Convention for the Protection of the Marine Environment of the North East Atlantic, 1992 (OSPAR)
Date of signature: 22 September 1992
Entry into force: 25 March 1998
Geographical scope: North-East Atlantic maritime area.
Contracting Parties: Belgium, Denmark, European Union, Finland, France, Germany, Iceland, Ireland, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and United Kingdom.
What are the aims and requirements of the Convention?
The Convention was adopted at a meeting of the Parties to the Oslo and Paris Conventions on the 21 and 22 September 1992. It entered into force on 25 March 1998. The Convention replaced the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo Convention) and the 1974 Paris Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris Convention).
Article 2(1) (a) sets out the primary obligation under the Convention:
'The Contracting Parties shall, in accordance with the provisions of the Convention, take all possible steps to prevent and eliminate pollution and shall take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected.'
To this end, parties are required, individually and jointly, to adopt programmes and measures, and harmonise their policies and strategies (Article 2(1) (b)). They are, however, entitled under the Convention to adopt more stringent measures than those required by the main objective, with regard to pollution or the protection of the maritime area.
Article 2 also contains more general requirements for Parties and requires them to apply any adopted programmes or measures in a manner that will 'prevent an increase in pollution of the sea outside the maritime area or in other parts of the environment' (Article 2(4)). The 'precautionary principle' and the 'polluter pays principle' have a legal basis in the Convention and Parties are also required to take into account best available techniques and best environmental practice.
Convention bodies
The Convention established the OSPAR Commission, which is described as 'the forum through which the Contracting Parties co-operate' (OSPAR). The Commission is made up of representatives of each of the Parties. It meets once a year, usually at the end of June. The Commission is responsible for:
supervising the implementation of the Convention;
reviewing the condition of the maritime area;
drawing up programmes and measures for the prevention and elimination of pollution;
establishing its work programme;
setting up subsidiary bodies and defining their terms of reference; and
considering and, where appropriate, adopting proposals for the amendment of the Convention (Article 10).
The Commission is supported by a host of other committees, some of which are in turn assisted by working groups, the Group of Linguists and Jurists, and the Committee of Chairmen and Vice-Chairmen. All these subsidiary bodies provide management and feed advice to the Commission. The meetings of these subsidiary bodies are set out and organised at the annual Commission meetings.
Commission meetings, as well as certain committee and working party meetings, may be attended by observers from various organisations. These observers may be a representative from any state which is not a Contracting Party to the Convention or from an international governmental or non-governmental organisation whose activities are related to the Convention. The representatives are not entitled to vote at the meetings, but they may present any information or reports deemed relevant to 'the objectives of the Convention' (Article 11).
Definitions and scope of the Convention
The Convention applies to the 'maritime area', which is defined as the 'internal waters and the territorial seas of the Contracting Parties', the adjacent areas of sea under the jurisdiction of the coastal state and certain parts of the Arctic and Atlantic Oceans defined in Article 1. This Article also states that the maritime area includes 'the bed of all those waters and its sub-soil'. The primary aim of the Parties is to prevent and eliminate 'pollution', defined by the Convention as:
'the introduction by man, directly or indirectly, of substances or energy into the maritime area which results, or is likely to result, in hazards to human health, harm to living resources and marine ecosystems, damage to amenities or interference with other legitimate uses of the sea' (Article 1).
Dumping is defined in the Convention as any deliberate disposal in the maritime area of wastes or other matter from vessels or aircraft, or from offshore installations. This includes the deliberate disposal of vessels, aircraft or offshore installations and pipelines themselves. Other items may be discharged, including matter that is placed for a purpose other than mere disposal, and waste or other matter that is generated within the normal operation of vessels, aircraft or offshore installations. The definition of wastes or other matter includes all materials, except for 'human remains, offshore installations, offshore pipelines and unprocessed fish and fish offal discarded from fishing vessels'.
