Ratification of the 1996 Protocol to the London Convention

SELECT COMMITTEE ON AGRICULTURE, LAND AND ENVIRONMENTAL AFFAIRS
02 March 1998
RATIFICATION OF THE 1996 PROTOCOL TO THE LONDON CONVENTION

Documents handed out:
Explanatory Memorandum: Ratification Of The 1996 Protocol To The London Convention
London Convention Protocol Briefing

The first item on the Agenda was the Winter Cereals statutory measure issue with a request to have a levy on winter cereals. It was decided that the issue would be held over to a meeting on Wednesday, as the provinces had not had time to create mandates. A Free State representative noted that the Western Cape, the other major province involved in Winter cereals, was absent, and had been absent from the previous meeting.

The meeting moved on to the proposal from the Department of Environmental Affairs and Tourism to ratify the 1996 protocol to the London Convention dealing with dumping at sea.

The presentation and background information are attached.

Questions were taken on the protocol. Of key concern was the ability of the department to control and monitor dumping at sea. Out of the meeting emerged that the key reason for adopting the protocol in South Africa was to add new laws to assist in the application for permits to dump material in South African Seas. Therefore, when applications for dumping permits are received, the Department would have an updated and more comprehensive list of prohibited materials. This emerged as the committee had serious concerns about the illegal dumping in South Africa seas. The department official explained that while the Department would love to control and police all dumping, there was not that capacity to do so.

It emerged that if the protocol was adopted, a new act would have to be created. The committee did not vote on the issue, as it was felt that the issue would need to be consulted and referred to the provinces.

As a result of the briefing, the committee expressed a desire to have a broader look at the pollution problem in South Africa. The example raised was that regulating the dumping of sediment dredged from the harbour floor and taken out to sea to be dumped was a necessary. However, the rivers that brought the pollution into the harbour should be looked at if an overall solution was to be found.

Annexure 1:

DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND TOURISM

National Assembly

EXPLANATORY MEMORANDUM: RATIFICATION OF THE 1996 PROTOCOL TO THE LONDON CONVENTION

Date:

File number: V1/1/2/32


1. DRAFT RESOLUTION

That the request, in terms of Section 231 of the Constitution, for ratification of the1996 Protocol to the London Convention and, should ratification be approved, that the Protocol form part of South African Law, be referred to Parliament for approval.


2. BACKGROUND INFORMATION

2.1 The London Convention and the 1996 Protocol thereto.

The Republic of South Africa is a Contracting Party to the London Convention which regulates the dumping of wastes and other matter at sea. The provisions of this Convention are enacted into local legislation in the form of the Dumping at Sea Control Act 73 of 1980 which is administered by the Chief Directorate: Sea Fisheries of the DEA & T.

Subsequent to its entry into force in 1975, a number of Resolutions were adopted at Consultative Meetings of Contracting Parties which significantly altered the provisions of the Convention. The content of these resolutions has now been consolidated into the 1996 Protocol which will ultimately replace the original Convention, and which was accepted by consensus by the Contracting Parties at a Special Meeting held in London from 28 October - 8 November, 1996. The Protocol was open for ratification as of 1^st April, 1997 at the Headquarters of the International Maritime Organisation in London.

2.2 Objectives of the Protocol

The provisions of the 1996 Protocol are significantly different from those of the original Convention, and once it enters into force, will replace and strengthen the existing provisions. The primary objective however, namely the protection and preservation of the marine environment from all sources of pollution, remains unchanged.
2.3 Advantages of ratification to South Africa

Ratification of the 1996 Protocol will confirm South Africa's committment to protection of the marine environment by bringing our approach to the regulation of dumping in line with international developments. The most significant changes that the Protocol brings to the provisions of the Convention are as follows:

(a) Article 1 of the Protocol expands the definition of dumping to include storage of wastes in the seabed and the subsoil thereof, as well as the abandonment or toppling at site of offshore installations;

(b) Article 2 broadens the objectives of the Convention - and the obligations of Contracting Parties - to include the elimination of pollution where practicable, although subject to the Contracting Party’s scientific, technical and economic capabilities;

(c) Article 3 introduces the Precautionary Approach and the Polluter-pays Principle as a basis for management of dumping activities in the future;

(d) Article 4 prohibits the dumping of any wastes or other matter with the exception of those categories of waste listed in Annex 1 to the Protocol. This list includes dredged material, sewage sludge, fish waste, vessels and platforms, inert geological material, natural organic material, and bulky items comprising iron, steel and concrete (the last category being an option available only to small islands). Even wastes falling within these categories may only be dumped after they have been assessed using a procedure outlined in Annex 2 of the Protocol, and which emphasises waste reduction at source, re-use, recycling etc. This represents a significant change in the management approach to dumping activities, and brings into law Resolutions of the Contracting Parties banning the dumping of radioactive and industrial wastes;

