MarIus

3.1.1. Conflict clauses

To determine whether the BC or the HCK prevails, the conflict clauses included in the BC and the HCK shall be interpreted in light of Article 30(2), VCLT. Article 30(2), VCLT merely anticipates the scenario of a treaty containing a conflict clause which explicitly specifies how the other treaty’s provisions take precedence. Therefore, Article 30 VCLT is not considered exhaustive, using other types of conflict clauses is generally recognised in international law too.^{(12)Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 230.}

Article 15(2) in the HCK stipulates that “nothing in this Convention shall prejudice the rights and obligations of Parties under the relevant and applicable international agreements.” While Article 15(2) does not explicitly specify which other international agreements prevail, it could be argued that Article 15 could be categorised as a clause subject to those rights and obligations in other conventions that, either will prevail or apply together with the HCK if possible.^{(13) Ibid., p. 230.} Regardless of whether Article 15 is deemed as a declaratory reference to Article 30(2), the purpose of the Article is to define and distinguish between competence.^{(14) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 132.}

Furthermore, although no reference to the BC is made explicitly in Article 15(2), HKC, it may be regarded as “relevant and applicable agreements”, because references to the provisions in BC and the TGB have been made both in the HCK and IMO Guidelines, requiring the parties to take them into consideration.^{(15)The HCK, Regulation 3, and 2012 Guidelines for Safe and Environmentally Sound Ship Recycling, Annex 4, Resolution MEPC.210(63), para 3.4 addressing environmentally sound management in relation to ship recycling.} Regarding the relationship between the BC and the HCK, the provisions in BC do in principle prevail from the HCK based upon this interpretation of Article 15(2). Nonetheless, given the principles of lex specialis and lex posterior, as well as Article 11 in the BC with its equivalence principle, establishing the interplay between the HCK and the BC is rather challenging.^{(16) Infra Section 3.2.}

As per Article 11(1), BC, parties are allowed to “enter into bilateral, multilateral or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with Parties or non-Parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes.” (emphasis added). Article 11, BC thereby establishes the priority of existing and future agreements provided that such an agreement is compliant with the principle of ESM, governed by the BC.^{(17) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 134.} To be noted, in this thesis the analysis will solely focus on the term “agreement” with reference to the VCLT’s definition of agreement as “a convention or treaty concluded between two or more States”^{(18) VCLT, Article 2(1)(a). See also: Kummer, International Management of Hazardous Wastes: The Basel Convention and related Legal Rules, p. 88.}

In light of Article 30(2), VCLT, Article 11(1) in the BC can be interpreted as giving priority to other agreements regarding transboundary movement, provided that the agreement is either providing a similarly or more environmentally sound approach to ship recycling. In contrast, Article 11(2), BC could also be interpreted as a clause establishing priority to the BC over agreements which provides a less environmentally sound approach. Notably, beyond the ESM requirement, Article 11, BC does not require further conformity with other requirements in the BC.^{(19) Kummer, International Management of Hazardous Wastes: The Basel Convention and related Legal Rules, p. 90.} Thus, in the assessment of the compatibility an agreement with the provisions in the BC, ESM of hazardous wastes is the central element of the assessment. As discussed earlier, the definition of ESM in Article 2(8) in the BC is vague, and more stringent formulations to Article 11 were also proposed in earlier drafts e.g. “compatibility with the aims and purposes”^{(20) Ibid., p. 91.}, but were rejected as resistance was made by certain parties. Nevertheless, a teleological approach to the interpretation of the ESM of hazardous wastes may provide some direction by assessing whether the agreement is aligned with the objectives and purpose of the BC as suggested by Kummer.^{(21) Ibid., p. 91.}

