Contents
1.
Purpose, Objectives, and Significance of Study ...................................................................1
2.
Methodology ........................................................................................................................2
3.
Terminology used ................................................................................................................2
4.
Options for end-of-life and phased-out single hull oil tankers ...............................................2
5.
Health, safety, and environmental environmental risks of ship recycling recycling .....................................................7
6.
Governance of ship recycling ...............................................................................................7
7.
Ship recycling perspectives and practices ..........................................................................16
8.
Analysis of the Hong Kong Convention ..............................................................................27
9.
Relevance of the the Hong Kong Ship Recycling Convention to Malaysia ...............................37
10. Assessment of the impact of the Hong Kong Ship Recycling Recycling Convention to Malaysia ........40 11. Need for a Ship recycling strategy .....................................................................................46 12. Recommendation ...............................................................................................................48 13. Limitation of study ..............................................................................................................49 14. Future research..................................................................................................................49 Annex 1: List of References References ......................................................................................................... i
List of Tables
Table 1: Tonnage reported sold for breaking, by vessel type, 2000-2008....................................3 Table 2: Average A verage age of broken-up b roken-up ships, by b y type, 1998 - 2008 ..................................................4 Table 3: Age distribution of the world wo rld merchant fleet, by vessel t ype, as of 1 Jan 2009 ...............5 Table 4: Top 25 flag States by scrap tonnage and top 25 flag States by tonnage .....................34 Table 5: Summary of the Strengths, S trengths, W eaknesses, Opportunities, Opportunities, and Threats of the HK Convention ................................................................................................................................36 Table 6: Unit cost related to the Convention requirements for certificates for ship in operation .43 Table 7: Unit cost related to the Ready to Recycle Certificates .................................................45 Table 8: Unit cost related to the checking of ships calling at State party port ............................45
List of Figures
Figure 1: Age profile of the Malaysian fleet .................................................................................4 Figure 2: Age A ge profile of world wo rld fleet, all vessel types .....................................................................5 .....................................................................5 Figure 3: Age profile of world w orld fleet by 8 major vessel types .........................................................6
1. Purpose, Objectives, and and Significance of Study
The purpose of this study is to assess the implications of the Hong Kong International Convention on the Safe and Environmentally E nvironmentally Sound Recycling of Ships 2009 to Malaysia. The objectives of this study are: (a) To assess the feasibility of Malaysia ratifying ratifying the Hong Kong Convention (b) To recommend a policy option for the safe and environmentally sound recycling of ships (c) To disseminate information to parties affected by the obligations imposed by the Convention to enable them to plan and manage their operations in anticipation of the Conventi Con vention. on. This study is significant to Malaysia because ship recycling is the most environmentally sound and most profitable means of disposing ships that are no longer fit for operations. Malaysia represents 0.85% of the world total tonnage 1 which will eventually be scrapped. Whether or not Malaysia ratifies the Convention, the regulations contained therein represent best industry practices for shipbuilding and ship recycling. As such, their implications to the Malaysian shipbuilding industry should be assessed in addition to providing a policy recommendation on preparing Malaysian ship owners and an d ship builders for compliance with the th e Convention. The beneficiaries of this study would include: (a) (b) (c) (d) (e)
Ministry of Transport Transport (Marine Department) Malaysia Shipowners‟ Association (MASA) Ship builders and repairers Ship surveyors Parts suppliers
1
Based on data on Shipbuilding Statistics, September 2009 from the shipbuilders' Association of Japan for the top 25 flag states by tonna tonnage, ge, extracted from European Commission DG Environment Support to the impact assessment of a new legislative proposal on ship dismantling Final report December December 2009 “
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1
1. Purpose, Objectives, and and Significance of Study
The purpose of this study is to assess the implications of the Hong Kong International Convention on the Safe and Environmentally E nvironmentally Sound Recycling of Ships 2009 to Malaysia. The objectives of this study are: (a) To assess the feasibility of Malaysia ratifying ratifying the Hong Kong Convention (b) To recommend a policy option for the safe and environmentally sound recycling of ships (c) To disseminate information to parties affected by the obligations imposed by the Convention to enable them to plan and manage their operations in anticipation of the Conventi Con vention. on. This study is significant to Malaysia because ship recycling is the most environmentally sound and most profitable means of disposing ships that are no longer fit for operations. Malaysia represents 0.85% of the world total tonnage 1 which will eventually be scrapped. Whether or not Malaysia ratifies the Convention, the regulations contained therein represent best industry practices for shipbuilding and ship recycling. As such, their implications to the Malaysian shipbuilding industry should be assessed in addition to providing a policy recommendation on preparing Malaysian ship owners and an d ship builders for compliance with the th e Convention. The beneficiaries of this study would include: (a) (b) (c) (d) (e)
Ministry of Transport Transport (Marine Department) Malaysia Shipowners‟ Association (MASA) Ship builders and repairers Ship surveyors Parts suppliers
1
Based on data on Shipbuilding Statistics, September 2009 from the shipbuilders' Association of Japan for the top 25 flag states by tonna tonnage, ge, extracted from European Commission DG Environment Support to the impact assessment of a new legislative proposal on ship dismantling Final report December December 2009 “
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1
2. Methodology
The research conducted is mostly desk based involving the analysis of the Hong Kong Convention. We also reviewed ship recycling strategies of the European Union and the United Kingdom and the ship dismantling practices of India, Bangladesh, Pakistan, and China through available literature obtained from the public domain. We also visited ship yards to interview ship yard operators and discussed with the Department of Environment, Marine Department, and representatives of the Malaysia Shipowners‟ Associ ation. 3. Terminology Terminolog y used „Ship recycling‟ is the term used by the International Maritime Organisation and by Ministries of Transport/ Shipping. „Ship dismantling‟ is used by the Basel Convention, by the Ministries of Environment, and by the European Commis sion. „Ship breaking‟ is used by the International Labour Organisation (ILO), and by environmental non-governmental organisations. „Ship scrapping‟ is used by shipowners. These terms are often used interchangeably to refer to the
process in which end-of-life ships are dismantled, so that their steel hulls and other components can be salvaged and recycled back into the market. Although the terms refer to the same process, each term reflects a different focus of the project. These terms are used interchangeably throughout this report.
4. Options for for end-of-life and phased-out phased-out single-hull single-hull oil tankers
Most ships have a life span of around 28 years before they are taken out of operation because they are no longer economically feasible and for safety reasons. The number of ships that would need to be scrapped is increasing, particularly as old single-hulled tankers are currently being phased out. An alternative to ship recycling is mothballing or indefinite storage of ships, which involves anchoring ships at ports with regular maintenance to keep them afloat. As a result, mothballing entails exorbitant maintenance costs and imposes serious safety and environmental risks to the areas where they are docked. Ships could also be used as sto rage facilities facilities or be converted into museums. However, like mothballing, the maintenance cost and impact to safety and the environment needs to be considered. Other options are dry-docking (wherein the ship is removed from the water and grounded on to the beach) and sinking ships to form artificial reefs. Both options are considered to be prohibitively expensive and environmentally perilous. The deliberate sinking of ships into the ocean is considered as dumping and contravenes the London Dumping Convention 1972. The prevailing practice within the maritime industry is to export obsolete vessels to major ship recycling nations like India, China, Bangladesh, Pakistan, and Turk ey for scrapping. 2
Due to international and European legislation on the phasing-out of single hull tankers, two peaks of scrapping have been forecast for the years 2010 and 2015 2. The number of such tankers is currently assumed to be around 800 worldwide. It is uncertain, however, to what extent they will require immediate dismantling, as many of them can be converted to double-hull tankers or used for non-oil transport or storage purposes3. The following tables and figure are extracted from the UNCTAD (2009) report. Table 1: Tonnage reported sold for breaking, by vessel type, 2000-2008
(millions of dwt and percentage shares)
2 2
Commission of the European Communities (2008). An EU Strategy Strategy for Better Ship Ship Dismantling: Dismantling:
Communication Communication from the Commission to the European Parliament, the Council. The European Social and Economic Committee and the Committee of the Regions , COM (2008), 767 final. Retrieved at
http://ec.europa.eu/environment/waste/ships/pdf/com_2008)767.p http://ec.europa.eu/environment/wa ste/ships/pdf/com_2008)767.pdf df Bhattarcharjee S (2009). From Basel to Hong Kong: K ong: International Environmental Environmental Regulation of Shiprecycling Takes One Step Forward and Two Steps Back. Trade L.& Dev. (2009) , Vol 1(2), pages 193-230
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3
Table 2: Average age of broken-up ships, by type, 1998 - 2008
Source: Compiled by UNCTAD Secretariat, on the basis of data supplied by Lloyd‟s Register -
Fairplay Figure 1: Age profile of the Malaysian Malaysian fleet
4
Figure 2: Age profile of world fleet, all vessel types Table 3: Age distribution of the world merchant fleet, by vessel type, as of 1 Jan 2009
Source: Compiled by UNCTAD secretariat on the basis of data supplied by Lloyd‟s Register –
Fairplay
5
* Vessels of 100 gross tons and above
Figure 3: Age profile of world fleet by 8 major vessel types 6
5. Health, safety, and environmental risks of ship recycling
There are two aspects to the ship recycling issue: (1) the environmental effect of dismantling hazardous material without pre-cleaning or containment, and (2) the occupational health and safety of workers performing the dismantling. Ship recycling can potentially cause serious long-term and irreversible harm to local environment and human health. Along with economically valuable materials like steel, old electrical items, machineries, furniture and plumbing, ship-recycling also generates massive quantitiess of hazardous and toxic substances like asbestos, polychlorinated biphenyls (PCBs), waste oils, Tributyltin compounds (TBTs), mercury, arsenic, and cadmium and metal paints. A Greenpeace study of major ship recycling yards in Asia found that levels of TBTs in the sediments at the Alang shipyard in India were 10 to 100 million times higher than internationally recognized limits. The same study revealed that five out of six soil samples taken from the workplace, living quarters and surrounding public areas, were contaminated with asbestos4. The release of these toxic substances exposes the workers to the risk of serious health hazards including cancer, neurological disorders, reproductive effects such as reduced birth weight and gestational age and is also likely to cause irreversible damage to the local environment5. The harmful consequences of ship recycling is accentuated in South Asia ship yards as the dismantling operations are carried out along the beaches, using the tidal waves to help break the hulls and wash away waste oils, and also by unskilled labourers with minimal training and protective gear. The official industry estimates that about 40-50 workers die from ship breaking activities per annum although some environmental groups claim that on average one shipyard worker dies each day6. 6. Governance of ship recycling (a) Voluntary guidelines
(i) UNEP Technical Guidelines for the environmentally sound management of the full and partial dismantling of ships
4
Judit Kanthak & Nityanand Jayaraman, Ships for Scrap III, Steel and Toxic Wastes for Asia: Findings of
a Greenpeace study on Workplace and Environmental Contamination in Alang-Sosiya Ship breaking Yards, Gujarat, India , Greenpeace Report 15 (2001), available at
http://www.ban.org/Library/ALANG%202000%20final.pdf 5 Matt Cohen, U.S. Shipbreaking Exports: Balancing Safe Disposal with Economic Realities , 28-SPG ENVIRONS ENVT‟L L & POL‟Y J. 237, 241 (2005) (citing U.S. Environmental Protection Agency, A Guide for Ship Scrappers, Tips for Regulatory Compliance, EPA 315-B-00-001, at 3-3 (April 2000) available at
http://www.epa.gov/oecaerth/resources/publications/civil/federal/shipscrapguide.pdf 6 Mitra, B (2005). Creative destruction: breaking ships, building the economy, cleaning the environment. Liberty Institute Working Paper, in association with the Danish Center for Political Studies (CEPOS), Copenhagen, 2005. Retrieved at http://www.policynetwork.net/es/environment/publication/creative-
destruction-breaking-ships-building-economy-cleaning-environmentLast accessed 4 June 2010 7
