Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) and the 1996 Protocol (London Convention and London Protocol)
| Topics: |
This content is not assigned to a topic
|
Contents
Introduction
The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972), along with the later 1996 Protocol, (commonly referred to as the “London Convention” and the “London Protocol” respectively) are international agreements that restrict intentional disposal of certain materials in the oceans. The Convention and the Protocol are separate agreements that work in tandem to set restrictions on what may or may not beintroduced tothe world’s oceans, the Protocol being more restrictive than the Convention. The International Maritime Organization (IMO), a specialized agency of the United Nations, performs the Secretariat duties related to both the Convention and the Protocol.[1] (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) and the 1996 Protocol (London Convention and London Protocol))
History of Ocean Dumping and Previous Attempts at International Regulation
Prior to the 1970's the world's oceans were commonly seen as a dumping ground for all sorts of wastes. The industrialized nations of the world were using the oceans to dispose of radioactive wastes, sewage sludge, as well as old chemical and biological weapons. The results of this dumping included a degradation of the quality of marine life for consumption and, in some areas such as the Baltic Sea and New York Harbor, the seas were becoming "dead."[2]
The first attempt to regulate discharges into oceans was the failed Washington, D.C. conference in 1926. Members of the conference attempted to negotiate an agreement banning the intentional discharges of oil from ships. While an agreement was made, failure by the United States to ratify the agreement resulted in the failure to secure an international agreement on marine pollution. [3]
The first successful agreement came out of London in 1954. The treaty was aimed at preventing pollution at sea from oil tankers by prohibiting the discharge of oil or oil mixtures by tankers within prohibited zones.[4] Unfortunately, the treaty had a number of escape clauses, making it easy for most ships to avoid liability.[5] Amendments were made to the treaty in 1962 and 1969 that expanded the prohibited area and to set limits to the quantities of oil that can be discharged.[6] The treaty was again amended in 1971 to impose new standards on the construction of oil tankers. This treaty was, however, superseded by the 1973/78 MARPOL Convention (the International Convention for the Prevention of Pollution from Ships).[[[7]]] While marine pollution found small recognition in other agreements, the 1972 London Convention was the first to produce a new comprehensive agreement that specifically tackled intentional dumping into the world's oceans.
The London Convention
The London Convention was first adopted on November 13, 1972 and entered into force on August 30, 1975.[8] The Convention aims to prevent dumping of wastes into the oceans through an outright ban on some substances and a state-sponsored permitting program for other substances.[9] The Convention groups various wastes into one of three categories in Annex I, II, and III (commonly referred to as the Black List, the Grey List, and the White List).[10]
Dumping Defined
Dumping, as is defined by the Convention, is “any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea” or the disposal of the vessels or structures themselves.[[[11]]] (Note: The term “vessels” is used in the remainder of this piece to include aircraft as well, unless otherwise stated.) Included in the Convention are some exemptions to what is considered dumping. These exemptions include the disposal of “wastes or other matter incidental to, or derived from the normal operation of vessels,” as well as “[t]he disposal of wastes or other matter directly arising from, or related to…off-shore processing of sea-bed mineral resources.”[12]
Permissible Dumping
The Convention does not require a total ban on dumping. Instead, it bans outright the dumping of certain materials (listed in Annex I) and allows for the dumping of certain materials with a state-sanctioned permit (determined at the state’s discretion, provided dumping is harmonious with the provisions of Annexes II and III).[13] The Convention lists two types of permits. The first is the special permit, which is a permit that is granted specifically on application in advance of dumping and is the type of permit required for dumping of materials listed in Annex II.[14] The second is the general permit, which is one given for dumping materials that are not covered by Annexes I or II and are harmonious with the principles outlined in Annex III. States are required to issue dumping permits for material either a) loaded in its territory with material that is to be dumped; b) loaded by a vessel registered in its territory when the loading occurs in a State that is not party to the Convention; and c) vessels and fixed or floating platforms under its jurisdiction that are believed to be engaged in dumping.[15]
