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3.2.1. Scope and applicability of the Basel Convention and the Hong Kong Convention

The scope and the applicability of the HCK is different from the BC. One of the key differences between the two conventions is that HCK applies only to certain types of ships, but at the same time, excludes other categories of ships that also contains hazardous materials.^{(13) HCK, Article 3, and Article 2(7).(14) The exclusion of ships owned by the government may be justified due to national security as pointed out during the negotiation of the HCK, as long as the ships comply with the Convention ”as far as reasonable and practicable” during their operation life. See IMO, Marine Environment Protection Committee, 56th session, 7-11 May 2007 (MEPC 56/3/12), para. 2 – 3.} Nevertheless, the types of ships that are excluded from the HCK, will still fall within the scope of the BC, because the BC applies to all types of ships containing hazardous wastes, subject to transboundary movement, therefore not distinguishing between the size, operation or ownership of the ship.^{(15) BC, Article 2(1) and Article 1(1) and Decision VII/26 and HCK Article 15(2) and Article 1(2). Supra, Section 2.1. and 2.2.2.} Notably, the existing definition of the hazardous wastes under the BC has not been included in the HCK, thus both conventions contain two different definitions of hazardous wastes.^{(16) BC, Article 2(1), Article 1(1) and Annexes I, III, VIII and IX, as well as Decision VII/ 26 cf. HCK, Article 2(9), Regulation 4, Regulation 5 and Appendixes 1 and 2.}

Furthermore, the responsible parties in the HCK are the flag State and the ship recycling State.^{(17) HCK, Article 5 and 6.} Whereas the BC deviates from the flag State principle as it imposes obligations on the exporting State, based on the territorial jurisdiction, and not the flag State, because the final voyage of the vessel does not necessarily commence from the flag State.^{(18) BC, Article 2(10).}As result this creates substantial loopholes, making it easier for the stakeholders to circumvent the two regimes.

The HCK does not ban export of vessels to non-parties and non-OECD countries, as required by Article 4 in the BC. However, the HCK does include a “no more favourable treatment” clause, which prevents the contracting parties from sending their ships to recycling in a non-party State.^{(19) HCK, Regulation 8(1)(1) in conjunction with Article 3(4).} At the same time, the authorised SRFs are only allowed to accept ships which are compliant with the requirements of the HKC or fulfil those requirements.^{(20) HCK, Article 6, and Regulation 17(2) in conjunction with 3(4).} This also extends the scope of the Convention to including non-parties.^{(21) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 182 – 183.}

Lastly, both conventions have different approaches concerning on how the ship must be regulated. The HCK has the requirements and rules pertaining to the design, construction and maintenance of the vessel during its operational life.^{(22) HCK, Article 5, Regulation 4 and 5.} What sets the HKC apart is that it focuses on the life cycle of the ship, and it has the cradle to grave approach throughout its articles and regulations. In contrast, the BC regime which only focuses on the end-of-life-ship. These requirements are key characteristics of the HCK, and the HCK does somewhat implement comparable requirements for the minimisation of hazardous waste from the beginning of a ship’s life, along with the control of the ESM at the SRFs. However, opposite to the BC, the HCK does not impose explicit requirements for downstream waste management beyond the SRF, leaving considerable discretion for the ship recycling States to regulate the handling of the materials after the dismantling process.^{(23) Galley, Shipbreaking: Hazards and Liabilities, p. 186.} This will be discussed further below.

Overall, the scope and applicability of the HCK does contain more explicit requirements for ships and the SRFs, making it more suitable for ship recycling. While the BC provides a less specific regime, focusing only on managing waste environmentally sound manner in general, and not as explicit concerning its, and narrowing its approach to “one stage of the life cycle.”^{(24) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 140.}

3.2.2. Level and scope of standards in both Basel Convention and the Hong Kong Convention

When assessing whether the HKC establishes an equivalent level of control and enforcement as required by Article 11, BC, in its entirety, it is necessary to analyse the different levels of standards between the two conventions. The comparison of the standards in the two conventions, shall provide support for determining the level of compatibility or lack thereof. In terms of standards, this thesis refers to the requirements stated in BC corresponding to the ESM, i.e., the beaching method, pre-cleaning, downstream waste management and respectively safe and environmentally sound ship recycling in the HKC, and other requirements as such falling under the scope of these two principles. These standards are addressed differently by the two conventions; therefore, a parallel comparison will be made between the two conventions’ standards.

