TL: ANNEX 3 CURRENT STATUS OF OCEAN INCINERATION
SO: Michael M'Gonigle, Greenpeace International (GP)
DT: August 1989
Keywords: nuclear power waste ocean dumping conventions ldc
greenpeace gp statements incineration europe /

                         August, l989

                               by

                   Michael M'Gonigle, J.S.D.(*)

              Submitted by Greenpeace International
         to the Twelfth Consultative Meeting of the LDC

Introduction

At the Eleventh meeting of the Contracting Parties to the London
Dumping Convention, held in October 1988, it was agreed that the
practice of ocean incineration of noxious liquid wastes would be
terminated by December 31, l994. Resolution 35 (11), found at
LDC 11/14 Annex 7, page 2, states:

Contracting parties shall re-evaluate incineration at sea of
noxious liquid wastes as early in 1992 as possible with a view
to proceeding towards the termination of this practice by 31
December 1994.

At the meeting of the LDC's Scientific Group on Dumping held in
April of this year, the resolution was paraphrased in the
annotated agenda produced by the Secretariat in the following
manner:

The Eleventh Consultative Meeting agreed in Resolution LDC.  35
(11) on the Status of Incineration of Noxious Liquid Wastes at
Sea, to re-evaluate in 1992 the practical availability on a
global level of safer and environmentally more acceptable land-
based alternatives, with a possible view towards the termination
of incineration at sea by the end of 1994. The global evaluation
of waste management activities is a major undertaking for the
Secretariat, and the Scientific Group will be invited to assist
in developing terms of reference for the study.  The Scientific
Group may wish to establish a working group to undertake this
task.

The introduction of the term "possible" erroneously throws into
question the compelling character of the resolution which was
agreed upon at LDC 11.  The following discussion is intended for
the delegates to LDC 12 to assist in clarifying the binding
intention of the Contracting Parties to phase out ocean
incineration by the end of 1994.

Sources of Interpretation

In order to understand the meaning of Resolution 35(11), the
accepted canons of treaty and statutory interpretation are of
great assistance.  As set out in Article 38 (1) of the statute
of the International Court of Justice, the primary sources of
international law in the settlement of disputes are: a)
international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
parties; b) international custom, as evidence of a general
practice accepted as law; c) the general principles of law
recognized by civilized nations; d) subject to the provisions of
Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations....

International Conventions

The 1969 Vienna Convention on the Law of Treaties is recognized
as the definitive vehicle laying down the basic principles of
the international law of the treaties.

Article 31 of the convention sets out the "General Rule of
Interpretation" as follows:

A treaty shall be interpreted in good faith in accordance with
ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose.

Certainly the wording of Resolution 35 (11) could have been
clearer.

Nevertheless, the phrase "with a view to" is defined (Houghton
Mifflin Dictionary, l982) as meaning "with the intention" of.
This is the plain and ordinary dictionary meaning of the phrase.

This meaning is further reinforced by the phrase immediately
prior thereto in the resolution which states that the Eleventh
Meeting agrees "to take all steps possible to minimize or
substantially reduce the use of marine incineration of noxious
liquid wastes by 1st January 1991." An agreed upon commitment to
those earlier actions by 1991 reflects a clear commitment to
move towards, and achieve the 1994 termination of those
activities.

The intention of the resolution introduced by Denmark was
clearly to terminate ocean incineration by 1994, with the
parties also looking to fulfilling those conditions necessary to
end ocean incineration by that time.  Of particular concern was
the availability of land-based alternatives.

It was clearly not the intention of the resolution to seek to
perpetuate ocean incineration by directing parties to attempt to
perfect the techniques of ocean incineration before that time.

The object and purpose of the Danish initiative was to terminate
ocean incineration at the earliest possible date.

It should be noted as well that the interpretation adopted
should not lead to a result which is "manifestly absurd or
unreasonable" (Vienna Convention, Article 32).  To interpret the
resolution as other than one imposing a specifically binding
legal obligation-- and instead to see it as one merely
indicating the Contracting Parties' "possible" view to
termination--would be to reduce the resolution to a merely
hortatory statement without obligatory weight, clearly an absurd
result in light of the intention of the proponent of the
resolution.

Further clarification of the matter may be achieved by applying
Article 32 of the Vienna Convention, entitled "Supplementary
Means of Interpretation":

Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning
resulting from the application of Article 31...

Reference to this preparatory work confirms the interpretation
given above. Of immediate interest is the work of LDC 11.  The
proposal to phase out ocean incineration was put forward by the
delegation from Denmark, the original termination date being set
for 1989, a very tight deadline.  The alterations in the
resolution were set out in the report of LDC 11/14 (p.29):

In order to achieve more support for its proposal, the Danish
delegation modified its proposal by changing the termination
date from 1989 to the end of 1994.

The report makes no reference to any discussion of the new
wording now altering the binding character of the resolution.
This change, without any indication to the contrary, was
unaminously accepted by members of the Convention.

Most importantly, however, it is necessary to re-consider the
entire basis upon which the practice of ocean incineration of
noxious substances was originally endorsed by the LDC.  It was
supported by a resolution adopted in 1978 (LDC III/12, Annex 3)
which recognized incineration at see as "being an interim method
of disposal", pending the development of "environmentally better
solutions", including "practical alternative land-based
methods".

This too was noted by the Danish delegation at LDC 11:

[I]ncineration at sea has been originally agreed upon as an
interim method pending the development of environmentally better
solutions--as expressed in the l978 LDC resolution on
incineration at sea.  (LDC 11/14, p.29)

This situation is widely accepted by Contracting Parties.  As
noted in the Report of the 11th meeting (at p.29):

The Chairman of the Meeting, prior to requesting comments on the
Danish proposal, noted that there appeared to be general
agreement that incineration at sea was indeed considered as
being an interim disposal method which might eventually be
phased out and replaced by safer and more environmentally
acceptable waste treatment and disposal options.

Recent developments at the Eleventh meeting of Contracting
parties emphasize this situation.  For example, the Scientific
Group on Dumping drafted a new guideline to Annex III (Guideline
4) which deals with the "practical availability of alternatives
to sea disposal of wastes" (LDC 11/14, p.23-24).  The Guideline
"clearly indicates" that ocean incineration may only be
justified on an interim basis pending the availability of other
environmentally more acceptable land-based alternatives.  In
addition, when it was proposed that the term "interim" be
deleted in the title of the Guidelines, this was rejected (LDC
11/14, p.28).

In looking at the context of the resolution, the earlier history
of decisions at LDC on ocean incineration is of interest in
addition to the preparatory work on the specific resolution 35
(11).  Here, it is important to note that the practice of ocean
incineration has been seen as an interim measure from the
outset.  Its continuation has been dependent not on perfecting
techniques of ocean disposal but on the absence of suitable
land-based alternatives.  Its termination was due when such
alternatives become available, in some form acceptable to the
Contracting Parties.

In this regard, the further statements of the Danish delegation
at LDC 11 (LDC 11/14, p.28) are relevant:

[I]ncineration at sea is no longer needed, as it has been
established that a wider variety of reduction, recovery and
treatment technologies is available for most of the wastes
currently incinerated at sea--this fact was established by the
expert group on incineration at sea in 1987.

In conclusion, based upon the principles of the Vienna Law of
Treaties, the resolution adopted by the Contracting Parties at
LDC 11 must be considered a binding agreement to terminate the
practice of ocean incineration by 1994.  Further reconsideration
does not depend in any way upon evidence (which is, in any
event, at present quite insufficient) of improved techniques of
ocean disposal.  The only matter of interest to the Contracting
Parties is the availability of land-based alternatives and waste

reduction technologies, something which has already been
established.

General Principles of Law

Article 38 (1)(c) of the convention establishing the
International Court of Justice refers to "the general principles
of law recognized by civilized nations" as a further source of
international law.  These principles confirm those set out in
the Vienna Law of Treaties.  As set out in such noted texts as
Cross on "Statutory Interpretation" (London: Butterworths,
l987), the plain meaning of the text is to be utilized first
(short of that plain meaning leading to an absurd result), after
which the purpose (or "mischief") to which the text is directed
is to be examined.  The factors to be considered are:

1.  What was the common law before the making of the act?  2.
What was the mischief and defect for which the common law did
not provide? 3.  What remedy did the legislature resolve upon to
cure the mischief and defect?  4.  What was the true reason for
the remedy?  (Gerald Gall, "The Canadian Legal System: The Rules
and Principles of Statutory Interpretation," Toronto: Carsell,
p.  254)

Without repeating the analysis given above, it is clear that the
"general principles of civilized nations" confirm the rules of
interpretation as set out by the Vienna Law of Treaties.

Indeed, "General Principles of Law" clearly affirm the
international rules of legal interpretation.  For example, in
the report of the Eleventh Consultative Meeting, the heading
which precedes Paragraphs 4.21 to 4.33 (those paragraphs
summarizing the background and adoption of Resolution LDC
35(11)) reads: "Plans for terminating incineration at sea".

The terms "proposal" or "possible" are not used.  Instead, the
heading itself is clear and unambiguous.  Such preambles are
frequently used as aids to interpretation:

(...) the common position applies, which is that a heading
within a statute may be characterized as preambles and, as such,
are admissible in determining legislative intent. (Gall, p. 259)

In conclusion, under the contemporary international law of
treaty or statutory interpretation, Resolution 35 (11) of the
LDC 11 must be interpreted as clearly leading to the complete
termination of ocean incineration by the end of 1994.


(*) Assistant Professor, Natural Resources Management Program,
Simon Fraser University, Vancouver, B.C.  This report was
prepared with the assistance of Suzanne Hawkes, whose work is
gratefully acknowledged.

* * *