Wwf — Oil Pollution Control in the Baltic Sea Area

OIL POLLUTION CONTROL IN THE BALTIC SEA AREA — A SURVEY OF APPROACHES IN INTERNATIONAL AND EUROPEAN COMMUNITY LAW ——————————

Jonas Ebbesson

Report from the World Wide Fund for Nature WWF Foreword

This report, commissioned by the Swedish section of World Wide Fund for Nature, concerns legal issues related to oil pollution control in the Baltic Sea Area. It describes to what extent and on which issues international law places obligations on and provides power to the Baltic Sea states to prevent and control oil pollution. Thus, the report serves as a survey of existing international instruments on oil pollution control, applicable to the region. A summary, including recommendations on future priorities, is presented in the initial section of the report. Carl von der Esch has assisted me in gathering information, in particular about the national arrangements in the Baltic Sea states. Such information has also been received from persons, active as state officials or NGO representatives in some of the riparian states, who answered the questionnaire distributed in September 1998. Maritime Secretary Anne Christine Brusendorff, HELCOM, has provided HELCOM information. Stefan Lemieszewski, Swedish Maritime Administration, and Risa Rosenberg, WWF Sweden, have given useful comments on a draft of the report.

Solna, Sweden, September 1999,

Jonas Ebbesson

2 Contents

Summary Conclusions and Recommendations 1 Introduction 2 Shipping and Environmental Protection 2.1 Port State, Coastal State, and Flag State Jurisdiction 2.2 Internal Water 2.3 Territorial Sea 2.4 Exclusive Economic Zone 2.5 High Seas 3 Relevant Instruments in International and European Community Law 3.1 Relevant International Instruments 3.2 Global Regimes on Oil Pollution Control 3.3 Regional Regimes 3.4 European Community 4 Anti-pollution Standards — Discharge Limits, Ship Design and Equipment 5 Certification and Keeping of Oil Record Books 6 Enforcement, Surveillance and Sanctions 7 Ships’ Routeing Measures and the Protection of Sensitive Sea Areas 8 Combating Pollution 9 Reception Facilities References

3 Summary

This report describes and structures the existing measures and approaches under international law for controlling oil pollution from ships in the Baltic Sea Area. It provides a basis for assessment — by the administrations of the riparian states and by non-governmental organisations — of whether the different states concerned in fact comply with their international obligations. The global regulations on oil pollution control basically stem from either the 1982 United Nations Convention on the Law of the Sea or from conventions and other instruments adopted by the International Maritime Organization (IMO). The regional norms on oil pollution control are essentially found in the 1974/92 Baltic Sea Convention and the recommendations of the Helsinki Commission (HELCOM). Besides anti-pollution standards, an important and complex part of international law in this field consists of the principles that allocate jurisdictional competence to states in their capacity as flag state, port state, and coastal state. Port states in particular, but also coastal states, may act against foreign ships that violate international and/or national laws relating to oil pollution. The international legal approaches to oil pollution control covered by the report include: • anti-pollution standards (discharge limits, ship design and equipment), • certification and the keeping of oil record books, • enforcement, • surveillance, • sanctions, • ships’ routeing measures, • protection of sensitive sea areas, • means for combating pollution and • reception facilities. On the basis of the description of existing international law relating to oil pollution from ships, the following recommendations are made:

Recommendations on General Priorities: • The Baltic Sea states should, in the near future, give priority to the implementation and enforcement of existing international anti-pollution measures. This can be done in particular by intensified port state control and improved co-operation in such control among the Baltic Sea states. • The parties to the Baltic Sea Convention should establish an independent implementation control mechanism, by which the implementation of the parties is examined. • The Baltic Strategy for Port Reception Facilities for Ship-generated Wastes and Associated Issues, establishing a “no-special-fee” system with mandatory delivery of wastes, should be completed.

4 Issue-specific Recommendations • The Baltic Sea states and HELCOM should consider proposing amendments to the 1973/78 MARPOL Convention, to prevent the mixing of washing water (so-called grey water) and oily water in machine rooms. • HELCOM should develop further guidelines on port state control, based on the 1982 Paris Memorandum and the 1995 IMO Procedures for Port State Control. • In addition to the mandatory check of various IMO certificates, port state control should include controlling oil separation/filtering systems in order to ensure that the oil content of the effluents does not exceed 15 ppm. • HELCOM and the Baltic Sea states should develop methods for testing that the oil separation/filtering systems comply with the 15 ppm limits in real life situations, and not only during ideal conditions. • Until the control of separation/filtering systems becomes a mandatory part of port state control, the use of gravimetric separation equipment in a ship should be considered a “clear ground” for a more detailed port state inspection. • HELCOM should review its recommendation on minimum levels of fines for violations of anti-pollution regulations with the aim of considerably increasing these levels. • The Baltic Sea states and HELCOM should continue the identification of Baltic Sea Protected Areas (BSPAs), including also areas outside the territorial waters of the parties. The Baltic Sea states should consider having parts of the Baltic Sea Area identified by the IMO as a Particularly Sensitive Sea Area (PSSA). • HELCOM should adopt guidelines for enhanced surveillance of ships in ecologically sensitive sea areas in the Baltic Sea Area (e.g., bird breeding areas). This should not be limited to the territorial waters of the riparian states.

5 1 Introduction

1.1 Aim and Structure of the Report Oil pollution control is an illustrious example of the need to integrate international — i.e. global and regional — and national norms and policies.1 It is also an area where the content and structure of national laws to a considerable extent build upon and refer to international concepts of a global or regional origin. The international regulations, on the other hand, presuppose the implementation through national laws and measures. In the end, the effectiveness of the international efforts to prevent oil pollution depends on the degree to which the international norms and measures are made applicable to individuals and private companies through the domestic legal systems. While the effectiveness of the control measures taken is likely to be reflected in the total amount of oil released into the sea, it is difficult to estimate how much oil is actually released. According to some calculations, the total release of oil in the world from the shipping industry has declined during the last 20 years.2 Even so, one can also notice some negative trends. In the Baltic Sea Area, oil pollution is expected to increase, due to e.g. increasing trade in oil in the Baltic Sea states, increasing fleets, ageing vessels, lack of control, unqualified crews, and general difficulties in implementing international treaties.3 It follows that the need for oil pollution control is also likely to increase. Before discussing new control measures, however, it is necessary to understand and assess the measures that already have been taken. Which legal instruments, concepts and instruments apply to oil pollution control in the Baltic Sea Area today? This report aims to identify, briefly describe, and analyse the numerous existing legal approaches to controlling oil pollution in the Baltic Sea Area. This includes international agreements of global and regional application. In addition to the survey of existing legal instruments, the report provides a background for the conclusions and recommendations. Furthermore, the report can be used to address these issues in individual Baltic Sea states; to clarify how and to what extent the national laws comply with the international legal frameworks. Thus, the report may help non-governmental organisations and other stakeholders to expose and question the possible laxity in treaty compliance by their governments. The report consists of nine chapters. Chapter 2 describes the jurisdictional powers of states in their capacity as port states, coastal states, and flag states.

1 Cf. 1992 Baltic Sea Convention, annex IV, reg. 1(b), where the parties agree to co-operate in the effective and harmonized implementation of IMO rules. 2 Cf. Oljeutsläppsutredningen, pp 102-5. 3 Ibid., p 108f.

6 Chapter 3 provides a chronological survey of the relevant international treaties and other instruments. Chapters 4-9 are issue-specific; they analyse different legal approaches in global and regional treaties as well as in European Community law to prevent and control oil pollution.

1.2 International Norms on Oil Pollution Prevention Oil pollution of the sea was one of the first environmental issues to be subject to a comprehensive set of international — indeed global — rules. Today, oil pollution constitutes one of the environmental concerns on which most international co-operation and law-making has taken place, in particular under the auspices of the International Maritime Organization (IMO). In addition to the numerous IMO Conventions that apply globally, various regional agreements on oil pollution control have been adopted. In the context of the present study, of course, the most significant regional agreement is the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area. The Convention entered into force in 1980. In 1992, a new Convention on the Protection of the Marine Environment of the Baltic Sea Area was signed. By its entry into force, it will replace the 1974 Convention. However, at the time of writing, the 1992 Convention has not yet entered into force. The two versions of the Convention on the Protection of the Marine Environment of the Baltic Sea Area will be referred to as, respectively, the “1974 Baltic Sea Convention” and “1992 Baltic Sea Convention”.4 In the context of the 1974 and 1992 Baltic Sea Conventions, the implementing work of the Helsinki Commission (HELCOM) is also considered. The guidelines, standards and routines set out by HELCOM are adopted unanimously by the parties to the Convention, and are aimed at specifying the more general regulations of the Convention itself. In addition to global and regional treaties, the 1982 Paris Memorandum on Port State Control as well as the IMO Resolutions are essential in the striving for a more effective implementation of the global rules applicable to the Baltic Sea Area. Hence, the 1982 Paris Memorandum and some IMO instruments, which are not formal treaties, also are considered in this study. When studying the different international instruments it is essential to keep in mind this distinction between on the one hand legally binding treaties and mandatory decisions of international organisations and, on the other hand, recommendatory instruments adopted by states or international organisations. Even though this distinction is fundamental in legal reasoning, however, it does not mean that international instruments other than treaties are legally irrelevant.5 First, international law and policy interact. Policy instruments and non-binding action-plans may pave the way for future binding treaties once the ideas are politically acknowledged. Second, non-binding instruments are relevant in the interpretation of treaties. They may indicate a subsequent agreement and/or prac-

4 For treaty texts, see HELCOM home page, . 5 Cf. Ebbesson 1996a, pp 19-23.

7 tice of the parties regarding the interpretation of the treaty or the application of its provisions,6 e.g. when subsequent instruments are adopted unanimously or when the parties refrain from opting-out. Such instruments imply at least a legal obligation of the parties to seriously endeavour to implement them. Examples of such an instrument are the recommendations adopted by HELCOM. Third, wide acceptance of global non-binding instruments, such as the 1972 Stockholm Declaration on the Human Environment, the 1992 Rio Declaration on Environment and Development, Agenda 21 and various resolutions of the UN Assembly, may indicate the existence of customary international law. Fourth, and of relevance here, the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS), when defining binding obligations of states, refers to other international instruments and is not limited to treaties. This is most obvious with regard to the obligation of states to prevent pollution from land-based sources, where the convention explicitly refers to “recommended practices”.7 Yet, instruments other than treaties also are relevant, for instance when the 1982 UNCLOS defines coastal states’ jurisdiction over foreign ships. Basically, this competence is limited to anti-pollution laws, “conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”8 It is not clear which rules and standards are really included in this formula. Is it only customary rules? Only treaty rules accepted by the majority of states? Or does this reference also include resolutions adopted by the International Maritime Organization? The provision is ambiguous, and there are different opinions on this issue.9 Nonetheless, the reference to “general diplomatic conference” indicates that not only treaties in force should be considered.10 The IMO does hold regular diplomatic conferences, either in its Assembly or in the different commis- sions. The interpretation that IMO resolutions may provide evidence of generally accepted international rules leads to a flexible and dynamic feature, which can quite easily adapt to new environmental situations. In addition to the international material in the form of treaties and other documents, it is necessary to include the legislation of the European Community (which is still the part of the European Union (the first pillar) that addresses issues related to the environment). Several Baltic Sea states are members of the European Union, and some riparian states are adjusting their legislation for the purpose of a future membership. Even though oil pollution from shipping has not been much dealt with by the EC, it has adopted some legislation relevant for this report.

6 Cf. 1969 Vienna Convention on the Law of the Treaties, art 31. For treaty text, see 1155 United Nations Treaty Series (UNTS), p 331. 71982 UNCLOS, art. 207(1). 81982 UNCLOS, art. 211(5). 9Kwiatkowska, p 172 f. 10A view held e.g. by Birnie & Boyle, p 256.

8 1.3 Issues Involved in Oil Pollution Control Since the signature in 1954 of the first multilateral agreement on oil pollution — the International Convention for the Prevention of Pollution of the Sea by Oil11 — a broad spectrum has been developed of approaches and legal means to control oil pollution from ships. This includes:

• ship design and construction; • discharge standards; • technical equipment for monitoring; • ships’ routeing; • crew and personnel training; • certification; • civil liability and funding system; • surveillance; • coastal state intervention; • enforcement by coastal, flag, and port state; • penal and administrative sanctions; • international enforcement co-operation; • combating strategies and co-operation; and • reception facilities. Each approach listed in turn involves several issues, which have been defined in terms of legal obligations for the states concerned. The international norms differ considerably in strictness and the degree of details. While some treaties only set out general principles, others define the obligations through mathematical and highly technical formulas. Formally, the norms of international law are addressed to the states, which are expected, indeed obliged, to take the necessary measures to make the norms valid in the domestic context. Still, it is clear that the “ultimate” subjects of these norms are not only the states, but also private entities, such as ship owners and private enterprises involved in the reception and treatment of wastes in ports. While some treaty provisions only prescribe general obligations, other provisions define in detail the “legal situation” that must be established in the national legal system.12

1.4 Compliance Control For the purpose of improving the effectiveness of international rules, it is essential that the national measures, claimed to be implementing international obligations, are assessed and examined. They should be brought under public scrutiny. This is a difficulty in international law in general, but in some

11 For treaty text, see 327 UNTS, p 4. 12 For a discussion about the “legal situation” and the relation of international and national environmental law, see Ebbesson 1996a, p 46-76 and 203-232.

9 international regimes new means have slowly been developed to have the national law assessed against the international norms. The most far-reaching example is provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and additional protocols,13 whereby the European Court of Human Rights is established. Subject to certain conditions, individuals may bring a suit against a state to the court for the purpose of deciding whether national law violates the Convention. Another measure for controlling the implementation is the reporting system, where the parties to the convention report regularly on the measures taken to implement the convention. Still, there are numerous examples of inaccurate reports, where the states involved do not provide the correct picture. Several conventions also define means for the settlement of such disputes. Although this may function as a means for examining the compliance with international law, it is unusual that disputes on the interpretation of environmental treaties are brought to a court or other third party institution. Some environmental treaties have established a special body with the task of assessing the implementation. One such example is the “Non-compliance Procedure” adopted by the parties to the global 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.14 Its function is to receive, consider and report on reservations from a party regarding another party’s implementation of obligations under the protocol. A somewhat similar institution is provided for by the 1994 Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Further Reduction of Sulphur Emissions.15 The parties to the protocol have agreed to establish an “Implementation Committee”, the purpose of which is to review the implementation of the protocol and compliance by the parties. Structures, functions and procedures for the Implementation Committee also have been adopted. Although the Committee does not act as a court, it is secured a certain degree of independence in its assessments of cases based on submissions from the parties. Under certain conditions, the Committee may also undertake information gathering in the territory of the state concerned. Proce- dures for mutual observations also have been adopted in other international environmental treaties, although this is not frequent. Which means are available in the Baltic Sea Area? According to the 1974 Baltic Sea Convention, it is the duty of HELCOM to keep the implementation of the convention under continuous observation,16 but no procedure or reporting obligation is set out in the convention. A reporting system has been developed within HELCOM (e.g. in the Maritime Committee), but this is not equal to an implementation committee, such as the ones described above. The 1992 Baltic Convention obliges the parties to report at regular intervals on legal, regulatory, or other measures taken for the implementation of the provi-

13 For treaty text, see 213 UNTS, p 221. 14 For treaty text, see 26 International Legal Materials (ILM) (1987), p 1550; Report of the Fourth MoP, UNEP/OzL.Pro.4/15, annex IV. 15 For treaty text, see 33 ILM (1994), p 1540. 16 1974 Baltic Sea Convention, art. 13.

10 sions and annexes of the convention, on the effectiveness of these measures, and on problems encountered in the implementation.17 It is the task of HELCOM to keep the implementation under continuous review.18 Despite the alarming situation of the Baltic Sea environment, no institution resembling that of an independent implementation committee has been established through the 1992 Conven- tion. Nor does the convention provide for on site inspections in the territory of the parties (e.g. for the purpose of assessing the adequacy of port reception facilities). Even so, a quasi-judicial body within the framework of the Baltic Sea Convention, in line with the developments just described, would be a useful institution for more independent assessments of the implementation of the parties.19

17 1992 Baltic Sea Convention, art. 16. 18 1992 Baltic Sea Convention, art. 20. 19 For a critical assessment of the 1992 Baltic Sea Convention, where the lack of an implementation committee is addressed, see Ebbesson 1996b.

