Offshore Carbon Capture and Storage

International Marine Legislation

Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1996 (London Protocol)

Date of signature: 7 November 1996
Entered into force: 24 March 2006
Geographical scope: All marine waters, other than the internal waters of States.
Signatories to the Protocol: Status of ratification, as of January 2009

What are the aims of the Protocol?

The Protocol aims to create a more modern and comprehensive waste management system for the seas, with a heightened emphasis upon the protection of the environment. The objective of the Protocol is to:

'... protect and preserve the marine environment from all sources of pollution and take effective measures, according to their scientific, technical and economic capabilities, to prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea of wastes or other matter' (Article 2).

More restrictive measures regarding the dumping of waste were introduced and all contracting States are required to 'prohibit the dumping of any wastes or other matter with the exception of those listed in Annex 1 to the Protocol' (Article 4). Annex 1 included seven categories of wastes and other matter including, amongst others, dredged material, sewage sludge, fish waste and inert or inorganic geological material.

The dumping of materials listed in Annex 1 requires a permit, which shall be issued in accordance with the provisions of Annex 2. Contracting Parties, when undertaking an assessment of wastes or other matters, shall, amongst other undertakings, carry out a waste prevention audit to ascertain whether the waste may be reduced at source; consider the chemical, physical and biological properties of the material to be dumped and the site identified for the deposit; and make an assessment of any potential effects.

2007 Amendment to the Protocol to cover CCS

Following the Protocol's entry into force and various legal and technical reviews, Australia, co-sponsored by France, Norway and the United Kingdom, submitted a proposal to amend Annex 1 in order to allow the storage of CO₂ in sub-seabed geological formations. At the first meeting of the Contracting Parties to the London Protocol in November 2006, the resolution was adopted.

The amendment entered into force on 10 February 2007 for all Contracting Parties to the Protocol, save for those who sent to the IMO, within the time frame designated under Article 22, a declaration regarding their inability to accept the amendment.

Key legal issues concerning CCS

The new Protocol amendment has inserted an eighth category into the Annex 1 category of wastes and other matter that may be considered for dumping. This category consists of 'Carbon dioxide streams from carbon dioxide capture processes for sequestration'. Further clarification is provided by way of a new subsection 4, which details the circumstances when these CO₂ streams may be considered for dumping, as follows:
1. disposal is into sub-seabed geological formation;
2. they consist overwhelmingly of carbon dioxide. They may contain incidental associated substances derived from the source material and the capture and sequestration processes used; and
3. no wastes or other matter are added for the purpose of disposing of those wastes or other matter. (Annex 1, subsection 4)
The new provisions inserted into Annex 1 provide a basis for the regulation of CO₂ sequestration in sub-seabed geological formations under the Protocol's mechanisms. CO₂ streams that are to be sequestered shall be subject to permitting in accordance with the terms of Article 4 of the Protocol, which requires that
The effect of this licensing process shall mean that, for a permit to be granted by a Contracting Party's government, an applicant shall be required to demonstrate compliance with the provisions of Annex 2. The Annex requires that permits are only issued where all 'impact evaluations are completed and the monitoring requirements are determined'. It follows, therefore, that the creation of an adequate monitoring mechanism for CO₂ sequestration is essential to ensure compliance with the terms of the Protocol.
Permits issued for CO₂ sequestration, in accordance with the provisions of Annex 2 and Article 4 of the Protocol, must contain data and information on: the type of material to be dumped; the location of any proposed dump site; the method to be employed for dumping and any proposed monitoring and reporting requirements. Provision is also made for the review of permits at regular intervals, a process which it is envisaged will prove to be invaluable for determining the 'continuance, modification or revocation' of permits.
Article 6 of the Protocol provides that
Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration at sea.

To the purpose of CCS activities, transboundary transport of CO₂ will be essential in order to reach suitable storage sites. As a result, Contracting Parties are currently debating about the impact of the prohibition provided by Article 6 upon CCS development. Proposals for an amendment in order to allow for transboundary movement of CO₂ are under consideration. (see details in 'Proposed Amendment to Article 6 of the London Protocol' below).
" Article 15 of the Protocol cites established principles of international law as the basis for Contracting Parties to develop procedures for liability for damage to the environment generally or other States a result of dumping.

Recent and proposed developments

Risk Assessment and Management Framework for CO₂ Sequestration in Sub-Seabed Geological Structures, April 2006

In April 2006 the SG Intersessional Technical Working Group on CO₂ Sequestration prepared a 'Risk Assessment and Management Framework for CO₂ Sequestration in Sub-Seabed Geological Structures', which was presented at the 29th session of the Scientific Group in June 2006. The aim of this framework was twofold: to allow the characterisation of the risks posed by CO₂ sequestration on a site-specific basis; and to enable the collection of all relevant information for developing a management strategy to 'address uncertainties and residual risks'. (See Annex 3 to the Report to the Meeting of the SG Intersessional Technical Working Group on CO₂ Sequestration (3-7 April 2006), available in the Official Documents section below).

Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations, November 2006

Following resolution at the first Meeting of the Parties to the London Protocol in November 2006, a CO₂ Working Group was established by the Scientific Group to consider and produce specific guidelines for the assessment of CO₂ sequestration in sub-seabed geological formations. The Risk Assessment and Management Framework, prepared by the SG Intersessional Technical Working Group on CO₂ Sequestration, provided a basis to enable the development of specific guidelines.
These "Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations" were adopted by the 29th meeting of the parties in November 2007, in line with previous guidelines they are to be regarded as a "living document" which can be kept under review and updated in at least 5 years time.
The Specific Guidelines use Annex 2 to the London Protocol as a basis and together with the 'Guidelines for the Assessment of Wastes or Other Matter that May be Considered for Dumping', which were adopted by the Parties to the Convention in 1997, they; 'embody a mechanism to guide national authorities in evaluating applications for dumping of wastes in a manner consistent with the provisions of the London Convention 1972 or the 1996 Protocol thereto'. It must be noted, that the decision of the Parties to allow disposal of CO₂ streams into sub-seabed geological formations is not to be viewed as weakening the the Protocol. The primary aim to reduce disposal is not negated by the inclusion of this amendment, nor is it to be viewed as a first step towards allowing the disposal of other substances or wastes.
Alike the 1997 Generic Guidelines, the Specific Guidelines envisage set stages in the application of this guidance, which are demonstrated by way of a schematic procedure that 'national authorities should use [...] in an iterative manner ensuring that all steps receive consideration before a decision is made to issue a permit'. The stages set by the Specific Guidelines are as follows:
1. Carbon Dioxide Stream Characterisation
2. Waste Prevention Audit and Consideration of Waste Management Options
3. Action List
4. Identify and Characterise a sub-seabed geological formation and the surrounding environment
5. Determine Potential Impacts and Prepare Hypothesis(es)
6. Issue Permit
7. Implement Project and Monitor Compliance
8. Field Monitoring and Assessment
9. Mitigation or Remediation Plan
Each of the stages detailed in the schematic diagram are explained at length in the Specific Guidelines. (text available in the 'Official Documents' section below)

CO₂ Sequestration Reporting Format, October 2008

Concerned with the need for proper documentation of CO₂ reservoirs, the 2007 Meeting of the Parties charged the Scientific Group with developing a specific reporting format for CO₂ sequestration in sub-seabed geological formations. In May 2008, a proposal for a revision of the Tables for reporting under the London Convention and Protocol was adopted by the Contracting Parties, in order to include a specific format to report on CO₂ streams for disposal into the sub-seabed geological formations, (see Annex 8 to the Report of the 30th meeting of the Contracting Parties below).

Process leading to the recent Resolution on the Amendment of Article 6 of the London Protocol

Article 6 of the Protocol provides that

'Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration at sea'. In February 2008, a Legal and Technical Working Group on Transboundary CO₂ Sequestration Issues addressed the compatibility of Article 6 with CCS activities The Group focused its analysis on 2 possible scenarios:

When CO₂ is transported from one State to another before dumping into the seabed geological formations; and
When transboundary movement of CO₂ occurs within the storage site, after dumping into the seabed geological formations. This case includes intentional movement ('deliberate migration') and unintentional movement ('unintended migration') of CO₂;

The Group concluded that:

Article 6 prohibits the export of CO₂ from the jurisdiciton of one Contracting Party to other countries';
the term 'other countries' includes both other contracting Parties and third- Parties, as Article 6 'should prohibit export generally, not to particular countries';
export means 'any movement from one contracting Party to another country for disposal in that other country, regardless any commercial basis for the transfer';
an amendment to Article 6 is needed in order to allow the export of CO₂ to the purpose of developing CCS activities;
no agreement was reached about the application of Article 6 to intentional movement. However, the Group considered that they 'would not be considered as an export, and therefore not prohibited by Article 6'. Therefore, an amendment to Article 6, which includes subseabed intentional movement within the storage site, would only be possible by using the term 'transboundary movement';
unintentional migration of CO₂ across borders would not fall foul of Article 6.

The Group drafted a final proposal for amending Article 6, adding a new paragraph that would allow 'transboundary movements', including both transboundary transport before dumping and intentional movement of CO₂ after dumping. The new paragraph sets the following conditions:

the receiving State gives its prior informed consent;
disposal of carbon dioxide streams is in compliance with the requirements set by Annex 2; and
in the case of a non-Contracting Party, an agreement on the transboundary movement of carbon dioxide is required between the countries concerned. This agreement must take into account the protection and preservation of the marine environment, as required by the Protocol, and must be notified to the IMO (see Annex 3 to the Report in the Official documents section below)

Germany, supported by Italy and by the observer from Greenpeace International, proposed the additional condition on CO₂ export for storage:

₂

Other delegations deemed this condition too restrictive and disagreed with its inclusion. Nonetheless, the proposal was included in the Report 'for future consideration'. Any other proposals for amendment had to be submitted by 25 April 2008 at the latest for consideration by the 3rd Meeting of the Contracting Parties in October 2008.

