Report Contents

Marine Litter in the Black Sea Region

2009

Chapter 2 - Legal and Administrative Instruments

2. LEGAL AND ADMINISTRATIVE INSTRUMENTS

ML is part of the broader problem of solid waste management which is closely linked to major problems of public health, conservation of the environment, and sustainable development in the Black Sea region. ML originates from various land- and sea-based sources as a result of manifold human activities and, evidently, causes multivectorial negative impact on the population, wild life, abiotic nature and some sectors of economy. Floating ML and ML items suspended in the water are transported by currents and winds throughout the sea and, thereby, cause transboundary dissemination of solid wastes and basin-wide enlargement of the problem.

Therefore, Black Sea ML is a matter of regulation to some extent (but so far always incompletely) by a series of legal acts aimed to harmonize relevant activities on the international, regional and national levels. However, up till now there is no any jural instrument dedicated specifically to the management of ML problem in the Black Sea marine and coastal environment. Moreover, the concept of ML problem and “marine litter” itself, as a law-term in its proper definition (UNEP, 2005; see Introduction), are not accepted nor it is well-known yet in the Black Sea community.

2.1. INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS

A list of international and regional instruments which are relevant (directly or indirectly) to and can be used for the prevention and mitigation of the Black Sea ML problem is presented in Table 2.1.

The Convention on the Protection of the Black Sea Against Pollution (the Bucharest Convention, 1992) is predestined to prevent, reduce and control any kind of pollution within the territorial sea and exclusive economic zone of all Black Sea states, with peculiar emphasis on such kinds of pollution as:

• pollution by hazardous substances and matter (Article VI);
• pollution from land-based sources (Article VII and the Protocol on the Protection of the Black Sea Marine Environment Against Pollution from Land-based Sources);
• pollution from vessels (Article VIII);
• pollution caused by emergency situations (Article IX and the Protocol on
• Cooperation in Combating Pollution of the Black Sea by Oil and Other Harmful
• Substances in Emergency Situations);
• pollution by dumping (Article X and the Protocol on the Protection of the Black Sea
• Marine Environment Against Pollution by Dumping);
• pollution from activities on the continental shelf (Article XI);
• pollution from or through the atmosphere (Article XII); and
• pollution by hazardous wastes in transboundary movement (Article XIV).

Most above articles and protocols are applicable to restrain the ML problem. Three lists of hazardous substances and matter, which are annexed to the Convention and to the Protocols on the Pollution from Land-based Sources and by Dumping, include “persistent synthetic materials which may float, sink or remain in suspension” or, in other words, –those materials which constitute plastic ML.

In accordance with the Protocol on the Pollution from Land-based Sources, the Black Sea states should prevent, reduce and control pollution caused by discharges from any sources on their territories such as rivers, canals, coastal establishments, other artificial structures, outfalls or run-off, etc. Each Black Sea state should also carry out “monitoring activities in order to assess the levels of pollution, its sources and ecological effects along its coasts”, in particular, with regard to the hazardous substances and matter (e.g., persistent synthetic materials).

Table 2.1. Participation of Black Sea states in the conventions and international agreements which are relevant to the management and mitigation of ML problem

* Dates of ratification of the international treaties.

The Protocol on the Pollution by Dumping prohibits dumping in the Black Sea of wastes or other matter which contain the hazardous substances. At the same time, “dumping in the Black Sea of all other wastes or matter requires a prior general permit from the competent national authorities.” Such permits may be issued after consideration of (a) characteristics and composition of the matter intended for dumping, (b) characteristics of the proposed dumping site and disposal method, and (c) possible negative effects of the dumping and practical availability of alternative disposal methods. The Commission on the Protection of the Black Sea Against Pollution ( BSC) should be informed by the contracting parties about such national permits as well as about all casual dumping events forced by emergency situations.