The guidelines seek to minimize or eliminate risks associated with ship dismantling by introducing universally applied principles for its environmentally sound management. They detail procedures and good practices for decommissioning and selling obsolete ships, dismantling them, sorting the parts (for reuse, recycling and disposal), identifying potential contaminants, preventing toxic releases, monitoring environmental impacts, and responding to emergencies and accidents. They also address the design, construction and operation of ship dismantling facilities. (ii) ILO Guidelines on safety and health in shipbreaking The growing concerns on the health and safety of workers in the booming ship breaking industry in Asia saw the development of the International Labor Organization (ILO) guidelines which seeks to facilitate the occupational health and safety aspect of the industry. This guideline seeks to address issues pertaining to the protection of workers from occupational hazards in addition to securing workers health and also assist and facilitate management to such extents. The Regulation lays down sets of responsibilities encompassing national institutions, labor inspectors, employers and employees involved in this industry. National institutions are encouraged to be identified in holding the responsibility to facilitate and manage implementation of relevant policies, the development and implementation of OHS relevant laws which are compatible with existing domestic and international obligations. Labor Inspectors engaged under such national institutions are encouraged to conduct inspections at employment sites to ensure standards established are maintained. Ideally, employers are required to ensure workers have safe and healthy working and living environment. Workers on the other hand are provided with a set of recommended responsibilities and rights while in the course of employment. Obligations include avoiding acts or omissions as well as situations which could expose health and safety risks to them and others, reporting employment hazards to employer, representative or responsible authority, and avoiding the use of unauthorized equipment. This instrument also recognizes the importance of employees in being represented. In essence, the regulations cover the operational planning and management of occupational safety measures, providing for the requirement of reporting and recording of incidents relating to work health and safety and the provision of occupational health services. In regulating for the safe execution of ship recycling operations, the guidelines include provisions on safe ship breaking operational planning, protective and preventive measures, measures dealing with hazardous substances, physical hazard as well as psychological hazards. Issues on emergency preparedness, worker competency, equipment and tool safety, and personal safety equipment management are also addressed. Interestingly, this 8
guideline goes so far as to account for social and welfare issues such as living accommodations, drinking water, as well as social and employment insurance. The comprehensiveness of this guideline is appreciable, however, its classification as a framework instrument of persuasive nature gives no „bite‟ and thus depends upon the voluntariness of nations to adopt such measures. As the guidelines seek to target developing nations, the provision of this instrument with lacking options on funding poses as a challenge in securing political will. (iii) United Nations Environment Programme, Guidelines for the Environmentally Sound management of Full and Partial Dismantling of Ships, Technical Working Group of the Basel Convention (2002)7 The guidelines address the need for „clean‟ ship design practices in the
construction of new vessels and the issue of ship dismantling and hazardous wastes. It sets forth „good practices‟ which specify three stages involving a seven-step process in the decommissioning of a ship for disposal. Good practices also require a hazardous materials inventory which identifies and documents the location and quantity of all hazardous and potentially polluting materials before any work is undertaken. The technical guidelines are detail and provides for a sequential process that should be followed in ship dismantling and the type of facilities needed. (iv) International Maritime Organisation (IMO) Guidelines on Ship Recycling (A.962) The IMO instituted a set of voluntary guidelines aimed at improving the ship disposal process in December 2003. Known as the IMO Guidelines on Ship Recycling, it adopts a „Green Passport‟ approach to ship breaking. It envisage d that this Green Passport, a document containing an inventory of all materials potentially hazardous to human health or the environment, used in the construction of a ship would accompany the ship throughout its working life. It also encourages shipbuilders and designers to use alternatives to hazardous materials in designing their ships. Owners of existing ships are directed to develop a „Ship Recycling Plan‟ which would include the identification of suitable recycling facilities under IMO guidelines. However, the voluntary character and the lack of enforcement mechanisms have seriously inhibited the potential of these guidelines as an effective instrument of regulation over the ship-breaking industry. (v) Baltic and Internationals Maritime Council (BIMCO) Guidelines on Transitional Measures for Ship-owners8 7
Glisson, LM. & Sink, HL. (2006). Maritime Shipbreaking: law and Policy Part III. Journal of Transportation Law, Logistics, and Policy . (2006). Vol. 73, Issue 4. Pages 463-483 9
In light of furthering the spirit of the Hong Kong Convention which strives to strike a balance between the principle of grounded ship recycling and the occupational safety and health, and environmental costs, a transitional set of guidelines have been developed to facilitate the sale of ships for recycling. These guidelines have received support from numerous nation‟s ship owner
associations among others that of Australia, India, Hong Kong, Singapore, the United Kingdom, the United States, Canada, Italy, and Japan. These guidelines cover the obligations arising under the Hong Kong Convention with respect to ship owners and cash buyers. Obligations of ship owners include the establishment of an inventory of hazardous substances and the selection of a reasonably competent recycling facility. The cash buyer is deemed to be treated in most instances as a ship owner however, under some circumstances they hold more responsibility since these guidelines seem to equate cash buyers as “agents” of ship recycling and are thus expected to provide reliable source of information and guidance on ship recycling. Interestingly, it may be said that these guidelines seem to impose further undertakings upon ship owners by addressing the need for pre-cleaning of ships prior to their sale to recycling facilities thus indicating the shipping industry‟s initiative in internalizing some of the environmental costs. (vi) ISO 30002:2010 on Ships and Marine Technology – Guidelines for selection of Ship Recyclers (and proforma contract) This document provides guidance for shipowners to follow when selecting a ship recycling facility. In order to ensure that vessels are recycled as far as po ssible in a safe and environmentally sound manner, shipowners should carefully consider facilities to which they wish to sell their ships, and it is therefore important that these facilities provide certain objective information to assist in this selection process. Facilities that are unwilling to provide this information on request by the shipowner should therefore not be considered. Since the shipowner may not be able to verify the information given it is the sole responsibility of the facility to ensure that it is correct. However, it is important that shipowners are critical in their consideration of any such information, and facilities which publish obviously false information, or where other data makes it obvious that the information supplied does not reflect reality, then a shipowner should not consider the facility in question for ship recycling. This document applies to the process of selecting ship recycling facility and the use of pro forma contract only and does not consider other aspects of ship recycling. Such aspects are covered by other standards of the ISO 30000 series. This document is applicable to any shipowner 8
“In Preparation for the entry into force of the IMO H ong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships BIMCO” 2009 edition
10
who wishes to: a) select a ship recycling facility in order to carry out safe and environmentally sound ship recycling, b) demonstrate conformity with the standard of the ISO 30000 series, c) assure itself that the ship recycling facility chosen is in conformity with the ISO 30000 series. This document is intended to be used by shipowners when selecting a ship recycling facility as guidelines only. (vii) Others The following voluntary strategies and guidelines are discussed in the Ship recycling perspectives and practices section of this report. EU Strategy for better ship dismantling UK Ship Recycling Strategy (b) Legal Regime
(i) The Basel Convention on the Control of Transboundary Movement of Hazardous Waste and Their Disposal 19899 The Basel Convention imposes an obligation of „due diligence‟ on all parities. All parties are required to provide information about a proposed transboundary 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 ship-breaking country. Three elements are crucial for the application of the Basel Convention: (1) proof that the hazardous waste will be dealt with in a sound manner in the ship recycling state; (2) the legal recognition that ship are waste; (3) an established „intention to discard‟ by the owner of the ship. The Basel Convention at its Open Ended Working Group has noted that a ship may become waste, in accordance with Article 2 and that 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 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 recycling is debatable. At the time when the Convention was set up the issue of ship recycling was not a problem. (ii) The Stockholm Convention on Persistent Organic Pollutants 200110 The Stockholm Convention is designed to end the production and use of a class of the world‟s most poisonous chemical known as persistent organic pollutants 9
Bhattacharjee S (2009) Bhattacharjee S (2009)
10
11
(POPs). This Convention is relevant for the purposes of regulation of shipbreaking as PCBs, one of the toxic materials generated while scrapping a ship, are included in the list of prohibited POPs under the Convention. Therefore, Article 3(2) of the Convention, which specifically limits the import and export of PCBs unless environmentally sound disposal and use are provided for, could arguably be used to limit export of end-of-life ships. Further the Convention also bans disposal operations that may lead to recovery, recycling, reclamation, direct reuse or alternative uses of POPs. It is argued that due to the strong likelihood of generation of PCBs in ship-breaking, exports of ships for ship-breaking operations would be covered by these prohibitions. However, its potential for regulating ship recycling would be limited as a result of its primary concern being only PCBs and not ship recycling issues. Lastly, it also lacks the institutional mechanism equipped to deal with the specific features of international end-of-life ship trade. (iii) The Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships 2009 Growing concerns on the inadequacy within the Basel Convention (BC) and the numerous non-mandatory guidelines in environmental and health safety to regulate the ship recycling industry spurred the initiative in developing an international regulatory regime. The Hong Kong Convention was developed to regulate the safe and environmentally sound recycling of ships in order to prevent, reduce, minimize and, to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by this activity and enhance ship safety, protection of human health and the environment throughout a ship‟s operating life. 11 The Convention not only acknowledges but also seeks to promote by virtue of its preamble, principles of sustainable development, substitution and precaution. The Hong Kong Convention applies to State Party flagged ships 12 which are over 500 gt and ship recycling facilities under state party jurisdiction. It is to be noted that this Convention excludes applicability upon non-commercial governmental ships, navy ships as well as ships traversing within domestic waters but nevertheless recommends adoption of consistent measures. This Convention goes further in expressing that States party to this instrument are to avoid from providing more favourable treatment to non State parties thus indicating application of similar standards when dealing with the latter. In essence, targeted entities under this Convention include:11 12
This is expressed in Article 1 and Preamble to Hong Kong Convention
Article 2.7 Hong Kong Convention ““Ship” means a vessel of any type whatsoever operating or having
operated in the marine environment and includes submersibles, floating craft, floating platforms, self elevating platforms, Floating Storage Units (FSUs), and Floating Production St orage and Offloading Units (FPSOs), including a vessel stripped of equipment or b eing towed.”
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(a) ship equipment and parts manufacturers- in identifying and disclosing substance content of the equipment and parts; (b) ship builders- identifying and disclosing substance composition of the ship (c) ship yards- identifying and disclosing installations and substances used, (d) ship owners- maintaining inventory (e) ship recycling facility- regulations in conducting environmentally sound management, recycling plan (f) flag states- enforce certification regulations (g) recycling state- facilitate and authorize recycling facility (h) port states- inspection of certificates The Hong Kong Convention comprises 21 Articles which are procedural in nature, 25 regulatory provisions and 7 Appendices. Six voluntary guidelines are currently being developed to provide clarifications, interpretations, and uniform procedures for technical issues arising from the provisions of the Convention. Three mechanisms are present in facilitating the safe and sound recycling of ships namely: I.
Regulating the requirements for ships The provisions of this convention take a comprehensive approach by adopting a cradle-to-grave regulatory mechanism accoun ting for the entire life cycle of a ship. This is done by regulating the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound recycling without compromising their safety and operational efficiency. Both flag and port state parties are obliged to conform by prohibiting and restricting use and installation of hazardous materials listed in Appendix 1 to the Convention on ships flying their flags or whilst in their ports, shipyards, ship repair yards or offshore terminals respectively. An inventory mechanism identical to the “green passport” concept introduced
by the shipping industry is the fundamental feature of control and regulation. The duty lies with each ship owner to establish and maintain an inventory containing a list of hazardous materials onboard, and this list is to subsist throughout the operating life of the ship. 13 While this requirement is mandatory for new ships upon commencing its operational life, older vessels are given a grace period of 5 years to take effective measures. 14
13 14
Regulation 5 Hong Kong Convention Id 13
Appendix 1 of the Hong Kong Convention designates the following materials as hazardous and stipulates its control measures. Hazardous Material
Asbestos Ozone-depleting substances Polychlorinated biphenyls (PCB) Anti-fouling compounds and systems (AFS)
II.
Control measures
New installation of materials which contain asbestos shall be prohibited. New installations which contain ozone-depleting substances shall be prohibited on all ships, except that new installations containing hydro chlorofluorocarbons (HCHCs) are permitted until 1 J anuary 2020. For all ships, new installation of materials which contain Polychlorinated biphenyls shall be prohibited 1. No ship may apply anti-fouling systems containing organotin compounds as a biocide or any other anti-fouling system whose application or use is prohibited by the AFS Convention 2. No new ships or new installations on ships shall apply or employ anti-fouling compounds or systems in a manner inconsistent with the AFS Convention.
