Recycling of Ships
(1)
Faculty of Law, Queensland University of Technology, Brisbane, Queensland, Australia
5.1 Introduction
A vessel may be a source of marine and coastal pollution even after the end of its commercial life. ‘Shipbreaking ’, as an industry, is also known as ‘ship recycling ’ or ‘ship dismantling ’. It is one of the most hazardous industries in the world.1 Most of the shipbreaking industries are now located in the developing countries of Bangladesh, China, India, Pakistan and Turkey. There is no proper mechanism or integrated system for the recycling of end-of-life ships. Nevertheless, this industry makes some contribution to the global economy, as well as to the smooth operation of international shipping.2
Transboundary movement and environmentally-sound disposals of end-of-life ships are partially regulated by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention ).3 However, the application of this Convention to the shipbreaking industry is somewhat problematic.4 Against this backdrop, IMO adopted the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009.5
5.2 Background
In October 2004, the Conference of Parties of the Basel Convention (“CoP 7”) was held. At the Conference it was decided that a ship can be a hazardous waste, leading to the proposal of a legally-binding instrument to prohibit exports of end-of-life ships without the prior informed consent of the recycling State, and to guarantee that shipbreaking will be carried out in an environmentally-sound way.6 But the shipping industry, with the support of certain rich States, seriously opposed this proposition, and hoped that the IMO would adopt a legally binding rule for shipbreaking that would be less stringent than the Basel Convention.7 Ultimately, the CoP 7 adopted a non-legally binding decision urging, amongst other things, IMO :
[T]o 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.8
This decision reflects the positions of the Basel parties on two highly-debated issues. Firstly, the proposed IMO Convention will ensure an equivalent level of control as regarding prior informed consent, as established under the Basel Convention. And the proposed Convention will finally ensure the environmentally-sound management of ship dismantling, which may or may not include pre-decontamination of ships. Using the word “might” acknowledges the disagreement between parties with respect to the pre-cleaning of ships before sending them to recycling States.
Against this backdrop, in July 2005, the Marine Environment Protection Committee (MEPC ) of the IMO decided to develop a new legally-binding convention for shipbreaking.9 The new instrument intends to take a ‘cradle-to-grave’ approach without compromising the safety and operational efficiency of ships. The MEPC in principle agreed that this legal instrument would be adopted in the biennium 2008–2009.10 In December 2005, the IMO Assembly also endorsed this decision and requested that the MEPC draft a legally-binding convention that would include provisions for:
“the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound recycling, without compromising the safety and operational efficiency of ships;
the operation of ship recycling facilities in a safe and environmentally sound manner; and
the establishment of an appropriate enforcement mechanism for ship recycling (certification/reporting requirements).”11
After discussions at multiple meetings of the MEPC , the IMO adopted a convention on ship recycling in 2009. Initially, Norway submitted a draft for the proposed convention.12 In March 2006, the MEPC 54 established a correspondence group13 that considered the Norwegian draft and submitted a report to the MEPC 55.14 The MEPC 55, which met in October 2006 in London, considered the report of the correspondence group.15 It also arranged for the correspondence group to discuss and further develop the draft text.16 At that meeting it was agreed to hold an inter-sessional meeting of the Ship Recycling Working Group before the MEPC 56.17 The MEPC 56, held in July 2007, considered the second report of the Inter-sessional Working Group.18 The MPEC 56 decided to hold a third meeting of the inter-sessional working group in January 2008 before the MEPC 57.19 The MEPC 57, held in April 2008, considered the third report of the Inter-sessional Working Group and the revised text of the draft Convention submitted by the group.20 Finally, the MEPC 58, held in October 2008, approved the text of the draft convention.21 In May 2009, a diplomatic conference held in Hong Kong adopted the Convention, per the recommendation of the MEPC 58. The Convention has been named the “Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009.”
The following section will briefly introduce the salient features of the Convention and, finally, will discuss the critical legal debates presently surrounding the Convention.
5.3 Structure of the Convention
The Convention includes 21 articles, which define the basic principles of the Convention. The articles are followed by an Annex that outlines the elaborate regulations for environmentally-sound recycling of obsolete ships. Chapter 1 of the Annex is dedicated to general provisions. Chapter 2 of the Annex outlines the requirements for construction, operation, maintenance, surveys, certification, and preparation for recycling of ships. Chapter 3 of the Annex elaborates provisions for regulating recycling facilities. Finally, Chapter 4 of the Annex outlines the reporting requirements.22 The Convention will be supplemented by several guidelines. Initially, the working group considered nine guidelines23; but the correspondence group ultimately decided to develop just six of these.24 There was also a proposal from some delegates that parties should develop a binding IMO code rather than recommendatory guidelines,25 but this opinion failed to get enough support.26
5.4 Salient Features of the Convention
5.4.1 General Obligations
The Convention imposes a general obligation on the parties “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 ”.27 To ensure that these goals are met, State parties must “enhance ship safety, protection of human health and the environment throughout a ship’s operating life”.28 The Convention takes a cradle-to-grave approach, which is very much needed for the environmentally-sound disposal of end-of-life vessels.
