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 © Jonas Ebbesson and WWF Sweden, 1999 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 interna- tional — 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 pollu- tion