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UNITEDNATIONS BC

UNEP/CHW.10/INF/18

Distr.: General11 August 2011

English only

Conference of the Parties to the Basel Conventionon the Control of Transboundary Movements ofHazardous Wastes and Their DisposalTenth meetingCartagena, Colombia, 17–21 October 2011Item 3 (c) (vii) of the provisional agenda

Matters related to the implementation of the Convention:legal, compliance and governance matters: environmentally sound dismantling of ships

Compilation of the completed tables and submissions received pursuant to decision OEWG-VII/12

Note by the Secretariat

1. Decision OEWG-VII/12 on the Environmentally sound dismantling of ships requests the Secretariat to compile and synthesize the completed tables received from parties and other stakeholders pursuant to this decision. It also requests the Secretariat to transmit the compilation and synthesis of the completed tables and the preliminary assessments submitted pursuant to the decision to the tenth meeting of the Conference of the Parties.

2. Annex I to this document contains a compilation of the tables submitted by parties and other relevant stakeholders pursuant to decision OEWG-VII/12. In compiling the tables received, for reasons of economy and usability, the Secretariat condensed the references made to relevant articles and regulations of the Basel Convention and the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships.

3. The Secretariat received two submissions for which the abovementioned tables were not completed: one from the International Ship Recycling Association, and the other from the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights. These submissions, and the complete submissions received from parties and other relevant stakeholders, are presented in annex II to this document. They have not been formally edited by the Secretariat and are presented as received.

4. A synthesis of the completed tables submitted by parties and other relevant stakeholders is available in the annex to document UNEP/CHW.10/18.

Reissued for technical reasons on 19 October 2011. UNEP/CHW.10/1.

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Annex I

Compilation of tables received from parties and other stakeholders pursuant to decision OEWG-VII/12

Criteria Basel Convention Hong Kong Convention Comments to facilitate a preliminary assessment of equivalent level of control and enforcement

Scope and applicabilityWhat? Coverage of

ships/wastes

EU Article 2 Article 3 The Basel Convention applies to transboundary movements of hazardous wastes and certain other wastes, to domestic environmentally sound management of waste, as well as wastes defined as hazardous waste under national legislation. “Wastes” in the sense of the Basel Convention are, according to Article 2(1), substances or objects which are disposed of or are intended or are required to be disposed of by the provisions of national law. A ship may become waste as defined in Article 2 of the Basel Convention and, at the same time, it may be defined as a ship under other international rules as was stated in Decision VII/26 of the Conference of the Parties to the Basel Convention. The Basel Convention does not exempt military or other state-owned waste - ships - from its scope. All ships that are hazardous waste are covered irrespective of size or type.

The Hong Kong Convention (article 3 (1)) applies to:1. Ships entitled to fly the flag of a Party or operating under its authority;2. Ship Recycling Facilities operating under the jurisdiction of a Party.This Convention does not apply (article 3 (2) and 3(3)) to:- any warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only on government non-commercial service.- ships of less than 500 GT or to ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the State whose flag the ship is entitled to fly.However, each Party has to ensure, by the adoption of appropriate measures, that such ships act in a manner consistent with the Convention, so far as is reasonable and practicable.

JAPAN Article 2.1 Article 3.1, Article 3.2 As regards the ships which are not covered by HKC, when they are broken down into sections or parts, such materials can be covered by BC.

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USA Wastes: Article 1.1Article 2.1Article 2.3

Ships:Article 2.1Article 4.12Decision VII/26: “a ship may become waste as defined inarticle 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules”

Wastes: Article 2.9 Regulation 4, Appendix 1 and 2Regulation 5Regulation 20

Ships:Article 2.7 Article 3Regulation 2

Applicability of key aspects of the regime of the Basel Convention depends on the transboundary movement of hazardous wastes. While a ship may become waste under the Basel Convention, ship recycling will not necessarily involve the transboundary movement of hazardous waste, because: (a) The decision to recycle may occur while the ship is on the high seas; (b) The ship may be recycled domestically;(c) The transboundary movement of the ship may be complete before the ship becomes waste.These are important, real-world gaps in the coverage of the Basel Convention with respect to ship recycling. In addition, the Basel Convention imposes no specific requirements on ship recycling facilities, or any other facility engaged in the treatment, storage, or disposal of waste.

Some ships are not covered by the Hong Kong Convention: (a) Less than 500 GT or ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the State whose flag the ship is entitled to fly [note: ships operating throughout their life in domestic waters would also not be subject to Basel Convention controls on transboundary movements of hazardous wastes]; (b) Warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only for government non-commercial service; For both of these categories, however, each Party shall ensure, by the adoption of appropriate measures, that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable.

CIEL Wastes:Article 2.1 Article 1

Ships:Article 2.1Decision VII/26: “a ship may become waste as defined in article 2 of the Basel Convention and at the same time it may be defined as a ship under other

Ships:Article 2.7Article 3

Wastes:Article 2.9

Basel does not exempt military or other State-owned waste – including ships – from its scope. The scope of HKC is not equivalent to Basel because it categorically excludes the following ships:(a) Less than 500 GT or ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the State whose flag the ship is entitled to fly;(b) Warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only for government non-commercial service;

HKC requires each Party to “ensure, by the adoption of appropriate measures, that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable.” However, this caveat weakens any requirement for consistency.

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international rules”NGO PLATFORM Wastes:

Articles 2.1, 1.1, 2.3, 11, 18

Ships:Articles 2.1, 4.12Decision VII/26

Ships:Articles 2.7, 3, 2.9 Regulation 4, Appendix 1 and 2Regulations 5, 6, 7, 8.2, 20 (20.3 and 20.4)Appendix 1 of Inventory Guidelines

NO -- HK Convention does not recognize existent (Basel) definitions of wastes or hazardous wastes. NO -- Presence of hazardousness triggers no special trade control as it does in Basel. NO -- The HK Convention does not cover all ships covered by Basel. Government owned vessels and ships of a certain size are also not covered.

Coverage and identification of hazardous materialsEU Annexes I to III Article 2;

Appendixes 1 and 2The Basel Convention applies to transboundary movements of hazardous wastes and certain other wastes. Hazardous wastes are those which either fall in a category listed in Annex I (unless they do not possess characteristics listed in Annex III of the Convention) or are in Annex II of the Convention or are hazardous according to domestic legislation of the Party of export, import or transit. Annex III lists the characteristics that make wastes hazardous.

The Hong Kong Convention establishes control measures for the installation and use of certain hazardous materials in new ships under this Convention and for existing ships under other Conventions.Article 2(9) defines ‘hazardous material’ as any material or substance which is liable to create hazards to human health and or the environment. The installation and use of hazardous materials listed in Appendix 1 to the Hong Kong Convention is to be prohibited and/or restricted. New ships must have an inventory of hazardous materials while, for existing ships, this inventory must be developed within five years of the Convention coming into force. Appendix 2 of the Hong Kong Convention provides a minimum list of substances which should be addressed in the Inventory of Hazardous Materials.

JAPAN Article 1.1 Article 2.9, Regulation 4, Regulation 5.2,Appendix 1, Appendix 2

In 2004, an instrument titled “IMO Guidelines on ship recycling” was adopted in IMO (Resolution A.962(23)). In the guidelines, a key list “Appendix B, Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, 2002”, which was provided by UNEP and identifies the potentially Hazardous Materials on board, was introduced. Thus, Resolution A.962(23) takes into account the UNEP guidelines, which was developed in accordance with BC. Therefore, noting that Resolution A.962(23) is mentioned

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(recalled) in the preamble of HKC, it is safe to say that the coverage and identification of HMs in BC is considered and incorporated in HKC. In addition, HKC is considered to be more suitable for ships in terms of the coverage and identification of HMs, as it is ship-specific instrument.

USA Article 1.1 Annex IAnnex IIIAnnex VIII (List A)Annex IX (List B)

Article 2.9Regulation 5Regulation 10 Regulation 20 Appendix 1Appendix 2Appendix 5Appendix 1 to Inventory Guidelines

The Basel Convention covers specific listed hazardous wastes as well as hazardous wastes as defined by national law of the Parties.

The Hong Kong Convention covers specific listed hazardous materials anticipated to be found on ships as well as any other materials “liable to create hazards to human health and/or the environment.” Also requires each ship to have an up-to-date inventory of all hazardous materials on board, and requires that inventory to be verified prior to recycling.

CIEL Article 1.1 Annex IAnnex IIIAnnex VIII (List A)Annex IX (List B)Basel Convention Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, Annex B

Article 2.9Regulation 6 Regulation 7 Appendix 1Appendix 2

HKC should cover all wastes identified as hazardous in ship-recycling under Basel. It presently excludes certain Basel wastes that have been identified by the Basel Technical Guidelines as relevant to shipbreaking.

NGO PLATFORM Article 1 Annexes I, III, VIII, IX

Article 2.9Regulation 4, 5, 6, 7, 8, 9, 10Regulations 20.2 and 20.3 Appendix 1, 2, 5 Appendix 1 of Inventory Guidelines

NO -- HK Convention does not recognize existent (Basel) definitions of hazardous wastes and does not cover all hazardous wastes covered by Basel. For example, HK Convention has but 16 different hazardous constituents (Annex 5, 2.2). The Basel Convention has in Annex I, 63 different hazardous constituents.

When? Management of life cycle of ship?EU Article 4 Article 2;

Regulation 20Basel Convention Parties have to ensure that their domestic generation of hazardous waste and other wastes is reduced to a minimum, taking into account

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social, technological and economic aspects (article 4(2)). Basel Parties have to ensure that wastes are either treated domestically or exported to facilities which will ensure an environmentally sound management of the hazardous wastes and other wastes. “Management” as defined by the Convention comprises the collection, transport and disposal of hazardous wastes or other wastes, including after-care of disposal sites. Parties ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment; Basel Parties ensure that the transboundary movement of hazardous wastes 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.

The Hong Kong Convention provides a comprehensive system of control and enforcement from “cradle to grave” and relies in particular on the survey and certification of ships and the authorization of ship recycling facilities. The Convention has two main control and enforcement features: i) controls applied to ships including their design, construction, operation, maintenance and repair that have effect throughout the ship's working life, and ii) controls for the standards and operation of ship recycling facilities. Ships flying a Party's flag or operating under its authority have to comply with the survey and certification requirements. These are to be effective throughout the operating life of ships, i.e. from the design and construction stage to the phase of preparing for recycling. When the ship comes to the end of its life a ship recycling plan must be prepared. Parties to the Hong Kong Convention have to prevent, reduce, minimize 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. The definition of "Ship recycling" covers the complete or partial dismantling of a ship at a Ship Recycling Facility in order to recover components and materials for reprocessing and re-use, whilst taking care of hazardous and other materials, and includes associated operations such as storage and treatment of components and materials on site, but not their further processing or disposal in separate facilities (article 2(10)).

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According to Regulation 20(3), Ship Recycling Facilities authorized by a Party shall provide for and ensure safe and environmentally sound management of all Hazardous Materials and wastes removed from the ship recycled at that Ship Recycling Facility. Waste management and disposal sites shall be identified to provide for the further safe and environmentally sound management of materials.

JAPAN Article 4.2(a)-(d), Article 4.7

Article 4, Article 5, Regulation 8, Regulation 9, Regulation 10, Regulation 20.3

While BC does not have a series of detailed requirements through the lifecycle of the wastes, HKC has relevant and detailed requirements through its whole lifecycle, e.g.:- The ship has to maintain and renew the information in the Inventory of Hazardous Materials from its origin and during its operation term.- Recycling of the ship have to be conducted by the Ship Recycling Facility which was authorized by the Competent Authority of the recycling state and made adequate plan for recycling the object ship (SRP).Noting this feature, regarding management of life cycle of ship, the level of control and enforcement under HKC is considered to be the same or more than that of BC.

USA Article 1.4Article 2.1Decision VII/26: “a ship may becomewaste as defined inarticle 2 of the BaselConvention and thatat the same time itmay be defined as aship under otherinternational rules” Article 4.2 (a), (b),and (c) Article 4.8

Article 2.10Article 4Article 8Regulation 2Regulation 4Regulation 5Regulation 8 Regulation 9 Regulation 10 Regulation 11 Regulation 15Regulation 17Regulation 18Regulation 19Regulation 20 Regulation 22Appendix 1

The Basel Convention does not apply until such time as a ship becomes a waste. As noted above, this could be after transboundary movement has already occurred. While the Basel Convention does have provisions regarding minimization of generation of waste, availability of local facilities, and pollution prevention, these obligations (in Article 4.2) are qualified and non-specific. Similarly, obligations to ensure that wastes are managed in an environmentally sound manner (Article 4.8) are tied to the export of those wastes.

The Hong Kong Convention establishes a cradle to grave regime. It includes specific controls on the design, construction, operation, maintenance, and repair of ships, for example restricting and/or prohibiting the installation and use of hazardous materials in the construction and repair of ships. These controls apply regardless of whether the ship is determined to be a waste or is still in use. Indeed, ships are subject to inspection, survey, and certification during their useful life to enforce compliance with the Convention. Once a ship is designated for recycling, in addition to the continued application of ship-specific controls, the Hong Kong Convention includes controls on ship recycling facilities, including requirements that recycling be done and wastes handled in an environmentally sound manner, along with worker safety standards and pollution prevention requirements.

CIEL Article 2.2 Article 2.5 Article 2.8 Article 4.2(a)-(d)

Article 2.10 Article 2.11 Regulation 4 Preparation for Ship

Basel’s integrated life-cycle approach sets strong controls from the generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery and final disposal. Article 4 specifies the Parties’ obligations to minimize the generation of waste and the transboundary movement of waste, and otherwise to

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Article 4.8 Decision VII/26

Recycling:Regulation 8.2 and 8.3 Regulation 9 Regulation 10 Regulation 11 Regulation 20 Appendix 1Appendix 5 Appendix 6Appendix 7

ensure the ESM of waste until its final disposal.

HKC controls the ship from its design, through construction, operation and the recycling stage. However, the Convention fails to set standards for downstream disposal facilities because the definition of ship recycling excludes processing of components and materials after removal and disposal in separate facilities. The controls set forth in Regulation 20 for treatment and disposal are not sufficient to ensure the ESM of waste as required by Basel.

NGO PLATFORM Articles 1.4, 2.1Decision VII/26Articles 4.2 (a), 4.2 (b), 4.2 (c), 4.8

Articles 4.1, 4.2, 2.10Regulation 4, 5, 6, 7, 8, 9, 10, 11, 20, Appendix 1, 5, 6, 7

NO -- HK Convention has no obligation to minimize the generation (e.g. toxics use reductions) of hazardous waste at front end of life cycle as does Basel.NO – HK Convention allows the beaching of ships on tidal beaches as being environmentally sound. Such a platform can never be seen as “taking all practicable steps to prevent harm to human health and the environment.”NO – HK Convention has no provisions on the minimisation of transboundary movements / national self sufficiency at point of disposal. NO -- HK Convention ceases to have competency over wastes and residues after initial recycling facility including final disposal as does Basel.

Who? Relationship between Party and non-PartyEU Articles 4 and 11 Article 3;

Regulation 4;Appendix 1

As a general obligation (Article 4 (5)), a Party to the Basel Convention shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party. However, article 11 allows Parties to enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries.

Article 3(4) of the Hong Kong convention introduces the principle of no more favourable treatment which is understood as applying to: - non-Party ships going for recycling to Party recycling facilities;- non-Party ships visiting Party ports;- non-Party ships undergoing repairs in Party repair facilities (for example see

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Regulation 4.2 requiring the restriction of installation of Appendix 1 materials on ships while in shipyards or ship repair yards of a Party).

JAPAN Article 4.5, Article 11 Article 3.4 Under HKC, a Party cannot accept the ship entitled to fly the flag of non-Parties unless it satisfies the requirements of HKC, while it is prohibited for Parties to export wastes to non-Parties under BC.This means that it is basically prohibited to favourably treat the wastes/ships of non-Parties under both conventions.

USA Article 4.5Article 11

Article 3.4Regulation 8.1Regulation 17.2

While the Basel Convention limits the export of wastes to, and import of wastes from, non-Parties, it does not prevent movement of a ship to a non-Party state and the later decision to recycle the ship there. It also allows for movement of a ship already designated for recycling to a non-Party state, subject to the existence of an Article 11 agreement or arrangement.

The Hong Kong Convention requires that Party ships be recycled at facilities authorized in accordance with the Convention. In addition, Party ship recycling facilities can only accept ships that meet the requirements of the Convention. Similar to Articles 4.5 and 11 of Basel, Article 3.4 ensures that non-Party ships are not treated more favourably than Party ships.

CIEL Article 4.5Article 11

Article 3.4Article 6 Regulation 8

HKC controls on trade with non-Parties are not as stringent as that of Basel. HKC Article 3.4 requires ships of non-Parties to receive “no more favourable treatment” but are not prohibited from using Party-owned Ship Recycling Facilities. This is in contrast to the Basel prohibition of export or import to/from non-Parties absent an Article 11 agreement which guarantees certain equivalent levels of control.

NGO PLATFORM Articles 4, 11 Article 3,Regulation8

NO – Basel does not allow trade between Parties and non-Parties unless a special Article 11 agreement is in place that establishes a form of equivalency. HK Convention opens up for non-party trade with only a vague notion of not allowing “more favourable treatment”.

Where? Jurisdiction EU Not completed Not completed No comment provided.JAPAN Article 4.4 Article 10 HKC has stipulations regarding violations and sanctions, as well as BC.

Thus, HKC establishes the same level of enforcement and control in terms of jurisdiction.

USA Article 2.3Article 2.10Article 2.11Article 9

Article 3.1Article 4Article 9Article 10

The Basel Convention authorizes enforcement by importing and exporting states. There is a potential gap in the absence of an import or export (e.g., when a ship is still in service, or when the decision to recycle a ship is made once the ship is already in the port of the recycling state).

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and third states where a ship is temporarily docked in port, regardless of the prior movement of the ship. A ship is therefore covered by at least one state at all times, and in particular at the time of recycling.

CIEL Article 1Article 2.3 Article 2.9 Article 2.10 Article 2.11 Article 2.12 Article 2.13 Article 4.12Article 11

Article 2.2 Article 2.3 Article 3.1Article 3.2Article 3.3 Article 8 Article 16.4

Basel regulates the transboundary movement of waste, from the State of export through any Transit States, to the State of import. The Transit state need not be a Party to be considered a ‘concerned state’ warranting notification.

Unlike Basel, HKC jurisdiction is limited to the Flag State of the ship, or other authority under which the ship is operating, any Port States which are Parties, and the State of the SRF. It fails to address the role of transit states that are not Parties to the Convention. HKC allows for States comprising of two or more territorial units to declare at the time of signature, ratification, acceptance, approval or accession whether the Convention extends to all territorial units or only some. This creates a potential legal loophole because certain States may operate ship recycling facilities in a port of their territory where they do not apply HKC. This is not consistent with providing an equivalent level of control. HKC jurisdiction is also limited to certain types and size of ships which have operated in more than one jurisdiction. Such exclusion of ships is not consistent with Basel.

NGO PLATFORM Articles 1, 2, 4, 11, 26 Articles 2, 3, 8 NO – Basel does not allow the territory of Antarctica to be used for disposal/recycling.NO – Basel has a Party to non-Party prohibition. HK Convention does not. NO -- Basel Ban Amendment places a prohibition on exports to non-Annex VII countries from Annex VII countries. HK Convention does not. NO – Basel Convention prohibits exports to countries lacking ESM facilities, HK Convention does not.

Control Authorizations and certificationsEU Article 4 Articles 5, 6;

Regulations 8 and 15 to 23

Authorization of recycling facilities is required under the Basel Convention by Article 4.7(a), which obliges Parties to prohibit persons under its national jurisdiction all persons from transporting or disposing of hazardous wastes or other wastes unless such persons are authorised or allowed to perform such types of operations. The criteria and procedure for this are not prescribed.

Article 5 of the Hong Kong Convention relates to requirements for ships. Ships flying a Party's flag or operating under its authority have to comply with the survey and certification requirements. These are to be effective throughout the operating life of ships, i.e. from the design and construction stage to the phase of preparing

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for recycling. The authorization of ship recycling facilities is provided for in Article 6. Facilities must be are authorized in accordance with the regulations annexed to the Convention. Regulation 15 provides for the institution of a control mechanism which should include a mechanism for authorization, inspection, monitoring and enforcement provisions. Regulation 16 establishes the procedure for the authorization, where the procedural details would be supplemented by Guidelines.

Regulation 17 sets out general requirements for the recycling facilities, and Regulation 18 requires ship recycling facilities to prepare a Recycling Facility Management Plan. Health and safety matters, such as the prevention of accidents, emergency response and workers' safety training, are covered in Regulations 19-23 and have to be fulfilled in order for the recycling facility to be authorized. Regulation 8(1)6 requires a ship, prior to any recycling activity taking place, to be certified as “ready for recycling” by the flag state Administration, or by a Recognized Organization on the Administration's behalf.

JAPAN Article 4.7 Article 5, Article 6, Regulation 8, Regulation 15, Regulation 16, Regulation 17, Regulation 19-23

Both of the Conventions require authorization of the persons / facilities.In addition, in HKC, there is a requirement for the survey and issuance of International Certificate on Inventory of Hazardous materials. Further, HKC requires also that the Ship specific recycling plan (SRP) be developed by the Ship Recycling Facility and certified by the Flag state. Therefore, regarding “authorizations and certifications”, HKC establishes enough level of control and enforcement, compared with BC.

USA Article 4.7Article 6.3

Article 5Article 6Regulation 5Regulation 8.1Regulation 9Regulation 10Regulation 11Regulation 16Regulation 18Regulation 21Regulation 25

The Basel Convention requires authorization for the export of Basel wastes, but does not specifically require authorization or certification of ships or recycling facilities.

The Hong Kong Convention requires authorization and certification relating to control of hazardous wastes at numerous stages of the life cycle of a ship. So, for example, ships must have an inventory of hazardous materials from the time they are constructed and subject to updating throughout their life span. That inventory is subject to verification and to periodic surveys necessary for continued authorization. A ship at the end of its useful life must be certified as ready for recycling after completion of necessary pre-recycling tasks and must have an authorization for recycling in the form of a ship recycling plan. Recycling facilities are also themselves required to be authorized. Such authorizations are valid for fixed periods of time after satisfaction of various conditions provided under the Convention and associated guidelines, including a site inspection.

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CIEL Article 2.5 Article 4.2Article 4.7Article 4.8Article 4.9Article 4.10

Article 4.1 Article 5 Regulation 8.3Regulation 8.6Regulation 11 Regulation 12 Regulation 13 Regulation 14 Article 4.2 Article 6 Regulation 8.1Regulation 15.2 Regulation 16 Regulation 17 Regulation 18 Regulation 19 Regulation 20 Regulation 21 Regulation 22

Under HKC, the Administration (Flag State) is responsible for surveying and certifying the ship as ready for recycling, while the Recycling State is responsible for authorizing the Ship Recycling Facility as compliant with the standards set by the Convention. Specific requirements for authorizing SRFs are not clear until the voluntary guidelines, currently being developed, are adopted. (ref. Regulation 16.1) Lack of mandatory minimum standards on authorization could lead to the initial authorization of facilities that are not properly equipped to conduct ESM. HKC Regulations governing issuance of the International Ready for Recycling Certificate do not sufficiently mandate that the facility be able to recycle the ship in an environmentally sound manner. This runs counter to the Basel obligation on the export state to ensure the ESM of waste.

Basel requires the authorization of all waste management facilities, including collection, transport, interim and final recovery and disposal. In contrast, HKC only regulates the first dismantling- and recycling site, but not any interim facilities or installations for subsequent processing and disposal of waste.

NGO PLATFORM Articles 2, 4 Articles 5, 6Regulation 8, 15-23

NO -- HK Convention does not call for every country to provide waste management facilities (e.g. for ships) and to authorize them as does Basel Convention. NO -- HK only regulates the first dismantling- and recycling site, but not any interim facilities or installations for subsequent processing and disposal of waste, Basel requires all such sites to be permitted. NO – HK Convention does not require all transporters of wastes to be authorized to do so.

Surveying, auditing and inspectionEU Article 4 Article 8;

Regulations 15 and 16Basel Parties, through the general obligations of Article 4, shall take appropriate legal, administrative and other measures to implement and enforce the provisions of the convention, including measures to prevent and publish conduct in contravention of the Convention. Parties can undertake joint inspections and exchange programs at regional (IMPEL TFS) or international (INECE) levels, whose main objective is to work towards an adequate level of inspections. Enforcement actions are focused on introducing complete measures in order to prevent and detect illegal waste shipments and to deter illegal waste exporters,

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verifying waste destination and the treatment at destination, setting up training and exchange programmes for inspectors, and on maintaining and improving the network and collaboration of front line inspectors and other competent authorities and enforcement partners by exchange of information and knowledge. It promotes the exchange of information and experience and the development of greater consistency of approach in the implementation, application and enforcement of environmental legislation in field of waste shipments and waste management. Those activities encourage and facilitate the cooperation between environmental authorities, customs, police and traffic inspectors as joint enforcement actions are performed at borders, in ports and on roads. “Seaport project” carried out on both IMPEL TFS and INECE level has been worldwide recognized as efficient mechanism to detect and deter illegal shipments of waste, with special emphasis on e-waste trafficking. Another example of enforcement cooperation is operation “Demeter” targeting the illicit cross-border shipment of hazardous and other waste en route from Europe to countries in the Asia/Pacific region and Africa launched by Customs administration. They were supported by their national environmental agencies, the Secretariat of the Basel Convention, the EU Network for Implementation and Enforcement of Environmental Law (IMPEL), and the seven WCO Regional Intelligence Liaison Offices (RILO).

The system of control and enforcement to be provided by the Hong Kong Convention is considered in the broader context of the IMO system as a whole that has a number of mechanisms also providing control and enforcement. The first broader element of control and enforcement is that exercised through flag State responsibilities. This is achieved mainly through survey and certification systems (either directly by the flag State inspectors or by appointed Recognized Organizations / classification societies). Apart from the system of detailed surveys and certificates that covers all ships at regular intervals, before the recycling stage, flag states also carry out spot checks throughout the operating life of ships flying their flag. The second broader element of control and enforcement is that exercised by port States. This is achieved through inspection of ships entering the ports or offshore terminals to determine whether such ships are complying with the applicable conventions and IMO mandatory instruments. A port State authority's report to a flag State Administration enables the Administration to take appropriate action to rectify shortfalls in ships. This can also lead to detentions or prohibitions from returning to that port. Most coastal States, moreover, have signed up to Memoranda of Understanding (MoUs) on port State control. These MoUs have developed their own rules and

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procedures in order to define the way inspections are made, and also to share the burden of control between their members. In practice, over 40 States belong to the three most advanced organisations for port State control (Paris MoU, Tokyo MoU and USCG), with half a dozen other MoUs in existence (Indian Ocean, for instance). Use of these is gaining momentum as best practice becomes more widely spread under the auspices of the IMO.Article 8 provides for inspections of ships to ensure that they hold an inventory of hazardous materials or an International Ready for Recycling Certificate. More detailed inspections may be carried out where these certificates are not found. Parties are also required to establish a mechanism for ensuring that Ship Recycling Facilities comply with the requirements of the Convention including the establishment and effective use of inspection, monitoring and enforcement provisions, including powers of entry and sampling(Regulation 15(3)). When authorizing a Ship Recycling Facility, Competent Authorities are required to verify documentation and carry out a site inspection (Regulation 16).

JAPAN Article4.4 Article 8, Regulation 15.3, Regulation 16

As regards surveying, auditing and inspection system of HKC, it is based on the broader context of the IMO system. Noting above, the system of surveying, auditing and inspection under HKC should be considered to provide greater level of control and enforcement than that of BC.

USA Article 10.2(b) Article 5Article 8Regulation 10Regulation 11Regulation 12Regulation 16.2, 16.5

The Basel Convention has no specific requirements on surveying, auditing, or inspecting ships. It does have general monitoring requirements.

The Hong Kong Convention specifically provides for the surveying and inspection of both ships and ship recycling facilities. Ships are not eligible for recycling if they have not been surveyed and inspected, and facilities cannot be authorized to recycle ships if not inspected.

CIEL Article 4.2Article 4.8Article 4.9Article 4.10

Article 8 Regulation 10 Regulation 18 Article 8 Regulation 15.3 Regulation 16

The final survey conducted by the Administration (Flag State), which is a prerequisite to the issuance of the International Ready for Recycling Certificate, does not sufficiently guarantee that the ship will be managed by the SRF in an environmentally sound manner. The final survey must simply verify 1) a proper IHM, 2) the SRP reflects the information contained in the IHM and contains information concerning the establishment, maintenance and monitoring of Safe-for-entry and Safe-for-hot work conditions, and 3) the SRF holds a valid authorization. There is no requirement that the Flag State ensure the ESM of waste as required for exporting states under Basel.

NGO PLATFORM Article 4, Annex 5.b

Article 8Regulation 10, 15, 16

YES – Both Conventions require that an inventory of hazardous materials be made of ships as waste.

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Designation of competent authorities/focal pointsEU Articles 2 and 5 Regulation 15 Basel Convention sets in place rights and obligations for the State of export, the

State of import and, if applicable, to the transit States. Parties shall designate or establish one or more competent authorities and one focal point to facilitate the implementation of the Convention (Article 5). The "competent authority” is responsible, within such geographical areas as the Party may think fit, for receiving the notification of a transboundary movement of hazardous wastes or other wastes, and any information related to it, and for responding to such a notification (Article 2).

Hong Kong Convention sets in place rights and obligations for the Flag state, Recycling States and to Port States. Each Party shall designate one or more Competent Authorities and the single contact point to be used by the Organization, Parties to this Convention and other interested entities, for matters related to Ship Recycling Facilities operating within the jurisdiction of that Party (Regulation 15(4)).

JAPAN Article 5 Regulation 15.4 Both of the Conventions require designation of the CA and the focal point. In this regard, there is no significant difference between them.

USA Article 5Article 12.2, 12.3

Regulation 15.4 Both Conventions require the identification of competent authorities and focal points or single contact points.

CIEL Article 5 Article 2.3Regulation 15.4

Under HKC, the competent authority designated by the Party is responsible for receiving notification of the proposed transboundary movement of hazardous waste from the SRF under its jurisdiction, approving the draft SRP before recycling can commence, and notifying the Administration upon completion of recycling. While the notification procedures differ between Basel and HKC, the designation of competent authorities is essentially equivalent.

NGO PLATFORM Article 5 Article 2, Regulation 15

NO – The Hong Kong Convention Competent Authorities only apply to ship recycling states. In the Basel Convention, every Party must have a Competent Authority.

Standards (mandatory or voluntary)EU Regulations 3 and 19 to

22Standards of facilities are to be set in accordance with the Basel principle of ESM. It has been further elaborated through the development of a series of Technical

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Guidelines adopted by the Parties to the Basel Convention published by its Secretariat.

The Hong Kong Convention contains various provisions that establish its own system of control and enforcement. The provisions of this Convention are intended to be holistic, covering health, safety and environmental issues in relation to shipping and ship recycling in one single document. Regulation 3 requires Parties to take into account relevant and applicable standards, recommendations and guidance developed by ILO and Basel Convention. Regulations 19 to 22 set a series of mandatory health and safety standards such as the prevention of accidents, emergency response and workers' safety training. A series of technical guidelines supporting the Convention will have to be taken into account by the Parties when applying the Convention.

JAPAN A series of Technical Guidelines were adopted by the Parties to the BC.

Regulation 3Regulation 19 and 22 refer the relevant guidelines which are to be developed by IMO.

<Mandatory standards>While BC provides relevant standards on the basis of Environmentally Sound Management (ESM) of wastes, HKC provides the requirements which relates to, not only ESM, but also Human safety and health.<Non-mandatory standards>As well as the framework of BC, in the framework of HKC, relevant guidelines, such as the Inventory Guidelines, Facility Guidelines, Ship Recycling Plan Guidelines and so on, are being developed. (These guidelines will be non-mandatory instruments.)Noting above, HKC is regarded to provide sufficiently wide and well streamlined standards both on mandatory and non-mandatory basis.

USA Article 4.8Technical guidelineselaboratingrequirement thatexported wastes must be managed in an environmentallysound manner

Regulation 3Regulation 18Regulation 19Regulation 20Regulation 21Regulation 22Regulation 23Appendix 1Guidelines for ship recycling, ship recycling plans, ship recycling facilities, and inventories

The Basel Convention includes a general requirement that exported hazardous wastes be managed in an environmentally sound manner, and a general but qualified requirement to have adequate domestic disposal facilities. Standards for environmentally sound management are elaborated in a series of voluntary technical guidelines that are updated as necessary. There are no applicable mandatory standards.

The Hong Kong Convention prohibits installation on ships of certain hazardous substances, including certain anti-fouling compounds, asbestos, PCBs, and ozone-depleting substances. It also requires environmentally sound management of hazardous materials on ships, includes general health and safety requirements on ship recycling facilities, and requires each facility to adopt a facility plan. In addition, the Convention requires that facilities utilize specific procedures to prevent unsafe conditions, accidents, spills, etc., and contains specific mandatory requirements for worker safety and training and emergency preparedness and

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response. In addition to these mandatory requirements, the Convention is also elaborating technical guidelines to set more detailed standards with respect to ship recycling plans, facilities, and inventories. Finally, Parties are required to take into account any relevant technical standards, recommendations, and guidance developed under the Basel Convention.

CIEL Article 2.8 Article 4.2(b)(c)(d)(e)(g)(h) Article 4.8

Regulation 19 Regulation 20 Regulation 1.6Regulation 1.7Regulation 3

Voluntary Guidelines:1. Guidelines for the development of the Inventory of Hazardous Materials, adopted by resolution MEPC.179(59);2. Guidelines for safe and environmentally sound ship recycling;3. Guidelines for the development of the ship recycling plan;4. Guidelines for the authorization of ship recycling facilities;5. Guidelines for survey and certification;6. Guidelines for inspection of ships.

HKC leaves much of the details of the standards to voluntary guidelines. This disregards Parties’ insistence on mandatory requirements to ensure ESM. The Basel Technical Guidelines on the dismantling of ships provides certain measures that “must” be followed to achieve ESM. In particular, the Guidelines mandate pre-cleaning and containment and does not accept 'beaching' (impermeable floors are prescribed for full ship containment).

HKC regulations should mandate these measures in order to ensure ESM by the SRF.

NGO PLATFORM Articles 2, 4Technical guidelines

Regulation 3, 19-22 YES – Both Basel and HK Conventions only have voluntary guidelines serving as performance standards.

Ability to prohibit import/export

EU Article 3, 4; Decision Regulations 9 and 16; Parties are empowered by Article 4 of the Basel Convention to unilaterally

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III/1 Appendix 5 establish import prohibitions via their domestic legislation. Other Parties shall take steps to ensure that they respect such prohibitions by their own legislation. Many countries have exercised this right. Article 3 lays down obligations of Parties to inform each other - through the Secretariat of the Basel Convention - about the decisions taken by them to prohibit or limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste. In 1995, the Basel Convention was amended by Decision III/1 of the Conference of the Parties prohibiting all transboundary movements of hazardous wastes to all states which are not listed in Annex VII, comprising members of the OECD, the EC and Liechtenstein. This “Basel Ban Amendment”, intends to protect developing countries from the high environmental risks of hazardous waste being shipped from developed countries and not being managed in an environmentally sound manner at the destination. The Ban Amendment has not yet entered into force generally although it is given effect within the EU.

The concepts of “import” and “export” are not directly used in the Hong Kong Convention. However, Regulation 9 requires approval of a Ship Recycling Plan by the Competent Authority authorizing the Ship Recycling Facility before a ship is sent for recycling. This allows the opportunity for the “importing” country to effectively refuse the import of a particular ship. Furthermore, Article 9 of the Convention allows Parties to dismiss from their ports ships that are in breach of the Convention’s requirements.The Hong Kong Convention addresses the risks of hazardous waste being shipped from developed to developing countries by requiring the environmentally sound management of end of life ships and the waste arising from them. Furthermore, facilities must comply with the requirements of the Convention and be authorized as such by the competent authority of the recycling state. The authorization process offers the recycling state the opportunity to prohibit or limit the import of ships containing specific hazardous materials.

JAPAN Article 4.1(a)-(c) The concepts of “import” and “export” are not directly used in the HKC, however, the relevant requirements which correspond to such concepts are set out in as following:Article9: Detection of violations (The

While the Parties under BC are empowered by Article4 to unilaterally establish import prohibitions via domestic legislation, HKC does not introduce the concept of “import and export” directly.

However, HKC allows Parties to dismiss the ships that are in breach of the convention’s requirements from their ports. This concept reflects the feature of ships better than that of BC, as mentioned in the column regarding “management of life cycle of ship”.

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requirements for conditions in which the ship can be excluded by Parties, etc.)In addition, a number of conditions are required before the ship is accepted by Parties, e.g..- The authorization of the SRF (Regulation16)- The approval of the SRP (Regulation 9);- The final survey for issuance of IRRC (Regulation 10.4)

but there’s no significant defect in system of HKC.

USA Article 4.1, 4.2(e),4.5, 4.6 Article 6.3Article 13.2

Article 16.6Regulation 8Regulation 9.4

The Basel Convention is constructed around a regime of prohibiting the import/export of hazardous wastes without the consent of the importing state. As noted earlier, however, the ability to prohibit import/export would not apply to a ship until the ship becomes a waste.

The Hong Kong Convention does not use the terminology of imports and exports. Recycling cannot proceed, however, without:(1) approval of the Ship Recycling Plan by the recycling state; and(2) issuance of the Ready for Recycling Certificate by the flag state. These provisions allow either state to prohibit the recycling of a ship.

CIEL Article 4.1(b)Article 4.2(e)Article 4.2(g)

Article 9.3 Regulation 9.4

Basel explicitly allows Parties to prohibit the export or import of hazardous wastes or other wastes for disposal.

Under HKC, the Administration can prohibit recycling by denying the issuance of an International Certificate for Ready Recycling, but it does not have a recognized ability to prohibit export. The Recycling State can prohibit recycling by denying approval of the draft SRP, but it does not have a recognized ability to prohibit import.

NGO PLATFORM Articles 3, 4 Regulation 9 NO -- HK Convention only allow for rejection of dismantling, thus no prohibition of import even if ESM is not possible contrary to Basel.NO – Likewise HK Convention cannot prohibit export even when ESM is not possible contrary to Basel. NO – Basel Convention establishes a sovereign right of countries to ban the

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importation of hazardous wastes (e.g. ships) and all other countries must recognize that and honor it. This is not the case in the Hong Kong Convention.

Traceability and transparency of hazardous materials until final treatment / ultimate disposalEU Articles 4 and 6 Regulations 5, 9, 20 and

25Basel Parties have to: - require information about a proposed movement be provided to the States concerned (export, import, transit) and to state clearly the effects of the proposed movement on human health and the environment (Article 4(2)(f)) ,- waste shall be accompanied by a movement document from the point at which the transfer commences to the point of disposal ( Article 4(7)(c)) ,- this document should be signed by each person who takes charge of the movement either upon delivery or receipt The disposer has to inform both the exporter and the competent authority of the State of export of receipt by the disposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import (Article 6(9)).

Under the Hong Kong Convention, ships have to develop and update an Inventory of Hazardous Materials during the operating life of the ship. Prior to recycling the Inventory shall, in addition incorporate information about operationally generated wastes and stores and be verified either by the Administration or by any person or organization authorized by it (Regulation 5). A Ship Recycling Plan has to be developed by the Ship Recycling Facility(ies) prior to any recycling of each ship. It has to include information concerning inter alia how the type and amount of materials including those identified in the Inventory of Hazardous Materials will be managed (Regulation 9). Waste management and disposal sites shall be identified to provide for the further safe and environmentally sound management of materials (Regulation 20.3).All wastes generated from the recycling activity shall be only transferred to a waste management facility authorized to deal with their treatment and disposal in a safe and environmentally sound manner (Regulation 20.4) When the partial or complete recycling of a ship is completed, a Statement of Completion shall be issued by the Ship Recycling Facility and reported to its Competent Authority(ies) which have to send a copy of the Statement to the Flag

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state administration that issued the International Ready for Recycling Certificate for the ship.The Statement shall be issued within 14 days of the date of partial or completed Ship Recycling in accordance with the Ship Recycling Plan and shall include a report on incidents and accidents damaging human health and/or the environment, if any (Regulation 25).

JAPAN Article 4.2.(f), Article 4.7(a)(b)(c), Article 6.9

In HKC, traceability and transparency of HMs are ensured by requirements for:- IHM (development, maintenance, and survey) (Regulation 5);- SRP (development and approval) (Regulation 9);- Management of HMs in SRFs (Regulation 20.3); and- Reporting upon completion (Regulation 25)

HKC covers from the origin of the Hazardous Materials used in ships to the recycling stage of them, while BC covers transboundary movements of wastes from the exporter to the disposal facility in the import state.

In both Conventions, there is no significant defect which weakens the control and enforcement in this regard.

USA Article 4.2(f),4.7(b) and (c) Article 6.1, 6.9,6.10 Annex V

Regulation 5Regulation 9.3Regulation 10Regulation 11Regulation 20Regulation 25Appendix V, Supplement § 2.2

The Basel Convention requires a movement document with specific information to accompany wastes subject to transboundary movement and be signed upon delivery and receipt. It also requires the disposer to inform the exporter and exporting state of the completion of disposal.

The Hong Kong Convention requires each ship to have an inventory of hazardous materials, updated periodically. A ship recycling facility must identify in the recycling plan for each ship how all the hazardous materials identified in the inventory will be handled. The Convention also requires a certificate of completion be submitted after recycling of a ship in accordance with a ship recycling plan.

CIEL Article 4.7(c)Annex VB Article 6

Regulation 5Appendix 2Regulation 11 Regulation 24 Regulation 25

The processes for tracing hazardous materials under Basel and HKC differ in that the SRF need not sign the International Ready for Recycling Certificate upon import of the waste. However, in that the SRF’s issuance of the Report of Planned Start of Ship Recycling is premised on the Recycling State’s approval of the SRF’s SRP, they may be viewed as functionally equivalent.

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Unlike Basel, hazardous materials that are transferred out of the SRF for treatment and disposal are no longer transparent nor traceable. This is inconsistent with Basel.

NGO PLATFORM Articles 4, 6 Regulation 5, 9, 11, 24 and 25

NO -- HK Convention does not regulate nor have any obligations to track any hazardous materials after the initial recycling facility as does Basel. NO – Not all Basel hazardous materials are covered under the HK Convention and thus no traceability.

