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.
Contracting Parties: Status of ratification, as of July 2010
What are the aims of the Protocol?
The Protocol aims to create a more modern and comprehensive waste management system for the seas than the one established under the 1972 London Convention (see section on the London Convention), 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 must be issued in accordance with the provisions of Annex 2. Contracting Parties, when undertaking an assessment of wastes or other matters must, amongst other things: carry out a waste prevention audit to ascertain whether the waste can 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 new Protocol amendment has inserted an eighth category into the Annex 1 list 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 under which these CO2 streams may be considered for dumping, as follows:
disposal is into a sub-seabed geological formation; and
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
no wastes or other matter are added for the purpose of disposing of those wastes or other matter. (Annex 1, subsection 4)
The amendment entered into force on 10 February 2007 for all Contracting Parties to the Protocol, as no objection to the amendment was notified to the IMO by the deadline provided by Article 22 (4) of the Protocol.
Recent developments
Risk Assessment and Management Framework for CO2 Sequestration in Sub-Seabed Geological Structures (April 2006)
In April 2006, the Scientific Group (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 necessary information for developing a management strategy to 'address uncertainties and any residual risks'. (See Annex 3 to the Report of the Meeting of the SG Intersessional Technical Working Group on CO2 Sequestration (3-7 April 2006), available in the 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 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 for developing these 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 will be kept under review and updated in 5 years' time, or earlier if necessary.
The Specific Guidelines use Annex 2 to the London Protocol as a basis, together with the 'Guidelines for the Assessment of Wastes or Other Matter that May be Considered for Dumping' adopted by the Parties to the Convention in 1997 ('Generic Guidelines'), which '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 should 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 Protocol. This amendment does not obviate the primary aim of reducing disposal, nor is it to be viewed as a first step towards allowing the disposal of other substances or wastes.
Like the 1997 Generic Guidelines, the Specific Guidelines envisage set stages in the application of the guidance, which are demonstrated by means 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:
Carbon dioxide stream characterisation
Waste prevention audit and consideration of waste management options
Action list
Identify and characterise a sub-seabed geological formation and the surrounding environment
Determine potential impacts and prepare hypothesis(es)
Issue permit
Implement project and monitor compliance
Field monitoring and assessment
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 '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 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 for reporting 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).
Resolution on the Amendment of Article 6 of the London Protocol (October 2009)
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. In its analysis, the Working Group distinguished two 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').
Clarifying the definition of 'export' as 'any movement from one Contracting Party to another country for disposal in that other country, regardless any commercial basis for the transfer', the Group concluded that:
Article 6 prohibits the export of CO2 from one Contracting Party to other countries; and
an amendment to Article 6 is needed in order to allow the export of CO2 for the purpose of developing CCS activities.
Further to lengthy discussions mainly focused upon terminology, policy objectives and the scope of such an amendment, in October 2009 the Contracting Parties adopted a Resolution (Resolution LP.3 (4)) which included the text, proposed by Norway, of an amendment to Article 6. If this amendment enters into force, Article 6 will read 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:
2.1 confirmation and allocation of permitting responsibilities between the exporting and receiving countries, consistent with the provisions of this Protocol and other applicable international law; and
2.2 in the case of export to non-Contracting Parties, provisions at a minimum equivalent to those contained in this Protocol, including those relating to the issuance of permits and permit conditions for complying with the provisions of annex 2, to ensure that the agreement or arrangement does not derogate from the obligations of Contracting Parties under this Protocol to protect and preserve the marine environment.
A Contracting Party entering into such an agreement or arrangement shall notify it to the Organization.'
In line with a proposal originally made by Norway, the amendment uses the term 'export of carbon dioxide', rather than 'transboundary movement', because this corresponds to the existing wording of Article 6 and has the effect of excluding migration of CO2 after injection, as that would not be deemed an export. Under this amendment, an agreement among concerned states is necessary to allow the export of CO2. The agreement must be consistent with the Protocol's requirements concerning protection and preservation of the marine environment.
The Contracting Parties have stressed that the amendment does not legitimise the export of other wastes and that migration after injection does not fall under the scope 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:
'[a]t 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 need for 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. In October 2010, a work plan was adopted for the review of the Specific Guidelines.
The amendment to article 6 will enter into force for Parties that have accepted it on the 60th day after two-thirds of all Contracting Parties have adopted it.
Key legal issues concerning CCS
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 will be subject to permitting in accordance with the terms of Article 4 of the Protocol, which requires that:
'Contracting Parties shall adopt administrative or legislative measures to ensure that the issuance of permits and permit conditions comply with the provisions of Annex 2. Particular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.'
The effect of this licensing process will mean that, for a permit to be granted by a Contracting Party's government, an applicant will 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'. Creation of an adequate monitoring mechanism for CO2 sequestration will therefore be 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 is expected to be invaluable for determining the 'continuance, modification or revocation' of permits.
The amendment to Article 6 is significant not only because it allows for transboundary transport of CO2 for geological disposal under the Protocol, but also because it requires that it is accompanied by transparent distribution of responsibilities between the countries involved (either Contracting or non-Contracting Parties to the Protocol) and by a level of environmental protection comparable with the one ensured by the Protocol. This would entail that the permitting process, risk assessment and environmental impact under the Specific Guidelines must be included in the export agreement or arrangement referred to in the revised Article 6.
Despite its importance for the development of CCS, the amendment to Article 6 has not yet entered into force and there is currently little indication that a sufficient number of Contracting Parties will ratify it in the near future. (See details in 'Resolution on the Amendment of Article 6 of the London Protocol' above.) This means that, until the ratification and entry into force of such an amendment, transboundary transport of CO2 for the purpose of geological disposal will still be prohibited under the Protocol. This situation has a direct impact upon the future development of CCS transboundary activities.
Article 15 of the Protocol cites established principles of international law as providing the basis for Contracting Parties to develop procedures regarding liability for damage to the environment generally or to other states as a result of dumping.
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.
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