Shipbreaking and the Basel Convention: Analysis of the Level of Control Established Under the Hong Kong Convention, April 2011

Executive Summary:

The current state of the shipbreaking industry—where ships are dismantled so that their parts can be recycled back onto the market—is dangerous to human health and the environment. Since 2004, more than 80% of vessels greater than 500 gross tons have been dismantled in South Asia using a technique known as “beaching,” where ships are run up onto sandy beaches and dismantled, largely by hand. With minimal or nonexistent protections for human health or the environment, shipbreaking is having a significant harmful effect on human health and the global environment.

The “beaching method” has caused severe pollution, occupational disease and even death in the India, Bangladesh and Pakistan. These are not only localized concerns: shipbreaking based on beaching results in the release of toxic chemicals including asbestos; persistent organic pollutants; and heavy metals such as lead, cadmium, mercury and arsenic. Most of these and the other chemicals released migrate across borders via environmental transport. The contamination of the environment coupled with poor working conditions are violating the human rights of the workers involved in shipbreaking, presenting issues of global concern that deserve an international response.

Increasing international concern with the hazardous nature of shipbreaking practices in the developing world has led to action by Parties to the Basel Convention, as well as by the International Labor Organization and the International Maritime Organization (IMO). In October 2004, by Decision VII/26, the Basel Convention Conference of Parties (COP) affirmed that a ship may become waste as defined in the Basel Convention and called on the Parties to fulfill their obligations under the Basel Convention, in particular with respect to prior informed consent, minimization of transboundary movement of hazardous waste and the principles of environmentally sound management. In December 2006, the Basel COP by Decision VIII/11 invited the IMO to ensure that the draft ship recycling convention to be adopted by it establishes an equivalent level of control as that established under the Basel Convention, noting that the duplication of regulatory instruments that have the same objective should be avoided. In 2009, the IMO adopted the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (Hong Kong Convention).

The Basel COP is expected to consider at its tenth meeting in October 2011 whether the Hong Kong Convention establishes a level of control and enforcement that is equivalent to the Basel Convention, taking into account comments by the Parties and other stakeholders. If the Basel COP determines that the Hong Kong Convention does in fact provide an “equivalent level of control,” then Basel Parties may decide not to apply the Basel Convention to those ships covered by the Hong Kong Convention. Alternatively, if the Basel COP concludes that aspects of the Hong Kong Convention do not provide an “equivalent level of control” to the Basel Convention, the Basel Convention would continue to apply to end-of-life vessels, as expressed in decision VII/26. Other possible outcomes of the COP include: a decision by the Parties requesting further work on the equivalence assessment of the Hong Kong Convention, a decision to amend the Basel Convention to exclude ships from its scope of application, a decision to negotiate a new protocol on shipbreaking, a decision to draft new guidelines on transboundary movement of ships, or, alternatively, no action by the COP, which would result in the concurrent application of both treaties.

The need to determine an “equivalent level of control” derives from Article 11 of the Basel Convention, which is the exclusive mechanism by which Parties may enter into other international agreements regulating the transboundary movement of hazardous waste. The Hong Kong Convention regulates the transboundary movement of end-of-life ships, which have been determined to constitute hazardous waste under the Basel Convention. In order to be considered a valid Article 11 Agreement, the Hong Kong Convention must meet certain criteria. The travaux préparatoiresof the Basel Convention, the Basel COP’s Decisions, and the practice of Parties show that an Article 11 Agreement must contain, at minimum, measures to ensure the environmentally sound management of waste and a strict control system based on prior informed consent. In addition, Article 11 requires that the Hong Kong Convention ensure consideration of the interests of developing states to the same degree as the Basel Convention.

This legal analysis concludes that the Hong Kong Convention does not provide a level of control that is equivalent to that provided by the Basel Convention, and therefore “derogates” from the environmentally sound management requirements articulated by the Basel Convention. Accordingly, the Basel Conference of the Parties should conclude that end-of-life ships shall remain subject to the regulatory framework of the Basel Convention.

