Ship Breaking Under International Law

Legislation on ship breaking is in its infancy. The rapidly evolving regulatory framework, is being generated by many different international conventions and organisations. There are international obligations that nations and the shipping and the ship breaking industry have to honour. Some of these are based on explicit treaty law. Some are based on customary law.

Customary Law

Prior Information Consent (PIC) is a good example of customary law. PIC is internationally required for the trans-boundary movement of hazardous waste. According to this, ship owners have to make a declaration of hazardous substances on board, on arrival at the yard for scrapping. However, PIC by itself is insufficient to stop unsafe scrapping.

What is needed it that the country from which the toxic ship arrives needs to alert notify the importing country. The importing country can then take measures for the adequate treatment of these hazardous substances. In several cases Greenpeace found out that end of life vessels have been exported to a shipbreaking country without the importing authorities being alerted.

Basel Convention

The Basel Convention goes further than the PIC. It imposes an obligation of `due diligence`, on all parties. All parties are required to provide information about a proposed trans-boundary movement of hazardous wastes, to the countries concerned. An exporting country must refuse the export of a ship containing hazardous materials, if it suspects that the waste will not be properly dealt with by the shipbreaking country. Three elements are crucial for the application of the Basel Convention to the issue of shipbreaking: 1. Proof that the hazardous waste will not be dealt with in a sound manner in the ship breaking state 2. The legal recognition that ship are waste. 3. An established `intention to discard` by the owner of the ship. From various sources it has become clear over the last years that current practice in ship brekaing states like China, Turkey, Pakistan, Bangladesh and India are not preventing pollution. In fact current practice in this market has added to pollution and accidents. This has been widely documented and recognised by governments, courts and international orgnisations such as ILO and IMO.

The Basel Convention at its Open Ended Working Group has noted that a ship may become waste, in accordance with article 2 of the Basel Convention, and that at the same time it may be defined as a ship under other international rules. This is a loophole that ship owners can exploit. The London Convention Together with MARPOL (Marine Pollution Convention ) the London Convention is the main treaty regime that relates to marine pollution. The London Convention requires parties to take effective measures to prevent marine pollution by disposal of wastes into the sea. In fact, the fundamental obligation under the London Convention is to prohibit the deliberate disposal from vessels at sea, of waste. However, the application of this convention on the issue of ship breaking is debated. At the time when the convention was set up the issue of ship breaking was not a problem.

MARPOL

The MARPOL convention deals with discharges from ships. In the issue of ship breaking MARPOL would apply to the discharges that occur from ships sent for shipbreaking, which take place within the internal waters of the ship breaking country. Practically this means that once the ship is delivered to a ship breaking yard any discharge, notably of oil or oily mixtures will be prohibited. Such oily wastes must be retained on board or discharged to reception facilities in port. States are in turn obliged to ensure the provision of the necessary reception facilities for these oily discharges. Interestingly MARPOL obliges the person in charge of the vessel to report any actual or probable discharge above the permitted level.

The United Convention on the Law of the Seas Under UNCLOS countries are obliged to establish global and regional rules, standards and recommended practices and procedures to protect the marine environment. It is interesting to note in relation to the issue of ship breaking that there is recognition under UNCLOS of the different role of port states and flag states. Port states have discretion for enforcement within their territorial waters. Flag states are obliged to enforce the international rules and standards, as well as their own pollution laws and regulations, wherever the violation occurs.

Human Rights obligations

The Universal Declaration of Human Rights adopted in 1948 specifies in article 25 the right to a standard of living adequate for health and well-being. Reflecting the spirit of this article, and in reference to the Stockholm Declaration of 1972 as well as the Rio Declaration of 1992, a United Nations Human Rights Commission was set up in 1995. This commission adopted a resolution concerning the adverse effect of dumping of hazardous wastes on the enjoyment of human rights. A special reporter was appointed to further investigate and report. The reporter clearly identified ship breaking as a new aspect of waste trafficking and stated that such ships are considered hazardous waste.

International labour Organisation

Under the auspices of the International Labour Organisation guidelines have been established to improve the safety and health of thousands of workers in ship breaking yards. The practical recommendations in the guidelines are intended for use by all those who have responsibility for occupational health and safety in shipbreaking operations. However, they are not legally binding, nor do they intend to replace national laws, regulations or accepted standards. The ILO recognises that effective and safe shipbreaking depends on how the vessel is prepared for dismantling

International Maritime Organisation

The IMO drafted guidelines on ship recycling under the auspices of its Maritime and Environmental Protection Committee. These guidelines are likely to adopted by IMO's General Assembly later this year. The Guidelines identify voluntary measures that need to be taken by ship owners as well as by relevant actors in ship breaking countries. The recently developed guidelines are half a step forward in the campaign to clean up the shipping industry. Ships are now required to carry a Green passport specifying the hazardous substances that are on board, and shipbuilders now have to start building clean ships. However a fatal assumption in the IMO guidelines is that the industry can still freely export (to a Non-OECD country) a ship without decontaminating it prior to breaking. The IMO guidelines are also not clear, which makes it difficult to know what is required of ship owners and detracts from their potential usefulness. The IMO guidelines also have lots of "Square Brackets", meaning that there are contentious issues, which will need to be resolved in future. The guidelines continue to put the burden for the handling of hazardous materials on the ship breaking country. The guidelines are voluntary and there is no guarantee that they will be applied by ship owners or ship breakers. Based on the experiences of the Voluntary Code of Practice developed by the industry (where the majority of the ship owners do not comply with even the easy standards developed by their own federations). Greenpeace believes that the IMO guidelines will not at all change the current practices of ship owners. The IMO failed to accept and complement the existing legislations and regulations (mentioned above) dealing with the export of hazardous wastes(Basel Convention). The guidelines are therefore outside international law. Greenpeace is concerned that the new guidelines could be misused to cover up the illegal business. It is likely that the environmental and people in Asia will still continue to be exposed to hazardous substances.