4. Conclusion
This thesis aimed to determine the interplay between the two conventions which regulate ship recycling at international level, the Basel Convention and the Hong Kong Convention. As a general waste regime, the BC does not address the ship recycling concerns pertaining to safety of the environment and human health, because it does not impose any requirements on shipowners and SRFs. The BC is not designed for ship recycling, and therefore not suitable for this purpose. On the other hand, the tailormade HCK does impose requirements on all these actors. Hence, with its cradle to grave approach the HCK requires that the hazardous materials are managed in a safe and environmentally sound manner through the requirements of IHM, SRP and SRPF.
Nevertheless, both conventions regulate the same subject of matter, which potentially could lead to a conflict between the conventions and some of their provisions. There are various ways of analysing the interplay between the HCK and the BC. In this thesis, the interplay between the two conventions, has been analysed by interpreting both conventions in the light of the VCLT and the lex specialis, as well as the thesis has been analysing whether the HCK establishes an equivalent level of control and enforcement as required by the Article 11, BC. Based on the above interpretation, as per the international principles in the VCLT, and lex specialis the analysis indicated several potential namely:
The BC prevails, given that the BC is considered a “relevant and applicable agreement” based on the interpretation of Article 15, HCK.
The BC cedes its competence to the HCK, provided that the HCK provides an equivalent level of control and enforcement as required by Article 11, BC.
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.
Different rules apply to the parties, depending on their membership to the two conventions pursuant to Article 30(4).
The HCK prevails based on the lex specialis principle, provided that the HCK is considered as lex specialis.
All things considered, the analysis indicates that international principles, such as those in the VCLT, still do not provide enough clarity on the interplay between the HKC and the BC. Nonetheless, these principles can provide certain solutions and guidance for solving the interplay between the two conventions.
As for the question whether the HCK establish equivalent level of control and enforcement as required by Article 11, BC, the analysis suggested the following results. The HCK provides the same level of protection as required by the environmental sound management principle in relation to beaching, pre-cleaning and downstream waste management. Hence, based on literal interpretation of Article 11, the HCK establish an equivalent level of control and enforcement, because the HCK provides “no less environmental sound” requirements than those provided by the BC. Nonetheless, the HKC must also establish an equivalent level of control and enforcement, in its entirety. Both the BC and the HCK overarching objectives are to ensure the protection of the human health and the environment form the harm caused by the hazardous materials extracted from the ship.
However, the HKC does address the matter of hazardous waste at an earlier stage of the vessel’s life cycle by ensuring a safe and sound ship recycling process through the IHM, SRF and SRFP. Therefore, in the light of these findings. It can be concluded that the HCK establishes an equivalent level of control and enforcement, in its entirety.
Notwithstanding, the above analysis indicated different solutions for determining the interplay between the two conventions. In conclusion, while considering the international principles in VCLT and lex specialis, along with the principle of equivalence in Article 11, BC, the consistency between the two conventions is nowhere near to being settled.