Submission to 57th session of IMO's Marine Environment Protection Committee (MEPC)
RECYCLING OF SHIPS
Substitution, internalising costs, third party auditing and rejection of non-party trade needed to secure an effective Convention
Submitted by Greenpeace International and FOEI
This document represents an appeal from civil society environmental and human rights organisations represented by the NGO Platform on Shipbreaking to the member states of the IMO to recognise that the current draft International Convention for Safe and Environmentally Sound Recycling of Ships lacks the mechanisms and incentives to seriously address the disastrous status quo that is ship recycling today. While the structure of the Convention is built upon a shaky foundation of Parties lacking self-interest to ratify or implement it, with minimal responsibility placed on ship builders and owners, it is nevertheless still possible within the current structure and in the time remaining to overcome this disadvantage. This can be accomplished by adding the following elements: Implementation of Substitution Principle, Ship Recycling Fund, 3rd Party Audits and Rejection of the non-Party to Party dealings. Without these elements the Convention will simply be too weak to succeed in changing an economically compelling motivation toward cost externalisation of risk and harm to some of the world’s poorest communities in developing countries. These essential elements are further described in this document.
1 To date, while it was civil society that placed the global spotlight on the international shipbreaking crisis and created the demand for action, civil society’s suggestions with respect to the IMO remedy have been ignored by the IMO despite numerous efforts to promote substantive reform (MEPC 53/3/9, MEPC 54/3/5, MEPC 55/3/7). It would be a mistake in our view to continue to ignore the concerns of civil society as these concerns will remain long after the Convention is adopted and will not be silenced by its signing. It would also be a mistake to create a Convention which fails to create an “equivalent level of control” to that required by the 170 Parties of the Basel Convention if there is hope to establish but one coherent regime. And finally, it would be a mistake to create a new Convention that is incapable of resisting the significant current economic forces which have given rise to the present situation. We ask the Parties to recognise the fundamental weaknesses and loopholes as mentioned below, and to consider the elements proposed herein to address these flaws.
Basis of Weaknesses
2 The inherent weakness of the Convention even when confined to looking at its own terms and expectations, lies in the fact that the responsibility for its control mechanisms and implementation rests with entities that have little self-interest to undertake such controls. Thus where the language of the Convention is flexible one could expect minimal action will be taken by the Parties. Where language is stronger, it signals that non-ratification can be expected, or even worse, ratification followed by non-compliance. This concern is elaborated by looking at each of the types of Parties and actors:
3 Flag States: It is well known that many Flag State administrations are unwilling or unable to fulfil their responsibilities. This is especially the case with the so-called “flags of convenience” FOC states. The FOC phenomenon, has unfortunately created a system whereby states compete for ship registrations with policies that promise lower costs, by keeping taxes, fees, and regulatory burdens light. Even if the States responsible for the registries have ratified IMO conventions, they often lack the resources or the will to enforce them effectively. Indeed the entire marketplace for FOC open-registries, is in effect a bidding game for least accountability, least responsibility. Clearly this concern relates directly to the issue of Convention ratification as well as to compliance if ratification is assured. There is considerable concern that flag states will have little incentive to ratify the Convention particularly as the Convention currently allows ship recycling Parties to recycle non-Party ships.
4 Port States: With respect to some IMO regimes, port State controls can be used as a remedy to the problem with flag states described above. However, this model falters when there is little self-interest for the port state concerned. Why would a port state have an interest in determining whether or not a ship carries an inventory of structural hazardous materials as this requirement will not impact the local port environment now or in future? Further, while the inventory (the sole concern of port states under the Convention) is a useful instrument for proper ship recycling planning, it hardly guarantees and by itself does little to ensure environmentally sound recycling – the goal of the ship recycling Convention.
