Introduction:
1. The Special Rapporteur of the United Nations Human Rights Council on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, Mr. Calin Georgescu, welcomes the opportunity to provide his assessment of whether the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (hereinafter, the Hong Kong Convention) establishes an equivalent level of control and enforcement as that established under the Basel Convention. This assessment is submitted in accordance with decision VII/12 of the Open-ended Working Group of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.
2. The aim of this analysis is to consider the Hong Kong Convention from a human rights perspective, in order to assess the extent to which the obligations it creates are consistent with the obligations that its future parties have undertaken under international human rights law. Most parties to the Basel Convention and member States
3. Pursuant to these treaties, they have undertaken an obligation to protect the inherent dignity and the inalienable rights of individuals and communities within their jurisdiction by – inter alia – eliminating, or reducing to a minimum, the risks that hazardous products and wastes may pose to the enjoyment of human rights, including the right to life, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to safe and healthy working conditions, the right to food and safe drinking water, the right to adequate housing, the right to information and participation in public affairsand other human rights enshrined in the Covenants and the Universal Declaration of Human Rights.
4. The following assessment is based on previous work carried out by the mandate on the issue of ship recycling, and in particular on the annual report submitted by the previous Special Rapporteur, Mr. Okechukwu Ibeanu, to the 12th session of the Human Rights Council (A/HRC/12/26).
The IMO Convention on ship recycling: an overview
5. The Hong Kong Convention consists of 21 articles and 25 regulations for safe and environmentally sound recycling of ships, which are annexed to the Convention and form an integral part of it (art. 1.5). The Convention applies to ships entitled to fly the flag of a party or operating under its authority, as well as to ship recycling facilities operating under the jurisdiction of a party (art. 3.1).
6. The aim of the Hong Kong Convention is to prevent, reduce, minimise and, to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by ship recycling, and enhance ship safety, protection of human health and the environment throughout a ship’s operating life (art. 1.1). The Convention does not prevent parties from taking, individually or jointly, more stringent measures consistent with international law (including human rights law) aimed at protecting human health and the environment from any adverse effects caused by ship recycling (art. 1.2).
7. The Hong Kong Convention sets out specific requirements concerning the operation of ships in consideration of their future recycling. Parties to the Convention have an obligation to prohibit and/or restrict the installation or use of hazardous materials listed in appendix 1 on ships entitled to fly their flags or operating under their authority (regulation 4). All ships (both new and existing) are required to have on board an inventory of hazardous materials, to be updated throughout the ship’s life. The inventory must be specific to each ship and identify, in Part I, hazardous materials contained in the ship’s structure or equipment, and clarify that the ship complies with regulation 4 (regulations 5.1 and 5.2). Part I of the inventory must be properly maintained and updated throughout the ship’s operational life. Prior to recycling, Part II on operationally generated wastes and Part III on stores have to be incorporated in the inventory (regulation 5.4).
8. Recycling States have an obligation to ensure that ship-recycling facilities operating under their jurisdiction are authorised in accordance with the regulations annexed to the Convention (art. 6). Ships can only be recycled at ship-recycling facilities that are: (a) authorised in accordance with the Convention; and (b) fully authorised to undertake all the recycling activities specified in the ship-recycling plan. A ship going for recycling shall be certified as ready for recycling by the competent authority of the flag State prior to any recycling activity taking place (regulation 8.6).
9. Authorised ship-recycling facilities are required to prepare a ship-recycling facility plan (regulation 18), and adopt and implement appropriate procedures and plans for: the prevention of hazardous conditions like explosions and fire, or accidents, spills, and emissions which may cause harm to human health and/or the environment (regulation 19). The ship-recycling facility plan will also cover the safe and environmentally sound management of hazardous materials (regulation 20); emergency preparedness and response (regulation 21); worker safety and training (regulation 22); and reporting on incidents, accidents, occupational diseases and chronic effects resulting from ship-recycling activities (regulation 23).
