Mark Harbers, Minister of Infrastructure and Water Management, continues to conclude in his reaction to the Report on Floating Degassing that degassing of inland vessels is legally impossible in his response to the Report on Floating Degassing. In this Report, Abdurrahman Errol, PhD candidate at Erasmus School of Law, and Alessandra Arcuri, Professor of International Economic Law at Erasmus School of Law, conclude that a ban on degassing toxic fumes by inland vessels in the Netherlands is in no way conflicting with international law, whilst several successive Ministers of Infrastructure and Water Management had claimed the existence of such a conflict for years. The researchers explain in an open letter, reacting to the minister, why they disagree with Harbers’ arguments. Responding to the three statements of Harbers, Arcuri and Errol come to a different legal interpretation.
The Report' Floating Degassing in the Netherlands: Rights and Obligations under International Law', which the researchers published last January, raised a lot of controversy in the Dutch shipping industry. According to successive ministers of Infrastructure and Water Management, a ban on degassing toxic fumes in natural reserves by skippers of inland vessels (which results in environmental damage and health damage to the crew and people living near shipping routes) would be impossible. However, according to Arcuri and Errol, such a ban would be feasible. The researchers also argued that the government is obliged to implement such a ban. Reacting to this Report, minister Harbers sent a letter to Parliament on 24 January.
In the Parliamentary letter, the minister argues that a Dutch ban – even though Arcuri and Errol's research led to the opposite conclusion – is currently in conflict with international law and would be ineffective. In addition, the minister reckons the Dutch state already took responsibility for floating degassing and that the government fulfils its duty of care. In the reaction Arcuri and Errol gave in an open letter on 30 January, the researchers explain why they disagree with the minister.
No conflict with international law
The first argument of the minister is that a national ban would violate the convention on degassing, which the Netherlands already ratified, until France and Switzerland also ratify this convention. According to the minister, national implementation of a degassing ban conflicts with the Vienna Convention on the Law of Treaties. The Vienna Convention prohibits implementing laws that conflict with the object and purpose of a treaty that has yet to enter into force. According to the minister, a national ban on degassing would breach the treaty on degassing.
However, according to the researchers, the government is obliged to take action: "[the degassing ban in the degassing treaty] is a positive obligation, meaning that the state is obliged to do something. Nothing in the treaty bars the Dutch state to start establishing these infrastructures already. (…) If the Vienna Convention is to be invoked at all, it may be to argue the opposite. In this respect, we should note that one of the main goals of the treaty is protecting the environment (…). It is then difficult to understand how the degassing treaty's object and purpose can be breached by a domestic regulation aimed at environmental protection."
Secondly, a national degassing ban would not be effective according to the minister, for example, because the Netherlands currently has insufficient degassing facilities. The researchers confirm that questions of effectiveness are beyond their Report's scope, but "it could be incidentally noted that it is the responsibility of the Dutch state to find a solution to this problem".
The last argument that the Netherlands (despite the nonexistence of a degassing ban) already respects and satisfies human rights treaties because the Netherlands is the initiator of the international degassing treaty is not convincing according to the researchers: "the mere act of negotiating and ratifying a convention is unlikely to satisfy the duty of care in this case. Likewise, it is hard to see how the fact that an implementing regulation is ready but not implemented can be equated to the respect of human rights obligations.