2. Marine Pollution: C. Ocean Dumping

2. Marine Pollution: C. Ocean Dumping The annual meetings of the two major global treaties concerned with ocean dumping took place on 19–23 September at the International Maritime Organization (IMO) headquarters in London in order to review progress on the implementation of the treaties as well as to discuss the major issues and challenges in relation to dumping at sea. The meetings were open to the parties to both the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and its 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol). In line with past practice, the thirty-eighth consultative meeting of contracting parties to the London Convention and the eleventh meeting of contracting parties to the London Protocol took place simultaneously, and many of the discussions and decisions pertained to both instruments. This year marked twenty years since the adoption of the London Protocol and ten years since its entry into force. However, there was not necessarily a celebratory mood at the meeting, perhaps in part because of the acknowledgement of the serious challenges that lie ahead for the dumping regime. While the treaties look impressive on paper, there are serious gaps in implementation. The 2016 meetings were therefore focused on identifying what further action can be taken to consolidate the international dumping regime. In this regard, the 2016 meetings received updates on the status of the two treaties and related compliance issues; adopted the London Convention–London Protocol Strategic Plan; carried out discussions of marine geo-engineering and carbon dioxide sequestration; reviewed practices relating to dumping of radioactive wastes, vessels, and mine tailings; and discussed the contribution of the dumping regime to reducing marine litter. (1) Status of the London Convention and the London Protocol The London Convention is the most widely ratified treaty relating to dumping of waste at sea, with eighty-seven contracting parties representing 60.52 percent of world gross tonnage. This number has not changed for a number of years. Indeed, the London Protocol was designed to replace the London Convention by introducing an updated precautionary approach to the disposal of waste at sea, as well as a strengthened institutional framework for monitoring compliance and dealing with disputes. The London Protocol entered into force in 2006, but the acceptance rate has grown at a very slow rate since that time. Morocco became the forty-seventh contracting party on 26 March, and Iran announced at the meeting that it was in the final stages of formalizing its ratification.1 Nevertheless, the London Protocol is still significantly lagging behind the London Convention in terms of its coverage. In this respect, the parties at the meetings expressed their concern about the continued low annual increase of accessions to the London Protocol. One of the initiatives to improve this situation has been the development of a brochure, approved at the meeting, with the title: ‘Benefits of Being a Party to the London Protocol.’ Such an initiative can address one of the barriers to compliance that has been identified, namely, lack of awareness. However, a more serious barrier is the lack of political will for many nations. This problem is also evident in relation to the low acceptance of amendments to the text of the London Protocol. The 2009 Amendment to Article 6 of the London Protocol relating to the export of carbon dioxide streams has only been accepted by three states, and the 2013 Amendment to the London Protocol to regulate the placement of matter for ocean fertilization and other marine geo-engineering activities has only one acceptance. This state of affairs demonstrates the difficulties of modifying an international legal framework through formal treaty amendment processes. Another indication of the underlying weakness of the dumping regime is low reporting rates. The 2016 meetings were provided with the final draft compilation report of data on permits issued in 2013, which revealed that only nine parties to the London Convention (17 percent of the total) and only twenty-seven parties to the London Protocol (63 percent of the total) had submitted such information. Such gaps in information make any possible assessment of compliance very difficult, if not impossible. The contracting parties are aware of this challenge, reflected in part through their discussions on the London Convention–London Protocol strategic plan. (2) London Convention–London Protocol Strategic Plan A major milestone for the 2016 meetings was the adoption of the London Convention–London Protocol strategic plan, which has been under development since 2013. The plan identifies the strategic direction for the treaties, and it sets a number of related targets. The first strategic direction is to ‘promote ratification of or accession to the London Protocol,’ and this objective is accompanied by a target to ‘substantially increase the rate per year of new ratifications or accessions to the London Protocol.’ This target is not quantified, but it includes the objective of encouraging states to transition from the Convention to the Protocol. The second strategic direction is to ‘enhance effective implementation of the LC [London Convention] and LP [London Protocol],’ and a number of numerical targets have been set in relation to reporting, establishment of national authorities, adoption of appropriate domestic legislation, and composition of the Compliance Group. Essentially, the plan calls for full compliance by 2030, with interim targets in order to assess progress before that date. In practice, parties have been trying to achieve similar, albeit unquantified, goals for a number of years, and, therefore, the critical issue will be what steps will be taken to implement the strategic plan. To this end, an inter-sessional correspondence group was established to develop recommendations on how to operationalize the strategic plan. This body will report back to the meetings in 2017, and it will be interesting to see what new and innovative solutions can be found. The final two strategic directions relate to promoting the work of the London Convention and London Protocol externally and identifying emerging issues in the marine environment within the scope of the two treaties. These two items do not necessarily require new action on the part of the contracting parties, as this is the sort of activity that is already carried out on an ongoing basis. However, these strategic directions do conceal an ongoing tension between the parties as to the precise scope of the treaties. The discussions on this part of the plan highlighted continuing disagreements, with some delegations believing that the strategic plan should not be a vehicle for expanding the scope of the dumping regime and other delegations suggesting that the dumping regime should be used to ensure that no significant sources of marine pollution are left unregulated. In practice, the strategic plan commits the contracting parties to no particular path, and these issues will continue to be determined on a case-by-case basis. (3) Marine Geo-Engineering and Carbon Dioxide Sequestration Some of the more important developments in the dumping regime within the past decade have related to the use of ocean dumping as a means of combatting growing carbon emissions. Amendments have been adopted to facilitate sub-seabed carbon dioxide sequestration, on the one hand, and to limit marine geo-engineering, on the other hand. These issues are now regular items on the agenda of the meetings, although they are largely used as an opportunity to share information on emerging practices. In relation to geo-engineering, the meetings were informed that the United Kingdom had become the first state to formally accept the 2013 amendments, with Germany and Korea also indicating that they were in the process of ratification. Given that the amendments require acceptance by two-thirds of the contracting parties to the London Protocol, their entry into force remains a distant prospect. The meetings also received information about the new Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection on marine geo-engineering, which is expected to feed into future discussions under the dumping treaties. In regard to carbon dioxide sequestration, countries took the opportunity to exchange information on their experiences with carbon capture and storage technologies. Nigeria shared a report of an international workshop on offshore carbon dioxide storage held in the United States in April, and there was also discussion of an International Energy Agency review of a carbon dioxide storage site in the Netherlands. The United Kingdom emphasized the importance of costs in developing carbon dioxide storage options, highlighting that two of its carbon capture and storage projects had been curtailed due to budget constraints. (4) Nuclear Waste Limits on the dumping of radioactive substances have been a key issue under the London Convention from the outset, and the treaty was amended in 1993 in order to prohibit this practice, subject to a very narrow exception for substantive de minimis levels of radioactivity. It was agreed at the time when the amendments were adopted that a review should be carried out after twenty-five years. This review had to include a scientific study relating to all radioactive wastes and other radioactive matter other than high-level wastes or matter. Preparations began in 2014, and a literature review was presented to the 2016 meetings for their consideration. The parties agreed that this literature review was sufficient to satisfy the requirements of the London Convention, and it was further decided that the ban on radioactive dumping should remain in place. According to the London Convention, a further review should take place in another twenty-five years, although in practice, no countries are pushing for renewal of the practice of dumping radioactive substances at sea. (5) Mining Waste The 2016 meetings continued their discussions on the sub-sea disposal of mine tailings, both within and beyond national jurisdiction. Particular attention was given to the development of regulations to deal with the potential impacts of deep seabed mining, and the meetings encouraged contracting parties to engage actively in the work that was ongoing within the International Seabed Authority on this topic. Further discussion on this topic will take place at the next annual meetings, when an inter-sessional correspondence group on mine tailings will report. (6) Marine Litter Marine litter was again on the agenda of the 2016 meetings, providing an opportunity for states to highlight steps that they had taken to address this challenge. The contracting parties also adopted a recommendation to encourage action to combat marine litter, including through the identification and control of marine litter at source and increased monitoring, study, and knowledge sharing. Parties were further encouraged to consider this issue when applying the dredged material waste assessment guidance, and it was noted