In the authors’ view, the concept of equivalent level of control under Article 11, and as per the ESM, is essentially comprised of standards, and the level of those standards has the purpose of assuring that the export and import States on the ESM of the hazardous waste, and the waste itself has been subject to rigid control in accordance with the PIC procedure, prior transboundary movement occurs. Certainly, this rigid control must extensively cover all wastes falling under the scope of hazardous and other waste, along with the responsibility of overseeing transboundary movements which fail to comply with these standards. A lack of adherence to this, can potentially result in criminal liabilities and might require the parties in question to re-import the hazardous wastes.^{(25) BC, Article 8 and Article 9.} However, these are elements of control procedures such as the PIC procedure and the criminalisation of illegal traffic will be discussed further below.^{(26) Infra Section 3.2.3 and 3.2.4.}

The beaching method is a rather controversial standard in both the BC and HKC, with the main reason being that none of the conventions explicitly address, prohibit, or permit it. This lack of certainty must be assessed by considering both the principle of environmentally sound management, and that of the safe and environmentally sound ship recycling, along with the strict standards and requirements to which parties to both conventions must adhere to.

When discussing the beaching method, the thesis refers to the beaching method, falling under the scope of “dismantling of ships without the use of fixed installations for collection and handling of dangerous and polluting waste.”^{(27) International Law and Policy Institute, ‘Shipbreaking Practices in Bangladesh, India and Pakistan: An Investor Perspective on the Human Rights and Environmental Impacts of Beaching’ (2016) p. 7, available at Microsoft Word - Shipbreaking report mai 2016.docx} Having two conventions governing ship recycling which do not explicitly regulate the beaching method, it is in the authors’ view concerning, given that this method is both the most common ship breaking method and the most dangerous in terms of working conditions and its harmful effects on the environment.^{(28) Ibid., p. 8} The main risks of this method are non-containment of hazardous materials, spillages, leakages, contamination of the marine environment, gas air pollution, workers’ injuries, or loss of life, long term health damage to the workers, local marine vegetation and fish.^{(29) Ibid p.9} The list is not exhaustive, and this is an important aspect to keep in mind when analysing the beaching method against the standards in the two conventions.

The HKC does not explicitly, prohibit, nor permit beaching. However, throughout the Convention’s articles and regulations there is a provision which stands out, namely Regulation 15(1). The Convention does not address per se, the term design and construction regarding SRFs in other regulations, guidelines or articles, therefore the key factors for interpretation of the convention beaching method within the HKC, lies within this regulation, namely the design and construction of SRF.

Prior moving any further, it is necessary to address that the thesis will conduct the analysis based on the literal meaning of the words designed and constructed. The Oxford Dictionary defines designed/design as making “drawings for the construction or creation of (something as a building, object)”^{(30) Definition of ”designed”. Available at: Oxford English Dictionary (Last accessed 1st December 2024).}. Construction is defined as “the action of framing, devising, or forming (...); building”^{(31) Definition of construction. Available at: construction - Oxford English Dictionary (Last accessed 1st December 2024)}. Having established the literal definitions of design and construction, it is essential to now demonstrate the correlation between the two elements, considering the conventional beaching method. As stated above, the beaching method requires that ship dismantling is conducted “without the use of fixed installations for collection and handling of dangerous and polluting waste.”^{(32) International Law and Policy Institute, ‘Shipbreaking Practices in Bangladesh, India and Pakistan: An Investor Perspective on the Human Rights and Environmental Impacts of Beaching,’ p. 7, available at Microsoft Word - Shipbreaking report mai 2016.docx}

