3.3. Does the Hong Kong Convention establish equivalent level of control as required by the Basel Convention?
The above comparison indicated that the HKC is not identical to the BC, and that the principle of equivalence only requires that the HCK achieves the same consistency and level of protection as the BC.(1) See, on the differences between suggested criteria, ‘Compilation of the completed tables and submissions received pursuant to decision OEWG-VII/12’, UNEP/CHW.10/INF/18 (2011) 116. Furthermore, the equivalent principle can be interpreted in two ways, namely by using a literal interpretation of the ESM principle in Article 11, BC, or by analysing whether the HCK provides an equivalent level of control and enforcement as established by the BC, in their entirety.
The level of protection as required by the ESM principle can be compared in the context of ship recycling based on the following elements: beaching, pre-cleaning and downstream waste management. The analysis showed that neither the BC, or the HKC prohibit, or allow the conventional beaching method. However, it can be argued that the HKC allows beaching, provided that structures are built for it, but this is a method which is entirely different from the conventional beaching method as defined above, contrary to the BC. In terms of pre-cleaning, the HKC govern stricter requirements, however if these strict HKC requirements would be applied to the BC, the hazardous wastes, would simply become waste, therefore falling outside of the scope of the BC. Lastly, regarding the downstream management, the HKC requires that hazardous materials are contained to the most possible extent, a requirement not as extensive as the one in the BC. Based on these findings, it could be argued that despite some differences between the two conventions, the HKC provides an equivalent level of protection as required by the ESM principle in the BC. Based on the literal interpretation of Article 11, BC, the HCK provides “no less environmental sound” than those provided by the BC.
Nevertheless, the HKC must also establish an equivalent level of control and enforcement, in its entirety.(2)Decision IX/30 (UNEP/CHW9/39 27th June 2008), p. 1. Both conventions’ overarching objectives are to protect the human health and the environment from the harm caused by hazardous materials extracted from the ship. The BC aims to achieve this objective by restricting transboundary movement of hazardous materials. On the contrary, the HCK with its “cradle to grave approach” aims to solve the problem of hazardous waste at an earlier stage of the vessel‘s life cycle by ensuring safe and sound ship recycling through its requirements of IHM, SRF and SRFP. Hence, the HCK “fits for its purpose”, meaning that the HCK also provides an equivalent level of control and enforcement, in its entirety.
As noted in the scope of the thesis, the analysis did not include international environmental principles such as environmental injustice, polluters pay principle etc. Should these principles have been included, the thesis might have had a different result.
Based on the above analysis, it can be concluded that the HCK establishes an equivalent level of control and enforcement as required by Article 11, BC.