LEGAL ANALYSIS OF TRANSBOUNDARY POLLUTION FROM RECYCLING OF VESSELS IN INDIA

Abstract: India conducts the world’s largest ship-recycling operation in Alang, Gujarat.  Nearly 153 ship-breaking yards line a 10 kilometre long coastal stretch in Bhavnagar district, where End of Life (EOL) vessels are brought to be dismantled.  The term EOL refers to a ship that is at the end of its useful life.  At the ship breaking yards vessels are dismantled and various types of scraps and equipment are extracted for recycling and reusing.  This article delves into the legal intricacies of dismantling, recycling and dumping in India of EOL vessels, which are clearly a hazardous waste.  The process starts with the movement of such vessels from a flag State to an importer State (in this case India) and ends with parts of the vessel being recycled or dumped.  Various international conventions prohibit trade in hazardous waste due to the threat it poses to the environment.  The act of an EOL vessel crossing State boundaries for the sole purpose of disposal is classified as transboundary pollution.  While the ship recycling operation has become stringent with new regulations in India, protection of marine environment in its entirety has a long way to go.  This article further focuses on the impact of ship recycling on the marine environment both in India and her neighbourhood.

 

When a vessel reaches end of its useful life it is meant to be disposed-off, by being dismantled and recycled.  An End-of-Life (EOL) vessel may contain various amounts of hazardous materials within its structure, such as asbestos, heavy metals, mineral oils, bilge-and-ballast water, polycyclic aromatic hydrocarbons (PAHs), polychlorinated biphenyls (PCBs), organotin, tributyltin (TBT), etc.  Oil tankers, in particular, have considerable amounts of residual oil compared to other vessels.^[1]

As old vessels contain hazardous substances, they are considered to fall under the category of hazardous waste.  These vessels are then sent for ship recycling^[2]  also referred-to as ship breaking, and ship dismantling — where they travel from the flag State to the importer State.  According to Black’s Law Dictionary, a flag State is defined as, “the flag State of a merchant vessel is the jurisdiction under whose laws the vessel is registered or licensed and is deemed the nationality of the vessel.  A merchant vessel must be registered and can only be registered in one jurisdiction but may change the register in which it is registered”.

Vessels are not usually recycled in European or American flag States, as the cost of ship-dismantling and recycling is far higher than it is in India or other countries in the Indian sub-continent.  Once the EOL vessel travels into the territory of an importer State such as India, it is first beached, then dismantled, with its various parts thereafter being recycled or reused.  The waste from ship breaking is disposed-off by the importer State which, having accepted the EOL vessel into its territory, bears the burden of disposal of waste.^[3]

In the recent past, India has become a world leader in shipbreaking, generating significant earnings for the country’s shipbreaking industry.  However, the industry has repeatedly failed to maintain environmental standards and protect the marine habitat.  This was indicated in 2016 by the non-governmental organisation, “Ship Breaking Platform and Transport and Environment” (T&E), which publicly denounced the decision of Maersk (Danish shipping company and world’s largest container shipping line and vessel operator), to beach their EOL vessels in India.  According to the NGO’s Executive Director, Maersk took this decision only because the cost of beaching in India was considerably lower than elsewhere.^[4]

Under international law, a State’s freedom to engage in, or permit, natural resource-related activities within its territorial boundaries is subject to the understanding that such activities are not environmentally hazardous and do not produce transboundary effects that would be contrary to the rights of others.^[5]  This principle came into being due to several incidents in the past involving the unlawful dumping of hazardous waste in developing countries from industrialised nations, resulting in environmental pollution.^[6]

This article starts by describing the various provisions under the legal framework covering the process of ship recycling and responsibilities of the stakeholders.  It thereafter analyses the legal regime governing the whole process and the transboundary pollution caused by disposal of hazardous waste in the importer State territory.  It goes on to indicate the effects of ship recycling in India and her neighbourhood, and the violation of the ‘principle of good faith’, which is enshrined in international law.  Finally, it offers a couple of  policy recommendations so that India can retain her position as a world leader in ship-recycling while ensuring that the resultant waste is sustainably managed.

 Laws Governing Ship Recycling

 There are three conventions that particularly deal with aspects of ship recycling.  These are: (1) The Basel Convention on The Control of Transboundary Movements of Hazardous Wastes and Their Disposal 1989, (2) The United Nations Convention on the Law of the Sea 1982, and (3) The Hong Kong International Convention for The Safe and Environmentally Sound Recycling of Ships 2009.  Of them, the Basel Convention was the first to specifically cover transboundary pollution from hazardous waste.  Provisions of these conventions are discussed in some detail in the succeeding paragraphs.  Incidentally, India is a signatory to all three.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989 

 This convention establishes a global regime for the control of international trade in hazardous and other wastes, and lists various responsibilities that a State assumes when dealing with hazardous waste.  Under article 4(10), member States are prohibited from exporting hazardous waste to other contracting States that cannot soundly handle those wastes.

