It all started with the one of the initial ship recycling regulations, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (hereafter The Basel Convention), which was adopted in March 1989 and entered into force in May 1992. To date, it has been ratified by 187 countries (i.e., most of the world with the important exception of the USA).
Ship recycling regulations #1: The Basel Convention
As one of the most important ship recycling regulations, the Basel Convention provides controls for the international movement of hazardous wastes and for their environmentally sound management mainly through consent for the shipment between the authorities of the country exporting the hazardous wastes with the authorities of the importing country, and with the involvement of the authorities of any transit State. Consent is given on formal communications (inter-ministerial) confirming that the hazardous waste in question will be treated in an environmentally sound manner in the importing country. In most countries, the implementing authorities of ship recycling regulations like the Basel Convention are Ministries of Environment, for example, in India, the Ministry of Environment, Forests and Climate Change (MoEFCC) is the responsible authority.
It is important to realise that whereas the Basel Convention may have been most successful of all ship recycling regulations in fighting against illegal exports of hazardous wastes to countries that are unable to process and dispose of them in an environmentally sound manner, the Basel Convention, on the other hand, is unsuitable for defining minimum standards for the recycling of ships. This ship recycling regulation does not contain any requirements that are relevant to ships and to ship recycling facilities, nor does it concern itself with issues on workers' safety. The only relevant requirement of the Basel Convention to ship recycling being its generic requirement that the wastes should be managed in an environmentally sound manner. The mechanism for achieving the Convention's "prior informed consent" relies on the establishment of communications between the authorities of the exporting and importing countries, which, when applied to end-of-life ships, means in practice the authorities of the State from where the ship departed for its last voyage and the authorities of the recycling State. This is because this ship recycling regulation is not aware of the concept of flag State that is central to the United Nations Convention on the Law of the Sea and to all maritime conventions and therefore leaves no option but to consider the State from where the ship departed for its last voyage as being the exporting State. The flag State has no role in the enforcement of the Basel Convention.
Why the Basel Convention not one of the best ship recycling regulations for End-of-Life Ships?
Implementing the Basel Convention to control the movements of end-of-life ships creates a number of problems as it isn’t a holistic and ideal ship recycling regulation:
(a) it takes inordinate amount of time to arrange for the necessary communications between exporting, importing and any transit States -communications which in any case have little or no effect in improving the standards under which ships are recycled;
(b) the managers of the ship will most often have no connection with the country that is deemed to be the State of export as per this ship recycling regulation;
(c) a number of countries are unwilling to recognise that Basel Convention should regulate the recycling of end-of-life ships, thus making the communications between the managers of the ship, the State of export and the other involved States even more cumbersome;
(d) the decision to recycle a ship may not be taken, or may not be finalized, or may not be admitted until after the ship has departed from the port and is in international waters, in which case there is no exporting State to lead the inter-State communications envisaged by Basel Convention.
In practice, the above problems make the Basel Convention an impractical and unenforceable ship recycling regulation to the recycling of ships. Incidentally, the difficulty in applying the provisions of the Basel Convention to ship recycling and the circumvention of the Convention's controls by ships destined for recycling were acknowledged on the website of the Basel Convention.