In reaching this conclusion, this analysis applies the criteria articulated by the Open-Ended Working Group to the Basel Convention, in light of Article 11 of the Basel Convention. The analysis shows how the Hong Kong Convention would undermine key protections of the Basel Convention, including the following:

o Scope and Applicability: The Basel Convention’s scope applies to a broader range of ships and chemicals than the Hong Kong Convention. Further, the Hong Kong Convention fails to properly address the standards applicable to downstream facilities and their management of waste generated from the recycling activity.

o Control System: The notification system in the Hong Kong Convention is far weaker than the Basel Convention’s Prior Informed Consent mechanism. For example, the Hong Kong Convention allows transboundary movement of wastes upon the tacit, rather than express, consent of the recycling State. Also, the Hong Kong Convention is silent as to ability of the recycling State to reject importation of an end-of-life ship, in clear contrast to Basel, since its control system focuses on recycling operations rather than on the import and export involved in transboundary movement. Further, the Hong Kong Convention also ignores a key aspect of the Basel control system, which is the minimization of the transboundary movement of waste by greater national self-sufficiency in waste management. Also, procedures for authorizing recycling facilities and certifying ships under the Hong Kong Convention do not provide sufficient mandatory minimum standards to ensure that shipbreaking is conducted without adverse effects to human health and the environment – a key requirement of the Basel Convention.

o Enforcement: the Basel Convention provides a higher level of control and enforcement through the criminalization of illegal traffic of waste. By contrast, the Hong Kong Convention does not require the criminalization of illegal transfer of hazardous waste. In addition, the Hong Kong Convention lacks the duty to re-import waste illegally transferred, which is an essential component of the Basel Convention.

o Exchange of Information, Cooperation and Coordination: Although the information provision requirements are similar under both conventions, the reporting obligations under the Basel Convention are more comprehensive than the Hong Kong Convention.

Finally, a key criterion missing from the criteria proposed by the Basel Convention’s Open Ended Working Group is the especial consideration of the interests of developing countries, a factor mandated by Article 11 of the Basel Convention. Such consideration is built into the entire policy framework of the Basel Convention by, for example, the provision of funding to Parties to assist them in their efforts to comply with the Convention and the prohibition of exports to Parties when there is reason to believe the wastes will not be managed in an environmentally sound manner. It is also a fundamental basis of the Basel Ban Amendment and the decisions that enabled the Basel Ban. The Hong Kong Convention’s shifting of the burden of ensuring environmentally sound management to the Recycling State and its vagueness as to the obligations of the shipowner prior to shipbreaking is further evidence that it does not sufficiently take into account the interests of developing countries.

The Hong Kong Convention does include certain features that, if fully implemented, could reduce the environmental, health, and human rights impacts of shipbreaking. These include assurances of gas-free for hot work prior to recycling as well as comprehensive inventories of hazardous materials on board new ships. However, even if implemented, these features of the Hong Kong Convention would not provide a level of protection equivalent to the Basel Convention.

In light of these and other limitations, the Hong Kong Convention, while useful, clearly fails to ensure that shipbreaking will be conducted globally in a manner as protective of human rights and the environment as does the Basel Convention. In particular, the Hong Convention does not ensure a level of control over the transboundary movement of end-of-life ships and their disposal equivalent to that established under the Basel Convention. The Basel Convention’s Conference of the Parties should therefore find that the Hong Kong Convention fails to ensure a level of control as that established under the Basel Convention. The Conference of the Parties should further decide that the Basel Convention will continue to engage the shipbreaking issue in order to achieve the Convention’s overall goal to protect human health and the environment against the adverse effects that may result from the generation, transboundary movement and management of ships as hazardous wastes.

Legal analysis prepared by:

CIEL Attorneys Marcos A Orellana and David Azoulay and CIEL Law Fellows Hana Heineken and Serena Corbetta. Comments or questions are welcome at morellana@ciel.org.

Center for International Environmental Law (CIEFL)

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Source link: http://www.ciel.org/Publications/Shipbreaking_22Apr11.pdf

Accessed on 2 June 2011