When Consent Isn’t Enough: What Basel’s Article 11 Means for the HKC

 

Debate over whether the Hong Kong Convention’s (HKC) flag-state International Ready for Recycling Certificate (IRRC) can substitute for the Basel Convention’s Prior Informed Consent (PIC) goes to the heart of how the world manages end-of-life ships. Proponents claim the HKC delivers equivalent level of environmental protection through HKC compliant yards, Inventories of Hazardous Materials (IHM), and Ship Recycling Plans (SRP) tailored to vessels followed by issuance of IRRC by the ship’s flag state administration. Critics counter that Basel’s consent system is territorially grounded, requires import-state consent and transit controls, and—under the 2019 Ban Amendment ratified by 102 states—prohibits certain export flows that HKC would still permit. The Basel Conference of the Parties (COP) has yet to recognize HKC as Article 11-equivalent. Concerns persist over reflagging, conflicts of interest when the flag and recycling states coincide, weak downstream hazardous-waste controls, and uneven enforcement.

Two global instruments now shape the fate of ships at the end of their working life. The Basel Convention governs transboundary movement of hazardous waste, imposing shared responsibility through prior informed consent among exporting, importing, and transit states. The HKC regulates how recycling itself is conducted—through national yard authorization, ship-specific planning, and flag-state certification. They aim at the same outcome but from different vantage points: Basel controls the border; HKC organizes what happens inside the yard.

Basel’s system is territorial and collective. Exporters must notify; importers and transit states must consent in writing; and the exporter remains accountable until final environmentally sound management (ESM) is achieved. Each step is documented and traceable, creating a chain of custody that deters environmental dumping.

HKC, by contrast, is operational. It depends on the recycling state’s domestic authorization and internal safety systems: a traveling IHM, an SRP for each hull, and a yard holding a Document of Authorization to conduct Ship Recycle (DASR). Once these are in place, the flag state issues an IRRC certifying the vessel “ready for recycling.” Supporters argue this package functionally mirrors Basel’s PIC protections: if the yard and plan are approved and the IHM verified, the receiving state has already ensured capacity and compliance. For vessels declaring for recycling while at sea, HKC’s structure is also far more workable than reconstructing exporter identity mid-voyage.

Critics argue that structure cannot substitute for jurisdiction. Under the Basel Convention, the PIC process is more than administrative formality—it represents a sovereign-to-sovereign deal or agreement. Consent is exchanged directly between national authorities, ensuring that the exporter’s due diligence extends through to the waste’s final disposal. In contrast, the HKC’s IRRC, however robust, functions merely as a flag-state document. When a ship’s flag state is also its recycling state, this mechanism effectively becomes self-authorization, dismantling the external oversight and balance, a cardinal principle of Basel’s regulatory framework.

The deeper gap lies downstream. Basel’s definition of Environmentally Sound Management (ESM) extends beyond shipbreaking. It demands segregation, safe transport, treatment, and disposal of residues—sludges, asbestos, PCBs, contaminated steel, e-waste—with traceability and accountability at each stage. HKC’s scope largely stops at the yard gate. That silence undermines claims of “Article 11 equivalence,” which requires proof that alternative arrangements offer an equivalent level of environmental protection.

Attempts to treat HKC’s IRRC as a standing substitute for Basel’s PIC have repeatedly failed on these grounds. To date, the Basel COP have refrained from recognizing equivalence, citing persistent deficiencies in regulatory oversight and downstream waste management practices. The recent Ban Amendment compounds the divide: the Basel Ban Amendment now prohibits certain North–South hazardous-ship movements outright, while HKC would allow them. Certification cannot reopen a door that Basel Parties have lawfully closed.

For South Asian ship-recycling nations and steel buyers, this may appear legal hair-splitting. It is not. The consequences are concrete: whether residues leave yards under licensed transport, whether manifests reconcile volumes, whether treatment capacity matches output, and whether incidents are tracked and corrected. These elements distinguish paper compliance from actual protection.

