I Managed to Have a Look at INF 16 and Thought I Should Share My Thoughts

Submission of the EU and its Member States on the

legal analysis of the application of the Basel Convention to

hazardous wastes and other wastes generated on board ships (document UNEP/CHW.10/INF/16)

15032012

I/ INTRODUCTION

1. The EU and its Member States submitted to the Secretariat of the Basel Convention:

-on 30 June 2011, its views on the first legal analysis of 4 April 2011 on the application of the Basel Convention to hazardous wastes and other wastes generated on board ships[1]; and

-on 15 December 2011, its preliminary views on the revised legal analysis of 7 October 2011 published shortly prior to the 10th meeting of the Conference of the Parties to the Basel Convention[2].The EU and its Member States raised concerns about the structure and certain elements of the revised legal analysis; and in addition, that the comments of 30 June 2011 had not been taken into account.

The comments presented in this submission supersede the preliminary comments by the EU and its Member States of 15 December 2011.

1. Through decision BC-10/16 (Cooperation between the Basel Convention and the International Maritime Organisation)[3]

- Parties and others have been invited to submit further comments on the legal analysis to the Secretariat by 15 March 2012.

- The lead country, if one is identified, or the Secretariat have been requested, subject to the availability of voluntary funding, to prepare a revised version of the legal analysis, taking into account the comments received, by 30 April 2012 for publication on the Basel Convention website and consideration by the Open-ended Working Group at its eighth session.

- Any Party willing to do so has been invited toundertake an assessment of how far the current Basel Convention technical guidelines cover wastes covered by MARPOL Convention[4], or to provide funds to enable the Secretariat to undertake such an assessment, in close consultation with the International Maritime Organisation (IMO).

- The Secretariat has been requested, subject to the availability of resources, to develop a guidance manual, in cooperation with the IMO, on how to improve the sea-land interface to ensure that wastes falling within the MARPOL Convention, once offloaded from a ship, are managed in an environmentally sound manner.

- The Secretariat has been requested, inter alia, to continue its cooperation with the International Organisation for Standardisation with the objective of including the Basel Convention requirements of waste minimization and environmentally sound management in the international standard on port reception facilities being developed by the International Organisation for Standardization.

II/ COMMENTS ON THE REVISED LEGAL ANALYSIS

General comments

3. The purpose of the work is, according to the title of Annex I, a legal analysis on the application of the Basel Convention to hazardous waste and other wastes generated on board a ship. It is therefore necessary to focus the legal analysis on the Basel Convention and avoid detailed attempts to interpret other legal instruments for which the Basel Secretariat may not be the most appropriate body (see Sections V-VI of the revised legal analysis). In this context, the interpretation of "normal operations" should not lead to straying into an interpretation of the MARPOL Convention.

4. The structure of the revised legal analysis was changed in relation to the one of 4 April 2011. Following a short background, the revised analysis seeks to explain how the provisions of the Basel Convention on (a) generation of waste and environmentally sound management (ESM); and (b) transboundary movement, apply to wastes generated on board a ship (sections II to V) - ignoring the effect of the exemption in Article 1(4). The fact that the analysis of the effects of Article 1(4) is only presented at the end (section VI), might confuse the reader.

5. For these reasons, it would be useful to include the in-depth legal analysis of the exemption in Article 1(4) presented in Part II of the legal analysis of 4 April 2011, which could for example, be inserted between Sections II and III of the revised analysis. The EU and its Member States proposed also in its submission of 30 June 2011, some modifications of Part II of the legal analysis of 4 April 2011 which we would ask to be taken into consideration.

6. A chapter containing `conclusions´ should be added in the legal analysis. There are some conclusions to be found in the other chapters but for the sake of clarity it would be useful to have these presented in a clearer way and in a separate section

Section I. "Background"

7. Section I. – "Background" of the legal analysis is very limited. This may create confusion to the reader who does not read the accompanying note provided by the Secretariat and/or who is not familiar with previous work on this topic. Instead, background related to the matters analysed in the document should be given. Reference should be made to earlier decisions, documents and discussions, as well as to the previous legal analysis and any other relevant work on this particular topic. In addition, an explanation should be given why it was decided to carry out this legal analysis (reference to scope, frequency, seriousness or size of problems that may arise as a result of the application of the Basel Convention to hazardous waste and other wastes generated on board a ship).

Sections II-V

8. As regards sections II and III of the revised legal analysis, the EU and its Member States would appreciate a clarification of the meaning of "collective obligations" to handle hazardous wastes and other wastes generated on board a ship (paragraphs 5 and 9 of Sections II-III). Our understanding is that sections III and section IV are meant to apply to those wastes which are generated aboard a ship and are not covered by the Article 1(4) exemption. It would be preferable if this could be explicitly confirmed in the text.

9. The EU and its Member States question whether Article 4(2)(c) of the Basel Convention should be interpreted as suggesting that officers and crew on a ship would be involved in the "management" of waste as suggested in paragraph 9 since "management" means "collection, transportand disposal" under the Basel Convention, but may have other connotations in the IMO context. We would question whether collection and disposal of waste generated on board takes place on the ship itself. We would also question whether a ship which has waste on it and which is moving should be necessarily considered as "transport", as there is no intent to purposely move waste from one place to another. Further, the obligations in Article 4(2)(c) are only applicable 'within' a Party.

