Ship Recycling Governance: Moving Beyond the False Basel-HKC Dichotomy

File image courtesy NGO Shipbreaking Platform

The recent response by BIMCO to my article, "HKC Certification Can't Substitute for the Basel Convention," reflects a broader debate that has occupied the ship recycling community for years. Such exchanges are healthy and should be encouraged. Yet, perhaps unintentionally, the discussion continues to revolve around the wrong question. The issue is not whether the Basel Convention and the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (HKC) are competing regimes. Nor is the issue whether one convention should replace the other. Legally speaking, there is little room for serious controversy. Both conventions apply. They regulate different aspects of the same activity and perform different functions.

The difficulty lies not in the law itself, but in the facts. More precisely, the problem lies in how the international community has struggled to operationalize the Basel Convention's open-ended standards in the ship recycling context within the realities of developing countries. Consequently, the central question should not be whether Basel applies. The real question is how Basel is to be implemented.

Unfortunately, the international debate has increasingly moved in the opposite direction. Much of the contemporary discourse implicitly assumes that one convention must prevail over the other. The IMO recently adopted the Provisional Guidance on the Implementation of the Hong Kong Convention and the Basel Convention with Respect to the Transboundary Movement of Ships Intended for Recycling (IMO Circular HKSRC.2/Circ.1). Yet, the premise underpinning the Provisional Guidance appears to rest on an assumption whose legal basis merits further examination.

The Basel Convention governs the transboundary movement and environmentally sound management of hazardous waste. The HKC establishes a framework for the safe and environmentally sound recycling of ships and regulates operational standards at recycling facilities. These are different subject matters. Nothing in the HKC repeals the Basel Convention. Nothing in the Basel Convention can reasonably be interpreted as excluding the application of the HKC. Nor does Article 30 of the Vienna Convention on the Law of Treaties authorize states to disregard obligations under one treaty merely because another treaty addresses related issues. The answer has never been "Basel or HKC." The answer has always been "Basel and HKC." Indeed, even the BIMCO article acknowledges that both conventions exist within a broader regulatory system.

BIMCO’s discussion subsequently shifts to the historical shortcomings of the Basel regime in the ship recycling context and portrays the Hong Kong Convention as a practical response thereto. However, even if those shortcomings are accepted, considerations of expediency or regulatory convenience do not, as a matter of international law, generate exceptions to treaty obligations or alter the legal relationship between the two conventions. BIMCO argues that the Basel Convention's prior informed consent procedure has never worked effectively in the context of end-of-life ships and that the HKC emerged because no functioning global regime existed. There is considerable truth in the proposition that Basel's mechanisms were not designed with ships in mind. But this does not lead to the conclusion that Basel somehow ceases to apply. International law contains many obligations that are difficult to implement. Climate agreements are difficult. Biodiversity protection is difficult. Human rights treaties are difficult. Yet no one argues that practical obstacles extinguish legal obligations. Difficulty is not a recognized principle of treaty interpretation.

The fact that the Basel regime has not operated optimally for ship recycling does not mean that the Convention is inapplicable. It merely demonstrates that the international community has not yet developed adequate methodologies for implementing Basel in a manner compatible with the realities of global shipping and developing countries. Failure of implementation should not be confused with failure of law.

Perhaps the greatest misunderstanding in this debate is the assumption that the controversy concerns competing legal norms. It does not. The problem is methodological. The Basel Convention relies on concepts such as "environmentally sound management." Like sustainable development, due diligence, best available techniques and equivalent protection, these are indeterminate standards. They deliberately provide flexibility because environmental regulation must accommodate different economic and technological realities. The difficulty is that international law has supplied no clear methodology for determining when such standards have been satisfied. How much downstream waste infrastructure is sufficient? At what point should environmental protection be considered environmentally sound? Must developing countries replicate OECD waste management systems? Or does international law permit context-sensitive solutions? These are the questions that remain unanswered.

Consequently, the debate has shifted from determining how Basel should be complied with to questioning whether Basel should be complied with at all. That is a dangerous shift. BIMCO correctly observes that nobody intends to replace the Basel Convention's prior informed consent system. Yet the increasing reliance on the HKC's International Ready for Recycling Certificate has generated a tendency to attribute to the flag state functions that Basel reserves for exporting states.

