Communication from the European Commission to the Council - An assessment of the link between the IMO Hong Kong Convention for the safe and environmentally sound recycling of ships, the Basel Convention and the EU waste shipment regulation
Date: 2010-03-12
Institutions: European Commission
Subjects: export of waste, hazardous waste, international convention, vessel, waste management, waste recycling

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EUROPEAN COMMISSION 

Brussels, 12.3.2010 
COM(2010)88 final 

COMMUNICATION FROM THE EUROPEAN COMMISSION 
TO THE COUNCIL 

An assessment of the link between the IMO Hong Kong Convention for the safe and 
environmentally sound recycling of ships, the Basel Convention and the EU waste 
shipment regulation 

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COMMUNICATION FROM THE EUROPEAN COMMISSION 
TO THE COUNCIL 

An assessment of the link between the IMO Hong Kong Convention for the safe and 
environmentally sound recycling of ships, the Basel Convention and the EU waste 
shipment regulation 

1. 

INTRODUCTION 

Following  the  Communication  of  the  Commission  on  an  EU  strategy  for  better  ship 
dismantling1,  the  Council  invited  on  21  October  2009  the  Commission  to  assess  the  link 
between the IMO Hong Kong Convention for the safe and environmentally sound recycling 
of  ships  (the  "Hong  Kong  Convention"),  the  UN  Basel  Convention  and  the  EU  waste 
shipment  regulation2,  and  report  back  to  the  Council  by  2010,  followed  by,  if  appropriate, 
legislative  proposals  in  line  with  relevant  decisions  by  the  Conference  of  the  Parties  to  the 
Basel Convention and the Hong Kong Convention. 

This Communication assesses the link between the three legal instruments as requested by the 
Council  Conclusions,  having  in  mind  the  importance  underlined  by  Council  to  ensure 
complementarity and coherence between different legal provisions related to ship recycling. 
The Council also referred to the ongoing assessment at international level concerning the level 
of  control  and  enforcement  established  by  the  Basel  Convention  and  the  Hong  Kong 
Convention.  Taking  into  consideration  such  decisions,  during  a  second  phase,  the 
Commission may consider appropriate legislative proposals, including measures to implement 
the  Hong  Kong  Convention.  An  assessment  of  environmental,  economic  and  social  impacts 
would be required prior to any proposals for new or amended pieces of EU legislation3.  

2. 

SCOPE, OBJECTIVE AND APPLICABILITY OF THE DIFFERENT LEGAL INSTRUMENTS 

2.1 

The Hong Kong Convention 

The Hong Kong Convention was adopted on 15 May 2009 and is currently open for signature 
and ratification by individual countries that are members of the IMO. Not the EU, but only its 
Member States could become Parties to this Convention.  

2.1.1  Objectives 

The  Hong  Kong  Convention  which  represents  a  major  achievement  for  the  international 
community, provides a 'cradle-to-grave approach'; a system of control and enforcement over a 
ship's lifetime from design, through construction, operation and up to the recycling stage. This 
Convention  establishes  at  global  level  mandatory  requirements  to  ensure  the  safe  and 
environmentally  sound  recycling  of  ships  in  an  efficient  and  effective  manner.  In  order  to 
raise the level of standards in the ship recycling industry, the Convention relies, in particular, 

1 
2 
3 

COM(2008)767 final. 
Regulation (EC) No 1013/2006/EC of 14 June 2006 on shipments of waste, OJ L 190, 12.7.2006, p. 1. 
SEC(2009) 92. 

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on  the  survey  and  certification  of  ships,  the  authorisation  of  ship  recycling  facilities  and 
specific  requirements  such  as  the  obligation  for  shipowners  to  establish  an  inventory  of 
hazardous  materials  on  board  their  ships,  for  ship  recycling  facilities  to  establish  a  ship 
recycling  plan  and  for  the  flag  states  to  conduct  a  final  survey  in  order  to  issue  an 
international ready for recycling certificate. An important element is the limitation for the use 
of hazardous materials in shipbuilding.  

2.1.2 

Scope: Which ships are covered? 

