Skip to main content
SpringerLink
Log in
Book cover

European Ship Recycling Regulation pp 15–41Cite as

The Hong Kong Convention

  • Chapter
  • First Online:

Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 24))

Abstract

This second chapter deals with the path to the 2009 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships. It begins with an introduction to the factual framework of ship recycling with a focus on its occurrence and effects (A.). This part is followed by a section concentrating on the history of the regulation of ship recycling in the course of which central moments of this process are highlighted (B.). The third section gives an overview of key objectives and obligations of the Hong Kong Convention (C.) which will be of some relevance at a later point of this analysis.

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   129.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD   169.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 2.

  2. 2.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8.

  3. 3.

    BIMCO, ‘Ship Recycling Convention’ (21 September 2009), at 7–9.

  4. 4.

    Kaufmann, Globalisation and Labour Rights (2007), at 8–10 and 232–234; for different opinions with regard to the term ‘race to the bottom’, see Charny, ‘Regulatory Competition and the Global Coordination of Labor Standards’, 3 J. Int’l Econ. L. 281 (2000), at 282–283; Faure, ‘Globalization and multi-level governance of environmental harm’, in Faure/van der Walt (eds.), Globalization and Private Law (2010), 383, at 390–392 and 395–396.

  5. 5.

    See European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 5–6: “The Commission […] concluded that under current conditions it would be extremely difficult to make ship recycling economically viable while at the same time respecting sound environmental standards for various reasons. […]

    - Ships are individual constructions with a long life-cycle and will have undergone many repairs and maintenance in their 20–30 years of operation. Very little of this will be properly documented. The recycling facility therefore does not know what it is taking on and what recycling work will be required. This is particularly true for passenger ships which contain a wide range of materials, including composites which are very difficult to separate and recycle. The ships currently heading for the scrap yards were built in the 1970s using materials that are no longer used today (e.g. asbestos). Consequently, the amount of manual labour required is significant and likely to remain a major cost factor, with a limited potential use for heavy machinery for these types of vessels.

    - Some materials on board can be recycled and will create revenue. Others need expensive treatment, for which costs are significant but difficult to calculate in advance.

    - The main revenue streams for scrap yards in Asia are steel which is used in building, and the second-hand market in ships’ equipment. These revenue streams basically do not exist in developed countries due to regulatory requirements”.

  6. 6.

    European Commission, ‘An EU strategy for better ship dismantling’, EU-doc. COM(2008) 767, para. 2.1: “More than 80% of the larger end-of-life ships worldwide since 2004 (in terms of tonnage) have been dismantled in India, Bangladesh and Pakistan. […] Other countries like China, Turkey and several EU Member States where capacity exists for ship dismantling in dry docks, at piers and on hard slipways only account for a small fraction of the market.”; in the future, China and Turkey are expected to expand and consolidate their respective market shares compelling India’s, Pakistan’s and Bangladesh’s market share drop down to about 75 % – Turkey benefits from high Suez Canal transit costs and concerns about piracy in this context; China, on the other hand, is forcefully increasing its recycling capacity; see also European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, at 13.

  7. 7.

    See infra Chapter “Entry-Into-Force Provision”, D.I.1.b) (pp. 69 et seq.).

  8. 8.

    The economic boom of recent decades has lead to an unexpected increase in freight rates which in turn resulted in an increase in the average age of about five years for dismantled ships (15–20 %); European Commission, ‘An EU strategy for better ship dismantling’, EU-doc. COM(2008) 767, para. 2.3; this average-age increase might render any prognosis regarding future ship dismantlement inaccurate; due to the phase-out regulation for most single-hull tankers stipulated in the MARPOL Convention (Annex I), however, there is a huge risk of an “uncontrolled expansion of sub-standard facilities in South Asia”; see ibidem, para. 5.3; according to the European Commission’s ‘Green Paper on better ship dismantling’ a ship dismantlement peak is to be expected in 2010 when – due to the present MARPOL 73/78 regulation – around 800 single-hull tankers will have to be processed; European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 2, 7.

  9. 9.

    For further information on entrepreneurial decision-making in this respect, see infra chapter “Entry-Into-Force Provision”, D.I.1.b) (p. 69).

  10. 10.

    The predominant material on both tankers and bulkers is steel which accounts for between 63 % (bulkers) and 74 % (tankers) of the vessels’ total weight; cf. European Commission DG Energy and Transport, Oil Tanker Phase Out and the Ship Scrapping Industry (2004), at 133; see also Strandenes, ‘Economics of the Markets for Ships’, in Grammenos (ed.), The Handbook of Maritime Economics and Business (2002), 186, at 196.

  11. 11.

    Stopford, Maritime Economics3 (2009), at 212.

  12. 12.

    European Commission, ‘An EU strategy for better ship dismantling’, EU-doc. COM(2008) 767, para. 2.1.

  13. 13.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8.

  14. 14.

    NGO Platform on Shipbreaking, Off the Beach! Safe and Green Ship Dismantling (2009), at 4; Misra/Mukherjee, Ship Recycling (2009), at 12; other sources indicate earnings of USD 2–3 per day; cf. Hess et al., disposal options for ships (2001), at 47–48.

