Trash Overboard! Why the U.S. Should Ratify the 1996 Protocol to the London Convention

by Noah M Sachs

June 21, 2012

a(broad) perspective

Today’s post is the fifth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here.

1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
Adopted by the Parties to the London Convention (including the United States) and Opened for Signature on November 7, 1996

Entered into Force on March 24, 2006
Number of Parties: 42

Signed by the United States on March 31, 1998
Sent to the Senate on September 4, 2007
Reported favorably by the Senate Foreign Relations Committee on July 29, 2008

The world’s oceans have long served as the world’s toilet. For decades, nations allowed ships bearing their flags to dump into the oceans ever-mounting volumes of chemicals and radioactive wastes, incinerated debris, sewage sludge, municipal wastes, and other wastes from ships. Ocean dumping threatens coral reefs and other marine life, and can harm humans through contamination of seafood.

The United States has historically been a key player in the prevention of marine pollution.   It ratified the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (Convention), which limited intentional dumping and incineration of waste at sea and the resulting damage to marine resources.  Congress quickly passed implementing legislation in 1972 and 1974.  In 1996, the United States and other parties to the Convention agreed to a protocol that makes fundamental changes to the Convention, as the original Convention was widely viewed as not strict enough. This 1996 Protocol wholly supplants the Convention among Parties who have adopted the 1996 Protocol.  

The United States, however, has never ratified the Protocol, meaning that it is still bound by the original Convention while most other major powers now operate under the Protocol.  

The 1996 Protocol reflects both a precautionary approach and the “polluter pays” principle.  Unlike the original Convention, the Protocol outright bans incineration of wastes at sea and prohibits the dumping of all substances unless they are listed in Annex 1 of the Protocol. It establishes a permit process to dump the Annex 1 substances. Those seeking ocean-dumping permits for legal substances are required to consider the potential effects of their dumping, alternative disposal methods, potential waste prevention strategies at the source, and dump site selection. This permit process contains sensible exceptions, including for emergency situations and force majeure, and it does not affect oil and gas drilling operations or scientific exploration. 

The Protocol entered into force on March 24, 2006, and now has 42 Parties. The United States signed the Protocol on March 31, 1998, but has not yet ratified it.  The George W. Bush Administration strongly supported ratification and stressed the importance of the leadership role of the United States in preventing marine pollution and in deciding which substances would be listed in Annex 1. In 2008, the Bush Administration submitted draft legislation to implement the Protocol through modifications to the Marine Protection, Research and Sanctuaries Act (MPRSA). The legislative changes needed to ratify the Protocol are quite minor. In fact, the Bush Administration concluded that “[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.” The Protocol also enjoys widespread support from key industry players such as the American Association of Ports and Harbors and the Dredging Contractors of America.

The Obama Administration and the Senate should move expeditiously to ratify the Protocol because the international regime for addressing ocean dumping embodied in it is now beginning to replace the Convention. The 1996 Protocol is the most effective treaty ever drafted to protect the marine environment, including U.S. coastlines and fisheries, from the harmful effects of marine pollution. Joining the Protocol will advance and safeguard key U.S. interests in the protection of the marine environment in the twenty-first century, such as participation in the drafting of rules that could govern carbon sequestration under the seabed. That the United States continues to adhere to the obsolete Convention makes little sense as the rest of the world follows the updated and more environmentally protective 1996 Protocol.

This is a simple issue which would mot involve any conflict within the USA over its ratification. As Mr G Bush had already stated that there was a desire to implement this then the current President should go for it also.
— David Muscat
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Professor Noah Sachs is Professor of Law and Director, Robert R. Merhige, Jr. Center for Environmental Studies at the University of Richmond School of Law.

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