Precaution at sea

It is likely that (even within the environmental community) very little attention is brought tomorrow to the fact that the 1996 Protocol to the London Convention finally enters into force. This is regrettable, because the 1996 Protocol should feature very high on the list of international legal instruments incorporating the precautionary principle.

The adoption in 1996 of this Protocol to the London Convention was the culmination of many years of efforts by Greenpeace to ban the dumping of radioactive and industrial wastes at sea. In 1999, at the request of the journal International Negotiations I explained why and how from the mid 1970s onward and until 1996, a small group of dedicated Greenpeace environmentalists, were able to transform a permissive international regime that was legitimizing the dumping of wastes at sea, into a precautionary regime that banned all forms of deliberate waste dumping at sea with very few exceptions. This article is available at the click of a mouse, because Greenpeace has kept an electronic version of it on their website.

Traditionally, when discussing the application of the precautionary principle in international law, people tend to refer to the Biosafety Protocol to the Convention on Biological Diversity, an instrument that is widely seen as recognizing the right of any country to say “no” to Genetically Modified Organisms (GMOs) in food and agriculture in order to protect biodiversity. However, the 1996 Protocol to the London Convention goes one step further into the precautionary principle insofar that it effectively bans (this will be effective from tomorrow onward) the dumping of all wastes at sea, unless proven safe. This was an approach which we called “reverse listing” and for which we fought hard in the 1980s and 1990s. [The original London Convention of 1972 contained a small “Black list” of substances whose dumping was banned; everything else could be dumped basically, as long as you followed some rules; with a reverse or “white list” approach, we wanted to shift the burden of proof on those wanting to dump, thereby applying precaution effectively.]

There are several reasons why the 1996 Protocol formula of “reverse listing” is not often shown as a model for the precautionary principle.

One reason perhaps is a fear of replication. Imagine the same approach applied to GMOs, for example? (Everything banned unless proven safe…) Or to toxic chemicals on land, air and fresh water? (If this approach is valid in the sea, why not elsewhere, really?)

Another reason is that environmentalists tend to focus their attention on what is known as multilateral environmental agreements, and especially those under the umbrella of the United Nations Environment Programme (UNEP). Because it is a convention under the auspices of the UN international Maritime Organsation (IMO) and not UNEP, the London Convention tends to be marginalized when international instruments to protect the environment are discusssed.

One final reason lies perhaps in the culture of the IMO itself, an organisation that struggles between its mandate to protect the shipping industry, and its mandate to alleviate and reduce the impact of shipping on the marine environment. I remember for example a remark from Bill O’Neil (then the Director General of the IMO) to me in 2003 when I expressed my surprise because at the World Summit on Sustainable Development held in Johannesburg in September 2002, IMO had not made any reference to the prohibition of ocean dumping as one of their contributions to sustainable development (the ocean dumping prohibition was adopted in 1993, one year after the Rio Earth Summit, and the Johannesburg Summit was meant to review the post-Rio progress). O’Neil’s explanation to me was: “maybe you are right, Rémi, but not everybody would have been happy if we had mentioned the ban on ocean dumping”. Well, that was the whole point, wasn’t it?

In the 1980s and early 1990s, one argument we often heard against the proposed ban on ocean dumping was that it would leave the London Convention with nothing to do. Well not quite; some new ocean dumping issues are emerging:

* the 1996 Protocol allows the dumping of "inert, inorganic geological material”; I remember that at one of the last meetings of the Parties to the London Convention I attended, one country was arguing that asbestos was such an “inert, inorganic geological material” (they also said that there was no problem with dumping this lung cancer-inducing material at sea because “fish have no lungs”; of course they don't, but if that stuff ever gets back onto a beach or on the deck of a trawler, that can be messy…).

* of course, there is also the on-going controversy as to the status of plans to dispose at sea (and/or under the seabed) of CO2 in order to mitigate climate change. We wrote paper on this several years ago, and I am glad to see that David Santillo of the Greenpeace Science Lab continues to be on top of this issue.

* last but not least, I am concerned with the Russian plans to operate floating nuclear power stations in the Arctic and elsewhere. This is an issue we addressed a year and a half ago at the Congress of the International Union for the Conservation of Nature (IUCN), but I still don’t understand why the environmental movement is not making this a priority. The twentieth anniversary of the Chernobyl accident next month should be an opportunity to demand that these floating Chernobyls never leave port.