69–115 

110TH CONGRESS EXEC. REPT. " ! SENATE 2d Session 110–21 

1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY THE DUMPING OF 

WASTES AND OTHER MATTER 

SEPTEMBER 11, 2008.—Ordered to be printed 

Mr. DODD, from the Committee on Foreign Relations, 

submitted the following 

R E P O R T 

[To accompany Treaty Doc. 110–5] 

The Committee on Foreign Relations, to which was referred the 

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

November 7, 1996 and signed by the United States on March 31, 

1998 (the ‘‘Protocol’’) (Treaty Doc. 110–5), having considered the 

same, reports favorably thereon with one understanding and two 

declarations, as indicated in the resolution of advice and consent, 

and recommends that the Senate give its advice and consent to 

ratification thereof, as set forth in this report and the accompanying resolution of advice and consent. 

CONTENTS 

Page 

I. Purpose ........................................................................................................... 1 

II. Background .................................................................................................... 2 

III. Major Provisions ............................................................................................ 2 

IV. Entry Into Force ............................................................................................ 6 

V. Implementing Legislation ............................................................................. 6 

VI. Committee Action .......................................................................................... 6 

VII. Committee Recommendation and Comments .............................................. 7 

VIII. Resolution of Advice and Consent to Ratification ....................................... 9 

IX. Annex—Compliance Procedures and Mechanisms ...................................... 11 

I. PURPOSE

The purpose of this Protocol is to update and strengthen the 

1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (The ‘‘London Convention’’ or the 

‘‘Convention’’) (Treaty Doc. 93–3) in an effort to protect the marine 

environment more effectively. 

2 

II. BACKGROUND

The London Convention, which was opened for signature on December 29, 1972 and entered into force for the United States on 

August 30, 1975, currently governs ocean dumping and the incineration at sea of wastes and other matter. The Convention was a significant early step in international protection of the marine environment, first proposed in the Council on Environmental Quality’s 

1970 report on ocean dumping and designed to promote the establishment of a national system in each State Party for regulating 

the ocean disposal of wastes. In the United States, such a system 

had been established through the Marine Protection, Research and 

Sanctuaries Act of 1972 (Title I of P.L. 92–532), which implements 

the 1972 London Convention. 

The 1996 London Dumping Protocol, which entered into force on 

March 24, 2006, is intended eventually to replace the 1972 London 

Convention. The Protocol, much like the London Convention, is intended to effectively regulate the deliberate disposal at sea of 

wastes or other matter from vessels, aircraft, or man-made structures, and ban the incineration at sea of certain wastes or other 

matter. Parties are required to employ a permit process to regulate 

such activities within areas subject to national jurisdiction, on vessels loaded in their territories, or on flag-state vessels. But, unlike 

the London Convention, which uses a so-called ‘‘negative’’ approach 

and thus lists substances that may not be dumped, as well as a list 

of substances that may only be dumped with a special permit, the 

Protocol uses a so-called ‘‘reverse-list’’ or ‘‘positive’’ approach and 

prohibits ocean dumping of all wastes except those specifically listed in Annex 1, which may be dumped. In general, the Protocol provides a more effective framework than the London Convention 

under which Parties would regulate the ocean disposal of wastes, 

including updated provisions on waste assessment for Parties to 

follow when evaluating material for ocean disposal, as well as potential dumping sites. 

In testimony before the committee regarding the Protocol, it was 

noted that the American Association of Ports and Harbors was involved in the negotiations of the Protocol and regularly attends 

meetings of both the London Convention and the Protocol. In addition, administration officials testified that the Dredging Contractors of America supports the Protocol’s objectives. 

III. MAJOR PROVISIONS

A detailed article-by-article analysis of the Convention may be 

found in the Letter of Submittal from the Secretary of State to the 

President, which is reprinted in full in Treaty Document 110–1. A 

summary of key provisions is set forth below. 

What Can Be Dumped and the Ban on Incineration 

Article 1 sets forth key definitions for the Protocol, including a 

definition of ‘‘dumping,’’ and ‘‘incineration at sea.’’ Article 4 states 

that Parties ‘‘shall prohibit the dumping of any wastes or other 

matter with the exception of those listed in Annex 1. There are currently eight types of wastes or other matter listed in Annex 1 that 

may be considered for dumping, as follows: 

1. Dredged material 

3 

1 IMO Press Briefing No. 43, November 8, 2006, available at http://www.imo.org/Newsroom/ 

mainframe.asp?topic_id=1320&doc_id=7301. 2 In 1993, an amendment to Annexes I and II of the London Convention was adopted that, 

among other things, banned the incineration at sea of industrial wastes. This amendment entered into force on February 20, 1994. 

