3. The interplay between the Hong Kong Convention and the Basel Convention

587/2025

3. The interplay between the Hong Kong Convention and the Basel Convention

Several questions have arisen since Bangladesh ratified the Convention in June 2023 and hereby fulfilled the requirements for the HCK to enter into force in June 2025. BIMCO and several countries such as Norway, Bangladesh, Pakistan and India, requested MEPC under IMO, prior its 81^st meeting, to clarify the legal uncertainties of the interplay between the HKC and the BC to avoid potential overlap.^{(1) MEPC 81/15/5 (25^thof January 2024).} The MEPC encouraged during its 81^st meeting its Secretariat to fortify the inter-agency cooperation with the Secretariat of the Basel Convention, with the objective of safeguarding that the HKC is implemented in a consistent manner, corresponding to the level of control and enforcement required by BC.^{(2) MEPC/81/16 (8t^h April 2024), p. 72f.} The establishment of an inter-agency between the Secretariat of the Basel Convention, IMO and ILO to develop an international regime to govern dismantling of ships was agreed on between the parties during the fifth meeting of the COP of Basel.^{(3) Adoption of Decision V/28, (UNEP/CHW. 5/29, (10^th December 1999)) p. 11 The Conferences of the Parties decided to mandate the Technical Working Group to collaborate through the Secretariat of the Basel Convention with the appropriate body of IMO on the subject of the dismantling of ships, and to prepare guidelines for the environmentally sound management of the dismantling of ships.} The purpose of the inter-agency cooperation is the avoiding of overlapping of roles, responsibilities and competencies between the three Organisations.^{(4) Decision VII/25 (UNEP/CHW. 7/33. (25^th January 2005), p. 62. See also: MEPC 51/3 (23^rd January 2004), p. 1.} Moreover, the importance of the cooperation is to prevent duplicating “regulatory instruments that have the same objective”.^{(5)Decision VIII/11. (UNEP/CHW. 8.16. (5^th January 2007)), p. 39.}

Furthermore, MEPC requested the Secretariat of the Basel Convention at its 81^st meeting to collaborate on developing “guidance on the implementation of the Hong Kong and Basel Convention with respect to the transboundary movement of ships intended for recycling.”^{(6) Draft guidance on the implementation of the Hong Kong and Basel Conventions regarding the transboundary movement of ships intended for recycling (MEPC\82\16 (11^th July 2024)), p. 3.} However, the Secretariat of the Basel Convention informed IMO that the Secretariat is unable to assist with the development of this guidance until the matter had been reviewed by the COP of Basel at its 17th meeting, which is scheduled between the 28^th of April to 3^rd of May 2025 just little over a month before the entering into force of the HCK. Thus, the IMO developed the draft of the guidance exclusively, focussing on the two conflict clauses^{(7)HCK, Article 15, respectively BC, Article 11.} in the two conventions.^{(8)Draft guidance on the implementation of the Hong Kong and Basel Conventions regarding the transboundary movement of ships intended for recycling (MEPC\82\16 (11^th July 2024)), p. 3.} Nothing, that the assessment of whether the HCK provides an equivalent level of control and enforcement as required by the BC, falls within the competence of the COP of Basel pursuant to Article 11(2), BC. However, the last time the COP of Basel discussed the equivalence between the two regimes, no consensus was reached.^{(9) UNEP/CHW.10/28. (1^st November 2011), p. 15 – 16.} This issue has been subject to institutional debate, but at the same time also the driving force for setting the equivalence discussion into motion, under the auspices of the Basel COP, and latest at the MEPC 82 meeting, putting the ball in the COP of Basel’s court. Nevertheless, the issue remains to this day unanswered.^{(10) UNEP/CHW.10/28. (1^st November 2011), p. 15 – 16. See also: Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 228.}

The purpose of the following section is to determine the interplay between the BC and the HCK. The section first examines the conflicting clauses in the two Conventions, namely Article 11, BC and Article 15, HCK. The conflicting clauses shall be interpreted in light of the international principles governed in the VCLT and lex specialis.^{(11) Supra Section 1.3.} The next section analyses whether the HCK provides an equivalent level of control and enforcement as required by the BC.

Acts adopted by both the COP of Basel and MEPC will in the following sections be used to set forth an authoritative interpretation of the HCK and the BC to determine the relationship between the two conventions. Furthermore, to be noted, the provisional guidance on the implementation of the HKC and BC with respect to the transboundary movement of ships intended for recycling is solely developed by MEPC. Moreover, MEPC has emphasised that the draft guidance is merely an option for the parties of both Convention, underlining that “the interpretation of treaties is the sole prerogative of the States Parties thereto”.^{(12) Draft guidance on the implementation of the Hong Kong and Basel Conventions regarding the transboundary movement of ships intended for recycling (MEPC\82\16 (11^th July 2024)), p. 3.}