The Hong Kong Convention applies to most privately owned and commercial ships, however, 
with some exceptions.4 The Convention does not apply to small ships, i.e. less than 500GT, 
warships,  naval  auxiliary  or  other  state-owned  or  operated  vessels  which  are  used  only  on 
non-commercial  service  or  ships  for  domestic  transport.  However,  the  Convention  requires 
that  these  ships  act  in  a  manner  consistent  with  the  Convention,  as  far  as  reasonable  and 
practicable.  The  Convention  covers  end-of-life  ships  by  referring  to  vessels  "stripped  of 
equipment or being towed", although it does not refer to any notion of "waste" or "hazardous 
waste". 

2.1.3 

Scope: Which facilities are covered? 

The Hong Kong Convention applies to ship recycling facilities which means "a defined area 
that is a site, yard or facility used for the recycling of ships".5 Ship recycling is the activity of 
dismantling ships in order to recover components and materials for reprocessing and re-use, 
including  on-site  storage  and  treatment  of  components  and  materials  at  the  recycling  site. 
Interim operations, further processing, disposal or management of waste in separate facilities 
are not covered.6 

2.1.4  Applicability 

Each Party shall ensure that ships flying its flag or operating under its authority are surveyed 
and certified in accordance with the Convention.7 The shipowner is required to notify his flag-
state's administration of his intention to recycle a ship in due time and in writing in order to 
enable the administration to prepare for the survey and certification.8 

Ship  recycling  facilities  operating  under  the  jurisdiction  of  a  Party  shall  comply  with  the 
requirements  of  the  Convention  and  be  authorised  in  accordance  with  the  Convention.  Ship 
recycling  facilities  must  prepare  a  ship  recycling  facility  plan.  The  Convention  contains 
provisions on exchange of information between Parties, inspections of ships and violations. 

Recycling facilities should be managed so as to prevent adverse effects to human health and 
the  environment,  and  to  ensure  safe  and  environmentally  sound  management  of  hazardous 
materials,  emergency  preparedness  and  response  and  worker  safety  and  training.  Facilities 
shall establish and use procedures taking into account specific guidelines to be developed by 
IMO. At least six guidelines will be developed to ensure global and effective implementation 
and  enforcement  of  the  Convention.9  The  first  guideline  on  the  inventory  of  hazardous 

4 
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6 
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Articles 2(7) and 3. 
Article 2(11).  
Article 2(10). 
Article 5. 
Regulation 24. 
See 4th resolution adopted by the Diplomatic Conference 15 May 2009.  

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materials was adopted on 17 July 200910. The guidelines on safe and environmentally sound 
ship recycling are in an advanced stage of preparation.  

2.1.5 

Enforcement 

Parties shall prohibit any violation of the Convention within theirs jurisdiction and they shall 
establish sanctions adequate in severity to discourage violations of the Convention wherever 
they occur. Parties shall co-operate in the detection of violations and the enforcement of the 
Convention. 

A  ship  in  any  port  or  offshore  terminal  of  another  Party  may  be  subject  to  inspections  to 
determine  whether  it  is  in  compliance  with  the  Convention.  Such  inspections  are  limited  to 
verifying  that  relevant  certificates  are  on  board,  which,  if  valid,  shall  be  accepted.  The 
inspections may only go further if it has been requested by another  Party  holding  sufficient 
evidence. All possible efforts shall be made to avoid a ship being unduly detained or delayed. 
Otherwise, it shall be entitled to compensation for any loss or damage suffered. 

If  the  ship  is  detected  to  be  in  violation  of  the  Convention,  the  Party  carrying  out  the 
inspection may take steps to warn, detain, dismiss, or exclude the ship from its ports. In this 
case, it shall immediately inform the flag state administration of the ship concerned and the 
IMO. 

Each  Party  shall  establish  a  mechanism  for  ensuring  compliance  of  its  recycling  facilities, 
including  the  establishment  and  effective  use  of  inspection,  monitoring  and  enforcement 
provisions and powers of entry and sampling. This may include audit schemes.11 Following a 
substantiated request from another Party for an investigation12, a Party should investigate the 
Ship or the Ship Recycling Facility and make a report. This report shall be sent to the Party 
requesting it, including information on action taken or to be taken, if any, and to the IMO for 
appropriate action.  

At this stage it is difficult to fully assess the expected level of control and enforcement that 
the Hong Kong Convention will achieve in its entirety. The envisaged system of control and 
enforcement  elements  is  adapted  to  the  specificities  of  the  maritime  world,  but  the  actual 
degree  of  success  will  depend  on  economic  circumstances  and  on  the  diligence  with  which 
States will take regulatory and enforcement action.  

2.2 

The Basel Convention 

The UN Basel Convention on the control of transboundary movements of hazardous wastes 
and their disposal was adopted in 1989. All individual Member States and the EU are Parties 
to the Basel Convention. 

2.2.1  Objectives 

The Basel Convention was adopted as the instrument to principally regulate the movement of 
hazardous waste across international frontiers. The overall goal of the Convention is to protect 

10 
11 
12 

Resolution MEPC.179 (59).  
Regulation 15. 
Article 9. 

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human  health  and  the  environment  against  adverse  effects  which  may  result  from  the 
generation, management, transboundary movements, and disposal of hazardous wastes. 

2.2.2 

Scope: Which ships are covered? 

The Convention applies to hazardous wastes and certain other wastes (mixed waste collected 
from  households  and  residues  arising  from  the  incineration  of  household  waste),  as  well  as 
wastes  defined  as  hazardous  waste  under  national  legislation.  It  is  relevant  for  ship 
dismantling, as a ship that is sent for scrapping usually contains hazardous materials and may 
therefore be considered as a shipment of hazardous waste. A ship may indeed become waste 
under  the  Convention  and  at  the  same  time  it  may  be  defined  as  a  ship  under  other 
international  rules13.The  Basel  Convention  thus  applies  to  all  ships  which  are  "waste"  as 
defined by the Convention. There are no exceptions for any types of ship. 

2.2.3 

Scope: Which facilities are covered? 

All  types  of  facilities  during  the  various  stages  of  waste  management:  collection;  transport; 
recycling; recovery and disposal; including after-care of disposal sites are covered.14 

2.2.4  Applicability 

“Wastes” in the sense of the Basel Convention are substances or objects which are disposed of 
or  are  intended  or  are  required  to  be  disposed  of  by  the  provisions  of  national  law15.  Main 
obligations of Parties include minimizing of the generation and transboundary movement of 
hazardous wastes and ensuring the availability of adequate disposal facilities.16 

The Convention establishes a control system with a prior informed consent procedure (PIC) 
for  transboundary  movements  of  hazardous  waste  between  parties,  requiring  a  written 
authorisation from the states of export, import and, if relevant transit, a contract between the 
exporter  and  the  disposer  and  possibly  an  insurance,  bond  or  other  guarantee  before  a 
transboundary movement of hazardous wastes can take place.  

The principle of environmentally sound management (ESM) of hazardous waste is a central 
goal, applying to all facilities that recover or dispose of waste.17 Ship recycling facilities shall 
be  authorised  in  accordance  with  the  Convention’s  principles  of  ESM,  which  are  further 
elaborated  under  a  series  of  technical  guidelines.  Under  the  Basel  Convention's  technical 
guidelines  on  ship  dismantling,  'beaching'  is  not  accepted  as  impermeable  floors  are 
prescribed for full ship containment at any stage of the dismantling process.18 

Illegal  traffic  in  hazardous  wastes  or  other  wastes  is  criminal  and  each  Party  must  take 
appropriate legal, administrative and other measures to implement and enforce the provisions 
of the Convention.19 

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16 
17 
18 
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See decision VII/26 adopted in 2002. 
Articles 2(1) and Annex IV. 
Article 2 (1). 
Article 4. 
Article 2.  
See decision VI/24 adopted in 2002. 
Article 4 (3) and (4). 

