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Protocol for the Prevention of Pollution of the South Pacific Region by Dumping [1986] PITSE 16 (24 November 1986)

PROTOCOL FOR THE PREVENTION OF POLLUTION OF THE
SOUTH PACIFIC REGION BY DUMPING

(Noumea, New Caledonia, 24 November 1986)

ENTRY INTO FORCE : 22 AUGUST 2005

Depositary : Secretary General of the South Pacific Forum Secretariat

Secretariat : South Pacific Regional Environment Programme [SPREP]

THE PARTIES TO THE PROTOCOL,

BEING PARTIES to the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, adopted in Noumea, New Caledonia on the twenty-fourth day of November in the year one thousand nine hundred and eighty-six;

RECOGNIZING the danger posed to the marine environment by pollution caused by the dumping of waste or other matter;

CONSIDERING that they have a common interest to protect the South Pacific Region from this danger, taking into account the unique environmental quality of the region;

DESIRING to enter into a regional agreement consistent with the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 as provided in article VIII thereof according to which the Contracting Parties to that Convention have undertaken to endeavour to act consistently with the objectives and provisions of such regional agreement;

HAVE AGREED AS F0LLOWS:

Article 1

Definitions

For the purpose of this Protocol "Convention" means the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region adopted in Noumea, New Caledonia on the twenty-fourth day of November in the year one thousand nine hundred and eighty-six;

Article 2

Geographical Coverage

The area to which this Protocol applies, hereinafter referred to as the "Protocol Area", shall be the Convention Area as defined in article 2 of the Convention together with the continental shelf of a Party where it extends, in accordance with international law, outward beyond the Convention Area.

Article 3

General Obligations

1. The Parties shall take all appropriate measures to prevent, reduce and control pollution in the Protocol Area by dumping.

2. Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf of a Party as defined in international law shall not be carried out without the express prior approval of that party, which has the right to permit, regulate and control such dumping taking fully into account the provisions of this Protocol, and after due consideration of the matter with other Parties which by reason of their geographical situation may be adversely affected thereby.

3. National laws, regulations and measures adopted by the Parties shall be no less effective in preventing, reducing and controlling pollution by dumping than the relevant internationally recognised rules and procedures relating to the control of dumping established within the framework of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972.

Article 4

Prohibited Substances

1. The dumping in the Protocol Area of wastes or other matter listed in Annex I to this Protocol is prohibited except as provided in this Protocol.

2. No provision of this Protocol is to be interpreted as preventing a Party from prohibiting, insofar as that Party is concerned, the dumping of wastes or other matter not mentioned in Annex I. That Party shall notify such measures to the Organisation.

Article 5

Special Permits

The dumping in the Protocol Area of wastes or other matter listed in Annex II to this Protocol requires, in each case, a prior special permit.

* Article 6

General Permits

The dumping in the Protocol Area of all wastes or other matter not listed in Annexes I and II to this Protocol requires a prior general permit.

Article 7

Factors Governing the Issue of Permits

The permits referred to in articles 5 and 6 shall be issued only after careful consideration of all the factors set forth in Annex III to this Protocol. The Organisation shall receive records of such permits.

Article 8

Allocation of Substances to Annexes

Substances are allocated to Annexes I and II of this Protocol in accordance with Annex IV.

Article 9

Force Majeure

The provisions of articles 4, 5 and 6 shall not apply when it is necessary to secure the safety of human life or of vessels, aircraft, platforms or other man-made structures at sea in cases of force majeure caused by stress of weather, 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, if dumping appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping will be less than would otherwise occur. Such dumping shall be so conducted as to minimise the likelihood of damage to human or marine life. Such dumping shall immediately be reported to the Organisation and, either through the Organisation or directly, to any Party or Parties likely to be affected, together with full details of the circumstances and of the nature and quantities of the wastes or other matter dumped.

Article 10

Emergencies

1. A Party may issue a special permit as an exception to article 4, in emergencies arising in the Protocol Area, posing unacceptable risk relating to human health and admitting no other feasible solution.

Before doing so the Party shall consult any other country or countries that are likely to be affected and the Organisation which, after consultating other Parties, and international organisations as appropriate, shall in accordance with article 15 promptly recommend to the Party the most appropriate procedures to adopt.

The Party shall follow these recommendations to the maximum extent feasible consistent with the time within which action must be taken and with the general obligation to avoid damage to the marine environment and shall inform the Organisation of the action it takes.