11 2 Shipping and Environmental Protection

Before further presenting the different conventions relevant for oil pollution control in the Baltic Sea Area, it is useful to understand the competence of different state categories in adopting and enforcing norms on oil pollution control. A state may act as a flag state, coastal state, and/or port state. This section is particularly devoted to the jurisdictional competence of states when acting as coastal states and flag states.20

2.1 Port State, Coastal State, and Flag State Jurisdiction The freedom of the sea has a long history. Under this doctrine, legal matters concerning maritime activities basically rest with the flag state. Thus, violations of international and national rules on board should be enforced by the state in which the ship is registered or to which it is otherwise connected. However, increasing concern about the marine environment has challenged this principle; exclusive jurisdiction of flag states over ships is no longer accepted when a coastal state’s environment is in danger. This is clearly set out e.g. in the 1973 International Convention for the Prevention of Pollution from Ships, as entered into force through the related 1978 Protocol (1973/78 MARPOL Convention).21 “Any violations of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefore under the law of that Party.”22 Accordingly, jurisdictional competence is also allocated to states in their capacity of coastal state (i.e. when the foreign ship is navigating in the state’s coastal water) and port state (i.e. when the ship is voluntarily in the port of the state). However, all legal requirements on pollution control are not set out in the treaties themselves. In addition to defining the substantive standards and requirements to be implemented and applied by the states concerned, international law

• confers on international organisations – for instance the IMO and HELCOM – the competence to adopt standards and safety measures (mandatory or recommendatory) on the basis of general principles defined in the legal framework; and • allocates jurisdictional competence to certain – coastal, flag and/or port – states for the adoption of rules on a particular matter to be applicable within a certain area.23

20 This section is based upon the presentation in Ebbesson 1997, pp 10-17. 21 The 1973/78 MARPOL Convention is further described in section 3.2. 22 1973/78 MARPOL Convention, art. 4(2).

12 This report deals with norms of all these kinds. First, as already pointed out, the starting-point is the substantive obligations set out in the treaties in terms of anti- pollution standards. Second, the applicable norms of the 1974 and 1992 Baltic Sea Conventions are supplemented by HELCOM guidelines on the implementation. Hence, competence is conferred on HELCOM for this purpose. Third, the increasing attention paid to port state control reveals that the allocation of jurisdictional competence also matters. The issue of jurisdiction, in turn, involves different acts of flag states, port states and coastal states. One such act is that of adopting national laws and regulations in conformity with international law (legislative jurisdiction). International law either prescribes the standards a state must adopt or provides for a certain leeway for the coastal state to adopt standards and regulations on its own accord. As regards flag states, the international standards always constitute minimum requirements, i.e., nothing prevents a state from adopting stricter standards for ships sailing its flag than those adopted internationally. When applicable to entities of other states, however, international law also sets maximum limits for a state’s national laws. Another act of jurisdiction is that of controlling the applicable anti-pollution standards (enforcement jurisdiction). This involves, for instance, control and physical inspections of ships, prevention of ships not complying with certain standards, detention and requiring of information. A coastal state’s enforcement jurisdiction over activities by foreign ships depends on, inter alia, where the act in question is committed and where the ship is navigating when “caught”. When a state acts as a port state, i.e. when the foreign ship in question has entered its port, the state’s competence is more comprehensive than when acting as a coastal state. The third aspect of jurisdiction relates to the jurisdiction of courts to decide on a case (adjudicative jurisdiction). Which court may decide on a violation of anti- pollution standards — that of the port state, coastal state or the flag state? In addition to allocating the adjudicative jurisdiction, international law defines limits for the strictness of penalties with respect to violations of national laws committed by foreign ships. This used to be left to each state, but the 1982 UN Convention on the Law of the Sea (1982 UNCLOS) now sets limitations, by prescribing only monetary penalties for violation of foreign ships if the violation takes place beyond a state’s territorial sea. Stricter penalties may be imposed for wilful and serious acts of pollution within the territorial sea.24 The sea is divided into different areas within which the allocation of jurisdictional competence differs. The scope of states’ jurisdiction depends on (i) the marine activity and (ii) sea area in question. Generally speaking, the closer to the coast the more power is allocated to the coastal state, to take legal actions against foreign ships. For the purpose of this study, the most important sea areas are:

• internal water; • territorial sea; • exclusive economic zone (EEZ); and

23 Ebbesson 1996a, pp 60-72 and 75-79. 24 1982 UNCLOS, art. 230.

13 • high sea.25 The 1982 UNCLOS is of utmost influence for defining limits of states’ unilateral oil pollution control measures in these areas. The Convention, which was signed by more than 150 states, entered into force in November 1994, after having been ratified by 60 states. In April 1999, 130 states had ratified or acceded to the treaty. Moreover, several principles set out in the 1982 UNCLOS, e.g. concerning marine pollution, are claimed to be codifying customary international law, and thus applicable to all states.26 The 1982 UNCLOS puts all states under a general obligation to protect and preserve the marine environment. Even though the convention frequently refers to pollution only, it also explicitly states that “[t]he measures taken shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endan- gered species and other forms of marine life.”27 Despite the setting out of general obligations for states to protect and preserve the marine environment, the convention basically draws up the mentioned jurisdictional limitations and competence. In addition, however, states in enclosed and semi-enclosed sea areas, such as the Baltic Sea Area, are required to co- operate and co-ordinate their efforts with the aim to protect and preserve the marine environment of the region.28 The 1982 UNCLOS was preceded by the 1958 Conference on the Law of the Sea, when four conventions were adopted, relating to, respectively, the territorial sea and the contiguous zone, the high seas, fishing and conservation of living resources of the high seas, and the continental shelf. These conventions also divided the sea into geographical spaces, but with few exceptions they did not deal with marine pollution. Nonetheless, they are relevant for the limits of coastal states’ competence in certain sea areas.

2.2 Internal Water Formally, the internal water of a state is defined as the water on the landward side of the baseline for the territorial sea. This baseline, in turn, is formed by the low- water line along the coast, as marked on large-scale charts officially recognised by the coastal state.29 In practice this means that ports, beaches and estuaries are located in the internal water.

25 Other concepts in the law of the sea relating to geographical spaces are e.g. “straits”, “archipelagos”, “contiguous zone”, “ice-covered areas,” and “continental shelf.” 26 Cf. Birnie & Boyle, p 254 f. 27 1982 UNCLOS, art. 194(5). 28 1982 UNCLOS, art. 123. 29 If the coast is deeply indented and cut into, if there is a fringe of islands along the coast or a delta, it is possible for the state to apply so called straight baselines.

14 It is well established that the state exercises full jurisdictional competence within its internal water. Hence, customary international law allows a state to prevent foreign ships from entering its ports, for instance when the ship fails to meet the national anti-pollution standards, irrespective of whether these standards equal the international ones or are even stricter. A state may also prevent a ship from entering the port because it did not follow navigational instructions within the territorial sea and, most possibly, the EEZ.30 This provides a means for states to protect their coastal waters, not least in the Baltic Sea region where all ships sail either to or from ports of the riparian states. A ship that wishes to enter into the ports of the coastal state must comply with its environmental regulations, be they identical or stricter than those set out in international law. The possibility of preventing a ship from entering altogether can be seen as a special case of port state control. In addition, according to the 1982 UNCLOS, a port state enjoys enforcement jurisdiction — in terms of investigation, detention and legal proceedings — over a foreign ship entering its port,

• when the ship has violated the state‘s national laws within the internal water; • when the ship, which is voluntarily within a port of the state, has violated the national laws and regulations within the territorial sea or EEZ “adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution”;31 • when the ship, which is voluntarily within a port of the state, has discharged pollutants outside the territorial sea or even outside the EEZ “in violation of applicable international rules and standards established through the competent international organisation or general diplomatic conference.”32 From the above, it follows that international law hardly places any restraints on states in preventing ships from entering their ports when the ships do not comply with the port state’s anti-pollution laws. What is required, though, is that the national regulations are not applied to foreign ships in a discriminatory way. Apart from the right to deny a foreign ship the entry to a port, enforcement is basically a matter of controlling that ships comply with relevant international treaties. In 1982, the maritime authorities of fourteen states, some of which are Baltic Sea states, signed the Paris Memorandum on Port State Control with the purpose of improving the implementation of existing agreements on maritime safety and protection of the marine environment.33 The main commitment made in this memorandum is that each state will achieve an annual total of inspection corresponding to 25 per cent of the estimated number of foreign merchant ships entering its ports. The inspection includes a control of certificates and documents,

30 Cf. Churchill & Lowe, pp 52-54. 31 1982 UNCLOS, art. 220(1). 32 1982 UNCLOS, art. 218(1). Here, this primarily refers to standards of the 1973/78 MARPOL Convention. 33 See below, section 3.3.

15 but also a control of whether there are clear grounds for believing that various international rules, not least related to pollution, have been violated.

2.3 Territorial Sea The territorial sea is defined as the sea area, not exceeding the breadth of twelve nautical miles from the baselines, in which coastal states enjoy sovereignty.34 Neither the 1958 Territorial Sea Convention nor customary international law limit the jurisdiction of states to adopt legislation relating to the protection of the marine environment in the territorial sea, provided that this does not hamper the right to innocent passage.35 Innocent passage is the right of foreign ships to pass through the territorial sea36 of another state as long as the passage is not prejudicial to peace, good order or security of the coastal state.37 The 1982 UNCLOS partly limits the legislative jurisdiction of coastal states as compared to the 1958 Convention and previous customary international law. Even so, a balance is drawn between the competence of coastal states and flag states with regard to innocent passage. First, wilful and serious pollution by a foreign ship, caused either by sub-standard equipment or dumping, is considered prejudicial to innocent passage, and can always be prevented by the coastal state. Second, coastal states may adopt laws and regulations relating to innocent passage concerning the conservation of living resources and the preservation of the environment, including the prevention, reduction and control of pollution from ships. These laws and regulations may apply to discharges, navigation routes for safety purposes,38 protection of environmentally sensitive areas etc. That is, a coastal state may prescribe, for example, routeing measures, traffic separation schemes and areas to be avoided for the purpose of marine nature reserves as long as ships may enjoy the right to innocent passage. However, these regulations may not apply to the design, construction, manning or equipment of foreign ships, unless they are giving effect to generally accepted international standards. This means that a coastal state may not, by the adoption of standards on design, construction or equipment stricter than those of international law, prevent a foreign ship that complies with international rules and standards from passing innocently through its territorial water.39 Besides the legislative competence, coastal states may also enforce their laws and regulations against all merchant ships violating their regulations in the territorial sea, subject to the exception just stated as well as the right of innocent

34 1982 UNCLOS, art. 2-5. 35 Cf. Churchill & Lowe, p 253. 36 In principle, foreign ships do not enjoy innocent passage through the internal water. 37 1958 Territorial Sea Convention, art. 14; 1982 UNCLOS, arts. 17-22. 38 When defining such navigation routes, the coastal state shall take into consideration recommendations by the IMO, even though IMO approval is not required. Cf. 1982 UNCLOS, art. 22. 39 Cf. 1982 UNCLOS, arts. 21 and 24.

16 passage. Parties to the 1973/78 MARPOL Convention are even required to do so.40 The competence of coastal states is even greater with regard to activities other than operational shipping in the territorial sea. Ships engaged in dumping or fishing within the territorial sea of another state are prejudicial to good order and security of the coastal state.41 Thus, they are not covered by the concept of innocent passage and, hence, are under the jurisdiction of the coastal state. It follows that, subject to the right to innocent passage, coastal states have far-reaching power to adopt and enforce laws and regulations relating to discharges, protected areas and other routeing measures for the protection of the marine environment within their territorial seas.

2.4 Exclusive Economic Zone While the historical roots of the concept of exclusive economic zone (EEZ) date back some decades, its direct origin is found as recently as in the negotiations of the 1982 UNCLOS. The EEZ extends up to 200 nautical miles from the baseline. Within it, coastal states enjoy extensive rights to use natural resources. Third states, on the other hand, enjoy the freedom of over-flight, navigation, and the laying of submarine cables and pipelines in this zone. Before the 1982 UNCLOS, there had been a disagreement as to the width of the territorial sea; maritime states claiming narrow territorial waters and some coastal states claiming a territorial sea even up to 200 nautical miles. Many coastal states were anxious to enjoy exclusive fishing rights within these zones. Even prior to the signing of the 1982 UNCLOS, the exclusive rights of coastal states to exploit and explore the natural resources on their continental shelf had been recognised.42 By introducing a new concept, however, the rights of coastal states to use natural resources expanded. Contrary to continental shelf rights, the EEZ must be claimed, i.e. established, by the coastal state in terms of legislation etc. Besides the exclusive rights to natural resources, coastal states also have certain rights and jurisdictional competence with regard to the protection of the marine environment in the EEZ.43 Thus, they may adopt laws and regulations for the purpose of enforcement in respect of pollution control in their EEZ “conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”44 As pointed out above, an important question here is which rules and standards are really included in this formula. Although there are differing opinions on this,

40 Cf. 1973/78 MARPOL Convention, art. 4(2). Also 1982 UNCLOS, art. 220(2). 41 Cf. 1982 UNCLOS, art. 19 and 210. 42 Cf. 1958 Convention on the Continental Shelf, art. 2. 43 1982 UNCLOS, art. 56(1). 44 1982 UNCLOS, art. 211(5).

17 there is nonetheless support for also including instruments of the IMO other than treaties. The power of coastal states to enforce the anti-pollution laws on foreign ships in the EEZ, when the laws conform to such international rules, depends on (i) the extent of damage caused and (ii) the place of enforcement. While a port state may institute proceedings for violations of anti-pollution rules in or even outside the EEZ, the corresponding jurisdiction is more limited when the vessel is navigating in the EEZ or territorial sea. If there are clear grounds for believing that a violation has taken place, the coastal state may require the vessel to give relevant information for identification and for establishing whether a violation has taken place. If there are clear grounds for believing that a violation resulting in substantial discharge causes or threatens to cause significant pollution of the marine environment, the coastal state may undertake physical inspections of the ship. Finally, when there is "clear objective evidence" that a vessel which is navigating in the EEZ has violated the rules referred to above, resulting in discharge which causes major damage or threats of major damage to the coastline, the coastal state may institute proceedings including detention of the vessel.45 The competence of port states is greater. When the vessel is voluntarily in a port, the port state may even undertake investigations and institute proceedings relating to discharges in the coastal waters (EEZ, territorial sea and the internal water) of another state, if the latter state so requests.46

2.5 High Seas With few exceptions, none of which concerns marine pollution, ships sailing on the high seas are only under the jurisdiction of the flag state. Even so, when a ship is voluntarily in the port of another state, this state may undertake investigations and institute proceedings concerning discharges also on the high seas, if conducted in violation of the 1973/78 MARPOL Convention or other relevant rules of international law.47

45 1982 UNCLOS, art. 220. 46 1982 UNCLOS, art. 218(2). 47 1982 UNCLOS, art. 218(1).

18 3 Relevant Instruments in International and European Community Law

3.1 Relevant International Instruments This section places the following, issue-specific sections in a context. It serves as a general presentation of the international rules applicable to the Baltic Sea Area. In addition to the survey of global and regional conventions, this section presents other international instruments of relevance. It also briefly describes the relevant legislation of the European Community. The application of global rules does not prevent regional treaties from going further in the protection of the marine environment. On the contrary, the structure of the 1982 UNCLOS reveals its framework character, which is supposed to be supplemented by other global as well as regional regulations. The 1974 Baltic Sea Convention has been in force for about two decades. In principle, it only applies to the states involved, and to ships sailing the flag of these states, but the Baltic Sea states may agree to improve the enforcement of the global rules also against third party ships. However, even though it is generally accepted among the Baltic Sea states that international anti-pollution standards must be incorporated in the national legal system, this is not reflected to the same extent when it comes to enforcement. Enforcement constitutes one of the weakest links in the web of international measures for controlling oil pollution. Except for the 1982 UN Convention on the Law of the Sea, which is presented first, the international instruments are presented chronologically. The global conventions presented have in common that they are all applicable to the Baltic Sea Area, sometimes with particularly strict rules for this area, although this does not mean that all Baltic Sea states are parties to all global conventions. The regional instruments presented do not include various bilateral arrangements. The table on the next page indicates to which conventions and other relevant instruments the Baltic Sea states are parties.

