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: