PROTOCOL FOR THE PREVENTION OF POLLUTION OF THE SOUTH PACIFIC REGION BY DUMPING (INCORPORATING DRAFT AMENDMENTS)
Source: https://www.sprep.org/attachments/Legal/SPREPDumpingProtocolamended.doc
[This is the Amended version of the Protocol]
The Parties to the Protocol,
Being Parties to the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, adopted in Noumea, New Caledonia on the twenty fourth day of November in the year one thousand nine hundred and eighty six;
Recognizing the danger posed to the marine environment by pollution caused by the dumping and incineration of wastes or other matter;
Considering that they have a common interest to protect the South Pacific Region from this danger, taking into account the unique environmental quality of the region;
Aware of the need for strict application of existing and proposed international instruments dealing with the prevention of marine pollution by dumping, incineration and other means, and the liabilities that arise in this context (including the United Nations Convention on the Law of the Sea, The Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter 1972 and the 1996 Protocol to this Convention, The Rio Declaration on Environment and Development, Agenda 21 and the Barbados Programme of Action for the Sustainable Development of Small Island Developing States);
Mindful that the promotion of international and regional co-operation concerning the prevention of marine pollution by dumping or incineration of wastes must take account of the special needs and limited resources of the small island States who are Parties.
Taking account of the precautionary approach and the "polluter pays" principle as general principles of international law.
Aware of the need to promote access to and the transfer of environmentally sound technology, including clean production technology -
Desiring to make this Protocol consistent with the provisions of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 as envisaged by Article 12 of that Protocol ;
Have agreed as follows:
Article 1 DEFINITIONS
For the purposes of this Protocol:
(a) "Convention" means the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region adopted in Noumea, New Caledonia on twenty fourth day of November in the year one thousand nine hundred and eighty six;
(b) "Dumping" shall have the meaning given to it in the Convention, and shall also include –
(i) any storage of wastes or other matter in the seabed and the sub-soil of the seabed from vessels, aircraft, platforms or other man-made structure at sea; and
(ii) any abandonment or toppling at the site of platforms or other man-made structures at sea, done for the sole purpose of deliberate disposal -
PROVIDED THAT "dumping" shall not include the placement in the sea of matter such as cables, pipelines and marine research devices for any purpose other than their disposal, and if the placement is consistent with the Annexes to this Protocol;
(c) "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, other than wastes or matter generated during the normal operation of the vessel, platform or structure;
(d) "Permit" means permission granted in accordance with this Protocol for the disposal of wastes or other matter at sea.
Article 2 GEOGRAPHICAL COVERAGE AND EXEMPTIONS RELATING TO MINERAL EXPLORATION ETC.
1. The area to which this Protocol applies (hereinafter referred to as the "Protocol Area") shall be the Convention Area as defined in Article 2 of the Convention (including its seabed and subsoil, other than any sub-seabed repositories accessed only from land) together with the continental shelf of a Party where it extends, in accordance with international law, outward beyond the Convention Area.
2. Nothing in this Protocol shall be construed as preventing a Party from applying these provisions to the Party’s internal waters, and when making such provision a Party –
(a) may apply the provisions of this Protocol, or adopt other measures for controlling dumping or incineration of wastes and other matter in its marine internal waters; and
(b) shall provide the SPREP Secretariat with information on the legislation and institutional mechanism related to the controlling of dumping or incineration of wastes and other matter in its marine internal waters, and also with reports identifying the nature of the materials dumped in its marine internal waters.
3. The disposal or storage of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of seabed mineral resources shall be covered by the provisions of Article VIII of the Convention, and the provisions of this Protocol shall not have application in relation to these matters.
Article 3 GENERAL OBLIGATIONS AND THE PRECAUTIONARY APPROACH
1. Consistent with their technical, economic and scientific capabilities, the Parties shall take all appropriate measures to effectively prevent, reduce and control pollution in the Protocol Area by the dumping and incineration of wastes and other matter at sea.
2. Dumping and incineration of wastes and other matter within the territorial sea and the exclusive economic zone or onto the continental shelf of a Party as defined in international law shall not be carried out without the express prior approval of that Party, which has the right to permit, regulate and control such activities taking fully into account the provisions of this Protocol, and after due consideration of the matter with other Parties which by reason of their geographical situation may be adversely affected thereby.
3. National laws, regulations and measures adopted by the Parties shall be no less effective in preventing, reducing and controlling pollution by dumping or incineration than the rules and procedures provided for in the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.
4. When implementing the provisions of this Protocol, the Parties shall act so as to ensure that -
(a) there is no direct or indirect transfer of the damage or likelihood of damage from one part of the environment to another; and
(b) the nature of the pollution is not transformed from one type to another.
5. The Parties shall apply a precautionary approach in implementing the provisions of this Protocol. To this end the Parties shall act with caution when available information is uncertain, inadequate or unreliable. Preventive measures shall be taken when there is reason to believe that wastes or other matter introduced into the marine environment may cause harm, even if there is no conclusive evidence to establish that harm will result.
6. The Parties shall apply the "polluter pays" principle and shall ensure that persons who engage in dumping or incineration at sea shall bear the costs associated with –
(a) the approved pollution prevention and control requirements applying to any authorized activity; and
(b) the costs of responding to any unauthorized dumping or incineration.
Article 4 PROHIBITED ACTIVITIES
1. The Parties shall prohibit the following activities in the Protocol Area –
(a) the dumping of wastes or other matter at sea, other than those listed in Annex 1;
(b) the incineration of wastes or other matter at sea; and
(c) the exportation of wastes and other matter for the purpose of dumping or incineration at sea, to the territory of any other Party or to any territory within the Protocol Area.
2. The provisions of paragraph 1 (a) and (b) shall not prohibit any activity which –
(a) is necessary for the safety of human life or of vessels, aircraft, platforms or other man-made structures;
(b) is in response to dangers posed by weather conditions or any other cause posing threat to safety;
(c) requires the dumping or incineration of wastes or other matter as the only way of averting the threat or danger; and
(d) would result in less damage or injury by reason of the activity than that which would likely result from the threat or danger.
3. In the event that any activity is permitted and undertaken by reason of paragraph 2, the dumping or incineration at sea must be done so as to minimize the likelihood of damage to human and marine life, and the Party in whose territory the activity takes place shall –
(a) immediately notify the SPREP Secretariat; and
(b) ensure that any other Party which may be affected by the activity is notified of the activity, the nature and amount of the substances dumped or incinerated and of the likely risks arising from the dumping or incineration.
4. No provision of this Protocol shall be interpreted as preventing a Party from prohibiting the dumping or incineration of wastes or other matter listed in Annex I. That Party shall notify the SPREP Secretariat of any such prohibition.
Article 5 PERMITS REQUIRED TO DUMP WASTES LISTED IN ANNEX 1
The dumping in the Protocol Area of wastes or other matter listed in Annex I may only be undertaken on the authority of a permit issued in accordance with this Protocol.
Article 6 ISSUANCE OF PERMITS
1. Each Party shall designate an appropriate authority or authorities to -
(a) issue permits in accordance with this Protocol;
(b) keep records of the nature and quantities of the wastes or other matter for which permits have been issued, and the location, date and method of dumping (and where practicable the quantities actually dumped); and
(d) monitor individually, or in collaboration with other Parties, and competent international organisations, the condition of the Protocol Area for the purposes of this Protocol.
2. The appropriate authority or authorities of each Party shall issue the permits under paragraph 1 and in the emergency circumstances provided for in Article 7, in respect of the wastes or other matter intended for dumping in the Protocol Area -
(a) loaded in its territory or at its offshore terminals; or
(b) loaded on to vessels flying its flag or vessels or aircraft of its registry when the loading occurs in the territory or at the offshore terminals of a State not Party to this Protocol.
3. In issuing permits under this Protocol the appropriate authority or authorities shall comply with Article 7 and Annex II together with such additional criteria, measures and requirements as they may consider relevant.