The practical path forward is to make Article 11 of Basel do the work it was designed to do—permit flexibility only where outcomes demonstrably meet Basel’s protective floor. That requires building a bridge with verifiable load-bearing pillars.

Yard authorization under the HKC must be specific and conditional—anchored in verifiable accountability across the entire downstream chain not only up to the yard gate. Evidence, not assurances, should underpin compliance: executed contracts with licensed Treatment, Storage, and Disposal Facilities (TSDFs), digital waste-tracking systems, routine audits, and clear authority to suspend or revoke authorization when controls fail. This approach aligns with one of the HKC’s own provision, which encourages Parties to adopt measures more stringent than those prescribed. The Convention’s preamble also assumes that recycling states already implement Basel-level downstream management. Given Basel’s long-standing and nearly universal implementation since 1992, making the issuance of a DASR contingent upon a verified, Basel-compliant downstream management chain merely formalizes what the framework has always presumed.

Exporting authorities, too, retain a role even under an Article 11 pathway. Joint pre-arrival inspections could confirm that HKC-authorized yards and Basel-compliant downstream chains are ready for the specific vessel and its waste profile. A unified movement document—combining HKC’s SRP with Basel’s tracking protocol—would give all parties access to identical, real-time data. Transparency is enforcement’s most cost-effective ally. Public registries of authorized yards and their downstream partners, annual residue-flow reports, and anonymized incident summaries would assure trading partners and local communities that equivalence is earned, not asserted. Mutual recognition between states should depend on such visibility and periodic performance reviews.

Critically, this model does not force a choice between the two treaties. Basel defines where and under whose consent transboundary movement occurs; HKC defines how safe and environmentally sound dismantling takes place. Harmonized, they are complementary: Basel secures fairness and accountability across borders; HKC embeds safety and environmental management within yards. The goal is not fewer rules, but interlocking ones.

Domestic courts particularly in South Asia have echoed this caution: in jurisdictions where infrastructure and enforcement are still maturing, Basel’s full safeguards remain applicable. HKC frameworks can exceed international baselines, but never undercut them. Article 11 should be used to raise standards, not lower them.

Three Principles for Lawmakers and Industry

So, what should policymakers and industry leaders take away?

First, this debate is not about penalizing recycling—it is about securing it. Sustainable ship recycling is both an environmental and economic imperative; weak governance helps no one.

Second, any credible claim of equivalence depends on downstream control. Without traceable waste management from hull to final disposal, IRRC-as-PIC is aspiration, not assurance.

Third, Parties can design verification systems that are rigorous yet practical, marrying Basel’s border discipline with HKC’s operational depth.

Article 11 of the Basel Convention should be deemed satisfied only where HKC yard authorization is explicitly tied to a fully Basel-compliant downstream chain—approved TSDFs covering all stages: segregation, storage, transport, treatment, and final disposal. This must include audited contracts, traceable manifests, reconciled movement data, and independent oversight by the importing state’s competent authority. Only under these conditions can an HKC’s IRRC be treated as a functional substitute for Basel’s PIC, aligning HKC practice with Basel’s “equivalent level of protection.” This is how the Basel framework can ultimately provide a corrective to the inherent weaknesses that the HKC incorporated at the time of its adoption in 2009. HKC certification, therefore, is valid only if Basel’s downstream compliance is demonstrably in place. Non-OECD facilities may arguably obtain EU-style exemptions from the strict enforcement of the Basel Ban only by demonstrating safeguards equivalent to those under the Basel framework and by maintaining recycling yards that conform to EU or OECD standards

The international community must now build consensus on a unified ship recycling framework, with the EU model offering a practical path forward. If adopted, HKC consent at the upstream stage could ensure Basel-level protection across the entire chain—from hull to final disposal. Without such integration, the IRRC remains a mere aspiration rather than a binding legal or environmental safeguard.

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 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. Dr. Ahmed is also an active Member of the Chartered Institute of Arbitrators in London (MCIArb.) , qualified Barrister of England and an Advocate in Bangladesh Supreme Court. His expertise lies at the intersection of maritime law, environmental regulation, and sustainable ship recycling. He can be reached at [email protected]