Article 4(8) obligates exporting States of hazardous waste to procure written consent from the importing State and ascertain their capability in managing waste in a sound manner, so that it avoids causing pollution in the importing countries.  This ensures promotion of environmentally sound management of hazardous waste by restricting its cross-border movement.^[7]  Importantly, article 4(2)(e) stipulates that the accord of consent of an importing State that is incapable of managing the hazardous waste in its territory, is irrelevant.

The Convention also governs the control of hazardous substances that are separated from the ship’s structure after recycling at a ship recycling facility.^[8]  Under the stipulation to obtain prior and informed consent, the requirement is not only to obtain consent of such an act from the importing State but from all the coastal and transit States adjacent to the importing State, as well.^[9]  However, given the nature of the international business of shipping, this is clearly impractical for shipowners and this stipulation is largely ignored.

United Nations Convention on the Law of the Sea 1982

Considered (somewhat optimistically) to be the ‘constitution for the oceans’, the United Nations Convention on the Law of the Sea (UNCLOS, 1982) nevertheless does encompass all aspects of ocean management^[10] by imposing an obligation upon the party nations to protect and preserve the marine environment.  To this effect, article 194(1) of the convention obligates States to take all measures to prevent, reduce, and control pollution of the marine environment from any source, using the best practicable means at their disposal and according to their capabilities. The subsequent section of the same article obligates States to ensure that pollutants do not spread beyond areas where they enjoy sovereign rights. Accordingly, States are not only required to protect themselves from marine pollution, but are also obligated to ensure that activities under their jurisdiction do not cause damage by pollution to other States and their environment.  This accountability is prudent, as the spread of marine pollution does not recognise either State sovereignty or physical boundaries.  Stopping or minimising pollution^[11]of marine environment can be done by preventing the release of toxic, harmful or noxious substances, especially those that are persistent, either from land-based sources or through dumping.

Amongst the several hazardous substances found in and emanating from shipbreaking yards, Persistent Organic Pollutants (POP)^[12] pose a particularly grave threat to the safety of the marine environment across the South Asian region.^[13] States are obligated to act in a manner as neither transfer pollutants nor to directly or indirectly transform one type of pollution into another.^[14]  Since land-based marine pollution can readily extend beyond the geographical or land territory of any given State, it thus becomes the duty of the States involved to prevent, reduce and control pollution of marine environment from land-based sources.^[15]  Under article 207, regarding “pollution from land based source”, States must minimise the release of toxic, harmful or noxious substances, especially those persistent in the marine environment, and prevent, reduce, and control pollution of the atmosphere as well.

Article 204 (2) calls upon States to maintain surveillance over the effects of their activities and to examine the potential impact of such events on the marine environment.  Under article 204 (1), States must endeavour, directly or through competent international organisations, to observe, measure, evaluate, and analyse, using recognised scientific methods, the risks or effects of pollution on the marine environment, and thereby adopt laws and regulations to prevent, reduce, and control pollution of the marine environment by dumping.

Regarding protection of the marine environment of neighbouring States, article 210(5) does not permit dumping within the territorial sea or the exclusive economic zone of a State without giving due consideration to other States, which may be adversely affected due to their geographical location. The article adds that developing countries are guaranteed preferential basis for the allocation of necessary funds, technical assistance, and specialised services through international organisations to combat the threat of pollution pervading their territories and beyond them as well.

Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009

This convention provides a “cradle-to-grave approach” — a system of control and enforcement over a ship’s lifetime, from its design and all through its construction, operation, and finally, its disposal and recycling.  It instructs shipowners and owners of recycling facilities to ensure safe and environmentally sound recycling.  In general, the recycling facility must establish management systems, procedures and techniques that do not affect the environment, and prevent, reduce, minimise, and to the extent practicable eliminate adverse effects on the environment caused by the procedures they adopt.^[16]

Processes within Ship-Recycling

Even as the above legal conventions highlight the responsibility of States to protect the marine environment, they do not cover individual stages of the ship-recycling process and, consequently, several involved actors engaged in violation of the principles that these conventions seek to uphold, manage to operate “under the radar”, so-to-speak.  The more obvious of these gaps are outlined in the succeeding paragraphs.

Movement of EOL Vessel.

None of the above-mentioned conventions indicate the point at which an EOL vessel, moving from flag State to importer State, ceases to operate at sea and become a hazardous waste.  The vessel in question, however, remains operational until it touches the beachhead in a beaching facility, and all international laws applicable to an ordinary ship at sea remain applicable, while the vessel is simultaneously both, an operating ship and a hazardous waste.^[17]  This distinction is vital as the jurisdiction for a flag State only extends to a vessel in its operative life and not after it morphs into a hazardous waste.  As the vessel ceases to exist after it is dismantled and gets converted to hazardous waste, the liability of disposal of this hazardous waste automatically falls on the importer State and not the flag State.