Prevention of pollution
Articles 3 to 5 provide specific obligations with regard to the prevention, elimination and monitoring of pollution from specific sources, including land-based sources, dumping or incineration and offshore sources. The Convention also requires Parties to cooperate with a view to adopting additional Annexes prescribing measures, procedures and standards to deal with 'pollution from other sources', insofar as such pollution is not already subject to other 'effective measures agreed by other international organisations or prescribed by other international conventions' (Article 7).
Pollution from land-based sources
Article 3 and Annex I require Parties to take all possible steps to reduce and eliminate pollution from land-based sources, which are defined as 'point and diffuse sources on land from which substances or energy reach the maritime area by water, through the air, or directly from the coast'. These sources also include 'sources associated with any deliberate disposal under the sea-bed made accessible from land by tunnel, pipeline or other means and sources associated with man-made structures placed, in the maritime area under the jurisdiction of a Contracting Party, other than for the purpose of offshore activities'. Parties are obliged under Annex I to authorise and regulate discharges into the marine environment from these sources and then monitor their compliance with authorisations.
Pollution caused by dumping or incineration
Article 4 and Annex II prohibit the dumping or incineration of waste or other matter, save for:
dredged material;
inert materials of natural origin, that is solid, chemically unprocessed geological material the chemical constituents of which are unlikely to be released into the marine environment;
sewage sludge (until 31 December 1998);
fish waste from industrial fish processing operations;
vessels or aircraft (until 31 December 2004); and
low and intermediate level radioactive substances, including wastes (for a limited period, subject to review by the Commission).
The materials listed in Annex II may be dumped, but they must be the subject to a strict authorisation and monitoring process. Those authorisation and monitoring processes have to be in accordance with criteria, guidelines and procedures that are adopted by the Commission. As previously noted, 'dumping' does not include placement for purposes other than mere disposal. However Article 5 of Annex II states:
'No placement of matter in the maritime area for a purpose other than that for which it was originally designed or constructed shall take place without authorisation or regulation by the competent authority of the relevant Contracting Party.'
This article provides some restriction upon the placement of material in the marine environment, by introducing a permitting aspect. The restrictions set out in Annex II may, however, be partially waived in cases of force majeure or emergency (Articles 7 and 9 of Annex II).
Pollution from offshore sources
Article 5 and Annex III require Parties to take all possible steps to reduce and eliminate pollution from offshore sources, which are defined as 'offshore installations and offshore pipelines from which substances or energy reach the maritime area'.
Under the Convention, an 'offshore installation' is 'any man-made structure, plant or vessel or parts thereof, whether floating or fixed to the seabed, placed within the maritime area for the purpose of offshore activities'.
Offshore pipelines are those which have been placed in the marine environment for 'the purpose of offshore activities'.
Offshore activities are in turn defined as those 'carried out in the maritime area for the purposes of the exploration, appraisal or exploitation of liquid and gaseous hydrocarbons'.
Under Annex III, any dumping of wastes from offshore installations is prohibited, although the prohibition does not relate to discharges or emissions from offshore sources (Article 3).
These discharges or emissions must be subject to authorisation and regulation by the Contracting Parties, by means of permits.
Key legal issues concerning CCS
Before the 2007 amendments to Annex II and III of the Convention entered into force (see section on Amendments to the Convention below), the Convention did not expressly permit CCS and many of its provisions regarding the prevention of pollution from diverse sources presented obstacles to the technology's deployment. The general 'precautionary principle' and the 'polluter-pays principle' also left the status of CCS unclear under the OSPAR legal regime.
Annex I and Article 3 of the Convention oblige Parties to authorise and regulate discharges into the marine environment from land-based sources. The definition of such sources expressly encompasses 'sources associated with any deliberate disposal under the sea-bed made accessible from land by [...] pipeline [...]' (Article 1 (e)). As a result, the transport of CO2 by pipeline directly to a storage site may be permissible under the Convention, provided that a permit, authorised by a Contracting Party, is issued for activities of this nature. Although direct sub-seabed storage of CO2 may be authorised under the Convention, most proposals for CCS require an installation between the transport of the CO2 and its injection into the desired storage site.