4. Each Party shall report to the SPREP Secretariat, and where appropriate to the other Parties –
(a) the information specified in paragraph 1 (b) and (c), which shall be submitted annually;
(b) any administrative and legislative measures taken to implement the provisions of this Article; and
(c) any problems experienced in the application of the administrative and legislative measures, and any matter related to their effectiveness.
5. The information referred to in paragraph 4 (b) and (c) shall be submitted on a regular basis for evaluation by an appropriate subsidiary body determined by the Meeting of the Parties. This body shall regularly report to Meetings or Special Meetings of the Parties.
Article 7 FACTORS GOVERNING THE ISSUE OF PERMITS AND EMERCENCY PERMITS
1. The administrative and legislative measures adopted by the Parties shall ensure that the issuance of permits, and the permit conditions, comply with the provisions of Annex II.
2. Special attention shall be paid to opportunities to avoid dumping and to apply environmentally preferable alternatives.
3. A Party may issue a permit as an exception to paragraph 1 (a) or (b) of Article 4, in emergencies arising in the Protocol Area, posing unacceptable risk relating to human health and admitting no other feasible solution. Before doing so the Party shall consult any other country or countries that are likely to be affected and the SPREP Secretariat which, after consulting other Parties, and international organisations as appropriate promptly recommend to the Party the most appropriate procedures to adopt. The Party shall follow these recommendations to the maximum extent feasible consistent with the time within which action must be taken and with the general obligation to avoid damage to the marine environment and shall inform the SPREP Secretariat of the action it takes. The Parties pledge themselves to assist one another in such situations.
4. Paragraph 3 does not apply with respect to materials in whatever form produced for biological and chemical warfare.
5. Any Party may waive its rights under paragraph 2 at the time of, or subsequent to ratification, acceptance or approval of or accession to this Protocol.
Article 8 COMPLIANCE PROCEDURES
The Meeting of the Parties shall implement procedures and mechanisms necessary to assess and promote compliance with this Protocol. Such procedures and mechanisms shall be developed with a view to allowing for the full and open exchange of information in a constructive manner, which may where appropriate, provide for the provision of information, advice and assistance to countries which are not Parties to the Convention.
Article 9 IMPLEMENTATION AND ENFORCEMENT
1. Each Party shall apply the measures required to implement this Protocol to all -
(a) vessels flying its flag and vessels and aircraft of its registry;
(b) vessels and aircraft loading in its territory or at its offshore terminals wastes or other matter which are to be dumped or incinerated at sea; and
(c) vessels, aircraft and fixed or floating platforms believed to be engaged in dumping or incineration at sea in areas under its jurisdiction.
2. Each Party shall take in its territory appropriate measures to prevent and punish conduct in contravention of the provisions of this Protocol.
3. The Parties agree to co operate in the development of procedures for the effective application of this Protocol particularly on the high seas, including procedures for the reporting of vessels and aircraft observed dumping or incinerating wastes or other matter in contravention of the Protocol.
4. This 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 Protocol, and shall inform the SPREP Secretariat accordingly.
5. A State may at the time it expresses its consent to be bound by this Protocol, or at any time thereafter, declare that it shall apply the provisions of this Protocol to its vessels and aircraft referred to in paragraph 4, recognising that only that State may enforce those provisions against its vessels and aircraft.
Article 10 ADOPTION OF OTHER MEASURES
Nothing in this Protocol shall affect the right of each Party to adopt other measures, in accordance with the principles of international law, to prevent dumping or incineration of wastes or other matter at sea.
Article 11 REPORTING OF DUMPING AND INCINERATION INCIDENTS
Each Party undertakes to issue instructions to its maritime inspection vessels and aircraft and to other appropriate services to report to its authorities any incidents or conditions in the Protocol Area which give rise to suspicions that dumping or incineration at sea in contravention of the provisions of this Protocol has occurred or is about to occur. Parties shall, if they consider it appropriate, report accordingly to the SPREP Secretariat and to any other Party concerned.