EOL vessels of coastal or land-locked States enjoy the right of innocent passage^[18] through the territorial sea of coastal States, and their movement to the ship recycling facility is considered innocent.^[19]  However, a coastal State can take steps to prevent the passage of an EOL vessel into its territorial sea in case the passage is not considered innocent and has adverse effects on its coastal marine environment.^[20]  This is significant because an EOL vessel can, of course, cause wilful and serious pollution.^[21]  For instance, decommissioned ships frequently develop leaks in the engine room or bilge spaces, which can contribute to marine and atmospheric pollution as they discharge excessive bilge water or emit excessive black smoke due to faulty main and auxiliary engine and exhaust systems.^[22]  When contaminated, worn out, damaged, leaking, or rusty ships are towed across the oceans to ship-breaking facilities, they pose a severe threat to the marine environment of the coastal States through which the ships must pass.^[23]

Moreover, taking a toxic ship under the authority of a flag State to importing State for beaching and breaking while knowing about the ship’s inability to manage pollution in a sound manner, is wilful blindness on the part of the shipowner and the flag State.  Coastal neighbouring States that are providing innocent passage to such old, decommissioned ships, are also guilty of wilful blindness.  Such wilful blindness could be considered as a deliberate intent to cause pollution within the importing State and also, to the surrounding areas, including adjacent States.  Even if an importing State does not object, the adjacent coastal States may consider the passage of that EOL ship to not be ‘innocent’ and could invoke jurisdiction to prevent the degradation of their marine environment.  They could also direct the EOL vessels to use separate sea lanes and traffic separation schemes.^[24]  Unfortunately, opinion is deeply divided as to whether a violation of the importing State laws could justifiably render the passage non-innocent and accordingly empower neighbouring coastal States to prevent the passage.^[25]

States are thus governed by the ‘good faith’ principle^[26] prescribed in article 300 of the United Nations Convention on Law of the Sea 1982.   It reads, “state parties shall fulfil in good faith the obligations assumed under this convention and shall exercise the rights, jurisdiction and freedoms recognised in this convention in a manner which would not constitute an abuse of right”.  Violation of good faith can occur even if the actor believes his conduct to be justified during an evasion or subterfuge in conduct.

Apropos the ‘good faith’ principle, a sense of objectivity in performance is required of any given actor and he is required to be proactive in eliminating harm to any other party.  Even though the principle of ‘good faith’ may not have been widely tested, there is consensus amongst jurists that it is an indispensable principle of international law.^[27]  Thus, the presence of good faith can curtail the inherent sovereign right of a State to consent and act freely in the absence of any express stipulation under international law, as established by the MV Lotus principle.^[28]

Beaching

Once a vessel has reached the shores of the importing State it is deliberately grounded and made ready for the process of dismantling.  A vessel is almost invariably laid ashore or grounded in shallow water — an process that is extremely common with small flat-bottomed boats.  In an emergency, a damaged ship may be beached to prevent it from sinking in deep water.  Ships scheduled for dismantling are often intentionally beached to make the procedure easier.^[29]  The Ship-Breaking Code (Revised) 2013, chapter III sub clause 3.3 “Anchoring and Beaching” considers this process irreversible as the beached ship is rendered immobile and cannot be re-floated.  In this situation, even if the marine coastal environment is hampered, nothing much can be done as the vessel cannot be removed from its position.

The importing State gives permission for beaching in its coastal territories and the flag State holds the jurisdiction over the vessel only till the ship remains afloat.^[30]  However, as long as this joint enterprise leads to an obvious threat to the marine environment and human health in the importing State, the flag State cannot justifiably dissociate itself from all liability, because a ship is considered an extension or a floating territory of the sovereign State in which it is registered.  It is pertinent to note that it is the registration of the vessel that creates the bridge between the ship and the mainland of the flag State,^[31] and even if a landlocked State confers registration to a foreign owned vessel, it invokes jurisdiction to govern that ship in all social, administrative and technical matters pertaining to that ship.^[32]

Considering ship recycling in India, an EOL vessel is a recognised hazardous waste by international law^[33] and an act of beaching, therefore, constitutes a transfer of hazardous waste from flag State to importing State, thereby violating article 194(1) of the United Nations Convention on the Law of the Sea 1982 for introducing hazardous waste (EOL vessel) to another jurisdiction.  The importing State merely is the victim of this transaction as the EOL ship itself is a piece of hazardous waste and a floating piece of a foreign jurisdiction under whose flag it flies.^[34]  Even though an importing State may give consent to the act there is no suggestion that it will, as a ‘victim State’, exonerate the polluter State from liability.  Moreover, when the injury to the other State is grave and patently foreseeable, this silence in the convention cannot be deliberately misapplied.  Hence, it can be argued that the act of beaching, an act wilfully undertaken by the flag State despite knowing the obvious and deadly consequences upon the environment and health, creates a severe violation of the ‘good faith’ principle.^[35]

The International Law Commission (ILC)^[36] suggests that the performance of treaty obligation is judged on the intention and purpose of the State’s action and not on the principle of “stricti juris”.^[37]  The beaching action under the command and jurisdiction of the flag State with a sophism to abide by laws as discussed above, raises the issue of abuse of right.  Every State must use the best predictable means and take all measures that are necessary to prevent, reduce and control marine pollution.^[38]  The same argument applies to the importing States for violating the ‘good faith’ principle when they knowingly welcome the services of the flag States (and sometimes controversial Flag-of-Convenience [FOC]^[39] States as well).  Any provable disturbing consequence to other States, flowing from the negligence of such FOCs, may be interpreted as an abuse of right and have a strong bearing upon the duty to adhere to the ‘good faith’ principle.^[40]

Ship Recycling

A shipowner sells an EOL vessel to a buyer who then contracts for ship-breaking at a facility that beaches and by doing so he certainly does to appear to be breaking any laws.  Nonetheless, sub-contractual agreements can have financial consequences as well as reputational risks as ships can be easily tracked to their final destination and a non-governmental organisation (NGO) may “name and shame” the vessel owner despite the fact that the recycling contract is made by the buyer.  Increasingly, investors, too, are distancing themselves from companies whose ships end up beached and dismantled in conditions that are harmful to the environment.

The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009 has incorporated the following three-stage criteria for the convention to be brought into force^[41]:

• Ratification by no less than 15 States.
• Representation by 40 per cent of world merchant shipping by gross tonnage.
• The combined maximum annual ship recycling volume of the States during the preceding 10 years constituting not less than 3 per cent of the gross tonnage of the combined merchant shipping of the same States.

As of June 2020, 15 countries, whose combined shipping tonnage was 30.21 per cent of the global tonnage, had acceded to the convention.   After India’s ratification of the convention in November of 2019, the combined annual ship recycling tonnage of the contracting States during the preceding 10 years was 13,948,274,^[42] which is 2.6 per cent of the combined merchant shipping tonnages of these ratifying States.^[43]  Because of the lopsided historic track record of shipping and shipbreaking business over the last three decades, fulfilment of the third requirement of the convention has been a challenge.  Most ships are beneficially owned^[44] by residents of the global West^[45] — i.e., Europe, Japan and USA.  The combined fleet of the EU’s member States, including various dependent territories that are often excluded when States ratify conventions, form 20 per cent of the world fleet.  China, together with Hong Kong, makes up 11.4 per cent of the world fleet.^[46]  However, reaching the annual maximum recycling capacity of the States joining the convention in the last 10 years was only possible when any two of the three giant South Asian recycling States, namely Bangladesh, India, and Pakistan, could ratify the convention along with China^[47] (alternatively, a combination of one of these three with the rest of the world was also possible).^[48]

There is also consensus among ship recycling associations in India, Pakistan, and Bangladesh, to work in coordination with their respective governments.  Any uncertainty in the choice of policy by the respective governments and the stakeholders of these countries can be fatal for an accomplished ship recycling industry.  India hopes to employ a safe and sound method of shipbreaking through adherence to the convention, but the convention falls short on two grounds, namely:

• There is no specified method of ship recycling
• Beaching has not been banned

The stipulation of “prior informed consent” for the export of hazardous substances, which is a requisite of The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989, is not specified in this convention.  The convention also exempts warships or ships owned or operated by the government and used for government non-commercial purposes, as also ships that are less than 500 gross tonnes.^[49]  This omission is significant, given that warships and naval vessels are a large source of hazardous materials such as asbestos, and chemicals such as mercury, all of which needs to be regulated.  The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009, as well as The Recycling of Ships Act 2019 impose a limited responsibility on the ship-owner for clean certification from the flag State and, as such, no other responsibility for clean-up, is applicable.

Additionally, Section 15 of the convention delegates the making of regulations and guidelines as ascribed in the Act to other authorities and leaves it to the recycling facility to comply with applicable regulations.  This makes the successful outcome of the objectives of protection of marine environment unpredictable, and greatly dependent upon executive action.  Considering the dynamic scale of the operation and the onus of responsibility of various States involved, the Act does not present a robust legal framework for the ship-recycling industry.

Dumping

Any waste that needs to be disposed-off falls under the broader ambit of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, also known as the London Convention on Dumping.^[50]  Dumping at sea is illegal if done without the express permission of the State under whose territory the action takes place.^[51]  As for ship-recycling, which is a land-based activity,^[52] any act concerning dumping, whether at sea or on land, requires the prior consent of the importing State, under the London Convention and United Nations Convention on the Law of the Sea 1982 respectively.  With reference to Article 207 of United Nations Convention on the Law of the Sea 1982, if the importing State provides such consent, an argument for illegal dumping would be problematic, even though disposal of waste arising out of ship recycling due to dumping causes marine and coastal pollution.

Impact on India and its Neighbourhood

 The UN’s Sustainable Development Goal (SDG) No 14 “Conserve and sustainably use the oceans, seas and marine resources for sustainable development”^[53] has associated targets to prevent or significantly reduce marine pollution of all kinds, including marine debris and nutrient pollution, especially those emanating from land-based activities.  Moreover, it aims to sustainably manage and protect marine and coastal ecosystems by strengthening their resilience and taking action for their restoration in order to achieve healthy and productive oceans.  It also strives to conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information.  Last but not the least, it aims to enhance the conservation and sustainable use of oceans and their resources by implementing international law, as reflected in the United Nations Convention on the Law of the Sea 1982.