2. Sewage sludge 

3. Fish waste, or material resulting from industrial fish 

processing operations 

4. Vessels and platforms or other man-made structures 

at sea 

5. Inert, inorganic geological material 

6. Organic material of natural origin 

7. Bulky items primarily comprising iron, steel, concrete 

and similar harmless materials for which the concern is 

physical impact, and limited to those circumstances where 

such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping 

8. Carbon dioxide streams from carbon dioxide capture 

processes for sequestration. 

The final item regarding carbon sequestration was only recently 

added to Annex 1 and entered into force in February 2007. The 

International Maritime Organization (IMO) has stated that the 

2007 amendment provides Parties with a means ‘‘to regulate carbon capture and storage (CCS) in sub-seabed geological formations, 

for permanent isolation, as part of a suite of measures to tackle the 

challenge of climate change and ocean acidification, including, first 

and foremost, the need to further develop low carbon forms of energy.’’ 1 The IMO further noted that this waste disposal option 

would apply to large point sources of CO 2 emissions, including 

power plants, steel, and cement works. 

Article 5 of the Protocol requires Parties to prohibit the incineration at sea of wastes or other matter. This would expand the current ban on incineration at sea in the London Convention, as 

amended in 1993, which only bans the incineration at sea of industrial waste and sewage sludge.2 The Protocol’s definition of ‘‘incineration at sea,’’ however, excludes incineration at sea of wastes or 

other matter generated during the normal operation of a vessel, 

platform, or other man-made structure on which they are being incinerated, which is covered by another international agreement, 

MARPOL 73/78, Annex VI. 

Article 8 of the Protocol specifies certain exceptions to the prohibitions on dumping and incineration at sea contained in Articles 4 

and 5. Paragraph 1 provides an exception for situations of ‘‘force 

majeure’’ caused by stress of weather, as in the case of a severe 

hurricane, 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. In these situations, dumping or incineration at 

sea is permissible and does not require a permit if it appears to be 

the only way of averting the threat and it is probable that the 

dumping or incineration will result in less damage than would otherwise occur. Such dumping or incineration is to be conducted so 

as to minimize the likelihood of damage to human or marine life 

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3 33 U.S.C. § 1401 et seq. 

gencies ‘‘posing an unacceptable threat to human health, safety, or 

the marine environment and admitting of no other feasible solution.’’ In response to questions from the committee, administration 

officials testified as follows regarding the exceptions in Article 8: 

Article 8 of the Protocol is a good example of the sophistication of this 

treaty in providing flexibility. There are two different situations it allows 

for. First, it allows for a party to issue a permit and thus create an exception to the Protocol’s general rules on dumping in situations of emergencies 

posing an unacceptable threat to human health, safety, or the marine environment when there is no other feasible alternative. This provision, the 

emergency permit, is actually broader than the one of the original convention to which we are now bound. And there is the second provision as well, 

which [closely parallels a similar provision in] the original convention. It 

contains a provision for situations of force majeure caused by weather or 

other immediate threats to human life or the marine environment where 

there is no other alternative. In these situations, dumping or incineration 

at sea may proceed even without the permit, although a party should conduct these things in a manner so as to minimize harm to human or marine 

life. 

Article 8 was strongly supported by the United States and provides Parties with the authority to address threats to humans and 

the marine environment, when necessary. 

Preventative Measures 

Article 3(1) of the Protocol makes clear that ‘‘appropriate’’ preventative measures are to be taken when there is reason to believe 

that wastes or other matter introduced into the marine environment are likely to cause harm, even when there is no ‘‘conclusive 

evidence to prove a causal relation between inputs and their effects.’’ Article 3(3) states that in implementing the Convention, 

Parties ‘‘shall act so as not to transfer, directly or indirectly, damage or likelihood of damage from one part of the environment to 

another or transform one type of pollution into another.’’ 

Permits, Reporting, Enforcement: Mechanisms for Compliance 

Article 9 of the Protocol sets forth regulatory and record-keeping 

requirements that Contracting Parties are required to have in 

place in order to administer the dumping and incineration at sea 

regime established by Articles 4, 5, and 8. The United States would 

implement these requirements through the Army Corps of Engineers and the EPA, which share permitting authority and reporting responsibility under Sections 102 and 103 of the Marine Protection, Research and Sanctuaries Act (MPRSA).3

Article 10 specifies the vessels, aircraft, and platforms or other 

man-made structures to which each Party is obliged to apply certain measures and clarifies the extent of each Party’s responsibility 

to prevent and, if necessary, punish acts contrary to the Protocol. 

