MarIus

2.1.1. The scope and applicability of the Basel Convention

The applicability of the Convention to ships per se, requires that the vessel is categorized as hazardous waste^{(9) Ibid., Article 1(1).}, and that it shall be subject to a transboundary movement^{(10) Ibid., Article 2(3).} between the State of export and State of import, where both are parties to the BC.^{(11) Ibid., Article 4(5). See also: For a detailed discussion of the Basel Convention ratione materiae. Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p.126-131.} The Convention’s legal suitability for ship dismantling processes has been widely debated and controversial for many years. Whether the obsolete vessel can be classified as hazardous waste^{(12) ”Hazardous wastes“ are further defined in Annex I and ”other wastes” in Annex II.} once she is taken out of service to be sent for dismantling, and as to whether the export of the vessel is for disposal or recovery are questions arising in the context of vessels sold for recycling.^{(13) UNEP/CHW.7/33, (25. January 2005), p. 5-6) and UNEP/CHW.13/18, (16 August 2017), 32 – 33.}

The term waste is defined as “substances or objects which are disposed of or are intended to be disposed of by the provision of national law.”^{(14) BC, Article 2.} The BC does not explicitly state whether the obsolete vessel may constitute as waste.^{(15) The exclusion clause in Article 1(4) expressly states that the vessel’s operational wastes are excluded from the scope of the Convention. Thus, the discharge of the vessels operational wastes is covered in another international instrument e.g. MARPOL. See: (UNEP/IG.80/4), Annex 1, p. 10.} Nonetheless, categorising the vessel as waste does not necessarily mean that the export of the vessel is included under the BC. The Convention only applies to ships when the ship is considered hazardous waste as per Article 1.^{(16) Waste that belong to any category listed in Annex I are considered as ”hazardous waste”, and will be subject to control, unless they do not possess any of the characteristics listed in Annex III.} To be noted that the hull of the vessel is predominantly steel, and steel does not fall under the hazardous waste criterion in the BC. Nevertheless, some parts of the hull and equipment of the vessel may contain toxic components such as asbestos, oils, heavy metals and other components as such, which may be categorised as hazardous waste under the BC.(17) Hazardous materials are listed in Annex I, possessing the listed hazardous characteristics in Annex III of the BC. These materials are often released during the extraction phase of the dismantling process.^{(18) On the third meeting, the COP of Basel decided on working on exploring limits value for use of the listed categorise of hazardous waste in Annex I. Decision III/12 (UNEP/ CHW. 3/35, p. 10)} On this matter, the COP of Basel adopted Decision VII/26 titled “Environmentally sound management of ship dismantling”^{(19) The BC nor the subsequent guidelines provide a definition of a ship, cf. the HCK, Art. 2(7).}. In that decision the Parties concluded that end-of-life vessels are considered waste pursuant to Article 2 and emphasised that vessels categorised as hazardous waste are subject to the control of the Convention, when the ship in question contains hazardous materials listed in the Annexes.^{(20) Decision VII/26 (UNEP/CHW.7/33. (25th January 2005)), p. 63.} Thus, a vessel may be categorised as hazardous waste, unless the vessel has been pre-cleaned prior to being sent to dismantling.^{(21) BC, Art.2(1), read with Basel Convention Decision VII/26 (UNEP/CHW.7/33. (25th January 2005)) p. 63. See also: Siig,” Private law responses of imperfect regulation in international public law – the case of vessel recycling,” p. 225.} Whilst the vessel may first be considered hazardous waste, it does not fall under the BC requirement of waste, until after the shipowner intends to export the vessel for recycling.^{(22) BC, Article 2(1). Additionally, BC Article 2(4) also defines ”disposal“ to any operations listed in Annex VI Section A and B, including recycling of metals. However, Article 4(9)(b) also stipulates that material should be considered as ”waste”, when intended for recycling.} The shipowner’s intention to commence the vessel’s final journey to the ship recycling facility shall be clear from the moment the shipowner gives notification in accordance with the PIC. Determining the true intentions of the shipowner can be challenging, because it can be difficult to prove the shipowner’s intention of disposing the ship before it leaves the territorial waters of the export State, if such notification has not been given.^{(23)See the Dutch Seatrade case. Four vessels were in this case sold to an intermediate buyer, also known as a ”cash buyer” with the intention of shipping them from the port of Rotterdam and Hamburg to ship recycling facilities in South Asia, well known for using the beaching method. The ships contained hazardous wastes, and the court therefore held that the ships were considered ”waste” pursuant to European Waste Shipment Regulation requiring, based on the exchanges of several e-mails and other evidence that together proved the intention of the shipowner to send the vessel to recycling. Notable EU has transposes and implements the provisions of the Basel Convention and the Basel Ban Amendment. As foreign case law the Dutch caselaw is non-binding for other (EU) countries and can only be used as inspiration for interpretation. (The Seatrade, Case No. 10/994550-15, District Court of Rotterdam, 15 March 2018 available at: https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/RechtbankRotterdam/Nieuws/Documents/English%20translation%20Seatrade.pdf)} The intention of disposing the vessel can be established by proving that preparatory acts were taken by shipowner prior to the vessel being sent to the ship recycling facility. Preparatory acts can be legal and/or physical actions such as reflagging of the vessel, but also cancellation or modification of insurance.^{(24) Basel Action Network and Greenpeace International, Shipbreaking and the legal obligations under the Basel Convention, at para.1(2). Also see: For a more detailed discussion of the Basel Convention’s interpretation of “disposal” and “intends to dispose” Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 127-131.}