Regarding the beaching method, the emphasis is on ship dismantling without using fixed installations. With the beaching method excluding the use of fixed installations, the interpretation of Regulation 15(1) can be made by including fixed installations, through the terminology used in the provision of design and construction. Based on this premise, it could be implied that HKC potentially permits beaching provided that the SRFs are designed and constructed corresponding to the HKC requirements.^{(33) HCK, Regulation 15(1).} In support to this, the guidelines attempt to regulate this by requiring an inspection of SRF, which verifies that the facility “is designed and constructed to manage any Hazardous Materials and wastes that are included in their application.”^{(34) 2012 Guidelines for the Authorization of Ship Recycling Facilities Resolution MEPC 211(63), p. 8.} Nevertheless, the provision states that parties must transpose the HKC’s requirements into their national laws and ensure that those legislations are fit and suitable for SRFs’ to be “design, constructed, and operated in a safe and environmentally sound manner.”^{(35) HKC, Regulation 15(1)} However, because the HKC is a minimum threshold convention, in practice, it gives discretion to the national authorities in the ship recycling state on how to transpose these requirements into their national legislations.^{(36) Ibid., Article 1(2), and Regulation 15(1).} As discussed above this increases the chances for the HCK compliant SRFs to have different standards, depending on the ship recycling States national legislation and infrastructure.^{(37) Supra Section 2.2.5.}

As a starting point, the BC requires that the dismantling facility possesses the adequate industrial facilities to manage the hazardous wastes present on the vessel in an environmentally sound manner.^{(38) TGB, p. 10.} Moreover, the TGB emphasise that dismantling of ships in an environmental manner among others includes taking certain measures to contain the wastes, and in this way preventing any potential leakages, spillages, or releases from during this process.^{(39) Ibid., p. 10.}

However, the conventional beaching method does not allow for containment of the hazardous wastes, due to the vessels being primarily cut in the intertidal zone, where there is no access to any impermeable flooring, and drainage systems as in a dry dock. This indicates that facilities lacking adequate equipment for such procedures, might need to be upgraded, in the countries that use the beaching method.

The BC and the TGB do not explicitly prohibit the beaching method, because the BC is not designed to be a ship convention.^{(40) Supra Section 2.1.5.} However, the BC does require that measures are taken to prevent hazardous materials from being discharged leaked, and other situations as such. This is an important factor when discussing ESM, because this is the principle standing at the base of Article 11, BC. Assessing whether conventional beaching, or other forms of beaching, aligns with the principle of ESM, is detrimental for further establishing the equivalent level of control and enforcement between the two conventions, as per Article 11, BC.

Regarding this concern, the NGO’Shipbreaking Platform’ further noted that the beaching method cannot be considered compliant with ESM principle, because this method is unfit in preventing hazardous waste leaking or spilling from the ship to the highly sensitive marine environment ecosystem of the intertidal zone.^{(41) NGO Shipbreaking Platform, ”Does the Hong Kong Convention Provide an Equivalent Level of Control and Enforcement as Established Under the Basel Convention,” p. 14.} The lack of infrastructure for ensuring complete containment while using the conventional beaching method is one of the critical aspects for safeguarding environmental protection and preventing further damage. In this regards, Professor Alla Pozdnakova has emphasised in a teleological manner, that the usage of the beaching method is not obviously compatible with the principle of ESM, which implies that parties take all measures to “protect human health and the environment against the adverse effects which may result from such waste.”^{(42) BC Article 2(8). See also: Alla Pozdnakova, Ship recycling regulation under international and EU law, p. 62.} Nonetheless, it can also be seen that the TGB take a similar approach to the BC, and lay out a set of minimum requirements, denoting “good practices”^{(43) Hadjiyianni, Pouikli, ’The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader’ p. 221.} for managing hazardous.^{(44) Ibid., p. 221.}

The following standard to be assessed is the pre-cleaning of a ship before the dismantling process starts, to illustrate how the pre-cleaning standard is regulated in each of the conventions, and what this process consists of, to ultimately determine if it aligns with ESM.

As per Regulation 8(2), the HKC addresses the pre-cleaning standard, but to a limited extent, and it requires the minimisation “of cargo residues, remaining fuel oil, and wastes remaining on board”^{(45) HKC, Regulation 8(2)}, prior the ship enters the SRF.^{(46) Ibid., Regulation 8(2).} However, the HKC does not state the extent to which the ship should be pre-cleaned prior to being sent for dismantling.^{(47) Galley, Shipbreaking: Hazards and liabilities, p. 178} The possibility of removing the hazardous materials from the vessel is also subject to debate, mainly because pre-cleaning the vessel prior its last journey might affect its seaworthiness.^{(48) Ibid., p. 178.} As for the pre-cleaning standard in the BC, and the TGB, it is not addressed per se, but through its TGB, removal of the hazardous materials must be conducted “to the extent possible”^{(49) TGB, p. 5.}, to limit transboundary movement.^{(50) TGB, p. 5.} The TGB are merely providing the parties with support and guidance in this area, as to listing the types of hazardous materials, and the managing procedures of such wastes, materials, in an environmentally sound manner.^{(51) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 138.}