The Convention includes an article declaring that States may take more stringent measures, consistent with international law, with respect to safe and environmentally-sound recycling of ships.29 But some of the members of the working group have raised an objection to this provision.30 These objectors are of the opinion that a State always has a right to apply regulations that are more stringent than international laws with respect to ships and recycling facilities within its jurisdiction, so no special article is necessary.31 They argue that this article could give coastal States additional power to apply stringent regulations to the ships of other parties.32 Therefore, these objectors claimed that this article should be deleted from the Convention.33 However, not all of the parties were supportive of this change, and the article has been included in the Convention.34
This Convention applies to “ships entitled to fly the flag of a Party,” as well as to “Ship Recycling Facilities operating under the jurisdiction of a Party”.35 It imposes an obligation on both flag States and recycling States to take appropriate action for compliance with the Convention by their ships and recycling facilities.36 The Convention also imposes on the parties a general obligation of effective implementation, compliance with, and enforcement of the Convention and also of “encourag[ing] the continued development of technologies and practices” for green ship recycling.37
5.4.2 Green Shipbuilding
The Convention requires State parties to “prohibit and/or restrict the installation or use of Hazardous Materials listed in Appendix 1” of the Convention.38 This provision appears to be sound and may play a vital role in ensuring environmentally-sound recycling of ships. The initial draft of the Convention also required State parties to prohibit or restrict the use of hazardous materials listed in the other IMO conventions.39 Some delegates seriously debated the issue of inclusion of hazardous materials listed in other IMO conventions, as the draft Convention now defines all prohibited and controlled hazardous materials in its Appendices 1 and 2.40 Ultimately, this provision was omitted from the Convention.
5.4.3 Inventory of Hazardous Wastes
To provide specific information on hazardous materials, the Convention requires parties to ensure that “[e]ach new ship shall have on board an Inventory of Hazardous Materials”.41 Inspection and verification of the inventory must be in accordance with the guidelines developed by IMO .42 Existing ships will have to comply with the same provision 5 years after the entry into force of the Convention or before going for recycling, whichever is earlier.43 In addition, the inventory must specify that the ship complies with the green shipbuilding requirements of the Convention.44
5.4.4 Preparation for Ship Recycling
The Convention requires that a ship have “on board either an International Certificate on Inventory of Hazardous Materials or an International Ready for Recycling Certificate” prior to engaging in any recycling activity.45 A ship can be recycled only at authorised recycling facilities.46 Ship owners must provide the recycling facility with “all available information relating to the ship for the development of the Ship Recycling Plan ”.47 Ship owners must also take necessary steps “to minimize the amount of cargo residues, remaining fuel oil, and wastes remaining on board” before entering a recycling facility.48 Although the Convention provides for minimising the Wastes on board, there is no provision for pre-cleaning of hazardous substances in the structure of the ship, except a conditional requirement for oil tankers.49
In the second inter-sessional working group meeting, there was a debate on the development of another regulation on recycling. The European Commission proposed a new regulation which would provide for a final survey, an inventory of hazardous materials, a ship recycling plan, and—to the extent possible—arrangement for removal and safe recovery or disposal of hazardous materials prior to the final voyage and gas-freeing.50 This proposal did not receive a positive response from the working group because there were serious reservations from certain countries and the shipping industry.51 These sceptics were of the view that the proposal would overlap with many other provisions of the Convention.52 Accordingly, no such regulation was included in the Convention. In the final stage of negotiation, a special provision for tankers was included as the result of an Indian proposal.53 This provision will be discussed in detail later in this book.
From the very beginning of the negotiations, “India proposed that both the scenarios of the ‘ship going to [a] recycling yard on its final voyage under its own power’ and [the]’ ship proceeding on tow’ should be addressed”.54 The working group concluded that this requirement had been covered by the definition of a “ship”.55 This issue is very important from the perspective of the pre-cleaning of hazardous materials.
