Ananya Sharma*
Abstract
This essay shall examine the process of Shipbreaking in India in light and context of the major domestic and international legislations governing the process. The problem of environmental damage caused by Shipbreaking along the Alang-Sosiya Coast is a cause of major concern and the lack of proper legislation governing these activities pose an even greater threat to marine and coastal ecosystems. Currently, the Hong Kong Convention, 2009 governs the law at an international plane and also serves as reference for the Shipbreaking Code, 2013. However, the same is inapplicable since it hasn’t come in force since it was drafted. In absence of updated guidelines governing it the author shall endeavour to comparatively analyse the Basel Convention, 1989 and the Hong Kong Convention, 2009 in light of the updated and better suited EU Regulations.
Keywords: Shipbreaking, Ship Recycling, Basel Convention, 1989, Hong Kong Convention, 2009, Shipbreaking Code, 2013, Alang-Sosiya
Ship breaking refers to the process by which the owner of the ship usually in order to recover his investment at the end of the vessels’ life would sell the scarp remains of the ship.In the past year more than hundred oil vessels have been sent for demolition in the ship scrapping yards of Bangladesh, India and Pakistan.[1] The NGO Shipbreaking Platform estimates that since 2009 around 6250 ships have been beached which has resulted in around 320 deaths and 225 injuries.[2] Although, loss of human life can be estimated, it is the environmental impact of these activities that often go unaccounted for. Dr Irfan Khan, refers to such “poisoning of the environment” as a “moral crime”.[3]
India has the world’s largest ship breaking site at Alang-Sosiya in Gujarat which was set up in the year 1983. [4] The negative effects of ship breaking at this location along with the below par working conditions were documented by Greenpeace in 1998. [5] India remains a hotspot for these activities since the method of beaching ships here is inexpensive. At the same time, the lack of regulation of this sector also serves as an incentive to carry out these activities. The Alang-Sosiya yards dismantle 30% of the global ship recycling volume and this contributes 1-2% of the domestic demand for steel and allied products. [6] Even though, shipbreaking is a far more sustainable method of dealing with vessels which are no longer in use, the industry still poses risk to the environment due to the fact that effluents are released during the procedure along the coasts where the whole process is undertaken. As of today, the yards of Alng-Sosiya possess the “Statement of Compliance with the Hong Kong Convention”.[7] However, the yards are not included within the “EU List of approved ship recycling facilities” as the safety requirements are far more stringent than the rest. This essay shall endeavour to analyse critically how far the international and domestic legal regime governing shipbreaking is effective. Further, it shall comparatively analyse the EU Regulations on this aspect to understand if our domestic laws serve the purpose of mitigating environmental damage as intended.
- How is the practice regulated under international law?
Under the international legal regime, Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, 1989 (herein after referred to as the Basel Convention)[8] serves as the first environmental treaty that regulates hazardous wastes. Under Article 10 of the convention, it is provided that the state parties to the convention shall develop sustainable and environmental friendly management of hazardous waste. The drawback of this statute although was in the fact that the same was not drafted in view of ship-recycling. [9] Since the convention operated on the principle of ‘prior informed consent’, the state from which the “transboundary movement of hazardous waste was to be initiated” was under a duty to prevent harm to the environment. To circumvent this provision, the owners of vessels who have outlived their lives, would not reveal that it was being transported to be recycled. [10] The 47th session of the IMO Marine Protection Committee (MPEC) attempted to fill this lacuna by recommending that a draft be formulated to govern ship-recycling. In 2003, the draft was adopted, however, in 2005, the IMO once again passed a resolution requesting the MPEC for a “new legally binding instrument for ship recycling”.[11] This saw the adoption of the second most important convention regulating this activity, called the Hong Kong International Convention for the safe and Environmentally Sound Recycling of Ships, 2009 (herein after referred to as Hong Kong Convention).[12]
The two international instruments as outlined above form the international regulatory mechanism to govern the law pertaining to shipbreaking. With 156 state parties, the Hong Kong Convention serves as bedrock to all the national legislations governing this aspect in the signatory nations, although still hasn’t come into force since the same has not been ratified by 15 major flag and recycling countries.[13] The question that arises now is twofold, why does India subscribe to the convention if the same hasn’t even come into force? Consequently what significance does the “Statement of Compliance with the Hong Kong Convention” for yards in Alang-Sosiya hold? To answer these and in order to comparatively analyse the effectiveness of these regulatory mechanisms in India and as provided for under our laws, it is essential to breakdown the Hong Kong Convention and the Indian legislations in light of the EU Regulations which are said to be more effective and environmental conscious.
