The new European Regulation on Ship Recycling (No 1257/2013) will be fully applicable to all EU flagged ships destined for recycling (wherever they may be at such time) from 31 December 2018. Currently, any ship (whatever the flag) departing European waters for recycling is regulated by the European Waste Shipment Regulation (No 1013/2006). After 31 December 2018, the Waste Shipment Regulation will continue to apply to any non-EU flag ship departing from European Union ports for recycling. Pursuant to each of these regulations, ship owners are obliged to recycle their ships under different regimes, both of which, at least as it currently stands, prevent an owner from recycling in the ship recycling yards which provide more than three quarters of the world’s recycling capacity.
The United Nations Environment Programme (UNEP) developed an international convention to address the problem of toxic waste in the 1980s, following a case of dumping toxic waste offshore Africa. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, better known as the Basel Convention, was adopted in 1989, entered into force in 1992 and currently has been ratified by 186 countries (out of a possible 195).
The Basel Convention provides controls for the international movement of hazardous wastes and such controls are implemented through the establishment of a chain of communications between the authorities of the country exporting the hazardous wastes and the authorities of the importing country, with the involvement of the authorities of any transit state. The Convention relies on the “prior informed consent” of the authorities of the importing country, which might agree to the shipment of a certain hazardous waste, on the basis that the waste will be treated in an environmentally sound manner by the importing country.
In order to strengthen protection to developing countries further, in 1995, parties to the Basel Convention adopted the “Ban Amendment”, banning the export of all hazardous wastes from OECD to non-OECD countries. At the end of the 1990s, UNEP decided that the Basel Convention should also regulate the recycling of ships, notwithstanding that the Basel Convention does not make any provision specifically for ships, or recycling yards and safety issues, or for the concept of “flag state”.
The Ban Amendment has not yet entered into force internationally although it appears that this might happen within the next year or two. Nevertheless, the European Union decided it would not wait for the amendment to come into force and the Ban Amendment has been effectively enforced unilaterally since 2006 in the EU, through the European Waste Shipment Regulation. This means that no ship leaving an EU port destined for recycling (regardless of its flag) may be exported to a non-OECD country for that purpose, as end-of-life ships are deemed to be ‘hazardous waste’ by the Regulation.
However, the European Commission found1 during its study period in 2009 that 91 percent of ships that should have been impacted by the Waste Shipment Regulation had evaded its provisions by not declaring at the time of departure from an EU port their true destination and/or fact that they were to be scrapped at that destination. It is, therefore, widely agreed that the Waste Shipment Regulation vis a vis ships for recycling has been (at least historically) unsuccessful, impractical and unenforceable.
The underlying cause for such evasion is due to the fact that the international capacity for ocean going ships is to be found outside the OECD. Furthermore OECD yards pay far less for an end of life ship than the yards in South Asia where more than three quarters of global tonnage is recycled annually.
In light of the failings of the EU Waste Shipment Regulation to regulate ships destined for recycling, the European Commission developed the EU Ship Recycling Regulation specifically to address properly the problem. The EU Ship Recycling Regulation, which will be fully applicable by 31 December 2018 to all EU flagged ships destined for recycling (wherever they may be at such time), mirrors the mechanisms of the International Maritime Organisation’s not yet in force Hong Kong Convention and requires (amongst other things) such ships to be recycled at a yard which has been approved by the European Commission and included on the European List of Authorised Ship Recycling Facilities. As it stands presently, the (first edition of the) European List includes only European yards, but the Commission is now in the process of reviewing applications for inclusion on the List from yards located outside of the OECD.