Decreto n.º 4/2023

Decreto n.º 4/2023

de 13 de fevereiro

Sumário: Aprova, para adesão, a Convenção Internacional de Hong Kong para a Reciclagem Segura e ambientalmente Correta dos Navios, 2009.

A Convenção Internacional de Hong Kong para a Reciclagem Segura e ambientalmente Correta dos Navios, 2009, adiante designada como Convenção de Hong Kong, foi adotada na Conferência Diplomática realizada em maio de 2009, em Hong Kong, na China, e resulta da colaboração profícua entre os Estados-Membros da Organização Marítima Internacional e de organizações não-governamentais, em cooperação com a Organização Internacional do Trabalho e com as Partes da Convenção sobre o Controlo dos Movimentos Transfronteiriços de Resíduos Perigosos e sua Eliminação, adotada em Basileia, em 22 de março de 1989, aprovada pelo Decreto n.º 37/93, de 20 de outubro, no sentido de assegurar que a reciclagem dos navios que chegam ao fim de vida útil não represente riscos desnecessários para os trabalhadores, para a saúde humana e para o ambiente.

Com efeito, e atendendo a que os navios objeto de desmantelamento no seu fim de vida útil podem conter substâncias nocivas para a saúde e para o ambiente, designadamente amianto, metais pesados e hidrocarbonetos, a Convenção de Hong Kong veio estabelecer um conjunto de normas relativas à reciclagem com o intuito de garantir uma solução eficiente e eficaz para as práticas perigosas e poluentes da reciclagem de navios.

A presente Convenção abrange igualmente a exploração dos estaleiros de reciclagem de navios, bem como a criação de um mecanismo de execução adequado para a reciclagem de navios, e promove a substituição de materiais perigosos por materiais menos nocivos ou não perigosos sem comprometer a segurança e a eficiência operacional dos navios.

Assim:

Nos termos da alínea c) do n.º 1 do artigo 197.º da Constituição, o Governo aprova, para adesão, a Convenção Internacional de Hong Kong para a Reciclagem Segura e ambientalmente Correta dos Navios, adotada em Hong Kong, China, a 15 de maio de 2009, cujo texto, na versão autenticada em língua inglesa e respetiva tradução em língua portuguesa, se publica em anexo.

Visto e aprovado em Conselho de Ministros de 19 de janeiro de 2023. - António Luís Santos da Costa - Francisco Gonçalo Nunes André - Pedro Miguel Ferreira Jorge Cilínio - José Duarte Piteira Rica Silvestre Cordeiro - Ana Maria Pereira Abrunhosa Trigueiros de Aragão.

Assinado em 25 de janeiro de 2023.

Publique-se.

O Presidente da República, Marcelo Rebelo de Sousa.

Referendado em 31 de janeiro de 2023.

O Primeiro-Ministro, António Luís Santos da Costa.

HONG KONG INTERNATIONAL CONVENTION FOR THE SAFE AND ENVIRONMENTALLY SOUND RECYCLING OF SHIPS, 2009

The Parties to this Convention:

Noting the growing concerns about safety, health, the environment and welfare matters in the ship recycling industry,

Recognizing that recycling of ships contributes to sustainable development and, as such, is the best option for ships that have reached the end of their operating life,

Recalling resolution A.962(23), adopted by the Assembly of the International Maritime Organization (Guidelines on Ship Recycling); amendments to the Guidelines adopted by resolution A.980(24); Decision V1/24 of the Sixth Meeting of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which adopted Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships; and the Guidelines approved by the 289th session of the Governing Body of the International Labour Office (Safety and Health in Shipbreaking: Guidelines for Asian countries and Turkey),

Recalling also resolution A.981 (24), by which the Assembly of the International Maritime Organization requested the Organization's Marine Environment Protection Committee to develop a legally-binding instrument on ship recycling,

Noting also the role of the International Labour Organization in protecting the occupational safety and health of workers involved in ship recycling,

Noting further the role of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal in protecting human health and the environment against the adverse effects which may result from such wastes,

Mindful of the precautionary approach set out in Principle 15 of the Rio Declaration on Environment and Development and referred to in resolution MEEPC.67(37), adopted by the Organization's Marine Environment Protection Committee on 1 5 September 1995,

Mindful also of the need to promote the substitution of hazardous materials in the construction and maintenance of ships by less hazardous, or preferably, non-hazardous materials, without compromising the ships' safety, the safety and health of seafarers and the ships' operational efficiency,

Resolved to effectively address, in a legally-binding instrument, the environmental, occupational health and safety risks related to ship recycling, taking into account the particular characteristics of maritime transport and the need to secure the smooth withdrawal of ships that have reached the end of their operating lives,

Considering that these objectives may best be achieved by the conclusion of an International Convention for the Safe and Environmentally Sound Recycling of Ships,

have agreed as follows:

Article 1

General obligations

1 - Each Party to this Convention undertakes to give full and complete effect to its provisions in order to prevent, reduce, minimize and, to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by Ship Recycling, and enhance ship safety, protection of human health and the environment throughout a ship's operating life.