The Convention allows non-permitted dumping in instances of force majeure (French: literally “superior force”; Common Meaning: acts beyond one’s control) either due to weather or “in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms or other man-made structures at sea,if dumping appears to be the only way of averting the threat.”[16] In the event such a dumping must occur, the State responsible for the dumping must consult with the other States that are likely to be affected by the dumping.[17]
The Convention also makes an exception to vessels entitled to sovereign immunity under international law.[18] Such vessels would include military ships and aircraft, vessels and aircraft carrying heads of state. Vessels entitled to sovereign immunity under international law are those that are "owned or operated by the state and used only on government non-commercial service."[19]
Annex I:The "Black List"
The dumping of any item listed in Annex I is expressly prohibited by the Convention.[[[20]]] It should be noted that while Annex I is an exclusive list, the Convention does recognize that individual States may have their own regulations that ban dumping of certain materials from ships flying the flag of said State.[21] Banned materials include:
- Organohalogen compounds
- Mercury, cadmium, or compounds containing those elements
- Persistent plastics that may float on the surface and interfere with fishing, navigation, or other legitimate uses of the sea
- Crude oil and its wastes, refined petroleum products, residues, and mixtures containing any of these substances
- Radioactive wastes or other radioactive matter (does not apply to material containing de minimis levels of radioactivity as defined by the IAEA and adopted by the contracting States)
- Materials produced for chemical or biological warfare
- Incineration at sea of industrial wastes (other incineration may be performed with a special permit)
- Industrial waste (does not apply to dredged material, sewage sludge, fish waste or waste from fish processing, inert geological materials, and uncontaminated organic materials of natural origin)
Annex I also provides an exemption for substances that contain trace amounts of the first five items in this list and allows for disposal subject to the provisions of Annexes I and II.[22] Also, an exemption is made for substances which are “rapidly rendered harmless by physical, chemical, or biological processes in the sea provided they do not: i) make edible marine organisms unpalatable, or ii) endanger human health or that of domestic animals.”[23]
Annex II:The "Grey List"
The dumping of any item listed in Annex II is permissible, but only with a special permit.[24] Items requiring special permits include: [25]
A. Wastes containing significant amounts of:
• Arsenic
• Beryllium
• Chromium
• Copper
• Lead
• Nickel
• Vanadium
• Zinc
• Any compound containing one of the aforementioned elements
• Organosilicon compounds
• Cyanides
• Fluorides
• Pesticides and their by-products not covered in Annex I
B. Containers, scrap metal and other bulky wastes liable to sink to the bottom of the sea which may present a serious obstacle to fishing or navigation.
C. Incinerated substances not covered in Annex I
D. Non-toxic materials that may become harmful due to the quantity in which they are dumped.
Annex III:The "White List"
The dumping of all other materials that are neither listed in Annex I nor Annex II is permissible, provided the State issues a general permit to the polluter.[26] In issuing such a permit, a State must consider all of the factors set forth in Annex III.[27] Annex III requires States to look to a) characteristics of the material being dumped, b) characteristics of the dumping site and method, and c) possible effects of dumping the material in question. More specifics about these criteria are listed below:
A. Characteristics and Composition of the Matter
1. Total amount and average composition of matter being dumped (i.e. annually)
2. Form (solid, liquid, gas, or sludge)
3. Properties (physical, chemical, and biological)
4. Toxicity
5. Persistence
6. Accumulation in and effect on local organisms
7. Susceptibility to physical, chemical, and biochemical changes when left in an aquatic environment
8. Probability of damage to the marketability of resources (i.e. fish)
B. Characteristics of Dumping Site and Method of Dumping
1. Location itself and location in relation to other areas
2. Rate of disposal
3. Methods of packaging and containment
4. Dilution characteristics
5. Dispersal characteristics
6. Water characteristics, oxygen demand, nitrogen and organic compound content, and bottom characteristics
7. Other materials that have been dumped in the area
C. General Considerations and Conditions
1. Possible effects on usage
2. Possible effects on marine life
3. Possible effects on other uses of the sea
4. The practical availability of alternative land-based methods of disposal or of treatment to render the matterlessharmful for dumping at sea.
