Findings/Conclusions:
1. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”) applies to the transboundary movement of ships destined for final disposal or recycling when they contain hazardous materials defined as hazardous wastes in the Convention. As such, the Convention imposes substantive obligations on all the Parties often irrespective of the Party’s status, to prevent the movement and disposal of these ships-as-hazardous-waste in contravention of the Convention.
2. A ship destined for shipbreaking is an obvious example of the kind of situation for which the objectives of the Basel Convention apply. The primary purpose of the Convention is to ensure Parties take responsibility for their own hazardous waste, establish hazardous waste disposal facilities (including recycling) within their country, minimize the generation and transboundary movement of hazardous waste, and ensure that they do not export the hazards, and damage to human health and the environment, to other countries. In most cases, ships exported for shipbreaking are a clear and convincing violation of these objectives. Therefore, it is incumbent upon the Parties to ensure that all ship sales are scrutinized to ensure that no attempted circumvention of the Convention exists.
3. The Basel Convention in its scope and obligations are not confined to prior-informed consent, but go far beyond this mechanical paperwork regime. We therefore disagree with the submission of Prof. Geir Ulfstein’s (“Prof. Ulfstein”) in its conclusion that port states have no jurisdiction over vessels destined for scrapping with regard to scrapping in other states; or that flag states are not responsible for the activities of their vessels. Indeed it is clear that many of the Basel obligations will apply to Parties holding jurisdiction over owners, brokers, captains, crew, etc.
4. We agree with the Canadian Government’s submission (“Canada”) in its conclusion that there is no need for the Basel Legal Group to propose the adoption of a new legal instrument to cover issues adequately and appropriately addressed by the Basel Convention. Rather what is needed is the adoption of a Guideline or Decision to clarify the effect of the Basel Convention to ships. An example of needed clarification involves better defining at what point a ship will be deemed a waste and how that will be determined.
5. Similarly, much ambiguity will be overcome, and harmony with the OECD regime attained, if mirror listings in Annex VIII and IX of the Basel Convention with respect to ships-as-hazardous wastes, are added by amendment to those Annexes.
6. Pursuant to the substantive obligations of the Basel Convention, the Basel Ban has clear relevance to the issue of shipbreaking, and the importance of the Basel Ban is likewise certain. According to Decision III/1, all Annex VII countries, regardless of their status, e.g. State of Export, port state, etc., have obligations to take legal actions to prevent hazardous wastes, such as ships destined for disposal or recycling, from being exported and disposed (including recycling) in non-Annex VII countries.
7. We support any efforts to pursue open discussion to reach a common understanding on the interpretation of the Basel Convention on the issue of shipbreaking and a pragmatic approach that will ensure proper implementation.
I. Ships as Hazardous Waste: Within the Scope of Basel Convention
1. We concur with Canada in their review of Prof. Ulfstein’s paper “that the Basel Convention applies to wastes that are disposed of, are required to be disposed of or are intended to be disposed of, including ships.”
2. We also concur with Canada that in ascertaining the meaning of the phrase “intended to be disposed of” simply involves an interpretation of the Basel Convention’s definition of waste to specific known facts. This can be established in many ways, a contract, for example, can be evidence of intent to dispose. Additionally, acts, such as facsimile, phone call, telex or electronic mail, which show an intention to dispose, are also sufficient evidence of such intent. Preparatory actions such as cancellation or modification of insurance, a notice of destination to a port or notices given to crew can all evidence intent to dispose.
3. If the owners intend to dispose of a ship-as-hazardous-waste prior to its arrival at the shipbreaking state, then the Basel Convention’s obligations cannot be frustrated by simply signing an agreement, e.g. sale, charter, etc. that disguises intent to dispose, or that avoids establishing such intent prior to export by avoiding signing a written agreement.
However, illegal as this might be, it is far too easy to hide or obscure “intent to dispose”. For example, a ship owner may simply not announce such intent until the ship in question is in the shipbreaking state, thereby avoiding the “waste” definition, the transboundary movement and eventually, most of the obligations of the Basel Convention. In this scenario the vessel’s crew and others usually are well aware of the fate of the ship destined for breaking or disposal. Cases that fit this potential circumvention scenario could be uncovered but would need to be scrutinized by the relevant authorities to do so.
Thus, in our view the greatest obstacle to easily applying the Basel Convention to ships-as-hazardous-waste lies with the question of hiding “intent-to-dispose”. It is therefore strongly suggested that a solution such as that proposed by the European Commission (see Annex B) be seriously explored and established as part of a Guideline or Decision elaborating and clarifying this issue among Parties.
4. We agree with Prof. Ulfstein’s assumption that the vessel itself should be considered “hazardous waste” under Art. 1(1) of the Basel Convention, and not only the individual hazardous substance that forms part of or that exists on board a vessel.
5. Similarly, we support Canada’s opinion that a vessel or other floating structure that contains hazardous components be controlled as an amber waste under the OECD control system.