10. Prior to any recycling, ship-recycling facilities have to develop a ship-specific ship recycling plan (regulation 9.1), which should include information on, inter alia, the establishment of safe-for-entry and safe-for-hot-work conditions, the type and amount of materials indentified in the inventory of hazardous materials that the facility can handle in an environmentally sound manner, and how the recycling will be undertaken.
11. The IMO is currently developing a set of voluntary guidelines in order to ensure the effective implementation of the Convention. A first set of guidelines for the development of the inventory of hazardous materials was adopted in July 2009, and three additional sets – on safe and environmentally sound ship recycling, on the development of the ship-recycling plan and the authorisation of ship-recycling facilities – are expected to be adopted by the IMO Marine Environment Protection Committee (MEPC) in July 2011. The last two sets of guidelines will be developed and adopted in October of 2012.
12. The Convention will enter into force 24 months after the date on which 15 States, representing 40 per cent of world merchant shipping by gross tonnage, have either signed it without reservation as to ratification, acceptance or approval, or have deposited instruments of ratification, acceptance, approval or accession with the Secretary-General. The combined maximum annual ship-recycling volume of those States must, during the preceding 10 years, constitute not less than 3 per cent of their combined merchant shipping tonnage (art. 17). Due to these stringent requirements, it may take several years for the Convention to enter into force. As of 28 February 2011, five States signed the Convention.
13. The diplomatic conference that elaborated the Hong Kong Convention also adopted a resolution inviting States and the industry to voluntarily implement relevant technical requirements of the Convention in the interim period up to the Convention’s entry into force. These technical requirements include for example the prohibition of installation or use of hazardous materials listed in Appendix 1 of the Convention and the elaboration of an inventory of hazardous materials for all ships. The voluntary implementation of the technical standards of the Hong Kong Convention prior to its entry into force requires the adoption of guidelines on safe and environmentally sound ship recycling and on the development of the ship-recycling plan, which are currently being developed.
The IMO Convention analysed through a human rights lens:
14. As his predecessor, the Special Rapporteur believes that the new IMO Convention on ship recycling represents a positive step towards creating an enforceable regulatory regime aimed at reducing the risks that end-of-life ships pose to human health and safety and to the environment when being scrapped.
15. The Special Rapporteur is aware of the fact that a different text imposing much stricter requirements for ship recycling would not have been supported by the main shipping countries or ship recycling countries, or would have probably failed to attract enough ratification to enter into force within a reasonable period of time. He is also aware of the practical and legal uncertainties concerning the application of the Basel Convention to ships moved for recycling.
16. Nevertheless, the Special Rapporteur cannot but observe that the forum chosen for the development of the Convention and the approach followed by IMO to reach an agreement over the final text have in some cases determined the predominance of economic interests over the overarching objective of protecting human health and the environment against the major hazards posed by the current ways of dismantling ships. In this regard, the Special Rapporteur would like to make the following observations:
(a) The IMO Convention fails to regulate in detail many important aspects of ship recycling activities, such as the adoption of the inventory of hazardous materials, the development of ship-recycling plans, the authorisation of ship-recycling facilities or the elaboration of appropriate procedures to prevent adverse effects to human health and the environment. These and other issues will be addressed only by the non-mandatory guidelines that are currently being developed by the IMO to ensure the effective implementation of the Convention, and which parties are only requested to “take into account”;
(b) The IMO Convention places a disproportionate burden on ship recycling States, which are primarily developing countries. While the Convention does require that all ships carry on board an inventory of hazardous materials, it does not impose any obligation on shipowners to pre-clean ships of their hazardous materials prior to their recycling in a certified ship-recycling facility. The Convention only calls for the amount of cargo residues, fuel oil and waste on board to be “minimised” prior to their dispatch to a recycling facility. The Special Rapporteur considers that in order to minimise the transboundary movement of toxic substances contained on board end-of-life ships, stronger stipulations as to the decontamination requirements prior to dismantling should have been made in the IMO Convention. As far as the pre-cleaning of end-of-life vessels is concerned, the Special Rapporteur is of the view that the IMO Convention does not provide an equivalent level of control and enforcement as that established under the Basel Convention, since the latter would, in principle, prohibit the movement of end-of-life ships containing asbestos, PCBs or other hazardous materials to countries where such wastes could not be handled in an environmentally sound way;