Ship recycling regulations #2: Hong Kong Convention
In recognition of the difficulty to enforce the Basel Convention to the recycling of ships, in 2004, the governing body of the Basel Convention in its decision VII/26 requested the International Maritime Organization to develop a new ship recycling regulation specific to the recycling of ships. IMO agreed to develop the new convention and following concentrated work over three and a half years, it adopted in May 2009 the "Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009", also known as "the Hong Kong Convention", or the "HKC". The Convention will enter into force and be recognised as an internationally applicable ship recycling regulation 24 months after the date on which the following conditions are met:
Ship recycling regulations #3: EU Waste Shipment Regulation and EU Ship Recycling Regulation
The Basel Convention adopted in March 1994 its "Ban Amendment", banning the export of hazardous wastes from OECD to non-OECD countries. The entry into force condition of the Amendment is 90 days following ratification by at least three-quarters of the 87 countries that were Parties to the Convention at the time the Amendment of this ship recycling regulation was adopted. The 66th ratification was deposited in September 2019 by Croatia and consequently, the entry into force of the Ban Amendment is the 5th December 2019, twenty-five years after its adoption. However, the Ban Amendment has already been enforced unilaterally in the European Union through the European Waste Shipment Regulation, which implements the Basel Convention together with the Ban Amendment in European Union law. The European Union had implemented the Basel Convention into European law from as early as February 1993. In 2006 the Union replaced its earlier ship recycling regulation by the Waste Shipment Regulation (EC) No 1013/2006 (the WSR), which additionally implemented unilaterally the Ban Amendment, forbidding the export of hazardous wastes from member States of the European Union to any developing (i.e., non-OECD) countries and controlling their export to OECD countries through the prior informed consent mechanism of the Basel Convention. When the European Commission tried to enforce the WSR as a ship recycling regulation to end-of-life ships, it faced many difficulties and much evasion.
This was primarily because, in enforcing the Ban Amendment, the European Waste WSR deems illegal the recycling in Bangladesh, China, India, or Pakistan of any ship that has started its last voyage from a European Union port (i.e., exporting EU State, regardless of the flag the ship flies). The simple reality is that these four non-OECD countries have consistently recycled around 95% of the world's tonnage. In fact, a study by the European Commission in 2011 reported that (at least) 91% of ships under the scope of the WSR had ignored or circumvented its requirements. The European Commission publicly recognized that the enforcement of its own Waste Shipment Regulation ship recycling regulation to recycle ships had not worked. Unwilling to wait until the HKC enters into force, the Commission embarked on developing new legislation for regulating the recycling of European flagged ships. This led the European Commission in 2012 to propose the development of a new European Regulation on Ship Recycling.
On 30 December 2013, the European Union brought into force the European Regulation on Ship Recycling (EU) No 1257/2013". The provisions of the Regulation will be applied progressively as certain conditions are met. In particular, European flagged ships will be required to be recycled in line with the requirements of the ship recycling regulation starting from sometime between the end of 2016 and the end of 2018 (the exact date being dependent on the European Commission having approved a critical volume of ship recycling capacity). From that date, as per this ship recycling regulation, European flagged ships will be excluded from the scope of the European Waste Shipment Regulation, whereas non-European flagged ships visiting European Union ports prior to their recycling will continue to be subject to the Waste Shipment Regulation, which forbids their export to developing countries. Furthermore, all ships visiting European Union ports, regardless of their flag, are required from December 2020 to be provided with inventories of hazardous materials (IHMs).
The European Regulation replicates the standards and the mechanisms of HKC and makes direct reference to the set of guidelines that IMO developed for HKC. It is worth quoting from the preamble to this ship recycling regulation: "This Regulation is aimed at facilitating early ratification of the Hong Kong Convention both within the Union and in third countries by applying proportionate controls to ships and ship recycling facilities on the basis of that Convention." The European Regulation differs from HKC in the way yards are authorised, and also in requiring the inventories of hazardous materials for EU flagged ships to include information on two additional hazardous materials. For yards located in EU countries, the this ship recycling regulation requires each member State to enforce the requirements of the Regulation and to authorise the operation of yards in its jurisdiction. Yards located outside the European Union wanting to be included in the European List of approved facilities are required to apply to the European Commission, providing evidence of their compliance with the detailed requirements of the Regulation, together with certification by an "independent verifier" who has inspected the site. Additionally, yards must accept the possibility of being subject to a site inspection by the Commission or its agents.
A ship flying an EU flag is subject to the European Ship Recycling Regulation, which requires that it will be recycled only in a yard that appears in the European List of approved yards, as published by the European Commission. The port of departure of the last voyage of an EU-flag ship, or its location at the time the decision was made to recycle it, has no relevance. (2) A non-EU flag ship departing on a voyage to a recycling yard from a port of an EU Member State continues to be subject to the European Waste Shipments Regulation, which forbids its export to non-OECD countries. (3) A non-EU flag ship departing on a voyage to a recycling yard from a port that is not in the EU or where the decision to send the ship for recycling is taken when the ship is in international waters is not subject to this ship recycling regulation.