5.4.5 Certification and Surveying of Ships
The Convention requires State parties to ensure that ships flying their flag or operating under their authority comply with the survey and certification procedures prescribed by the Convention.56 The Convention introduces a compulsory procedure for obtaining an International Certificate on Inventory of Hazardous Materials and International Ready for Recycling Certificate.57 The Convention proposes four types of surveys. It requires “an initial survey before the ship is put in service, or before the International Certificate on Inventory of Hazardous Materials is issued”.58 It also proposes a periodic survey every 5 years.59 An additional survey “may be made at the request of the shipowner after a change, replacement, or significant repair of the structure, equipment, systems, fittings, arrangements and material” of the ship.60 A final survey must be done prior to the ship being taken out of service and the commencement of recycling.61 The key purpose of these surveys is to verify that the Inventory of Hazardous Materials required by the Convention is correct and well maintained. The shipping industry argues that the system of periodic survey will be difficult to comply with and unreasonably burdensome.62
5.4.6 Environmentally-Sound Management of Ship Recycling Facilities
The Convention requires each party to ensure that ship recycling facilities that operate under its jurisdiction are duly authorised and inspected.63 It also requires each party to exchange information, regarding its recycling facilities, with the IMO and other parties.64 The Convention outlines the control, authorisation, management of hazardous materials, emergency response, and reporting procedures for ship recycling facilities.65
The Convention specifically obligates States to enact the necessary domestic legal framework to ensure that ship recycling facilities operating under their jurisdiction comply with regulations and standards set out by the Convention.66 The domestic legal framework also must ensure that recycling facilities are designed, constructed, and operated in a safe and environmentally-sound way.67 Recycling facilities also must develop a ship-specific ship recycling plan in consultation with the ship owner.68 A specific plan for the removal of hazardous materials and the removal of gas for “gas-free-for-hot-work” must be developed as part of the ship recycling plan.69 It will undoubtedly be a big challenge for the developing countries’ ship recycling facilities to comply with these provisions.
In fact, a critical examination of these detailed procedures reveals that it will be near-impossible for developing countries’ shipbreaking yards to comply with these procedures, given their present capacities. Most of the managers and workers in the ship recycling facilities in developing countries are illiterate. Moreover, these recycling facilities do not have the necessary equipment to comply with these rules and regulations. This assertion does not necessarily imply that shipbreaking industries of developing countries should be allowed to operate without meeting the standards of the Convention. Rather, the global community, and particularly the developed countries, should assist developing shipbreaking nations to achieve these environmental standards. The proponents of the Convention are silent about how developing countries’ ship recycling facilities will comply with these requirements.70
5.4.7 Inspection and Detection of Violations
The Convention empowers the port States to inspect the ships of other parties or non-parties, but this inspection is limited to verification that there is a valid International Certificate on Inventory of Hazardous Materials on-board the ship.71 If the ship does not have any valid certificate or the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate, the port State may carry out a detailed inspection.72 The port State is empowered to “warn, detain, dismiss or exclude the ship from its ports” if the ship operates in violation of the Convention.73 A party may take action in response to any violation of the Convention within its jurisdiction by applying its domestic law, or it may report the violation to the offending ship’s flag State for it to take proper action.74 At the same time, the Convention requires the parties not to cause a ship undue detention or delay.75
The parties to the Convention have a general obligation to co-operate in the detection of violations and the enforcement of the provisions of the Convention.76 Upon the request of any other party, a party must carry out an investigation to identify whether a ship recycling facility operating under its jurisdiction is operating in violation of the Convention.77 Moreover, “[t]he report of any such investigation shall be sent to the Party requesting it, including information on action taken or to be taken”.78
5.5 Debatable and Unresolved Issues
5.5.1 Pre-cleaning
Environmentalist non-governmental organisations took a strong position in the negotiation process. This stance was directed primarily at the inclusion of an article in the Convention for compulsory pre-cleaning of ships in any developed country before sending ships to developing countries’ recycling facilities.79 Ship owners were opposed to compulsory pre-cleaning of ships before going to a developing country’s recycling facility, because it would affect the seaworthiness of the ship.80 Due to the pressure of the shipping industry, no compulsory pre-cleaning measures have been included in the Convention.81
Even if pre-cleaning will severely undermine the seaworthiness of a vessel, a compulsory pre-cleaning regime can be established for ships that are proceeding under tow, as they have already lost their seaworthiness. Although no delegate explicitly mentioned this issue, an immensely informative incident involved the French decommissioned naval carrier, Le Clemenceau , which went to India under tow.82 Different sources stated that the ship contained more than 500 tons of asbestos and 100s of tons of polychlorinated biphenyls (PCB s). After a long legal battle in India and France, the French government had to re-import the ship to France .83 Pre-cleaning of hazardous substances could have saved the significant financial costs and time in that case.
