EU Assessment on Ship Dismantling with Particular Reference To

EU Assessment on ship dismantling with particular reference tothe levels of control and enforcement established by the Basel Convention and the expected level of control and enforcement to be provided by the draft Ship Recycling Convention in their entirety

1. Introduction

1. This document is concerned with an EU response to the call to Parties to the Basel Convention to provide information concerning the level of control and enforcement established by the Basel Convention its entirety in comparison with the expected level of control and enforcement to be provided by the draft International Convention on the Safe and Environmentally Sound Recycling of Ships (the Ship Recycling Convention), in its entirety, currently under negotiation at the International Maritime Organisation, in view of a Diplomatic Conference in April 2009.

2. The Conference of the Parties of the Basel Convention, in Decision VII/26 of October 2004 and further in Decision VIII/11 of November 2006, invited the International Maritime Organization to ensure that the draft Ship Recycling Convention to be adopted by it establishes an equivalent level of control and enforcement as that established under the Basel Convention, noting that the duplication of regulatory instruments that have the same objective should be avoided. The Conference of the Parties at COP 8 also invited the Basel Convention Parties to provide relevant comments before the Sixth meeting of the Open-ended Working Group (OEWG 6).

3. In September 2007 OEWG 6 took a decision which repeated and further elaborated the COP 8 invitation by encouraging Parties to respond, by 21 January 2008, and provide comments to the Secretariat of the Basel Convention on issues such as roles and responsibilities in the draft Ship Recycling Convention and those relevant to the Basel Convention, including:

(a) An assessment of the level of control and enforcement established by the Basel Convention in its entirety;

(b) An assessment of the expected level of control and enforcement to be provided by the draft Ship Recycling Convention in its entirety and its comparison with the findings of the assessment described in subparagraph 1 (a) above;

(c) Exploring and discussing the possibilities for effective short and medium term measures.

4. The comments are to be prefaced with a short executive summary of key points made, so that the Secretariat of the Basel Convention can transmit the summaries as a short document to the IMO in time for consideration at the 57th meeting of the Marine Environment Protection Committee (MEPC 57).

5. At OEWG6 the EU made a commitment to submit comments as invited, to the Secretariat of the Basel Convention (as did India).

6. The following assessment by the European Community and its MemberStates (attached as an Annex to this note) is to be sent to the Secretariat of the Basel Convention.

Annex:

Comparison of the level of control and enforcement established by the Basel Convention with the expected level of control and enforcement to be provided by the draft Ship Recycling Convention in its entirety –

An assessment by the EU and its MemberStates

I. Executive Summary

1. The Basel Convention provides a comprehensive system of control and enforcement that establishes the necessary elements for an effective mechanism at the practical level. While the control of waste movements through the procedure of prior informed consent (“PIC”) functions relatively well for most hazardous wastes, it is applied to relatively few end-of-life ships and is difficult to enforce in relation to most of the world's merchant fleet. Specific challenges for the system are the difficulty to identify in practice when a ship becomes waste, and which country is to be regarded as the “State of export” under the Basel Convention in unclear cases.

2.The draft Ship Recycling Convention is meant to provide a comprehensive system of control and enforcement from “cradle to grave” and relies in particular on the survey and certification of ships and the authorization of ship recycling facilities. Other important elements might include the limitations foreseen for the use of hazardous materials in shipbuilding, and possibly the application of port State control. At this stage, due to remaining uncertainties, it is difficult to fully assess the expected level of control and enforcement that the new Ship Recycling Convention will achieve in its entirety. The envisaged system of control and enforcement is adapted to the specificities of the maritime world, but the actual degree of success will depend on economic circumstances and on the diligence with which states will take regulatory enforcement action. The effectiveness of the Convention might be increased by additional elements, such as non-compliance mechanisms, the auditing of ship recycling facilities and more transparency of recycling practices.

3.It is important that the possibilities for effective short- and medium-term measures are explored and discussed in order to make quick progress towards improving worldwide practices of ship dismantling. These measures should be taken in parallel to the further development of the draft Ship Recycling Convention and during the interim period until that convention enters into force. For this interim period, the EU welcomes the convening of a third meeting of the ILO/IMO and Basel Convention Joint Working Group on Ship Scrapping, in order to discuss joint technical cooperation activities and a coordinated approach to interim measures. States and other entities have already considered other voluntary action in the interim period, such as exemplary recycling of their own vessels, the publication of guidance documents and of a global list of environmentally sound facilities, encouragement of voluntary action by shipowners and technical assistance for upgrading facilities in developing countries. Other voluntary interim measures might be considered accordingly. After adoption of the proposed Ship Recycling Convention, states should ratify this convention and incorporate its provisions into domestic legislation as soon as possible.

