4.5 Conclusions
The PSSA concept has developed considerably since its inception in 1978. The concept has clearly been influenced by the MPA concept and, in many respects, can be considered as a specialised type of MPA. However, while subsequent reviews of the PSSA Guidelines have considerably clarified and amplified the scope of the PSSA concept, a fundamental problem, and a cause of considerable confusion, appears to be the lack of a clear legal basis for PSSAs in their own right. Despite giving effect to a number of provisions of the LOSC, the PSSA concept has no legal basis in any international convention. This lack of a clear legal basis has resulted in some considerable concerns over the application and future development of the PSSA concept.
Notwithstanding this, there is considerable evidence that the PSSA concept provides the IMO and its members with a comprehensive management tool with which to give effect to obligations under a range of international conventions with a focus on the protection of the marine environment and marine biological diversity. In this regard, it is argued by many that the concept has considerable utility as one of the measures available to the IMO and its members to protect vulnerable marine habitats.
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References
S. Raaymakers, “Maritime transport & high seas governance — Regulation, risks and the IMO regime,” in Proceedings of the International Workshop on Governance of High Seas Biodiversity Conservation (Cairns, 17–20 June 2003), p. 20.
See for example A.C. De Fontaubert, D.R. Downes and T. Agardy, Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal Habitats, IUCN Environmental Policy and Law Paper No. 32. (Gland, Switzerland: IUCN, 1996), p. 18; L. de La Fayette, “The marine environment protection committee: The conjunction of the law of the sea and international environmental law,” International Journal of Marine and Coastal Law 16 (2001), p. 186; OSPAR Document ICG-MPA 05/8/1-E, Legal Basis for Marine Protected Areas on the High Seas, submitted by A. Kirchner, meeting of the OSPAR Commission Intersessional Correspondence Group on Marine Protected Areas (ICG-MPA), (Isle of Vilm, Germany, 4–8 April 2005), p. 5; Numerous interventions by NGOs at the MEPC make clear references to the role the PSSA concept can play in giving effect to obligations under the CBD — Kristina Gjerde personal communication; There is also clear recognition by the CBD Secretariat and State Parties, that PSSAs have a role to play in the protection of marine biodiversity. See for example the recent paper concerning the establishment of MPAs on the High Seas, prepared for the Ad hoc Open-Ended Working Group on Protected Areas; the paper inter alia invites members of the IMO to consider further extending PSSA designations to marine areas beyond the limits of national jurisdiction and, in proposing PSSAs for approval to take into account areas of importance for biodiversity: UNEP/CBD/WG-PA/1/2, Options for cooperation for the establishment of marine protected areas in marine areas beyond the limits of national jurisdiction, 20 April 2005, p. 4.
De La Fayette, p. 186 (note 2 above); T. Agardy, Marine Protected Areas and Ocean Conservation, (Georgetown, Texas: R.G. Landes Co., 1997), p. 100; G. Kelleher, C. Bleakley and S. Wells, A Global Representative System of Marine Protected Areas: Volume 1 Antarctic, Arctic, Mediterranean, Northwest Atlantic, Northeast Atlantic and Baltic (Washington DC: The World Bank, 1995), p. 3.
De La Fayette, p. 186 (note 2 above); T. Agardy, Marine Protected Areas and Ocean Conservation, (Georgetown, Texas: R.G. Landes Co., 1997), p. 100; G. Kelleher, C. Bleakley and S. Wells, A Global Representative System of Marine Protected Areas: Volume 1 Antarctic, Arctic, Mediterranean, Northwest Atlantic, Northeast Atlantic and Baltic (Washington DC: The World Bank, 1995), p. 3.
A. Chircop, “Particularly sensitive sea areas and international navigation rights: Trends, controversies and emerging issues,” in Iwan Davies, (ed) Issues in International Commercial Law (Aldershot, UK: Ashgate Publishing, 2005), p. 231.
J. Roberts, T. Workman, M. Tsamenyi and L. Johnson, “The Western European PSSA: A ‘politically sensitive sea area’,” Marine Policy 29 (2005), p. 432.