Prior notification and prior consentEU Article 6 Regulations 8, 9, 10, 24

and 25 Article 6 of the Basel Convention sets out the main provisions of the administrative control system that applies to legitimate transboundary movements of hazardous waste. Every generator of hazardous waste wishing to export it is required to provide notification of the proposed transboundary movement of hazardous waste in writing, through the channel of the “competent authority” of the State of export, to the competent authorities in the State of import, and to any transit States . The State of export shall not allow transboundary movement to commence until it has received the explicit written consent of the State of import and confirmation of the existence of a contract between the exporter and the disposer. Prior written consent by the State(s) of transit is also necessary, unless that Party has informed the other Parties of the Convention that it renounces this requirement. The export may then proceed if the State of transit does not respond within 60 days after receiving the notification (“tacit consent”). Any transboundary movement of hazardous wastes shall be covered by insurance, bond or other guarantee as may be required by the State of import or any transit State. It should be noted that “consent” under the Basel Convention does not always require written consent in all circumstances. (Some streamlining is allowed e.g. by “general notification” provisions where hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs offices of exit and entry. In that case, the general notification and written consent may cover multiple transboundary movements of hazardous wastes during a maximum period of 12 months).

Regulations 24 and 25 in the Annex to the Hong Kong Convention provide for reporting requirements that relate to notification of and information about the recycling of an individual ship.The shipowner is obliged to notify his flag State Administration in writing of the intention to recycle a ship. This enables the flag State Administration to prepare the survey and certification required by the Convention (including the Inventory of

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Hazardous Materials and the International Ready for Recycling Certificate). Regulation 8(1)6 requires a ship, prior to any recycling activity taking place, to be certified as “ready for recycling” by the flag state Administration, or by a Recognized Organization on the Administration's behalf.Regulation 9 provides for the development of a Ship Recycling Plan by the recycling facility taking into account information provided by the shipowner prior to any recycling taking place.This Ship Recycling Plan has to be approved (explicitly or tacitly) by the Competent Authority authorizing the Ship Recycling Facility. Once approved the Ship Recycling Plan be made available for inspection by the Flag State Administration (Regulation 9 (5)). During the final survey prior to the ship being taken out of service and before the recycling of the ship has started, the flag state shall verify that the Ship Recycling Plan properly reflects the information contained in the Inventory of Hazardous Materials and contains information concerning the establishment, maintenance and monitoring of Safe-for-entry and Safe-for-hot work conditions (Regulation 10 (4)).Regulation 24(1) requires ship owners to notify administrations of the intention to recycle a ship.Regulation 24(2) requires a ship recycling facility to notify its competent authorities of its intent to accept a ship for recycling.

JAPAN Article 6.1, Article 6.3, Article 6.4

Regulation 24, Regulation 25

Under both conventions, the waste/ship is not allowed to reach to the Ship Recycling Facility and be recycled, without prior notification, and consequently, the acceptance by the Competent Authority (in the State of import under BC).

In this sense, the two conventions are considered to have the same level of control and enforcement in the viewpoint of prior notification and prior consent.

USA Article 6 Article 16.6Regulation 8.6Regulation 9.4Regulation 24

The Basel Convention places notification requirements on exporters and requires consent from importers. It permits the use of general notifications, good for a 12-month period, for exports of wastes with the same physical and chemical characteristics to the same disposer.

Under the Hong Kong Convention, both the shipowner and recycler are required to notify their respective competent authorities prior to recycling of a ship to ensure that proper preparation is made on both ends. Prior notification is required for each individual ship intended for recycling, and the recycling state’s consent is required.

CIEL Article 4.1(c) Article 6

Regulation 24.1-24.3Regulation 9.4 Regulation 24.3

HKC allows Parties to choose either explicit or tacit approval of the SRP, in contradiction to the PIC procedure of Basel, which requires explicit approval for each waste shipment.

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Basel not only requires the explicit consent of the recycling state but also all transit states. HKC fails to require notification to and consent by the transit state.

NGO PLATFORM Articles 4, 6 Article 16,Regulation 9, 24

NO – HK Convention does not provide notification nor consent nor allow denial prior to entry into territory of country. This is a fundamental requirement of Basel. NO – Transit States, Importing States and Exporting States are not involved in having any say in a transboundary movement of ship waste.

Certification of disposal/statement of completion of ship recycling

EU Article 6 Regulation 25 The disposer has to inform both the exporter and the competent authority of the State of export of receipt by the disposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import (Article 6(9)).Under Hong Kong, a “statement of completion” is to be issued by the recycling facility, when the partial or complete recycling of a ship is completed in accordance with the Convention. This Statement of Completion shall be issued by the Ship Recycling Facility and reported to its Competent Authority(ies) which have to send a copy of the Statement to the Flag state that issued the International Ready for Recycling Certificate. The Statement shall be issued within 14 days of the date of partial or completed Ship Recycling in accordance with the Ship Recycling Plan and shall include a report on incidents and accidents damaging human health and/or the environment, if any (Regulation 25).

JAPAN Article 6.9 Regulation 25 It is required to report the completion of ship recycling or disposal to the Competent Authority under both Conventions.

There is no significant difference between two Conventions regarding this point.USA Article 6.9 Regulation 25

Appendix 7The Basel Convention requires the disposer to notify the exporter and competent authority of completion of disposal.

The Hong Kong Convention requires the ship recycling facility to issue a Statement of Completion and provide it to the competent authority.

CIEL Article 6.9 Regulation 25 HKC Statement of Completion goes beyond the Basel notification requirements by requiring the SRF to report on incidents and accidents damaging human health and/or the environment. However, such reports do not address activities downstream of the SRF

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NGO PLATFORM Article 6 Regulation 25 YES – Both require a notification or certificate of completion of disposal/recycling. [Other control mechanisms]

[Minimization of transboundary movements]CIEL Article 4.2(b)

Article 4.9No reference Basel seeks to control the transboundary movement of waste not only by regulating

but also by limiting its movement. Basel adopts the national self-sufficiency principle, which requires States to dispose of waste in the State where it was generated, as far as is compatible with ESM. HKC utterly disregards this concept.

NGO PLATFORM Article 4.2.b No reference NO – Probably the most important control mechanism of the Basel Convention is the obligation to minimize the transboundary movements of wastes (e.g. waste ships).

[Antarctica Ban]

NGO PLATFORM Article 4.6 No reference NO – Exports to Antarctica allowed in HK Convention and are prohibited in Basel.Enforcement

Illegal shipments, violations and sanctioning, including criminalization, of illegal trafficEU Articles 4, 9 and 19 Articles 9, 10 and 12 Article 4 of the Basel Convention (paragraphs 3 and 4) establishes that illegal

traffic in hazardous wastes or other wastes is criminal and requires each Party to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, including measures to prevent and punish conduct in contravention of the Convention. In particular, Parties, through the general obligations of Article 4, may establish national legislation including creation of “competent authorities”. These authorities enforce the requirements and administer the notification and consent procedure. Article 9 of the Basel Convention determines those actions that are deemed to be illegal traffic in hazardous waste. This includes transboundary movements of hazardous waste made without notification or consent as described above. Parties are required to introduce domestic legislation to prevent and punish illegal waste traffic. Article 19 provides for circumstances where a Party has reason to believe that another Party is acting or has acted in breach of its obligations under the Convention. It may - apart from informing that Party of the allegations - inform the Secretariat, and the Secretariat should submit all relevant information to the other Parties.

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Article 9 of the Hong Kong Convention deals with detection of violations and action to be taken in this case, and requires Parties to cooperate. It foresees investigations to be undertaken at ports and empowers Parties to warn, detain, dismiss or exclude a ship from their ports as a result of the findings. Where sufficient evidence exists that a ship recycling facility operates in violation of the Convention, the Party with jurisdiction over it should make an inspection and report about the findings. Article 10 of the Hong Kong Convention obliges Parties to prohibit violations and establish sanctions through domestic legislation. Furthermore, the competent authorities are required to investigate alleged violations, take proceedings according to the law and inform the Party that reported the violation about the action it has taken or the reasons for not taking action. Sanctions shall be “adequate in severity to discourage violations of this Convention whenever they occur”. Under Article 12, each Party must report to IMO violations of this Convention.

JAPAN Article 4.3, Article 4.4, Article 9

HKC sets out relevant requirements for illegal traffic of ships in following articles:- Article 9 “Detection of violations” (The requirements for developing systems for detection of violations and action to be taken in response to them);- Article 10 “Violations” (The requirements for sanctions in case the corresponding violation is detected); and- Article 12 “Communication of information” (The requirements for reporting violations to IMO)

Both BC and HKC require the Party to take legal, administrative and other measures to implement and enforce provisions of them.

Noting above, two conventions are considered to have same level of control and enforcement on illegal shipments, violations and sanctioning.

USA Article 4.3, 4.4Article 9

Article 8Article 9

Under the Basel Convention, the Parties consider illegal traffic to be criminal.

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Article 10 In addition to the flag state and the recycling state, any Party in whose port a ship is located may investigate a ship, determine it to be in violation, and impose sanctions.

CIEL Article 4.3Article 4.4Article 9

Article 9Article 10

Basel criminalizes the illegal traffic of waste.

HKC provides much more discretion to the flag state and ship recycling state to establish sanctions to address violations of requirements pertaining to ships and SRFs, respectively. Parties are free to adopt measures that are weaker than that of Basel.

NGO PLATFORM Articles 4, 9 Articles 9, 10 NO -- HK Convention fails to Criminalize illegal traffic as does Basel. It does not criminalise illegal traffic.

Dispute settlementEU Article 20 Article 14 Settlement of disputes is addressed in article 20 of the Basel Convention. Parties

shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. If the concerned Parties cannot settle their dispute or if they agree to do so, shall be submitted to the International Court of Justice or to arbitration under the conditions set out in Annex VI on Arbitration. Settlement of disputes is addressed in article 14 of the Hong Kong Convention. Parties shall settle any dispute by negotiation or any other peaceful means agreed upon by them, which may include enquiry, mediation, conciliation, arbitration, judicial settlement, or resort to regional agencies or arrangements.

JAPAN Article 20 Article 14 There is no significant difference between two Conventions.USA Article 20 Article 14 Both Conventions allow for dispute settlement by means agreeable to the Parties

involved.CIEL Article 20 Article 14 HKC and Basel provisions are essentially equivalent.NGO PLATFORM Article 20 Article 14 YES – Both the HK and Basel Conventions have similar dispute settlement

language.Duty to re-importEU Article 9 Further under Article 9, if the illegality is the result of conduct on the part of the

waste exporter or generator, the State of export is obliged to ensure that the wastes in question are taken back by the exporter or generator or, if necessary, to do this itself. If such take-back is impracticable, the wastes have to be disposed of or otherwise treated in an environmentally sound manner. In other cases, the importer, disposer or the State of import are responsible for the environmentally sound disposal of the waste, or this has to be ensured by cooperation of the authorities concerned.

JAPAN Article 8 There are no stipulations which directly indicate

To begin with, it should be considered whether the concept of “re-import” is actually applicable for ships. That is to say, the necessity of “re-import clause” for

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“re-import” of ships, as HKC takes an approach other than import and export.

ships should be discussed first.The obligation of “re-import” which is required under BC is imposed on the exporter. In the case of ships, the stakeholder who should be regarded as the “exporter” is the ship owner. However, the existence of FOC enables the ship owners to change the flag state of the ships easily. Therefore, for ships, it is quite difficult to identify the exact export state. Even if the difficulty of identifying exporter is cleared, it may be impossible or requires enormous cost to implement re-import of the ship, in case it has been already started dismantling of the hull when the necessity of re-import occurs.Although HKC does not have the requirement of re-import, it clearly identifies where the responsibility of the condition of the ship which is to be delivered to the SRF. Under HKC, such responsibility is on the Administration of the Flag state. Thus, in case the condition of the actual ship deviates from what is assumed before arrival, the problem can be adequately solved under the scheme of dispute settlement, as it is clear who has what kind of responsibility of ship recycling.

USA Article 8Article 9.2

Article 9.3 The Basel Convention requires an exporting Party to take back wastes that are illegally exported or whose export cannot be completed as intended. The Hong Kong Convention has no comparable provision, although it does permit a Party to exclude from its ports a ship found to be in violation of the Convention. In such a circumstance, the flag state would be immediately notified of the exclusion.

CIEL Article 8Article 9.2

None HKC does not address this duty, even in the instance of Violations (Article 10).In light of the inability of Recycling States to deny the import of ships, the absence of a duty to re-import creates a major deficiency and risks the possibility of ships being abandoned on the beaches of Recycling States

NGO PLATFORM Articles 8, 9 None NO -- HK does not include a duty of the exporting state to re-import hazardous waste should illegal export be detected (e.g. abandoned ship)

Exchange of information by Parties / cooperation and coordinationAccess to and dissemination of information, e.g., administrative, enforcement, emergency matters

EU Articles 3, 4, 5, 10 and 13

Articles 7 and 12;Regulations 23 and 25

The Basel Convention provides for transmission of various kinds of relevant information by Parties to other Parties and the Secretariat. Articles 3, 5 and 13 lay down obligations of Parties to inform each other - mostly through the Secretariat of the Basel Convention - about their national focal points and competent authorities, the national definition of hazardous waste, decisions taken by them to prohibit or

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limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste. Parties shall co-operate in activities with other Parties and interested organizations, directly and through the Secretariat, including the dissemination of information on the transboundary movement of hazardous wastes and other wastes, in order to improve the environmentally sound management of such wastes and to achieve the prevention of illegal traffic (Article 4(2)(h)). Upon request, Parties have to make available information, whether on a bilateral or multilateral basis, with a view to promoting the environmentally sound management of hazardous wastes and other wastes, including harmonization of technical standards and practices for the adequate management of hazardous wastes and other wastes (Article 10(2)(a)). The Parties shall, whenever it comes to their knowledge, ensure that, in the case of an accident occurring during the transboundary movement of hazardous wastes or other wastes or their disposal, which are likely to present risks to human health and the environment in other States, those States are immediately informed (Article 13).

Under Hong Kong, each Party shall report to the Organization and the Organization shall disseminate, as appropriate, notably information concerning violations of this Convention; and actions taken towards ships and Ship Recycling Facilities under the jurisdiction of that Party (Article 12). Ship Recycling Facilities authorized by a Party shall report to the Competent Authority(ies) any incident, accident, occupational diseases, or chronic effects causing, or with the potential of causing, risks to workers safety, human health and the environment. Reports shall contain a description of the incident, accident, occupational disease, or chronic effect, its cause, the response action taken and the consequences and corrective actions to be taken (Regulation 23). The Statement of completion shall include a report on incidents and accidents damaging human health and/or the environment, if any (Regulation 25). For the Ship Recycling Facilities authorized by a Party, such Party shall provide to the Organization, if requested, and to those Parties which request it, relevant information, in regard to this Convention, on which its decision for authorization was based. The information shall be exchanged in a swift and timely manner (Article 7).

JAPAN Article 3, Article 4.2(h), Article 5, Article 10.2(a), Article 13

Article 7, Article 12, Regulation 23, Regulation 25

In both Conventions, there is no significant defect which weakens the control and enforcement in terms of Access to and dissemination of information.

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USA Article 13 Article 7Article 9Article 10Article 12Regulation 21

No comment provided.

CIEL Article 4.2(f)Article 4.2(h)Article 13

Article 12Article 9 Article 10

Obligations under the HKC and Basel Convention are similar, although the HKC gives the IMO greater discretion in determining what information to disseminate. Each Party must report to the IMO, and the IMO is obligated to disseminate “as appropriate.”

NGO PLATFORM Articles 4.2.h, 4.13, 6, 10, 13

Articles 7, 12 YES – Both Conventions seem to allow for adequate exchange of information on enforcement and administrative matters.

Reporting obligationsEU Article13 Articles 7 and 12 The Basel Convention provides for transmission of various kinds of relevant

information by Parties to other Parties and the Secretariat. Article 13 lay down obligations of Parties to inform each other - mostly through the Secretariat of the Basel Convention - about their national focal points and competent authorities, the national definition of hazardous waste, decisions taken by them to prohibit or limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste. Article 13(3) of the Basel Convention also places regular reporting obligations on Parties. Parties are to report annually, through the Secretariat, to the Conference of the Parties on the amount of hazardous waste exports and imports, disposals which did not proceed as intended, efforts to reduce the amount of hazardous waste, implementation measures and other relevant matters.

Parties are required by Article 12 of the Hong Kong Convention to submit to the IMO a list of authorized recycling facilities, annual lists of ships that are recycled within the jurisdiction of each Party, details of competent authorities and recognized organizations authorized on behalf of the Party, and information on violations of the Convention and actions taken towards ships and recycling facilities. The IMO has to make these data available to other Parties. Article 7 of the Convention also obliges recycling State Parties to provide, on request of other Parties or the IMO, relevant information on which its decision for the authorisation of a recycling facility was based.

JAPAN Article13 Same as the column above.

Both Conventions requires their own reports clause which are necessary to implement them adequately, and there is no serious defect in both of them.

USA Article 13 Article 7 No comment provided.30

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Article 12Regulation 23Regulation 24Regulation 25

CIEL Article 13 Article 7 Article 12

Reporting obligations under the Basel Convention are more comprehensive. Only Basel requires Parties to report on the quantity and characteristics of the waste exported or imported, the disposal method used, efforts to minimize the transboundary movement of waste, information on the measures adopted to implement the Convention, information on measures undertaken for development of technologies for the reduction and/or elimination of the production of waste, and information on available qualified statistics compiled by them on the effects on human health and environment of the generation, transportation, and disposal of wastes.

NGO PLATFORM Articles 6, 4.2.f Regulation 24, 25. NO – HK Convention fails to provide adequate prior informed consent notification (e.g. notifications prior to TBM)

Transmission of information regarding import / export restrictions

EU Articles 4 and 13 Parties are empowered by Article 4 of the Basel Convention to unilaterally establish import prohibitions via their domestic legislation. Other Parties shall take steps to ensure that they respect such prohibitions by their own legislation. The Basel Convention provides for transmission of this information to other Parties and the Secretariat via the reporting obligations in Article 13.

JAPAN Article 4.1 Regulation 9.4, Regulation 24.3

While the Parties under BC are empowered by Article 4 to unilaterally establish import prohibitions via domestic legislation, HKC does not introduce the concept of “import and export” directly.However, under HKC, some relevant requirements correspond to the system for transmission of information regarding import / export restrictions under BC, which are:- The approval of SRPs by CAs; and- The notification of the start of the ship recycling which is triggered by the issuance of the International Ready for Recycling Certificate.Under HKC, unless the above two requirements are satisfied, the ship cannot enter into the SRF.Therefore, the scheme for the transmission of information regarding import / export restrictions makes no significant differences between the levels of control and enforcement of both Conventions.

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USA Article 13 Article 12 No comment provided.

CIEL Article 4.1(a)Article 13(2)

Article 12.1 The Basel Convention permits States to prohibit import or export of waste, and Parties must inform the Secretariat of such restrictions. The HKC does not have any equivalent reporting provisions.

NGO PLATFORM Articles 3, 4.1.a None NO – HK Convention has no mechanism for states to report on any import or export restrictions they may possess. This is however laid out very carefully in Basel including import and export prohibitions as well as differing definitions of hazardous waste.

Among Parties to advance environmentally sound management, through information exchange and technical assistance and capacity-building on best practices, technical guidelines, monitoring and public awarenessEU Article 10;

Decision VI/12Article 13 Basel Parties have to co-operate with each other in order to improve and achieve

environmentally sound management of hazardous wastes and other wastes (Article 10). To this end, they have to: - make available information to promote the environmentally sound management of hazardous wastes and other wastes, including harmonization of technical standards and practices,- cooperate in monitoring the effects of the management of hazardous wastes on human health and the environment, in the development and implementation of new environmentally sound low-waste technologies and the improvement of existing technologies, in the transfer of technology and management systems related to the environmentally sound management of hazardous wastes and other wastes and in developing the technical capacity among Parties; and in the development of appropriate technical guidelines and/or codes of practice. Decision (VI/12) of the Conference of the Parties in 2002, set up a Mechanism for

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Promoting Implementation and Compliance. The Committee is to assist Parties to comply with the Convention’s obligations.

Parties to the Hong Kong Convention shall undertake to provide support, directly or through the Organization and other international bodies, to Parties which request technical assistance: to train personnel, to ensure the availability of relevant technology, equipment and facilities, to initiate joint research and development programmes; and to undertake other actions aimed at the effective implementation of the Convention and its technical guidelines. Parties have to co-operate actively in the transfer of management systems and technology in respect of the safe and environmentally sound recycling of ships (Article 13).

JAPAN Article 10 Article13 As both Conventions permit the supports through information exchange and technical assistance and capacity building, the two Conventions are considered to have the same level of control and enforcement on this point.

USA Article 4.2(h)Article 10Article 13Article 14

Article 1.4Article 13

No comment provided.

CIEL Article 10 Article 13 Both the Basel Convention and the HKC require international cooperation to enhance the ESM of waste. However, HKC lacks the establishment of regional or sub-regional centers for training and technology transfer and an accompanying voluntary funding mechanism, similar to those available under Basel.

NGO PLATFORM Articles 4.2, 13, 10 Article 13 YES – Both Conventions have adequate requirements to assist and provide information on ESM.

Additionally Suggested Criteria[Consideration of the interests of Developing Countries]CIEL Article 11

Article 14Article 4.2(e)Article 4.10

HKC assigns the obligation to ensure ESM largely on the recycling state, but does not contain a provision for a ship recycling fund or other financing mechanism to assist SRFs in complying with the Convention’s requirements. In that most SRFs are located in developing countries, this is incompatible with the Basel Article 11 requirement for considering the interests of developing countries.

HKC should also consider the lack of capacity of many developing countries and require stronger stipulations on pre-cleaning.

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Annex II

Submissions from parties, signatories and other relevant stakeholders

Table of contents1. European Union.................................................................................................................37-52

2. Japan..................................................................................................................................53-70

3. United States of America..................................................................................................71-78

4. The Center for International Environmental Law.............................................................79-152

5. International Ship Recycling Association.........................................................................153-161

6. NGO Shipbreaking Platform.............................................................................................162-180

7. The UN Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights..............181-189

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1. European Union

Submission of the EU and its Member States presenting the table andpreliminary assessment pursuant to decision OEWG-VII/12

(environmentally sound dismantling of ships)

I/ INTRODUCTION

1. By decision IX/30 adopted at the 9th Conference of the Parties of Basel Convention, the Open Ended Working Group was requested

"… to carry out a preliminary assessment of whether the ship recycling convention, as adopted, establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety, after having developed the criteria necessary for such assessment, and, in doing so, to take into account:

(a) The special characteristics of ships and international shipping;(b) The principles of the Basel Convention and the relevant decisions of the Conference of the Parties;(c) The comments submitted by Parties and other relevant stakeholders, as appropriate"

2. On the 21 October 2009, the Council adopted conclusions on the EU Strategy for better ship dismantling 1 and which, amongst other things:

- ENDORSES the outcome of the International Maritime Organisation Conference on Ship Recycling in May 2009 and the adoption of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (“Hong Kong Convention”);

- UNDERLINES that the Hong Kong Convention, which represents a major achievement for the international community, provides a comprehensive system of control and enforcement from “cradle to grave”, and an important step towards phasing out unsafe and environmentally harmful working methods, including in relation to unsafe aspects of the current practise of so called beaching of end of life ships.

- ENCOURAGES strongly EU Member States to ratify the Hong Kong Convention as a matter of priority so as to facilitate its entry into force as early as possible and to generate a real and effective change on the ground.

- SUPPORTS the ongoing assessment of the level of control and enforcement established by the Basel Convention and the Hong Kong Convention following Decision IX/30 and other relevant decisions of the Conference of the Parties to the Basel Convention.

3. During the 7th Open Ended Working Group, criteria and a specific table were agreed upon and are annexed to decision OEWG VII/12 on environmentally sound dismantling of ships. By the same decision, Parties and other relevant stakeholders, were invited, based on these criteria, to review and complete the table annexed to the decision.

1 http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/envir/110626.pdf

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I/ EU PRELIMINARY ASSESSMENT

4. The Basel Convention applies to all types of ships when they are waste and the transboundary movement of ships that are waste. It takes into account the principle of environmentally sound management and contains general provisions which aim to ensure that the generation of hazardous waste and other wastes is reduced to a minimum.

5. In comparison, the Hong Kong Convention covers the whole life cycle of ships of 500 GT and above 2. Warships or government owned ships are excluded, although the Convention does require Parties to ensure that excluded ships act in a manner consistent with its requirements, so far as is reasonable and practical. The Hong Kong Convention contains provisions which aim to ensure the safe and environmentally sound recycling of ships and includes specific provisions addressing ships in their design and construction phase, during their operation (including maintenance) and during their recycling.

6. Under the Basel Convention, the original notification to competent authorities seeking approval to the movement of waste, considering ship dismantling as an interim operation, must identify any further facilities to which waste will be sent for its further safe and environmentally sound management3.

7. As far as the further processing or disposal of waste resulting from the recycling of a ship is concerned, the Hong Kong Convention requires that waste be transferred to waste facilities authorised to deal with its treatment and disposal in a safe and environmentally sound manner and requires that waste management and disposal sites are identified for this purpose. Like the Basel Convention, the Hong Kong Convention does not establish any system of control for such waste in the recycling state once it leaves the Ship Recycling Facility but it is understood that Parties to the Basel Convention would still need to comply with the requirements of that Convention to ensure the environmental sound management of the waste.

8. Some control and enforcement elements in both the Basel Convention and the Hong Kong Convention are different but serve nevertheless similar purposes:

a. Both instruments require the authorization of recycling facilities or of persons to perform a recycling operation, respectively. The Basel Convention here does not provide for specific requirements for authorization criteria and procedures although it does emphasise the need for environmentally sound management and avoidance of pollution. In this context it is important to note that the Hong Kong Convention establishes safe and environmentally sound treatment requirements for authorization. This goes beyond the mere requirement of ESM.

b. The documentary control (“PIC”) procedure for transboundary movements of hazardous waste is at the core of the Basel Convention and is the means used to approve any proposed movement. The Hong Kong Convention requires approval of the ship recycling plan by the recycling State, its transmission to the Flag State and the issuance of the International Ready for Recycling Certificate by the Flag State as the procedure to approve a proposed movement of a ship going for dismantling. c. Reporting obligations, which are found in both Conventions, constitute also an element of control and enforcement. Regulatory enforcement against violations or “illegal traffic” provisions can be found in both Conventions, as can the communication of information from the recycling state to the Secretariat and the other Parties of the respective Convention.

9. On the other hand, some elements are specific. 1. The concerned states are different in the Basel Convention (state of export, state of import and state

of transit) to those in the Hong Kong Convention (flag state, port state and recycling state). 2. The surveys and certificates that under the Hong Kong Convention accompany the ship throughout

its operating lifetime until the recycling phase, the controls on the installation or use of certain hazardous materials on ships at design and maintenance stages and the likely port State controls, do not exist as control and enforcement elements under the Basel Convention.

2 See article 3(1) of the Hong Kong Convention,. 3 Dismantling, including ship dismantling is considered as interim operation R12, according to EU legislation (Directive 2008/98/EC).

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3. Regarding documentary control, the Hong Kong Convention allows recycling states to choose between explicit and tacit consent of the Ship Recycling Plan, while the Basel Convention only foresees the possibility of a written consent to a notification made under the "PIC" procedure4.

4. The Basel Convention contains provisions concerning the duty to re-import or duty to make alternative arrangement in case of illegal shipment, but there is no similar provision in the Hong Kong Convention5. However, there may be practical difficulties in enforcing the Basel Convention requirement while a ship is at sea6. It is also not clear how the provisions in the Basel Convention could be practically applied once the dismantling process has started.

10. In conclusion, it may be said that the system of control and enforcement for transboundary movements of hazardous waste through the Prior Informed Consent Procedure of the Basel Convention is strict and functioning relatively well for most hazardous wastes, but is difficult to enforce in relation to end-of-life ships. The Hong Kong Convention takes a rather different approach to control and contains other elements of control and enforcement which are more adapted to the specificities of the maritime world.

11. As a preliminary assessment and taking a life cycle perspective, it can therefore be concluded that the Hong Kong Convention appears to provide a level of control and enforcement at least equivalent to that one provided by the Basel Convention for ships which are waste under the Basel Convention and for ships to which the Hong Kong Convention applies and to ships treated similarly pursuant to article 3(4) of this latter Convention.

4 Some streamlining is allowed e.g. by “general notification” provisions where hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs offices of exit and entry. In that case, the general notification and written consent may cover multiple transboundary movements of hazardous wastes during a maximum period of 12 months.5 The Hong Kong Convention does however contain a general obligation on Parties to take effective measures to ensure compliance with its requirements (see article 4). 6 Where, contrary to the requirements of the Basel Convention, a ship leaves a port to make its final journey for recycling without having notified its intentions to the relevant competent authorities, or without having received the required consent for the movement.

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Table of comparaison between Hong Kong and Basel Conventions

Criteria

Basel Convention

Hong Kong Convention

Comments to facilitate a preliminary assessment of equivalent level of control and enforcement7

Scope and applicability

Basel Convention Hong Kong Convention

What? Coverage of ships / wastes Article 2 Article 3 The Basel Convention applies to transboundary

movements of hazardous wastes and certain other wastes, to domestic environmentally sound management of waste, as well as wastes defined as hazardous waste under national legislation. “Wastes” in the sense of the Basel Convention are, according to Article 2(1), substances or objects which are disposed of or are intended or are required to be disposed of by the provisions of national law.

A ship may become waste as defined in Article 2 of the Basel Convention and, at the same time, it may be defined as a ship under other international rules as was stated in Decision VII/26 of the Conference of the Parties to the Basel Convention.

The Basel Convention does not exempt military or other state-owned waste - ships - from its scope. All ships that are hazardous waste are covered irrespective of size or type.

The Convention (article 3 (1)) applies to:.1 ships entitled to fly the flag of a Party or operating under its authority;.2 Ship Recycling Facilities operating under the jurisdiction of a Party.

This Convention does not apply (article 3 (2) and 3(3)) to:- any warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only on government non-commercial service.- ships of less than 500 GT or to ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the State whose flag the ship is entitled to fly.

However, each Party has to ensure, by the adoption of appropriate measures, that such ships act in a manner consistent with the Convention, so far as is reasonable and practicable.

Coverage and identification of hazardous materials

Annexes I to III

Article 2;Appendixes 1 and 2

The Basel Convention applies to transboundary movements of hazardous wastes and certain other wastes. Hazardous wastes are those which either fall in a category listed in Annex I (unless they do not possess characteristics listed in Annex III of the Convention) or are in Annex II of the Convention or are hazardous according to domestic legislation of the Party of export, import or transit.

The Hong Kong Convention establishes control measures for the installation and use of certain hazardous materials in new ships under this Convention and for existing ships under other Conventions.Article 2(9) defines ‘hazardous material’ as any material or substance which is liable to create hazards to human health and or the environment. The installation and use of hazardous materials8 listed in

8 Asbestos, ozone depleting substances, polychlorinated biphenyls (PCB), anti-fouling compounds and systems.39

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Criteria

Basel Convention


Comments to facilitate a preliminary assessment of equivalent level of control and enforcement

Annex III lists the characteristics that make wastes hazardous.

Appendix 1 to the Hong Kong Convention is to be be prohibited and/or restricted. New ships must have an inventory of hazardous materials while, for existing ships, this inventory must be developed within five years of the Convention coming into force.

Appendix 2 of the Hong Kong Convention provides a minimum list of substances which should be addressed in the Inventory of Hazardous Materials.

When? Management of life cycle of ship?

Article 4 Article 2;Regulation 20

Parties have to ensure that their domestic generation of hazardous waste and other wastes is reduced to a minimum, taking into account social, technological and economic aspects (article 4(2)).

Parties have to ensure that waste are either treated domestically or exported to facilities which will ensure an environmentally sound management of the hazardous wastes and other wastes.

“Management” as defined by the Convention comprises the collection, transport and disposal of hazardous wastes or other wastes, including after-care of disposal sites.

Parties ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment;

Parties ensure that the transboundary movement of hazardous wastes 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

The Convention provides a comprehensive system of control and enforcement from “cradle to grave” and relies in particular on the survey and certification of ships and the authorization of ship recycling facilities.

The Hong Kong Convention has two main control and enforcement features: i) controls applied to ships including their design, construction, operation, maintenance and repair that have effect throughout the ship's working life, and ii) controls for the standards and operation of ship recycling facilities.

Ships flying a Party's flag or operating under its authority have to comply with the survey and certification requirements. These are to be effective throughout the operating life of ships, i.e. from the design and construction stage to the phase of preparing for recycling.

When the ship comes to the end of its life a ship recycling plan must be prepared.

Parties to the Hong Kong Convention have to prevent, reduce, minimize 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.

The definition of "Ship recycling" covers the complete or partial dismantling of a ship at a Ship Recycling Facility in order to recover components and materials for reprocessing and re-use, whilst taking care of hazardous and other materials, and includes

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Criteria

Basel Convention



from such movement; associated operations such as storage and treatment of components and materials on site, but not their further processing or disposal in separate facilities (article 2(10)).

According to Regulation 20(3), Ship Recycling Facilities authorized by a Party shall provide for and ensure safe and environmentally sound management of all Hazardous Materials and wastes removed from the ship recycled at that Ship Recycling Facility. Waste management and disposal sites shall be identified to provide for the further safe and environmentally sound management of materials.

Who? Relationship between Party and non-Party

Articles 4 and 11

Article 3;

Regulation 4;

Appendix 1

As a general obligation (Article 4 (5)), a Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported from a non-Party.

However, article 11 allows Parties to enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries.

Article 3(4) of the Hong Kong convention introduces the principle of no more favourable treatment which is understood as applying to:

- non-Party ships going for recycling to Party recycling facilities;

- non-Party ships visiting Party ports;

- non-Party ships undergoing repairs in Party repair facilities (for example see Regulation 4.2 requiring the restriction of installation of Appendix 1 materials on ships while in shipyards or ship repair yards of a Party).

Where? Jurisdiction

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Criteria

Basel Convention



Control

Authorizations and certifications

Article 4 Articles 5, 6;


Authorization of recycling facilities is required under the Basel Convention by Article 4.7(a), which obliges Parties to prohibit persons under its national jurisdiction all persons from transporting or disposing of hazardous wastes or other wastes unless such persons are authorised or allowed to perform such types of operations. The criteria and procedure for this are not prescribed.

Article 5 of the Hong Kong Convention relates to requirements for ships. Ships flying a Party's flag or operating under its authority have to comply with the survey and certification requirements. These are to be effective throughout the operating life of ships, i.e. from the design and construction stage to the phase of preparing for recycling.

The authorization of ship recycling facilities is provided for in Article 6. Facilities must be are authorized in accordance with the regulations annexed to the Convention..

Regulation 15 provides for the institution of a control mechanism which should include a mechanism for authorization, inspection, monitoring and enforcement provisions.

Regulation 16 establishes the procedure for the authorization, where the procedural details would be supplemented by Guidelines.

Regulation 17 sets out general requirements for the recycling facilities, and Regulation 18 requires ship recycling facilities to prepare a Recycling Facility Management Plan.

Health and safety matters, such as the prevention of accidents, emergency response and workers' safety training, are covered in Regulations 19-23 and have to be fulfilled in order for the recycling facility to be authorized.

Regulation 8(1)6 requires a ship, prior to any recycling activity taking place, to be certified as “ready for recycling” by the flag state Administration, or by a Recognized Organization on the Administration's behalf.

Surveying, auditing and inspection

Article 4 Article 8;

Regulations 15 and 16

Parties, through the general obligations of Article 4, shall take appropriate legal, administrative and other measures to implement and enforce the provisions of the convention, including measures to prevent and publish conduct in contravention of the Convention.

The system of control and enforcement to be provided by the Hong Kong Convention is considered in the broader context of the IMO system as a whole that has a number of mechanisms also providing control and enforcement.

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Criteria

Basel Convention



Parties can undertake joint inspections and exchange programs at regional (IMPEL TFS) or international (INECE) levels, whose main objective is to work towards an adequate level of inspections.

Enforcement actions are focused on introducing complete measures in order to prevent and detect illegal waste shipments and to deter illegal waste exporters, verifying waste destination and the treatment at destination, setting up training and exchange programmes for inspectors, and on maintaining and improving the network and collaboration of front line inspectors and other competent authorities and enforcement partners by exchange of information and knowledge.

It promotes the exchange of information and experience and the development of greater consistency of approach in the implementation, application and enforcement of environmental legislation in field of waste shipments and waste management.

Those activities encourage and facilitate the cooperation between environmental authorities, customs, police and traffic inspectors as joint enforcement actions are performed at borders, in ports and on roads.

“Seaport project” carried out on both IMPEL TFS and INECE level has been worldwide recognized as efficient mechanism to detect and deter illegal shipments of waste, with special emphasis on e-waste trafficking.

Another example of enforcement cooperation is operation “Demeter” targeting the illicit cross-border shipment of hazardous and other waste en route from Europe to countries in the Asia/Pacific region and Africa launched by Customs administration. They were supported by their national environmental agencies, the Secretariat of the Basel Convention, the EU Network for Implementation and Enforcement of Environmental Law (IMPEL), and the seven WCO Regional Intelligence Liaison Offices (RILO).

The first broader element of control and enforcement is that exercised through flag State responsibilities. This is achieved mainly through survey and certification systems (either directly by the flag State inspectors or by appointed Recognized Organizations / classification societies). Apart from the system of detailed surveys and certificates that covers all ships at regular intervals, before the recycling stage, flag states also carry out spot checks throughout the operating life of ships flying their flag.

The second broader element of control and enforcement is that exercised by port States. This is achieved through inspection of ships entering the ports or offshore terminals to determine whether such ships are complying with the applicable conventions and IMO mandatory instruments. A port State authority's report to a flag State Administration enables the Administration to take appropriate action to rectify shortfalls in ships. This can also lead to detentions or prohibitions from returning to that port.

Most coastal States, moreover, have signed up to Memoranda of Understanding (MoUs) on port State control. These MoUs have developed their own rules and procedures in order to define the way inspections are made, and also to share the burden of control between their members. In practice, over 40 States belong to the three most advanced organisations for port State control (Paris MoU, Tokyo MoU and USCG), with half a dozen other MoUs in existence (Indian Ocean, for instance). Use of these is gaining momentum as best practice becomes more widely spread under the auspices of the IMO.

Article 8 provides for inspections of ships to ensure that they hold an inventory of hazardous materials or an International Ready for Recycling Certificate. More detailed inspections may be carried out where these certificates are not found.

Parties are also required to establish a mechanism for ensuring that Ship Recycling Facilities comply with the requirements of the Convention including the establishment and effective use of inspection, monitoring and enforcement

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Criteria

Basel Convention



provisions, including powers of entry and sampling(Regulation 15(3)).

When authorizing a Ship Recycling Facility, Competent Authorities are required to verify documentation and carry out a site inspection (Regulation 16).

Designation of competent authorities/ focal points

Articles 2 and 5

Regulation 15

Basel Convention sets in place rights and obligations for the State of export, the State of import and, if applicable, to the transit States. Parties shall designate or establish one or more competent authorities and one focal point to facilitate the implementation of the Convention (Article 5). The "competent authority” is responsible, within such geographical areas as the Party may think fit, for receiving the notification of a transboundary movement of hazardous wastes or other wastes, and any information related to it, and for responding to such a notification (Article 2).

Hong Kong Convention sets in place rights and obligations for the Flag state, Recycling States and to Port States. Each Party shall designate one or more Competent Authorities and the single contact point to be used by the Organization, Parties to this Convention and other interested entities, for matters related to Ship Recycling Facilities operating within the jurisdiction of that Party (Regulation 15(4)).

Standards (mandatory or voluntary)


Standards of facilities are to be set in accordance with the principle of ESM. It has been further elaborated through the development of a series of Technical Guidelines adopted by the Parties to the Basel Convention published by its Secretariat.

The Hong Kong Convention contains various provisions that establish its own system of control and enforcement. The provisions of this Convention are intended to be holistic, covering health, safety and environmental issues in relation to shipping and ship recycling in one single document.

Regulation 3 requires Parties to take into account relevant and applicable standards, recommendations and guidance developed by ILO and Basel Convention.

Regulations 19 to 22 set a series of mandatory health and safety standards such as the prevention of accidents, emergency response and workers' safety training.

A series of technical guidelines supporting the Convention will have to be taken into account by the Parties when applying the Convention.


Article 3, 4; Decision III/1

Regulations 9 and 16;

Appendix 5

Parties are empowered by Article 4 of the Convention to unilaterally establish import prohibitions via their domestic legislation. Other Parties shall take steps to ensure that they respect such prohibitions by their own

The concepts of “import” and “export” are not directly used in the Hong Kong Convention. However, Regulation 9 requires approval of a Ship Recycling Plan by the Competent Authority authorizing the Ship Recycling Facility before a ship is sent for

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Criteria

Basel Convention



legislation. Many countries have exercised this right.

Article 3 lays down obligations of Parties to inform each other - through the Secretariat of the Basel Convention - about the decisions taken by them to prohibit or limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste.

In 1995, the Basel Convention was amended by Decision III/1 of the Conference of the Parties prohibiting all transboundary movements of hazardous wastes to all states which are not listed in Annex VII, comprising members of the OECD, the EC and Liechtenstein. This “Basel Ban Amendment”, intends to protect developing countries from the high environmental risks of hazardous waste being shipped from developed countries and not being managed in an environmentally sound manner at the destination. The Ban Amendment has not yet entered into force generally although it is given effect within the EU.

recycling. This allows the opportunity for the “importing” country to effectively refuse the import of a particular ship. Furthermore, Article 9 of the Convention allows Parties to dismiss from their ports ships that are in breach of the Convention’s requirements.

The Hong Kong Convention addresses the risks of hazardous waste being shipped from developed to developing countries by requiring the environmentally sound management of end of life ships and the waste arising from them.

Furthermore, facilities must comply with the requirements of the Convention and be authorized as such by the competent authority of the recycling state. The authorization process offers the recycling state the opportunity to prohibit or limit the import of ships containing specific hazardous materials.

Traceability and transparency of hazardous materials until final treatment / ultimate disposal

Articles 4 and 6

Regulations 5, 9, 20 and 25

Parties have to:

- require information about a proposed movement be provided to the States concerned (export, import, transit) and to state clearly the effects of the proposed movement on human health and the environment (Article 4(2)(f)) ,

- waste shall be accompanied by a movement document from the point at which the transfer commences to the point of disposal ( Article 4(7)(c)) ,

- this document should be signed by each person who takes charge of the movement either upon delivery or receipt The disposer has to inform both the exporter and the competent authority of the State of export of receipt by the disposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import

Ships have to develop and update an Inventory of Hazardous Materials during the operating life of the ship. Prior to recycling the Inventory shall, in addition incorporate information about operationally generated wastes and stores and be verified either by the Administration or by any person or organization authorized by it (Regulation 5).