  15. 15.

    Finn, ‘The Role of the Shipbroker’, Ship Recycling Conference 2005.

  16. 16.

    A court order by the Bangladeshi High Court allegedly lead to a change regarding Bangladeshi ship scrapping facilities: following a petition filed by the Bangladesh Environmental Lawyers Association (BELA), the Bangladeshi High Court ordered all shipbreaking yards without specifically required environmental clearance to be shut down; this order actually closes the operations of the whole Bangladeshi shipbreaking industry as none of its 36 facilities currently produces such a clearance; by the end of 2010, ship recycling facilities have been re-opened following a legal battle between environmentalists and ship recycling companies; cf. Reyes, ‘Busy Bangladeshi breakers face court’s safety scrutiny’, Lloyd’s List, 16 February 2010, at 12; Garfield/Boonzaier, ‘Crisis in Bangladesh’, Tradewinds, 21 May 2010, at 11; Murphy, ‘No immediate end in sight to Bangladesh scrapping impasse’, Lloyd’s List, 18 June 2010, at 1; Reyes, ‘Bangladesh Supreme Court upholds ship scrapping ban’, Lloyd’s List, 24 August 2010, at 8; Ahmed, ‘Bangladesh re-imposes breaking rules’, Fairplay, 9 September 2010, at 25; Garfield, ‘Bangladesh breakers raise hopes’, Tradewinds, 5 November 2010, at 14; Reyes, ‘Bangladesh breakers back in action’, Lloyd’s List, 9 November 2010, at 8; in the aftermath, only about 20 of over 100 ship recycling facilities have been given clearance to re-start their operations; cf. Reyes, ‘Rivals cash in as Bangladesh awaits regulations’, Lloyd’s List, 23 November 2010, at 9.

  17. 17.

    The situation of worker safety at ship recycling facilities in India seems to have improved over the last years; Rousmaniere/Raj, ‘Shipbreaking in the Developing World: Problems and Prospects’, 13(4) Int’l J. Occup. & Environ. Health 359 (2007), at 359; see also European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, at 14.

  18. 18.

    China was a major ship recycling state before countries such as Bangladesh, India and Pakistan entered the market and became the predominant market leaders; see Misra/Mukherjee, Ship Recycling (2009), at 30; however, there are some indications at the moment that China has not only regained its former market position in 2009, but also far outnumbered the other ship recycling states.

  19. 19.

    European Commission, ‘An EU strategy for better ship dismantling’, EU-doc. COM(2008) 767, para. 2.1; there actually are ‘green’ ship recycling facilities with specific environmental and safety installations which would be able to handle around 30 % of a year’s predicted worldwide scrapping demand, but as they cannot offer the same prices as their competitors in South Asia they find it difficult to make ends meet, see European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 3, 7; see also Andersen, ‘Worker safety in the shipbreaking industries’ (2001), at 15.

  20. 20.

    For a different focus in this regard, see Milieu/COWI, Study in relation to options for new initiatives regarding dismantling of ships (2009), Appendix 2, at 8: “The key health, safety and environmental concern within the ship recycling yards are focused around:

    - Exposure of hazardous materials to environment and people (workers and residents) during recycling Operations

    - Safe disposal of the hazardous materials

    - Accidents and incidents primarily due to falling heavy objects, falls from heights, explosions and fire”.

  21. 21.

    European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, para. 4.3.

  22. 22.

    European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, at 14.

  23. 23.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8; European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, at 14–15; for a clearly arranged illustration of dismantling activities and their consequences on the environment, see Milieu/COWI, Study in relation to options for new initiatives regarding dismantling of ships (2009), Appendix 2, at 10.

  24. 24.

    To clarify the term ‘hazardous materials’ with regard to ship dismantling, there have been a number of studies by governmental and non-governmental as well as international institutions; see, e.g., Basel Convention secretariat, ‘Technical guidelines for the environmentally sound management of the full and partial dismantling of ships’, UN-Doc. UNEP/CHW.6/23, Appendix B; IMO Assembly resolution, ‘IMO Guidelines on Ship Recycling’ (5 December 2003), Appendix 2 to IMO-doc. A 23/Res.962; ICS/ISF, ‘Industry Code of Practice on Ship Recycling’, Annex 1; European Commission DG Energy and Transport, Oil Tanker Phase Out and the Ship Scrapping Industry (2004), at 135; eventually, see also Appendix 1 to the Hong Kong Convention.

  25. 25.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 2; cf. also Milieu/COWI, Study in relation to options for new initiatives regarding dismantling of ships (2009), Appendix 2, at 9; see also Hess et al., disposal options for ships (2001), at 46–47.

  26. 26.

    European Commission DG Energy and Transport, Oil Tanker Phase Out and the Ship Scrapping Industry (2004), at 135.

  27. 27.

    Ibidem, at 137.

  28. 28.

    A ‘very-large crude carrier’ (VLCC) is a formal term used to describe an oil tanker with a size of 160,000–319,999 dead weight tons (dwt), i.e. the second-largest class of ‘supertankers’ according to the average freight rate assessment (AFRS) scale.

  29. 29.