5.5.2 Gas-Free-for-Hot-Work Certificate
The explosion of toxic gas while doing hot work on ships is one of the main causes of casualties among workers in the shipbreaking yards. As the world’s largest shipbreaking nation, India raised the seriousness of this issue in the negotiation process. Although all delegates agreed in principle with the Indian proposal to include a provision relating to gas-free-for-hot-work certification, no such regulation has been included in the Convention.84 According to the official submission of India to the MEPC 55,
[i]t was accepted that this essential measure has the greatest impact on safety in recycling facilities and this should be made mandatory. Cargo tanks, slop tanks and all other hazardous liquid tanks and spaces (except for the fuel oil tanks and sludge tanks in machinery spaces which are needed for the final voyage) should be gas-freed for man-entry and hot-work prior to or during the final voyage to the recycling yard and the vessel needs to be handed over in this condition to the recycling yard. This requirement should be included in the Convention.85
Ultimately, the second intersessional working group meeting agreed that this is a vital issue and the Convention should adequately reflect this requirement.86 The Working Committee believes that Regulation 9 of the Convention now covers the issue.87 Although Regulation 9 of the Convention imposes an obligation on the ship recycling facility to provide information about the gas-free-for-hot-work procedure, the regulation does not necessarily introduce any system of compulsory prior gas-free-for-hot-work certification.88
India continued to fight this issue until the end of negotiations. At the Hong Kong Conference, India proposed inclusion of the following provision in Regulation 8 of the Convention for ensuring ‘gas-free-for-hot-work’ certification of tankers:
Ships destined to be recycled shall . . . in the case of tankers certified to carry oil or chemicals, arrive at the Ship Recycling Facility with clean cargo and slop tanks and cargo pipes and in gas-free-for-hot-work condition.89
The conference did not accept the Indian proposal, instead introducing a compromise provision that reads:
Ships destined to be recycled shall . . . in the case of a tanker, arrive at the Ship Recycling Facility with cargo tanks and pump room(s) in a condition that is ready for certification as Safe-for-entry, or Safe-for-hot work, or both, according to national laws, regulations and policies of the Party under whose jurisdiction the Ship Recycling Facility operates.90
This provision will not be able to stop the import of hazardous tankers into developing countries. Under this article, a ship owner will be bound to make a tanker ‘safe-for-entry’ or ‘safe-for-hot-work’ before sending it to a developing country’s shipbreaking yard only if the domestic law of the ship recycling country requires such condition. So, if there is no bar in the domestic law of the ship recycling country, the export of a tanker without making it ‘safe-for-hot-work’ will be allowed. This provision will give a competitive advantage to countries which do not require such certification in their domestic laws and will encourage some developing recycling countries not to enact stringent domestic laws requiring compulsory prior ‘safe-for-hot-work’ certification.
5.5.3 Application of the Convention to Government Ships
The Convention will not apply to government ships.91 However, parties are required to adopt appropriate measures so that government ships act in a manner consistent with the Convention.92
Exclusion of government ships is a highly debatable issue. Such exclusion is surely inconsistent with the spirit of the Convention. More importantly, the Basel Convention , the European Community Waste Shipment Regulation, and the IMO London Dumping Convention did not exclude government ships; meaning there is a conflict between the new Convention and the Basel Convention. There may be valid grounds to exclude government ships when they are in operation, but the Convention should be applicable after the decommissioning and deregistration of the ships from government fleets. Moreover, the Convention should be applicable in cases of transboundary movement of government ships for disposal. In recent times, at least two serious incidents relating to transboundary movement of obsolete government ships have occurred, namely the US Ghost Ships 93 and Le Clemenceau . 94 This issue should be reconsidered in the future development of the international legal regime.
5.5.4 Prior Informed Consent and Equivalent Level of Control to Basel
The Convention introduced a notification and reporting system for proper implementation of the Convention. A ship owner has to “notify the Administration . . . of the intention to recycle a ship in order to enable the Administration to prepare for the survey and certification required by this Convention.”95 Again, a recycling facility preparing to receive a ship for recycling has to notify its government and provide all necessary information.96 While ratifying the Convention, a party “shall declare whether it requires explicit or tacit approval of the Ship Recycling Plan before a ship may be recycled in its authorised Ship Recycling Facility(ies)”.97