19 Baltic Sea states parties to international conventions and memoranda:48 Denmark Estonia Finland Germany Latvia Lithuania Poland Russian Federation Sweden European Community 1982 UNCLOS XX XXXX 1969 Intervention Convention X XX XXX Intervention Protocol 73 X XX XXX 1969 Civil Liability Convention d X ddXXXd Civil Liability Protocol 76 X XX XXX Civil Liability Protocol 92 X XXX X 1971 Fund Convention d X dd XXd Fund Protocol 76 X XX XXX Fund Protocol 92 X XXX X 1972 COLREG Convention XXXXXXXXX 1972 Global Dumping Convention X XX XXX Global Dumping Protocol 96 XX 1973/78 MARPOL Convention (Annex I/II) XXXXXXXXX MARPOL (Annex III) XXXXXXXXX MARPOL (AnnexIV) XXXXXXXXX MARPOL (Annex V) XXXXXXXXX MARPOL (Annex VI) X 1974 SOLAS Convention XXXXXXXXX SOLAS Protocol 78 XXXX XXXX SOLAS Protocol 88 XX X 1978 STCW Convention XXXXXXXXX 1990 OPRC Convention XXX X 1996 HNS Liability Convention 1974 Baltic Sea Convention XXXXXXXXXX 1992 Baltic Sea Convention XXXXXXrrXX 1982 Paris Memorandum X XX XXX 1993 Nordic Co-operation Agreem. XX X

48 Sources: IMO web site; HELCOM web site; UN web site; Jaap Molenaar. “x” means that the state is a party to the convention. “r” means that the state has not yet ratified the convention, but it has informed HELCOM that it is in the process of ratification. “d” stands for denunciation effective, which means that the parties have formally denunciated the convention, replacing it with a later protocol, which still incorporates part of the convention.

20 3.2 Global Regimes on Oil Pollution Prevention

1982 UN Convention on the Law of the Sea About 40 of the more than 300 articles of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS)49 are specifically devoted to the protection of the marine environment. Still, the provisions, which are intended to cover all activities related to marine pollution, are of a general character. In addition to setting out imprecise obligation of states, such as “the obligation to protect and preserve the marine environment”, the 1982 UNCLOS allocates jurisdictional competence to different categories of states. As pointed out in section 2, this is particularly important with respect to pollution from ships, and the conflict that occurs between the freedom of navigation and environmental protection. In this context, the competence of port states and coastal states to act against foreign vessels is crucial. The 1982 UNCLOS provides far-reaching enforcement powers to port states, with respect to violations of international anti-pollution regulations. A state may institute proceedings against ships that are voluntarily in its port not only for violations that have taken place in its territorial sea, but also for violations in the EEZ and on the high seas. Upon request from another state, the port state may also institute proceedings for violations that occurred in the requesting state’s territorial sea or EEZ.50 The corresponding competence of the coastal state when the ship is navigating is more limited, and depends on where the discharge of oil has taken place, the likely harm, and where the ship has been “caught”. The 1982 UNCLOS also provides a basis for improved co-operation between flag states, port states and coastal states. Such co-operation may concern e.g. surveillance, the preservation of evidence, and response measures.

1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties In principle, ships sailing on the high seas are under the jurisdiction of the flag state only. However, some exceptions apply. One of them is set out by the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969 Intervention Convention).51 The Convention was adopted following the 1967 Torrey Canyon disaster, in which the British gov- ernment bombed the wreck in order to prevent further damage. Coastal states may take measures necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests when a maritime casualty implies a risk of oil pollution, likely to result in major harmful conse-

49 For treaty text, see 33 ILM (1994), 1309. 50 1982 UNCLOS, art. 218. 51 For treaty text, see 9 ILM (1970), p 25. Cf. 1982 UNCLOS, art. 221.

21 quences.52 Related interests are e.g. fishing, tourism, and the health of the popu- lation, but also nature conservation. Before the coastal state intervenes, it must consult the flag state and ship-owner concerned, unless it is a case of extreme urgency. The measures taken by the coastal state must be proportionate to the likely damage, and the state may be liable to pay compensation if the measures taken exceed those “reasonably necessary” to achieve the goal of preventing, mitigating or eliminating the danger.

1969/92 International Convention on Civil Liability for Oil Pollution Damage The 1969 International Convention on Civil Liability for Oil Pollution Damage, as modified by the 1992 Protocol (1969/92 Civil Liability Convention),53 makes the owner of the ship liable to compensate for oil pollution damage, resulting from “incidents”. In this context, incidents mean accidental releases. In other words, deliberate releases of oil, e.g. through tank rinsing or discharges from machinery space, are not covered by the convention. Considering that oil pollution in the Baltic Sea Area (and elsewhere) frequently result from intentional discharges, the 1969/92 Civil Liability Convention only applies to a marginal pro- portion of all releases of oil. The liability of the owner is strict, not based on fault, which means that the owner is liable to compensate for damage even though the incident was not a result of negligence. Some exceptions to this apply. The liability of the ship owner is limited in terms of a maximum amount, unless the damage results from fault on behalf of the owner. The 1992 Protocol increases the maximum limit. The Convention requires ship-owners to maintain insurance or other financial security equal to the maximum amount.54

1971/92 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage The 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, as modified by the 1992 Protocol (1971/92 Fund Convention),55 is linked to the 1969/92 Civil Liability Convention by providing additional compensation to that for which the ship-owner is responsible. Besides adding compensation when the maximum limit of the 1969/92 Civil Liability Convention is inadequate, the Fund established (the IOPC Fund) is obliged to pay compensation to states and persons when they are not able to obtain compensation from the ship-owner. By the 1992 Protocol, the maximum limits for compensations by the IOPC Fund are increased.

52 1969 Intervention Convention, art. 1. 53 For treaty text, see 9 ILM (1970), p 45; 16 ILM (1977), p 617; Sveriges internationella överenskommelser (SÖ) [Swedish gazette of international agreements] 1995:20. 54 Cf. 1996 HNS Liability Convention. 55 For treaty text, see 11 ILM (1972), p 284; 16 ILM (1977), p 621; SÖ 1995:19.

22 1972 International Regulations for Preventing Collisions at Sea The 1972 International Regulations for Preventing Collisions at Sea (1972 COLREG Convention)56 is usually not included in the category of environmental conventions. Focusing on vessels’ movements in relation to other vessels, and the avoidance of collisions, however, it is clearly of relevance for the protection of the marine environment. The main instruments provided by the Convention in this respect are the so-called traffic separation schemes. When a vessel uses a traffic separation scheme, it is obliged to e.g. proceed in the appropriate traffic lane, avoid crossing traffic lanes, and avoid anchoring in or near the terminations of these schemes.57

1972/96 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter In international law relating to pollution from ships, a general distinction is made between on the one hand discharges incidental to or deriving from so-called normal operations of vessels, and, on the other hand, dumping of wastes. Dumping is the deliberate disposal of wastes, including operations by ships for the purpose of disposing wastes. Obviously, there are situations in practice where this distinction is difficult to uphold. Even so, these concepts are well established in international law, and several conventions prohibit the dumping of hazardous wastes. The most important convention of a global application is the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, as modified by the 1996 Protocol (1972/96 Global Dumping Convention).58 The 1972 Convention does not prohibit dumping of any waste or material (although the scope of the prohibition is expanded by the 1996 Protocol). Even so, dumping of oil and oily wastes is prohibited, except for situations of force majeure.59 Incineration of such wastes is also prohibited. It is a matter for each state to prohibit dumping activities on ships flying its flag. Coastal states may enforce violations of the prohibition with regard to dumping in the territorial sea and EEZ.60

1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 The 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 relating thereto (1973/78 MARPOL Conven- tion)61 is the most important global instrument for the prevention of discharges

56 SÖ 1975:74. 57 Cf. the 1974 SOLAS Convention. 58 For treaty text, see 11 ILM (1972), p 1293, 36 ILM (1997), p 1. 59 1969 Global Dumping Convention, art 4, annex 1; 1996 Protocol, art 4, annex 1. 60 1982 UNCLOS, art.216. 61 For treaty text, see 12 ILM (1973), p 1319; 17 ILM (1978), p 546.

23 and operational disposals from shipping. The Convention applies not only to oil, but also to noxious liquid substances in bulk, harmful substances in freight containers, sewage, and garbage.62 It regulates the construction of oil tankers and other ships, and prescribes discharge limits. Certain sea areas around the world are identified as “special areas” in the context of the 1973/78 MARPOL Convention. For such areas, particularly strict regulations apply. The Baltic Sea Area is identified as a special area with respect to oil, noxious liquid substances, and garbage. Thereby discharges of oil drainage, dirty ballast, and tank washing water must not take place in the region. Discharge from machinery space bilges is also restricted. In addition to setting standards on releases from and the construction of ships, the 1973/78 MARPOL Convention prescribes reporting obligations and the holding of certificates and Oil Record Books. It also obliges port states, in particular those located by the special areas, to provide adequate reception facilities in ports.

1974 International Convention for the Safety of Life at Sea Like the 1972 COLREG Convention, the 1974 International Convention for the Safety of Life at Sea (1974 SOLAS Convention)63 is usually not dealt with as an environmental agreement. Even so, its application to the safety of navigation, carriage of dangerous goods, construction, competence of the crew, and radio communication indicates its relevance for the protection of the marine environment as well. The 1974 SOLAS Convention provides the basis for the IMO’s General Provisions on Ships’ Routeing. Since January 1997, ships’ routeing measures adopted under the 1974 SOLAS Convention may be made legally binding (“mandatory”).64 Thus, flag states are obliged to adopt national laws and regulations that fully implement these measures.

1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers The 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1978 STCW Convention)65 provides minimum standards with respect to the training and competence of seafarers. Under the 1978 STCW Convention, certain mandatory minimum requirements have been adopted for the training and qualification of masters, officers and ratings of oil tankers. Flag states should establish a certification system, and the certificates are subject also to port state control.

62 Annex IV of the 1973/78 MARPOL Convention, which concerns pollution by sewage, has not yet entered into force. 63 For treaty text, see 14 ILM (1975), p 959 64 1974 SOLAS Convention, chapter V, regulation 8, as amended by IMO Resolution MSC.46(65), adopted 16 May 1995. 65 SÖ 1980:24.

24 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation In addition to technical standards, liability regimes, and the right of coastal states to intervene in case of casualty, global rules have been adopted on the combating of oil pollution. The 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation (1990 OPRC Convention)66 obliges the parties to establish measures for dealing with oil pollution incidents, and to require ships under their fleets to carry emergency plans. In addition, ships must report incidents, and the parties should assist one another in combating oil pollution.

1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea The 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (1996 HNS Liability Convention)67 applies to damage caused by other hazardous and noxious substances than those covered by the 1969/92 Civil Liability Convention. Since the 1969/92 Civil Liability Convention excludes oil which is not persistent, such oils are included in the 1996 HNS Liability Convention. In several respects, the 1996 HNS Liability Convention is based on concepts similar to those of the 1969/92 Civil Liability Convention and the related 1971/92 Fund Convention. Thus, the liability, which is channelled to the owner, is strict but subject to a maximum limit. The Convention establishes a HNS Fund, which will work in a way similar to that of the Fund under the 1971/92 Fund Convention.

Other Global Instruments of Relevance The IMO has adopted a number of resolutions relating to oil pollution prevention, control and combating as well as other issues of environment protection. In 1991, the IMO Assembly adopted Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas (1991 IMO PSSA Guidelines).68 Although the document is not formally a convention, it provides additional impetus for coastal states to protect areas even beyond their territorial seas. The Guidelines define a Particularly Sensitive Sea Area (PSSA) as “an area which needs special protection through action by the IMO because of its significance for recognised ecological or socio-economic or scientific reasons and which may be vulnerable to environmental damage by maritime activities.”69

66 For treaty text, see 30 ILM (1991), p 733. 67 For treaty text, see 35 ILM (1996), p 1415. The 1996 HNS Liability Convention has not entered into force. 68 IMO Resolution A.720, adopted 6 November 1991. 69 1991 IMO Guidelines on PSSAs, section 3.1.2.

25 PSSAs could be identified in the territorial seas as well as economic zones of the coastal states. The identification of an area as a PSSA requires the approval of the IMO, and the identification as such does not imply any particular restrictions. The instrument is supposed to function in combination with e.g. IMO treaties, such as the 1972 COLREG Convention, the 1974 SOLAS Convention, and the 1973/78 MARPOL Convention.70 The legal implications of the identification thus depends on other measures taken in the course of identification. The IMO has also adopted resolutions concerning enforcement and control. The 1995 IMO Procedures for Port State Control71 provide comprehensive guidance on practical and legal matters related to such control. Port state control means that the ship is inspected while in a port. If the inspection officer finds that the ship does not meet the international standards, s/he may detain the ship, investigate the matter and require that corrective action is taken. This could be done to ensure the safety of the ship and to eliminate any threat of harm to the marine environment before permitting the ship to sail. Port state control also includes securing evidence and assisting other states for the same purpose. Finally, in 1997 the IMO adopted General Principles for Ship Reporting Systems and Ship Reporting Requirements, Including Guidelines for Reporting Incidents Involving Dangerous Goods, Harmful Substances and/or Marine Pollutants (1997 IMO General Principles for Ship Reporting).72 The theme of these principles and guidelines are indicated by the title itself; the purpose being to e.g. enable coastal states and other interested parties to be informed without delay of any incident giving rise to pollution or threat of pollution of the marine environment.

3.3 Regional Regimes on Oil Pollution Prevention

1974/92 Convention on the Protection of the Marine Environment of the Baltic Sea Area While formally including almost any form of pollution and pollution sources, most regulations of the 1974 Baltic Sea Convention focus on pollution from ships. This may seem strange since global norms, applicable to the Baltic Sea region as well, had already been adopted in the IMO in 1973 — what would become the 1973/78 MARPOL Convention. A reason for including pollution from ships in the 1974 Baltic Sea Convention was that at the time of signing (and entry into force) of the Convention, not all Baltic Sea states were parties to the 1973/78 MARPOL Convention. By agreeing on regional rules, the parties could also adopt binding regulations that go further than the global ones.

70 For a discussion of the legal impact of PPSAs, see Jaap Molenaar, pp 401-55. The potential of PSSAs in the Baltic Sea Area is discussed in Ebbesson 1997. 71 IMO Resolution A.787(19), adopted 23 November 1995. 72 IMO Resolution A.851(20), adopted 27 November 1997.

26 In the 1974 Baltic Sea Convention, oil pollution is subject to multiple means of control. The Convention sets out obligations regarding discharges, reception facilities, co-operation in combating oil pollution, and reporting of incidents. It also restricts pollution of the marine environment by other substances than oil. To a considerable extent however, the oil pollution regulations of the Baltic Sea Convention are based on those of the 1973/78 MARPOL Convention. The 1992 Baltic Sea Convention also obliges the parties to take a number of measures in order to prevent oil pollution. These measures relate to preventing discharges, establishing reception facilities, notifying one another in case of pollution incidents, co-operating in combating pollution, assisting in investigations of violations, surveys, and certification. Contrary to the 1974 Convention, the 1992 Conventions contain a particular provision on nature conservation and biological diversity. Since maritime activities pose a great threat to marine ecosystems, the provision is relevant in the context of oil pollution control as well. By the 1974 Baltic Sea Convention, the Baltic Marine Environment Commis- sion — usually known as the Helsinki Commission (HELCOM) — was established as a co-ordinating, monitoring institution, with the task of promoting the implementation and development of the convention. HELCOM cannot make legally binding decisions on measures relating to the purposes of the convention. Even so, HELCOM’s recommendations are adopted unanimously, and the parties are required to seriously endeavour to comply with them.73 Since its creation, HELCOM has adopted about 50 recommendations relating to oil pollution control, which specify the treaty regulations. The recommendations indicate issues to which priority has been given in the co-operation of the Baltic Sea states. One such issue concerns reception facilities in ports. In 1996, HELCOM adopted the Baltic Strategy for Port Reception Facilities for Ship-generated Wastes and Associated Issues. In 1998, HELCOM also adopted a number of recommendations related to reception facilities. Other major concerns are technical standards, co-operation in investigations and enforcement, and combating. It is striking that among the numerous recommendations adopted, no single recommendation concerns ships’ routeing in the Baltic Sea Area. The 1974/92 Baltic Sea Convention is also applicable to dumping. When the 1974 Baltic Sea Convention entered into force in 1980, it prescribed the strictest international rules on dumping. With the exception of dredged materials, dumping in the Baltic Sea Area is prohibited.74 It should be recalled, however, that this prohibition only applies to the Baltic Sea states. By the 1996 Protocol to the 1972 Global Dumping Convention, the global dumping restrictions come closer to those of the Baltic Sea Convention. Moreover, it is possible for the Baltic Sea states to nationally prohibit dumping within their respective territorial sea and EEZ. Despite its regional scope, the co-operation within the 1974 and, subsequently, 1992 Baltic Sea Conventions may well have “global” implications and applica-

73 1974 Baltic Sea Convention, arts. 12-13; 1992 Baltic Sea Convention, arts. 19-20. HELCOM also adopts “resolutions” with respect to amendments of the annexes of the convention. 74 1974 Baltic Sea Convention, art. 9; 1992 Baltic Sea Convention, art. 11.

