[Senate Executive Report 110-21]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-21

======================================================================



 
 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                          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.
---------------------------------------------------------------------------
    \10\See the Article-by-Article Analysis attached to the Secretary 
of State's Letter of Submittal at p.5.
---------------------------------------------------------------------------

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



                                    

      
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