A Ship Recycling Plan has to be developed by the Ship Recycling Facility(ies) prior to any recycling of each ship. It has to include information concerning inter alia how the type and amount of materials including those identified in the Inventory of Hazardous Materials will be managed (Regulation 9)

Waste management and disposal sites shall be identified to provide for the further safe and environmentally sound management of materials (Regulation 20.3).

All wastes generated from the recycling activity shall be only transferred to a waste management facility authorized to deal with their treatment and disposal in a safe and environmentally

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Criteria

Basel Convention



(Article 6(9)). sound manner (Regulation 20.4)

When the partial or complete recycling of a ship is completed, a Statement of Completion shall be issued by the Ship Recycling Facility and reported to its Competent Authority(ies) which have to send a copy of the Statement to the Flag state administration that issued the International Ready for Recycling Certificate for the ship.

The Statement shall be issued within 14 days of the date of partial or completed Ship Recycling in accordance with the Ship Recycling Plan and shall include a report on incidents and accidents damaging human health and/or the environment, if any (Regulation 25).

Prior notification and prior consent

Article 6 Regulations 8, 9, 10, 24 and 25

Article 6 of the Basel Convention sets out the main provisions of the administrative control system that applies to legitimate transboundary movements of hazardous waste. Every generator of hazardous waste wishing to export it is required to provide notification of the proposed transboundary movement of hazardous waste in writing, through the channel of the “competent authority” of the State of export, to the competent authorities in the State of import, and to any transit States . The State of export shall not allow transboundary movement to commence until it has received the explicit written9 consent of the State of import and confirmation of the existence of a contract between the exporter and the disposer. Prior written consent by the State(s) of transit is also necessary, unless that Party has informed the other Parties of the Convention that it renounces this requirement. The export may then proceed if the State of transit does not respond within 60 days after receiving the notification (“tacit consent”).

Any transboundary movement of hazardous wastes shall

Regulations 24 and 25 in the Annex to the Convention provide for reporting requirements that relate to notification of and information about the recycling of an individual ship.

The shipowner is obliged to notify his flag State Administration in writing of the intention to recycle a ship. This enables the flag State Administration to prepare the survey and certification required by the Convention (including the Inventory of Hazardous Materials and the International Ready for Recycling Certificate).

Regulation 8(1)6 requires a ship, prior to any recycling activity taking place, to be certified as “ready for recycling” by the flag state Administration, or by a Recognized Organization on the Administration's behalf.

Regulation 9 provides for the development of a Ship Recycling Plan by the recycling facility taking into account information provided by the shipowner prior to any recycling taking place.

This Ship Recycling Plan has to be approved (explicitly or tacitly) by the Competent Authority authorizing the Ship

9 Some streamlining is allowed e.g. by “general notification” provisions where hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs offices of exit and entry. In that case, the general notification and written consent may cover multiple transboundary movements of hazardous wastes during a maximum period of 12 months.46

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be covered by insurance, bond or other guarantee as may be required by the State of import or any transit State.

It should be noted that “consent” under the Basel Convention does not always require written consent in all circumstances. (Some streamlining is allowed e.g. by “general notification” provisions where hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs offices of exit and entry. In that case, the general notification and written consent may cover multiple transboundary movements of hazardous wastes during a maximum period of 12 months.)

Recycling Facility.

Once approved the Ship Recycling Plan be made available for inspection by the Flag State Administration (Regulation 9 (5)). During the final survey prior to the ship being taken out of service and before the recycling of the ship has started, the flag state shall verify that the Ship Recycling Plan properly reflects the information contained in the Inventory of Hazardous Materials and contains information concerning the establishment, maintenance and monitoring of Safe-for-entry and Safe-for-hot work conditions (Regulation 10 (4)).

Regulation 24(1) requires ship owners to notify administrations of the intention to recycle a ship.

Regulation 24(2) requires a ship recycling facility to notify its competent authorities of its intent to accept a ship for recycling.

Certification of disposal/statement of completion of ship recycling

Article 6 Regulation 25

The disposer has to inform both the exporter and the competent authority of the State of export of receipt by the disposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import (Article 6(9))

A “statement of completion” is to be issued by the recycling facility, when the partial or complete recycling of a ship is completed in accordance with the Convention. This Statement of Completion shall be issued by the Ship Recycling Facility and reported to its Competent Authority(ies) which have to send a copy of the Statement to the Flag state that issued the International Ready for Recycling Certificate .

The Statement shall be issued within 14 days of the date of partial or completed Ship Recycling in accordance with the Ship Recycling Plan and shall include a report on incidents and accidents damaging human health and/or the environment, if any (Regulation 25).

[Other control mechanisms]

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Enforcement

Illegal shipments, violations and sanctioning, including criminalization, of illegal traffic

Articles 4, 9 and 19

Articles 9, 10 and 12

Article 4 of the Basel Convention (paragraphs 3 and 4) establishes that illegal traffic in hazardous wastes or other wastes is criminal and requires each Party to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, including measures to prevent and punish conduct in contravention of the Convention.

In particular, Parties, through the general obligations of Article 4, may establish national legislation including creation of “competent authorities”. These authorities enforce the requirements and administer the notification and consent procedure.

Article 9 of the Basel Convention determines those actions that are deemed to be illegal traffic in hazardous waste. This includes transboundary movements of hazardous waste made without notification or consent as described above. Parties are required to introduce domestic legislation to prevent and punish illegal waste traffic.

Article 19 provides for circumstances where a Party has reason to believe that another Party is acting or has acted in breach of its obligations under the Convention. It may - apart from informing that Party of the allegations - inform the Secretariat, and the Secretariat should submit all relevant information to the other Parties.

Article 9 of the Hong Kong Convention deals with detection of violations and action to be taken in this case, and requires Parties to cooperate. It foresees investigations to be undertaken at ports and empowers Parties to warn, detain, dismiss or exclude a ship from their ports as a result of the findings. Where sufficient evidence exists that a ship recycling facility operates in violation of the Convention, the Party with jurisdiction over it should make an inspection and report about the findings.

Article 10 of the Hong Kong Convention obliges Parties to prohibit violations and establish sanctions through domestic legislation. Furthermore, the competent authorities are required to investigate alleged violations, take proceedings according to the law and inform the Party that reported the violation about the action it has taken or the reasons for not taking action. Sanctions shall be “adequate in severity to discourage violations of this Convention whenever they occur”.

Under Article 12, each Party must report to IMO violations of this Convention.

Dispute settlement Article 20 Article 14 Settlement of disputes is addressed in article 20 of the

Convention. Parties shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. If the concerned Parties cannot settle their dispute or if they agree to do so, shall be submitted to the International Court of Justice or to arbitration under the conditions set out in Annex VI on Arbitration.

Settlement of disputes is addressed in article 14 of the Convention. Parties shall settle any dispute by negotiation or any other peaceful means agreed upon by them, which may include enquiry, mediation, conciliation, arbitration, judicial settlement, or resort to regional agencies or arrangements.

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Duty to re-import

Article 9 Further under Article 9, if the illegality is the result of conduct on the part of the waste exporter or generator, the State of export is obliged to ensure that the wastes in question are taken back by the exporter or generator or, if necessary, to do this itself. If such take-back is impracticable, the wastes have to be disposed of or otherwise treated in an environmentally sound manner. In other cases, the importer, disposer or the State of import are responsible for the environmentally sound disposal of the waste, or this has to be ensured by cooperation of the authorities concerned.

Exchange of information by Parties / cooperation and coordination

Access to and dissemination of information, e.g., administrative, enforcement, emergency matters

Articles 3, 4, 5, 10 and 13

Articles 7 and 12;

Regulations 23 and 25

The Basel Convention provides for transmission of various kinds of relevant information by Parties to other Parties and the Secretariat. Articles 3, 5 and 13 lay down obligations of Parties to inform each other - mostly through the Secretariat of the Basel Convention - about their national focal points and competent authorities, the national definition of hazardous waste, decisions taken by them to prohibit or limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste.

Parties shall co-operate in activities with other Parties and interested organizations, directly and through the Secretariat, including the dissemination of information on the transboundary movement of hazardous wastes and other wastes, in order to improve the environmentally sound management of such wastes and to achieve the prevention of illegal traffic (Article 4(2)(h)).

Upon request, Parties have to make available information, whether on a bilateral or multilateral basis, with a view to

Each Party shall report to the Organization and the Organization shall disseminate, as appropriate, notably information concerning violations of this Convention; and actions taken towards ships and Ship Recycling Facilities under the jurisdiction of that Party (Article 12).

Ship Recycling Facilities authorized by a Party shall report to the Competent Authority(ies) any incident, accident, occupational diseases, or chronic effects causing, or with the potential of causing, risks to workers safety, human health and the environment. Reports shall contain a description of the incident, accident, occupational disease, or chronic effect, its cause, the response action taken and the consequences and corrective actions to be taken (Regulation 23).

The Statement of completion shall include a report on incidents and accidents damaging human health and/or the environment, if any (Regulation 25).

For the Ship Recycling Facilities authorized by a Party, such Party shall provide to the Organization, if requested, and to

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promoting the environmentally sound management of hazardous wastes and other wastes, including harmonization of technical standards and practices for the adequate management of hazardous wastes and other wastes (Article 10(2)(a)).

The Parties shall, whenever it comes to their knowledge, ensure that, in the case of an accident occurring during the transboundary movement of hazardous wastes or other wastes or their disposal, which are likely to present risks to human health and the environment in other States, those States are immediately informed (Article 13)

those Parties which request it, relevant information, in regard to this Convention, on which its decision for authorization was based. The information shall be exchanged in a swift and timely manner (Article 7).

Reporting obligations Article13 Articles 7

and 12The Basel Convention provides for transmission of various kinds of relevant information by Parties to other Parties and the Secretariat. Article 13 lay down obligations of Parties to inform each other - mostly through the Secretariat of the Basel Convention - about their national focal points and competent authorities, the national definition of hazardous waste, decisions taken by them to prohibit or limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste.

Article 13(3) of the Basel Convention also places regular reporting obligations on Parties. Parties are to report annually, through the Secretariat, to the Conference of the Parties on the amount of hazardous waste exports and imports, disposals which did not proceed as intended, efforts to reduce the amount of hazardous waste, implementation measures and other relevant matters.

Parties are required by Article 12 of the Hong Kong Convention to submit to the IMO a list of authorized recycling facilities, annual lists of ships that are recycled within the jurisdiction of each Party, details of competent authorities and recognized organizations authorized on behalf of the Party, and information on violations of the Convention and actions taken towards ships and recycling facilities. The IMO has to make these data available to other Parties. Article 7 of the Convention also obliges recycling State Parties to provide, on request of other Parties or the IMO, relevant information on which its decision for the authorisation of a recycling facility was based.


Articles 4 and 13

Parties are empowered by Article 4 of the Convention to unilaterally establish import prohibitions via their domestic legislation. Other Parties shall take steps to ensure that they respect such prohibitions by their own legislation.

The Basel Convention provides for transmission of this information to other Parties and the Secretariat via the

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reporting obligations in Article 13.

Among Parties to advance ESM, through information exchange and technical assistance and capacity-building on best practices, technical guidelines, monitoring and public awareness

Article 10; Decision VI/12

Article 13 Parties have to co-operate with each other in order to improve and achieve environmentally sound management of hazardous wastes and other wastes (Article 10). To this end, they have to: - make available information to promote the environmentally sound management of hazardous wastes and other wastes, including harmonization of technical standards and practices,

- cooperate in monitoring the effects of the management of hazardous wastes on human health and the environment, in the development and implementation of new environmentally sound low-waste technologies and the improvement of existing technologies, in the transfer of technology and management systems related to the environmentally sound management of hazardous wastes and other wastes and in developing the technical capacity among Parties; and in the development of appropriate technical guidelines and/or codes of practice..

Decision (VI/12) of the Conference of the Parties in 2002, set up a Mechanism for Promoting Implementation and Compliance. The Committee is to assist Parties to comply with the Convention’s obligations.

Parties undertake to provide support, directly or through the Organization and other international bodies, to Parties which request technical assistance: to train personnel, to ensure the availability of relevant technology, equipment and facilities, to initiate joint research and development programmes; and to undertake other actions aimed at the effective implementation of the Convention and its technical guidelines. Parties have to co-operate actively in the transfer of management systems and technology in respect of the safe and environmentally sound recycling of ships (Article 13).

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2. Japan

Comparison of equivalent level of control and enforcement


Scope and applicabilityWhat? Coverage of

ships / wastesArt.2.1"Wastes" are substances or objects which are disposed of or are intended to be disposed of or are required tobe disposed of by the provisions of national law;

Art.3.1Unless expressly provided otherwise in this Convention, this Convention shall apply to:.1 ships entitled to fly the flag of a Party or operating under its authority; .2 Ship Recycling Facilities operating under the jurisdiction of a Party.

Art.3.2This Convention shall not apply to any warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only on government non-commercial service. However, each Party shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable.

As regards the ships which are not covered by HKC, when they are broken down into sections or parts, such materials can be covered by BC.


Art.1.1The following wastes that are subject to transboundary movement shall be "hazardous wastes" for the purposesof this Convention:(a) Wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristicscontained in Annex III; and(b) Wastes that are not covered under paragraph (a) but are defined as, or are considered to be, hazardous

Art.2.9“Hazardous Material” means any material or substance which is liable to create hazards to human health and/or the environment.

Reg.4 In accordance with the requirements specified in Appendix 1 to this Convention each Party:

.1 shall prohibit and/or restrict the installation or use of Hazardous

In 2004, an instrument titled “IMO Guidelines on ship recycling” was adopted in IMO (Resolution A.962(23)).In the guidelines, a key list “Appendix B, Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, 2002”, which was provided by UNEP and identifies the potentially Hazardous Materials on board, was introduced. Thus, Resolution A.962(23) takes into account the UNEP guidelines, which was developed in accordance with BC.

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wastes by the domestic legislation of the Party of export, import or transit.

Materials listed in Appendix 1 on ships entitled to fly its flag or operating under its authority; and

.2 shall prohibit and/or restrict the installation or use of such materials on ships, whilst in its ports, shipyards, ship repair yards, or offshore terminals,

and shall take effective measures to ensure that such ships comply with those requirements.

Reg.5.2Existing ships shall comply as far as practicable with paragraph 1 not later than 5 years after the entry into force of this Convention, or before going for recycling if this is earlier, taking into account the guidelines developed by the Organization and the Organization’s Harmonized System of Survey and Certification. The Hazardous Materials listed in Appendix 1, at least, shall be identified when the Inventory is developed. For existing ships a plan shall be prepared describing the visual/sampling check by which the Inventory of Hazardous Materials is developed, taking into account the guidelines developed by the Organization.

Appendix 2 of the HKC provides a minimum list of substanceswhich should be addressed in the Inventory of HazardousMaterials for new ships and installations.

Therefore, noting that Resolution A.962(23) is mentioned (recalled) in the preamble of HKC, it is safe to say that the coverage and identification of HMs in BC is considered and incorporated in HKC.In addition, HKC is considered to be more suitable for ships in terms of the coverage and identification of HMs, as it is ship-specific instrument


Art.4.2(a)-(d)(a) Ensure that the generation of hazardous wastes and other wastes within it is

Art.41 Each Party shall require that ships entitled to fly its flag or operating under its

While BC does not have a series of detailed requirements through the lifecycle of the wastes, HKC has relevant and detailed

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reduced to a minimum, taking into account social, technological and economic aspects;

(b) Ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that shall be located, to the extent possible, within it, whatever the place of their disposal;

(c) Ensure that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment;

(d) Ensure that the transboundary movement of hazardous wastes 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.4.7Furthermore, each Party shall:(a) Prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized or allowed to perform such types of operations;

(b) Require that hazardous wastes and other wastes that are to be the subject of a transboundary movement be packaged,

authority comply with the requirements set forth in this Convention and shall take effective measures to ensure such compliance.

2 Each Party shall require that Ship Recycling Facilities under its jurisdiction comply with the requirements set forth in this Convention and shall take effective measures to ensure such compliance.

Art.5Each Party shall ensure that ships flying its flag or operating under its authority and subject to survey and certification are surveyed and certified in accordance with the regulations in the Annex.

Reg.8 General requirements(The requirements for the ships which are to be recycled)

Reg.9 Ship Recycling Plan(The requirements for developing SRPs)

Reg.10 Surveys

Reg.20.3(The requirements for safe and environmentally sound management of HMs in authorized SRFs)

requirements through its whole lifecycle, e.g.:- The ship has to maintain and renew the

information in the Inventory of Hazardous Materials from its origin and during its operation term.

- Recycling of the ship have to be conducted by the Ship Recycling Facility which was authorized by the Competent Authority of the recycling state and made adequate plan for recycling the object ship (SRP).

Noting this feature, regarding management of life cycle of ship, the level of control and enforcement under HKC is considered to be the same or more than that of BC.

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labelled, and transported in conformity with generally accepted and recognized international rules and standards in the field of packaging, labelling, and transport, and that due account is taken of relevant internationally recognized practices;

(c) Require that hazardous wastes and other wastes be accompanied by a movement document from the point at which a transboundary movement commences to the point of disposal.


Art.4.5A Party shall not permit hazardous wastes or other wastes to be exported to a non-Party or to be imported froma non-Party.

Art.11 Bilateral, Multilateral and Regional Agreements

Art. 3.4With respect to ships entitled to fly the flag of non-Parties to this Convention, Parties shall apply the requirements of this Convention as may be necessary to ensure that no more favourable treatment is given to such ships.

Under HKC, a Party cannot accept the ship entitled to fly the flag of non-Parties unless it satisfies the requirements of HKC, while it is prohibited for Parties to export wastes to non-Parties under BC.This means that it is basically prohibited to farourably treat the wastes/ships of non-Parties under both conventions.

Where? Jurisdiction Art.4.4Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention.

Art.10 Violations(The requirements for sanctions which should be implemented in response to relevant violations)

HKC has stipulations regarding violations and sanctions, as well as BC.Thus, HKC establishes the same level of enforcement and control in terms of jurisdiction.

ControlAuthorizations and certifications

Art.4.7Prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized or allowed to perform such types of operations

Art.5Each Party shall ensure that ships flying its flag or operating under its authority and subject to survey and certification are surveyed and certified in accordance with the regulations in the Annex.

Art.6Each Party shall ensure that Ship Recycling Facilities that operate under its jurisdiction

Both of the Conventions require authorization of the persons / facilities.In addition, in HKC, there is a requirement for the survey and issuance of International Certificate on Inventory of Hazardous materials.Further, HKC requires also that the Ship specific recycling plan (SRP) be developed by the Ship Recycling Facility and certified by the Flag state.

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and that recycle ships to which this Convention applies, or ships treated similarly pursuant to Article 3.4 of this Convention, are authorized in accordance with the regulations in the Annex.

Relevant regulations which are set out in the annex to HKC are:Reg.8 General requirements on

preparation for Ship RecyclingReg.15 Controls on SRFsReg.16 Authorizations of SRFReg.17 General requirements for SRFsReg.19-23 (The requirements on the operations of SRFs )

Therefore, regarding “authorizations and certifications”, HKC establishes enough level of control and enforcement, compared with BC.


Art.4.4Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention.

Art.81 A ship to which this Convention applies may, in any port or offshore terminal of another Party, be subject to inspection by officers duly authorized by that Party for the purpose of determining whether the ship is in compliance with this Convention. Except as provided in paragraph 2, any such inspection is limited to verifying that there is on board either an International Certificate on Inventory of Hazardous Materials or an International Ready for Recycling Certificate, which, if valid, shall be accepted.

2 Where a ship does not carry a valid certificate or there are clear grounds for believing that:

.1 the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate, and/or Part I of the Inventory of Hazardous Materials;

As regards surveying, auditing and inspection system of HKC, it is based on the broader context of the IMO system, as analyzed in the left column.Noting above, the system of surveying, auditing and inspection under HKC should be considered to provide greater level of control and enforcement than that of BC.

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or

.2 there is no procedure implemented on board the ship for the maintenance of Part I of the Inventory of Hazardous Materials;

a detailed inspection may be carried out taking into account guidelines developed by the Organization.

Reg.15.3Each Party shall establish a mechanism

for ensuring that Ship Recycling Facilities comply with the requirements of this chapter including the establishment and effective use of inspection, monitoring and enforcement provisions, including powers of entry and sampling. Such a mechanism may include an audit scheme to be carried out by the Competent Authority(ies) or an organization recognized by the Party, taking into account guidelines developed by the Organization, and the results of these audits should be communicated to the Organization.

Reg.16(The requirements for authorization of SRFs)

Designation of competent authorities / focal points

Art.5To facilitate the implementation of this Convention, the Parties shall:

1. Designate or establish one or more competent authorities and one focal point. One competent authority shall be designated to receive the notification in case of a State of transit.

Reg.15.4Each Party shall designate one or more Competent Authorities and the single contact point to be used by the Organization, Parties to this Convention and other interested entities, for matters related to Ship Recycling Facilities operating within the jurisdiction of that Party.

Both of the Conventions require designation of the CA and the focal point.In this regard, there is no significant difference between them.

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2. Inform the Secretariat, within three months of the date of the entry into force of this Convention for them, which agencies they have designated as their focal point and their competent authorities.

3. Inform the Secretariat, within one month of the date of decision, of any changes regarding the designation made by them under paragraph 2 above.


A series of Technical Guidelines were adopted by the Parties to the BC.

Reg.3Parties shall take measures to implement the requirements of the regulations of this Annex, taking into account relevant and applicable standards, recommendations and guidance developed by the International Labour Organization and the relevant and applicable technical standards, recommendations and guidance developed under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

Reg.19 and 22 refer the relevant guidelines which are to be developed by IMO.

<Mandatory standards>While BC provides relevant standards on the basis of Environmentally Sound Management (ESM) of wastes, HKC provides the requirements which relates to, not only ESM, but also Human safety and health.<Non-mandatory standards>As well as the framework of BC, in the framework of HKC, relevant guidelines, such as the Inventory Guidelines, Facility Guidelines, SRP Guidelines and so on, are being developed. (These guidelines will be non-mandatory instruments.)

Noting above, HKC is regarded to provide sufficiently wide and well streamlined standards both on mandatory and non-mandatory basis.

Ability to prohibit import / export

Art.4.1(a) Parties exercising their right to prohibit the import of hazardous wastes or other wastes for disposal shall inform the other Parties of their decision pursuant to Article 13.

(b) Parties shall prohibit or shall not permit the export of hazardous wastes and other wastes to the Parties which have prohibited the import of such wastes,

The concepts of “import” and “export” are not directly used in the HKC, however, the relevant requirements which correspond to such concepts are set out in as followings.

Art.9 Detection of violations(The requirements for conditions in which the ship can be excluded by Parties, etc.)

In addition, a number of conditions are

While the Parties under BC are empowered by Art.4 to unilaterally establish import prohibitions via domestic legislation, HKC does not introduce the concept of “import and export” directly.However, HKC allows Parties to dismiss the ships that are in breach of the convention’s requirements from their ports. This concept reflects the feature of ships better than that of BC, as mentioned in the column regarding

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when notified pursuant to subparagraph (a) above.

(c) Parties shall prohibit or shall not permit the export of hazardous wastes and other wastes if the State of import does not consent in

required before the ship is accepted by Parties, e.g..- The authorization of the SRF (Reg.16)- The approval of the SRP (Reg.9);- The final survey for issuance of IRRC

(Reg.10.4)

“management of life cycle of ship”.

Thus, there exists only a difference of method regarding the ability of prohibition, but there’s no significant defect in system of HKC.

Traceability and transparency of hazardous materials until final treatment / ultimate disposal

Art.4.2.(f)(Each Party shall take the appropriate measures to) require that information about a proposed transboundary movement of hazardous wastes and other wastes be provided to the States concerned, according to Annex V A, to state clearly the effects of the proposed movement on human health and the environment;

Art.4.7Furthermore, each Party shall:(a) Prohibit all persons under its national jurisdiction from transporting or disposing of hazardous wastes or other wastes unless such persons are authorized or allowed to perform such types of operations;

(b) Require that hazardous wastes and other wastes that are to be the subject of a transboundary movement be packaged, labelled, and transported in conformity with generally accepted and recognized international rules and standards in the field of packaging, labelling, and transport, and that due account is taken of relevant internationally recognized practices;

(c) Require that hazardous wastes and other wastes be accompanied by a movement document from the point at which a transboundary movement commences to the point of disposal.

In HKC, traceability and transparency of HMs are ensured by requirements for:- IHM (development, maintenance, and

survey) (Reg. 5);- SRP (development and approval)

(Reg.9);- Management of HMs in SRFs

(Reg.20.3); and- Reporting upon completion (Reg.25)

HKC covers from the origin of the Hazardous Materials used in ships to the recycling stage of them, while BC covers transboundary movements of wastes from the exporter to the disposal facility in the import state.

In both Conventions, there is no significant defect which weakens the control and enforcement in this regard.

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Art.6.9The Parties shall require that each person who takes charge of a transboundary movement of hazardous wastesor other wastes sign the movement document either upon delivery or receipt of the wastes in question. They shall alsorequire that the disposer inform both the exporter and the competent authority of the State of export of receipt by thedisposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import.


Art.6.1The State of export shall notify, or shall require the generator or exporter to notify, in writing, through the channel of the competent authority of the State of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes. Such notification shall contain the declarations and information specified in Annex V A, written in a language acceptable to the State of import. Only one notification needs to be sent to each State concerned.

Art.6.3The State of export shall not allow the generator or exporter to commence the transboundary movement until it has received written confirmation that:(a) The notifier has received the written

Reg.241 A shipowner shall notify the Administration in due time and in writing of the intention to recycle a ship in order to enable the Administration to prepare for the survey and certification required by this Convention.

2 A Ship Recycling Facility when preparing to receive a ship for recycling shall notify in due time and in writing its Competent Authority(ies) of the intent. The notification shall include at least the following ship details:

.1 name of the State whose flag the ship is entitled to fly;

.2 date on which the ship was registered with that State;

.3 ship’s identification number

Under both convention, the waste/ship is not allowed to reach to the Ship Recycling Facility and be recycled, without prior notification, and consequently, the acceptance by the Competent Authority (in the State of import under BC). In this sense, the two conventions are considered to have the same level of control and enforcement in the viewpoint of prior notification and prior consent.

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consent of the State of import; and(b) The notifier has received from the State of import confirmation of the existence of a contract between the exporter and the disposer specifying environmentally sound management of the wastes in question.

Art.6.4Each State of transit which is a Party shall promptly acknowledge to the notifier receipt of the notification. It may subsequently respond to the notifier in writing, within 60 days, consenting to the movement with or without conditions, denying permission for the movement, or requesting additional information. The State of export shall not allow the transboundary movement to commence until it has received the written consent of the State of transit. However, if at any time a Party decides not to require prior written consent, either generally or under specific conditions, for transit transboundary movements of hazardous wastes or other wastes, or modifies its requirements in this respect, it shall forthwith inform the other Parties of its decision pursuant to Article 13. In this latter case, if no response is received by the State of export within 60 days of the receipt of a given notification by the State of transit, the State of export may allow the export to proceed through the State of transit.

(IMO number); .4 hull number on new-building

delivery; .5 name and type of the ship; .6 port at which the ship is

registered; .7 name and address of the

Shipowner as well as the IMO registered owner identification number;

.8 name and address of the company as well as the IMO company identification number;

.9 name of all classification society(ies) with which the ship is

classed; .10 ship’s main particulars (Length

overall (LOA), Breadth (Moulded), Depth (Moulded), Lightweight, Gross and Net tonnage, and engine type and rating);

.11 Inventory of Hazardous Materials; and

.12 draft ship recycling plan for approval pursuant to regulation 9.

3 When the ship destined to be recycled has acquired the International Ready for Recycling Certificate, the Ship Recycling Facility shall report to its Competent Authority(ies) the planned start of the Ship Recycling. The report shall be in accordance with the reporting format in Appendix 6, and shall at least include a copy of the International Ready for Recycling Certificate. Recycling of the ship shall not start prior to the submission of the report.

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Reg.25When the partial or complete recycling of a ship is completed in accordance with the requirements of this Convention, a Statement of Completion shall be issued by the Ship Recycling Facility and reported to its Competent Authority(ies). This report must be compiled as shown in appendix 7. The Competent Authority(ies) shall send a copy of the Statement to the Administration which issued the International Ready for Recycling Certificate for the ship. The Statement shall be issued within 14 days of the date of partial or completed Ship Recycling in accordance with the Ship Recycling Plan and shall include a report on incidents and accidents damaging human health and/or the environment, if any.

Certificaton of disposal / statement of completion of ship recycling

Art.6.9The Parties shall require that each person who takes charge of a transboundary movement of hazardous wastes or other wastes sign the movement document either upon delivery or receipt of the wastes in question. They shall also require that the disposer inform both the exporter and the competent authority of the State of export of receipt by the disposer of the wastes in question and, in due course, of the completion of disposal as specified in the notification. If no such information is received within the State of export, the competent authority of the State of export or the exporter shall so notify the State of import.

Reg.25When the partial or complete recycling of a ship is completed in accordance with the requirements of this Convention, a Statement of Completion shall be issued by the Ship Recycling Facility and reported to its Competent Authority(ies). This report must be compiled as shown in appendix 7. The Competent Authority(ies) shall send a copy of the Statement to the Administration which issued the International Ready for Recycling Certificate for the ship. The Statement shall be issued within 14 days of the date of partial or completed Ship Recycling in accordance with the Ship Recycling Plan and shall include a report on incidents and accidents damaging human health and/or the environment, if any.

It is required to report the completion of ship recycling or disposal to the Competent Authority under both Conventions.There is no significant difference between two Conventions regarding this point.

EnforcementIllegal Art.4 HKC sets out relevant requirements for Both BC and HKC require the Party to take

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shipments, violations and sanctioning, including criminalization, of illegal traffic

3. The Parties consider that illegal traffic in hazardous wastes or other wastes is criminal.

4. Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention.

Art.9 Illegal traffic(The requirements for identification of illegal traffics and actions which should be taken in response to them.)

illegal traffics of ships in following articles:- Art.9 “Detection of violations” (The

requirements for developing systems for detection of violations and action to be taken in response to them);

- Art.10 “Violations” (The requirements for sanctions in case the corresponding violation is detected); and

- Art.12 “Communication of information” (The requirements for reporting violations to IMO)

legal, administrative and other measures to implement and enforce provisions of them.Noting above, two conventions are considered to have same level of control and enforcement on illegal shipments, violations and sanctioning.

Dispute settlement

Art.201. In case of a dispute between Parties as to the interpretation or application of, or compliance with, this Convention or any protocol thereto, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.

2. If the Parties concerned cannot settle their dispute through the means mentioned in the preceding paragraph, the dispute, if the Parties to the dispute agree, shall be submitted to the International Court of Justice or to arbitration under the conditions set out in Annex VI on Arbitration. However, failure to reach common agreement on submission of the dispute to the International Court of Justice or to arbitration shall not absolve the Parties from the responsibility of continuing to seek to resolve it by the means referred to in paragraph 1.

3. When ratifying, accepting, approving, formally confirming or acceding to this Convention, or at any time thereafter, a

Art.14Parties shall settle any dispute between them concerning the interpretation or application of this Convention by negotiation or any other peaceful means agreed upon by them, which may include enquiry, mediation, conciliation, arbitration, judicial settlement, or resort to regional agencies or arrangements.

There is no significant difference between two Conventions.

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State or political and/or economic integration organization may declare that it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

(a) submission of the dispute to the International Court of Justice; and/or

(b) arbitration in accordance with the procedures set out in Annex VI. Such declaration shall be notified in writing to the Secretariat which shall communicate it to the Parties.

Duty to re-import

Art.8When a transboundary movement of hazardous wastes or other wastes to which the consent of the States concerned has been given, subject to the provisions of this Convention, cannot be completed in accordance with the terms of the contract, the State of export shall ensure that the wastes in question are taken back into the State of export, by the exporter, if alternative arrangements cannot be made for their disposal in an environmentally sound manner, within 90 days from the time that the importing State informed the State of export and the Secretariat, or such other period of time as the States concerned agree. To this end, the State of export and any Party of transit shall not oppose, hinder or prevent the return of those wastes to the State of export.

There are no stipulations which directly indicate “re-import” of ships, as HKC takes an approach other than import and export.

To begin with, it should be considered whether the concept of “re-import” is actually applicable for ships. That is to say, the necessity of “re-import clause” for ships should be discussed first.The obligation of “re-import” which is required under BC is imposed on the exporter. In the case of ships, the stakeholder who should be regarded as the “exporter” is the ship owner. However, the existence of FOC enables the ship owners to change the flag state of the ships easily. Therefore, for ships, it is quite difficult to identify the exact export state.Even if the difficulty of identifying exporter is cleared, it may be impossible or requires enormous cost to implement re-import of the ship, in case it has been already started dismantling of the hull when the necessity of re-import occurs.Although HKC does not have the requirement of re-import, it clearly identifies where the responsibility of the condition of the ship which is to be delivered to the SRF. Under HKC, such responsibility is on the Administration of the Flag state. Thus, in case the condition of the actual ship deviates from what is assumed before arrival, the problem can be adequately

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Criteria Basel Convention Hong Kong Convention Comments to facilitate a preliminary assessment of equivalent level of control and enforcementsolved under the scheme of dispute settlement, as it is clear who has what kind of responsibility of ship recycling.

Exchange of information by Parties / cooperation and coordinationAccess to and dissemination of information, e.g., administrative, enforcement, emergency matters

Art.31. Each Party shall, within six months of becoming a Party to this Convention, inform the Secretariat of the Convention of the wastes, other than those listed in Annexes I and II, considered or defined as hazardous under its national legislation and of any requirements concerning transboundary movement procedures applicable to such wastes.

2. Each Party shall subsequently inform the Secretariat of any significant changes to the information it has provided pursuant to paragraph 1.

3. The Secretariat shall forthwith inform all Parties of the information it has received pursuant to paragraphs 1 and 2.

4. Parties shall be responsible for making the information transmitted to them by the Secretariat under paragraph 3 available to their exporters.

Art.4.2(h)Co-operate in activities with other Parties and interested organizations, directly and through the Secretariat, including the dissemination of information on the transboundary movement of hazardous wastes and other wastes, in order to improve the environmentally sound management of such wastes and to achieve the prevention of illegal traffic.

Art.5To facilitate the implementation of this

Art.7For the Ship Recycling Facilities authorized by a Party, such Party shall provide to the Organization, if requested, and to those Parties which request it, relevant information, in regard to this Convention, on which its decision for authorization was based. The information shall be exchanged in a swift and timely manner.

Art.12Each Party shall report to the Organization and the Organization shall disseminate, as appropriate, the following information:

.1 a list of Ship Recycling Facilities authorized in accordance with this Convention and operating under the jurisdiction of that Party;

.2 contact details for the Competent Authority(ies), including a single contact point, for that Party;

.3 a list of the recognized organizations and nominated surveyors which are authorized to act on behalf of that Party in the administration of matters relating to the control of Ship Recycling in accordance with this Convention, and the specific responsibilities and conditions of the authority delegated to the recognized organizations or nominated surveyors;

.4 an annual list of ships flying the flag of that Party to which an International Ready for Recycling

In both Conventions, there is no significant defect which weakens the control and enforcement in terms of Access to and dissemination of information.

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Convention, the Parties shall:1. Designate or establish one or more competent authorities and one focal point. One competent authority shall be designated to receive the notification in case of a State of transit.

2. Inform the Secretariat, within three months of the date of the entry into force of this Convention for them, which agencies they have designated as their focal point and their competent authorities.

3. Inform the Secretariat, within one month of the date of decision, of any changes regarding the designation made by them under paragraph 2 above.

Art.10.2(a)Upon request, make available information, whether on a bilateral or multilateral basis, with a view to promoting the environmentally sound management of hazardous wastes and other wastes, including harmonization of technical standards and practices for the adequate management of hazardous wastes and other wastes;

Art.13(The requirements for transmission of information on accidents occurred in the Party, on the prohibition or limitation of the import of the waste, and so on)

Certificate has been issued, including the name of the Recycling Company and location of the Ship Recycling Facility as shown on the certificate;

.5 an annual list of ships recycled within the jurisdiction of that Party;

.6 information concerning violations of this Convention; and

.7 actions taken towards ships and Ship Recycling Facilities under the jurisdiction of that Party.

Reg.23 (The requirements for reporting on incidents, accidents, occupational diseases and chronic effects)Reg.25(The requirement for reporting upon completion)

Reporting obligations

Art.13(The requirements for transmission of information on accidents occurred in the Party, on the prohibition or limitation of the import of the waste, and so on)

Same as the column above. Both Conventions requires their own reports clause which are necessary to implement them adequately, and there is no serious defect in both of them.

Transmission of Art.4.1 Reg.9.4 While the Parties under BC are empowered by

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information regarding import / export restrictions

(a) Parties exercising their right to prohibit the import of hazardous wastes or other wastes for disposal shall inform the other Parties of their decision pursuant to Article 13.

(b) Parties shall prohibit or shall not permit the export of hazardous wastes and other wastes to the Parties which have prohibited the import of such wastes, when notified pursuant to subparagraph (a) above.

(c) Parties shall prohibit or shall not permit the export of hazardous wastes and other wastes if the State of import does not consent in writing to the specific import, in the case where that State of import has not prohibited the import of such wastes.

.4 in accordance with the declaration deposited pursuant to Article 16.6, be either explicitly or tacitly approved by the Competent Authority authorizing the Ship Recycling Facility. The Competent Authority shall send written acknowledgement of receipt of the Ship Recycling Plan to the Ship Recycling Facility, Ship Owner and Administration within three (3) working days of its receipt in accordance with regulation 24. Thereafter: .1 where a Party requires explicit approval

of the Ship Recycling Plan, the Competent Authority shall send written notification of its decision to approve or deny the Ship Recycling Plan to the Ship Recycling Facility, Ship Owner and Administration; and

.2 where a Party requires tacit approval of the Ship Recycling Plan, the acknowledgment of receipt shall specify the end date of a 14-day review period. The Competent Authority shall notify any written objection to the Ship Recycling Plan to the Ship Recycling Facility, Ship Owner and Administration within this 14-day review period. Where no such written objection has been notified, the Ship Recycling Plan shall be deemed to be approved.

Reg.24.3When the ship destined to be recycled has acquired the International Ready for Recycling Certificate, the Ship Recycling Facility shall report to its Competent

Art.4 to unilaterally establish import prohibitions via domestic legislation, HKC does not introduce the concept of “import and export” directly.However, under HKC, some relevant requirements correspond to the system for transmission of information regarding import / export restrictions under BC, which are:- The approval of SRPs by CAs; and- The notification of the start of the ship

recycling which is triggered by the issuance of the International Ready for Recycling Certificate.

Under HKC, unless the above two requirements are satisfied, the ship cannot enter into the SRF.

Therefore, the scheme for the transmission of information regarding import / export restrictions makes no significant differences between the levels of control and enforcement of both Conventions.

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Authority(ies) the planned start of the Ship Recycling. The report shall be in accordance with the reporting format in Appendix 6, and shall at least include a copy of the International Ready for Recycling Certificate. Recycling of the ship shall not start prior to the submission of the report.

Among Parties to advance ESM, through information exchange and technical assistance and capacity – building on best practices, technical guidelines, monitoring and public awareness

Art.101. The Parties shall co-operate with each other in order to improve and achieve environmentally sound management of hazardous wastes and other wastes.

2. To this end, the Parties shall:(a) Upon request, make available information, whether on a bilateral or multilateral basis, with a view to promoting the environmentally sound management of hazardous wastes and other wastes, including harmonization of technical standards and practices for the adequate management of hazardous wastes and other wastes;

(b) Co-operate in monitoring the effects of the management of hazardous wastes on human health and the environment;

(c) Co-operate, subject to their national laws, regulations and policies, in the development and implementation of new environmentally sound low-waste technologies and the improvement of existing technologies with a view to eliminating, as far as practicable, the generation of hazardous wastes and other wastes and achieving more effective and efficient methods of ensuring their management in an environmentally sound manner, including the study of the economic, social and environmental effects of the

Art.131 Parties undertake, directly or through the Organization and other international bodies, as appropriate, in respect of the safe and environmentally sound recycling of ships, to provide support for those Parties which request technical assistance:

.1 to train personnel;

.2 to ensure the availability of relevant technology, equipment and facilities;

.3 to initiate joint research and development programmes; and

.4 to undertake other actions aimed at the effective implementation of this Convention and of guidelines developed by the Organization related thereto.

2 Parties undertake to co-operate actively, subject to their national laws, regulations and policies, in the transfer of management systems and technology in respect of the safe and environmentally sound recycling of ships.

As both Conventions permit the supports through information exchange and technical assistance and capacity building, the two Conventions are considered to have the same level of control and enforcement on this point.

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adoption of such new or improved technologies;

(d) Co-operate actively, subject to their national laws, regulations and policies, in the transfer of technology and management systems related to the environmentally sound management of hazardous wastes and other wastes. They shall also co-operate in developing the technical capacity among Parties, especially those which may need and request technical assistance in this field;

(e) Co-operate in developing appropriate technical guidelines and/or codes of practice.

3. The Parties shall employ appropriate means to co-operate in order to assist developing countries in the implementation of subparagraphs a, b, c and d of paragraph 2 of Article 4.

4. Taking into account the needs of developing countries, co-operation between Parties and the competent international organizations is encouraged to promote, inter alia, public awareness, the development of sound management of hazardous wastes and other wastes and the adoption of new low-waste technologies.

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3. United States of America

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4. The Center for International Environmental Law

SHIPBREAKING AND THE BASEL CONVENTION: ANALYSIS OF THE LEVEL OF CONTROL ESTABLISHED UNDER THE HONG KONG CONVENTION

April 2011

1350 Connecticut Ave. NW, Suite 1100, Washington, DC 20036. • 15 Rue des Savoises, 1205 Geneva, Switzerland.

This legal analysis has been 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 [email protected].