27 tion. This is particularly the case with enforcement and port state control. Nothing prevents the Baltic Sea states from agreeing on intensifying the control of ships entering their ports. Moreover, the Baltic Sea states may agree on applying stricter standards than those set out in the 1973/78 MARPOL Convention, as a condition for entering ports, as long as this is done in a non-discriminatory way. At the time of writing this report, the 1992 Baltic Sea Convention has not yet entered into force. Hence, the 1974 Convention is still valid. Even so, the 1992 Convention influences the work of HELCOM and the contracting states.

1982 Paris Memorandum on Port State Control In 1982, the maritime authorities of fourteen states, some of which are located in the Baltic Sea region, agreed on a Memorandum of Understanding on Port State Control (1982 Paris Memorandum).75 Since then, more states, also in the Baltic Sea region, have joined the Memorandum. Still, there are Baltic Sea states which have not yet joined the Paris Memorandum. As indicated by the title, the Memorandum focuses on port state control. Thus it does not set out standards of its own. Instead, the maritime authorities involved agree to enforce the existing maritime rules and standards more rigorously than has been done otherwise. According to the Memorandum, each authority has to inspect 25% of the estimated number of individual foreign merchant ships during representative periods of twelve months. Among the standards to be controlled are those set out by the 1973/78 MARPOL Convention, 1972 COLREG Convention, and 1974 SOLAS Convention. In addition to prescribing the inspection of at least 25 % of the entering ships, the memorandum sets out measures to be taken against ships that fail to meet international standards. The inspection officer may then detain the ship in order to ensure that the detected deficiencies are rectified. Port state control also includes the securing of evidence related to suspected violations, and the assistance to other states for that purpose. Moreover, the Memorandum establishes an information system. The authorities concerned should send daily messages to the “Centre Administratif des Affaires Maritimes” (in Saint-Malo, France). This information is then available for the authorities involved when inspecting ships in port.

1993 Agreement between Denmark, Finland, Iceland, Norway and Sweden on Co-operation in Combating Marine Pollution from Oil or Other Harmful Substances Three of the five parties to the 1993 Agreement between Denmark, Finland, Ice- land, Norway and Sweden on Co-operation in Combating Marine Pollution from Oil or Other Harmful Substances (1993 Nordic Co-operation Agreement)76 are located in the Baltic Sea region. The parties agree on various issues related to co-

75 Information and text at http://www.parismou.org. 76 SÖ 1997:16.

28 operation, preparedness and response. The obligation to notify each other applies to situations of significant marine pollution, but also to violations of anti-pollution regulations. The 1993 Nordic Co-operation Agreement goes further than the 1974 and 1992 Baltic Sea Conventions, by obliging the parties, upon request from another party, to take all possible measures to assist the requesting state. Practical arrangements in cases of assistance are also dealt with, such as facilitating border passages.

3.4 European Community Law The European Community has signed and ratified a great number of international environmental agreements, some of which relate to marine environments (e.g. the 1982 UNCLOS, the 1974 Baltic Sea Convention, and the 1992 Baltic Sea Convention). Even the EC has a certain measure of competence to adopt secon- dary legislation on shipping,77 however, it is not a party to any of the IMO Conventions. The relatively few legislative acts adopted relating to pollution from ships, focus on the control and enforcement in ports of existing standards of international law, but do not prescribe any anti-pollution standards themselves. In particular, EC legislation has aimed at improving the implementation of the 1982 Paris Memorandum. A piece of legislation that is relevant for the present report is the 1993 Directive Concerning Minimum Requirements for Vessels Bound for or Leaving Community Ports and Carrying Dangerous or Polluting Goods (Minimum Requirements Directive).78 This directive obliges the member states to require specific information (e.g. on safety installations) and documentation of the shipper, and to condition the entry into its ports upon the notification by the ship before the ship departs from the loading port. Such notification should include information about the ship, its cargo, and the intended route. The EC has also adopted legislation on port state control. As indicated by its long title, the 1995 Directive Concerning Enforcement, in Respect of Shipping Using Community Ports and Sailing in the Waters Under the Jurisdiction of the Member States, of International Standards for Ships, Pollution Prevention and Shipboard Living and Working Conditions (Port State Control Directive)79 aims to implement the 1982 Paris Memorandum. Thus, it prescribes the inspection of at least 25 % of ships entering the ports of each member state. It also defines the grounds for detention of ships, and the means to be taken in order to have deficiencies rectified. These two directives focus on e.g. the control of certificates and documentation of ships while in the ports of EU member states. In addition, a directive is currently being prepared for common rules on reception facilities. The directive is supposed to include provisions on adequate reception facilities, and

77 EC Treaty (Amsterdam, 1997), art. 80 (ex art. 84). 78 Council Directive 93/75/EEC, 13 September 1993, as amended. 79 Council Directive 95/21/EC, 19 June 1995, as amended.

29 on the application of a fee-system that encourages ships to use the facilities rather than discharging the waste at sea.80 Besides the directives on shipping, EC legislation on nature conservation is applicable to the member states’ territorial seas in the Baltic Sea Area. The 1979 Directive on the Conservation of Wild Birds (Birds Directive),81 and the 1992 Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitat Directive)82 both apply to species which breed and rest in marine environments. The Habitat Directive explicitly covers marine environments. These pieces of legislation are relevant for the protection of marine areas in the territorial waters of the member states.

80 Cf. . 81 Council Directive 79/409/EEC, 2 April 1979, as amended 82 Council Directive 92/43/EEC, 21 May 1992, as amended.

30 4 Anti-pollution Standards — Discharge Limits, Ship Design and Equipment

4.1 International (Global and Regional) Norms and Regulations

General The design and equipment of ships are subject to more than one IMO convention. The 1974 SOLAS Convention, for instance, lays down standards relating to the construction. It also prescribes the use of various instruments for navigation, which may add to reducing the risk of oil pollution. Still, the construction and equipment as well as discharge limits related to oil pollution in particular are basically regulated in two international conventions of relevance for the Baltic Sea Area: the 1973/78 MARPOL Convention, of a global application, and the 1974 Baltic Sea Convention. (As mentioned in section 1.2, when the 1992 Baltic Sea Convention enters into force, it replaces the 1974 Convention.) In addition to prescribing technical standards, these two instruments also set discharge limits. In this section, as opposed to the following sections, the global and regional rules will be presented together. The Baltic Sea Area is a “special area” for oil pollution prevention under the 1973/78 MARPOL Convention (annex I), which means that stricter discharge rules apply to this area than to sea areas in general.83 The delimitation of the Baltic Sea Area as a special area in the 1973/78 MARPOL Convention is similar to the Baltic Sea Convention’s area of application,84 i.e. it includes the waters up to the parallel of the Skaw in the Skagerrak. When the 1974 Baltic Sea Convention was signed (and until the mid-1980s), not all parties to the Convention were also parties to the 1973/78 MARPOL Convention. In order to make these provisions applicable to all the Baltic Sea states, the 1974 Baltic Sea Convention initially reproduced the provisions of Annex I of the 1973/78 MARPOL Convention. Since 1986, all parties to the 1974 Baltic Sea Convention

83 Besides the Baltic Sea Area, the “North Western European Waters” (which include the North Sea, Irish Sea, the Celtic Sea, the English Channel, and the waters immediately West of Ireland), the Mediterranean, Black Sea, Red Sea, Persian Gulf, Gulf of Aden, and the Antarctic area are recognised as “special areas” for the purpose of oil pollution prevention. 84 While of little relevance with respect to shipping, it should be pointed out that, formally, the 1974 Baltic Sea Convention, but not the 1992 Baltic Sea Convention, is inapplicable to the internal waters of the parties.

31 are also parties to the 1973/78 MARPOL Convention.85 Therefore the 1974 Baltic Sea Convention was amended, so as to read: “The Contracting Parties, also being parties to MARPOL 73/78, apply in conformity with that agreement the provisions of Annex I of MARPOL 73/78 for the prevention of pollution by oil.”86 In the same vein, the 1992 Baltic Sea Convention simply prescribes that: ”[s]ubject to [particular regulation on sewage] the Contracting Parties shall apply the provisions of the Annexes of MARPOL 73/78.” Thereby, when analysing the international rules on discharge, construction, and equipment related to oil pollution and applicable to the Baltic Sea Area, it is sufficient to study the special area regulations of the 1973/78 MARPOL Conven- tion. Yet, HELCOM has adopted recommendations aiming at improving the implementation and enforcement of these provisions in the Baltic Sea Area. These recommendations will be taken into consideration. The means of international law for controlling compliance with these discharge restrictions and technical standards, are described in sections 5 and 6.

Discharge Limits The discharge standards of the 1973/78 MARPOL Convention, annex I, have been amended since its entry into force, in particular by the 1992 Amendments. It is now completely prohibited to discharge oil from oil tankers and any ship in a special area. Thus, while being in such an area, these ships must retain oil drainage, dirty ballast and tank washing water on board until they reach a reception facility where it can be discharged. Discharge from machinery space bilges from these ships is allowed provided that all the following conditions are satisfied:

• the bilge water does not originate from the cargo pump-room bilges; • the bilge water is not mixed with oil cargo residues; • the ship is proceeding en route; • the oil content does not exceed 15 ppm; and • the ship is fitted with oil filtering equipment and monitoring and control systems. Discharges from ships of less than 400 tons gross tonnage are also prohibited, except when the oil content of the effluent without dilution does not exceed 15 ppm.87 All other residues, such as sludge, must be kept on board and brought to port reception facilities. As is further described in section 9.1, however, the duty of ships to bring residues to the port corresponds to a duty of the port state to provide adequate reception facilities.

85 Before that, HELCOM adopted recommendations, that all the Baltic sea states ratify or accede to the 1973/78 MARPOL Convention. Cf. HELCOM Recommendation 1(1), and 2(2). 86 Cf. HELCOM Recommendation 8(4). 87 1973/78 MARPOL Convention, annex I, reg. 10.

32 In 1997, a protocol to the 1973/78 MARPOL Convention was signed, which adds a sixth annex to the Convention. This annex deals with air pollution, and it has not yet entered into force. The protocol sets limits on emissions of sulphur oxide, nitrogen oxide, and prohibits deliberate releases of ozone depleting substances. It also defines limits on the content of sulphur in fuel oil. In this protocol, the Baltic Sea is designated as a “SOx Emission Control Area”, in which stricter criteria apply. HELCOM recommended the development of standards for air pollution from ships already in 1990.88 For this purpose, HELCOM has also recommended the use of marine fuels with low sulphur content.89

Construction and Equipment The 1973/78 MARPOL Convention also sets standards on the construction of ships and the equipment used on the ship. These regulations are of a highly technical character, and concern the prevention of oil pollution from tanks as well as from machinery space, releases entailed by operational activities as such and by grounding. The requirements differ depending on the age, size, and type of ship. To some extent, alternative options are given on the construction and equipment for preventing oil pollution. Means available for limiting releases of oil are segregated ballast tanks, dedicated ballast tanks, crude oil washing, and the use of slop tanks and sludge tanks on board. All these measures are subject to regulations by the 1973/78 MARPOL Convention. The essential purpose of these regulations is to keep apart oil and ballast water, and to retain on board the oily waste from tank cleaning and machine space bilges until the ship calls a port.90 For this purpose, oil filtering equipment and oily water separation equipment are prescribed. Besides the use of filtering and separation equipment, the 1973/78 MARPOL Convention also obliges the parties to ensure the use of instruments for the monitoring of discharge. Thus, oil discharge monitoring and control system as well as oily- water separating and oil filtering equipment are prescribed.91 Finally, as regards oil management, the 1973/78 MARPOL Convention regulates pumping, piping and discharge arrangements of oil tankers,92 and the connection devises for discharge of oil in port.93 HELCOM has issued recommendations on the use of oily-water separating and oil-filtering equipment, and the use of holding tanks. For the purpose of preventing oil pollution from machinery spaces of ships of less than 400 tons gross tonnage, HELCOM “requests” that before 2002, the parties should require

88 Cf. HELCOM Recommendation 11(12). 89 HELCOM Recommendation 13(15). 90 1973/78 MARPOL Convention, annex 1, reg. 10, 13-13E, 14, 15 and 17. 91 1973/78 MARPOL Convention, annex I, reg. 16. 92 1973/78 MARPOL Convention, annex I, reg. 18. 93 1973/78 MARPOL Convention, annex I, reg. 19. Cf. HELCOM Recommendation 1(12).

33 such equipment for this category of ships. This would comply with the regulations of the 1973/78 MARPOL Convention.94 In addition to limiting pollution during operation, the 1973/78 MARPOL Con- vention prescribes measures for reducing the risk of oil pollution in the event of collision or stranding.95 HELCOM has also adopted recommendations for the promotion of safer oil tankers and the carriage of dangerous and polluting substances.96 Besides technical arrangements, these measures include notification and information procedures, as well as the use of local vessel traffic service (VTS), where such exist.

4.2 European Community Law The European Community has not been engaged in setting its own standards on the construction and equipment of ships. As pointed out in sections 5 and 6, it has set out legislation on the control of compliance with international norms on construction etc., applicable to member states when acting as flag and port states.97

4.3 Comments and Conclusions Any discharge from the cargo from any ship is prohibited when sailing in a special area, and the oil content of effluents from the machine room must never exceed 15 ppm. The additional obligations, relating to technical equipment, are intended to control that the 15 ppm limit is not exceeded. Thus, oil separating/filtering equipment and a monitoring and control device are supposed to verify that no violations occur. For various reasons, releases of oil in the Baltic Sea Area frequently emanate from the machine room. One such release results from the mixing of oily water with grey water (i.e. washing water). In practice, the maintenance of the separation system, when based on gravimetric separation, fails when the oily water is mixed with grey water that includes water-based detergents. Such blends create stable oil/water emulsions, which are impossible to break in a conventional gravimetric bilge water separator. However, there are now in place other kinds of separation technology that may deal with these problematic emulsions. Therefore, the Baltic Sea states as well as HELCOM should consider having the 1973/78 MARPOL Convention amended so as to prevent the mixing of grey water and oily water. HELCOM should also prepare a recommendation for this purpose.

94 HELCOM Recommendations 2(3), 14(6), and 19(10). 95 1973/78 MARPOL Convention, annex 1, reg. 13F-G, 22-26. 96 HELCOM Recommendations 12(5) and 19(15) 97 Cf. 1993 Minimum Requirement Directive, and 1995 Port State Control Directive.

34 5 Certification and Keeping of Oil Record Books

5.1 Global Norms and Regulations The use of certificates is wide-spread in the field of oil pollution control, and the IMO has adopted a number of standards for certificates, in order to maintain similar certificate arrangements world-wide. The flag state may certify ships under its flag when complying, e.g. with internationally agreed standards on the safety of navigation and ship construction (1974 SOLAS Convention), crew capacity (1978 STCW Convention), and oil pollution prevention requirements (1973/78 MARPOL Convention). Certification is also a means of facilitating and improving the control of compliance; a ship registered in and certified by one state should be controllable by the administration of any other state, when in port or when violating norms and standards in coastal waters. Control of certificates is an essential part of port state control. The 1973/78 MARPOL Convention establishes different certificates for different cargoes. After survey in accordance with the Convention, an Interna- tional Oil Pollution Prevention Certificate (IOPP Certificate) may be issued to any oil tanker 150 tons gross tonnage and above or other ship above 400 tons gross tonnage. The certification involves a control that the ship complies with the Convention, and a particular form is prescribed for such certificates. Issues to be certified are e.g., the equipment for the control of oil discharge from machinery space bilges and oil fuel tanks, means for the retention and disposal of oil residues, standard discharge connection, shipboard oil pollution emergency plan, and the construction (segregated ballast tanks, dedicated clean ballast tanks). A certificate can be issued either by the flag state administration, as identified by the party, or by any person or organisation, which is authorised by the flag state administration. Upon request from the flag state administration of a party, another may issue the IOPP Certificate for ships not sailing its flag.98 The IOPP Certificate is only valid for a certain period of time, which shall not exceed five years. Under certain conditions, it may also cease to be valid even before that time has expired.99 During the time of validity, parties to the Convention must accept a certificate issued in accordance with the Convention by the Administration of another party.100 In addition to the IOPP Certificate, every oil tanker of 150 tons gross tonnage and above, and every ship of 400 ton gross tonnage and above other than oil

98 1973/78 MARPOL convention, annex I, reg. 5 and 6. 99 1973/78 MARPOL Convention, annex I, reg.8. 100 1973/78 MARPOL Convention, art 5.

35 tankers shall be provided with an Oil Record Book. This book consists of two parts: part I concerns machinery space operations (to be provided by all categories mentioned), and part II cargo/ballast operations (to be provided by all oil tankers of 150 tons gross tonnage).101 Besides the 1973/78 MARPOL Convention, the 1974 SOLAS Convention prescribes certificates to signify that the ship meets the requirements of that Convention, and the 1978 STCW Convention to verify the capacity of masters, chief mates and officers in charge of navigational watches. As pointed out, certification is essential for port state control. When in a port under the jurisdiction of a party to the 1973/78 MARPOL Convention, ships are subject to inspection of port state officers. Such inspections should be limited to verifying the valid certificate on board, unless there are “clear grounds” for believing that the condition of the ship does not correspond to the certificate. In such a case or if the ship does not carry a valid certificate, the port state may detain the ship until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment. A port state may also inspect a ship where there are clear grounds for believing that the master or crew is not familiar with essential shipboard procedures relating to oil pollution prevention. In such circumstances, the port state shall take measures so as to ensure that ship does not sail until the situation has been brought to order.102 Parties to the 1973/78 MARPOL Convention are under an obligation not to apply more favourable requirements to ships of non-parties to the Convention.103 The enforcement powers of states are not only a concern of the 1973/78 MARPOL Convention. Port state control measures are also covered by the comprehensive 1995 IMO Procedures on Port State Control and by certain regional instruments, such as the 1982 Paris Memorandum on Port State Control, and the 1995 EC Port State Control Directive. To a considerable extent, the 1995 IMO Procedures and the 1982 Paris Memorandum are similarly structured. This is also the case with the EC Directive. In fact the 1995 IMO Procedures on Port State Control are based on the 1982 Paris Memorandum, but do not prescribe the amount of inspections in terms of percentage rate. The IMO Procedures apply to ships, e.g. under the provisions of the 1974 SOLAS Convention, 1973/78 MARPOL Convention, and 1978 STCW Convention, but it is also made explicit that ships of non-parties must not be given more favourable treatment. The initiative to inspections under the IMO Procedures may come from the port state itself, a contracting party to any of the IMO Conventions, members of the crew, professional bodies, trade unions, or other individuals. If the certificates are valid and the inspection officer’s general impression and visual observations on board confirm a good standard of maintenance, the inspection officer should generally confine the inspection to reported deficiencies. However, if the inspection officer, from general impressions or observations on board, has “clear grounds” for believing that the ship, its equip-

101 1973/78 MARPOL Convention, annex I, reg. 20 and appendix 3. 102 1973/78 MARPOL Convention, annex I, reg. 8A. 103 1973/78 MARPOL Convention, art 5.

36 ment or its crew do not substantially meet the requirements of the various IMO Conventions, s/he should proceed to a more detailed inspection.104 This is further described in section 6.

5.2 Regional Norms and Regulations

1982 Paris Memorandum on Port State Control The notion of the 1982 Paris Memorandum is also that the inspection consists of a visit on board in order to check certificates and documents under e.g. various IMO Conventions. In the absence of valid certificates or documents or if there are clear grounds for believing that the conditions of the ship, its equipment, or the crew do not substantially meet the requirements of the relevant conventions, a more detailed inspection should be carried out. The guidelines for such inspections are further described in section 6.105

1974/92 Baltic Sea Convention The provisions of the Baltic Sea Convention concerning oil pollution from ships simply refer to the 1973/78 MARPOL Convention. Thus, no particular certificate related to oil pollution is established under the 1974 or 1992 Baltic Sea Conven- tions.106 As pointed out however, already in its first years of activity HELCOM issued recommendations, that the Baltic Sea states should join the global conventions on oil pollution control. Thereby, the parties would have been required to issue and control the various certificates.107 HELCOM has also adopted a recommendation, stating that the parties should use and recognise the IOPP Certificate and the Oil Record Book established by the IMO.108 Still, this is a field in which HELCOM has provided little impetus, e.g. with respect to the control of certificates, and where there is a potential for further activities of HELCOM.

5.3 European Community Law Control of certificates is one of the oil pollution issues on which the European Community has adopted legislation. The 1995 Port State Control Directive,

104 1995 IMO Procedures for Port State Control, para 2.2 (IMO Resolution A.787 (19)). 105 1982 Paris memorandum, sec. 3(1). 106 The 1992 Baltic Sea Convention, annex IV, reg. 5(g), does establish a particular Sewage Pollution Prevention Certificate. 107 Cf. HELCOM Recommendation 1(1), and 2(2). 108 HELCOM Recommendation 4(2), on the use and recognition of these instruments, and HELCOM Recommendation 7(7), concerning recording of fuel oil bunkering operations in the Oil Record Book.

37 which is based upon the 1982 Paris memorandum and the 1995 IMO Procedures on Port State Control, obliges the member states to carry out inspections corresponding to at least 25 % of the ships entering their ports. In addition to satisfy him-/herself of the overall condition of the ship, the inspection officer must check the certificates set out by, e.g. the 1973/78 MARPOL Convention, 1974 SOLAS Convention, and 1978 STCW Convention. Where there are clear grounds for believing, after the inspection, that the condition of the ship, the equipment or the crew do not substantially meet the requirements of these conventions, s/he has to carry out a more detailed inspection.109

5.4 Comments and Conclusions The existing international rules on certification are of a global application, while little has been done on a regional basis to further this means of control. Still, it would be possible for the Baltic Sea states to improve the control related to the IOPP Certificate. This certificate includes a test of the oil-filtering device. According to information from the Swedish Maritime Administration, however, such tests do not examine whether the separating/filtering equipment functions adequately under real conditions, they only include a test of the maintenance of the 15 ppm limit under ideal conditions. This should be changed, and methods should be developed for examining the separating/filtering equipment under conditions that correspond to real life situations. Considering the inadequacy of gravimetric separation systems, indications in the IOPP Certificate, that the ships uses such a system should be presumed as a “clear ground” for a more detailed inspection.

109 1995 Port State Control Directive, arts 2 and 6.

38 6 Enforcement, Surveillance and Sanctions

6.1 Global Norms and Regulations It is well known that of all oil discharges, only a few entail legal consequences, in terms of criminal or administrative procedures.110 Despite the likely impact of international oil-pollution standards on the behaviour of actors involved, such agreements make little sense without some control and enforcement mechanism. However, oil pollution control is complicated in many respects. Not only is it difficult to observe the numerous ships that operate in huge areas, and to a great extent in international waters. Insufficient enforcement is also a result of jurisdictional restrictions and co-operational shortcomings. In section 5, one means of enforcement, the checking of certificates, was presented. In addition to the checking of certificates, control and enforcement involve practical matters and arrangements, such as:

• surveillance, • reporting systems, • inspections by flag, port and coastal states, • detention of ships which do not comply with international and national norms, • securing of evidence, and • bringing violations to court. This section describes to what extent the means listed above are part of the international law. Surveillance and reporting are not only a part of enforcement, but are also means of combating oil pollution. Therefore, these means are also dealt with in section 8, which focuses on combating. The 1973/78 MARPOL not only defines standards on discharges, construction, and equipment of ships, it also obliges the parties to prohibit, under national law, violations of its requirements and to establish sanctions therefore applicable to ships sailing its flag. Thus, the flag state is obliged to institute criminal proceedings against ships under its flag, which may have violated the Convention.111 Previously, enforcement of international pollution standards was basically a matter for the flag state. Even though flag state control remains important, port

110 According to Swedish statistics, during 1994, 1995, and 1996, the Swedish Coast Guard registered respectively 415, 482, and 411 releases of oil in the Swedish response region. During these years, less than a handful of cases of oil releases resulted in convictions in court. See Oljeutsläppsutredningen, p 106. 111 1973/78 MARPOL Convention, arts. 4 and 6.

39 state control has become increasingly significant in order to have these international norms enforced. The 1982 UNCLOS expands the jurisdictional competence of port states as far as enforcement is concerned. Thus, a port state may now not only initiate legal proceedings where a ship has violated international and national standards in the territorial sea; it may also act when the ship is alleged to have violated international anti-pollution standards in its economic zone and even on the high seas.112 The 1973/78 MARPOL Convention also provides for port state control. Port states may inspect foreign ships and also detain the ship if it does not carry a valid certificate or if the conditions of the ship do not seem to correspond to the particulars of the certificate. In such cases, the port state should inform the flag state concerned. It should also ensure that a ship does not sail until it can proceed without posing a threat of harm the marine environment.113 Some enforcement power is also conferred on coastal states, acting when the ship is navigating in its coastal waters. The scope of coastal state enforcement changed somewhat with the 1982 UNCLOS. The 1958 Territorial Sea Convention generally permits coastal states to enforce violations of their pollution legislation, even if stricter than the regulations of international law. The 1982 UNCLOS limits the scope of coastal state control, in terms of the kind of pollution regulations it may unilaterally enforce. Coastal states may adopt laws and regulations applicable to foreign ships in its territorial sea, but such laws must not apply to the design of ships, unless these are giving effect to generally accepted international rules or standards.114 In other words, a coastal state may not apply national law on ship design to foreign ships that go further than the standards of international law. Subject to qualifications, a coastal state, too, may enforce its legislation in the territorial sea and the economic zone. The competence depends on where — in which marine zone — the violation as well as the enforcement measures took place. Enforcement measures of port and coastal states range from obliging the ship to give information and to provide the certificates required, via physical inspections and investigations, to detention, and the institution of criminal procedures. This includes the securing and preservation of evidence. For the purpose of detecting violations, states are also encouraged to co-operate in securing evidence.115 Such co-operation may take place between a port state and a flag state, but it may also involve two port states, where the one secures evidence for the other. Accordingly, a state may inspect and furnish evidence from a ship which enters its port upon request from another party to the Convention, be it the flag state or another state. The report of such an investigation should be sent to the requesting party. If the requesting party is not the flag state of the ship, a copy

112 1982 UNCLOS, art. 218. For a description of the changes following the 1982 UNCLOS, see Churchill & Lowe, pp 248-262. 113 1973/78 MARPOL Convention, art 5, and annex I, reg. 5 (IOPP Certificate) and 20 (Oil Record Book). 114 1982 UNCLOS, art. 21(2). 115 Cf. 1973/78 MARPOL Convention, art 6.

40 of the report should also be sent to the flag state administration.116 International enforcement co-operation may also consist of one port state instituting proceedings against a ship for discharges or other violations that took place in the territorial sea or economic zone of another state. This, too, requires a request from that state or from the flag state.117 The securing of evidence is decisive when cases involving violations of anti- pollution standards are brought to court. In the international context, providing assistance in securing evidence has been a difficult matter, since different states ask for different kinds of information, depending on e.g. the legal system and the demands of the courts for convicting. The IMO has adopted several resolutions relating to enforcement, control, and assistance; the latest being the 1995 IMO Procedures for Port State Control,118 which draws considerably on the 1982 Paris Memorandum. As pointed out, the 1995 EC Port State Control Directive also draws on the 1982 Paris Memoran- dum. Port state control usually involves a visit on board in order to check the certificates and documents required. Relevant documents related to the 1973/78 MARPOL Convention are the IOPP Certificate, including the attached Record of Construction and Equipment, and the Oil Record Book. If these certificates are not in order or if the inspection officer, from a general impression or visual observations on board, has “clear grounds”119 for believing that the ship, its equipment or its crew do not substantially meet the conditions set out in e.g. the 1973/78 MARPOL Convention, s/he should proceed to a more detailed inspection. Such inspection should include engine rooms, but also, in the case of oil tankers, the cargo tank and pump room areas. The IMO Procedures also set out guidelines on the information needed for the prosecution of possible violations. Hence, when preparing a report on deficiencies, where a contravention of the discharge requirements is involved, the authorities of the coastal or port state should be guided by the itemised list provided. This list classifies the information to be provided to the requesting authority under the following titles and sub-titles:120

Action on sighting oil pollution: • Particulars of ship or ships suspected of contravention, • Particulars of slick, • Identification of the observer(s), • Method of observation and documentation, • Other information if radio contact can be established. Investigation on board:

116 1973/78 MARPOL Convention, art. 6. 117 1982 UNCLOS, art. 218(2) 118 IMO Resolution A.787(19). This resolution revoked e.g. the previous IMO Procedures for the Control of Ship and Discharge under Annex I of MARPOL 73/78 (IMO Resolution A.542(13)). 119 This concept is defined in the IMO Procedures on Port State Control, para. 2.3 120 1995 IMO Procedures on Port State Control, appendix 2.

41 • Inspection of IOPP Certificate, • Inspection of supplement of the IOPP Certificate, • Inspection of Oil Record Book, • Inspection of logbook, • Inspection of other documentation on board, • Inspection of ship (including additional evidence for oil tankers), • Statements of persons concerned. Investigation ashore: • Analyses of oil samples, • Further information. Information not covered by the above titles. Conclusion. Each title in the itemised list includes further details and sub-questions to be used when securing evidence. The report of the port state should aim at providing the optimal collation of obtainable data, and should be supported by facts which, when considered as a whole, would lead the requesting port or coastal state to believe that a contravention has occurred. This should include:121

• a statement by the observer of the pollution; • statements concerning the sampling procedures both for the slick and on board; • reports of analyses of samples taken; • a statement by the inspection officer on board; • statements by persons being questioned; • statements by witnesses; • photographs of the oil slick; and • copies of relevant pages in the Oil Record Book. The use of these lists has also been encouraged by HELCOM and under the 1983 Bonn Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances (1983 Bonn Agreement).122 If, upon inspection, the port state determines that the ship in question can be regarded as substandard with respect to the criteria laid down in the relevant convention it should not only secure evidence. It also has to immediately ensure that corrective measures are taken to safeguard the safety of the ship and to eliminate any threat of harm to the environment before permitting the ship to sail.123 The last step in the line of enforcement is that of sanctioning the violations. If the evidence is sufficient to convict a crime, the question is how severe the sanctions should be. While international treaties usually do contain a provision where

121 Ibid. 122 The Manual on Oil Pollution at Sea, adopted by the Bonn Agreement Contracting Parties, refers to the now revoked IMO Resolution A.542(13), “Procedures for the Control of Ship and Discharge under Annex I of MARPOL 73/78”, which includes a more or less identical list. So do HELCOM Recommendations 6(13) and 10(8), while HELCOM Recommendation 19(16) refers to IMO Resolution A.787(19), Procedures for Port State Control. 123 1995 IMO Procedures for Port State Control, para. 4.4.

42 the parties agree to sanction and punish violations of the norms concerned, states have generally been reluctant to agree internationally on the kind of sanction or the severity of the penalty. One of the few exceptions to this is found in the 1982 UNCLOS. While each party is free to impose imprisonment with respect to violations by national vessels, this is not the case when the violation is committed by foreign ships. If the violation of national or international anti-pollution rules has taken place beyond the territorial sea, the coastal and/or port state, as the case may be, may only impose monetary penalties. This applies also to violations within the territorial sea, except in the “case of a wilful and serious act of pollution”.124 No further guidance is given as to what constitutes a wilful and serious act of pollution, and the coastal and port states do have a certain leeway in determining this. Since violations of other regulations than discharge violations cannot be considered acts of pollution, they can not entail other than monetary penalties.125 In addition to penalties, civil liability regimes provide a kind of economic incentive for persons and companies not to pollute. Yet, while important with respect to damage from oil pollution incidents, the 1969/92 Civil Liability Convention does not apply to intentional discharges from ships. No such rules have yet been adopted, nor are there any international rules on liability from damage caused by dumping. 126

6.2 Regional Norms and Regulations

1982 Paris Memorandum On Port State Control The 1995 IMO Procedures on Port State Control resemble those of the 1982 Paris Memorandum, and in great parts the formulations are identical. Besides prescribing an inspection rate of at least 25 % of the ships entering the state’s ports, the Memorandum sets out measures and guidelines on enforcement and assistance. If, upon inspection, the ship fails to carry any of the prescribed certificates or if there are clear grounds for believing that the ship does not substantially meet the requirements of any of the relevant instruments (e.g. the 1973/78 MARPOL Convention), a more detailed inspection shall be carried out. Since the issues to be inspected as well as the itemised list of information in cases of securing evidence also resemble those of the 1995 IMO Procedures, they are not duplicated in this section. The port state may also detain ships. The Memorandum provides criteria to be considered when deciding whether to detain a ship or not. Besides the lack of valid certificates, the following cases may constitute reasons for detention related to the regulation of the 1973/78 MARPOL Convention:

124 1982 UNCLOS, art. 230. 125 Cf. Jaap Molenaar, p 465. 126 Cf. the 1996 Protocol to the 1972 Global Dumping Convention, art. 15, where the parties agree to develop such rules.