The Parties pledge themselves to assist one another in such situations.

2. This article does not apply with respect to materials in whatever form produced for biological and chemical warfare referred to in paragraph 6 of Section A of Annex I.

3. Any Party may waive its rights under paragraph 1 at the time of, or subsequent to ratification, acceptance or approval of, or accession to this Protocol.

Article 11

Issuance of Permits

1. Each Party shall designate an appropriate authority or authorities

(a) issue the special permits provided for in article 5 and in the emergency circumstances provided for in article 10;

(b) issue the general permits provided for in article 6;

(c) keep records of the nature and quantities of the wastes or other matter permitted to be dumped and of the location, date and method of dumping; and

(d) monitor individually, or in collaboration with other Parties, and competent international organisations, the condition of the Protocol Area for the purposes of this Protocol.

2. The appropriate authority or authorities of each Party shall issue the permits provided for in articles 5 and 6 and in the emergency circumstances provided for in article 10 in respect of the wastes or other matter intended for dumping:

(a) loaded in its territory or at its off-shore terminals; or

(b) loaded by vessels flying its flag or vessels or aircraft of its registry when the loading occurs in the territory or at the offshore terminals of a State not Party to this Protocol.

3. In issuing permits under paragraphs 1 (a) and (b) the appropriate authority or authorities shall comply with Annex III together with such additional criteria, measures and requirements as they may consider relevant.

Article 12

Implementation and Enforcement

1. Each Party shall apply the measures required to implement this
Protocol to all:

(a) vessels flying is flag and vessels and aircraft of its registry;

(b) vessels and aircraft loading in its territory or at its offshore terminals waste or other matter which are to be dumped; and

(c) vessels, aircraft and fixed or floating platforms believed to be engaged in dumping in areas under its jurisdiction.

2. Each Party shall take in its territory appropriate measures to prevent and punish conduct in contravention of the provisions of this Protocol.

3. The Parties agree to co-operate in the development of procedures for the effective application of this Protocol particularly on the high seas, including procedures for the reporting of vessels and aircraft observed dumping in contravention of the Protocol.

4. This Protocol) shall not apply to those vessels and aircraft entitled to sovereign immunity under international law. However, each Party shall ensure by the adoption of appropriate measures that such vessels and aircraft owned or operated by it act in a manner consistent with the object and purpose of this Protocol and shall inform the Organisation accordingly.

Article 13

Adoption of Other Measures

Nothing in this Protocol shall affect the right of each Party to adopt other measures, in accordance with the principles of international law, to prevent dumping.

Article 14

Reporting of Dumping Incidents

Each Party undertakes to issue instructions to its maritime inspection vessels and aircraft and to other appropriate services to report to its authorities any incidents or conditions in the Protocol area which give rise to suspicions that dumping in contravention of the provisions of this Protocol has occurred or is about to occur. That Party shall, if it considers it appropriate, report accordingly to the Organisation and to any other Party concerned.

Article 15

Institutional Arrangements

The Parties designate the Organisation to carry out the following functions:

(a) to assist the Pa ties, upon request, in the communication of reports in accordance with articles 9 and 14;

(b) to convey to the Parties concerned all notifications received by the Organisation in accordance with articles 4(2) and 10;

(c) to transmit to the International Maritime Organization as the organisation responsible for the secretariat functions under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 records and any other information received in accordance with article 7;

(d) to keep itself informed on evolving international standards and the results of research and investigation, and to advise meetings of Parties to this Protocol of such developments and any modification of the Annexes which may become desirable; and

(e) to carry out other duties assigned to it by the Parties.

Article 16

Meeting of the Parties

1. Ordinary meeting of the Parties to this Protocol shall be held in conjunction with ordinary meetings of the Parties to the Convention held pursuant to article 22 of the Convention. The Parties to this Protocol, may also hold extraordinary meetings in conformity with article 22 of the Convention.

2. It shall be the unction of the meetings of the Parties to this Protocol to:

(a) keep under review the implementation of this Protocol, and to consider the efficacy of the measures adopted and the need for any other measures, in particular in the form of annexes;

(b) study and consider the records of the permits issued in accordance with articles 5, 6, 7 and the emergency situation in article 10, and of the dumping which has taken place;

(c) review and amend as required any Annex to this Protocol taking into account Annex IV; 12

(d) adopt as necessary guidelines for the preparation of records and procedures to e followed in submitting such records for the purposes of article 7;

(e) develop, adopt a d implement in consultation with the Organisation and other competent international organisations procedures pursuant to article 10 1 eluding basic criteria for determining emergency circumstances and procedures for consultative advice and the safe disposal, storage or destruction of matter in such circumstances;

(f) invite, as necessary, the appropriate scientific body or bodies to collaborate with and to advise the Parties and the Organisation on any scientific or technical aspects relevant to this Protocol, including particularly the content and applicability of the Annexes; and

(g) perform such other functions as may be appropriate for the implementation of this Protocol.

