2.2. The Hong Kong Convention

587/2025

2.2. The Hong Kong Convention

The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships was adopted on 15 May 2009^{(1) The Hong Kong Convention on Safe and Environmentally Sound Ship Recycling (adopted 15th May 2009, enters into force 23 June of 2025.SR/CONF/45. Available at: The Hong Kong Convention (last accessed 1^stDecember 2024.)}, and is scheduled to enter into force on 26 June 2026.^{(2) IMO, “The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships,” Available at: Entering into force of the HKC (last accessed 1^st December 2024)} The drafting of the HKC has been developed in collaboration with the ILO, the COP of Basel, along with opinions from the IMO Member States.^{(3) HCK, Article 1. See also: Decision VII/25 (UNEP/CHW.7/33. (25th January 2005) p. 62.} The overarching objective of the HCK is that upon recycling of a vessel at the end of its life, human health and safety and the environment are safeguarded, and no risks are posed in this direction.^{(4) Ibid., article 1(1).}

The following sections discuss the requirements of the entering into force of the HCK (section 2.2.1), the scope and applicability of the HCK (section 2.2.2), the requirements of the ships and the ship recycling facilities (section 2.2.3 and section 2.2.4) and the compliance and enforcement of the HCK (section 2.2.5). Lastly, the thesis will discuss the suitability of the HCK to address the ship recycling concerns pertaining to the safety of the environment and human health (section 2.2.6).

The HKC consists of 21 articles and an Annex containing 25 Regulations which set out general provisions together with specific requirements for ships and ship recycling facilities and requirements for reporting. The Annex is an integral part of the Convention, and Article 1(5) clearly states that referring to the HKC, becomes a reference to its Annex, except if indicated differently.^{(5) The Convention’s annex is easier to amend then the Articles pursuant Article 18(5), which makes it easier to amend or adjust the requirements in the annex after the HCK enters into force. Especially if streamlining of the HCK with BC is required.} In addition to the Convention, seven guidelines have been developed which provides support to the implementation of a specific set of substantial obligations.^{(6) Siig, “Private Law Responses to Imperfect Regulation,” p.226}

Prior moving any further, it is important make a clear distinction between the different types of actors involved in this process, namely, state entities and private entities. However, the HCK is only legally binding for the State parties, namely the flag State and the ship recycling State.^{(7) HCK, Article 3(1).}

2.2.1. The entering into force of the Hong Kong Convention

Given the complexity of the HKC, its entering into force criteria is significantly more constricted.^{(8) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 27.} Article 17, HKC is designed as a three-pronged entry-into-force provision, indicating the complex requirements, and the contribution of the actors involved in the ship recycling industry.^{(9) Hadjiyianni,Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 42.}

For the HCK to enter into force, all three requirements imposed in Article 17 must be fulfilled, with the first requirement being the number of ratifications. This requirement must be read in conjunction with the second requirement of a minimum tonnage of the countries which signed the Convention prior its entering into force. This requires that the Convention ought to be accepted by minimum 15 States, whose combined fleet reflects a minimum tonnage of 40 percentage of the global fleet.^{(10) HCK, Article 17(1) and 17(2).} The third requirement imposes that the total and maximum ship decommissioning volume from over the past decade, adds up to a minimum of 3 percentage of the contracting parties’ gross tonnage.^{(11) Ibid., art. 17(3).} This requirement emphasizes the active participation of the ship recycling States and aims to ensure that the fleets of contracting States have the necessary combined ship recycling capacity available for their ships to be recycled, prior the entering into force of HKC. The purpose of this is to prevent ships being stuck afloat because of a potential absence of a minimum ship recycling capacity.^{(12) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 51 ff.} Such requirements reflect the many interests involved in the ship recycling process, as well as the “the balancing sought among the actors of IMO”.^{(13) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 167.}