43 • absence, serious deterioration or failure of proper operation of the oily-water filtering equipment, the oil monitoring and control system, or the 15 ppm alarm arrangements; • remaining capacity of slop and/or sludge tank insufficient for the intended voyage; • oil record book not available; • unauthorised discharge bypass fitted.

1974/92 Baltic Sea Convention The 1974/92 Baltic Sea Convention does not contain any provision on port state control, but HELCOM has adopted a recommendation that the Baltic Sea states, which have not yet done so, join the 1982 Paris Memorandum.127 While neglecting the issue of port state control, the Convention places the parties under a general obligation to “develop and apply, individually or in co-operation, surveillance activities covering the Baltic Sea Area”.128 Surveillance activities are means of enforcement as well as combating. HELCOM has recommended the parties to introduce airborne surveillance with remote sensing equipment (possible to use at night) as a means for improving the possibility of using the information as evidence in court. The parties should endeavour to cover the whole Baltic Sea Area and to co-ordinate their surveillance outside territorial waters. The introduction of airborne surveillance should have been implemented by the end of 1994, but according to information provided by HELCOM in April 1999, this recommendation has not yet been fully implemented.129 Despite the lack of a legal provision for port state control in the 1974 and 1992 Baltic Sea Conventions, it is agreed that states should assist one another in the enforcement of violations of anti-pollution laws: “The Contracting Parties shall … as appropriate assist each other in investigating violations of the existing legislation on anti-pollution measures, which have occurred or are suspected to have occurred within the Baltic Sea Area. This assistance may include but is not limited to inspection by the competent authorities of oil record books, cargo record books, log books and engine log books and taking oil samples for analytical identification purposes.”130 For this end HELCOM has adopted guidelines on the assistance in investigating violations or suspected violations of discharge and related regulations for ships.131 These guidelines are based on the IMO Procedures on Port State Con-

127 HELCOM Recommendation 15(4). 128 1974 Baltic Sea Convention, annex VI, reg. 3; 1992 Baltic Sea Convention, annex VII, reg 3. 129 HELCOM Recommendation 12(8). Information on the implementation at HELCOM web site, http://www.helcom.fi/reclist.html#HELCOM RECOMMENDATION 20/1 (1999-04-06). 130 1974 Baltic Sea Convention, annex IV, reg. 2. With some minor editorial changes, this provision remains intact in the 1992 Baltic Sea Convention, annex IV, reg. 2. 131 HELCOM Recommendations 6(13), 10(8), and 19(16).

44 trol, and thus also resemble the 1982 Paris Memorandum. Requests for legal and administrative assistance in investigating a violation, may include the following information:

• search for suspected ship, identification of the master and/or other responsible persons; • reporting of a possible discharge; • taking of oil samples from ships and/or spillages; • analyses of samples; • inspection and/or copying of ship’s documents (log book, oil record book etc.); • obtaining of statements from ship’s personnel; • inspection of certain equipment on board ships; • inspection of slop and oily-water collecting tanks; • inspection of cargo (dumping); • verification of registration, owner of ship, insurance etc.; and • collection of other evidence. In addition to checklists and practical recommendations on how to assist one another, HELCOM identifies the national authorities of each Baltic Sea state responsible for such co-operation. HELCOM has also initiated a project on developing a manual specifying the requirements for a conviction in cases of violation of anti-pollution regulations in the contracting states.132 Furthermore, on the inspiration of EC law, the Baltic Sea states are asked to apply minimum requirements for vessels bound for or leaving ports of the Baltic Sea states and carrying dangerous and polluting goods.133 The shipper must give a declaration to the master/operator of the ship about the cargo and the properties of the cargo. The Baltic Sea states should condition any entry to their ports or anchorage located in their territorial sea of ships carrying dangerous or polluting goods upon a notification, including information about e.g. the ship, the estimated route, and the dangerous/polluting cargo. Vessels entering or leaving a port of a Baltic Sea state should be required to use existing local vessel traffic service and pilots. The most substantial measure taken by HELCOM with regard to sanctions is a harmonized system of fines to be applied to violations of anti-pollution standards.134 By this rather unusual measure, minimum fines are set for the Baltic Sea Area. The violations concerned include discharges against the 1973/78 MARPOL Convention, violations of the obligation to keep the Oil Record Book properly filled-in, and lack of signature in Oil Record Books. The parties should allow fines to be imposed on legal persons, fines substantially higher than those on natural persons, but should not make any difference in the level of fines imposed on nationals of the contracting parties and foreigners. The agreed minimum levels of fines are defined in Special Drawing Rights (SDR).

132 HELCOM Recommendation 16(1). 133 HELCOM Recommendation 19(15). 134 HELCOM Recommendation 19(14).

45 The minimum fine for illegal discharge is set at 1,500 SDR. In determining the fine for illegal discharge, the quantity of the illegally discharged oily residues and the harm caused to the environment should be considered. Failures to properly keep the Oil Record Book should result in no less than 500 SDR. Relevant criteria when determining the fine are the period of time during which no book has been properly kept, and the quantity of sludge not accounted for. The same minimum fine should be imposed if entries in the Oil Record Book are missing or wrong, or if a signature is lacking. In determining the fine, it should be considered whether the violations were committed intentionally or negligently. Higher fines should be imposed on intentional violations. Discharges at night may be an indication of an intentional violation. Apart from these measures, HELCOM has only taken a few measures with regard to sanctions in terms of civil liability. Civil liability can be seen as a kind of sanction. Despite the existence of an article in the 1974 Baltic Sea Convention, where the parties agree to develop rules concerning responsibility for damage resulting from acts or omissions in contravention of the convention, so far no such rules have been developed.135 Such a provision remains in the 1992 Baltic Sea Convention.136 The only “development” of this provision is a HELCOM Recommendation, according to which the parties should accede to or ratify existing IMO conventions on civil liability, i.e. the 1969/92 Civil Liability Convention and the 1971/92 Fund Convention.137

1993 Nordic Co-operation Agreement This agreement is particularly devoted to combating oil pollution, but to a limited extent it also applies to co-operation in enforcement. If a party to the Nordic Agreement finds out that a violation of anti-pollution regulations has taken place in the waters of another party, it must notify the state in question. The parties are also obliged to assist each other in securing evidence for the purpose of initiating legal proceedings. This includes criminal cases as well as cases involving civil liability.

6.3 European Community Law As pointed out, the 1993 Minimum Requirement Directive sets minimum requirements for vessels bound for or leaving ports of the member states and carrying dangerous and polluting goods.138 The ship bound for a port in any member state must notify the competent authority of the respective state about e.g. the ship, the route, and the cargo. When acting as port states, the member states are obliged to make these requirements a condition for the entry of ships to its ports

135 1974 Baltic Sea Convention, art. 17. 136 1992 Baltic Sea Convention, art. 25. 137 HELCOM Recommendations 10(11) and 15(4). 138 Directive 93/75/EEC.

46 and the anchorage located in its territorial sea. Thus, a member state must not allow a ship to enter its ports unless the operator of the ship, before departing from the loading port, provides the port to be entered with the prescribed information on dangerous or polluting goods. The 1995 Port State Control Directive transforms the notions of the 1982 Paris Memorandum into EC law.139 If upon inspection, there are clear grounds for believing that a ship does not substantially meet the requirements of e.g. the 1973/78 MARPOL Convention, a more detailed inspection shall be carried out in accordance with prescribed procedures. The port state should be satisfied that any deficiencies confirmed or revealed by the inspection are or will be rectified. If the deficiencies are clearly hazardous to safety, health or the environment, the port state shall ensure that the ship is detained. The Directive lists guiding criteria to determine whether the deficiencies should result in a detention. The detention must not be lifted until the deficiencies are removed.

6.4 Comments and Conclusions The internationally established routines for port state control (e.g. the 1982 Paris Memorandum, the 1995 IMO Procedures for Port State Control, and the HELCOM guidelines) are particularly concerned with the control of certificates, and the inspection officer’s general impression and visual observations. These observations are indicators for a more detailed inspection. Considering the problem with unsatisfactory separation/filter systems, the port state control system should be further developed so as to include a mandatory control of such systems. Processes and equipment for a simplified control of these systems are being developed. Making such control a part of port state inspections would improve the maintenance of the 15 ppm limit of oil. Nothing prevents port states from controlling the separation/filtering equipment as a part of ordinary port state control, although it is preferable that this notion is put into the international guidelines on port state control. Until the control of bilge water separation equipment becomes mandatory as a part of port state control, the use of gravimetric separation equipment in a ship subject to port state control should indicate “clear grounds” in the context of port state control. Thus it should result in a more detailed inspection including the capacity of the separation equipment. Indications on the equipment used can be found in the IOPP Certificate. While international treaties frequently oblige the parties to sanction violations of anti-pollution standards, the kind of penalty to be imposed is usually a matter for each state to decide. As pointed out, the 1982 UNCLOS is an exception to this. Moreover, HELCOM has set out a harmonized system of minimum fines, applicable to violations of the 1973/78 MARPOL Convention. These fines should apply to violations committed on ships of considerable size. With this in mind, the minimum fines of 1,500 SDR for an illegal discharge are low. HELCOM should elaborate on the possibility of increasing the minimum levels of fines for

139 Directive 95/21/EC.

47 violations of anti-pollution regulations. At least, it should be possible to increase the limits for ships above 150 tons gross tonnage. HELCOM has adopted recommendations on airborne surveillance. Enhanced and intensified airborne surveillance in biologically sensitive areas, such as bird breeding areas, could add to the protection of these areas. If information about such surveillance is distributed to all ships entering and leaving ports of the Baltic Sea states, it could also have the effect of preventing oil releases when the ship is close to a sensitive area. For this purpose, HELCOM should consider adopting guidelines on intensified surveillance in biologically sensitive areas, combined with the dissemination of information to ships (carrying dangerous and/or polluting goods entering or leaving ports in the Baltic Sea Area), about the surveillance in the areas concerned. Such information could be given when ships notify the competent authority of the Baltic Sea state concerned (according to EC law and HELCOM guidelines). One relevant area is that located south-east of Gotland, Sweden. In some legal systems, courts are reluctant to accept indications from remote sensoring equipment and other modern techniques as sufficient evidence. However, evidence based upon oil samples often fail, due to the progressive ageing-factor of oil in the marine environment and the variation of activities in the ships’ engine room, whereby various blends and compositions are created. This results in offenders not being convicted although there are clear indications of ongoing oil spills. Therefore, efforts should be made to convince courts that remote indications from sensoring equipment and observations from the air also should provide sufficient evidence.

48 7 Ships’ Routeing Measures and the Protection of Sensitive Sea Areas

7.1 Global Norms and Regulations Certain sea areas are more sensitive to marine pollution than others, e.g. for ecological, social, cultural, and economic reasons. One means for protecting sensitive sites is to limit shipping activities in that area. While international routeing measures have long been used in order to avoid grounding and collisions, the idea of using this means for protecting the environment is of a more recent origin, and so far it has been used only to a limited extent. Still, the control of routes may add to the protection of the environment not only by reducing the risk of grounding or collisions, but also by limiting the risk that discharges from shipping reach sensitive sea areas. When environmentally “safe” routes are identified, they should not only be based on the location of the sensitive sites, but also on the calculated risk that releases in other areas reach the sites in question.140 Coastal states have the competence to prescribe routes in the territorial seas subject to the right of innocent passage. Outside the territorial sea, such measures must go through the procedures of the IMO. The global conventions through which the IMO may adopt measures on ships’ routeing are the 1972 COLREG Convention and the 1974 SOLAS Convention. Even though these are the princi- pal global treaties for controlling accidental pollution from ships,141 none of them was actually adopted for the main purpose of protecting the environment. Rather, the 1972 COLREG Convention is concerned with the conduct of vessels’ movements in relation to other vessels, its main purpose being the avoidance of collisions. The 1974 SOLAS Convention covers a wide range of issues related to the safety of navigation, also with respect to the carriage of dangerous goods and the construction of ships. Even so, it is obvious that these conventions may add to the protection of the environment as well.142 On the basis of the 1972 COLREG Convention and the 1974 SOLAS Con- vention, the IMO has adopted a set of routeing measures, available also for the

140 A useful study has been carried for this purpose with respect to bird sites in the Baltic Sea Area. See Mattsson. 141 In addition to these Conventions one may add the 1969/92 Civil Liability Convention, which provides for liability in case oil pollution has caused damage, and the 1978 STCW Convention, which aims at improving the capacity of the crew. 142 Cf. Ebbesson 1997.

49 protection of the marine environment. The following measures are presented in the IMO’s General Provisions on Ships Routeing:143

• traffic separation scheme; • separation zone or line; • traffic lane; • roundabout; • inshore traffic zone; • two-way route; • recommended route; • recommended track; • deep-water route; • precautionary area; • area to be avoided; • established direction of traffic flow; and • recommended direction of traffic flow. The measures listed imply differing degrees of intervention in navigation. The adequacy of the routeing measures chosen depends on the area to be protected and the (anticipated) traffic intensity. Although it is stressed in the IMO General Provisions on Ships’ Routeing that the routeing measures should be kept at a minimum, decisive factors in the determination of what is necessary should be geographical, hydrological, and ecological factors. It follows that, when a state proposes the adoption of ships’ routeing measures, it should demonstrate well the necessity of the measures and the reasons for them. A traffic separation scheme is defined as “a routeing measure aimed at the separation of opposing streams of traffic by appropriate means and by the establishment of traffic lanes.” So far, traffic separation schemes have been adopted for the following 16 spots in the Baltic Sea Area:

• off Sommers Island; • off Hogland (Gogland) Island • off Rodsher Island • off Kalbådagrund Lighthouse; • off Pokkala Lighthouse; • off Hankoniemi Peninsula; • off Köpu Peninsula (Hiiuma Island); • off Gotland Island; • off Öland Island; • in the approaches to Rostock; • south of Gedser; • in the Sound; • off Falsterborev; • off Kiel Lighthouse;

143 IMO Ships’ Routeing, p 4-15.

50 • between Korsoer and Sprogoe; and • at Hatter Barn. The IMO General Provisions on Ships’ Routeing define a deep-water route as “a route within defined limits which has been accurately surveyed for clearance of sea bottom and submerged obstacles as indicated on the chart.” In the Baltic Sea Area, three such routes have been defined:

• north-east of Gedser; • east of Langeland; and • between Hatter Rev and Hatter Barn Despite the existence of areas sensitive to oil pollution and other adverse effects from shipping, e.g. for ecological reasons in the Baltic Sea Area, no area to be avoided has been adopted in the Baltic Sea Area.144 Nor has any precautionary area been defined for this region.145 The procedure for establishing measures of ships’ routeing usually involves the IMO, the state that proposes the establishment, and coastal states concerned. Formally, the competence of the coastal state depends on where the routeing system is to be established. According to the IMO procedures for establishing routeing measures, a state proposing a routeing system for an area beyond its territorial sea should consult with the IMO. The proposing state should also furnish information, e.g. with respect to the chart used, the reasons for excluding certain ships from using a system, and the existence of alternative routeing measures. If the area concerned is located in the territorial sea, the coastal state has the competence under international law, to unilaterally adopt ships’ routeing measures, subject to the right of innocent passage. Even so, it is requested by the IMO to submit its proposal to the IMO for adoption and also to design the measures in accordance with the IMO criteria. If a state does not submit such measures for the territorial sea for the approval of the IMO, it is nonetheless encouraged by the 1974 SOLAS Convention to follow the guidelines and procedures developed by the IMO.146 On the other hand, no system shall be adopted or amended by the IMO without the consent of the interested coastal states, if the system may affect their environment.147 Until recently, the legal status of ships’ routeing measures under the 1974 SOLAS Convention was of a recommendatory character only. However, in 1995 the Convention was amended so that, from 1 January 1997 these measures may

144 An area to be avoided is defined as “a routeing measure comprising an area within defined limits in which either navigation is particularly hazardous or it is exceptionally important to avoid casualties and which should be avoided by all ships, or certain classes of ships.” 145 A precautionary area is defined as “a routeing measure comprising an area within defined limits where ships must navigate with particular caution and within which the direction of traffic flow may be recommended.” 146 1974 SOLAS Convention, chapter V, reg.8(e). IMO General Provision on Ships Routeing, para.3. 147 IMO General Provisions on Ships’ Routeing, para.3.