    Lead: 0,4 kg; cadmium: 120 kg; batteries: 232 kg; antifouling: 24000 kg, with an estimated TBT content of 1200 kg; CFC-gases: 900 kg; asbestos: 8–9000 kg; polyvinyl chloride (PVC): 10000 kg; polychlorinated biphenyls (PCB): 24 kg; Hg: 100 kg; heavy fuel oil: 333 m3; hydraulic oil: 18 m3; lubrication oil: 20 m3; oil sludge: 1820 m3.

  30. 30.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 2.

  31. 31.

    Bailey, ‘Reducing the decent work deficit: The cost of quality ship breaking practices’ (speech delivered at the 2nd Global Ship Recycling Summit, 25 June 2001), at 1.

  32. 32.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8; for a clearly arranged illustration of dismantling activities and their respective adverse consequences on workers’ health, see Milieu/COWI, Study in relation to options for new initiatives regarding dismantling of ships (2009), Appendix 2, at 10; see also EMSA, ‘Study on the Certification of Ship Recycling Facilities’, at 72; European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, at 15–16, citing a medical report to the Indian Supreme Court which recorded that 16 % of asbestos-handling workers in Alang were at serious risk of mesothelioma, i.e. a form of lung cancer, caused by asbestosis; Hess et al., disposal options for ships (2001), at 48.

  33. 33.

    According to Greenpeace and FIDH, labourers in shipbreaking yards usually are not registered as they are seasonally employed, authorities are not interested in investigations due to obvious reasons and trade unions or similar kinds of representation are not existent; Greenpeace/FIDH, End of Life Ships (2005), at 9, 31.

  34. 34.

    Ibidem, at 15; the rate of lethal accidents is supposedly six times higher than in the Indian mining industry, see European Commission, ‘Impact Assessment for an EU strategy for better ship dismantling’, EU-doc. SEC(2008) 2846, at 15.

  35. 35.

    According to Regulation 1.4 of the Draft International Convention for the Safe and Environmentally Sound Recycling of Ships whose wording has been modified at the Conference, “‘Gas-free-for-hot-works condition’ means a safe, non-explosive condition for work requiring the use of electric arc or gas welding equipment, cutting burning equipment or other forms of naked flame, as well as heating or spark generating tools”.

  36. 36.

    Andersen, ‘Worker safety in the shipbreaking industries’ (2001), at 25.

  37. 37.

    Greenpeace/FIDH, End of Life Ships (2005), at 11.

  38. 38.

    UN-Doc. A/HRC/5/NGO/21, at 2.

  39. 39.

    This perspective is ‘narrow’ as it ignores environmental and social sustainability.

  40. 40.

    This is probably also the reason why South Asian governments have so far been quite reluctant to enforce changes regarding regulation or enforcement of labour standards; see European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269; Greenpeace/FIDH, End of Life Ships (2005), at 9; however, this attitude might actually be in flux (see supra chapter “The Hong Kong Convention”, note 16); on the other hand, even NGOs like Greenpeace and FIDH do not suggest to close the yards and return the shipbreaking activity to each ship’s country of origin in order not to deprive these South Asian regions of this important source of income; ibidem, at 6; see also Andersen, ‘Worker safety in the shipbreaking industries’ (2001), at 18.

  41. 41.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 2; Parkinson, ‘Ship Recycling: Current Trends, Future Developments and Mandatory Provisions’, Ship Recycling Conference 2005.

  42. 42.

    See Garfield, ‘Scrap ban to continue for Bangladesh shipbreakers’, Tradewinds, 27 August 2010, at 22 (indicating that an estimated 30.000 jobs are at stake in the on-going legal debate).

  43. 43.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8; Greenpeace/FIDH, End of Life Ships (2005), at 15; see also Rousmaniere/Raj, ‘Shipbreaking in the Developing World: Problems and Prospects’, 13(4) Int’l J. Occup. & Environ. Health 359 (2007), at 360–361.

  44. 44.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8; Rousmaniere/Raj, ‘Shipbreaking in the Developing World: Problems and Prospects’, 13(4) Int’l J. Occup. & Environ. Health 359 (2007), at 360.

  45. 45.

    European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8; in this context, see also the opinion of the European Economic and Social Committee on the European Commission’s ‘An EU strategy for better ship dismantling’, EU-doc. C 277/67, para. 4.6.

  46. 46.

    Greenpeace/FIDH, End of Life Ships (2005), at 5, 31.

  47. 47.

    In this context, see European Commission, ‘Green Paper on better ship dismantling’, EU-doc. COM(2007) 269, at 8: “[…] the governments of the South Asian states seem reluctant to enforce a change in practices as they regard ship dismantling as an economically important activity which should be impeded as little as possible.”; cf. also Rousmaniere/Raj, ‘Shipbreaking in the Developing World: Problems and Prospects’, 13(4) Int’l J. Occup. & Environ. Health 359 (2007), at 360–361; for further social implications in this context, see UK DEFRA, UK Ship Recycling Strategy (2007), para. 114; for a worker’s perspective, see the foreword to Misra/Mukherjee, Ship Recycling (2009): “The Ship Recycling industry beckoned us for work, giving us opportunities and a livelihood. Most of us are from remote viallages in the eastern part of India. I have spent eighteen years in breaking ships in Alang and know no other profession or trade which would gainfully utilize me. These ships fascinate us. Each one has a story to tell and echoes the sentiments of thousands, whoever served on her or dealt with her. To us each one is a story book. While we all lived our lives, a few of us did not stay along or have perished. We call that destiny. Since the visuals of pain and tragedy on account of poverty and deprivation outweighed these accidents, we pushed ourselves all along […]”.

