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PSSA Designation and Implementation of the PSSA Guidelines by the IMO

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Marine Environment Protection and Biodiversity Conservation

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References

  1. Unless otherwise stated, hereafter, any reference to the PSSA Guidelines means the 2001 Guidelines for the identification and designation of particularly sensitive sea areas contained within Annex 2 to 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.

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  2. PSSA Guidelines, para. 3.1 (note 1 above).

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  3. Ibid.

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  4. K. M. Gjerde, “Protecting particularly sensitive sea areas from shipping: A review of IMO’s new PSSA guidelines,” in H. Thiel & 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), p. 126; A detailed overview of the IMO requirements for a PSSA proposal is included in IMO circular MEPC/Circ.398 Guidance document for submission of PSSA proposals to IMO, 27 March 2003.

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  5. It should be noted that, while the PSSA Guidelines require member Governments to submit a proposal for at least one APM within two years of the approval in principle of the PSSA, where an area is afforded protection by existing measures, these may be accepted as APMs, provided it can be demonstrated how the existing measures provide the necessary protection. PSSA Guidelines, para. 7.2 (note 1 above).

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  6. The application should provide an explanation of the nature and extent of risk that international shipping activities pose to the environment of the proposed area and in particular should demonstrate the effects of such damage on the environmental characteristics of the area. PSSA Guidelines, para. 7.4.1.3 (note 1 above).

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  7. 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 5 above).

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  8. Refer to the definition of a PSSA. PSSA Guidelines, para. 1.2 (note 1 above).

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  9. PSSA Guidelines, para. 5.1 (note 1 above).

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  10. MEPC/Circ.398, para 3.4.3 (note 5 above).

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  11. PSSA Guidelines, para.7.1 (note 1 above).

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  12. Ibid, para. 7.2.

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  13. PSSA Guidelines, para. 7.4.2.1 (note 1 above).

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  14. The report of the third international meeting of legal experts on PSSAs also identified a number of potential new measures which could be proposed to the IMO as a measure that should be available as a ‘generally applicable measure’. These include: designated anchorage areas and methods; no anchorage zones; closure of routes to certain types of vessels or cargoes; speed restrictions; compulsory pilotage or tug escort to ensure safe navigation in or near PSSAs; prohibitions/restrictions on cargo transfer; required submission of pre-filed passage plans and adherence to time schedules; special under-keel clearance restrictions; regulation of offshore bunkering; prohibition of intentional discharges, including ballast water; seasonal closures to protect migrating marine mammals. 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, para. 34. Alternatively, where appropriate, certain measures could be proposed for adoption in the territorial sea or exclusive economic zone, if required by the special circumstances of the proposed PSSA. MEPC 46/6/1, Additional protection for particularly sensitive sea areas (PSSA), submitted by the IMO Secretariat, 19 January 2001, para 2.3.3.

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  16. Annex 1 to 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. “Guidelines for the designation of Special Areas under MARPOL 73/78” (Special Area Guidelines).

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  18. Special Area Guidelines, para. 2.7 (note 28 above). However, the Antarctic has been treated differently since wastes must be kept on board until ships have left the area.

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  20. Although, as noted in Sect. 4.4.1.2. above, Molenaar, argues that this interpretation is too restrictive since any measure that may be adopted for the EEZ must also be available in the territorial sea. Ibid, p. 439.

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  21. Kiselev, p. 245 (note 26 above).

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  22. Ibid.

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  23. MEPC 49/8/2, Draft guidance document on associated protective measures for particularly sensitive sea areas, submitted by WWF, 8 May 2003.

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  24. Ibid, para. 2.4.5.

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  25. See for example the report of the Lord Donaldson Inquiry which concluded that: pollution control and safety are very closely linked, because the best way to maintain safety and to prevent pollution is to preserve the integrity of the ship. HMSO, Safer Ships, Cleaner Seas. Report of Lord Donaldson’s Inquiry into the Prevention of Pollution from Merchant Shipping. (London: HMSO, 1994), para. 1.11.

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  26. For an overview of the application of ships routeing measures for environmental purposes see generally J. Roberts, “Protecting sensitive marine environments: The role and application of ships’ routeing measures,” International Journal of Marine and Coastal Law 20 (2005), pp. 97–121.

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  27. For a general discussion on this issue see G. Plant, “The relationship between international navigation rights and environmental protection: A legal analysis of mandatory ship traffic systems,” in H. Ringbom (ed) Competing Norms in the Law of Marine Environmental Protection (The Hague/Boston: Kluwer Law International, 1997), pp. 11–27.