2 - No provision of this Convention shall be interpreted as preventing a Party from taking, individually or jointly, more stringent measures consistent with international law, with respect to the safe and environmentally sound recycling of ships, in order to prevent, reduce or minimize any adverse effects on human health and the environment.

3 - Parties shall endeavour to co-operate for the purpose of effective implementation of, compliance with and enforcement of this Convention.

4 - The Parties undertake to encourage the continued development of technologies and practices which contribute to safe and environmentally sound Ship Recycling.

5 - The Annex to this Convention forms an integral part of it. Unless expressly provided for otherwise, a reference to this Convention constitutes at the same time a reference to its Annex.

Article 2

Definitions

For the purposes of this Convention, unless expressly provided otherwise:

1 - "Convention" means the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009.

2 - "Administration" means the Government of the State whose flag the ship is entitled to fly, or under whose authority it is operating.

3 - "Competent Authority(ies)" means a governmental authority or authorities designated by a Party as responsible, within specified geographical area(s) or area(s) of expertise, for duties related to Ship Recycling Facilities operating within the jurisdiction of that Party as specified in this Convention.

4 - "Organization" means the International Maritime Organization.

5 - "Secretary-General" means the Secretary-General of the Organization.

6 - "Committee" means the Marine Environment Protection Committee of the Organization.

7 - "Ship" means a vessel of any type whatsoever operating or having operated in the marine environment and includes submersibles, floating craft, floating platforms, self elevating platforms, Floating Storage Units (FSUs), and Floating Production Storage and Offloading Units (FPSOs), including a vessel stripped of equipment or being towed.

8 - "Gross tonnage" means the gross tonnage (GT) calculated in accordance with the tonnage measurement regulations contained in Annex I to the International Convention on Tonnage Measurement of Ships, 1969, or any successor convention.

9 - "Hazardous Material" means any material or substance which is liable to create hazards to human health and/or the environment.

10 - "Ship Recycling" means the activity of complete or partial dismantling of a ship at a Ship Recycling Facility in order to recover components and materials for reprocessing and re-use, whilst taking care of hazardous and other materials, and includes associated operations such as storage and treatment of components and materials on site, but not their further processing or disposal in separate facilities.

11 - "Ship Recycling Facility" means a defined area that is a site, yard or facility used for the recycling of ships.

12 - "Recycling Company means the owner of the Ship Recycling Facility or any other organization or person who has assumed the responsibility for operation of the Ship Recycling activity from the owner of the Ship Recycling Facility and who on assuming such responsibility has agreed to take over all duties and responsibilities imposed by this Convention.

Article 3

Application

1 - Unless expressly provided otherwise in this Convention, this Convention shall apply to:

1) Ships entitled to fly the flag of a Party or operating under its authority;

2) Ship Recycling Facilities operating under the jurisdiction of a Party.

2 - This Convention shall not apply to any warships, naval auxiliary, or other ships owned or operated by a Party and used, for the time being, only on government non-commercial service. However, each Party shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable.

3 - This Convention shall not apply to ships of less than 500 GT or to ships operating throughout their life only in waters subject to the sovereignty or jurisdiction of the State whose flag the ship is entitled to fly. However, each Party shall ensure, by the adoption of appropriate measures, that such ships act in a manner consistent with this Convention, so far as is reasonable and practicable.

4 - With respect to ships entitled to fly the flag of non-Parties to this Convention, Parties shall apply the requirements of this Convention as may be necessary to ensure that no more favourable treatment is given to such ships.

Article 4

Controls related to Ship Recycling

1 - Each Party shall require that ships entitled to fly its flag or operating under its authority comply with the requirements set forth in this Convention and shall take effective measures to ensure such compliance.

2 - Each Party shall require that Ship Recycling Facilities under its jurisdiction comply with the requirements set forth in this Convention and shall take effective measures to ensure such compliance.

Article 5

Survey and certification of ships

Each Party shall ensure that ships flying its flag or operating under its authority and subject to survey and certification are surveyed and certified in accordance with the regulations in the Annex.

Article 6

Authorization of Ship Recycling Facilities

Each Party shall ensure that Ship Recycling Facilities that operate under its jurisdiction and that recycle ships to which this Convention applies, or ships treated similarly pursuant to article 3.4 of this Convention, are authorized in accordance with the regulations in the Annex.

Article 7

Exchange of information

For the Ship Recycling Facilities authorized by a Party, such Party shall provide to the Organization, if requested, and to those Parties which request it, relevant information, in regard to this Convention, on which its decision for authorization was based. The information shall be exchanged in a swift and timely manner.