See MEPC 36/21/4 Report of the third international meeting of legal experts on particularly sensitive sea areas, submitted by the IMO Secretariat, 4 August 1994, paras. 10–17; K. M. Gjerde and J. S. H. Pullen, “Cuba’s Sabana-Camagüey Archipelago: The second internationally recognised particularly sensitive sea area,” The International Journal of Marine and Coastal Law 13 (1998), p. 249; and Anon, “Particularly sensitive sea areas: Using a comprehensive planning tool to protect habitats from shipping,” MPA News 3 (2002), p. 2.
K. M. Gjerde, “Protecting particularly sensitive sea areas from shipping: A review of IMO’s new PSSA guidelines,” in H. Thiel and J. A. Koslow (eds) Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas — Scientific Requirements and Legal Aspects, BfN-Skripten 43 (Bonn: German Federal Agency for Nature Conservation, 2001), pp. 125–126; Gjerde and Pullen, p. 252 (note 6 above); See also MEPC 36/21/4, para. 33 (note 6 above).
See for example MEPC 36/21/4, paras. 14–5 (note 6 above).
The MV Braer was a Liberian registered oil tanker carrying a cargo of gullfaks crude which foundered and grounded off Garths Ness in Shetland in January 1993. As a result of the grounding the entire cargo of some 83,000 tonnes of oil was lost. The area around Shetland is widely recognised as having high biodiversity values due to the high productivity of the area and the large number of sea birds that feed in Shetland waters. See generally L. M. Warren and M. W. Wallace, “The Donaldson inquiry and its relevance to particularly sensitive sea areas,” International Journal of Marine and Coastal Law 9 (1994), p. 523.
HMSO, Safer Ships, Cleaner Seas. Report of Lord Donaldson’s Inquiry into the Prevention of Pollution from Merchant Shipping. (London: HMSO, 1994).
Ibid, para. 14.120.
Ibid, para. 14.119.
Paul Nelson t(AMSA) personal communication, January 2004.
Roberts et al, p. 434 (note 5 above).
E.J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, (Kluwer Law International, 1998), p. 443.
Lindy Johnson, (NOAA) personal communication, November 2004.
See for example: MSANZ, Review of the Voluntary Vessel Routeing Code for Shipping in New Zealand Coastal Waters, A consultation document prepared by the Maritime Safety Authority of New Zealand June 2001. The review applied a semi-quantitative approach to estimate the relative impact of oil spills around the coastline using environmental, economic and social/amenity indicators; The UK Department of Environment, Transport and the Regions (DETR) used a risk based approach to identify Marine Environment High Risk Areas around the coastline. See Safetec UK, Identification of the Environmental High Risk Areas (MEHRA’s) in the UK, (Department for Environment, Transport and Regions, London, 1999); While the Great Barrier Reef is designated as a PSSA, authorities have applied risk assessment to identify a number of highly vulnerable areas within the PSSA that may warrant further action to protect them. See: Oil Spill Risk Assessment for the Coastal Waters of Queensland and the Great Barrier Reef Marine Park. Report prepared by Queensland Transport and the Great Barrier Reef Marine Park Authority August 2000, pp. 39–41. Available at http://www.msq.qld.gov.au/qt/msq.nsf/index/oilspill_risk.
G. Peet, “Particularly sensitive sea areas — a documentary history,” International Journal of Marine and Coastal Law 9 (1994), p. 475.
TSPP/CONF/5, Consideration of draft instruments on tanker safety and pollution prevention and related recommendations and resolutions, submitted by Sweden, 13 January 1978, para. 1.
TSPP Resolution 9. Protection of Particularly Sensitive Sea Areas. Adopted 16 February 1978.
Peet, p. 475 (note 18 above). Refer also to Sect. 3.4.2.2 above.
