TL: PRINCIPLES AND OPTIONS FOR THE REVISION OF THE HELSINKI CONVENTION Submitted by Greenpeace International to the ad hoc Group of Legal Experts Meeting 20-21 June 1990 to prepare for the ad hoc Group for Revision of the Convention SO: Greenpeace International (GP) DT: May 1990 Keywords: Greenpeace Reports Legal Conventions Scandinavia Europe / 1 INTRODUCTION The establishment of the ad hoc Group for Revision of the Convention by HELCOM XI offers an important opportunity for Contracting Parties and Observers to step back from the day-to-day work of HELCOM and evaluate how it may be made a more efficient instrument in improving the sad state of the Baltic marine environment. As an initial contribution toward this goal, Greenpeace International offers this paper to the ad hoc Group of Legal Experts (LEX), which will meet 20-21 June to prepare the work of the ad hoc Group for Revision of the Convention (HELCOM GRC) meeting in October - November of this year. The chairman of the HELCOM GRC has prepared a list of questions and Articles of the Helsinki Convention to be considered by the LEX Group. These questions and Articles will be addressed in Section 3 of this paper. They concern the legal instruments of the Helsinki Convention, the possible enlargement of the Convention area, and the application of the prohibition of dumping and incineration in the possibly enlarged Convention area. The chairman's list, however, deals only with a smaller part of the terms of reference of the HELCOM GRC contained in document HELCOM 11/14, Annex 28. In the opinion of Greenpeace International, it is necessary first to consider a number of more fundamental policy principles and guidelines in order to put the questions in a proper perspective. These principles and guidelines include the Precautionary Principle, referred to in Point 4 of the terms of reference of the HELCOM GRC, as well as a clean production strategy , which we believe ought to be included under Point 9 of the HELCOM GRC tasks to supplement the considerations of the implementation of best available technology referred to in Point 3 of the terms of reference. These fundamental policy questions will be addressed in Section 2. 2 POLICY PRINCIPLES - toward a new environmental policy paradigm Until the middle of the 1980s, marine environmental policy was based almost universally on the assumption of "assimilative capacity". This assumption constituted the basis of the traditional environmental policy paradigm. The self-purifying processes of the oceans were considered to be a resource that could be scientifically quantified and hence legitimately used by human civilisation for the purpose of disposing of waste products. The Helsinki Convention, negotiated in the early 1970s, as well as the later work by the Helsinki Commission reflect this assumption and this old paradigm. The purpose of the Convention is generally to "prevent and abate pollution" (Art. 3), and specifically with regard to land-based sources to "control and strictly limit pollution" (Art. 6). Seen in the context of the definition of the term "pollution" contained in Art. 2, the negotiators of the Helsinki Convention clearly believed - as did the negotiators of all other regional and global marine environmental conventions from the early 1970s - that it would be possible with reasonable confidence to predict what happened to substances when emitted into the marine environment; to ascertain whether they would result "in such deleterious effects as hazard to human health, harm to living resources and marine life, hindrance to legitimate uses of the sea including fishing, impairment of the quality for use of sea water, and reduction of amenities". It was merely a matter of calculating the assimilative capacity of the particular marine area. 2.1 The Precautionary Principle However, as coastal waters have become increasingly degraded, it has become clear that the permissive assimilative capacity approach is unable to deal with current pollution problems because it cannot possibly cope with the diversity of chemicals and biological species and their complex interactions. As a consequence, there has been a shift in thinking toward the Precautionary Principle according to which doubts concerning the ecological suitability of any discharges to the marine environment are sufficient grounds for their avoidance. Thus, the Precautionary Principle implies a shift by giving the health and safety of the environment rather than the contaminants the benefit of the doubt, but it also implies a shift in the burden of proof from those who wish to protect the environment toward the industry wishing to use it as a waste dump. This constitutes the basis of what must become the new environmental policy paradigm. The 1988 HELCOM Ministerial Declaration states that : Contracting Parties to the Convention must adopt a precautionary approach and not wait for full and undisputed scientific proof of harmful effects before taking action to prevent and abate pollution . While this definition of the Precautionary Principle represents a first step in the right direction, it does not entirely reflect a true precautionary approach. The problem is that the definition could still be interpreted to mean that a level of proof very close to "full and undisputed