The hazardous wastes onboard the vessel should, to the extent possible, be removed from the vessel during its life cycle prior to its voyage for dismantling. The purpose of removing or pre-cleaning the vessel of the hazardous waste onboard prior the dismantling is to ensure safeness of the dismantling process itself. However, no clean-up can guarantee that hazardous wastes have been removed entirely, and there are indeed possibilities that traces of such wastes are found during the ship dismantling process.^{(52) Colin de la Rue, Charles B Anderson and Jonathan Hare, Shipping and Environment - Law and Practice, (Routledge (2023), p. 1201.} Important to be noted that if the vessel has been cleaned from all hazardous materials, prior its final voyage, the vessel falls outside the scope of the BC, as the ship is no longer considered “hazardous waste”.^{(53) Siig,”Private law responses to of imperfect regulation in public law - the case of ship recycling,” p. 226. See also: The North Sea Producer Scandal case: In this case the FPSO North Sea Producer was sold for operational use to a buyer in Nigeria. Nevertheless, the sale and purchase contract contained a clause in which the buyer is obliged to recycle the vessel in line with the Hong Kong Convention and its standards on safe and environmentally sound ship recycling. The vessel was later resold to a ship recycling facility in Bangladesh, where the national authorities found that the vessel contained radioactive materials and Sulphur in its pipelines and other toxic materials such as asbestos. The High Court Division of the Supreme Court of Bangladesh therefore ruled that the import and recycling of the vessel was illegal under national public administration law. The Court, among other things, pointed out that the vessel did not have a valid pre-cleaning certificate. See https://www.maersk.com/news/articles/2019/04/04/maersk-tightens-its-ship-recycling-procedures (last accessed 2nd December 2024) and https://shipbreakingplatform.org/spotlight-north-sea-producer-case/ (last accessed 2nd December 2024).}

Pre-cleaning the vessel may also trigger certain challenges regarding compliance of international maritime safety regulations due to the vessel’s structural integrity.^{(54) Colin de la Rue, Charles B Anderson and Jonathan Hare, Shipping and Environment - Law and Practice, (Routledge (2023), p. 1201.} Hence, the hazardous wastes either cannot be removed or are necessary to comply with the safety requirements for the final voyage, and to ensure that the ship is seaworthy during its operational life.^{(55) Ibid., p. 1201.}

In terms of downstream waste management (DWM), the HKC in Regulations 20, and 19 it could be argued that the Convention is addressing the issue of disposal of hazardous materials, and requires that the SRF authorised by a Party, that such materials are “identified, labelled, packaged and removed”^{(56) HKC, Reg. 20(2).} as much as possible, however, it is clearly seen that the responsibility, therefore the load is put on the SRFs, and HKC requires SRFs to practice environmental sound management of the hazardous materials, in the IHM list.^{(57) Ibid., Regulation 20(2).} The Convention also requires that such materials “shall be kept separate from recyclable materials and equipment”^{(58) Ibid., Regulation 20(4).}, which shows additional burden on ship recycling States and hereby also the SRFs to adapt to such requirements by either developing infrastructures, rebuilding and improving current infrastructures.^{(59) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 222.}

With such extensive requirements imposed on the SRFs by the HKC, in comparison to BC, this opens for a broader waste management as per the BC standards. Upon the removal of hazardous waste was completed as per the HKC standards to the maximum extent, along with a clear lack of regulatory measures for the DWM standard in the HKC, and a lack of observation from some States, the remainder of the hazardous materials is left for the national authorities to find a solution for its environmental sound management, rather than allocating this responsibility internationally.^{(60) Galley, Shipbreaking Hazards and Liabilities, p. 180.}

