Protecting sensitive marine environments: The role and application of ships' routeing measures

International Journal of Marine and Coastal Law

Volumn 20, Issue 1, 2005, Pages 135-159

  Roberts, Julian ^a  

^a UNIVERSITY OF WOLLONGONG   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL PROTECTION; MARINE ENVIRONMENT; MARINE POLICY; NAVIGATION; SHIPPING;

EID: 31844432338     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180805774851599     Document Type: Article

References (73)

1. The International Union for the Conservation of Nature and Natural Resources (IUCN) defines a marine protected area as "any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment".
2. See F. Spadi, "Navigation in Marine Protected Areas: National and International Law", (2000) 31 Ocean Development and International Law 285.
3. C. De Klemm, Biological Diversity Conservation and the Law (IUCN, 1993), p. 260.
4. See, e.g., the comments of the United States - NAV 49/19, para. 3.27. Concerns at the application of mandatory areas to be avoided have been raised previously at IMO, most notably by Japan (MSC 63/23, para. 7.36).
5. See, e.g., the Report of the Lord Donaldson Inquiry which concludes that "pollution control and safety are very closely linked, because the best way to maintain safety and to prevent pollution is to preserve the integrity of the ship". Para. 1.11, "Safer Ships Cleaner Seas: The Report of Lord Donaldson's Inquiry into the Prevention of Pollution from Merchant Shipping", 17 May 1994.
6. IMO Resolution A.572(14), General Provisions on Ships' Routeing (adopted 20th November 1985), as amended by Resolution A.827(19), adopted 23rd November 1995.
7. For a general discussion on this issue, see G. Plant, "The Relationship Between International Navigation Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic Systems" in H. Ringbom (ed.), Competing Norms in the Law of Marine Environmental Protection (Kluwer Law International, 1997), pp. 11-27.
8. Innocent passage is broadly defined in LOSC, Arts. 18 and 19. For a detailed discussion of the meaning, see, e.g., K. Hakapaa and E.J. Molenaar, "Innocent Passage - Past and Present", (1999) 23 Marine Policy 131-135
9. E.J. Molenaar, Coastal State Jurisdiction Over Vessel-Source Pollution (Kluwer Law International, 1998), pp. 195-199
10. R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester University Press, 1988), pp. 68-73.
11. B. Smith, "Innocent Passage as a Rule of Decision: Navigation versus Environmental Protection", (1982) 21 Columbia Journal of Transnational Law 50.
12. L.S. Johnson, Coastal State Regulation of International Shipping (Oceana Publications, 2004), p. 61.
13. Art. 21(1)(a).
14. Art. 21(1)(d).
15. Art. 21(1)(f).
16. The subject of coastal state rights with respect to ships carrying hazardous cargoes has attracted a great deal of attention in recent times. High profile incidents such as the Prestige and the Erika have prompted several coastal states to propose ever increasingly stringent measures to protect their coastal waters.
17. D. Bodansky, "Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond", (1991) 18 Ecology Law Quarterly 750-751.
18. For a broader discussion of this argument, see Molenaar, pp. 203-204 (note 8 above).
19. Johnson, pp. 69-71 (note 10 above).
20. For a general discussion of coastal state rights and duties in the EEZ, see Churchill and Lowe, pp. 137-140 (note 8 above).
21. For a detailed discussion of this argument, see Johnson, pp. 103-106 (note 10 above).
22. See Bodansky, pp. 766-767 (note 15 above).
23. NAV 46/3/2, para. 2.
24. NAV 46/3/3.
25. NAV 47/3/1.
26. NAV 44/14 Annex 8, para. 1.
27. See NAV 48/3/5 and MSC 76/23.
28. Johnson, p. 132 (note 10 above).
29. 69 Federal Register, p. 30857. "Endangered Fish and Wildlife; Advanced Notice of Proposed Rulemaking (ANPR) for Right Whale Ship Strike Reduction" (1 June 2004).
30. Johnson, p. 106 (note 10 above).
31. For a general discussion of the relationship between the LOSC and the various IMO instruments, see A. Blanco-Bazan, "The Environmental UNCLOS and the Work of the IMO in the Field of Prevention of Pollution From Vessels" in A. Kirchner (ed.), International Marine Environmental Law: Institutions, Implementation and Innovations (Kluwer Law International, 2003), pp. 31-47.
32. LEG/MISC/3/Rev.1 Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organisation, p. 11.
33. G. Peet, "Particularly Sensitive Sea Areas - A Documentary History", (1994) 9 International Journal of Marine and Coastal Law 469.
34. J. Roberts, T. Workman, M. Tsamenyi and L. Johnson, "The Western European PSSA: A "Politically Sensitive Sea Area", Marine Policy (accepted 19 July, in press).
35. The 1974 International Convention for the Safety of Life at Sea and 1988 Protocol relating thereto - as amended 2000.
36. 1972 Convention on the International Regulations for Preventing Collisions at Sea.
37. Rule 10 of the COLREGS deals with the behaviour of vessels in or near traffic separation schemes adopted by the IMO.
