SHIPBREAKING AND THE BASEL CONVENTION - AN ANALYSIS
Prepared for the Technical Working Group of the Basel Convention
by GREENPEACE INTERNATIONAL / BASEL ACTION NETWORK
12 April 1999
Ships destined for shipbreaking are "wastes" as defined by the Basel Convention, and in most cases are likely to contain hazardous substances to an extent rendering such ships "hazardous waste" under the Convention. When such ships destined for shipbreaking involve a transboundary movement, i.e., move from an area under the national jurisdiction of one state to or through an area under the national jurisdiction of another state, they are subject to the Basel Convention (and other applicable regional hazardous waste trade regimes). In the case that such ships move from an OECD country to a non-OECD country, the Basel ban applies and the movement is prohibited. Furthermore, under the Basel Convention, a transboundary movement from any state to any of the shipbreaking operations in non-OECD countries, e.g., India, is prohibited because, due to the conditions in the shipbreaking yards, it would not constitute "environmentally sound management" as required by the Convention.
A potential problem may exist, however, because a transaction to send a ship for shipbreaking may potentially avoid the Basel Convention by hiding the fact that the ship is destined for shipbreaking. If the transaction simply indicates a sale of the ship to, e.g., an owner in India, and after the ship is in India it is determined to be destined for shipbreaking, no transboundary movement of "waste" would appear to have occurred. This scenario represents a possible legal loophole which needs to be addressed.
When the Basel Convention applies, the transboundary movement of such ships to the existing shipbreaking yards in non-OECD countries is prohibited. If one attempts to circumvent the Convention, however, while the transaction and movement may not be prohibited, the rationale and objectives of the Convention are applicable. The primary rationale and objectives of the Convention are to ensure Parties take responsibility for their hazardous waste, minimise generation and transboundary movements of hazardous wastes, and ensure that their hazardous wastes do not damage human health or the environment in another State. Hence, the Contracting Parties to the Basel Convention have a responsibility to ensure that the potential legal loophole is not available to any ship and/or unscrupulous persons attempting to avoid the provisions of the Convention.
I. Are ships destined for shipbreaking operations within the definition of "WASTES" under the Basel Convention?
Ships destined for shipbreaking operations are within the definition of "wastes" as defined by the Basel Convention. The Convention defines "wastes" as: "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law" (Article 2, paragraph 1.). The term "disposal" is further defined to mean "any operation specified in Annex IV to this Convention" (article 2, paragraph 4). Annex IV includes final disposal operations AND operations which lead to recovery, recycling, reclamation, direct re-use or alternative uses. Under Annex IV, paragraph B., ships destined for shipbreaking are included within the entry: "R4 Recycling/reclamation of metals and metal compounds".
II. Are ships destined for shipbreaking operations within the definition of "HAZARDOUS WASTE" under the Basel Convention?
Ships destined for shipbreaking operations are "hazardous wastes" under the Convention. Article 1 of the Convention determines the scope of the Convention and defines "hazardous wastes". The definition of "hazardous wastes" includes, inter alia, "wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III". Ships destined for shipbreaking typically contain, inter alia, the following Annex I hazardous substances to an extent that they do constitute hazardous wastes:
-Y9 Waste oils/water, hydrocarbons/water mixtures, emulsions;
-Y10 Waste substances and articles containing or contaminated with polychlorinated biphenyls
(PCBs) and/or polychlorinated terphenyls (PCTs) and/or polybrominated biphenyls (PBBs);
-and a host of Y19 to Y45 constituents such as Y23 Zinc compounds, Y26 Cadmium; cadmium compounds, Y31 Lead; lead compounds, Y36 Asbestos (dust and fibres).
The Parties to the Basel Convention further supplemented Annex I and III by elaborating specific wastes as hazardous wastes and including such wastes in Annex VIII. Annex VIII contains many entries of specific wastes which are contained in ships destined for shipbreaking.
Note: Article 1, paragraph 4 states: "Wastes which derive from the normal operation of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention." This provision does not apply to ships destined for shipbreaking. It is to exclude operational discharges, e.g., ballast water releases, oil losses during voyage, etc. because such operational discharges from ships in operation are covered by an IMO legal regime called MARPOL.
III. What are the IMPLICATIONS OF THE BASEL CONVENTION when applied to ships destined for shipbreaking operations?
Ships destined for shipbreaking subject to the Convention are in most cases prohibited (unless they do not possess hazardous constituents which is rare) . The Basel ban prohibits exports of hazardous waste from Annex VII countries (OECD countries and Liechtenstein) to non-Annex VII countries. The convention also prohibits the export of hazardous waste to Parties which have prohibited the import of hazardous wastes (Article 4, paragraph 1.(b)).
