Op-Ed: HKC Certification Can't Substitute for the Basel Convention

File image courtesy NGO Shipbreaking Platform

The global ship recycling debate sits at the intersection of two legal regimes that were never designed to fit neatly together. On one side is the Basel Convention, built around strict state-to-state control over hazardous waste movements. On the other is the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (HKC), a more industry-oriented framework tailored specifically to ships. The tension between these regimes is most evident in countries such as Bangladesh, India, and Pakistan—the three leading ship recycling nations, which together account for nearly 90% of global ship recycling, primarily through the controversial beaching method.

At the heart of this tension lies a simple but fundamental legal question: can the Hong Kong Convention’s certification system, particularly the International Ready for Recycling Certificate (IRRC), substitute for the state-to-state consent mechanism required under Basel? The answer, when examined carefully, is no. And attempts to argue otherwise risk undermining the core safeguards that Basel was designed to uphold.

Under the Basel Convention, the movement of hazardous waste across borders is governed by the principle of Prior Informed Consent (PIC). This requires that the exporting state notify the importing state and obtain its explicit consent before any shipment occurs. The logic is straightforward. Hazardous waste flows often move from more developed to less developed countries, creating incentives for environmental dumping. Basel’s consent framework is designed to ensure that importing states are not exploited and that exporting states remain accountable.

End-of-life ships fall squarely within this concern. Increasingly recognized in international law and practice as hazardous waste due to the presence of asbestos, heavy metals, and other toxic materials, ships destined for dismantling trigger Basel obligations when moved across borders. In principle, a ship destined for recycling in any of these South Asian states should be subject to a formal consent procedure between the exporting state and the recycling state acting as the importing state.

The complication arises because ships do not behave like ordinary cargo. They are not simply exported from one country to another; they operate under a flag state system governed by the United Nations Convention on the Law of the Sea. A ship may be owned in one country, operated from another, and flagged in a third. When it reaches the end of its life, identifying the “exporting state” becomes legally ambiguous. This ambiguity has led to a widespread practice of treating the flag state as the de facto exporting state for Basel purposes.

However, this workaround is already a stretch. The flag state concept was never intended to substitute for territorial export control. It reflects jurisdiction over the vessel, not necessarily control over the decision to dispose of it. Even so, assuming for the sake of argument that the flag state can function as the exporting state, Basel’s core requirement remains unchanged: there must be a genuine exchange of consent between two distinct nation states.

This is where the industry’s reliance on the Hong Kong Convention begins to unravel. Faced with the practical difficulties of applying Basel to ships, stakeholders have increasingly pointed to Article 11 of the Basel Convention. This provision allows parties to enter into alternative agreements or arrangements, provided they ensure an “equivalent level of environmental protection.” The argument is that HKC constitutes such an equivalent regime, and therefore its procedures, including the issuance of the IRRC, can stand in for Basel’s consent mechanism.

But this claim does not hold up under scrutiny. First, equivalence under Article 11 is not automatic. It must be demonstrated. The burden lies on the state invoking Article 11 to show that the alternative framework provides safeguards at least as strong as Basel’s. The Hong Kong Convention, while an important step forward in standardizing ship recycling practices, does not replicate Basel’s central feature: direct, formalized, and accountable state-to-state consent prior to transboundary movement. HKC focuses primarily on technical compliance—inventory of hazardous materials, facility authorization, and operational safety—rather than on controlling the movement itself through intergovernmental approval.

Second, even if one were to assume that HKC could meet the equivalence threshold, the way its certification system is being interpreted in practice introduces further problems. The IRRC is issued by or on behalf of the flag state, confirming that the ship is ready for recycling in accordance with HKC requirements. Industry actors argue that this certificate effectively fulfills the role of Basel consent.

This argument fails on two independent grounds. The first is structural. Basel requires consent between two sovereign states: the exporting state and the importing state. The IRRC, by contrast, is not an instrument of intergovernmental consent. It is a certification issued within the framework of maritime regulation, typically addressed to facilitate the ship’s entry into a recycling facility. It does not represent a negotiated or acknowledged agreement between states. Treating it as equivalent to Basel consent collapses a bilateral legal process into a unilateral administrative act.

The second, and more serious, issue stems from the current approach taken by ship recycling states. The competent authorities in these countries appear to hold that, in certain cases—particularly where ships fly non-Party flags—they may facilitate or accept the issuance of the IRRC through their own national mechanisms. In effect, this allows these states, in their capacity as importing countries, to play a decisive role in producing the very certification used to justify the import.

If the IRRC is being relied upon as a substitute for Basel consent, this creates an untenable situation. It means that the importing state is, directly or indirectly, providing the authorization that is supposed to come from the exporting state under the Basel Convention. In other words, the same state is both receiving and legitimizing the movement. This is precisely what Basel’s PIC system was designed to prevent.

Consent, in the Basel sense, is not merely a procedural formality. It is a safeguard rooted in the separation of interests. The exporting state is expected to assess whether the export is lawful and appropriate, while the importing state evaluates whether it has the capacity to manage the waste safely. When these roles are combined, the system of checks and balances breaks down, undermining a core principle of the Basel framework. The risk is that economic incentives in the importing state—such as the profitability of ship recycling—could overshadow environmental and safety considerations.

There is also a deeper conceptual flaw in equating the IRRC with Basel consent. The IRRC is ultimately directed toward a ship recycling facility, which is a private entity. Basel consent, by contrast, operates strictly at the level of public international law. It is an agreement between governments, not between a state and a private operator. Replacing one with the other alters the legal character of the transaction and weakens accountability.

Taken together, these issues lead to a clear conclusion. Bangladesh, India or Pakistan or any other recycling state, cannot rely on the IRRC as a substitute for Basel’s state-to-state consent. Nor can it legitimately issue or facilitate such certification in a way that effectively replaces the role of the exporting state. To do so would not only stretch the interpretation of the HKC beyond its intended scope but also seriously undermine the integrity of the Basel regime.

This does not mean that the HKC has no role to play. On the contrary, it offers valuable technical standards and operational guidance that can improve safety and environmental performance in ship recycling. But it was never designed to replace Basel’s control over transboundary movements. The two instruments address different aspects of the problem, and attempting to collapse them into a single system creates legal and practical inconsistencies.

The path forward requires clarity rather than conflation. If the international community wishes to create a unified regime for ship recycling, it must do so explicitly, through negotiated amendments or new agreements that reconcile these frameworks. Until then, the existing legal obligations under Basel remain in force. Basel’s rule is clear and strict: hazardous waste cannot cross borders without the prior informed consent of both the exporting and importing states. The IRRC under the Hong Kong Convention, however well intended, does not and cannot replace that requirement.

Dr. Ishtiaque Ahmed is a Professor and Chair of the Department of Law at North South University, Bangladesh. A former Merchant Marine Engineering Officer, he holds a J.S.D. (Doctor of the Science of Law) from the University of Maine School of Law, USA, where he specialized in International Ship recycling laws and policy. He contributed to the drafting of Bangladesh’s Ship Recycling Rule 2025 (proposed) and revising Bangladesh Ship Recycling Act 2018 as the sole Legal Consultant.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.