II. Assessment of the level of control and enforcement established by the Basel Convention

Scope and objective

4.The Basel Convention applies to transboundary movements of hazardous wastes and certain other wastes (mixed waste collected from households and residues arising from the incineration of household waste), as well as wastes defined as hazardous waste under national legislation, all of which are for the purpose of this document referred to as “hazardous wastes”. The overall goal of the Convention is to protect human health and the environment against adverse effects which may result from the generation, management, transboundary movements and disposal of hazardous wastes. “Wastes” in the sense of the Basel Convention are, according to Article 2(1), substances or objects which are disposed of or are intended or are required to be disposed of by the provisions of national law. The Basel Convention does not exempt military or other state-owned waste - including ships - from its scope.

5. Article 4 of the Basel Convention contains the main obligations of Parties, such as to minimize the generation and transboundary movement of hazardous wastes and to ensure the availability of adequate disposal facilities. The Convention rests on two main pillars. Firstly it establishes a control system with a Prior Informed Consent procedure (PIC) for transboundary movements of hazardous waste between Parties. Secondly it lays down the principle of environmentally sound management (ESM) of hazardous waste at facilities that recover or dispose of it (in the Basel Convention's definitions in Article 2, the term “disposal” is used to cover operations that lead to final disposal or involve recovery of the waste).

Elements of control and enforcement in the Basel Convention - Overview

6.The Basel Convention's control system has two principal control mechanisms: i) the PIC procedure and ii) import prohibitions imposed by Parties that, after communication to other Parties, have to be respected by those countries and reflected in export bans. In addition, the authorization of disposal facilities is an important requirement linking the PIC procedure with the rules on environmentally sound management. Other provisions assist in establishing general transparency and monitoring compliance, such as annual reporting and other information to be transmitted to the Basel Secretariat, or help to resolve disputes about compliance such as the mechanism for promoting Implementation and Compliance and the process for settlement of disputes (Article 20).

7. These provisions are set out in order below, Section A describes what is referred to as the primary control and enforcement system containing the core components of the system, with Section B detailing supporting features that facilitate the operation of the system and specific limitations such as prohibitions. Section C covers additional features of the Convention that for example assist monitoring of compliance. The description is set out in this way to facilitate comparison with the expected level of control and enforcement provided by the draft Ship Recycling Convention.

A – Primary Control and Enforcement System,

Control and Enforcement Element No 1 – Recycling facility authorization:

8. Authorization of recycling facilities is required under the Basel Convention by Article 4.7(a), which obliges Parties to prohibit persons under its national jurisdiction from disposing of hazardous wastes unless they are authorised. The criteria and procedure for this are not prescribed. Article 4.2(c) of the Basel Convention does require Parties to ensure that persons involved in the management of hazardous waste take such steps as are necessary to prevent pollution.

9. Standards of facilities are to be set in accordance with the principle of ESM. This itself is defined in Article 2(8) of the Convention as “...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”. This concept has been applied over several decades - already before adoption of the Basel Convention - to the management of hazardous wastes for the operation of facilities that handle them since the adoption of the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes by the Governing Council of the United Nations Environment Programme (UNEP) through decision 14/30 of 17 June 1987. It has been further elaborated through the development of a series of Technical Guidelines adopted by the Parties to the Basel Convention published by its Secretariat.

Control and Enforcement Element No 2 – Documentary control procedure for transboundary movements of waste:

10.Article 6 of the Basel Convention sets out the main provisions of the administrative control system that applies to legitimate transboundary movements of hazardous waste. Every generator of hazardous waste wishing to export it is required to notify in writing, through the channel of the “competent authority” of the State of export, the competent authorities in the State of import, and in any transit States, of the proposed transboundary movement of hazardous waste. The State of export shall not allow transboundary movement to commence until it has received the explicit written consent of the State of import and confirmation of the existence of a contract between the exporter and the disposer. Prior written consent by the State(s) of transit is also necessary, unless that Party has informed the other Parties of the Convention that it renounces this requirement. The export may then proceed if the State of transit does not respond within 60 days after receiving the notification (“tacit consent”).

11.Any transboundary movement of hazardous wastes shall be covered by insurance, bond or other guarantee as may be required by the State of import or any transit State.

12.It should be noted that “consent” under the Basel Convention does not always require written consent in all circumstances. Some streamlining is allowed e.g. by “general notification” provisions where hazardous wastes or other wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs offices of exit and entry. In that case, the general notification and written consent may cover multiple transboundary movements of hazardous wastes during a maximum period of 12 months.

Control and Enforcement Element No 3 – Regulatory enforcement

13.Article 4 of the Basel Convention (paragraphs 3 and 4) establishes that illegal traffic in hazardous wastes or other wastes is criminal and requires each Party to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, including measures to prevent and punish conduct in contravention of the Convention.

