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Hong Kong v. the Basel Convention
From the moment the issue of end-of-life ships was first brought to the agenda of the Basel Convention at the 5th Conference of Parties in 1999, and culminating at COP10 in Cartagena, Colombia in 2011, the shipping industry, including the International Chamber of Shipping, has tried very hard to wrestle competency and control over end-of-life ships away from the Basel Convention.
This effort did not succeed, but the shipping industry which holds sway at the International Maritime Organization (IMO), did convince that UN body to create a separate treaty on the recycling of end-of-life vessels which became known as the Hong Kong Convention. The shipping industry hoped that the new treaty would someday replace the Basel Convention and in so doing, sidestep the strict requirements of international environmental law which considers end-of-life ships to be hazardous wastes which should not be exported to developing country beaches for dirty and dangerous scrapping operations.
While the Basel Convention Parties did not prevent the IMO from proceeding with their own convention on ship recycling, the Parties did insist in Decision VII/26 that the IMO do so in a manner which provided an "equivalent level of control" -- this phrase being an abbreviated way of referring to the requirement of Article 11 for agreements on the same subject matter as the Basel Convention, to include "provisions which are not less environmentally sound than those of the Convention in particular taking into account the interests of developing countries."
The issue of whether the Hong Kong Convention provides an "equivalent level of control" as that of the Basel Convention has been hotly debated ever since the Hong Kong Convention was adopted. Legal scholars have weighed into the debate most recently with submissions to the European Commission. See NGO Shipbreaking Platform, the Centre for International Environmental Law (CIEL) as well as Dr. Ludwig Kramer all explaining in detail why the two Conventions are far from equivalent in their levels of environmental control and protection.
For the Basel Parties the issue last came to a head in 2011at COP10 in Cartagena, Colombia. As noted in Decision 10/17 of that meeting, the Parties could not agree on that matter and so acknowledged that the "Basel Convention should continue to assist countries to apply the Basel Convention as it relates to ships."
The Debate Returns as Hong Kong Convention Enters Force
Today this debate returns to the Basel Convention, as the Hong Kong Convention has fulfilled its requisite requirements for entry into force and will do so on 26 June 2025. And, with entry into force imminent, the shipping industry and some countries supporting them are once again preparing to take another run at the Basel Convention's competency over end-of-life ships.
In anticipation of the entry-into-force date, and without bothering to consult the Basel Secretariat about the legality or desirability of doing so, the IMO released a preliminary guidance document (IMO Circular HKSRC.2/Circ.1) that calls on Parties to both the Basel and the Hong Kong Conventions to notify the Basel Secretariat that they consider notifying the Basel Secretariat that "the provisions of the Basel Convention shall not affect transboundary movements which take place pursuant to the [HK] Convention." In other words one UN treaty is advising Parties to another UN treaty - without consultation or consensus - that they should consider abrogating their Basel responsibilities. Imagine if the Basel Convention were to advise its Parties to do the same -- that where ships are concerned Basel and only Basel must apply.
According to legal experts "such a unilateral assertion and notification cannot be considered as definitive as to the question of whether an arrangement or agreement under Article 11 is compatible with the Basel Convention but is rather ultimately one for a collective decision of the parties to the Basel Convention themselves." Just as the Basel Convention has denied individual countries the right to reserve on treaty application (Article 26, para. 1), one cannot unilaterally reserve on fulfilling obligations via Article 11. Such a decision must be made collectively by the Parties as an amendment or collective interpretation. The last time this was attempted at COP10, there was agreement among Parties that Basel should retain its competency. Today, with the entry into force of the Ban Amendment, it is even more likely that this should be the case.
Why is this Happening?
The idea that one must comply with multiple laws at the same time should not be controversial. We do this every day of our lives, and such is common in international law. The only justification for having only one applicable law at a time be given precedence is when a true conflict exists -- when it is impossible to apply both laws at the same time. No such conflict exists between the Basel and Hong Kong Conventions. The examples given by shipping industry association BIMCO in their submission to the IMO, imply at best inconvenience to apply both Conventions, not conflict. We must be clear-eyed about why we are hearing such arguments against joint competency.
Sadly, the reason the shipping industry wants Basel to stand down, does not appear to hinge on the notion that the Hong Kong Convention does a better job of managing ships as waste or protecting the interests of vulnerable ecosystems, workers and communities in developing countries. Rather, their concern is that the Basel Convention does far more in that regard than they would like. The Basel Convention restricts hazardous waste trade -- the externalisation of real costs and harm to weaker economies -- and places human rights and global environmental justice at the heart of the Convention. As such, it is a direct threat to the profits garnered by the continued use of developing countries as cheap and dirty destinations for old ships laden with oily sludges, asbestos, PCBs and heavy metal wastes.