The applicability of the BC is based on the physical commencement of the transboundary movement.^{(25) BC, Article 2(1).} The decision to dismantle the vessel must therefore be made whilst the vessel is still physically within the territory of the exporting State. Monitoring the vessel’s final voyage to the ship recycling facilities may, however, be difficult for national authorities because the geographical scope of the Convention has given the shipowner various of ways of circumventing the Convention. The shipowner can for instance ensure that no transboundary movement has occurred by organising a deceptive second-to-last voyage to a non-State party, or by organising a sale with the purpose of recycling on the high seas.^{(26) Nicholas Gaskell, Craig Forest, “The law of wreck”, (Routledge Taylor & Francis group 2019), p. 672.} Thus, identifying the State of export may also be difficult in such cases. This undermines the BC requirements, along with the national authorities’ struggle with evidentiary issues and enforcement difficulties.^{(27)Alla Pozdnakova, “Ship recycling regulation under international and EU Law,” p. 59 – 60.} If the vessel is subject to the provisions of the BC, the allowance of transboundary movement of hazardous wastes and other wastes requires compliance with the PIC and that the wastes are disposed in an ESM.

2.1.2. The Prior Informed Consent Procedure

The PIC procedure is one of the fundamental principles in the BC. The procedure requires that the exporter^{(28) BC, Article 2(15)} or the generator^{(29) Ibid., Article 2(18)} of the waste (also categorised as the notifier) is obliged by the exporting State to notify the competent authorities in the export State, the import State and the transit States of the proposed transboundary movement of the vessel.

The Convention contains an extensive definition of the responsible parties, consisting of a wide range of both legal and natural persons, taking part in activities related to the process of sending the vessel to the recycling yards, and readying it for dismantling, for instance the owner of the ship, the charter or the broker.^{(30) Ibid., Article 6. See also: Alla Pozdnkova, ”Ship Recycling Regulation under International Law and EU Law,” p. 62.} The decision of dismantling the vessel is taken by the shipowner and he may therefore be considered as the exporter.^{(31) Ibid., Article 2(1). See also: Strong Malcolm and Herring Paul, “Sale of ships: the Norwegian Saleform,”(Sweet & Maxwell 2016), s. 303-304.}

The shipowner’s obligation is to give notification in accordance with the PIC. As the notifier, the shipowner must notify the competent authorities in all the States involved into transboundary movement of vessel.^{(32) Ibid., Article 6 and Annex V A.} The shipowner must give notification by issuing a notification document and movement document to the competent authorities.^{(33) Ibid., Article 4(8).} The exporting State cannot allow the transboundary movement until the shipowner has received (i) the written consent of the State of import and (ii) confirmed that the movement is governed by a contract between the shipowner and the ultimate disposer^{(34) Ibid., Article 2(19).} specifying environmentally sound management of the vessel in question.^{(35) Ibid., Article 6(3).} The purpose of this mechanism is to ensure that all the States involved into transboundary movement of vessel are notified about the movement and have given their consent here to. Hence, all States must give their consent prior to the transboundary movement before the export of the vessel is allowed according to the BC.

