THE USE OF IMO INSTRUMENTS IN THE PROTECTION OF SENSITIVE MARINE

AREAS AND SPECIES FROM INTERNATIONAL SHIPPING IMPACTS

ALDO CHIRCOPCANADA RESEARCH CHAIR IN MARITIME LAW & POLICY

SCHULICH SCHOOL OF LAW, DALHOUSIE UNIVERSITY

PRESENTED AT INTERNATIONAL CONFERENCE ON HIGH SEAS GOVERNANCE: GAPS AND CHALLENGES, SINGAPORE, 24-25 APRIL 2017

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OUTLINE

1. Introduction

2. MARPOL special areas

3. PSSAs

4. Application to high seas?

5. Conclusion

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1. INTRODUCTION

• IMO and sustainable shipping:

• Vessel marine pollution prevention (oil, noxious liquids, sewage, garbage, anti-fouling systems, responsible management)

• Vessel air pollution prevention (NOx, SOx, PM, GHGs)

• Vessel impacts (sensitive areas, exotics, biofouling, mammal strikes, noise)

• Others (ship recycling, salvage, places of refuge, preparedness and response)

• Focus:

• Area-based management tools:

• MARPOL special areas

• Particularly sensitive sea areas (PSSAs) & associated protective measures (APMs)

• Applications to high sea areas

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2. MARPOL SPECIAL AREASStatus of convention

Instrument Year

Adopted

Year in

Force

Years to

Force

State

Parties

Global

Tonnage

MARPOL Convention/

Protocol

17/02/1978 02/10/83 6 154 99.15%

Annexes I & II 17/02/1978 02/10/83 6 154 99.15%

Annex III 17/02/1978 01/07/92 14 146 98.55%

Annex IV 17/02/1978 27/09/03 25 138 91.42%

Annex V 17/02/1978 31/12/88 10 151 98.73%

Protocol 1997/Annex VI 26/09/1997 19/05/05 8 87 96.14%

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Context of special areas: MARPOL’s regulatory scope

• Global, universal standards and ‘no more favourable treatment’

• Largely functional, rather than spatial (‘ships’ on international voyages)

• Layered approach to regulation: some areas receive higher protection (zero discharges or very low concentrations)

• Primary role of flag State; roles for port and coastal States

• Provision of port reception facilities for wastes

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Definitions

Special area:

• ‘a sea area where for recognized technical reasons in relation to its oceanographical and ecological condition and to the particular character of its trafficthe adoption of special mandatory methods for the prevention of sea pollution by oil is required’

Emission control area:

• ‘where the adoption of special mandatory measures for emissions from ships is required to prevent, reduce and control air pollution from NOx or SOx and particulate matter or all three types of emissions and their attendant adverse impacts on human health and the environment.’

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MARPOL Special Areas & Emission Control Areas

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MARPOL special area criteria (IMO SA Guidelines)Oceanographic conditions Ecological conditions Vessel traffic

characteristicsThe area possesses

oceanographic conditions

which may cause the

concentration or retention of

harmful substances in the

waters or sediments of the

area, including:

particular circulation

patterns (e.g., convergence

zones and gyres) or

temperature and salinity

stratification;

long residence time caused

by low flushing rates;

extreme ice state; and

adverse wind conditions.

The area possesses ecological conditions

indicating that protection of the area from

harmful substances is needed to preserve:

depleted, threatened or endangered marine

species;

areas of high natural productivity (such as

fronts, upwelling areas, gyres);

spawning, breeding and nursery areas for

important marine species and areas

representing migratory routes for seabirds and

marine mammals;

rare or fragile ecosystems such as coral reefs,

mangroves, seagrass beds and wetlands; and

critical habitats for marine resources including

fish stocks and/or areas of critical importance

for the support of large marine ecosystems.

The sea area is used by ships to

an extent that the discharge of

harmful substances by ships

when operating in accordance

with the requirements of

MARPOL for areas other than

special areas would be

unacceptable in the light of the

existing oceanographic and

ecological conditions in the

area.

