The International Control of Ocean Dumping Precautionary Currents

The International Control of Ocean Dumping: Precautionary Currents, Sea of Challenges Professor David L. Vander. Zwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute, Dalhousie University IUCN Academy of Environmental Law Colloquium Water and the Law: Towards Sustainability Eastern Cape, South Africa July 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 dumping – Over 500 million tonnes are estimated to be dumped annually – In 2007 alone * China dumped over 260 million tonnes of dredged material into East Asian Seas http: //www. bluewedg es. org/uploads/imag * Japan dumped nearly 4 million tonnes while South es/dredge-plume. Korea disposed of 5. 79 million tonnes sept 05 -small. jpg * South Africa permitted disposal of about 7. 92 million tonnes in the Indian Ocean

+ Other wastes also continue to be dumped, e. g. – Japan in 2007 disposed of various wastes in East Asian Seas * 47, 508 tonnes of food processing wastes * 8, 436 tonnes of livestock waste * 2, 459, 774 tonnes of construction and refining wastes * 522 tonnes of obsolete explosives – Canada in 2007 * 60, 930 tonnes of fish waste * 1, 118 tonnes of vessels/platforms * 1, 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” being – China (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/Protocol – Interpreting key terms of the Convention/Protocol – Keeping up with the numerous guidelines surrounding ocean dumping – Ensuring compliance – Confronting limited jurisdiction over internal waters – Addressing liability and compensation – Getting 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 permit * Those factors include, among others > Characteristics of the waste, e. g. † Toxicity † Persistence † Oxygen demand † Nutrients

> Characteristics of the dumping site and method of deposit, e. g. † Distance from the coast and resource exploitation areas † Dispersal potentialities (current velocity, vertical mixing, strength of tides) † Existing pollutant loads > General considerations, e. g. † Possible effects on marine living resources † Possible 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 • • • Arsenic Chromium Copper Lead Nickel Zinc Cyanides Fluorides Pesticides not covered by Annex I

+ Only a limited number of wastes listed in Annex I where ocean dumping is generally prohibited – – – – – Organohalogen compounds Mercury and mercury compounds Cadmium and cadmium compounds Persistent plastics Crude oil and its wastes Radioactive wastes Biological and chemical warfare materials Incineration at sea of industrial waste and sewage sludge Industrial 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 material Sewage sludge Fish wastes Vessels and platforms or other man-made structures Inert, inorganic geological material Organic 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 (CO 2 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 technologies * If 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 2011 – Only 87 State Parties to the London Convention 1972 – Only 40 State Parties to the 1996 Protocol + Ratification record of East Asian States not stellar – Brunei, Indonesia, Lao Peoples’ Dem. Rep. , Malaysia, Myanmar, Singapore, Thailand Vietnam not a Party to either agreement – Only China and Japan a Party to Protocol + Acceptance by African States also limited – Not Party to either agreement (Algeria, Botswana, Burkina Faso, Burundi, Cameroon, Central African Rep. , Chad, Comoros, Congo, Djibouti, Eritrea, Ethiopia, Gambia, 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 / Protocol * Ocean fertilization covered? http: //www. seashepherd. org/news/media_080214_1. html