51 be made mandatory. Thus, Governments will be responsible for taking sufficient legal and administrative measures to enforce the routeing systems adopted by the IMO. Even though the 1974 SOLAS Convention and the 1972 COLREG Convention basically relies on flag state jurisdiction, the 1982 UNCLOS makes it possible for coastal states to have these standards enforced in their territorial sea and economic zone as well.148 Still, enforcement and control is complicated, and the adoption of ships’ routeing measures does not guarantee that the area in question is preserved. The responsibility for taking practical measures, in terms of establishing adequate navigational aids and charts, basically lies with the state that proposed the system (in case it is within the territorial sea of a state, that state would be responsible). Besides the treaties focusing on maritime activities or the marine environment in particular, a number of other environmental conventions of a global application are relevant in the context of nature conservation and biodiversity in coastal and marine areas. These are e.g. the 1971 Convention on Wetlands of Interna- tional Importance Especially as Waterfowl Habitat,149 the 1972 Convention for the Protection of the World Cultural and Natural Heritage,150 the 1979 Conven- tion on the Conservation of Migratory Species of Wild Animals,151 and the 1992 Convention on Biological Diversity.152 These are not further discussed here.153 In 1991 the IMO adopted Resolution A.720(17) on Guidelines for the Desig- nation of Special Areas and the Identification of Particularly Sensitive Sea Areas (1991 IMO PSSA Guidelines). The adoption of this resolution indicated an environmental concern which had previously been neglected in international treaty-making as well as by the IMO; nature conservation in the marine environment, particularly outside the territorial seas. While states have had the right to protect their coastal nature even by measures that interfere in shipping, the 1982 UNCLOS provides a basis for certain measures even outside the territorial sea.154 In addition, an increasing number of regional seas conventions have established forms for the protection of sensitive areas. By the 1991 IMO PSSA Guidelines, the IMO made this an issue of global concern, and revealed the need for international co-operation. Even so, the IMO only agreed on a resolution — not a binding treaty — and it basically relies on other IMO conventions. So far, two areas have been identified as PSSAs by the IMO.155

148 1982 UNCLOS, art. 211(5). 149 For treaty text, see 11 ILM (1972), p 963; 22 ILM (1983), p 698. 150 For treaty text, see 11 ILM (1972), p 1358. 151 For treaty text, see 19 ILM (1980), p 15. 152 For treaty text, see 31 ILM (1992), p 818. 153 For a presentation and analysis of some of these conventions, see Lyster. 154 1982 UNCLOS, art 211(6). See Ebbesson 1997, p 22f. 155 The Great Barrier Reef, east of Australia, and the Sabana-Camaguey archipelago on the Cuban coast.

52 7.2 Regional Norms and Regulations

1974/92 Baltic Sea Convention The 1974 Baltic Sea Convention covers most kinds of activities and pollution sources. It also applies to a wide range of oil pollution measures. Still, neither the 1974 nor the 1992 Baltic Sea Conventions establish a regime for ships’ routeing. Instead, the parties to the Convention “rely” on the global instrument.156 This makes sense, since it is important that the routeing measures adopted by the IMO apply not only to ships registered in the Baltic Sea states. More surprisingly, the 1974 Baltic Sea Convention did not set out any obligation particularly related to nature conservation or the protection of ecologically sensitive areas (which could affect the routeing). Contrary to the 1974 Convention, however, the 1992 Baltic Sea Convention contains a provision on this issue: “The Contracting Parties shall individually and jointly take all appropriate measures with respect to the Baltic Sea Area and its coastal ecosystems influ- enced by the Baltic Sea to conserve natural habitats and biological diversity and to protect ecological processes. Such measures shall also be taken in order to ensure sustainable use of natural resources within the Baltic Sea Area. To this end, the Contracting Parties shall aim at adopting subsequent instruments containing appropriate guidelines and criteria.”157 Although the 1992 Baltic Sea Convention has not yet entered into force, the parties of the 1974 Convention has adopted recommendations on nature conservation, explicitly referring to (”noting”) the article cited. HELCOM has identified 62 areas to be included in a system of coastal and marine Baltic Sea Protected Areas (BSPA).158 This could be seen as a first step to implement the notions of the 1991 IMO PSSA Guidelines.159 The areas designated are basically located within the territorial waters of the states concerned, but some stretch outside the territorial sea. Currently a discussion is taking place in HELCOM EC-Nature on including further sites as well as on the co-ordination of the protection of these areas.160 One way of implementing and widening the BSPA concept would be to co-ordinate it with the 1991 IMO PSSA Guidelines. Needless to say, such an operation would require that the Baltic Sea states also took the needed measures on a national level.161 So far, the implementation of the BSPA system has not been satisfactory.

156 This was done early through recommendations, that the parties of the Baltic Sea Convention join e.g. the 1974 SOLAS Convention; HELCOM Recommendation 1(6) and 2(2). 157 1992 Baltic Sea Convention, art. 15. 158 HELCOM Recommendation 15(5). 159 Cf. HELCOM Recommendation 15(4) where the parties are recommended to identify particularly sensitive sea areas with a need of special protection. 160 Cf. Hägerhäll & Skov. 161 Cf. Ebbesson 1997.

53 In addition to establishing BSPAs, HELCOM has adopted recommendations, that the parties introduce certain means of coastal and wetland management,162 and protect harbour porpoise. For the purpose of protecting this species, the parties should “consider the establishment of protected marine areas … within the framework of Baltic Sea Protected Areas (BSPAs).” This measure may intervene in navigation.163 Finally, according to HELCOM, the parties to the Convention should require the use of local vessel traffic service and pilots when ships enter or leave a port located in a Baltic Sea state. Coastal states may also restrict the movements of vessels or direct them in cases of incidents posing a threat to the coastline.164 An alternative means of intensifying the control of sensitive sea areas is to give priority to these areas in the airborne surveillance. While HELCOM has encouraged the introduction of such surveillance in general, with the aim of covering the whole of the Baltic Sea Area, no priority has been given to particularly sensitive areas.165

Other Regional Conventions Besides the Baltic Sea Convention, other regional agreements applicable to the Baltic Sea Area are the 1979 Convention on the Conservation of European Wild- life and Natural Habitat, and the 1992 Agreement on the Conservation of Small Cetaceans of the Baltic and North Sea. Both are relevant for the conservation of nature — including sensitive areas — in the Baltic Sea Area.166 These conventions may add weight to the argument for protecting sensitive areas from shipping in general — with the implied noise, hydrodynamic interaction, bank and squat effects — and the risk of oil pollution in particular.

7.3 European Community Law Although the European Community has not been engaged in or adopted particular legislation on ships’ routeing or on the protection of marine areas, some legislation is relevant in this respect. As a part of the minimum requirements for carrying dangerous or polluting goods, member states are obliged to require ships of any nationality to use, if it exists, local vessel traffic services when entering or leaving a port in a member state.167 In addition, existing legislation on nature conservation is applicable to marine areas. The 1979 Birds Directive and the 1992 Habitat Directive both apply to marine environments and oblige the parties to protect areas of importance for species listed. For some of these species the range includes marine areas.

162 HELCOM Recommendations 15(1), 16(3), and 18(4). 163 HELCOM Recommendation 17(2). 164 HELCOM Recommendation 19(15), reg. 6. 165 Cf. HELCOM Recommendation 12(8). 166 For further presentation, see e.g. Lyster. 167 1993 Minimum Requirements Directive, art. 5.

54 7.4 Comments and Conclusions Ships’ routeing measures could be useful in protecting ecologically important areas exposed to the threat of oil pollution from ships. With minor exceptions, the BSPA system has so far been limited to areas in the territorial seas of the parties. The Baltic Sea states should continue the work on identifying sensitive sea areas, expanding the project so as to identify important and vulnerable areas also outside the territorial waters. If legal protection of such areas outside the territorial sea involves restrictions on shipping, the case should be brought to the IMO for approval. If the Baltic Sea states agree to apply to the IMO to have the Baltic Sea Area or a large part of it identified as a PSSA, then a complete plan should be presented for the entire area. The plan should indicate the parts where further protection may be required. As pointed out in section 6, HELCOM has adopted some instruments on intensified airborne surveillance. Intensified surveillance and a system for disseminating information about the surveillance may provide a complement or an alternative to routeing measures.

55 8 Combating Pollution

8.1 Global Rules and Regulations One means of minimising the harmful effects of oil releases is the establishment of a reporting and notification system. The 1982 UNCLOS obliges states to notify one another (and competent international organisations) in cases of imminent danger to the marine environment, but it does not set up any procedure for notification.168 The 1973/78 MARPOL Convention also prescribes inter-state reporting. In addition, it obliges the parties to take measures so as to require masters or other persons in charge of ships sailing their flag to notify the nearest coastal state, when involved in incidents of discharges of oil.169 For this purpose, the IMO has also — more than once — adopted guidelines for ship reporting systems and reporting requirements of a more practical nature.170 The information given by ships in these cases is used for various purposes, such as search and rescue, vessel traffic services, weather forecasting and the prevention of marine pollution. The guidelines adopted include general principles on reporting, standard reporting format and procedures, and guidance for more detailed reporting. Reporting requirements are also set out by the 1990 OPRC Convention, which identifies the following actors as subject to an oil pollution reporting system:171

• masters or other persons in charge of ships flying the flag of a party to the Convention (with respect to any event on their ship as well as any observed event at sea), • persons in charge of sea ports and oil handling facilities, • maritime inspection vessels and aircraft, and • pilots of civil aircraft. Essential in this context is (i) that the ship and aircraft, irrespective of nationality, should report to the coastal state(s) concerned, and (ii) that the reporting from a ship not only includes incidents where the ship is involved. It also applies to observations. The parties to the 1990 OPRC Convention should require such

168 1928 UNCLOS, art. 198. 169 1973/78 MARPOL Convention, art. 8 and Protocol 1, as amended. 170 The latest being IMO Resolution A.851(20), General Principles for Ship Reporting Systems and Ship Reporting Requirements, Including Guidelines for Reporting Incidents Involving Dangerous Goods, Harmful Substances and/or Marine Pollutants. This resolution revokes IMO Resolution A.648(16), which had exactly the same title. 171 1990 OPRC Convention, art. 4.

56 reporting of persons under their jurisdiction (as far as vessels are concerned, this obligation rests with the flag state). Reporting obligations presuppose someone to report to. The parties to the 1990 OPRC Convention are to designate the competent national authority with responsibility for the receipt and transmission of oil pollution reports. They should also appoint the authority responsible for oil pollution preparedness and response. Such information shall include, inter alia, the location, telecommunication data and, if applicable, the area of responsibility of these authorities.172 Besides reporting systems, preparedness for response measures involves the establishment of emergency plans. Each ship under the flag of a party to the 1990 OPRC Convention must have on board a shipboard oil pollution emergency plan. This plan is subject to port state inspection in accordance with the 1973/78 MARPOL Convention,173 which also requires shipboard oil pollution emergency plans.174 This is important for the Baltic Sea region, since not all the Baltic Sea states are parties to the 1990 OPRC Convention. Effective response measures also include emergency plans adopted by the port and coastal states for the purpose of minimising damage. While the 1982 UNCLOS only sets out, in general language, that “States shall jointly develop and promote contingency plans for responding to pollution incidents in the marine environment”,175 the 1990 OPRC Convention obliges each party, within its capabilities, to establish:

• a minimum of pre-positioned oil spill combating equipment commensurate with the risk involved, and programmes for its use, • a programme of exercises for oil pollution response organisations and training of relevant personnel, • detailed plans and communication capabilities (to be continuously available) for responding to an oil pollution incident, and • a mechanism or arrangement to co-ordinate the response to an oil pollution incident with, if appropriate, the capabilities to mobilise the necessary resources.176 The parties to the 1990 OPRC Convention shall inform the IMO of their national contingency plans. In addition to assistance in enforcement and investigations, dealt with in section 6, inter-state assistance in combating pollution may result in more effective response measures. In case of an oil pollution incident, a 1990 OPRC Convention party may request combating assistance from another party. Such assistance may consist in providing technical support and equipment. The requested state should provide assistance and equipment when the severity of the

172 1990 OPRC Convention, art. 6. 173 1990 OPRC Convention, art. 3; and 1973/78 MARPOL Convention, arts. 5 and 7. 174 1973/78 MARPOL Convention, annex I, reg. 26. 175 1982 UNCLOS, art. 197. 176 1990 OPRC Convention, art. 6.

57 incident so justifies, and the convention sets out the principles for financing the operations.177 The 1990 OPRC Convention parties also agree to provide support for parties which request technical assistance, e.g. in training personnel, in ensuring the availability of relevant technology, and in facilitating other measures and arrangements to prepare for and respond to oil pollution incidents.178

8.2 Regional Norms and Regulations

1974/92 Baltic Sea Convention The 1974 Baltic Sea Convention, annex VI is devoted to co-operation in combating marine pollution. The 1992 Baltic Sea Convention contains a corresponding annex VII, applicable to oil pollution incidents. The parties are obliged to notify each other in case of an incident,179 as well as to require vessels sailing their flag to report incidents and observations. To a considerable extent, the response regulations of the 1974 and 1992 Baltic Sea Conventions correspond to, and even refer to, those adopted by the IMO, i.e. to the 1973/78 MARPOL Convention, the IMO General Principles on Ship Reporting,180 and the 1990 OPRC Convention. Masters or other persons in charge of ships sailing the flag of the parties must be required to notify the nearest coastal state of any event on their ship involving a discharge or probable discharge of oil. They must also be required to report on observations of significant spillage of oil.181 For this purpose, HELCOM has adopted minimum requirements that apply to vessels bound for or leaving ports of the Baltic Sea states and carrying dangerous and polluting goods.182 These requirements draw on EC legislation as well as IMO instruments. Thus, the Baltic Sea states should require that, in the case of an incident which poses a threat to the coastline or related interests, the master of the ship involved immediately notifies the competent authority of the state concerned. Ships sailing under the flag of the Baltic Sea states must establish a shipboard oil pollution emergency plan.183 Finally, the parties to the Baltic Sea Convention have to adopt contingency plans, in order to be able to respond to oil pollution incidents. When

177 1990 OPRC Convention, art. 7. 178 1990 OPRC Convention, art. 9. 179 1992 Baltic Sea Convention, art. 13. 180 Note that the IMO Resolution A.648(16) has been revoked by IMO Resolution A.851(20), with identical title. 181 1974 Baltic Sea Convention, annex VI, reg. 5, as amended by HELCOM Recommendations 8(5). 1992 Baltic Sea Convention, annex VII, reg. 5. Cf. HELCOM Recommendation 19(18) on the application of the POLREP BALTIC system. 182 HELCOM Recommendation 19(15). 183 1974 Baltic Sea Convention, annex VI; 1992 Baltic Sea Convention, annex VII.

58 involved in such responses to oil pollution incidents, the parties should use mechanical means, and avoid chemical agents.184 The Baltic Sea states may request assistance from each other in case of an incident. For the purpose of furthering co-operation in this field, they also have to provide information to one another about the domestic administration, regulations, research and development in this field. HELCOM has adopted guidelines relating to most aspects of combating, supplementing and specifying the regulations of the Convention. Issues cover are, e.g. the use of oil drift forecasting,185 airborne surveillance,186 follow-up studies in connection with major oil spills,187 and the establishment of an information system to facilitate access to competent authorities.188 In addition, maximum time limits have been set for adequate responses to oil pollution, to be considered when establishing and assessing the national systems. Thus, each state is expected to e.g.:

• keep a readiness permitting the first response unit to start from its base within two hours; • be able to reach within six hours from start any place of oil spillage in its response region; • ensure well organised adequate and substantial response actions as soon as possible and within a time not exceeding 12 hours; and • make available storage capacity for disposal and recovered oil within 24 hours after having received information on the outflow quantity.189 HELCOM has also developed the means for improving the co-operative dimension of combating; including arrangements to facilitate the border passage of personnel involved in assistance,190 guidelines on financing and calculating assisting operations,191 and the adoption of a manual on co-operation in combating marine pollution.192 Finally, HELCOM has set out particular assistance measures with respect to Estonia, Latvia, and Lithuania, with the aim of building up their national ability to combat pollution. These include the establishment of competent authorities, the adoption of contingency plans, and the education and training of personnel. Encouraged to assist one another in cases of incidents, the parties asked to reconsider waiving reimbursements of costs when assistance have been given to these states.193

184 1992 Baltic Sea Convention, annex VII, reg. 7. Such substances may only be used in excep- tional cases, and after authorisation by national authority. Cf. HELCOM Recommendation 1(8). 185 HELCOM Recommendation 12(6). 186 HELCOM Recommendation 12(8). 187 HELCOM Recommendation 12(9). 188 HELCOM Recommendation 12(7). 189 HELCOM Recommendation 11(13). 190 HELCOM Recommendation 1(9). 191 HELCOM Recommendations 3(5) and 5(3). 192 HELCOM Recommendation 17(13). 193 HELCOM Recommendation 14(10).

