. Adoption of appropriate measures to ensure the decontamination of the hazardous waste at the source was expected from the French authorities, particularly since France is a signatory to the Basel Convention. The ship could not be exported for disposal without decontamination. However, the effectiveness of international institutions needs to be investigated within a broader framework. The worst criticism against the Basel Convention is that it legitimizes a trade that cannot adequately be monitored or controlled, thus making developing countries vulnerable to becoming the recipients of the unsafe disposal of hazardous waste (Birnie and Boyle 2004). India, like other developing countries, receives many ships for disposal. Although the statistics are well maintained, no legal actions are being taken against the shipping of hazardous waste in the country. It can be stated without question that the best option is to minimize the generation of hazardous waste and—in cases where such generation cannot be avoided— that the next best option would be to recycle and reuse the waste (Alter 1997; Orloff and Falk 2003). Undoubtedly, recycling is an effective means of minimizing waste disposal, and trade remains a successful way of treating waste, particularly for countries that lack facilities and infrastructure to treat the waste in an ‘‘environmentally sound manner’’. Recycling would provide raw materials, which have a good domestic market in developing countries and would encourage industrial growth. However, questions arise when the export of hazardous waste is from the developed world to developing countries. Most developing countries lack the capabilities and resources to treat and safely dispose of hazardous waste, to tackle accidents, emergencies, and occupational hazards, to train workers, to supply protective gear during work and insurance facilities against accidents, and to protect workers’ rights. Under such circumstances, the environmental and social cost of the raw materials recovered from ship-scrapping would far outweigh the economic benefits achieved by these countries. Decisions in developing countries to accept hazardous waste are often guided by economic incentives, employment opportunities, and management myopia (of the environmental managers). Nes¸ er et al. (2008) point out that although ship-breaking forms an important segment in the economy of developing nations, in the Western world, it is an industry that is viewed with suspicion due to the high level of environmental awareness of the populations of these countries. They further note that the primitive working conditions of developing countries and the lack of an efficient and sufficient control mechanism results in the scrapping yards being viewed as sources of environmental and occupational health threats (Nes¸ er et al. 2008). Ship-breaking yards are economical in India and many other developing countries, and they serve as profit-making enterprises for the owners because environmental costs are not considered, workers are low-paid, and there is no investment in worker safety and environmental protection. Additional costs of environment and health impacts are borne by the communities, who have never been benefitted by the ship during its life. Therefore, the trade of vessels like Le Clemenceau raises questions such as ‘would it be justifiable to use such an imbalance in economic status to the advantage of some powerful parties/countries?’.

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Furthermore, the apprehension that the Basel Convention may legitimize an otherwise illegal trade merits better attention. The Convention does not prohibit trade between two developing countries. Exporting waste to countries that are less regulated and less equipped to handle this waste is a shift of marine pollution from local environment of richer countries to the global marine environment, and the burden is borne by the poorer countries. The most popular mode for evasion of environmental cost and regulations is using the ‘flag of convenience’ (FOC) or Open Registers (ORs). The campaign against FoC was inaugurated by the International Transport Workers’ Federation (ITF) at its 1948 World Congress in Oslo (Alderton and Winchester 2002). Differences in the regulatory regimes that occur between the traditional maritime national flags and FOCs have been highlighted in many studies (Boczec 1962; Doganis and Metaxas 1976; Lowe 1977; Osieke 1979; Metaxas 1981; Tolofari et al. 1986; Thanopoulou 1998; Egiyan 1990; Li 1999; Alderton and Winchester 2002; Haralambides and Yang 2003; Lla´cer 2003; Le Gallic and Cox 2006; Burgherr 2007). Studies agree that, in general, ORs as a group have failed to produce adequate regulatory regimes that ensure the safe operation of ships because of poor technical expertise and the lack of the required legal framework to implement the international conventions (Lla´cer 2003). Thus, the export of waste from ships flying a ‘flag of convenience’ from one non-OECD country to another non-OECD country is neither regulated by the Basel Convention, nor by other international regulations, such as the EU Waste Shipment Regulation. Had Le Clemenceau been sold to any FOC prior to its disposal, it could not have been covered by the Basel Convention. As decommissioned ships can be traded among developing countries and ships can be easily sold before declaring the intention of final disposal, such ships normally fly the ‘flag of convenience’. Any ship flying this flag is outside the scope of most international regulations. Le Gallic and Cox (2006), in their comments on unregulated fishing activities by vessels that are flagged out, argue that such vessels are registered in foreign states with the explicit objective to circumvent domestic and international regulations. We are not denying that there is weak rule enforcement in developing countries—often because of corruption (Ascher 1999; Lopez and Mitra 2000; Wilson and Damania 2005). However, while lax implementation needs to be handled at the national level; the exploitation of such laxity and cheap labor by stronger economies to their own advantage, without paying attention to safety, environment, and human health hazards, deserves urgent attention at the international level. The Basel Convention addresses these concerns of weaker economies. Hence, the ships need to be fully decontaminated of toxic waste in the country of source (flag/ownership) before their final voyage for disposal. Foreign direct investment in the ship-breaking industry and ‘environmentally sound management facilities’ can result in improving the coastal environment of developing countries. Uniform guidelines for ship-breaking at the global level with the onus on the ship-owner may help to provide desirable results. The Basel ban goes a long way in ascertaining a balanced trade. The Basel Convention places the onus on the exporting countries to verify that the importing country possesses an environmentally sound management system. Further, export is possible only from countries that lack the facilities and infrastructure to treat the waste in an ‘environmentally sound manner’. Moreover, the Basel ban makes a distinction between OECD and nonOECD countries. Although Alter (1997) questions this clause, it may be reasonable to assume that economic compulsions would not play a larger role in the trade between two OECD countries or from non-OECD to OECD countries and such trade would primarily take into account ‘environmentally sound management facilities’. However, trade between