Dispute Resolution
One of the criticisms of the Convention (as well as many other international treaties) is that it does not include a clear mechanism for dispute resolution nor measures for enforcement. Article X of the Convention states that “[i]n accordance with the principles of international law regarding State responsibility for damage to the environment of other States…caused by dumping of wastes…, the Will undertake to develop procedures for the assessment of liability and the settlement of disputes regarding dumping.”[28] Interestingly, the following Article says that the States shall consider means of dispute resolution at the next consultative meeting.[29]
Amendments
The London Convention provides a process for amendment that requires a two-thirds majority in order to pass. Since its original drafting in 1972, the Convention has been amended five times. Amendments have included changes as to what can and cannot be disposed of offshore, the guidelines for permitting and disposal, and to how disputes are resolved between signatories.[30] One of the most visible amendments came in 1993. In October of 1993, the Russian Federation was caught dumping 237,000 gallons (900 tones) of low-level nuclear waste into the Sea of Japan. After efforts by Greenpeace brought the incident to light, both Japan and the United States changed their position on the dumping of low-level nuclear wastes, which, in turn, led to the 1993 amendment banning the dumping of low-level nuclear waste.[31] In addition, the 1993 amendment also phased out dumping of industrial waste by 31 December 1995 and banned the incineration of industrial wastes at sea.[32]
1996 Protocol
The Protocol should not be confused as an amendment to the Convention. Far from an amendment, the Protocol supersedes the Convention (although non-member states are invited to sign on to either).[33] The Protocol shows a distinct evolution from the earlier Convention. The Protocol incorporates both the precautionary principle and the polluter pays principle, ideas which were emergent at the time of the Convention and have gained traction since. The Protocol also redefines materials suitable for dumping, provides mechanisms and procedure for dispute resolution, adopts all previous amendments to the Convention, and closes loop-holes that might allow signatories to dump contraband into the oceans.
Permitted Dumping Revisited
One of the most notable features of the Protocol is the move away from lists of banned materials (the Black, Grey, and White Lists). The Protocol still features three Annexes, but rather than tell a State that they can discard this or they can't discard that, Annex I of the Protocol provides a list of what can be dumped. Materials included in Annex I may be disposed of offshore without the State having to issue a permit. For all materials not listed in Annex I, the polluter must have a permit issued by the State. [34]
Annex II discusses the duties of the State and the considerations it must weigh prior to issuing a permit. Annex II of the Protocol is, in many ways, an expanded version of Annex III of the London Convention. Annex II looks at the waste itself, the site chosen for dumping, the amounts being disposed of, and the long-term effects of disposal. These procedures, however, have evolved as well. New elements of the permitting decision include determining the possibility and feasibility of disposal techniques other than offshore dumping and the use of an "Action List" the replace the Black List and the Grey List. The action list is similar to the Black and the Grey List in that the presence of a substance on the list triggers an action. Each individual nation, however, determines which substances make it on their own action list and what quantity of a substance triggers an action (be it further processing, banning from ocean disposal, et cetera).
Embracing Emergent Norms
The Protocol embraces two principles known as the precautionary principle and the "polluter pays" principle. The precautionary principle is mentioned twice in the Protocol; first in the preamble and again in Article 3 (covering general obligations). In exercising precaution, States are advised to prevent dumping that is believed to have the potential for harming the marine environment, even if a causal relationship between the pollutant and the feared harm have not been proven.[35] Article 3 also contains the polluter pays principle and charges States with holding their individual polluters liable.