Article 10(4) of the Protocol repeats verbatim Article VII(4) of the 

London Convention and exempts vessels and aircraft entitled to 

sovereign immunity under international law from coverage of the 

Protocol and require that Parties take ‘‘appropriate measures’’ that 

such vessels and aircraft act in a manner consistent with the object 

and purpose of the Protocol. 

Article 11 provides for the establishment of procedures and 

mechanisms necessary to assess and promote compliance with the 

5 

Protocol. Article 11 further specifies that the ‘‘Meeting of Contracting Parties’’ to the Protocol may offer advice, assistance, or cooperation to Parties and non-Parties after full consideration of any 

information submitted pursuant to the Protocol and any recommendations made through compliance procedures and mechanisms once they are established. In response to questions from the 

committee regarding the status of these procedures and mechanisms, administration officials testified that the ‘‘rules and procedures on compliance mandated by Article 11 of the London Protocol 

were adopted at the 2nd Meeting of Contracting Parties in November 2007. They were adopted by consensus. The compliance procedures create a facilitative process that will not lead to binding consequences for Parties.’’ The rules and procedures on compliance 

adopted in November 2007 can be found in the Annex of this report. 

Cooperation, Assistance and Research 

Article 12 of the Protocol encourages Parties with common interests to enhance cooperation in protecting the marine environment 

in a given geographical area. Article 13 calls on Parties to the Protocol to collaborate within the IMO and coordinate with other competent international organizations in order to promote support for 

technical cooperation and assistance to Parties that request it 

when implementing the Protocol. This article reflects an awareness 

that technical cooperation and assistance are important in encouraging developing nations to adhere to and implement fully the Protocol’s obligations. Article 14 recognizes the importance of scientific 

and technical research in preventing and controlling marine pollution and facilitates an exchange of information relevant to such 

matters. Article 17 requires Parties to promote the Protocol’s objectives within ‘‘competent international organizations.’’ 

Administration officials testified to the committee regarding cooperative efforts consistent with the Protocol that are intended to 

reduce and, where practicable, eliminate pollution caused by dumping or the incineration at sea of wastes or other matter as follows: 

For more than thirty years, the U.S. has been a leader in the control of 

marine pollution from ocean disposal, and our technical experts are in high 

demand for advising other nations on managing their dredging programs 

and other ocean disposal activities. The United States has been an active 

participant in regional cooperation activities to improve management of 

ocean dumping, especially within the Western Hemisphere. In recent years, 

U.S. technical experts from EPA and the Army Corps have participated in 

regional workshops on ocean disposal in Ecuador, China, and Bahrain. We 

engaged with countries in the wider Caribbean to encourage them to join 

the London Convention and Protocol through UNEP’s Caribbean Environment Programme. We are also an active member of the South Pacific Regional Environment Programme, and leader within that organization on 

preventing marine pollution from ocean dumping in the Pacific. 

U.S. technical experts played a leading role in the London Convention/ 

Protocol Scientific Group in developing ‘‘Waste Assessment Guidance’’ for 

evaluating various types of material for ocean disposal. This year EPA is 

providing the London Convention/Protocol Secretariat at the IMO with 

$80,000 to develop guidance for developing countries on dredged material 

management, and to promote training and capacity building in ocean dumping regulation. Over the next two years, we plan to contribute additional 

funds to this effort with a focus on Latin America and the Caribbean. 

Should we become Party to the London Protocol, we would expect to continue our leadership role in promoting cooperation and providing assistance 

on ocean dumping. 

6 

4 1978 Amendment to the Convention on the Prevention of Marine Pollution by Dumping 

Wastes and other Matter (Treaty Doc. 96–9; Ex. I, 96th Congress, 1st Session). The United 

States deposited its instrument of acceptance on October 24, 1980, but the Amendment has not 

entered into force because it has not been ratified by a sufficient number of parties. The Amendment will not enter into force until two-thirds of the Parties to the London Convention ratify 

the Amendment and, according to the IMO website, less than half the number needed (54) have 

ratified the Amendment (only 20). 5 33 U.S.C. § 1251 et seq. 6 42 U.S.C. § 7401 et seq. 7 42 U.S.C. § 6901 et seq. 8 33 U.S.C. § 1401 et seq. 9President’s Letter of Transmittal, Treaty Doc. 110–5 at III. 