Activities conducted for the disposal of EOL vessels, and the subsequent recycling of their constituent parts, have destroyed the marine environment in the vicinity of the shipbreaking yards.  These activities significantly contradict SDG 14.  According to the Union Budget 2021, India is recycling 300 of the 1,000 ships that are globally dismantled per annum^[54] and this is resulting in the suspension of large amounts of pollutants in the environment.  These are contaminating the coastal soil and sea water through the discharge of ammonia, burnt-oil spillage, floating grease balls, metal rust (iron), and a variety of other disposable refuse.

Largely because the costs of disposal and recycling in India are considerably lower than those in more economically-developed countries, the international demand for ship dismantling in India is at its peak, as may be discerned from Table 1 and Figures 1 and 2.  Patrizia Heidegger, Executive Director of the NGO, Shipbreaking Platform, opposed Maersk’s engagement in India in terms of the company selling ships to Indian shipbreaking facilities that operate under conditions that would simply not be allowed in Europe.  For its part, Maersk has admitted that the decision to go to India was primarily taken to make their financial report look better.^[55]

Figure 1: Number of Ships Dismantled in 2021

Source: The Toxic Tide 2021 Shipbreaking Records, NGO Shipbreaking Platform, accessed June 23, 2022, https://www.offthebeach.org/

Figure 2: Gross Tonnage of Ships Dismantled in 2021

Source: The Toxic Tide 2021 Shipbreaking Records, NGO Shipbreaking Platform, accessed June 23, 2022, https://www.offthebeach.org/

As of 2021, 763 ocean-going commercial vessels were sold to scrap yards across the world. Of these, 583 large tankers, bulkers, offshore platforms, cargo and cruise ships were broken down on the beaches of Bangladesh, India and Pakistan amounting to almost 90 per cent of the gross tonnage dismantled globally.

The most severely adverse impact of ship breaking is seen within the intertidal region, where high concentrations of petroleum hydrocarbons (PHC) and other metals affect the water quality, sediment quality, and biological characteristics of the area.  Bangladesh has destroyed close to 60,000 ostensibly protected mangroves to make way for ships to access shipbreaking yards located along the coast, thus apparently opting for a ‘brown’ model of economic growth even while professing the criticality of a sustainable environment.^[56]

Climate change, too, is affecting shipbreaking and ship-recycling activities, as a consequence of its impacts upon the Indian coastline.  The inexorable rise in ocean and tidal levels is submerging ever larger areas of the beach and coastal areas.  Accumulated pollutants from the ship-breaking activity are, therefore, more easily being washed out into the sea, where they are redistributed by the increased frequency and ferocity of storms, storm surges, and swell waves.  In this way pollutants are carried from the sandy areas to the ocean and thence to distant shores.  There is more than a fair chance of these metals, pollutants and hazardous substances transcending the maritime boundaries of India and damaging the marine environment of neighbouring territories, with consequences that range from environmental degradation to geopolitics.

Policy-Recommendations for the Immediate Term

Any given government of India is obligated to strike a balance between ‘supranational’ concerns (the environment, for example) and national economic wellbeing of the present as well as future generations of Indians.  In no case can a government afford to adopt one or another extreme.  It cannot, for instance, blindly adhere to environmental norms that will severely and adversely impact the economic wellbeing of the people of India.  Nor can it afford to endorse a brown economic model that equally blindly sacrifices the future at the altar of the present.  India’s shipbreaking and ship-recycling industry presents precisely such a dilemma.  The competitive advantage that India enjoys by way of an ability to beach EOL vessels and have a comparatively low cost of labour is precisely what enables the very large number of individuals that make-up this industry to earn a livelihood and, paradoxically, to feed and clothe their families and to rear their children.  Would the costs associated with a more environmentally sustainable approach (the substitution of beaching by dry-docking, for instance) cause EOL vessel-owners from across the globe to stop bringing their vessels to Indian ship-recycling yards in the first place, thereby imposing economic penalties upon the very weakest amongst the various industrialised sections of the country? Or is the problem really one of grossly inequitable distribution of wealth?  If so, could the profits — diminished while they might well be as a result of adoption of more environmentally friendly albeit costlier practices and processes — be better distributed to make up for the loss in earning-volumes?  Clearly, the government needs to be extremely well informed before it takes what ought to be ‘remedial’ action — lest the cure should turn out to be worse than the malady.  The Ministry of Ports, Shipping, and Waterways (MoPSW) would be well advised to commission a series of ‘desk-cum-field’ studies by a consortium comprising headed and coordinated by the NMF and comprising reputed social science institutes (examples of the latter might include the Tata Institute of Social Sciences (TISS), the Xavier School of Management [XLRI], or any other[s]).

