[Senate Executive Report 110-21]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-21
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1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION
BY THE DUMPING OF WASTES AND OTHER MATTER
_______
September 11, 2008.--Ordered to be printed
_______
Mr. Dodd, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-5]
The Committee on Foreign Relations, to which was referred
the 1996 Protocol to the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, done in London
on November 7, 1996 and signed by the United States on March
31, 1998 (the ``Protocol'') (Treaty Doc. 110-5), having
considered the same, reports favorably thereon with one
understanding and two declarations, as indicated in the
resolution of advice and consent, and recommends that the
Senate give its advice and consent to ratification thereof, as
set forth in this report and the accompanying resolution of
advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Major Provisions.................................................2
IV. Entry Into Force.................................................6
V. Implementing Legislation.........................................6
VI. Committee Action.................................................6
VII. Committee Recommendation and Comments............................7
VIII.Resolution of Advice and Consent to Ratification.................9
IX. Annex--Compliance Procedures and Mechanisms.....................11
I. Purpose
The purpose of this Protocol is to update and strengthen
the 1972 Convention on the Prevention of Marine Pollution by
Dumping of Wastes and other Matter (The ``London Convention''
or the ``Convention'') (Treaty Doc. 93-3) in an effort to
protect the marine environment more effectively.
II. Background
The London Convention, which was opened for signature on
December 29, 1972 and entered into force for the United States
on August 30, 1975, currently governs ocean dumping and the
incineration at sea of wastes and other matter. The Convention
was a significant early step in international protection of the
marine environment, first proposed in the Council on
Environmental Quality's 1970 report on ocean dumping and
designed to promote the establishment of a national system in
each State Party for regulating the ocean disposal of wastes.
In the United States, such a system had been established
through the Marine Protection, Research and Sanctuaries Act of
1972 (Title I of P.L. 92-532), which implements the 1972 London
Convention.
The 1996 London Dumping Protocol, which entered into force
on March 24, 2006, is intended eventually to replace the 1972
London Convention. The Protocol, much like the London
Convention, is intended to effectively regulate the deliberate
disposal at sea of wastes or other matter from vessels,
aircraft, or man-made structures, and ban the incineration at
sea of certain wastes or other matter. Parties are required to
employ a permit process to regulate such activities within
areas subject to national jurisdiction, on vessels loaded in
their territories, or on flag-state vessels. But, unlike the
London Convention, which uses a so-called ``negative'' approach
and thus lists substances that may not be dumped, as well as a
list of substances that may only be dumped with a special
permit, the Protocol uses a so-called ``reverse-list'' or
``positive'' approach and prohibits ocean dumping of all wastes
except those specifically listed in Annex 1, which may be
dumped. In general, the Protocol provides a more effective
framework than the London Convention under which Parties would
regulate the ocean disposal of wastes, including updated
provisions on waste assessment for Parties to follow when
evaluating material for ocean disposal, as well as potential
dumping sites.
In testimony before the committee regarding the Protocol,
it was noted that the American Association of Ports and Harbors
was involved in the negotiations of the Protocol and regularly
attends meetings of both the London Convention and the
Protocol. In addition, administration officials testified that
the Dredging Contractors of America supports the Protocol's
objectives.
III. Major Provisions
A detailed article-by-article analysis of the Convention
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 110-1. A summary of key provisions is set forth below.
What Can Be Dumped and the Ban on Incineration
Article 1 sets forth key definitions for the Protocol,
including a definition of ``dumping,'' and ``incineration at
sea.'' Article 4 states that Parties ``shall prohibit the
dumping of any wastes or other matter with the exception of
those listed in Annex 1. There are currently eight types of
wastes or other matter listed in Annex 1 that may be considered
for dumping, as follows:
1. Dredged material
2. Sewage sludge
3. Fish waste, or material resulting from industrial
fish processing operations
4. Vessels and platforms or other man-made structures
at sea
5. Inert, inorganic geological material
6. Organic material of natural origin
7. 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
8. Carbon dioxide streams from carbon dioxide capture
processes for sequestration.
