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ON April 23, a 51-year-old ferry ship named Riky arrived from Denmark for scrapping at the Alang Shipbreaking Yard in Gujarat. On April 15, Connie Hedegaard, Danish Minister for Environment, had faxed a letter to A. Raja, Union Minister for Environment and Forests, alerting India, on the basis of "several independent sources of information", that the ship - which earlier went by the name Kong Frederik IX - had left Denmark on March 16 ostensibly to be put in service in West Asia as a cargo ship but actually for the western Indian coast to be dismantled. Therefore, she said, the information given by the ship's owners to the authorities in Denmark could be false.
The ship, she alleged, carried asbestos, in the form of in-built insulation of the machinery. Citing the relevant provisions of international law in dealing with hazardous waste, she requested India to cooperate by denying clearance for dismantling the ship and by referring it to be returned to Denmark in order to be stripped of the hazardous waste. "By this, we can send a strong signal that neither India nor Denmark will accept export of environmental problems that could be solved locally, and that we, as governments, will not accept this kind of foul play which results in lasting damage to the environment," she wrote.
By sending the fax communication, the Danish Minister was fulfilling a key responsibility placed on her country by the Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal adopted in 1989. Both India and Denmark have ratified the Convention. The Convention mandates that each party (meaning states that have ratified it) takes appropriate measures to provide information about a proposed transboundary movement of hazardous waste and its effects on human health and the environment to the states concerned.
In her fax, she made three important points:
1. Under Article 2, paragraph 1 of the Basel Convention, and according to the Danish legislation on waste, the ship must be characterised as waste. This provision defines waste as substances or objects which are disposed of or are intended or required to be disposed of by the provisions of national law.
2. Under Article 9 of the Basel Convention, any transboundary movement of hazardous waste or other waste, without notification to all concerned states or without the consent of a state concerned, or with consent obtained from states through falsification, misrepresentation or fraud, shall be deemed to be illegal traffic.
3. If it is an illegal traffic of waste, the state of export has to ensure that the waste is properly taken care of, either by re-import or by environmentally sound disposal elsewhere in accordance with the Convention.
In his reply to the letter, on April 28, Raja conveyed to his Danish counterpart that the Government of India had determined that the ship could not be classified as hazardous waste within the scope of Article 2.1 of the Convention. He informed her that the Gujarat Maritime Board (GMB), the Gujarat Pollution Control Board (GPCB) and the Central Pollution Control Board (CPCB) had inspected the vessel and found no objectionable hazardous material on it. He assured her that India had the capability to ensure environmentally sound disposal of the ship.
Raja, however, did not substantiate his stand that the ship could not be classified as waste. Having taken this stand, he chose to be silent on Article 1 (b), which identifies certain wastes that are subject to transboundary movement as "hazardous waste".
Under this provision, if the wastes are defined as, or are considered to be, hazardous by the domestic legislation of the party of export, import or transit, then they will be deemed as such for the purpose of this Convention. Now the question that arises is whether India is obliged to consider it as such?
India's inconsistent stand on the principles of international law has been brought to the notice of the Supreme Court by environmental activist Madhumita Dutta. Her Interlocutory Application (I.A.) in Research Foundation for Science Technology National Resource Policy vs Union of India has been posted for hearing.
The Supreme Court in its interim order in this case, issued on October 14, 2003, said: "Before clearance of any hazardous waste imported to India, the Port and Customs authorities would ensure that the consignment in question corresponds with the details of authenticated copy of Form 7 sent by the country of export." As the ship arrived without Denmark's authorisation, it could not have carried Form 7. India waived this requirement by suggesting that the ship neither was waste nor hazardous.
In its reply to the I.A., the Ministry of Environment and Forests (MoEF) pointed out that the joint visit report of the GMB, the GPCB, and the CPCB indicated that there was no hazardous waste material on the ship.
The Ministry claimed that the ship did not carry any material classified as hazardous waste other than what was there as in-built insulation material, which are part of the structure of ships and that this could not be termed as hazardous waste.
It also revealed that in the process of dismantling (of about 40 per cent of the vessel) the asbestos (used to insulate pipes) obtained was about 150 kg. The ship was thus beached at Alang on April 23.
As per the data of the waste recovered from the structure of the ship (as on September 27), which was present as in-built insulation material, hazardous waste, including asbestos and paint chips, amounted to 335 kg and the non-hazardous waste weighed 2,005 kg.
The Ministry claimed that the hazardous substance was disposed of at the Treatment, Storage and Disposal Facility (TSDF) developed in Ahmedabad as required under the Hazardous Waste (Management and Handling) Rules, 1989.
It defended the ship-breaking activity as one aimed at the recovery of resources and their further use for the manufacture of value-added products. If steel is to be produced from iron ore, the investment required and the pollution quotient would be significantly higher than the recovery of steel from scrapping, the Ministry said.
It alleged that the applicant (Madhumita Dutta) made a vain attempt to bring ships under the definition of hazardous waste by quoting some sections of the Basel Convention out of context. The Ministry chose not to reply to Madhumita Dutta's plea that the Convention is based on the principle of denying waste trade without mutual consent.
In his affidavit, N.B. Deshmukh, Assistant Commissioner of the Customs Division in Bhavnagar, admitted that he was told by the CPCB on April 21 that Riky was allegedly carrying hazardous waste and directed that he should take appropriate action if it was true. Not finding any hazardous material on board the ship, the Customs authorities issued a no-objection certificate (NOC) for beaching. The GMB gave the permission for beaching on the basis of the inventory verified by the Customs.
Deshmukh made the point that the quantity of substance that can be determined to be hazardous, used in the structure of the ship, is not known to the Customs authorities at the time of the ship's arrival. This could only be ascertained after the vessel was dismantled, he claimed. If that be the case, how could he have been expected to comply with the CPCB's directive on April 21? On what basis, could he give an NOC? The CPCB and the GPCB officers inspected the vessel on April 26.
The GMB gave the clearance for dismantling the ship on September 23. Apparently, the permission for breaking was given without ascertaining whether the structure of the ship was inherently hazardous.
The MoEF seems to have convinced itself that the mere absence of hazardous cargo is sufficient to give clearance for the beaching and breaking of ships. Says Madhumita Dutta: "The presence of hazardous cargo on the ship was not the issue. No ship would brazenly carry hazardous cargo while requesting beaching and breaking facilities. Being an old ship, Riky was inherently hazardous in terms of its structure, which the MoEF has admitted."
Raja denied he had any role in the controversy. He told Frontline that the agencies concerned had certified that the ship was fit for beaching and breaking as per recognised norms. As they had inspected the ship together, there was little scope to doubt their bona fides, he said.
While Denmark cannot paper over its failure to prevent the ship from leaving its shores, India has a lot to answer on the alleged violation of international legal principles, let alone non-compliance with domestic laws and regulations.
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