On the contrary, the BC takes a firm position on the DWM standard by expressly stating that parties are required to take the necessary steps for guaranteeing that are sufficient and available disposal facilities for the ESM of hazardous wastes, and that such facilities are in the proximity of the disposal location to the most feasible extent.^{(61) BC, Art. 4(2)(b).} The standard of DWM consists of undertaking all necessary, and feasible steps, that hazardous wastes, or other wastes, aligned with the ESM principle, to mitigate any harmful effects on the human health and the environment.^{(62) Ibid., Art. 2(8).} BC also permit transboundary movements, provided that such movements have the purpose of mitigating damage caused away from the point of origin, if those wastes are necessary “as a raw material for recycling or recovery industries in the State of import.”^{(63) BC, Article 4(9b).} Nonetheless, this exception could apply in certain cases when the vessel is sent to ship recycling where the raw materials are recycled and support the local economy. However, this exception must be justified and used critically, because it should not be used for circumventing the Basel Ban Amendment.^{(64) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 162 – 163.}

3.2.3. Control procedures

This section addresses the control procedures and mechanisms governed in the two conventions, their restrictions on the export of the vessel, as well as identifying the responsible parties in each of conventions for the purpose of illustrating where the responsibility is allocated.

The PIC procedure under the BC was not included in the HCK, instead, the HCK requires that the vessel must hold an IRRC onboard prior its final voyage.^{(65) Supra Section 2.1.2. and 2.2.3.3.} The PIC procedure allows the involved States to prohibit the export or import of the hazardous waste.^{(66) BC, Article 4(2)(e), and Article 6.} Whereas the HCK allocates the responsibility of issuing the IRRC by the flag State.^{(67) HCK, Regulation 11(11).} Concomitantly, the ship recycling State approves the SRP for the specific ship explicitly or tacitly.^{(68) Ibid., Regulation 9(4).} In contrary, the BC imposes obligations both on the of State of export and import, including transiting States.^{(69) BC, Article 2(10), Article 2(11), Article (12) and Article 5.}

Not having included a legal mechanism such as the PIC procedure in the HCK, it restricts the flag State’s ability to export the vessel, and therefore the flag State can only deny the issuance of the IRRC and hereby the export of the vessel. For instances if the SRP does reflect the information from the IHM.^{(70) HCK, Regulation 10(4)(2). Also see: Other situations where issuance of the IRRC can be denied in the listed in the HCK. Regulation 10(4).} The control of the flag State is constrained in such situations and can only inspect whether the information provided by the IHM is properly reflected in the SRP, as well as the compliance of the SRP with the HKC requirements. The flag State can neither ensure that the SRF is de facto compliant with the HKC standards of recycling the vessel in an environmentally sound manner or verify that the SRF holds a valid authorisation for ship recycling operations.^{(71) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 177.} Consequently, the flag State’s ability to restrict the export of the vessel is only by denying the issuance of the IRRC based on the documents provided by the shipowner and the SRF. Nonetheless, the flag State has no right to refuse the export of the vessel by denying the issuance of the IRRC, if it “has the reason to believe”^{(72) BC, Article 4(2)(e), and Article 6.} that the ship recycling facility cannot recycle the vessel in compliance with the EMS.^{(73) HCK, Regulation 9.}

Regardless, the BC is not flawless and has been subject to criticism for not clearly defining the ESM principle and providing sufficient guidance to the States on how to comply with it.^{(74) Zada Lipman, Trade in Hazardous Waste, p. 262.} The exporting State’s ability to restrict the export of the vessel, provided that the State has reason to believe that the ship recycling yard does not comply with the ESM principle, is also limited. Based on Kummer’s interpretation, the State of export is required to exercise a due diligence of the facility in accordance with the information received form the State of import, as well as the contract between the generator and the disposer.^{(75) Kummer, International Management of Hazardous Wastes: The Basel Convention and related Legal Rules, p. 57.} Even so, the State of export can neither guarantee that the SRF is de facto complying with the principles of ESM in the BC, equivalent to the flag State’s ability to restrict on this matter.

Although the HCK does include the PIC-procedure, the comparison indicates that in both conventions, the responsible Parties, namely the State of export (BC) and the flag State (HCK), ability to prevent the export of the vessel are restricted due to the lack of access to control, whether the dismantling process of the vessel is in compliance with the EMS principle in the importing State.