(c) There is no provision in the IMO Convention calling for the gradual phase-out of the “beaching” method and a move towards alternative methods of ship recycling. The Special Rapporteur acknowledges that the Basel Convention – which had not been specifically adopted to regulate ship recycling activities – does not include any specific requirement to ban the dismantling of ships on tidal beaches. Nevertheless, he considers that “environmentally sound management” (art. 2.8 of the Basel Convention), which requires the adoption of all practicable steps to ensure that hazardous wastes are managed in such a way to protect human health and the environment against the adverse effects which may result from these wastes, cannot be achieved when ships are dismantled on tidal beaches without concrete covering or any other containment other than the hull of the ship itself. Therefore, the Special Rapporteur concludes that the IMO Convention fails to provide a level of control and enforcement that is equivalent to that established under the Basel Convention in this regard;
(d) The IMO Convention does not contain any provision for a ship-recycling fund or an alternative financing mechanism to help ship-recycling facilities improve their recycling standards and thus comply with the Convention’s requirements. In this regard, the Special Rapporteur notes with regret that a proposal for the establishment of a ship-recycling fund was rejected during the negotiations that led to the adoption of the new Convention. With the exception of cases where grants, loans or technical assistance is provided, the costs for improving human health and environmental protection will thus be borne by the ship-recycling facilities themselves;
(e) The new Convention stipulates that wastes generated from recycling activities should only be transferred to a waste-management facility authorised to deal with their treatment and disposal in an environmentally sound manner. However, there are no provisions in the Convention to ensure that waste dispatched to downstream facilities is traceable, thereby enabling verification of its proper handling, treatment and ultimate disposal. The Special Rapporteur notes that the Basel Convention emphasises the importance of traceability of waste until its final disposal, so as to ensure that waste is managed and disposed of in accordance with the principle of environmentally sound management;
(f) The Convention provides that ship-recycling States are required to approve ships that will be recycled within their jurisdiction. Such a determination will be made by reviewing the inventory of hazardous materials and the ship-specific ship-recycling plan, so as to ensure that the capabilities of the recycling facility match the ship to be recycled. However, ship-recycling States may opt out of an explicit approval procedure of each ship-recycling plan (and essentially of each ship) and only require a tacit approval procedure (regulation 9.4.2). The Special Rapporteur considers that to satisfy the Basel
(g) The IMO Convention does not apply to warships or other ships owned or operated by a State party and used for non-commercial service (art. 3.2), nor is it applicable with regard to small ships (ships of less than 500 GT) or ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the flag State (art. 3.3). The Special Rapporteur wishes to observe that both categories of ships would fall within the scope of the Basel Convention (provided they contain asbestos, PCBs or other hazardous materials and are moving across borders in order to be dismantled). Regardless its final decision on the equivalency between the Basel Convention and the Hong Kong Convention, the Conference of Parties to the Basel Convention may wish to retain jurisdiction over those ships in order to avoid dangerous legal loopholes;
(h) Finally, the Special Rapporteur notes that the stringent requirements for the entry into force of the new Convention raise concerns as to the time it will take before the Convention enters into force. According to various sources, even 2013 may be unrealistic. Therefore, the Special Rapporteur calls on the parties to the Basel Convention to consider, during their discussion on equivalency, steps to be taken during the interim period to ensure the environmentally sound management of ship-recycling facilities.
Conclusions and recommendations
17. The Special Rapporteur welcomes the efforts undertaken by the international community to address the growing concerns about the poor working practices and environmental situation prevailing in most ship recycling yards across the world. These efforts have resulted in the adoption of the Hong Kong Convention on ship recycling, which witnesses the serious commitment of the international community to the development of an enforceable regulatory regime for a safer and more environmentally sound management and disposal of end-of-life vessels worldwide.
