Abstract:
The scrapping of
ocean-going vessels is currently done mainly in a few states in Asia. Because
of the hazardous materials contained in the ships, the scrapping poses a
significant danger to both the workers in the shipbreaking yards as well as to
the environment. The international community has been aware of the problems
related with shipbreaking for over a decade, and has in different ways tried to
improve the practices. Moreover, attention has turned to the regime governing
the movement of waste, as it has been argued that a vessel destined for
scrapping should be defined as waste under the regime. The waste movement
regime contains provisions that control and restrict the transboundary movement
of waste. Applying the regime could thus hinder vessels containing hazardous
materials from being scrapped in Asia. This thesis examines how the
shipbreaking industry functions, what considerations are made before selling a
ship for scrapping, and where and how the scrapping is done. Furthermore, the
study provides an overview of actions taken so far by different stakeholders
that are trying to solve the problems connected with shipbreaking. The main
attention is, however, paid to the regulations governing the movement of waste
and how the regulations can be applied to vessels destined for scrapping. It is
argued that although the waste movement regime can be applied to vessels, the
enforcement of the regulation contains some major weaknesses. These weaknesses
result in the regime not being effective at solving the problems related with
the scrapping of vessels. Finally, the thesis examines the IMO Draft Convention
on ship recycling. The Convention is currently being negotiated with the
intention to adopt it in May 2009. The procedures laid down by the regulation
are explained and some issues that remain unsolved are presented. This is
accompanied by some critique of the Convention that has been put forward by
environmental non-governmental organisations (NGOs). In the light of the
critique from the NGOs and the earlier discussed weaknesses of the waste
movement regime, the draft Convention is assessed. The conclusion is that
although the draft Convention contains clear improvements of the present
situation concerning the scrapping of vessels, the enforcement of the
Convention still leaves room for some questions. Moreover, the draft Convention
does not fully succeed to allocate the costs caused by shipbreaking in a manner
that is in accordance with principles of international environmental law.
Conclusions:
Shipbreaking
is a complex and a multi-faceted issue. The subject has attracted the interest
of several organisations but it does not fall under one single competence.
Thus, the ILO, the IMO and the parties to the Basel Convention, all have
legitimate interests to consider the practice of shipbreaking. In view of the
current shipbreaking procedures, it is also evident that actions are necessary
in order to restrict the severe harms currently caused by the scrapping of
vessels. In this study it has been shown that the present waste movement regime
can be applied to ships destined for scrapping. In many ways, it is not
far-fetched to consider a vessel destined for scrapping as waste, in the same
manner as a car, a computer or other commodities are considered waste when they
are intended to be discarded. Nevertheless, ocean-going vessels destined for
scrapping are at the same time very different, although they fulfil the
requirements that define waste. Vessels are large constructions with a
relatively long life-length and they are able to operate around the world,
sometimes far from where they were constructed. Because of these factors, ships
destined for scrapping can hardly be accommodated within procedures established
by the waste movement regime. Moreover, the enforcement of the waste movement
regime to ships destined for scrapping is problematic. In order to define a
vessel as waste, an intention to scrap the ship must be established. As has
been shown in this study, this is often a rather difficult, if not impossible,
task. Furthermore, a movable vessel can escape enforcement relatively easily if
the shipowner hides the intention to scrap the ship until it is out on safe
waters. Finally, the enforcement of the waste movement regime is also weakened
by the fact that the applicability of the Basel Convention to ships destined
for scrapping is disputed.
In
this thesis it has been argued that the IMO draft Convention is in many ways an
improvement compared with the waste movement regime. The draft
Convention takes notice of the special features of ocean-going vessels and
creates a global and binding regulation exclusively focused on the life of a
vessel from its construction until it has been scrapped. It requires
inventories of hazardous materials for all ships, supports green construction
of vessels and requires the authorisation of shipbreaking facilities. These are
all good measures aiming at solving the problems related with the scrapping of
vessels. As has been argued in this study, the draft Convention does, however,
contain some weaknesses. The present emphasis laid on flag state enforcement,
with a restricted possibility for other states to detect and enforce
violations, raises concern whether the provisions of the draft Convention will
be followed in practice. The emphasis on flag state enforcement is also
problematic, considering how easily shipowners can change the flag of their
vessels. These problems, nonetheless, concerns generally all maritime
legislation and are hard to overcome. The enforcement of the draft Convention
is, ultimately, better constructed to the circumstances that apply to
end-of-life vessels, than the rules on jurisdiction in the waste movement
regime, which are based on the notion of “exporting state” and the belief that
waste is produced at one location. Moreover, the study has argued that the
allocation of responsibility in the draft Convention is insufficient and does
not incorporate the polluter pays principle. At present, the draft Convention
puts the burden of responsibility for the scrapping of vessels on the
shipbreaking state and the port state. Arguably, these stakeholders are not in
the best position to carry the bulk of the costs that implementing the rules of
the draft Convention will demand. What is more, the shipowners, which are the
ones profiting from the vessels during their lifetimes, can escape bearing the
pollution costs that the scrapping of the vessels causes. These costs are
instead placed on the shipbreaking states, which are in most cases developing
states. This is contradictory to the polluter pays principle and does not
represent a fair allocation of the costs for the scrapping of vessels. Finally,
it remains to be seen how the dissimilarities between the draft Convention and
the existing waste movement regime will be solved. This especially concerns the
pre-cleaning of vessels, which as has been show is currently a requirement
explicitly stated in the EU Regulation on shipments of waste. Although being a
valid requirement for the protection of the environment, the pre-cleaning of
vessels before scrapping has to be deemed impossible under
the current circumstances. The European Commission appears, however, not to be
prepared to change the EU Regulation. Nevertheless, having two regulations
applicable to vessels destined for scrapping is not a satisfactory solution and
could possibly lead to out-flagging of vessels from the EU.
Reflections:
It
will still most likely take several years before the draft Convention enters
into force even if the Convention is adopted as planned in May 2009. A fast and
widespread ratification would be necessary to meet the increased need of
scrapping that is expected in the following years. In order to facilitate a
fast entry into force of the Convention, it may therefore be necessary to
compromise on the issues that are currently debated and to make some of the
requirements in the Convention softer. This regards, for instance, the
pre-cleaning of vessels, at what moment the inventory of hazardous wastes must
be established and when surveys must be undertaken.
It
appears that restricting vessels from being scrapped in Asia is neither a
practical nor a sustainable solution. What is instead needed is to improve the
standards of the scrapping facilities in the current shipbreaking states. As
has been showed, the draft Convention does contain provision that focus on
improving the scrapping procedures. This is a positive development, but what is
moreover needed is financial support to the shipbreaking states in order for
them to improve the standards. Otherwise there is a risk that the provisions of
the draft Convention will not have a real impact. In view of this, the shipping
industry should be demanded to bear a share of the costs that improving the
facilities would require. This would more fairly allocate the costs of
pollution which are connected to the scrapping of vessels, and also implement
the polluter pays principle into the present shipbreaking practices.
Author: Oskar Sundelin
Master’s Thesis for the
Master of Law Programme
Department of Law School
of Business, Economics and Law University of Gothenburg
Spring 2008
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