Moreover, the ship recycling capacity is governed by the variety of the age deteriorating world fleet. In 2009 the fulfilment of the third requirement required the participation of at least two of the three major ship recycling States, namely: India, Pakistan and Bangladesh.^{(14) IMO, ”India accession brings the ship recycling convention a step closer to enter into force,” 28^th of November 2019, available at: IMO press release (last accessed 1^st December 2024)} Nevertheless, the increasing world fleet means that the requirement of the number of contracting States also will increase progressively to fulfil the requirements of the minimum tonnage, along with the minimum ship recycling capacity.^{(15) Hadjiyianni,Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 42.} India accessed as the first major ship recycling State the HKC in 2019^{(16) IMO,”India accession brings the ship recycling convention a step closer to enter into force”}, followed by Bangladesh that ratified the Convention in June 2023.^{(17) IMO, “Hong Kong ship recycling convention set to enter into force”,.} The Convention is set to enter into force within 24 months after Bangladesh became a contracting State to the Convention.^{(18) HCK, Article 17(1).} With the three requirements imposed in Article 17 having been fulfilled, it indicates that the HKC is ready for entering into force, as of June 2025.^{(19) IMO, “Hong Kong ship recycling convention set to enter into force”.}

2.2.2. The scope and applicability of the Hong Kong Convention

The Convention applies to merchant vessels of 500 gross tonnage^{(20) The Hong Kong Convention, Article 2(8)} (“gt”), or more entitled to fly the flag of a contracting State, and a ship recycling facility operating under the jurisdiction of a contracting State pursuant to Article 3(1).^{(21) Exception of ships is listed in HCK, Article 3(2) and 3(3).} Ships below 500 gt., and ships operating within the waters of the flag State are excluded from the scope of the Convention. Naval ships and government vessels operating non-commercial are also excluded from its scope.^{(22) HCK, Article 3(2) and 3(3). See also: MEPC/55/23 (16^th October 2006) p. 24.}

The term ships, as per the HCK definition, is a vessel of any kind, engaged, or having been engaging in operations in the marine environment.^{(23) Ibid. Article 2(7).} The HKC definition includes other submersibles, floating platforms, and other structures^{(24) Ibid, Article 2(7).}, however this thesis shall focus solely on merchant vessels.

The HKC imposes requirements on the Contracting States to give no favourable treatment to vessels flying the flag of non-contracting State,^{(25) HCK, Article 3(4).} and with this provision, the Convention aims to ensure that the facilities in contracting States are compliant with the requirements in the Convention, regardless of the flag of the vessel.^{(26) Ibid., Article 3(4) and 6.} Nevertheless, the HKC allows vessels flying the flag of non-contracting States to be recycled at SRFs in contracting States, provided that the vessel meets the criteria imposed by the Convention.^{(27) Ibid., Article 3(4).}

2.2.3 The Hong Kong Convention’s requirements for the ship

The following section discusses the HKC requirements for ships which can be divided into three parts: firstly, the requirements and rules pertaining to the design, i.e. construction and maintenance of ships, including the barring on the usage of hazardous materials. Secondly, the requirement of an Inventory of Hazardous Materials (“IHM”) and corresponding certificate, and thirdly, the establishment of a Ship Recycling Plan (“SRP”). Once these requirements have been fulfilled, the flag State will issue the International Ready for Recycling Certificate (“IRRC”), which is the last step before the vessel is sent to recycling by the shipowner.^{(28) HCK, Article 1(8) contains a broad definition on shipowner term.}

2.2.3.1. Hazardous Materials

The HKC regulates the processes of designing, constructing, operation and preparing ships, to assure the safest and most suitable environmental recycling process, without interfering with the ship’s safety and efficiency.^{(29) IMO, “The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships,” Entering into force of the HKC} The following subsections discuss the concept of hazardous materials within the context of the HKC.

2.2.3.1.1. Prohibition on installation and use of hazardous materials

This subsection delves into the prohibition of installing and usage of hazardous materials. The HKC prohibits, or at a minimum restricts the installation or use of hazardous materials,^{(30) Hazardous materials are defined as “any material or substance which is liable to create hazards to human health and/or the environment.” in Article 2(9), HCK.} which are listed in Appendix 1 for all ships.^{(31) HCK, Regulation 4(1).} These restrictions are applicable for all ships entering a member State’s ports, shipyards, ship repair yards or offshore terminals.^{(32) Ibid., Article 4(2).} Hence, the Convention provides that the restrictions to the structure of the ship also apply on non-party ships, if the new installation or use of hazardous materials takes place within the territorial boards of the Contracting State.^{(33) Ibid., Regulation 4 and Article 3(4).} The HCK requirements are thereby a substantial global influence which extends beyond the ships of its member parties.^{(34) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 175.} Compliance with the restrictions, or prohibitions on installation and use of hazardous materials as per Regulation 4 can be monitored by the flag State through the Part I of the IHM.^{(35) Ibid., p. 175.}