3. The adoption of amendments to the Annexes to this Protocol pursuant to article 25 of the Convention shall require a three fourths majority vote of the Parties to this Protocol.

Article 17

Relationship between this Protocol and the Convention

1. The provisions apply with respect to of the Convention relating to any protocol shall the present Protocol.

2. The rules of procedures and the financial rules adopted pursuant to article 22 of the Convention shall apply with respect to this Protocol, unless the Parties to this Protocol agree otherwise.

IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments, have signed this Protocol.

DONE at Noumea, New Caledonia on the twenty-fifth day of November in the year one thousand nine hundred and eighty-six, in a single copy in the English and French languages, the two texts being equally authentic.

ANNEX I

- A -

The following substances and materials are listed for the purposes of article 4 of this Protocol.

1. Organohalogen compounds.

2. Mercury and mercury compounds.

3. Cadmium and cadmium compounds.

4. Persistent plastics and other persistent synthetic materials, for example, netting and ropes, which may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea.

5. Crude oil and its wastes, refined petroleum products, petroleum distillate residues and any mixtures containing any of these taken on board for the purpose of dumping.

6. Materials in whatever form (e.g.solids, liquids, semi-liquids, gases, or in a living state) produced for biological and chemical warfare.

7. Organophosphorous compounds.

- B -

Section A does not a apply to substances, other than substances produced for biological or chemical warfare, which are rapidly rendered harmless by physical, chemical or biological processes in the sea provided they do not :

- make edible marine organisms unpalatable; or

- endanger human health or that of marine biota.

The consultative procedure provided for under article 10 shall be followed by a Party if there is doubt about the harmlessness of the substance.

- C -

This Annex does no apply to wastes or other materials, such as sewage sludges and dredged spoils, containing the matters referred to in paragraphs 1 – 5 of Section A as trace contaminants. The dumping of such wastes shall be subject to the provisions of Annexes II and III as appropriate.

ANNEX 11

The following substances and materials requiring special care are listed for the purpose of article 5 of this Protocol.

- A -

Wastes containing a significant amount of the matters listed below:

arsenic )

lead )

copper ) and their compounds

zinc )

organosilicon compounds

cyanides

fluorides

pesticides and their by-products not covered in Annex l.

- B -

In the issue of permits for the dumping of acids and alkalis, consideration shall be given to the possible presence in such wastes of the substance listed in section A and to the following additional substances:

beryllium )

chromium )

nickel ) and their compounds

vandium )

- C -

Containers, scrap metal and other bulky wastes liable to sink to the sea bottom which may present a serious obstacle to fishing or navigation.

- D -

Substances which, though of a non-toxic nature, may become harmful due to he quantities in which they are dumped, or which are liable to seriously reduce amenities.

ANNEX III

Provisions to b considered in establishing criteria governing the issue of permits to the dumping of matter at sea, taking into account article 7 of this Protocol, include:

- A -

Characteristics and Composition -of- the Matter

1. Total amount and average composition of matter dumper: (e.g. per, year).

2. Form, (e.g. solid, sludge, liquid, or gaseous).

3. Properties: physical (e.g. solubility and density), chemical and biochemical (e.g. oxygen demand, nutrients) and biological (e.g. bacteria, yeasts, parasites).

4. Toxicity

5. Persistence: physical, chemical and biological.

6. Accumulation and biotransformation in biological materials or sediments.

7. Susceptibility to physical, chemical and biochemical changes and interaction in the aquatic environment with other dissolved organic and inorganic materials.

8. Probability of production of taints or other changes reducing marketability of resources (e.g. fish, shellfish, ate.).

9. In issuing a permit for dumping, Parties should consider whether an adequate scientific basis and sufficient knowledge of the composition and characteristics of the waste or other matter proposed for dumping exist for assessing the impact of such material on the marine environment and human health.

- B –

Characteristics of Dumping Site and Method of Deposit

1. Location (e.g. co-ordinates of the dumping area, depth and distance from the coast), location in relation to other areas (e.g. amenity areas, spawning, nursery and fishing areas and exploitable resources).

