On June 6 2014, after receiving an alert from the Shipbreaking Platform – a non-governmental organisation comprising a coalition of environmental, human rights and labour organisations – the Flemish regional government in Belgium detained the Liberian-flagged, 45,500 deadweight tonnage car carrier Global Spirit (built in 1987) in Antwerp for alleged non-compliance with the EU Waste Shipment Regulation (1013/2006) and because it had been notified that, having reached the end of its service life, it would be beached at Alang in India (which is not a member state of the Organisation for Economic Cooperation and Development (OECD)). The vessel was loading a cargo of second-hand cars for a final voyage when it was arrested.
The Global Spirit detention was not a clear-cut violation as, on departing Europe, it was destined to travel to a West African port with cargo – not, as was alleged by the Shipbreaking Platform, to India for recycling. The issue was not submitted to court, but the Flemish government reached an agreement with the owners which guaranteed that the vessel would be dismantled and recycled in Turkey. The vessel was released and sailed on June 25 2014.
In a subsequent press release the Flemish government stated that the Waste Shipment Regulation was not the appropriate instrument through which to detain the vessel and emphasised the importance of the Belgian government's commitment to speed up its ratification of the International Maritime Organisation (IMO) Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships. The ordeal highlights the interplay between EU regulations and international conventions on the matter of ship recycling.
Shipping and hazardous waste regulations
Ships that constitute waste and are subject to trans-boundary movement for recycling are regulated by the Basel Convention on the Control of the Trans-boundary Movements of Hazardous Wastes and their Disposal 1989 and the Waste Shipment Regulation. The Waste Shipment Regulation implements the Basel Convention as well as an amendment made to the convention in 1995 (referred to as the 'ban amendment'), which has not yet entered into force at international level and which bans exports of hazardous waste to countries that are not members of the OECD. Such ships are generally classified as hazardous waste and are thus prohibited from being exported from the European Union for recycling in facilities in countries that are not members of the OECD.
The mechanisms for monitoring the application and enforcement of existing EU and international laws are not adapted to the particularities of ships and international shipping. Inter-agency cooperation between the International Labour Organisation, the IMO and the secretariat of the Basel Convention has resulted in an agreement on the introduction of mandatory requirements, at global level, aimed at ensuring an efficient and effective solution to unsafe and unsound ship recycling practices – the Hong Kong Convention.
However, legally accessible ship recycling capacity in OECD countries for ships flying the flag of an OECD member state is insufficient. Safe and environmentally sound ship recycling capacity in non-OECD member countries is sufficient to treat all ships flying the flag of OECD member states and is expected to expand further by 2015 as the result of actions taken by recycling countries to meet the requirements of the Hong Kong Convention.
Hong Kong Convention
The Hong Kong Convention was adopted on May 15 2009 under the auspices of the IMO. The convention will enter into force 24 months after ratification by at least 15 states representing a combined merchant fleet of at least 40% of the gross tonnage of the world's merchant shipping and whose combined maximum annual ship recycling volume during the preceding 10 years constituted at least 3% of gross tonnage of the combined merchant shipping of those states. The convention covers the design, construction, operation and preparation of ships with a view to facilitating safe and environmentally sound recycling without compromising ship safety and operational efficiency. It also covers the operation of ship recycling facilities in a safe and environmentally sound manner, and the establishment of an appropriate enforcement mechanism for ship recycling.
EU Ship Recycling Regulation
The new EU Ship Recycling Regulation (1257/2013) – which came into force in December 2013 and appears to follow the Hong Kong Convention closely – is intended to facilitate early ratification of the convention both within the European Union and in third countries by applying proportionate controls on ships and ship recycling facilities.
The convention provides explicitly for parties to take more stringent measures consistent with international law in regards to the safe and environmentally sound recycling of ships, in order to prevent, reduce or minimise any adverse effects on human health and the environment. Taking this into account, the Ship Recycling Regulation should provide protection from the possible adverse effects of hazardous materials on board all ships calling at a port or anchorage of a member state while ensuring compliance with the provisions applicable to those materials under international law. According to the regulation's preamble, in order to monitor compliance with the requirements relating to hazardous materials under the regulation, member states should apply national provisions to implement EU Directive 2009/16/EC. At present, port state control inspectors are tasked with both the inspection of certification and active testing for hazardous materials, including asbestos, under the International Convention for the Safety of Life at Sea. The Paris Memorandum of Understanding on Port State Control provides a harmonised approach for these activities.