that the issue of plastics may be revisited when the Waste Assessment Guidelines are next revised. (7) Review of Specific Waste Assessment Guidelines: Vessels The 2016 meetings adopted revised Specific Guidelines for Assessment of Vessels as part of the ongoing process of periodically updating the specific waste assessment guidelines. The revised guidelines for the disposal of vessels at sea have been modified in part to reflect the conclusion of the 2009 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (Hong Kong Convention). Despite the fact that this treaty has not yet entered into force, it is used as a reference point for the purposes of identifying appropriate alternatives to the disposal of vessels at sea. Indeed, the revised guidelines emphasize that reuse or recycling are the preferred options for the disposal of vessels. If a decision is made to authorize the dumping of a vessel, the revised guidelines make further reference to the 2015 guidelines for the development of the Inventory of Hazardous Materials adopted under the Hong Kong Convention as an appropriate source of assistance in determining what materials should be removed from a vessel in order to make them suitable for disposal. The revised guidelines also provide advice on selecting a dump site and measures that should be taken in order to ensure that no surface debris is left by the operation. One issue raised during the discussions of the revised guidelines was the disposal of fiberglass vessels. It was noted that it can be more difficult to find appropriate recycling facilities for this type of vessel. At the same time, disposal at sea is not necessarily the best option due to the fact that such vessels could easily disintegrate, causing plastic pollution. These issues are not currently explicitly addressed in the revised specific guidelines and contracting parties were thus requested to provide information on existing practices, with a view to determining whether it was necessary to develop specific advice on the disposal of fiberglass vessels in future. The specific waste assessment guidelines on platforms are the next to be reviewed, and the Scientific Group is expected to make its recommendations to the contracting parties by 2018. The delegation from Greenpeace International also highlighted the question of launch vehicles for spacecraft as a topic that could be of interest to future sessions. Footnotes 1 In fact, Iran deposited its instrument of ratification on 23 November 2016 and it became formally bound a month later. Thus, at the time of writing there are 48 contracting parties, representing 38.87 percent of world gross tonnage. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

2. Marine Pollution: C. Ocean Dumping

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Abstract

The annual meetings of the two major global treaties concerned with ocean dumping took place on 19–23 September at the International Maritime Organization (IMO) headquarters in London in order to review progress on the implementation of the treaties as well as to discuss the major issues and challenges in relation to dumping at sea. The meetings were open to the parties to both the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and its 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol). In line with past practice, the thirty-eighth consultative meeting of contracting parties to the London Convention and the eleventh meeting of contracting parties to the London Protocol took place simultaneously, and many of the discussions and decisions pertained to both instruments. This year marked twenty years since the adoption of the London Protocol and ten years since its entry into force. However, there was not necessarily a celebratory mood at the meeting, perhaps in part because of the acknowledgement of the serious challenges that lie ahead for the dumping regime. While the treaties look impressive on paper, there are serious gaps in implementation. The 2016 meetings were therefore focused on identifying what further action can be taken to consolidate the international dumping regime. In this regard, the 2016 meetings received updates on the status of the two treaties and related compliance issues; adopted the London Convention–London Protocol Strategic Plan; carried out discussions of marine geo-engineering and carbon dioxide sequestration; reviewed practices relating to dumping of radioactive wastes, vessels, and mine tailings; and discussed the contribution of the dumping regime to reducing marine litter. (1) Status of the London Convention and the London Protocol The London Convention is the most widely ratified treaty relating to dumping of waste at sea, with eighty-seven contracting parties representing 60.52 percent of world gross tonnage. This number has not changed for a number of years. Indeed, the London Protocol was designed to replace the London Convention by introducing an updated precautionary approach to the disposal of waste at sea, as well as a strengthened institutional framework for monitoring compliance and dealing with disputes. The London Protocol entered into force in 2006, but the acceptance rate has grown at a very slow rate since that time. Morocco became the forty-seventh contracting party on 26 March, and Iran announced at the meeting that it was in the final stages of formalizing its ratification.1 Nevertheless, the London Protocol is still significantly lagging behind the London Convention in terms of its coverage. In this respect, the parties at the meetings expressed their concern about the continued low annual increase of accessions to the London Protocol. One of the initiatives to improve this situation has been the development of a brochure, approved at the meeting, with the title: ‘Benefits of Being a Party to the London Protocol.’ Such an initiative can address one of the barriers to compliance that has been identified, namely, lack of awareness. However, a more serious barrier is the lack of political will for many nations. This problem is also evident in relation to the low acceptance of amendments to the text of the London Protocol. The 2009 Amendment to Article 6 of the London Protocol relating to the export of carbon dioxide streams has only been accepted by three states, and the 2013 Amendment to the London Protocol to regulate the placement of matter for ocean fertilization and other marine geo-engineering activities has only one acceptance. This state of affairs demonstrates the difficulties of modifying an international legal framework through formal treaty amendment processes. Another indication of the underlying weakness of the dumping regime is low reporting rates. The 2016 meetings were provided with the final draft compilation report of data on permits issued in 2013, which revealed that only nine parties to the London Convention (17 percent of the total) and only twenty-seven parties to the London Protocol (63 percent of the total) had submitted such information. Such gaps in information make any possible assessment of compliance very difficult, if not impossible. The contracting parties are aware of this challenge, reflected in part through their discussions on the London Convention–London Protocol strategic plan. (2) London Convention–London Protocol Strategic Plan A major milestone for the 2016 meetings was the adoption of the London Convention–London Protocol strategic plan, which has been under development since 2013. The plan identifies the strategic direction for the treaties, and it sets a number of related targets. The first strategic direction is to ‘promote ratification of or accession to the London Protocol,’ and this objective is accompanied by a target to ‘substantially increase the rate per year of new ratifications or accessions to the London Protocol.’ This target is not quantified, but it includes the objective of encouraging states to transition from the Convention to the Protocol. The second strategic direction is to ‘enhance effective implementation of the LC [London Convention] and LP [London Protocol],’ and a number of numerical targets have been set in relation to reporting, establishment of national authorities, adoption of appropriate domestic legislation, and composition of the Compliance Group. Essentially, the plan calls for full compliance by 2030, with interim targets in order to assess progress before that date. In practice, parties have been trying to achieve similar, albeit unquantified, goals for a number of years, and, therefore, the critical issue will be what steps will be taken to implement the strategic plan. To this end, an inter-sessional correspondence group was established to develop recommendations on how to operationalize the strategic plan. This body will report back to the meetings in 2017, and it will be interesting to see what new and innovative solutions can be found. The final two strategic directions relate to promoting the work of the London Convention and London Protocol externally and identifying emerging issues in the marine environment within the scope of the two treaties. These two items do not necessarily require new action on the part of the contracting parties, as this is the sort of activity that is already carried out on an ongoing basis. However, these strategic directions do conceal an ongoing tension between the parties as to the precise scope of the treaties. The discussions on this part of the plan highlighted continuing disagreements, with some delegations believing that the strategic plan should not be a vehicle for expanding the scope of the dumping regime and other delegations suggesting that the dumping regime should be used to ensure that no significant sources of marine pollution are left unregulated. In practice, the strategic plan commits the contracting parties to no particular path, and these issues will continue to be determined on a case-by-case basis. (3) Marine Geo-Engineering and Carbon Dioxide Sequestration Some of the more important developments in the dumping regime within the past decade have related to the use of ocean dumping as a means of combatting growing carbon emissions. Amendments have been adopted to facilitate sub-seabed carbon dioxide sequestration, on the one hand, and to limit marine geo-engineering, on the other hand. These issues are now regular items on the agenda of the meetings, although they are largely used as an opportunity to share information on emerging practices. In relation to geo-engineering, the meetings were informed that the United Kingdom had become the first state to formally accept the 2013 amendments, with Germany and Korea also indicating that they were in the process of ratification. Given that the amendments require acceptance by two-thirds of the contracting parties to the London Protocol, their entry into force remains a distant prospect. The meetings also received information about the new Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection on marine geo-engineering, which is expected to feed into future discussions under the dumping treaties. In regard to carbon dioxide sequestration, countries took the opportunity to exchange information