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  28. T. Ilstra, “Maritime safety issues under the Law of the Sea Convention and their implementation,” in A.H Soons (ed) Proceedings of the 23rd Annual Conference of the Law of the Sea Institute (Honolulu: The Law of the Sea Institute, 1989), p. 219.

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  29. IMO Resolution A.720(17) Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas. Adopted 6 November 1991. Para. 4.

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  30. For a discussion of the history of this development see generally K. M. Gjerde and D. Ong, “Protection of particularly sensitive sea areas under international marine environment law,” Marine Pollution Bulletin 26 (1993), pp. 9–13.

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  31. MEPC 33/INF.27 Report of the international meeting of legal experts on particularly sensitive sea areas, University of Hull, 20–21 July 1992, 1 September 1992, para. 7.1.1.

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  32. Ibid, para. 7.1.4.

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  33. IMO Resolution A.572(14), General Provisions on Ships’ Routeing. Adopted 20th November 1985.

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  34. Para. 3.27 of NAV 39/31 confirms this view. NAV 39/31, Subcommittee on Safety of Navigation thirty-ninth session: Report to the Maritime Safety Committee. 29 September 1993.

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  35. Refer to Annex 3 of Resolution A.827(19) for the amended text for the GPSR: Resolution A.827(19) Ships Routeing. Adopted 23 November 1995.

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  36. IMO Resolution MSC.46(65) Adoption of amendments to the International Convention for the Safety of Life at Sea 1974. Adopted 16 May 1995. The amendments entered into force on January 1997.

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  37. See G. Peet, “Particularly sensitive sea areas-an overview of relevant IMO documents,” International Journal of Marine and Coastal Law 9 (1994), pp. 556–576.

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  38. See Roberts, pp. 157–159 (note 38 above).

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  39. NAV 49/3, Routeing of ships, ship reporting and related matters: Proposed area to be avoided, submitted by New Zealand, 16 January 2003.

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  40. The Poor Knights Islands are a group of 12 islands of volcanic origin, situated approximately 15 nautical miles offshore to the east of mainland New Zealand. A detailed description of the islands is provided in: Environmental Impact Report for the Poor Knights Islands Marine Reserve (Wellington, NZ: Fisheries Management Division of the Ministry of Agriculture and Fisheries, July 1979). The wider area of the area to be avoided is characterised by extensive areas of mangrove and wetland habitat of outstanding value to wildlife.

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  41. New Zealand Marine Oil Spill Risk Assessment 2004 — Report. Prepared for the Director of Maritime Safety by URS New Zealand Ltd. December 2004.

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  42. See MSA NZ, 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, (Wellington, NZ: June 2001).

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  43. A limited area to be avoided was established around the Three Kings Islands, off the northern most point of New Zealand, in 1993. NAV 39/3/2, Routeing of ships: Area to be avoided in the Three Kings Islands, submitted by New Zealand, 1 February 1993.

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  45. MSC 63/7/19, Comments on mandatory ship reporting, submitted by Japan, 25 March 1994, paras. 3-4; NAV 40/25, Subcommittee on Safety of Navigation fortieth session: Report to the Maritime Safety Committee., 23 September 1994, para. 4.19. See also IMO Circular SN/Circ.234 with respect to the mandatory area to be avoided off the northeast coast of the North Island of New Zealand. 28 May 2004. Ref. T2-NAVSEC/2.7.1.

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  46. The Sub-committee agreed to approve the proposed area to be avoided and invited the MSC to adopt the measure. See NAV 49/19, Subcommittee on Safety of Navigation forty-ninth session: Report to the Maritime Safety Committee, 28 July 2003, para. 3.26.

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  47. Ibid, para 3.27.

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  48. G. Plant, “A European lawyer’s view of the Government response to the Donaldson Report,” Marine Policy 19 (1995), p. 464.

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  49. IMO, Ships’ Routeing 7 th Edition. Updated to include amendments adopted up to December 2003. (London: IMO, 2003).

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  50. Ilstra, p. 229 (note 41 above).

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  51. Lindy Johnson (NOAA) personal communication.

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  52. For a comprehensive overview of the development and application of VTS see generally T. Hughes “Vessel traffic services (VTS): are we ready for the new millennium?,” Journal of Navigation 51 (1998), pp. 404–420; A basic summary of VTS is also provided on the IMO website http://www.imo.org/Safety/mainframe.asp?topic_id=387.

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  53. See MEPC 49/8/2, Draft guidance document on associated protective measures for particularly sensitive sea areas, submitted by WWF, 8 May 2003, para. 2.3.