Regulating the requirements and obligations for ship recycling facilities From this regulatory perspective, each host state of such services is obligated to grant prior authorization to such facilities to the extent that the recycling facilities are in compliance with the Regulations (Art. 6). Such authorization is to remain for a period not exceeding 5 years. Ships accepted for recycling should comply with the Convention and attain prior authorization for such purpose. The ship recycling facility will then need to prepare a ship specific recycling plan corresponding to the ship‟s certificate of hazardous substances. These plans which contain information on measures that will be employed in the recycling activity have to be either authorized or acknowledged by the recycling state authority and upon such approval, communication is to be transmitted to the flag state, ship owner and the recycling state. This ship recycling plan is instrumental under this regulation in enabling flag states to certify the ships as „ready for recycling‟ upon which the ship owner may send the ship to the recycling facility in question. The facility is also required to develop and implement a Ship Recycling Facility Plan (SRFP) that covers: worker safety and training; protection of human health and the environment; roles and responsibilities of personnel; emergency preparedness and response; and systems for monitoring, reporting and record-keeping. Reg.9 of the Annex to the Convention requires ship recycling yards to provide a ship recycling plan for respective ships specifying the manner in which the ship would be recycled corresponding to the ships profile and inventory. Parties are required to adhere to the provisions by ensuring and taking effective measures in complying with the Convention.
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III.
Enforcement through the regulation of survey, certification, reporting requirements, and inspection, investigation and detentions Part C of the Regulations further subjects the ships to surveys and certification. Surveys The first form of survey corresponds to the verification that the contents of the International Certificate on Inventory of Hazardous Materials (ICIHM) are in compliance with the Convention. Such surveys are to be conducted at multiple stages, namely, at an initial stage before the ship is put to service or before the ICIHM is issued; at a renewal stage not exceeding 5 years; at any interval be conducted in general or in part according to circumstances which may be made by a ship owner after the ship has undergone some form of work (i.e., change, repair, etc) (Reg 10); and at a final stage prior to the end of the operational life and recycling of a vessel. The final stage survey also serves the purpose of verifying the fact that the recycling plan corresponds to the information provided in the inventory and that the ship recycling facility in question holds a valid authorization as per the Convention. Surveys may also be conducted under Reg.10 for the purpose of enforcement by requiring ships to comply with the provisions of the convention. These surveys may be conducted at the request o f port states. Reporting Both, ship owners and recycling facilities are required under the Convention to inform their respective states of their intention to engage in ship recycling, thus enabling the flag state country to conduct a survey of the ship corresponding to the recycling plan and issue the Ready to Recycle Certificate (RRC). The convention imposes further obligation of reporting on the recycling facility in three instances; firstly, notification to the state authority upon preparation o f receiving a ship, notification on the planned start date upon the ships receipt of the RRC, and a submission of a statement of completion upon the end of the recycling activity. In addition, Art. 12 of the Convention requires parties to report a list of authorized recycling facilities, annual lists of ships that are recycled or deregistered to be recycled, and information on violations of the Convention and corresponding actions to the IMO.
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Inspection, Investigation, and Detention Article 8 to Article 10 of the Hong Kong Convention provides several enforcement mechanisms ranging from inspection and investigations to detentions. Although port states are given the power to inspect ships in ports and offshore terminals by virtue of Article 8 of the Convention, this power is arguably limited in scope to verifying the presence of a International Certificate on Inventory of Hazardous Materials (ICIHM).
7. Ship recycling perspectives and practices
There are two possible routes which ship owners might take when selling a ship for scrapping: either to contact recycling facilities directly or to use the services of a cash buyer. Selling directly to a recycling facility is likely to be an option for larger shipping companies that have a sizable amount of obsolete tonnage to be recycled and sufficient in-house capacity to deal with a rather complex process and having in depth knowledge of the recycling market. The majority of ship owners sell end-of-life ships to cash buyers who purchase the vessel either during its final voyage or at the point of handing over to the recycling facility. Cash buyers usually have considerable knowledge of the recycling industry and their familiarity with recycling facilities increases the likelihood of their finding a suitable yard. Ship owners or cash buyers selling end-of-life ships to ship scrapping facilities, have a choice of the „green passport‟ option or the „money -making‟ option. The former involves the need to pay for a survey, an inventory of hazardous materials and a recycling certificate before a ship can be accepted for recycling in an approved yard. The latter is when a ship is sold to be demolished or beached at the yards in India, Bangladesh, or Pakistan. Owners who choose the more profitable option could sell their ships for up to a third more than what an approved ship recycling facility would offer. Europe Europe‟s recycling yards are seen as one of the weakest links in the global ship recycling industry. Of the 400 – 600 ships that were scrapped annually during the past five years,
industry figures show that almost 80% went to yards in India, Pakistan and B angladesh. The main reason is due to economics; labour costs and expensive infrastructure, as well as stringent conformity with pre-cleaning policies and hazardous materials inventories, make recycling at European yards, more expensive compared to South Asia yards. Recycling at European yards is done in an environmentally sound fashion and the industry complies with mandatory rules and regulations which include a minimum wage and requirement for all workers to be registered for social security reasons. There is a combination of semi-skilled and skilled labour employed, which includes specialized workers with special licensing, such as crane operators and hazardous material removal experts. There are also significant 16
investment and maintenance costs associated with both fixed/ mobile infrastructure/ equipment for the safety of hazardous materials. The EU waste shipment regulation applies to all ships defined as "waste" under the EU waste framework directive to mean when its holder discards or intends or required to discard the ship. With regard to recycling facilities, EU waste legislation covers the management of waste at all stages at all types of facilities thus even including interim operations, during the entire period of shipment. Should an end-of-life ship contain hazardous substances listed in Annex V of the regulation (e.g., asbestos or PCBs), it is likely to fall within the scope of the export ban. On the contrary, non hazardous waste would be allowed for export purposes if the facility of destination is capable of and compliant with environmentally sound management of waste, and practices good human health and environmental standards broadly similar to that in the EU. The regulation, directly applicable in member states, requires them to take necessary measures to ensure that the regulation is enforced, includes the setting of penalties which are effective, proportionate and dissuasive. Member states must provide, inter alia, for inspections of establishments and undertakings in accordance with the Waste Framework Directive, spot checks on shipments of waste or on related recovery or disposal, and also the facilitating of the prevention and detection of unlawful shipments. Member states are required to designate the competent authority or authorities responsible for the implementation of this regulation and identify the permanent staff and focal points responsible for cooperation and physical checks. Nevertheless, problems have been identified in enforcing the regulation upon ships that are rendered waste outside European water. Uncertainty has also arisen within national authorities on regulating and enforcing shipment waste regulations on suspected end of life ships. In addition to the EU Waste Shipment Regulation, the EU has also adopted a community strategy15 aimed at elevating occupational and environmental safety of ship recycling activities. In recognizing the fact that many EU decommissioned ships end up on South Asian beaches for dismantling coupled with the knowledge that sound environmental and health safety regulatory regimes are absent, the strategy intends to put into place measures aimed to improve current standards particularly for applicability during the interim period prior to the Hong Kong Convention coming into force. The measures include:16 preparations to introduce measures on key elements of the new IMO convention, in particular concerning surveys, certification and the inventory of hazardous materials present on board ships; 15
” Summaries of EU Legislation “A Better Strategy f or Ship Dismantling Practises” ( 05/05/2009) Available
at: http://europa.eu/legislation_summaries/environment/waste_management/ev0011_en.htm last accessed: 15/09/2010 16
Commission of the European Communities (2008). An EU Strategy for Better Ship Dismantling:
Communication from the Commission to the European Parliament, the Council. The European Social and Economic Committee and the Committee of the Regions , COM (2008), 767 final. Retrieved at
http://ec.europa.eu/environment/waste/ships/pdf/com_2008)767.pdf Last Accessed: 15/06/2010 17
encouraging voluntary industry action through various measures, such as awards for exemplary “green” recycling activities, the publication of guidelines and a list of “clean” dismantling facilities. providing technical assistance and support to developing countries for training programmes in safety and the establishment of basic infrastructure for environmental and health protection; improving the application of current rules on waste shipments by intensifying controls in European ports, enhancing cooperation and exchange of information between European authorities and the establishment of a list of ships ready for scrapping. Acknowledging the potential gaps in the Hong Kong Convention, the strategy proposes that the Commission examine the feasibility of the following measures: develop a system for auditing and certification of ship recycling facilities worldwide and evaluate how EU ships might be encouraged to use this scheme; ensure that warships and other government vessels which do not come un der the scope of the convention be subject to Community rules for their “clean” dismantling; establish a mandatory international funding system for “clean” ship dismantling. United Kingdom17
The UK government initiative in regulating the ship recycling activity led to the adoption of the national Ship Recycling Strategy in 2007 which is to apply to all ships above 500 gt comprising government or governmental agencies‟ ships and also UK flagged commercial ships except for those exempted. The UK initiative strives to develop a strategic approach for the recycling of all UK flagged ships consistent with the UK‟s national and international sustainable development commitments. In so doing, the strategy hopes to encourage the development of capacity of recycling ships in an environmentally sound way. The UK government has also adopted a policy for its governmental vessels. In the event of a sale of a government ship, the seller is to conduct an assessment on the condition of the vessel and if deemed suitable, the ship is to be sent for recycling. If the ship is slated for sale instead, a set of provisions will be negotiated for inclusion pertaining to the new owner‟s responsibility upon the end of the ships life. This responsibility is based upon policy that government would adopt in dealing with their own ships. Provisions which will be included: ensuring that the vessel‟s Green Passport is updated throughout the remainder of its
service and passed to the recycling facility; disposal of the ship has to be with the prior written consent of the Government
17
This section provides a brief su mmary of “The UK National Strategy”
18
demonstrating that the vessel will be recycled in accordance with all applicable legislation, and with reference to the IMO and Basel Guidelines on ship recycling and dismantling respectively ensuring that the selected recycling facility conforms with acceptable health, safety and environmental standards. In the event of a breach of obligation by the new owner, the government will review the matter on a case by case basis in determining its possible recourse. Where a government vessel is to be recycled, the contract would be tend ered to an OECD 18 country and minimum environmental, health and safety standards would be stipulated. If a ship is to be exported, the principles of prior informed consent and environmentally sound management are to be adhered to. As The UK is a party to the EC, the EC Regulations adopting the Basel and Basel Ban regulations are applicable and the Strategy is aligned to this extent. Thus all export and import of recycling bound ships are rendered „waste‟ as per the Basel Convention and the ships will have to conform to the green passport requirement, requirements of notification, ban on export of hazardous waste (ship) to non OECD countries. In addition to pre-existing legislations, the UK government recommends the application of the IMO guidelines by ship owners in every stage of a ship‟s life cycle namely in considering design of ships and ships‟ equipment to facilitate recycling
inventory of hazardous materials onboard and preparation of a Green Passport (for new builds and existing ships); selection of a recycling facility which practices reasonable standards preparation of a ship recycling plan pre-decontamination gas freeing Ship owners are encouraged to ensure their practices correspond to this strategy in preparation of the Hong Kong Convention.