5 Ship Recycling States: Likewise, some of the current major ship recycling states have demonstrated a lack of willingness to improve conditions and standards for ship recycling. The unacceptable conditions of the South Asian beaches were discovered by the international community as early as 1997. It has thus been more than ten years since international pressure was brought to bear, yet conditions in these countries have improved only superficially. Similar to flag states, the ship recycling industry has become competitive on the basis of least cost recycling. Thus there will be reluctance to improve conditions if costs are involved. Shipbreakers exercise considerable influence politically and economically in Ship Recycling States and thus it is likely that improvements will come only in a very slow and often superficial way, if at all. Meanwhile the immediate victims of shipbreaking – the workers and nearby communities are politically and economically disenfranchised peoples and exercise very little political influence at the national level. The result may be that ratifications by Ship Recycling States will not be politically motivae to seek ratification or worse, will be ratified followed by institutionalized non-compliance.
6 Shipowners: On addition to the above concerns regarding potential parties, is the reality that in the life cycle of many ships, there is a succession of ownership from well resourced, larger more legitimate companies to smaller, less-resourced owners that have historically operated under the “cheapskate policy” that seek to keep costs to a bear minimum and avoid regulations if possible. It is this group of owners, disinclined to take the high road of proper compliance, that are the ones that will hold the final responsibility for the majority of the world fleet when it reaches end-of-life and is readied for breaking. It is difficult to understand how these owners will be persuaded to utilise Parties to flag their vessels, nor Parties to recycle their ships as long as greater profits can be made from doing otherwise. There is the very real concern that even a ship that flies under the flag of a Party will re-flag prior to recycling.
7 Shipbuilder / Manufacturer Responsibility: Although the Convention was originally conceived to apply to the entire life cycle of a ship, its current version leaves this forgotten and does not include the competence and responsibility in the shipbuilding phase to substitute alternative materials to ensure that ship recycling over time becomes much less hazardous – the ultimate solution to much of the global crisis.
8 It is on this bed of shifty sand that the draft Convention has been built. Without shipbuilders motivated to build hazard-free ships, without owners being held responsible for assuming costs for proper recycling at end-of-life, and without inherent or built-in motivation of self-interest for Parties to ratify and vigorously regulate, the Convention relies then on good will alone to become an accepted, utilised and effective instrument. While there are numerous certificates and authorisations required, there is little incentive or ability to critically scrutinise or deny such authorisations. The concern then is that the Convention will become a "rubber stamping convention", with certificates being signed, sealed and ships delivered without any consideration of the veracity and rigor of such declarations. What is clearly and urgently needed then are means to direct true responsibility to shipbuilders, owners and to inject self-interest for Parties, either through carrots or sticks, into the picture. We understand that some of these ideas have been discussed previously, however there should be no procedural rationale for not reopening ideas that receive substantial support now that we can all reflect on where we have arrived in relation to the global need. It is never too late to ensure that the Convention ready for signing in Hong Kong is not the best possible instrument achievable. What follows are our strong recommendations at this time.
9 While the preamble of the draft Convention notes that the substitution principle is to be promoted, the Convention fails to do that. The substitution principle is meant to be applied at the level of the supply chain with a constant and critical examination by manufacturers of their hazardous material use. It is not adequately promoted simply by a top-down policy by authorities, focused primarily on legally controlled substances. The Platform strongly proposes the following language for Chapter II, Part A.
Regulation 5bis – Implementation of Substitution Principle
1 Each Party shall ensure that its enterprises involved in shipbuilding and the manufacture of parts for ships, must evaluate the hazardous materials they use and whether they can replace hazardous materials with less hazardous alternatives. The alternatives must be assessed in the same way as the materials that are to be replaced. If less hazardous alternatives do exist, the enterprise shall use them provided that this does not cause unreasonable cost or inconvenience, or other negative impacts. Enterprises must forward such evaluations of hazardous material use and substitution to their competent authority on an annual basis.
2 Each Party shall review the evaluations received from enterprises and other sources, and make recommendations for amending Appendices 1 and 2 if the alternatives are considered preferable and economically and practically viable.
Ship Recycling Fund
10 A fundamental weakness in the draft Convention lies in the fact that the Convention has sought to address an issue of global pollution without seeking to fully internalise costs and instil producer responsibility based on the Polluter Pays Principle. That is to say, the beneficiaries of global shipping, or a single ship owner does not have to account for the true costs and liabilities of such a ship at end-of-life but rather can continue to pass those costs and hazards to locations where such hazards are not managed in an optimal way. The notion that cost internalisation is to be achieved simply by the higher prices being charged by authorised recyclers is wishful thinking and will nevertheless only be a partial internalization at best. The fact that the Convention continues to allow a disproportionate quantity of harm to be passed to developing countries equates to hidden costs not being assumed by the waste generator. For example, the context of developing countries, regardless of the level of technology at the shipbreaking yard, including less resources to ensure proper maintenance and enforcement of rules governing a technology, worker rights and access to training and medical attention, rights to tort law, downstream waste management including operations in rolling mills etc. are all indicative of cost externalisation.