Overall, the restrictions on installing or using hazardous materials may ensure compliance with the broader objectives of the HCK by improving the conditions for the disposal of the vessel at the ship recycling facility and better mitigate the risk of adverse effects on human health and the environment. Consequently, these restrictions imposed in Regulation 4 gives an ex ante tool that aimed at minimising the generation of hazardous materials and transboundary movement of hazardous waste on boards the ships.^{(36) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 175.}

2.2.3.1.2. Inventory of Hazardous Materials

This subsection addresses the Inventory of Hazardous Materials (“IHM”) to better illustrate its purpose, and its role throughout the ship recycling process, particularly regarding the compliance as per the HKC requirements. The Convention sets out in Regulation 5 that ships must have the IHM list onboard throughout the operational life of the ship.^{(37) HCK, Regulation 5 (1)(3).} The IHM was first developed in 2001 through the Industry Code of Practice on Ship Recycling by the International Chamber of Shipping (ICS) and was then adopted IMO’s Guidelines on Ship Recycling (Resolution A.962(23))^{(38) The IMO Guidelines on ”the Green Passport” is similar to the IHM.} in 2003.^{(39) Lloyds, Shipping and Trade Law, “The Hong Kong Convention: ship recycling gets a new law,” 31^st October 2023.} This led to the subsequent development of a legally binding, comprehensive HKC. The Convention’s implementation has to some extent superseded the Code of Practice on Ship Recycling by ICS and the IMO’s Guidelines on Ship Recycling (Resolution A.962(23)).^{(40) (UNEP/CHW.8/INF /21 (4^th August 2006)) p. 3.} Furthermore, the guidelines on the development of the IHM have been developed to adhere with the compliance process, as per the requirement imposed in Regulation 5, a fact which should be considered when assessing the guidelines’ significance in supporting the HKC regime.^{(41) 2023 Guidelines for the Development of the Inventory of Hazardous Materials (Resolution MEPC. 379(80).} Nevertheless, prior the entry into force of the HCK, the requirements in HCK are not legally binding for the member States.^{(42) UNEP/CHW.8/INF/21. (4^th August 2006) p. 2. See also: Engels: European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 232.}

The IHM is primarily designed to lay out a list on the type of hazardous materials specific to each ship, which is a key feature to HKC as a tailormade convention. The objective of the IHM is to provide ship-specific information on the actual location of the hazardous materials on board and the approximate quantities, to prevent, or mitigate any harm resulting from the ship recycling process.^{(43) 2023 Guidelines for the Development of the Inventory of Hazardous Materials (Resolution MEPC. 379(80)), p. 1.} By having the IHM list in place, SRFs, as well as other stakeholders, can use the information contained in the list for determining the types of hazardous materials, their quantities, and ultimately assessing whether this complies with the safe and environmentally sound criteria.^{(44) Ibid., p. 3.}

The IHM requirements are under Appendix 1 and 2 of the HKC, and describe the materials contained in the ship’s structure, along with the equipment and location of the hazardous materials and approximate quantities.^{(45) HCK, Regulation 5(1).} Furthermore, the inventory elements containing hazardous materials as listed in the appendixes shall be maintained and regularly updated throughout the operational life of the vessel to ensure that the IHM reflects the changes in the structure of the ship and its equipment.^{(46) Ibid., Article 5(3). See also: 2023 Guidelines for the Development of the Inventory of Hazardous Materials (Resolution MEPC. 379(80)), p. 3.} The shipowner has the responsibility for duly maintaining and updating Part I of the IHM, and in addition to this, the shipowner must, prior to the ships last voyage, include Part II for operationally generated wasted, along with Part III for stores on board, which ought to be prepared and verified accordingly through surveys conducted by the Flag State or recognised organisations.^{(47) HCK, Regulation 5(4), Regulation 11(1) and Regulation 10(1).}

The HKC sets a clear distinction between new ships and already existing ships. New ships are required to have on board the IHM^{(48) Ibid., Regulation 5(1).}, whereas existing ships must have the IHM on board not later than 5 years after the HKC enters into force.^{(49) Ibid., Regulation 5(2).} The IHM is seen as one of the many cornerstones of the HKC, under a legal framework which offers an ongoing overview for safeguarding safe and environmentally sound ship recycling.^{(50) MEPC 64/3/1 (21^st June 2012), p. 2.} Thus, the IHM ensures compliance with the broader objectives of the Conventions at the early stages in the life cycle of the ships. In conclusion, the IHM is a key element in the compliance and enforcement of the HKC, as emphasised by Engels, it is “the procedural chain of documentation, as established by HKC, supposedly serves as a safeguard to ensure compliance ex ante.”^{(51) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 41. See also: Hadjiyianni,Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 175. There seems to be a consensus in the legal literature that the IHM is an information tool for the stakeholders working with the vessel throughout its life.}

