MarIus

2.2.1 The scope of the Convention

Today, the Basel convention is the central international (global) instrument for combatting environmentally unsound ship scrapping.(1) Adopted on 22nd March 1989. Its ratification status by far exceeds the ratification status of the Hong Kong Convention.This Convention generally seeks to minimise the generation and transboundary movement of hazardous and other wastes and aims to ensure the environmentally sound management of such wastes.(2) Article 4. On Basel Convention in the ship recycling context see Engels (n. 8 above), p. 124 et seq.From the outset, the Basel Convention does not entirely outlaw the export of waste but instead requires that export and import states meet a number of obligations with respect to hazardous and other wastes.

Does the Basel Convention apply (and if so, on what conditions) to ships which are to be recycled? The conditions for the application of Basel regime are (1) that ships are covered by the ‘waste’ definition of the Basel Convention; (2) that they are subject to transboundary movement; and (3) that both the State of export and the State of import are parties to the Basel Convention.(3) Article 4.5 and Engels (n. 8 above), pp 124–125.

Objections have been raised by some States and industry stakeholders against application of the Basel Convention to ship breaking. It may indeed be questioned whether ships taken out of service to be sent to scrapping are included at all in the definition of «waste». The Basel Convention makes an express exception for wastes which “derive from the normal operations of a ship, the discharge of which is covered by another international instrument.”(4) Article 1(4).Ships as such and their parts are not excluded from the Basel Convention.

Article 2 of the Basel Convention defines “wastes” as “substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law.”(5) Article 2.1. Disposal operations are defined in Annex IV.Obviously, the Convention was not designed to deal with ship decommissioning as such, and a ship as a unit is not mentioned in the Basel Convention and its Annex III (List of hazardous characteristics). However, a ship contains materials which are regulated by the Convention in its hull, equipment, cargo and fuel. The operations at ship scrapping yards are included in the examples of operations defined as ‘disposal’ by the Convention.

In addition, it has also been argued that a ship continues its existence as such until the dismantling operations commence at a yard.(6) See Engels (n. 8 above), p. 127, summarizing the debate.In such a case, the element of transboundary movement on which the application of the Convention is contingent, is arguably not present.

In this author’s view, the real problem of the Basel regime is rather of evidentiary character than of substantive legal character: how to prove that there was ‘intention to dispose’ of the ship before it has left the waters under jurisdiction of the export State.

Although the disagreement as to the application of the Basel regime to ship scrapping persists, national practice and scholarly opinion seem to support the view that the ships may generally be considered as ‘waste’ within the meaning of the Basel Convention.(7) See, e.g., Engels (n. 8 above).

2.2.2 Obligations with regard to prevention of export of ships as hazardous waste

It is outside the scope of this article to give a detailed presentation of general obligations envisaged for States parties under the Basel Convention. For the purposes of this article, it is relevant to mention that the Basel Convention requires the export States to prohibit export of hazardous waste in cases where the import State does not provide a written consent to the specific import (“prior informed consent”) or has prohibited import of such wastes.(8) Article 4(1).

Furthermore, the export State is required to 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”.(9) Article 4(7)(a). The Convention also does not allow the generator or exporter of wastes to commence the transboundary movement in the absence of a proper written confirmation that requirements concerning the consent of the import State have been fulfilled and a contract exists with the disposer (scrapping yard) on environmentally sound management of waste in question.(10) Article 6. These obligations prevent (at least in law, if not in fact) owners of ships from moving the ship destined for scrapping to another State without the notification and proper authorization by the authorities of the export State.

In 1995, a so-called “Basel Ban Amendment” was adopted (in force as of 5 December 2019). This instrument introduced a total ban on all exports of hazardous wastes from OECD-countries to non-OECD countries. In the context of ship recycling, this means (if the ban were in force) that only one existing non-Western shipbreaking market – Turkey – can import ships for recycling.

