MarIus

2.3.1 Generally

At the IMO diplomatic conference in 2009 held in Hong Kong, IMO member States adopted the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (hereinafter ‘Hong Kong Convention’).(1) The Convention is commonly known as «Hong Kong Convention» or «Ship Recycling Convention». Norway has been a driving force for the elaboration and adoption of the Hong Kong Convention, and the first State to ratify it (in June 2013).

The adoption of the Convention was preceded by work under the framework of the Basel Convention and under the auspices of the IMO. In particular, the IMO Resolution on Guidelines on Ship Recycling was adopted in 2003.(2) Resolution A.962(23). See also <https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---safework/documents/publication/wcms_117943.pdf> (last accessed 13 April 2020); Secretariat of the Basel Convention, Guidance for compliant ship recycling facilities in consideration of the requirements of the Basel and Hong Kong Conventions (RWECLTD 4/7/2013). The International Labour Organisation (ILO) has been involved in work to protect the occupational safety and health of workers in the ship recycling industry.(3) 2003 tripartite meeting: Safety and health in shipbreaking: Guidelines for Asian countries and Turkey Bangkok, 7–14 October 2003, at: <https://www.ilo.org/public/english/standards/relm/gb/docs/gb289/pdf/meshs-1.pdf> (last accessed 13 April 2020). The mentioned IMO Guidelines place the ultimate responsibility for ship scrapping conditions on the State where the yard or facility is located, while the shipowners are required, “as far as practicable”, to reduce potential problems caused by ship scrapping.

The overarching objective of the Hong Kong Convention is to “effectively address, in a legally-binding instrument, the environmental, occupational health and safety risks related to ship recycling, taking into account the particular characteristics of maritime transport and the need to secure the smooth withdrawal of ships that have reached the end of their operating lives.”(4) The Preamble. The Convention is designed to cover a ship’s life cycle “from cradle to grave”. Importantly for this article, the Hong Kong Convention poses a number of requirements for end-of-life ships.

The main text of the Hong Kong Convention contains 21 Articles with relatively generally substantive and procedural obligations for States parties and the Annex “Regulations for Safe and Environmentally Sound Recycling of Ships” which sets out the detailed provisions of the Convention.

Ship recycling is defined as “the activity of 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.”(5) Article 2(10).

“Ship Recycling Facility” means a defined area that is a site, yard or facility used for the recycling of ships.(6) Article 2(11).Obviously, these definitions are broad enough to include all methods of ship recycling and shipbreaking, including the most unsustainable ones such as beaching.

The Hong Kong Convention applies to all ships sailing under flag of a State party, with the usual exception for warships, naval auxiliary, or other ships owned by or operated only on government non-commercial service, as well as ships under 500 GT and ships operating only in waters under national jurisdiction of a State party.(7) Article 3.Ships are broadly defined as a “vessel of any type whatsoever operating or having operated in the marine environment and includes submersibles, floating craft, floating platforms, self-elevating platforms, Floating Storage Units (FSUs), and Floating Production Storage and Offloading Units (FPSOs), including a vessel stripped of equipment or being towed.”(8) Article 2(7).Thus decommissioned oil rigs are also included in the Convention.

2.3.2 Hong Kong Convention obligations for ships (flag States) and Recycling States

The Convention contains provisions setting out obligations relevant for two categories of ‘actors’: firstly, for ships and shipowners (flag States) and, secondly, for ship recycling facilities (States under whose jurisdiction these facilities operate). In addition, port States, which are parties to the Convention, undertake to conduct inspections of ships flying the flag of a State party when in their ports.(9) Article 8. In addition, No More Favourable Treatment clause in Article 3(4) with respect to ships flying the flag of a non-Party State.The Hong Kong Convention contains minimum requirements for States, which may adopt stricter provisions than those laid down in the Convention.(10) Article 8.

Requirements applicable to ships include restrictions on the use of certain hazardous materials and an obligation for each new ship to have on board an inventory of such materials.(11) Annex Chapter 2 contains Requirements for Ships.Existing ships are required to comply with this requirement “as far as practicable” and within 5 years or earlier if going to recycling before that deadline. In addition to the requirement to have an updated inventory of hazardous materials on board ships, some other provisions ensure further the safety of the ship’s recycling processes.

Further, the Hong Kong Convention contains requirements applicable to ships taken out of service (“destined to be recycled”) in preparation for recycling. Such ships may only be recycled at an authorized recycling facility subject to a specifically adopted Recycling Plan.(12) Reg. 9 of Annex of the Convention. Ships are subject to surveys throughout their life time which, among other checks, verify compliance with the provisions on the inventory of hazardous materials. For ships which are to be taken out of service, they must undergo a final survey before being sent for recycling.(13) The Annex also specifies requirements for the International Certificate on Inventory of Hazardous Materials to be issued to ships. The inspection shall, among other things, verify that the ship is to be sent to a ship recycling facility that has valid approval.