38. See T. Ilstra, "Maritime Safety Issues under the Law of the Sea Convention and Their Implementation" in Proceedings of the 23rd Annual Conference of the Law of the Sea Institute (The Law of the Sea Institute, 1989), p. 219.
39. Resolution A.720(17), "Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas", was adopted by the IMO Assembly on 6 November 1991.
40. Para. 4 of the Preamble to Resolution A.720(17).
41. For a discussion of the history of this development, see K.M. Gjerde and D. Ong, "Protection of Particularly Sensitive Sea Areas under International Marine Environment Law", (1993) 26 Marine Pollution Bulletin 9-13.
42. Report of the First International Meeting of Legal Experts on PSSAs, reproduced in MEPC 33/INF.27, para. 7.1.1.
43. Ibid., para. 7.1.4.
44. Para. 3.27 of NAV 39/31 confirms this view.
45. Refer to Annex 3 of Resolution A.827(19) for the amended text for the GPSR.
46. Resolution MSC 46(65), "Adoption of Amendments to the International Convention for the Safety of Life at Sea 1974", was adopted by the MSC on 16 May 1995. The amendments entered into force on January 1997.
47. G. Plant, p. 18 (note 7 above).
48. SOLAS, reg. 11 states that "ships' reporting systems contribute to the safety of life at sea and efficiency of navigation and/or protection of the marine environment" [emphasis added].
49. See, e.g., the Report of the Third International Meeting of Legal Experts on Particularly Sensitive Sea Areas, MEPC 36/21/4, paras. 14-15. Designation of the Great Barrier Reef as a PSSA appears to have had this effect as it has focused both national and international measures to protect the area from ship-related and other impacts. The PSSA has been of value per se as it has raised the profile of the area as an environmentally sensitive area requiring special measures of protection (Paul Nelson, personal communication).
50. NAV 49/3.
51. A detailed description of the islands is provided in the Environmental Impact Report for the Poor Knights Islands Marine Reserve, Fisheries Management Division of the Ministry of Agriculture and Fisheries, July 1979.
52. For a general description of the environmental values of the Poor Knights Islands, see P.C. Harper, "The Poor Knights", (1975) 11 New Zealand's Nature Heritage 1449-1454.
53. A limited ATBA was established around the Three Kings Islands, off the northern most point of New Zealand, in 1993.
54. "Shipping Routes Around the New Zealand Coast - A Voluntary Code for Ships Carrying Oil or other Harmful Substances in Bulk", revised July 1996, Maritime Safety Authority of New Zealand.
55. It is estimated that there are some 4,000 movements a year of vessels greater than 45 m. in length in this area. This estimate includes approximately one large crude tanker (up to 150,000 dwt) every 10 days arriving at the refinery.
56. Phase 2 of New Zealand Marine Oil Spill Risk Assessment - Report prepared for the Director of Maritime Safety, 7th December 1998, by Woodward Clyde (NZ) Ltd.
57. For a discussion on this issue, see, e.g., Molenaar, pp. 212-213 (note 8 above)
58. Plant, p. 14 (note 7 above).
59. IMO Resolution MSC 46(65) adopted on 16 May 1995. The amended provision entered into force on 1st January 1997.
60. For a precise definition of "mandatory routeing system", refer to para. 2.2. of the GPSR.
61. As a result of subsequent amendments to SOLAS, the previous Regulation V/ 8 became Regulation V/10 in 2000.
62. The three are the deep-water route in the German Bight, the three mandatory no-anchoring areas for the Flower Gardens, and the three mandatory no-anchoring areas for Florida Keys.
63. MSC 63/23, para. 7.36.
64. MSC 63/7/19, paras. 3-4
65. NAV 40/25, para. 4.19.
66. See G. Plant, "A European Lawyer's View of the Government Response to the Donaldson Report", (1995) 19 Marine Policy 464.
67. IMO, Ships' Routeing (London, IMO, 7th ed., 2003). Updated to include amendments adopted up to December 2003.
68. Ilstra, p. 229 (note 36 above).
69. The two areas were: (i) the marine areas off the Washington (US) and British Columbia (Canada) coast, including the offshore waters of the Olympic Coast National Marine Sanctuary and the Strait of Georgia; and (ii) the area of the California coast between Pigeon Point and Point Sur.
70. While the US opted not to pursue PSSA status for these two areas, it did pursue routeing measures for both areas as follows: (i) off the Washington and British Columbia coast in the form of an area to be avoided, new and amended traffic separation schemes and a recommended route; and (ii) the area between Pigeon Point and Point Sur in the form of three recommended tracks for use by certain ships. See also the summary in Appendix 1.
71. See G. Peet, "Particularly Sensitive Sea Areas - An Overview of Relevant IMO Documents", (1994) 9International Journal of Marine and Coastal Law 556-576.
72. See, e.g., the recent application to the IMO for an extensive PSSA covering western European waters, Roberts et al. (note 32 above).
73. Peet, pp. 563-576 (note 67 above).