The final item regarding carbon sequestration was only
recently added to Annex 1 and entered into force in February
2007. The International Maritime Organization (IMO) has stated
that the 2007 amendment provides Parties with a means ``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.''\1\ The IMO
further noted that this waste disposal option would apply to
large point sources of CO2 emissions, including
power plants, steel, and cement works.
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\1\IMO Press Briefing No. 43, November 8, 2006, available at http:/
/www.imo.org/Newsroom/mainframe.asp?topic_id=1320&doc_id=7301.
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Article 5 of the Protocol requires Parties to prohibit the
incineration at sea of wastes or other matter. This would
expand the current ban on incineration at sea in the London
Convention, as amended in 1993, which only bans the
incineration at sea of industrial waste and sewage sludge.\2\
The Protocol's definition of ``incineration at sea,'' however,
excludes incineration at sea of wastes or other matter
generated during the normal operation of a vessel, platform, or
other man-made structure on which they are being incinerated,
which is covered by another international agreement, MARPOL 73/
78, Annex VI.
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\2\In 1993, an amendment to Annexes I and II of the London
Convention was adopted that, among other things, banned the
incineration at sea of industrial wastes. This amendment entered into
force on February 20, 1994.
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Article 8 of the Protocol specifies certain exceptions to
the prohibitions on dumping and incineration at sea contained
in Articles 4 and 5. Paragraph 1 provides an exception for
situations of ``force majeure'' caused by stress of weather, as
in the case of a severe hurricane, or in any case which
constitutes a danger to human life or a real threat to vessels,
aircraft, platforms, or other man-made structures at sea. In
these situations, dumping or incineration at sea is permissible
and does not require a permit if it appears to be the only way
of averting the threat and it is probable that the dumping or
incineration will result in less damage than would otherwise
occur. Such dumping or incineration is to be conducted so as to
minimize the likelihood of damage to human or marine life and
it is to be reported to the IMO. Paragraph 2 applies to
emergencies ``posing an unacceptable threat to human health,
safety, or the marine environment and admitting of no other
feasible solution.'' In response to questions from the
committee, administration officials testified as follows
regarding the exceptions in Article 8:
Article 8 of the Protocol is a good example of the
sophistication of this treaty in providing flexibility. There
are two different situations it allows for. First, it allows
for a party to issue a permit and thus create an exception to
the Protocol's general rules on dumping in situations of
emergencies posing an unacceptable threat to human health,
safety, or the marine environment when there is no other
feasible alternative. This provision, the emergency permit, is
actually broader than the one of the original convention to
which we are now bound. And there is the second provision as
well, which [closely parallels a similar provision in] the
original convention. It contains a provision for situations of
force majeure caused by weather or other immediate threats to
human life or the marine environment where there is no other
alternative. In these situations, dumping or incineration at
sea may proceed even without the permit, although a party
should conduct these things in a manner so as to minimize harm
to human or marine life.
Article 8 was strongly supported by the United States and
provides Parties with the authority to address threats to
humans and the marine environment, when necessary.
Preventative Measures
Article 3(1) of the Protocol makes clear that
``appropriate'' preventative measures are to be 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.'' Article
3(3) states that in implementing the Convention, Parties
``shall act so as not to transfer, directly or indirectly,
damage or likelihood of damage from one part of the environment
to another or transform one type of pollution into another.''
Permits, Reporting, Enforcement: Mechanisms for Compliance
Article 9 of the Protocol sets forth regulatory and record-
keeping requirements that Contracting Parties are required to
have in place in order to administer the dumping and
incineration at sea regime established by Articles 4, 5, and 8.
The United States would implement these requirements through
the Army Corps of Engineers and the EPA, which share permitting
authority and reporting responsibility under Sections 102 and
103 of the Marine Protection, Research and Sanctuaries Act
(MPRSA).\3\
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\3\33 U.S.C. Sec. 1401 et seq.