The Convention also prohibits hazardous waste exports from a Party "if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner ..." (Article 4, paragraph 2.(e)). And, each Party is required to prohibit the import of hazardous wastes "if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner" (Article 4, paragraph 2.(g). The phrase environmentally sound management is defined in Article 2, paragraph 8. to mean: "taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes".
All known shipbreaking operations in non-OECD countries do not constitute environmentally sound management as required by the Convention. Ships destined for shipbreaking contain significant quantities of asbestos, PCBs, hydraulic fluids, paints containing lead and/or other heavy metals, tributyltin or TBT antifouling coatings, contaminated holding tanks, and other substances rendering them hazardous waste and extremely dangerous to human health and the environment when scrapped in the existing shipbreaking yards. Most of the shipbreaking is taking place in Asia, e.g., India, where the conditions are documented to be exceptionally dangerous and damaging to the health of the workers, surrounding community, and the environment. Consequently, transboundary movements of ships destined for shipbreaking are prohibited under the Convention as not constituting environmentally sound management, in addition to the other prohibition provisions mentioned above.
In addition, Article 4, paragraph 3. requires the Parties to "consider that illegal traffic in hazardous wastes or other wastes is criminal."
Article 4, paragraph 4. requires that "Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention."
Therefore, each Party has a legal obligation to prohibit such ship exports and must do so with respect to all persons ("any natural or legal person" - Article 2, paragraph 14) subject to its jurisdiction, e.g., exporters, importers, brokers, owners, those persons in possession and/or control of the ship, captains, etc.
In order to export a ship for shipbreaking, one would have to decontaminate it such that it no longer contains Basel Convention hazardous substances prior to export. Indeed, under the European Union (EU) waste shipment regulation 259/93, implementing the Basel Convention, ships are specifically mentioned and removal of dangerous substances is required. Annex II of the EU waste shipment regulation 259/93 contains green listed wastes, which are generally considered non-hazardous as long as certain conditions are met. With respect to ships, Annex II states:
8908 00 "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."
IV. POTENTIAL CIRCUMVENTION of the Basel Convention?
Pursuant to the above analysis, when a ship is exported for shipbreaking it is subject to the Basel Convention. However, a potential legal loophole in the Convention could be exploited by unscrupulous persons trying to hide the fact that the ship is destined for breaking until after it is imported. As stated above, the ship becomes a "waste" at the moment it is disposed of, INTENDED TO BE DISPOSED OF or required to be disposed of by law. Hence, an owner could sell the ship through a broker or directly, as a "sale of a ship", and AFTER it enters the country of destination for breaking, it is declared to go to a breaking operation. In this way, there would be the potential to avoid the "waste" definition until after the transboundary movement. Once the ship is declared as "waste", i.e., destined for breaking in the country of import, there is no longer a "transboundary movement" aspect. In such a scenario, the Basel Convention could possibly be circumvented. However, since the crew and others usually are well aware of the fate of a ship destined for breaking, any cases fitting this potential circumvention scenario could be uncovered but would need to be scrutinised by the authorities to do so. If uncovered to be a circumvention of the Convention, it would be illegal and such unscrupulous persons would be subject to criminal prosecution.
A ship destined for shipbreaking is an obvious example of the kind of situation for which the objectives of the Basel Convention apply, i.e., the reason for the Convention. The primary purpose of the Convention is to ensure Parties take responsibility for their own hazardous waste, establish hazardous waste disposal facilities (including recycling) within their country, minimise the generation and transboundary movement of hazardous waste, and ensure that they do not export the hazards, and damage to human health and the environment, to other countries. In most cases, ships exported for shipbreaking are a clear and convincing violation of these objectives. Therefore, it is incumbent upon the Parties to ensure that all ship sales are scrutinised to ensure that no attempted circumvention of the Convention exists.
As the Basel Convention does apply to ships destined for shipbreaking, the next matter to be addressed is how best to implement the Convention with respect to ships. As a ship can be declared a waste in any coastal State or upon the high seas, it will be necessary to explore various options regarding which country must be considered the "state of export" where, according to the Convention, most of the responsibilities and obligations must be borne. This subject warrants further discussion. However, in those cases where it is not otherwise clear under the Convention, the most consistent approach is to make the owner the responsible person (exporter). In this case, the state with jurisdiction over that owner would be the "state of export".
Ships destined for shipbreaking are subject to the Basel Convention. In most cases, and certainly with respect to shipbreaking yards in Asia where the majority of shipbreaking is done, the application of the Convention renders such operations illegal and a criminal offense. A potential legal loophole, however, may exist which could possibly be exploited by unscrupulous persons involved. The Contracting Parties to the Convention have a responsibility to address the shipbreaking issue, apply the Convention as required, and scrutinise ship sales and adopt additional measures where necessary to ensure no circumvention of the Convention occurs.