The document discusses the legal framework around the dismantling and recycling of ships. It begins with an overview of different end-of-life ship disposal methods and the issues with dismantling ships in places like India. It then summarizes the Basel Convention, EU waste shipment regulation, and the proposed Hong Kong Convention. The Hong Kong Convention aims to replace existing legislation and address environmental, health, and safety risks of ship recycling in a legally binding instrument.

1. Master Maritime and
Transport Law
The end-of-life of ships
Eveline Sillevis Smitt and Michiel Claassen
Lawyers Regulatory and Government Affairs
15 januari 2013
5258471

2. Subjects to be discussed
• Preliminary remarks
• Issues regarding the dismantling (recycling) of
ships
• Present legal framework: Basel Convention (signed
1989; entered into force: May 1992)
• European Regulation on the shipment of waste (259/93 as
amended 1013/2006)
• Future legal framework: Hong Kong Convention
(2009)
• Proposal for European Regulation on the recycling of
ships, dated 23 March 2012
2

3. Ship graveyard
3

4. Hulking
4

5. Artificial reefing
5

6. Floating and dry-dock storage
6

7. Sink exercise
7

8. Dismantling of ships
8

9. Preliminary remarks
• This lecture is limited to the dismantling (recycling)
of ships, not the recycling or disposal of its
cargo, although the legal framework for the
recycling of cargo may overlap
• For cargo scandal:
Probo Koala/Trafigura:
in 2006 Probo Koala
sails from Amsterdam
carrying hazardous
waste which was
dumped in the Ivory
Coast.
9

10. Dismantling of ships
• Many ships are reaching the
end-of-life period and contain
hazardous materials, such as
absestos, oils and other
chemicals
• Problems to be addressed:
• Environmental issues
regarding no sound/proper
Alang, India: the “ship break capital of the
dismantling, as well as world”.
• Concerns for the heath
and safety for the workers
10

11. Dismantling of ships
The Ship Breakers
http://www.youtube.com/watch?v=ia7xnmcQbNg&feature=youtu.be
11

12. Dismantling of ships, facing a
challenge:
• Large number of ships reaching end-of-life period
and expected to be sent for dismantling
• As result overcapacity in the world fleet for coming 5
– 10 years
• Ship dismantling relocated to non-OECD Countries
for economic reasons
• Demand for steel, low labour costs, no environmental
costs
• OECD (Organisation for Economic Cooperation and
Development; 34 countries: high-income economies)
 www.oecd.org
12

13. Dismantling of ships
• Present recycling capacity: mainly outside the
OECD in China, India, Pakistan and Bangladesh
• IMO (International Maritime Organisation)
Guidelines on sound ship recycling (2003): not
legally binding
• Present legal instruments hard to enforce
• Hong Kong Convention is based on IMO Guidelines
• Urge for Hong Kong Convention in order to ensure:
• Environmentally sound recycling of ships,
• With concern for the workers (health and safety
matters)
• Put up in May 2009
13

14. Present legal framework: Basel
Convention 1989/1992
• Present international legislation on “waste-ships”
laid down in:
• Basel Convention (1989/1992), which provides rules for the
“control of transboundary movements of hazardous wastes
and their disposal”
• Proposed Amendment 1995: prohibition on export of
hazardous waste to non-OECD countries: not yet entered
into force
• In Europe implemented in the European Regulation on the
shipment of waste (259/93, updated by Regulation
1013/2006)
• Ships are waste when sending away/intended for
dismantling:
“Wastes are substances which are disposed of or are
intended to be disposed of or are required to be disposed of
by provisions of national law” (art. 1 Basel Convention)
14

15. Basel Convention
• Basel Convention on the control of transboundary
movement of hazardous wastes and their disposal
• Adopted in response to public outcry in 1980‟s
following the dumping toxic waste in Africa and
other developing countries
• Entered into force on 5 May 1992; Approx. 179
parties to the Convention
 www.basel.int
• Originally not drawn up with the end-of-life ships in
mind, but has become very relevant since case law
confirms that a ship destined for recycling has to be
qualified as waste
15

16. Basel Convention
• Scope: transboundary movement of hazardous
waste (i.e. from an area under the national
jurisdiction of one state to an area under the
jurisdiction of another state; art. 1 and 2, sub 3)
• Relevant general obligations, like (art. 4):
• Parties shall not permit the export or import of hazardous
waste to or from a non-Party country
• Parties may prohibit the import of hazardous or other waste
for disposal (including recycling: see annex IV) and shall
inform other parties hereof
• Parties shall prohibit the export of hazardous waste or other
waste to parties which have prohibited the import or which
do not consent in writing to the specific import
16