The Basel Convention defines all transboundary movement of wastes without notification and consent or in contravention of the documentation, as well as movement resulting in dumping of hazardous wastes, as being illegal traffic.(11) Article 9.1. In addition to the requirement to criminalize the illegal traffic of hazardous wastes,(12) Article 4.3. the Basel Convention requires that the export States ensure the taking back of the wastes in question or provide for the proper (i.e. environmentally sound) disposal of the wastes.(13) Article 9.2. Article 8 contains a corresponding requirement to re-import waste where the consent has been given but the contract may not be completed. Thus, the ship sent illegally for breaking in another State must, as a general rule, be returned to the export State. This obligation lies primarily with the exporter or generator of the waste.(14) Article 9.2. (i.e. owner of the ship, cash buyer or another agent).

The Basel Convention requires States to adopt adequate legal, administrative or other measures to implement and enforce the Convention’s provisions, including measures to prevent and punish conduct amounting to violation of the Convention’s obligations.(15) Article 4.4.

2.2.3 Is the Basel Convention adequate to address environmentally unsound ship breaking?

As noted above, the Basel Convention does not contain provisions setting out requirements addressed specifically to owners and operators of ships and shipbreaking yards or recycling facilities. The waste export rules are not tailored to address unsound ship scrapping as such. The Basel regime is also weakened by more or less lawful ways of circumventing its requirements, as well as by evidentiary issues and enforcement difficulties faced by the national authorities.

However, the broad scope of the Basel Convention, and the general formulation of the obligations it imposes on export and import States, has also certain advantages. The broad definition of ‘exporter’, ‘carrier’ and ‘generator’(16) Article 2(15), 2(17) and 2(18). is capable of including a broad range of natural and legal persons involved in initiating, organising, facilitating or performing activities aimed at shipping the vessel to scrapping yards abroad. The notion of a ‘shipowner’ or a ‘shipping company’ under the Hong Kong Convention discussed further below is arguably more limited.

However, as the State of export is defined as a State party “from which a transboundary movement of hazardous wastes or other wastes is planned to be initiated or is initiated”,(17) Article 2(10). it is unlikely that this definition applies to the flag State in cases where the ship is not located in its territory at the given time. In such a case, the flag State’s responsibilities vis-à-vis the sending of its ship to scrapping are unclear. This uncertainty accordingly applies to exporters of waste who are defined as “any person under the jurisdiction of the State of export who arranges for the export of hazardous wastes or other wastes.”(18) Article 2(15).

The Basel Convention requires both categories of States – export and import – to ensure that the disposal of end-of-life ships is conducted in an environmentally acceptable manner. This general obligation is given effect in a number of specific contexts. For example, the export of waste may not be permitted if the export State has reason to believe that the waste will not be managed in an environmentally sound manner.(19) Article 4(2)(e).The “environmentally sound management of hazardous wastes or other wastes” requires actors to take “all practicable steps to ensure that hazardous or other wastes are managed in a manner that will protect human health and the environment against the adverse effects which may result from such wastes.”(20) Article 2(8). In this author’s view, many reported ship scrapping practices in third States, especially those involving “beaching”, are obviously not compatible with this criterion.

Importantly, the Basel Convention also precludes States within which wastes are generated from transferring their obligation to manage these wastes in an environmentally sound manner to import States.(21) Article 4(10). The responsibilities thus clearly and unavoidably rest not only on the recycling State but also remain with the State from where the ship is exported.

Although the Basel Convention is far from offering perfect solutions to tackle irresponsible practices in the shipbreaking industry, it has established an important cooperation framework for further developing the international regulation of ship recycling conditions. For example, Technical Guidelines for decommissioning of ships (2013) aims to provide some guidance for ship scrapping sites on the “sound treatment of waste”. The Guidelines do not rule out the use of beaches if this is combined with measures to prevent discharges. The Guidelines should obviously be understood as encouraging beaching sites to become more environmentally friendly and to only use beaches where absolutely unavoidable, and not as a general acceptance of beaching.