2. Rate of disposal per specific period (e.g. quantity per day, per week, per month).

3. Methods of packaging hand containment, if any.

4. Initial dilution achieved by proposed method of release.

5. Dispersal characteristics (e.g. effects of currents, tides and wind on horizontal transport and vertical mixing).

6. Water characteristics (e.g. temperature, pH, salinity, stratification, oxygen indices of pollution - dissolved oxygen (DO), chemical oxygen demand (COD), biochemical oxygen demand (BOD), - nitrogen
present in organic and mineral form including ammonia, suspended matter, other nutrients and productivity).

7. Bottom characteristics (e.g. topography, geochemical and geological characteristics and biological productivity).

8. Existence and effects of other dumpings which have been made in the dumping area (e.g. heavy metal background reading and organic carbon content).

9. In issuing a permit for dumping, Parties should consider whether an adequate scientific basis exists for assessing the consequences of such dumping, as outlined in this Annex, taking into account seasonal variations.

- C –

General Considerations and Conditions

1. Possible effects n amenities (e.g. presence of floating or stranded materials, turbidity, objectionable odour, discolouration and foaming).

2. Possible effects on marine life, fish and shellfish culture, fish stocks and fisheries, seaweed harvesting and culture.

3. Possible effect on other uses of the sea (e.g. impairment of water quality for industrial use, underwater corrosion of structure, interference with ship operations from floating materials, interference with fishing or navigation through deposit of waste or solid objects on the sea floor and protection of areas of special importance of scientific or conservation purposes).

4. The practical availability of alternative land-based methods of treatment, disposal or elimination, or of treatment to render the matter less harmful for dumping at sea.

- D -

References

Reference should also be made to "Guidelines for the Implementation and Uniform Interpretation of Annex III" as adopted by the Consultative Meeting of Contracting Parties to the Convention on the Prevention of Marine Pollution By Dumping of Wastes and Other Matter, 1972.

ANNEX IV

ALLOCATION OF SUBSTANCES TO ANNEXES

1. Substances are allocated to Annexes I and II on the grounds of any combination of the following criteria:

Persistence and degradability,

Bioaccumulation potential,

Toxicity to marine life,

Toxicity to man, domestic animals, marine mammals and birds preying on marine organisms,

Carcinogenicity and mutagenicity,

Ability to interfere with other legitimate uses of the sea.

2. Annex I substances are those which have a high degree of persistence coupled with :

a the ability to accumulate to harmful levels in terms of toxicity to marine organisms and their predators, to domestic animals or to man; or

b the ability to accumulate through marine pathways to levels harmful in terms of carcinogenicity or mutagenicity to domestic animals or to man; or

c the ability to cause interference with fisheries, amenities or other legitimate uses of the sea.

3. Annex II substances are all those considered suitable for except for those allocated to Annex I.

FINAL ACT OF THE HIGH LEVEL CONFERENCE ON
THE PROTECTION OF THE NATURAL RESOURCES AND ENVIRONMENT
OF THE SOUTH PACIFIC REGION

(Noumea New Caledonia, 17-25 November 1986)

1. The High Level Conference on the Protection of the Natural Resources and Environment of the South Pacific Region was convened by the Secretary-General of the South Pacific Commission in pursuance of recommendations made by the Conference on the Human Environment in the South Pacific held in Rarotonga, Cook Islands from 8 to 11 March 1982, the Thirteenth South Pacific Forum held in Rotorua, New Zealand, 1982 and the Twenty second South Pacific Conference held in Pago Pago, American Samoa, 1982, and following four Meetings of Experts held in the South Pacific Commission headquarters in 1983, 1984 and 1985.

2. The Conference me at the South Pacific Commission Headquarters, Noumea, New Caledonia from 17 to 25 November 1986. The Conference comprised a Meeting of Senior Officials from 17 to 23 November, and a Plenipotentiary Meeting from 24 to 25 November 1986 for the purpose of adopting texts of the Draft Convention for the Protection of the Natural Resources and Environment of the South Pacific Region and its associated Protocol is namely, the Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, and the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping.

