Green Ships:Ship breaking Regulations
Hong Kong Convention
Hong Kong Convention has been adopted under the auspices of the IMO in 2009 after more than five years of negotiations, and is expected to enter into force in 2015. (Alam). The aim of the Convention is to provide regulations for the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound recycling. (Alam). The Convention requires all vessels to carry detailed, regularly updated inventories of hazardous materials throughout their years of service. (Alam)
The Convention requires all vessels to carry detailed, regularly updated inventories of hazardous materials throughout their years of service. (Alam). ships to be sent for recycling will have to meet certification standards, including carrying out an inventory of hazardous materials, specific to each ship. Ships will have to have an initial survey to verify the inventory of hazardous materials, surveys during the life of the ship, and a final survey prior to recycling, (Alam). Ship recycling yards must be authorised,30 and will be required to provide a ‘Ship Recycling Plan’, to specify the manner in which each ship will be recycled, depending on its particulars and its inventory. (Alam). This Convention tries to cover all aspects of a ship's life (described by Bhattacharjee as ‘the cradle-to-grave-approach. (Alam). The Convention addresses the crucial issue of ‘green ship building and design’ which neither the Basel Convention nor any other international treaties directly addresses. (Alam). May 2009, Hong Kong International Convention for Safe and Environmentally Sound Recycling of Ships adopted. (Chang). Aimed at ensuring ships when recycled after reaching end of operational lives do not pose unnecessary risk to human health and safety or to the environment (Chang). Convention applies to: ships entitled to fly the flag of a Party or operating under its authority and ship-recycling facilities operating under the jurisdiction of a Party (Chang)
Arguably, this is a substantial improvement on the approach of the Basel Convention, 33 though ‘the 2009 Hong Kong Convention itself does not introduce a compulsory and environmentally sound shiprecycling method. (Alam). Furthermore it fails to adequately address ‘final management of waste’, and it has multiple exclusions such as ‘warships, naval auxiliary ships or other ships owned or operated by a Party and used only on governmental, non-commercial service. (Alam). However, the newly adopted Convention has been criticised as it does not impose substantial obligations on shipbreaking countries or ship owners to improve the present conditions. It fails to demand decontamination of ships within developed countries prior to the final export. (Alam). It seems to shift the responsibility of polluters to the victims by concentrating only on downstream environmentally sound management of ship dismantling whilst ignoring the realities of the true capacity of developing countries to adhere to such obligations. (Alam). As shipbreaking is primarily conducted in developing countries—those with the lowest capacity—the Convention's focus on these countries undermines the principle of common but differentiated responsibility. (Alam). The Convention also does not entirely ban the practices of dismantling ships on beaches. In fact, the IMO Ship Recycling Convention is much weaker than the Basel Convention. (Alam). The ultimate difficulty with the Hong Kong Convention relates to its enforcement, for example, it requires ‘the signature of the five main ship recycling States, including Bangladesh, China, India, Pakistan and Turkey. (Alam). However, domestic law enforcement in Bangladesh is hampered by the lack of recognition of shipbreaking as a formal industry. (Alam)
According to AFS, will enter force and become binding on the parties one year after 25 states, representing 25% of the world’s merchant shipping tonnage, have ratified it. (Gipperth). Panama became the 25th state (out of 166 IMO member countries) to ratify the convention. These 25 countries represent 38.09% of worlds merchant shipping tonnage, convention entered force September 2008. (Gipperth)
AFS Convention prohibited all use of TBT based antifouling paints in 2008. (Stichnothe)
Due to entering into force of AFS convention on September 2008, huge amount of TBT containing wastes is expected to be produced, near shipyards, in following months. (Stichnothe)
The main aim of the regulation is that European ships have to be dismantled in safe and environmentally sound facilities. (Alam). According to the Regulation, all waste, including end-of-life ships and vessels, destined for disposal is subject to the requirement of prior notification. (Alam).
In March 2012, the European Commission adopted a proposal for new regulation on ship recycling, which has been approved by the European Parliament in April 2013. (Alam). The proposal aims to implement the Basel Convention and an Amendment to the Convention (the ‘Ban Amendment’), which has not yet entered into force. (Alam). European ships are only allowed to be recycled in facilities that are registered in a European list of recycling facilities (apply for inclusion with evidence that they meet stipulated requirements) (Alam)
The Basel Convention remains the principal international legal instrument of regulation on the shipbreaking industry. (Alam). The main purpose of the Basel Convention is to ensure that parties take responsibility for their own hazardous waste, establish hazardous waste disposal facilities (including recycling) within their territory, minimise the generation and transboundary movement of hazardous waste, and ensure that they do not export the hazards and damage to human health and the environment, to other countries. (Alam). The European Waste Shipment Regulation 259/93/EEC determines which procedures to apply before waste can be shipped within, into and out of the European Community.26 The Regulation is largely based on the Basel Convention. (Alam). In most cases, ships exported for shipbreaking are a clear violation of these objectives. (Alam). United States dominated many of original Basel Convention negotiations, failed to ratify agreement, joining Haiti and Afghanistan as only signatories to the agreement that have failed to ratify treaty.