  48. 48.

    See supra chapter “Introduction”, note 1.

  49. 49.

    For further references, see, e.g., Greenpeace International et al., ‘The need to develop a new legally-binding instrument that will build and improve upon existing environmental justice legislation’ (1 February 2006), IMO-doc. MEPC 54/3/5/Rev.1.

  50. 50.

    See 1st Global Ship Scrapping Summit, Official Press Release (24 June 1999), <http://www.ban.org/ban_news/1st.html> accessed 31 January 2012.

  51. 51.

    See infra chapter “The Hong Kong Convention”, note 55.

  52. 52.

    See 2nd Global Ship Recycling Summit, Objectives (25 June 2001), <http://www.mareforum.com/shiprecycling_objectives.htm> accessed 31 January 2012.

  53. 53.

    See 2nd Global Ship Recycling Summit, Conclusions of the Summit (25 June 2001), <http://www.mareforum.com/shiprecycling_conclusions.htm> accessed 31 January 2012.

  54. 54.

    See, e.g., the ‘inventory of potentially hazardous materials on board’ as suggested by the Industry Working Party on Ship Recycling; see Parkinson, ‘The Shipping Industry View and Practical Solutions’ (speech delivered at the 2nd Global Ship Recycling Summit, 25 June 2001), at 2–3; in this context, see also the suggested ‘register of ships that are and will be recycled’, Wijnolst, ‘Towards a Ship Recycling Industry Charter’ (speech delivered at the 2nd Global Ship Recycling Summit, 25 June 2001), at 6.

  55. 55.

    However, it has to be acknowledged that ‘ship scrapping’ appeared on the IMO agenda as early as 1999, following a comment by Norway at MEPC 42 in 1998; see the report of the MEPC on its 42nd session (16 November 1998), IMO-doc. MEPC 42/22, paras. 19.22–19.23; see also the formal proposal to include ship scrapping on the work programme of MEPC by Norway at MEPC 43 (12 February 1999), IMO-doc. MEPC 43/18/1.

  56. 56.

    IMO Assembly resolution, ‘IMO Guidelines on Ship Recycling’ (5 December 2003), Annex to IMO-doc. A 23/Res.962.

  57. 57.

    ILO, Safety and Health in Shipbreaking: Guidelines for Asian countries and Turkey; see also the Final Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its third session (31 October 2008), UN-doc. ILO/IMO/BC WG 3/6, para. 26.

  58. 58.

    IMO Secretariat, ‘Terms of Reference for the Joint ILO/IMO/Basel Convention Working Group’ (21 January 2005), UN-doc. ILO/IMO/BC WG 1/6/1.

  59. 59.

    Veldhoven, ‘Why are we here? The Political and Legal Background’, Ship Recycling Conference 2005.

  60. 60.

    European Commission, ‘Accompanying document to […] An Integrated Maritime Policy for the European Union’, EU-doc. SEC(2007) 1278.

  61. 61.

    European Commission, ‘An EU strategy for better ship dismantling’, EU-doc. COM(2008) 767.

  62. 62.

    Annex 6 to the report of the MEPC on its 58th session (16 October 2008), IMO-doc. MEPC 58/23.

  63. 63.

    ISO press release, <http://www.iso.org/iso/pressrelease.htm?refid=Ref1105> accessed 31 January 2012.

  64. 64.

    See, e.g., Articles 211, 217, 218, 220, 223 UNCLOS.

  65. 65.

    See, e.g., Wolfrum, ‘IMO Interface with the Law of the Sea Convention’, in Nordquist/Moore (eds.), Current Maritime Issues and the International Maritime Organization (1999), 223, at 224–225; Harrison, Making the law of the sea (2011), at 171–179; for a more sceptical perspective, see Tan, Vessel-Source Marine Pollution (2005), at 103: “It would be more accurate to explain the current legislative intensity as being propelled by the interests of a minority of influential states wishing to use IMO as a platform to advance coastal state concerns and to ‘internationalise’ what could arguably be called localised problems”.

  66. 66.

    Convention on the International Maritime Organization (adopted 6 March 1948); after the convention had entered into force, the organisation, then known as the Intergovernmental Maritime Consultative Organization, became effective from 1958.

  67. 67.

    Article 1(a) of the Convention on the International Maritime Organization.

  68. 68.

    There are, of course, also IMO conventions and guidelines relating to the ‘efficiency of navigation’ aspect such as the Convention on the Facilitation of Maritime Traffic (1965); however, both in numbers and with regard to the self-perception of the IMO, the fields of maritime safety and the prevention of marine pollution prevail; see, e.g., Harrison, Making the law of the sea (2011), at 159.

  69. 69.