* Artificial reefs? http: //www. impactlab. com/2008/04/11/dumpingold-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 ships * Spoilt cargoes? > Spoilt cargoes disposals have raised issue of relations of LC/LP with MARPOL Annex V which regulates garbage disposals > Marine 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 cargoes † Proposed 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/LP † Proposed 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 organisms > In July 2009 MEPC 59 approved “Guidance on Best Practices of Removal of TBT Paints from Ships” > A 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 extent – What 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 Guidelines – Guidelines for the Assessment of Wastes or Other Matter That May Be Considered for Dumping + Specific Guidelines (Nine) – Guidelines for Assessment of Dredged Material – Guidelines for Assessment of Sewage Sludge – Guidelines for Assessment of Fish Waste – Guidelines for Assessment of Vessels – Guidelines for Assessment of Platforms or Other Structures at Sea – Guidelines for Assessment of Inert, Inorganic Geological Material – Guidelines for Assessment of Organic Material of Natural Origin – Guidelines for Assessment of Bulky Items – Guidelines 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 1972 – Guidance on the National Implementation of the 1996 Protocol – Guidelines for the Placement of Artificial Reefs – Guidance 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 2010 – Guidelines presently under review/revision * Specific Guidelines for Dredged Material (2002) * CO 2 Sequestration Guidelines (2007) – Correspondence Group presently reviewing the content and effectiveness of all Specific Guidelines – Guidance 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 Report * 47 Contracting Parties Did Not Report – 26 Parties have not reported for past five years – On 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 fronts – A 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 expected – The Compliance Group, established under London Protocol, to enhance compliance, has included improved reporting by Parties on its future work programme – The “Barriers To Compliance” (B 2 C) 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 Protocol – The LC 1972 does not apply to internal waters of States – Under 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 measures + Riverine and sub-sea disposal of mine tailings in coastal waters has been an ongoing concern – Various questionnaires have been sent to Parties asking for information on such disposal practices and management measures but very limited responses to date – Governing 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 coasts – Governing 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 1972 Article 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 Projects The international control of proposed ocean fertilization projects, exemplified by adding iron to increase phytoplankton blooms and the fixation of CO 2 from the atmosphere, might be described as slippery + Considerable fragmentation and uncertainties in international responses to date + The 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 date – A fragmented array of international bodies/institutions have offered statements/decisions regarding ocean fertilization, e. g. * CBD COP 9 and COP 10 * Scientific Groups of the London Convention and Protocol and Meetings of the Parties * IOC Ad Hoc Consultative Group on Ocean Fertilization * Intergovernmental Panel on Climate Change * (For a partial compilation, see UNEP’s 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/processes * CBD COP 9 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 place ~ Until there is an adequate scientific basis to justify such activities and ~ A global, transparent and effective control and regulatory mechanism > Provides an exception for small-scale scientific research studies within coastal waters ~ Such studies should be subject to prior assessment and strictly controlled ~ Not be used for generating and selling carbon offsets or any other commercial purpose > Various uncertainties, particularly ~ What is small-scale? ~ What are coastal waters?

* Key efforts under the London Convention and 1996 Protocol > Governing 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 thereof ~ Agreed that scientific research proposals should be assessed on a case-by-case basis using an assessment framework to be developed by the scientific groups ~ Agreed 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/Protocol ~ What 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 2010 ~ Still 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 outcomes † Proposal subject to scientific peer review † Proponents 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 providing If 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 forward ~ Options 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 as † An Annex setting out what placement activities would require permits, e. g. legitimate scientific research involving ocean fertilization † An Annex listing prohibited placement activities, e. g. ocean fertilization that is not legitimate scientific research > The Report of the 3 rd 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 experiment – Joint 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 48 o. S, 16 o. W * LOHA = Hindi Word for Iron FEX = fertilization experiment http: //www. awi. de/fileadmin/user_u pload/News/Press_Releases/2009/ 1. _Quartal/LOHAFEXInfo_Anhang_ 1_bis_4. pdf

– Considerable criticisms from environmental NGOs as an alleged violation of the CBD’s moratorium (only small-scale scientific research studies in coastal waters allowed) – No international EIA process applicable * Project fell outside the Madrid Protocol’s EIA provisions since it took place outside the Antarctic Treaty Area * A 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 broadly * Project was a spatial small-scale experiment covering just 300 km 2 compared to the 50 million km 2 covered by the Antarctic Circumpolar Current * The 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 dumping • However, a sea of challenges remains in the wake with perhaps the greatest hurdle being to get all relevant States to come aboard the Protocol • The 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 out • The LP 1996 stands as a “beacon of hope” + Demonstrates how a strong precautionary approach of “reverse listing” is possible + Suggests avenues for future navigation in other areas of International Environmental Law, such as the management of toxic chemicals Thank you!