17. Basel Convention
• General obligations (art. 4; continued):
• Transboundary movement is only allowed:
• if the state of export does not have technical capacity or
facilities to dispose in an environmentally sound manner;
• The waste is required as a raw material for recycling or recovery
industry
• Ensure the availability of adequate disposal facilities
• Parties will not allow the export of hazardous waste to
Parties if it has reason to believe that the waste will not be
managed in an environmentally sound manner
• China, India, Bangladesh: party to Basel
convention? Yes
• Basel convention not properly enforced in those
countries
17

18. Basel Convention
• Basel Convention is an international treaty;
ratification and enforcement
• In the EU, the Basel Convention is implemented in
the European Regulation on the shipment of waste
(1013/2006)
• With ban on export of waste ships to non-EOCD
countries (like India, China, Bangladesh)
18

19. European Regulation on the
shipment of waste, 1013/2006
• European Community is party to the Basel
Convention since 1994
• By adopting Regulation 259/1993 on movement of
waste, the EU Council adopted for member states
an identical system to control movement of waste
and comply with requirements of Basel Convention
• Update EU Regulation 259/1993: EU Regulation
EC/1013/2006 of 14 June 2006 on shipments of
waste
• European Regulation (like 1013/2006)  direct
applicable in the member states, no implementation
needed and allowed
19

20. European Regulation on the
shipment of waste, 1013/2006
• Distinction is made between legal regime and
possibilities for wastes: (1) green list vs (2) red list
• Distinction has been made between (1) disposal
and (2) recovery (= recycling) activities with the
waste involved
• Furthermore, different regime depending on
destination of waste:
• Within the EU (Title II)
• Outside the EU to third countries (Title IV)
20

21. Defintion of waste ship
• Regulation 1013/2006, Annex III, under GC 030
(green listed waste), when:
• Vessels and other floating structures for breaking up,
properly emptied of any cargo and other materials
arising from the operation of the vessel which may
have been classified as a dangerous substance or
waste, however
• Taking into account the heading of Annex III: the ship
is not green waste if it contains other materials to the
extent which:
• Increases the risks of recycling in a way that the
transboundary movement needs prior notification and
consent, or
• Prevents the recovery in an environmentally sound
manner
21

22. European Regulation on the
shipment of waste 1013/2006
• Ships destined for dismantling, however, in general
contain hazardous substances such as asbestos, oils
and other chemicals
• Ships are therefor most of the time not green
listed waste
22

23. European Regulation on the
shipment of waste, 1013/2006
• Transboundary shipments within EU:
• Green listed waste ship meant for recycling within
the EU is allowed, provided certain formalities are
met
• Non-green listed waste ship: prior notification and
consent
23

24. European Regulation on the
shipment of waste, 1013/2006
• Transboundary shipments outside EU concerning
waste ships meant for recycling, not green listed:
• Export to non-OECD countries is prohibited (art. 36 EU
Regulation)
• For 34 OECD countries: not China, India, Bangladesh
• Export to OECD and within EU is allowed, provided prior
written notification and consent (art. 38 and 4)
• Transboundary shipments outside EU concerning
waste ships meant for recycling, green listed:
• Can be allowed, depending of the procedures confirmed by
the receiving non-OECD country
(art. 37)
24

25. European Regulation on the
shipment of waste, 1013/2006
• Part of the notification is that must be stated how
the waste is to be processed (disposal or recovery)
by the receiving party
• The competent authorities of destination, transit
and dispatch have in principle 30 days following the
acknowledgement of the notification to consent,
consent with conditions or object
25

26. European Regulation on the
shipment of waste (example 1)
• Sandrien wanted to leave the Amsterdam harbour
in March 2001
• According to its documents in order to be
dismantled in Alang, India
26

27. European Regulation on the
shipment of waste
• Enforcement measures by Dutch Minister of
Environmental Affairs
• Based on EU Regulation 259/1993: no prior
notification and consent for transboundary
movement
• Sandrien was not allowed to leave the harbour
• Legal dispute whether Sandrien should be qualified
as waste
• Dutch Court (“Afdeling bestuursrechtspraak van de
raad van State 19 June 2002, 200105168”) ruled
that ship did qualifie as waste and was not „green-
listed
• Ship was eventually dismantled in the Netherlands
(involving high costs)
27

28. European Regulation on the
shipment of waste
Result of Sandrien:
• Awareness that ships can be qualified as waste
under this EU-Regulation
• That it is commercially not interesting to have ships
leave European harbours for their last journey
• That it is commercially interesting to leave the
European harbours with some kind of cargo to the
East and sail from there to final destination like
China, Pakistan, Bangaldesh or India
28