Firstly, it obligates the Parties, irrespective of their status (e.g., State of Export, Import, Transit, flag or port State), to prohibit or not permit the export of hazardous and other wastes to parties, which have prohibited the import of such wastes. (Alam). Basel Convention is environmentally sound management, which means taking all practicable steps to ensure protection of human health and the environment. (Alam). Basel Convention defines “illegal traffic” of hazardous wastes and makes it a criminal act. (Alam). Basel Convention's 7th Conference of Parties has recognised that end-oflife vessels containing PCBs, asbestos, heavy metals and other hazardous substances should be legally defined as hazardous wastes in international law. (Alam). Therefore, ships containing such hazardous constituents and destined for ship breaking should be defined as hazardous wastes. This is a significant area of reform for the Basel Convention which requires clarification. (Alam). failure to prescribe a process by which to ascertain the information has meant that assessment is reliant on representations made by authorities in the importing state. This is problematic where lack of capacity and endemic corruption are regularly encountered. (Alam). The Basel Ban Amendment64 prohibits all hazardous wastes from being transported from OECD nations to non-OECD nations. (Alam). The Organisation for Economic Co-operation and Development (34 countries founded in 1961) http://www.oecd.org/about/membersandpartners/list-oecd-member-countries.htm. (Alam). establishes a total ban on exports of hazardous wastes from OECD and EC countries to developing countries. Fulfills the purpose of the convention, namely, “to prevent the developed nations from ‘dumping’ on the developing nations. (Alam)
ambiguities in the Convention. Arts. 4.1 and 6 of the Basel Convention stipulates that no shipment of waste should take place without all “States Concerned” being informed and consented. (Alam). It is well known that this requirement can be circumvented by unscrupulous waste ship traders by declaring a ship to be waste only after it is in international waters or already at the shipbreaking state. (Alam). The “prior informed consent” (PIC) mechanism requires that the state of export informs an importing state of any transfer, detailing accurately the nature and volume of the waste, and receives written consent from the state of import. (Alam). Violations have shown, however, that exporting parties frequently misrepresent the nature of the waste involved. (Alam). Abidjan disaster the waste concerned was described as ‘routine slops’, the dirty water from washing naval tanks, but was revealed to actually be a mixture of fuels, caustic soda and over two tonnes of hydrogen sulphide. (Alam). This lack of technical capacity has meant that importing states are often unable to ascertain whether the information provided is indeed correct. (Alam). The difficulties are further exacerbated by the fact that the Convention offers no explanation of ‘environmentally sound management’ beyond, ‘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’. 53 Exactly what is required then is subject to interpretation and conjecture. (Alam). This limitation has resulted in what is termed the ‘recycling loophole’. 59 It is argued that most waste transfers claimed to be for reuse or reclamation are either ‘sham recycling’, where future use is fabricated to disguise the fact that the waste is actually bound for dumping or ‘dirty recycling’, where the recycling process itself is harmful to the environment and human health. (Alam). Amendment struggles to take significant effect, as participation in ratifying the amendment is low and it has not entered into force yet. (Alam). no direct legal ban on the transboundary movement of hazardous wastes from developed to developing countries. (Alam). Basel Convention- Minimize amount and hazard level of wastes generated worldwide, where generation of hazardous waste is unavoidable such wastes should be disposed of as close to source of generation as possible, stresses environmentally sound management and disposal of hazardous wastes (last point is vague in the treaty, not enforceable or accountable). (Dodds). Basel Convention-failed to create fund to minimize damage from international hazardous wastes, did not prohibit transfer of hazardous waste but rather facilitated movement to countries with developing economies. (Dodds). Basel Convention totally exempts bilateral and multilateral agreements with nonparty countries(nonmember countries, US, and member countries, India, to enter into contracts for disposal of waste). (Dodds). 1989 Basel Convention not entirely adequate to challenge all risks and problems arising from ship recycling facilities. (Chang). Basel convention does not indicate detailed rules for the recycling process, because of this the IMO took ship recycling and its environmental impact onto its agenda. (Chang)
The Law of the Sea Convention 1982 contains obligations of the states concerning land-based environmental pollution of the sea; most important the obligations contained in Articles 192 and 194. According to Article 192, ‘states have the obligation to protect and preserve the marine environment’. Furthermore, states shall according to Article 194 ‘take […] measures […] to prevent, reduce and control pollution of the marine environment’. Bangladesh ratified this Convention in 2001 The Stockholm Convention can be relevant when considering Persistent Organic Pollutants (POP) such as PCBs; a pervasive substance in many ships International Convention on the Control of Harmful Antifouling Systems on Ships 2001. It prohibits the use of anti-fouling systems that burdens the environment. Anti-fouling systems that use organotin compounds have to have an additional layer as a barrier to prevent the harmful substances from being released to the environment. substandard beaching yards the anti-fouling paint usually does not get removed professionally, but simply gets scaped off and released to the environment. damaging not only to the workers, but also to the coastal ecosystem. The requirement of over-coating worsens the problem because it makes it more difficult to remove the harmful bottom layer of paint. IMO dedicated legislator of global shipping industry since maritime catastrophes in 1960’s. (Chang) In addition, joint efforts with the IMO, the International Labour Organization (ILO) and the Conference of Parties to the 1989 Basel Convention were also made to establish a Joint Working Group on Ship Scrapping. (Chang) Since decision making process within IMO (International Maritime Organization) is base on principle of state sovereignty, state members are free to enter any IMO Convention. (Gipperth)