To eliminate any ambiguity in the Basel Convention, regarding hazardous waste definitions, we propose amending Annexes VIII and IX with mirror listings similar in terminology to the current OECD listing.
Add to Annex VIII of the Basel Convention:
“Vessels and other floating structures for breaking up, not properly emptied or decontaminated of any material considered as hazardous waste under the Convention.”
Add to Annex IX of the Basel Convention:
“Vessels and other floating structures for breaking up, properly emptied or decontaminated of any material considered as hazardous waste under the Convention.”
6. We agree with Prof. Ulfstein that full abandonment is disposal under Annex IV of the Basel Convention. Disposal such as scuttling is, of course, disposal according to Annex IV (D1, D6).
II. Obligations under the Basel Convention
1. Article 6 Procedural Obligations
Clearly if an State of Export has been established then it will need to comply with Article 6 and its “prior informed consent” (PIC) regime.
2. Overarching Substantive Obligations – Art. 4
Although Prof. Ulfstein provides a detailed elaboration of the procedural obligation of the State Parties under Art. 6 (1), it is important to note that the Basel Convention imposes several overarching substantive obligations that empower Parties to act upon the shipbreaking issue, aside from the mechanics of the PIC procedures outlined in Art. 6. The biggest error in Prof. Ulfstein’s paper is that he ignores the clear Basel obligations on Parties outside of the Article 6 PIC regime:
a) The Basel Convention obligates the Parties, irrespective of their status (e.g. State of Export, Import, Transit, flag or port state), to prohibit or not permit the export of hazardous and other wastes to Parties, which have prohibited the import of such wastes (Art. 4(1)(b)).
b) The Basel Convention obligates the Parties, irrespective of their status, to prohibit or not permit such export where the State of Import does not consent in writing to the specific import (Art. 4 (1)(c)).
c) Another overarching Basel obligation requires that Parties must ensure that the transboundary movement of hazardous waste and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement (Art. 4 (2)(d)).
d) A Party, again irrespective of its status, is obligated not to allow the export of hazardous or other wastes if the Party has reason to believe that the wastes in question will not be managed in an environmentally sound manner (Art. 4(2)(e)).
The Basel definition of “environmentally sound management” (ESM) is “taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes.” (Art. 2(8)) (Emphasis added)
It must be noted that most shipbreaking operations around the world at this time do not meet this criterion. Ships destined for shipbreaking contain significant quantities of asbestos, polychlorinated biphenyls (PCBs), hydraulic fluids, paints containing lead and/or other heavy metals, tributyltin or TBT antifouling coatings, contaminated holding tanks, and other substances rendering them hazardous waste and extremely dangerous to human health and the environment when scrapped in existing shipbreaking yards. Most of the shipbreaking is taking place in Asia, e.g., India, where the conditions are documented to be exceptionally dangerous and damaging to the health of the workers, surrounding community, and the environment.
e) Each Party, regardless of status, also has a legal obligation to prohibit illegal ship movements and must do so with respect to all persons, including corporations subject to its jurisdiction, including owners, charterers, brokers, shipping agents, and captains and crew, since under Art. 4(4), each Party must take appropriate legal, administrative and other measures, including measures to prevent and punish conduct in contravention of the Convention. This is a crucial provision too often overlooked.
f) Moreover, the Convention allows each Party to take further action against hazardous wastes, as the Convention does not prevent any Party from imposing additional requirements beyond what is mentioned in the Convention, provided that any additional requirements are consistent with the provisions of the Convention, and is in accordance with the rules of international law, in order better to protect human health and the environment (Art. 4(11)).
g) The requirements of implementation and enforcement under Art. 4(4), and enhanced under Art. 4(11) recognize the Convention’s respect for a Party’s sovereignty, as these provisions require national legislation and national legal actions to operationalize their requirements. At the same time both articles unequivocally establish that Parties must proactively implement the Convention and that other appropriate measures of enforcement of the Basel Convention obligations are available to the Parties.
3. Port State / Flag State Jurisdiction and Navigational Rights
We, like Canada, strongly dispute Prof. Ulfstein’s conclusion that port states would have no jurisdiction over foreign flag vessels to protect the environment, in light of the above provisions. Prof. Ulfstein’s conclusion is based on an inappropriate extension of the “flag doctrine” to the exclusion of other applicable provisions such as Articles 4(7)(a) which applies to “all persons under its national jurisdiction”, and Articles 4(4) and 4(11).
Furthermore, it is well established that a state has jurisdiction over its territorial waters with respect to the preservation of the environment, prevention, reduction, and control of pollution, and protection of human health. The exception cited by Prof. Ulfstein in Article 4(12), relating to navigational rights and freedom of States, applies to navigation and will not oust jurisdiction while the ship is in port. An appropriate example of port state jurisdiction referred to above, is Article 23 of the 1995 Straddling Stocks Convention, which provides that a port state has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of sub-regional, regional and global conservation and management measures.