Why the Government of India Should Not Worry About Compliance with EUSRR?
The Government of India's vision to double the recycling capacity in Indian ship recycling yards along with an increase in employment by the year 2024 is a welcome step. Besides, the intention to bring more end-of-life ships from Europe and Japan for recycling in India is laudable. Today, India is the largest green recycling destination globally, and major ship owners with green recycling policies opt for Indian ship recycling yards to recycle their end-of-life tonnage. This gives a commercial edge when compared with other recycling countries (Pakistan and Bangladesh). India is the only country among the major ship recycling destinations in South Asia to have acceded to HKC. Accession to HKC, the most sought after ship recycling regulation, by the Government of India gave a positive vibe about the ship recycling activity in the international shipping community. The Government's intention to double the ship recycling business by the year 2024 is good for the industry and the country in terms of revenue generation and employment generation. India will be the global leader in ship recycling if the plan is achieved. India's global share for recycling end-of-life ships will be above 55% compared to the existing 30-35%. The contribution of ship recycling to the domestic steel demand will also increase from the current 4% to 8% by 2024, which is expected to decrease demand for the import of scrap steel.
As of 19 February 2021, Norway, Congo, France, Belgium, Panama, Denmark, Turkey, Netherland, Serbia, Japan, Estonia, Malta, Germany, Ghana, India, and Croatia have acceded to the Convention. Now with 16 countries already acceded/ ratified HKC, the first condition is met, and the second condition has reached nearly 30% of total fleet size in Gross Tonnage (GT), and the third condition has reached 2.6% of the combined recycling capacity of 16 states.
All ratifications and accessions of the HKC ship recycling regulation are important and carry weight, but none as much as India's ratification, which took place in November 2019. India is the country with the largest ship recycling capacity as defined in the Convention. According to IMO's definition India has 31 percent of the world's ship recycling capacity, stemming from its recycling of 12.2 million GT of ships in 2012. The transformation that has taken place in most of India's ship recycling yards in the last five years, followed by the country's recent ratification, has cemented the acceptance of the Hong Kong Convention as the mainstream working standard of the industry.
The seventh list of EU SRR approved yards was published by European Commission on 11 November 2020. With the new update, the European List of ship recycling facilities currently contains 43 yards, including 34 yards in Europe, 8 yards in Turkey, and 1 yard in the USA. None of the 20 Indian applicant ship recycling yards have been included in the EU-List so far.
But does India need EU flagged ships to double its ship recycling volume, or, in other words, do Indian ship recycling yards need to be on the EU-approved listof the EUSSR ship recycling regulation?
Please note that approximately 35% of all ships worldwide are under European (EU) beneficial ownership, although only 20% are registered under the EU flag. The number of EU flagged ships further declines when you only consider end-of-life ships to approximately 10% of the total amount of recycled ships. This means that the EU flagged fleet is younger than the world average and also that many of the EU-flagged ships are flagging-out when it comes to end-of-life.
We can logically state that there are only three possible outcomes to EU SRR and to the European Union's regulatory role in ship recycling:
Outcome 1: The Commission interprets EU SRR fully in line with the rationale of HKC and approves all upgraded beaching facilities
This would be the best possible outcome: for EU SRR; for the ship recycling and for the shipping industries; and for the establishment of HKC as the global standard of ship recycling regulations. In this case, EU-flag ships will not have to avoid an impractical EU List by flagging-out. Instead, they will boost the market for HKC compliant recycling, thus yielding commercial advantages to compliant facilities. EU SRR will also be motivating other yards to upgrade, paving the way to the global acceptance of HKC. Furthermore, through its approval process, the Commission will initially provide an additional mechanism for checking and ensuring the yards' continuing compliance.
However, we do not believe that Outcome 1 of ship recycling regulations is probable.
