Dumping on the Ivory Coast

It’s bad enough that residents of Côte d’Ivoire face a continuing civil war with northern rebels, but now comes news of a massive environmental and health crisis in its capital city, Abidjan. Today’s New York Times details how a European-owned tanker’s waste water ended up being dumped in Abidjan suburbs, poisoning its residents. Eight have died and over 85,000 have sought medical attention. The Ivorian Prime Minister and his government were forced to resign last month amid charges that government corruption was to blame for the dumping (although much of the government was subsequently reinstated).

It’s a depressing tale, with many facts still to be sorted out. The Dutch-controlled Swiss company Trafigura, which leased the Panamanian-flagged, Greek-owned tanker, denies responsibility. It says the wash water—water left over from cleaning the ship’s holds—was not toxic. Alternatively, it seeks to blame the Ivorian company it hired to dispose of the waste for improper disposal (it appears that the company simply pumped the waste into trucks, which were then driven around Abidjan at night unloading their contents). What makes this story all the more compelling are allegations that the company (and Dutch officials) knew that this was no ordinary wash water, but highly toxic material. Indeed, Trafigura tried to dispose of the waste in July in Amsterdam, only to balk at the quoted $300,000 cost, so it negotiated an unusual arrangement to have Dutch workers put the waste back on the tanker and let it go on its way. Interestingly, Trafigura didn’t try and dispose of the waste in subsequent stops in Estonia or Nigeria, waiting until Côte d’Ivoire to ask about companies that could handle a chemical waste disposal. Obviously, it’s at this point things broke down, not only because the Ivorian disposal company literally dumped the waste, but also because there are serious questions about whether any Ivorian company could have properly disposed of the material in question in the first place.

Now, from an international law perspective, a key question will be whether the circumstances leading up to the dumping violated the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. Virtually all of the states connected with this case in any way (Côte d’Ivoire, the Netherlands, Switzerland, Greece and Panama) are parties to that treaty. But, the treaty might not actually require all that much of these states. A few years back, the Basel parties passed a consensus decision banning hazardous waste disposal by developed countries in developing countries, which would seem to cover the present Abidjan crisis. That decision, however, came to be viewed as ultra vires and ended up being redrafted into an Amendment to the Convention that has not yet entered into force. As such, the outstanding legal issues under Basel will be (1) which state party is responsible for Trafigura and the Ivorian company’s actions and (2) was there informed consent – i.e., did the Ivorians have an opportunity to know what was being brought into their territory and consent to its disposal? Should Dutch officials have done more, once they learned of the vessels hazardous contents to notify others of the problem?

Of course, the Basel Convention may not be the only treaty implicated by this situation. I wonder, for example, whether the chemicals dumped in Abidjan are also covered under the terms of the PIC Convention (also known as the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade). Again, all the concerned states are parties. This treaty seeks to set up a detailed pre-screening mechanism so that developing states are informed as to which chemicals other states, including more developed nations, regard as hazardous and what steps they’ve taken to deal with trade in such chemicals. The idea is to ensure that developing states can make more informed decisions about what chemicals to allow within their borders and to put some of the burden on exporting states to make sure their companies operate transparently in moving chemical shipments transnationally.

I’d expect that over the next few months, therefore, lawyers involved in both of these treaties will be working to figure out how those treaties apply to the Abidjan crisis (Basel Convention investigations already appear under way). More importantly perhaps, I’d hope that there is a good hard look at whether and why these treaties’ informed consent procedures failed in this case with such devastating results. Is this a case where the treaties are at fault for failing to address this conduct, or is it a case where the treaties do address the situation, but company and/or government officials failed (wittingly or unwittingly) to comply?