18
Countries party to the Convention on the Organisation for Economic Co-operation and Development (OECD) Australia, Austria, Belgium, Canada, Chile, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, J apan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovak R epublic, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom, and United States. – OECD website available at http://www.oecd.org/document/58/0,3343,en_2649_201185_1889402_1_1_1_1,00.html Last Accessed: 15/10/2010
19
The Strategy also sets out a set of recommendations for recycling facilities whereby interested ship recyclers in the UK are encou raged to consult the Defra guidance „An Overview of the Ship Recycling Process in the UK‟ in addition to engaging with relevant regulators at an early stage. The Strategy also seeks to boost capacity and develop the information base of ship recycling activities and welcomes the establishments of joint working groups. In addition to providing for a national recycling strategy for ships, mechanisms were implemented in 2003 for the sound placement of an end of life vessel on the sea bed off the UK coast. The National Maritime Authority, the purchaser of end-of-life ships is required to apply for a licence under the Food and Environment Protection Act 1995 (as amended) to undertake the deposit of the fully cleaned vessel on the seabed and the Licence granted by the Marine Consents & Environment Branch of the Department of Environment, Food and Rural Affairs (Defra) in 2003 as the regulator for this activity. 19 The terms of the licence stipulated provisions for the pre-cleaning, placement and subsequent monitoring of the vessel.20 The requirements of the Licence include: 21 full stripping and cleaning of the vessel in accordance with the licence issued by Defra; Licence Holder to provide the Licensing Authority with recognised certification that the vessel was, immediately prior to its placement, free from asbestos, PCBs, ammunitions, radioactive materials, refrigerants and halons; Licence Holder to allow a final inspection and certification of „fitness for placement‟ by appointed environmental inspectors; vessel be monitored for a period of ten years beginning on the first day on which the vessel was placed on the seabed; sufficient funding be available for appropriate remedial action should evidence arise of any significant adverse environmental effects on the marine environment or the living resources it supports as a result of placement of the vessel. China 22
19
OEWG-V/8: Environmentally sound management of ship dismantling „Information on pre-cleaning and
decontamination‟ Submitted by United Kingdom 20
Id. The licence was created in accordance with g uidance set out in the Convention on the Prevention of
Marine Pollution by Dumping Wastes and Other Matter (the London Convention 1972): London Convention Waste-Specific Guidelines for Assessment of Vessels. 21
Supra 17. Other authorisation included approval from the Department for Transport, under the Coast Protection Act 1949, and agreement from the Crown Estate Commissioners as the owner of the seabed; the conduct of an Environmental Impact Assessment that examined the environmental conditions at the placement area. This assessed the likely impact on marine life due to the shifting nature of the seabed. 20
More than 50 ship recycling yards exist in China. Large, ocean-going vessels are handled in the two major ship dismantling regions of China of the Pearl River Delta and Yangtze River Delta. Smaller yards, located along rivers, are responsible for disposing of fresh water ships. The total ship dismantling capacity is currently between 3 - 3.5 million LDT a year. Many ship recycling yards such as the Zhongxin and Shuangshui yards in Jiangmen, and the Xiagang Changjiang yard in Jiangsu province have obtained international certification for Environmental Management –ISO 14001 and for Occupational Health Safety Management – OHS18001. These major yards have mastered the technology to dismantle all t ypes of ships with the exception of nuclear-powered vessels. The China shipping recycling industry has invested greatly in environmental and safety protection as well as in employees‟ health and safety. The yards properly treat the ballast and bilge waters from the ships at waste water disposal centers. Asbestos, PCBs and other hazardous materials are transferred to qualified subcontractors for further treatment and disposal Workers in the industry are said to maintain a high level of proficiency through good, ongoing training. Safety, health, and insurance are well covered for them as are labor rights. Some technologies of ship recycling have reached advanced levels in the world, such as the facility for dealing w ith waste water at Zhongxin‟s yard, and the treatment of asbestos in the Changjiang yard. The advanced ship dismantling yards in China are developing and applying new technologies for environmental protection such as Rough Paint Treatment (RPT) for ships‟ plates facility now installed at Zhongxin. The cooperation between Holland P&O Nedlloyd and Chinese Changjiang Ship recycling Yard is a model solution to resolve the issues arising from shiprecycling. From 2000 to 2 006, a total of 21 retired ships from P&O Nedlloyd were dismantled in the Changjiang yard in a „green‟ manner. Resulting pollution levels are greatly reduced and the workers enjoy healthy and safe working conditions. The China National Ship recycling Association (CNSA) was established in 1991. Under the guidance of the government, the aim is to harmonize the technical development of the industry and promote the growth of associated companies.
22
“ Present Situation and Future D evelopment of the Ship Recycling Industry in China‟ power p oint
presentation by Mr. Xie Dehua Executive vice-chairman & Secretary-general of China National Ship recycling Association; June 6, 2007 Hong Kong, China http://www.google.com.my/url?sa=t&source=web&cd=1&ved=0CBcQFjAA&url=https%3A%2F%2Fwww.bi mco.org%2Fsitecore%2Fshell%2FControls%2FRich%2520Text%2520Editor%2F~%2Fmedia%2F85FFC 57576924EEE90F65E9E5B7F1165.ashx&ei=5RK8TIXtAsyXcavxxLYB&usg=AFQjCNEN3JsaTR3wUDoz oCsaL4OLUC0Lyg Last Accessed: 18/10/2010
21
The Regulation of Environmental Protection for Ship recycling in China was adopted in 1988, requiring all ship yards to pass an environmental assessment in addition to scheduled and random inspections and annual licensing renewal by local governmental authorities. China brought forward “The Recycle Economy Law (draft)”, which gives preferential tax
treatment to the companies which utilize resources most effectively. The government encourages companies to use advanced technologies, to save energy and resources and to reduce pollution. Quality supervisory measures were also introduced to facilitate equipment management. Maritime affairs management was established to manage the surface and underwater operations involved in ship dismantling, such as oil cleaning, explosion detection, and cutting. Security supervision was also put in place to establish the system of security and emergency management; to carry out periodic and random spot inspections. A Green ship recycling general regulation was introduced and came into force in 2005. This regulation is said to reflect the concept of security and environmental protection in ship recycling industry, bring forward the technology and the management regulation as the basic standard for Chinese ship recycling companies. Basic requirements under this regulation include the control of water pollution during ship dismantling the control of air pollution during ship dismantling the control of noise during ship dismantling safety requirements during dismantling basic requirements for health of employees special requirement for health of workers who work with asbestos. special requirements for health of personnel who eng ages in cutting and hot work. Aacident prevention and response measures in emergencies „Green‟ ship dismantling management re certification of „green‟ ship dismantling companies South Asia
India, Pakistan and Bangladesh accounted for more than 80% (in terms of tonnage) of the larger end-of-life ships that were globally dismantled between 2004 and 200823. Availability of cheap and surplus labour, rudimentary environmental and labour standards and their modest implementation, huge domestic market for scrap steel, and topography suitable for simple beaching operations have lent a decisive competitive edge to ship-breakers in these countries24. The ship recycling industry provides valuable materials like steel to these 23
Commission of the European Communities, An EU Strategy for Better Ship Dismantling: Communication from the Commission to the European Parliament, the Council, the European Social and Economic Committee and the Committee of the Regions, COM (2008) 767 final, (Nov. 2008), available at: http://ec.europa.eu/environment/waste/ships/pdf/com_2008)767.pdf 24 International Federation for Human Rights (FIDH), Where do the „floating dustbins‟ end up? Labour rights in ship breaking yards in South Asia: the cases of Chittagong (Bangladesh) and Alang ( India), 4 (Dec 2002), available at: http://www.fidh.org/IMG/pdf/bd1112a.pdf Last Accessed: 17/06/2010 22
economies at relatively cheaper price. Ship breaking yards in Alang, India, contribute an estimated 15% of the total steel output of the country. Similarly, Bangladesh which lacks any significant domestic iron output relies heavily on ship breaking to supply steel to its factories. In addition, millions of jobs are generated through ship breaking operations. More than 40,000 workers are directly employed by the Alang yards, and another million workers are dependent for their survival on the secondary industries that have sprung up from shipbreaking in India. Ship-breaking is not considered to be a regulated industry in Bangladesh25. Both Bangladesh and India are making efforts to make ship-breaking safer and greener. However, environmental, health and safety standards are issues directly linked with the level of economic development, as such, it is unrealistic to expect developing countries to match the high standards for environment, health and safety of developed countries. Mitra (2005) argues that the attempt to impose standards of developed nations on workers and industries located at developing countries only serve the interest of the former at the cost of the latter and such approach would lead to economic inefficiencies, prevent technological innovation and mask the unseen costs borne by poor countries. Bangladesh
Ship breaking activity in Bangladesh is concentrated in Sitakund (Bhatiary to Barwalia), just north of Chittagong city on the Bay of Bengal. It is of key significance from an economical point of view in providing a source of employment. Nevertheless, the large scale activity is yet to be recognized as an industry and thus remains unregulated at large thus posing problems at multiple levels. The breaking activity takes place along the muddy beaches where no specific equipment is used but for hand tools and brutal force. Employment functions without appointment letters and unions are disallowed making it difficult to advocate workers rights. 26 The Labor Law Act 2006 has provisions on working conditions, health and compensation mechanisms but was deemed ineffective in enforcement and compliance due to lack of political will and resources27. The Ministry of Labour and Employment has initiated the Safe and Environment Friendly Ship Recycling project, with the support of the United Nations Development Programme (UNDP) and the International Labour Organisation (ILO). However, the effects have yet to be seen. 28 A high court directive in 2009 led the Commerce Ministry to incorporate a condition in its Import Policy Order 2009-2012, which requires an exporter of a vessel to submit a pre25
G. Feringa (2005). Ship Recycling in Bangladesh – Findings of Baseline Survey. Draft report to the ILO . (2005) 26 Young Power in Social Action (YPSA) Ship Breaking in Bangladesh „ Environmental pollution‟ http://www.shipbreakingbd.info/Environment.html Accessed on 17/09/2010 27
28
Ship Breaking in Bangladesh http://www.shipbreakingbd.info/Environment.html ID 23
cleaning certificate from the country of origin stating that the ship was cleaned before exportation.29 However, such regulatory regime was short lived as, in early 2010, due to repercussions of the directive resulting in the sky rocketing of steel prices and economic implications, the Bangladesh government amended the position to no longer requiring documentation certifying to xic free status of ships bound to the country for recycling. 30 India
India is one of the dominant players in the ship recycling industry which is actively carried out in Alang, Gujarat. It has been reported that almost 40% of old ships are broken in India. 31 The Government of India has recognized ship breaking an industry and in recent years two regulatory regimes have been introduced namely the Supreme Court directive, and the 2006 Regulations. 32 The Judgment of the Supreme Court of India regarding ship recycling in September 2007, 33 provided some framework on the regulating of the activity. Key aspects addressed include the procedure for anchoring, the requirement for physical verification of the hazardous substances by ensuring „Gas Free‟ conditions and Fit for „Hot Work‟ conditions and prior removal of radioactive substance. Procedure for ship dismantling was also identified by the court to require authorization and approval of a Recycling Facility Management Plan by the State Pollution Control Agency followed by approval of a dismantling plan by the State Maritime Authority. The Government of India was also recommended to prepare a comprehensive framework incorporating the above procedures. A new policy governing the Ship Recycling industry in Alang is the Gujerat Maritime Board (GMB) Ship Recycling Regulation 2006 which was adopted in 2008. These regulations mainly facilitate the authorization and the granting of „permission‟ in operating a ship
29
Gurumia.com „Critics blast Bangladesh‟s ship-breaking law move:Bangladesh climbdown over toxic
ship‟ Available at: shttp://gurumia.com/2010/04/13/critics-blast-bangladeshs-ship-breaking-law-move/ Last Accessed15 September 2010 30 31
Id Martin, Andrew “Ship Breaking in the Beach of Doom” Direct Action available at
http://directaction.org.au/issue6/ship_breaking_on_the_beach_of_doom Last Accessed : 20/09/2010 32 Ship Recycling in India: compliance with the IMO convention available at http://webcache.googleusercontent.com/search?q=cache:8vxJlAHHg-cJ:shimizukazumichi.com/source/sr_symposium2010/05forum2_mr_%2520ajoy_%2520chatterjee.pdf+alang+recycling+regulations&cd=8&hl=en&ct=clnk&gl=my Other regulatory mechanisms can be found in the provisions of other domestic legislation such as Air (Prevention & Control of Pollution) Act, Water (Prevention & Control of Pollution) Act, Factory Act f or Safety and Health related aspects, Explosive Act f or Gas Free for Hot W ork Conditions, AERB Rules for Management of Radio Active Wastes, W orkers Compensation Act and Labor Laws 33
Research Foundation of Science vs. Union of India & An or. Indian Supreme Court Order of 6 September 2007,Available at http://judis.nic.in/supremecourt/qrydisp.aspx?filename=29507 Last accessed: 17 September 2010 24
recycling „plot‟ (facility). 34 In addition, Schedule V of the Regulations stipulate inter alia the
requirements that works to be employed ought to have attained basic training and hold relevant certificates which is received from a recognized institution, ship recyclers have to adopt technologically savvy methods and equipment in executing the activity, penalty is imposed upon the casualty of workers, and requiring the employers to provide housing within a specific time. 35 In addressing the issue of waste management, a Hazardous Waste Management System developed by GMB operated by M/s Gujarat Environment Protection Infrastructure Ltd (GEPIL) is entrusted to manage such waste by providing land fill sites for disposal of asbestos & glass wool waste and hazardous wastes established compliant with legislative requirement of construction aspects of land fill and operational aspect under the frame work of Central Pollution Control Board Criteria. 36 A Safety Training and Labour Welfare Institute is also present in Alang which conducts various class room training of labors of various jobs of ship recycling on safety and waste management, and different displays posters & pictures communicating safety priority messages. 37 Furthermore, ship yards in Alang provide ship owners with opportunities of conducting independent inspections to determine compatibility of the facility with green recycling methods and standards of worker safety and health. 38 Non-governmental Organisations
While developed nations continue to enhance ship recycling standards and developing nations which dominate the industry receive immense criticism, international regulations and guidelines continue to affirm and reinstate the former conveniently disregarding the difficulties and challenges faced by the latter nations. As important as regulations are the provision of adequate funding mechanism is essential to render the implementation and enforcement effective.