Despite the reference to the dumping of wastes, the PSSA concept has never been applied to the deliberate dumping of waste at sea. The regime addressing dumping of waste is established by the London Convention on Dumping. The third consultative meeting of the Contracting Parties to the London Convention considered TSPP Resolution 9, and while agreeing that’ sensitive zones’ could be identified by criteria relating to the control of undesirable effects of dumping in areas outside specific dumping sites, considered that dumping was already prohibited in particularly sensitive areas. As such, the meeting concluded that a more effective way forward in this regard was to request GESAMP develop further scientific criteria for the selection of sites which will minimise the effect on the marine environment. See MEPC 23/16/2, Identification of particularly sensitive sea areas, submitted by the IMO Secretariat, 6 June 1986, paras. 7–17.
A. Blanco-Bazan, “The IMO guidelines on particularly sensitive sea areas (PSSAs): Their possible application to the protection of underwater cultural heritage,” Marine Policy 20 (1996), p. 344; See also Peet, generally (note 18 above) for an overview of the historical development of the PSSA concept and the IMO guidelines.
Two papers were submitted to MEPC by the Friends of the Earth International (MEPC 23/16/1, Identification of particularly sensitive area, submitted by Friends of the Earth International, 6 June 1986) and the IUCN (MEPC 23/INF.16, Existing treaty and legislative practice concerning special areas in the sea, submitted by IUCN, 6 June 1986) respectively, setting out a possible way forward for the development and implementation of the PSSA concept.
Peet, p. 447 (note 18 above).
IMO Circular MEPC/Circ.171 on Particularly Sensitive Sea Areas. August 1986.
For a summary of the responses to this request see MEPC 25/INF.7, Response to MEPC/Circ.171 and MEPC/Circ.171/Corr.1 on particularly sensitive sea areas, 9 September 1987.
See MEPC 30/19/4, Identification of particularly sensitive sea areas, including development of guidelines for designating special areas under Annexes I, II and V, submitted by Australia, 19 September 1990; MEPC 30/19/4/Corr.1, Identification of particularly sensitive sea areas, including development of guidelines for designating special areas under Annexes I, II and V, submitted by Australia, 19 September 1990; and MEPC 30/INF.12, Identification of the Great Barrier Reef region as a particularly sensitive sea area, submitted by Australia, 17 September 1990.
IMO Resolution MEPC.44(30). Identification of the Great Barrier Reef Region as a Particularly Sensitive Sea Area. Adopted 16 November 1990.
IMO Resolution MEPC.45(30). Protection of the Great Barrier Reef Region. Adopted 16 November 1990.
IMO Resolution A.720(17). Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas. Adopted 6 November 1991. The 1991 Guidelines defined a PSSA as: An area that needs special protection through action by the IMO because of its significance for recognised ecological, socio-economic or scientific reasons and which may be vulnerable to damage by international shipping. This definition was retained until the most recent amendments to the PSSA Guidelines, adopted in December 2005. See Sect. 1.1.1.1 above.
K. M. Gjerde and D. Ong, “Protection of particularly sensitive sea areas under international marine environment law,” Marine Pollution Bulletin 26 (1993), p. 10.
Peet, pp. 493–494 (note 18 above). That such confusion would arise had been previously identified by the third international meeting of legal experts. See MEPC 36/21/4, para. 8 (note 6 above).
De La Fayette, p. 187 (note 2 above). See for example: MEPC 34/20, Particularly sensitive sea areas, submitted by Friends of the Earth International, 13 April 1993; and MEPC 36/21/1, Particularly sensitive sea areas, submitted by Friends of the Earth International, 29 July 1994.
See MEPC 40/21, Report of the Marine Environment Protection Committee on its fortieth session, 27 October 1997, para. 7.9. Support for revision of the guidelines by the correspondence group included Australia, Brazil, Egypt, Norway, Singapore, United Kingdom, WWF and IUCN. Notably, the USA objected to the revision, suggesting instead that amplification and clarification of the 1991 Guidelines was all that was required. See MEPC 41/6/2, Interim report of the correspondence group, submitted by Australia, 30th January 1998.
Gjerde & Pullen, p. 249 (note 6 above).
See MEPC 43/6/4, Revision of resolution A.720(17), submitted by Cuba, 2 April 1999. The paper included an annex which provided additional information in support of its applications for PSSA designation.