scientific proof" was required, in which case, nothing would be changed. No international marine environmental commission, regional or global, has ever waited for full and undisputed evidence before acting. If that had been the case few decisions would have been taken. The whole point with the Precautionary Principle is to significantly lower the threshold of doubt that triggers preventative action. A more appropriate guideline in defining the Precautionary Principle, therefore, is provided in the Final Document of the Nordic Council's International Parliamentarian Conference on the Pollution of the Seas, 16-18 October 1989, which proclaims: "The need for an effective precautionary approach, with that important principle intended to safeguard the marine ecosystem by, among other things, eliminating and preventing pollution emissions where there is reason to believe that damage or harmful effects are likely to be caused, even where there is inadequate or inconclusive scientific evidence to prove a causal link between emissions and effects." Greenpeace International strongly recommends that a true Precautionary approach be adopted as the fundamental guiding principle in the revision of the Helsinki Convention and that - as far as possible - the principle measures to implement the Precautionary approach also be specified in a revised convention. 2.2 Clean Production It is the view of Greenpeace International that clean production is the only efficient means of implementing the Precautionary approach in that it is designed to prevent the generation of toxic and otherwise ecologically unsuitable waste in the first place. It differs from the concept of "best available technology", which is strongly associated with end-of-pipe technologies and the perpetuation of hazardous waste generation. According to a group of UNEP experts, meeting in Paris in May 1989: "Clean production is the conceptual and procedural approach to production that demands that all phases of the life cycle of a product or process should be addressed with the objective of prevention or minimisation of short and long term risks to humans and to the environment. In other words, manufactured goods must be fully compatible with natural ecosystems throughout their entire life cycle including raw material selection, extraction and processing; product manufacture and assemblage; industrial and household usage; and societal management of the product at the end of its useful life cycle." Clean production does not include "end of pipe" controls such as filters and scrubbers or chemical, physical and biological treatment. Measures which reduce the volume of waste by incineration or concentration, or mask the hazard by dilution, or transfer pollutants from medium to another are also excluded from this definition of clean production. 3 AMENDMENTS TO THE CONVENTION The chairman's questions may be grouped into two larger questions, namely, firstly, whether the convention area should be enlarged and what should be the legal consequences of that, and, secondly, what should be the regulatory instruments of the convention and their legal status. We shall deal with the questions in that order. 3.1 The Convention Area Here the chairman has raised four questions, namely: Re. Article 1, Enlargement of the Convention Area to include e.g. the internal waters? Re. Article 4, Should the implementation of the provisions of the Convention be influenced by the possible enlargement of the Convention Area? Re. Article 9, Prohibition of dumping also in the possibly enlarged Convention Area? Re. Additional items, Introducing the prohibition of incineration in the present and possibly enlarged Convention Area? At this early point in the revision process, Greenpeace International has the following preliminary comments to make to these questions: 1) The Baltic Sea is an ecosystemic whole. Hence, the convention area must at the very least include the internal waters of Contracting Parties as does the convention area of the Paris Convention. By explicitly excluding internal waters and merely committing the Contracting Parties to "ensure that the purposes of the present Convention will be obtained in these waters", the present Helsinki Convention leaves open the possibility of lower environmental standards in internal waters. Thus, it is noteworthy that the prohibition of dumping, according to Art. 9, para. 1, explicitly does not apply to internal waters. The same holds for incineration at sea, which naturally must be seen as a form of dumping covered by Art. 9. It is illogical that such activities in principle could take place in internal waters since they obviously would affect the present convention area. So, for this reason alone, Greenpeace International's answer to all four questions is "yes", - the convention area should include internal waters; dumping and incineration should also be prohibited in the enlarged area; and the other provisions of the convention should apply and be implemented fully in the enlarged convention area. Otherwise, why enlarge it? 2) There is, however, at least one further reason to enlarge the convention area and that is monitoring. At present, HELCOM does not, as far as we are informed, receive monitoring data from the internal waters of the Contracting Parties. Since internal