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Article 10 specifies the vessels, aircraft, and platforms
or other man-made structures to which each Party is obliged to
apply certain measures and clarifies the extent of each Party's
responsibility to prevent and, if necessary, punish acts
contrary to the Protocol. Article 10(4) of the Protocol repeats
verbatim Article VII(4) of the London Convention and exempts
vessels and aircraft entitled to sovereign immunity under
international law from coverage of the Protocol and require
that Parties take ``appropriate measures'' that such vessels
and aircraft act in a manner consistent with the object and
purpose of the Protocol.
Article 11 provides for the establishment of procedures and
mechanisms necessary to assess and promote compliance with the
Protocol. Article 11 further specifies that the ``Meeting of
Contracting Parties'' to the Protocol may offer advice,
assistance, or cooperation to Parties and non-Parties after
full consideration of any information submitted pursuant to the
Protocol and any recommendations made through compliance
procedures and mechanisms once they are established. In
response to questions from the committee regarding the status
of these procedures and mechanisms, administration officials
testified that the ``rules and procedures on compliance
mandated by Article 11 of the London Protocol were adopted at
the 2nd Meeting of Contracting Parties in November 2007. They
were adopted by consensus. The compliance procedures create a
facilitative process that will not lead to binding consequences
for Parties.'' The rules and procedures on compliance adopted
in November 2007 can be found in the Annex of this report.
Cooperation, Assistance and Research
Article 12 of the Protocol encourages Parties with common
interests to enhance cooperation in protecting the marine
environment in a given geographical area. Article 13 calls on
Parties to the Protocol to collaborate within the IMO and
coordinate with other competent international organizations in
order to promote support for technical cooperation and
assistance to Parties that request it when implementing the
Protocol. This article reflects an awareness that technical
cooperation and assistance are important in encouraging
developing nations to adhere to and implement fully the
Protocol's obligations. Article 14 recognizes the importance of
scientific and technical research in preventing and controlling
marine pollution and facilitates an exchange of information
relevant to such matters. Article 17 requires Parties to
promote the Protocol's objectives within ``competent
international organizations.''
Administration officials testified to the committee
regarding cooperative efforts consistent with the Protocol that
are intended to reduce and, where practicable, eliminate
pollution caused by dumping or the incineration at sea of
wastes or other matter as follows:
For more than thirty years, the U.S. has been a leader in the
control of marine pollution from ocean disposal, and our
technical experts are in high demand for advising other nations
on managing their dredging programs and other ocean disposal
activities. The United States has been an active participant in
regional cooperation activities to improve management of ocean
dumping, especially within the Western Hemisphere. In recent
years, U.S. technical experts from EPA and the Army Corps have
participated in regional workshops on ocean disposal in
Ecuador, China, and Bahrain. We engaged with countries in the
wider Caribbean to encourage them to join the London Convention
and Protocol through UNEP's Caribbean Environment Programme. We
are also an active member of the South Pacific Regional
Environment Programme, and leader within that organization on
preventing marine pollution from ocean dumping in the Pacific.
U.S. technical experts played a leading role in the London
Convention/Protocol Scientific Group in developing ``Waste
Assessment Guidance'' for evaluating various types of material
for ocean disposal. This year EPA is providing the London
Convention/Protocol Secretariat at the IMO with $80,000 to
develop guidance for developing countries on dredged material
management, and to promote training and capacity building in
ocean dumping regulation. Over the next two years, we plan to
contribute additional funds to this effort with a focus on
Latin America and the Caribbean. Should we become Party to the
London Protocol, we would expect to continue our leadership
role in promoting cooperation and providing assistance on ocean
dumping.
Dispute Resolution
Article 16 of the Protocol provides a dispute settlement
procedure for disputes regarding the interpretation or
application of the Protocol, which includes binding arbitral
procedures in Annex 3 that are identical to the dispute
resolution procedures provided for in a 1978 amendment to the
1972 London Convention, to which the United States is a
Contracting State.\4\ The administration has recommended that a
declaration and an understanding be included in the U.S.
instrument of ratification regarding the dispute resolution
procedures, when ratifying the Protocol. These statements are
described below.
