EU Contradicts Itself, Proposes to Use Article 11 to Circumvent the Basel Ban Amendment
Toxic Ships are Toxic Waste and their Export from Europe to
non-Annex VII countries is Unlawful under the new Article 4a
The long history of the Basel Ban Amendment, from its adoption in 1995 (COP3) to its entry into force in December of 2019, has been fraught with multiple attempts to weaken or undermine it.  Always, however, the EU, together with developing countries, remained champions of it.  At the outset in 1995, just after its adoption, when certain countries argued that the ban could be circumvented by adding non-OECD countries to Annex VII or by using bilateral and multilateral agreements, these notions and efforts were denounced by the European Union and developing countries alike as being illegal and contrary to the intent and purpose of the Amendment. Indeed, the EU began to enforce the Ban Amendment as part of their Waste Shipment Regulation many years prior to its global entry into force.  

It is with considerable shock then that it seems the EU is willing to throw that all away, losing their soul in the long historic fight for environmental justice, and the Basel Convention, in order to do the bidding of a very powerful shipping industry. It would be very sad if they succeed in undoing all that they have built-in two decades of support for legislating against the international waste trade. It will not only be hypocritical but far worse, an illegal and devastating precedent that anybody could likewise assert in future to do as they pleased and ignore the Basel Convention for any waste stream and with any partners.  We fervently hope this does not come to pass.
Shipbreaking yard in Bangladesh, where imported obsolete ships laden with heavy metal laden paints, asbestos, oily sludges, and PCBs are broken apart by workers risking their lives from accidents and toxic exposure. Copyright Greenpeace.
EU Claims that Article 11 Cannot be Used to Circumvent Ban

In 1995, after the question was raised at the Basel Convention about using Article 11 to circumvent the Ban Amendment, Dr. Ludwig Kramer, as representative of the European Commission, wrote a letter to then Basel Executive Secretary Dr. Rummel-Bulska, stressing that their analysis concluded that Article 11 cannot be used to undermine the Ban Amendment. This position he told the Secretariat was adopted by the Council of Ministers of 6 October 1995. Dr. Kramer wrote: 

"It is clear that bilateral, multilateral, or regional agreements or arrangements between Parties listed in Annex VII and Parties or other States not listed in Annex VII, when allowing for hazardous waste to be exported from the first to the latter, would circumvent the legal requirement of Article 4A in a way which is not foreseen by the Convention and are therefore not acceptable from a legal point of view."

EU Claims that Article 11 Can be Used to Circumvent the Ban

However, in a letter from the European Commission to NGOs signed by Mr. Mattia Pellegrini, the Commission seems ready to throw that vital legal opinion out the door. He writes:
"Should a facility located in a non-OECD country be included on the EU list in the future, the regime of the Ship Recycling Regulation would then allow in practice exports of EU-flagged end-of-life ships to that non-OECD country, whereas the Basel Ban Amendment generally prohibits such exports. Therefore, facilities from non-OECD countries can only be included on the EU list if the export of end-of-life ships to the county in question is covered by an agreement or arrangement satisfying the conditions of Article 11 of the Basel Convention. There is no provision in Article 11 that would prevent the EU from entering such a bilateral agreement or arrangement."
Article 11: Validity Rests on Providing an "Equivalent Level of Control"

Not only does Mr. Pellegrini seem ready to ignore the earlier Council Decision on this very issue, which clearly laid out precisely why Article 11 cannot allow overturning the Basel Ban, but he seems to be unaware of the major debate that took place at the Basel Convention when the question arose as to whether the Hong Kong Convention for ship recycling, could ever be used as an Article 11 agreement and override the Basel Convention. The conclusion being that ships can be wastes and likely to be hazardous wastes when they are destined for recycling and that for any Article 11 agreement to be valid, there needed to be an "equivalent level of control" to the control achieved by the Basel Convention. The Basel Convention's COP10 was never able to reach a consensus on equivalency but they did assert that the Basel Convention must apply to waste ship. That was agreed upon even when the Ban Amendment was not yet part of the Convention.  

But now that it is, it should be obvious that a regime allowing the export of toxic ships to take place, whether set up by the EU, or the EU and another Party, or by the Hong Kong Convention, can never be seen as an "equivalent level of control" to a no-exceptions prohibition as embodied in the Ban Amendment. 

Article 11: Never Intended to be Used as an Escape from Basel Obligations

Article 11 was put into the Convention for two reasons: a) to recognise stronger regimes, that apply more rigorous rules -- such as the Bamako Convention, or b) to allow non-Parties and Parties to trade in waste despite the Party to non-Party Ban found in Article 4.5 as long as the rules of such an agreement provided an "equivalent level of control". Article 11 was never intended to allow de-facto reservations from the Convention which are NEVER allowed as stated plainly in Article 26.1.  

Using Article 11 to allow one or more Parties to step outside of the Basel Convention's obligations is extremely alarming in its implications.  If this were to be allowed here by the EU, then anybody can do this at any time for any waste and the Convention and Article 4A become meaningless.  
Action Needed Now:

We urge Parties and others to take steps to preserve the integrity of the Basel Convention and its new Article 4a. We urge you to write to both the Environment Commissioner and Development Commissioner of Europe to voice your concern about the letter and viewpoint taken by the European Commission and stress that Article 11 cannot be used to circumvent the established control procedures including the Ban Amendment, found in the Convention. Finally, we include the address of the Special Rapporteur on Human Rights (hazardous substances and waste) so that you can express your concern to this watchdog office. 
Frans Timmermans (European Green Deal)

Jutta Urpilainen (International Partnerships)

Marcos Orellana (Office of the High Commissioner on Human Rights: Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes)

For more information: 

See CIEL Legal Analysis on this subject:  Legality of EU Proposals on Ship Recycling
Jim Puckett, Executive Director
Basel Action Network
Ingvild Jenssen
NGO Shipbreaking Platform