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Table of Contents

Table of Contents................................................................................................................... 80

Executive Summary................................................................................................................82

List of Acronyms.....................................................................................................................85

1. Introduction........................................................................................................................86

2. Background to Shipbreaking under the Basel Convention and the Hong Kong Convention............................................................................................................................................... 87

2.1 Shipbreaking, Health & the Environment.....................................................................87

2.2 The Basel Convention & Shipbreaking..........................................................................90

2.2.1 Fundamentals of the Basel Convention..................................................................90

2.2.2. Shipbreaking under the Basel Convention............................................................93

2.3. Domestic Litigation applying Basel-implementing statutes.........................................95

2.4 Limitations of Basel as applied to Ship Recycling..........................................................96

2.4.1 Difficulties in determining when a Ship is a Waste.................................................96

2.4.2 Difficulties in determining the Export State...........................................................97

2.5. The IMO Hong Kong Convention..................................................................................98

2.5.1 Negotiations...........................................................................................................99

2.5.2. Key elements of Hong Kong Convention.............................................................100

2.6. Process & State of Play..............................................................................................104

2.7 Conclusion...................................................................................................................105

3. Equivalence and the Interpretation of Article 11 of Basel................................................106

3.1. Literal Interpretation..................................................................................................106

3.2. Teleological Interpretation.........................................................................................108

3.3. Travaux Préparatoires................................................................................................109

3.4. COP Decisions............................................................................................................110

3.5. Practice of States with respect to Art 11 Agreements...............................................113

3.6 Conclusion..................................................................................................................115

4. Criteria to determine equivalence under the Basel Convention.......................................115

4.1. Status of the Debate over Equivalence Criteria.........................................................115

4.2. Gaps in OEWG criteria................................................................................................117

4.3 Conclusion..................................................................................................................119

5. Evaluation of equivalence of the Hong Kong Convention.................................................119

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5.1 Criteria Cluster 1: Scope and Applicability.................................................................119

5.1.1 “Coverage of wastes and identification of hazardous materials”........................119

5.1.2 “Management of life cycle of the ship”...............................................................120

5.1.3 “Relationship between Parties and non-Parties”................................................121

5.1.4 “Jurisdiction of the Convention”.........................................................................121

5.2 Criteria Cluster 2: Control..........................................................................................122

5.2.1 Authorizations, Surveys and Certifications...........................................................122

5.2.2 “Designation of competent authorities / focal points”........................................124

5.2.3 Mandatory requirements....................................................................................124

5.2.4 “Ability to prohibit import or export”..................................................................125

5.2.5 “Traceability and transparency of hazardous materials until final treatment / ultimate disposal”.........................................................................................................125

5.2.6 “Prior notification and prior consent”.................................................................125

5.2.7 “Certification of disposal / Statement of Completion of ship recycling”.............127

5.2.8 Other control mechanisms: minimization of transboundary movement............127

5.3 Criteria Cluster 3: Enforcement..................................................................................127

5.3.1 “Illegal shipments, violations, and sanctioning, including criminalization, of illegal traffic”........................................................................................................................... 127

5.3.2 “Dispute settlement”............................................................................................128

5.3.3 “Duty to re-import”..............................................................................................128

5.4 Criteria Cluster 4: Exchange of information by Parties, Cooperation and Coordination.......................................................................................................................................... 128

5.4.1 “Access to and dissemination of information”....................................................128

5.4.2 “Reporting obligations”.......................................................................................129

5.4.3 “Transmission of information regarding import / exportrestrictions”................129

5.4.4 “Among Parties to advance ESM through information exchange and technical assistance and capacity building on best practices, technical guidelines, monitoring and public awareness.”........................................................................................................129

5.5 Consideration of the interests of Developing countries.............................................130

6. Conclusion........................................................................................................................ 131

ANNEX 1: Proposed Criteria for Equivalence and Evaluation of Equivalence.......................133

Bibliography......................................................................................................................... 146

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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.

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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.

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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.

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List of Acronyms

BAN Basel Action Network

CA Competent Authorities

COP Conference of the Parties

CPP Contingency Preparedness Plan

EIA Environmental Impact Assessment

EMP Environmental Management Plan

EMS Environmental Management System

ESM Environmentally Sound Management

FOC Flag of Convenience

FIDH International Federation for Human Rights

GT Gross Tonnage

ICIHM International Certificate on Inventory of Hazardous Materials

IHM Inventory of Hazardous Materials (also known as Green Passport)

ILO International Labour Organization

IMO International Maritime Organization

IRRC International Ready for Recycling Certificate

LOSC United Nations Convention on the Law of the Sea

MEPC Marine Environment Protection Committee

MP Monitoring Plan

NGOs Nongovernmental Organizations

OECD Organization for Economic Cooperation and Development

OEWG Open-ended Working Group to the Basel Convention

PIC Prior Informed Consent

SRP Ship Recycling Plan

SRF Ship Recycling Facilities

SRFP Ship Recycling Facilities Plan

UNEP United Nations Environment Programme

WMP Waste Management Plan

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1. INTRODUCTION

The increasing rate at which end-of-life ships are now transferred to developing countries for shipbreaking and the conditions under which such ships are dismantled have raised concerns among States as to how to ensure such activity is performed in an environmentally sound and safe manner.10 By Decision VII/26 (October 2004) on Environmentally Sound Management of Ship Dismantling, the Conference of the Parties (COP) to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989) (hereinafter “Basel Convention”)11 invited the International Maritime Organization (IMO) to continue its work on the establishment of “mandatory requirements … that ensure an equivalent level of control as established under the Basel Convention and … the environmentally sound management of ship dismantling.”12 The IMO agreed in December 2005, through an Assembly resolution, to develop a “new legally binding instrument on ship recycling.”13 The resulting Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 (hereinafter “Hong Kong Convention”), was adopted by States in May 2009. It has not yet entered into force.14

Since June of 2008, following Decision IX/30 (June 2008) on the Dismantling of Ships, the Parties to the Basel Convention have commenced work on the determination of whether the Hong Kong Convention provides an equivalent level of control and enforcement as that provided by the Basel Convention.15 This is critical since “a ship may become a waste as defined in article 2 of the Basel Convention” while remaining “a ship under other international rules,” 16 and as such be subject to Basel’s regulatory framework. The Basel COP have also noted “that the duplication of regulatory instruments that have the same objective should be avoided.” 17

Parties and relevant stakeholders have been invited to provide the Basel Secretariat with a preliminary assessment of equivalence based on the criteria developed by the Open-ended

10 Dec. V/28 on the Dismantling of ships, U.N. Doc. UNEP/CHW.5/29 (December 1999), Dec. VI/24 on the Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, U.N. Doc. UNEP/CHW.6/40 (December 2002), Dec. VII/26 on Environmentally Sound Management of Ship Dismantling, U.N. Doc. UNEP/CHW.7/33 (October 2004) (hereinafter “Dec. VII/26”), Dec. VIII/11 on Environmentally Sound Management of Ship Dismantling, U.N. Doc. UNEP/CHW.8/16 (December 2006) (hereinafter “Dec. VIII/11”), Dec. IX/30 on Dismantling of Ships, U.N. Doc. UNEP/CHW.9/39 (June 2008) (hereinafter “Dec. IX/30”).11 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, March 22, 1989, 1673 U.N.T.S. 57 [hereinafter “Basel Convention”].12 Dec. VII/26, supra note 1.13 IMO Assemb. Res. A.981(24), U.N. Doc. A 24/Res.981 (December 2005).14 The Hong Kong Convention will enter into force 24 months after the date on which the following conditions are met: “1. Not less than 15 states have either signed it without reservation as to ratification, acceptance or approval, or have deposited the requisite instrument of ratification, acceptance, approval or accession in accordance with Article 16; 2. The combined merchant fleets of the States mentioned in paragraph 1.1. constitute not less than 40 percent of the gross tonnage of the world’s merchant shipping; and 3. The combined maximum annual ship recycling volume of the States mentioned in paragraph 1.1 during the preceding 10 years constitutes not less than 3 percent of the gross tonnage of the combined merchant shipping of the same States.” Art. 17.1. As of January 31 2011, the following countries have signed the Convention: France, Italy, Netherlands, Saint Kitts and Nevis, and Turkey.15 Dec. IX/30, supra note 1 (requesting the Open-ended Working Group “to carry out a preliminary assessment on whether the ship recycling Convention establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety,” and inviting “Parties to that end, to provide comments on appropriate criteria to be used to the Secretariat.”).16 Dec. VII/26, supra note 1.17 Dec. IX/30, supra note 1.

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Working Group of the Basel Convention in 2010.18 CIEL offers this analysis of equivalence in order to inform this process.

This legal analysis of equivalence tackles the question of whether the Hong Kong Convention provides an equivalent level of control as that provided by the Basel Convention. It first examines the shipbreaking industry, the application of the Basel Convention to ships and shipbreaking, and the structural elements of the Hong Kong Convention. The analysis then explores Article 11 of the Basel Convention, which allows Basel Parties to enter into agreements concerning transboundary movements of waste with other Parties and non-Parties, and establishes its proper interpretation under customary law rules of treaty interpretation. Next, the analysis identifies the criteria to be used to determine equivalence of the Hong Kong Convention with respect to ships and shipbreaking. Finally, the legal analysis answers the question of whether the Hong Kong Convention provides an equivalent level of control and enforcement as that required by the Basel Convention.

We conclude that although the Hong Kong Convention makes progress in some respects, such as the upkeep of a comprehensive inventory of hazardous materials during the life of a ship and the requirement for assurances of gas-free for hot work prior to recycling, it does not provide an equivalent level of control and enforcement as that established under the Basel Convention. The lack of equivalence results from the absence of several key elements of the Basel Convention that have been deemed essential in ensuring the Environmentally Sound Management (ESM) of waste and the minimization of transboundary movements of hazardous wastes and other wastes. Specifically, the Hong Kong Convention excludes certain ships and wastes that are hazardous in the shipbreaking process; lacks in concrete and mandatory requirements to ensure the environmentally sound management (ESM) of waste; fails to provide an equivalent strict control mechanism based on Prior Informed Consent; and provides insufficient consideration of the interests of developing countries.

In light of the shortcomings of the Hong Kong Convention to secure a level of protection equivalent to Basel, Basel Parties must remain reengaged on the shipbreaking problem in order to seek solutions that effectively address the health and environmental challenges of hazardous waste management in shipbreaking.

2. BACKGROUND TO SHIPBREAKING UNDER THE BASEL CONVENTION AND THE HONG KONG CONVENTION

2.1 Shipbreaking, Health & the Environment

Shipbreaking refers to the process by which end-of-life ships are dismantled so that their parts can be recycled back into the market. With the rising cost of ship recycling in developed countries, owing largely to stricter environmental regulations requiring costs to be internalized, major recycling industries have developed in certain developing countries where costs can be readily externalized. In 2009, nearly 25 million Gross Tons (GT) of ships were recycled, with 98% of the world’s tonnage recycled in 5 states: China, Bangladesh, India, Pakistan, and Turkey.19

18 Dec. OEWG-VII/12, Report of the Open-ended Working Group of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal on the work of its seventh session, U.N. Doc. UNEP/CHW/OEWG/7/21 (14 May 2010).19 IHS Fairplay, 2009 Lloyd’s Register of Ships. In 2009, Bangladesh recycled 6.61 million GT, China 7.74 million GT, India 7.56 million GT, Pakistan 2.10 million GT, and Turkey .56 million GT of Ships. Unlike the non-mechanized process used in South Asia, China and Turkey utilize an intermediate process with limited equipment and significant manpower. See Report of the Special Rapporteur, infra note 12, at para. 13.

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The world fleet of ships of 500 GTs and above is estimated around 50,000 ships, of which about 1,670 ships must be recycled annually.20 This number is projected to increase with the impending phase-out of single-hulled oil tankers, resulting in thousands of ships being dismantled over the next 10 years.21

The shipbreaking industry has contributed to the economies of recycling states, owing to the opportunity to reuse materials and employ tens of thousands of workers on the shipbreaking yards and hundreds of thousands in businesses related to shipbreaking activities.22 In addition, shipbreaking has offered several of these countries easy access to materials such as steel.23

However, shipbreaking has also raised international concern due to the extremely poor working conditions, leading to deaths and damage to human health, as well as the serious environmental pollution it has caused.24

The Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights has observed that end-of-life vessels sent for dismantling represent one of the major streams of hazardous waste transferred from industrialized countries to the developing world.25 Shipbreaking industries in India, Bangladesh and Pakistan have been found to be one of the major land-based sources of marine pollution in the South Asian Seas region.26 Toxic and dangerous substances that have been identified by the Special Rapporteur as present on end-of-life ships include Asbestos; Polychlorinated biphenyls (PCBs); Polyvinyl chloride (PVC); heavy metals such as lead, mercury, arsenic, and cadmium; Polycyclic aromatic hydrocarbons (PAHs); Organotins, particularly Tributyltin (TBT); oil and sludge; bilge water; and ballast water.27 For example, in 2000, a

20 Nikos Mikelis, The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, (PPT) presented at the UN Conference on Trade and Development: Multi-year Expert Meeting on Transport and Trade Facilitation (10 December 2010), available at http://www.unctad.org/Templates/Page.asp?intItemID=5754&lang=1&print=1 [hereinafter “Mikelis”]. 21 See Okechukwu Ibeanu, Report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, U.N. Doc. A/HRC/12/26, para. 12 (15 July 2009) (hereinafter “Report of the Special Rapporteur”).22 Report of the Special Rapporteur, supra note 12, at para. 10. It is estimated that shipbreaking yards directly employ approximately 30,000 workers worldwide, and 100,000 to 200,000 persons are engaged in different business related to shipbreaking activities. See also The World Bank, The Ship Breaking and Recycling Industry in Bangladesh and Pakistan (Report No. 58275-SAS) (December 2010) (hereinafter “World Bank Report”)23 See World Bank Report.24 Report of the Special Rapporteur, supra note 12, at para 11. See generally Greenpeace-FIDH (International Federation for Human Rights), End of Life Ships – The Human Cost of Breaking Ships (Dec. 2005), http://www.greenpeace.org/international/Global/international/planet-2/report/2006/4/end-of-life-the-human-cost-of.pdf [hereinafter “End of Life Ships”]; International Federation for Human Rights (FIDH), Where do the ‘floating dustbins’ end up? Labour Rights in Shipbreaking Yards in South Asia: The cases of Chittagong (Bangladesh) and Alang (India), 4 (Dec. 2002), www.fidh.org/IMG/pdf/bd1112a.pdf;, Aage Bjorn Anderson, International Labour Organization, Worker Safety in Ship-Breaking Industry, 32 (2001), available at: http://www.ilo.org/public/english/dialogue/sector/ papers/shpbreak/wp-167.pdf. 25 Report of the Special Rapporteur, supra note 12, at para. 19. 26 UNEP, Marine Litter: A Global Challenge, 2009, http://www.unep.org/pdf/unep_marine_litter-a_global_challenge.pdf.27 Report of the Special Rapporteur, supra note 12, at para. 19. Potential health and environmental impacts of these substances include the following: Asbestos: asbestosis, lung cancer, and mesothelioma; PCB: cancer, birth defects and reproductive and neurological damage; PVC: cancer, kidney damage, and interference with reproductive and neurological system; Heavy metals: cancer and damage to the nervous, digestive, reproductive and respiratory systems; PAHs: malignant tumors; Organotins: nerve toxin accumulation in the blood, liver, kidneys and brain, and highly toxic for aquatic systems; Oil and sludge:

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sampling of the soil in the coastal town of Alang, India, known as the largest scrapping site for ocean-going vessels, revealed that deadly asbestos fibers were present not only in the ship yards but also in workers’ living quarters.28 Because the workers often handle the asbestos with their bare hands, they risk asbestosis, lung cancer, and mesothelioma after prolonged exposure.29

The hazardous nature of the industry has largely been attributed to the recycling methods commonly used in the shipbreaking yards of developing countries as well as operations downstream of those yards. The ship dismantling itself can be performed at a pier, a dry dock, a dismantling slip or on a beach, using a highly mechanized process or little to no mechanization. Before the 1970s, most ship dismantling took place in Europe, using highly mechanized processes found at ship building operations. However, increases in cost resulting from more stringent regulation of hazardous waste caused much of this activity to move to developing countries, where cheaper labor and minimal regulation lowered the costs of disposal due to enhanced opportunity for cost externalization.30

Shipbreaking in South Asia, particularly in Bangladesh, India and Pakistan, is generally done through a largely non-mechanized platform and associated methodology called “beaching,” whereby ships are run up onto sandy beaches during high tide. Since 2004, more than 80% of end-of-life vessels of 500 GT and above have been dismantled in South Asia through the use of this process.31 The ship is dismantled largely by use of heavy manpower, without sufficient use of cranes for lifting, proper access by emergency equipment, or concrete covering or other containment, other than the hull of the ship, to prevent releases of pollutants.32 Because end-of-life ships brought to South Asia are rarely pre-cleaned prior to being dismantled, “cleaning” is in part accomplished by drilling holes into the beached ship and allowing the seawater to wash out the oil-contaminated tanks as well as other contaminated parts, thereby releasing toxic and hazardous substances found in end-of-life ships directly into the marine environment.33

Subsequent dismantling operations often allow other hazardous contaminants, such as those from toxic paints and materials using asbestos or PCBs, to be released into the environment, causing harm to workers. Downstream operations result in further negative impacts due to substandard residual management and lack of pollution controls in rolling mills and the processing of paint laden steel.

poisoning of marine organisms, birds, fish, plants and other forms of life; Bilge water: pollution of water and coastal areas; Ballast water: pollution of water and coastal areas, introduction of alien species and viruses and bacteria that may cause epidemics. See also Appendix B to the Basel Convention Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, UNEP/CHW.6/23 (8 August 2002).28 End of Life Ships, supra note 15, para 11.29 Report of the Special Rapporteur, supra note 12, at para. 19.30 Id., para. 9 and 13. See also Scrapping of Ocean-Going Ships: A Global Environmental, Health and Human Rights Problem, June 1999 - Speech by Thilo Bode, Executive Director of Greenpeace International for the 1st Global ship Scrapping summit: “In the last 20 years, partly as a result of globalization, the shipbreaking industry has degenerated from mechanized dock work to primitive technology, simple hand labour. In the 1970s, ocean-going vessels were scrapped at docks in the United Kingdom, Taiwan Province of China, Spain, Mexico and Brazil with prescribed technical procedures and mechanical aids. Since the early 1980s, shipbreaking activities have migrated to low-pay Asian countries that are poor in raw materials. Old ships are cut up by hand on open beaches and under inhuman working conditions. The product is primarily ship steel, which is turned into mild steel by cold rolling. In industrialized countries, rolled steel is banned from structural use for quality reasons.”31 IHS Fairplay, 2008 Lloyd’s Register of Ships.32 Report of the Special Rapporteur, supra note 12, at para. 16.33 Report of the Special Rapporteur, supra note 12, at para. 34.

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2.2 The Basel Convention & Shipbreaking

2.2.1 Fundamentals of the Basel Convention

The Basel Convention is the principal international legal instrument regulating the transboundary movement and disposal of hazardous wastes. The main goal of the Basel Convention is to “protect, by strict control, human health and the environment against the adverse effects which may result from the generation and management of hazardous wastes and other wastes.”34

The Basel Convention pursues three main objectives:35

1. Minimization of the production of waste at the source. Art. 4(2)(a) requires that the Parties take the appropriate measures to “ensure that the generation of hazardous wastes and other wastes within it is reduced to a minimum, taking into account social, technological and economic aspects.” The objective is to reduce not only the amount of waste, but also their hazardousness: “the most effective way of protecting human health and the environment from the dangers posed by such wastes is the reduction of their generation to a minimum in terms of quantity and/or hazard potential.”36

2. Environmentally sound management and disposal of waste (ESM). The ESM of waste requires the management of waste “in a manner which will protect human health and the environment against the effects which may result from such waste.”37 Art. 4 of the Convention mentions this concept several times with regard to the treatment facilities, transboundary movement and export, and import.38

3. Minimization of transboundary movements of hazardous wastes and other wastes through national self-sufficiency in waste management. Movement and disposal of waste must be considered only in the case that the generation cannot be avoided,39 and it must take place as close as possible to the place where waste is generated.40 Art. 4(2)(d) requires the minimization of the transboundary movement of waste.

The Convention does not prohibit the transboundary movement of waste but imposes strict control of such movement by way of a prior informed consent (PIC) procedure. 41 Specifically, the Convention establishes the following procedure:

34 Basel Convention, Summary of Treaty, available at http://ec.europa.eu/world/agreements/ prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=528. 35 Sejal Choksi, The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: 1999 Protocol on Liability and Compensation, 28 ECOLOGY L.Q. 509, 516 (2001).36 . Basel Convention, preamble. In accordance with the principle of the reduction of waste at source, the minimization of the hazardous components of products is a concept that is considered in several International and European documents. The European Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment is an important example, as well as the Stockholm Convention on Persistent Organic Pollutants.37 Basel Convention, art. 2, def.8. 38 Basel Convention, art 4.2 (b), (d), (e), (g).39 This provision can be considered as one of the first appearances of the so called “hierarchy of wastes,” which has been fully developed in the European directives Dir. 2002/96/EC (art. 1), Dir. 2006/12/EC (art. 3), Dir. 2008/98/EC (art. 4). According to this principle the choice of the method to apply for the waste management must take place according to the following order: (1) prevention, (2) Reuse, (3) Recycle, (4) Other forms of recovery to reduce the disposal (e.g. production of energy), and (5) Disposal.40 Basel Convention, art. 4.2 (b).

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a) all the States concerned by a transboundary transport of waste42 must receive a prior notification (by the state of export, or the arranger of the expedition, or the generator) of the expedition;

b) the State(s) concerned shall respond in writing to the notification (1) consenting to the transport (with or without conditions), or (2) denying the transport, or (3) requesting additional information;

c) the State of export allows the movement when all the following conditions occur:

i. it has received the written confirmation of the PIC of all the concerned States;

ii. the existence of a written contract between the exporter and the destination plant is proven. The contract must specify that the waste object of the export will be managed in an environmentally sound manner;

iii. the lack of domestic technical capacity and facilities to dispose of the waste in an environmentally sound and efficient manner is proven 43;

iv. the need for raw material by the State of import is proven.

d) the State of export must prohibit the movement if any one of the conditions listed above is lacking, or any time it believes that the wastes will not be managed in an environmentally sound manner.

41 Basel Convention, art. 6. See also Matt Cohen, U.S. Shipbreaking Exports: Balancing Safe Disposal with Economic Realities, 28 Environs: Envtl, L. & Pol'y J. 237 (2004-2005).42 The Convention considers as “concerned” not only the state of destination, but also all States of transit, which also have the right to prohibit the import of certain kinds of waste (see Basel Convention, art. 4.1 (b)). 43 Basel Convention, art. 4.9 (a): “The State of export does not have the technical capacity and the necessary facilities, capacity or suitable disposal sites in order to dispose of the wastes in question in an environmentally sound and efficient manner.”

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Basel Convention Prior Informed Consent procedure

*State of export and State of import shall require that each person who takes charge of a transboundary movement of hazardous waste or other wastes sign the movement document either upon delivery or receipt of the wastes.

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States of transit

3 & 4

State of export State of import

2. Transmit notification & advise contract has been concluded

6. Transmit certificate of disposal

3. Notification of proposed transboundary movement

5. Upon receipt of consent and proof of contract, permit transboundary movement

2, 3 & 4

2, 3 & 4

Exporter/Generator Disposer

4. Consent to or deny movement, or request further information

6

6

1. Conclusion of contract

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The Basel Convention does not strictly prohibit the export of waste because in several cases it is recognized as appropriate.44 For example, developing countries benefit from sending their waste to a developed country when they themselves lack the technical capacity to manage such wastes in an environmentally sound manner. Developing countries also benefit economically from the trade in waste where it provides a source of raw materials and second-hand products as well as employment opportunities for the local population. Nevertheless, Parties’ concern that the imports of hazardous wastes from developed to developing countries would not comply with ESM led to the adoption of the Basel Ban Amendment in 1995.45 The amendment bans the export of hazardous wastes for final disposal and recycling/recovery operations from countries listed in Annex VII of the Convention (Lichtenstein, EU and OECD member States) to non-Annex VII countries. Although it has yet to enter into force, it has been implemented by the European Union.46

The Basel Convention establishes an enforcement framework that requires State Parties to criminalize illegal shipments of hazardous waste.47 Further, Basel requires the State of export “to re-import” the shipment unless an alternative disposal in compliance with the ESM principle can be found within 90 days.48

2.2.2. Shipbreaking under the Basel Convention

The applicability of the Basel Convention to the recycling of end-of-life ships has been highly debated.49 In particular, the key issues confronting the international community have been whether the ship can become a waste, and if so:

- When does a ship become a waste;

- Who is the waste generator and which state is the exporting state; and

- Whether it simultaneously must be governed in compliance with the regulations concerning ships.

2.2.2.1. Status of Ships under the Basel Convention

The Basel COP, by Decision VII/26 (October 2004), affirmed, “a ship may become waste as defined in article 2 of the Basel Convention and … at the same time it may be defined as a ship

44 Basel Convention, art. 4.9.45 The Ban Amendment was adopted by the Basel COP by Decision III/1 (1995) as an amendment to the Basel Convention. 46 See Council Regulation (EC) No 120/97 of 20 January 1997 amending Regulation (EC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, Official Journal No. L 022, 24/01/1997. See also Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipment of waste, Official Journal L 190, 12/7/2006. 47 Basel Convention, arts. 4.3, 9.48 Basel Convention, art. 8.49 The industry has strongly defended the thesis that ships cannot be ships and wastes at the same time because ships can sail “under their own power.” On the other hand, NGOs have argued that the obligations introduced by the Basel Convention concern all wastes listed in Annex I and presenting the characteristics listed in Annex III, irrespective of the waste’s capability to operate, or the functionality or ability to operate, or the possibility to be economically reutilized. NGOs have also argued that the location of the hazardous waste (e.g. located in the structure of the ship) and the quantity of the hazardous waste are similarly irrelevant for the purpose of determining whether or not the ship is a waste. Basel Action Network and Greenpeace International, Shipbreaking and the legal obligations under the Basel Convention, submitted to the Legal Working Group of the Basel Convention, U.N. Doc. UNEP/CHW/LWG/5/4/Add.1, Sec. III, paras. 1 and 2 (21 May 2002).

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under other international rules.”50 As a consequence, the Parties have been called to “fulfill their obligations under the Basel Convention where applicable, in particular their obligations with respect to prior informed consent, minimization of transboundary movement of hazardous wastes and the principles of environmentally sound management.”51

2.2.2.2 Environmentally sound management of Ships

Art. 2.8 of the Basel Convention defines ESM as “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.”52

The Parties to the Basel Convention have considered the issue of what constitutes the ESM of shipbreaking and adopted the Technical Guidelines for the environmentally sound management of the full and partial dismantling of ships (Basel Technical Guidelines).53 The Basel Technical Guidelines “provide information and recommendations on procedures, processes and practices that must be implemented to attain [ESM] at facilities for ship dismantling (emphasis added).” 54

It is premised on the conception that “in order to achieve ESM-compliant procedures, it may be necessary to address factors of the process other than those directly related to the actual dismantling facility.”55 This approach involves three different phases of ship dismantling in order to achieve ESM: preparations on the ship, preparation of the Environmental Management Plan, and the dismantling of the ship.

Table 1: Phases of an environmentally sound ship dismantling process

Preparations on the ship56

Preparation of an inventory list of onboard hazardous/polluting wastes

Removal/cleaning – liquids, including fuels and oils

Securing the vessel by ensuring safe access to all areas and safe conditions for hot work.

Removal of equipment

Environmental Management Plan (EMP)

Environmental Impact Assessment (EIA)

Inventory of best practices

Waste management plan (WMP)

Contingency preparedness plan (CPP)

Monitoring plan (MP)

Ship dismantling facility

Minimum key functionalities of a model facility:

50 Dec. VII/26, supra note 1.51 Id. 52 Basel Convention, art. 2.8.53 Basel Convention Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, 7, U.N. Doc. UNEP/CHW.6/23 (8 August 2002) [hereinafter “Technical Guidelines”].54 Id.55 Id., at 23.56 See Report of the Special Rapporteur, supra note 12, at para. 12, affirming that “ESM on ship dismantling requires that hazardous waste and materials are managed and disposed in a manner that ensures the protection of human health and the environment against the adverse effects which may result from such waste.” According to the report, in case the dismantling facility is not able to ensure the environmentally sound management of hazardous waste, a pre-cleaning must be done before the last voyage of the ship.

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Containment

Workstations for secondary dismantling and sequential breakdown into component elements.

Specially equipped workstations for removal of hazardous and toxic materials

Temporary storage areas for benign materials and steelwork.

Secure storage areas for hazardous wastes.

Storage areas for fully processed equipment and materials that are ready for reuse, recycling or disposal.

Proximity to proper disposal facilities.

It is noteworthy that the Basel Technical Guidelines require the pre-cleaning of ships to avoid the transport of hazardous wastes57 as well as the use of impermeable surfaces in the ship dismantling facility.

This holistic approach to achieving ESM is affirmed in various statements made by the Basel COP. For example, the COP has noted the need to make specific requirements for ships before being scrapped58; the importance of identifying the potentially hazardous materials used to construct the ship as well as those found on board59; and the utility of prior informed consent for “enabl[ing] the minimization of the impact to human health and the environment associated with dismantling of ships.”60

2.3 Domestic Litigation applying Basel-implementing statutes

In domestic litigation involving shipbreaking, domestic Courts, particularly in Europe, have applied the legal requirements of the Basel Convention, as they have been made manifest in national law.

1. The Sandrien Case (2002)

This case involved a Mauritius owned vessel, the Sandrien, docked in The Netherlands but flying a Bolivian flag. The Dutch Shipping Inspectorate had initially given the shipowner permission to transfer the vessel to India in order to be dismantled. The transfer was stopped by the Dutch Environment Ministry upon discovery of large quantities of hazardous materials on board, including 5000 kg of asbestos. According to the reasoning of the Council of State at The Hague,61

the existence of a contract with the dismantling facility located in India indicated an intention to dispose and therefore was enough to demonstrate that the ship had already acquired the nature of waste before leaving Dutch waters. As a consequence, the transport was required to

57 See Technical Guidelines, supra note 44, at p.4 (stating “hazardous wastes and materials such as asbestos, PCBs and TBT paints should, to the extent possible, be removed in best available facilities from the ship during its life cycle prior to its voyage for dismantling so that a minimal amount of this material will have to be dealt with during the breaking process.”)58 Dec. V/28, supra note 1, at Annex VI: “ships have to meet certain requirements to sail. Similarly, it was suggested that requirements relating to the environmental condition of a ship designated for scrapping could be defined”59 Dec. VII/26, supra note 1. 60 Id.61 Council of State of The Hague, Case number: 200105168/2, June 19, 2002.

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comply with the Basel Convention, as implemented by the European Waste Shipment Regulation, by giving proper notice of the shipment.62

2. The Clemenceau Case (2005)

In 2005, the French government decided to send the French aircraft Clemenceau to India in order to be dismantled. Nonetheless, after a long and debated process, the French Conseil d’Etat decided that the transport was in violation of the European Waste Shipment Regulation, specifically its provision implementing the Basel Ban Amendment. It therefore ordered the re-import of the ship into French territory. In the motivation of the decision, the Supreme Assembly affirmed that the sale contract of the ship for purposes of dismantling showed the intention of the French government to dispose of the ship, which is enough to demonstrate that the ship was already a waste before leaving the French waters. For that reason, the Supreme Assembly held that the transport must be arranged in compliance with the Basel Convention, as implemented by the European Waste Shipment Regulation, irrespective of the use of the ship as a military aircraft.63

3. The Otapan Case (2007)

This case involved the MV Otapan, a ship docked in a Dutch port and sent to Turkey in order to be dismantled. In this case the Netherlands, as the State of export, correctly identified the ship as a waste and started the procedure for the transport of the ship by notifying the State of import, as required by the Basel Convention and by the European Waste Shipment Regulation. Turkey, however, possessed a hazardous waste import ban and therefore required pre-cleaning prior to export. Although some pre-cleaning took place, the Turkish government stopped the vessel from entering domestic waters on grounds that the vessel had more asbestos on board than specified in the notification. The court found that the waste treatment process was wrongly classified on the notification form as a recovery operation, when in fact the asbestos needed to be disposed of. The judgment therefore held that the Dutch government “wrongly failed to object to the proposed shipment on the ground of an incorrect classification on the notification form.”64

4. The M.T. Enterprise case (2008)

This case was brought by the Bangladesh Environmental Lawyers Association (BELA) in 2008, challenging the entry of MT Enterprise into Bangladesh territory.65 The MT Enterprise had been listed by Greenpeace as a toxic ship. In March 2009, the High Court directed that none of the other Greenpeace listed ships should be imported into Bangladesh for breaking purposes until authorities conduct appropriate scrutiny of the waste content and cleaning of the ships, in line with applicable laws, and proper infrastructural facility is in place to deal with such ships. 66 The Court also directed the government to close all shipreaking yards within two weeks for operating without environmental clearance from the government. The Court directed the Ministry of Environment and Forest to frame within three months necessary rules on shipbreaking, relying on the obligations of Bangladesh under the Basel Convention, the Environment Conservation Act of 1995, and the Environment Conservation Rules of 1997.67 In 62 Regulation (EC) No 1013/2006, supra note 37.63 Conseil d’Etat, contentieux n. 288801, 6ème et 1ère sous-sections rèunies, Lecture du 15 Fevrier 2006.64 Council of State of The Hague, Case number: 200606331/1, February 21, 2007.65 See Bangladesh Environmental Lawyers Association, List of Selected Public Interest Litigation of BELA, p33, available at http://www.belabangla.org/activities.htm#Public%20Interest%20Litigation%20%28PIL%29.66 Id.67 The Daily Star, “Ship-breaking ordered shut,” March 18, 2009, available at http://www.thedailystar.net/newDesign/news-details.php?nid=80213

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May 2010, the Court ruled that all ships coming into the nation to be dismantled must now be required to carry proof that they have been decontaminated of hazardous materials before entering Bangladesh's waters. This was in direct response to Bangladesh’s national ban on the importation of hazardous waste, in accordance with Basel Convention Art. 1.1(b).

2.4 Limitations of Basel as applied to Ship Recycling

2.4.1 Difficulties in determining when a Ship is a Waste

Decision VII/26 (October 2004) established that ships may become waste. Of critical importance is the exact moment when the ship becomes a waste, because it not only determines whether the Basel Convention applies but also identifies the state responsible for the correct management of the ship/waste. The Basel Convention defines “wastes” as substances or objects which are (1) disposed of, or (2) are intended to be disposed of, or (3) are required to be disposed of by the provisions of national law. In the absence of specific provisions or guidance concerning the special nature of the transboundary movement of ships for purposes of recycling or disposal, provided by the Basel Convention or the Parties, the general waste definition must be applied. Ships therefore become waste once the intention to dispose of it is formed.

An NGO submission to the Legal Working Group of the Basel Convention68 has addressed the exact issue of how to identify the intention to dispose of a ship. They argue that the intention can be confirmed through a contract, preparatory actions (such as cancellation or modification of insurance, notice of destination to a port or notices given to crew), or through the communications between the ship owner and third parties (e-mail, fax, telex, phone-call).

However, difficulties in determining the exact moment when a ship becomes a waste has continued to hinder the application of the Basel Convention to shipbreaking. Ships carry cargo during their last voyage for dismantling or change owners in the middle of the voyage, making it difficult for regulators to identify when the decision to dispose is formed.69 Many shipowners are also reluctant to classify ships as waste, in order to avoid compliance with transboundary waste legislation.70 Because ships are able to easily navigate across national boundaries, shipowners have been able to avoid obligations under Basel by hiding the intent to dispose the ship until the ship is on the high seas or in the ship recycling state. In the absence of transboundary movement (from one state jurisdiction to another), the Basel obligations for transboundary movement do not apply.71

2.4.2 Difficulties in determining the Export State

The difficulty of determining when a ship becomes a waste leads to a second challenge – identification of the export state. An “Export State” is critical for the effective implementation of the Basel Convention’s strict control procedures including PIC. Under the Basel Convention, States are responsible for ensuring that the management of hazardous wastes is consistent with

68 See Basel Action Network and Greenpeace International, Shipbreaking and the legal obligations under the Basel Convention, supra note 40, at para.1(2). 69 Saurabh Bhattacharjee, From Basel to Hong Kong: International Environmental Regulation of Ship-Recycling Takes One Step Forward and Two Steps Back, 1(2) TRADE L. & DEV. 193, 214 (2009) [hereinafter “Bhattacharjee”]. at 214. See also H. Edwin Anderson, The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives, 21 TUL. MAR. L. J. 139, 163 (1996) [“hereinafter “Anderson”]70 Bhattacharjee, supra note 60, at 214. See also European Community, Comparison of the Level of Control and Enforcement Established by the Basel Convention with the Expected Level of Control and Enforcement to be provided by the Draft Ship Recycling Convention in its Entirety – An Assessment by the EU and its Member States, (2008) available at: www.basel.int/ships/commentsOEWG6/EU.doc71 See Basel Convention, art. 2.3 (defining ‘transboundary movement’)

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the protection of human health and the environment.72 In particular, the State of Export has the obligation to ensure Environmentally Sound Management (ESM) as well as the obligation to implement Basel’s strict control procedures:

“The obligation under this Convention of States in which hazardous wastes and other wastes are generated to require that those wastes are managed in an environmentally sound manner may not under any circumstances be transferred to the States of import or transit.”73

“The State of export shall notify … in writing, through the channel of the competent authority of the State of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes.”74

The Basel Convention defines the “State of export” as the “Party from which a transboundary movement of hazardous wastes or other wastes is planned to be initiated or is initiated.” 75 In the case of ships, the Export State may be the State where the intention to dispose is formed, or the Port State from which the end-of-life ship originates. In order to be consistent with the producer responsibility principle of the Basel Convention, this debate should also consider the responsibility of the generator of the waste, that is, the State of the shipowner.

The issue of identifying the export state has arisen most often where the intention to dispose of the ship is formed on the high seas and the ship directly sails towards the state of destination, without intermediate dock or intermediate transit through waters under the jurisdiction of another state.76 Even where a ship calls at a port before heading to the recycling state, it is unclear whether the Port State77 can be regarded as the Export State.78 In practice, this has hindered the implementation of PIC and certain export bans, such as the European Waste Shipment Regulation prohibiting the export of hazardous wastes to non-OECD countries, because the decision to dispose is formed or disclosed after the ship has already left the territorial waters of the State where the ban is in force. In Decision VII/26 (October 2004), the Basel COP acknowledged the difficulty of enforcing the Convention to end-of-life ships, particularly its system of Prior Informed Consent designating a State of Export. It has also been recognized by the IMO as one reason justifying the new Hong Kong Convention.79

2.5 The IMO Hong Kong Convention

The Hong Kong Convention was adopted by the IMO Assembly on May 15, 2009, at the International Conference on the Safe and Environmentally Sound Recycling of Ships. The main aim of the Convention is to reduce the dangers of ship dismantling. Specifically it aims ”to prevent, reduce, minimize and, to the extent practicable, eliminate accidents, injuries and other

72 Basel Convention, preamble para. 4.73 Basel Convention, art. 4.10.74 Basel Convention, art. 6.1.75 Basel Convention, art. 2.10.76 Report of the Special Rapporteur, supra note 12, at para. 41. See also Greenpeace International and Basel Convention Action Network (BAN), Shipbreaking and the legal obligations under the Basel Convention, supra note 37 (stating the control procedures of the Basel Convention are unenforceable under these circumstances).77 The term port state refers to the authority of the country in which a port of call (a ship stop) is located. European Maritime Safety Agency, Improving Port State Control 2 (2007), available at: http://www.emsa.europa.eu/Docs/psc/leaflet-psc.pdf.78 Bhattacharjee, supra note 60, at 214.79 Mikelis, supra note 8, slide 10. See also Bhattacharjee, supra note 55, at 203 .

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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.”80

Despite the objectives of the Hong Kong Convention, its provisions have engendered heated debate as to its ability to achieve its stated goals. Some have viewed the Hong Kong Convention as insufficient in addressing the environmental harms caused by the shipbreaking industry,81

while others have welcomed the Convention as a step in the right direction.82

2.5.1 Negotiations

In July 2005,83 the Marine Environment Protection Committee (MEPC) of the IMO considered the problem of the recycling of ships. It recalled the activity of the Working Group on Ship Recycling, stressing the importance of the following two concepts elaborated by the Working Group:

- the general acknowledgment of the urgency to develop an effective solution for ship recycling in order to reduce both environmental and occupational health and safety risks correlated to this activity84;

- the fact that the most effective solution to address this problem would be the development of a new instrument “providing legally binding and globally applicable ship recycling regulations for international shipping and for recycling facilities.”85

The report also recalled the preliminary draft structure that the Working Group had developed for the new Convention, which considered the following issues:

the prohibition of the use of certain hazardous material in the construction and equipment of ships;

the design of ships and ships’ equipment to facilitate recycling and removal of hazardous

80 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, art. 1.1 [hereinafter “Hong Kong Convention”].81 See International Federation for Human Rights (FIDH), “New ship recycling Convention legalizes scrapping toxic ships on beaches” (May 15, 2009), available at http://www.fidh.org/New-ship-recycling-convention-legalizes-scrpping (stating that the new Convention (1) legitimates the “beaching method,” thereby penalizing the companies which have already invested in safer and cleaner methods; (2) fails to uphold the principle of the international hazardous waste trade law; (3) fails to impose the substitution of hazardous materials with alternative substances; (4) does not introduce the fund mechanism, strongly suggested during the negotiation); Rizwana Hasan, Final Speech of the NGO Platform on Shipbreaking before the International Conference on the Safe and Environmentally Sound Recycling of Ships (May 15, 2009), available at http://www.ban.org/Library/RizwanaSpeechIMO.html. 82 See Duncan Hollis, “Will the new ship recycling Convention sink or swim?” (May 27, 2009), available at http://opiniojuris.org/2009/05/27/will-the-new-ship-recycling-convention-sink-or-swim/ (stating that the text of the Convention is the result of a balance of different interests. Taking as an example the beaching method, a ban of this practice would not have been accepted by the current recycling states, and as a consequence, they would not have signed the Convention. The author stresses the fact that this Convention is a starting point). See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the regions – an EU strategy for better ship dismantling , COM(2008)767 final (Nov. 19, 2008) (positively welcoming the new Convention, while noting at least two problems that must be addressed: the stricter regulation of the ship dismantling facilities; and the ban of the beaching method).83 Int’l Maritime Org. [IMO], Report of the Marine Environment Protection Committee on its fifty-third session, MECP 53/24 (18) (July 25, 2005).84 Id.85 Id.

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materials;

the preparation, update and verification of inventories of potentially hazardous materials on board ships;

the possible need for a survey and certification system;

the development of a reporting system for ships destined for recycling;

the need for the recycling facilities to be approved/licensed or properly regulated in accordance with internationally developed and globally applied standards;

the development of a ship recycling plan;

the provision of, access to, and proper utilization of adequate reception facilities for shipboard wastes and other wastes by the recycling facilities.