waters will often be more polluted because they are closer to most sources of marine pollution, monitoring data from internal waters could serve as an important "early warning" of problems to come and likely to spread to other parts of the convention area. 3) Finally, it should be noted that point 6 of the terms of reference of HELCOM GRC asks the group to consider enlarging the convention area to include not only internal waters, but "the whole catchment area of the Baltic Sea". Furthermore, it is worth noting that the recently adopted HELCOM Recommendations 11/3, 11/4, and 11/5 all apply to the "catchment area of the Baltic Sea". Greenpeace International strongly supports that the convention area be enlarged to include the whole catchment area since landbased sources are the major outstanding problem of marine pollution for HELCOM. Furthermore, such a revision of the convention would provide the legal basis for inviting non-Contracting Parties within the catchment area, notably Czechoslovakia and Norway, to become Contracting Parties to the revised convention. 3.2 Regulatory instruments and their legal status Here, the chairman has raised five questions, namely: Re. Article 3 Should the idea of introducing legally more binding measures in the Convention be reflected also in the wording of this Article? Re. Article 6 Should the (amended) text of the Article only refer to the appropriate Annexes, e.g. as proposed by the Executive Secretary in document HELCOM 11/9e/1? Re. Article 24 Should the text be amended to clearly provide the Committees with a possibility to propose amendments to the Annexes etc.? Re. Annexes Should the measures from the adopted HELCOM Recommendations (already implemented/to be implemented) be included in the appropriate Annexes? Re. Additional items The status of the various kinds of decisions made by the Commission has been somewhat unclear. Should their status, also of ministerial declarations, be defined in a clear-cut way, and the different decisions be "named" accordingly? Greenpeace International has the following preliminary comments to make to these questions: 1) Whereas the provisions of the present convention are legally binding on the Contracting Parties, the implementing Recommendations adopted by the Commission are not. This means that whereas for instance the prohibition against dumping in Art. 9 is legally binding, the recommendations relating to Art. 6 measures to control landbased sources of noxious substances listed in Annex II are not. They are really only voluntary guidelines. Not even the stipulation in Art. 5 "to counteract the introduction ... of hazardous substances as specified in Annex I" entails any legally binding obligations with regard to how and when this should be accomplished. Thus, legally binding measures may be introduced in two ways, namely by making the provisions relating various annexes more precise with regard to the size of and the timetable for reduction of emissions, and/or by empowering the Commission to adopt legally binding Regulations or Decisions instead of recommendations. However, before considering what form legally binding measures should take and in what article of the convention to define them, it seems important to consider whether they would make any difference. 2) Whether it makes sense to introduce legally binding measures depends on whether such measures would increase the degree of compliance with environmental standards and the timetables for their implementation. In the present international system, compliance with most international law ultimately depends political and moral pressure from within and without any Contracting Party to a convention. It is the opinion of Greenpeace International that such pressure would increase if measures were made binding legally. We believe that it would be more costly to the good name and reputation of any state to violate a legally binding obligation than to not follow a recommendation. This pressure could be further increased by more extensive monitoring, improved enforcement mechanisms, and clear rules of liability. Finally, it is important that measures be legally binding if the development of a liability regime, to which the Contracting Parties are committed according to Art. 17 of the present convention, is to have any meaning. 3) As to the form that legally binding measures should take, the model proposed in HELCOM document 11/9e/1 seems less relevant now since it was designed as a way to introduce legally binding measures without a full revision of the convention. Also, it seems to us, annexes only make sense if the corresponding article in the convention stipulates a uniform set of measures for the substances in question. A better model, in our view, would be to amend the present Art. 5 to prohibit emissions of a much extended list of Annex I substances, and to amend Art. 6 to stipulate a timetable for the phasing-out of a possibly extended list of Annex II substances. In addition, the Commission should be empowered to make legally binding regulations regarding substances not covered by the annexes. Such amendments of the Helsinki convention and legally binding regulations by the Commission would naturally supersede existing HELCOM recommendations, which ought to be reviewed during the revision process.