Dispute Resolution 

Article 16 of the Protocol provides a dispute settlement procedure 

for disputes regarding the interpretation or application of the Protocol, which includes binding arbitral procedures in Annex 3 that 

are identical to the dispute resolution procedures provided for in a 

1978 amendment to the 1972 London Convention, to which the 

United States is a Contracting State.4 The administration has recommended that a declaration and an understanding be included in 

the U.S. instrument of ratification regarding the dispute resolution 

procedures, when ratifying the Protocol. These statements are described below. 

IV. ENTRY INTO FORCE

The Protocol entered into force on March 24, 2006 and to date, 

has 35 Parties. In accordance with Article 25, the Protocol will 

enter into force for the United States on the thirtieth day following 

the date of deposit of its instrument of ratification. 

V. IMPLEMENTING LEGISLATION

Existing law, including the Clean Water Act,5 the Clean Air Act,6

and the Resource Conservation and Recovery Act7 would be relied 

upon to implement aspects of this Protocol; however, further legislation would be needed to fully comply with the Protocol’s requirements. On November 7, 2007, the executive branch submitted to 

Congress proposed legislation in the form of amendments to the 

MPRSA8 that would fully implement the Protocol. The President’s 

Letter of Transmittal notes, however, that although new legislation 

is needed ‘‘[t]here will not be any substantive changes to existing 

practices in the United States, and no economic impact is expected 

from implementation of the Protocol.’’ 9 The committee understands 

that the United States will not deposit its instrument of ratification 

until the legislation necessary to allow the United States to fully 

implement the Protocol has been enacted. 

VI. COMMITTEE ACTION

The committee held a public hearing on the Protocol on July 10, 

2008. Testimony was received from Ambassador David A. Balton, 

Deputy Assistant Secretary of State for Oceans and Fisheries. A 

transcript of this hearing is annexed to Executive Report 110–15. 

On July 29, 2008, the committee considered the Protocol and ordered it favorably reported by voice vote, with a quorum present 

and without objection. 

7 

VII. COMMITTEE RECOMMENDATION AND COMMENTS

The Committee on Foreign Relations believes that the Protocol 

would serve to protect the U.S. marine environment more effectively from the harmful effects of wastes and other matter disposed 

of or incinerated at sea. Moreover, the international regime for addressing ocean dumping and the incineration of wastes and other 

matter at sea established by the Protocol is beginning to replace 

the framework established by the London Convention as more and 

more countries ratify the Protocol. As a result, it is increasingly important that the United States be able to fully participate in the 

development and implementation of the Protocol in international 

fora, so that the United States is able to advance and protect key 

U.S. interests in the protection of the marine environment. Accordingly, the committee urges the Senate to act promptly to give advice and consent to ratification of the Convention, as set forth in 

this report and the accompanying resolution of advice and consent. 

A. AMENDMENTS TO THE ANNEXES

Articles 21 and 22 set forth procedures for amending the text of, 

and the annexes to, the Protocol. There are three annexes to the 

Protocol: Annex 1—Wastes or Other Matter that may be Considered 

for Dumping; Annex 2—Assessment of Wastes or Other Matter that 

May be Considered for Dumping; and Annex 3—Arbitral Procedure. 

Amendments to the annexes must be adopted by a two-thirds majority vote of the Contracting Parties to the Protocol present and 

voting at a Meeting of Contracting Parties. If adopted, amendments 

to Annex 1 and 2 of the Protocol will enter into force for a Party 

to the Protocol 100 days after the date of the adoption of such an 

amendment, if that Party has not objected to the amendment. If a 

Party has objected to a Protocol, that Party can at any time substitute an acceptance for its objection and the relevant amendment 

would enter into force for that Party either upon notification of the 

acceptance or 100 days after the date of the adoption of the amendment, whichever date is later in time. Amendments to Annex 3 and 

proposals to add new Annexes to the Protocol would be treated as 

any other amendment to the text of the Protocol under Article 21 

and would therefore only enter into force for a Party to the Protocol 

if formally accepted by that Party. 

The Committee on Foreign Relations recognizes that the tacit 

amendment procedure provided for amending Annexes 1 and 2 

makes it possible for the implementation of the Protocol to evolve 

without going through a standard amendment process, which can 

take years to complete. The first two annexes currently attached to 

the Convention are largely technical and procedural in nature. 