Article 12 TECHNICAL COOPERATION AND ASSISTANCE
The Parties shall cooperate with a view to formulating and as far as practicable implementing programs of assistance for the prevention, reduction and elimination of pollution caused by dumping and incineration of wastes and other matter at sea, including the provision of –
(a) training programs for scientific and technical personnel relating to research, monitoring and enforcement;
(b) necessary equipment and facilities with a view to strengthening national capabilities;
(c) advice on the implementation of this Protocol;
(d) information and technical cooperation relating to the disposal and treatment of wastes and other measures to prevent, reduce and eliminate pollution caused by dumping and incineration at sea; and
(e) access to environmentally sound technologies on advantageous terms to be agreed between the Parties and the transfer of know-how taking into account the protection of intellectual property rights.
Article 13 INSTITUTIONAL ARRANGEMENTS
The Parties designate the SPREP Secretariat to carry out the following functions -
(a) to assist the Parties, upon request, in the communication of reports in accordance with this Protocol;
(b) to convey to the Parties concerned all notifications received by the SPREP Secretariat in accordance with the provisions of this Protocol;
(c) to transmit to the International Maritime Organisation as the organisation responsible for the secretariat functions under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (and the 1996 Protocol), reports of dumping or incineration at sea and any other records and information submitted under this Protocol which the SPREP Secretariat considers should be provided;
(d) to keep itself informed on evolving international standards and the results of research and investigation, and to advise Meetings of the Parties to this Protocol of such developments and any modification of the Annexes which may become desirable; and
(e) to carry out other duties assigned to it by the Parties.
Article 14 MEETING OF THE PARTIES
1. Ordinary meetings of the Parties to this Protocol shall be held in conjunction with ordinary meetings of the Parties to the Convention held pursuant to Article 22 of the Convention. The Parties to this Protocol may also hold extraordinary meetings in conformity with Article 22 of the Convention.
2. It shall be the function of the meetings of the Parties to this Protocol to -
(a) keep under review the implementation of this Protocol, and to consider the efficacy of the measures adopted and the need for any other measures, in particular in the form of Annexes;
(b) study and consider the records of the permits issued in accordance with Article 6 and the emergency situation in Article 7, and of the dumping or incineration at sea which has taken place;
(c) review and amend as required any Annex to this Protocol;
(d) adopt as necessary guidelines for the preparation of records and procedures to be followed in submitting reports and records in accordance with this Protocol;
(e) develop, adopt and implement in consultation with the SPREP Secretariat and other competent international organisations procedures pursuant to Article 7 including basic criteria for determining emergency circumstances and procedures for consultative advice and the safe disposal, storage or destruction of matter in such circumstances;
(f) invite, as necessary, the appropriate scientific body or bodies to collaborate with and to advise the Parties and the SPREP Secretariat on any scientific or technical aspects relevant to this Protocol, including particularly the content and applicability of the Annexes; and
(g) perform such other functions as may be appropriate for the implementation of this Protocol.
3. The adoption of amendments to the Annexes to this Protocol pursuant to Article 25 of the Convention shall require a three fourths majority vote of the Parties to this Protocol.
Article 15 RELATIONSHIP BETWEEN THIS PROTOCOL AND THE CONVENTION
1. The provisions of the Convention relating to any Protocol shall apply with respect to the present Protocol.
2. The rules of procedures and the financial rules adopted pursuant to Article 22 of the Convention shall apply with respect to this Protocol, unless the Parties to this Protocol agree otherwise.
IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments, have signed this Protocol.
DONE at Noumea, New Caledonia on the twenty fifth day of November in the year one thousand nine hundred and eighty six, in a single copy in the English and French languages, the two texts being equally authentic.
AMENDED at Noumea on the 10th day of September in the year 2006 in accordance with the provisions of Article 24 of the Convention.