A constant — along whichever decision path is considered or eventually adopted by the Government — is the need for strong legal domestic laws and diligent legal oversight.  Since it is one of the world’s largest ship-recycling countries, it is unsurprising that India came under international pressure to accede to The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009.  It has now done so, and has consequently enacted The Recycling of Ships Act 2019, which lays down regulatory framework for the ship recycling industry and creates statutory mechanisms for enforcement of certain standards and other related matters.  However, the current legal framework only covers parts of the issue, and it is reasonable to conclude that there is much room for improvement in developing seamlessness in terms of legal provisions governing shipbreaking and ship-recycling.  The MoPSW must table legislation that will enable the government to lay down detailed procedures for shipbreaking and ship-recycling in India rather than allowing this to be decided by the ship-recyclers themselves.  It is recommended that the MoPSW commission studies by the NMF (whose expertise in all facets of Public International Maritime Law [PIML] is well established and recognised), in conjunction with a reputed legal institution such as the GNLU or the RRU, to develop and strengthen this legal oversight.

For India to be in a win-win situation where it is generating profits out of ship-recycling, yet not adversely impacting the coastal marine environment, considerable changes in policy frameworks and laws would have to be made.  These would prevent and reduce marine pollution and sustainably manage and protect the marine and coastal ecosystems.

*****

 About the Author

Ms Rhythma Kaul is a lawyer and is currently an Associate Fellow at the National Maritime Foundation (NMF).  Her present research focus is upon legal aspects of environmental sustainability.  She can be reached at law7.nmf@gmail.com.

 

 Endnotes

^[1] International Labour Organization (ILO), Knowledge Base, “Ship-breaking: a hazardous work”, https://www.ilo.org/safework/info/WCMS_110335/lang-en/index.htm

^[2] The term “Ship Breaking” given by International Labour Organization has undergone evolution, while The Basel Convention on The Control of Transboundary Movements of Hazardous Wastes and their Disposal describes it as “Ship Dismantling”, International Maritime Organization has endorsed it with the term “Ship Recycling” as it is a much broader terminology and implies an element of sustainability.  According to Article 2(10) Hong Kong International Convention For The Safe And Environmentally Sound Recycling Of Ships “Ship Recycling” means the activity of complete or partial dismantling of a ship at a ship recycling facility in order to recover components and materials for reprocessing and re-use, whilst taking care of hazardous and other materials, and includes associated operations such as storage and treatment of components and materials on site, but not their further processing or disposal in separate facilities

^[3] The Shipbreaking Code (Revised) 2013, Chapter III Subclause 3.3

^[4] Patricia Heidegger, “Press Release – Maersk end-of-life vessels to hit the beaches again. NGOs denounce container ship company’s step back to boost profits”, NGO Shipbreaking Platform, https://shipbreakingplatform.org/press-release-maersk-end-of-life-vessels-to-hit-the-beaches-again-ngos-denounce-container-ship-companys-step-back-to-boost-profits/

^[5] United Kingdom v. Albania (Corfu Channel Case), [1949] I.C.J Rep 4 at 22 (“Every State’s obligation not to allow knowingly its territory to be used contrary to rights of others”)

^[6] United Nations General Assembly, Report of the Secretary General, Illegal Traffic in Toxic and Dangerous Products and Wastes, UN Doc A/44/362 (1989)

^[7] United States Environmental Protection Agency, What is the relationship between the OECD multilateral waste agreement and the Basel convention?, 2020, https://www.epa.gov/hwgenerators/frequent-questions-international-agreements-transboundary-shipments-waste#relationship

^[8] Ishtiaque Ahmed, “Unravelling Social-Economic and Ecological Distribution Conflicts in Ship Breaking in Bangladesh for Addressing Negative Externalities in Law and Policy Making”, Minn Journal of International Law 29, No 2 (2020): 159-210

^[9]  Marcos A Orellana et al, “Shipbreaking and The Basel Convention: Analysis of The Level of Control Established under The Hong Kong Convention”, The Centre for International Environmental Law, (2011), https://www.ciel.org/Publications/Shipbreaking_22Apr11.pdf

^[10] Tony George Puthucherril, From Ship Breaking to Sustainable Ship Recycling Evolution of a Legal Regime 116 (Leiden, Boston, & Martinus Nijhoff Publishers, 2010)

^[11] United Nations Convention on the Law of the Sea 1982, Article 1 (4) states “Pollution of the marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hinderance to maritime activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”

^[12] World Health Organization (WHO), Persistent Organic Pollutant, 13 June 2022, https://www.who.int/foodsafety/areas_work/chemical-risks/pops/en/ww (POPs have the ability to bio-magnify and bio-accumulate in ecosystems, as well as their significant negative effects on human health and the environment).

^[13] Wenjing Guo et al., “Persistent Organic Pollutants in Food: Containment Sources, Health Effects and Detection Methods”, International Journal of Environmental Research and Public Health 16, No 22 (2019): 4361, http://www.ncbi.nlm.nih.gov/pmc/articles/pmc6888492/(POPs are carbon-based chemicals that have some unique characteristics. They last for many years in the environment, extremely harmful to the environment, wildlife, and people, accumulate in the food chain and are passed through it and can be transported for very long distances, all over the world.)