The Convention also sets out requirements for the Recycling States parties to the Convention related to the standards of the recycling facilities, authorization of such facilities as well as inspections, monitoring and enforcement with regard to the facilities.

Importantly, States must ensure that the recycling yards under their jurisdiction accepting ships to which this Convention applies, are authorized in accordance with the regulations in the Annex.(14) Article 6 of the Convention and Regulation 16 of the Annex. Such authorization must be conducted in light of IMO guidelines(15) See n. 32 above. and must include certain elements and criteria applicable to the facilities deserving to be authorized. Such authorization may logically be granted only to the facilities which meet some minimum safety and environmental standards.

Recycling States must adopt national laws and regulations ensuring that the facilities under their jurisdiction are designed, constructed, and operated in a safe and environmentally sound manner in accordance with the regulations of the Hong Kong Convention. The relevant standards must, among other things, include workers’ safety and emergency response, environmental rules and internal allocation of responsibilities.(16) Chapter 3 of the Annex.

The Annex also requires that the competent national authorities of the recycling State monitor the facility as required by the Hong Kong Convention and investigate infringements and breaches of the recycling rules. If it turns out that the facility no longer meets the requirements for approval, competent national authorities may require the facility to take corrective action, or decide to suspend or withdraw the permit for the facility.

Corresponding obligations apply to flag States with regard to their ships. Flag States and Recycling States shall require that the requirements of the Hong Kong Convention are complied with, and take effective measures to ensure such compliance.(17) Article 4. Such measures include detection and investigation of violations, as well as adoption of national sanctions for violations. The Convention also requires States parties to impose sufficient sanctions for violations of the Convention’s provisions.

2.3.3 What is the future of the Convention?

As noted earlier, ship recycling facilities regulated by the Hong Kong Convention must meet certain requirements for sound environmental and health standards. The standards are quite general and are set out in the Annex to the Convention. The IMO guidelines for the Convention somewhat detail out the requirements of the Convention. However, all in all, neither the Hong Kong Convention nor other international instruments impose either sufficiently explicit environmental requirements or else an outright ban on certain unacceptable ship scrapping approaches (e.g. beaching). In this respect, the national authorities of Recycling States have a wide margin of discretion when granting authorization to the facilities under their jurisdiction.

At the same time, the Hong Kong Convention does not penalize shipowners for using facilities which may be authorized by the national authorities of the recycling State but which are, in practice, incompatible with the Convention’s requirements for safe and sound ship recycling.(18) However, one source reports that several ship recycling yards in China, India and Turkey have developed appropriate infrastructure and obtained Statement of Compliance Certificates from IACS- member societies: Kanu Priys Jain, Ship Recycling: The Relevance of the Basel Convention, The Maritime Executive, 20th February 2018. Accessible at: <https://www.maritime-executive.com/editorials/ship-recycling-therelevance-of-the-basel-convention> (last accessed on 13 April 2020).Further, by contrast to the Basel Convention imposing a duty to take the illegally shipped waste back to the export State,(19) See text accompanying n. 22 above.there is no obligation to take back the ship sent to a third State for recycling in violation of the provisions of the Hong Kong Convention. The Hong Kong Convention also does not require criminalization of particularly illicit infringements.(20) Article 10.

The Hong Kong Convention has been criticized by environmental organizations, who argue that, among other limitations/defects, this Convention does not combat but rather tolerates beaching and other unsafe scrapping of ships in developing countries.(21) New “Ship Recycling” Convention Legalizes Scrapping Toxic Ships on Beaches of Poor Countries – “A major step backwards”, Toxic Trade News, 15 May 2009, available at: <://www.fidh.org/en/issues/globalisation-human-rights/economic-social-and-culturalrights/New-ship-recycling-convention> (last accessed on 13 April 2020). The Convention arguably permits the export of end-of-life ships without first cleansing them of toxic materials, thereby failing to uphold Basel principles. Per today, only a handful of States have become parties to the Hong Kong Convention; States with the largest ship-breaking markets have not ratified it. A recent ratification by one of the largest shipbreaking States, India (2019), may be a significant step forward in the Convention’s entering into force.(22) Belgium, Congo, Denmark, Estonia, Norway, Netherlands, France, Germany, Ghana, Malta, Serbia, Turkey, Panama, India and Japan (as of 14 April 2020). However, the sufficient acceptance rate is yet to be achieved for the Convention to enter into force.(23) Entry into force provisions are laid down in Article 17, which lays down a number of cumulative conditions to be met. It is required that no less than 15 States have acceded to the Convention, of which the combined merchant fleet is no less than 40% of the world merchant shipping gross tonnage and the combined maximum annual ship recycling volume during the preceding 10 years is at least 3 % of the gross tonnage of the combined merchant shipping of the same States. It is not certain when or whether its entry into force will take place in the near future.