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The International Control of Ocean Dumping: Precautionary Currents, Sea of Challenges . Professor David L. VanderZwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute, Dalhousie University - PowerPoint PPT Presentation
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The North Atlantic Salmon Conservation Organization (NASCO): Nearing a 25 Year Voyage in Transboundary Cooperation But Still Confronting a Sea of Challenges
The International Control of Ocean Dumping: Precautionary
Currents, Sea of Challenges
Professor David L. VanderZwaagCanada Research Chair in Ocean Law
and GovernanceMarine & Environmental Law Institute,Dalhousie
University
IUCN Academy of Environmental Law ColloquiumWater and the Law: Towards SustainabilityEastern Cape, South AfricaJuly 4, 2011
Introduction
Although Only 10 Per Cent of Ocean Pollution Is Estimated To Come from Ocean Dumping, the Deliberate Disposal of Wastes into the Oceans Remains an Ongoing Management Challenge
Large amounts of dredged materials are dumped annually
Constituting 80 to 90 per cent of ocean dumpingOver 500 million tonnes are estimated to be dumped annually In 2007 alone
China dumped over 260 million tonnes of dredged material into East Asian SeasJapan dumped nearly 4 million tonnes while South Korea disposed of 5.79 million tonnesSouth Africa permitted disposal of about 7.92 million tonnes in the Indian Ocean
http://www.bluewedges.org/uploads/images/dredge-plume-sept05-small.jpg
Other wastes also continue to be dumped, e.g.
Japan in 2007 disposed of various wastes in East Asian Seas47,508 tonnes of food processing wastes8,436 tonnes of livestock waste2,459,774 tonnes of construction and refining wastes522 tonnes of obsolete explosivesCanada in 200760,930 tonnes of fish waste1,118 tonnes of vessels/platforms1,258,000 tonnes of inert geological material
South Africa (174,000 tonnes of bulky waste)
In 2007 alone, countries reportedly issued 1,414 permits for
ocean dumping with the top five beingChina (367)Philippines
(131)United Kingdom (101)Canada (94)Spain (88)
This Presentation Provides a Two-Part Summary of the International Legal Framework for Controlling Ocean Dumping
Precautionary currents
The move from a permissive approach to ocean dumping under the London Convention 1972 (LC 1972)Towards a precautionary approach under the 1996 Protocol to the London Convention (LP)
A sea of challenges (quick seven)
Convincing countries to become Party to the
Convention/ProtocolInterpreting key terms of the
Convention/ProtocolKeeping up with the numerous guidelines
surrounding ocean dumpingEnsuring complianceConfronting limited
jurisdiction over internal watersAddressing liability and
compensationGetting a legal grip on ocean fertilization
proposals
1.Precautionary Currents
The London Convention 1972 Represents a Permissive Approach to Ocean Dumping
Almost anything can be dumped at sea if a permit is granted by a State Party
General permits for most types of waste
Annex III of the LC 1972 sets out various factors decisionmakers must carefully consider before issuing a permitThose factors include, among others
Characteristics of the waste, e.g.ToxicityPersistenceOxygen
demandNutrients
Characteristics of the dumping site and method of deposit, e.g. Distance from the coast and resource exploitation areasDispersal potentialities (current velocity, vertical mixing, strength of tides)Existing pollutant loads
General considerations, e.g.Possible effects on marine living
resourcesPossible effects on other uses of the sea (such as
fishing, shipping and marine conservation areas)Practical
availability of alternative land-based methods of disposal or
treatment
Special permits allowed for Annex II listed wastes (the grey list), for example, wastes containing
ArsenicChromiumCopperLeadNickelZincCyanidesFluoridesPesticides
not covered by Annex I
Only a limited number of wastes listed in Annex I where ocean dumping is generally prohibited
Organohalogen compoundsMercury and mercury compoundsCadmium and
cadmium compoundsPersistent plasticsCrude oil and its
wastesRadioactive wastesBiological and chemical warfare materials
Incineration at sea of industrial waste and sewage sludgeIndustrial
waste as from 1 January 1996
The 1996 Protocol: Precautionary Currents
Protocol explicitly recognizes the need for a precautionary approach in Article 3(1):
In implementing this Protocol, Parties shall apply a precautionary approach to environmental protection from dumping of wastes and other matter whereby 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 where there is no conclusive evidence to prove a general relation between impacts and their effects.