2.2.3.2. The Ship Recycling Plan

Having emphasised the importance of the IHM in the context of compliance with the HKC and ship recycling process, the purpose of this subsection is to address the Ship Recycling Plan (“SRP”) and its reliance on the IHM. As per Regulation 9, HKC, the SRFs are responsible for developing the ship specific SRP^{(52) HKC, Regulation 9 (preamble).}, while considering the IMO Guidelines.^{(53) Ibid., Regulation 9 (preamble).}

The SRFs establishes the SRP based on the information received from the shipowner.^{(54) Ibid., Regulation 9(1).} Through the SRP, the HKC aims to ensure that the information about the safe-for-entry and safe-for-hot working environment and operations is clearly outlined, along with the type and quantity of the hazardous materials as stated in the IHM. This ensures that the hazardous materials are monitored and managed in a safe and environmentally sound manner.^{(55) Ibid., Regulation 9(3).} The SRP will then be assessed by the ship recycling State^{(56) Ibid., Regulation 9(4).}, as per Art.16(6), HKC, which requires the SRP to be approved, explicitly or tacitly by the ship recycling State, prior the start of the ship recycling process at the authorised SRF.^{(57) Ibid., Article16(6).} However, for this approval process to be possible, the State in question, must have affirmed its manner of approval, i.e. explicit or tacit, at the time it has consented to become legally bound by the HKC.^{(58) Ibid., Article16(6).} This approval serves the purpose of confirming that that SRF and its capacity, aligns with the prerequisites of the ship to be decommissioned. With the HKC having this option of a tacit approval system, the Conventions gives more leeway in a sense that could be challenging at a later stage during the ship recycling process.^{(59) Hadjiyianni, Pouikli., The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, 176.} However, this will be further addressed in detail, in section 3.2.3. of this thesis.

Upon the approval of the SRP, and prior the start of the ship recycling process, a final survey must be carried out by the Flag state to validate that the IHM corresponds with the HKC requirements and pertaining guidelines.^{(60) HCK, Regulation 10(4)(1).} Moreover, the approved SRP must include the information about the safe-for-entry and safe-for-hot working environment and operations.^{(61) Ibid., Regulation 10 (4)(2).} The last step in this direction, is that the final survey, which verifies that the SRF where the recycling process shall be carried out, is adequately authorised.^{(62) Ibid., Regulation 10(4)(3).} This is an essential and precursory step for the flag State to issue the IRRC.

2.2.3.3. International Ready for Recycling Certificate

The HKC requires that the shipowner notifies the flag Stat in writing and in due course, of the intent of recycling a ship, so as the flag State may arrange for the necessary steps prior the ship's delivery to the recycling facility. The flag State must conduct the final survey and issue the relevant certifications, and the IRRC.^{(63) Ibid., Regulation 24.} The final survey verifies that the IHM as required by Regulation 5(4) is in accordance with the requirements of the Convention.^{(64) Ibid., Regulation 10(4)1.} Thus, the shipowner is required to provide an IHM including a maintained and updated Part 1, Part II for wastes generated and Part III for stores, prior the recycling.^{(65) 2012 Guidelines for the Survey and Certification of Ships under The Hong Kong Convention (MEPC.222(64)), para 3.4.5, p.7.} The final survey is a rather lengthy process, with significant reliance on the IHM, extensive obligations to be fulfilled, yet an essential and precursory step for the flag State to issue the IRRC.^{(66) HKC, Regulation 11(11).} The Convention emphasises that the flag State shall assume responsibility for the IRRC.^{(67) Ibid., Regulation 11(11).} Upon the successful completion of these steps, the flag State or the recognised organisation issues the valid the IRRC,^{(68) Ibid., Regulation 11(11).} which shall be accepted by other parties^{(69) Ibid., Regulation 11(12).} and is at the same time subject to inspections.^{(70) Ibid., Article 8.} The IRRC is valid for up to three months, but it may be extended for a single point to point to the ship recycling facility.^{(71) Ibid., Regulation 14(3) and Regulation 14(5).(72)E.g. in case the vessel also is subject to the PIC-procedure under BC.}

