Op-Ed: IMO Guidelines Are Quietly Weakening the Basel Convention

 

International law depends on a basic understanding that obligations accepted by states cannot be set aside by administrative preference. Treaties are binding because states have consented to be bound, and that consent cannot be diluted through voluntary guidance adopted by a different institution. Yet in the regulation of ship recycling, this principle is being tested in a way that should concern anyone who takes treaty law seriously.

The issue arises from the growing reliance on non-binding instruments adopted within the International Maritime Organization (IMO) to manage the overlap between the Basel Convention and the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (HKC). While the objective of improving ship recycling standards is widely shared, the method being used risks weakening a binding environmental treaty through practice rather than law.

The Basel Convention governs the transboundary movement of hazardous waste. Its purpose is preventative. Hazardous waste should not be exported across borders without the prior informed consent of the states concerned, particularly where the receiving state may lack adequate capacity to manage the waste safely. End-of-life ships, which typically contain asbestos, PCBs, heavy metals, residual fuels, and contaminated coatings, fall within Basel’s scope once a decision has been taken to dispose of them. The HKC, adopted in 2009 and in force since June 2025, addresses a different problem. It establishes technical and operational standards for ship recycling, including inventories of hazardous materials (IHM), certification of ships, and authorization of recycling facilities. It was developed in response to the absence of a coherent ship-specific framework and reflects years of negotiation within the maritime community.

Legally speaking, there is nothing inherently inconsistent between these two treaties. A state can comply with Basel’s controls on hazardous-waste movements while also applying HKC’s standards for safe and environmentally sound recycling. The difficulty arises because, in practice, many shipping administrations and industry actors view Basel procedures as ill-suited to the realities of shipping and recycling markets. Basel is seen as slow, rigid, and potentially disruptive. HKC is seen as tailored and workable.

This practical tension has driven the IMO to act. Over the past decade, the IMO’s Marine Environment Protection Committee (MEPC) has adopted a comprehensive set of guidelines to support implementation of the HKC. These include guidelines on ship recycling plans (MEPC.196(62)), safe and environmentally sound recycling (MEPC.210(63)), authorization of ship recycling facilities (MEPC.211(63)), survey and certification of ships (MEPC.222(64)), inspection of ships (MEPC.223(64)), and the development of inventories of hazardous materials (MEPC.379(80)). Each of these instruments is expressly non-mandatory. Their role is technical assistance, not lawmaking. The legal controversy has intensified with the recent approval of the Provisional Guidance on the Implementation of the Hong Kong and Basel Conventions with respect to the Transboundary Movement of Ships Intended for Recycling, issued as circular HKSRC.2/Circ.1 and approved by MEPC 82. These circular addresses the interface between the HKC and Basel Convention and seeks to reduce uncertainty for states and industry. The circular acknowledges that both conventions may apply to ships intended for recycling and invites states that are parties to both treaties to notify the Basel Convention Secretariat that they apply the HKC’s requirements to such ships. It suggests that where arrangements are in place to ensure environmentally sound management of hazardous waste arising from ship recycling, the HKC framework may be relied upon in managing transboundary movements of ships for recycling.

Although framed as coordination, this guidance has been widely interpreted as endorsing the application of the HKC in place of Basel procedures. In practice, some administrations have treated compliance with HKC standards as sufficient, without applying Basel’s prior informed consent (PIC) requirements. This interpretation is not required by the text of either treaty. It flows from the practical authority that IMO guidance carries.

That is where the legal problem lies. The IMO does not administer the Basel Convention. It has no mandate to interpret Basel obligations, grant exemptions, or create transitional arrangements that affect Basel parties. Circulars and guidelines adopted by MEPC are soft law. They have no binding force and cannot lawfully modify binding treaty commitments undertaken under a separate legal regime.

The distinction between binding law and voluntary guidance is not a formality. It is the foundation of treaty discipline. If soft law can be used to suspend or bypass hard law, then the hierarchy of sources collapses. Some have suggested that the Vienna Convention on the Law of Treaties (VCLT) provides a legal basis for prioritizing the HKC because it is later in time. This argument misunderstands the Vienna Convention. Its rules on treaty conflict apply only where two treaties govern the same subject matter and are legally incompatible. Basel and HKC do not meet that test. One regulates hazardous-waste movements. The other regulates ship recycling standards. A state can comply with both without contradiction i.e. they are not mutually exclusive. Operational inconvenience alone, however significant, does not constitute legal incompatibility

What exists is an operational issue, not a legal conflict. Faced with resistance to Basel enforcement and pressure from shipping interests for clarity, the IMO chose a pragmatic path. It issued guidance designed to facilitate early and effective implementation of the HKC and to reassure states that reliance on HKC procedures would be viewed as internationally acceptable. This approach avoided reopening Basel negotiations and offered industry a predictable framework.

From a governance perspective, the choice is understandable. From a legal perspective, it is troubling. International organizations wield influence not only through binding instruments, but through norms. IMO guidance is routinely treated by administrations as authoritative, even when it is formally voluntary. Over time, repeated reliance on guidance reshapes expectations and practice. What begins as “encouragement” becomes de facto rule.

This dynamic places states in a precarious position. Authorizing the export of an end-of-life ship for recycling without applying Basel prior informed consent procedures may place a Basel Party in breach of both its international obligations and its implementing domestic law. The fact that the authorization relies on an IMO circular does not cure that breach. Courts do not apply guidance. They apply law.

Domestic courts are therefore a critical, if underused, check in this system. In many jurisdictions, the Basel Convention has been incorporated into national law. Administrative decisions that rely on non-binding guidance to override treaty-based requirements are vulnerable to judicial review. A court can lawfully conclude that HKSRC.2/Circ.1 has no effect on the obligation to apply Basel controls.

This is not an attack on the HKC. Nor is it an argument against improving ship recycling standards. It is an argument about method and authority. Legal change must occur through legal means. If Basel is no longer fit for purpose in relation to ships, that judgment must be made by Basel parties through amendment or authoritative interpretation. It cannot be made indirectly through guidance issued under another convention.

Permitting this kind of quiet substitution creates a dangerous precedent in international law. It signals that binding environmental obligations can be softened through practice if they prove inconvenient. It rewards regulatory avoidance and disadvantages states and actors that attempt to comply strictly with the law.

The integrity of international law depends on clarity about sources and hierarchy. Treaties bind because states agreed that they would. Guidelines guide because they are meant to assist, not replace, legal obligations. When that distinction is blurred, law becomes negotiable and obligation becomes optional.

The IMO’s ship-recycling guidance was intended to promote safer practices and regulatory coherence. Those aims are legitimate. But legitimacy of purpose does not confer legal authority. Where guidance promotes outcomes that conflict with binding law, it must be rejected and set aside.

The solution is not difficult to state, even if it is politically challenging to implement. Basel parties should decide, openly and formally, how ship recycling should be treated under Basel. Until they do, Basel obligations continue to apply. Hong Kong standards must and should operate alongside them.

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Binding law binds. Guidance does not change that.

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 J.S.D. (Doctor of the Science of Law) from the University of Maine School of Law, USA, where he specialized in International Ship recycling laws and policy. He contributed to the drafting of Bangladesh’s Ship Recycling Rule 2025 (proposed) and revising Bangladesh Ship Recycling Act 2018 as the sole Legal Consultant. Dr. Ahmed is also a qualified Barrister of England, an active member of Chartered Institute of Arbitrators (MCIArb) in London and an Advocate of the Supreme Court of Bangladesh. His expertise lies at the intersection of maritime law, environmental regulation, and sustainable ship recycling practices. He can be reached at [email protected].