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The  Convention's  control  system  also  includes  import  prohibitions  imposed  some  Parties, 
annual reporting and communication obligations and a dispute settlement process. 

The  “Basel  Ban  amendment  of  1995  prohibits  all  transboundary  movements  of  hazardous 
wastes from OECD, EC and Lichtenstein to other countries.20 It has not yet entered into force 
although it is given effect within the EU. 

2.2.5 

Enforcement 

Illegal traffic should be prevented through national/domestic legislation, cooperation between 
Parties and information to the Basel Secretariat.21  

The  Convention’s  Mechanism  for  Promoting  Implementation  and  Compliance22  promotes 
implementation  of  and  compliance 
is  non-
confrontational, transparent, and non-binding. 

through  a  15  member  Committee.  It 

While  Basel  convention's  enforcement  system  functions  relatively  well  for  most  hazardous 
wastes, it is applied to relatively few end-of-life ships and is difficult to enforce in relation to 
most  of  the  world's  merchant  fleet.  Specific  challenges  for  the  system  are  identifying  in 
practice when a ship becomes waste, which country is the “state of export” as defined by the 
Basel Convention. 

2.3 

The EU waste shipment regulation 

2.3.1  Objectives 

The  EU  waste  shipment  regulation  aims  to  ensure  the  protection  of  the  environment  when 
waste is subject to shipment.23 It implements the Basel Convention at EU level, as well as the 
Basel "ban" by banning all exports of waste for disposal, whether hazardous or not, except to 
EFTA  countries.  No  exemptions  are  possible.  All  waste  shipped  between  the  EU  and  third 
countries as well within the EU shall be managed without endangering human health and in 
an environmentally sound manner throughout the period of shipment and during its recovery 
and disposal. The requirements of the EU waste framework directive and other EU legislation, 
for example on health and safety of workers or regarding the specific management of certain 
materials such as asbestos, shall be respected.24 

2.3.2 

Scope: Which ships are covered?  

The  regulation  applies  to  all  ships  which  are  "waste"  as  defined  under  the  EU  waste 
framework  directive  i.e.  when  its  holder  discards  or  intends  or  is  required  to  discard  the 
ship.25 

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23 

24 
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See decision III/1 adopted in 1995. 
Article 19. 
See Decision VI/12 adopted in 2002.  
Regulation (EC) No 1013/2006/EC of 14 June 2006 on shipments of waste, OJ L 190, 12.7.2006, p. 1, 
in particular recitals 1 and 42.  
Article 49 (1). 
Directive 2008/98/EC on waste, OJ L 312, 22.11.2008, p. 3. 

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2.3.3 

Scope: Which facilities are covered? 

EU waste legislation covers the management of waste at all stages and at all types of facilities, 
including interim operations, during the entire period of shipment. 

2.3.4  Applicability 

If an end of life ship contains hazardous substances listed in Annex V of the regulation (e.g. 
asbestos or PCBs), what is often the case, it is covered by the export ban. The export of 'non-
hazardous" end-of-life ships, can take place to facilities which can carry out environmentally 
sound  management  of  waste.26  Recycling  facilities  in  a  country  of  destination  are  to  be 
operated  in  accordance  with  human  health  and  environmental  protection  standards  that  are 
broadly equivalent to standards established in the European Union. 

2.3.5 

Enforcement 

The  regulation  is  directly  applicable  in  the  Member  States,  who  shall  take  all  necessary 
measures  to  ensure  that  the  regulation  is  enforced,  including  by  setting  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 and for spot checks on shipments of waste or on the related recovery or disposal. In 
addition,  Member  States  shall  cooperate  to  facilitate  the  prevention  and  detection  of  illegal 
shipments. Member States shall 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.27. 

In  practice,  enforcement  of  the  regulation  is  difficult  when  a  ship  becomes  waste  outside 
European waters although some decisions have been made by national courts.28 Recent cases 
have shown uncertainty of some national authorities on when and how to enforce the waste 
shipment rules in relation to suspected end-of-life ships. 

3. 

COMPARISON  BETWEEN  SCOPE,  OBJECTIVES  AND  APPLICABILITY  OF  THE  THREE 
INSTRUMENTS  

The  EU  Waste  Shipment  Regulation  and  the  Basel  convention  are  already  in  force  at 
European  level.  The  Basel  Convention  has  currently  172  Parties  which  includes  nearly  all  of  the 
Member States, with the exception of the USA.  

The willingness of both flag and Recycling States to ratify the Hong Kong Convention will be 
influenced  by  the  political,  legal  and  economic  incentives  for  becoming  a  Party  or  staying 
outside  the  Convention.  Flag  States  could  find  it  attractive  to  become  a  Party  to  such  a 
Convention with a clear and relatively simple system of rules which would satisfy the public 
demand  for  safe  and  environmentally  sound  ship  recycling  without  creating  unnecessary 
burdens  for  shipowners  and  administrations.  Recycling  States  might  be  expected  to  support 
this Convention if it is apparent that the majority of shipowners will send their ships only to 
facilities  which  comply  with  the  new  rules,  and  if  the  costs  of  improving  the  recycling 

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Articles 2(8) and 49. .  
Article 50 
See Communication on an EU strategy for better ship dismantling COM(2008) 767 final . 

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industry  are  outweighed  by  the  economic  benefits.  Ratification  by  both  Flag  and  Recycling 
States will be needed in order for this Convention to enter into force.  

The Hong Kong Convention covers the whole life cycle of a ship, of 500 GT and above with 
the normal exclusion of warships or government owned ships, from their construction phase 
to  their  environmentally  sound  recycling.  The  EU  waste  shipment  regulation  and  the  Basel 
Convention  cover  all  type  of  ships  when  they  are  waste  and  subject  to  transboundary 
movement to environmentally sound managed facilities.  

The Hong Kong  Convention does not contain any geographical export limitation as long as 
the recycling facilities are authorized and located in a Party to the Hong Kong Convention. Its 
provisions  are  addressed  to  Flag  States,  where  the  ships  concerned  are  registered,  and  to 
Recycling States.  

The  EU  Waste  Shipment  Regulation  set  up  some  geographical  limitations  since  exports  to 
certain countries is prohibited. The Basel Convention and the EU Waste Shipment Regulation 
also  require  the  recycling  facilities  to  be  authorized.  Their  provisions  are  addressed  to 
Exporting States, Importing States and, if relevant, Transit States.  

Dismantling  in  order  to  recover  materials  and  components  for  reprocessing  and  re-use  is 
covered  by  all  three  legal  instruments.  However,  subsequent  processing  and  downstream 
treatment of components and materials, such as further recovery- and recycling processes and 
disposal  operations  are  only  covered  by  the  Basel  Convention  and  the  EU  Waste  Shipment 
Regulation. The latter achieves particularly extensive coverage by covering facilities carrying 
out interim operations and subsequent final recovery and disposal. 

The  systems  of  control  under  the  PIC-procedures  and  export  bans  of  the  Basel  Convention 
and  the  EU  Waste  Shipment  Regulation  aim  to  secure  that  end-of-life  ships  only  go  to 
environmentally  sound  management  as  defined  by  the  existing  guidelines  under  the  Basel 
Convention. The EU Waste Shipment Regulation goes further by implementing the Basel ban 
and  prohibiting  all  exports  of  hazardous  waste  to  non-OECD  countries.  The  Hong  Kong 
Convention requests Parties to establish the necessary legislation, regulations, and standards 
to  ensure  that  recycling  facilities  are  designed,  constructed,  and  operated  in  a  safe  and 
environmentally sound manner. Technical guidelines on safe and environmentally sound ship 
recycling are in an advanced stage of preparation. Their technical requirements will have to be 
taken  into  account  by  Parties  in  their  implementation  of  the  Hong  Kong  Convention.  In 
addition, guidelines for the Authorization of ship recycling facilities will be developed.  