(e) Article 5 prohibits the incineration at sea of wastes and other matter;

(f) Article 6 prohibits the export of wastes or other matter to other countries for dumping or incineration at sea;

(g) Article 7 obliges Contracting Parties to apply the provisions of the Protocol, or similar effective measures, to their internal waters;

(h) Article 10 obliges Contracting Parties to ensure that those of its vessels and aircraft entitled to sovereign immunity, nevertheless act in a manner consistent with the provisions of the Protocol;

(i) Article 13 introduces a greater emphasis on the provision of technical assistance to facilitate compliance with the Convention; and

(j) Article 15 places an obligation on the Contracting Parties to develop procedures regarding liability arising from the dumping or incineration at sea of wastes or other matter.
2.4 Implications of ratification

By ratifying the Protocol, South Africa commits itself to introducing the necessary amendments to the relevant domestic legislation so as to enable it to implement the new provisions. This should not, however, necessitate major administrative changes in that a regulatory system already exists.

2.5 Motivation

South Africa is planning to host - jointly with the International Maritime Organisation - the 1998 Scientific Group Meeting of Contracting Parties to the London Convention in Cape Town next April. It would be appropriate to be able to demonstrate our committment to marine environmental protection in the spirit of the London Convention by being able to announce our ratification of the 1996 Protocol at that meeting.

3. PROCESS OF RATIFICATION

3.1 The Minister of Environmental Affairs and Tourism tabled a memorandum at the meeting of the Cabinet Committee for Economic Affairs on 1 October, 1997 recommending that Cabinet approve the introduction to Parliament of a Resolution on the ratification of the 1996 Protocol to the London Convention 1972. On the recommendation of the Committee, the proposal was subsequently approved by Cabinet on the 8th October, 1997.

3.2 In accordance with the prescribed procedures, the Protocol was submitted to the State Law Advisors of the Department of Justice for a legal opinion on the implications of ratification. The Protocol was also submitted to the Department of Foreign Affairs for their opinion on the acceptability of the Protocol, and whether or not ratification would conflict with other international agreements. The responses of these Departments are summarised under item 4.

3.3 Prior to the Special Meeting of October/ November 1996, at which the Protocol was adopted, copies of the draft Protocol were distributed to a number of other government departments and affected organisations. Their comments were taken into consideration during the final negotiations.

3.4 Following the Special Meeting, copies of the final Protocol were distributed to a number of non-governmental organisations for their comment. An article on the proposed ratification was also placed in the newsletter of the Environmental Justice Networking Forum. A complete list of departments and institutions consulted appears under item 8.


4. LEGAL IMPLICATIONS

The Department prepared a memorandum to the Department of Foreign Affairs requesting its comments on the interantional legal and diplomatic implications of ratification of the Protocol. The Department of Foreign Affairs indicated that we should proceed with ratification.

The Department prepared a similar memorandum to the Department of Justice, who indicated that in their opinion, none of the provisions of the Protocol are in conflict with the domestic legislation of the Republic.

5. ORGANISATIONAL AND PERSONNEL IMPLICATIONS

The Convention and associated Act are administered by the Chief Directorate: Sea Fisheries of the DEA & T using their own staff. The same staff will administer the Protocol, and consequently no organisational or establishment changes will be necessary.

6. FINANCIAL IMPLICATIONS

None

7. COMMUNICATIONS IMPLICATIONS

The Chief Directorate has indicated that it will make information on the advantages of the new Protocol available to the public through the appropriate media channels. Should it be possible, it is recommended that a public announcement of the ratification be made at the Scientific Group Meeting in Cape Town next April.

8. DEPARTMENTS/ INSTITUTIONS CONSULTED

Department of Foreign Affairs
Department of Justice
Department of Transport
Department of Water Affairs and Forestry
Department of Minerals and Energy
The SA National Defence Force
Portnet
The Wildlife and Environment Society
Earthlife Africa
Environmental Justice Networking Forum.


9. RECOMMENDATION

The Department of Environmental Affairs and Tourism recommends that:

9.1 Parliament approves the ratification of the 1996 Protocol to the London Convention 1972 by South Africa; and

9.2 that should ratification be approved, resolves that the said Protocol shall be binding on the Republic and shall form part of the law of the Republic.


PARLIAMENT OF THE
REPUBLIC OF SOUTH AFRICA

NATIONAL ASSEMBLY

ORDER PAPER


Draft resolution (Minister of Environmental Affairs and Tourism):
That the request, in terms of Section 231 of the Constitution, for:
i) ratification of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 ( London Convention); and, should ratification be approved,
ii) that the Protocol should be binding on the Republic and form part of South African law;
be referred to the Portfolio Committee on Environment of the National Assembly.

Annexure 2:

LC PROTOCOL BRIEFING

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter - otherwise known as the London Convention - was adopted at a conference in London in 1972 with the purpose of regulating the dumping of wastes at sea. In relation to the Convention, dumping is defined as:

i) any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea;
ii) any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures.