Gjerde & Pullen, p. 250 (note 6 above).
This was the first time that the ‘in principle’ concept had been applied to PSSAs. The concept gained traction, particularly with NGOs who saw it as a mechanism of identifying PSSAs before the APMs had formally been adopted. This issue has recently been revisited as part of a broader review of the PSSA Guidelines, as many States are uncomfortable about the manner in which the ‘in principle’ concept has been utilised to apply pressure for the approval of PSSAs with questionable APMs. See below at Sect. 7.3). See for example MEPC 52/8, Proposed amendments to assembly resolution A.927(22) to strengthen and clarify the guidelines for the identification and designation of particularly sensitive sea areas, submitted by the United States, 9 July 2004, para. 7.
MEPC 41/6, Improving the procedures for identification of particularly sensitive sea areas and the adoption of associated protective measures, submitted by the United States, 23 December 1997. See de La Fayette, p. 188 (note 2 above) for a discussion of the background and reaction to this submission.
IMO Resolution A.885(21). Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures and Amendments to the Guidelines Contained in Resolution A.720(17). Adopted 25 November 1999. Para. 2.1 of the resolution defines an associated protective measure as: an international rule or standard that falls within the purview of the IMO and regulates international maritime activities for the protection of the area at risk.
Ibid.
IMO Resolution A.927(22) Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas. Adopted 29 November 2001. For a comprehensive analysis of the review process and the various actors that participated see de La Fayette, pp. 187–194 (note 2 above). It should be noted at this point that, although the 2001 Guidelines have themselves been amended, through a revised resolution adopted by the IMO Assembly in 2005, the majority of PSSAs designated to date have been done so according to the 2001 Guidelines. Thus, for the purposes of this book, most of the discussion relating to the “PSSA Guidelines” relates to the 2001 Guidelines. A detailed discussion on the subsequent amendments and adoption of Resolution A.982(24) is provided in Sect. 7.3 below.
L. de La Fayette, “Protection of the marine environment in 2000,” Environmental Policy and Law 31 (2001), p. 143.
For a detailed analysis of the revisions contained in the 2001 Guidelines see generally Gjerde J. A. Koslow (eds) Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas — Scientific Requirements and Legal Aspects, BfN-Skripten 43 (Bonn: German Federal Agency for Nature Conservation, 2001) (note 7 above).
Gjerde, p. 124 J. A. Koslow (eds) Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas — Scientific Requirements and Legal Aspects, BfN-Skripten 43 (Bonn: German Federal Agency for Nature Conservation, 2001) (note 7 above).
Gjerde, pp. 126–127 J. A. Koslow (eds) Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas — Scientific Requirements and Legal Aspects, BfN-Skripten 43 (Bonn: German Federal Agency for Nature Conservation, 2001) (note 7 above).
Gjerde, at p. 127 J. A. Koslow (eds) Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas — Scientific Requirements and Legal Aspects, BfN-Skripten 43 (Bonn: German Federal Agency for Nature Conservation, 2001) (note 7 above). argues that this should result in greater awareness of and compliance with the APMs.
See Peet, pp. 481–482 (note 18 above). The term ‘designation’ was initially proposed but was rejected after concerns were raised that the term designation in the context of PSSAs might create confusion since it suggests a legal status for PSSAs which did not exists. See also Molenaar, p. 438 (note 15 above) who notes that the term ‘identify’ signifies that a PSSA does not have an explicit legal status.
Gjerde & Ong, p. 9 (note 34 above).
See generally K. M. Gjerde and D. Freestone, “Particularly sensitive seas areas — An important environmental concept at a turning point,” International Journal of Marine and Coastal Law 9 (1994).
Ibid, p. 431. It should be noted that the experts meeting reviewed the Guidelines as set out in resolution A.720(17). As noted above these have been superseded by more recent resolutions. However, the conclusions of the meetings remain relevant in the current context since few of the recommendations have been given effect to by the IMO.
Gjerde & Ong, p. 10 (note 34 above).