Article 8

Inspection of ships

1 - A ship to which this Convention applies may, in any port or offshore terminal of another Party, be subject to inspection by officers duly authorized by that Party for the purpose of determining whether the ship is in compliance with this Convention. Except as provided in paragraph 2, any such inspection is limited to verifying that there is on board either an International Certificate on Inventory of Hazardous Materials or an International Ready for Recycling Certificate, which, if valid, shall be accepted.

2 - Where a ship does not carry a valid certificate or there are clear grounds for believing that:

1) The condition of the ship or its equipment does not correspond substantially with the particulars of the certificate, and/or Part I of the Inventory of Hazardous Materials; or

2) There is no procedure implemented on board the ship for the maintenance of Part I of the Inventory of Hazardous Materials;

a detailed inspection may be carried out taking into account guidelines developed by the Organization.

Article 9

Detection of violations

1 - Parties shall co-operate in the detection of violations and the enforcement of the provisions of this Convention.

2 - When there is sufficient evidence that a ship is operating, has operated or is about to operate in violation of any provision in this Convention, a Party holding the evidence may request an investigation of this ship when it enters the ports or offshore terminals under the jurisdiction of another Party. The report of such an investigation shall be sent to the Party requesting it, to the Administration of the ship concerned and to the Organization, so that action may be taken as appropriate.

3 - If the ship is detected to be in violation of this Convention, the Party carrying out the inspection may take steps to warn, detain, dismiss, or exclude the ship from its ports. A Party taking such action shall immediately inform the Administration of the ship concerned and the Organization.

4 - If a request for an investigation is received from any Party, together with sufficient evidence that a Ship Recycling Facility is operating, has operated or is about to operate in violation of any provision of this Convention, a Party should investigate this Ship Recycling Facility operating under its jurisdiction and make a report. The report of any such investigation shall be sent to the Party requesting it, including information on action taken or to be taken, if any, and to the Organization for appropriate action.

Article 10

Violations

1 - Any violation of the requirements of this Convention shall be prohibited by national laws and:

1) In the case of a ship, sanctions shall be established under the law of the Administration, wherever the violation occurs. If the Administration is informed of such a violation by a Party, it shall investigate the matter and may request the reporting Party to furnish additional evidence of the alleged violation. If the Administration is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. The Administration shall promptly inform the Party that reported the alleged violation, as well as the Organization, of any action taken. If the Administration has not taken any action within one year after receiving the information, it shall inform the Party which reported the alleged violation, and the Organization, of the reasons why no action has been taken;

2) In the case of a Ship Recycling Facility, sanctions shall be established under the law of the Party having jurisdiction over the Ship Recycling Facility. If the Party is informed of such a violation by another Party, it shall investigate the matter and may request the reporting Party to furnish additional evidence of the alleged violation. If the Party is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. The Party shall promptly inform the Party that reported the alleged violation, as well as the Organization, of any action taken. If the Party has not taken any action within one year after receiving the information, it shall inform the Party which reported the alleged violation, and the Organization, of the reasons why no action has been taken.

2 - Any violation of the requirements of this Convention within the jurisdiction of any Party shall be prohibited and sanctions shall be established under the law of that Party. Whenever such a violation occurs, that Party shall either:

1) Cause proceedings to be taken in accordance with its law; or

2) Furnish to the Administration of the ship such information and evidence as may be in its possession that a violation has occurred.

3 - The sanctions provided for by the laws of a Party pursuant to this article shall be adequate in severity to discourage violations of this Convention wherever they occur.

Article 11

Undue delay or detention of ships

1 - All possible efforts shall be made to avoid a ship being unduly detained or delayed under article 8, 9 or 10 of this Convention.

2 - When a ship is unduly detained or delayed under article 8, 9 or 10 of this Convention, it shall be entitled to compensation for any loss or damage suffered.

Article 12

Communication of information

Each Party shall report to the Organization and the Organization shall disseminate, as appropriate, the following information:

1 - A list of Ship Recycling Facilities authorized in accordance with this Convention and operating under the jurisdiction of that Party;

2 - Contact details for the Competent Authority(ies), including a single contact point, for that Party;

3 - A list of the recognized organizations and nominated surveyors which are authorized to act on behalf of that Party in the administration of matters relating to the control of Ship Recycling in accordance with this Convention, and the specific responsibilities and conditions of the authority delegated to the recognized organizations or nominated surveyors;

4 - An annual list of ships flying the flag of that Party to which an International Ready for Recycling Certificate has been issued, including the name of the Recycling Company and location of the Ship Recycling Facility as shown on the certificate;

5 - An annual list of ships recycled within the jurisdiction of that Party;

6 - Information concerning violations of this Convention; and

7 - Actions taken towards ships and Ship Recycling Facilities under the jurisdiction of that Party.

Article 13

Technical assistance and co-operation