18. The Special Rapporteur encourages States members of IMO to take all appropriate steps to ratify the Convention within a reasonable period of time. In the interim period up to the Convention’s entry into force, he encourages ship recycling States, flag States and the ship recycling industry to consider applying the technical requirements of the Convention, as well as existing guidelines and standards, on a voluntary basis. The Special Rapporteur also recommends that the Conference of the Parties to the Basel Convention, the International Maritime Organisation and the International Labour Organisation continue working together with a view to avoiding duplication of work and overlapping of responsibilities and competencies.
19. The Special Rapporteur is of the view that the new Convention, although representing a step in the right direction, is not sufficient to bring about the significant and urgently needed improvements to the working practices prevailing in ship recycling yards or the elimination of the serious environmental pollution that ship recycling yards generate. Therefore, he calls on all relevant stakeholders, including ship recycling States, flag States, the ship recycling industry and international organisations and mechanisms, to consider adopting and implementing additional measures to address the negative impacts of ship recycling that are not covered by the new Convention. In particular, the Special Rapporteur recommends the adoption of appropriate measures in the following areas:
(a) Pre-cleaning.
Developed countries should consider adopting appropriate measures, including awards for “green” ship dismantling, to prevent, in line with the Basel Convention Ban Amendment, the export of end-of-life vessels containing hazardous materials to developing countries which do not have the capacity to manage them in an environmentally sound manner. Similarly, shipowners are encouraged, in line with the emerging body of norms on corporate social responsibility and the “polluter pays” principle, to consider pre-cleaning their ships in developed countries, prior to their dispatch to recycling facilities in developing countries;
(b) Environmentally sound waste management.
Ship-recycling States should endeavour to enforce international obligations and national legislation on environmental protection and develop appropriate infrastructure for ship-recycling activities, including waste management facilities (e.g. landfill sites, incineration plants, etc.). National legislation should, in particular, lay down the conditions under which ships may be accepted into its jurisdiction for recycling. Taking into account that the “beaching” method does not and cannot, by its very nature, offer sufficient guarantees for the environmentally sound management of the hazardous wastes it generates, stakeholders should consider adopting all appropriate measures to ensure the gradual phasing-out of “beaching” and a swift and steady move towards alternative methods of ship recycling;
(c) Workers’ rights.
Ship recycling States should take steps to improve their regulatory and enforcement capacities in the field of labour law and worker safety, health and welfare, so as to strengthen the protection afforded to persons employed in the ship recycling industry. They should also eliminate obstacles which de facto prevent workers in ship recycling yards from exercising their freedom of association and right to collective bargaining, and set up an effective and reliable system of labour inspections, with the participation of workers’ representatives. Ship recycling States should also take immediate steps, to the maximum of their available resources, with a view to realising fully the right of workers to social security in the event of accidents and occupational diseases. Yard owners should take all appropriate measures, when needed through State support and international assistance and cooperation, to improve health and safety at work (inter alia by providing adequate personal protective equipment and safety training), promote better health care, housing and sanitation facilities for workers, and develop appropriate mandatory insurance schemes to protect workers in the event of accidents and occupational diseases;
(d) Data collection.
Ship-recycling States and yard owners should collect disaggregated statistical data on an annual comparative basis on workers who die or become disabled as a result of work-related accidents or occupational diseases, and make the data publicly available;
(e) Ship-recycling fund.
States and the shipping industry should consider establishing a ship-recycling fund to support the upgrade of facilities in accordance with the new Convention requirements and promote the development of alternative methods of ship dismantling (with a view to phasing-out “beaching” in the longer term). They should also consider the creation of a fund for victims of accidents and their families, aimed at providing adequate compensation to injured workers or relatives of deceased workers for work-related accidents or occupational diseases resulting in death or permanent disabilities;
(f) International co-operation and assistance.
Developed countries, regional integration organizations and international organisations should provide technical assistance to and co-operate with ship-recycling States and other interested parties on projects involving the transfer of technology, or aid funding to provide safety training for workers and support the establishment of basic infrastructure for environmental and human health protection in the recycling facilities. The Special Rapporteur wishes to emphasise that in accordance with Articles 55 and 56 of the Charter of the United Nations, as well as with well-established principles of international law, international co-operation for development is an obligation of all States.
Source: UNEP. April 2011.
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