Prior the vessel’s arrival at the SRF, the responsibility transfers from the flag State and to the recycling State.^{(73) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 176.} In conclusion, the shift of the responsibility begins with the shipowner notifying the flag State.^{(74) HCK, Regulation 24(1).}

2.2.4. The Hong Kong Convention’s requirements for ship recycling facilities

In addition to having extensive requirements for the ships, the HKC places substantial regulatory standards pertaining to the functioning of the SRFs. As underlined by Engels: “both the location and the process of ship recycling present the main and efficient regulatory starting points”^{(75) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 39.}, to ensure protection of the human health and the environment from the risks posed by ship recycling.^{(76) Ibid., p. 39.} The following section therefore examines the requirements the HCK imposed on the SRFs, focusing on the grave phase during the recycling process to ultimately ensure safe and environmentally sound ship recycling.

2.2.4.1. The authorisation of the ship recycling facility

This subsection addresses the authorisation process of the SRFs and discuss how these requirements leave significant discretion on the ship recycling States.

As per Article 6, SRFs operating under of the jurisdiction and which intend to recycle ships under the HKC, or other ships falling under the scope of Article 3(4), must be authorised by the ship recycling State through verification of the documentations and an on-site inspection.^{(77)HCK, Regulation 16(1)(2).} Nevertheless, the HKC is silent on how to approve the SRFs, which results in a broader margin of discretion for the ship recycling States. The HCK puts the responsibility on the Ship Recycling State to approve SRFs in accordance with the HCK minimum requirements. Nonetheless, Regulation 17 lays down some general requirements on the SRFs. For instance, the authorised SRFs must set up management systems, and procedures which do not pose a health risk for the workers involved, or population residing in the proximity of the SRF, with the aim of preventing, minimising any harmful consequences.^{(78) HCK., Regulation 17(1).} While a level of protection is incorporated in Regulation 17, at the same time, it fails to establish which systems or procedures would ensure the required level of protection.^{(79) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 184.} Hence, the HCK gives discretion to the individual ship recycling State to interpret the requirements stated in Regulation 17.

Furthermore, the authorised SRF must develop the Ship Recycling Facility Plan (“SRFP”) pursuant to Regulation 18, while considering the IMO guidelines. Regulation 18 requires that the SRFP contains policies on workers’ safety, protection of human health and the environment, alongside with establishing objectives set to minimise and prevent these harmful consequences of ship recycling.^{(80) HKC, Regulation 18(1).} Such requirements provide a detailed picture of what the SRFP must include to ensure compliance with the safe and environmental sound ship recycling objective.^{(81) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 39.} The SRFP, is a critical point in the process given the high compliance requirements with the HKC, particularly requiring that the plan contains in detail the operations and procedures contained at the SRFs.^{(82) 2012 Guidelines for Safe and Environmentally Sound Ship Recycling (MEPC.210(63)), p. 7.} The language in Regulation 18 is formulated in general terms, and it does not set out specific approaches or methods to the recycling process.^{(83) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 185.} The level of protection reflected in the requirements for SRFP is therefore abstract, leading to discretion and variation in level of protection. As a result, this could lead to various levels of protection, depending on the balance between different factors such as economy, social and environmental that will be different from State to State.^{(84) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 185.}

As it can be seen, these two Regulations lack sufficient guidance for the ship recycling states and SRFs, which can result in difficulties enforcing the HKC standards at national level. This is where the IMO guidelines’ importance comes into play, because they provide more guidance on these general terms in the Regulations, however, the following section will discuss this further below.

2.2.4.2. Safe and environmentally sound ship recycling

This subsection examines the broader objective of HCK regarding safe and environmentally sound recycling of ships. The Convention makes extensive references to safe and environmentally sound recycling; however, it lacks an explicit definition, giving Parties the freedom of interpreting this broader objective at national level. The objective of the HCK shall therefore be assessed considering Article 31 and 32, VCLT, by examining the Convention and its guidelines for the purpose of better defining of safe and environmentally sound recycling.