In some way, the ML problem can be managed also through the Black Sea Biodiversity and Landscape Conservation Protocol to the Bucharest Convention ( Sofia, 2002). In accordance with this protocol (Article 11, §4), the Black Sea states should “co-operate in developing and harmonising their laws, regulations and procedures relating to liability, assessment of and compensation for damage caused by human activities and/or pollution of the marine environment of the Black Sea, in order to ensure the highest degree of deterrence and protection for the biological and landscape diversity of the Black Sea as a whole”. The scope of this protocol embraces maritime and coastal areas of the Black Sea and the Sea of Azov.

Regarding the pollution from vessels, the Bucharest Convention (Article VIII) demands from the contracting parties the observance of generally accepted international rules and standards.

The International Convention for the Prevention of Pollution from Ships (London, 1973 and 1978 [protocol]; MARPOL 73/78) is the basic convention aimed at combatting pollution from the shipping. This instrument regulates quantities of various wastes that vessels may discharge into the sea. The Regulations for the Prevention of Pollution by Garbage from Ships (Annex V to the Convention) has a special relation to the ML problem because any garbage or solid waste thrown out overboard can be considered as ML. This annex specifies distances from land and methods by which different types of garbage may be disposed from all kinds of vessels and fixed or floating platforms. The disposal/dumping of any plastics (including but not limited to synthetic ropes, synthetic fishing gear and plastic garbage bags) is completely prohibited. The disposal of dunnage, lining and packing materials (other than plastics) is prohibited if the distance from the nearest land is less than 25 nautical miles. The disposal of food wastes and all other non-plastic garbage (including paper, rags, glass, metal, bottles, crockery and similar refuse) is prohibited if the distance from the nearest land is less than 12 nautical miles.

According to Regulation 5 of Annex V, the Black Sea is defined as a Special Area[1] with much stricter requirements on the disposal of garbage than in many other maritime areas of the world. Any discharges of garbage (except food waste) are prohibited here. However, the garbage discharge requirements for a region that has been designated as a Special Area (e.g., the Black Sea area) will not enter into force until adequate garbage reception facilities are provided by all riparian countries in their ports and harbours.

Following MARPOL 73/78 and its amendments, vessels of 400 gross tons and above, or ships certified to carry more than 15 persons should develop a garbage management plan including;

decription of the collection, processing, storage and disposal procedures of each type of waste produced by the ship (including hazardous and medical wastes);

a list of waste management techniques and equipment that are in use on the ship;

provisions for the discharge and record of garbage (e.g., garbage record book);

designation of a person responsible for carrying out the plan.

The Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention, 1972) is destined to control the pollution by wastes and dredged spoils which are loaded on ships for the intentional purpose of dumping them at sea. In contrast to MARPOL 73/78, this Convention does not address wastes that have been produced during the normal operation of ships. Annex 1 to the Convention lists wastes and other matter that must not be dumped (dumping them is prohibited), including such potential ML items as “persistent plastics and other persistent synthetic materials, for example, netting and ropes, which may float or may remain in suspension in the sea”. It is recognized by the contracting parties that plastic materials and other materials that may cause problems of entanglement and ingestion by marine organisms constitute an environmental hazard (UNEP, 2005).

Article 45 of the Strategic Action Plan for the Rehabilitation and Protection of the Black Sea (BS SAP, 1996) envisages that the Black Sea states will consider amending the Protocol on the Pollution by Dumping to the Bucharest Convention in accordance with the London Convention. The Commission on the Protection of the Black Sea Against Pollution confirmed this intention in 2002 and adopted some actions required ( BSC, 2002):

promoting ratification of the London Convention by the Black Sea states, and

relevant amending the Protocol on Dumping to the Bucharest Convention before the next Ministerial Meeting in 2007.

The Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the Basel Convention, 1989) deals with problems of transboundary movements and environmentally sound management of hazardous wastes and other wastes. Annex 1 to the Convention lists 45 categories of wastes to be controlled, including, for instance, “Y1: Clinical wastes from medical care in hospitals, medical centers and clinics”. Annex 2 defines two categories of wastes requiring special consideration: “Y46: Wastes collected from households” and “Y47: Residues arising from the incineration of household wastes”. It is very likely that hazardous ML from land-based sources falls under the scope of the Convention mainly (but not only) under the categories of wastes requiring special consideration (wastes of household origin). Plastic wastes should be considred as a “ Basel” wastes if they possess any hazardous characteristics as identified in Annex III of the Convention (e.g., explosive, flammable, ecotoxic, etc.) or contain Annex I material to an extent causing them to exhibit an Annex III characteristic. Such potentially hazardous wastes are classified in Annex IX, List B of the Convention (e.g., “B1115: Waste metal cables coated or insulated with plastics”; “B1180: Waste photographic film containing silver”; a long list of “B3010: Solid plastic waste”).

A number of Technical Guidelines for the Environmentally Sound Management of hazardous and other wastes, adopted by the parties to the Basel Convention, would be relevant to the ML problem (UNEP, 2005), such as:

Technical Guidelines on Wastes Collected from Households;

Technical Guidelines on Specially Engineered Landfill; and

Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Waste and for their Disposal.

In 1999, the Basel Declaration on Environmentally Sound Management was signed by the parties. This document is intended to improve implementation of the Convention in fields of the prevention, minimization, recycling, recovery and disposal of hazardous and other wastes, particularly, by means of the enhancement of institutional and technical capabilities, especially in developing countries and countries with economies in transition. The Strategic Plan for the Implementation of the Basel Convention was adopted at the 6th Conference of the Parties (2002).

Some other international instruments have indirect relation to the control of ML problem.

The Convention on Biological Diversity ( CBD; Rio de Janeiro, 1992) concerns the protection, management and sustainable use of the biodiversity in general, and its subsidiary programme called “Jakarta Mandate on Marine and Coastal Biodiversity” (1995; work program – 1998, updated in 2004) is concentrated on relevant issues in the marine and coastal environment, including some ML-related aspects such as (UNEP, 2005): the smothering of the seabed; effects of entanglement and ingestion of litter on fish, marine mammals and seabirds; dissemination of alien species (ML as a vector for transport of invasive species). The Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention, 1979) is an instrument in the field of nature conservation, which covers the whole of the natural heritage of the European continent. Its aims are to conserve wild flora and fauna and their natural habitats and to promote European co-operation in that field. The Convention is a fundamental treaty at European level for biological diversity; it co-ordinates the action of European states in adopting common standards and policies for the sustainable use of biodiversity. The parties of the Convention should include all appropriate measures in their planning and development policies and pollution control, with obvious attention to the ML issues among other environmental problems. In 2004, the Strasbourg Declaration on the role of the Bern Convention in the preservation of biological diversity was adopted. The Convention on the Conservation of Migratory Species of Wild Animals ( CMS or the Bonn Convention, 1979) aims to conserve terrestrial, marine and avian migratory species throughout their range. It is an intergovernmental treaty, concluded under the aegis of the UNEP, concerned with the conservation of wildlife and habitats on a global scale. Migratory species which can be threatened with extinction are listed in Appendix I of the Convention. Two species of Black Sea animals – the Mediterranean monk seal (Monachus monachus) and sturgeon (Acipenser sturio) – are inserted into CMS Appendix I. The parties that are range states of these species should endeavour;

a) to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction;

b) to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species; and

c) to the extent feasible and appropriate, to prevent, reduce or control factors that are endangering or are likely to further endanger the species, including strictly controlling the introduction of, or controlling or eliminating, already introduced exotic species.