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Annexes Special areas Adopted In force EffectivityI: Oil (10) Mediterranean Sea 02/11/73 02/10/83 02/10/83

Baltic Sea 02/11/73 02/10/83 02/10/83

Black Sea 02/11/73 02/10/83 02/10/83

Red Sea 02/11/73 02/10/83 Not in effect

Gulfs’ area 02/11/73 02/10/83 01/08/08

Gulf of Aden 01/12/87 01/04/89 Not in effect

Antarctic area 16/11/90 17/03/92 17/03/92

North West European waters 25/09/97 01/02/99 01/08/99

Oman area (Arabian Sea) 15/10/04 01/01/07 Not in effect

Southern South African waters 13/10/06 01/03/08 01/08/08

II: Noxious liquid

substances (1) Antarctic area 30/10/92 01/0794 01/07/94

IV: Sewage (1) Baltic Sea 15/07/11 01/01/13 Not in effect

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Annexes Special area/ECA Adopted In force EffectivityV: Garbage (8) Mediterranean Sea 02/11/73 31/12/88 01/05/09

Baltic Sea 02/11/73 31/12/88 01/10/89

Black Sea 02/11/73 31/12/88 Not in effect

Red Sea 02/11/73 31/12/88 Not in effect

Gulfs’ area 02/11/73 31/12/88 01/08/08

North Sea 17/10/89 18/02/91 18/02/91

Antarctic area 16/11/90 17/03/92 17/03/92

Wider Caribbean region 04/07/91 04/04/93 01/05/11

VI: Air

pollution (6 in

3/4 regions)

Baltic Sea (SOx) 26/09/97 19/05/05 19/05/06

North Sea (SOx) 22/07/05 22/11/06 22/11/07

North American (SOx & PM) 26/03/10 01/08/11 01/08/12

North American (NOx) 26/03/10 01/08/11 01/01/16*

US Caribbean Sea (SOx/PM) 26/07/11 01/01/13 01/01/14

US Caribbean Sea (NOx) 26/07/11 01/01/13 01/01/16* (c) Chircop 2017

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3. PSSAs

Definition

• a marine area ‘that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerableto damage by international shipping activities’

Distinguished from other tools

• Adopted under the IMO’s general authority, rather than a specific convention

• Are not adopted by amending a convention, like MARPOL special areas

• Can be designated in principle (precautionary?) & accompanied by APMs

• APMs can be mandatory or recommended

• May involve measures other than pollution prevention, but may include special areas

• Different from LOS Convention Art 211(6) special mandatory measure, but latter may be an APM (c) Chircop 2017

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Particularly Sensitive Sea Areas (16)

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PSSA Year Proponents Great Barrier Reef 1990 Australia

Sabana-Camaguey Archipelago 1997 Cuba

Wadden Sea 2002 Denmark, Germany, Netherlands

Florida Keys sea area 2002 United States

Malpelo Island 2002 Colombia

Paracas National Reserve 2003 Peru

Western European Area 2004 Belgium, France, Ireland, Portugal, Spain and UK

Torres Strait (GBR PSSA extension) 2005 Australia, Papua New Guinea

Canary Islands 2005 Spain

Galapagos Archipelago 2005 Ecuador

Baltic Sea (excluding Russian waters) 2005 Denmark, Estonia, Finland, Germany, Latvia,

Lithuania, Poland, Sweden

Papahānaumokuākea Marine National Monument (Hawaii) 2008 United States

The Strait of Bonifacio 2011 France, Italy

Saba Bank, North-eastern Caribbean 2012 The Netherlands

Southwest part of Coral Sea (extension to GBR PSSA) 2015 Australia

The Jomard Entrance 2016 Papua New Guinea

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Requirements for PSSA designation

1. The proposed area has to have particular attributes that attest to its sensitivity.

2. The proposed area must be vulnerable to international shipping activities.

3. The protection of the area demands the use of tools that are within the IMO’s competence.

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PSSA criteria (IMO PSSA Guidelines)Ecological cluster Social, cultural and

economic cluster

Scientific and

educational cluster

(1) Uniqueness or rarity

(2) Critical habitat

(3) Dependency

(4) Representativeness

(5) Diversity

(6) Productivity

(7) Spawning or breeding grounds

(8) Naturalness

(9) Integrity

(10) Vulnerability

(11) Bio-geographical importance

(12) Economic benefit

(13) Recreation

(14) Human

dependency

(15) Research

(16) Baseline and

monitoring studies

(17) Education

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Vulnerability factors (IMO PSSA Guidelines)

Vessel traffic characteristics Physical factors Operational factors – Types of maritime activities (e.g.

small fishing boats, small pleasure craft, oil and gas

rigs) in the proposed area that by their presence may

reduce the safety of navigation.

Vessel types – Types of vessels passing through or

adjacent to the area (e.g., high-speed vessels, large

tankers, or bulk carriers with small under-keel

clearance).

Traffic characteristics – Volume or concentration of

traffic, vessel interaction, distance offshore or other

dangers to navigation, are such as to involve greater

risk of collision or grounding.

Harmful substances carried – Type and quantity of

substances on board, whether cargo, fuel or stores,

that would be harmful if released into the sea.

