Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 as Amended by the Protocol of 1996
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 as Amended by the Protocol of 1996
1 Introduction
This Convention, adopted on 29 December 1972, entered into force on 30 August 1975.1 On 7 November 1996 a Protocol was adopted, the purpose of which was entirely to replace the text of 1972. Art. 23 of the Protocol so in fact provides:
This Protocol will supersede the Convention as between Contracting Parties to this Protocol which are Parties to the Convention.
Since, however, of the 87 States Parties to the Convention of 1972 only 34 are Parties to the Protocol,2 which entered into force on 24 March 2006, the commentary that follows indicates the changes and additions brought to the original text by the Protocol. The provisions replaced or deleted by the Protocol are crossed out and the changes and additions are in italics.
The purpose of the Convention is stated in the two last paragraphs of the Preamble to the 1972 Convention, worded as follows:
BEING CONVINCED that international action to control the pollution of the sea by dumping can and must be taken without delay but that this action should not preclude discussion of measures to control other sources of marine pollution as soon as possible; and
WISHING to improve protection of the marine environment by encouraging States with a common interest in particular geographical areas to enter into appropriate agreements supplementary to this Convention
replaced in the Protocol by the following paragraph:
BEING CONVINCED that further international action to prevent, reduce and where practicable eliminate pollution of the sea caused by dumping can and must be taken without delay to protect and preserve the marine environment and to manage human activities in such a manner that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations
it is then further stated in art. 1 that:
Contracting Parties shall individually and collectively promote the effective control of all sources of pollution of the marine environment, and pledge themselves especially to take all practicable steps to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea
replaced in the Protocol by the following art. 2:
Contracting Parties shall individually and collectively protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter. Where appropriate, they shall harmonize their policies in this regard.
The Convention, therefore, does not set out obligations addressed to individuals, that must be implemented by Contracting States, but creates obligations on States to adopt the measures required in order prevent pollution caused by dumping of wastes. A clear example of the difference is given by the chapeau of art. VII(1), that became art. 10 in the Protocol, quoted below in paragraph 2.1.
The distinction between this technique, employed to ensure international uniformity, and that used in most maritime conventions is very subtle, for also in respect of such other conventions one of the methods of implementation is the translation of their rules into terms of national law,3 in which event the result is similar to that achieved under the convention now under consideration.
The provisions of the Convention and of the Protocol4 that will be considered are only those that affect the rights and obligations of the persons who may be involved in the dumping or incineration of wastes or other matter. Consideration of those relating exclusively to the relations between Contracting Parties (arts. VIII-XXII of the Convention and 11–18 of the Protocol) will be omitted.
2 The Scope of Application of the Convention and of the Protocol
2.1 Vessels and aircraft to which national implementing legislation must apply
Art. VII(1) of the Convention (now art. 10.1 of the Protocol) so provides:
1 Each Contracting Party shall apply the measures required to implement the present Convention _Protocol to all:
1 vessels and aircraft registered in its territory or flying its flag;
2 vessels and aircraft loading in its territory or territorial seas wastes or other matter which is are to be dumped or incinerated at sea;
3 vessels, and aircraft and fixed or floating platforms or other man-made structures under its jurisdiction believed to be engaged in dumping or incinerating at sea in areas within which it is entitled to exercise jurisdiction in accordance with international law.
These rules do not define the scope of application of the Convention, but that of the national laws that will implement the obligations of Contracting States arising out of their ratification of or accession to the Convention. Therefore, the phrase ‘This Convention Protocol shall not apply …’ in paragraph 4 appears to be inappropriate.
The vessels and aircraft to which the national implementing legislation must apply are divided into three groups.
The first group covers all vessels and aircraft registered in the territory of each Contracting State or flying its flag. It appears that the alternative between registration and flag applies to both ships and aircraft. As regards ships, although the general rule is that ships fly the flag of the State in whose registers they are registered, there are States that allow ships registered in another State to fly their flag; and that situation is now recognised in all the States in which temporary change of flag is permitted.5 It is significant that in the UN Convention on Conditions for Registration of Ships 1986 there are separate definitions of Flag and State of registration. In the Convention now under consideration the following definition of ‘vessels and aircraft’ is given in art. III(2), which has become in the Protocol art. 1(6):
‘Vessels and aircraft’ means waterborne or airborne craft of any type whatsoever. This expression includes air cushioned craft and floating craft, whether self-propelled or not.
The term ‘floating craft’ must be given a wide meaning, since in the definition of ‘dumping’, that will be considered subsequently, reference is made to the disposal of wastes from ‘platforms or other man-made structures’.
The second group covers vessels and aircraft of any nationality or registration that are loading in the territory (or territorial seas under the Convention) of the relevant Contracting State (wastes or other) matter which is to be dumped.6 Therefore, Contracting States must take appropriate actions in order to prevent such ships sailing out of their territorial sea with on-board wastes that would be dumped (or incinerated under the Protocol) at sea.
