(Written by Nikos Mikelis)
7 July 2014 - The ratification by France on 2nd July 2014 of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, which had been preceded in May 2014 by the Republic of Congo’s accession to the convention, may pose questions on what are the different processes through which states become parties to the convention, and on what these processes generally entail.
IMO’s member states unanimously agreed at their 24th Assembly in December 2005 to develop international regulations for the recycling of ships. The new convention was developed and was eventually adopted on 19th May 2009 by a diplomatic conference in Hong Kong, China.
The Hong Kong Convention contains the provision for governments “to sign the convention subject to subsequent ratification”. This provision is often found in international conventions and is a mechanism whereby a state can give an early signal of its support for a particular convention before going through the full process required by its constitution for committing itself to that piece of international legislation. Accordingly, the Hong Kong Convention was open for “signature subject to ratification” from September 2009 to August 2010. In that period, five countries signed the convention, namely France, Italy, the Netherlands, St Kitts and Nevis, and Turkey. It is probably worth noting that signatures without ratification do not contribute towards the convention’s entry-into-force.
States usually become parties to a convention either through signature subject to ratification followed by ratification, or through “accession”. In most political systems ratification or accession to an international convention is a complex and time consuming process that may typically involve: the formal translation of the adopted text by the Ministry of Justice; the formulation of new national regulations; evaluation of the effect the new regulations may have on exiting legislation; the approval of the text of regulations proposed by the Ministry of Justice; remarks to be considered by all stakeholder ministries; in parliamentary systems approval by the appropriate parliamentary committee; signature of the Minister; signature of the Prime Minister; government decision; formal approval by the parliament; and finally submission to a relevant UN body through the Ministry of Foreign Affairs. Clearly, the commitment that is needed to execute such a process requires considerable political will in support of the subject convention.
Ship recycling requires multifaceted governmental involvement on matters of: labor, environment, maritime transport, and commerce. Consequently, compared to the process described above, the ratification/accession process for Hong Kong Convention necessitates even more difficult inter-ministerial consultations, typically involving ministries of Shipping or Transport; Environment; Labor; Industry (as is the case in Bangladesh); Steel (as is the case in India); and Commerce. Inevitably, it is to be expected that for most countries it would take longer to ratify/accede to Hong Kong Convention, compared to conventions of narrower interest.
The entry into force provisions of Hong Kong Convention specify that it will enter into force 24 months after ratification/accession by not less than 15 States, representing 40 per cent of world merchant shipping by gross tonnage, with a combined maximum annual ship recycling volume not less than 3 per cent of their combined tonnage.
Norway was the first country to accede to the Hong Kong Convention on 26 June 2013. A number of years before, Norway had been responsible for introducing ship recycling to the agenda of the IMO and also had submitted the first draft version of the text of the convention that formed the basis for its development.
Thereafter on 19 May 2014, the Republic of Congo deposited its instrument of accession, by a happy coincidence on the fifth anniversary of the adoption of the convention. The Republic of Congo’s accession has additional significance, because, whilst not a major flag or recycling State, Congo was one of two states that had strongly opposed the recognition of Hong Kong Convention as equivalent to the Basel Convention at the 10th Conference of the Parties to the Basel Convention in October 2011.
An obstacle to ratification or accession had existed until very recently for all member states of the European Union. In the European Union the Directorate General for the Environment of the European Commission is the competent authority for enforcing the European Waste Shipment Regulation for the “transboundary movements of hazardous waste”. This regulation, which implements the Basel Convention together with its ban amendment, had originally been considered to be a suitable legal regime for regulating ship recycling, and will remain so in the European Union until the new European Regulation on ship recycling is fully applied within the next three to four years. Consequently, the European Commission arrived at the opinion that, until the European Council adopted a formal decision on this matter, EU member states should refrain from ratifying or acceding to Hong Kong Convention as this could violate the European Waste Shipment Regulation.
This obstacle was finally removed by the European Council Decision of 14 April 2014 (2014/241/EU) authorizing member states to ratify or accede to Hong Kong Convention, “for the parts falling under the exclusive competence of the Union”. This opened the road to France’s ratification, which was deposited on 2 July 2014. Following the eventful recycling of the former French aircraft carrier “Clemenceau” in 2006, France contributed greatly to the development of the convention and to its guidelines.
Currently, a number of governments are either working towards accession/ratification of the Convention. Following the recent adoption of the European Council Decision and the French ratification, other EU Member States are expected to proceed soon, possibly starting with Belgium, as stated in its press release of 26 June 2014. China and Turkey, whose ship recycling industries are largely compliant with the technical requirements of the convention, are making progress towards the convention with Turkey being almost ready to ratify and China having made some progress towards accession. Japan is also expected to move towards accession possibly in the coming year.
The first condition for entry into force of Hong Kong Convention, requiring 15 states to ratify or accede, should not be too difficult to satisfy. On the other hand the second condition requiring no less than 40 percent of the world’s fleet by gross tonnage will be harder to achieve without the support of one or more of the top five open registers, namely Panama, Liberia, Marshall Islands, Singapore, and Bahamas whose combined fleet makes up 50.1 percent of the world fleet.
Note that the combined fleet of the 28 States of the European Union (including the various dependent territories that are often excluded when states ratify conventions) forms 20 percent of the world fleet, while China together with Hong Kong make up 11.4 percent of the world fleet (all fleet data according to the 2013 World Fleet Statistics published by IHS). Lastly, without India’s accession, the third condition on ship recycling volume cannot be met in practice. Happily, the Indian ship recycling industry has made big improvements since 2007 and is already regulated by its domestic regime that replicates the technical requirements of the Hong Kong Convention. It remains to fully convince the industry, and the state and federal governments, that accession to the convention will be to their long-term benefit.