On the basis of these considerations, on December 2005, the Assembly mandated the MEPC to proceed with the adoption of a new legally binding instrument on ship recycling that would provide regulation for:

1. the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound management on ship recycling, without compromising the safety and operational efficiency of ships;

2. the operation of ship recycling facilities in a safe and environmentally sound manner; and

3. the establishment of an appropriate enforcement mechanism for ship recycling (certification/reporting requirements).86

During the negotiations, participants expressed their particular concerns and considerations regarding the draft of the IMO Convention. Some of the more contentious issues included:

- the importance of prior informed consent

- the ban of the beaching method

- the ban of trade with non-Parties

- the need for an international fund to internalize the costs of shipbreaking

- the importance of clarity and transparency of the measures introduced by the Convention

- the entities responsible for the preparation of the ship

- the importance of the mechanisms for control and monitoring

2.5.2. Key elements of Hong Kong Convention

The Hong Kong Convention consists of 21 Articles and an Annex of 24 Regulations and 7 Appendixes. The Annex is equally binding on the Parties, unless expressly provided for otherwise.87 The key elements of the Hong Kong Convention are the following:

1. Environmental Ship Design: the Hong Kong Convention incorporates the concept that the efficient management of waste found in a ship begins with an environmental design of the ship. The Convention seeks to reduce the amount of waste and hazards involved in 86 Int’l Maritime Org. [IMO], New legally binding instrument on ship recycling, Assemb. Res. A.981(24) (Dec. 1, 2005).87 Hong Kong Convention, art. 1.5.

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shipbreaking by requiring more environmental ship design and planning. Specifically, it requires each Party to prohibit and/or restrict the installation or use of hazardous materials listed in Appendix I, such as asbestos, ozone depleting substances, polychlorinated biphenyls (PCB), and anti-fouling compounds and systems.88 This reduces the amount of hazardous material used to construct ships and facilitates dismantling.89 However, it is worth noting that these substances are already banned in other Conventions, so the Hong Kong Convention failed to advance the substitution principle recognized in its preamble.

2. Inventory of hazardous materials: Regulation 5 establishes that each vessel, for its whole operational life, shall hold the “Inventory of Hazardous Materials (IHM)” also known as “green passport.” The IHM must be continuously updated throughout the life of the ship, detailing hazardous materials listed in Appendices 1 and 2 of the Hong Kong Convention that are present on board. The function of this document is to allow the government of the Flag State to verify that the facility where the vessel is going to be disposed of has the technical and operational capability to manage the waste in an environmentally sound manner.

3. Survey and certification requirements: Part C of the Convention is dedicated to the survey, and to the issuance and endorsement of certificates. The Convention requires different surveys depending on the stage of recycling: the initial survey90, the renewal survey91, the survey after any change-replacement-repair92, and the final survey93. The general purpose of these surveys is to verify the presence and accuracy of the IHM throughout the life of the ship, in order to ensure a lifelong monitoring of the materials on board.

4. Authorization of Ship Recycling Facilities (SRF): Article 4 of the Hong Kong Convention requires each Party to ensure SRFs under its jurisdiction comply with requirements of the Convention, while Article 6 requires each Party to ensure that SRFs under its jurisdiction are authorized in accordance with the corresponding Regulations. Accordingly, Regulation 16 requires each SRF to be authorized by the competent authority of the ship recycling State (or by an organization recognized by it), taking into account the guidelines provided by the IMO. The authorization shall include all the verification documentation required by the Convention and a site inspection. The authorization is valid for a period specified by the Party but no more than five years.

5. Notifications and reporting obligation: Regulation 23 of the Hong Kong Convention requires the authorized Ship Recycling Facility to inform the Competent authority of the Recycling State of any incidents, accidents, occupational diseases or chronic effects causing, or with the potential of causing, risks to workers safety, human health, and the environment. Regulation 24 requires the shipowner to notify the Administration94 about the intention to recycle a ship; this information allows the Administration to take the measures necessary to verify if the transport and the following waste disposal is organized in conformity with the Hong Kong Convention. Other documents that help to maintain the traceability of the waste stream

88 Hong Kong Convention, regulation 4.89 See Bhattacharjee, supra note 60, at 221.90 Hong Kong Convention, regulation 10.1.1.91 Hong Kong Convention, regulation 10.1.2.92 Hong Kong Convention, regulation 10.2.3.93 Hong Kong Convention, regulation 10.1.4.94 “Administration” refers to “the Government of the State whose flag the ship is entitled to fly, or under whose authority it is operating.” Hong Kong Convention, art. 2(3).

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are the International Ready for Recycling Certificate, the Report of the planned start date of Ship Recycling, and the Statement of Completion.95

6. Circulation of information: under Article 12 of the Hong Kong Convention, Parties must provide the IMO with information including the list of authorized facilities, the list of ships recycled, the list of the competent authorities and the list of violations of the Convention. The IMO is required to disseminate this information as appropriate.

7. Inspection of ships by party states: under Article 8 of the Hong Kong Convention, when a ship to which the Convention applies is in a port or offshore terminal of another Party, officers duly authorized by that Party may inspect the ship to verify the presence of the International Certificate of Inventory of Hazardous Materials. The Convention also introduces the possibility to conduct a detailed inspection when one of the following occurs: (1) the ship does not carry a valid certificate, or (2) the condition of the ship does not correspond substantially with the certificate, or (3) the ship does not implement the procedure for the maintenance of the Inventory of Hazardous Materials (IHM).96

95 Hong Kong Convention, Appendix IV, Appendix VI; Appendix VII.96 Hong Kong Convention, art. 8.

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8. Regulatory enforcement and detection of violations: inspections are one of the means to enable the enforcement the Convention’s provisions, and Parties are required to establish sanctions under domestic law “adequate in severity to discourage violations of the Convention wherever they occur.”97

The Hong Kong Convention allocates responsibility on the Flag State to ensure that its ships comply with the requirements of the Convention.98 The role of the Flag-State raises the concern of “Flags of Convenience (FOC),” by which ships register to fly the flag of a country other than the country of ownership. The main motivation for such practice has been the reduction of operational cost, as it enables shipowners to avoid restrictive regulatory regimes in their home state by changing registration to an FOC country that has open registry and minimal regulation.99

There are currently 32 FOC countries.100

Legal scholars have examined whether the UN Convention on the Law of Sea (LOSC) addresses this legal loophole. Under the LOSC, a ship that is operational must sail under the flag of one State only and not change its flag during voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.101 The LOSC deems a self-propelled ship on its way to being recycled as operational.102 Additionally, the LOSC grants Coastal States and Flag States concurrent jurisdiction over a vessel in territorial seas. Under the LOSC, Port States are able to exercise jurisdiction over a vessel voluntarily in its ports, including the ability to stop the end-of-life ship from continuing on to the dismantling facility if it threatens damage to the marine environment by failure to meet the international rules and standards governing seaworthiness or if it has released pollutants into the internal waters, territorial sea or exclusive economic zone of the Port State.103 FOCs thus allows shipowners and operators to escape the jurisdiction of Port States if the vessel satisfies the standards for seaworthiness or has not released pollution into the Port State’s waters. More generally, the pervasive practice of FOCs is a real limitation of the Hong Kong Convention.

In addition, some of the elements of the Hong Kong Convention establish a lower level of protection when compared with the Basel Convention. These elements are analyzed in detail in Section 5 below on the evaluation of equivalence of the Hong Kong Convention; here we identify the following:

1. exclusions that narrow the application of its provisions

2. dilution of prior informed consent

3. absence of the duty to re-import

4. insufficient requirements to ensure ESM

5. no criminalization of illegal traffic

97 Hong Kong Convention, art. 10.98 Hong Kong Convention, art. 4.1.99 Bhattacharjee, supra note 60, at 203. 100 International Transport Workers’ Federation, FOC countries, available at http://www.itfglobal.org/flags-convenience/flags-convenien-183.cfm (last visited February 8, 2011).101 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397, art. 92. [hereinafter “UNCLOS”]102 Division for Ocean Affairs and the Law of the Sea, Comments, submitted to the Legal Working Group of the Basel Convention, UNEP/CHW/LWG/5/4, para 2 (May 2002)103 See UNCLOS, art. 218 (Enforcement by Port States), 219 (Measures relating to seaworthiness of vessels to avoid pollution).

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6. trade with non-parties

7. failure to incorporate international principles relating to the sound management of waste

In light of these weaknesses, the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights has concluded that the Hong Kong Convention “is not sufficient to bring about the significant and urgently needed improvements to the working practices prevailing in the shipbreaking yards or the elimination of the serious environmental pollution that shipbreaking yards generate.”104 These limitations are also relevant to determine equivalence, as analyzed further below.

2.6 Process & State of Play

Basel COP 7 in October 2004 recognized the work of the IMO in developing a ship recycling Convention and called on the IMO “to continue to consider the establishment in its regulations of mandatory requirements, including a reporting system for ships destined for dismantling, that ensure an equivalent level of control as established under the Basel Convention and to continue work aimed at the establishment of mandatory requirements to ensure the environmentally sound management of ship dismantling, which might include pre-decontamination within its scope.”105 This request was reiterated in Decision VIII/11 (December, 2006), in which the COP “invite[d] the International Maritime Organization 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.”106 Subsequently, Basel COP 9 in 2008 requested the Open-ended Working Group (OEWG) to the Basel Convention to carry out a preliminary assessment of whether the Ship Recycling Convention, as adopted, established an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety.107 In order to do so, the OEWG was requested to first develop the criteria necessary for such an assessment and the Parties were requested to submit comments on appropriate criteria to be used by the OEWG.108

The OEWG, at its seventh session in 2010, reached an agreement on preliminary criteria for assessing whether the Hong Kong Convention establishes an equivalent level of control and enforcement as that of the Basel Convention.109 The proposed criteria contains four broad categories:


Control

Enforcement

Exchange of information by Parties / Cooperation and Coordination.

104 Report of the Special Rapporteur, supra note 12, at para. 65.105 Dec. VII/26, supra note 1, at para. 5.106 Dec. VIII/11, supra note 1, at para. 2.107 Dec. IX/30, supra note 1, at para. 4.108 Id. See also Environmentally sound management of ship dismantling: comments received pursuant to decision IX/30, U.N. Doc. UNEP/CHW/OEWG/7/INF/15, Annex.109 Dec. OEWG-VII/12, supra note 9.

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The Open-ended Working Group of the Basel Convention (OEWG) considered these criteria to be “an appropriate basis for further work, including discussion, to implement decision IX/30,”110

(calling for an assessment of equivalence) and subsequently invited Parties and relevant stakeholders:

a) “To review and complete the table set out in the Annex to [Decision OEWG-VII/12];

b) On the basis of this table, to provide a preliminary assessment of whether the Hong Kong Convention establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety, and in doing so, to take into account:

The special characteristics of ships and international shipping;

The principles of the Basel Convention and the relevant decisions of the Conference of the Parties;

The comments submitted by Parties and other relevant stakeholders, as appropriate.”

The OEWG invited Parties and relevant stakeholders to submit their tables and preliminary assessment to the Secretariat by April 15, 2011, to be later compiled and synthesized by the Secretariat and transmitted to the COP at its Tenth meeting in Cartagena, Colombia, 17 - 21 October 2011, “for consideration and action, as appropriate.”111

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,112 consistent with Article 11 of the Basel Convention. Alternatively, if the Basel COP “concluded that aspects of the Ship Recycling Convention did not provide equivalent levels of control to the Basel Convention, the Basel Convention would continue to apply to those aspects, as expressed in decision VII/26.”113 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.114

2.7 Conclusion

Shipbreaking, the practice of dismantling end-of-life ships, has become an established industry in certain developing countries. Yet, it continues to be hazardous not only to human health but also to the local and global environment. By Decision VII/26 (October 2004), the Basel COP affirmed that end-of-life ships may be a waste and thus controlled by the Basel Convention. At the same time, the International Maritime Organization negotiated and adopted the Hong Kong Convention in 2009, to ensure the safe and environmentally sound recycling of ships by use of a regulatory regime which requires greener design and the efforts of both flag states and recycling states. The duplicity of international instruments pertaining to shipbreaking raises the question of coherence and compatibility between them, as well as the need to ensure the effective

110 Id. 111 Id. 112 Press Release (14 May 2010), available at www.basel.int/press/press-releases/14May2010-e.doc113 Basel Secretariat, Environmentally sound management of ship dismantling and the Joint Working Group of the International Labour Organization, the International Maritime Organization and the Basel Convention on Ship Scrapping, UN Doc. UNEP/CHW.9/34 Annex 1, para. 8 (April 2008).114 Basel Secretariat, The Basel Convention and its application to ship recycling, Ship Recycling Technology & Knowledge Transfer Workshop, 14 – 16 July 2010, Izmir, Turkey.

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regulation of the shipbreaking in order to protect human health, workers rights, and the environment. In the context of the Basel Convention, the Basel COP must now confront the question whether the Hong Kong Convention provides an equivalent level of control as that of the Basel Convention.

3. EQUIVALENCE AND THE INTERPRETATION OF ARTICLE 11 OF BASEL

An analysis of equivalence must properly interpret Article 11 of the Basel Convention, as this is the only provision in the Basel Convention which allows for other international agreements to supersede Basel in regulating the transboundary movements of hazardous wastes. The COP’s demand for an “equivalent level of control” derives from Article 11, as it permits Parties to enter into bilateral, multilateral or regional agreements or arrangement regarding transboundary movement of hazardous wastes or other wastes so long as they “do not derogate” from the environmentally sound management required by the Basel Convention. A proper understanding of “equivalent level of control” therefore necessitates an understanding of the purpose and requirements of Art. 11.

The methodology for interpreting a treaty is outlined in Articles 31 and 32 of the Vienna Convention.115 Article 31(1) states that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”116 In addition, the interpreter must take into account any relevant provisions of international law applicable in the relations between the parties as well as the parties’ own interpretation of the treaty, as reflected in subsequent agreements regarding the treaty’s interpretation and application and subsequent practice of the parties.117 Where a term is defined in the Convention, such meaning should prevail.118 An interpretation according to Article 31 may be confirmed or clarified using supplementary means of interpretation such as the negotiated history or travaux préparatoires of the treaty.119

3.1 Literal Interpretation

The requirements of equivalency are explicit in Art. 11 of the Convention:

1. “… Parties may enter into agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by the Convention” and “stipulate provisions which are not less environmentally sound than those provided for by this Convention, in particular taking into account the interests of developing countries.”

2. “Parties shall notify the Secretariat of any bilateral, multilateral or regional agreements

115 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (signed 23 May 1969, entered into force 27 January 1980) [hereinafter “Vienna Convention”].116 According to the Vienna Convention, Art. 31(2), the “context” includes the text itself, including the preamble and annexes, as well as: (a) “any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty”; (b) “any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.117 Vienna Convention, art. 31(3).118 Vienna Convention, art. 31(4).119 Vienna Convention, art. 32.

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or arrangements referred to in paragraph 1 and those which they have entered into prior to the entry into force of this Convention for them, for the purpose of controlling transboundary movements of hazardous wastes and other wastes which take place entirely among the Parties to such agreements. The provisions of this Convention shall not affect the transboundary movements which take place pursuant to such agreements provided that such agreements are compatible with the environmentally sound management of hazardous wastes and other wastes as required by this Convention.”

The key language in this text is the requirement that Parties to the Basel Convention only enter into agreements and arrangements regarding transboundary movements of hazardous waste that do “not derogate” from but rather are “compatible with” the ESM of hazardous wastes and other wastes as required by the Basel Convention,120 and “stipulate provisions which are not less environmentally sound than those provided for by this Convention, in particular taking into account the interests of developing countries.” Such agreements and arrangements are called Article 11 Agreements.

The terms “not derogate” are not defined in the Convention. In ordinary language “derogate” means “to repeal or abrogate in part (a law, sentence, etc.); to destroy or impair the force and effect of; to lessen the extent or authority of.”121 Similarly, “compatible” is also not defined. In ordinary language, “compatible” means “mutually tolerant; capable of being admitted together, or of existing together in the same subject; accordant, consistent, congruous, agreeable.”122123

The Convention attaches a special meaning to ESM, defining it to mean, “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

120 It has been argued that different standards of equivalence apply depending on when the Art. 11 agreement was signed. The thesis is that international agreements that pre-date the Basel Convention must be “compatible” with the ESM requirements of the Convention, while agreements signed after the Basel Convention must not “derogate” from the ESM requirements of the Convention, a higher standard than the former. David Hunter et. al, International Environmental Law and Policy (1998), at 869. This analysis is confirmed in Decision II/10 of the Conference of the Parties to the Basel Convention, U.N. doc. UNEP/CHW.2/30 (March 1994). While this analysis agrees that Article 11(1) applies exclusively to agreements made after the Basel Convention, the requirement of compatibility in Article 11(2) is also applicable to such agreements as indicated by the reference of “such agreements” in 11(2) to both “agreements referred to in paragraph 1” and agreements “entered into prior to” the Basel Convention. Therefore it is useful to understand the literal interpretation of both “derogate” and “compatible.” 121 The Oxford English Dictionary, 2d ed., 1989, online version Nov. 2010, available at http://www.oed.com.proxycu.wrlc.org/Entry/50655 (accessed 09 February 2011). “Derogation” is defined as “The partial repeal or abrogation of a law by a later act that limits its scope or impairs its utility and force.” Black’s Law Dictionary 509 (9th ed.) (West 2009). 122 The Oxford English Dictionary, 2d ed., 1989, online version Nov. 2010, available at http://www.oed.com.proxycu.wrlc.org/Entry/37499 (accessed 09 February 2011).123 The Arabic, Chinese, English, French, Russian and Spanish texts of the Convention are equally authentic, art. 29 of the Basel Convention, so it is instructive to examine the definitions in these other languages. Derogate: “减损” : derogate from, diverge from (Chinese: English-Chinese Dictionary of Anglo-American Law (Law Press of China, 2003)); “déroger à”: to infringe, to depart from (French: Concise Oxford-Hachette French Dictionary (Oxford University Press, 2005)); “ ً من انتقاصا ”: to take away, detract from (Arabic: ECTACO English - Arabic Online Dictionary); “отступают от”: depart from (Russian: Pocket Oxford Russian Dictionary (Oxford University Press, 2006)); “menoscabar”: diminish, impinge upon, infringe (Spanish: Concise Oxford Spanish Dictionary (Oxford University Press, 2005)). Compatible: “ 符合 ”： in conformity with (Chinese); "compatible”: coexisting without any conflict (French); “متفقة”: capability of emulation (Arabic); “не противоречат”: not contradictory (Russian); “compatible”: consistent (Spanish).

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such wastes.”124 This interpretation must prevail according to Art. 31(4) of the Vienna Convention. While “environmentally sound” is not defined in the Convention, it may be inferred by the context that its meaning is similar to ESM. Furthermore, the Convention defines “wastes” as “substances or objects that are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law.”125 Finally, “management” includes the process of “collection, transport and disposal of hazardous wastes or other wastes, including after-care of disposal sites.”126

A literal interpretation of Article 11 therefore indicates that any agreement or arrangement regarding transboundary movement of hazardous wastes or other wastes outside of the Basel Convention must meet the ESM requirements of the Basel Convention, that is, requirements related to “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.”127 The Basel COP determined, by Decision VII/26 (October 2004), that end-of-life ships may be a waste and a ship at the same time, so an agreement regarding the transboundary movement of end-of-life ships, under the purview of Article 11, must be compatible with the ESM requirements of the Basel Convention. Additionally, under Article 11.1, the agreement must take into account the interests of developing countries, discussed in further detail in Section 5.5 on the evaluation of equivalence.

3.2 Teleological Interpretation

A teleological interpretation of Article 11 highlights the object and purpose of the Convention in ascertaining the meaning of its terms. As the Basel Convention does not have a specific section regarding its objective, the preamble of the Convention may be used as authoritative text to interpret the object and purpose of the treaty.128

The Basel Convention aims “to protect, by strict control, human health and the environment against the adverse effects which may result from the generation and management of hazardous wastes.”129 The Convention’s use of a strict control procedure reflects “the growing international concern about the need for stringent control of transboundary movement of hazardous wastes and other wastes, and of the need as far as possible to reduce such movement to a minimum.”130 It is based on the consideration “that enhanced control of transboundary movement of hazardous wastes and other wastes will act as an incentive for their environmentally sound management and for the reduction of the volume of such

124 Basel Convention, art. 2.8.125 Basel Convention, art. 2.1.126 Basel Convention, art. 2.2.127 Basel Convention, art. 2.8.128 See Arbitral Award of 31 July 1989, Guinea-Bissau v. Senegal [1991] ICJ Rep. 53, at 142 (dissenting opinion of judge Weeramantry) where he stated: “The preamble is a principal and natural source from which indications can be gathered of a treaty's objects and purposes even though the preamble does not contain substantive provisions. Article 3 1 (2) of the Vienna Convention sets this out specifically when it states that context, for the purpose of the interpretation of a treaty, shall comprise in addition to the text, the preamble and certain other materials. The jurisprudence of this Court also indicates ... that the Court has made substantial use of it for interpretational purposes.” See also Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952, p. 176, at 196, where the judge affirmed: “the interpretation of the provisions of the Act must take into account its purposes, which are set forth in the Preamble … .” Finally, see Colombian-Peruvian asylum case, Judgment of November 20th 1950: I.C.J. Reports 1950, p. 266., at 282.129 Basel Convention, Preamble para. 24.130 Basel Convention, Preamble para. 18.

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transboundary movement.”131 The objective of the Convention makes clear that Article 11 agreements and arrangements must be strict enough to minimize transboundary movement and waste generation in order to protect human health and the environment against the adverse effects resulting from the generation and management of hazardous wastes.

3.3 Travaux Préparatoires

The travaux préparatoires can help to shed light on any obscurity in the meaning of terms used in a treaty by clarifying the intentions of a treaty. An examination of the travaux préparatoires of the Basel Convention confirms the Parties’ intent to only permit bilateral, regional or multilateral agreements that are consistent with the purpose of the Basel Convention.

At the Organizational Meeting of the Ad Hoc Working Group of Legal and Technical Experts with a Mandate to Prepare a Global Convention on the Control of the Transboundary Movements of Hazardous Wastes (hereinafter “Ad Hoc Working Group of Legal and Technical Experts”) (October 1987), several experts “expressed their interest in a convention which would be effective, even in the absence of bilateral or regional agreements, but which would, at the same time, encourage and facilitate the development of such agreements.”132 The experts noted “the need for compatibility between the Convention and existing binding international instruments dealing with transboundary movement of hazardous waste,”133 and proposed to require any new bilateral or multilateral agreements to not derogate from the purposes of the Convention.134

In the subsequent three sessions of the Ad Hoc Working Group of Legal and Technical Experts, held in February, June, and November of 1988, the Parties negotiated the parameters of the bilateral, multilateral and regional agreements. The drafts in the first and second sessions both used language encouraging Parties to enter into such agreements “with a view to implementing and further developing the provisions and purpose of this Convention,” provided that they are “compatible with the object and purpose of this Convention.”135 This language of encouragement was dropped in the third session and replaced by “may enter into” such agreements, provided they are “[compatible with the aims of the Convention].” Moreover, at the third session, Parties abandoned an earlier proposal to include 5 scenarios under which a Contracting Party may enter into such an agreement. These scenarios were the following:

1) To implement and further develop the provisions relating to scientific and technical cooperation among contracting parties;

2) To provide specific procedures for notification and response in the case where the hazardous wastes are destined for recycling, re-use or reclamation;

3) To provide specific procedures for notification and response in the case where a series of hazardous waste shipments possessing the same physical and chemical characteristics, from the same site of generation by the same importer, are shipped through the same points of entry and exit to the same disposer;

4) To provide that notice provided to transit countries be less detailed than

131 Basel Convention, Preamble para. 10.132 Report of the Organizational Meeting of the Ad Hoc Working Group of Legal and Technical Experts with a Mandate to Prepare a Global Convention on the Control of the Transboundary Movements of Hazardous Wastes, U.N. Doc. UNEP/WG.180/3 (October 1987)133 Id., at para. 88.134 Id., at para. 94. 135 Report of the Working Group, U.N. Doc. UNEP/WG.182/3 (February 1988), Report of the Ad Hoc Working Group on the Work of its Second Session, U.N. Doc. UNEP/WG.186/3 (June 1988)

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provided by the relevant provision in the Convention;

5) To provide for tacit consent to an import of hazardous wastes where notice has been provided and receipt of such notice has been acknowledged by the country of import.136

The draft adopted at the third session, which closely mirrors the final text of the Convention, replaced these 5 scenarios with an explicit condition that such agreement “not provide for any procedures less stringent than those stipulated in this Convention.”137

Lastly, during the Fifth Session of the Working Group (March 1989), the compatibility criteria was revised by replacing “compatible with the aims of the Convention” with compatible with the ESM requirements of the Convention. These changes as well as insertion of the word “not derogate” were proposed by the Executive Director of UNEP, based on recommendations of a group composed of experts from various developed and developing countries.138 Considering that the above-mentioned terms of Article 11 were revised to be more stringent, this revision implies that an explicit reference to not derogating and being compatible with the ESM requirements of the Convention strengthens Article 11.

At this Fifth Session, the United States stated that it viewed its existing bilateral agreements with Canada and Mexico as compatible with the ESM requirements of the Convention.139

Notably, both agreements incorporate procedures requiring the prior informed consent of the importing country to the shipment of waste and the readmission of wastes by the exporting country if returned by the importing country.140

In sum, the consistent use of “compatible” as a necessary criteria, the later consensus to require no “less stringent” procedures, and the subsequent inclusion of specific reference to ESM requirements demonstrate the importance parties placed on ensuring the same ESM requirements in the bilateral, regional or multilateral agreements. In addition, the travaux préparatoires indicates that the tacit approval procedures were considered in previous drafts of the Basel Convention but were dropped from the Basel Convention as adopted.

3.4 COP Decisions

Since the adoption of the Basel Convention in 1989, the Parties to the Basel Convention have regularly examined the issue of “bilateral, multilateral and regional agreements or

136 Id. 137 Report of the Ad Hoc Working Group on the Work of its Third Session, U.N. Doc. UNEP/WG.189/3 (November 1988)138 Proposal by the Executive Director based on recommendations of a group composed of experts from Austria, Brazil, German Democratic Republic, Lebanon, Norway, Spain, and USA, UNEP/WG.191/3/Add.3 (March 1989).139 Final Report of the Ad Hoc Working Group, UNEP/IG.80/4, para. 28 (March 1989). See also Cyril Uchenna Gwam, Travaux Preparatoires of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 18 J. NAT. RESOURCES & ENVTL. L. 1, 66 (2003); http://www.epa.gov/epawaste/hazard/ international/agree.htm (US EPA website on International Waste Agreements).140 Agreement Between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste and Other Waste, Oct. 28, 1986, available at http://www.basel.int/article11/canada-us-e.doc [hereinafter “US-Canada Agreement”]: art. 3 (Notification to the Importing Country), art. 6 (Readmission of Exports). Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area, Aug. 14, 1983, US-Mex., TIAS No. 10, 827, 22 ILM 1025-26 [hereinafter “La Paz Agreement”]: art. 3 (Notification to the Importing Country), art. 4 (readmission of exports)

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arrangements and their conformity with the stipulations of Article 11 of the Convention.”141 The first consideration of elements to be used to evaluate conformity was made in Decision II/10 on Bilateral, multilateral and regional agreements or arrangements (March 1994), in which the COP requested Parties to report to the Open-Ended Ad Hoc Committee on the conformity of their bilateral, multilateral or regional agreements with the provisions of Article 11 of the Convention. The Decision puts forth certain questions as a guide to measure conformity, while noting, “the agreement must be viewed in its entirety and not strictly provision by provision.”142 It also states, “the purpose of the said agreement and the geographic, legal and economic circumstances of the other Contracting Party(ies) constitute elements of this review.” The proposed considerations established in COP Decision II/10 (March 1994) are as follows:

a. “Does the agreement address the control of the transboundary movement of hazardous wastes and other wastes subject to the Basel Convention?

b. Taking all practicable steps, will the management of hazardous wastes under the agreement or arrangement be such that it will protect human health and the environment against adverse effects?

c. How does the agreement or arrangement take into account the interests of developing countries?

d. Does the agreement or arrangement require prior notification?

e. Does the agreement or arrangement require prior consent?

f. Does the agreement or arrangement provide for the tracking of the wastes?

g. Does the agreement or arrangement provide for the identification of authorities responsible for the implementation of such an agreement?

h. Are the obligations of the Article 11 agreement or arrangement consistent with the control measures related to the transboundary movements of hazardous wastes as provided for by the Basel Convention?

i. Are the wastes covered by the Article 11 agreement or arrangement consistent with the scope of the Basel Convention?”143

Since that time, the issue of conformity with Article 11 has been considered by the Basel COP, the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, the Technical Working Group of the Basel Convention, and the Legal Working Group of the Basel

141 Report of the First Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/1/9, para. 20-21, Appendix III (October 1993). See also Decision II/10 of the Conference of the Parties to the Basel Convention, U.N. doc. UNEP/CHW.2/30 (March 1994) [hereinafter Decision II/10)]; Report of the Second Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/2/14, para. 103-117 (December 1994); Report of the Third Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention , U.N. doc. UNEP/CHW/C.1/3/23, para. 11-16, Annex 1 (June 1997); Report of the Fourth Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/4/1 (June 1999), Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements, U.N. Doc. UNEP/CHW/TWG/LWG/1/3/Rev. 1 (January 2002); Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements, U.N. Doc. UNEP/CHW/TWG/LWG/2/2 (April 2002); Dec. VI/18 of the Conference of the Parties to the Basel Convention, U.N. Doc. UNEP/CHW.6/40 (December 2002); Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements, U.N. Doc. UNEP/CHW.6/15 (December 2002).142 Dec. II/10, U.N. Doc. UNEP/CHW.2/30 (March 1994).143 Dec. II/10 Annex, U.N. doc. UNEP/CHW.2/30 (March 1994).

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Convention. This work culminated in the Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements, prepared by the Technical Working Group and Legal Working Group of the Basel Convention at its Second Joint Meeting (May 2002)144 and submitted to the Sixth Meeting of the COP. However, at this meeting the COP failed to reach a consensus on the Guidance Elements. Some representatives sought to include an explicit reference to compliance with the obligations contained in Article 4 of the Convention, one representative suggested to delay finalization until the Ban Amendment had entered into force, while others believed further discussion was required.145 The COP therefore requested the Open-Ended Working Group to consider the Guidance Elements again and report back to the Seventh Meeting.146 The Open-Ended Working Group subsequently decided to recommend to the COP that it cease work on the guidance elements.147 The subject has not been discussed since that time.

Although a consensus was not reached regarding the Guidance elements for bilateral, multilateral or regional agreements, the Draft Guidance Elements can inform the present discussion on equivalence as it illustrates perspectives by the Parties and the Expert Working Group on the elements of equivalence under Article 11. Under “Purpose” the Draft Guidance Elements state:

“It is important that such agreements or arrangements are [consistent with the relevant provisions of] [and] [are designed to meet the objectives of] the Convention and designed to assist both Parties and non-Parties lacking adequate capacity to manage their own wastes in an environmentally sound manner. An agreement or arrangement should not serve as a mechanism to delay the ratification of the Convention [or [to contravene] [to circumvent] the [respective] legal obligations of Parties under the Basel Convention and [where applicable] its amendments].”148

The Guidance, under the heading ‘Requirements’, recites the requirements outlined in Article 11.1 of the Convention, notably that “agreements or arrangements should not derogate from” the ESM requirements of the Basel Convention and should “stipulate provisions which are not less environmentally sound.” Then under ‘Scope,’ the Guidance states that the scope must have regard to the provisions, including obligations, of the Basel Convention as well as the ESM of wastes subject to the Convention.

The Guidance proposes a non-exclusive list of basic principles that may be included in preparing Article 11 agreements: proximity principle (disposal of waste as near as possible to its source of generation), integrated life-cycle principle, and the precautionary approach, noting that the basic principles that may be taken into account “will vary from country to country, recognizing that protection of environment and human health, cost and economic efficiency are considerations in developing a waste management strategy.” The proposed elements to be included in an Article 11 agreement address the minimization of waste; assessment of disposal facilities and operations; legislation regulating facilities, the responsibilities of different actors involved in the process of disposal; enforcement; and exchange of information, among others.

144 U.N. doc. UNEP/CHW/TWG/LWG/2/2 (23 April 2002).145 Report of the Conference of the Parties to the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal, U.N. doc. UNEP/CHW.6/40, para. 91 (December 2002).146 Dec. VI/18, U.N. doc. UNEP/CHW.6/40 (December 2002).147 U.N. doc. UNEP/CHW/OEWG/3/24 (5 March 2004) and Dec. OEWG-II/3.148 Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements , U.N. doc. UNEP/CHW.6/15 Annex (August 2002) [hereinafter “Guidance Elements”].

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Lastly, a COP Decision worth noting as an indication of the Parties concern with ESM is Decision III/1 (September 1995) on Amendment to the Basel Convention. By this decision, the COP decided to amend the Convention to, first, recognize “that the transboundary movements of hazardous waste, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes as required by this Convention,”149

and second, to prohibit all transboundary movements of hazardous wastes from countries of the Organization for Economic Cooperation and Development (OECD) to non-OECD countries. The “Ban Amendment” has not received sufficient ratifications to enter into force, but it has been implemented in the European Union.150 Indeed it has been implemented in 33 of the 41 countries to which its export ban applies (Annex VII countries). The Ban Amendment shows the Parties concern for developing countries needs and the need for more stringent measures to achieve the objectives of the Convention in the face of the risks of movements of hazardous waste to countries that do not have the capacity to deal with waste in an environmentally sound manner.

3.5 Practice of States with respect to Art 11 Agreements

Article 11 of the Basel Convention is the exclusive mechanism under the Basel Convention which allows for bilateral, regional or multilateral agreements to supersede Basel in regulating the transboundary shipments of hazardous waste. Such agreements are called Article 11 Agreements. In accordance with Article 11 of the Convention, State Parties have notified the Basel Secretariat of the different bilateral, multilateral and regional agreements and arrangements they have entered into that fall under the purview of Article 11.151 These agreements and arrangements share certain commonalities, which can be instructive as to what Parties view as required for in an Article 11 Agreement.

Prior to the Basel Convention entering into force, international agreements regulating the transboundary shipment of hazardous waste included bilateral agreements between the United States and Mexico152 and the United States and Canada153 as well as a regional agreement among the OECD countries. During the negotiations leading to the Basel Convention, the United States commented that its existing bilateral agreements with Canada and Mexico are compatible with the Convention’s ESM requirements.154 Although the US has signed but not ratified the Basel Convention, both Canada and Mexico are Parties and have an obligation to ensure that their Article 11 Agreements are compatible with the ESM requirements of the Convention. According to the US EPA, its international agreements “share the basic principles of notification to the government of the exporting country, government-to-government notification to the importing government, and the consent of the importing government for exports and imports of hazardous wastes.”155

149 Dec. III/1, U.N. doc. UNEP/CHW.3/35 (September 1995)150 Regulation (EC) No. 1013/2006 on shipments of waste.151 Article 11 agreements under the Convention, available at http://www.basel.int/article11/index.html.152 La Paz Agreement, supra note 147.153 US-Canada Agreement, supra note 147. 154 Cyril Uchenna Gwam, Travaux Preparatoires of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 18 J. NAT. RESOURCES & ENVTL. L. 1, 66 (2003). See also http://www.epa.gov/epawaste/hazard/international/agree.htm (US EPA website on International Waste Agreements).155 International Trade in Hazardous Waste: An Overview (EPA 305-K-98-001/November 1998) available at http://www.epa.gov/compliance/monitoring/programs/rcra/importexport.html. See also Theodore Waugh, Where do We Go From Here: Legal Controls and Future Strategies for Addressing the Transportation of Hazardous Wastes Across International Borders, 11 FORDHAM ENVTL. L. J. 477, 509 (1999).

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The one multilateral agreement under Article 11 is the agreement among OECD member countries established by Council Decision C(2001)107/FINAL on the control of transboundary movements of wastes destined for recovery operations.156 This decision is generally regarded as compatible with the ESM of wastes as required by the Basel Convention and valid pursuant to Article 11 paragraph 2 of the Basel Convention.157 An earlier version of this agreement existed prior to the entering into force of the Basel Convention and established a notice and consent regime governing the transboundary movement of hazardous wastes for recovery among OECD member states.158 The current agreement resulted from an effort by the OECD “to harmonize the procedures and requirements of this OECD Decision with those of the Basel Convention and to eliminate duplicate activities between the two international organizations.”159 Such revisions include the harmonization of waste lists and terms such as “waste” and “hazardous waste” as well as the addition of provisions concerning the return of wastes, financial guarantees, and a requirement for a recovery facility to provide a certificate of recovery after completion of the recovery operation, among others.160

Following the entering into force of the Basel Convention on May 5, 1992, 10 bilateral agreements and 6 regional agreements have been reported to the Basel Secretariat as agreements under the Article 11.161 This includes, for example, the Bamako Convention, a regional agreement prohibiting the importation of hazardous wastes into Africa and regulating the movement of hazardous waste within Africa.162 The Bamako Convention limits the transboundary movement of hazardous wastes within the African continent by, for example, adopting a system of prior informed consent,163 obligating the parties to prevent export of hazardous waste for disposal unless the intended transport and disposal methods would be performed in an environmentally sound manner,164 and criminalizing the importation of hazardous waste into Africa.165 Notably, the Convention uses the same definition of ESM as the Basel Convention.166

The practice of State Parties with respect to Article 11 of the Basel Convention illustrates that Parties have sought to comply with, and in some cases impose stricter controls than, the Basel

156 OECD Dec. C(2001)107/FINAL on the Control of Transboundary Movements of Wastes Destined for Recovery Operations, adopted on 14 June 2001 [C/M (2001) 13] and on 28 February 2002 as amended by [C/M (2002) 4]. [hereinafter “OECD Decision C(2001)107/FINAL”]. The agreement is implemented in the EU by Regulation (EC) No. 1013/2006 and Regulation (EC) No. 1418/2007, which replaced EU Council Regulation No. 259/93 (Feb. 1, 1993).157 See OECD Guidance Manual for the Control of Transboundary Movements of Recoverable Wastes 9, available at www.oecd.org/dataoecd/57/1/42262259.pdf. [hereinafter “Guidance Manual”] 158 Decision of the Council Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations, OECD Dec. C(92)39/FINAL (Mar. 30, 1992). See also EU Council Regulation No. 259/93 (Feb. 1, 1993) (implementing the requirements of the Basel Convention and the OECD Decision).159 Guidance Manual 9. See also OECD Dec. C(2001)107/FINAL, preamble para. 10, 12.160 Guidance Manual 9. See also OECD Dec. C(2001)107/FINAL Sections 3.3.1, 3.1, 6.8, 5.3, 5.5.4, respectively.161 Article 11 agreements under the Convention, available at http://www.basel.int/article11/index.html, supra note 86.162 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, adopted on Jan. 30 1991, entered into force on April 22, 1998, 30 ILM 773 (1991) [hereinafter “Bamako Convention”].163 Bamako Convention, art. 6.164 Bamako Convention, art. 4(3)(h)-(k).165 Bamako Convention, art. 4(1).166 Compare Bamako Convention, art. 1(10), and Basel Convention, art. 2(8).

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Convention in regulating the transboundary movement of hazardous waste by adopting common elements such as the requirement of Prior Informed Consent. Moreover, agreements such as the Bamako Convention and the OECD Council Decision demonstrate not only the possibility of more stringent standards but also the sentiment among States that stricter controls are necessary in order to properly govern the transboundary movement of hazardous wastes.

3.6 Conclusion

Article 11 of the Basel Convention 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. The Hong Kong Convention therefore must meet the criteria for a valid Article 11 Agreement. As the above analysis has shown, Article 11 requires the agreement to ”stipulate provisions that are no less environmentally sound than that of the Convention, in particular taking into account the needs of developing countries.” The travaux of the Basel Convention, COP Decisions, and the practice of States shows that an Article 11 Agreement must contain, at minimum, measures to ensure the ESM of waste and a strict control system based on prior informed consent.

4. CRITERIA TO DETERMINE EQUIVALENCE UNDER THE BASEL CONVENTION

Basel COP 9, by Decision IX/30 (June 2008), requested comments on appropriate criteria to be used by the Open-ended Working Group in assessing “whether the ship recycling Convention, as adopted, establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety.”167 The request recalled the principles of the Basel Convention, in particular the need to minimize the generation and transboundary movements of hazardous waste, the need to ensure the ESM of such wastes, and the need to prevent the export of hazardous wastes to countries without their prior informed consent.

4.1 Status of the Debate over Equivalence Criteria

A number of States and NGOs have elaborated on the criteria to determine equivalence under Article 11 of the Basel Convention, including with respect to the particular issue of shipbreaking. The most common criteria found in the submissions by State Parties and relevant stakeholders168 are the following:

1) Prior Informed Consent by the recycling state;

2) ESM of wastes by the establishment of mandatory standards, authorization and certification of facilities and ships, and inspection of facilities to ensure compliance with ESM;

3) Minimization of the generation of hazardous wastes;

4) Traceability of hazardous wastes by way of a tracking system;

5) Sovereign right of states to prohibit import / export;

6) Enforcement authority to tackle illegal shipments and violations;

7) Exchange of Information among parties, particularly relating to administrative,

167 Dec. IX/30, supra note 1. 168 Environmentally sound management of ship dismantling: comments received pursuant to decision IX/30, U.N.Doc. UNEP/CHW/OEWG/7/INF/15 (1 March 2010).

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enforcement and emergency matters;

8) No trade or transfer of waste between Parties and non-Parties absent an agreement or arrangement guaranteeing equivalent Basel standards.

Despite these commonalities, there are also significant differences in the submissions to date. The EU and the United States shared the opinion that equivalence is to be measured by the achievement of the objective of the Basel Convention, namely the protection of human health and the environment against the adverse effects resulting from the generation, transboundary movement and management of hazardous wastes. The EU submitted that the Parties’ decision to use the term “equivalent level of control” indicates “that they did not insist on an ‘identical’ level of control and did not require the Ship Recycling Convention to incorporate necessarily the same elements of control and enforcement as are established under the Basel Convention.”169

By contrast, the NGO Platform on Shipbreaking submitted that equivalence requires the IMO Convention to be measured against the control obligations of the Basel Convention, where “control” is interpreted in a broad sense as a “concept encompassing the entire set of obligations, rights, objectives and principles from which control is derived.”170 While acknowledging that “equivalent” does not necessitate identical regimes, the Platform suggested that equivalence requires, first and foremost, replication of the fundamental elements of the Convention, which includes scope, fundamental principles, rights of parties, and key objectives. In addition, equivalence requires replication of only the net practical effect of non-fundamental elements of the Convention such as specific obligations and requirements to implement the principles and objectives.