Under the Hong Kong Convention, 'beaching' remains as an open issue until guidelines have 
been adopted by IMO. Under the Basel Convention's technical guidelines and the EU Waste 
Shipment  Regulation  'beaching'  is  not  accepted  as  a  dismantling  method  and  it  is  clearly 
stipulated that impermeable floors are prescribed for full ship containment at any stage of the 
dismantling process.  

On enforcement, it may be said that the system of control and enforcement for transboundary 
movements  of  hazardous  waste  through  the  Basel  Convention  and  the  EU  Waste  Shipment 
Regulation is strict and functioning relatively well for most hazardous wastes, but is difficult 
to enforce in practice in relation to end-of-life ships.  

The practical effectiveness of the mechanisms of the Hong Kong Convention will depend on a 
variety  of  factors,  such  as  the  authorization  policy  of  the  recycling  state,  the  possible 
involvement  of  third  parties  in  the  monitoring  and  auditing  of  ship  recycling  facilities,  the 

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practice of port State control, and the existence of strong incentives for compliance with the 
rules of this new Convention. 

4. 

NEXT STEPS  

At international level, further procedural steps require29 the carrying out of an assessment of 
whether  the  Hong  Kong  Convention  establishes  an  equivalent  level  of  control  and 
enforcement  as  that  established  under  the  Basel  Convention.  The  seventh  Open-ended 
Working  Group  of  Basel  convention  that  will  meet  from  10  to  15  May  2010  has  been 
requested  to  carry  out  a  preliminary  assessment  on  whether  the  Hong  Kong  convention,  as 
adopted, establishes an equivalent level of control and enforcement as that established under 
the Basel Convention, in their entirety, after having developed the criteria necessary for such 
assessment. The results of the assessment will then be transmitted to the tenth Conference of 
the Parties of Basel Convention that will meet in October 2011 for consideration and action, 
as appropriate.  Following this assessment  it  is expected that a decision will be made by the 
Parties  to  the  Basel  Convention  on  whether  any  amendments  shall  be  introduced  to  this 
convention. 

At EU level, the EU should contribute to this international debate on the equivalent level of 
control and take the necessary follow-up action as appropriate. Individual Member States are 
strongly  encouraged  to  ratify  the  Hong  Kong  Convention  as  a  matter  of  priority,  so  as  to 
facilitate its entry into force as early as possible and to generate a real and effective change on 
the ground. In any case it has, however, to be noted that they remain bound also by the legal 
the  EU  Waste  Shipment  Regulation.
obligations  of 

the  Basel  Convention  and 

29 

See decision IX/30 adopted in 2008.  

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IMO Convention 

Basel Convention 

EU waste shipment regulation 

Scope: ships 

Scope: facilities 

All end-of-life, privately owned 
ships apart from certain small ships 
(<500GT), no coverage of warships 
and other state-owned ships. 

The first dismantling- and recycling 
site, but not any interim facilities or 
installations for subsequent 
processing and disposal of waste. 

Objectives and 
applicability 

Control of ships from design, 
through construction, operation and 
at the recycling stage. However, 
specific requirements for 
authorisation and environmentally 
sound management of hazardous 
waste not clear until the IMO 
guidelines, that are currently been 
developed, are adopted. .  

All end-of-life ships. 

All end-of-life ships. 

All waste management facilities, including 
collection, transport, interim- and final recovery 
and disposal. Explicit coverage of interim 
operations.  

PIC procedure. "Basel ban" is implemented 
prohibiting exports of hazardous waste from 
OECD countries to all facilities in non-OECD 
countries. Exports of non-hazardous waste are not 
allowed to facilities which do not respect 
environmentally sound management. The EU 
regulation refers explicitly to the Basel 
Convention's technical guidelines on ESM  

All waste management 
facilities, including 
collection, transport, 
interim- and final recovery 
and disposal.  

Prior informed consent 
procedure (PIC). The 
principle of environmentally 
sound management (ESM) 
of waste applies to all 
facilities that recover or 
dispose of waste and is 
defined by guidelines, also 
specifically covering ship 
dismantling. The Basel 
guideline on ESM for ship 
dismantling does not accept 
'beaching' (impermeable 
floors are prescribed for full 
ship containment). 

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