Nevertheless, the committee expects the executive branch to consult with the committee in a timely manner regarding proposed 

amendments to either Annex 1 or 2 in order to determine whether 

the advice and consent of the Senate is necessary. Moreover, the 

committee expects that under such circumstances, the executive 

branch will make appropriate use of the objection procedure described above to prevent an amendment from entering into force for 

the United States before the conclusion of consultations on whether 

Senate advice and consent is necessary. Finally, the committee believes that any amendment to Annex 3, or proposals to add an adVerDate Aug 31 2005 15:53 Sep 15, 2008 Jkt 000000 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 H:\DOCS\EXEC~1.REP\EX110-21.TXT sfrela2 PsN: MIKEB
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10See the Article-by-Article Analysis attached to the Secretary of State’s Letter of Submittal 

at p.5. 

ditional annex to the Protocol, would likely require the advice and 

consent of the Senate. 

B. RESOLUTION

The committee has included in the resolution of advice and consent one proposed understanding and two proposed declarations. 

All three are discussed briefly below. 

First Declaration 

Paragraph 1 of Article 3 of the Protocol emphasizes the utility of 

precaution in protecting and preserving the marine environment 

from pollution caused by ocean dumping, whereby appropriate preventative measures are taken if there is reason to believe that 

wastes or other matter are likely to cause harm to the marine environment. Paragraph 2 of Article 3 underlines the importance of 

promoting practices whereby those authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution 

prevention and control requirements for such activities. These provisions describe general concepts that in the administration’s and 

the committee’s view would not normally be an appropriate subject 

for dispute settlement.10 This proposed declaration, which is recommended by the executive branch and contemplated in Article 

16(5) of the Convention, would exempt paragraphs 1 and 2 of Article 3 from the Protocol’s dispute settlement procedures, unless the 

United States gives its consent in a particular dispute. 

Understanding 

Article 10(4) of the Protocol repeats verbatim Article VII(4) of the 

London Convention and exempts vessels and aircraft entitled to 

sovereign immunity under international law from coverage of the 

Protocol, but nevertheless provides that each Party take ‘‘appropriate measures that such vessels and aircraft owned or operated 

[by that Party] act in a manner consistent with the object and purpose of this Protocol . . . .’’ The proposed understanding would make 

clear that the United States does not view the Protocol’s dispute 

settlement procedures as applicable to disputes in relation to sovereign immune vessels and aircraft, including any disputes in relation to the statement in Article 10 that each Party take appropriate 

measures to ensure that sovereign immune vessels and aircraft act 

in a manner consistent with the object and purpose of this Protocol. 

Second Declaration 

This second proposed declaration states that the Protocol is not 

self-executing. The Senate has rarely included statements regarding the self-executing nature of treaties in resolutions of advice and 

consent, but in light of the recent Supreme Court decision, 

Medellı ́n v. Texas, 128 S.Ct. 1346 (2008), the committee has determined that a clear statement in the resolution is warranted. A further discussion of the committee’s view on this matter can be found 

in Section VIII of Executive Report 110–12. 

9 

VIII. RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION

Resolved (two-thirds of the Senators present concurring therein), 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO DECLARATIONS AND AN UNDERSTANDING 

The Senate advises and consents to the ratification of the 1996 

Protocol to the Convention on the Prevention of Marine Pollution 

by Dumping of Wastes and Other Matter, done in London on November 7, 1996 (Treaty Doc. 110–5), subject to the declaration of 

section 2, the understanding of section 3, and the declaration of 

section 4. 

SECTION 2. DECLARATION 

The advice and consent of the Senate under section 1 is subject 

to the following declaration, which shall be included in the instrument of ratification: 

The United States of America declares that, pursuant to Article 16(5), when it is a party to a dispute about the interpretation or application of Article 3(1) or 3(2) of this Protocol, its 

consent shall be required before the dispute may be settled by 

means of the Arbitral Procedure set forth in Annex 3 of the 

Protocol. 

SECTION 3. UNDERSTANDING 

The advice and consent of the Senate under section 1 is subject 

to the following understanding, which shall be included in the instrument of ratification: 

The United States of America understands that, in light of 

Article 10(4) of the Protocol, which provides that the Protocol 

‘‘shall not apply to those vessels and aircraft entitled to sovereign immunity under international law,’’ disputes regarding 

the interpretation or application of the Protocol in relation to 

such vessels and aircraft are not subject to Article 16 of the 

Protocol. 

SECTION 4. DECLARATION 

The advice and consent of the Senate under section 1 is subject 

to the following declaration: 

This Protocol is not self-executing. 

11 

IX. ANNEX.—COMPLIANCE PROCEDURES AND MECHANISMS


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