34
Gujerat Maritime Board 2006 Ship Recycling Regulations available at http://www.google.com.my/url?sa=t&source=web&cd=2&ved=0CCAQFjAB&url=http%3A%2F%2Fwww.sri aindia.com%2Fimages%2FNew%2520Policy%2520GMB.doc&rct=j&q=ship%20recycling%20regulations %202006%20india%20gujerat&ei=YN3pTOG3L5PsvQO24f3CCA&usg=AFQjCNHs4Hkz0NISNDPMEicm LPOUR_niyw Last Accessed: 19 September2010 35 ID. 36
Gujerat Maritime Board „Visit of IMO to Alang‟ available at
http://gmbports.org/showpage.aspx?contentid=1462 Last Accessed: 19 September 2010 37 ID. 38 „Ship Recycling in India- Myth vs. Fact‟ available at http://webcache.googleusercontent.com/search?q=cache:JkRAotfG_44J:www.gmsinc.net/gms/news/ship -recycling-in-india.pdf+indian+caselaw+and+guidelines+for+ship+recycling+facilities&hl=en&gl=my : Last Accessed 22 September 2010; STOLT Neilson sent their own inspectors and upon vetting several yards at Alang and being satisfied with standards implemented, ships were sold to India for recycling. 25
Such initiative corresponding to the issue of funding was visited by „Greenpeace‟ in 2003 which led to the publication of the „Ship Recycling Fund - Matching Corporate Responsibility with Shipping Practice‟ 39 report.
The report not only highlights the ability of the industry to bear financial costs arising from the safe handling of end-of-life ships, but also goes further in depicting the nature of the costs which are deemed manageable and constituting a small fraction of the overall turnover of the industry. The report identifies two funding mechanisms namely contributions at the new-built phase, and a second option is contribution subsisting throughout the ships life. The latter option presents ideas to include recycling charges in the insurance premium of ships, as well as the suggestion to levy the recycling contributions through the F lag State. Recommendations forwarded include:40 the IMO and the Basel Convention were urged to develop a set of mandatory regulations a point of reference for a funding facility identical to the Global Environmental Facility under the United Nations Environmental Program ought to established governments in ship breaking countries need to set and implement a uniform set of criteria under which ship breakers can apply for financial input from the Fund to upgrade their existing scrap-facilities and finance clean scrapping. states need to endorse the Fund, for example by making a donation to the fund a standard requirement for ships understanding by ship-owners that zero pollution ship breaking is a service to the shipping industry and thus they should provide a minimum of 0.5% of their annual turnover from each of their vessels as a c ontribution to the Ship Recycling Fund. insurance companies like P&I clubs need to consider what role, if any, they can play in maintaining or establishing the Fund in a similar way to the inclusion of wreck removal costs in the overall P&I bill. Countries that have signed the Hong Kong Ship Recycling Convention
As of 31of October 2010, the Convention has been signed, subject to ratification or acceptance, by France, Italy, Netherlands, Turkey, and St. Kitts and Nevis. The earliest the Convention is expected to enter into force is 2015. France is the first country to sign, showing its commitment to work actively at the international level to advance the entry into force of the Convention. Meanwhile, France will support an EU approach to apply its provisions in advance in agreements with third 39
GREENPEACE INTRODUCTION „A Ship Recycling Fund, matching corporate responsibility with shipping practice‟ Greenpeace commissioned Available at
http://www.google.com.my/url?sa=t&source=web&cd=2&ved=0CBsQFjAB&url=http%3A%2F%2Fwww.gr eenpeace.org%2Findia%2FPageFiles%2F128201%2Ffund.pdf&rct=j&q=GREENPEACE%20INTRODUC TION%20%E2%80%98A%20Ship%20Recycling%20Fund%2C%20matching%20corporate%20responsib ility%20with%20shipping%20practice%E2%80%99%20Greenpeace%20commissioned%20&ei=N4DvTP KfKo-AvgPD5oSRDg&usg=AFQjCNEdubAbBeWVu7afRJUQrGQXkyekZg Last Accessed: 11/10/2010 40 ID 26
countries, thus exemplifying the important role Europe will play in supporting the upgrading the shipyards of developing countries.41 In 2009, the top five ship recycling nations were Bangladesh which scrapped 65% of total scrapped tonnage; India, 21%; followed by China, Pakistan, and Turkey which account for the remaining 10-15%. It is observed that France, Netherlands, and Italy are members of the European Union; are ship owning nations; and have ship recycling facilities. Turkey is the only signatory representing the major ship recycling nations. The Saint Kitts and Nevis registry has registered over 150 ships going for recycling in the last 4 years and has been active in assisting buyers, banks and lawyers involved in purchasing ships for recycling.
8. Analysis of the Hong Kong Convention
The following section assesses the strengths and weaknesses of the Hong Kong Convention, and identifies the threats and opportunities arising from its ratification and implementation. Strengths
1. Recycling, Sustainable Development and the Human Right to Development This Convention seeks to translate the principle of sustainable development into a framework for the ship recycling industry by seeking to regulate and not impose a total ban on the external trade of recycling of dilapidated ships. It thus provides scope for elevating the standards of health and environmental safety in this industry by not restricting ship recycling nations from developing through this industry. The economic value of the ship recycling industry to recycling developing states is thus appreciated in fostering economic and employment opportunities. 2. Regulating the “make” to “break” of a ship. In accounting for every stage of a ships life cycle, it makes it easier for the process of recycling as it saves time and costs in addition to p roviding caution through the inventory system. Furthermore, targeting the design, construction and management of ships helps in encouraging the search and innovation for alternative substances thus promising a future for ships with zero composition of hazardous materials. This mechanism also provides for a delegated structure of responsibility thus allowing respective shipping sectors be it ship building, ship repairing or ship equipment to internalize costs to this extent. This in turn is an implication of adherence to the principle of “common but differentiated” responsibility. 41
Wohrer (2010) 27
3. Reporting to IMO Article 12 Another significant improvement is the information sharing by state parties to IMO by reporting on the respective authorized recycling facilities, ships recycled, and relevant violations as per Article 12. Establishment of such a knowledge base is notable in facilitating compliance.
4. Harmonization of Standards The HKC incorporates an enforcement regime coupled with technical requirements within the text which is of binding nature unlike previous international efforts which were mere guidelines and not mandatory. Regulations governing the recycling facilities in particular under Annex 1 provide scope for harmonization of international standards. 5. Amendment of list in appendices By providing room for amending the list of hazardous materials, future substances which may pose environmental and health threats will not go unregulated.
Weaknesses
1. Exclusion of government/ navy vessels, domestic vessels, and those below 500 gwt A notable issue relates to the exempt category of ships which are known to have similar hazardous compositions and yet remains unregulated. This exemption is thus likely to result in inconsistencies in the regulatory systems. 2. Absence of provision for an independent assessment as check and balance With regard to the authorization and certification of ship recycling facilities, it has been argued that the failure of the Hong Kong Convention to appoint or provide for an independent institution to conduct assessments may lead to abuse due to potential vested interests. The credibility of the enforcement mechanism is thus possibly compromised. 42 3. Beaching operations As a ship has to be fully operating in a beaching process, parts and equipment remain onboard the vessel. Thus, in the event of beaching, a high degree of hazardous substance are released and directly exposed to the workers and the environment.43 The
42 43
EU Strategy on B etter Ship Dismantling Supra 8 28
Hong Kong Convention however fails to neither restrict beaching operations nor mandates pre-cleaning of vessels. Again a gap is present which attacks the very purpose of the Convention. The increasing environmental and health concerns amongst the international community pertaining to the beaching operations in the Southern Asia Region was a driving factor that led to the adoption of the Hong Kong Convention however, the issue is arguably amplified through the implied legalization of this activity under the convention. 44 4. Burden of cost Principle 16 of the Rio Declaration invokes the Polluter Pays and Producer Responsibility Principles by demanding the polluter to internalize such costs 45. However, the Convention having cited the Rio Declaration on a varying principle, conveniently neglected to address the question of the costs of disposing end-of-life ships which are laden with toxic materials, thus providing a refuge for wealthy ship-owners (usually from developed nations) to avoid liability and responsibility and thus burdens recycling states with economic, environmental and social costs.46 5. Trade with non state parties The export of end-of-life ships as between parties and non parties of the Hong Kong Convention is not addressed by the Convention thus enabling ship-owners to export ships to non party and non compliant states. Demand as such would not encourage corresponding recycling states to ratify the Convention and this in turn would provide scope for distortion of disseminated information as reporting to IMO is no t applicable.47 Although Article 3, paragraph 4 provides that states should refrain from providing more favourable treatment to non parties, the provision remains ambiguous in scope thus potentially undermining intended protection.
44
Basel Action Network „ New "Ship Recycling" Convention Legalizes Scrapping Toxic Ships on B eaches of Poor Countries – "A major step backwards‟ Available at
http://www.ban.org/ban_news/2009/090515_major_step_backwards.html 45
Rio Declaration on Environment and Development‟ Principle 16 “National authorities should endeavour
to promote the internalization of environmental costs and th e use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting intern ational trade and investment. “ Available at; http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163 Last Accessed: 15/10/2010 46
Legal Shipwreck: IMO Convention Legalizes Toxic Ship Dumping Running f rom Basel to Turn Back the Clock, Available at http://www.google.com.my/url?sa=t&source=web&cd=1&ved=0CBUQFjAA&url=http%3A%2F%2Fwww.b an.org%2FLibrary%2FBP05_May_2009.pdf&rct=j&q=legal%20shipwreck%20running%20to%20basel%2 0to%20turn%20back%20the%20clock&ei=3GnvTNTWJISGvgP4dzEDQ&usg=AFQjCNEuz0RRacaXm5H2PGcGh3N1621ibw Last Accessed: 14/06/2010 47 Supra 8 29
6. State to State Notification Having made provisions on the need for notification between recycling facilities and the corresponding state authority and ships to flag states, the requirement for notification as between ship recycling states and flag states remains neglected under the Hong Kong Convention. As such, recycling states and flag states have arguably weak rights in objecting the entry of ships or the sending of ships respectively. Although recycling states may opt for enforcement through national legislation invoking rights available under UNCLOS48 or Article 9 of the Hong Kong Convention by denying entry, the absence of prior knowledge would deter the state from taking effective measures. 49 In the event that a flag-state wishes to object to the sending of a ship to a recycling facility which is deemed inadequate, the State may request for information pursuant to Article 7 on the premise of making a decision to authorize the facility. Non co-operation may amount to refusal of the grant of a Ready for Recycling Certificate. However, reflagging of the vessel would render the refusal redundant. 7. Non criminalization of illegal traffic The Hong Kong Convention, unlike the Basel Convention neglects to explicitly obligate State Parties to criminalize illegal traffic in hazardous wastes through domestic legislations. Although Article 10 does require states to p rohibit violation of the convention and impose sanctions for such violations, such imposition of sanctions is not the equivalent of criminalization. 50 8. Principles of international Environmental Law The text of the Hong Kong Convention appears to be incompatible with numerous principles of International Environmental Law although it makes reference to several either explicitly or implicitly. The principles of sustainable development and precaution have been expressly employed whereas an element of common but differentiated responsibility may be implied through the regulations employed.