10. We also have concerns over paragraphs 16 and 17 in section IV. Even when reading this in the context of things not covered by the exclusion in Article 1(4) of the Basel Convention, these raise practical difficulties, for example if it is considered that there is a substantial amount of waste generated on ships that is not covered by the Article 1(4) exemption and to which the PIC procedure should be applied.

11. We have difficulties regarding waste that is generated in the high seas as coming within the definition of transboundary movement. We would agree with paragraph 22 in section V that an amendment to the Basel Convention would be required to cover waste generated in the high seas – particularly as regards those matters referred to in paragraphs 21 (b) and (c).

Section VI

12. Section VI attempts to address the meaning of "normal operations of a ship" by trying to interpret the relevant provisions of MARPOL. The EU and its Member States are not convinced that it is appropriate for the Basel Convention to be coming to a view on this, rather than the IMO.

13. Moreover, the statement in paragraph 28 regarding "specific industrial processes or activities on board a ship" which "might be considered" distinct from normal operations may be misleading as not all of these operations may be abnormal or resulting in hazardous wastes. Paragraph 31 also recognizes this and recommends clarifying the term "normal operations". The term "normal operations" was perhaps at the time left very wide on purpose as it is too difficult to map all kind of operations that may exist on board of ships.

14. Attention should also be paid to a legal analysis of the relationship between the definitions and scope of the obligations for Parties to "ensure the availability of adequate disposal facilities" as described in Article 4(2)(b) of the Basel Convention and a similar obligation for Parties under the MARPOL Convention to provide "available and adequate port reception facilities for ship generated waste" as defined in the different MARPOL Annexes. Especially in terms of possible hazardous waste, the "availability" may be more relevant in view of the further treatment and/or disposal.

15. The final paragraph of the section VI (paragraph 32) explains the link between the Article 1(4) exemption and the sections III - V. This paragraph apparently implies that even where the Article 1(4) exemption applies, Basel Conventions obligations must be followed.We are concerned about this interpretation not least because of the practical difficulties which are likely to be faced, some of which are already highlighted in the paragraphs 16 and 17. In addition, the Basel Convention clearly excludes from its scope wastes generated from the normal operation ofa ship, and for which the discharge thereofis covered by another Convention.It does not mention any specific sections or obligations of the Convention which would be applicable for these ships. We consider that the analysis should clarify this.

16. Legal analysis is also needed regarding the definition of "approved" site or facility for the disposal of hazardous waste as defined in Article 2(5) of the Basel Convention and further defined as a site or facility that which is authorized or permitted to operate by the State for the disposal of hazardous wastes or other wastes. No such requirement exists under MARPOL, but it may be interesting to analyse to what extent, and under what circumstances, port reception facilities could also be considered as such a site or facility.

17. Generally speaking, when trying to assess MARPOL, the legal analysis should underline that MARPOL does not contain a mandatory requirement to discharge ship generated waste (regardless whether these are generated under "normal operations" or not), or specify when or where this discharge at facilities shall be done. Moreover, the legal analysis should outline that the scope of MARPOL ends with the obligation for Parties to ensure available and adequate port reception facilities and contains no provisions on (final) treatment, recovery or final disposal of this waste. Generally speaking, the MARPOL Convention ends at the delivery of the ship generated waste in the port reception facility. The MARPOL Convention (Annex II relating to chemicals in bulk) recognises an obligation for certain – harmful to the environment – cargo residues to be issued. These cargo residues are to be regarded as waste under the Basel Convention. Under MARPOL Annex II it is required to release cargo residues of certain unspecified harmful substances. The Basel Convention is applicable to cargo residues, but only starting from the moment that these have been issued. As long as the substances are still on board, MARPOL applies.

18. We think that the first phrase of paragraph 32 should be clarified. On the one hand, we wonder why it is addressed what the flag State should do and where there is a basis for this in the Basel Convention. On the other hand, this phrase seems to indicate that only hazardous and other wastes coming from "normal operations" of a ship are covered by MARPOL. However, the fact that the Basel Convention excludes these "normal" wastes from its scope does not mean that MARPOL excludes in its turn hazardous and other waste coming from "abnormal" operations of a ship as this distinction does not exist within MARPOL. Therefore, also for these "abnormal" wastes there may be a need to define the impact of the application of both conventions. This may be relevant in terms of reporting the exact nature and amount of hazardous and other wastes which result from operations on board of a ship and that may need to be delivered on shore. [ME1]IMO recommends the use of standard documents (advance waste notification – IMO C. 644) on the nature of the waste a ship wants to deliver (based on the MARPOL Annexes waste categories) and by which the next port (and facility) are informed in advance so they can take the right measures for receiving the waste. An assessment of the type of information about the different waste types that need to be provided could be interesting in order to know exactly what comes from a ship.

1

[1]

UNEP/CHW.10/INF/17

[2] UNEP/CHW.10/INF/16

[3]

[4] The International Convention for the Prevention of Pollution from Ships (1973), as modified by the Protocol of 1978 relating thereto and as further amended by the Protocol of 1997

[ME1]We think that Art. 4.2f does not apply to waste generated on a ship on the high sea because there is no transboundary movement.