This study focuses on the legal framework for scrapping of vessels, especially in relation to the ban on export of waste from OECD to non-OECD countries. The 1989 Convention on Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention), the 1993 Council Regulation (EEC) No 259/93 on the Supervision and Control of Shipments of Waste within, into and out of the European Community (Shipment Regulation), and the Norwegian Regulation of 30 December 1994 (“Forskrift om grensekryssende transport av avfall”) are discussed. Contract practice on transfer of vessels for scrapping is also examined. The emphasis is on when a vessel should be considered “waste”, what is the “state of export” of vessels, and what is a “transboundary movement”/”transfrontier shipment” of vessels.
“Waste” is in the Basel Convention defined as substances and objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law. In relation to scrapping of vessels, it may be difficult to establish when a vessel is “intended” to be disposed of. Such intention may be established by a decision of the owner or by a contract on scrapping. The owner will, however, have several possibilities to cover his intention, and objective criteria for establishing his intention are not easily defined. The EC Shipment Regulation and the Norwegian Regulations raise similar problems.
” is in the Basel Convention defined as the state from which a transboundary movement of waste is planned to be initiated or is initiated. This means that the state of export is the state from which the transboundary movement physically is begun or is planned to begin. The state where the decision about the transboundary movement is taken or the nationality of the waste or its owner is of no relevance. Since there are no special rules about vessels as waste, this means that it is the state in which a vessel has become waste which is the state of export and which must ensure the presence of the necessary consent from the importing state. The flag state or the state where the owner is registered has no responsibility to obtain such consent. A problem is, however, that the port state has no jurisdiction to require that such consent exists before a foreign vessel departs. This means in practice that OECD states have no responsibility under the Convention for their vessels leaving as waste from foreign ports to non-OECD countries, and that the port state has no jurisdiction over such vessels. Similar problems arise under the EC Shipment Regulation and the Norwegian Regulation. Although the flag state has no responsibility to control export of vessels for scrapping, there is, however, nothing to prevent it from taking action if it so desires. This may, however, require amendment of national legislation and the law of the European Community. Export
“Transboundary movement” means under the Basel Convention a movement from an area under national jurisdiction of one state to or through an area under the national jurisdiction of another state, or to or through an area not under the national jurisdiction of any state. It is, however, difficult to determine which maritime zones should be considered to be under the national jurisdiction of a state, and thus what is a transboundary movement. Anyway, the owner of a vessel will also have ample opportunity to ensure that movement of a vessel for scrapping is not considered transboundary movement. The EC Shipment Regulation does not refer to transboundary movement and, although the Norwegian Regulation makes such reference, it does not establish specific obligations relating to such movements.
It is concluded that the Basel Convention may be improved by the parties, especially by establishing more objective criteria for when a vessel should be considered waste. It is, however, difficult to establish effective objective criteria. It should thus be considered to develop the necessary legal framework for scrapping of vessels through the International Maritime Organisation (IMO), establishing that the flag state not only has the right to exercise jurisdiction over its ships “from cradle to grave”, but should have an obligation to do so.
Author: Professor Dr. Juris Geir Ulfstein,
Department of Public and International Law,
University of Oslo
Corresponding Author: E-mail: firstname.lastname@example.org
A Study for the Norwegian Ministry of Environment
Source: The NGO Shipbreaking Platform. March 1999