Additionally, the BC imposes a duty to re-import on the State of export, if the dismantling of the vessel cannot be compliance with the PIC procedure and/or the contractual terms between the notifier (shipowner) and the disposer (SRF).^{(76) BC, Article 8.} This duty to re-import was also not included in the HCK. The conclusion of leaving out this take back obligation may be drawn based on the practical difficulties in performing this duty in relation to ship recycling. For instances the ultimate question is how the vessel can be re-imported to the State of export, if the dismantling process already have been started, and the vessel cannot be recycled appropriately.^{(77) Ibid., Article 8.} Also, after the dismantling process has started, the ship most likely not be fit or seaworthy for the re-import.^{(78) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 225.}

However, the HCK requires surveys and control of the ship and the SRFs goes further than the BC which does not contain such a requirement. Moreover, the establishment of surveys follows an approach from before the vessel is put into service, throughout its operational life to its very end, which further emphasizes the distinct HKC approach of cradle to grave.^{(79) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 38.}

3.2.4. Enforcement and sanctioning

This section addresses the enforcement and sanctioning system, or lack thereof, in the two conventions and discusses whether the criminalisation of illegal traffic of hazardous wastes is a preventive tool to ensure compliance. This is, because unlike the BC, the illegal traffic of hazardous waste is not characterised as a criminal act in the HCK.^{(80) BC, Article 4(3) and Article 9.}

The sovereignty-based approached in the HCK provides indeed significant discretion to the parties to determine the type of sanctioning at national level which may include both criminal and civil sanctions.^{(81) HCK, Article 1(3). See also: Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 226.} Contrary to the BC’s stringent measures such as criminal liability, the HCK does allow to some extent lenient measures to be adopted by the parties such as civil liability. At the same time, the HKC requires that the sanctions must be “adequate in severity to discourage violations”, but the assessment of the sanction remains a matter of national determination.^{(82) Ibid., Article 10(3).} Thus, the HCK does not include any provisions that establish an enforcement mechanism to addresses violations or criminalise illegal export of the vessel.^{(83) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 226.}

Furthermore, the assessment of equivalence regarding enforcement may also be affected by practices diverging from the legislative standards. While criminalisation of illegal traffic can be a useful tool and might also improve the compliance, the national authorities have been challenged with proving the exact moment when the vessel is considered waste under BC, based on the shipowner’s intention.^{(84) Supra, Section 2.1.1.} As discussed above, this is a weakness of territorial jurisdiction in the BC. Thus, criminalisation of illegal traffic under the BC can be difficult to comply with in practice. Nevertheless, the approach in the HCK appears to possibly be more effective in practice, provided that the membership of the HCK is becoming broader. The requirements in the HCK for the ships and SRF together with the “no more favourable treatment”^{(85) HKC, Article 3(4).} extends the reach of the HCK beyond the ships of its member parties and SRF.^{(86) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 182 – 183.} Based on these assumptions, the HCK could potentially ensure improved compliance. The equivalence of the enforcement should not solely consider the practical efficiency of enforcement.^{(87) Ibid., p. 226.} While the criminalisation in practice may not provide a better compliance due to evidentiary difficulties, the result of criminalisation of illegal traffic of hazardous waste at international level may be better changes for the States to cooperate, as well as providing a better level of protection due to the deterrent effect the criminalisation has.

Despite of the lack of criminalisation, the opinions on whether the two systems are equivalent is divided.^{(88) Ibid., p. 226} The NGOs^{(89) For instances NGO Shipbreaking Platform.} are against not criminalising illegal export of the vessel in the HCK, because sanctioning has a deterrent effect on, particularly the shipowner.^{(90) Including the cash buyer and the beneficial owner according to Regulation 1(8), HCK.} However, this enforcement mechanism might not be effective for a ship convention such as the HKC, because the HCK follows the flag State principles, which has been subject to critique for being easy to circumvent by reflagging the vessel. In the authors’ view this leads to the discussion of the two conventions having different approaches for allocating the jurisdiction among different actors, namely the State of export in BC versus the flag State in the HCK. This means that there is a significant difference between the type of jurisdiction, and therefore it is enforced differently depending on the type of actor, i.e. State of export versus flag State.^{(91) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 145.}