The issue here is not whether the flag state plays an important role. Undoubtedly, it does. The issue is jurisdiction. The HKC certificate is issued pursuant to maritime jurisdiction exercised by the flag state. The Basel Convention, by contrast, is built upon territorial export control. These are fundamentally different legal obligations and concepts.

Jurisdiction under international law does not arise from convenience, familiarity or practical efficiency. It arises from legal authority. The fact that flag states may possess greater familiarity with ships than environmental authorities in exporting states does not alter the legal architecture established by the Basel Convention. Otherwise, expertise itself would become a source of jurisdiction. That proposition has no basis in international law.

Ironically, the Basel-HKC debate exposes a much broader problem affecting international environmental law generally. Many treaty obligations are expressed through flexible standards. Environmentally sound management, sustainable development, due diligence and equivalent protection all belong to this category. The purpose of these standards is to accommodate diversity among states. Principle 11 of the Rio Declaration expressly recognizes that environmental standards applied by some countries may be inappropriate and impose unwarranted economic and social costs on others, particularly developing countries. Similarly, the principle of common but differentiated responsibilities acknowledges that states differ in their capabilities and developmental circumstances.

Yet despite these principles, the international community has provided very little guidance concerning what compliance actually looks like in developing countries. As a result, developing states are often measured against unstated OECD benchmarks. Compliance thereby ceases to be anchored to fixed legal standards and instead becomes a fluid target, with legal obligations varying according to the regulatory capacities of individual States. More improvements are always demanded, but no objective endpoint is ever defined.

Bangladesh, India and Pakistan have invested heavily in upgrading their ship recycling sectors. The progress is undeniable. The entry into force of the HKC has undoubtedly accelerated this transformation. These achievements deserve recognition. But acknowledging progress should not lead us to abandon the question of Basel compliance. Quite the opposite. Progress should compel us to ask a more sophisticated question: What constitutes environmentally sound management in the context of developing countries?

For years, the debate has focused on whether Basel applies to ships. That question has largely been answered. The Basel Convention applies. The HKC applies. The real challenge is operational rather than doctrinal. How should environmentally sound management be measured? How should equivalence be assessed? What level of downstream infrastructure is sufficient? How should sustainable development and common but differentiated responsibilities influence compliance assessments? These are the questions that deserve the attention of governments, international organizations and industry.

The problem is not one of legal incompatibility. It is one of scientific and methodological uncertainty. The answer therefore lies not in choosing between two conventions, nor in constructing artificial hierarchies between them. Rather, the international community should devote its energies to developing transparent and context-sensitive methodologies capable of identifying when environmentally sound management has been achieved.

Only then will the debate move from endless arguments over treaty interpretation to meaningful discussions about measurable compliance. The success of the Hong Kong Convention should be welcomed. The improvements witnessed in South Asia are real and substantial. Workers and the environment are undoubtedly better off today than they were twenty years ago.

But the existence of progress should not tempt us to convert practical difficulties into principles of treaty interpretation. The future of ship recycling does not lie in choosing between Basel and Hong Kong. Both conventions are here to stay. The real question facing the international community is not whether Basel applies. It is whether we are finally prepared to develop the tools necessary to make Basel work in the context of developing countries. Until that question is addressed, the debate will continue to ask the wrong question. And when we ask the wrong question, we should not be surprised when we fail to find the right answer.

Dr. Ishtiaque Ahmed is Professor and Chair of the Department of Law at North South University, Bangladesh. A former Merchant Marine Engineering Officer, he earned his Doctor of the Science of Law (J.S.D.) degree from the University of Maine School of Law, USA, with specialization in international ship recycling law and policy. He served as the sole legal consultant in the drafting of the proposed Bangladesh Ship Recycling Rules 2025 and the revision of the Bangladesh Ship Recycling Act 2018. Dr. Ahmed is a Barrister of England and Wales, a Member of the Chartered Institute of Arbitrators (MCIArb), London, an Advocate of the Supreme Court of Bangladesh, and is listed as a panel arbitrator of the Changsha Arbitration Commission (CSAC), People’s Republic of China. His research and professional interests lie at the intersection of maritime law, environmental regulation, and sustainable ship recycling governance. He may be reached at [email protected].

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