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Deciphering the Ship Recycling Convention

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Deciphering the Ship Recycling Convention Chapter 5 Deciphering the Ship Recycling Convention I. Introduction Shipbreaking caught the attention of the international community following the investigative reporting series by Gary Cohn and Will Englund in “The Baltimore Sun”, for which they won the Pulitzer Prize in 1998.1 Since then, much print has been devoted to highlighting the working conditions in these demolition yards. As well, environmental non-governmental organisations (ENGOs) have played an important role in placing the global spotlight on shipbreaking by vigorously campaigning for change. Despite all these efforts, and growing revulsion to one of the most sinister forms of environmental rac- ism, there have only been superfi cial changes in these yards. We are yet to witness an international legal regime devoted exclusively to the issue of break- ing ships. As outlined in the preceding chapter, controls on the transboundary movement of dilapidated ships can emanate from various international instru- ments,2 the most important of these being the Basel Convention. However, as seen, this control regime is fragmented and incomplete. It was also recognised that the unique characteristics of this trade required a binding, stand-alone international legal instrument setting out clear minimum standards to regulate all facets of shipbreaking. Following acceptance of the IMO Guidelines on Ship Recycling (IMOGSR)3, the IMO turned to developing a binding legal regime, the recently adopted Hong Kong International Convention for the 1 The 1998 Pulitzer Prize Winners Investigative Reporting, online: The Pulitzer Prizes <http:// www.pulitzer.org/works/1998,Investigative+Reporting>. 2 For an analysis on the international framework, see Chapter Four entitled, “Contemporary International Law and Ship Recycling”. 3 See generally IMO Guidelines on Ship Recycling: Res. A.962(23) Adopted on 5 December 2003 (Agenda Item 19), A 23/Res.962, 4 March 2004 (KR-CON) [IMOGSR]. See also Recycling of Ships: Comments on the Report of the Correspondence Group, Submitted by Greenpeace International, IMO/MEPC 47/3/5, 11 January 2002 (KR-CON); Recycling of Ships: Comments on the Report of the Correspondence Group: Selected Cases of Decommissioning of Vessels Indicating the Need for Mandatory Requirements, Submitted by Greenpeace International, IMO/MEPC 49/3/2, 9 May 2003 (KR-CON) (highlighting the inconsistent approach of different stakeholders in relation to the four cases involving the ‘Sandrien’, the ‘Sea Beirut’, the ‘Forthbank’ (alias ‘Pacifi c Emerald’), and the ‘Silver Ray’ (renamed Naxos 1) that re-emphasise the need for mandatory requirements for ship recycling) [Selected Cases of Decommissioning of Vessels]. 146 Chapter 5 Safe and Environmentally Sound Recycling of Ships, 2009 (Ship Recycling Convention).4 Under article 11 of the Basel Convention, any new treaty that seeks to supplant existing controls over the transboundary movement of wastes, which includes decaying ships intended for breaking, will have to establish an “equivalent level of control”. In effectuating this principle of equivalency, the new agreement must stipulate conditions that are no less environmentally sound than those provided for by the Basel Convention, taking into account the interests of developing countries.5 Accordingly, it is expected that the recent IMO-sponsored regime will encompass the obligations and controls set out in the Basel Convention, as well as fi lling in the gaps and loopholes created when the more general provisions of the Basel Convention are applied to regulating the specifi c waste stream of end-of-life ships.6 It is therefore useful to consider whether the Ship Recycling Convention estab- lishes a comparable set of controls to the existing regime, or whether it merely is an 4 For the text of the convention, see International Conference on the Safe and Environmentally Sound Recycling of Ships: Agenda Item 8, Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference: Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, Text Adopted by the Conference, IMO/SR/CONF/45, 19 May 2009, online: SJÖFARTSVERKET <http:// www.sjofartsverket.se/pages/19514/sr-conf-45.pdf> (opened for signature 1 September 2009) [Ship Recycling Convention]. For the fi rst draft of the Ship Recycling Convention developed by Norway see Recycling of Ships: Proposal for a New Legally-binding Instrument on Recycling of Ships, Submitted by Norway, IMO/MEPC 54/3, 5 December 2005 (KR-CON). See also Sveinung Oftedal, Development of the Draft International Convention for the Safe and Environmentally Sound Recycling of Ships, online: European Commission Environment <http://ec.europa.eu/environment/ greenweek2007/sources/fi les/day2_session8_2/Oftedal.pdf>. Nikos Mikelis, “Developments and Issues on Recycling of Ships” (Paper presented to The East Asian Seas Congress, Haikou City, China, 12 December 2006) at 4, online: International Maritime Organization <http://www.imo.org/ includes/blastDataOnly.asp/data_id%3D17980/Developments.pdf> [Mikelis, “Developments on Recycling”]. See also Nikos Mikelis, “Development of the International Convention for the Safe and Environmentally Sound Recycling of Ships” (PowerPoint presented to the Preparatory Discussions on Promoting Sustainable Ship Recycling through the Global Programme, Dhaka, Bangladesh, 13 January 2008), online: Basel Convention <http://www.basel.int/ships/gpssr/index.html>. 5 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 U.N.T.S 126, 28 I.L.M. 657 (entered into force 5 May 1992), art. 11(1) [Basel Convention]. See also Recycling of Ships: Equivalent Levels of Control Established under the Basel Convention and the Draft IMO Ship Recycling Convention, Submitted by the Secretariat of the Basel Convention, IMO/MEPC 57/3/3, 25 January 2008, ¶ 7 (KR-CON) (noting that the conference of the parties to the Basel Convention in its tenth meeting to be held in 2010 will make a fi nal determination as to whether the Draft Convention provides an equivalent level of con- trol to that established under the Basel Convention). 6 France, Interdepartmental Committee on the Dismantling of Civilian and Military End-of-Life Ships, Le rapport de la Mission Interministérielle portant sur le Démantèlement des Navires civils et militaires en fi n de vie, at 16 (27 March 2007, Chair: Xavier de la Gorce), online: SGMer <http:// www.sgmer.gouv.fr/article.php3?id_article=52> [MIDN]. See generally Obligations and Opportu- nities for a Mandatory Alternate or Additional Instrument to the Basel Convention for End-of-Life Ships, Submitted by Greenpeace & the Basel Action Network, 26 May 2005, online: basel action network <http://www.ban.org/Library/mepc_submission_long.pdf> [Alternate or Additional Instrument to the Basel Convention]..
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