59 1993 Nordic Co-operation Agreement Finland, Sweden and Denmark are parties to the 1993 Nordic Co-operation Agreement, which furthers the means set out in the Baltic Sea Convention. The agreement is particularly devoted to combating measures, including surveillance, notification in case of significant marine pollution, information exchange, and assistance. The agreement sets out principles that should apply in cases of assistance. First, upon request, the parties are obliged to take all possible measures for assisting another state. Second, obstacles related to border passage should be avoided. Third, the costs for assistance should generally be paid by the state requesting the assistance.

8.3 European Community Law The HELCOM minimum requirements for vessels entering or leaving ports of the Baltic Sea states were adopted on the inspiration of EC legislation on the same issue. Hence, the 1993 Minimum Requirements Directive obliges member states to condition the entry into their ports upon the reception of certain information from the ship. It also prescribes information, notification, and reporting in other respects.

8.4 Comments and Conclusions Quite specific obligations, of a global and regional origin, are laid down with respect to combating measures. While the global norms are essential with respect to reporting from ships, since they then apply to ships of other states, the creation of a functioning reporting and assistance system is a regional question. In addition to the system of the Baltic Sea Convention, the parties could enter into further agreement, perhaps on a bilateral level or involving only some of the parties. The 1993 Nordic Co-operation Agreement is such an example. Of course, in these cases, the “supplementary” agreement should be compatible with the overall system of the Baltic Sea states. Intensified airborne surveillance is not only relevant for enforcement purposes, as described in section 7. It is also important for the purpose of combating oil pollution when releases have taken place.

60 9 Reception Facilities

9.1 Global Norms and Regulations Oily wastes and waste water are generated from all ships, in the form e.g. of machine room waste, sludge, bilge water, ballast water, or tank wash water. If oil residues must not be discharged into the water, they must be kept on board until the ship enters a port where the wastes can be delivered. A prerequisite for the recognition of the Baltic Sea Area as a “special area” under the 1973/78 MARPOL Convention, is that each state in the region provides reception facilities in its ports. That is, the designation as a “special area”, with the stricter conditions on vessels entailed, is conditioned upon the availability of such facilities within the area.194 All oil loading terminals and repair ports within the special area have to be provided with facilities adequate for the reception and treatment of all the dirty ballast and tank washing water from oil tankers. The states concerned are also obliged to provide all ports in the special area with reception facilities for other residues and oily mixtures from all ships. That includes machine room wastes, such as sludge and bilge water. Reception facilities must have adequate capacity to meet the needs of ships without causing undue delay. The IMO has adopted a manual on port reception facilities for the purpose of improving the implementation of the 1973/78 MARPOL Convention. The manual gives practical as well as basic legal information on the implementation of the IMO requirements.195 The international responsibility to provide reception facilities rests with the state, but it may choose to have the services carried out by public agencies, public enterprises, or private companies. When establishing facilities in a number of ports, a state may develop inter-port strategies, whereby wastes can be received in all ports, and subsequently transported to a central treatment plant. Inter-port strategies may also involve the co-operation between neighbouring states. Such arrangements could be more cost-effective than establishing central treatment plants in all states concerned.

194 1973/78 MARPOL Convention, annex I, reg. 10. 195 IMO, Comprehensive Manual on Port Reception Facilities (London, 1995).

61 9.2 Regional Norms and Regulations

1974/92 Baltic Sea Convention In part, the Baltic Sea co-operation functions as a means for having the IMO instrument better implemented, and the establishment of reception facilities is essential also in the context of the Baltic Sea Convention. The 1974 and the 1992 Baltic Conventions both contain a general provision, whereby the parties agree to “develop and apply uniform requirements” on reception facilities.196 Yet, practice shows a rather heterogeneous picture.197 The minimum requirements of the 1974 and 1992 Baltic Sea Conventions on reception facilities for oily wastes are defined simply by a reference to the obligations set out in the 1973/78 MARPOL Convention.198 While the Convention is not very specific on how to establish reception facilities, HELCOM has been active in providing guidelines for this purpose. In fact, the very first recommendation adopted by HELCOM (still valid) concerns reception facilities; in a generally drafted manner, it simply urged the parties to take appropriate steps to ensure that such facilities for oily residues and other wastes from ships are used to the fullest extent possible.199 Since then, recommendations relating to reception facilities have concerned the ratification of the global instrument of relevance (such as 1973/78 MARPOL Convention),200 recording of oil fuel bunkering operations in the oil record book and documentation for the use of reception facilities,201 notification of ship’s wastes,202 and minimum standards in terms of reception capacity.203 During the last years, HELCOM has actively promoted the establishment of a harmonized fee system in the Baltic Sea Area. The dual purpose of such a system is to “[encourage] ships to deliver waste ashore and to avoid undesirable waste streams between ports thereby encouraging a sound sharing of the waste burden in the Convention Area.”204 A means for doing this is the application of a “no- special-fee” system, which has been defined as: “a charging system where the cost of reception, handling and disposal of ship- generated wastes, originating from the normal operation of the ship, is included

196 1974 Baltic Sea Convention, art. 7(2); 1992 Baltic Sea Convention, art. 8(2). 197 See e.g. BSEP No 50, Seminar on Reception facilities in Ports (1992); and Mickwitz. 198 1974 Baltic Sea Convention, annex IV, reg. 4; and 1992 Baltic Sea Convention, annex IV, reg. 4. 199 HELCOM Recommendation 1(1). 200 HELCOM Recommendations 1(6) and 2(2). 201 HELCOM Recommendation 7(7). 202 HELCOM Recommendation 19(11). 203 HELCOM Recommendation 10(7). 204 HELCOM Recommendation 17(11).

62 in the harbour fee or otherwise charged to the ship irrespective of whether wastes are delivered or not.”205 The first serious attempt to establish this system was taken in 1996 by the Baltic Strategy for Port Reception Facilities for Ship-generated Wastes and Associated Issues.206 The principles for the no-special-fee system were further developed in 1998, through guidelines including a deadline for the implementation. The parties should apply a no-special-fee system for the operation of reception facilities as of 1 January 2000. As indicated by the given definition, the obligation for every sea- going ship to pay for reception, handling etc. is deemed to arise with the arrival of the ship in any port, irrespective of whether the ship in question actually uses the reception facilities. Accordingly, the fee should also be independent of the volume of waste discharged. Even so, HELCOM recommends the calculation of the fee to be based on the gross tonnage of the ship. The charge should cover the costs related to the facilities and the treatment of wastes received. Another cornerstone of the Baltic Strategy is the notion of mandatory delivery. In other words, regulations should be developed for all ships to deliver all garbage to a port reception facility before leaving port.207 Since a ship will have to pay for reception of oily wastes, irrespective of its actual use of the facility, it will not be profitable to dispose it at sea. Thus, the system is expected to remove one of the existing economic incentives for ships not to use the facilities.208 In addition to the no-special-fee system, the Baltic Strategy includes other means related to the treatment of oily wastes on board and ashore. It also calculates on the investments needed in the “countries in transition.” The follow- up of the Strategy in 1998 includes recommendations on waste management plans and basic principles of handling ship-generated waste on land.209

9.3 European Community Law The European Community is currently drafting a directive on reception facilities. The directive is supposed to stipulate rules on ship-generated waste and cargo residues, including waste-management plans, and a fee system that encourages ships to use reception facilities rather than discharging the waste at sea.

9.4 Comments and Conclusions International law places the responsibility for carrying out international obligations on the state. In many situations, the state may delegate responsibility to bodies, and in various contexts state may also involve private companies for car-

205 HELCOM Recommendation 19(8). 206 BSEP, No 62. 207 HELCOM Recommendation 17(11). 208 HELCOM Recommendation 19(8). 209 HELCOM Recommendations 19(12) and 19(13).

63 rying out the international obligation. However, it is essential that each state designates one authority with the overall responsibility. This may facilitate international contacts. While cost-effective treatment of ship-generated waste may involve the co- operation of two or more states in the establishment of central treatment plans, wastes are also generated in the municipalities. The calculations of cost- effectiveness should therefore include seeking solutions that take care of ship- generated waste streams and municipally generated wastes in an integrative way.

64 REFERENCES

LITERATURE Birnie, P. & Boyle, A., International Law and the Environment (Oxford, 1992). Bonn Agreement Contracting Parties, Manual, Oil Pollution at Sea — Securing Evidence on Discharge from Ships (London, 1993). Carl Bro AS, Modtagefaciliteter i danske havne for olieaffald fra skibe — mængder, typer og problemer, Rapport, Miljø- og Energiministeriet (Copenhagen, 1997). [Reception facilities in Danish ports for oily wastes from ships-quantities, qualities and problems, Report from the Ministry of Energy and the Environment]. Churchill, R. R. & Lowe, A. A., The Law of the Sea (Manchester, 1988). Ebbesson, J., Compatibility of International and National Environmental Law (Dordrecht, 1996). Referred to as Ebbesson 1996a. Ebbesson, J., “1992 Baltic Convention; Transition or Stand-still?” in Baltic Environmental Co-operation — A Regime in Transition (ed. Hjorth, Linköping, 1996). Referred to as Ebbesson 1996b. Ebbesson, J., Nature Conservation in the Baltic Sea Area — Rules and procedures of International Law for protecting Off-shore Areas (WWF-report 3:97, Solna, 1997). HELCOM, BSEP No. 50, Seminar on Reception Facilities in Ports (Helsinki, 1992). Hägerhäll, B. & Skov, H., Proposal for Off-shore Protected Areas (BSPAs), Expert-report to HELCOM EC-Nature (mimeographed, 1998). IMO, Comprehensive Manual on Port Reception Facilities (London, 1995). IMO Ships’ Routeing, 6th ed., loose-leaf publication (London, 1991), including amendments 1992-97. International Tanker Owners Pollution Federation Limited (ITOPF), home page: , November 1998. Jaap Molenaar, E., Coastal State Jurisdiction over Vessel-source Pollution (Utrecht, 1998). Kwiatkowska, B., The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht, 1989). Lyster, S., International Wildlife Law (Cambridge, 1985). Mattsson, J., Hot mot känsliga fågelområden — simuleringar av oljespridning i Östersjön (Norrköping, 1998). [“Threat against sensitive bird areas- simuations of oil spills in the Baltic Sea”]. Michanek, G., Harmonisation of the Environmental Legislation in Latvia — Final Report (Riga, 1998). Mickwitz, P., Implementation of Key Environmental Principles — Experiences from the Protection of the Baltic sea, Nord 1998:2 (Copenhagen, 1998).

65 Oljeutsläppsutredningen, Att komma åt oljeutsläppen, SOU 1998:158 (Stockholm, 1999). [Controlling oil discharges, Report by the Governmental Committee on Oil Discharges].

HELCOM RECOMMENDATIONS Recommendation 1(1), concerning measures to ensure the use of reception facilities for wastes for ships, 1980; Recommendation 1(6), on the acceptance by the Baltic Sea states of international instruments on maritime safety, pollution prevention and related matters, 1980; Recommendation 1(8), on minimization of the use of dispersants, sinking agents and absorbents in oil combating operations in the Baltic Sea, 1980; Recommendation 1(9), on facilitation of border passage in case of call for assistance according to Regulation 8 of Annex VI to the Helsinki Convention, 1980 Recommendation 1(12), concerning standard discharge connections, 1980; Recommendation 2(2), on the acceptance by the Baltic Sea states of international instruments on maritime safety, pollution prevention and related matters, 1981; Recommendation 2(3), concerning the application by the Baltic Sea states of specification for process units intended for attachment to existing oily-water separating equipment, 1981; Recommendation 3(5), concerning financial impact of assistance rendered, 1982; Recommendation 4(2), on the use and recognition of the revised forms of International Oil Pollution Prevention (IOPP) Certificate and Oil Record Book agreed by the International Maritime Organization (IMO), 1983; Recommendation 5(3), concerning guidelines for the calculation of the total costs which should be paid by the requesting country to the assisting country or countries, 1984; Recommendation 6(13), concerning co-operation in investigating violations or suspected violations of discharge and related regulations for ships and dumping regulations, 1985; Recommendation 7(7), concerning recording of fuel oil bunkering operations in the Oil Record Book and documentation for the use of reception facilities, 1986; Recommendation 8(4), concerning amendments to Regulations 1-5 of Annex IV and Appendices I-IV of the Helsinki Convention, 1987; Recommendation 8(5), concerning amendments to Regulation 5 of Annex VI and Appendix to Annex VI of the Helsinki Convention, 1987; Recommendation 10(7), concerning general requirements for reception of wastes, 1989; Recommendation 10(8), concerning co-operation in investigating violations or suspected violations of discharge and related regulations for ships and dumping regulations, 1989; Recommendation 10(11), concerning international co-operation on liability for damage resulting from vessel-based pollution, 1989; Recommendation 11(12), concerning reduction of air pollution from ships, 1990

66 Recommendation 11(13), concerning development of national ability to respond to spillages of oil and other harmful substances, 1990; Recommendation 12 (5), concerning promotion of the use of safer tankers while carrying oil, 1991; Recommendation 12(6), concerning development and use of oil drift forecasting, 1991; Recommendation 12(7), concerning special co-operation in case of chemical tanker accident in the Baltic Sea, 1991; Recommendation 12(8), concerning airborne surveillance with remote sensing equipment in the Baltic Sea Area, 1991; Recommendation 12(9), concerning follow-up studies in connection with major oil spills, 1991; Recommendation 13 (15), concerning early measures to reduce sulphur in marine oils in the Baltic Sea Area, 1992; Recommendation 14(6), concerning guidelines for the minimum throughput of oily-water separating equipment on board ships, 1993; Recommendation 14(10), concerning co-operation and assistance to Estonia, Latvia and Lithuania in the field of combating marine pollution, 1993; Recommendation 15(1), concerning protection of the coastal strip, 1994; Recommendation 15(4), concerning additional maritime safety and pollution prevention measures in the Baltic Sea Area, 1994; Recommendation 15(5), concerning system of coastal and marine Baltic Sea Protected Areas (BSPA), 1994; Recommendation 16(1), concerning strengthening the co-operation in investigation of violations of anti-pollution regulations and on bringing evidence to court, 1995; Recommendation 16(3), concerning preservation of natural coastal dynamics, 1995; Recommendation 17(2), concerning protection of harbour porpoise in the Baltic Sea Area, 1996; Recommendation 17(11), concerning reception facilities, 1996; Recommendation 17(13), concerning use by the Baltic Sea states of the manual on co-operation in combating marine pollution within the framework of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, (Helsinki Convention), 1996; Recommendation 18(4), concerning managing wetlands and freshwater ecosystems for retention of nutrients, 1997; Recommendation 19(8), concerning application of the “no-special-fee” system in the Baltic Sea Area, 1998; Recommendation 19(10), concerning application by the Baltic Sea states of guidelines for holding tanks/oily water separating or filtering equipment for ships of less than 400 tons gross tonnage, 1998; Recommendation 19(11), concerning notification of ship’s wastes, 1998; Recommendation 19(12), concerning waste management plans for ports, 1998; Recommendation 19(13), concerning basic principles of ashore handling of ship- generated wastes, 1998; Recommendation 19(14), concerning harmonized system of fines in case a ship violates anti-pollution regulations, 1998;

67 Recommendation 19(15), concerning minimum requirements for vessels bound for or leaving ports of the Baltic Sea states and carrying dangerous or polluting goods, 1998; Recommendation 19(16), concerning co-operation in investigating violations or suspected violations of discharge and related regulations for ships, dumping and incineration regulations, 1998; Recommendation 19(18), concerning reporting on incidents involving harmful substances and emergency dumping, 1998

For references to other international instruments, see footnotes.