Breaking Ships, Building Consensus: How the Basel Ban and HKC Can Coexist

 

The shipping industry faces a fundamental dual challenge: ensuring that end-of-life vessels are dismantled in a manner that protects workers and the environment, while also preventing hazardous materials from being exported to jurisdictions unequipped to manage them. Two international treaties dominate this debate: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989), strengthened by its Ban Amendment (1995/2019), and the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009 (HKC).

Critics often frame the Basel and HKC regimes as irreconcilable, forcing the shipping industry to choose between them. In reality, they are complementary instruments. Basel regulates where recycling activities may take place; HKC regulates how they are conducted. The real friction lies not in law but in economics, geography, and political will.

The Basel Convention emerged out of a moral imperative: to halt the dumping of hazardous wastes in the Global South. Its Ban Amendment, now binding on Annex VII Parties (OECD, EU, and Liechtenstein), prohibits the export of hazardous waste — including end-of-life ships containing asbestos, PCBs, and heavy metals — from OECD to non-OECD countries. Legally, the rule is categorical. An OECD-flagged vessel may not be dismantled in South Asia if either its flag state, exporting state, or the recycling state is bound by the Ban Amendment. In the context of shipping industry, Basel therefore defines the “red lines” of ship recycling geography. Importantly, it does not set standards for dismantling itself; its concern is purely the transboundary movement of hazardous waste.

To carve out international shipping as a Basel exception would undermine the Convention’s universality, invite demands for exemptions from other powerful industries, and erode the principle of environmental justice that motivated the Ban in the first place. The international community does not need to bend Basel to accommodate ships. It needs to implement Basel faithfully, while using the HKC to ensure that lawful recycling is carried out safely and sustainably.

If Basel provides the “where,” the HKC, adopted under the International Maritime Organization (IMO), provides the “how.” Its mandate is technical and operational, not geographic. It requires every ship to carry an Inventory of Hazardous Materials (IHM), obliges recycling facilities to develop Ship Recycling Facility Plans (SRFP), and mandates Ship Recycling Plans (SRP) tailored to each vessel. Article 2(10) of the HKC defines “Ship Recycling” as the dismantling of a vessel, in whole or in part, at an authorized facility for the purpose of recovering components and materials. The definition includes on-site handling, storage, and treatment of recovered materials, while excluding downstream processing or final disposal once materials leave the yard. In other words, HKC governs the dismantling process itself, not what happens beyond the facility gate.

The IMO has repeatedly clarified that its conventions do not prescribe geographic location; Its instruments regulate standards and procedures. In doctrinal terms, HKC functions as lex specialis — detailed, sector-specific rules that operate within Basel’s broader framework.

For more than 45 years, South Asia has been the world’s preeminent ship recycling hub. India, Bangladesh, and Pakistan together account for over 80% of global recycling capacity by gross tonnage. This dominance reflects two structural advantages: lower comparative labor costs and a sustained regional demand for scrap steel. It is precisely these markets that HKC’s drafters sought to address, embedding requirements for worker safety and environmental safeguards tailored to local realities. Yet the Basel Ban complicates this picture. By prohibiting OECD-flagged vessels from being dismantled in non-OECD states, Basel directly constrains access to the very yards where global capacity is concentrated. This is the root of the industry’s claim that Basel and HKC are in conflict. But the clash is not legal; it is economic.

From a legal standpoint, Basel and HKC are not rivals. The Vienna Convention on the Law of Treaties (VCLT) requires states to interpret overlapping treaty obligations harmoniously. In this light, Basel regulates whether and under what conditions ships may cross borders for dismantling, while HKC sets the substantive standards for dismantling once a vessel has lawfully arrived at a facility. Together, they address distinct but complementary dimensions of the same governance problem. One defines the geography; the other defines the process.

A practical precedent already exists: the EU Ship Recycling Regulation (2013). As a regional implementation of Basel within Europe, it incorporates the Ban Amendment’s prohibitions on hazardous waste exports. At the same time, it requires all EU-flagged vessels to be recycled only in yards that the European Commission has inspected and certified. This dual compliance framework demonstrates that Basel and HKC are not legally contradictory. They can be operationalized together — one setting the boundaries of permissible trade flows, the other ensuring technical and environmental safeguards.

The genuine challenge is not incompatibility of legal rules but distribution of capacity. Basel’s Ban prevents OECD-flagged vessels from moving to South Asia, where most dismantling yards are located. HKC does not override this prohibition; it operates within what Basel allows. This creates a structural tension arising from the misalignment between regulatory geography and industrial geography

For South Asian and other non-OECD states, the Ban Amendment creates a practical dilemma: how to remain competitive when a major source of tonnage is blocked. Yet this does not render HKC irrelevant. On the contrary, HKC remains vital for three domains: non-OECD-to-non-OECD ship recycling, domestic dismantling, and the general uplift of global safety and environmental standards. Basel’s Ban need not mean permanent exclusion for non-OECD shipbreaking states. Rather, it creates an incentive to transform. By upgrading facilities to OECD-equivalent standards, institutionalizing strong worker protections, and establishing transparent downstream waste management systems, South Asian yards can credibly argue for “functional equivalency.”

This strategy would not only meet HKC’s technical standards but also weaken the rationale for exclusion under Basel. In effect, it turns compliance into a competitive advantage. The pathway forward for South Asia is not resistance, but reform. The key lesson is that Basel and HKC are not antagonistic. Basel sets the rules of where vessels may go; HKC dictates how they must be dismantled. Their coexistence is not only legally possible but legally required. Mechanisms for parallel application already exist, and the principle of harmonious treaty interpretation makes coexistence the default, not the exception.

What obstructs progress is not law but economics: Basel curtails flows to South Asia, creating pressure on the world’s main recycling hubs. The answer is not to claim a legal contradiction but to embrace reform. The future of ship recycling depends on rejecting the false choice between Basel and the HKC. By investing in OECD-standard infrastructure, pursuing recognition and certification, and aligning domestic regimes with international best practice, non-OECD states including South Asia can maintain their central role in global recycling under both frameworks.

Ship recycling is too important — economically, environmentally, and socially — to be governed by fragmentation. Basel safeguards environmental justice; HKC advances technical safety and environmental soundness. If ship recycling is to be genuinely sustainable, the global shipping community needs to realize that the path forward lies in working together.

Dr. Ishtiaque Ahmed is Professor and Chair of the Department of Law at North South University, Bangladesh. A former merchant marine engineering officer, he holds a Doctor of the Science of Law (J.S.D.) from the University of Maine School of Law, USA, where he specialized in ship recycling law and policy. He has served as a legal consultant to the International Maritime Organization (IMO), contributing to Bangladesh’s Ship Recycling Rule and Act. Dr. Ahmed is also a qualified Barrister of England and an advocate in Bangladesh. His expertise lies at the intersection of maritime law, environmental regulation, and sustainable ship recycling. He can be reached at [email protected]