Clearly, if the two treaties were in fact equivalent in terms of protecting developing countries from being disproportionately burdened by hazardous wastes from ships, it is doubtful any debate would exist at all.
Hong Kong Convention -- Weaker in Principle and Substance
It is undisputable that end-of-life ships are hazardous waste, as Basel Decisions and recent legal precedents in Norway and the European Union for criminal liability have showcased.
And yet, against global legal precedent, the Hong Kong Convention does not seek to prevent exports of hazardous end-of-life ships. It ignores the fundamental right established by Basel to refuse or consent to import and export of hazardous waste via the prior informed consent procedure. This alone is a glaring lack of equivalency. The Hong Kong Convention further lacks equivalence in terms of ensuring the safe and environmentally sound management of end-of-life vessels. As witness to the weak standards set by the Hong Kong Convention, more than 100 beaching yards in Alang, India, have already obtained so-called Statements of Compliance with the Hong Kong Convention. And yet none of these have impermeable flooring in the primary cutting zone, many not even in the secondary cutting zone. The Basel Convention's Technical Guidelines on the Full and Partial Dismantling of Ships calls for full containment to prevent hazardous materials from leaking into sensitive coastal environments. The Basel Convention also calls for the safe and environmentally sound disposal of hazardous wastes -- several yards in Bangladesh have received a Statement of Compliance with the Hong Kong Convention despite no capacity to manage and dispose of the hazardous wastes found on board end-of-life vessels.
With the December 2019 entry into force of the Basel Ban Amendment (Article 4a), the long list of reasons why the Hong Kong Convention is not the equivalent of Basel has become even longer, and certainly now irrefutable. As a case in point, prior to the Ban Amendment entering into force, the EU made the somewhat tortured argument that the Hong Kong authorisation scheme for ship recycling facilities could somehow project an equivalent control system. Today, following the entry into force of the Ban Amendment, the newly recast EU Waste Shipment Regulation cited the Ban Amendment as a reason it had to reverse the previous exemption of ships flying the EU flag from being wastes subject to Basel control.
Nobody can make a serious legal argument that any form of national permitted facility can be the equivalent of a no-exceptions ban on the export of toxic waste from developed to developing countries. And that is also why, along with the many other differences already outlined in the aforementioned legal analyses between the two Conventions, that Basel Parties must not give credence to the idea that the Hong Kong Convention can be considered a valid Article 11 Basel agreement.
Conflict Clauses Negate Recourse to "Lex Posterior" or "Lex Specialis"
Recently the shipping industry has resorted to seek arguments in Article 30 of the Vienna Convention on the Law of Treaties (VCLT). Article 30 is meant to be used when there is a true conflict between Conventions and where the text of the Conventions themselves do not provide guidance on what to do about potential overlaps or conflicts. Yet, as we have noted, the Basel Convention recognises and allows for other treaties or agreements to exist covering the same subject matter as Basel. However it stipulates that Basel can only be "replaced" in competency by virtue of the rules of Article 11 -- that is, the alternate arrangement must provide an "equivalent level of control." Despite knowing that such equivalency was necessary in order to have Basel stand down, and after receiving the clear marching orders from the Basel Convention to do so, the Hong Kong Convention failed to meet that bar.
Article 15 of the Hong Kong Convention provides another conflict clause that is also important. The Hong Kong Convention indicates in Article 15(2) that "Nothing in this Convention shall prejudice the rights and obligations of Parties under other relevant and applicable international agreements." This provision is clearly not an assertation of priority of the Hong Kong Convention over prior treaties, such as the Basel Convention. Rather, as has been argued by Professor James Harrison in a recent legal analysis of the application of both conventions, it asserts the opposite -- that the rights and obligations in other treaties will prevail over the Hong Kong Convention. Article 15 is an acknowledgement that other international rules, such as the Basel Convention, will continue to apply in the case of overlap and the new rules in the Hong Kong Convention will not prejudice or take precedence over such other rules.
As we have seen, the text of both conventions provide strong clauses with respect to any potential conflicts, and, as is argued by Professor Harrison, it is only in the absence of such clear guidance that it may be necessary to resort to Lex Posterior (precedence for later treaties) or Lex Specialis (precedence for more specific treaties).
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