The preamble states that the Ship Recycling Regulation is also intended to:
Reduce disparities between operators in the European Union, OECD countries and relevant third countries in terms of workplace health and safety and environmental standards; and
direct ships flying the flag of an EU member state to ship recycling facilities that practise safe and environmentally sound methods of dismantling ships instead of sub-standard sites, as is the existing practice.
This would therefore increase competitiveness in safe and environmentally sound recycling and treatment of ships among ship recycling facilities in member states. The establishment of a European list of ship recycling facilities fulfilling the requirements set out in this regulation would also contribute to these objectives and to better enforcement by facilitating member states' control over to-be-recycled ships that fly the flag of the member state in question. For ship recycling facilities in a third country, the requirements should ensure a high degree of protection of human health and the environment that is broadly equivalent to that in the European Union. Ship recycling facilities that do not meet these minimum requirements should therefore not be included in the European list.
Overlap with Waste Shipment Regulation
In order to avoid overlap, it is necessary to exclude EU member state-flagged ships that fall under the scope of the Ship Recycling Regulation from the scope of the Waste Shipment Regulation and EU Directive 2008/98/EC. The Waste Shipment Regulation applies to shipments of waste from the European Union, subject to exclusions for certain categories of waste where an alternative regime applies. The Ship Recycling Regulation subjects ships within its scope to controls throughout their lifecycle and aims to secure recycling of these ships in an environmentally sound manner. It is therefore appropriate to specify that a ship subject to the alternative control regime under the Ship Recycling Regulation should not be subject to the Waste Shipment Regulation. According to the preamble of the Ship Recycling Regulation, ships covered by neither the Hong Kong Convention nor the Ship Recycling Regulation, as well as any waste on board a ship other than operationally generated waste, should continue to be subject to the Waste Shipment Regulation and to Directives 2008/98/EC and 2008/99/EC, respectively. It has also been acknowledged that ships continue to be subject to other international conventions to ensure their safe operation at sea during the operational part of their lifecycle.
The Waste Shipment Regulation and the Basel Convention (on which this regulation is based) were never intended to apply to international shipping or ships that are scheduled to be recycled. While the Waste Shipment Regulation is good for controlling the export of hazardous waste, it becomes flawed when regulating end-of-life ships. The relevant regime applicable to international shipping is the Hong Kong Convention. Although this instrument has not yet entered into force, it is fully supported by the international shipping industry and provides a sounder and far more relevant basis to determine whether a shipping company fulfils its responsibilities to ensure that redundant ships are recycled in a safe and environmentally sustainable manner. This compelled the European Parliament and the EU Council to develop the new Ship Recycling Regulation. Article 27 of this new regulation, once fully applied, excludes EU-flagged ships from the requirements of the Waste Shipment Regulation but does not exclude non-EU-flagged vessels. As Nikos Mikelis, former head of the IMO's maritime pollution prevention and ship recycling section, has stated:(1)
"Owners of non-EU-flag ships intending to recycle their vessels now or in the future will have to walk a tightrope when trading in EU ports so as not to fall prey to the activists, who see their role in enforcing the Ban Amendment to ship recycling and also in banning beaching."
For further information on this topic please contact Dirk Noels at Kegels & Co by telephone (+32 3 257 1771), fax (+32 3 257 1474) or email (email@example.com). The Kegels & Co website can be accessed at www.kegels-co.be.
(1) "Vessel arrest highlights need to ratify Hong Kong Convention on ship recycling", Tradewinds, June 13 2014.
Source: international law office. 3 September 2014http://www.internationallawoffice.com/newsletters/detail.aspx?g=1ad7f7e1-4cca-4df6-8774-9c08ca377f73