^[14] United Nations Convention on the Law of the Sea 1982, Article 195

^[15] Nivedita M. Hosanee, “A Critical Analysis of Flag State Duties as Laid Down Under Article 94 of the 1982 United Nations Convention of The Law of The Sea”, Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, The United Nations New York, 2009, (In international law, a ship is considered a floating piece of a sovereign territory where flag State has primary jurisdiction. It is undisputedly a State territory for that flag State of whose flag it flies)

^[16] Kim Jefferies, “Beaching’ of Vessels for Shipbreaking – legal, illegal or somewhere in between?”, Gard, 15 August 2018, https://www.gard.no/web/updates/content/26050185/beaching-of-vessels-for-shipbreaking-legal-illegal-or-somewhere-in-between

^[17] The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 28 ILM, 1673 u.n.t. S. 125 (decision vii/26 conference of the parties of the Basel Convention noting that that an EOL ship may become waste as defined in art. 2 of the Basel Convention and simultaneously, it may be defined as a ship under other international rules, UNEP/chw. 7/33.)

^[18] United Nations Convention on the Law of the Sea 1982, Article 19 (“Innocent Passage” is a concept that allows for a vessel to pass through the territorial waters of another State, subject to certain restrictions)

^[19] Tony George Puthucherril, From Ship Breaking to Sustainable Ship Recycling Evolution of a Legal Regime (Leiden, Boston: Martinus Nijhoff Publishers, 2010), 116

^[20] United Nations Convention on the Law of the Sea 1982, Article 19(2)(a)-19(2)(l)

^[21] United Nations Convention on the Law of the Sea, Article 19(2)(h)

^[22] Bell Performance, “Diesel Engine Problems: Black Smoke Explained”, Bell Performance, 2013, https://www.bellperformance.com/blog/bid/115989/diesel-engine-problems-black-smoke-explained (nothing that one of the major causes of oil pollution from ships at sea is the use of faulty oily water separator onboard.).

^[23] Tony George Puthucherril, From Ship Breaking to Sustainable Ship Recycling Evolution of a Legal Regime (Leiden, Boston: Martinus Nijhoff Publishers, 2010), 116

^[24] United Nations Convention on the Law of the Sea 1982, Article 22(1)

^[25] William k. Agyebeng, “Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea”, Cornell International Law Journal, no. 39, 383-384 (2006)

^[26] Robert S. Summers, “The General Duty of Good Faith – Its Recognition and Conceptualization”, Cornell. Law Review, 67 (No 4) 810, 820 (1982), https://scholarship.law.cornell.edu/facpub/1195

^[27] Steven Reinhold, “Good Faith in International Law”, University College London Journal of Law & Jurisprudence, No 2 (2013): 40

^[28] Louis de Gouyon Matignon, “The Lotus Principle”, Space Legal Issues Blog, https://www.spacelegalissues.com/the-lotus-principle/(The Lotus principle or Lotus approach, usually considered a foundation of Public International Law, says that sovereign States may act in any way they wish so long as they do not contravene an explicit prohibition)

^[29] Wikipedia, Beaching (nautical), 23 June 2022, https://en.wikipedia.org/wiki/Beaching_(nautical)

^[30] United Nations Convention on the Law of the Sea 1982, Article 94 (provides every State uninterrupted jurisdiction over the ship whether the ship is at high seas, at the coastal territory of a foreign country or even at the port of a foreign territory, so long as it flies the flag of that State. In case of beaching, the flag State, till the ship touches the beachhead, remains therefore under the active jurisdiction of the State whose flag the vessel is flying while beaching)

^[31] Ademun Odeke, “An Examination of Bareboat Charter Registries and Flag of Convenience Registries in International Law”, Ocean Development and International Law, no. 339, 341 (2005): 36

^[32] Albania Declaration Recognizing the Right to a Flag of States Having No Sea Coast, Apr. 20, 1921, LNT Ser 95, 7 LNTS 73

^[33] The Basel Convention on The Control of Transboundary Movements of Hazardous Wastes and Their Disposal Convention 1989, COP decision VII/26

^[34] United Nations Convention on the Law of the Sea 1982, Article 194(2) (It may be argued that the mere act of beaching is not a polluting act, but it is the recycling activity which is of polluting nature.  However, this argument is flimsy because under the Dumping Convention, mere act of deserting the vessel at sea or territorial sea of other jurisdictions is a polluting action. Beaching is done in the intertidal zone which is clearly within territorial sea of the recycling State)

^[35] Leo E. Strine et al., “Loyalty’s Core Demand: The Defining Role of Good Faith in Corporation Law”, Disc. Paper, Harvard Center for Law, 20, Economy And Business, No 630 (March. 2009)

^[36] International Law Commission (ILC), https://legal.un.org/ilc/ (The International Law Commission was established by the General Assembly, in 1947, to undertake the mandate of the Assembly, under Article 13 (1) (a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of.. encouraging the progressive development of international law and its codification”)

^[37] Steven Reinhold, “Good Faith in International Law”, University College London Journal Of Law & Jurisprudence,  No 2 (2013): 40, (cited in ILC, Yearbook of the International Law Commission II, 7 [1964]): Stricti Juris Law and Legal Definition, US Legal (2019), https://definitions.uslegal.com/s/stricti-juris/ (Stricti Juris is a Latin term which means according to strict right of law.  It is a legal rule of interpretation.  The rule of Stricti Juris requires the strict, narrow, and close interpretation of the rights.)