11 By exacting financial responsibility on beneficial owners, the possibility of a ship recycling fund that could be utilised for conversion from beach operations to fully contained and accessible operations, site remediation, pre-cleaning, worker compensation etc. becomes a very appealing instrument. This not only goes a long way toward improving human health and the environment but provides an incentive for recycling states and their stakeholders to desire ratification.
12 Taking into the account the limited time available, a way forward could be to agree to develop the framework of a mechanism or protocol intended to create a fund and cost internalization system for safe and environmentally sound ship recycling. The mechanism could then further be developed by a relevant body of the IMO in the interim period between the adoption of the Convention and its entry into force.
Third Party Audits
13 Given the context of this Convention described earlier, it is vital to strengthen the known lack of self-interest for compliance. This can be done by virtue of third party, annual, mandatory audits that report non-compliance after repeated violation. Article 13bis requires the establishment of an auditing system to ensure full and uniform implementation of the Convention. However the Article fails to insist on independent third party audits, only covers administrative procedures and functions, and further remains confidential even for non-compliance.
14 A global level-playing field and true objectivity in terms of safety, environmental and employment standards will only be achieved if the auditing scheme is made mandatory and administered by third parties.
15 The full audit of both flag and recycling states is necessary and should include on-the-ground inspections of recycling facilities in addition to administrative enforcement mechanisms and procedures. An independent auditing team needs to be given the power of entry to the yards in order to evaluate whether the inspected yard is compliant with Regulations 19 – 23 of the Convention, taking into consideration the guidelines of the Convention. Likewise the auditors need access to the government documentation of administrative procedures for both Flag and Recycling states.
16 As it stands today the result of the audit is confidential even when there is repeated non-compliance. To increase transparency and effectiveness, should there be a finding of non-compliance the Party should have 6 months to correct the situation followed by a non-compliance audit. If the problem is still not corrected after 6 months, the non-compliance should be made public and should trigger the implementation procedure (MEPC 56/3, MEPC-ISRWG 3/2/10).
Reject Party to non-Party Ship Recycling
17 A proposal by the United States to allow bilateral, multilateral or regional agreements to allow Parties to deal with non-Parties, must be rejected in all forms including the Norwegian proposal to allow that possibility even without a special state-to-state agreement. These options will create a multiplicity of possible loopholes and even further disincentive for countries to ratify or comply with the Convention.
18 The proposed language was drawn from the Basel Convention where it was likewise placed into that treaty by the United States. It is worth noting that after 18 years the US has still not ratified the Basel Convention but has entered into bilateral and multilateral agreements. Meanwhile the US is as a non-Party exporting wastes to countries for which such imports are illegal as Parties, creating serious problems in terms of global waste traffic control.
19 Further, it must be realised that a non-Party Recyling State to the IMO Convention will still be obliged to fulfil its Basel obligations as Basel will, even if it accepts the IMO Convention as a legitimate multilateral agreement, under Article 11 of that Convention, continue to cover all situations not legally substituted by the new Convention. This will create a confusing combination of dual regimes even within one ship recycling trade deal.
20 To avoid such IMO/Basel mixed regime confusion and those situations where numerous flag state Parties sign an agreement with a single substandard non-Party state and have such an agreement endorsed by the draft ship recycling Convention, the idea of allowing non-Parties should be rejected. The only possible exception would be to make such a possibility expire after a period of 3-5 years as supported by a substantial number of Parties at ISRWG-3. However the implementation regime for bringing countries rapidly into compliance is a far better solution to the issue of lacking ship recycling capacity in compliance with the Convention in the initial years of its entering into force.
Action requested of the Working Group
21 MEPC is invited to consider the proposals made in this document and decide as appropriate.