Outcome 2: The Commission interprets EU SRR as a ban to beaching and does not include any of South Asia's facilities in the EU List
This will be a bad outcome, particularly for the Commission and its Regulation, as it will lead to inevitable flagging-out of most ocean-going EU-flag end-of-life ships. EU SRR will be as inconsequential to regulating the ship recycling industry as the EU Waste Shipments Regulation, and we have already seen more than two years after implementing EU SRR, that only a few ocean-going ships have been recycled according to it.
Whereas Outcome 2 of ship recycling regulations will inconvenience European flag shipping, on the other hand, it will not pose a long-term problem to South Asia's compliant ship recycling industry, as the failure of EU SRR will inevitably lead to even more vigorous international efforts for HKC to enter into force.
Outcome 3: The Commission makes it possible for a handful of beaching facilities to enter the List but also makes it VERY difficult and VERY expensive
This is the most likely outcome of ship recycling regulations as it will enable the Commission to dismiss the industry's persistent criticisms: on protectionism; on being biased against South Asia's ship recycling industry; on wrongly interpreting the Regulation as banning beaching; and for the lack of wide geographic spread and for limited capacity in the EU List.
We expect the Commission will eventually approve beaching yards that use floating barges and large cranes to lift blocks from the aft part of a beached ship directly to the impermeable floor on the shore. With the draconian interpretation of the disputed provision of Article 13(1)(g)(i)), the Commission will also be satisfying the anti-beaching demands of the NGO Platform and of the Green Party.
Suppose the Commission approves only three or four or five yards in India. In that case, this will not provide EU SRR sufficient recycling capacity to alter the economic dilemma of shipowners of EU-flag end-of-life ships. Therefore the exodus from EU flags may continue, reducing the relevance of EU SRR, bringing us back to the situation discussed under Outcome 2 of ship recycling regulations.
The Commission may already be walking towards this scenario, considering its efforts to stop flagging out and police compliance for EU flag ships.
It therefore appears that the Commission now wants to differentiate in EU SRR its own standard, which we may conveniently call "the HKC Plus". Already section 6 of the preamble of the Regulation refers to HKC's provision (in its Article 1(2)) for Parties to be able to take more stringent measures in order to prevent, reduce or minimize adverse effects on health and environment. This provision exists in other IMO Conventions and is intended for a flag State to be allowed to have additional requirements on its own ships. It is not intended that a port State may have additional requirements on visiting ships of other flag States. In the case of HKC, we understand that the regulator intended to allow a flag State to place additional requirements on its ships and a recycling State on its yards. However, we do not believe that this is the same with a flag State imposing additional requirements on yards of other States. If that was the intention, why bother having an international Convention?
Article 30 of EU SRR requires the Commission to review the ship recycling regulation 18 months before HKC enters into force and to submit any appropriate legislative proposals to consider the inclusion of recycling facilities authorised under HKC "in order to avoid duplication of work and administrative burden".
On the basis of what we have seen so far, we fear that at that time, the Commission may want to maintain for EU the differentiation of HKC Plus, resulting in three levels of standards in ship recycling: (i) no standards; (ii) HKC; and (iii) HKC Plus.
Merchant shipping is an international business, and for this reason, it must have common regulations that apply globally to all ships, of all flags, wherever they are trading. This is the only way to ensure a level playing field where safety and environmental protection do not play any part in commercial competition. It is therefore critical at this time to look ahead on how to navigate between EU SRR and HKC and to question how many standards are needed for the international regulation of the ship recycling industry.
The development and adoption of the Hong Kong Convention were intended to create the unified standard that regulates the recycling of ships; in the same way as SOLAS regulates their safety and MARPOL their environmental performance. It would be irrational if international shipping was regulated by multiple and competing standards. If a section of our society believes that the standard ought to be stricter, they should seek to amend the Convention at IMO after it enters into force.
In summary, the Government of India should only focus on entry into the force of HKC. International Maritime Organization needs to appeal to China to accede to HKC, and HKC should be the only international ship recycling regulation for ship recycling.