Based on these submissions, the OEWG, after considerable debate, reached an agreement on the criteria to be used for a preliminary assessment of equivalence.171 The OEWG considered these criteria to be “an appropriate basis for further work, including discussion, to implement decision IX/30 [June 2008].”172 The criteria agreed upon are the following:

Scope and applicability Coverage of ships / wastes


Management of life cycle of ship

Relationship between Party and non-Party

Jurisdiction

Control Authorizations and Certifications

Surveying, auditing and inspections

Designation of competent authorities / focal points



Traceability and transparency of hazardous materials until final treatment /

169 Environmentally sound management of ship dismantling: compilation of comments received pursuant to decisions VIII/11 and OEWG-VI/7, U.N. doc. UNEP/CHW.9/INF/29 para 77, (29 April 2008).170 Id., at para. 4. Proposed criteria by the NGO Platform on Shipbreaking are derived from the following sources: Basel Convention, art. 11; Dec. III/1, U.N. doc. UNEP/CHW.3/35 (September 1995); Dec. VII/26, U.N. Doc. UNEP/CHW.9/39 (June 2008); Dec. IX/30, U.N. Doc. UNEP/CHW.9/39 (June 2008).171 Dec. OEWG-VII/12, supra note 9.172 Id. See also Dec. IX/30, supra note 1.

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ultimate disposal


Certification of disposal / statement of completion of ship recycling

Other control mechanisms

Enforcement Illegal shipments, violations and sanctioning, including criminalization, of illegal traffic

Dispute settlement

Duty to re-import

Exchange of information by Parties / Cooperation and coordination

Access to and dissemination of information



Among Parties to advance ESM through information exchange and technical assistance and capacity-building on best practices, technical guidelines, monitoring and public awareness.

4.2 Gaps in OEWG criteria

The criteria proposed by the OEWG reflect the core proposals submitted by Parties in response to Decision IX/30 (June 2008). However, the criteria are lacking in several respects.

First, the criteria must keep in mind the requirements under Article 11 of the Basel Convention, as the Hong Kong Convention is evaluated as a multilateral agreement pursuant to Article 11. Article 11 requires the agreement to “not derogate from the environmentally sound management of hazardous wastes and other wastes as required by the Convention” and “stipulate provisions which are not less environmentally sound than those provided for by this Convention, in particular taking into account the interests of developing countries.”173 As established above, this means that the Hong Kong Convention must integrate the provisions of the Basel Convention which are considered essential to the achievement of ESM in general and required to ensure ESM in shipbreaking in particular, as well as stipulate provisions which take into account the interests of developing countries.

The Basel Convention seeks to achieve ESM through “an integrated life-cycle approach, which involves strong controls from the generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery, and final disposal.”174 ESM requires measures to minimize the generation of waste175 as well as minimize and strictly control the transboundary movement of waste.176 Indeed, the obligation to minimize transboundary movement of hazardous waste was cited in Basel COP Decision VII/26 (2004) and Decision IX/30 (2008). In this respect, the assessment criteria should also address:

1) the obligation of States to minimize transboundary movement of waste to the extent possible consistent with ESM (national self-sufficiency principle)

2) the regulation of downstream facilities involved in waste management and disposal

173 Basel Convention, art. 11174 Technical Guidelines, supra note 44, at 23. 175 Basel Convention, Preamble 3, Article 4.2 (a).176 Basel Convention, Preamble 10 and 18, Article 4.2 (d), Article 4.9.

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Consideration of these additional elements will allow for a proper analysis of equivalence of the Hong Kong Convention under Article 11 of the Basel Convention, particularly with respect to ESM.

The Basel Convention’s perspective on how to achieve ESM in ship recycling in particular can be found in the “Technical Guidelines for the environmentally sound management of the full and partial dismantling of ships”.177 In general, the Guidelines state that the achievement of ESM requires addressing not only the processes directly related to the actual dismantling facility but also aspects related to the ship undergoing dismantling and the crew undertaking the work. 178

ESM includes measures to prevent the generation of waste by, for example, ‘clean’ ship design179; preparations on the ship prior to dismantling such as the making of an inventory list and pre-cleaning; functionalities in the ship dismantling facility such as containment; and the establishment of an Environmental Management Plan.180 It is therefore important to examine whether the Hong Kong Convention requirements are consistent with these measures.

Article 11.1 also requires the agreement to take into consideration “the interests of developing countries.” It must be remembered that the Basel Convention was adopted as a response to mismanagement and at times unrestrained dumping of hazardous wastes in developing countries as a result of cost externalization by waste generators in industrialized countries. This is reflected in the Preamble of the Basel Convention which “[recognizes] the increasing desire for the prohibition of transboundary movements of hazardous wastes and their disposal in other States, especially developing countries” and “[takes] into account … the limited capabilities of the developing countries to manage hazardous wastes and other wastes.”181 Thus, the Art. 11 agreement must take into account the special needs and vulnerabilities of developing countries in light of their lack of capacity to manage waste.

Second, the criteria for equivalence must address the elements requested by the Basel COP for inclusion in the Hong Kong Convention. These include “mandatory requirements, including a reporting system for ships destined for dismantling, that ensure an equivalent level of control,”182 “mandatory requirements to ensure the environmentally sound management of ship dismantling, which might include pre-decontamination within its scope,”183 and “clear responsibilities of all stakeholders in ship recycling, including ship owners, ship recycling facilities, flag states and ship recycling States, also taking into account their current capacity and the common but differentiated responsibilities and sovereign rights of the Parties.”184 With respect to ESM, the COP encouraged the IMO “to promote the substitution of harmful materials in the construction and maintenance of ships by less harmful or, preferably, harmless materials, without compromising the ships’ safety and operational efficiency.”185 In addition, in the context of the Hong Kong Convention, the COP encouraged Parties “to fulfill their obligations under the Basel Convention where applicable, in particular their obligations with respect to prior informed consent, minimization of transboundary movements of hazardous wastes and

177 Technical Guidelines, supra note 44.178 Technical Guidelines, supra note 44, at 24. 179 Id.180 Technical Guidelines, supra note 44, at 9-11.181 Basel Convention, preamble, para. 7 and 20.182 Dec. VII/26, supra note 1, at para. 5.183 Dec. VII/26, , supra note 1, at para. 5. See also Dec. VIII/11, supra note 1, at para. 9.184 Dec. VIII/11, , supra note 1, at para. 5. See also Dec. IX/30, supra note 1, at para. 3.185 Dec. IX/30, supra note 1.

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the principles of environmentally sound management,”186 and “invited Parties, especially developed States, to encourage the establishment of domestic ship recycling facilities.”187

4.3 Conclusion

The criteria agreed by the OEWG capture most of the essential elements of the Basel Convention which should be considered in an evaluation of equivalence. Based on the requirements set forth by Article 11 of the Basel Convention, the Basel Technical Guidelines for the ESM of ships, and Decisions by the Basel COP, the assessment criteria should also consider the obligation of states to minimize the transboundary movement of hazardous waste and other wastes, the regulation of downstream facilities, and the interests of developing countries.

5. EVALUATION OF EQUIVALENCE OF THE HONG KONG CONVENTION

The following is an assessment of whether the Hong Kong Convention provides an equivalent level of control and enforcement as that established by the Basel Convention in its entirety, taking into account: “(i) the special characteristics of ships and international shipping; (ii) the principles of the Basel Convention and the relevant decisions of the Conference of the Parties; and (iii) the comments submitted by Parties and other relevant stakeholders, as appropriate.”188

In the form of the questions that follow, this analysis evaluates the Hong Kong Convention189 on the basis of the criteria articulated by the Basel Convention OEWG. In addition, the table in the annex provides a comprehensive examination of the issues relevant to the determination of equivalence, comparing the Basel and Hong Kong Conventions, in accordance with Decision OEWG-VII/12 (May 2010).

5.1 Criteria Cluster 1: Scope and Applicability

5.1.1 “Coverage of wastes and identification of hazardous materials”

By Decision VII/26 (October 2004), the Basel COP determined that any ship that is intended for disposal constitutes a waste, regardless of its use. However, the Hong Kong Convention excludes from its jurisdiction government owned non-commercial ships and warships as well as ships under 500GT.190 Although the Hong Kong Convention requires each Party “to ensure by the adoption of appropriate measures that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable,”191 such a categorical exclusion based on usage or size is not consistent with the Basel Convention192 and the caveat of “reasonable and practicable” dilutes any requirement of consistency with the Basel Convention’s standards.

The Hong Kong Convention also falls short in its coverage of hazardous materials found in ships, several of which constitute persistent organic pollutants. The materials required to be controlled or identified in the inventory of hazardous waste193 do not encompass all of the

186 Dec. VII/26, supra note 1, at para. 1. 187 Dec. VII/26, supra note 1, at para. 3.188 Dec. IX/30, supra note 1. 189 The Articles, Regulations and Appendixes of the Hong Kong Convention are integral elements of the Convention, and thus equally binding on the Parties, unless expressly provided for otherwise. Hong Kong Convention, article 1.5.190 Hong Kong Convention, arts. 3.2 and 3.3191 Hong Kong Convention, art. 3.3192 See Marcos A. Orellana, “Shipbreaking and Le Clemenceau Row,” ASIL Insights, Vol. 10, Iss. 4 (Feb. 24, 2006), available at http://www.asil.org/insights060224.cfm. 193 Hong Kong Convention, Regulation 5.

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wastes defined as hazardous waste or other wastes under the Basel Convention.194 In particular, they ignore certain Basel wastes that have been identified by the Basel Technical Guidelines195

as relevant to shipbreaking as well as certain toxic and hazardous materials identified by the Special Rapporteur196 as normally present on end-of-life ships. The purpose of the Inventory is to provide ship-specific information on the actual Hazardous Materials present on board, in order to protect health and safety and to prevent environmental pollution at Ship Recycling Facilities. This is similar to the function of the movement document under the Basel Convention,197 but given its narrower coverage of dangerous substances, the Inventory mandated by the Hong Kong Convention does not provide sufficient information to ensure an equivalent level of protection.

The Hong Kong Convention contains a procedure for proposing Amendments to the List of Hazardous Materials controlled by the Hong Kong Convention under Appendixes 1 and 2. However, this procedure allows for the consideration of cost to international shipping and other relevant sectors, along with the environment and human health.198 Such consideration is not consistent with the Basel Convention because the Basel Convention aims to control all wastes that have been identified as hazardous, possess hazardous characteristics, or are defined as hazardous by the domestic legislation of a Party of export, import, or transit, regardless of the economic cost of such regulation.199

5.1.2 “Management of life cycle of the ship”

The Basel Convention adopts an integrated life-cycle approach to achieve the environmentally sound management (ESM) of waste, requiring strong controls from the generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery and final disposal. The Hong Kong Convention introduces measures that control the ship from its design, through construction, operation and dismantlement, but it does not go far enough to ensure the ESM of waste generated by shipbreaking.

For example, the Hong Kong Convention makes reference in the preamble “of the need to promote the substitution of hazardous materials in the construction and maintenance of ships by less hazardous, or preferably, non-hazardous materials, without compromising the ships’ safety, the safety and health of seafarers and the ships’ operational efficiency.”200 However, the controls of hazardous materials imposed by the Hong Kong Convention do not provide controls additional to existing multilateral environmental agreements, and are weaker than the substitution principle of the Basel Convention.201

Moreover, the Hong Kong Convention focuses exclusively on ships and Ship Recycling Facilities and fails to properly address the standards applicable to downstream facilities and their management of waste generated from the recycling activity.202 The Hong Kong Convention

194 See Basel Convention, art. 1 and Annexes I, II, III.195 Technical Guidelines, supra note 44, at 28-29 (Table 3: Typical Releases from ship-dismantling industries) and Appendix B “List of Hazardous Wastes and Substances under the Basel Convention that are Relevant to Ship Dismantling.”196 Report of the Special Rapporteur, supra note 12, para. 19197 See Basel Convention, art. 4.7(c) and Annex VB.198 Hong Kong Convention, Regulation 6(4.1.1.4).199 Basel Convention, art. 1.1.200 Hong Kong Convention, Preamble para 8.201 Basel Convention, Preamble para 3, art. 4.2(a)202 See Hong Kong Convention, art. 2.10 (defining “Ship Recycling” to mean “the activity of complete or partial dismantling of a ship at a Ship Recycling Facility in order to recover components and materials for

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requires the authorized Ship Recycling Facilities “to provide for and ensure safe and environmentally sound management of all Hazardous Materials and wastes removed from the ship recycled at that Ship Recycling Facility,”203 and further requires the wastes to only be “transferred to a waste management facility authorized to deal with their treatment and disposal in a safe and environmentally sound manner.”204 But the Convention is unclear as to who authorizes these downstream facilities and based on what standards. Under the Basel Convention, wastes transferred to downstream facilities remain subject to the controls of the Convention,205 and the Basel Technical Guidelines state that disposal facilities must take into account certain design criteria, in order to minimize the negative effect on the surrounding environment.206 The Hong Kong Convention fails to address how ESM will be guaranteed at this final stage of the ship’s disposal, and therefore fails to provide an equivalent level of control.

While the Hong Kong Convention fails to adequately address downstream facilities, the Basel Convention and its accompanying ESM provisions will continue to apply to the treatment of wastes by downstream facilities after the wastes have been removed from the ships.207

5.1.3 “Relationship between Parties and non-Parties”

The Hong Kong Convention allows for ships flying the flag of non-Parties to the Convention to be recycled in a Ship Recycling Facility authorized under the Convention, under the condition that it be given “no more favorable treatment.” The vagueness of the requirement is in stark contrast to the Basel Convention where a Party is not permitted to export or import hazardous wastes from a non-Party, except under an Article 11 Agreement.208 As discussed above, Article 11 explicitly requires the alternative agreement or arrangement to “not derogate” from the ESM of waste under the Basel Convention and stipulate provisions which are “no less environmentally sound.” The Hong Kong Convention’s provisions on the relationship of Parties with non-Parties is not sufficiently stringent, as compared with the Basel Convention, in order to ensure that the non-Party acts in conformity with the standards set by the Hong Kong Convention.

5.1.4 “Jurisdiction of the Convention”

The jurisdiction of the Basel Convention extends from the State of export through any transit States, to the State of import. The transit State need not be a Party to be considered a ‘concerned state’ warranting notification.209 In contrast, the Hong Kong Convention limits its jurisdiction to the Flag State of the ship, or other authority under which the ship is operating, any Port States which are Parties, and the State of the Ship Recycling Facility.210 Unlike Basel, the Hong Kong Convention does not address the role of transit states other than Party Port States.

reprocessing and re-use, whilst taking care of hazardous and other materials, and includes associated operations such as storage and treatment of components and materials on site, but not their further processing or disposal in separate facilities.”) and art. 2.11 (defining “Ship Recycling Facility” to mean “a defined area that is a site, yard, or facility used for the recycling of ships.”)203 Hong Kong Convention, Regulation 20.3.204 Hong Kong Convention, Regulation 20.4205 Basel Convention, art. 2.2 and 2.5.206 See Technical Guidelines, supra note 44, sec. 5.3207 See Basel Convention, art. 4.2 (a)-(c).208 Basel Convention, arts. 4.5 and 11.209 Basel Convention, arts. 2.13 and 6.1.210 Hong Kong Convention, arts. 2.2, 2.3, and 8.

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Additionally, the Hong Kong Convention allows for States comprising of two or more territorial units to declare at the time of signature, ratification, acceptance, approval or accession whether the Convention extends to all territorial units or only some.211 This creates a potential legal loophole because certain States may operate ship recycling facilities in a port of their territory where they do not apply the Hong Kong Convention. This is not consistent with providing an equivalent level of control.

Furthermore, the jurisdiction of the Hong Kong Convention is also limited to certain types and size of ships which have operated in more than one jurisdiction.212 Such exclusion of ships is not consistent with Basel.

5.2 Criteria Cluster 2: Control

The Basel Convention system of control, as embodied in Articles 4 and 6 of the Convention, is intended to achieve the protection of human health and the environment by requiring Parties to minimize the generation and transboundary movement of hazardous waste, ensure the ESM of waste, and abide by a strict notification procedure based on prior informed consent. By Article 11, the Parties to the Basel Convention laid down that such protection requires the Article 11 agreement to “not derogate” from the ESM requirements of the Basel Convention. An equivalent level of control therefore requires a control system that is consistent with the Basel Convention’s ESM requirements.

5.2.1 Authorizations, Surveys and Certifications

Both the Hong Kong Convention and the Basel Convention require the authorization of facilities where the waste is managed and utilize guidelines to set performance standards for shipbreaking operations. Under the Basel Convention, Parties must prohibit persons under its national jurisdiction from transporting or disposing of hazardous wastes unless so authorized. 213

Parties of the Hong Kong Convention are directed to authorize Ship Recycling Facilities in accordance with the Convention’s Regulations,214 and are subsequently directed to establish a mechanism for authorizing Ship Recycling Facilities215 taking into account the voluntary guidelines to be developed by the IMO.216 Parties have a general obligation to ensure that Ship Recycling Facilities under their jurisdiction comply with the requirements of the Convention,217

and must establish legislation, regulations and standards to ensure the Ship Recycling Facilities are designed, constructed and operated in a safe and environmentally sound manner.218

However, the lack of mandatory minimum standards on authorization could lead to the initial authorization of facilities that are not properly equipped to conduct ESM. The UN Special Rapporteur has noted that the Hong Kong Convention is vague on the standards for authorizing ship-recycling facilities,219 and therefore insufficient to protect human health and the environment against the major hazards posed by shipbreaking.

211 Hong Kong Convention, art. 16.4.212 Hong Kong Convention, art. 3.213 Basel Convention, arts. 2.5 and 4.7(a).214 Hong Kong Convention, art. 6.215 Hong Kong Convention, Regulation 15.2.216 Hong Kong Convention, Regulation 16.217 Hong Kong Convention, art. 4.2.218 Hong Kong Convention, Regulation 15.1 and 20. 219 See Report of the Special Rapporteur, supra note 12, at para. 62(a).

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For instance, the predominant method of shipbreaking at this time is beaching. According to the UN Special Rapporteur, the beaching method “fails to comply with generally accepted norms and standards aimed at ensuring the protection of workers and the environment from the adverse effects caused by the discharge of hazardous materials present on end-of-life vessels into the environment.”220 This has been recognized by the Basel Technical Guidelines as well as by certain governments and companies.221 The Special Rapporteur has recommended that the Hong Kong Convention call for the gradual phase-out of the beaching method and move toward alternative methods more in line with ESM. The Hong Kong Convention’s failure to address whether and how it would authorize recycling facilities that rely on non-ESM procedures such as the beaching method indicates a failure in its ability to ensure ESM consistent with Basel.222

The International Certificate on Inventory of Hazardous Materials and the International Ready for Recycling Certificate, both required to be issued by the Administration (Flag State) prior to recycling, aim to ensure that the Ship Recycling Facility has the capacity to recycle the ship. They are a step in the right direction, but the regulations do not sufficiently mandate that the facility be able to recycle the ship in an environmentally sound manner. Specifically, the final survey conducted by the Administration, which is a prerequisite to the issuance of the International Ready for Recycling Certificate, does not explicitly require that the Ship Recycling Plan developed by the Ship Recycling Facility guarantee ESM, nor that the Ship Recycling Facility be able to manage the waste in an environmentally sound manner. Instead, the final survey must simply verify 1) a proper Inventory of Hazardous Materials, 2) that the Ship Recycling Plan “reflects the information contained in the Inventory of Hazardous Materials … and contains information concerning the establishment, maintenance and monitoring of Safe-for-entry and Safe-for-hot work conditions, and 3) that the Ship Recycling Facility holds a valid authorization.223 Because the issuance of the International Ready for Recycling Certificate is solely based on the successful completion of the final survey,224 and such issuance gives the green light for the start of recycling,225 it is clear that the Certificate does not serve to sufficiently guarantee the ESM of the ship. This is inconsistent with the obligations under the Basel Convention whereby an export state must not allow the export of hazardous waste if it has reason to believe that their environmentally sound management and disposal would not be guaranteed in the prospective State of import.226

220 Report of the Special Rapporteur, supra note 12, at para 62(c). See also NGO Platform on Shipbreaking, OFF THE BEACH! Safe and green dismantling, 2009. 221 See Technical Guidelines, supra note 44, at 10 (requiring ship dismantling yards to have containment measures); Resolution on an EU Strategy for Better Ship Dismantling, EUR. PARL. DOC. P6_TA(2009)0195 (calling “for an explicit prohibition on 'beaching' of end-of-life ships,” and considering “that any technical assistance to South Asian countries within an EU framework should further aim at the phasing out of this grossly unsustainable and seriously flawed breaking method.”); Maersk wants to end ‘Beachings,’ MAERSK (July 1, 2010, 2:46PM), http://www.maersk.com/AboutMaersk/News/Pages/20100701-145601.aspx.222 Proposals to ban beaching, presented by NGOs, were rejected during the negotiations of the Hong Kong Convention. See Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Ensuring sustainable green and safe ship dismantling – concerning beaching and the establishment of a mandatory fund, submitted by Greenpeace International and FOEI, SR/CONF/14 (2) (Feb. 9, 2009), at para. 3-6.223 ? Hong Kong Convention, Regulation 10.4.224 Hong Kong Convention, Regulation 11.11.225 Hong Kong Convention, Regulation 24.3226 Basel Convention, arts. 4.2(e) and 4.10.

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5.2.2 “Designation of competent authorities / focal points”

Under the Hong Kong Convention, the competent authority designated by the Party is responsible for receiving notification of the proposed transboundary movement of hazardous waste from the Ship Recycling Facility under its jurisdiction, approving the draft Ship Recycling Plan before recycling can commence, and notifying the Administration (Flag State) upon completion of recycling.227 Although the notification procedure adopted by the Hong Kong Convention is quite different from that of the Basel Convention, as elaborated below, the designation of competent authorities under the Hong Kong Convention is consistent with the Basel Convention.

5.2.3 Mandatory requirements

The Hong Kong Convention has been structured so as to leave much of the details of the standards to voluntary guidelines. The following guidelines have been adopted or are being developed to assist in the Convention’s implementation:

1. Guidelines for the development of the Inventory of Hazardous Materials, adopted by resolution MEPC.179(59);

2. Guidelines for safe and environmentally sound ship recycling;

3. Guidelines for the development of the ship recycling plan;

4. Guidelines for the authorization of ship recycling facilities;

5. Guidelines for survey and certification;

6. Guidelines for inspection of ships.

Although the development of these guidelines is important, it disregards the submissions by the Basel Parties emphasizing the importance of ESM and the inclusion of “mandatory requirements to ensure the environmentally sound management of ship dismantling, which might include pre-decontamination within its scope.”228

The COP to the Basel Convention agreed on the necessary measures to ensure ESM in ship recycling by the adoption of the “Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships.” Yet, the Hong Kong Convention fails to fully incorporate and make mandatory the ESM requirements stipulated by the Technical Guidelines. In particular, the Hong Kong Convention fails to mandate preparations on the ship prior to dismantling such as pre-cleaning and functionalities in the ship dismantling facility such as containment.229

It should be noted that the Preamble of the Hong Kong Convention makes reference to the Technical Guidelines, and the Convention also states that “parties shall take measures to implement the requirements of the regulations … taking into account … relevant and applicable technical standards, recommendations and guidance developed under the Basel Convention.”230

But such consideration is only voluntary.

227 Hong Kong Convention, art. 2.3 and Regulation 24. 2 and 25.228 Dec. VII/26, supra note 1, at para. 5. See also Dec. VIII/11, supra note 1, at para. 9.229 Technical Guidelines, supra note 44, at 9-11.230 Hong Kong Convention, Regulation 3.

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5.2.4 “Ability to prohibit import or export”

The Basel Convention explicitly allows Parties to prohibit the export or import of hazardous wastes or other wastes for disposal.231 In contrast, the Hong Kong Convention does not consider the concept of import or export. The Hong Kong Convention allows the Administration (Flag State) to prohibit recycling by denying the issuance of an International Certificate for Ready Recycling, but it does not have a recognized ability to prohibit export. Such denial may be based on deficiencies discovered during the final survey with respect to the Inventory of Hazardous Materials, the Ship Recycling Plan (SRP), or authorization of the Ship Recycling Facility.232 The Recycling State similarly has the ability to prohibit recycling by denying approval of the draft SRP,233 but it does not have a recognized ability to prohibit import. This presents a significant problem, as ships could theoretically be transferred to the territory of the Recycling State and abandoned if the SRP is denied. This is exacerbated by the absence in the Hong Kong Convention of a “duty to reimport” as exists under the Basel Convention, as elaborated below.

5.2.5 “Traceability and transparency of hazardous materials until final treatment / ultimate disposal”

The Basel Convention requires Parties to use a movement document to ensure traceability of hazardous materials.234 The content of the movement document is outlined in Annex VB of the Convention. The Hong Kong Convention’s equivalent of the movement document is the International Ready for Recycling Certificate, issued by the Administration (Flag State) to mark the beginning of the movement. The International Ready for Recycling Certificate must contain the particulars of the ship, the SRF, the IHM, and the SRP after approval by the Recycling State.235 When the recycling is to begin, the SRF must issue a Report of Planned Start of Ship Recycling to the Competent Authorities of the Recycling State, containing the name and address of the SRF as well as the International Ready for Recycling Certificate. Although the two processes differ in that the SRF need not sign the Certificate upon receipt of the waste, the issuance of the Report is functionally equivalent.

However, it must be remembered that under the Hong Kong Convention, the transparency and traceability of the hazardous materials is limited to the Ship Recycling Facility (SRF). Hazardous materials that are transferred out of the SRF for treatment and disposal are no longer traceable.

5.2.6 “Prior notification and prior consent”

The Basel Convention requires Parties to prohibit export if the State of import has not consented in writing to the specific import.236 In contrast, the Hong Kong Convention adopts a reporting mechanism that does not require the Ship Recycling State to consent to each ship which enters its jurisdiction.

Under the Hong Kong Convention, the Ship Recycling Facility (SRF) must notify the Competent Authority of the Recycling State of the shipowner’s intent to recycle the ship at the facility and provide details on the ship, the inventory of hazardous materials, and the draft Ship Recycling Plan (SRP).237 In order for the shipbreaking to begin, the Competent Authority must approve the

231 Basel Convention, art. 4.1.232 Hong Kong Convention, Regulation 10.4233 Hong Kong Convention, Regulations 9 and 24.234 Basel Convention, arts. 4.7(c) and 6.9.235 Hong Kong Convention, Appendix 4.236 Basel Convention, art. 4.1(c) and 6.237 Hong Kong Convention, Regulation 24.2.

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draft SRP,238 but Parties are able to choose either explicit or tacit approval of the SRP in contradiction to the PIC procedure of the Basel Convention which requires explicit approval for each waste shipment.

The inadequacy of tacit approval with the objective of the Basel Convention was acknowledged during the negotiations of the Basel Convention.239 The Basel Secretariat also noted during the Second Session of the Joint ILO/IMO/BC Working Group on Ship Scrapping that in order to provide for an equivalent level of control, the IMO should consider mandating an IMO Guideline which states:

“The recycling State should check that any potentially hazardous wastes which might be generated during the recycling operation can be safely handled before it accepts the ship for recycling.”240

This recommendation is reflected in the requirement that the Recycling State approve the draft SRP prior to recycling, as assurance that the capabilities of the Ship Recycling Facility match the ship to be recycled. But the option of tacit approval undermines the protections provided by this provision.

The Basel Convention not only requires the explicit consent of the import state but also of the transit states.241 The Hong Kong Convention fails to require notification to and consent by the transit state. The transit state does have some rights to inspect ships as a Port State, in order to determine whether there is on board either an International Certificate on Inventory of Hazardous Materials or an International Ready for Recycling Certificate,242 but the Hong Kong Convention does not expressly require the consent of Port States or other transit states for the transboundary movement of the end-of-life vessel. In other words, such states are not authorized to consent or deny a ship’s entry. The Basel Secretariat commented on this deficiency during the Joint Working Group session referenced above, noting that the Basel Convention control system requires the prior informed consent of transit states and recommending the following to the IMO:

“To establish a reporting system for ships destined for dismantling that ensures a level of control equivalent to that under the Basel Convention, the question of transit States could be addressed.”243

Accordingly, the Hong Kong Convention fails to provide an equivalent level of control by excluding transit States from the operation of control protections, as well as by establishing a tacit consent approval mechanism that undermines the safeguards established by Basel.238 Hong Kong Convention, Regulation 9.4. States must declare at the time of joining the Convention “whether it requires explicit or tacit approval of the Ship Recycling Plan before a ship may be recycled in its authorized Ship Recycling Facility(ies).” Art. 16.6. “Where a Party requires tacit approval of the Ship Recycling Plan, the acknowledgement of receipt shall specify the end date of a 14-day review period. The Competent Authority shall notify any written objection to the Ship Recycling Plan to the Ship Recycling Facility, Ship Owner and Administration within this 14-day review period. Where no such written objection has been notified, the Ship Recycling Plan shall be deemed to be approved.” Regulation 9.4.2.239 See supra section 3.3.240 Report of the Joint Working Group, U.N. Doc. ILO/IMO/BC WG 2/11, Annex 4, para. 14 (December 2005) (quoting Annex to IMO General Assembly resolution A.962(23), para. 9.4.1.3).241 Basel Convention, art. 6.4. The transit State, however, may decide not to require prior written consent for transit transboundary movements of hazardous wastes; in this case, if no response is received by the State of export within 60 days, the State of export may allow the export to proceed through the State of transit.242 Hong Kong Convention, art. 8.243 Report of the Joint Working Group, U.N. Doc. ILO/IMO/BC WG 2/11, Annex 4, para. 16 (December 2005)

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5.2.7 “Certification of disposal / Statement of Completion of ship recycling”

The Statement of Completion mandated by the Hong Kong Convention goes beyond the Basel Convention by requiring the Ship Recycling Facility (SRF) to “report on incidents and accidents damaging human health and/or the environment.”244 The Competent Authority must also send a copy of the Statement to the Administration that issued the International Ready for Recycling Certificate. However, such reports will not address activities downstream of the SRF.

5.2.8 Other control mechanisms: minimization of transboundary movement

The OEWG criteria fails to address the fact that the Basel Convention seeks to control the transboundary movement of hazardous waste not only by regulating but also by limiting its movement to circumstances where the state of export does not have the technical capacity to recycle in an ESM manner and where the recycling state has a need for such raw materials.245

Similarly, the Basel Convention encourages Parties to ensure the availability of disposal facilities within their own jurisdiction, where possible,246 and dispose of the waste in the State where it was generated as far as is compatible with ESM.247 The Hong Kong Convention fails to incorporate this national self-sufficiency principle.

5.3 Criteria Cluster 3: Enforcement

5.3.1 “Illegal shipments, violations, and sanctioning, including criminalization, of illegal traffic”

The Basel Convention criminalizes the illegal traffic of waste.248 In contrast, the Hong Kong Convention provides much more discretion to the flag state and ship recycling state to establish sanctions to address violations of requirements pertaining to ships and Ship Recycling Facilities, respectively.249 The sanctions are required to be “adequate in severity to discourage violations of the [Hong Kong Convention] wherever they occur.”250 The Parties to the Hong Kong Convention are free to adopt measures that are weaker than the Basel Convention, such as civil penalties.

5.3.2 “Dispute settlement”

The dispute settlement provisions in the two Conventions are essentially equivalent. The Basel Convention differs in encouraging the Parties to first seek settlement through negotiations or other peaceful means of their choice, and to resort to judicial settlement by the International Court of Justice or arbitration only upon failure to reach a settlement otherwise.251 The Hong Kong Convention does not state a preference for the means chosen to settle a dispute.252

5.3.3 “Duty to re-import”

The Basel Convention requires the state of export to re-import the waste under two circumstances: first, if the shipment cannot be completed in accordance with the terms of the

244 Hong Kong Convention, Regulation 25.245 Basel Convention, art. 4.9. 246 Basel Convention, art. 4.2(b),247 Basel Convention, Preamble 8.248 Basel Convention, arts. 4.3 and 9249 Hong Kong Convention, art. 10.250 Hong Kong Convention, art. 10.3.251 Basel Convention, art. 20.252 Hong Kong Convention, art. 14.

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contract and an alternative disposal arrangement cannot be made within a given timeframe, and second, if the shipment is deemed illegal traffic, unless re-importation is impracticable.253

There is no equivalent provision under the Hong Kong Convention. The absence of a duty to reimport creates a major deficiency and risks the possibility of ships being abandoned on the beaches of Recycling States.

5.4 Criteria Cluster 4: Exchange of information by Parties, Cooperation and Coordination

5.4.1 “Access to and dissemination of information”

Under the Basel Convention, Parties are obligated to provide the States concerned with information about a proposed transboundary movement of waste, stating the effects of the movement on human health and the environment,254 and to cooperate with other Parties and interested organizations in disseminating information on the transboundary movement of hazardous wastes and other wastes in order to improve ESM and prevent illegal traffic.255 The Parties are also required to inform each other, through the Secretariat, on any changes in the designation of their competent authorities, national definitions of hazardous waste, decisions not to consent to the import of waste, decisions to limit or ban the export of waste, and upon the request of another Party, notifications concerning any given transboundary movement of hazardous waste and the response to it.256

The requirements under the Hong Kong Convention are similar, though it gives the IMO greater discretion in determining what information to disseminate. Each Party must report to the IMO, and the IMO is obligated to disseminate “as appropriate,” information on the list of authorized recycling facilities, competent authorities, names and responsibilities of recognized organizations and nominated surveyors authorized to act on the Party’s behalf, an annual list of ships flying the Party’s flag with International Ready for Recycling Certificates, an annual list of ships recycled within the Party’s jurisdiction, information on violations, and actions taken on ships and facilities under the Party’s jurisdiction.257

5.4.2 “Reporting obligations”

The reporting obligations under the Basel Convention are more comprehensive than that of the Hong Kong Convention. The reporting obligations under the Hong Kong Convention include those referenced above (Section 5.4.1) as well as the obligation of Recycling States, upon request, to report on the basis of its decision to authorize the Ship Recycling Facility.258 In contrast, only the Basel Convention requires Parties to report on the quantity and characteristics of the waste exported or imported, the disposal method used, efforts to minimize the transboundary movement of waste, information on the measures adopted to implement the Convention, information on measures undertaken for development of technologies for the reduction and/or elimination of the production of waste, and information on available qualified statistics compiled by them on the effects on human health and environment of the generation, transportation, and disposal of wastes.259

253 Basel Convention, arts. 8 and 9.2.254 Basel Convention, art. 4.2(f).255 Basel Convention, art. 4.2(h). 256 Basel Convention, art. 13.2257 Hong Kong Convention, art. 12.258 Hong Kong Convention, art. 7.259 Basel Convention, art. 13.3

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5.4.3 “Transmission of information regarding import / export restrictions”

The Basel Convention permits States to prohibit import or export of waste, and Parties must inform the Secretariat of such restrictions.260 The Hong Kong Convention does not have equivalent reporting provisions.

5.4.4 “Among Parties to advance ESM through information exchange and technical assistance and capacity building on best practices, technical guidelines, monitoring and public awareness.”

Both the Basel Convention and the Hong Kong Convention require Parties to provide technical assistance and cooperate in achieving the objective of the respective Convention. Under the Basel Convention, Parties are required to cooperate in monitoring the effects of waste management on human health and the environment; advancing low-waste technologies and transferring technology and management systems related to ESM, subject to their national laws, regulations and policies; and developing appropriate technical guidelines.261 The Hong Kong Convention requires Parties to provide support to other Parties, upon request and “as appropriate,” in training personnel; ensuring the availability of relevant technology, equipment and facilities; initiating joint research and development programmes; and undertaking other actions aimed at effective implementation of the Convention and its guidelines.262 Parties to the Hong Kong Convention also commit to cooperate in the transfer of management systems and technology in respect of the environmentally sound recycling of ships, subject to their national laws, regulations and policies.263 These obligations in the Hong Kong Convention are essentially equivalent to that of Basel.

However, one key component missing from the Hong Kong Convention is the establishment of regional or sub-regional centers for training and technology transfer and an accompanying voluntary funding mechanism, similar to those available under the Basel Convention.264 This is elaborated on below.

5.5 Consideration of the interests of Developing countries

A key criterion that is missing from the proposed OEWG criteria is consideration of the interests of developing countries, a factor that is signaled in the preamble and mandated by Article 11 of the Basel Convention as well as in other instances.265 The consideration for developing countries is built into the entire policy framework of the Basel Convention. For example, the establishment of centers for training and technology transfer and provision of funding 266 and the prohibition of exports to Parties when there is reason to believe the wastes will not be managed in an environmentally sound manner267 clearly imply special concern for countries lacking in funds or capacity.

The Hong Kong Convention assigns the obligation to ensure ESM largely on the recycling state,268

but does not contain a provision for a ship-recycling fund or other financing mechanism to assist

260 Basel Convention, art. 4.1(a), 13.2261 Basel Convention, art. 10.262 Hong Kong Convention, art. 13.1.263 Hong Kong Convention, art. 13.2.264 Basel Convention, art. 14.265 See Basel Convention arts. 4.2(e), 4.13, 10.4.266 Id.267 Basel Convention, art. 4.2(e), 4.10.268 Basel Convention, art. 4.2.

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Ship Recycling Facilities in complying with the Convention’s requirements. The Technical Guidelines note that “with regards to physical measures, lacking funding may be the primary hindrance in achieving compliance to ESM.”269 This is the case because most shipbreaking takes place in developing countries. Such funding is therefore essential to meeting the objectives of the Hong Kong Convention, yet the Convention fails to provide such funding.

Additionally, during the negotiations for the Hong Kong Convention, shipbreaking states such as Bangladesh and India insisted on more stringent requirements on the shipowner, such as the pre-cleaning of the ship, in consideration of the lack of capacity of their own facilities. 270

However, the Hong Kong Convention simply requires that “Ships destined to be recycled shall: […] conduct operations in the period prior to entering the Ship Recycling Facility in order to minimize the amount of cargo residues, remaining fuel oil, and wastes remaining on board.”271

This is in contrast to the Basel Convention which requires that “each Party shall require that hazardous wastes or other wastes, to be exported, are managed in an environmentally sound manner in the State of import or elsewhere,” and shall take appropriate measures to “not allow the export of hazardous wastes or other wastes to a State […], particularly developing countries, […] if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner.” Parties to “ensure that persons involved in the management of hazardous wastes and other wastes takes such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment.”272 The Technical Guidelines identified pre-cleaning as one such necessary measure, and the Special Rapporteur has agreed that “stronger stipulations as to decontamination requirements prior to dismantling should have been made in the IMO Convention.”273

In consideration of the capacity of developing countries, the Hong Kong Convention’s failure to provide funding, combined with its limited assignment of responsibilities on ship-owning states or flag states in ensuring ESM throughout the life-cycle of a ship, imposes a heavy burden on developing countries in complying with the Convention and appears to be in contravention of the requirement under Article 11 of the Basel Convention to take into account the interests of developing countries in protecting human health and the environment.

6. CONCLUSION

Shipbreaking is having a significant harmful effect on human health and the environment. The “beaching method” has caused severe pollution, occupational disease and even death in India, Bangladesh and Pakistan. These are not 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 in shipbreaking migrate across borders via environmental transport, raising issues of global concern.269 Technical Guidelines, supra note 44, Sec. 6.1.270 See Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Preparation of oil tanker for ship re cycling, submitted by India, SR/CONF/26 (April 2, 2009); Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposed amendments to the draft International Convention for the safe and environmentally sound re cycling of ships, submitted by Bangladesh, SR/CONF/12 (Feb. 6, 2009).271 Hong Kong Convention, Regulation 8.2.272 Basel Convention, arts. 4.8 and 4.2(e).273 Report of the Special Rapporteur, supra note 12, at para. 62(b). See also supra Section 2.3 on rulings by the High Court of Bangladesh in the M.T. Enterprise case which mandated pre-cleaning.

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International institutions such as the International Labor Organization and the International Maritime Organization (IMO), as well as Parties to the Basel Convention on the Control of Transboundary Movements of hazardous Wastes and Their Disposal have taken action to address shipbreaking. In 2009, the IMO adopted the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships.

The Hong Kong Convention includes certain features that, if fully implemented, could reduce the environmental, health, and human rights impacts of shipbreaking. These include assurance of gas free for hot work prior to recycling as well as comprehensive inventory of hazardous materials on board new ships. However, the Hong Kong Convention lacks certain elements of the Basel Convention that are essential to achieving the objective of the environmentally sound management of waste.

The Basel Conference of the Parties is expected to consider in October 2011 whether the Hong Kong Convention establishes a level of control that is equivalent to the Basel Convention, taking into account comments by the Parties and other stakeholders. This determination of equivalence derives from Article 11 of the Basel Convention, which is the exclusive mechanism by which Basel Parties may enter into other international agreements regulating the transboundary movement of hazardous waste.

This analysis has applied the criteria regarding equivalence articulated by the Open-Ended Working Group to the Basel Convention and has found that the Hong Kong Convention does not provide a level of control that is equivalent to that provided by the Basel Convention. For example, the Hong Kong Convention is limited in scope and applicability, categorically excludes certain types of ships, and fails to regulate certain hazardous wastes. The Hong Kong Convention’s procedures for authorizing recycling facilities and certifying ships do not provide sufficient mandatory minimum standards to ensure that shipbreaking is conducted without adverse effects to human health and the environment. The Hong Kong Convention’s prior informed consent mechanism is far weaker than that of the Basel Convention, and it allows transboundary movement of wastes upon the tacit, rather than express, consent of the recycling State. The Hong Kong Convention does not require the criminalization of illegal transfer of hazardous waste, unlike the Basel Convention. The Hong Kong Convention lacks the duty to re-import waste illegally transferred, which is an important component of the Basel Convention. Moreover, the Hong Kong Convention contains no provision equivalent to the Basel requirement that its Parties must minimize the transboundary movement of waste. In light of these limitations, the Hong Kong Convention does not ensure the protection of human rights and the environment threatened by shipbreaking.

Accordingly, the Basel Convention’s Conference of the Parties should find that the Hong Kong Convention fails to establish a level of control and enforcement that is equivalent to the Basel Convention. The Conference of the Parties should conclude that end-of-life ships shall remain subject to the regulatory framework of the Basel Convention. It 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.