- India’s Rendezvous with the Hong Kong Convention
The Hong Kong Convention was drafted after its travaux preparatoire the Basel Convention was felt to be inadequate in dealing with the waste generated by Shipbreaking activities. While it retains certain features of the Basel Convention, it departs from the essential requirement of ‘prior informed consent’ that forms as the soul of the latter.[14]An important feature of the convention under Article 4(2)(e) outlines that the exporting states are obligated to make sure that the waste so exported must be managed in an environmental friendly manner otherwise bar the export. Apart from Basel Convention, the IMO also released guidelines in the year 2003. These guidelines aimed to improve the process by issuing something called a “Green Passport” to a ship. [15]This was document that contained an inventory of the hazardous materials on the ship and the same would be issued to the ship at the time it was build till the end of its life. Simultaneously, ship builders were encouraged to develop a “Ship Recycling Plan”.[16] Although the guidelines were well thought out the same were ineffective due to its voluntary nature. Thus, came the Hong Kong Convention, aiming to remedy the faults of the laws preceding it. However, the drafting of the same seems totally redundant, since the requirement of 15 major flag nations to become signatories in order for it to come in force has not been met with even after a decade.
Of significant importance is the so called “Statement of Compliance with the Hong Kong Convention” upon which the yards in Alang-Sosiya are deemed to be one of the better options for carrying out Shipbreaking. This is essential to deconstruct so as to determine how the degree of sustainability expected varies between the EU Regulations and the Convention read along with the national regulations of India. The Hong Kong Convention while recognising that the process is the best available option for ships that have reached the end of their life outlines that every party to the convention shall ‘prevent, reduce and minimise along with eliminate accidents and injuries including adverse affect on human health’ from undertaking Ship Recycling. Further, it lays down that the same shall be to achieve safety and protection of human health and environment.[17]
B.1 Safety Regulations under the Hong Kong Convention
The Annex to the Convention outlines the Regulations for Safe and Environmentally Sound Recycling of Ships. The first important feature is laid down under Regulation 3 of the Annex, whereby the parties to the Convention are under an obligation to not only implement the requirements of the Annex but also the Basel Convention. This is important as the same lays down certain as the author cited before the ‘Prior consent’ criteria, thereby placing an active obligation on member states to refrain from illegal transfer of hazardous waste across borders without the consent of the receiving state. However, the Hong Kong Convention deviates from this rule. Regulation 3 thus, keeps the spirit of law as in the Basel Convention alive without the need for repetition. The other important provisions relating to Shipbreaking can be found in the Hong Kong convention under Chapter 3 of the Annex from Regulation 15- 23. A Regulation by Regulation analysis is essential here to understand fully the extent of safety envisioned under the Convention. Regulation 15 places an obligation on member states to establish legislation necessary to ensure the shipbreaking facilities and yards operate in an environmentally sound and safe manner. In order to do so, it is also provided that a mechanism to authorize yards and time to time inspections must be in place by one competent authoritywithin the jurisdiction of the party. The next Regulation outlines the manner of seeking authorization to carry out these activities and provides that the same will be for a period of five years and shall be subject to suspension or withdrawal in case incidents occur or they act contrary to the standards put forth under the convention or the domestic legislation.[18]
Regulation 17 again in very vague terms while discussing General Requirements stipulates that Ship Recycling Facilities must be established in a way that “does not pose risks to the workers concerned or to the population in the vicinity of… and to extent practicable eliminate adverse effects to the environment.” This provision does not expressly lay out any specific guidelines but states that the same shall form the basis of requirements on a later point in time, thereby both leaving scope for better guidelines to be formed and at the same time leaving a huge vacant spot in this important legislation by making it cover a wide number of situations.