Lastly, Article 11, BC could also fall under the scope of Article 41, VCLT, which allows inter se agreement or modification to be concluded between certain of the parties. Notably, the inter se agreement does not revise the original convention but modifies the application of the original convention between certain of the parties.^{(22) Report of the Study Group of the ILC finalized by Martti Koskenniemi on ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 305. Available at: Available at: https://documents.un.org/doc/undoc/ltd/g06/610/77/pdf/g0661077.pdf (last accessed 1st December 2024)} An inter se agreement can be concluded, if “all the parties to the second treaty were also parties to the first treaty (...) whose permissibility would have to be resolved by interpreting the first treaty.”^{(23) Ibid., para 305.} Based on the ratification status of the BC, almost all parties of the HCK may be parties of the BC too.^{(24) Report of the Study Group of the ILC finalized by Martti Koskenniemi on ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 305. Available at: Available at: https://documents.un.org/doc/undoc/ltd/g06/610/77/pdf/g0661077.pdf (last accessed 1stDecember 2024)., para 305.} Thus, the HCK’s permissibility may be clarified by interpreting the BC in accordance with Article 41 VCLT.^{(25) Ibid., para 265. See also: Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 135}Inter se agreements are, however, only permitted if (a) such modification is explicitly allowed under the convention, or vice versa (b) the convention does not prohibit the modification, and (i) the modification does neither impact on the rights or obligations of other parties or (ii) undermine the key purpose of the convention pursuant to Article 41 of VCLT. Similar to Article 41, VCLT, Article 11 in the BC also contains an explicit permission for modification, meaning that the original obligations under the BC can be deviated by certain parties. The admissibility of the inter se deviation is, however, conditional upon that no agreement provides a “less environmentally sound approach” than the provisions of the Basel Convention.^{(26) BC, Article 11.} The reasoning behind the structure of both provisions is to ensure that the later agreement does not undermine the purpose of the previous Convention, in its entirety. Inter se deviation from the general obligations of the BC is therefore permissible if the HCK does not undermine the overarching objectives and purpose of the BC.

In summary, based on Article 41, VCLT the interpretation of the scope of Article 11‘s compatibility would be more limited, if the assessment of the equivalence level of control under Article 11, BC will be determined merely on the basis of the principle of ESM, instead of the interpretation of the equivalence level control and enforcement under Article 11 in the light of the BC’s objectives and purposes.^{(27)Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 231.}Ultimately, this question requires a thorough analysis of the equivalent level of control and enforcement between the two regimes.^{(28) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 137. Kummer, International Management of Hazardous Wastes: The Basel Convention and related Legal Rules, p. 91.} This will be examined further below in Section 3.2.

3.1.2. Lex Posterior Derogat Legi Priori

Should no formal decision have been made by the COP of Basel at the time the HCK enters into force in June 2025, the rules in Article 30(3) and Article 30(4) shall apply instead.^{(29) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 135.} Nonetheless, the applicability of these additional principles is determined by the membership of the conventions. The BC has currently 191 members^{(30) See ratification status. Available at: Ratification Status of the Basel Convention (last accessed 1st December 2024)}, of which not all are member of the HCK, whereas the HCK has 23 members.^{(31) IMO, ”Pakistan becomes party to the Hong Kong ship recycling Convention,” 1st of December 2023. Available at: The ratification status of the Hong Kong Convention (Last accessed 1st December 2024)} Yet, with the HCK’s entering into force in 2025, it is possible that more countries soon will ratify the HCK.^{(32) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 231.}

For parties to both the BC and the HCK, Article 30(3) of VCLT stipulates that “(...) the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty,” (lex posterior derogate lege prior) meaning that the BC only applies to the extent that “its provisions are compatible with” the HCK.

Regarding the transboundary movement of vessels, the requirement of HCK should apply according to Article 30(3) of VCLT.^{(33) Notable, only ships that fall within HCK Article 3. Infra Section 3.2.1.} However, MEPC has emphasised in its draft of guidance that State Parties’ obligation to notify the Secretariat of the Basel Convention pursuant to Article 30(3) VCLT that the States involved intend to apply the HCK in relation to transboundary movement of ships, intended to be recycled at a HCK authorized SRF. Additionally, the State informs that hazardous waste arising from ship recycling will be managed in an environmentally sound management as required by the BC.^{(34) Provisional guidance on the implementation of the Hong Kong and Basel Conventions with respect to the transboundary movement of ships intended for recycling. HKSRC.2/Circ.1 Annex, p. 1.} Based on MEPC's guidance, it is possible to argue the MEPC suggests that the BC gives priority to HCK, if the HCK provides an equivalent level of control and enforcement as required by Article 11, BC, by providing the same level of protection as ESM. This will be discussed further below in Section 3.2.