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ANNEX 1: Proposed Criteria for Equivalence and Evaluation of Equivalence

[as adapted from Annex to Decision OEWG-VII/12 (UNEP/CHW/OEWG/7/21)]



What? Coverage of ships / wastes

Wastes:

Article 2.1 (Definition of “wastes”),

Article 1 (Scope of the Convention)],

Ships:

Article 2.1

Decision VII/26: “a ship may become waste as defined in article 2 of the Basel Convention and at the same time it may be defined as a ship under other international rules”

Ships:

Article 2.7 (Definition of “ship”)

Article 3 (Application)

Wastes:

Article 2.9 (definition of “hazardous material”)

Basel does not exempt military or other State-owned waste – including ships – from its scope. The scope of HKC is not equivalent to Basel because it categorically excludes the following ships:

(a) Less than 500 GT or ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the State whose flag the ship is entitled to fly;

(b) Warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only for government non-commercial service;

HKC requires each Party to “ensure, by the adoption of appropriate measures, that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable.” However, this caveat weakens any requirement for consistency.


Article 1 (excerpt): “1. The following wastes that are subject to transboundary movement shall be “hazardous wastes” for the purposes of this Convention:

(a)Wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III; and

(b)Wastes that are not covered under paragraph (a) but are defined

Article 2.9: defining ‘hazardous material’ as “any material or substance which is liable to create hazards to human health and/or the environment.”

Regulation 6 (Procedure for proposing amendments to Appendices 1 and 2)

Regulation 7 (Technical Groups)

Appendix 1: Controls of Hazardous Materials.

HKC should cover all wastes identified as hazardous in ship-recycling under Basel. It presently excludes certain Basel wastes that have been identified by the Basel Technical Guidelines as relevant to shipbreaking.

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as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit.”

Annex I: Categories of wastes to be controlled

Annex III: List of hazardouscharacteristics

Annex VIII(List A): Wastes which are characterized as hazardous under Article 1.1 (a)(conditions attached).

Annex IX (List B): Wastes which are not covered by Article 1.1 (a) (conditions attached).

Basel Convention Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, Annex B

Appendix 2: Minimum list of items for the Inventory of Hazardous Materials.


Article 2.2 (def. of management)

Article 2.5 (def. of ‘approved site or facility’)

Article 2.8 (def. of ESM)

Decision VII/26

“a ship may become waste as defined in article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules”

Article 2.10 (def. of ‘ship recycling’)

Article 2.11 (def. of ‘ship recycling facility’)

Regulation 4 (Controls of ship’s Hazardous Materials)

Preparation for Ship Recycling

Regulation 8.2 and 8.3 (General Requirements)

Regulation 9 (Ship Recycling Plan).

Basel’s integrated life-cycle approach sets strong controls from the generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery and final disposal. Article 4 specifies the Parties’ obligations to minimize the generation of waste and the transboundary movement of waste, and otherwise to ensure the ESM of waste until its final disposal.

HKC controls the ship from its design, through construction, operation and the recycling stage. However, the Convention fails to set standards for downstream disposal facilities because

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Article 4.2: “Each Party shall take the appropriate measures to”

(a) minimize the generation of waste.

(b): ensure availability of adequate disposal facilities for ESM of waste, located domestically to the extent possible.

(c): ensure those managing the waste take steps necessary to prevent pollution and otherwise minimize consequences to human health and the environment.

(d): minimize transboundary movement of waste and otherwise conduct such movement in a manner that will protect human health and the environment against resulting adverse effects.

Article 4.8: each Party is required to ensure the ESM of waste.

Regulation 10 (Surveys)

Regulation 11 (Issuance and endorsement of certificates)

Regulation 20 (Safe and environmentally sound management of Hazardous Materials)

Appendix 1: Controls of Hazardous Materials.

Appendix 5: Form for Authorization of Ship Recycling Facilities

Appendix 6: Form of Report of Planned start of ship recycling

Appendix 7: Form of Statement of completion of ship recycling

thedefinition of ship recycling excludes processing of components and materials after removal and disposal in separate facilities. The controls set forth in Regulation 20 for treatment and disposal are not sufficient to ensure the ESM of waste as required by Basel.


Art. 4.5: Parties must prohibit export, import to/from non-Parties.

Art. 11 (Bilateral, Multilateral, Regional Agreements)

Art. 3.4: Non-Parties may recycle ships in Party SRFs.

Art. 6 (Authorization of Ship Recycling Facilities)

Regulation 8: Ships must only be recycled in authorized SRFs.

HKC controls on trade with non-Parties are not as stringent as that of Basel. HKC Art. 3.4 requires ships of non-Parties to receive “no more favorable treatment” but are not prohibited from using Party-owned Ship Recycling Facilities. This is in contrast to the Basel prohibition of export or import to/from non-Parties absent an Article 11 agreement which guarantees certain equivalent levels of control.

Where? Jurisdiction Art. 1: wastes subject to Art. 2.2 (def. of ‘Administration’): Basel regulates the transboundary movement of

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transboundary movement among Parties

Art. 2.3 (def. of ‘transboundary movement’): “any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement.”

Art. 2.9 (def. of ‘area under the national jurisdiction of a State’)

Art. 2.10 (def. of ‘State of export’)

Art. 2.11 (def. of ‘State of import’)

Art. 2.12 (def. of ‘State of transit’)

Art. 2.13 (def. of ‘States concerned’)

Art. 4.12: limitations to the jurisdiction of the Convention.

Art. 11 (Bilateral, Multilateral, and Regional Agreements and Arrangements)

Government of the State whose flag the ship is entitled to fly, or under whose authority it is operating.

Art. 2.3 (def. of ‘Competent Authority’): governmental authority designated by a Party as responsible for the SRF operating within its jurisdiction

Art. 3:

3.1: Convention applies to

1) ships entitled to fly the flag of a Party or operating under its authority;

2) Ship Recycling Facilities operating under the jurisdiction of a Party.

3.2, 3.3: exclusions. Ships must have operated in more than one jurisdiction, subject to exclusions listed in 3.2 and

Art. 8 (Inspection of ships): Ship may be subject to inspection in a port or offshore terminal of a Party.

Art. 16.4: ability to decide jurisdiction over territorial units.

waste, from the State of export through any Transit States, to the State of import. The Transit state need not be a Party to be considered a ‘concerned state’ warranting notification.

Unlike Basel, HKC jurisdiction is limited to the Flag State of the ship, or other authority under which the ship is operating, any Port States which are Parties, and the State of the SRF. It fails to address the role of transit states that are not Parties to the Convention.

HKC allows for States comprising of two or more territorial units to declare at the time of signature, ratification, acceptance, approval or accession whether the Convention extends to all territorial units or only some. This creates a potential legal loophole because certain States may operate ship recycling facilities in a port of their territory where they do not apply HKC. This is not consistent with providing an equivalent level of control.

HKC jurisdiction is also limited to certain types and size of ships which have operated in more than one jurisdiction. Such exclusion of ships is not consistent with Basel.

Control

Authorizations and certifications

Art. 2.5 (def. of Approved site or facility): site or facility which is authorized or permitted to operate

Art. 4.1 (Controls related to Ship Recycling): general obligation to require ships flying its flag to comply

Under HKC, the Administration (Flag State) is responsible for surveying and certifying the ship as ready for recycling, while the Recycling State is

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for purposes of disposal by the state of import.

Art. 4.2: general obligations to take measures to ensure ESM

Art. 4.7: authorization required to transport or dispose

Art. 4.8: each Party is required to ensure the ESM of waste.

Art. 4.9: export allowed only if

a) the State of export lacks capacity

b) wastes in question are required as raw material for recycling or recovery industries in State of import

c) or transboundary movement is in accordance with other criteria to be decided by the Parties and consistent with the Convention objectives.

Art. 4.10: export state cannot transfer its obligation to ensure the ESM of waste.

with the Convention and take effective measures to ensure such compliance.

Art. 5 (Survey and Certification of ships)

Regulation 8.6: Administration must certify the ship as ready for recycling

Regulation 8.3: tanker must arrive ready for certification as safe-for-entry and/or safe-for-hot work.

Regulation 11 (Issuance or endorsement of a certificate): Administration issues International Certificate on Inventory Hazardous Waste, upon successful completion of survey, and International Ready for Recycling Certificate, upon successful completion of final survey.

Regulation 12 (Issuance or endorsement of a certificate by another Party)

Regulation 13 (Form of the certificates)

Regulation 14 (Duration and validity of the certificates)

Art. 4.2 (Controls related to Ship Recycling): general obligation to require SRFs operating under its jurisdiction to comply with the Convention and take effective measures to ensure such compliance.

responsible for authorizing the Ship Recycling Facility as compliant with the standards set by the Convention.

Specific requirements for authorizing SRFs are not clear until the voluntary guidelines, currently being developed, are adopted. (ref. Regulation 16.1) Lack of mandatory minimum standards on authorization could lead to the initial authorization of facilities that are not properly equipped to conduct ESM.

HKC Regulations governing issuance of the International Ready for Recycling Certificate do not sufficiently mandate that the facility be able to recycle the ship in an environmentally sound manner. This runs counter to the Basel obligation on the export state to ensure the ESM of waste.

Basel requires the authorization of all waste management facilities, including collection, transport, interim and final recovery and disposal. In contrast, HKC only regulates the first dismantling- and recycling site, but not any interim facilities or installations for subsequent processing and disposal of waste.

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Art. 6 (Authorization of Ship Recycling Facilities): Authorization is conducted by the Recycling State

Regulation 8.1: ships must only be recycled at authorized SRFs.

Regulation 15.2 (Controls on Ship Recycling Facilities): Parties must establish mechanism for authorizing SRFs that will ensure compliance.

Regulation 16 (Authorization of Ship Recycling Facilities): SRFs must be authorized by competent authority of recycling state. Authorization can be valid no more than 5 years.

Regulation 17 (General Requirements): SRFs must only accept ships that they are authorized to recycle.

Regulation 18 (Ship Recycling Facility Plan)

Regulation 19 (Prevention of adverse effects to human health and the environment)

Regulation 20 (Safe and environmentally sound management of Hazardous Materials)

Regulation 21 (Emergency Preparedness and Response)

Regulation 22 (Worker safety and training)

Surveying, auditing Art. 4.2: general obligations to take Art. 8 (Inspection of Ships): inspection The final survey conducted by the Administration

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and inspection measures to ensure ESM

Art. 4.8: each Party is required to ensure the ESM of waste.

Art. 4.9: export allowed only if

a) the State of export lacks capacity

b) wastes in question are required as raw material for recycling or recovery industries in State of import

c) or transboundary movement is in accordance with other criteria to be decided by the Parties and consistent with the Convention objectives.

Art. 4.10: export state cannot transfer its obligation to ensure the ESM of waste.

is limited to verifying existence of International Certificate on Inventory of Hazardous Materials or an International Ready for Recycling Certificate, unless clear grounds exist to believe there is a violation.

Regulation 10 (Surveys): prior to recycling, ships must be subject to an initial survey, renewal survey, and final survey. The Administration is responsible for ensuring completeness and efficiency of the survey.

Regulation 18 (Ship Recycling Facility Plan): SRP must be authorized by the board or governing body of the Recycling Company and include systems for monitoring performance of ship recycling, record-keeping, and reporting harm.

Art. 8 (Inspection of Ships)

Regulation 15.3 (Controls on Ship Recycling Facilities): Parties must establish mechanisms to ensure compliance by the SRF, including inspection, monitoring, enforcement, and auditing.

Regulation 16 (Authorizations of Ship Recycling Facilities)

(Flag State), which is a prerequisite to the issuance of the International Ready for Recycling Certificate, does not sufficiently guarantee that the ship will be managed by the SRF in an environmentally sound manner. The final survey must simply verify 1) a proper IHM, 2) the SRP reflects the information contained in the IHM and contains information concerning the establishment, maintenance and monitoring of Safe-for-entry and Safe-for-hot work conditions, and 3) the SRF holds a valid authorization. There is no requirement that the Flag State ensure the ESM of waste as required for exporting states under Basel.

Designation of competent authorities / focal

Art. 5 (designation of competent authorities and focal point)

Article 2.3: definition of “competent authority”

Under HKC, the competent authority designated by the Party is responsible for receiving notification of the proposed transboundary movement of

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points Regulation 15.4: Parties must designate one or more Competent authorities and a single contact point for matters relating to SRFs.

hazardous waste from the SRF under its jurisdiction, approving the draft SRP before recycling can commence, and notifying the Administration upon completion of recycling.

While the notification procedures differ between Basel and HKC, the designation of competent authorities is essentially equivalent.

Standards (mandatory / voluntary)

Art. 2.8 (Definitions): ESM of wastes

Art. 4.2 (b)(c)(d)(e)(g)(h): Parties have a general obligation to ensure ESM of waste, including to prohibit the transboundary movement of wastes unless Parties are convinced of ESM.

Art. 4.8: each Party is required to ensure the ESM of waste in the State of import or elsewhere, taking into account Technical Guidelines on the ESM of waste.

Regulation 19 (Prevention of adverse effects to human health and the environment): SRFs must establish and utilize procedures to prevent adverse effects to human health and the environment, taking into account IMO Guidelines.

Regulation 20 (Safe and environmentally sound management of Hazardous Wastes): SRFs must ensure safe and environmentally sound removal and management of all Hazardous Materials contained in a ship. SRFs must ensure all Hazardous Materials detailed in the Inventory are identified, labeled, packaged and removed to the maximum extent possible prior to cutting, taking into account IMO Guidelines.

Regulation 1.6: Definition of “safe-for-entry”

Regulation 1.7: Definition of “safe-for-hot work”

Regulation 3 (Relationship with other standards, recommendations and

HKC leaves much of the details of the standards to voluntary guidelines. This disregards Parties’ insistence on mandatory requirements to ensure ESM. The Basel Technical Guidelines on the dismantling of ships provides certain measures that “must” be followed to achieve ESM. In particular, the Guidelines mandate pre-cleaning and containment and does not accept 'beaching' (impermeable floors are prescribed for full ship containment).

HKC regulations should mandate these measures in order to ensure ESM by the SRF.

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guidance)

Voluntary Guidelines:

1. Guidelines for the development of the Inventory of Hazardous Materials, adopted by resolution MEPC.179(59);

2. Guidelines for safe and environmentally sound ship recycling;

3. Guidelines for the development of the ship recycling plan;

4. Guidelines for the authorization of ship recycling facilities;

5. Guidelines for survey and certification;

6. Guidelines for inspection of ships.


Art. 4.1(b): Parties must not export to a Party that has prohibited imports and given notification.

Art. 4.2(e): Parties must take measures to prohibit export to a Party that has prohibited imports by legislation.

Art. 4.2(g): Parties must take measures to prevent import if ESM is questionable.

Art. 9.3 (Detection of Violations): Parties can exclude the ship from its ports if detected to be in violation of the Convention.

Regulation 9.4 (Ship Recycling Plan): Competent Authority of the Recycling State must explicitly or tacitly approve of the SRP.

Basel explicitly allows Parties to prohibit the export or import of hazardous wastes or other wastes for disposal.

Under HKC, the Administration can prohibit recycling by denying the issuance of an International Certificate for Ready Recycling, but it does not have a recognized ability to prohibit export. The Recycling State can prohibit recycling by denying approval of the draft SRP, but it does not have a recognized ability to prohibit import.

Traceability and transparency of hazardous materials until final treatment

Art. 4.7(c): Parties must require all movements of hazardous waste to be accompanied by a movement document from the commencement

Regulation 5 (Inventory of Hazardous Materials)

Appendix 2 (Minimum List of Items for the Inventory of Hazardous Materials)

The processes for tracing hazardous materials under Basel and HKC differ in that the SRF need not sign the International Ready for Recycling Certificate upon import of the waste. However, in

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/ ultimate disposal of movement to final disposal.

Annex VB (form of Movement Document)

Art. 6 (Transboundary Movement between Parties): PIC procedure

Regulation 11 (Issuance and endorsement of certificates)

Regulation 24 (Initial notification and reporting requirements): SRFs must notify the Competent Authority in writing of the intent to recycle, and include the Inventory of Hazardous Materials. SRF must report to the Competent Authority the planned start of recycling and include the International Ready for Recycling Certificate.

Regulation 25 (Reporting upon completion)

that the SRF’s issuance of the Report of Planned Start of Ship Recycling is premised on the Recycling State’s approval of the SRF’s SRP, they may be viewed as functionally equivalent.

Unlike Basel, hazardous materials that are transferred out of the SRF for treatment and disposal are no longer transparent nor traceable. This is inconsistent with Basel.


Art. 4.1(c): State of Import must consent in writing

Art. 6: State of export, or the generator or exporter, must notify in writing the State of import and each State of transit. Shipment may only commence upon receipt of written consent.

Regulation 24: initial notification and reporting requirements.

24.1: shipowner must notify the Administration in writing of its intention to recycle.

24.2: SRF must notify the Competent Authority of the intent to recycle and other details listed in 24.2 (details on the ship, shipowner, company, and draft recycling plan)

Regulation 9.4 (Ship Recycling Plan): Competent Authority of the Recycling State must explicitly or tacitly approve of the SRP.

Regulation 24.3: SRF must report to Competent authority when ship acquires International Ready for Recycling Certificate, in order to

HKC allows Parties to choose either explicit or tacit approval of the SRP, in contradiction to the PIC procedure of Basel, which requires explicit approval for each waste shipment.

Basel not only requires the explicit consent of the recycling state but also all transit states. HKC fails to require notification to and consent by the transit state.

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commence recycling. Report must include the International Ready for Recycling Certificate.

Certification of disposal / statement of completion of ship recycling

Art. 6.9: disposer must notify exporter and competent authority of receipt and disposal of waste.

Regulation 25 (Reporting upon completion): the shipowner must issue a Statement of Completion to the Competent Authority, which then notifies the Flag state.

HKC Statement of Completion goes beyond the Basel notification requirements by requiring the SRF to report on incidents and accidents damaging human health and/or the environment. However, such reports do not address activities downstream of the SRF

[Other control mechanisms]

Minimization of transboundary movement

Art. 4.2(b): Parties should ensure the availability of disposal facilities within their own jurisdiction, where possible.

Art. 4.9: Parties should limit transboundary shipment of waste to circumstances where the state of export does not have the capacity to recycle in an ESM manner or where the recycling State is in need of such raw materials.

No reference. Basel seeks to control the trasboundary movement of waste not only by regulating but also by limiting its movement. Basel adopts the national self-sufficiency principle, which requires States to dispose of waste in the State where it was generated, as far as is compatible with ESM. HKC utterly disregards this concept.

Enforcement

Illegal shipments, violations and sanctioning, including criminalization, of illegal traffic

Art. 4.3: illegal traffic is criminal

Art. 4.4: parties must take measures to implement and enforce the provisions, including by preventing and punishing unlawful conduct.

Art. 9: Illegal Traffic

Art. 9: Detection of Violations

Art. 10: Violations, shall be prohibited by national laws of Flag State (ship) or Recycling State (Facility), and sanctions should be severe enough to discourage violations.

Basel criminalizes the illegal traffic of waste. HKC provides much more discretion to the flag state and ship recycling state to establish sanctions to address violations of requirements pertaining to ships and SRFs, respectively. Parties are free to adopt measures that are weaker than that of Basel.

Dispute Settlement Art. 20: settlement through negotiation then ICJ/Arbitration.

Art. 14 (Dispute Settlement) HKC and Basel provisions are essentially equivalent.

Duty to re-import Art. 8: duty to re-import if movement cannot be completed in

None HKC does not address this duty, even in the

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accordance with contract.

Art. 9.2: if deemed illegal traffic, duty to re-import, unless impracticable.

instance of Violations (Art. 10).

In light of the inability of Recycling States to deny the import of ships, the absence of a duty to reimport creates a major deficiency and risks the possibility of ships being abandoned on the beaches of Recycling States

Exchange of Information by Parties / cooperation and coordination

Access to and dissemination of information, e.g. administrative, enforcement, emergency matters

Art. 4.2(f): inform concerned States with information about a proposed transboundary movement.

Art. 4.2(h): cooperate in disseminating information in order to improve ESM and prevent illegal traffic.

Art. 13: Transmission of information

Art. 12: Communication of information to Parties via the IMO

Art. 9 (Detection of Violations).

Art. 10 (Violations)

Obligations under the HKC and Basel Convention are similar, although the HKC gives the IMO greater discretion in determining what information to disseminate. Each Party must report to the IMO, and the IMO is obligated to disseminate “as appropriate.”


Art. 13 (Transmission of Information)

13(2), 13(3)

Art. 7 (Exchange of Information)

Art. 12: Communication of information to Parties via the IMO

Reporting obligations under the Basel Convention are more comprehensive. Only Basel requires Parties to report on the quantity and characteristics of the waste exported or imported, the disposal method used, efforts to minimize the transboundary movement of waste, information on the measures adopted to implement the Convention, information on measures undertaken for development of technologies for the reduction and/or elimination of the production of waste, and information on available qualified statistics compiled by them on the effects on human health and environment of the generation, transportation, and disposal of wastes.

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Art. 4.1(a)

Art. 13(2)

Art. 12.1: report on a list of authorized facilities.

The Basel Convention permits States to prohibit import or export of waste, and Parties must inform the Secretariat of such restrictions. The HKC does not have any equivalent reporting provisions.

Among Parties to advance ESM, through information exchange and technical assistance and capacity building on best practices, technical guidelines, monitoring and public awareness.

Art. 10: International Cooperation Art. 13: Technical assistance and cooperation “in respect of the safe and environmentally sound recycling of ships.”

Both the Basel Convention and the HKC require international cooperation to enhance the ESM of waste. However, HKC lacks the establishment of regional or sub-regional centers for training and technology transfer and an accompanying voluntary funding mechanism, similar to those available under Basel.

EXTRA Consideration of the Interests of Developing Countries

Art. 11

Art. 14: Funding provided to developing States to assist in compliance with the Convention.

Art. 4.2(e), 4.10: transboundary shipment is prohibited unless the exporting state can guarantee the ESM of waste by the recycling State.

HKC assigns the obligation to ensure ESM largely on the recycling state, but does not contain a provision for a ship-recycling fund or other financing mechanism to assist SRFs in complying with the Convention’s requirements. In that most SRFs are located in developing countries, this is incompatible with the Basel Art. 11 requirement of considering the interests of developing countries.

HKC should also consider the lack of capacity of many developing countries and require stronger stipulations on pre-cleaning.

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TREATIES

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Organization and the Basel Convention on Ship Scrapping (April 2008).

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DOCUMENTS OF THE OPEN-ENDED WORKING GROUP OF THE BASEL CONVENTION

Dec. OEWG-II/3,Guidance elements for bilateral, multilateral or regional agreements or arrangements for the implementation of the Basel Protocol on Liability and Compensation, U.N.Doc. UNEP/CHW/OEWG/2/12 (December 2003).

Guidance elements for bilateral, multilateral or regional agreements or arrangements, U.N. Doc. UNEP/CHW/OEWG/3/24 (March 2004).

Dec. OEWG-VII/12, Environmentally sound dismantling of ships, U.N. Doc. UNEP/CHW/OEWG/7/21 (14 May 2010).

Environmentally sound management of ship dismantling: comments received pursuant to decision IX/30, U.N. Doc. UNEP/CHW/OEWG/7/INF/15 (March 2010).

DOCUMENTS OF THE AD HOC WORKING GROUP OF THE BASEL CONVENTION

Report of the Organizational Meeting of the Ad Hoc Working Group of Legal and Technical Experts with a Mandate to Prepare a Global Convention on the Control of the Transboundary Movements of Hazardous Wastes, U.N. Doc. UNEP/WG.180/3 (October 1987).

Report of the Working Group, U.N. Doc. UNEP/WG.182/3 (February 1988).

Report of the Ad Hoc Working Group on the Work of its Second Session, U.N. Doc. UNEP/WG.186/3 (June 1988).

Report of the Ad Hoc Working Group on the Work of its Third Session, U.N. Doc. UNEP/WG.189/3 (November 1988).

Final Report of the Ad Hoc Working Group, U.N. Doc. UNEP/IG.80/4 (March 1989).

DOCUMENTS OF THE OPEN-ENDED AD HOC COMMITTEE FOR THE IMPLEMENTATION OF THE BASEL CONVENTION

Report of the First Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/1/9 (October 1993).

Report of the Second Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/2/14 (December 1994).

Report of the Fourth Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/4/1 (December 1994).

Report of the Third Meeting of the Open-Ended Ad Hoc Committee for the Implementation of the Basel Convention, U.N. doc. UNEP/CHW/C.1/3/23 (July 1997).

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DOCUMENTS OF THE LEGAL WORKING GROUP OF THE BASEL CONVENTION

Legal aspects of the full and partial dismantling of ships , U.N. Doc. UNEP/CHW/LWG/5/4 (May 2002)

DOCUMENTS OF THE TECHNICAL WORKING GROUP AND LEGAL WORKING GROUP OF THE BASEL CONVENTION

Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements, prepared by the Technical Working Group and Legal Working Group of the Basel Convention at its Second Joint Meeting, U.N. doc. UNEP/CHW/TWG/LWG/2/2 (23 April 2002).

IMO DOCUMENTS

Int’l Maritime Org. [IMO], Report of the Marine Environment Protection Committee on its fifty-third session, MECP 53/24 (18) (July 25, 2005).

Int’l Maritime Org. [IMO], New legally binding instrument on ship recycling, Assemb. Res. A.981(24), (Dec. 1, 2005).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships – Non-Party recycling facilities, submitted by Australia, SR/CONF/9 (Feb. 6, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposal for clarifying the requirements in regulation 10 of the draft Convention, submitted by Norway, SR/CONF/11 (Feb. 6, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposed amendments to the draft International Convention for the safe and environmentally sound re cycling of ships, submitted by Bangladesh, SR/CONF/12 (Feb. 6, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Ensuring sustainable green and safe ship dismantling – concerning beaching and the establishment of a mandatory fund, submitted by Greenpeace International and FOEI, SR/CONF/14 (2) (Feb. 9, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Draft conference resolution on the best practices for fulfilling requirements of the Convention, submitted by Denmark , SR/CONF/16 (March 6, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Preparation of oil tanker for ship re cycling, submitted by India, SR/CONF/26 (April 2, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposed amendment to the draft Convention: Improvement in the communication of information (articles 9 and 12) and clarification on the ship recycling plan approval process (regulation 9), submitted by France, SR/CONF/28 (April

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6, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposal to amend article 12.2 and regulation 15.4 – single contact point, submitted by Malta, SR/CONF/31 (April 20, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships – Proposal to amend Article 16 and Regulation 9, submitted by United Kingdom, SR/CONF/35 (May 1, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Environmental comparison of the beaching method with other methods of recycling of ships, submitted by India, SR/CONF/36 (May 1, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposed amendment to the draft International Convention for the safe and environmentally sound recycling of ships, submitted by Bangladesh, SR/CONF/37 (May 4, 2009).

Int’l Maritime Org. [IMO], Consideration of the draft International Convention for the sea and environmentally sound recycling of ships - Proposed amendments to paragraph 3 of article 3, submitted by Korea, SR/CONF/40 (May 7, 2009).

EU DOCUMENTS

Regulation No. 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community.

Council Regulation (EC) No 120/97 of 20 January 1997 amending Regulation (EC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, Official Journal L 022, 24/01/1997.

European Directive 2002/95/EC.




Regulation No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, Official Journal L 190, 12/7/2006.

Regulation No. 1418/2007 of 29 November 2007 concerning the export for recovery of certain waste listed in Annex III or IIIA to Regulation (EC) No 1013/2006 of the European Parliament and of the Council to certain countries to which the OECD Decision on the control of transboundary movements of wastes does not apply (Text with EEA relevance).

Resolution on an EU Strategy for Better Ship Dismantling, EUR. PARL. DOC. P6_TA(2009)0195.

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the regions – an EU strategy for better ship

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dismantling, COM(2008)767 final (Nov. 19, 2008).

Basel Convention, Summary of Treaty, available at http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=528.

OECD DECISIONS

Decision of the Council Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations, OECD Dec. C(92)39/FINAL (Mar. 30, 1992).

Decision concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations, OECD Dec. C(2001)107/FINAL adopted on 14 June 2001 [C/M (2001) 13] and on 28 February 2002 as amended by [C/M (2002) 4].

CASE LAW

Colombian-Peruvian asylum case, Judgment of November 20th 1950: I.C.J. Reports 1950.

Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952.

Arbitral Award of 31 July 1989, Guinea-Bissau v. Senegal [1991] ICJ Rep. 53.

Conseil d’Etat, contentieux n. 288801, 6ème et 1ère sous-sections rèunies, Lecture du 15 Fevrier 2006.

Council of State of The Hague, Case number: 200105168/2, June 19, 2002.

Council of State of The Hague, Case number: 200606331/1, February 21, 2007.

REPORTS OF IGOS

Draft Guidance Elements for Bilateral, Multilateral or Regional Agreements or Arrangements, U.N. Doc. UNEP/CHW.6/15, Annex (August 2002).

Report of the joint working group, Joint ILO/IMO/BC working group on ship scrapping, ILO/IMO/BC WG 2/11 (December 2005).

UNEP, Marine Litter: A Global Challenge (2009).

Report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, U.N. Doc. A/HRC/12/26(15 July 2009).

Environmentally sound management of ship dismantling: comments received pursuant to decision IX/30, Annex, U.N. Doc. UNEP/CHW/OEWG/7/INF/15 (March 2010).

Basel Secretariat, Ship Recycling Technology & Knowledge Transfer Workshop, The Basel Convention and its application to ship recycling (14 – 16 July 2010, Izmir, Turkey).

Press Release, at www.basel.int/press/press-releases/14May2010-e.doc (2010).

Article 11 agreements under the Convention, at http://www.basel.int/article11/index.html.

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http://www.basel.int/press/press-releases/14May2010-e.doc

http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=528

http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=528

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U.S. EPA, International Trade in Hazardous Waste: An Overview (1998).

The World Bank, The Ship Breaking and Recycling Industry in Bangladesh and Pakistan (Report No. 58275-SAS) (December 2010).

BOOKS AND LAW REVIEWS

Anderson, Aage Bjorn, International Labour Organization, Worker Safety in Ship-Breaking Industry (2001).

Anderson, H. Edwin, The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives, 21 TUL. MAR. L. J. 139 (1996).

Bhattacharjee, Saurabh, From Basel to Hong KONG: International Environmental Regulation of Ship-Recycling Takes One Step Forward and Two Steps Back, 1(2) TRADE L. & DEV. 193, 203 (2009).

Cohen, Matt, U.S. Shipbreaking Exports: Balancing Safe Disposal with Economic Realities, 28 Environs: Envtl, L. & Pol'y J. 237 (2004-2005).

Choksi, Sejal, The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: 1999 Protocol on Liability and Compensation, 28 Ecology L.Q. 509, 516 (2001).

Gwam, Cyril Uchenna, Travaux Preparatoires of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 18 J. NAT. RESOURCES & ENVTL. L. 1, 66 (2003).

Hunter, David, International Environmental Law and Policy (2011).

Puthucherril, Tony George, From shipbreaking to sustainable ship recycling – Evolution of a legal regime, LEGAL ASPECTS OF SUSTAINABLE DEV. (Martinus Nijhoff Publishers, 2010).

Waugh, Theodore, Where do We Go From Here: Legal Controls and Future Strategies for Addressing the Transportation of Hazardous Wastes Across International Borders, 11 Fordham Envtl. L. J. 477, 509 (1999).

REPORTS AND STATEMENTS BY NGOS

Basel Action Network and Greenpeace International, Shipbreaking and the legal obligations under the Basel Convention, submitted to the Legal Working Group of the Basel Convention, U.N. Doc. UNEP/CHW/LWG/5/4/Add.1 (21 May 2002).

International Federation for Human Rights (FIDH), Where do the ‘floating dustbins’ end up? Labour Rights in Shipbreaking Yards in South Asia: The cases of Chittagong (Bangladesh) and Alang (India) (2002).

International Federation for Human Rights (FIDH), “New ship recycling Convention legalizes scrapping toxic ships on beaches” (May 15, 2009), available athttp://www.fidh.org/New-ship-recycling-convention-legalizes-scrpping.

Basel Action Network and Greenpeace International, Shipbreaking and the legal obligations under the Basel Convention (2002).

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Greenpeace-FIDH (International Federation for Human Rights), End of Life Ships – The Human Cost of Breaking Ships (2005).

NGO Platform on Shipbreaking, OFF THE BEACH! Safe and green dismantling (2009).

Bangladesh Environmental Lawyers Association, List of Selected Public Interest Litigation of BELA, http://www.belabangla.org/activities.htm#Public%20Interest%20Litigation%20%28PIL%29.

Rizwana Hasan, Final Speech of the NGO Platform on Shipbreaking before the International Conference on the Safe and Environmentally Sound Recycling of Ships (May 15, 2009), available at http://www.ban.org/Library/RizwanaSpeechIMO.html.

OTHER SOURCES

The Daily Star, “Ship-breaking ordered shut,” March 18, 2009, available at http://www.thedailystar.net/newDesign/news-details.php?nid=80213

European Maritime Safety Agency, Improving Port State Control (2007), available at http://www.emsa.europa.eu/Docs/psc/leaflet-psc.pdf.

Hollis, Duncan, “Will the new ship recycling Convention sink or swim?” (May 27, 2009), available at http://opiniojuris.org/2009/05/27/will-the-new-ship-recycling-convention-sink-or-swim.

IHS Fairplay, 2009 Lloyd’s Register of Ships.

International Transport Workers’ Federation, FOC countries (2011).

Maersk wants to end ‘Beachings,’ MAERSK (July 1, 2010, 2:46PM), http://www.maersk.com/AboutMaersk/News/Pages/20100701-145601.aspx

Mikelis, Nikos, The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, (PPT) presented at the UN Conference on Trade and Development: Multi-year Expert Meeting on Transport and Trade Facilitation (10 December 2010), available at http://www.unctad.org/Templates/Page.asp?intItemID=5754&lang=1&print=1.

Orellana, Marcos A., “Shipbreaking and Le Clemenceau Row,” ASIL Insights, Vol. 10, Iss. 4 (Feb. 24, 2006), available at http://www.asil.org/insights060224.cfm.

US EPA website on International Waste Agreements, at http://www.epa.gov/epawaste/hazard/international/agree.htm.

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6. NGO Shipbreaking Platform

15 April 2011

1. Background

1.1. At the Seventh Conference of the Parties to the Basel Convention, the Parties adopted Decision VII/26 entitled “Environmentally sound management of ship dismantling” (attached). This decision makes the first definitive statements regarding the applicability of the Convention to end-of-life or waste ships.

1.2. In that decision the Parties concluded that end-of-life vessels or ships are wastes. Therefore when a ship contains listed hazardous materials, that is, materials listed on Annex I possessing listed hazardous characteristics in Annex III, the ships would be designated as hazardous waste, subject to control under the Convention.

1.3. Decision VII/26 noted:

“a ship may become waste as defined in article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules,”

and therefore, Decision VII/26 called upon Parties to:

“…fulfill their obligations under the Basel Convention where applicable, in particular their obligations with respect to prior informed consent, minimization of transboundary movements of hazardous wastes and the principles of environmentally sound management.”

1.4. The Basel Convention defines environmentally sound management as, “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

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such wastes.”

1.5. At the same time, Decision VII/26 recognized the work undertaken at the IMO at that time. The Parties noted in the final recital of the decision that “… duplication of regulatory instruments that have the same objective should be avoided.” But the Parties also made it clear that they expected that the new Convention (hereafter referred to as the Hong Kong Convention) under consideration would not represent a step backwards in international law with respect to controls on the international trade in hazardous wastes in the case of ships.

1.6. The Parties thus invited the IMO to:

“continue to consider the establishment in its regulations of mandatory requirements, including a reporting system for ships destined for dismantling, that ensure an equivalent level of control as established under the Basel Convention and to continue work aimed at the establishment of mandatory requirements to ensure the environmentally sound management of ship dismantling, which might include pre-decontamination within its scope.” (underlining added).

1.7. This was the first use of the terms “equivalent level of control”. However, it is vital to note that the concept of “equivalent level of control” is a) rooted in a desire that a backwards step be avoided and b) has a legal basis in the Convention itself – indeed it is a requirement of the Convention as embodied in Article 11 of the Convention that recognizes the applicability of multilatateral and bilateral agreements between states that deal with transboundary movements of wastes.

1.8. At the Ninth Conference of the Parties to the Basel Convention in June 2008, by decision IX/30, the Open-ended Working Group was requested:

“To carry out a preliminary assessment on whether the ship recycling convention, as adopted, establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety, after having developed the criteria necessary for such assessment, and, in doing so, to take into account:

(i) The special characteristics of ships and international shipping;

(ii) The principles of the Basel Convention and the relevant decisions of the Conference of the Parties; and,

(iii) The comments submitted by Parties and other relevant stakeholders, as appropriate;”

1.9 It is vital to recall that the exercise in question is to see if the Hong Kong Convention establishes an equivalent level of control to that established under the Basel Convention. Thus we are comparing the Hong Kong Convention to what exists in Basel and not the other way around. If the Hong Kong Convention possesses controls that are apart from those within Basel, such extra controls, unless they have a similar purpose to those under Basel, are irrelevant to the exercise at hand.

1.10 At the Seventh Open Ended Working Group meeting, following the final adoption of the Hong Kong Convention in May of 2009, the sub-group was unable to make progress on a preliminary assessment and could only begin to work on the development of a matrix of some criteria that were agreed upon for use in making such a determination (attached). It is the view of the Platform however that the criteria are not exhaustive and limited but are a basis for beginning the work. For example, while delegates are told in the chapeau of the matrix and in Decision IX/30 to consider the Basel Convention Principles, these very important principles are not within the matrix criteria and are thus unable to be considered in their own right.

1.11 Earlier, the NGO Platform on Shipbreaking had created another set of more comprehensive criteria based on the mandates by Parties (e.g. VII/26 and IX/30), in its paper entitled:

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“Determining ‘Equivalent Level of Control’ as Established under the Basel Convention: Elements for Consideration of the Draft IMO Convention on the Safe and Environmentally Sound Recycling of Ships.” http://www.ban.org/Library/EquivalentLevelofControl.pdf.

1.12 In that paper “Fundamental Elements” that would need to be replicated in order to achieve an equivalent level of control were identified. These fundamental elements included: The Scope and Rights of Basel, Basel Principles, Basel Obligations, and Basel Key Objectives and were drawn from:

Decision VII/26, where that terminology was first utilized; Decision IX/30 which mandated the current assessment exercise; and The language of Article 11, which provides a legal basis for this determination.

1.13 In that earlier paper the Platform created the matrix for making the determination but left the last column providing the comparison blank. In this paper we fill in that section and that matrix in addition to that put forth by the Seventh OEWG.

1.14 We maintain that both are necessary as the matrix put forth by the OEWG is not exhaustive and moreover leaves out the possibility of including the “principles of the Basel Convention” and key obligations, even though the mandate requires that they be so considered. What follows are those two exercises in comparing the Hong Kong Convention to the Basel Convention.

2. Comparison of Elements of the Hong Kong Convention to the Basel Convention

NGO Platform Matrix

Comparative Table of Key Elements Needed to Determine “Equivalent Level of Control”

Fundamental Elements of Basel Convention

Hong Kong Convention (Replication Needed)

Scope and RightsThe instrument text is legally binding in all aspects for all United Nations states without reservations. -- (Art. 26)

YES

Has a comprehensive definition of hazardous waste/materials which includes all contaminated ships without limitation such as size or ownership etc. -- (Articles 1 and 2, Annexes I, III, IV, VIII and IX)

NO. Refuses to recognize existent (Basel) definitions of hazardous wastes or wastes. Presence of hazardousness triggers no special trade control. Further the HK Convention does not cover all ships. Government owned vessels and ships up to a certain size are also not covered.

Obligation to establish and regulate waste management capacity nationally, including within its scope all downstream waste management, beyond initial shipbreaking facility -- Basel establishes a clear obligation that each state develop its own capacity for waste management throughout the entire waste management chain (Article 4.2.b, 4.2.c, 4.7.a, Article 6.9 (describes completion of Basel regime

NO – Only ship recycling states are required to have national waste management capacity for ships and then only at the first tier ship recycling facility. However in fact there is an entire waste disposition chain that needs to exist and be managed in an environmentally sound manner. Such capacity beyond the ship recycling first tier facility is not guaranteed in ship recycling states.

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as completion of disposal)) Allows states to impose more rigorous requirements -- Basel allows States to impose additional requirements as long as they are consistent with the Convention and the rules of international law. (Article 4.11)

YES – (Article 1.2)

Recognizes sovereign right of states to prohibit import. No export to those banning import -- Parties are prohibited from exporting to Parties who have prohibited the import of such wastes. (Article 4.1.b)

NO – Importing State can prevent a ship from being recycled but cannot prevent a ship from being imported.

PrinciplesSource Reduction Principle -- by which the generation of waste should be minimized in terms of its quantity and its potential to cause pollution. This may be achieved by using appropriate plant and process designs. (Preamble: recitals 3, 10, 17, Art, 4.2.a., Art. 4.13)

NO – Because ships as waste are a post consumer waste, it is most appropriate to look at this issue from the standpoint of design for longevity and hazardous material use reduction. In the Hong Kong Convention, there is no obligation to ensure that ships have a long life, nor is there any obligation to minimize or substitute the use of hazardous materials within the Convention. Rather the Convention simply calls for banning materials banned elsewhere and provides a mechanism where hazardous use reductions can be proposed by Parties.

National Self-Sufficiency/Minimizing Transboundary Movement of Hazardous Waste Principle -- States should ensure that the disposal of the waste generated within their territory is undertaken there by means which are compatible with environmentally sound management, recognizing that economically sound management of some wastes outside of national territories may also be environmentally sound. (Preamble recitals 1,2,7,8. 9,18, Art. 4.2.b, 4.2.d, Art. 4.9, Art. 15.7)

NO – Despite pre-cleaning and Basel principles being repeatedly signaled as being important by the Basel Parties, the Hong Kong Convention does nothing to minimize TBM. In fact it instills the status quo where ships move at great distances primarily to one part of the world (South Asia) and does not call for all countries to become self-sufficient at waste management. Not even on a regional basis (e.g. North America, or Europe) are developed countries expected to achieve any kind of self-sufficiency.

Polluter Pays Principle/Producer Responsibility/Cost internalization -- by which the potential polluter must act to prevent pollution and those who cause pollution pay for remedying the consequences of that pollution. (Preamble: Recital 5, Art. 4.2.c, Art. 7.a)

NO – There is nothing in the HK Convention that serves to internalize costs with the generators of the waste – ship owners. Ship owners are only responsible for documenting the problem – not remediating it. This despite the fact that every other major sector that produces post-consumer hazardous waste has adopted producer responsibility principles, (e.g. electronics, aviation, automotive) the shipping industry does not recognize their responsibility. The HK Convention institutionalizes cost externalization.

Environmentally Sound Management Principle – For those wastes that cannot be or could not be prevented from being generated, 'taking of 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'. No transboundary movement of wastes can take place unless all Parties are convinced of environmentally sound management. (Preamble: Recitals 4, 5, 9, 17, 23, 24, Art. 4.2.b, 4.2.c, 4.2.e, 4.2.g., 4.8, 4.10 Art. 8, etc.)