The definition was later extended to include incineration at sea, which is itself defined at the deliberate combustion of wastes or other matter on marine incineration facilities for the purpose of their thermal destruction.

This form of waste disposal was common practice in the northern hemisphere, and, in fact, a public outcry over plans to dump chlorinated hydrocarbons in the North Sea in 1971, was one of the incidents which led to the development and adoption of the London Convention. Nevertheless, over the years northern hemisphere countries dumped thousands of tonnes of wastes into the sea, ranging from radioactive wastes to sewage sludge. In South Africa, this practice has not been as common - we dispose of waste materials into the sea via pipeline - and has largely been limited to dredged spoil, derelict vessels and obsolete ammunition. In addition, we have occasionally had to dump spoiled cargoes eg. Wheat, kidney beans.

The London Convention came into force in 1975, and there are now some 73 Contracting Parties, although relatively few from Africa. The Contracting Parties meet bi-annually. The Scientific Group meeting deals largely with technical issues related to the implementation of the Convention, while the Consultative meeting is the political, decision-making body. South Africa was a signatory to the original Convention, but only ratified it in 1978, The provisions of the Convention are brought into force locally in terms of the Dumping at sea Control Act, No.73 of 1980. Since ratifying the Convention, South Africa has participate actively in the bi-annual meetings, and we are in fact, due to host the next Scientific Group meeting here in cape Town in April.

The London Convention has proved to be very much a "living" Convention, with the discussions at the various meetings resulting in substantial changes to the practical implementation of its provisions. Up until recently, these changes were reflected in various Resolutions adopted at the meetings and have led to a significant reduction in the amount of waste dumped, and in the case of certain categories of waste, a complete prohibition. For example:
1. Radioactive waste - although the dumping of high level wastes was never permitted, low level wastes were dumped by a number of countries between 1946 and 1983. In 1983 a moratorium was introduced prohibiting this practice, and in 1993 this was converted into a permanent ban
2. Industrial waste - large volumes were dumped mainly in the northern hemisphere. Then in 1990, a resolution was adopted to phasing out the dumping of industrial wastes by the end of 1995.
3. Incineration of wastes at sea primarily involved hazardous wastes eg. Organohalogens, and was phased out at the end of 1991.
4. Sewage sludge: this is still dumped in many areas but has led to eutrophication problems, particularly in semi-enclosed sea areas. It is therefore being phased out voluntarily by some countries. For example, it was phased out in the New York Bight in 1991, and will be phased out in the North Sea at the end of 1998.
5. Dredged spoil - this comprises between 80 - 90% of the total material dumped and, because of its origins, it is likely to continue being dumped. About 10% is, however, considered to be highly contaminated, and it therefore requires improved management.

Now a few years ago, a decision was taken that the content of all the above Resolutions should actually be incorporated into the body of the Convention, and an Amendment Committee was established to make recommendations to the Contracting Parties. This Committee met over a 3-year period, with consultation back and forward with both the Scientific group and the Consultative Meeting. The amendment process then culminated in a Special Conference at the end of 1996 at which the 1996 Protocol was adopted. Once it comes into force, the Protocol will completely replace the original Convention.

Apart from entrenching the ban on the dumping of radioactive and industrial wastes, and the incineration of wastes at sea, the new Protocol has the following advantages:
* It expands the definition of dumping to include storage of wastes in the seabed, and the abandonment or toppling on site of offshore installations ( NB _ AEC/ Mossgas).
* It introduces the precautionary approach and the Polluter-pays principle.
* It changes the approach to the permitting procedure by essentially banning the dumping of wastes with the exception of a few specific categories (will elaborate further below)
* It introduces a legal requirement for a formal waste assessment procedure which emphasises pollution prevention and the development of alternatives.
* It prohibits the export of wastes to other countries for the purposes of dumping or incineration.
* It extends the scope of the Convention to cover internal waters.
* It obliges Contracting Parties to ensure that those of its vessels entitled to sovereign immunity nevertheless comply with the spirit of the Convention.
* It obliges the Contracting parties to develop procedures regarding liability for dumping activities.
* It introduces a greater emphasis on technical co-operation both to facilitate compliance with the Convention, and to promote better protection of the marine environment generally. (Mention the Workshop in April).

Just going back briefly to the permitting system:
The old system essentially allowed any waste to be dumped as long as it did not contain significant amounts of certain substances: eg, heavy metals such as mercury, cadmium, zinc etc, pesticides etc.
The new system prohibits the dumping of all waste except for the following categories:
dredged material
sewage sludge
fish waste
vessels and platforms
inert geological material
natural organic material
bulky items made of iron, steel and concrete (only on small islands)
Even wastes falling within these categories must be assessed using the waste assessment guidelines developed by the Scientific Group and mentioned above.