MEPC 33/INF.27, Report of the international meeting of legal experts on particularly sensitive sea areas, University of Hull, 20–21 July 1992, submitted by the IMO Secretariat, 1 September 1992, para. 4.2.1.
Gjerde & Freestone, p. 433 (note 59 above).
For a full overview of the outcomes of the three meetings refer to the reports of the individual meetings: MEPC 33/INF.27 (note 63 above); MEPC 35/INF.17, Report of the second international meeting of legal experts on particularly sensitive sea areas, Nyköping, Sweden, 2–4 June 1993, submitted by the IMO Secretariat, 12 January 1994; MEPC 36/21/4 (note 6 above).
MEPC 33/INF.27, para. 5.3.1 (note 63 above).
Ibid, para. 10.2.1.
MEPC 33/INF.27, para. 10.3.2 (note 63 above).
Ibid.
MEPC 33/INF.27, para. 11.2.4 (note 63 above).
Gjerde and Freestone, p. 432 (note 59 above).
MEPC 36/21/4, para. 34 (note 6 above).
MEPC 36/21/4, para. 5.2.2 (note 6 above).
Ibid, para. 37.
P. Nelson, “Protecting areas that are vulnerable to damage by maritime activities: The reality of particularly sensitive sea areas,” in Proceedings of the East Asian Seas Congress, (Putrajaya, Malaysia, 8–12 December 2003), pp. 14–15.
Chircop, at p. 230 (note 4 above) notes that the IMO’s general authority in this regard stems from its own constitutive instrument. See Article 1(a) of the IMO Convention. According to the Division for Ocean Affairs and the Law of the Sea of the United Nations (DOALOS), the PSSA Guidelines conform to the requirements of Article 237 of the LOSC, as a subsequent agreement adopted by the IMO Assembly in furtherance of the general principles set forth in the Convention. See LEG 87/WP.3, Comments made by the Division for Ocean Affairs and the Law of the Sea of the United Nations (DOALOS) in connection with issues raised in document LEG 87/16/1, submitted by DOALOS, October 2003, p. 1.
Peet, pp. 669–670 (note 18 above).
Anon, p. 2 (note 6 above).
De La Fayette, pp. 190–191 (note 2 above).
See for example: LEG 87/16/1 Designation of a Western European particularly sensitive sea area, submitted by Liberia, Panama, the Russian Federation, BIMCO, ICS, INTERCARGO, INTERTANKO and IPTA, 15 September 2003; Nelson, p. 14 (note 13 above) makes specific reference to Article 211(6)(a) under the heading “Legal Basis” whereas no reference is made to this Article in the context of APMs; On their official website, AMSA publishes a fact sheet on PSSAs which states under the heading of Legal Basis “Most important in respect of PSSAs, however, is Article 211(6)(a) which provides for States to submit to the [IMO]... proposals for special mandatory measures within their exclusive economic zone which require extra protection from vessel sourced pollution”.
Chircop, p. 225 (note 4 above).
Ibid, p. 227.
MEPC 43/6/2, Relationship between the 1982 United Nations Convention on the Law of the Sea and the IMO Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, submitted by DOALOS, 31 March 1999.
Similarly, Molenaar, p. 438 (note 15 above) notes that while Article 211(6) relates only to measures related to pollution, the PSSA Guidelines refer more generally to “damage by maritime activities”. Thus he argues that a PSSA utilises a broader range of measures than a’ special area’ under Article 211(6) can.
See also Chircop (note 4 above) at p. 224, who argues that the relationship between Article 211(6) and the PSSA concept “is not sufficiently clear”.
Molenaar, p. 442 (note 15 above).
MEPC 52/8, para. 6 (note 46 above).
Molenaar, p. 442 (note 15 above).
De La Fayette, pp. 155–238 (note 2 above).
Ibid, p. 191.
This example is discussed as a case study in detail in Sect. 6.2.1 below. For a detailed discussion of the various arguments in support of and opposing the proposal see generally Roberts et al (note 5 above).
LEG 87/16/1 (note 81 above).