However, this rule only applies, if the earlier treaty has not been superseded or terminated according to Article 59 of VCLT.^{(35) VCLT, Article 30(3).} A convention can be superseded or terminated in different ways pursuant to Article 59 of VCLT. Nonetheless, no intention of replacing the BC can directly be deducted from the HCK. On the contrary, the HCK requires its parties to take the BC and its guidelines into consideration to fulfil the requirements of the HCK.^{(36) HCK, Regulation 3 and Article 1(2).} It might be argued that such an approach from the HKC, is a way to show willingness of the convention to coexist with the BC regime. Though, neither can an intention to supersede the BC be deducted from in the Basel COP’s decision on ship dismantling, as the decision itself recognises that even though a ship might become waste, as per Article 2 of the BC, that vessel might still concomitantly be considered a ship by other legal frameworks.^{(37) Decision VII/26 (UNEP/CHW. 7/33. (25th January 2005)), p.63.} Furthermore, the definition of waste in Article 2 does not rely on whether the vessel is operating or continuing to generate income for the shipowner.^{(38) UNEP/CHW.7/INF/10, p. 9.} In practice, this means that the vessel in question is still subject to the laws of the seas, including the provisions of SOLAS and MARPOL.^{(39) Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, UNEP (CHW 6./23 (2003)), p. 32.} Hence, in Decision VII/26 the parties of the BC have called upon the parties to comply with their obligations as per the BC where relevant, specifically regarding those obligations pertaining to the PIC, as well as the “minimization of transboundary movements of hazardous wastes and the principles of environmentally sound management”.^{(40) Ibid., p. 63.}

In the event of “the parties to the later treaty do not include all parties”, different rules may apply pursuant Article 30(4), VCLT. Article 30(4) of the VCLT further distinguishes between State parties to both conventions, and parties of which only one of the State parties is party to one of the conventions. For State parties to both conventions the same rules apply as in Article 30(3)), meaning that the HCK prevails in this case. Whereas for relations between a State party to both conventions and a state party which only is party to one of the conventions, the rules of the convention to which both parties are parties to shall apply. Consequently, only the provisions of the BC should apply to both States, if one of the parties is not party of the HCK, but only the BC. Similarly, the requirements of the HCK should apply for both States, if one of the parties only is party to the BC pursuant to o Article 30(4) of VCLT, also reflecting “relative validity”^{(41) Provisional guidance on the implementation of the Hong Kong and Basel Conventions with respect to the transboundary movement of ships intended for recycling. HKSRC.2/Circ.1 Annex, p. 1. See also: Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 135.}. Given that only 23 States so far have ratified the HCK, different rules will apply depending on relationship between the involved parties, provided that the COP of Basel has not concluded a formal decision by the time the HCK enters into force.

3.1.3. The principles of Lex Specialis Derogate and Legi Generali

The customary principle of lex specialis derogate legi generali applies in parallel to or may even supersede the principles in relation to time of adoption governed in Article 30 of VCLT, leading to the discussion of lex specialis versus lex posterior in the context of ship recycling.^{(42) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 232.} Accepted as general rule of law, the principle lex specialis derogate legi generali stipulates that a more specific and special norm should be given the priority in the event of a conflict between to conventions.^{(43)Southern Bluefin Tuna, New Zealand v Japan, Provisional Measures, ITLOS (1999) 38 ILM 1624, para 12. See also: Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 232.} As a general waste regime, the BC is applicable to all sorts of waste, whilst the HCK is tailormade to be applied to both ships and ship recycling facilities. Moreover, the HCK reflects more shipping specific features, covering aspects of the ship that fall outside the scope of the BC.^{(44) Decision IX/30 (UNEP/CHW9/39 27 June 2008), p. 1. See also: The seventh meeting ofthe Open-Ended Working Group of the Basel Convention (UNEP/CHW/OEWG 7/11, 30 March 2010).} This is among others the reason why the HCK should be considered as lex specialis in relation to ship recycling. However, in relation to environmentally sound management of ship recycling, the BC and its TGB may be considered lex specialis in this regard, as the BC and the TGB address a more specific and detailed environmentally sound management of hazardous wastes.^{(45) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 232.} Even the IMO Guidelines refer to the BC and its TGB, recommending taking the TGB for environmentally sound management into consideration “as appropriate”.^{(46) 2012 Guidelines for Safe and Environmentally Sound Ship Recycling, Annex 4, Resolution MEPC.210(63), para 3.4 addressing environmentally sound management in relation to ship recycling.} Moreover, as a framework convention, the HCK and its subsequent guidelines are developed in general terms, leaving considerable discretion to the national authorities of the parties. Furthermore, references to other international regulations are made throughout the HKC to provide certain specification on particular matters.^{(47) HCK, Regulation 3, and Article 1(2).}

