A significant milestone for the protection of the marine environment was reached on 24 March 2006 with the entry into force of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.
The 1996 Protocol represents a major change of approach to the question of how to regulate the use of the sea as a depository for waste materials in that, in essence, dumping is prohibited, except for materials on an approved list. This contrasts with the 1972 Convention which permitted dumping of wastes at sea, except for those materials on a banned list.
The 1996 Protocol enters into force 30 days after ratification by 26 countries, 15 of whom must be Contracting Parties to the original 1972 treaty. The 1996 Protocol was adopted in November 1996 and will supersede (replace) the 1972 Convention "as between Contracting Parties to this Protocol which are also Parties to the Convention". This means, in practice, that both instruments will be in force in parallel for some time, but the momentum will gradually shift to the Protocol as more and more parties ratify it.
The first Meeting under the Protocol was held from 30 October to 3 November 2006, in conjunction with the 28th Consultative Meeting of the Parties to the London Convention.
One of the first key issues for discussion under the 1996 Protocol was a review of the compatibility of CO2 capture and storage in sub-seabed geological structures, as part of a suite of measures to tackle the challenge of climate change and ocean acidification.
Key features and advantages of the 1996 Protocol
The 1996 Protocol reflects a more modern and comprehensive agreement on protecting the marine environment from dumping activities than the original 1972 Convention and reflects the broader aims to protect the environment in general, emanating from Agenda 21, the global plan of action for sustainable development adopted by the 1992 United Nations Conference on Environment and Development (UNCED), in Rio de Janeiro, Brazil, also known as the 1992 Earth Summit.
The 1996 Protocol introduces (in Article 3) what is known as the "precautionary approach" as a general obligation. This requires that "appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects." The article also states that "the polluter should, in principle, bear the cost of pollution" and it emphasizes that Contracting Parties should ensure that the Protocol should not simply result in pollution being transferred from one part of the environment to another.
The 1972 Convention permits dumping to be carried out provided certain conditions are met, according to the hazards to the marine environment presented by the materials themselves. The 1972 Convention includes a "black list" of materials which may not be dumped at all.
The 1996 Protocol is more restrictive. It states (in Article 4) that Contracting Parties "shall prohibit the dumping of any wastes or other matter with the exception of those listed" (in Annex 1 to the Protocol). These materials include:
Fish waste, or material resulting from industrial fish processing operations
Vessels and platforms or other man-made structures at sea
Inert, inorganic geological material
Organic material of natural origin
Bulky items primarily comprising iron, steel, concrete and similar harmless materials, for which the concern is physical impact, and limited to those circumstances where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping.
The 1996 Protocol's geographical coverage is wider, as it also governs storage of wastes in the seabed, as well as the abandonment, or toppling, of offshore installations (Article 1).
Although the internal waters of a State are excluded from the dumping provisions under both the Convention and Protocol, Parties to the Protocol have the option to apply its rules to their internal waters if they wish (Article 7).
Assessment of wastes
The 1996 Protocol is more pragmatic in its orientation towards commonly generated wastes rather than contaminants. It is, therefore, more clear in what is and what is not permitted for dumping at sea, making it easier for Administrations to apply.
Key provisions of the step-wise assessment procedure are included in Annex 2 to the Protocol. All permits and permit conditions have to comply with these provisions. The Convention only referred to consideration of comparable factors listed in its Annex III, without showing how these fit together.
The protocol places more emphasis on compliance than the Convention: has a Party complied with the key provisions of the Protocol? How effective are its policies to protect the marine environment?
Article 11 requires the Meeting of Contracting Parties, no less than two years after the Protocol's entry into force, to establish those procedures and mechanisms necessary to assess and promote compliance with the Protocol. The Meeting may then offer advice, assistance or co-operation to Contracting Parties and non-Contracting Parties. Initial work has already begun to develop these procedures and mechanisms.
The 1996 Protocol includes a transitional period provision (Article 26) assisting new Parties towards gradually achieving full compliance over a maximum period of five years (certain conditions apply).
Technical co-operation and assistance
Article 13 on technical co-operation and assistance requires Contracting Parties, through collaboration with the Organization and in co ordination with other competent international organizations, to promote bilateral and multilateral support for the prevention, reduction and, where practicable, elimination of pollution caused by dumping as provided for in the Protocol, to those Contracting Parties that request it.
The tasks of the Meeting of Contracting Parties (Article 18) and duties of IMO are better described than in the Convention. Unlike the original treaty, the Protocol establishes clearly the depositary duties of the IMO Secretary-General and spells out the Secretariat duties necessary for the administration of the Protocol.
The Protocol includes arrangements for the settlement of disputes between Parties in its annex 3, whereas the 1978 amendments to the Convention on the same issue never entered into force.
Amendments to the Articles to the Protocol shall enter into force "on the 60th day after two-thirds of Contracting Parties shall have deposited an instrument of acceptance of the amendment with the Organization" (IMO). Amendments to the annexes are adopted through a tacit acceptance procedure under which they will enter into force not later than 100 days after being adopted. The amendments will bind all Contracting Parties except those which have explicitly expressed their non-acceptance.
Incineration of wastes at sea
Incineration of wastes at sea was initially permitted under the 1972 Convention, but this practice was ended in 1991 and is specifically prohibited by article 5 of the 1996 Protocol. Incineration at sea of industrial waste and sewage sludge had already been prohibited under the 1993 amendments to the 1972 Convention.
2006 Amendments to the 1996 Protocol
Adoption: 2 November 2006
Entry into force: 10 February 2007
Storage of carbon dioxide (CO2) under the seabed will be allowed from 10 February 2007, under amendments to an international convention governing the dumping of wastes at sea.
Contracting Parties to the London Protocol, at their first meeting held in London from 30 October to 3 November, adopted amendments to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Convention). The amendments regulate the sequestration of CO2 streams from CO2 capture processes in sub-seabed geological formations.
Parties also agreed that guidance on the means by which sub-seabed geological sequestration of carbon dioxide can be conducted should be developed as soon as possible. This will, when finalized, form an important part of the regulation of this activity. Arrangements have been made to ensure that this guidance will be considered for adoption at the 2nd Meeting of Contracting Parties in November 2007.
This means that a basis has been created in international environmental law to regulate carbon capture and storage (CCS) in sub-seabed geological formations, for permanent isolation, as part of a suite of measures to tackle the challenge of climate change and ocean acidification, including, first and foremost, the need to further develop low carbon forms of energy. In practice, this option would apply to large point sources of CO2 emissions, including power plants, steel and cement works.
The amendments, which will enter into force 100 days after adoption (i.e. on 10 February 2007), state that carbon dioxide streams may only be considered for dumping, if: disposal is into a sub-seabed geological formation; they consist overwhelmingly of carbon dioxide (they may contain incidental associated substances derived from the source material and the capture and sequestration processes used); and no wastes or other matter are added for the purpose of disposing of them.