29. European Regulation on the
shipment of waste (example 2)
• This Mexican ship needed repairs in Amsterdam in
1999
• Concerning repairs, also lot of asbestos needed to
be removed
• The ship was eventually taken over by Dutch State
29

30. European Regulation on the
shipment of waste
• Otapan was towed to Turkey (OECD-country) for
dismantling (recycling) and Turkisch authorities
were notified as required by European Regulation
• Upon entering Turkish waters, it became clear that
it contained far more asbestos than notified under
the Regulation (1.000 kg)
• Turkish authorities denied access and Otapan had
to return to Amsterdam
• Asbestos (77.000 kg) was finally removed in
Amsterdam and Otapan was at last again exported
to Turkey for recycling
30

31. Conclusions on international
and European rules regarding
dismantling of ships
• The EU and international waste law only applies to
waste
• As long as a ship is not destined for dismantling, it
does not qualify as waste and the rules are not
applicable
• The EU and international waste law can be evaded
by planning the last commercial voyage of a ship to
a port in the region of a possible (cheap) recycling
yard
• Uncertain whether these actions can be qualified as
illegal even if the authorities can prove that last
commercial voyage is a facade
31

32. Hong Kong Convention
• Hong Kong Convention (IMO, 2009) for the safe
and environmentally sound recycling of ships.
• Aims to:
“effectively address, in a legally-binding instrument, the
environmental occupational and safety risks related to
ship recycling, taking into account the particular
characteristics of maritime transport and the need to
secure the smooth withdrawal of ships that have reached
the end of their operating lives.”
• It is drawn up to replace existing legislation (Basel
Convention and the European Regulation on
shipments of waste) which are not specifically
drawn up for ship dismantling
• Largely based on IMO Guidelines for recycling of
ships
32

33. Hong Kong Convention
• Scope:
• Ships flying under flag of Party
• Ship recycling facilities operating under Party
jurisdiction
• Excluded:
• War ships, ships used only for government non-
commercial service and ships <500GT
• Addresses all issues concerning ship
dismantling, taking in regard the life-cycle of ships:
• Design, construction, operation and maintenance
• Preparation for ship recycling
• Certification of ships
• Requirements for ship recycling facilities
33

34. Design, construction, operation
and maintenance of ships
• Controls of ships hazardous materials (regulation 4)
• Prevent the installation or use of hazardous materials
• Each ship must have inventory of hazardous
materials (regulation 5)
• Identify the present hazardous materials (see
appendices 1 and 2) and their location in the ship
• Existing ships must comply within 5 years or before
recycling if that is earlier
• Inventory must be maintained and updated
34

35. Preparation for ship recycling
• General requirements (regulation 8)
• Ships shall only be recycled at ship recycling facilities
that are authorized in accordance with the convention
• Ships must be certified as ready for recycling by the
authorities prior to any recycling taking place
• Ship Recycling Plan (regulation 9)
• The ship recycling facility must develop a ship specific
Ship Recycling Plan
• Include measures to ensure safe working conditions
• Must be approved by authorities
35

36. Certification of ships
• Surveys (regulation 10):
• Initial survey before ship is put in service or before
certificate on inventory of hazardous materials is issued.
• Renewal surveys at least every 5 years
• Additional surveys in the event of changes, replacements
or significant repairs
• A final survey before recycling (International Ready for
Recycling Certificate)
• International Certificate on Inventory of Hazardous
Materials (regulation 11)
• Cease to be valid if the ship does not correspond with
the certificate
• Upon transfer of the ship, a new certificate shall only be
issued if new Party is satisfied that regulation 10 is met
36

37. Requirements for ship recycling
facilities
• Controls on ship recycling facilities (regulation 15)
• Authorization of ship recycling facilities (regulation
16)
• Ship Recycling Facilitiy Plan on how to ensure
workers‟ safety and compliance with Convention
(regulation 18)
• Prevention of adverse effects to human health and
environment (regulation 19)
• Safe and environmentally sound management of
hazardous materials (regulation 20)
• Emergency preparedness and response (regulation
21)
• Workers safety and training (regulation 22)
• Reporting of incidents and accidents (regulation 23)
37

38. Reporting requirements
• Initial notification and reporting requirements
(regulation 24)
• Shipowner must notify authorities in due time and in
writing of intention to recycle ship
• Include: flagstate, registration date […] Inventory of
Hazardous Materials and draf Ship Recycling Plan
• Reporting upon completion (regulation 25)
38