Ibid, para. 8.
LEG 87/WP.3 (note 77 above).
See V. Frank, “Consequences of the Prestige sinking for European and international law,” International Journal of Marine and Coastal Law 20 (2005), p. 35.
Roberts et al, p. 439 (note 5 above).
Roberts et al, p. 439 (note 92 above). However, Molenaar argues that one cannot interpret that special areas should be confined to the EEZ since this would have the effect of giving coastal States more extensive competence within the EEZ than within their territorial seas-at p. 402 (note 15 above).
MEPC 49/22, Report of the Marine Environment Protection Committee on its fortyninth session. 8 August 2003, para. 8.2.1.7.
See PSSA Guidelines, para. 7.4.2.1 (note 50 above).
Frank, p. 37 (note 96 above).
PSSA Guidelines, para. 6.2 (note 50 above).
Resolution A.720(17) para. 1.3.7 (note 32 above).
Peet, p. 479 (note 18 above).
A set of these criteria was submitted to the 26th session of the MEPC for its consideration. See MEPC 26/17, Identification of particularly sensitive sea areas, including de velopment of guidelines for designating Special Areas under annexes I, II and V, submitted by the IMO Secretariat, 2 June 1988, Annex 2.
See MEPC 29/14/1, Draft criteria for designation of special and particularly sensitive areas, submitted by the IMO Secretariat, 15 December 1989.
See G. Kelleher and R. Kenchington, Guidelines for Establishing Marine Protected Areas, (IUCN, Gland, Switzerland, 1992), pp. 15–16; R.V. Salm, J.R. Clark and E. Siirila, Marine and Coastal Protected Areas: A Guide for Planners and Managers, 3rd Edition (IUCN, Washington DC, 2000), pp. 87–93. The GEEP was guided in the development of the criteria by the criteria developed by the IUCN for the identification of marine protected areas (See MEPC 29/14/1, note 107 above). Kelleher et al at p. 3 (note 3 above) suggest that the IUCN MPA criteria were simply adopted by the IMO for PSSAs.
See for example Salm et al (note 108 above).
See Chircop, p. 231 (note 4 above) who observes that: this minimalist requirement is cause for significant concern because virtually any area of the oceans subject to international navigation could qualify, and as a result the effect of providing special protection for very special places may be undermined.
MEPC 33/INF.27, para. 10.2.1 (note 63 above).
Salm et al, p. 87 (note 108 above).
Ibid, p. 43.
During the amendments to the 1991 Guidelines, WWF and IUCN separately raised the issue of updating the PSSA criteria to reflect priorities identified by the CBD. See MEPC 44/7/3, Consistency of the criteria for identification of PSSAs with UNCLOS, submitted by WWF, 21 December 1999; and MEPC 43/6/3, Identification and protection of Special Areas and particularly sensitive sea areas, submitted by IUCN, 2 April 1999.
United Nations General Assembly Resolution A/RES/47/191, Institutional arrangements to follow up the United Nations Conference on Environment and Development. Adopted at the 47th session of the UN General Assembly, 29 January 1993.
Report to the Commission on Sustainable Development in fulfilment of General Assembly Resolution 47/191 adopted on 22 December 1992. The report was approved by the 36th Session of the MEPC and was submitted as an information paper to the 37th session under the reference MEPC 37/INF.2, 6 February 1995.
Ibid, paras. 27–30.
MEPC 37/INF.2, para. 67 (note 116 above).
MEPC 44/7/2, Draft terms of reference for the Correspondence Group, submitted by Australia, 17 December 1999, Annex, para. 7.
Refer to paper UNEP/CBD/WG-PA/1/2, para. 10 (note 2 above). While, the specific reference to PSSA in this paper is in relation to the designation of high seas marine protected areas, it clearly highlights the relevance of the PSSA concept more generally in the context of the CBD and its members.
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(2007). The Particularly Sensitive Sea Area Concept. In: Marine Environment Protection and Biodiversity Conservation. Springer, Berlin, Heidelberg . https://doi.org/10.1007/978-3-540-37699-6_4
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