ANNEX I
WASTES OR OTHER MATTER THAT MAY BE CONSIDERED FOR DUMPING
1. Taking into consideration the provisions of Article II of this Protocol a Party may consider the following wastes or other matter for dumping -
(a) dredged material;
(b) sewage sludge;
(c) fish waste, or material resulting from industrial fish processing;
(d) vessels and platforms or other man-made structures at sea;
(e) inert, inorganic geological material;
(f) organic material of natural origin; and
(g) bulky items primarily comprising iron, steel, concrete and similarly unharmful 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.
2. The wastes or other matter referred to in paragraph 1 (d) and (g) may be considered for dumping, provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to fishing or navigation.
3 Materials listed in paragraph 1 containing levels of radioactivity as trace contaminant can be dumped once the proposed dumper confirms that such dumping would not exceed the limits defined by the International Atomic Energy Agency. Prior to 2030 and at each 25 year interval thereafter, the Parties shall complete a scientific study relating to all radioactive wastes and other radioactive matter, taking into account such other factors as Parties consider appropriate and shall review the prohibition on dumping of such substances in accordance with Article 24 of the Convention.
ANNEX II
WASTE PREVENTION AUDIT
1. The initial stages in assessing alternatives to dumping should, as appropriate, include an evaluation of -
(a) types, amounts and relative hazard of wastes generated;
(b) details of the production process and the sources of wastes within that process; and
(c) feasibility of the following waste reduction/prevention techniques -
(i) product reformulation;
(ii) clean production technologies;
(iii) process modification;
(iv) input substitution; and
(v) on site, close-loop recycling.
2. In general terms, if the required audit reveals that opportunities exist for waste prevention at source, an applicant is expected to formulate and implement a waste prevention strategy, in collaboration with relevant local and national agencies, which includes specific waste reduction targets and provision for further waste prevention audits to ensure that these targets are being met. Permit issuance or renewal decisions shall assure compliance with any resulting waste reduction and prevention requirements.
3. For dredged material and sewage sludge, the goal of waste management should be to identify and control the sources of contamination. This should be achieved through implementation of waste prevention strategies and requires collaboration between the relevant local and national agencies involved with the control of point and non-point sources of pollution. Until this objective is met, the problems of contaminated dredged material may be addressed by using disposal management techniques at sea or on land.
CONSIDERATION OF WASTE MANAGEMENT OPTIONS
4. Applications to dump wastes or other matter shall demonstrate that appropriate consideration has been given to the following hierarchy of waste management options, which implies an order of increasing environmental impact -
(a) re-use;
(b) off-site recycling;
(c) destruction of hazardous constituents;
(d) treatment to reduce or remove the hazardous constituents; and
(e) disposal on land, into air and in water.
5. A permit to dump wastes or other matter shall be refused if the permitting authority determines that appropriate opportunities exist to re-use, recycle or treat the waste without undue risks to human health or the environment or disproportionate costs. The practical availability of other means of disposal should be considered in the light of a comparative risk assessment involving both dumping and the alternatives.
CHEMICAL, PHYSICAL, AND BIOLOGICAL PROPERTIES
6. Parties shall consider whether an adequate scientific basis and sufficient knowledge of the composition and characteristics of the wastes or other matter proposed for dumping exist for assessing the impact of such material on the marine environment and human health. This information will be the basis for a decision to consider the practical availability of alternatives or whether a waste may be dumped. If a waste is so poorly characterized that proper assessment cannot be made of its potential impacts on human health and the environment, that waste shall not be dumped.
7. Characterisation of the wastes and their constituents -
(a) Origin, total amount and average composition of matter dumped (e.g. per year);
(b) Form (e.g. solid, sludge, liquid, or gaseous);
(c) Properties: physical (e.g. solubility and density), chemical and biochemical (e.g. oxygen demand, nutrients) and biological (e.g. presence of viruses, bacteria, yeasts, parasites);
(d) Persistence: physical, chemical and biological;
(e) Accumulation and biotransformation in biological materials or sediments;
(f) Susceptibility to physical, chemical and biochemical changes and interaction in the aquatic environment with other dissolved organic and inorganic materials;
(g) Probability of production of taints or other changes reducing marketability of resources (e.g. fish, shellfish, etc.).
