4. Final remarks
To achieve sustainable, safe and environmentally sound ship recycling, it is necessary to clarify and detail the international law requirements governing this sector. International law has so far not been quite successful in the accomplishment of this objective. The Basel regime is complex and not designed to regulate ship recycling, which is a factor compromising its national implementation and its legal certainty for the actors involved, including owners and operators of the end-of-life ships and ship recycling facilities. The Hong Kong Convention is yet to enter into force and has not been tested in practice. In all cases, these conventions obviously contain very broad ‘grey areas’ of acceptable shipbreaking methods, even if they do not tolerate “beaching” and similarly dangerous and environmentally catastrophic shipbreaking practices.
The legislative steps undertaken by the EU may have strengthened the implementation and enforcement of the Basel and Hong Kong frameworks respectively. Of course, it is not satisfactory that two different regimes apply to end-of-life ships depending on what flag they fly. In this author’s view, the Ship Recycling Regulation provides for more legal certainty for shipowners, has a clearer allocation of obligations between shipowners and recycling facilities and is also less extreme than the Waste Shipment Regulation with regard to penalties for infringements. Due to the European approval system, it may also contribute to the improvement of the conditions of yards in the third States. The Ship Recycling Regulation has, however, been criticized by the shipping industry because it increases costs for EU-flagged ships and may thereby affect the competitiveness of the EU fleet.
The Hong Kong Convention and the corresponding EU Regulation is based on the flag State jurisdiction. A commonly known weakness of this approach is the opportunity to avoid these rules by re-flagging vessels under a flag of convenience prior to scrapping. However, rules on waste shipment also have loopholes which raise legal and practical enforcement difficulties for the national authorities. Developments in the national practice show that the authorities in EU and third States may be increasingly willing to combat environmentally unsound shipbreaking.