    See the following IMO conventions in the field of maritime safety: 1960/1974 International Convention on Safety of Life at Sea (SOLAS); the 1978, 1988 and 2002 SOLAS Protocols; the 1966 International Convention on Load Lines and its 1988 Protocol; the 1969 International Convention on Tonnage Measurement of Ships; the 1972 Convention on the International Regulations for Preventing Collisions at Sea; the 1972 Convention for Safe Containers; 1976 the International Convention on the International Maritime Satellite Organization; the 1977 Torremolinos Convention for the Safety of Fishing Vessels; the 1978 Convention on Standards of Training, Certification, and Watch-keeping for Seafarers; and the 1979 International Convention on Maritime Search and Rescue.

  70. 70.

    Note the following IMO-related conventions aiming at the prevention of marine pollution and/or the minimisation of its effects: the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, for which the IMO became the depository agency in 1959; its amendment (1962); the 1969 Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties; the 1969 Convention on Civil Liability for Oil Pollution Damage; the 1971 Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage; the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; the 1973 International Convention for the Prevention of Pollution from Ships; its 1973 Protocol as well as its 1984 and 1985 Amendments; the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation; the 2001 International Convention on the Control of Harmful Anti-Fouling Systems; and, finally, the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments.

  71. 71.

    Blanco-Bazán, ‘The Environmental UNCLOS and the Work of IMO in the Field of Prevention of Pollution from Vessels’, in Kirchner (ed.), International Marine Environmental Law (2003), 31, at 32; by taking into account land-based sources of marine pollution as well, IMO’s competencies are not limited to the oceans but also include coastal areas resulting in a range of activities similar to those of the Intergovernmental Oceanographic Commission; for further information on the latter, see Ehlers, ‘The Intergovernmental Oceanographic Commission: An International Organisation for the Promotion of Marine Research’, 15 Int’l J. Marine & Coastal L. 533–554 (2000).

  72. 72.

    Figures taken from <http://www.imo.org> accessed 31 January 2012.

  73. 73.

    See, e.g., IMO Assembly resolution, ‘Establishment of a Marine Environment Protection Committee’ (23 November 1973), IMO-doc. A.297(VIII); another important committee is the Legal Committee which was initially established to deal with legal questions arising from the Torrey Canyon accident in 1967, but which was granted permanent status in the aftermath.

  74. 74.

    Blanco-Bazán, ‘The Environmental UNCLOS and the Work of IMO in the Field of Prevention of Pollution from Vessels’, in Kirchner (ed.), International Marine Environmental Law (2003), 31, at 33.

  75. 75.

    1969 International Convention on Civil Liability for Oil Pollution Damage and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage.

  76. 76.

    1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.

  77. 77.

    Furthermore, the organisation provides technical assistance to a great number of member states in order to help them facilitate, ratify and implement relevant IMO conventions and regulations.

  78. 78.

    IMO, ‘Conventions’, <http://www.imo.org/Conventions/mainframe.asp?topic_id=148> accessed 31 January 2012.

  79. 79.

    See infra chapter “Entry-Into-Force Provision”, C.II (pp. 57 et seq.).

  80. 80.

    According to the IMO publication ‘Status of Multilateral Conventions and Instruments in respect of which the International Maritime Organization or its Secretary-General Performs Depositary or other Functions’ (30 September 2011), the following IMO-related conventions, amendments or protocols have not (yet) entered into force: the 1993 Amendments to the 1972 International Convention for Safe Containers and Annexes I and II (CSC 1993); the 1995 International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F 1995) (which will enter into force on 29 September 2012); the 1993 Torremolinos Protocol to the 1977 Torremolinos International Convention for the Safety of Fishing Vessels (SFV PROT 1993); the 1994 Amendments to the Operating Agreement on the 1976 International Maritime Satellite Organisation, as amended (INMARSAT OA 1994); the 2006 and 2008 Amendments to the Convention on the International Mobile Satellite Organization (IMSO C 2006, 2008); the 1978 Amendments to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LC DISPUTES 1978); the 1990 and 2002 Protocols to the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL PROT 1990, 2002); the 1996 International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS 1996); the 2010 Protocol to the 1996 International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS PROT 2010); the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM 2004); the 2007 Nairobi International Convention on the Removal of Wrecks (NAIROBI WRC 2007); and the 2009 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (HONG KONG SRC 2009).

  81. 81.

    IMO, ‘Conventions’, <http://www.imo.org/Conventions/mainframe.asp?topic_id=148> accessed 31 January 2012.

  82. 82.

    For further information on flag state control, see Witt, Obligations and control of flag states (2008); Lemke, Erfüllungsdefizite des Flaggenstaats (2011); Anderson, ‘The Roles of Flag States, Port States, Coastal States and International Organisations in the Enforcement of International Rules and Standards Governing the Safety of Navigation and the Prevention of Pollution from Ships under the UN Convention on the Law of the Sea and Other International Agreements’, 2 Sing. J. Int’l & Comp. L. 557–578 (1998); Behnam, ‘Ending flag state control?’, in Kirchner (ed.), International Marine Environmental Law (2003), at 123–135; see also infra chapter “European Ship Recycling Regulation”, A.I.2 (pp. 104 et seq.).