3. Governments worse representatives were invited to attend the Plenipotentiary Meeting of the Conference were: Australia; Cook Islands; Federated States of Micronesia; Fiji; French Republic;
Republic of Kiribati; Republic of the Marshall Islands; Republic of Nauru; New Zealand; Niue; Republic of Palau; Papua New Guinea; Solomon Islands Kingdom of Tonga; Tuvalu; United Kingdom of Great Britain and Northern Ireland; United States of America; Republic of Vanuatu and Western Samoa. It was understood that these invitees are those for the purposes of Article 28 of the Convention.

4. The following Governments accepted the invitation and attended the Plenipotentiary meeting of the Conference: Australia; Cook Islands; Federated States of Micronesia; Fiji; French Republic; Republic or Kiribati; Republic of the Marshall Islands; Republic of Nauru; New Zealand; Republic of Palau; Papua New Guinea; Kingdom of Tonga; Tuvalu; United States of America; Republic of Vanuatu and Western Samoa.

5. Representatives of the following regional. Intergovernmental organisations, United Nations bodies and specialised agencies, also attended the Plenipotentiary Meeting of the Conference:

Regional Intergovernmental Organisations

South Pacific Commission

South Pacific Bureau for Economic Co-operation.

United Nations

United Nations Environment Programme

Economic and Social Commission for Asia and the Pacific.

United Nations Specialised Agencies

International Maritime Organisation

6. The Plenipotentiary Meeting of the Conference was formally opened by Mr. Francis Bugotu, Secretary-General of the South Pacific Commission, who served as Secretary of the Meeting.

The Meeting adopted the following agenda:

1. Opening of the meeting

2. Organisation of the Meeting

a. Election of the Chairman

b. Election of the Vice-Chairman

c. Election of the Chairman and members of the Drafting Committee

d. Adoption of the Agenda

e. Working arrangements

3. Country Statements

4. Examination of the Draft Convention for the Protection of the Natural Resources and Environment of the South Pacific Region.

5. Examination of the Draft Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region

6. Examination of the Draft Protocol for the Prevention of Pollution of the South Pacific Region by Dumping

7. Adoption of the Convention and its Protocols

8. Adopt on of the Meeting Record

9. Adoption of the Final Act of the Conference

10. Signature of the Final Act

11. Signature of the Convention and Protocols

12. Closing of the Conference and Final Statements.

8. The Meeting elected the Honourable Dr. Terepai Maoate head of the Cook Islands delegation as Chairman of the Plenipotentiary Meeting.

9. The Meeting elected the Honourable Mr. Henchi Balos (Republic of the Marshall Islands) as the Vice Chairman.

10. The Meeting established a Drafting Committee and elected the following as Chairman and Members:

Chairman: Vice Chairman of the Meeting

Members: Dr. Dominique F. De Stoop (Australia)

Mr. Anthony T. Utanga (Cook Islands)

Mr. Philippe Pouzoulet (France)

Dr. Peter Adams (New Zealand)

Mr. Jarcisius Eri (Papua New Guinea)

Mr. David Tupou (Tonga)

Mr. Scott A. Hajost (United States of America)

11. The report of he Meeting of Senior Officials of the High Level Conference on the Protection of the Natural Resources and Environment of the South Pacific Region, held from 17 to 23 November 1986, served as the basis for the deliberations of the Plenipotentiary Meeting. The report continued, in particular, the texts of the:

Draft Convention for the Protection of the Natural Resources and Environment of the South Pacific Region;

Draft Protocol Concerning Co-operation in Combating Pollution Emergencies in the south Pacific Region; and,

Draft Protocol for the Prevention of Pollution of the South Pacific Region by Dumping.

12. As a result of its deliberations, the following instruments were adopted by the Plenipotentiary Meeting of the Conference:

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region;

Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region;

Protocol for the Prevention of Pollution of the South Pacific Region by Dumping.

13. The Convention and Protocols, referred to in paragraph 12, which are annexed to this Final Act, were opened for signature at South Pacific Commission Headquarters, Noumea, New Caledonia on 25 November 1986, and at the South Pacific Bureau for Economic Co-operation Headquarters at Suva, Fiji, from 26 November 1986 to 25 November 1987, by Governments invited to attend the Plenipotentiary Meeting of the Conference.

14. The proceedings o the conference may be found in documents CR1 and CR2.

15. IN WITNESS WHEREOF the undersigned have affixed their signatures to this Final Act :

DONE AT NOUMEA, NEW CALEDONIA this twenty-fifth day of November, one thousand nine hundred and eighty six in a single copy in the English and French languages, the two texts being equally authentic. The original texts of the Final Act shall be deposited with the Director of the South Pacific Bureau for Economic Co-operation.