Hydrographical – Water depth, bottom and coastline

topography, lack of proximate safe anchorages and

other factors which call for increased navigational

caution.

Meteorological – Prevailing weather, wind strength

and direction, atmospheric visibility and other factors

which increase the risk of collision and grounding and

also the risk of damage to the sea area from

discharges.

Oceanographic – Tidal streams, ocean currents, ice,

and other factors which increase the risk of collision

and grounding and also the risk of damage to the sea

area.

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Other factors

• Evidence of threats

• History of incidents (e.g., casualties, groundings, spills)

• Potential shifting of risks from one area of the marine environment to another as a result of designation

• Other environmental stressors (e.g., fishing, other traffic, pollution, etc.)

• Measures already in place (e.g., marine protected area, infrastructure and services)

• Size is relative

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In practice, most PSSAs carry multiple protections …

National MPA, marine

sanctuary, national

monument,

etc.

International status, e.g.: WHC site, Biosphere

reserve, EBSA Ramsar site,

MARPOL special area,

etc.

PSSA isadditional

protection –area, buffer and APMs

Necessity

Proportionality

Legality

Efficiency

Effectiveness

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APMs consist of least restrictive routeing, reporting and other measures that address the particular risks and hazards

Routeing (SOLAS) Reporting (SOLAS) Other Areas to be avoided Deep water routes Established direction of traffic flow Inshore traffic zones Precautionary areas Recommended direction of traffic flow Recommended routes Recommended tracks Roundabouts Traffic lanes Traffic separation schemes Two-way routes

Established by a government after accept by IMO as SOLAS compliant

Radar surveillance Interactive ship/shore

reporting (mandatory or recommended)

MARPOL special areas Special mandatory

measure under LOSConvention Art 211(6)

Measure under another IMO instrument (i.e., has legal basis, e.g., COLREGs, weather routeing)

Others uniquely fashioned for area (e.g., pilotage, towage)

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4. HIGH SEAS APPLICATIONS

• LOS considerations:

• High seas locations:

• Superjacent the extended continental shelf

• Superjacent the international seabed area

• High seas are areas beyond national jurisdiction

• High seas are subject to fundamental ‘freedoms’, including navigation

• Exclusive jurisdiction of the flag State over its ships

• MARPOL consideration:

• Port State inspections apply also to MARPOL infractions on the high seas

• Oceanographic considerations:

• High seas are generally deep, open waters (with the exception of polar waters) and high energy environments

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(a) Potential factors in favour

MARPOL special areas

• Convention: general focus on ‘ships’ on ‘international voyages’

• Annexes’ definition: ‘sea area’ does not exclude high seas

• 2013 Guidelines: area may enclose an entire enclosed or semi-enclosed sea

• Practice: Mediterranean, Wider Caribbean, Antarctic waters include high seas

• Polar waters definition includes Central Arctic Ocean

• Scientific criteria potentially include high sea upwellings, migratory routes, gyres, etc.

PSSAs

• IMO Convention and PSSA Guidelines do not exclude high sea areas (but none exist in high sea areas)

• PSSA criteria apply to areas within and beyond territorial sea limits

• Coastal State may wish to protect ecosystems/sedentary species of the extended continental shelf

• Only one criterion needs to be met

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(b) Potential factors against

MARPOL special areas

• Establishing that oceanography of high sea area causes concentration/retention of harmful substances in the waters or sediments (gyre or convergence zone)

• Further restriction on the freedom of navigation is likely to be opposed by major maritime States and some large registers

• Proponent State(s)? Increase of onboard waste? Port reception facilities?

• Compliance strategy? (mitigated by port State control and automated/passive location/reporting systems)

PSSAs

• Ecological values to protect from direct shipping threats (marine mammals?)

• Social, cultural and economic criteria might not be easy to meet (but scientific and educational criteria might)

• Disclosure of protective action at the national level

• Functionality of APMs on the high seas

• Proponent State(s)?

• Compliance strategy? (mitigated by automated/passive location/reporting systems)

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5. CONCLUSION

• IMO regulation must respect delicate jurisdictional and user balances in LOS Convention

• MARPOL special areas:

• If not all special areas are effective, why create more? Compelling need?

• New MARPOL special areas for high sea areas are theoretically possible, but will need to demonstrate that current standards are insufficient for the proposed areas and port facilities are available

• PSSAs:

• Application in high sea areas is in theory possible if the criteria can be met

• Difficulty in establishing nexus between sensitive area’s vulnerability and high seas shipping

• APM(s) will be tested against a high threshold because of freedom of navigation

• Periodic review and reporting?

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