Adopts reverse listing approach where listing favours the environment and is precautionary
Nothing can be dumped unless it is listed on a safe list
Dredged materialSewage sludgeFish wastesVessels and platforms or
other man-made structuresInert, inorganic geological
materialOrganic materials of natural origin Bulky items primarily
comprising iron, steel, concrete, and similarly unharmful materials
for which concern is physical impact (limited to where wastes are
generated at locations having no practicable access to disposal
options other than dumping)Sequestration of carbon dioxide (CO2
under the seabed (adopted 2 November 2006, in force 10 February
2007)
Even for waste on the safe list, Annex 2 of the Protocol further encourages a precautionary approach through the permitting process
The permitting authority is encouraged to require ocean dumping applicants to undertake waste prevention audits
Whether waste reduction / prevention at source is feasible, for example, through product reformulation, clean production technologiesIf so, applicants should be required to formulate a waste prevention strategy and waste reduction / prevention requirements should be included as permit conditions
Permitting authority is obligated to refuse issuing a permit if appropriate opportunities exist to re-use, recycle or treat the waste without undue risks to human health or the environment or disproportionate costs
The permitting authority is also urged to deny an ocean dumping
permit if an environmental assessment does not include adequate
information to determine the likely effects of the proposed
disposal
2.A Sea of Challenges
Convincing Countries To Become Party to the Convention / Protocol
As of 31 May 2011Only 87 State Parties to the London Convention
1972Only 40 State Parties to the 1996 ProtocolRatification record
of East Asian States not stellarBrunei, Indonesia, Lao Peoples Dem.
Rep., Malaysia, Myanmar, Singapore, Thailand and Vietnam not a
Party to either agreementOnly China and Japan a Party to
ProtocolAcceptance by African States also limitedNot Party to
either agreement (Algeria, Botswana, Burkina Faso, Burundi,
Cameroon, Central African Rep., Chad, Comoros, Congo, Djibouti,
Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Lesotho, Liberia,
Madagascar, Malawi, Mauritius, Mauritania, Mozambique, Namibia,
Niger, Rwanda, Sao Tome & Principe, Senegal, Somalia, Sudan,
Swaziland, Togo, Uganda, Zambia, Zimbabwe) Few Parties to Protocol
(Angola, Egypt, Ghana, Nigeria, Sierra Leone, South
Africa)
Nevertheless, the 1982 Law of the Sea Convention obligates its Parties to adopt national laws no less effective than global rules in controlling ocean dumping pollution (Art. 210)
The LC 1972 would at the very least set the relevant standards
Argument may also be made that the 1996 Protocol now represents
global standards
Interpreting Key Terms of the Convention / Protocol, E.G.
Key exceptions to what is considered ocean dumping subject to the Convention / Protocol
Placement of matter for a purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of the Convention / ProtocolOcean fertilization covered?
http://www.seashepherd.org/news/media_080214_1.html
Artificial reefs?