Besides from assessing the substantive provisions in both conventions, the accession by numerous States around the world indicate that the parties recognize the BC as the main vehicle for dealing with transboundary movement of hazardous waste and their environmentally sound management of hazardous wastes.

Hence, the assessment of which convention is lex specialis is challenging and far from straightforward. As discussed above, neither of the two clauses in the BC or the HCK explicitly express any presumption of priority between the two Conventions.^{(48) ILC ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 26.} Nevertheless, the parties should strive after implementing both conventions as far as possible, and in relations to certain matters such as the downstream management waste a solution to the coexistence between the two conventions could be attained by harmonizing the interpretation of the HKC in light of the BC, which is a feasible results based upon this interpretation.^{(49) ILC ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, A/CN.4/L.682, para 26.} For instance, the HCK does not regulate the downstream waste management, meaning that the management of the hazardous materials extracted from the ship, after dismantling, falls outside the scope of the HCK. Based on this, it could therefore be argued that this would open the possibility of applying the BC provisions for downstream waste management, upon the dismantling of the ship. However, for the BC to apply, the requirement of transboundary movement must be fulfilled, meaning that the BC must apply for the last voyage of the vessel. For the BC to be applicable, the shipowner must notify the exporting State, and express intent of recycling the vessel. This must be done while the vessel is still physically in the territorial waters of the exporting State and prior it commences its final journey.^{(50) BC, Article 4 and Article 6. Supra section 2.1.}Assuming that the last journey commences outside the territorial waters of the exporting State, the BC provisions for downstream waste management are not applicable. Should the BC not apply, then the waste will neither be covered by the HCK nor the Basel, as no transboundary movement has occurred, and cannot be invoked at later disposal phase. The downstream management of the hazardous materials extracted from the vessel will then become subject to the national laws of the ship recycling State. This will be the case once the waste is removed outside the SRF.^{(51) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 233.} This example is relevant for the scenario where both conventions work in an aligned manner and coexist with each other. Nevertheless, this scenario of HCK being considered as lex specialis triggers certain issues regarding to the scope of the BC, namely narrowing it down.^{(52) Ibid., p. 233.}

On the other hand, should the BC instead cede its competency to the HCK, the same outcome would be reached, meaning the downstream waste management of those wastes extracted from the ship also will remain uncovered under both conventions.^{(53) NGO Platform on Shipbreaking, ”Does the Hong Kong Convention Provide an Equivalent Level of Control and Enforcement as Established under The Basel Convention?, Report, published 10th of May 2010, p. 14.}

3.1.4. Determining the interplay between the Hong Kong Convention and the Basel Convention in the light of the international principles of VCLT

All things considered, determining the interplay between the HCK and the BC based on the international principles of VCLT and lex specialis gives different solutions. The following solutions are:

1. The BC prevails, given that the BC is considered a “relevant and applicable agreement” based on the interpretation of Article 15, HCK.

2. The BC cedes its competence to the HCK, if the HCK provides an equivalent level of control and enforcement as required by Article 11, BC.

3. Both conventions apply at the same time, but the BC only applies “to the extent that its provisions are compatible” with those in the HCK, pursuant to Article 30(3), VCLT and lex posterior derogate lege prior.

4. Different rules apply to the parties, depending on their membership to the two conventions, pursuant to Article 30(4).

5. The HCK prevails based on the lex specialis principle, provided that the HCK is considered as lex specialis.

Consequently, the international principles in the VCLT do not provide a clear answer to the interplay between the HCK and the BC. Nevertheless, these principles can act as guidelines for addressing the interplay between the two conventions.