14.In particular, Parties, through the general obligations of Article 4, may establish national legislation including creation of “competent authorities”. These authorities enforce the requirements and administer the notification and consent procedure. The competent authorities ensure businesses' compliance with the rules of the Convention by inspections of waste shipments and disposal facilities (such inspections are usually done as spot checks).

15. Article 9 of the Basel Convention determines those actions that are deemed to be illegal traffic in hazardous waste. This includes transboundary movements of hazardous waste made without notification or consent as described above. Parties are required to introduce domestic legislation to prevent and punish illegal waste traffic.

16. Further under Article 9, if the illegality is the result of conduct on the part of the waste exporter or generator, the State of export is obliged to ensure that the wastes in question are taken back by the exporter or generator or, if necessary, to do this itself. If such take-back is impracticable, the wastes have to be disposed of or otherwise treated in an environmentally sound manner. In other cases, the importer, disposer or the State of import are responsible for the environmentally sound disposal of the waste, or this has to be ensured by cooperation of the authorities concerned.

Control and Enforcement Element No 4 - Import and export prohibitions

17.Parties are empowered by Article 4 of the Convention to unilaterally establish import prohibitions via their domestic legislation. Other Parties shall take steps to ensure that they respect such prohibitions by their own legislation. Many countries have exercised this right.

B – Supporting Features

Communication and exchange of information by Parties (such as recycling States) and others

18. The Basel Convention provides for transmission of various kinds of relevant information by Parties to other Parties and the Secretariat. Articles 3, 5 and 13 lay down obligations of Parties to inform each other - mostly through the Secretariat of the Basel Convention - about their national focal points and competent authorities, the national definition of hazardous waste, decisions taken by them to prohibit or limit the import or export of waste and any accidents occurring during transboundary movements of hazardous waste.

19. Article 13(3) of the Basel Convention also places regular reporting obligations on Parties. Parties are to report annually, through the Secretariat, to the Conference of the Parties on the amount of hazardous waste exports and imports, disposals which did not proceed as intended, efforts to reduce the amount of hazardous waste, implementation measures and other relevant matters.

C- Additional features

20. Regional prohibitions.

In 1995, the Basel Convention was amended by Decision III/1 of the Conference of the Parties prohibiting all transboundary movements of hazardous wastes to all states which are not listed in Annex VII, comprising members of the OECD, the EC and Liechtenstein. This “Basel Ban Amendment”, intends to protect developing countries from the high environmental risks of hazardous waste being shipped from developed countries and not being managed in an environmentally sound manner at the destination. The Ban Amendment has not yet entered into force generally although it is given effect within the EU.

21. Verification.

Article 19 provides for circumstances where a Party has reason to believe that another Party is acting or has acted in breach of its obligations under the Convention. It may - apart from informing that Party of the allegations - inform the Secretariat, and the Secretariat should submit all relevant information to the other Parties.

22. Implementation and compliance.

Decision (VI/12) of the Conference of the Parties in 2002, set up a Mechanism for Promoting Implementation and Compliance. The procedure, which can be triggered by submissions from a Party or the Secretariat, is intended to promote implementation of and compliance with the Convention and is non-confrontational and non-binding in nature. A “Compliance Committee” composed of fifteen members from the five UN Regional Groupings administers the mechanism and can hear cases which may lead to recommendations and reviews.

23. Implementation of the Convention within the EU

Parties are entitled to adopt additional measures. For example the EC has transposed the Convention into Community law by the Waste Shipment Regulation (originally No 259/93, now No 1013/2006, applicable since 12 July 2007). This legislation goes further than the Basel Convention in its currently applicable form in that it incorporates the Basel Ban Amendment and thus has prohibited exports of hazardous waste from the Community to non-OECD countries since 1998. The new Waste Shipment Regulation also places requirements on shipments of other wastes, not falling within the classification of hazardous described above from the Community to non-OECD countries, so called “Green List” wastes. Prior written notification and consent is a default procedure for shipments of these other types of waste to non-OECD countries. Where those countries have answered otherwise in response to a questionnaire sent to them by the European Commission lower levels of control may apply. For shipments of non-hazardous “green-listed” wastes that are so allowed without notification, these shipments have to be accompanied in the EU by an information document with certain data on the waste, its origin and destination.

Effectiveness of the control and enforcement elements under the Basel Convention

Effectiveness of the primary control and enforcement system

24. The PIC procedure, coupled with the other primary controls, provides an effective process enabling competent authorities in the countries of export and import, and to some extent in transit countries, to monitor and, where necessary, take action on a transboundary movement of hazardous waste on various grounds and at various stages, for instance by preventing it from occurring if environmentally sound management of the waste at its destination is not ensured. A transboundary movement of hazardous waste can also be stopped en route and required to be returned to its origin for example if the waste description is incorrect.