on their experiences with carbon capture and storage technologies. Nigeria shared a report of an international workshop on offshore carbon dioxide storage held in the United States in April, and there was also discussion of an International Energy Agency review of a carbon dioxide storage site in the Netherlands. The United Kingdom emphasized the importance of costs in developing carbon dioxide storage options, highlighting that two of its carbon capture and storage projects had been curtailed due to budget constraints. (4) Nuclear Waste Limits on the dumping of radioactive substances have been a key issue under the London Convention from the outset, and the treaty was amended in 1993 in order to prohibit this practice, subject to a very narrow exception for substantive de minimis levels of radioactivity. It was agreed at the time when the amendments were adopted that a review should be carried out after twenty-five years. This review had to include a scientific study relating to all radioactive wastes and other radioactive matter other than high-level wastes or matter. Preparations began in 2014, and a literature review was presented to the 2016 meetings for their consideration. The parties agreed that this literature review was sufficient to satisfy the requirements of the London Convention, and it was further decided that the ban on radioactive dumping should remain in place. According to the London Convention, a further review should take place in another twenty-five years, although in practice, no countries are pushing for renewal of the practice of dumping radioactive substances at sea. (5) Mining Waste The 2016 meetings continued their discussions on the sub-sea disposal of mine tailings, both within and beyond national jurisdiction. Particular attention was given to the development of regulations to deal with the potential impacts of deep seabed mining, and the meetings encouraged contracting parties to engage actively in the work that was ongoing within the International Seabed Authority on this topic. Further discussion on this topic will take place at the next annual meetings, when an inter-sessional correspondence group on mine tailings will report. (6) Marine Litter Marine litter was again on the agenda of the 2016 meetings, providing an opportunity for states to highlight steps that they had taken to address this challenge. The contracting parties also adopted a recommendation to encourage action to combat marine litter, including through the identification and control of marine litter at source and increased monitoring, study, and knowledge sharing. Parties were further encouraged to consider this issue when applying the dredged material waste assessment guidance, and it was noted that the issue of plastics may be revisited when the Waste Assessment Guidelines are next revised. (7) Review of Specific Waste Assessment Guidelines: Vessels The 2016 meetings adopted revised Specific Guidelines for Assessment of Vessels as part of the ongoing process of periodically updating the specific waste assessment guidelines. The revised guidelines for the disposal of vessels at sea have been modified in part to reflect the conclusion of the 2009 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (Hong Kong Convention). Despite the fact that this treaty has not yet entered into force, it is used as a reference point for the purposes of identifying appropriate alternatives to the disposal of vessels at sea. Indeed, the revised guidelines emphasize that reuse or recycling are the preferred options for the disposal of vessels. If a decision is made to authorize the dumping of a vessel, the revised guidelines make further reference to the 2015 guidelines for the development of the Inventory of Hazardous Materials adopted under the Hong Kong Convention as an appropriate source of assistance in determining what materials should be removed from a vessel in order to make them suitable for disposal. The revised guidelines also provide advice on selecting a dump site and measures that should be taken in order to ensure that no surface debris is left by the operation. One issue raised during the discussions of the revised guidelines was the disposal of fiberglass vessels. It was noted that it can be more difficult to find appropriate recycling facilities for this type of vessel. At the same time, disposal at sea is not necessarily the best option due to the fact that such vessels could easily disintegrate, causing plastic pollution. These issues are not currently explicitly addressed in the revised specific guidelines and contracting parties were thus requested to provide information on existing practices, with a view to determining whether it was necessary to develop specific advice on the disposal of fiberglass vessels in future. The specific waste assessment guidelines on platforms are the next to be reviewed, and the Scientific Group is expected to make its recommendations to the contracting parties by 2018. The delegation from Greenpeace International also highlighted the question of launch vehicles for spacecraft as a topic that could be of interest to future sessions. Footnotes 1 In fact, Iran deposited its instrument of ratification on 23 November 2016 and it became formally bound a month later. Thus, at the time of writing there are 48 contracting parties, representing 38.87 percent of world gross tonnage. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Yearbook of International Environmental LawOxford University Press

Published: Dec 28, 2017

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