ACTION LIST
8. Each party shall develop a National Action List to provide a mechanism for screening candidate wastes and their constituents on the basis of their potential effects on human health and the marine environment. In selecting substances for consideration in an Action List, priority shall be given to toxic, persistent and bioaccumulative substances from antropogenic sources (e.g., cadmium, mercury, organohalogens, petroleum hydrocarbons, and, whenever relevant, arsenic, lead, copper, zinc, beryllium, chromium, nickel and vanadium, organosilicon compounds, cyanides, fluorides and pesticides or their by-products other than organohalogens). An Action list can also be used as a trigger mechanism for further waste prevention considerations.
9. An Action List shall specify an upper level, and may also specify a lower level. The upper level should be set so as to avoid acute or chronic effects on human health or on sensitive marine organisms representative of the marine ecosystem. Application of an Action List will result in three possible categories of waste -
(a) Wastes which contain specified substances, or which cause biological responses, exceeding the relevant upper level shall not be dumped, unless made acceptable for dumping through the use of management techniques or processes;
(b) Wastes which contain specified substances, or which cause biological responses, below the relevant lower levels should be considered to be of little environmental concern in relation to dumping; and
(c) Wastes which contain specified substances, or which cause biological responses, below the upper level but above the lower level require more detailed assessment before their suitability for dumping can be determined.
DUMP-SITE SELECTION
10. Information required to select a dump-site shall include -
(a) physical, chemical and biological characteristics of the water-column and the seabed;
(b) location of amenities, values and other uses of the sea in the area under consideration;
(c) assessment of the constituent fluxes associated with dumping in relation to existing fluxes of substances in the marine environment; and
(d) economic and operational feasibility.
ASSESSMENT OF POTENTIAL EFFECTS
11. Assessment of potential effects should lead to a concise statement of the expected consequences of the sea or land disposal options, i.e., the "Impact Hypothesis". It provides a basis for deciding whether to approve or reject the proposed disposal option and for defining environmental monitoring requirements.
12. The assessment for dumping should integrate information on waste characteristics, conditions at the proposed dump-site(s), fluxes, and proposed disposal techniques and specify the potential effects on human health, living resources, amenities and other legitimate uses of the sea. It should define the nature, temporal and spatial scales and duration of expected impacts based on reasonably conservative assumptions.
13. An analysis of each disposal option should be considered in the light of a comparative assessment of the following concerns: human health risks, environment costs, hazards, (including accidents), economics and exclusion of future uses. If this assessment reveals that adequate information is not available to determine the likely effects of the proposed disposal option then this option should not be considered further. In addition, if the interpretation of the comparative assessment shows the dumping option to be less preferable, a permit for dumping should not be given.
14 Each assessment should conclude with a statement supporting a decision to issue or refuse a permit for dumping.
MONITORING
15. Monitoring is used to verify that permit conditions are met - compliance monitoring - and that the assumptions made during the permit review and site selection process were correct and sufficient to protect the environment and human health - field monitoring. It is essential that such monitoring programs have clearly defined objectives.
PERMIT AND PERMIT CONDITIONS
16. A decision to issue a permit should only be made if all impact evaluations are completed and the monitoring requirements are determined. The provisions of the permit shall ensure, as far as practicable, that environmental disturbance and detriment are minimized and the benefits maximized. Any permit issued shall contain data and information specifying:
(a) the types and sources of materials to be dumped;
(b) the location of the dump-site(s)
(c) the method of dumping; and
(d) monitoring and reporting requirements.
17. Permits should be reviewed at regular intervals, taking into account the results of monitoring and the objectives of monitoring programs. Review of monitoring results will indicate whether field programs need to be continued, revised or terminated and will contribute to informed decisions regarding the continuance, modification or revocation of permits. This provides an important feedback mechanism for the protection of human health and the marine environment.