The transboundary movement of the vessel is, however, prohibited if the import State has for instance given notice under Article 13, prohibiting the import of the vessel^{(36) Ibid., Article 4(1).}, or the export State “has reason to believe that the (vessel) will not be managed in an environmentally sound manner”.^{(37) Ibid., Article 4(2)(e).} Non-compliant transboundary waste movement is considered illegal traffic.^{(38) Ibid., Article 9.} The BC imposes a further take back obligation^{(39) BC, Article 8.} if the movement of the vessel cannot be completed in compliance with the PIC procedure and the contractual terms between the shipowner and the disposer. This means that the exporter must re-import the vessel to the exporting State, unless the disposal of the vessel can be achieved in an environmentally sound manner in the State of import.^{(40) Ibid., article 8.}

2.1.3. The principle of Environmental Sound Management

Under this principle, the BC requires that all steps are taken in ensuring that those wastes disposed^{(41) Ibid., Article 2(2) defines management as: ”(...) collection, transport and disposal of hazardous wastes (...).} “in a manner which will protect human health and the environment against the adverse effects which may result from such wastes” pursuant to Article 2(8). The definition of the principle of ESM is, however, vague, and it has been criticized for lacking clarity in terms of what it requires or where the responsibility to ensure ESM should be allocated.^{(42) Zada Lipman, ‘Trade in Hazardous Waste’ in International Environmental Law and the South, ed. Shawkat Alam, Sumudu Atapattu, Carmen G Gonzalez and Jona Razzaque (Cambridge University Press 2015), p. 262.} The following section will examine the definition of ESM and where is the duty to ensure ESM allocated in the context of ship recycling.

In cooperation with IMO and ILO, The Secretariat of the Basel Convention (“SBC”) developed a broader definition of ESM in the relation to ship recycling through the Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships (“TGB”).^{(43) Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, Decision VI/24 (UNEP/CHW6.23 (2002)), p. 6. See also: Kummer, International Management of Hazardous Wastes:The Basel Convention and related Legal Rules, p. 92.} The TGB aim to provide guidance to the ship recycling States and their facilities to ensure a uniform compliance with the ESM. To be noted, the TGB purely address the technical and procedural aspects of ship dismantling in an ESM.^{(44) TGB, p. 17.} Hence, the TGB have no legal status, and are not therefore legally binding per se for the parties.^{(45) TGB., p. 79.} However, it has been emphasised in legal literature that the adoption of the guidelines at 6^th meeting by the COP of Basel conferred them “persuasive force”^{(46) Ioanna Hadjiyianni and Kleoniki Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, (Edward Elgar Publish Limited 2024), p. 138.} and “a special legal value”^{(47) Ibid., p. 138.} as a fundamental standard for the States to fulfil their requirements under the Convention.^{(48) Ibid., p. 138. See also: Alan Boyle and Cathrine Redgewell,International Law and Environment,(Oxford University Press 2021), p. 496.} Notwithstanding, the guidelines’ status, they can contribute to the interpretation of the norms for the adequate method for dismantling of ship pursuant to the ESM.^{(49) Ibid., p. 138.}

The ESM compliance process consists of three stages: “preparation procedure of the vessel prior to the dismantling process, the dismantling process, the sorting for reuse, recycling and sorting.”^{(50) TGB, p. 9f.} The TGB recommend the parties to manage the waste derived from the dismantling process in accordance with the principle of waste hierarchy. The TGB also contain a list specifying the types of wastes considered inherent in the vessel structure, or on board. Additionally, the TGB provide an identification of different types of environmental hazards, along with recommendations for specific measures to prevent and mitigate such hazards.^{(51) TGB, p. 7.}

To confirm compliance with the ESM, some degree of reporting and verification by the States is important. The TGB also provides such recommendations. Ultimately, the achievement of compliance with ESM at a ship recycling facility (“SRF”) relies on the national authorities’ “regulatory and enforcement infrastructure.”^{(52) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 138.} Thus, the TGB provide information and recommendations on procedures, processes which the facilities can implement in order to comply with the ESM principle in relation to the ship recycling. Nevertheless, allocation of the responsibility to ensure compliance with the ESM requirements remain unclear.^{(53) Ibid., p. 138.}