48
United Nations Convention on the Laws of the sea- Provisions applicable to this point include Article 194 which compel member states to individually or jointly develop measures to prevent, r educe and control pollution of the marine environment; Article 211 which governs the pollution from vessels allows a state to adopt state legislation applicable to f oreign vessels with the aim of preventing, reducing and controlling pollution with due publicity of these laws; Article 218 which governs enforcement by port states to include instances where ships are likely to pollute internal waters. 49 50
Supra 8 Supra 8 30
However, the failure to address the polluter pays principle potentially tips the balance created by the implied „common but differentiated responsibility‟ spirit presen t in the Convention in that the burden of cost is conveniently left to impoverished nations as discussed above. In addition, the IMO by adopting the Hong Kong Convention has been accused of inaction in altering the current situation whereby a handful of impoverished developing nations are managing the hazards and risks of over 90% of the world‟s toxic ship waste thus operating in direct contradiction with principle 14 of the Rio Declaration which calls for non transference of harm from one state to another.51 This Convention is also arguably in defiance of the principle of Environmental Justice which establishes that no peoples should receive a disproportionate burden of global harm, and further undermines the principle of National Self-Sufficiency in waste management embodied in the Basel Convention (Article 4,2,b). 52
Opportunities
1. Scope for stricter domestic legislation Art. 2 Nevertheless, in striving to elevate and secure environmental and health standards in the ship recycling industry, individual or collective initiatives through the implementation of stricter domestic regimes under Art. 1 of the Hong Kong Convention appear to provide hope. For instance, should major shipping states implement legislation requiring all new ships to come with an inventory or even a disposal insurance plan, ship providing nations would be coerced into adhering to environmentally safe and sound building whereas insurance companies may start providing for „package insurance policies‟ to cover ship disposal. Although the implications of stricter domestic measures may seem farfetched and is sometimes contested, such measures have been successfully employed under some international agreements an example being under the CITES framework. 53 2. Prospects for being involved in green ship recycling Whilst it may be that Malaysia will not be a recycling state, there are opportunities in ship recycling for Malaysia in developing green shipbreaking technology and in maritime services.
51
Supra 14 Supra 14 53 The Convention on International Trade in Endangered Species (CITES) allows member states to employ stricter regulations in the protection of endanger ed wildlife than that provided for under the Convention thus allowing instances of total ban of trade in certain species where otherwise regulated trade is permissible. Australia and the United States are kn own to have adopted such measures. 52
31
It is observed that the problem with ship recycling lies with the low-technology processes that are used to break highly sophisticated ships. This imbalance can be remedied with the introduction of affordable technology to assist the ship recycling nations in making ship breaking a safer and cleaner industry. Greendock, a Dutch company and a leading European ship recycling technology provider has begun introducing new solutions and technology to make ship breaking in Bangladesh safer and cleaner 54. Ships will be designed and constructed in a way that will ensure that their eventual scrapping would be safe and environmentally sound. The IMO and Basel Convention guidelines on shipbreaking both require detailed documentation in the form of a hazardous material inventory and survey and maintenance records. This is potentially a new revenue-generating area for maritime service providers. For example, Germanischer Lloyd, Ship Classification has begun providing services catered to ship recycling55. Ship owners too can take advantage of the new legal regime for ship recycling by exploring the feasibility of investing in green ship recycling yards. The approach taken by AP Moller-Maersk and their collaboration with China‟s Changjiang Ship Recycling Yard is an example to emulate56. There is even opportunity for Flag Administration. There are open registries which specialize in older fleets: such as Cambodia, Dominica, Mongolia, Saint Kitts and Nevis, Saint Vincent and the Grenadines, and Tuvalu 57. Reference could be made to the Saint Kitts and Nevis Registry58 which has made a business out of assisting buyers, banks and lawyers in purchasing ships for recycling.
Threats
1. Potential delay or non entry into force The nature of the Article 17 requirements coupled with the ambiguity pertaining to the doctrine of equivalency between the Hong Kong Convention and the Basel Convention pose threats in delaying the entry into force of the latter. Such delay is detrimental considering the high volume of ships destined for recycling in the coming years. 2. Marginalizing yards featuring labour-intensive operations
54
http://www.newstoday.com.bd/index.php?option=details&news_id=12532&date=2010-11-13 last accessed: 13 November 2010 55 http://www.gl-group.com/en/sio/ships_in_operation.phplast accessed: 9 December 2010 56 http://bymnews.com/news/newsDetails.php?id=71488last accessed: 7 July 2010 57 UNCTAD (2009). Review of Maritime Transport, 2009. 58 http://www.stkittsnevisregistry.net/News.htm last accessed: 9 December 2010 32
Strict compliance with the Hong Kong Convention would entail significant capital investment in infrastructure. Whilst the Convention did not specifically prohibit beaching as an acceptable method for ship breaking, its guidelines nonetheless suggest that there is a need for ship yards to be equipped with facilities to break different types of ships. This practically means that yards which feature labour-intensive operations are ruled out as suitable or approved ship recycling yards. By denying poor countries access to industrial wastes, the Convention is reducing their ability to develop appropriate technologies59. Ship breaking is an industry which contributes to employment and meets the steel demand for developing countries. Shifting ship dismantling to high -tech yards in Europe would threaten the livelihood in developing countries. 3. Issue of reflagging The issue of reflagging a ship to a „flag of convenience‟ permeates the ship recycling industry as noted in the 2009 „Fairplay‟ magazine. It has been reported that evasive action is sought through cash purchasing of dilapidated ships only to reflag the vessel under a jurisdiction of weaker standard of regulation, only to be delivered to India, Pakistan, and, Bangladesh for recycling. To this extent, some comfort is provided through the certification, inspection, and detention provisions of the Convention. Nevertheless, existing gaps will not prevent unscrupulous ship owners from selling ships close to the end of its operational life to willing buyers in ship recycling states through the potential abuse of the exempt class of domestic ships. The non reflective nature of the two categories illustrated in the table below is a plausible indication of the degree to which reflagging takes place. States which do not appear in the top 25 list of flag states by total tonnage but emerge as top 25 recycling states include Tuvalu, St. Kitts60 . In addition, the top seven flags which accounted for 19.5 % of the world recycling tonnage in 2008 have been reported as only holding 2% composition of world operating fleets thus indicating significant flagging of ships to these states61.
59
Mitra, B (2005), page 7 ID 61 ID 60
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Table 4: Top 25 flag states by scrap tonnage and top 25 flag states by tonnage Top 25
Flag states by scrap tonnage gt
Flag states by tonnage gt
1
Panama (7. 858.946)
Panama (183.503.000)
2
Liberia (3.782.618)
Liberia (82.389.000)
3
Tuvalu (1.622.954)
Bahamas (46.543.000)
4
Malta (1.268.069)
Marshall Island (42.637.000)
5
St. Kitts-Nevis (1.174.742)
Singapore (39.886.000)
6
St. Vincent & Grenadines (985.977)
Hong Kong 39.100.000)
7
Bahamas (866.141)
Greece (36.822.000)
8
Republic of Singapore (820.376)
Malta (31.633.000)
9
Unknown (715.099)
China (26.811.000)
10
Cyprus (708.852)
Cyprus (20.109.000)
11
Hong Kong (706.488)
Norway (18.311.000)
12
Mongolia (668.009)
Germany (15..283..000)
13
Norwegian International Register (621.710)
U.K. (15.247.000)
14
Marshall Islands (602.969)
S. Korea (14.145.000)
15
United States of America (511.715)
Italy (13.600.000)
16
Greece (395.253)
Japan (13.536.000)
17
People's Republic of China (377.692)
U.S.A. (11.268.000)
18
Comoros (270.651)
Denmark (10.570.000)
19
Cambodia (263.694)
Bermuda (9.952.000)
20
India (217.203)
Antigua & Barbuda (9.537.000)
21
Philippines (201.104)
India (9.283.000)
22
Russian Federation (199.849)
Isle of Man (8.965.000)
23
Republic of Korea (193.419)
Netherland (8.249.000)
24
Turkey (186.214)
Russia (7.527.000)
34
25
Dominica (158.505)
Malaysia (7.078.000)
World total (27.821.376)
World total (830.704.000)
Source: This table has been drawn up based on data on shipbuilding statistics, September 2009 from the Shipbuilders‟ Association of Japan for the top 25 flag states by tonnage and on data from EMSA, LMIU for the top 25 flag States by scrapped tonnage.62
62
European Commission DG Environment “Support to the impact assessment o f a new legislative proposal on ship dismantling” Final report December 2009
35
Table 5: Summary of the Strengths, Weaknesses, Opportunities, and Threats of the HK Convention Strengths
1. 2. 3. 4. 5.