Annex III and Article 5 contain similar provisions regarding the reduction and elimination of pollution from offshore sources. Dumping of wastes or other matter from these installations and pipelines is prohibited, although this restriction does not apply to discharges or emissions (ie, routine releases that are integral to the operating process) from offshore sources. A proposal to ship CO2 to an installation, prior to its injection, may fall foul of this provision because the transport of CO2 no longer falls under the definition of a land-based source; a point confirmed by the OSPAR Group of Linguists and Jurists in 2003. CO2 delivered to an existing offshore installation by pipeline and then injected, would also be viewed as dumping and prohibited under the Convention. This is because the definition of an offshore installation is based upon the activities carried out there; notably whether or not it is, or was, used for the 'purposes of the exploration, appraisal or exploitation of liquid and gaseous hydrocarbons'. Existing offshore platforms are likely to be used as a location for CO2 injection activities and these installations may previously have been used for oil and gas drilling. They would therefore fall under the definition of an offshore installation and be subject to the prohibition upon dumping, unless the placement is considered to be for a purpose other than mere disposal (see below). The creation of a new platform, not previously used for hydrocarbon activities, would be one possible solution for overcoming this restriction.
The Convention also prohibits the dumping or incineration of wastes, although no clear definition of what constitutes waste is provided. The Convention details what is to be excluded from the definition of waste, but CO2 is not included on that list. This was confirmed by the OSPAR Group of Linguists and Jurists in its 2003 report. Dumping, as discussed earlier, is defined in the Convention as the deliberate disposal in the maritime area of wastes or other matter from vessels or aircraft, or from offshore installations. This includes the deliberate disposal of vessels, aircraft, offshore installations and pipelines themselves. The first half of this definition may be relevant to CCS activities and it may be suggested that CCS activities could be viewed as dumping. However, the storage of CO2 which is captured 'within the normal operations' of vessels and offshore installations, is excluded from the definition of 'dumping', and presumably it could then be stored in accordance with the Convention.
The 'placement' of matter is also excluded from the definition of dumping, provided it is for a purpose other than mere disposal and, 'if the placement is for a purpose other than that for which the matter was originally designed or constructed, it is in accordance with the relevant provisions of the Convention'. It has been suggested that CCS may benefit from this provision, if the CO2 is viewed as being stored temporarily. However, it may fall foul of the second part of the provision, for any placement must be in accordance with the relevant provisions of the Convention. There remains uncertainty as to whether Parties will be allowed to avail themselves of this provision, in the absence of guidance from the OSPAR Commission.
Recent developments
In June 2007, the OSPAR Commission adopted amendments to the Convention to allow for the storage of CO2 in geological formations under the seabed. The Commission further decided to legally rule out the placement of CO2 into the water column of the sea and on the seabed because of 'potential negative effects'. These amendments will not come into force until the ratification process is completed in accordance with the Convention's provisions (see section on entry into force below).
Amendments to Annex II and Annex III
The contracting Parties to the Convention made amendments to both Annex II and Annex III, by introducing new paragraphs. In Annex II, a new sub-paragraph is added to Article 3(2) which reads:
(f) carbon dioxide streams from carbon dioxide capture processes for storage, provided:
disposal is into a sub-soil geological formation;
the streams consist overwhelmingly of carbon dioxide. They may contain incidental associated substances derived from the source material and the capture, transport and storage processes used;
no wastes or other matter are added for the purpose of disposing of those wastes or other matter;
they are intended to be retained in these formations permanently and will not lead to significant adverse consequences for the marine environment, human health and other legitimate uses of the maritime area.