  83. 83.

    For further information on port state control, see Kasoulides, Port State Control and Jurisdiction (1993); Özçayir, Port State Control2 (2004); Johnson, Coastal State Regulation of International Shipping (2004); Schiano di Pepe, ‘Port state control as an instrument to ensure compliance with international marine environmental obligations’, in Kirchner (ed.), International Marine Environmental Law (2003), pp. 137–156; in principle, port state control, as opposed to flag state control, is a primarily corrective concept which aims at correcting non-compliance of flag states; cf. Blanco-Bazán, ‘The Environmental UNCLOS and the Work of IMO in the Field of Prevention of Pollution from Vessels’, in Kirchner (ed.), International Marine Environmental Law (2003), 31, 39–40; see also infra chapter “European Ship Recycling Regulation”, A.I.2 (pp. 104 et seq.).

  84. 84.

    ILO: Safety and Health in Shipbreaking: Guidelines for Asian countries and Turkey, were adopted by the Interregional Tripartite Meeting of Experts on Safety and Health in Shipbreaking for Selected Asian countries and Turkey (Bangkok, 7 to 14 October 2003) and approved by the Governing Body of the ILO at its 289th session; Code of Practice on occupational safety and health in the iron and steel industry was adopted by a Meeting of Experts on Safety and Health in the Iron and Steel Industry (Geneva, 1 to 9 February 2005) and approved by the Governing Body of the ILO at its 292nd session; IMO: the Guidelines on Ship Recycling were adopted on 5 December 2003 at the twenty-third session of the Assembly by Resolution A.962(23), IMO-doc. A 23/Res.962, and amended by Assembly Resolution A.980(24) on 1 December 2005, IMO-doc. A 24/Res.980; Basel Convention Secretariat: the Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships were adopted at the sixth meeting of the Conference of Parties to the Basel Convention by Decision VI/24 (13 December 2002), UN-doc. UNEP/CHW.6/40, at 138.

  85. 85.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its first session (18 February 2005), IMO-doc. ILO/IMO/BC WG 1/8, at 1.4.

  86. 86.

    Report of the MEPC on its 51st session (22 April 2004), IMO-doc. MEPC 51/22, at 3.18.; Decision VII/25: ‘Joint Working Group of the International Labour Organization, the International Maritime Organization and the Basel Convention on Ship Scrapping’ (29 October 2004), UN-doc. UNEP/CHW.7/33, at 60–62; ILO GB, report of the Committee on Sectoral and Technical Meetings and Related Issues, ILO-doc. GB.291/12(Rev.), para. 46.

  87. 87.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its first session, IMO-doc. ILO/IMO/BC WG 1/8, para. 1.5; cf. Wessel/Wouters, ‘The Phenomenon of Multilevel Regulation: Interactions between Global, EU and National Regulatory Spheres’, in Follesdal/Wessel/Wouters (eds.), Multilevel Regulation and the EU: the Interplay between Global, European and National Legal Processes (2008), 9, at 29: “The tendency towards functional specialisation because of the technical expertise required in many areas may be a reason for the proliferation of such [non-conventional international] bodies and for their interaction with other international organisations and agencies”.

  88. 88.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its first session, IMO-doc. ILO/IMO/BC WG 1/8, para. 1.6.

  89. 89.

    Ibidem, para. 1.6; for an illustrated collection of possible areas of duplication of work and overlapping of roles, responsibilities and competencies, see the report’s Annex 3.

  90. 90.

    Harrison, Making the law of the sea (2011), at 240 and 265.

  91. 91.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its first session, IMO-doc. ILO/IMO/BC WG 1/8, para. 1.7.

  92. 92.

    IMO Secretariat, ‘Work programme of the Marine Environment Protection Committee on the issue of ship recycling’ (9 September 2004), UN-doc. ILO/IMO/BC WG 1/2, para. 5.

  93. 93.

    Ibidem, para. 7.

  94. 94.

    Ibidem, paras. 8–10.

  95. 95.

    IMO Secretariat, ‘Guidelines for the development of the ship recycling plan’ (9 September 2004), UN-doc. ILO/IMO/BC WG 1/3, at 2–5.

  96. 96.

    IMO Secretariat, ‘Work programme of the Marine Environment Protection Committee on the issue of ship recycling’ (9 September 2004), UN-doc. ILO/IMO/BC WG 1/2, paras. 11–14.

  97. 97.

    Ibidem, para. 19.

  98. 98.

    Basel Convention Secretariat, ‘Work programme of the Conference of the Parties to the Basel Convention on the issue of ship scrapping’ (10 January 2005), UN-doc. ILO/IMO/BC WG 1/2/1, at 7.

  99. 99.

    Ibidem, at 5.

  100. 100.

    Ibidem, at 8–9.

  101. 101.

    Subsequently, it was noted that the abandonment of a ship within the internal waters of a state is neither governed by the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter nor by the 2007 Nairobi International Convention on the Removal of Wrecks; see IMO Secretariat, ‘Abandonment of ships’ (17 January 2005), UN-doc. ILO/IMO/BC WG 1/2/2, at 3–4 and 9–10.

  102. 102.

