Introduction
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.
Comment
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 (dirk.noels@kegels-co.be). The Kegels & Co website can be
accessed at www.kegels-co.be.
Endnotes
(1) "Vessel arrest highlights need to ratify
Hong Kong Convention on ship recycling", Tradewinds, June 13 2014.
Source: international law office. 3
September 2014
http://www.internationallawoffice.com/newsletters/detail.aspx?g=1ad7f7e1-4cca-4df6-8774-9c08ca377f73
No comments:
Post a Comment