Ocean Dumping and the Antarctic: Tangled Legal Currents, Sea of Challenges

Summary

The law and policy framework governing potential ocean disposals in the Antarctic will be surveyed using two nautical images. First, the “tangle of legal currents” will be described with a focus on five global agreements relevant to ocean dumping and the 1991 Protocol on Environmental Protection to the Antarctic Treaty. The 1982 Law of the Sea Convention provides the “constitutional foundation” for the control of ocean dumping with various state responsibilities spelled out, including a general obligation to protect and preserve the marine environment and a duty to adopt national ocean dumping laws and regulations no less effective than global rules/standards. The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LC 1972), adopts a permissive approach to ocean dumping by allowing most wastes to be disposed of into the ocean, subject to national permitting, except those wastes listed on a global prohibited list. The 1996 Protocol to LC 1972 embraces a precautionary approach whereby only those wastes listed on a global “safe list” may be disposed of at sea subject to a case-by-case waste assessment review process. The Convention on Biological Diversity emphasizes the responsibility of States to ensure that activities under their jurisdiction or control do not cause damage to the environment of other States or to areas beyond national jurisdiction. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal prohibits the export of hazardous wastes for disposal within the area south of 600 South latitude. The Madrid Protocol strictly controls the disposal of wastes generated in the Antarctic region through various removal obligations. Second, the “sea of challenges” surrounding effective control of ocean dumping will be described. Those challenges include: ensuring full adoption and implementation of international agreements relevant to ocean dumping; getting an effective grip on ocean fertilization projects; sorting out the boundaries of the international ocean dumping regime; and securing strong compliance.

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