PARTIAL – The concept of Environmentally Sound Management does exist (Article 1.1.) in the HK Convention. However the the HK Convention allows the beaching method of shipbreaking. Beaching ships can never equate to “to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by Ship Recycling.” The Basel Convention on the other hand, in its ship recycling guidelines did not accept beaching as environmentally sound.

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No transboundary movement of wastes can take place unless all Parties are convinced of environmentally sound management. (Recitals 4.2.e, 4.2.g., 4.8, 4.10)

NO – The HK Convention allows export and import of all ships for recycling regardless of whether ESM is assured. No state can prevent an import or an export under the Convention based on lack of ESM.

Environmental Justice Principle – Recognizing the special needs and vulnerabilities of developing countries and seeking to avoid disproportionately burdening any peoples with burdens of environmental harm. The Basel Convention and its Basel Ban Amendment recognizes very clearly differing economic levels in the world today. Free markets and globalization opens up numerous opportunities for all, but also opens up opportunities for exploitation of lower-wage communities and countries with hazardous waste and was the driving force behind the development of the Basel Convention. (Preamble: Recitals 7, 20, Art. 4.13, Decisions II/12, III/1)

NO – The HK Convention has zero provisions that recognize that the world is not an even playing field with respect to vulnerabilities of weaker economies to become victim to cost externalization by stronger economies. Indeed the term “human rights” has not been allowed to be used at IMO. The HK Convention institutionalizes that certain poorer areas of the world will receive a disproportionate burden of hazardous waste ships.

Principle of common but differentiated responsibilities – Recognizing that although a common global problem is shared (hazardous waste), nations and stakeholders have different responsibilities based on their relative wealth and role. (Preamble: Recitals 21, Art.10.2.d, Art.10.3, Art.10.4)

NO – The HK Convention does not provide special obligations for wealthy countries, owner states, ship owners, or flag states to take responsibility proportionate with their relative wealth or role.

Principle of prior informed consent – States have the right to be informed and to consent prior to any export of hazardous or other waste to their territories. No export without prior informed consent can take place. (Art. 4.1.c, Art. 6)

NO – There is no obligation for importing states to receive advance notification prior to importation into their territory of hazardous waste ships, nor is there a possibility for importing states to consent or not to the importation of a waste ship.

National sovereignty principle – States have the right to ban, imports and exports of hazardous waste. (Preamble: Recitals 6, Art. 4.1, 4.2.e, Art.4.10, Art. 4.11)

NOT EXPLICIT -- As mentioned earlier Parties can make more stringent requirements on their own but there is no recognized sovereign right to ban imports or exports of hazardous waste ships.

Key ObjectivesTo reduce the generation of hazardous wastes -- (Article 4.2.a)

NO – Because ships as waste are a post consumer waste, it is most appropriate to look at this issue from the standpoint of design for longevity and hazardous material use reduction. In the HK Convention, there is no obligation to ensure that ships have a long life, nor is there any obligation to minimize or substitute the use of hazardous materials within the Convention. Rather the Convention simply calls for banning materials banned elsewhere and provides a mechanism where hazardous use reductions can be proposed by Parties.

To reduce transboundary movement of hazardous waste to a minimum -- This is seen as a vital obligation and one of the prime objectives of the Basel Convention. It goes hand in hand with the national self-sufficiency obligation mentioned next. (Article 4.2.b and d)

NO – Despite pre-cleaning and Basel principles being repeatedly signaled as being important by the Basel Parties, the Hong Kong Convention does nothing to minimize TBM. In fact it instills the status quo where ships move at great distances primarily to one part of the world (South Asia) and does not call for all countries to become self-sufficient at waste management. Not even on a regional basis (e.g. North America, or Europe) are developed countries expected to

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achieve any kind of self-sufficiency.Obligation to establish waste management capacity nationally -- Here is a clear mandate that each state should develop its own capacity for waste management as an alternative to export. Certainly while it is understood that not every state can do this, certainly wealthy nations of the OECD or collectively, the EU can do this. This is also part of the criteria that has to be weighed by a competent authority exercising a level of control under Basel. For example, if a country has the capacity to manage ships at home it should do so. (Article 4.2.b)

NO – Only ship recycling states are seen as having waste management capacity. Not even on a regional basis are countries expected to achieve any kind of self-sufficiency in ship waste management. Rather a disproportionate burden of ship waste is found in just a few, developing countries.

To establish environmentally sound management (ESM) of hazardous wastes wherever their disposal and prevent trade of wastes if there is reason to believe they will not be managed with ESM -- (see Article 4.2.b,c,d,e,g,h, 4.8, 4.10)

NO – Not all countries are required to manage ships with ESM and the HK Convention allows export and import of all ships for recycling regardless of whether ESM is assured. No state can prevent an import or an export under the Convention based on lack of ESM.

To take into account the special needs and vulnerability of developing countries -- (Preamble: recitals 7,20,21, and Article 4.2.e, 4.13, 10.3, 10.4, 11.1)

NO – The HK Convention has zero provisions that recognize that the world is not an even playing field with respect to vulnerabilities of weaker economies to become victim to cost externalization by stronger economies. Indeed the term “human rights” has not been allowed to be used at IMO. The HK Convention institutionalizes that certain poorer areas of the world will receive a disproportionate burden of hazardous waste ships.

Establishment of capacity building or technology transfer mechanisms such as regional training centers and a revolving fund to assist in emergencies (e.g. abandoned ships) -- Basel clearly establishes these financial and training commitments to assist developing countries (Article 14)

PARTIAL – While Article 13 of the HK Convention specified that Parties should assist with technology transfer and training those countries that ask for it, there is no fund, voluntary or otherwise established, nor are there any regional centers envisaged.

No trade or transfer of ships between Parties and non-Parties absent a special Agreement as stipulated under Article 11 -- Basel recognizes the pernicious effects of the trade of toxic wastes and has seen fit to prohibit trade between Parties and non-Parties. The goal of the prohibition is to persuade non-Parties to become part of Basel or to otherwise adopt equivalent measures to ensure the application of a stringent global standard on toxic waste exports. (Article 4.5)

NO -- Article 3.4 of the HK Convention does not prohibit dealings with non-Parties but asks that those non-Parties not be afforded any more favorable treatment than Parties.

Key Obligations – Basel Ban Decisions No export of waste ships that contain hazardous materials to developing countries. If ships are sent to non-Annex VII countries they will need to be pre-cleaned of hazardous materials prior to delivery -- The decision IX/30 asks parties to take into account “relevant decisions” of the Convention in making the determination of “equivalent level of control.” No decision can be more relevant than Decision III/1. Indeed it was the “control” that has stopped

NO – The HK Convention has no equivalent to the Basel Ban Amendment and never has agreed to treat developing countries differently than developed countries to prevent cost externalization to them or exploitation of them with respect to hazardous wastes or global burdens. Despite Decision VII/26 citing the need for looking at the issue of “pre-cleaning” of hazardous wastes prior to export to developing countries, which would be a form of instituting the

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numerous ships from being exported from Europe to date including the Clemenceau. (Decision III/1)

Ban Amendment in principle, the HK Convention did not endeavor to consider this.

No import of ships from OECD countries by non OECD countries -- (Decisions I/22, II/12)

NO – The HK Convention has no requirement of developing countries that they not receive hazardous wastes from OECD countries.

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OEWG 6 MATRIX (filled in by NGO Platform)

Annex to decision OEWG-VII/12*

Overarching considerations to be taken into account:

Special characteristics of ships and international shipping

Principles of the Basel Convention, including environmentally sound management, and the relevant decisions of the Conference of the Parties

* The columns entitled “Basel Convention” and “Hong Kong Convention” list potentially relevant articles, regulations and decisions which are not exhaustive and subject to further verification.

Criteria Basel Convention


Comments to facilitate a preliminary assessment of

equivalent level of control and enforcement274

Scope and ApplicabilityWhat? Coverage of

ships / wastesWastes:

Articles 2.1, 1.1, 2.3, 11, 18

Ships:

Articles 2.1, 4.12

Decision VII/26

Ships:

Articles 2.7, 3, 2.9

Regulation 4, Appendix 1 and 2

Regulations 5, 6, 7, 8.2, 20 (20.3 and 20.4)

Appendix 1 of Inventory Guidelines

NO -- HK Convention does not recognize existent (Basel) definitions of wastes or hazardous wastes. NO -- Presence of hazardousness triggers no special trade control as it does in Basel. NO -- The HK Convention does not cover all ships covered by Basel. Government owned vessels and ships of a certain size are also not covered.


Article 1

Annexes I, III, VIII, IX

Article 2.9

Regulation 4, 5, 6, 7, 8, 9, 10

Regulations 20.2 and 20.3

Appendix 1, 2, 5

Appendix 1 of Inventory Guidelines

NO -- HK Convention does not recognize existent (Basel) definitions of hazardous wastes and does not cover all hazardous wastes covered by Basel. For example, HK Convention has but 16 different hazardous constituents (Annex 5, 2.2). The Basel Convention has in Annex I, 63 different hazardous constituents.

When? Management of life cycle of ship

Articles 1.4, 2.1

Decision VII/26

Articles 4.2 (a), 4.2 (b), 4.2 (c), 4.8

Articles 4.1, 4.2, 2.10

Regulation 4, 5, 6, 7, 8, 9, 10, 11, 20,

Appendix 1, 5, 6, 7

NO -- HK Convention has no obligation to minimize the generation (e.g. toxics use reductions) of hazardous waste at front end of life cycle as does Basel.NO – HK Convention allows the beaching of ships on tidal beaches as being environmentally sound. Such a platform can never be seen as “taking all practicable steps to prevent harm

274 An incomplete example is provided for the first criterion, “Scope and applicability”.

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equivalent level of control and enforcement

to human health and the environment.”NO – HK Convention has no provisions on the minimisation of transboundary movements / national self sufficiency at point of disposal. NO -- HK Convention ceases to have competency over wastes and residues after initial recycling facility including final disposal as does Basel.


Articles 4, 11 Article 3,Reg.8

NO – Basel does nor allow trade between Parties and non-Parties unless a special Article 11 agreement is in place that establishes a form of equivalency. HK Convention opens up for non-party trade with only a vague notion of not allowing “more favorable treatment”

Where? Jurisdiction Articles 1, 2, 4, 11, 26

Articles 2, 3, 8 NO – Basel does not allow the territory of Antarctica to be used for disposal/recycling. NO – Basel has a Party to non-Party prohibition. HK Convention does not. NO -- Basel Ban Amendment places a prohibition on exports to non-Annex VII countries from Annex VII countries. HK Convention does not. NO – Basel Convention prohibits exports to countries lacking ESM facilities, HK Convention does not.

ControlAuthorisations and certifications

Articles 2, 4 Articles 5, 6Reg. 8, 15-23

NO -- HK Convention does not call for every country to provide waste management facilities (e.g. for ships) and to authorize them as does Basel Convention. NO -- HK only regulates the first dismantling- and recycling site, but not any interim facilities or installations for subsequent processing and disposal of waste, Basel requires all such sites to be permitted. NO – HK Convention does not require all transporters of wastes to be authorized to do so.


Article 4, Annex 5.b

Article 8Reg. 10, 15, 16

YES – Both Conventions require that an inventory of hazardous materials be made of ships as waste.

Designation of competent authorities/focal points

Article 5 Article 2, Reg.15

NO – The Hong Kong Convention Competent Authorities only apply to ship recycling states. In the Basel Convention, every Party must have a Competent Authority.

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Articles 2, 4Technical guidelines

Reg.3, 19-22 YES – Both Basel and HK Conventions only have voluntary guidelines serving as performance standards.


Articles 3, 4 Reg.9 NO -- HK Convention only allow for rejection of dismantling, thus no prohibition of import even if ESM is not possible contrary to Basel.NO – Likewise HK Convention cannot prohibit export even when ESM is not possible contrary to Basel. NO – Basel Convention establishes a sovereign right of countries to ban the importation of hazardous wastes (e.g. ships) and all other countries must recognize that and honor it. This is not the case in the Hong Kong Convention.

Traceability and transparency of hazardous materials until final treatment / disposal

Articles 4, 6 Reg. 5, 9, 11, 24 and 25

NO -- HK Convention does not regulate nor have any obligations to track any hazardous materials after the initial recycling facility as does Basel. NO – Not all Basel hazardous materials are covered under the HK Convention and thus no traceability.


Articles 4, 6 Article 16, Reg.9, 24

NO – HK Convention does not provide notification nor consent nor allow denial prior to entry into territory of country. This is a fundamental requirement of Basel. NO – Transit States, Importing States and Exporting States are not involved in having any say in a transboundary movement of ship waste.

Certification of disposal / statement of competion of ship recycling

Article 6 Reg.25 YES – Both require a notification or certificate of completion of disposal/recycling.

Other control mechanisms

Minimization of Transboundary Movements through National Self-sufficiency

Antarctica Ban

Articles 4.2.b, 4.6

NO – Probably the most important control mechanism of the Basel Convention is the obligation to minimize the transboundary movements of wastes (e.g. waste ships).

NO – Exports to Antarctica allowed in HK Convention and are prohibited in Basel.

EnforcementIllegal shipments, violations and sanctioning, including criminalization, of illegal traffic

Articles 4, 9 Articles 9, 10 NO -- HK Convention fails to Criminalize illegal traffic as does Basel. does not criminalise illegal traffic

Dispute Settlement Article 20 Article 14 YES – Both the HK and Basel

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Conventions have similar dispute settlement language.

Duty to re-import Articles 8, 9 None NO -- HK does not include a duty of the exporting state to re-import hazardous waste should illegal export be detected (e.g. abandoned ship)

Exchange of Information by Parties / cooperation and coordinationAccess to and dissemination of information, e.g. administrative, enforcement, emergency matters

Articles 4.2.h, 4.13, 6, 10, 13

Articles 7, 12 YES – Both Conventions seem to allow for adequate exchange of information on enforcement and administrative matters.

Reporting obligations Articles 6, 4.2.f

Reg. 24, 25. NO – HK Convention fails to provide adequate prior informed consent notification (e.g. notifications prior to TBM)


Articles 3, 4.1.a

None NO – HK Convention has no mechanism for states to report on any import or export restrictions they may possess. This is however laid out very carefully in Basel including import and export prohibitions as well as differing definitions of hazardous waste.

Among Parties to advance ESM, through information exchange and technical assistance and capacity building on best practices, technical guidelines, monitoring and public awareness.

Articles 4.2, 13, 10

Article 13 YES – Both Conventions have adequate requirements to assist and provide information on ESM.

3. Summary of Key Points

3.1. Basel’s Article 11 and the Hong Kong Convention

3.1.1. The export of obsolete ocean going vessels laden with asbestos, PCBs, toxic paints, biocides, fuel residues and other hazardous substances, from wealthy shipping companies and nations to some of the poorest communities on earth for extremely hazardous scrapping is precisely the type of scandalous exploitation that the United Nations Basel Convention was designed to halt.

3.1.2. The notion of equivalency of other instruments which might fall within the scope of the Basel Convention’s mandate, has a legal basis in the Convention itself – indeed it is a requirement of the Convention as embodied in Article 11.

3.1.3. Article 11 states that Parties may only enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties “provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention. These agreements or arrangements shall

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stipulate provisions which are not less environmentally sound than those provided for by this Convention in particular taking into account the interests of developing countries.”

3.1.4. When noting that the equivalency must be considered “in particular taking into account the interests of developing countries”, we are handed an even more explicit reminder or the importance of adhering to the Basel Convention’s provisions for protecting the environment and human health in the case of export of ships for scrapping, as the vast majority of such exports currently send hazardous ships to developing countries.

3.2. HK fails to reflect Basel’s Core Obligation -- Minimisation of Transboundary Movements of Hazardous Waste

3.2.1. The Basel Convention, with its many references to the particular interests of developing countries, was drafted with the aim of protecting developing countries from the impacts of economically motivated dumping of hazardous wastes via disposal or recycling. This environmental justice principle, regarding the special concerns and “interests of developing countries” due to their vulnerability to exploitation, is precisely the concern today with respect to the suffering of shipbreaking workers and the environment of poorer communities in developing countries currently involved in shipbreaking.

3.2.2. The Basel Convention recognized that exports of hazardous wastes to developing countries were a means of cost externalization and exploitation. They also recognized that the alternative to exporting your problem waste to lower-wage countries would result in a more sustainable outcome – the minimization of transboundary movement would serve as a driver to the ultimate goal – waste minimization.

3.2.3. Thus it is that probably the most fundamental objective of the Basel Convention is the minimization of transboundary movements of hazardous wastes through national self sufficiency. And the directly related objective of minimization of the generation of hazardous wastes. It was from this core obligation that the Basel Ban Amendment was extrapolated as one of the first major achievements of the Parties after the Convention entered into force. The Basel Ban Amendment (Decision III/1) is now implemented by 33 of the 41 developed countries to which it applies even while still not having entered global force.

3.2.4. Yet because the Hong Kong Convention places blinders on the global realities of global inequity, and therefore the special needs and vulnerablities of developing countries that Basel saw so clearly and thus integral to its design, the Hong Kong Convention utterly failed to reflect Basel’s core -- minimizing transboundary movement of hazardous wastes, in particular to developing countries. The Hong Kong Convention drafters have done this for ships, despite having been given some strong suggestions in Decision VII/26 on how to do this via pre-cleaning during the life-cycle of a ship.

3.2.5. The absence of any attempt by the Hong Kong Convention to minimize the transboundary movement of hazardous waste ships – the fundamental control of Basel, means that there has been no possibility for there to be an equivalent level of control.

3.3. HK Fails to Cover the Same Scope, Creating Massive Loopholes

3.3.1. Additionally, it must be clearly noted that the Basel Convention does not limit its scope of application to certain sizes of materials or objects, nor does it limit them by who owns them. But the Hong Kong Convention fails to consider all ships.

3.3.2. Further, the Basel Convention defines hazardous wastes subject to control very thoroughly through its annexes. The Hong Kong Convention covers only 16 constituents. Basel’s Annex I lists 63 constituents.

3.3.3. Finally and vitally, while the Basel Convention covers the recycling and disposal to final disposition, the Hong Kong Convention stops at the gate of the ship recycling yard,

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meaning that the most hazardous substances such as PCBs and asbestos, once removed from the ship and shipped off, will NOT be covered by the Hong Kong Convention. Should the Basel Convention cede its competency to the Hong Kong Convention, they would not be covered by Basel either. This is because Basel cannot be invoked without there first being transboundary movement which if not first covered by Basel cannot be later invoked at the disposal phase.

3.3.4. Thus it is that some of the most harmful materials from a ship, will enter a developing country via a recycling yard, and once passing through the yard can be simply mismanaged and dumped in the receiving territory – a complete circumvention of the Basel Convention leaving a toxic legacy for generations to come.

3.4. Breaking Ships on Tidal Beaches as “Environmentally Sound Management”

3.4.1. Probably a most telling comparison between the two Conventions lies in the fact that the Hong Kong Convention, has failed to condemn the beaching method of managing hazardous waste ships. This method is known to have fatal shortcomings and such that it can never be considered environmentally sound management. These flaws include inability to contain hazardous residues and waste from the very sensitive marine environment ecosystem of the intertidal zone. It is also fatally flawed in that shifting sands make it impossible to provide adequate emergency equipment access and egress, as well as the impossibility of providing a stable platform to bring lifting cranes alongside the vessels.

3.4.2. The Basel Convention’s technical guidelines have clearly indicated that the beaching method is to be phased out in favor of methods ensuring containment from the environment. The IMO’s continued “neutrality” with respect to beaching ships, and the failure of the Hong Kong Convention to phase this method out of existence, is sadly telling of the commitment to ESM under the Hong Kong Convention.

3.5. Fundamental Principle of “Prior Informed Consent” Missing

3.5.1. Beyond the obligation to minimize the transboundary movement of hazardous waste, the next most fundamental control mechanism defines how the Basel Convention deals with waste trade that cannot as yet be minimized. The answer involves the principled mechanism of “prior informed consent” (PIC). In short this entails a regime by which no country will be forced to receive hazardous waste without their consent, granted only after adequate information is supplied in advance. And of course the converse of consent applies as well – every state has the right to object to an importation of hazardous waste and have that objection honored.

3.5.2. However, remarkably, even this fundamental control mechanism is ignored in the Hong Kong Convention. In the Hong Kong Convention, hazardous waste is viewed strictly as a pure commodity for which no trade controls apply. This turns Basel on its head which saw fit to regulate hazardous waste as a “bad” and not a “good”. While reporting takes place in the Hong Kong Convention, it is only after the hazardous waste ship arrives in the importing country’s territory that a competent authority has the right to object and the objection allowed is not to the importation but to the ship recycling plan or ship recycling facility permit. In this way developing and other countries are forced to receive toxic waste in the form of ships which can become abandoned and for which their importation cannot be remedied by any right of return.

4. Conclusion

4.1. It is without any doubt that the Hong Kong Convention does not provide an equivalent level of control to that of the Basel Convention. It is an instrument that is not even remotely close to the Basel Convention in its fundamental objectives, principles, obligations and scope. Those that would claim that it is can only be doing so for political reasons, and while there may be valid

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political reasons in the views of some countries, that is not the current exercise.

4.2. The current exercise is to determine whether or not there is an equivalent level of control such that the Basel Convention should cede its competency if it proved to be redundant. However it is clear that it is not redundant but provides a unique set of protections to developing countries that exist nowhere else. It does this while driving green design and waste minimization upstream in the life cycle of ships for all countries. Basel has provided very significant advancements in the body of multilateral environmental agreements and it would be a very mistaken – a regressive turning back of the clock were Basel to cede its competency over ships that are defined as hazardous waste.

4.3. Rather it makes real sense for the Basel Convention Parties to agree not only to maintain competency over ships, allowing dual regimes to be in play, but to move rapidly also to improve the ability of Basel to act with respect to managing the transboundary movement of ships taking into account their special characteristics. This was the exercise that Basel was embarking upon when the IMO began to take an interest in the issue. It is to this area of work which the Basel Convention will need to return.

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Annex 1: Basel Convention Decision VII/26. Environmentally sound management of Ship Dismantling

The Conference of the Parties,

Aware of the risk of damage to human health and the environment caused byhazardous wastes and other wastes and the transboundary movement thereof,

Recognizing that many ships and other floating structures are known to containhazardous materials and that such hazardous materials may become hazardous wastesas listed in the annexes to the Basel Convention,

Concerned that ships and other floating structures may pose a threat to theenvironment and human health if they are not, when pre-decontaminated or dismantled,managed in an environmentally sound manner,

Noting the need to improve the standards of ship dismantling worldwide andthe importance of international cooperation in achieving this goal,Recognizing the importance of the environmentally sound management ofdismantling of ships,

Noting that a ship may become waste as defined in article 2 of the BaselConvention and that at the same time it may be defined as a ship under otherinternational rules,

Recognizing the important role that concerned States, ship owners, recyclingfacility operators and other stakeholders have to play in developing mechanisms toensure the environmentally sound management of ship dismantling,

Further recognizing the need to ensure effective enforcement of suchmechanisms, including a reporting system, for ships destined for dismantling,

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Recalling decision V/28 on the dismantling of ships, which mandated the TechnicalWorking Group to collaborate with the International Maritime Organization on thesubject of the full and partial dismantling of ships and, together with the LegalWorking Group, to discuss the legal aspects of the subject under the Basel Convention,

Further recalling decision VI/24 on technical guidelines for the environmentally soundmanagement of the full and partial dismantling of ships,

Noting that the Governing Body of the International Labour Office has adoptedguidelines on safety and health in ship breaking, that the International MaritimeOrganization has adopted guidelines on ship recycling and that the Basel Conventionhas adopted technical guidelines for the environmentally sound management of the fulland partial dismantling of ships,

Noting the importance of promoting the implementation of the above-mentionedguidelines,

Further noting that the International Maritime Organization and theInternational Labour Organization, together with the Conference of the Parties to theBasel Convention, have agreed to establish a joint working group on ship scrapping andhave agreed to terms of reference and working arrangements governing its activities,

Affirming that elements of prior informed consent as elaborated in the BaselConvention enable the minimization of the impact to human health and the environmentassociated with dismantling of ships, recognizing the particular issues that arise in theunique context of ships,

Noting the progress made at the fifty-second session of the InternationalMaritime Organization’s Marine Environment Protection Committee toward thepossible development of a mandatory scheme for ship recycling, including a reportingsystem for ships destined for recycling,

Realizing that States have distinct obligations as Parties to the United NationsConvention on the Law of the Sea and relevant International Maritime Organizationconventions, including obligations of States in their capacities as flag States and asParties to the Basel Convention and including obligations in their capacities as States ofExport, and that States should be able to meet these obligations in a consistent manner,

Noting that duplication of regulatory instruments that have the same objectiveshould be avoided,

1. Reminds the Parties to fulfil their obligations under the Basel Conventionwhere applicable, in particular their obligations with respect to prior informed consent,minimization of transboundary movements of hazardous wastes and the principles ofenvironmentally sound management;

2. Invites Parties, other States, ship owners and other stakeholders to assistin the improvement of the environmentally sound management of ship dismantlingworldwide;

3. Invites Parties, especially developed States, to encourage the establishment of domestic ship recycling facilities;

4. Encourages Parties to ensure their full and effective participation in thedeliberations of the joint working group of the International Maritime Organization, theInternational Labour Organization and the Basel Convention, either through theirrepresentatives or as observers;

5. Invites the International Maritime Organization to continue to consider the

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establishment in its regulations of mandatory requirements, including a reportingsystem for ships destined for dismantling, that ensure an equivalent level of control asestablished under the Basel Convention and to continue work aimed at theestablishment of mandatory requirements to ensure the environmentally soundmanagement of ship dismantling, which might include pre-decontamination within itsscope;

6. Requests the Open-ended Working Group to consider the practical, legaland technical aspects of the dismantling of ships in the context of achieving a practicalapproach to the issue of ship dismantling, to report on developments and to present anyproposals, as appropriate, to the Conference of the Parties at its eighth meeting on alegally binding solution, taking into consideration the work of the InternationalMaritime Organization and t he work of the joint working group.

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Annex II: Basel Convention Decision IX/30: Dismantling of ships

The Conference of the Parties,

Recalling its decision VIII/11 on environmentally sound ship dismantling,

Recalling also its invitation at its eighth meeting to the International Maritime Organization to ensure that the international convention on safe and environmentally sound recycling of ships 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,

Further recalling the principles of the Basel Convention, in particular to minimize the generation and transboundary movement of hazardous wastes, to ensure the environmentally sound management of such wastes and to prevent the export of hazardous wastes to countries without their prior informed consent,

Recalling also the encouragement to the International Maritime Organization to promote the substitution of harmful materials in the construction and maintenance of ships by less harmful or, preferably, harmless materials, without compromising the ships’ safety and operational efficiency,

Further recalling the encouragement to Parties to coordinate at the national level between their International Maritime Organization and Basel Convention representatives and to participate actively in the consideration of the draft ship recycling convention,

Acknowledging work carried out to develop programmes for sustainable ship recycling in collaboration with the International Maritime Organization and the International Labour Organization,

I. Draft international convention on the safe and environmentally sound recycling of ships

1. Welcomes the progress made in the development of an international convention on the safe and environmentally sound recycling of ships (“the ship recycling convention”) by the International Maritime Organization;

2. Invites the International Maritime Organization to continue to have due regard to the role, competence and expertise of the Basel Convention in matters related to ship dismantling and in particular with regard to the environmentally sound management and disposal of hazardous and other wastes;

3. Also invites the International Maritime Organization to continue to incorporate clear responsibilities of all stakeholders in ship recycling, including ship owners, ship recycling facilities, flag States and ship recycling States, with a view to achieving the safe and environmentally sound management of ship recycling, also taking into account the current capacity and the common but differentiated responsibilities and sovereign rights of the Parties;

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4. Requests the Open-ended Working Group:

(a) To carry out a preliminary assessment on whether the ship recycling convention, as adopted, establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety, after having developed the criteria necessary for such assessment, and, in doing so, to take into account:


(ii) The principles of the Basel Convention and the relevant decisions of the Conference of the Parties;

(iii) The comments submitted by Parties and other relevant stakeholders, as appropriate;

(b) To transmit the results of the assessment to the Conference of the Parties at its tenth meeting for consideration and action, as appropriate;

5. Invites Parties to that end, to provide comments on appropriate criteria to be used to the Secretariat, by 31 January 2009;

6. Requests the Secretariat to continue to follow the development of the ship recycling convention and to report thereon to the Open-ended Working Group at its seventh session and to the Conference of the Parties at its tenth meeting;

7. Also requests the Secretariat to transmit this decision for submission to the International Maritime Organization for consideration by the Marine Environment Protection Committee at its fifty-eighth session;

II. International cooperation and technical assistance activities on the environmentally sound management of ship dismantling

8. Invites Parties and others to continue to transmit to the Secretariat relevant information that may assist stakeholders in developing measures to address, in the short and medium term, the potentially harmful consequences of ship dismantling on human health and the environment and requests the Secretariat to continue to make any such information received available on the Basel Convention website;

9. Underlines the importance of continued inter-agency cooperation between the International Labour Organization, the International Maritime Organization and the Basel Convention on issues related to ship dismantling, as appropriate;

10. Welcomes the development of implementation programmes relating to sustainable ship recycling and requests the Secretariat, subject to the availability of funding, to continue its work and to develop further the programmes for sustainable ship recycling in conjunction with other bodies, in particular the International Maritime Organization and the International Labour Organization, and to report thereon to the Open-ended Working Group at its seventh session for its consideration and for the Open-ended Working Group to report thereon to the Conference of the Parties at its tenth meeting;

11. Calls upon all Parties and other stakeholders in a position to do so to make financial or in-kind contributions to the implementation of activities under the relevant programmes;

12. Requests the Secretariat to report to the Open-ended Working Group and the Conference of the Parties on the outcome of the third session of the Joint Working Group of the International Labour Organization, the International Maritime Organization and the Basel Convention on Ship Scrapping.

END

Annex III: OEWG-VII/12: Environmentally sound dismantling of ships

The Open-ended Working Group,

Recalling decision IX/30 of the Conference of the Parties to the Basel Convention,

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Recalling also decision VIII/11 of the Conference of the Parties, by which the Conference of the Parties “invites the International Maritime Organization 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”,

Recalling further the request by the Conference of the Parties at its ninth meeting to the Open-ended Working Group at its seventh session to carry out a preliminary assessment of whether the ship recycling convention, as adopted, establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety,275 after having developed the criteria necessary for such assessment, and, in doing so, to take into account:

(a) The special characteristics of ships and international shipping;

(b) The principles of the Basel Convention and the relevant decisions of the Conference of the Parties;

(c) The comments submitted by Parties and other relevant stakeholders, as appropriate,

Acknowledging that, in its decision IX/30, the Conference of the Parties requested that the results of the assessment should be transmitted to it at its tenth meeting for consideration and action, as appropriate,

Stressing the importance of implementation programmes relating to sustainable ship recycling in the light of the forecasts of tonnage to be dismantled in the near future, which indicate a need for appropriate action from the international community,

I

Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships

1. Welcomes the adoption of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships;

2. Invites the International Maritime Organization to continue to have due regard to the role, competence and expertise of the Basel Convention in matters related to ship dismantling and in particular with regard to the environmentally sound management and disposal of hazardous and other wastes;

3. Considers the criteria contained in the annex to the present decision to be an appropriate basis for further work, including discussion, to implement decision IX/30;

4. Invites Parties and other relevant stakeholders, based on these criteria:

(a) To review and complete the table set out in the annex to the present decision;

(b) On the basis of the table, to provide a preliminary assessment of whether the Hong Kong Convention establishes an equivalent level of control and enforcement as that established under the Basel Convention, in their entirety, and in doing so, to take into account:


(ii) The principles of the Basel Convention and the relevant decisions of the Conference of the Parties;

(iii) The comments previously submitted by Parties and other relevant stakeholders, as appropriate;

5. Also invites Parties and other relevant stakeholders to submit their tables and preliminary assessments pursuant to paragraph 4 above to the Secretariat by 15 April 2011 and requests the Secretariat to publish these on the website of the Basel Convention;

6. Requests the Secretariat to compile and synthesize the completed tables and to publish these and the preliminary assessments by 15 June 2011 on the website of the Basel Convention;

275 Editors’ note: This wording, as it appears here and elsewhere in the present draft decision, is taken verbatim from the text of decision IX/30 and has not been edited.

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7. Also requests the Secretariat to transmit the compilation and synthesis of the completed tables and the preliminary assessments referred to in paragraph 6 above to the Conference of the Parties at its tenth meeting for consideration and action, as appropriate;

8. Further requests the Secretariat to continue to follow developments in relation to the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, in particular the development of the guidelines in that regard, and to report thereon to the Conference of the Parties at its tenth meeting;

9. Requests the Secretariat to transmit the present decision to the International Maritime Organization for consideration by the Marine Environment Protection Committee at its sixty-first session;

II

International cooperation on the environmentally sound dismantling of ships

1. Underlines the importance of continued inter-agency cooperation between the International Labour Organization, the International Maritime Organization and the Basel Convention on issues related to ship dismantling, as appropriate;

2. Welcomes the development of implementation programmes relating to sustainable ship recycling and requests the Secretariat, subject to the availability of funding, to continue its work and to develop further the programmes for sustainable ship recycling in conjunction with other bodies, in particular the International Maritime Organization and the International Labour Organization, and to report thereon to the Conference of the Parties at its tenth meeting;

3. Calls upon all Parties and other stakeholders in a position to do so to make financial or in kind contributions to the implementation of activities under the relevant programmes relating to sustainable ship recycling;

4. Requests the Secretariat to report to the Conference of the Parties at its tenth meeting on the outcome of the third session of the Joint Working Group on Ship Scrapping of the International Labour Organization, the International Maritime Organization and the Basel Convention, and to provide further information, if available, on the scheduling of further sessions of the Joint Working Group;

5. Encourages Parties to be mindful of the recommendations, in particular those on interim measures, of the third session of the Joint Working Group on Ship Scrapping of the International Labour Organization.

NGO Platform on ShipbreakingRue de la Linière 11BE - 1060 Brussels

Tel: +32 (0)2 6094 419Mob: +32 (0) 485 190 920

www.shipbreakingplatform.org

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7. The UN Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights

Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights

Preliminary assessment of whether the Hong KongConvention establishes an equivalent level of control and enforcement as that established under

the Basel Convention

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.276

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 of the IMO are also parties to a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

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 276* Mr. Calin Georgescu was appointed Special Rapporteur in 2010 by the Human Rights Council. As Special Rapporteur, he is independent from any government or organisation and serves in his individual capacity. See the annex to the present submission for further information on the mandate of the Special Rapporteur.? UNEP/CHW/OEWG/7/21.

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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).277 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.278 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

277 The hazardous materials listed in Appendix 1 are: asbestos, ozone-depleting substances, Polychlorinated biphenyls (PCB) and anti-fouling compounds and systems. The adverse human rights impact of these and other toxic materials that may be present on end-of-life ships is considered in greater detail in A/HRC/12/26, paras. 19-30.278 See infra, para. 10.

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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.279

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.280 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.281 The Special Rapporteur acknowledges that the Basel Convention – which had not been specifically adopted to regulate ship

279 See A/HRC/12/26, paras. 41-42. 280 In 2009, 98 per cent of the world’s tonnage was recycled in five countries: China, India, Bangladesh, Pakistan and Turkey. 281 In South Asia, ship recycling takes place on sandy beaches, a method commonly referred to as “beaching”. Since 2004, more than 80 per cent of end-of-life vessels of 500 GT and above have been scrapped on tidal beaches in South Asia. (...) The current situation of the ship-recycling market is characterised by fierce competition between Bangladesh, India and (to a lesser extent) Pakistan, while other competitors with greater technical capacity, such as facilities in China, Turkey and the European Union, are only able to occupy market niches for special types of ships, small vessels, or the fleet of particularly committed shipowners (A/HRC/12/26, paras. 16 and 18).

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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 requirement of “prior informed consent”, explicit approval of every ship entering a party’s jurisdiction should be required;

(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

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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

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“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.

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Annex

Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights

In 1995, the then United Nations Commission on Human Rights (now Human Rights Council) noted that the illicit dumping of toxic and dangerous wastes and products has an adverse effect on the enjoyment of several human rights, and decided to appoint, for a period of three years, a Special Rapporteur with a mandate to examine the human rights aspects of this issue.

Ms. Ouhachi-Vesely from Algeria was appointed as Special Rapporteur in 1995, and her mandate was renewed twice, in 1998 and 2001. Mr. Okechukwu Ibeanu was appointed Special Rapporteur in July 2004 and his mandate was renewed in 2007. Following the end of his tenure, the Human Rights Council appointed Mr. Calin Georgescu as the new Special Rapporteur in August 2010.

The scope of the mandate of the Special Rapporteur was reviewed during the 9 th session of the Human Rights Council. The Council decided to strengthen the mandate so as to cover all kinds of movement and dumping of toxic and dangerous products and wastes (Human Rights Council resolution 9/1). On the basis of this resolution, the Special Rapporteur has now the task to investigate the adverse effects that both transboundary and national movements and the dumping of hazardous products and wastes have on the enjoyment of human rights. Furthermore, the resolution requests the Rapporteur to study the potential adverse effects of all hazardous products and wastes, whether illicit or not.

Resolution 9/1 urges the Special Rapporteur “to continue to undertake, in consultation with the relevant United Nations bodies, organisations and the secretariats of relevant international conventions, a global, multidisciplinary and comprehensive study of existing problems and new trends of, and solutions to, the adverse effects of the trafficking and dumping of toxic and dangerous products and wastes on human rights, (...) with a view to making concrete recommendations and proposals on adequate measures to control, reduce and eradicate these phenomena” (para. 4).

It also invites the Special Rapporteur, in accordance with his mandate, to include in his report to the Council comprehensive information on:

(a) The adverse effects on the full enjoyment of human rights, including in particular the right to life, the enjoyment of the highest attainable standard of physical and mental health resulting from the movement and dumping of toxic waste and dangerous products and wastes;

(b) Human rights responsibilities of transnational corporations and other business enterprises that dump toxic and dangerous products and wastes;

(c) The question of rehabilitation of and assistance to victims;

(d) The scope of national legislation in relation to transboundary movement and dumping of toxic and dangerous products and wastes;

(e) The human rights implications of waste-recycling programmes, the transfer of polluting industries, industrial activities and technologies from the developed to developing countries and their new trends, including e-waste and dismantling of ships

(f) The question of ambiguities in international instruments that allow movement and dumping of toxic and dangerous products and wastes, and any gaps in the effectiveness of the international regulatory mechanisms. (para. 5)

Over the years, the current mandate holder and his predecessor have developed specific approaches and methodologies to carry out the mandate entrusted to the Special Rapporteur by the Commission (and then the Council).

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As is the case for all experts appointed by the Human Rights Council, the Special Rapporteur reports annually to the Human Rights Council. Annual reports provide an in-depth analysis of selected thematic issues. In deciding which thematic issues to focus on, the Special Rapporteur considers factors such as the extent and gravity of the real or potential human rights violations, whether an international regulatory framework has been established to address a particular problem, and whether an analysis from the perspective of victims of human rights violations could add impetus to ongoing efforts towards multilateral regulation to address the particular issues. Recent annual reports focused on the following issues:

(a) human rights impact of ship recycling (2009);

(b) the right to information and participation (2008);

(c) the use of toxic and dangerous products in contemporary armed conflict (2007);

(d) human rights impact of the chronic, low-level exposure to hazardous chemicals (2006).

Country visits

In addition to reporting to the Human Rights Council, the Special Rapporteur carries out, upon the invitation of the Government, visits to countries relevant for the mandate. These countries are identified on the basis of information gathered by the Rapporteur or received from third parties. Country visits enable the Special Rapporteur to examine, in a spirit of co-operation and dialogue, existing problems relating to the movement and dumping of toxic and dangerous products and wastes, with a view to making concrete recommendations and proposals on adequate measures to control, reduce and eradicate these phenomena. During these visits, the Special Rapporteur holds meetings with a wide range of governmental and non-governmental actors and visits places, such as mines, dumping sites or landfills designed for the controlled storage of pesticides and other hazardous waste, which enable him to understand better problems associated with the dumping of toxic and dangerous products and wastes in the country concerned and their adverse effects on the local population. In recent years, the Special Rapporteur visited the following countries:

(a) India (January 2010), to examine the adverse effects that hazardous activities, such as ship recycling and the recycling of electrical and electronic waste (e-waste), have on the enjoyment of human rights of individuals working in these sectors or living close to the places where these activities take place;

(b) Kyrgyzstan (September 2009), to examine the adverse impact of uranium tailings and obsolete pesticides on the human rights of individuals and communities living close to toxic dump sites;

(c) Côte d’Ivoire (August 2008) and the Netherlands (November 2008), to assess the human rights impact of the Probo Koala incident, in which the Probo Koala, a ship flying the Panamanian flag chartered by a Dutch transnational corporation, Trafigura, allegedly disposed of 500 tonnes of toxic wastes in Abidjan (Côte d’Ivoire);

(d) Tanzania (January 2008), to study the adverse effects caused by small-scale and medium-scale gold and diamond mining activities on the human rights of local population;

(e) Ukraine (January 2007), to examine reported cases of illicit transfer of toxic wastes and dangerous products to the country and examine the problems posed by existing stockpiles of domestically-produced toxic waste and obsolete pesticides;

(f) Turkey (March 2004), to consider the adverse human rights impact of ship breaking activities carried out in Aliaga facilities and examine several cases of illicit transfers of end-of-life vessels containing large amounts of toxic and hazardous substances and materials to the country.

Individual complaints

The Special Rapporteur can receive and consider complaints from victims of human rights violations that come within the scope of his mandate, and intervene with Governments on their behalf. The intervention can relate to situations in which a human rights violation has already occurred, is ongoing, or has a likelihood of occurring. The process, in general, involves the sending of a letter to the concerned Government requesting information and comments on the allegation, and asking that preventive or investigatory action be taken. Information concerning the

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alleged violation and replies received from concerned Governments, if any, are included in a communication report that the Rapporteur submits to the Council on an annual basis along with the annual report.

Communications are not only addressed to States. Resolution 9/1 requires the Special Rapporteur to consider the human rights responsibilities of transnational corporations and other business enterprises that dump toxic and dangerous products and wastes (para. 5(b)), and in several occasions the Special Rapporteur entered in a direct dialogue with transnational corporations, for example mining companies, to request information about alleged human rights violations relating to their activities.

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Documents

Open-ended Working Group – 3 - Welcome to Basel …archive.basel.int/meetings/cop/cop10/documents/i18e... · Web viewIn practice, over 40 States belong to the three most advanced