EU Commission's proposed regulation on ship recycling is illegal under international and EU law

January, 2013

On March 23, 2012, the European Commission adopted a proposal for regulating ship recycling. The objective of the Proposed Regulation is to integrate the provisions of the International Convention for the Safe and Environmentally Sound Recycling of Ships (the Hong Kong Convention) into the law of the European Union. The Commission's proposal on ship recycling would amend the scope of the EU Regulation on the Shipments of Waste that currently implements the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), including the Ban Amendment. The Basel Ban Amendment prohibits the export of hazardous waste from the EU to countries that are not members of the Organization for Economic Co-operation and Development (OECD). Ships falling under the scope of the Proposed Regulation would be excluded from the existing EU Regulation on the shipment of waste.

CIEL has examined the legality of the Proposed Regulation and has concluded that its attempt to unilaterally exempt a certain category of hazardous waste covered by the Basel Convention, namely end-of-life ships, from the control mechanisms of the Convention is illegal under international law and EU law. End-of-life vessels constitute Basel waste and are thus subject to the mechanisms of control set forth in the Basel Convention and relevant EU law banning exports of hazardous waste to non-OECD countries. The EU cannot legally derogate unilaterally from the Basel Convention obligations and must apply the Basel convention mechanisms of control to Basel covered waste. Until the Basel Ban Amendment enters into force, the EU is under an obligation to refrain from any action that would defeat its object and purpose.