    United Kingdom, ‘Environmentally Sound Management’ (31 October 2005), UN-doc. ILO/IMO/BC WG 2/8; see also the report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, paras. 8.4–8.8.

  103. 103.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, paras. 8.9–8.13; see also infra chapter “The Hong Kong Convention”, note 113.

  104. 104.

    IMO Secretariat, ‘Work programme of the Marine Environment Protection Committee on the issue of ship recycling: Proposal for a new legally-binding instrument on recycling of ships’ (8 December 2005), UN-doc. ILO/IMO/BC WG 2/INF.1.

  105. 105.

    IMO Assembly resolution, ‘New Legally Binding Instrument on Ship Recycling’ (1 December 2005), IMO-doc. A 24/Res.981.

  106. 106.

    IMO Secretariat, ‘Work programme of the Marine Environment Protection Committee on the issue of ship recycling: Proposal for a new legally-binding instrument on recycling of ships’ (8 December 2005), UN-doc. ILO/IMO/BC WG 2/INF.1, para. 4.

  107. 107.

    Basel Convention Secretariat, ‘Comments, Recommended Solutions and Views Received Pursuant to Decision OEWG-IV/5 adopted by the fourth session of the Open-Ended Working Group of the Basel Convention’ (18 November 2005), UN-doc. ILO/IMO/BC WG 2/8/3.

  108. 108.

    Basel Convention Secretariat, ‘Information Received in Response to the Questionnaire Issued Pursuant to Decision OEWG-IV/6 adopted by the fourth session of the Open-Ended Working Group of the Basel Convention’ (18 November 2005), UN-doc. ILO/IMO/BC WG 2/8/1; see also the report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, paras. 8.1–8.3.

  109. 109.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, para. 4.13; see also Greenpeace International et al., ‘The need to develop a new legally-binding instrument that will build and improve upon existing environmental justice legislation’ (1 February 2006), IMO-doc. MEPC 54/3/5/Rev.1.

  110. 110.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, para. 4.15.

  111. 111.

    These eleven topics are: Green Passport (paras. 25–28), Ship Recycling Plan (paras. 29–35), Hazardous Materials’ Inventory (paras. 36–50), ESM (paras. 51–55), Best Practice for Ship Scrapping Facilities (paras. 56–70), Selection of Recycling Facilities (paras. 71–77), Informed Consent (paras. 78–79), Shipowner Responsibilities (paras. 80–84), Flag State Responsibilities (paras. 85–86), Recycling State Responsibilities (paras. 87–93); see Informal Working Group, ‘Findings of the comparison of the three sets of guidelines undertaken by an informal intersessional working group’, UN-doc. ILO/IMO/BC WG 2/6.

  112. 112.

    Ibidem, paras. 42, 86, 89, 90, 106, 108; see also the report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, paras. 6.3–6.4.

  113. 113.

    Central to the concept of PIC is the idea that transboundary movements of waste may only take place after prior written notification of the ‘state of export’ to the ‘state of import’; see Informal Working Group, ‘Findings of the comparison of the three sets of guidelines undertaken by an informal intersessional working group’, UN-doc. ILO/IMO/BC WG 2/6, at paras. 78–79, 84, 114; report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, paras. 6.5–6.6 and 8.9–8.13; see also infra chapter “European Ship Recycling Regulation”, A.III.2 (pp. 149–150).

  114. 114.

    Report of the Joint ILO/IMO/BC Working Group on Ship Scrapping on its second session (14 December 2005), UN-doc. ILO/IMO/BC WG 2/11, paras. 8.18–8.22.

  115. 115.

    Ibidem, paras. 7.2–7.3.

  116. 116.

    Final Act of the International Conference on the Safe and Environmentally Sound Recycling of Ships (19 May 2009), IMO-doc. SR/CONF/46.

  117. 117.

    IMO, Council, 97th session (6–10 November 2006), following a request by MEPC, 55th session (9–13 October 2006); see the report of the MEPC on its 55th session (16 October 2006), IMO-doc. MEPC 55/23, at 19.11.

  118. 118.

    IMO Secretariat, ‘Proposed International Conference on Recycling of Ships in the biennium 2008–2009’ (16 August 2006), IMO-doc. MEPC 55/19/4.

  119. 119.

    See, e.g., ‘Ahead of the curve’, Fairplay, 6 August 2009, at 26–27.

  120. 120.

    The Conference elected Mr. Xu Zuyuan (China) as President and Mr. Binyah Kesselly (Liberia), Ms Liliana Fernández Puentes (Panama) and Captain Suat Hayri Aka (Turkey) as its Vice-Presidents. It established a Committee of the Whole chaired by Mr. Andreas Chrysostomou (Cyprus) with the mandate to ultimately consider and deliberate on the draft Convention text. Subsequently, it established a Drafting Committee headed by Mr. Charles Darr (USA) in order to facilitate the final drafting of the Convention text. It also established a Credentials Committee, headed by Mr. Md. Masud Elahi (Bangladesh), in order to have the representatives’ credentials approved. Hence, a large number of representatives from important stakeholders in the context of ship recycling was institutionally integrated into the process of adopting the convention.

  121. 121.

    Submission by Australia to the Diplomatic Conference, ‘Non-Party recycling facilities’, IMO-doc. SR/CONF/9.

  122. 122.

    Submission by Greenpeace International and FOEI to the Diplomatic Conference, ‘Ensuring sustainable green and safe ship dismantling – concerning beaching and the establishment of a mandatory fund’, IMO-doc. SR/CONF/14; submission by India to the Diplomatic Conference, ‘Environmental comparison of the beaching method with other methods of recycling of ships’, IMO-doc. SR/CONF/36.

  123. 123.

    Submission by Marshall Islands, Panama, Ukraine, ICS, BIMCO, IACS, OCIMF, INTERTANKO, INTERCARGO and IPTA to the Diplomatic Conference, ‘Proposed amendment to draft regulation 5 – Inventory of Hazardous Materials’, IMO-doc. SR/CONF/23; submission by Marshall Islands and IACS to the Diplomatic Conference, ‘Proposed amendments to appendix 1 – Controls of Hazardous Materials’, IMO-doc. SR/CONF/25.

  124. 124.

    Submission by Greenpeace International and FOEI to the Diplomatic Conference, ‘Ensuring sustainable green and safe ship dismantling – concerning the entry into force provisions’, IMO-doc. SR/CONF/13; submission by Denmark to the Diplomatic Conference, ‘Entry-into-force provision’, IMO-doc. SR/CONF/30; submission by Cyprus to the Diplomatic Conference, ‘Entry into force provision’, IMO-doc. SR/CONF/39; for a discussion of this aspect prior to the Diplomatic Conference, see Corbett, ‘Recycling gears up’, Tradewinds, 8 May 2009, at 58: “A major bone of contention is just how the convention will come into force”.

  125. 125.

    The text of the Hong Kong Convention is contained in the annex to this study.

  126. 126.

    See Conference Resolution 4: ‘Future Work by the Organization Pertaining to the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009’, IMO-doc. SR/CONF/46, at 10; however, concerns have been raised that the complexity of these guidelines might negatively affect ratification of the Hong Kong Convention; McCarthy, ‘Guidelines on ship recycling branded as too complex’, Lloyd’s List, 1 October 2010, at 2.

  127. 127.

    The “cradle to grave”-approach in international environmental regulation has been introduced with specific regard to such toxic products which impose huge threats on the environment; it means that the whole lifecycle of these products or processes has to be regulated; cf. Kiss/Shelton, International Environmental Law2 (2000), at 66; Wolfrum/Matz, Conflicts in International Environmental Law (2003), at 118.

  128. 128.

    See Regulations 1.6 and 1.7 HKC.

  129. 129.

    Article 2.2 HKC.

  130. 130.

    See Regulation 11.11 HKC.

  131. 131.

    Article 2.2 HKC.

  132. 132.

    Article 2.3 HKC.

  133. 133.

    Similarly to many other obligations stipulated, questions of compliance and enforcement have not yet been addressed, but have mainly been left open for discussion once the Hong Kong Convention will have entered into force. Nonetheless, by stipulating that ship recycling shall not start prior to the submission of a report by the ship recycling facility to its ‘Competent Authority’ indicating the planned start of the recycling procedures and including a copy of the ‘International Ready for Recycling Certificate’, Regulation 24.3 aims at institutionally securing compliance with its provisions. Due to the fact that no authority is however entitled to control the point in time the recycling operations have started and due to Regulation 24.3 focussing on the submission of the report to the ‘Competent Authority’ instead of requiring an official approval, the effectiveness of the provision may be somewhat questionable.

  134. 134.

    Increased participation could provide a first step to tackle the problem of the international environmental process being perceived as illegimate and ‘insufficiently democratic’; see Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, 93 A.J.I.L. 596 (1999), at 596, 606–610, 617–623; Hahn/Richards, ‘The Internationalization of Environmental Regulation’, 30 Harv. Int’l L. J. 421 (1989), at 437.

  135. 135.

    McCarthy, ‘Ship recycling looks to clean up its reputation’, Lloyd’s List, 1 July 2010, at 4; ‘Ship recycling talks fall short of pledge’, Tradewinds, 27 May 2010, at 15.

  136. 136.

    Oftedal, ‘The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009’, Ship Scrapping & Recycling (Lloyd’s Maritime Academy seminar, 2009), at 11.

  137. 137.

    As a point of fact, the entry-into-force provision provided for the severest discussions and the most disagreement among the delegates at the conference. Whereas observers had predicted the Hong Kong Convention to eventually enter into force by 2015 prior to the final deliberations in Hong Kong, their predictions became more and more sceptical as the definite content of the entry-into-force provision emerged.

Author information

Authors and Affiliations

  1. Hamburg, Germany

    Urs Daniel Engels

Authors
  1. Urs Daniel Engels
    View author publications

    You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

© 2013 Springer-Verlag Berlin Heidelberg

About this chapter

Cite this chapter

Engels, U.D. (2013). The Hong Kong Convention. In: European Ship Recycling Regulation. Hamburg Studies on Maritime Affairs, vol 24. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35597-4_2

Download citation

Publish with us

Policies and ethics

Search

Navigation