As discussed above, Article 6, HCK requires the SRFs to be authorized through extensive verification^{(85) HKC, Article 6.}, along with requiring the SRFs to develop ship specific recycling plans following the HCK’s standard on safe and environmentally sound ship recycling.^{(86) Ibid., Regulation 9.}

Regulation 20 in the HCK regulates safe and sound management of hazardous materials, emphasising that the SRFs must take the necessary steps to ensure that hazardous materials are treated in an environmentally sound manner. Regulation 20(1) stands out in particular because of its manner of allocating the responsibility of managing hazardous materials through the IHM and SRP, as well as when and how these documents must be used prior and during the process of removing hazardous materials. Moreover, Regulation 20(2) requires the adequate identification, labelling, packaging and removal of hazardous materials to the maximum possible extent. This must be done prior to cutting the vessel, by using “properly trained and equipped workers.”^{(87) Ibid., Regulation 20(2) and Regulation 22.} Noteworthy, the SRFs are heavily depending on the information in the IHM provided by the shipowner. Therefore, the accuracy of the IHM is detrimental for the SRF in issuing a correct SRP, and for removing hazardous materials in a safe and environmentally sound manner. Nevertheless, Regulation 20 only regulates the removal of the hazardous materials and waste management in a safe and environmentally sound manner, which is only one part of this lengthy recycling process. This alone is not sufficient to fulfil the safe and environmentally sound ship recycling objective, leaving substantial responsibility on the ship recycling States and their infrastructure.

The Convention on its own does not provide sufficient guidance for defining safe and environmentally sound recycling of ships, and it provides the parties with leeway to interpret, comply and enforce its requirements. It is important to consider the IMO guidelines and see how they supplement the HKC. The rationale behind the IMO guidelines is to provide a uniform, harmonious interpretation, compliance and enforcement of the requirements, procedures and measures relating to the ship recycling process.^{(88) Michael Galley, “Shipbreaking: Hazards and Liabilities,” (United Kingdom, Springer International 2014) p. 173.} Hence, the IMO adopted the 2012 Guidelines for Safe and Environmental Sound Ship Recycling (Resolution MEPC.210(63)) to provide further guidance on this matter. Prior moving any further, the guidelines act as a recommendation for the industry’s stakeholders, with the aim of facilitating the implementation of HKC.^{(89) 2012 Guidelines for Safe and Environmental Sound Ship Recycling (Resolution MEPC.210(63)), p. 6} These guidelines focus on the SRFs, recommending on the content of the SRFP with references to Regulation 18.^{(90) Ibid., p.1.}

Regulation 18 is therefore reintroduced in this section. However, it is used for the purpose of illustrating key points in the process of environmentally sound ship recycling.^{(91) Supra Section 2.2.4.} In the essence, Regulation 18 emphasises the requirement of the SRFP to include training procedures for workers’ safety, emergency preparedness and other procedures as such to safeguard human health and the environment.^{(92) Supra Section 2.2.4.2.} However, due to lack of sufficient guidance in Regulation 18, the IMO Guidelines shall be used as a supplement to fill some gaps which are missing in the general terms of this Regulation.^{(93) Supra Section 2.2.4.1.} Resolution MEPC.210(63) provides examples of approaches and methods for procedures, operations and management systems which safeguard the environment, workers' health and safety^{(94) 2012 Guidelines for Safe and Environmental Sound Ship Recycling (Resolution MEPC.210(63)) p. 1.}, while considering the aim of preventing and minimizing the environmental effects resulting from ship recycling.^{(95) Ibid., p. 1.} These requirements fall under the broader objective of safe and environmentally sound ship recycling.

The IMO guidelines are deemed as a necessary instrument, and as further underlined by the MEPC the guidelines shall form a “complete set of technical standards”^{(96) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 154.}. Given that the IMO guidelines have a strong technical character, their usage in this thesis is limited to the purpose of only using parts which are relevant for illustrating certain legal issues or concepts. To be noted, in the legal literature the character of the IMO guidelines is considered as non-legally binding, and based on this assumption, they are not legally binding for the parties or the actors, up until they are implemented in national laws by the State.^{(97) Saiful Karim, Implementation of IMO Legal Instruments: International Technical and Legal Aspects (Australia Springer 2014), p. 128.} In this case, for the purpose of defining this broad HKC objective of safe and environmentally sound ship recycling, the IMO guidelines will be used solely as a supplement and recommendation to the Convention.