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two non-OECD countries cannot be based on such assumptions, even though it is not covered by the Basel ban. As discussed earlier, the most popular mode of clandestine trade is using the ‘flag of convenience’, and any ship flying the ‘flag of convenience’ is outside the scope of the Basel ban. Such trade can create ample scope for environmental mismanagement, as Alter (1997) argues against the Basel Convention apparatus permitting trade between non-OECD countries. Nevertheless, subjectivity and ambiguity involved in international instruments pose several constraints in fulfilling their objectives. For example, the communication by the USA7 that an exporting State may decide that it lacks the capacity to dispose of wastes in an environmentally sound and efficient manner, involves subjectivity. Similarly, the conditions under which the concept of ‘sovereign immunity’ is applicable to international legally binding instruments have to be more clearly spelt out. The return of illegal hazardous waste ‘where practicable’ also involves ambiguity. These aspects can severely constrain the effectiveness of international institutions in favor of powerful parties. On the other hand, setting up an international monitoring committee, inspection system, and clear guidelines for an environmentally sound management system would reduce subjectivity and ensure efficacy. Recently, a Joint Working Group of International Labor Organization (ILO), International Maritime Organization (IMO), and Basel Convention Working Group has been established to discuss the issues of ship dismantling.8 The Joint Working Group has discussed a co-ordinated approach to the ship-dismantling issue in order to avoid duplication of work and overlapping of roles, responsibilities, and competencies between the three organizations. Further, a draft Convention on the Safe and Environmentally Sound Recycling of Ships is being negotiated in the IMO’s Marine Environment Protection Committee (MEPC) for adoption by a diplomatic conference in 2008/2009, to enter into force some years later. Even after more than a decade of the Basel Convention being in force, cases such as Le Clemenceau necessitate earnest efforts that would provoke a serious debate on the performance of international instruments that are legally binding and that aim to encourage the disposal of hazardous waste in the country of source. Current international mechanisms are not adequate to safeguard the principles of environmental equity and justice and to provide protection to countries that do not have satisfactory capacity to dispose of wastes. This paper is expected to draw the attention of the international community towards the need for urgent steps to plug the loopholes involved in North–South trade of hazardous waste and protect the environment of developing countries. It emphasizes the need for the promotion of research to plug the gaps and for stringent institutions to check the trade in environmental pollutants.

7

On 13 March 1996, the Secretary-General of the Basel Convention received the following communication from the U.S. government: ‘‘(1) It is the understanding of the United States of America that, as the Convention does not apply to vessels and aircraft that are entitled to sovereign immunity under international law, in particular to any warship, naval auxiliary, and other vessels or aircraft owned or operated by a State and in use on government, non-commercial service, each State shall ensure that such vessels or aircraft act in a manner consistent with this Convention, so far as is practicable and reasonable, by adopting appropriate measures that do not impair the operations or operational capabilities of sovereign immune vessels; and (2) It is the understanding of the United States of America that an exporting State may decide that it lacks the capacity to dispose of wastes in an ‘environmentally sound and efficient manner’ if disposal in the importing country would be both environmentally sound and economically efficient’’.

8

Final report submitted to the European commission Directorate General Environment; June, 2007. Retrieved on July 30, 2007 from http://www.ec.europa.eu/environment/waste/ships/pdf/ship_dismantling_ report.pdf.

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Acknowledgements This paper is a part of the project titled ‘Assessing impacts of TBT on multiple coastal uses’ financially supported by the European Commission under the Sixth Framework Programme (Contract no 510658). Insights received from the project titled ‘Role of institutions in global environmental change’ financially supported by the Asia Pacific Network through International START Secretariat were helpful in preparing the manuscript. The authors gratefully acknowledge the European Commission, Asia Pacific Network and International START Secretariat for the financial support. The authors also gratefully acknowledge valuable comments by two anonymous reviewers on an earlier version of the paper, which have helped to enrich the content of the paper. An earlier version of this paper was presented at the IDGEC workshop in Bali, Indonesia held from 6–9 December 2006. The authors acknowledge all participants of the session for their feedback. Valuable feedback from the Editor-in-Chief, Joyeeta Gupta, is also gratefully acknowledged.

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