Weaknesses
1. Exclusion of government/ navy vessels, domestic vessels and those below 500 GRT 2. Absence of provision for an independent assessment as check and balance 3. Beaching operations 4. Burden of cost 5. Trade with non state parties 6. State to State notification 7. Non criminalization of illegal traffic 8. Incompatibility with principles of international environmental law
Opportunities
1. Scope for stricter domestic legislation Article 2 2. Prospects for being involved in green ship recycling
Threats
1. Potential delay or non entry into force 2. Marginalizing yards featuring labour-intensive operations 3. Issue of reflagging
Recycling, sustainable development and the human right to development Regulating the ‘make’ to ‘break’ of a ship Reporting to IMO Article 12 Harmonization of standards Amendment of list in appendices
36
9. Relevance of the Hong Kong Ship Recycling Convention to Malaysia
Malaysian shipping represents 0.85% of merchant tonnage (above 300 GRT) and 95% of its international trade (by volume) is carried by ships. The age profile of the national fleet averages 11.1 years63, which is considered relatively young, compared to the average age of ships scrapped in 2008 which is 31.1 years (tankers), 30.6 years (dry bulk carriers), 29.1 years (container ships), and 33.6 years (general cargo ships) 64. Shipbreaking.com reports that six Malaysian-flagged vessels were sent for recycling in the first 6 months of 2010, five of which to Bangladesh. Considering the age profile of the national fleet and the low volume for ship breaking, Malaysia‟s ratification of the Hong Kong Convention will have minimal impact on the Convention‟s entry into force 65. It is unlikely that the Hong Kong Convention will enter into force in the immediate future. At present, only five states have signed the Convention but none have ratified it. Also ambiguity pertaining to the doctrine of equivalency between the Hong Kong Convention and the Basel Convention threatens to delay the entry into force of the former at least among States party to the Basel Convention. Malaysia as a party to the Basel Convention is under an obligation to ratify only those conventions which are deemed to ensure environmental protection to a level equivalent to that imposed by the Basel Convention. It is still debatable whether the Hong Kong Convention is equivalent to the Basel Convention. Malaysia does not have ship recycling facilities. Its ship yards carry out fabrication, modification, conversion, and repair work. Interviews with ship yards on the feasibility and ease of which ship building yards can also undertake ship dismantling activities or be converted into ship recycling facilities indicate that ship yards are not keen to explore ship recycling as a primary business activity due to the volatility of the recycling industry, which price is highly dependent upon demand for recycled steel, cost of freight, labour costs, and costs of compliance with environmental and labour regulations. Whilst the current facilities of larger ship yards (such as MMHE) may undertake dismantling activities, much capital investment will be required to upgrade the facilities and work force capacity to allow it to dismantle hazardous material in increasingly sophisticated ships safely and to dispose the materials in an environmentally sound manner. Investment in infrastructure is not limited to ship yards cum ship recycling facilities, but also extend to waste management facilities in Malaysia. Materials which cannot be recycled will need to be disposed and whether existing waste management facilities and approach can adequately deal with hazardous waste from ships warrants further study. It is to be noted that the Department of Environment is opposed to the importation of obsolete ships for recycling purposes or for use as artificial reefs in Malaysia. 63
UNCTAD (2009). Review of Maritime Transport , 2009, page 52. UNCTAD (2009). page 65. 65 Article 17 of the Hong Kong Convention provides that the Convention will enter into force when it is ratified by 15 States whose fleet amount to at least 40% of the world fleet and whose combined maximum annual ship recycling volume is at least 3%. 64
37
The impact of the ship recycling facility on the environment, the fishing community and the marine tourism industry needs to be considered. Whilst ship recycling may contribute to employment and provide a service to local ship owners, it is still a business which must generate profit to remain feasible. A feasibility study of a ship recycling facility in Malaysia has not been conducted. Ship recycling States in the Asia are Indonesia, Vietnam, Philippines, China, Bangladesh, Pakistan, and India. Our findings indicate that Malaysian shipyards are not engaged in extensive ship dismantling activities, but carry out ship building and ship repairing activities instead. Attention with respect to the Malaysian ship building industry has to be particularly drawn to the fact that the role the country plays is mostly the assembling of ships. It was noted that both repairing and building do not expose individuals as well as the environment to hazardous elements. However, conversion which requires a shipyard to dismantle the entire vessel prior to converting it into another type of vessel might involve hazardous elements. Whilst the process may resemble recycling in that it involves the dismantling and reuse of parts and equipment, it is not synonymous with the recycling industry which the Hong Kong Convention attempts to regulate thus rendering the regulation of recycling facilities as irrelevant. However regulations pertaining to the design, construction, operation, and preparation for the eventual recycling of vessels and the establishment of an appropriate enforcement mechanism for ship recycling are relevant to Malaysian ship builders, ship owners, and Flag Administration. The Centre for Ocean Law and Policy visited four shipyards from 21 to 25 August 2010 to determine the extent of ship recycling carried out at the ship yards. The shipyards visited were: Boustead Penang Shipyard (Pulau Jerejak) Ironwood Shipyard (IWS) Sealink International Sdn Bhd Labuan Shipyard The visits confirm that the yards carry out only fabrication, modification, conversion, and repair work. The primary activities involve the reshaping of large steel into vessels and the installation of equipment and machinery, for vessels, tugboats, and barges. These yards do not carry out ship recycling activities envisaged by the Hong Kong Convention. However, the Hong Kong Convention is relevant to ship builders to the extent that they are required to develop an inventory for hazardous material for new ships and existing ships undergoing conversion or repairs. In addition to regulating ships, the Hong Kong Convention also regulates recycling facilities. Despite there being no ship-breaking facilities in Malaysia, this research nonetheless provides an opportunity for the review of the adequacy of existing health, safety, and 38
environmental legislation in ensuring that ship building facilities protect workers from health risks and the environment from pollution associated with ship building activities. According to the Department of Environment, there are two types of wastes namely Scheduled Waste (Hazardous) and Solid Waste. PCB66, a hazardous material identified under Appendix 1 of the Hong Kong Convention, is similarly identified as a Scheduled Waste. The existing Malaysia laws governing the control of scheduled wastes are similar to the Controlled Hazardous Materials stipulated in the Convention. If Malaysia is to adopt the regulatory mechanism accounting for the entire life cycle of ship, as proposed by the Hong Kong Convention, the construction and dismantling activities will have to be in compliance with the Hong Kong Convention to be deemed an environmentally sound process. The Department of Environment has provided a comprehensive framework for regulating Controlled Hazardous Materials; although not specific to shipbuilding and ship recycling, the legal framework nonetheless, can be applied to ensure clean ship-breaking corresponding to the extent of ship dismantling activities carried out at Malaysian ship yards. The primary environmental concern of ship yards is in ensuring that hazardous waste is properly managed. Due to the nature of the work carried out at Malaysian ship yards, paint is the most hazardous material which needs to be managed. The Environmental Quality Act 1974 (EQA) is the dominant governing legislation on the issue of environmental safe management of waste and it provides for mechanisms to manage paint residue where such residue can only be stored at a shipyard for a maximum of 180 days at a maximum of 20 tons after which it has to be contracted to the waste disposal party. The Environmental Quality (Schedule Wastes) Regulations 2005 requires prescribed premises to submit monthly Notification of Scheduled Wastes with the production data (ie: Code Number of the schedule waste / raw materials / chemicals for example: SW -305) . This notification shall include the quantity / tons of the wastes. They are required to send a notification every month. The EQA also requires shipyards to accept vessels which have been deemed to be asbestos free, gas free, and hazardous free. Clearance to this extent has to be attained from the port authority, government chemist and an auditor upon their inspection. The site visit also confirmed that in addition to compliance with EQA and Regulations, larger shipyards have their own international mechanism (ISO 9000 and Job Safety Analysis) administered by a Health, Safety, and Environment (HSE) officer to ensure that the ship yard complies with all environmental regulations. At first glance, it would appear that the Hong Kong Convention has little relevance to Malaysia. However, this belies the fact that Malaysia is a member in the IMO Council and should be seen to be at the forefront of ratifying key conventions. As increasing attention is drawn to „green ship recycling‟, an interesting pattern has begun to emerge in that ship 66
Polychlorinated biphenyls (PCB) have been used in many different products such as electrical equipment, surface coatings, inks, adhesives, flame-retardants, and paints. PCBs may b e released into the environment when it is incinerated or stored in landfills. 39
owners are seen to take voluntary initiative in opting for environmentally sound and safe ship disposal be it through collaborative effort and support in producing Guidelines under the BIMCO framework, or by international ship owning companies such as MAERSK through the vehicle of Corporate Social Responsibility. As such, it is possible that the recognition of green recycling means may adduce a growing appetite for such services. Even at this pre-entry stage of the HKC, a number of international entities have hopped on the potentially promising train of opportunity by providing services such as surveying and developing Inventory of Hazardous Substances for ships. Ship yards in some countries such as in China have adopted „green recycling of ships‟ measures and as such have tapped into this industry. In tangent with Malaysia‟s commitment to go green (as evidenced by its commitment to reduce carbon emissions at COP 15), Malaysia should at least consider ratification of the Hong Kong Convention.
10. Assessment of the impact of the Hong Kong Ship Recycling Convention to Malaysia
(i) Where Malaysia ratifies the Convention
Malaysian ship builders When building new ships to be flagged by a State party, Malaysian ship builders will have to develop Part 1 of the Inventory of Hazardous Material (IHM) for materials listed in Appendix 2 of the Convention at the design and construction stage. Ship builders will require the cooperation of suppliers on the ship building supply chain to provide a Material Declaration, which is information of the specific chemical substances contained in machinery, equipment, materials and paints to be used . Ship builders need to be aware of the prohibition/ restriction in the use of Hazardous Materials listed in Appendix 1 of the Convention. For ships already built, the builder is required to develop Part 1 of the IHM at least for materials listed in Appendix 1 of the Convention. The International Maritime Organization (IMO) has prepared technical guidelines on the preparation of an Inventory of Hazardous Materials which Malaysian ship builders should note. Malaysian ship repairers Malaysian ship repairers should note the prohibition/restriction in the use of Hazardous Materials listed in Appendix 1 of the Convention in ship repairs and maintenance and to provide information required for the updating of Part 1 of the IHM after any installations of materials listed in Appendix 2 of the Convention. They should take note of the technical guidelines on the preparation of an Inventory of Hazardous Materials prepared by the IMO.
40
Malaysian ship survey service pro viders The Convention requires an initial survey for the issuance of the ICIHM, periodical surveys whenever the IHM is updated, and a final survey for the issuance of the International Ready for Recycling Certificate. The technical guidelines on the preparation of an Inventory of Hazardous Materials prepared by the IMO should be noted. Owners of Malaysian-flagged ships The implication to owners of Malaysian-flagged ships is additional administration obligations and costs in developing the IHM which in most likelihood will be passed on to ship owners. It is also likely the additional costs in using only materials allowed by the Convention and the requirement for an initial survey verifying the IHM and the procurement of the ICIHM from the Flag Administration will increase new-shipbuilding costs which will be borne by the ship owner. Existing ships must also comply with the IHM, survey, and ICIHM requirements of the Convention. The IHM requires updating after any installation of materials listed in Appendix 2 of the Convention following repairs and maintenance. Renewal/ additional survey will be required to verify that Part 1 of the IHM continues to meet the Convention requirements, and the ICIHM is to be renewed every five years. Also, the costs involved in disposal of ships for recycling is likely to increase owing to the additional procedures, surveys and approval requirements, and the limited choices of authorized recycling facilities. The ship owner is required to cooperate with the recycling facility to prepare a Ship Recycling Plan for the approval of the Flag State, and then procure the IRRC from the Flag State before recycling can commence. There is however no legal restriction to selling, de-registering, and re-flagging the ship with a non-State party, which will effectively circumvent the requirements of the Convention. It is estimated that flagging-out costs to owners is about $10K compared to compliance costs of around $30K. Malaysian Flag Administration The Marine Department is the Flag Administration and is required to issue the ICIHM, its update and renewal, and the IRRC. Flag States are required to establish necessary legislation to ensure that ships are designed, constructed, and operated in a safe and environmentally sound manner in accordance with the regulations of this Convention. Mechanisms for ensuring that compliance with the Convention must be established. There is also the risk that the implementation of the Hong Kong Con vention may result in the Malaysia Ship Registry becoming less attractive as compared to Registry‟s which are not party to the Convention.
41
Cost implications67 The main costs identified for ships in operation are: Establishing Inventory of Hazardous Materials (IHM) Issuing and checking of certificates based on the IHM Port state control of certificates for ships Flag-state control for State party flagged ships Checking of IHM certificates for ships calling at State party ports The main costs identified for preparing ships for recycling are: Update of the IHMs Issuing and checking of the Ready to recycle certificates Issuing and checking of ship recycling plans from authorized recycling facilities Costs (loss of net revenue) for selling a ship for recycling at a facility with a certain minimum HSE standard The following tables indicate the estimated unit cost implication of implementing the Hong Kong Convention. These estimates are based on an assessment for Denmark 68 and scaled up to a European level through applying the relevant labour costs and number of ships. There are no equivalent estimates for Malaysia or for South Asia recycling facilities. The unit costs included here are meant to provide an indication of the potential costs implication in the event of implementing the Hong Kong Convention.
67
European Commission DG Environment, Support to the impact assessment of a new legislative proposal on ship dismantling – final report (December 2009). ec.europa.eu/environment/waste/ships/pdf/final_report080310.pdf 68 Memo on Socio economic impact assessment of IMO Ship Recycling Convention implementation in Denmark. Prepared by Litehauz for the Danish Environmental Protection Agency. 42
Table 6: Unit cost related to the Convention requirements for certificates for ship in operation Costs
Consequence
Cost
Unit cost €1 = RM4.17
Inventory of hazardous materials (ship owners)
Each European flagged ship and ships calling at EU ports has to have an IHM
Cost for the ship owner €1830/new ship to prepare the (RM7,631) inventories €9505/existing ship
(RM39,636) €318/five years for
renewal (RM1,326)
Certificates
Each European flagged ship has to obtain an IHM certificate
(ship owners)
Cost for the ship owner €2956/new ship to obtain the certificate (RM12,327) €2519/existing ship
(RM10,504) €1680/re-certification
every five years for each ship (RM7,006)
Certificates (Administration, owners)
Administrative costs in relation to the checking ship of the existence and the correctness of the certificates as part of flag state control
Cost for checking the €271,024/ year certificates (RM1,130,170)
Administrative costs related to the checking of the existence and the correctness of the certificates as part of flag state control
Cost for checking the €271,024/ year certificates (RM1,130,170) (policy decision – how this cost is to allocated between ship owners and public administration)
Certificates (Administration, public)
(policy decision – how this cost is to allocated between ship owners and public administration)
43
44
Table 7: Unit cost related to the Ready to Recycle Certificates Costs
Consequence
Cost
Unit cost €1 = RM4.17
Update of the inventory of hazardous materials just before dismantling (ship owners)
Ready to certificate (ship owners)
recycle
The inventory will need to be updated just before being shipped for dismantling
Cost for the ship owner €769/ship (RM3,207) to have the update prepared (part I, II, and III)
Each European flagged ship has to obtain a ready to recycle certificate before recycling
For each ship a ready €3360/ship for first five for recycle certificate years (RM14,011) should be issued Later
€6719/ship
(RM28,018)
Table 8: Unit cost related to the checking of ships calling at State party port Costs
Consequence
Cost
Unit cost €1 = RM4.17
All ships calling State Administrative cost party port should have related to the checking IHM of the existence and the correctness of the (Administration) inventories
Cost of checking the €32.5/ship calling inventories (RM136) (Public administration)
(ii) Where Malaysia does not ratify the Convention
Even where Malaysia is not a State party to the Convention the Convention would apply when the choice of a recycling facility is located in a State party. In this case, the fulfillment of the obligations of the Ship Recycling Facility will require the cooperation of the ship owner and the Flag Administration. In such cases, ship owners of Malaysian flagged ships have the flexibility of recycling vessels at non-State party recycling facilities and avoid administrative obligations and costs associated w ith recycling.