3.2.5. In their entirety

The COP of Basel stressed at its ninth meeting that the analysis of whether the HCK provides an equivalent level of control and enforcement as established by the BC, in their entirety, and further highlighted that this is an important matter to be addressed.^{(92) Decision IX/30 (UNEP/CHW9/39 (27th June 2008)), p. 1.} This section analyses the objectives of the two regimes, to assess whether the HCK “fit for its purpose”.^{(93) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 144.}

The overarching objective of the Basel Convention is protection of human health and the environment against adverse effects caused by the generation,^{(94) BC, Article 4.2(a).} and transboundary movement^{(95) Ibid., Article 4.2(d).} of hazardous wastes and other wastes; by ensuring that those wastes are managed in an environmentally sound manner; as well as the minimisation of transboundary movement.^{(96) Basel Convention, Article 4.2(d), 4.2(g), 4.8, 4.9 and 4.10. See also: MEPC\82\MEPC 82-16.} Whereas the overarching objective in the HCK is to protect the human health and the environment from harm caused by ship recycling, taking into consideration of the peculiarities of international shipping sector, while also reflecting the cradle to grave approach.^{(97) HCK, Article 1(1). See also: Draft guidance on the implementation of the Hong Kong and Basel Conventions regarding the transboundary movement of ships intended for recycling (MEPC\82\16 (11th July 2024))} Notable, upon the HKC’s entering into force from next year, these shall be the objectives to consider when assessing the efficiency of the HKC.^{(98) Engels, European Ship Recycling Regulation: Entry-Into-Force Implication of the Hong Kong Convention, p. 35.} Prima facie, in the context of ship recycling, the conventions’ overarching objectives addressed above, indicate that both conventions aim at protecting the human health and the environment from adverse effect from dismantling of ships.

Nevertheless, one of the cornerstones in the BC is to minimise the generation and transboundary movement of hazardous wastes and other wastes. This is achieved by calling the States to endeavour the treatment and disposal of the waste as close as possible to their generation source. The allowance of transboundary movement may be conducted only after complying with the PIC requirements and the principle of ESM.^{(99) BC, preamble recitals 9, and Article 4(2)(e), 4(2)(g), 4(8) and 4(10).} This is of course unless the export of the vessel to non-OECD-country.^{(100) BC, Article 4A.} However, this control mechanism is lacking in the HCK, and additionally, the HCK does not prohibit export and import of ships, particularly to recycling States in the South Asia. To be noted that by lacking this control mechanism, it does not mean that the requirements in the HCK do not establish a procedural control mechanism, as the ship is subject to surveys during its entire life cycle as discussed above. Therefore, restrictions such as those in Regulation 4 provide an ex ante instrument targeting the generation of hazardous materials and transboundary movement of hazardous waste on boards the ships and minimising the levels of it.^{(101) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 173.} In this regard, the IHM is a pivotal factor in enforcing the HCK, as well as ensuring compliance with the overarching objectives of the Convention during early stages of ships’ lifecycle. Furthermore, as emphasised by Engels, “the procedural chain of documentation, as established by HKC, supposedly serves as a safeguard to ensure compliance ex ante”.

Consequently, such requirements in the HCK, carry to a certain degree, equivalent requirements for minimising hazardous waste from the beginning of a ship’s life, together with the control of the ESM at the SRF.^{(102) Galley, Shipbreaking: Hazards and liabilities, p. 186.} Nonetheless, with the HKC governing the cradle to grave approach, and throughout its requirements, the HKC does mirror this approach in its ways of “minimising the generation and transboundary movements of hazardous waste.”^{(103) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 170.}

To be noted, that Article 11, BC calls for uniformity with the objectives of the HKC, as opposed to “identical conformity”^{(104) Hadjiyianni, Pouikli, The Regulatory landscape of ship recycling: Justice, Environmental principles, and the European Union as a Global leader, p. 217.}. Effectively, it means that it does not require that the agreements of the Convention contain identical provisions, however, it is compulsory that it provides an equivalent level of protection for the environment, “in terms of result”^{(105) Ibid., p. 217.}. Overall, it can be considered that the objectives of the two conventions are similar in terms environmental protection, even though the objectives in BC and HKC are streamlined differently.