The third group in (c), in addition to vessels and aircraft, also covers fixed or floating platforms, of whatever nationality, that are believed to be engaged in dumping (or incineration). The relevant area in which dumping (or incineration) would take place is referred to in the Convention as the ‘jurisdiction’ of the relevant State, whilst in the Protocol it is more appropriately identified as that within which the relevant State is ‘entitled to exercise its jurisdiction in accordance with international law’.
2.2 Vessels and aircraft to which national legislation does not apply
Art. VII(4) of the Convention (art. 10.4 of the Protocol), so provides:
4 This Convention Protocol shall not apply to those vessels and aircraft entitled to sovereign immunity under international law. However, each Party shall ensure by the adoption of appropriate measures that such vessels and aircraft owned or operated by it act in a manner consistent with the object and purpose of this Convention Protocol and shall inform the Organization accordingly.
The wording used in order to identify vessels entitled to sovereign immunity is similar to that used in art. 4(1) of the Salvage Convention 1989, except that in that Convention it follows a specific reference to warships. In order to identify generally the vessels entitled to sovereign immunity reference must be made to the Convention of 1926 on Immunity of State-Owned Ships and to arts. 29–32 of UNCLOS. In art. 3(1) of the 1926 Immunity Convention the exception to the general rule that ships owned or operated by States are subject to the same rules of liability and to the same obligations as are applicable to privately owned ships, applies to ‘warships, State-owned yachts, Coastguard vessels, hospital ships, fleet auxiliaries, supply vessels and other vessels owned or operated by a State and employed exclusively on governmental and noncommercial service’. Art. 32 of UNCLOS provides generally that with the exceptions contained in subsection A and in arts. 30 and 317 nothing in the Convention affects the immunities of warships and other government ships operated for non-commercial purposes. The provision now under consideration requires Contracting States to ensure that State ships ‘act in a manner consistent with the object and purpose of the Convention and inform the Organization accordingly’. It is not clear if by that it is meant that States should merely confirm having done so, or whether they should provide details on the manner in which they ensured compliance with such rule.
3 The Activities Regulated by the Convention and the Protocol
There is a difference between the scope of the Convention and that of the Protocol, since the Convention applies only to dumping, whilst the Protocol applies to dumping and incineration.
Dumping is defined in art. III(1)(a) of the Convention and art. 1.4 of the Protocol:
(a) ‘Dumping’ means:
(i) 1 Any deliberate disposal at into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;
(ii) 2 Any deliberate disposal at into sea of vessels, aircraft, platforms or other man-made structures at sea;
3 any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea; and
4 any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal.
‘Disposal’ is the action of getting rid of something and ‘disposal at sea’ indicates that the manner of getting rid of wastes is to throw them in the sea. The reference to disposal from vessels, aircraft, platforms or other man-made structures indicates that the wastes must be carried on any one of such craft and therefore disposal from ashore is not covered by the Convention. The ‘other matter’ is not the object of a specific definition in the Convention and in the Protocol. There is only the following definition of both in art. III(4) and art. 1.8 of the Protocol:
‘Wastes or other matter’ means material and substance of any kind, form and description.
For the purpose of the definition of ‘dumping’ the Convention and the Protocol then set out as follows in art. III(b) and art. 1.4.2 of the Protocol the actions that are not included in the notion of dumping:
(b)2 ‘Dumping’ does not include:
(i)1 the disposal at sea of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures;
(ii)2 placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.
3 notwithstanding paragraph 4.1.4. abandonment in the sea of matter (e.g., cables, pipelines and marine research devices) placed for a purpose other than the mere disposal thereof.
(c) The disposal or storage of wastes or other matter directly arising from, or related to the exploration, exploitation and associated offshore processing of sea-bed mineral resources will not be covered by the provisions of this Convention Protocol.
Incineration is so defined in art. 1(5) of the Protocol:
1 ‘Incineration at sea’ means the combustion on board a vessel, platform or other man-made structure at sea of wastes or other matter for the purpose of their deliberate disposal by thermal destruction.
2 ‘Incineration at sea’ does not include the incineration of wastes or other matter on board a vessel, platform, or other man-made structure at sea if such wastes or other matter were generated during the normal operation of that vessel, platform or other man-made structure at sea.
The clarification under sub-paragraph 2 was needed since there is a similar clarification under the previous paragraph 1(4)(2) of the Protocol in respect of ‘dumping’.
4 The Obligations of the Contracting Parties
4.1 General obligations
Art. 3 of the Protocol (no similar provision exists in the Convention) so provides:
- In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or 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 when there is no conclusive evidence to prove a causal relation between inputs and their effects.