http://www.impactlab.com/2008/04/11/dumping-old-subway-cars-into-the-atlantic/
http://www.impactlab.com/2008/04/11/dumping-old-subway-cars-into-the-atlantic/
Disposal into the sea of wastes or other matter incidental or
derived from the normal operations of shipsSpoilt cargoes?Spoilt
cargoes disposals have raised issue of relations of LC/LP with
MARPOL Annex V which regulates garbage disposalsMarine Environment
Protection Committee (MEPC) is expected to adopt at the next MEPC
Meeting (July 11-15) amendments to Annex V trying to clarify the
boundary line between MARPOL and LC/LP relating to spoilt
cargoesProposed amendments would require the master of a vessel to
report to the flag State and nearest coastal State, in accordance
with IMO guidelines, prior to the discharge of animal carcasses
where the cargo mortality exceeds 2%Such reporting might invoke the
permitting requirements of the LC/LPProposed amendments relating to
animal carcasses have been controversial
Still fully bracketed text U.S.A. has indicated it prefers
dealing with animal carcass disposals pursuant to IMO guidelines
(MEPC 62/6/17)Australia has criticized the proposed 2% mortality
threshold for reporting and has suggested a more flexible term mass
mortalities (MEPC 62/6/6)U.K. progress report on drafting updated
guidelines on implementing Annex V has also questioned the 2%
threshold, e.g. 2% of what figure? Over what period of time? (MEPC
62/7/1)
Hull scrapings?A Joint LC-LP/MEPC Working Group on Boundary
Issues has facilitated discussion on how to address the control of
releases outside a dockyard environment of anti-fouling paint
flakes and fouling organismsIn July 2009 MEPC 59 approved Guidance
on Best Practices of Removal of TBT Paints from ShipsA
Correspondence Group under the auspices of the IMO Sub-Committee on
Bulk Liquids and Gases has completed draft guidelines from the
control and management of ships bio-fouling to minimize the
transfer of invasive aquatic species and has forwarded them to MEPC
for adoption next week
What exactly are inert, inorganic geological materials that may be permitted for dumping?Bauxite residues? (red mud dumping by Japan)Cement sheeting containing asbestos? (Cook Islands allowed scuttling of a ship filled with over 300 tonnes of cement sheeting containing asbestos)
Annex I of the Protocol allows dumping of vessels, platforms and
bulky items comprising unharmful materials provided that material
capable of creating floating debris or otherwise contributing to
marine pollution has been removed to the maximum extentWhat is
maximum extent?How far do vessels, platforms have to be cleaned,
for example, of PCBs in electrical cables and gaskets?
Keeping Up with the Numerous Guidelines Surrounding Ocean Dumping
Generic GuidelinesGuidelines for the Assessment of Wastes or Other Matter That May Be Considered for Dumping
Specific Guidelines (Nine)Guidelines for Assessment of Dredged
MaterialGuidelines for Assessment of Sewage SludgeGuidelines for
Assessment of Fish WasteGuidelines for Assessment of
VesselsGuidelines for Assessment of Platforms or Other Structures
at SeaGuidelines for Assessment of Inert, Inorganic Geological
MaterialGuidelines for Assessment of Organic Material of Natural
OriginGuidelines for Assessment of Bulky ItemsGuidelines for
Assessment of Carbon Dioxide Streams for Sub-Seabed
Disposal
Other Guidance
Guidelines for the Application of the De Minimis Concept Under the London Convention 1972Guidance on the National Implementation of the 1996 ProtocolGuidelines for the Placement of Artificial ReefsGuidance on Managing Spoilt Cargoes (LC-LP.1/Circ. 30; MEPC.1/Circ. 688)Guidance for the Development of Action Lists and Action Levels for Dredged Material
Guidance documentation tends to be a moving target, e.g.Revised Specific Guidelines for the Assessment of Bulky Items adopted by governing bodies of LC/LP in October 2010Guidelines presently under review/revisionSpecific Guidelines for Dredged Material (2002)CO2 Sequestration Guidelines (2007)
Correspondence Group presently reviewing the content and
effectiveness of all Specific GuidelinesGuidance on the Development
of Action Lists and Action Levels for Fish Wastes being developed
(under the lead of Canada)
Ensuring Compliance
LC 1972 and the 1996 Protocol require Parties to report annually to the IMO on nature and quantities of wastes permitted to be dumped at sea (LC Art. VI(4) and LP Art. 9.4) but implementation has been weak
For 2007 (Latest Year for Which Final/Full Reporting Available) Only 41 Contracting Parties Provided a National Report47 Contracting Parties Did Not Report
26 Parties have not reported for past five yearsOn average, only
about 50 % of Contracting Parties provide annual dumping
reports
Poor reporting also on field monitoring of disposal sites (required by LC Art. VI(4) and LP Art. 9.4)At April 2011 meeting of Scientific Groups only three countries presented monitoring reports (Japan, Canada and UK)