^[38] United Nations Convention on the Law of the Sea 1982, Article 194

^[39] “What is a Flag of Convenience?”, HG Legal Resources (2020), https://www.hg.org/legal-articles/what-is-a-flag-of-convenience-31395 (When registering a vessel for international travel, one must choose a nation under the flag of which that vessel will sail. The term FOC or “flag of convenience” refers to registering a ship in a sovereign State different from that of the ship’s owners)

^[40] Steven Reinhold, “Good Faith in International Law”, University College London Journal of Law & Jurisprudence, No 2 (2013): 40

^[41] The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009, Article 17(1)

^[42]International Maritime Organization (IMO), Seafarers: at the core of Shipping’s Future, Status of IMO Treaties, Comprehensive information on the status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary General performs depositary or other functions, 29 September 2021, https://wwwcdn.imo.org/localresources/en/About/Conventions/StatusOfConventions/Status.pdf

^[43] “India Ratifies Hong Kong Convention”, Industryall Global Union, (29 November 2019), http://www.industriall-union.org/worlds-largest-shipbreaking-country-ratifies-hong-kong-convention.

^[44] Shrikant Pareshnath Hathi, Binita Hathi, “Ship Arrest in India and Admiralty Laws of India”, Admiralty Practice, (2019), http://admiraltypractice.com/chapters/NS12.htm (Under the international maritime law, a shipowner may choose to register a ship in the registry of a third country than his or her country of origin. These may be known as open registry or flag of convenience. In such a case the ship may acquire the nationality of the open registry but for all practical purpose the shipowner remains the beneficial owner of that ship. Beneficial owner also means in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust. – also termed equitable owner. Beneficial owner refers to the natural person(s) who ultimately owns or controls a customer and/or the person on whose behalf a transaction is being conducted)

^[45] “The Global Fleet Revealed”, The Maritime Executive, (5 November 2017), http://www.maritime-executive.com/article/the-global-fleet-revealed#gs.L2Z=8_w

^[46] Nikos Mikelis, “EU Moves Ahead on Ship Recycling Convention”, The Maritime Executive, (7 July 2014), ,https://maritime-executive.com/article/EU-Moves-Ahead-on-Ship-Recycling-Convention-2014-07-07#gs.MrNgj_4

^[47] Ishtiaque Ahmed, “Ungovernable Ships at the End of Their Lives and the Response of the Hong Kong Convention: A Critical Appraisal of the Treaty on Shipbreaking from the Perspective of South Asian Ship-Breaking Nations”, Santa Clara Journal of International Law, 135 (2020), http://digitalcommons.law.scu.edu/scujil/vol18/iss2/3/ (Noting that Bangladesh, India, Pakistan, and China share 94.9% of all global shipbreaking)

^[48] “India Prepares to Ratify the Hong Kong Convention”, The Maritime Executive, 2 December 2017,  http://www.maritime-executive.com/article/india-prepares-to-ratify-the-hong-kong-convention#gs.L0H=U4.

^[49] The Recycling of Ships Act 2019, Section 5

^[50] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, Article (III) (1) (a) states “Dumping means any deliberate disposal at sea of wastes or other matters from vessels, aircraft, platforms or other human-made structures at sea. Dumping also includes any deliberate disposal at sea of ships, airplanes, platforms or other human-made structures at sea. Sea contains territorial sea but not inland water”

^[51] United Nations Convention on the Law of the Sea 1982, Article 210(5)

^[52] Saiful Karim, Prevention of Pollution of The Marine Environment from Vessels, (London: Springer, 2014), 100

^[53] NITI Aayog, Mapping of Central Sector Schemes and Ministries of Government of India, “Sustainable Development Goals India August 2018”, 23 June 2022, https://www.niti.gov.in/writereaddata/files/SDGMapping-Document-NITI_0.pdf

^[54] Press Trust of India, “Union Budget 2021 | Ship Recycling capacity to double by 2024, generate 1.5 lakh jobs”, The Hindu, 01 February 2021, https://www.thehindu.com/business/budget/union-budget-2021-ship-recycling-capacity-to-double-by-2024-generate-15-lakh-jobs/article33716110.ece

^[55] Patrizia Heidegger, Executive Director of NGO Shipbreaking Platform has also stated “The situation in Alang is not ‘fantastic’… Similar conditions would not be accepted in Denmark, in any other shipping nation in Europe ..by selling ships to the Alang beach, Maersk is externalizing costs for proper recycling and undermining the standard set by the European Ship Recycling Regulation”

^[56] Dr Md M Maruf Hossain, Mohammad Mahmudul Islam, Ship Breaking Activities and its Impact on the Coastal Zone of Chittagong, Bangladesh: Towards Sustainable Management, (Chittagong: Advocacy & Publication Unit, Young Power in Social Action (YPSA), 2006)