This amendment includes CO2 in the list of wastes or other matter that may be dumped in the marine environment, provided the CO2 streams which are stored in this manner meet the other preconditions listed in subsections (i) to (iv) above. Stored CO2 streams may only be stored in accordance with an authorisation issued by the Parties' relevant authorities and carried out in accordance with their regulation. These authorisations and regulations must in turn be 'in accordance with the relevant applicable criteria, guidelines and procedures adopted by the Commission' (Article 4.1, Annex II).
Annex III is also amended to accommodate CCS technologies: two new paragraphs are included under Article 3. The new paragraphs 3 and 4 provide:
The prohibition referred to in paragraph 1 of this Article does not apply to carbon dioxide streams from carbon dioxide capture processes for storage, provided:
disposal is into a sub-soil geological formation;
the streams consist overwhelmingly of carbon dioxide. They may contain incidental associated substances derived from the source material and the capture, transport and storage processes used;
no wastes or other matter are added for the purpose of disposing of those wastes or other matter;
they are intended to be retained in these formations permanently and will not lead to significant adverse consequences for the marine environment, human health and other legitimate uses of the maritime area.
The Contracting Parties shall ensure that no streams referred to in paragraph 3 shall be disposed of in sub-soil geological formations without authorisation or regulation by their competent authorities. Such authorisation or regulation shall, in particular, implement the relevant applicable decisions, recommendations and all other agreements adopted under the Convention.
This amendment provides an exception for CCS activities from the prohibition contained in Annex III, with regard to the dumping of wastes or other matter from offshore installations. However, these activities are required to meet the preconditions listed in sub-sections (a) to (d) and be stored in accordance with the relevant authority's authorisations and regulations.
Entry into force of the amendments
Article 15 of the Convention provides that any amendment will enter into force for 'those Contracting Parties which have ratified, accepted or approved it on the thirtieth day after receipt by the Depositary Government of notification of its ratification, acceptance or approval by at least seven Contracting Parties'. For any other Contracting Parties to the Convention, the amendment shall enter into force on the thirtieth day after those Parties have deposited their instruments of ratification, acceptance or approval of the amendment.
Thus far, the amendments have been ratified by Norway (November 2007), the UK (April 2010), the European Union (August 2010), and Germany (September 2010).
OSPAR Guidelines for Risk Assessment and Management of Storage of CO2 Streams in Geological Formations
At the meeting of the OSPAR Commission in June 2007, a further decision was adopted with regard to the regulation of the storage of CO2 in geological formations. The decision (Decision 2007/2) stated that the Parties' competent authorities are responsible for ensuring the correct regulations and authorisations are in place for CCS activities, and that these regulations and authorisations are made in accordance with the OSPAR Guidelines for Risk Assessment and Management of CO2 Streams in Geological Formations ('the Guidelines').
A decision to grant a permit for CCS activities may only be taken once the competent authority is satisfied that there has been a suitable risk assessment and management process. The decision provides a list of items that are to be included, as a minimum, in any permit or approval issued by the competent authority. Paragraph 3.2 of the Decision states:
'The provisions of the permit or approval shall ensure the avoidance of significant adverse effects on the marine environment, bearing in mind that the ultimate objective is permanent containment of CO2 streams in geological formations.'
The Decision also requires Parties to notify the Executive Secretary of OSPAR, should they decide to issue a permit for CCS activities. The Secretary will then send notification to all the other Parties. A Party authorising CCS is then required to provide a report at the next OSPAR subsidiary body meeting and for each subsequent year after that. The report must be in the format specified in Appendix 1 to Decision 2007/2.
The Guidelines provide 'generic guidance' for Parties and their relevant authorities when they come to applications for permits to undertake CCS activities. The Guidelines stress that, although not all of their elements will be relevant to every project considered, Parties are obliged to ensure that they have been 'applied to the extent possible' when considering applications. The Framework for Risk Assessment and Management of CO2 Streams in Geological Formations (FRAM) forms a part of the Guidelines, and provides Parties with an 'iterative process' that should be used to ensure the continual improvement of a CCS project throughout its lifetime.