Strengthening compliance with national reporting obligations
remains a work in progress on various frontsA Correspondence Group,
under the lead of the United States, is in the process of
finalizing a review of reporting formats and suggestions for more
simplified reporting can be expectedThe Compliance Group,
established under London Protocol, to enhance compliance, has
included improved reporting by Parties on its future work
programmeThe Barriers To Compliance (B2C) project has been a major
mechanism for holding regional and national capacity-building
workshops and development of a training module on annual permit and
monitoring reports for use in future workshops was endorsed by the
Scientific Groups in April 2011
Confronting Limited Jurisdiction over Internal Waters
Addressing deliberate ocean disposals in internal waters of
States is constrained under the Convention and ProtocolThe LC 1972
does not apply to internal waters of StatesUnder the 1996 Protocol
each Contracting Party has discretion to apply the precautionary
provisions of the Protocol in internal waters or to adopt other
effective permitting and regulatory measuresRiverine and sub-sea
disposal of mine tailings in coastal waters has been an ongoing
concernVarious questionnaires have been sent to Parties asking for
information on such disposal practices and management measures but
very limited responses to dateGoverning bodies of LC/LP in October
2010 agreed that a consultant should be funded (in co-operation
with UNEP-GPA) to help pull together a comprehensive report on the
disposal of tailings and associated wastes from mining and
information on the presence of waste storage facilities (such as
lagoons and dams) near the coastsGoverning bodies have suggested
using a future report as a basis for a policy discussion and
possibly the development of a general guidance document
Addressing Liability and Compensation
The Convention / Protocol both call for further elaboration of liability and compensation procedures arising from ocean dumping
LC 1972Article X
In accordance with the principles of international law regarding
State responsibility for damage to the environment of other States
or to any other area of the environment, caused by dumping of
wastes and other matter of all kinds, the Contracting Parties
undertake to develop procedures for the assessment of liability and
the settlement of disputes regarding dumping.
1996 Protocol
Article 15
Responsibility and Liability
In accordance with the principles of international law regarding State responsibility for damage to the environment of other States or to any other area of the environment, the Contracting Parties undertake to develop procedures regarding liability arising from the dumping or incineration at sea of wastes or other matter.
No liability and compensation procedures have been established
Of particular concern should be historical dumping authorized by
States
http://sosnews.org/pics/mustardgas-dumping.jpg
Getting a Legal Grip on Ocean Fertilization ProjectsThe
international control of proposed ocean fertilization projects,
exemplified by adding iron to increase phytoplankton blooms and the
fixation of CO2 from the atmosphere, might be described as
slipperyConsiderable fragmentation and uncertainties in
international responses to dateThe limited international grip
exemplified by the 2009 LOHAFEX ocean fertilization experiment in
the Atlantic sector of the Southern Ocean
Considerable fragmentation and uncertainties in international
responses to ocean fertilization proposals to dateA fragmented
array of international bodies/institutions have offered
statements/decisions regarding ocean fertilization, e.g.CBD COP 9
and COP 10Scientific Groups of the London Convention and Protocol
and Meetings of the PartiesIOC Ad Hoc Consultative Group on Ocean
FertilizationIntergovernmental Panel on Climate Change(For a
partial compilation, see UNEPs submission to the Meeting of Parties
to the London Convention and Protocol, LC 30/INF.4, 28 August
2008)
Considerable uncertainties left in the wake of two of the most
important international pronouncements/processesCBD COP9 Decision
IX/16 on Biodiversity and Climate Change (2008) in Part C (Ocean
Fertilization) (Reaffirmed in COP 10 Decision X/33)Requests
Parties, in accord with the precautionary approach, to ensure that
ocean fertilization activities do not take placeUntil there is an
adequate scientific basis to justify such activities andA global,
transparent and effective control and regulatory mechanismProvides
an exception for small-scale scientific research studies within
coastal watersSuch studies should be subject to prior assessment
and strictly controlledNot be used for generating and selling
carbon offsets or any other commercial purposeVarious
uncertainties, particularlyWhat is small-scale?What are coastal
waters?