In October 2008, the Working Group (WG) recommended that the Contracting Parties 'should give the political signal that the London Protocol should not constitute a barrier to the transboundary movement of CO₂ streams'.

The WG also recommended the establishment of an Intersessional Correspondence Group to discuss the following points:

the option of an amendment of Article 6 of the Protocol on the basis of the proposed draft, or an interpretative resolution, or a combination of the two;
policy objectives, such as: allowing transboundary movement between Contracting Parties and also between Contracting and non-Contracting Parties; whether Annex 2 requirements of the Protocol should also be met by non-Contracting Parties; shared responsibility between countries concerned; and prior informed consent of the receiving country regarding the export;
the scope of the amendment, with particular attention on whether the transboundary movement should also be allowed to non-Contracting Parties;
meaning of the term 'export';
the notion of 'migration', with special focus on whether it falls under the definition of export; and
the relevance of the Basel Convention and its relationship with, or applicability to, the London Protocol. Contracting Parties that are members of the European Union would also have to take into account the recent Directive on the geological storage of carbon dioxide.

On 28 January 2009, the Intersessional Corresponding Group, led by Germany, circulated a questionnaire addressing those issues, to those delegations that had indicated their wish to participate in its work a questionnaire.

The report of the Intersessional Corresponding Group, including individual responses to the questionnaire and the text of the possible amendment of Article 6, was presented in October 2009 at the 31st Meeting of Contracting Parties. A proposal to amend Article 6 was submitted by Norway, which favoured the use of the term 'export' to 'transboundary movement', as it would correspond with the wording of Article 6 and would avoid interpretative issues. As a result, the text of the amendment proposed by Norway did not include intentional movement of CO₂ within the storage site, which would not be considered as an export (see above).

At the meeting in October 2009, Contracting Parties adopted a Resolution (Resolution LP.3(4)) on the amendment to Article 6 of the London Protocol. As a result of the amendment, Article 6 will result as follows:

'Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration at sea.
Notwithstanding paragraph 1, the export of carbon dioxide streams for disposal in accordance with Annex 1 may occur, provided that an agreement or arrangement has been entered into by the countries concerned. Such an agreement or arrangement shall include:

As suggested by the Norwegian proposal, the term 'export of carbon dioxide' has been preferred to 'transboundary movement'. This will lead to exclude intentional movement of CO₂ after injection from the scope of Article 6.
An agreement among concerned States is necessary to allow for the export of CO₂. The agreement must conform to the priority given to the protection and preservation of the marine environment by the Protocol.
Contracting Parties have stressed that the amendment does not legitimate the export of other wastes and that the export after injection (migration) is not prohibited under the wording of Article 6.

Concerned by the risk that the export of CO₂ would justify export of other wastes, China voted against the adoption of this amendment, arguing that:

'at the current stage, the relevant technical and legal issues are still not very clear, so it is not appropriate to make a hasty amendment to this Article without adequate time for consultations'.

Contracting Parties also asked the Scientific Group under the London Protocol, together with the Scientific Group to the London Convention, to evaluate the necessity of an amendment to the Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations, in order to establish guidelines for export of CO₂ for disposal.

The amendment will enter into force for Parties that will have accepted it on the 60th day after two-thirds of all Contracting Parties have accepted.

Useful links

Websites

International Maritime Organization

London Protocol homepage

Full text of the London Protocol 1996

Documents

Dixon, T. Greaves A., Christophersen, O., Vivian, C. and Thomson, J., International marine regulation of CO₂ geological storage. Developments and implications of London and OSPAR, Energy Procedia 1 (2009), 4503-4510

Mace, M.J., Hendricks, C. and Coenraads, R., Regulatory Challenges to the Implementation of Carbon Capture and Geological Storage within the European Union under EU and International Law, International Journal Greenhouse Gas Control, 1 (2007), 253-260

Purdy, R., Geological Carbon Dioxide Storage and the Law, Chapter 4, in Gough, C. & Shackley, S. (eds.) in Capturing Carbon: The Prospects for Carbon Dioxide Capture and Storage in the UK, 2006, pp87-139, Ashgate.

Hendricks, C., Coenraads, R. and Mace, M.J.,, Impacts of EU and International Law on the Implementation of Carbon Capture and Geological Storage in the European Union Project by order of the European Commission, DG Environment, ECS04057, June 2005.

(Please note that both of the last two items were written prior to the entry into force of the London Protocol.)

Calendar of next meetings and related documents:

Full programme of meetings

October 2009

31st Consultative Meeting of Contracting Parties to the London Convention and the 4th Meeting of Contracting Parties to the London Protocol (London 26-30 October 2009):

Provisional Agenda and further notes (LC 31/1)

Report of the Intersessional Correspondence Group on Transboundary CO₂ Sequestration Issues (LC 31/5)

Proposal to amend Article 6 of the 1996 London Protocol (LC 31/5/1) Submitted by Norway.

Individual responses received by the Intersessional Correspondence Group on Transboundary CO₂ Sequestration Issues (LC 31/INF.2)