45
11. Need for a Ship recycling strategy
The Convention is unlikely to enter into force in the immediate future unless the five ship recycling nations (Bangladesh, China, India, Pakistan, and Turkey) ratify the Convention, effectively removing commercial competition considerations from safety and environmental protection factors, and compelling Flag States to ratify the Convention as w ell. In the interim, Malaysia has the option either to maintain the status quo (do nothing) or voluntarily implement the relevant technical requirements of the Convention (adopting a ship recycling strategy).
a. Maintaining the status quo
Activities relevant to the Convention would include ship building, repairs, and maintenance. The main safety and environmental risk of such activities are regulated by the Factories and Machinery Act 1967 (pertaining to work place safety), the Environmental Quality Act 1974 (pollution management), the Environmental Quality (Scheduled Wastes) Regulations 2005 (the environmentally sound management of waste and hazardous material). The Environment Quality Act 1974 requires shipyards to accept vessels which have been deemed to be asbestos free, gas free, and hazardous free. Inspection and clearance on this has to be secured from the port authority, government chemist and an auditor. Considering that Malaysia does not have ship recycling facilities, the existing controls would appear to be adequate, and would provide the flexibility for recycling of Malaysian-flag ships at any facility. It is likely that ship owners will choose the most profitable option and sell their ships for up to a third more than what an approved ship recycling facility would offer. b. Voluntary implementation of interim measures
The interim measures that can be considered for implementation are: 1. 2. 3.
Provision of the Inventory of Hazardous Materials to ships going for recycling Safe-for-hot work and Safe-for-entry obligations for ship owners Preparation of a Ship Recycling Plan for ships destined for recycling.
Safe-for-hot work and Safe-for-entry obligations for ship owners This would include pre-cleaning of ships to ensure that the ship is safe-for-hot work and safe-for-entry. It is currently being implemented for ships coming into Malaysia but remains voluntary for ships being „exported‟ for dismantling to another State. The trend among European ship owners and some Asian ship owners (Japan, Singapore, and Hong Kong) are for the ship owners to take the initiative to self-regulate and adopt voluntary measures even before the Hong Kong Convention enters into force. 46
Such measures being voluntary cannot be enforced or imposed upon a ship owner and it is up to the ship owner to weigh the economic factors against the social responsibility factors. Provision of the Inventory of Hazardous Materials and Preparation of a Ship Recycling Plan for ships going for recycling At the Pattaya IMO Regional Workshop on the Early Implementation of the Technical Standards of the Hong Kong Convention in May 2010, representatives of the five recycling States have recognised the need for an international standard for ship recycling and agreed on the need for interim measures although there was no agreement as to a specific date for a start of the voluntary implementation of the measures. The Pattaya workshop recommended, among others, that stakeholders commence the voluntary implementation of the technical standards of the Hong Kong Convention on the provision and usage of the Inventory of Hazardous Material and for stakeholders to assist in the development of the guidelines for the Ship Recycling Plan, and thereafter voluntarily facilitate its implementation. These measures are not currently being applied by Malaysia and successful implementation would require the cooperation of ship owners. If these measures are to remain voluntary, there is no incentive for their implementation. Furthermore, these measures would be effective provided recycling facilities utilise the Inventory and Recycling Plan for safer and cleaner recycling. If owners of Malaysian flagged ships prefer non-approved recycling facilities, it makes no difference whether the Inventory of Hazardous Material is provided and it is also very likely that the recycling facility will not be providing a Ship Recycling Plan. There is also the strong possibility that ship owners would choose to dispose obsolete vessels to cash buyers to avoid the administrative burden of recycling in meeting the requirements of the Convention. Ship builders must be compelled to develop the Inventory of Hazardous Materials and for ship owners to prepare a Ship Recycling Plan through regulation/policy. This can be implemented through the mechanism provided under the Basel Convention, and by expanding the interpretation of „waste‟ to include obsolete ships designated for scrapping. However, in determining a policy on ship recycling, the Flag Administration would also need to consider whether the policy would apply only to international commercial vessels of 500 GT and above, or also to all vessels including warships, government-owned noncommercial ships, exclusively domestically operated ships, and ships below 500 GT.
47
12. Recommendation
Although there is no immediate urgency at present to ratify the Convention, it is recommended that Malaysia adopt the interim measures proposed b y the IMO. This strategy would satisfy Malaysia‟s obligation to the IMO and also the Basel Convention.
Awareness programmes should be implemented to educate ship owners, ship builders, ship surveyors, and Flag Administration of the developments in ship recycling requirements, and to highlight new business or product opportunities for the ship building and engineering industries. It is suggested that the awareness programmes be initiated by the Ministry of Transport in collaboration with the ship owners as they are the interest group most affected by this Convention and are most proactive in green-shipping initiatives. Flag Administration should not compel ship owners to adopt the interim measures. Instead ship owners should be encouraged to adopt the measures voluntarily as part of the ship owner‟s corporate social responsibility activities. It is further recommended that incentives be offered by the Ministry of Science, Technology and Innovation, the Ministry of Energy, Green Technology and Water, or the Malaysian Industrial Development Authority to encourage research and development into technologies for green ship breaking. Collaborations between the government and universities could be established to encourage research into technology for green shipbreaking and develop materials, equipment, and processes that can contribute to green shipbreaking. The universities with the relevant marine technology and engineering departments are Universiti Teknologi Malaysia, Universiti Kuala Lumpur, Universiti Malaysia Terengganu and Universiti Sains Malaysia. It is recommended that Malaysia be supportive of the Ship Recycling Convention, as it opens opportunities for Malaysian ship owners, maritime service providers, and also Flag Administration. In the final analysis, Malaysia should not have to be a major player in the activity to be seen to adopt international best practices. By way of its dependence on m erchant shipping and its not insignificant merchant tonnage and international clout as a shipping nation, it must be seen to be at the forefront of supporting measures to green the shipping sector.
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13. Limitation of study
This research focuses more on the qualitative aspects rather than the quantitative assessment of the Hong Kong Convention. It also focuses on commercial ships and does not include the dismantling of government ships, naval vessels, yachts, fishing vessels, and fixed/floating platforms. Also, there is a lack of literature on ship recycling from the Asian perspective as such the bulk of the literature on ship recycling is obtained from the IMO website, and from the European perspective.
14. Future research
Feasibility study of a ship recycling facility in Malaysia Implementation of control on movement of obsolete ships
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Annex 1: List of References
Andrew. (2008, November ). Ship Breaking on “the beach of doom” Direct Action, Issue 6.
Basel Convention (2006). Report of the Open-ended Working Group of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal on the work of its fifth session Basel Action Network. (2009, May 15). New “Ship Recycling” Convention Legalizes Scrapping Toxic Ships on Beaches of Poor Countries – “A major step backwards” Retrieved at http://www.ban.org/ban_news/2009/090515_major_step_backwards.html BIMCO (2009) In Preparation for the entry into force of the IMO Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships Bhattarcharjee S (2009). From Basel to Hong Kong: International Environmental Regulation of Ship-recycling Takes One Step Forward and Two Steps Back. Trade L.& Dev. (2009) , Vol 1(2), pages 193-230 Chatterjee. (2009). Ship Recycling in India – Compliance with IMO Convention on Ship Recycling, 2009. Retrieved at http://shimizu-kazumichi.com/source/sr_symposium2010/05forum2_mr_%20ajoy_%20chatterjee.pdf Commission of the European Communities (2008). An EU Strategy for Better Ship Dismantling: Communication from the Commission to the European Parliament, the Council. The European Social and Economic Committee and the Committee of the Regions , COM (2008), 767 final. Retrieved at http://ec.europa.eu/environment/waste/ships/pdf/com_2008)767.pdf , Last Accessed: 17/06/2010 European Commission DG Environment, (2009) “Support to the impact assessment of a new legislative proposal on ship dismantling” Final report December 2009 Glisson, LM. & Sink, HL. (2006). Maritime Shipbreaking: law and Policy Part III. Journal of Transportation Law, Logistics, and Policy . (2006). Vol. 73, Issue 4. Pages 463-483 Gujerat Maritime Board. (2006). Ship Recycling Regulations. http://www.google.com.my/url?sa=t&source=web&cd=2&ved=0CCAQFjAB&url=http%3A%2F% 2Fwww.sriaindia.com%2Fimages%2FNew%2520Policy%2520GMB.doc&rct=j&q=ship%20recyc ling%20regulations%202006%20india%20gujerat&ei=YN3pTOG3L5PsvQO24f3CCA&usg=AFQ jCNHs4Hkz0NISNDPMEicmLPOUR_niyw Last Accessed” 19/09/2010 Gujerat Maritime Board. (2008). Visit of IMO to Alang . Retrieved at http://gmbports.org/showpage.aspx?contentid=1462 Last Accessed: 19/09/2010 i
Ibeanu. (2009). Report of the Special Rapporteur on the adverse effects of the movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights. Retrieved at http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-1226_E.pdf International Federation for Human Rights (FIDH). (2002). Where do the “floating dustbins‟ end up? Labour rights in ship breaking yards in South Asia: the cases of Chittagong (Bangladesh) and Alang (India). Retrieved at http://www.fidh.org/IMG/pdf/bd1112a.pdf Indian Supreme Court Order (2007, September 6). Research Foundation of Science vs. Union of India & Anor. Kanthak & Jayaraman, Ships for Scrap III, Steel and Toxic W astes for Asia: Findings of a Greenpeace study on Workplace and Environmental Contamination in Alang-Sosiya Ship breaking Yards, Gujarat, India , Greenpeace Report 15 (2001). Lloyd‟s Register – Fairplay, “World Fleet Statistics”, Various editions.
London Convention (1972). London Convention Waste-Specific Guidelines for Assessment of Vessels. Matt Cohen, U.S. Shipbreaking Exports: Balancing Safe Disposal with Economic Realities , 28SPG ENVIRONS ENVT‟L L & POL‟Y J. 237, 241 (2005). M. Hossain & M. Islam. (2006). Ship Breaking Activities and its Impact on the Coastal Zone of Chittagong, Bangladesh: Towards Sustainable Management. Young Power in Social Action (YPSA). Mikelis N.E. (2007). “A statistic overview of ship recycling”. International Symposium on Maritime Safety, Security & Environmental Protection, Athens, Greece, September 2007. Mikelis N.E. (2006). “Developments and Issues on Recycling of Ships ”. The East Asian Seas Congress, Haikou City, Hainan Province, PR China, September 12-16 2006. Mitra, B. (2005). Creative destruction: breaking ships, building economy, cleaning the environment. Liberty Institute Working Paper in association with the Danish Centre for Political Studies (CEPOS), Copenhagen . 2005. Retrieved at http://www.policynetwork.net/es/environment/publication/creative-destruction-breaking-shipsbuilding-economy-cleaning-environment Last accessed 4 June 2010 Rio Declaration on Environment and Development. (1992). Retrieved at http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163 last Accessed: 15/10/2010 Ship Recycling in India – Myth vs. Fact. Retrieved at
http://webcache.googleusercontent.com/search?q=cache:JkRAotfG_44J:www.gmsinc.net/gms/ news/ship-recycling-in-
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