Overall, in the absence of a clear definition in the HKC of what safe and environmentally sound ship recycling is, this objective may therefore be defined in the light of the requirements such as the IHM, the SRP and the SRFP.^{(98) HCK, Regulation 20 and Regulation 18.} Nonetheless, as minimum requirement convention, the HCK gives significant discretion to the parties to interpret, implement and enforce the requirements at national level. This could potentially lead to various ways of interpreting safe and environmentally sound recycling, which would conflict with the purpose of regulating ship recycling at international level. All the actors involved in the process of dismantling a ship are therefore encouraged to use the IMO guidelines as a supplementary tool and tailor the content of those guidelines, along with the HKC, to fit the needs, objectives and aims. Such an approach might facilitate defining and fulfilling the broader objective of safe and environmentally sound ship recycling, aligning with Parties’ national infrastructure. When the HKC is supplemented with the IMO Guidelines, it increases the chances of ensuring a uniform, harmonious interpretation, as well as providing better compliance and enforcement of the Convention.

Additionally, the HKC encourages cooperation between the Parties in order to comply with the safe and environmentally sound ship recycling objective^{(99) HCK., Article 13(1).} by allowing parties to provide their technical assistance regarding training of workers, adequate technologies, facilities, and initiating research and development projects.^{(100) Ibid., Article 13(1).} Such an approach from the HKC illustrates the global aspect of ship recycling and actively seeks to foster cooperation between the Parties, to achieve the objectives set forth in the Convention.

Nevertheless, the assessment of safe and environmentally sound ship recycling has been measured primarily based on the focal points beaching, pre-cleaning, downstream waste management, when discussion the level of standard and protection the HCK provides. However, this will be addressed further below in the analysis on whether the HCK equivalence level of control and enforcement as required by BC.^{(101) Infra section 3.2.}

2.2.5. Compliance and enforcement of the Hong Kong Convention

As emphasised in the earlier sections, as a minimum requirement convention, the HCK gives discretion to the parties, which potentially could result in challenges with compliance and enforcement matters. The following section addresses these matters from the perspective of violations as per the HCK, as well as discussing the potential risks for non-compliance with the broader objectives of the HCK.

The HCK follows “a sovereignty-based approach”^{(102) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 226.} by establishing that any violation of the Convention shall be prohibited within the jurisdiction of the parties.^{(103) HCK, Article 10(1).} The HKC divides the jurisdiction between the flag State and the recycling State, namely regarding ships, the flag State must prevent violations, and the same applies for the recycling State, regarding SRFs.^{(104) Ibid., Article 10(1) (2).} The HCK also urges the parties to endeavour collaboration for the achievement of “effective implementation of compliance with and enforcement of this Convention.”^{(105) Ibid., Article 1(3).} This sovereignty-based approach in the HCK gives significant discretion to the parties to determine the type of sanctioning at national level which may include both criminal and civil sanctions.^{(106) Hadjiyianni,Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 226.} However, the Convention requires that the parties collaborate in the detection of the violation pursuant to Article 9, and in doing so it constructs a structure through which parties could ask the recycling State or the flag State to initiate investigations on supposed violations of the HKC requirements.^{(107) Ibid., p. 168.}

The Port States also have right to carry out an inspection of the vessel within its ports, in order to ensure that the vessel is in compliance with the HCK requirements. However, the port State control is limited to verify that the vessel has all required certificates onboard, including the IHM and the IRRC.^{(108) HCK, Article 8(1).} In case of a violation, the port State may “warn, detain, dismiss or exclude the ship from its ports”, while the flag State and the IMO immediately is informed about the violation.^{(109) HCK, Article 9(3).} Thus, the Port State has a limited authority to enforce the Convention, if a violation is detected during a port State control.^{(110) Ibid., Article 8.}

Due to the “sovereignty-based approach”^{(111) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 226.}, IMO lacks the power to enforce the HKC, and to sanction any violation of the HCK.^{(112) Galley, ”Shipbreaking: Hazards and Liabilities,” p. 173.} As a result, the HKC relies extensively “on the legal standards of operation, inspection and enforcement”^{(113) Ibid., p. 223.} created and mandated by the different ship recycling States and left at the discretion of the national authorities.^{(114) Ibid., p. 223.} Compliance and enforcement with the HCK will differ from State to State, because each State must determine what constitutes a violation of the Convention, which potentially could result in different level of standards between HCK-compliant SRF.

2.2.6. The suitability of the Hong Kong Convention to addresses ship recycling concerns pertaining to the safety of environment and human health

The HCK was tailormade to ensure safe and environmentally sound ship recycling process, by imposing requirements on the shipowners and the SRFs. The following section will discuss whether the HCK and its cradle to grave approach provide an efficient and effective solution for safe and environmentally sound ship recycling. As discussed above, the safe and environmentally sound ship recycling can be defined in the light of the requirements such as the IHM, the SRP and the SRFP. The discussion is based on the above findings, along with some of the authors’ reflections.