Dispute Resolution
One of the complaints leveled against the Convention was that it did not provide a clear means of dispute resolution. The Protocol, however, has attempted to rectify that failing. Article 16 of the Protocol specifically covers dispute resolution. The Protocol calls for an attempt at negotiation and mediation as a first step to resolving any conflict.[36] In the event the parties cannot come to an agreement, the Protocol provides its own arbitral procedure (located in Annex III of the Protocol) or allows the parties to pursue resolution in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) found in Article 287, paragraph 1.[37]
Other Changes
In addition to retaining all of the amendments to the Convention, the Protocol has also sought to strengthen itself in a number of ways. One interesting point is that the Protocol goes one step further on the issue of incineration. Whereas the Convention allowed some incineration at sea, the Protocol bans all incineration at sea.[38] Also, in order to help ensure signatories to the agreement could not find new means of doing that which they had promised not to do, the Protocol incorporates a ban on shipping wastes to other countries for dumping or incineration at sea.[39]
The Protocol also makes another interesting move in that it regulates how a State may utilize its own internal waters. Article 7 orders States to require permits for activities that would be dumping under the treaty even when done in the internal waters of the State.[40]
Amendments
Since coming into force in 2006, the Protocol has only been amended once. The 2006 amendment, which came into force the following year, was an amendment to Annex I, which allows for sub-seabed sequestration of carbon-dioxide (CO2). While guidelines for sequestration have yet to be developed, when they do become available they will be an important part of the regulation of CO2 sequestration.[41]
The Protocol also demonstrates a degree of evolution since the time of the Convention. First, it incorporates ideas that had either been referenced in the original Convention or added by amendment. Incineration at sea, for example, was permitted with some restrictions in the Convention whereas in the Protocol, incineration is outright banned under Article 5. Additionally, responding to concerns regarding loopholes in the original Convention, the authors of the Protocol included a prohibition of shipping wastes to other countries (non-signatories) for disposal at sea.[42]
Relationship Between the London Convention/Protocol and UNCLOS
All States parties to UNCLOS are legally bound to adopt laws and regulations and take other measures to control pollution by dumping, and they must be no less effective than the global rules and standards (UNCLOSarticle 210), which are considered to be those of the London Convention 1972. They will also be obliged to enforce such laws and regulations as is required by article 216 of UNCLOS. This is an important consequence in view of the fact that as many as 77 out of 145 States Parties (as of 5 January 1999) are not a Contracting Party to the London Convention 1972.[43]
State Implementation and U.S. Issues
Currently there 86 States are Parties to the Convention and 37 States are Parties to the Protocol.[44] The Convention was signed by President Richard M. Nixon and was ratified by the Senate by a vote of 86-0.[45] The 1996 Protocol was signed by then-President William (Bill) Jefferson Clinton, on March 31, 1998, however ratification is still pending in the Senate.[46] The failure of the Senate to ratify the Protocol creates some unique legal questions that will be discussed in depth further below.
Regarding implementation of the Convention, Article VI requires States to designate (or create) an appropriate authority to manage the permitting process, keep records of materials being dumped at sea, and to monitor the conditions of the sea.[47] For the United States the Environmental Protection Agency (USEPA or EPA) was already in place and was the natural agency to oversee the permitting process. In 1972, Congress enacted the Marine Protection, Research, and Sanctuaries Act (commonly referred to as either MPRSA or the Ocean Dumping Act) in order to implement the requirements of the Convention.[48] Since that time, the United States has enacted other laws in order to further protect the Earth's oceans.
The position of the United States with regards to the Protocol is a unique and complex case. International law recognizes several types of showings of an intention to be bound to an agreement and also recognizes that prior to coming into force, a State that is Party to an agreement cannot work to defeat the purpose of the agreement.[49] Although the Senate has, to date, failed to ratify the treaty, President Clinton's signature is indicative of US support of the treaty. Customary international law dictates that while the United States is not explicitly bound by the full terms of the treaty, the Unites States should not act in a way that is a flagrant disregard of the terms of the treaty.
Carbon Sequestration Issues
One of the emergent issues related to both the Convention and the Protocol is the issue of carbon sequestration in the oceans. There are two forms of carbon sequestration that are being widely considered as viable means of disposing of CO2 in the oceans. The first is sub-seabed sequestration and the second is direct injection into the water column. Because of the differences in the treaties, both treaties have to be examined individually to see how they might impact sequestration efforts.