The BC requires that both the State of export and import must ensure that the vessel subject to transboundary movement is managed in an environmentally sound manner in the State of import or elsewhere.^{(54) BC, Article 4(8).} The export of the vessel is, however, only permitted if the waste is disposed in conformity with the rules and regulations of the exporting State according to the principle of non-discrimination, to prevent the export of the ship to a less environmental sound facility.^{(55) Kummer, International Management of Hazardous Wastes: The Basel Convention and related Legal, p. 56 and 92.}

The Convention requires that the State of export, under no circumstances shall allow the export of the hazardous waste to the importing State or transit State if the importing State cannot manage those wastes in an environmentally sound manner.^{(56) BC, Article 4(10).} Based on Article 4(10), BC, the duty to ensure compliance of ESM is allocated primarily to the State of export.^{(57) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 132.} On the other hand, the Convention also imposes a parallel obligation on the State of import to ensure compliance with the ESM principle by mitigating environmental impacts and protecting their people.^{(58) Ibid., p. 140.}

Nevertheless, the Convention does impose that both States are obliged to prevent the import of hazardous waste, if they have reason to believe that there is a risk of damage to the environment and/or of harmful effects on human health caused by the hazardous wastes.^{(59) BC, Article 4(2)(g).} The Convention does not explicitly provide further guidance on how the States should verify compliance with the ESM principle at the facility. Therefore, regarding this matter, the reason to believe must be interpreted, as seen in the legal literature. As emphasised by Kummer, in cases where the lack of adequate facilities is “well known”^{(60) Kummer, International Management of Hazardous Wastes:The Basel Convention and related Legal Rules, p. 57.}, the State of export must interpret its obligation based on the information provided by the State of import.^{(61) Ibid., p. 57.} Thus, the fulfilment of the obligation requires the exercise of due diligence, which also requires that the State of export has a higher degree of insight into the State of import’s internal “self-verification of process of adequacy of waste management facilities”^{(62) Hadjiyianni,Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 139.}.

Overall, the assessment of compliance with ESM is more complex, due to the vague definition of the principle, which can lead to various interpretations of what constitutes ESM of hazardous waste at a national level.

2.1.4. The Basel Ban Amendment

In 1995, the Basel Ban Amendment in Article 4A was adopted by COP of Basel^{(63) Amendment to the BC was adopted by Decision III/I of the Parties to the Basel Convention on its third meeting, (UNEP/CHW. 3/35, p. 2. (the 28th of November 1995)), p. 2. The decision added a new preambular paragraph 7 bis. Available at: Decision on the Basel Ban Amendment (Last accessed 1st December 2024)} as an acknowledgement of the transboundary movement of hazardous wastes from OECD^{(64)The Organisation for Economic Co-operation and Development.} countries to non-OECD countries which “have a high risk of no constituting an environmentally sound management of hazardous wastes as required by this Convention.”^{(65) BC, Preamble (7) bis. See also: Decision III/1 (UNEP/CHW. 3/35, p. 2. (the 28th of November 1995))} The Basel Ban Amendment was approved on the second meeting. However, the ban was not formally incorporated in the Convention when approved during the secondmeeting, leading to disputes between the parties about the legal character of the Basel Ban Amendment. To resolve the dispute, the Basel Ban Amendment was formally incorporated into the Convention by amending it and adding Annex VII too the Convention.^{(66) Sands and Peel, Principles of International Environmental law, p. 662.} Nevertheless, the amendment to the Convention first entered into force in 2019 in accordance with the Article 17(5).^{(67) Basel Convention, ”Entry into force of Amendment to UN treaty boosts efforts to prevent waste dumping,“ press release. Available at: https://www.basel.int/default.aspx?tabid=8120 (last accessed 1st December 2024).}

The Basel Ban Amendment is considered a critical tool in preventing export of hazardous wastes to the non-OECD countries which lack the capacity or resources to ensure ESM of those hazardous wastes. Article 4A distinguishes between non-recovery operations, which as stated in Article 4A(1), and recovery operations, which is regulated in Article 4A(2). The Basel Ban Amendment prohibits export of hazardous waste from OECD countries, EU^{(68) The European Union has been party to the Basel Convention since 1993. See Council Decision of 1st February 1993 on the conclusion on behalf of the Community of the Convention on the control of transboundary movements of hazardous wastes and their disposal (Basel Convention) (93/98/EEC). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31993D0098 (Last accessed 1st December 2024).} and Lichtenstein to non-OECD countries.^{(69) BC, Article 4(A) and Annex VII.} Thus, export of hazardous waste is only permitted in accordance with the Basel Ban Amendment, if the hazardous waste is exported to countries within OECD. As a result of the Basel Ban Amendment, export of vessels to the major recycling States such as India, Bangladesh and Pakistan are forbidden, as all these countries are non-OECD countries.^{(70) Ibid., Annex VII.} Hence, export of vessels for dismantling to non-OECD countries constitutes illegal traffic^{(71) Ibid., Article 9.}, unless there is an agreement between the exporting State and the importing State pursuant to Article 11, BC. However, Article 11, BC provides an exception to the general obligation of exporting of waste to parties or non-parties of the Convention, as far as the agreement is “not less environmentally sound” than the provisions of the BC.^{(72) Ibid., Article 11.}

Regarding the Basel Ban Amendment, if any exceptions were to be available, they would have explicitly been included in Article 4A. However, no reference to the Article 11, BC, is explicitly made in the ban, meaning that the ban cannot as such be circumvented by using an Article 11 Agreement. This interpretation also reflects the intention of the parties to the Convention.^{(73) Decision IV/8, UNEP/CHW.4/35, (23 – 27th February 1998), p. 17. See also: Zada Lipman, ”Trade in Hazardous Waste: Environmental Justice Versus Economic Growth,” (2002), Capacity Building for Environmental Law in the Asia and Pacific Region, p. 472 - 473.} Consequently, based on this interpretation, a valid 11 Agreement to export of waste is only possible to conclude: “(1) between the OECD state and another OECD state; (2) between a non-OECD state and another non-OECD state; (3) between an OECD state and non-OECD state, but only in respect of export from the latter to the former.”^{(74) Zada Lipman, Trade in Hazardous Waste: Environmental Justice Versus Economic Growth, p. 473.} (emphasis added). Nevertheless, it could be argued that export of vessels for partial dismantling in non-OECD countries may be permitted, provided that the hazardous materials extracted from the dismantling of the ship are exported to an OECD-country from a non-OECD country in conformity with the PIC procedure and the ESM principle. This may only apply to vessels that fall outside the scope of the BC, prior their last voyage.

2.1.5. The suitability of the Basel Convention to address the ship recycling concerns pertaining to the safety of the environment and human health

The Basel Convention was originally designed to regulate transport of waste in general and is therefore not designed to solve the ship recycling practice. However, it was decided by the COP of Basel that the Convention also applies to vessels that are categorised as waste in accordance with Article 2 of the BC.^{(75) Supra Section 2.1.} The question whether the BC provides sufficient measures to regulate unsafe and environmentally harmful ship recycling practices has, nonetheless, been subject to debate.

The BC was not tailormade to provide an efficient and effective solution for dismantling ships in an environmentally sound manner at international level. For instance, the Convention does not contain provisions which set out specific requirements to the most actors involved in the recycling process, namely the shipowners and the Ship recycling facilities.^{(76) Alla Pozdnkova,”Ship Recycling Regulation under International Law and EU Law,” p. 61.} Neither does it allocate the responsibility to these stakeholders.

As discussed above, the applicability of the geographical scope has led to evidentiary issues and enforcement difficulties for the national authorities.^{(77) Ibid., p. 61. Supra Section 2.1.} The jurisdiction and the responsibility to control the transboundary movement of the vessel and ensure the environmental sound dismantling of the vessel is allocated at the State of export and not the flag State.^{(78) BC Article 2(8), Article 2(10) and Article 4(10).} The territorial jurisdiction is one of the weaknesses of the BC.

Overall, the BC may be ill suited to solve the issues concerning safe and environmentally sound ship recycling due to its lack of ship-specific features. Therefore, the COP of Basel welcomed the IMO to develop an adequate regulatory framework addressing recycling of vessels, which led to the adoption of: The Hong Kong Convention.^{(79) Decision VII/25 (UNEP/CHW. 7/33. (25th January 2005)), p. 62. See also: MEPC 51/3. (23rd January 2004), p. 1.}