The requirements on the ships design, construction and maintenance in Regulation 4 prohibiting the installation of hazardous materials and use of hazardous materials during the operational life of a ship, provide an ex ante tool for the Parties to ensure minimisation and generation of hazardous materials.^{(115) Supra Section 2.2.3.1.1.} Moreover, the requirement of an IHM onboard of a vessel throughout its operational life ensures ex ante compliance with the HCK by establishing a procedural chain of documentation.^{(116) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 41.} Thus, the earlier stage requirements on the ships, and throughout their lifecycle, ensures safe and environmentally sound ship recycling.

However, the HCK also faces some critique, because as a minimum requirement convention, the HKC gives significant discretion to the parties without providing further guidance on how to ensure adequate safe and environmental sound ship recycling. As discussed above, the HKC and its Regulations are not sufficient in their guidance for the State parties and stakeholders, potentially leading to enforcement challenges when transposing the HKC requirements in national laws.^{(117) Supra Section 2.2.4.1.} Nonetheless, IMO’s guidelines plays an active role and provides that necessary guidance through their set of guidelines. By supplementing the HKC with the IMO Guidelines, the interpretation process is to a certain degree more uniform, harmonious, ultimately leading to an improved compliance and enforcement of the HKC. However, as emphasised earlier the IMO guidelines are not considered legally binding for the Parties.^{(118) Supra Section 2.2.4.2.}

The HKC is also the first convention to directly place certain requirements on the ship recycling actors, for safeguarding and protection of the environment, human health and safety. However, these requirements are considered of minimum level, and this has been subject to criticism by Non-Governmental Organisations (NGO) for not providing sufficient level of protection of the human health and the environment.^{(119) NGO Shipbreaking Platform, ”Does the Hong Kong Convention Provide an Equivalent Level of Control and Enforcement as Established Under the Basel Convention,” published 10^th May 2011, p. 14.} The minimum requirements could also be seen as conflicting with the purpose of ensuring uniform and harmonious practice within the ship recycling industry at international level. Nonetheless, Article 1(2), HCK allows Parties to impose stricter requirements on the actors at national level or regional level. In this regard, EU is an excellent example of imposing stricter requirements in the Ship Recycling Regulation and its “extraterritorial reach”^{(120) Hadjiyianni, Pouikli, ’The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader,’ p. 190}e.g. for the SRFs.^{(121) Ibid., p. 190.} On the contrary, stricter requirements in the HCK would have potentially made the parties more reluctant to ratifying the HKC in the first place, which could have resulted in difficulties of enforcing the Convention, as per the Article 17 requirements.^{(122) HCK, Article 17 requires both the major flag State and ship recycling State to ratify the Convention. Supra Section 2.2.1.} Despite these requirements being widely contested, they might bring a new level of protection for safe and environmentally sound ship recycling at international level.

Some of the weaknesses of the HCK are the “sovereignty-based approach”^{(123) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 226.}, and the flag State principle. Regarding this approach, the HKC compliance and enforcement might differ from State to State, because each State must evaluate what constitutes a violation under the HKC regime, possibly leading to, for instance, differences in the standards among the HCK-compliant SRFs. As for Flag State principle, the HKC is following this principle, similar to other IMO Conventions.^{(124) Typically, the Flag State holds the strongest connection with the ship. Thus, the ship flying the flag of a State is also subject to the Flag States’ prescriptive and enforcement jurisdiction, unless provided otherwise pursuant to United Nations Convention on the Law of the Sea (hereinafter UNCLOS), Article 91 and 94.} In practice, this means that the prescriptive and enforcement jurisdiction in relation to ship is placed at the flag State.^{(125) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 180.} This is problematic, because it is rather easy to circumvent the HCK by reflagging to a non-party of the HCK, therefore avoiding any potential liabilities.

All things considered, the HCK and its cradle to grave approach provides a solution for safe and environmentally sound ship recycling with its requirements on the shipowner and the SRFs. However, as pointed out by NGOs, the Convention lacks a sufficient level of protection, and it might not bring significant changes in the industry. Nevertheless, the effectiveness of the HKC can first be decided once the Convention enters into force, and only the future will show if it is necessary for the HCK to be amended.