The “Hong Kong Convention for the safe and environmentally sound recycling of ships 2009” aims at minimizing the risks to human health and safety and the environment throughout the process of ship recycling. It was drawn up to replace existing legislation, which is not drawn up specifically for ships. This new convention addresses all issues concerning ship recycling, including the so-called transboundary movement of hazardous wastes, which is extensively covered by the Basel Convention. These regulations cover the final operations and preparations of the ships prior to recycling and the design, construction and operation of the recycling facilities to ensure optimal compliance laid down in the convention during the recycling process. Furthermore it aims at establishing an appropriate enforcement mechanism that includes certification and reporting requirements.
The convention was approved in May 2009 and will enter into force 24 months after the date when 15 IMO member states, representing not less than 40% of the world cargo shipping capacity in gross tonnage, have signed the convention. This means that this is expected to take at least another three to five years before coming into force. At this stage the convention therefore has no imminent or critical importance other than to offer a future perspective and the wish to implement this into practice already, providing the necessary support needed for it to become common practice.
The Basel Convention, signed in March 1989, is a treaty on the control of transboundary movements of hazardous wastes and its disposal. It was not originally drawn up with end-of-life ships in mind but has become very relevant since international jurisprudence has confirmed a ship destined for recycling has to be qualified as waste. The convention’s secretariat states that, until the Hong Kong convention enters into force, the Basel Convention should be strictly maintained. Although many of the convention’s members do not apply nor adhere to the convention rules in practice, the European member states have a stricter policy towards its applicability. Specifically this means that the moving of a ship for recycling towards another country will lead to mandatory formalities. Only when neither the country of departure nor the country where the recycling is planned is a member state of the Basel Convention, or the ship qualifies as non-hazardous is it free to be brought over. In all other situations the Basel Convention is applicable and its rules have to be complied with.
The European Union has implemented the Basel Convention for its member states in a specific regulation concerning shipments of waste. In this regulation a ship destined for recycling can only be green listed if a thorough pre-cleaning has been completed before the ship sets off on its last voyage and all hazardous wastes have been removed. However, this process can and often does result in heavily impairing the ship, compromising its capacity to sail to the recycling yard using its own machinery.
This green-listing has to be achieved under category GC030 of this regulation or else the export is prohibited. Be aware that there are special rules applicable to the transportation of green-listed waste destined for recycling to non-OECD member states. These special rules are based on the local rules applicable in the importing country and are dependent on the import regime these countries have informed the EU with. For instance, China has stipulated that for green-listed ships under category CG030 no control or written notification has to be followed and that only national law procedures are applicable.
The following interesting remarks can be made:
As long as a ship is not yet destined for recycling it does not qualify as waste, meaning international waste law is not applicable. This makes it attractive to plan the last commercial voyage to a port in the region of a possible recycling yard. For instance, if the ship has done its last commercial voyage to a harbour in China, before the final decision has been made to sell the ship to a recycling yard (also within China), only national Chinese law is applicable. There is unertainty whether these actions are illegal if authorities can prove that the last commercial voyage was only undertaken with the purpose of reaching the country of recycling.
Often international waste law is not enforced by (non-OECD) countries involved. This means that there is no control by the exporting state or the recycling state. In this case the formally illegal transboundary movement of waste is effected without the violation being formally enforced.
As the international rules are rather complex it is advisable to contact a party specialized in Ship Recycling Legislation to check what regime is being practiced towards the transboundary movement of waste and a last commercial voyage. This could avoid any misunderstanding or prevent other unexpected surprises.