The Protocol and Sequestration
Shortly after coming into force in 2006 the Protocol was amended specifically to address the issue of carbon sequestration in the oceans. The amendment added CO2 sequestration to Annex I of the Protocol, the list of materials approved for ocean disposal.[50] The Annex also stipulated conditions for sequestration including, most importantly to this discussion, that disposals must be "into a sub-seabed geological formation."[51] The language of the Protocol is quite clear in that sequestration must be into the subsoil. The explicit language of the provision precludes the injection of carbon directly into the water column.
The Convention and Sequestration
The Convention is silent on the issue of CO2 sequestration in the oceans. Moreover, CO2 is not listed in either Annex I or Annex II of the Convention, thereby making it a permissible substance to be disposed of in the oceans. Per the terms of the Convention, anybody seeking to dispose of CO2 in the oceans would be required to seek a permit from their state.
If, however, there was a finding that CO2 was not permitted to be disposed of in the sea, one would have to question whether or not the Convention applies to the subsoil as sub-seabed sequestration is yet another means of storing CO2 in the oceans. The issue of the Convention's governance of the subsoil was extensively debated throughout the 1980's and into the early portion of the 1990's within the context of nuclear waste disposal. Those advocating for radioactive waste disposal beneath the seabed argued that the phrase "at sea" contained within the definition of dumping did not include the seabed and therefore the subsoil. Their rationale was that the sea, which was defined in Article III(3) made no mention of the seabed and defined the sea as all marine waters other than the internal waters of a state.[52]
Opponents of this point of view argue that the term "at sea" refers to the means by which the waste was disposed (at sea as opposed to on land) and that the actual resting place was not what was at issue. Proponents of this position pointed to the endorsement of General Assembly Resolution 2749(XXV) in the Preamble.[53] This resolution places "[t]he sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction...."[54] This resolution also sets forth that any exploration or exploitation of natural resources on the seabed must be done in accordance with international law and that states have an obligation to protect the marine environment in the course of their operations.[55] While this is a compelling argument, it should be noted that the issue was twice debated amongst the contracting Parties and at neither time did the Parties reach a consensus.[56]
In light of the fact that the Protocol, the stricter of the two agreements, permits the disposal of CO2 into the sub-seabed, it is reasonable to conclude that most interpretations of the Convention would also make for such an allowance. However, although both the Convention and the Protocol govern on the same subject matter, it must always be remembered that they are in fact two separate agreements. As such, interpretations of the Convention do not absolutely have to be consistent with the Protocol.
Carbon Dioxide (CO2) as Industrial Waste
Under the terms of the Convention, CO2 could be found to be industrial waste and as such, per the terms of Annex I, could not be disposed of in the oceans.[57] The Annex provides some exemptions for what qualifies as industrial waste, however none of the exemptions could be reasonably interpreted to include CO2. This could be quite problematic as much of the CO2 that is likely to be sequestered will be generated by entities such as power plants. If such CO2 streams are deemed to be industrial waste, their sequestration in the oceans, whether in the water column or the sub-seabed, would be prohibited. Whether CO2 constitutes industrial waste is moot under the terms of the Protocol because the Protocol directly addresses CO2 sequestration.
References
^ "Abbreviated Report on the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972." International Maritime Organization. http://www.imo.org/home.asp?topic_id=1488 (accessed June 1, 2010); "Introduction to the IMO." International Maritime Organization. http://www.imo.org/About/mainframe.asp?topic_id=3 (accessed June 1, 2010).
^ Michael S. Schenker, Saving a Dying Sea - The London Convention on Ocean Dumping, 7 Cornell Int'l L.J. (1973-1974), at 33.
^ Ibid, at 34.
^ "Global Instruments on Marine Pollution." United Nations Economic and Social Commission for Asia and the Pacific.http://www.unescap.org/drpad/vc/orientation/legal/3_marine.htm (accessed June 1, 2010)
^ Michael S. Schenker, Saving a Dying Sea - The London Convention on Ocean Dumping, 7 Cornell Int'l L.J. (1973-1974), at 35.
^ Ibid, at 36.
^ "Global Instruments on Marine Pollution." United Nations Economic and Social Commission for Asia and the Pacific. http://www.unescap.org/drpad/vc/orientation/legal/3_marine.htm (accessed June 1, 2010)
^ A Review of Recent Developments in Ocean and Coastal Law. 13 Ocean &Coastal L.J. 143, at 147.(2007).
^ Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 art 4. Nov. 13, 1972,London Convention available at http://www.imo.org/includes/blastDataOnly.asp/data_id%3D16925/LC1972.pdf
^ David Nelson and William B. Prince, Developing an Environmental Regulatory Model -- Piecing Together the Growing Diversity of International Environmental Standards and Agendas, 39A Rocky Mountain Mineral Law Special Institute 13 (1995).
^ London Convention art III(1)(a)(i-ii). Nov. 13, 1972.
^ London Convention art III(1)(b-c). Nov. 13, 1972.
^ Ibid, art IV.
^ Ibid, art III(5); art IV(1)(b).
^ Ibid, art VI; art VII.
^ Ibid, art V.
^ Ibid.
^ Ibid, art VII.
^ United Nations Convention on the Law of the Sea art. 96, Dec 10, 1982, 1833 U.N.T.S. 397 UNCLOS. Available at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm
^ London Convention art IV(1)(a).
^ Ibid, art IV.
^ Ibid, Annex I(9).
^ Ibid, Annex I(8).
^ Ibid, art IV(1)(b).
^ Ibid, Annex II.
^ Ibid, art IV
^ Ibid.
^ Ibid, art X.
^ Ibid, art XI.
^ "Abbreviated Report on the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972." International Maritime Organization. http://www.imo.org/home.asp?topic_id=1488 (accessed June 1, 2010).
^ Steven D. Lavine, Russian Dumnping in the Sea of Japan, 24 Denv. J. Int'l L. & Pol'y 417 (1996).
^ "Abbreviated Report on the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972." International Maritime Organization. http://www.imo.org/home.asp?topic_id=1488 (accessed June 1, 2010).
^ 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 The London Protocol art 23. available at:http://www.imo.org/includes/blastData.asp/doc_id=8200/PROTOCOL%20Amended%202006.doc
^ Ibid.
^ Ibid, art 3(1).
^ Ibid, art 16(1).
^ Ibid, art 16(2).
^ Ibid, art 5.
^ Ibid, art 6.
^ Ibid, art 7.
^ Ibid, Annex I(4); "Abbreviated Report on the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972." International Maritime Organization. http://www.imo.org/home.asp?topic_id=1488 (accessed June 1, 2010).
^ London Protocol, art 6.
^ "UNCLOS." International Maritime Organization. http://www.imo.org/dynamic/mainframe.asp?topic_id=1514&doc_id=7602 (accessed June 8, 2010).
^ "London Convention and Protocol." International Maritime Organization. http://www.imo.org/home.asp?topic_id=1488 (accessed June 1, 2010).
^ Treaty No. 93-3, 93rd Cong. (1973) (Available through the THOMAS database via the Library of Congress).
^ Treaty No. 110-5,110th Cong. (2007) (Available through the THOMAS database via the Library of Congress); A Review of Recent Developments in Ocean and Coastal Law. 13 Ocean & Coastal L.J. 143, at 147. (2007).
^ London Convention, art VI.
^ "Ocean Dumping." United States Environmental Protection Agency. http://www.epa.gov/owow/oceans/regulatory/dumpdredged/oceandumping.html (accessed June 1, 2010).
^ Vienna Convention on the Law of Treaties, 1969 Vienna Convention, art 11 and art 18, May 23, 1969, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
^ London Protocol, Annex I art 1(8).
^ Ibid, Annex 1 art 4(1).
^ Karen N. Scott, The Day After Tomorrow: Ocean CO2 Sequestration and the Future of Cimate Change, 18 Geo. Int'l Envtl. L. Rev. 57, at 74-75 (2005).
^ Ibid, 75.
^ G.A. Res. 2749(XXV), U.N. GAOR, 25th Sess., A/RES/2621(XXV) (available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/350/14/IMG/NR035014.pdf?OpenElement).
^ Ibid.
^ Karen Scott at 75.
^ London Convention, Annex I (11).