Migratory species that need or would significantly benefit from international co-operation are listed in Appendix II of the Convention. All three species/populations of Black Sea cetaceans – the harbour porpoise (Phocoena phocoena), short-beaked common dolphin (Delphinus delphis) and common bottlenose dolphin (Tursiops truncatus) – along with the Mediterranean monk seal (M. monachus) and six species of sturgeons (Huso huso, Acipenser gueldenstaedtii, A. nudiventris, A. ruthenus [Danube population], A. stellatus and A. sturio) are listed in CMS Appendix II. The Convention encourages the range states to conclude regional agreements for the protection of such species. In this respect, CMS acts as a framework convention. Following this option, the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS; Monaco, 1996) has been concluded under the auspices of CMS, and most Black Sea countries (except Russia and Turkey) are at present the parties of the Agreement. Significantly, that membership is also open to non-coastal states outside the Agreement area ("third countries") whose vessels are engaged in activities that may affect Black Sea and Mediterranean cetaceans. ACCOBAMS aims to reduce threats to all cetaceans in these waters and to promote closer cooperation amongst the parties with a view to conserving all cetacean species present in the area. The Conservation Plan (Annex 2 of the Agreement) includes a series of measures linked to ML problem in the Black Sea region. For example, the parties should:

introduce or amend regulations with a view to preventing fishing gear from being discarded or left adrift at sea;

regulate the discharge at sea of, and adopt within the framework of other appropriate legal instruments stricter standards for, pollutants believed to have adverse effects on cetaceans;

collect and analyse data on direct and indirect interactions between humans and cetaceans in relation to inter alia fishing, industrial and touristic activities, and land-based and maritime pollution; and take appropriate remedial measures and develop guidelines and/or codes of conduct to regulate or manage such activities.

In accordance with basic norms of international law, national legislation of the parties to above multilateral conventions/agreements should be brought to conformity with these instruments.

2.2. NATIONAL LEGAL AND ADMINISTRATIVE INSTRUMENTS

National consultants on ML indicated that the ML problem is addressed to some extent in their countries by a number of instruments concerned with various fields of public administration, social life and different human activities (Table 2.2).

Table 2.2. Presence of ML-related items in national legal and administrative instruments regulating different human activities

Most national legislative acts, dealing with ML issues, and relevant documents generated by central governments are listed in Table 2.3.

Table 2.3. National legal acts and central government documents relevant to the management of ML problem

The subordinate administrative documents relevant to ML items are presented in Table 2.4.

Table 2.4. Administrative instruments regulating ML problem on subordinate (ministerial, province, district, municipal, harbor, etc.) levels

The detailed comparative analysis of above national instruments (which are numerous and heterogeneous indeed) and verification of their conformity with respective international and regional legal acts represent special tasks overstepping capabilities of this report. Certainly, this analytical work should be done in the future, and appropriate recommendations on the harmonization and improvement of national legislation should appear as a result. Nevertheless, it seems pertinent to underline at least five important points reflecting present situation;

1) all six Black Sea states are in transition process of developing and updating their national instruments aimed at combatting marine pollution including ML (or solid waste) component;

2) actual rate of this process and concrete instruments developed are quite different in different countries;

3) however, general trends of this process regarding the ML problem are common in all Black Sea states: (a) to prohibit any deliberate discharge of potential ML at sea and on the shore-strip; (b) to improve solid waste collection, processing, storage, disposal and recycling facilities; and (c) to enhance governmental control of activities mentioned in (a) and (b);

4) national policies in the Black Sea states are aimed at waste minimization, reuse, recycling and recovery of landfills. The major legislative and regulatory tools for waste management are adequately developed in the Black Sea countries, and include basic laws and regulations. The new EU member countries Bulgaria and Romania and candidate country Turkey (The EU Commission started to prepare an Accession Partnership for Turkey , which was declared on March 8th, 2001) transpose relevant EU directives and standards in their national legislation;

5) one of the main management problems affecting most Black Sea countries consists in imperfect ability to apply the existing laws and regulations. Being declared once, they should be implemented by proper way but sometimes they do not work so far or work inadequately.