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\4\1978 Amendment to the Convention on the Prevention of Marine
Pollution by Dumping Wastes and other Matter (Treaty Doc. 96-9; Ex. I,
96th Congress, 1st Session). The United States deposited its instrument
of acceptance on October 24, 1980, but the Amendment has not entered
into force because it has not been ratified by a sufficient number of
parties. The Amendment will not enter into force until two-thirds of
the Parties to the London Convention ratify the Amendment and,
according to the IMO website, less than half the number needed (54)
have ratified the Amendment (only 20).
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IV. Entry Into Force
The Protocol entered into force on March 24, 2006 and to
date, has 35 Parties. In accordance with Article 25, the
Protocol will enter into force for the United States on the
thirtieth day following the date of deposit of its instrument
of ratification.
V. Implementing Legislation
Existing law, including the Clean Water Act,\5\ the Clean
Air Act,\6\ and the Resource Conservation and Recovery Act\7\
would be relied upon to implement aspects of this Protocol;
however, further legislation would be needed to fully comply
with the Protocol's requirements. On November 7, 2007, the
executive branch submitted to Congress proposed legislation in
the form of amendments to the MPRSA\8\ that would fully
implement the Protocol. The President's Letter of Transmittal
notes, however, that although new legislation is needed
``[t]here will not be any substantive changes to existing
practices in the United States, and no economic impact is
expected from implementation of the Protocol.''\9\ The
committee understands that the United States will not deposit
its instrument of ratification until the legislation necessary
to allow the United States to fully implement the Protocol has
been enacted.
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\5\33 U.S.C. Sec. 1251 et seq.
\6\42 U.S.C. Sec. 7401 et seq.
\7\42 U.S.C. Sec. 6901 et seq.
\8\33 U.S.C. Sec. 1401 et seq.
\9\President's Letter of Transmittal, Treaty Doc. 110-5 at III.
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VI. Committee Action
The committee held a public hearing on the Protocol on July
10, 2008. Testimony was received from Ambassador David A.
Balton, Deputy Assistant Secretary of State for Oceans and
Fisheries. A transcript of this hearing is annexed to Executive
Report 110-15.
On July 29, 2008, the committee considered the Protocol and
ordered it favorably reported by voice vote, with a quorum
present and without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the
Protocol would serve to protect the U.S. marine environment
more effectively from the harmful effects of wastes and other
matter disposed of or incinerated at sea. Moreover, the
international regime for addressing ocean dumping and the
incineration of wastes and other matter at sea established by
the Protocol is beginning to replace the framework established
by the London Convention as more and more countries ratify the
Protocol. As a result, it is increasingly important that the
United States be able to fully participate in the development
and implementation of the Protocol in international fora, so
that the United States is able to advance and protect key U.S.
interests in the protection of the marine environment.
Accordingly, the committee urges the Senate to act promptly to
give advice and consent to ratification of the Convention, as
set forth in this report and the accompanying resolution of
advice and consent.
A. AMENDMENTS TO THE ANNEXES
Articles 21 and 22 set forth procedures for amending the
text of, and the annexes to, the Protocol. There are three
annexes to the Protocol: Annex 1--Wastes or Other Matter that
may be Considered for Dumping; Annex 2--Assessment of Wastes or
Other Matter that May be Considered for Dumping; and Annex 3--
Arbitral Procedure. Amendments to the annexes must be adopted
by a two-thirds majority vote of the Contracting Parties to the
Protocol present and voting at a Meeting of Contracting
Parties. If adopted, amendments to Annex 1 and 2 of the
Protocol will enter into force for a Party to the Protocol 100
days after the date of the adoption of such an amendment, if
that Party has not objected to the amendment. If a Party has
objected to a Protocol, that Party can at any time substitute
an acceptance for its objection and the relevant amendment
would enter into force for that Party either upon notification
of the acceptance or 100 days after the date of the adoption of
the amendment, whichever date is later in time. Amendments to
Annex 3 and proposals to add new Annexes to the Protocol would
be treated as any other amendment to the text of the Protocol
under Article 21 and would therefore only enter into force for
a Party to the Protocol if formally accepted by that Party.