The author at this juncture feels that this is a drawback as certain basic requirements would not be subject to change even with developing technology, some old practices of Shipbreaking detrimental to the environment should have been denounced here instead to leaving the scope so wide. Regulation 19 serves this purpose by providing that the states shall ensure that they prevent four major things, first, explosions, fires and unsafe conditions; second, “harm from dangerous atmospheres by ensuring safe-for0enrty conditions”; third, accidents and occupational disease and lastly, spills and emissions throughout Shipbreaking.
The last relevant provision for environmental safety within this chapter is Regulation 23 which provides for a twofold approach to proper management of Hazardous waste released from the vessels, first, by making an inventory of the waste before the recycling operations and familiarising the workers with the same, and second, separation of waste in a way that its properly managed at disposal sites. Before, moving ahead we must remember that this convention also bans the use of harmful materials used in the construction of ships. It is thus clear that while the Hong Kong Convention is a step forward in the right direction when compared to Basel in terms of the ‘Cradle to Grave approach’, the aspect of ‘uniform technical standards’ and the requirement of reporting back to the IMO, the same still suffers from major infirmities as it does not include domestic and the government owned vessels and the fact that it completely forgets to incorporate the requirement for prior informed consent.[19]
- India’s Regulatory Mechanism
Speaking of domestic laws before we move to the EU Regulations, it was only after the year 2006 that concerns were raised. This was when the French aircraft carrier by the name Clemenceau was sent to India for recycling. The vessel was heavily toxic and after concerns raised by many the case was put before the Supreme Court of India. [20] In the case of ResearchFoundation for Science, Technology and Natural Resource Policy v. Union of India[21], the court barred the entry of the ship in India. They asked experts to understand the risks posed by it, but before this could be done, the French recalled the ship. However, in the case of the passenger liner Blue Lady, in 2007, when the court allowed the ship for dismantling on the basis of a skewed report while stating that the environmental degradation subsequently caused by the process shall be balanced out by the industrial opportunities generated by the process. Another interesting turn of events here was when the ship was beached prior to the judgement; thereby the court in a way merely justified the act instead of taking the difficult and complicated route of criticising it.[22] In face of criticism, the court also ordered the government to make a code regulating Shipbreaking.
This led to the central government passing a law after nearly half a decade called, The Shipbreaking Code, 2013. The Code in its true essence does not depart from the spirit of the international conventions, since it presupposes multiple stages of clearances at the stage of anchoring and beaching and also empowers the central authority to deny permission to ships not fulfilling the requirements of the same. However, as with the Hong Kong Convention, this Code does not provide for prior decontamination of the vessel at the home country, as provided for under the Basel Convention. [23] The state of export is also relived of the requirement of preparing a certificate of decontamination rather only expects them to remove hazardous materials after the ship is anchored in Indian borders. This does not reflect the legislative intent of drafting a code that ensures environmental hazards are reduced.
- Compliance with EU Regulatory mechanism the only solution
What is the solution to this problem then? The fact that Shipbreaking is the greenest form of recycling also sends a shiver down one’ spine, knowing that even the greenest option releases a significantly large amount of toxins and hazardous in the environment. Even though, finding alternative greener methods is always the goal, we must in the meantime identify methods of making this procedure, what one may call ‘greener’. The author suggests that in order to achieve the same we must peruse Article 13(1) of the EU Regulations. The subject matter of the Hong Kong Convention and the EU Regulation is more of less similar in nature. However, the latter goes one step ahead. Firstly, under Article 6(2)(a) it provides that only facilities approved and included in the ‘European List’ can be sent EU Flagged ships. This places a huge check on yards since the requirements are stringent in nature and testimony to the same is the fact that till date most yards are in India are not included in the ‘List’.