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  54. AIS is a shipboard broadcast transponder system operating in the VHF maritime band that is capable of sending and receiving ship information such as identification, position, heading, speed, ship length, beam, type, draft and hazardous cargo information, to other ships and to shore. Pursuant to Regulation 19 of SOLAS Chapter V all ships of 300 gross tonnage and upwards engaged on international voyages, cargo ships of 500 gross tonnage and upwards not engaged on international voyages and all passenger ships irrespective of size are required to carry AIS capable of providing information about the ship to other ships and to coastal authorities automatically. As a result of amendments to SOLAS brought about by the entry into force of the International Ship and Port Facility Security Code (ISPS Code), ships fitted with AIS shall maintain AIS in operation at all times except where international agreements, rules or standards provide for the protection of navigational information. See IMO Circular SN/Circ.227, Guidelines for the installation of a Shipborne Automatic Identification System (AIS). 6 January 2003. Reference T2/8.02; and IMO Resolution A.917(22), Guidelines for the onboard operational use of shipborne automatic identification systems (AIS). Adopted 19 November 2001; International Ship and Port Facility Security Code, adopted 12 December 2002. In force 1 July 2004. SOLAS/CONF.5/32 Conference Resolution 1 and related amendments to the 1974 SOLAS Convention); SOLAS/CONF.5/34 Conference Resolution 2 and related amendments to the 1974 SOLAS Convention and Conference Resolutions 3 to 11 (ISPS Code).

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  55. IMO Resolution A.857(20), Guidelines for Vessel Traffic Services. Adopted 27 November 1997.

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  56. Ibid, para. 3.2.2.

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  57. Resolution A.857(20) at para. 2.2.2 (note 76 above) also notes that a contracting government, in planning and establishing a VTS, should ensure that a legal basis for the operation of a VTS is provided for and that the VTS is operated in accordance with national and international law.

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  58. Resolution A.857(20), para. 2.6.2 (note 76 above).

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  59. Hughes, p. 404 (note 70 above).

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  61. MEPC 46/6/1, para 2.3.3 (note 19 above).

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  62. IMO Resolution MSC.43(64), Guidelines and Criteria for Ship Reporting Systems. Adopted 9 December 1994.

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  63. Hughes, p. 409 (note 70 above). For details of both systems, see the AUSREP and REEFREP Booklet available online at http://www.amsa.gov.au/Shipping_Safety/AUSREP_and _REEFREP/AUSREP_and REEFREP_booklet.asp.

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  64. NAV 44/14, Subcommittee on Safety of Navigation forty-fourth session: Report to the Maritime Safety Committee, 4 September 1998, Annex 8, para. 1.

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  65. PSSA Guidelines, para. 8.2 (note 1 above).

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  66. MEPC, MSC and the NAV Sub-committee all have a formal role to play in the consideration of a PSSA proposal. In addition the Legal Committee and even the IMO Assembly may become involved in considering legal arguments and adopting resolutions giving effect to specific APMs, respectively. For example, the 24th Session of the IMO Assembly recently adopted Resolution A.976(24). Ships’ Routeing — Establishment of an Area to be Avoided in the Galapagos Archipelago. Adopted 1 December 2005. The area to be avoided is the primary APM for the Galapagos PSSA.

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  67. IMO Convention, Article 28.

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  68. PSSA Guidelines, para. 8.3.1 (note 1 above).

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  69. Roberts et al argue that this precise scenario arose during the deliberations on the Western European PSSA proposal. See J. Roberts, T. Workman, M. Tsamenyi and L. Johnson, “The Western European PSSA: A ‘politically sensitive sea area’,” Marine Policy 29 (2005), p. 440.

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  70. PSSA Guidelines, para 7.3 (note 1 above).

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  71. For details of the application requirements for proposal to the NAV Sub-committee see IMO Circular MSC/Circ.1060, Guidance note on the preparation of proposals on ships’ routeing systems and ship reporting systems for submission to the sub-committee on safety of navigation, 6 January 2003.

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  72. NAV 47/13, Subcommittee on Safety of Navigation forty-seventh session: Report to the Maritime Safety Committee, 26 July 2001, para. 3.60.

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  73. PSSA Guidelines, para. 8.3.6 (note 1 above).

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(2007). PSSA Designation and Implementation of the PSSA Guidelines by the IMO. In: Marine Environment Protection and Biodiversity Conservation. Springer, Berlin, Heidelberg . https://doi.org/10.1007/978-3-540-37699-6_5

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