The Committee on Foreign Relations recognizes that the
tacit amendment procedure provided for amending Annexes 1 and 2
makes it possible for the implementation of the Protocol to
evolve without going through a standard amendment process,
which can take years to complete. The first two annexes
currently attached to the Convention are largely technical and
procedural in nature. Nevertheless, the committee expects the
executive branch to consult with the committee in a timely
manner regarding proposed amendments to either Annex 1 or 2 in
order to determine whether the advice and consent of the Senate
is necessary. Moreover, the committee expects that under such
circumstances, the executive branch will make appropriate use
of the objection procedure described above to prevent an
amendment from entering into force for the United States before
the conclusion of consultations on whether Senate advice and
consent is necessary. Finally, the committee believes that any
amendment to Annex 3, or proposals to add an additional annex
to the Protocol, would likely require the advice and consent of
the Senate.
B. RESOLUTION
The committee has included in the resolution of advice and
consent one proposed understanding and two proposed
declarations. All three are discussed briefly below.
First Declaration
Paragraph 1 of Article 3 of the Protocol emphasizes the
utility of precaution in protecting and preserving the marine
environment from pollution caused by ocean dumping, whereby
appropriate preventative measures are taken if there is reason
to believe that wastes or other matter are likely to cause harm
to the marine environment. Paragraph 2 of Article 3 underlines
the importance of promoting practices whereby those authorized
to engage in dumping or incineration at sea bear the cost of
meeting the pollution prevention and control requirements for
such activities. These provisions describe general concepts
that in the administration's and the committee's view would not
normally be an appropriate subject for dispute settlement.\10\
This proposed declaration, which is recommended by the
executive branch and contemplated in Article 16(5) of the
Convention, would exempt paragraphs 1 and 2 of Article 3 from
the Protocol's dispute settlement procedures, unless the United
States gives its consent in a particular dispute.
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\10\See the Article-by-Article Analysis attached to the Secretary
of State's Letter of Submittal at p.5.
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Understanding
Article 10(4) of the Protocol repeats verbatim Article
VII(4) of the London Convention and exempts vessels and
aircraft entitled to sovereign immunity under international law
from coverage of the Protocol, but nevertheless provides that
each Party take ``appropriate measures that such vessels and
aircraft owned or operated [by that Party] act in a manner
consistent with the object and purpose of this Protocol . ...''
The proposed understanding would make clear that the United
States does not view the Protocol's dispute settlement
procedures as applicable to disputes in relation to sovereign
immune vessels and aircraft, including any disputes in relation
to the statement in Article 10 that each Party take appropriate
measures to ensure that sovereign immune vessels and aircraft
act in a manner consistent with the object and purpose of this
Protocol.
Second Declaration
This second proposed declaration states that the Protocol
is not self-executing. The Senate has rarely included
statements regarding the self-executing nature of treaties in
resolutions of advice and consent, but in light of the recent
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008), the committee has determined that a clear statement in
the resolution is warranted. A further discussion of the
committee's view on this matter can be found in Section VIII of
Executive Report 110-12.
VIII. Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND AN
UNDERSTANDING
The Senate advises and consents to the ratification of the
1996 Protocol to the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter, done in London
on November 7, 1996 (Treaty Doc. 110-5), subject to the
declaration of section 2, the understanding of section 3, and
the declaration of section 4.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration, which shall be included
in the instrument of ratification:
The United States of America declares that, pursuant
to Article 16(5), when it is a party to a dispute about
the interpretation or application of Article 3(1) or
3(2) of this Protocol, its consent shall be required
before the dispute may be settled by means of the
Arbitral Procedure set forth in Annex 3 of the
Protocol.
SECTION 3. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the instrument of ratification:
The United States of America understands that, in
light of Article 10(4) of the Protocol, which provides
that the Protocol ``shall not apply to those vessels
and aircraft entitled to sovereign immunity under
international law,'' disputes regarding the
interpretation or application of the Protocol in
relation to such vessels and aircraft are not subject
to Article 16 of the Protocol.
SECTION 4. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
This Protocol is not self-executing.
IX. Annex.--Compliance Procedures and Mechanisms