Hong Kong: Ship Recycling In India – Hong Kong Convention

Introduction

India commands the largest share of the world's shipbreaking industry but has justifiably been criticised for environmental degradation and lax compliance towards worker safety and health issues. This is meant to change with the introduction of legislation to give effect to the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, (Convention). The Convention is aimed at ensuring that ship recycling does not pose unnecessary risk to the environment or to human health and safety.

Hong Kong Convention

The Convention mandates the procedure to be followed for survey and certification of ships to be recycled as well as for the authorisation of ship-recycling facilities. It requires member states to prohibit and/or restrict the installation and use of certain hazardous materials on ships flying their flags or whilst in their ports, shipyards, ship repair yards or offshore terminals. It contemplates inspection of ships for the purpose of verifying that there is on board either an International Certificate on Inventory of Hazardous Materials or an International Ready for Recycling Certificate. It obliges states to frame laws imposing sanctions on ships and ship-recycling facilities contravening the Convention. The regulations appended to the Convention also list the various requirements which need to be met such as preparation of a ship-recycling facility plan and presence of an inventory of hazardous materials on board the ships.

India formerly acceded to the Convention in November 2019. The Convention has now been ratified by 15 IMO member states but is yet to formally come into force. This is because ratifying member states must represent 40% of world merchant shipping by gross tonnage, and must have a combined maximum annual ship recycling volume of not less than 3% of their combined gross tonnage for the past 10 years.

That means further tonnage and recycling volumes are needed before the convention can enter into force, which would require ratification by other major ship recycling nations like Bangladesh, China, Pakistan and Turkey.

 

Indian Background

In the Indian context, environmental concerns against shipbreaking were publicly raised for the first time when two heavily toxic French vessels were sent to India for dismantling. The Supreme Court recognised that precautionary and polluter-pay principles were part of Indian law but permitted the Blue Lady to be dismantled in Alang. However, the Supreme Court directed the authorities to frame legislation for environmentally safe dismantling of ships. A ship breaking code was accordingly formulated in 2013.

 

Shipbreaking Code (Code)

The Code divides the shipbreaking process into three broad stages- anchoring, beaching and ship recycling. The Code provides comprehensive regulations specific to each of these stages. There is a requirement of a Ship Recycling Facility Management Plan (SRFMP) and the Ship Specific Recycling Plan (SSRP) to be provided by the recycler to get permission for beaching. Along with the SSRP, there is also the requirement of producing a disposal plan as well as gas-free and fit-for-work certification.

The Code permits the authorities to deny permission of entry or beaching to vessels not fulfilling the requirements of the Code which can be traced back to the Basel Convention.

 

Worker Safety: Recognising that most workers employed in shipbreaking yards are illiterate, the Code requires the use of signs and symbols for warning workers against hazards. The Code also regulates the terms of employment of labourers by importing provisions from various labour welfare legislations. For example, it requires workers engaged in breaking/cutting ships to be registered either under Employees State Insurance Corporation or Workmen Compensation Act. Similarly, it imports the Factories Act to provide maximum weekly and daily hours of work, holidays and wages for overtime work. The Code also requires the Labour Department to ensure compliance with legislation stipulating minimum wages for workers.

The handling of hazardous material like asbestos waste and asbestos containing material has been separately regulated by the Code.

Prescribes stringent procedures at each stage of the demolition process, requiring multiple certificates (Certificate of Registry, non-encumbrance certificate, NOC's from various authorities) to be obtained and other compliances. Permission from different authorities like the State Maritime Board/Port Authority, the State Pollution Control Board, Petroleum and Explosives Safety Organisation, Atomic Energy Regulatory Board, Customs Department, are required depending on the type of ship. Verification of documents, physical inspection of the vessel and certification from different authorities is contemplated before permission to beach is granted.

 

Recycling of Ships Bill, 2019 (Bill)

A new Bill has been approved by the Union Cabinet in November 2019 and is now awaiting legislative approval by the Lok Sabha (Lower House of Parliament). It is unclear whether the Bill repeals the Code, given that the Code has more stringent provisions for beaching than the Bill.

The Bill substantially incorporates the provisions of the Convention and covers within its ambit:

i)                    new and existing ships registered in India

ii)                   ships entering a port or terminal in India or the territorial waters of India

iii)                 any warship or other ship owned and operated by an administration used for governmental non-commercial service and

iv)                 ship recycling facilities operating in India.

A ship in India can only be broken at an authorised ship recycling facility after being certified as ready for recycling.  The Bill, like the Convention, stipulates the procedure to be followed for survey and certification of ships as well as for the authorisation of ship-recycling facilities. The Bill restricts the use or installation of hazardous material on the ship, prohibited by the Central Government. The owner of every new ship is required to procure a 'certificate on inventory of hazardous materials' for each ship- existing ships not in possession of such certificate must obtain one within five years. Furthermore, the Bill provides for inspection of a ship recycling facility by the competent authority and mandates preparation of a ship-specific recycling plan by the recycling facility, an inventory of hazardous materials and requirement to report to the competent authority. Similar to the Convention, the Bill stipulates safe and environmentally sound management of hazardous waste and worker safety and training. Contravention of the provisions of the Bill, entail penalties upon both the ship owner and the recycling facility.

 

Lacunae in the Bill

The Convention leaves it to member states to employ a safe and sound method of shipbreaking. In India the method used, viz, beaching, is not environment and worker friendly. A major flaw in the Bill is that it neither specifies a method of ship recycling nor bans the beaching process. In contrast, the Code classifies the demolition process into stages and regulates beaching.

The requirement of 'prior informed consent' for the export of hazardous substances, which is a requirement of the Basel Convention and of the Code, finds no mention in the Bill.

The Bill, like the Convention, exempts from its ambit war ships or ships owned or operated by the Government and used for Government non-commercial purposes and ships that are less than five hundred gross tonnage. This omission is significant, given that warships and naval vessels have a large source of hazardous materials like asbestos and chemicals like mercury, which should have been regulated. Interestingly, the Code does not grant such an exemption to these vessels and instead categorises them as ships of 'special concern'.

The Convention, as well as the Bill, make clear that the responsibility of a ship owner is limited to getting clean certificates from the flag state. No responsibility for clean-up, is cast on the ship owner.

 Another drawback of the Bill is that instead of comprehensively providing for environment and worker safety, it delegates the making of such regulations and guidelines to other authorities, and leaves it to the ship recycling facility to comply with applicable regulations. This delegation makes the successful outcome of the objectives of the Bill uncertain and dependent on executive action. This is in marked contrast to the Convention and the Code both of which exhaustively provide for environment protection and worker safety.

 Although the Bill provides for compliance with the Factories Act, 1948, it is silent on the applicability of other labour welfare legislation, such as the Inter-State Migrant Workmen Act and the Trade Unions Act. The rights conferred on workman under these statutes should have been imported in the Bill. Significantly, there is no prohibition on the employment of minors and adolescents, considering that ship breaking is recognized as a hazardous industry and their employment in hazardous places of work is prohibited.

 

Conclusion

The Bill is a missed opportunity to address problems specific to the Indian ship breaking industry. The legislation should have drawn on the experience and difficulties faced in the implementation of the Code and devised a more robust legal framework for ship demolition. The Bill instead eases the more stringent regulatory framework prescribed by the Code. The ultimate objective, of ensuring that the Indian ship recycling industry embraces truly green recycling practices, remains for the time being an unfulfilled aspiration.

Source: mondaq. 11 August 2020

https://www.mondaq.com/hongkong/environmental-law/974864/ship-recycling-in-india-hong-kong-convention