The solution to the problem of environmental damage caused by Shipbreaking at the Alang-Sosiya ship yards is simple. We need to comply with the EU Regulations under Article 13 which require recycling facilities to be located in built structures instead of at beaches or on the coastline as is the case with most yards in India. Article 13, EU Regulations further requires the process to be conducted only on impermeable floors with effective drainage system which shall also significantly reduce the environmental damage. At the same time it is essential that we revamp our domestic legislation and include requirements as under the EU Regulations. On a concluding note, we must not wait for the Hong Kong Convention to come in force and instead endeavour to make a robust law governing this ever-changing industry.
*Student, Army Institute of Law, Mohali
This essay was adjudicated as the Winner of 1st NLUO-Ganesh & Co. National Maritime Law Essay Writing Competition, 2019.
[1]Richard Gray,How to Rehabilitate old oil supertankers, BBC, (July, 27, 2019, 19:47) http://www.bbc.com/future/story/20190627-turning-oil-supertankers-into-green-power-stations.
[2] Shipbreaking- A Dirty and Dangerous Industry, NGO Shipbreaking Platform, (July 27, 2019 at 19:55), https://www.shipbreakingplatform.org/.
[3]Ted Jeory and Nick Mathiason, ‘A moral crime’: Leaked contract reveals how shipowners wash their hands of toxic vessels via offshore world, Uncovered, (July 27, 2019 19:57) https://www.financeuncovered.org/investigations/shipbreaking-toxic-ships-offshore-beach-yards-cepsa-gms/.
[4] Supra note 2.
[5] Ibid.
[6] Revisiting the Shipbreaking Industry in India PAPER1
[7]Supra Note 2.
[8] Basel Convention on the Control of Tranboundry Movements of Hazardous Wastes and their Disposal, March 22, 1989, 1673 U.N.T.S. 126 (‘Basel Convention’).
[9] Saurabh Bhattacharjee, From Basel to Hong Kong: International Environmental Regulation of Ship-Recycling Takes One Step Forward and Two Steps Back, 1(2) Trade Law and development 193 (2009).
[10] Supra Note 6.
[11] IMO Resolution A. 980(24) , Doc A. 23/Res.980 (February 3, 2006).
[12] Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, May 19, 2009, SR/CONF/45.
[13]European Commission, Ship Recycling-Global Policy, EU Ofiicial Website, (July 25, 2019, 9:43), https://ec.europa.eu/environment/waste/ships/global_policy.htm.
[14] Basel Convention, Art 4(1)(c).
[15]International Maritime Organization, Resolution A. 962 (23): IMO Guidelines on Ship Recycling (2003) available at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D11404/ResShiprecycling96 2.pdf (last visited Aug. 17, 2009) (hereinafter IMO Guidelines)
[16] Ibid.
[17] Article 1, Hong Kong Convention.
[18] Regulation 16, Hong Kong Convention.
[19]Supra note 9.
[20] Greenpeace, Victory: Toxic Warship Clemenceau Turned Back to France, February 15, 2006, available at http://www.greenpeace.org/international/en/news/features/clemenceaushipbreakingvictory150206/(Last visited on July 4, 2019).
[21] Research Foundation for Science, Technology and Natural Resource Policy v. Union of India ,WP (C) No. 657 of 1995.
[22] Research Foundation for Science, Technology and Natural Resource Policy v. Union of India, (2007) 15 SCC 193.
[23] Basel Convention, Art. 4(2)(d).
Centre for Maritime Law 