Will the New Ship Recycling Convention Sink or Swim?

by Duncan Hollis

Most of us now know that it’s important to recycle stuff.  And there’s a lot of stuff to recycle beyond the morning newspaper — glass bottles, plastic containers, clothing, batteries, concrete blocks, timber, and, yes, even ships.  But how we recycle may prove just as important as what we recycle.  Or at least that’s the premise of the recently concluded International Maritime Organization (IMO) Conference on Ship Recycling.  Earlier this month, delegates from more than 60 states adopted a new treaty — the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (let’s call it the Ship Recycling Convention since HKICSESRS seems a bit too much even for me).  The Ship Recycling Convention aims to combat the environmental and safety problems associated with recycling oceangoing ships.  Although developed countries like the United States or those in the EU have extensive regulations for recycling vessels within their waters, many (if not most) ships end up beached on the shores of developing countries like Bangladesh, China, and India, where they are stripped for scrap mettle and other parts.  Unfortunately, this practice tends to contaminate the seashore and surrounding waters with toxic substances such as asbestos, oil waste, paint, etc. Working conditions in these recycling areas are also apparently a big problem.

If adopted, the Ship Recycling Convention hopes to change all this.  Here’s what the IMO has to say about it:

The [Ship Recycling Convention] is aimed at ensuring that ships, when being recycled after reaching the end of their operational lives, do not pose any unnecessary risk to human health and safety or to the environment . . . The new Convention intends to address all the issues around ship recycling, including the fact that ships sold for scrapping may contain environmentally hazardous substances such as asbestos, heavy metals, hydrocarbons, ozone-depleting substances and others. It will address concerns raised about the working and environmental conditions at many of the world’s ship recycling locations. . . Ships to be sent for recycling will be required to carry an inventory of hazardous materials, which will be specific to each ship. An appendix to the Convention will provide a list of hazardous materials the installation or use of which is prohibited or restricted in shipyards, ship repair yards, and ships of Parties to the Convention. Ships will be required to have an initial survey to verify the inventory of hazardous materials, additional surveys during the life of the ship, and a final survey prior to recycling.

Ship recycling yards will be required to provide a “Ship Recycling Plan”, to specify the manner in which each ship will be recycled, depending on its particulars and its inventory. Parties will be required to take effective measures to ensure that ship recycling facilities under their jurisdiction comply with the Convention. A series of guidelines are being developed to assist in the Convention’s implementation.

The IMO has yet to release the final text of the Convention, but I’ve managed to procure copies of the Convention as adopted (see here and here), along with the Conference’s Final Act and accompanying resolutions.

Obviously, the Ship Recycling Convention will interest international environmental lawyers not simply for addressing the underlying environmental problem, but for how it does so — i.e., providing national enforcement of international norms that address the recycling process as well as pre- and post-recycling products.  For me, however, the Ship Recycling Convention also has promise on three more general levels:  (a) as a case study of treaty efficacy; (b) as evidence of treaty fragmentation; and (c) as a useful reminder of the sophistication that has emerged in constructing treaties.

First, is the Ship Recycling Convention an effective response to the underlying problem?  Not according to many environmental NGOs; some of whom denounced it as “useless paper” (subscription required).  Others complained that it actually legitimated the practice of beaching ships that many NGOs had wanted banned outright while punishing shipping companies that use cleaner and safer methods. 

I’m not sure, however, if such complaints are all that compelling.  For starters, it doesn’t appear that any of the negotiating states actually supported a ban on ship beaching.  Why?  Assuming the treaty had banned ship beaching, I highly doubt states currently hosting such practices would have joined it.  Ship recycling has become a major source of employment and income in countries like Bangladesh and India; in China, over 100,000 jobs are associated with ship recycling.  By regulating, rather than prohibiting, ship beaching the current treaty makes entry by such states easier.  The operating principle appears to be some regulations are better than none for states hosting ship recycling activities.  And, it’s important to note that minimal regulation today does not necessarily dictate minimal regulation tomorrow. The Ship Recycling Convention contains a flexible regulatory regime, where parties’ obligations can evolve over time. Check out the relevant Annex amendment provisions (where all the meat of the treaty obligations lie) in article 18:

ARTICLE 18 – Amendments * * *
2.3. Amendments shall be adopted by a two-thirds majority of the Parties present and voting in the [IMO Marine Environmental Protection] Committee, on condition that at least one-third of the Parties shall be present at the time of voting. . . .
2.5. An amendment shall be deemed to have been accepted in the following circumstances…
2.5.2. An amendment to the Annex shall be deemed to have been accepted at the end of a period to be determined by the Committee at the time of its adoption, which period shall not be less than ten months after the date of adoption. However, if by that date more than one-third of the Parties notify the Secretary-General that they object to the amendment, it shall be deemed not to have been accepted.
2.6. An amendment shall enter into force under the following conditions . . .
2.6.2. An amendment to the Annex shall enter into force with respect to all Parties six months after the date on which it is deemed to have been accepted, except for any Party that has:
2.6.2.1. notified its objection to the amendment in accordance with subparagraph .5.2 and that has not withdrawn such objection; or
2.6.2.2. notified the Secretary-General, prior to the entry into force of such amendment, that the amendment shall enter into force for it only after a subsequent notification of its acceptance.

Thus, like many earlier multilateral environmental agreements (MEAs), this treaty has a tacit amendment procedure for quick and (relatively) simple amendments, binding all states following adoption of an Annex amendment except for those who specifically opt-out. And if other MEAs are any guide, we should expect that Annex amendments can (and will) arise providing for more strict and rigorous regulations in the future.  Therefore, I’m inclined to see this treaty as a starting (rather than ending) point for redressing the environmental and work-related issues associated with ship recycling.  And, as a starting point, it’s not surprising that the treaty’s terms try to balance all of the various interests at stake in these negotiations, including flag states, recycling states, ship owners and ship recycling facilities.

Second, the very fact that the IMO produced the Ship Recycling Convention demonstrates the strength of fragmentation not simply for public international law generally but even among treaty regimes in the same field; here, international environmental law.  It’s not a closely held secret that the IMO is in competition with the Basel Convention regime to deal with environmental issues associated with ship recycling (the ILO also overlaps with this treaty to the extent it deals with work at the ship recycling sites).  Thus, in addition to its actual regulation of the ship recycling problem, we might also view the Ship Recycling Convention as an IMO attempt to forestall competing activity within the Basel Convention context.  Indeed, one of the IMO Conference’s resolutions (Resolution 2) recognized the contributions of representatives from the Basel and ILO Secretariats in these negotiations and expressed an interest in continuing the cooperation.  Maybe I’m wrong, but I read that resolution as code for saying — “this is our area, stay out of our way as we regulate it.”  What I don’t know (and would welcome comments on) is whether this competition emerged from the Secretariats themselves, or if it was a product of one or more states who preferred the IMO context to that of Basel or the ILO.

Finally, there are a few provisions in the Ship Recycling Convention that serve as a useful reminder of the sophistication that states have achieved in delineating when treaty obligations arise.  In addition to the tacit amendment procedures I mentioned earlier, there’s a so-called Canada Clause (Article 16(4)), which allows federal states to join the convention on behalf of only part of that state if it has two or more sub-national territorial units with different systems of law in relation to matters governed by the Convention.  Moreover, there’s a really interesting entry into force provision that controls not only how many states need to join the treaty to bring it into force, but also ensures that a certain number of the major shipping states will be among that group.  Check out Article 17 here.  Now, none of these provisions originated in the Ship Recycling Convention; indeed, many are often seen in IMO-related agreements.  I highlight them however, because they reflect innovative approaches to problems that arise in treaty-making generally, but may not be well known in that broader context.

In the end, it’s way too soon to know if the Ship Recycling Convention will sink or swim.  I hope it’s the latter.  In any case, the treaty is already successful in at least one respect; giving international lawyers and international relations experts much fodder for further study.

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