The 1996 Protocol, and the Reverse List

In one line

The 1996 Protocol turned the Convention upside down: instead of listing what may not be dumped, it prohibits everything and lists the few things that may.

In exam wording: the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 requires Contracting Parties to protect and preserve the marine environment from all sources of pollution and to apply a precautionary approach; article 4 prohibits the dumping of any wastes or other matter with the exception of those listed in Annex 1, which may be dumped only after a permit has been issued; article 5 prohibits incineration at sea; and article 6 prohibits the export of wastes or other matter to other countries for dumping or incineration at sea.

The reversal, and why it matters

Under the 1972 Convention the question was: is this substance on the prohibited list? If not, it could be dumped under a general permit.

Under the 1996 Protocol the question is: is this substance on the permitted list? If not, it may not be dumped at all.

That is the precautionary approach made structural. The burden shifts from the regulator, who had to show that a substance was dangerous, to the applicant, who must show that the substance is one of the few the Protocol allows. It is the single clearest example of the precautionary principle built into the architecture of a treaty rather than stated in a preamble.

Annex 1, the reverse list, contains: dredged material; sewage sludge; fish waste or material resulting from industrial fish processing operations; vessels and platforms or other man-made structures at sea; inert, inorganic geological material; organic material of natural origin; bulky items primarily comprising iron, steel, concrete and similarly unharmful materials for which the concern is physical impact and limited to circumstances where such wastes are generated at locations with no land disposal alternatives; and carbon dioxide streams from carbon dioxide capture processes for sequestration, which was added by an amendment in 2006.

Article 1: definitions

Article 1 carries the Protocol's definitions, and three of them differ from the 1972 Convention. Dumping is defined as in the Convention but is expressly extended to include the storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea, and the abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal. Incineration at sea is defined as 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, excluding the incineration of wastes generated during the normal operation of the vessel. And sea means all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof, but does not include sub-seabed repositories accessed only from land.