Key efforts under the London Convention and 1996
ProtocolGoverning Bodies Resolution LC-LP.1 on the Regulation of
Ocean Fertilization (31 October 2008) Agreed that in order to
provide for legitimate scientific research, such research should be
regarded as placement of matter for a purpose other than mere
disposal thereofAgreed that scientific research proposals should be
assessed on a case-by-case basis using an assessment framework to
be developed by the scientific groupsAgreed that given the present
state of knowledge, ocean fertilization activities other than
legitimate scientific research should not be allowed and such other
activities should be considered as contrary to the aims of the
Convention/ProtocolWhat precisely constitutes legitimate scientific
research was left to future fleshing out in proposed Assessment
Framework for Scientific Research Involving Ocean
Fertilization
An Assessment Framework for Scientific Research Involving Ocean Fertilization was adopted by the governing bodies on 14 October 2010Still considerable interpretive leeway left open as to what constitutes legitimate scientific research with s. 2.2 setting out key criteria that should be met
Lack of any financial and/or economic gain arising directly from the experiment and its outcomesProposal subject to scientific peer reviewProponents committed to publish results in peer reviewed scientific publications
Assessment Framework also leaves lots of room for deciding
whether an ocean fertilization research proposal is contrary to the
aims of the Convention/Protocol with s. 43 providingIf the risks
and/or uncertainties are so high as to be deemed unacceptable, with
respect to protection of the marine environment, taking into
account the precautionary approach, then a decision should be made
to seek revision of or reject the proposal.
An Intersessional Working Group on Ocean Fertilization,
established in 2008, has held three meetings to discuss options for
further addressing ocean fertilization without reaching consensus
on the best way forwardOptions run from non-binding (e.g. a further
resolution) to binding (e.g. a stand alone article on ocean
fertilization or an amendment of Annex I to the London
Protocol)U.S.A. has suggested giving time for the Assessment
Framework for Scientific Research Involving Ocean Fertilization to
be implemented before deciding on the need for additional
regulation (wait and see position)Canada has suggested new
provisions in the Protocol to address ocean fertilization such asAn
Annex setting out what placement activities would require permits,
e.g. legitimate scientific research involving ocean fertilizationAn
Annex listing prohibited placement activities, e.g. ocean
fertilization that is not legitimate scientific researchThe Report
of the 3rd Meeting of the Working Group (31 May 3 June 2011) will
be considered by the governing bodies at their next meeting in
October 2011 so still uncertain how ocean fertilization will be
further addressed
The limited international grip reality is exemplified by the 2009 LOHAFEX experimentJoint iron fertilization experiment carried out in (January - March 2009) by the Alfred-Wegener Institute for Polar and Marine Research (AWI) and the National Institute of Oceanography (India)About six tonnes of dissolved iron were applied to an area of 300 sq.Km.Outside the Antarctic Treaty Area in an eddy around 48oS, 16oWLOHA = Hindi Word for Iron FEX = fertilization experiment
http://www.awi.de/fileadmin/user_upload/News/Press_Releases/2009/1._Quartal/LOHAFEXInfo_Anhang_1_bis_4.pdf
Considerable criticisms from environmental NGOs as an alleged violation of the CBDs moratorium (only small-scale scientific research studies in coastal waters allowed)No international EIA process applicableProject fell outside the Madrid Protocols EIA provisions since it took place outside the Antarctic Treaty AreaA scientific risk assessment was conducted by AWI and the National Institute of Oceanography
On behalf of the Federal Ministry of Education and Science
(Germany) further reviews of the risk assessment were solicited
from various institutes (including from the British Antarctic
Survey, University of Heidelberg; University of Kiel)The risk
assessment interpreted the CBD criteria broadlyProject was a
spatial small-scale experiment covering just 300 km2 compared to
the 50 million km2 covered by the Antarctic Circumpolar CurrentThe
project involved coastal waters as coastal plankton species inhabit
the offshore fertilized waters
Parting Thoughts!
The LP 1996 represents a major step for humankind in applying a precautionary approach to ocean dumpingHowever, a sea of challenges remains in the wake with perhaps the greatest hurdle being to get all relevant States to come aboard the ProtocolThe international control of ocean disposals remains an unfinished voyage with legal reins over ocean fertilization and possibly other marine geo-engineering proposals yet to be fully sorted outThe LP 1996 stands as a beacon of hope
Demonstrates how a strong precautionary approach of reverse listing is possibleSuggests avenues for future navigation in other areas of International Environmental Law, such as the management of toxic chemicals
Thank you!