A port state may inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports or at its offshore terminals and States may adopt regulations empowering the relevant national authorities to prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of sub-regional, regional or global conservation and management measures on the high seas.
Also, note that Art. 4(12) first acknowledges the sovereignty of State Parties over their territorial sea. Sole emphasis on the navigational rights and freedoms of ships without considering the sovereignty of State Parties in the interpretation of Art. 4(12) will inevitably result in an imbalanced perspective. Thus, navigational rights and freedom can be tempered by State actions to protect and preserve the environment. A contrary interpretation of Art. 4(12) would completely undermine all control measures found in the Basel Convention, as the Basel Convention is clearly designed to control certain navigation that is in contravention of the Convention.
The tentative suggestion by Prof. Ulfstein citing restrictions on the port state’s jurisdiction based on the “temporary presence of foreign ships in ports” is irrelevant. There is nothing to prevent a port state, in the exercise of its sovereignty and in the observance of its obligation under the Basel Convention, from requiring such consent - such a requirement is applicable to the vessel while it is in port. It need not extend to the ship after the ship has left its territory, which is the issue Churchill and Lowe are addressing in their rather tentative suggestion. Port state jurisdiction is widely recognized in the law of the sea context, for instance in the 1995 Straddling Stocks Convention. Just as States Party to that Convention recognize port state jurisdiction, Professor Ulfstein is absolutely correct in observing that States Party to the Basel Convention have consented to restrictions imposed under the Basel Convention.
We also take issue with Prof. Ulfstein’s conclusion that flag states have no obligation under the Basel Convention to ensure the existence of consent from the Importing State. Article 4(7)(a) binds flag states that are Parties to the Basel Convention. Furthermore, Article 94(1) of United Nations Convention on the Law of the Sea (UNCLOS) requires that every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. Article 94(2)(b) of the UNCLOS also requires that States shall assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
In sum, port states have jurisdiction over foreign vessels under the Basel Convention to require that the consent be obtained from the state where the vessel will be disposed of, and other obligations under the Convention such as ascertaining that ship-as-hazardous-waste will be destined to environmentally sound management etc., and such jurisdiction is recognized in international law.
2. Party Obligation under the Basel Ban Amendment (Decision III/1)
The Basel Ban obligation states that all Annex VII Parties have a special obligation to “prohibit all transboundary movements of hazardous wastes which are destined for operations according to Annex IV A to States not listed in Annex VII.”
Note that the obligation is not solely that of the Annex VII State of Export, but would also include Annex VII port states, flag states, transit states, etc. as having an obligation to uphold the prohibition. Thus, Annex VII port states must prohibit the departure of any ships within its territory destined for shipbreaking in non-Annex VII States, and Annex VII flag states must do all they can to legally prohibit the transboundary movement of such ships. If any intention to dispose has been formed prior to departure from any Annex VII port state, the departure should be banned, and the moment any intention has been formed, Annex VII flag states must likewise prohibit the movement of the ship. Finally, those Annex VII states that have jurisdiction over, persons, including corporations, owners, charterers, brokers, shipping agents, captains and crew, to prevent/prohibit the export to non-Annex VII states also must take action to prohibit the ship-as-hazardous-waste from moving to a non-Annex VII country.
III. Other Outstanding Issues
1. We take exception to the argument made by industry on certain occasions, that a ship cannot be a ship and a hazardous waste at the same time, while the ship can sail under its own power. The Basel Convention defines “hazardous wastes” as those “[w]astes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III….”. The Convention does not hinge its definition on whether the waste is capable of operating under its own power or is incapable of any type of functionality or ability to float, operate etc., nor does the Convention exempt a waste based on its possible subsequent economic reutilization. Interpretations that attempt to include these non-existent criteria are without foundation.
2. We also take exception to the argument that if the hazardous waste is in the structure of the ship, the ship itself cannot be considered a hazardous waste, particularly if the hazardous material is a small concentration (by weight) of the total weight of the vessel. Again, the Basel Convention looks at “hazardous waste” whether it belongs to any category contained in Annex I, and whether it possesses any characteristics contained in Annex III. With the notable exception of PCBs (50 ppm) the Convention does not set concentration levels for when a material will or will not exhibit a hazardous characteristic.
The Basel Convention supplies an intelligent definition in this regard, given that some highly toxic substances are disproportionately light in weight or concentration as compared to a ship’s total weight and mass, but are undiminished in their toxicity to humans and the environment, e.g. asbestos, tributyl tin, dioxins etc.
3. Finally, we take note that Art. 1(4) provides that “[w]astes which derive from the normal operation of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention.” This article does not apply to ships destined for shipbreaking nor to their construction materials and components. Rather it excludes operational discharges such as ballast water releases, oil losses during voyage, etc. because such operational discharges from ships in operation are covered by the International Convention for the Prevention of Pollution from Ships (MARPOL), an International Maritime Organization legal regime.
Submitted by the Basel Action Network (BAN) and Greenpeace International for the 4th Session of the Legal Working Group of the Basel Convention.
10 January 2002