39. Inspections
• Inspection of ship (article 8)
• A ship under the Convention may be inspected in any
port of another Party
• Inspection is limited to verifying presence of
International Certificate on Hazardous Materials or
International Ready for Recycling Certificate
• If ship does not carry valid certificates or if there are
clear grounds for believing that ship does not or no
longer correspond to certificates, a detailed inspection
may be carried out
39

40. Violations
• Parties shall co-operate to detect violations (article 9)
• A ship can be detained, dismissed or excluded from port
(article 9, sub 3)
• Any violation of the Convention shall be prohited by
national laws (article 10)
• For ships, sanctions shall be established by the Party,
wherever the violation occures
• For ship recycling facilities, sanctions shall be
established by the Party holding jurisdiction
• The sanctions shall be adequate in severity to
discourage violations
• Parties informed of a violations by a Party shall promptly
inform the Party and IMO of actions taken or inform
them why no action has been taken
40

41. Hong Kong Convention
• The convention was approved in May 2009 and will
enter into force 24 months after the date when:
i. 15 IMO member states,
ii. representing no less than 40% of the world cargo
shipping capacity in gross tonnage,
iii. with a combined maximum annual ship recycling
volume during preceding 10 years of not less than 3
per cent of gross tonnage of combined merchant
shipping
have signed the convention.
• The convention is not expected to enter into force
before 2020.
41

42. Proposal for European Regulation
on the recycling of ships
• Proposal for European Regulation on the recycling
of ships (COM(2012)118 final, d.d. 23 March 2012.
• European implementation of the Hong Kong
Convention
• The EU is planning a head start with implementing
the Hong Kong Convention
• The proposal takes on the unhuman and
environmentally unsound undertakings on the
beaches of Alang and such
• At the same time the proposal aims to provide
opportunities for sound and modern recycling
facilities, such as Sea2Cradle in Rotterdam.
42

43. Proposal for European Regulation
on the recycling of ships
• Based on this proposal ships destined for recycling
are no longer governed by the European Regulation
on shipments of waste (art. 29).
• Scope is identical to Hong Kong Convention:
• Ships flying under flag of member state
• Recycling facilities, though only indirectly
• Same exclusions
• Content largely identical to Hong Kong
Convention, with few exceptions: EU list, Contract
and sanctions
43

44. Proposal for European Regulation
on the recycling of ships
• Preparation for recycling:
• Ships may only be recycled in facilities on European List
(art. 6) and
• untill publication only in EU or OECD member states
• National authorities may authorize facilities which
comply with requirements of art. 12
• Recycling companies outside EU wishing to be included
shall submit an application to the European Commission
44

45. Proposal for European Regulation
on the recycling of ships
• Contract between shipowner and recycling facility
(art. 9)
• In addition to ship specific recycling plan
• include an obligation to take back ship, where
technically feasible, in case of content of hazardous
materials that does not allow for appropriate recycling
45

46. Proposal for European Regulation
on the recycling of ships
• Member States shall ensure effective, proportionate
and dissuasive penalties (art. 23), for inter alia:
• not having Inventory of Hazardous Materials
• sending ship for recycling in non-EU listed facility
• Where a ship is sent for recycling in a non-EU listed
facility, the penalty shall, as a minimum, correspond
to the price paid to the shipowner for its ship.
• Where a ship is sold and within 6 months after selling
is sent to a non-EU listed facility, the penalties shall
be:
• jointly imposed to last and penultimate owner if still
flying flag EU Member State
• Only imposed to penultimate owner if no longer flying
flag EU Member State 46

47. Conclusions on Hong Kong
Convention and EU proposal
• Hong Kong Convention 2020
• Proposal for EU Regulation on recycling of ships ??
• Meanwhile and in the event Hong Kong Convention
and Proposal are not applicable: Basel Convention
and EU regulation on the movement of waste
47

48. Conclusions on Hong Kong
Convention and EU proposal
Improvement of Basel regime?
• Basel focussed on the shipment of waste
• Hong Kong takes into account the specific
characteristics of ships and „prepares‟ ship and
recycling facility for environmentally sound
recycling
• Under Hong Kong not merely decision of Parties
whether or not to allow export of „waste ships‟, but
assessment of recycling facility and specific
requirements
• Incentive for recycling facilities to comply with
requirement in order to receive „waste ships‟
48

49. Conclusions on Hong Kong
Convention and EU proposal
• Risk of changing the flag of ships destined for
recycling in a country that is less strict.
• However:
• „waste ships‟ that are not governed by this proposal,
because they are a non-EU flagstate, are still
governed by the European Regulation on shipments of
waste.
• Penalties for recycling in non-EU listed facility shortly
after sale
49

50. Conclusions on Hong Kong
Convention and EU proposal
• Chances for safe and environmentally sound
recycling of ships
50