Fifteen Years Of Particularly Sensitive Sea Areas: A Concept In Development

The International Maritime Organization (IMO) has just celebrated the fifteenth anniversary of Assembly Resolution 720(17), adopted on November 6, 1991 during the Assembly’s twentieth session. This Resolution sets forth guidelines for designating special zones and identifying particularly sensitive sea areas (PSSAs). It has marked the emergence of a new cooperation between maritime activities and the protection of fragile marine ecosystems. This Resolution was intended to offer a new alternative to coastal nation states: to protect areas within their territorial limits and also to extend such protection beyond these limits. Indeed, with the development of maritime trade and the growth in the size of fleets, risks for the marine environment have increased and have become a paramount factor in the structure and operation of maritime transport. Although the IMO has legitimized and protected the principle of the freedom of navigation, with the advent of PSSAs the organization has sought to develop awareness on the part of states for the need to preserve the marine environment. In Resolution 982(24), the IMO defines PSSAs as areas with “ecological, socio-economic, or scientific” importance and, consequently, recognizes these areas as needing special protection through measures adopted by the IMO. The IMO, therefore, has the dual mission of developing the concept of PSSAs through the adoption of successive, more precisely defined guidelines, as well as that of supervising the recognition of such areas and their protection. As a United Nations agency that specializes in the maritime sector, the IMO is recognized by the United Nations Convention on the Law of the Sea (UNCLOS) as a “competent international organization” that develops standards and rules of reference. At the 1978 International Convention for the Prevention of Pollution from Ships (MARPOL), the IMO adopted Resolution 9, which formally entrusts the formulation of new concepts for marine environmental protection to the IMO authorities. Resolution 9 was undertaken in response to a series of maritime accidents that occurred in 1976 and 1977, such as the shipwreck of Olympic Bravery off the Brittany coast, and complimented the already existing concept of special areas in the 1973 MARPOL convention. These IMO instruments are enforceable through UNCLOS mandates, which establish “the degree to which coastal states may legitimately interfere with foreign ships in order to ensure compliance with IMO rules and standards.” Further, Resolution 9 enabled the IMO to prevent marine environmental pollution from ships and waste by identifying and protecting PSSAs. According to Resolution 9, the undertaking of this task should include three phases: 1) the inventory of all marine areas requiring special protection against the pollution that is generated by maritime transport and dumping by ships, taking into account the availability of renewable resources and the scientific importance of these areas; 2) the evaluation of measures necessary to ensure the protection of these areas that also respect other maritime activities and the freedom of the seas and its passage; and 3) the formulation of a suitable way to integrate these protective measures into the framework of relevant, existing conventions. Although the operative paragraph of Resolution 9 allowed considerable action to be undertaken by the IMO after its enactment in 1978, discussions by the IMO’s Marine Environment Protection Committee (MEPC) did not commence until 1986. This is particularly lamentable because discussions were only initiated after pressure from several non-governmental organizations, such as Friends of the Earth and in the meantime several new maritime catastrophes had occurred, in particular the wreck of the Amoco Cadiz in 1978. Thereafter, the MEPC worked in collaboration with the Maritime Safety Committee (MSC) and its subcommittee on the Safety of Navigation (NAV) in order to develop the concept of PSSA, because any and all rules for the protection of fragile marine areas would have important consequences for the activities of maritime transport. In 1990, the Great Barrier Reef (GBR) was recognized as the first PSSA at the request of Australia, eager to protect a particularly vulnerable part of the GBR, between Mackay and the tropic of Capricorn. Before this designation, the GBR was the object of several special measures of protection, but these remained insufficient. In 1975, the Australian government, a signatory to the MARPOL convention, adopted the GBR Marine Park Act in order to preserve the integrity of the ecosystem of the GBR. Then, in 1987, the IMO adopted Resolution 619(15), which recommended the use of pilots for several high-risk ship transports seeking passage through the Torres Strait, the Great North East Channel, inner route of GBR, and Hydrographers’ Passage. The GBR was also recognized on the World Heritage List of the United Nations Educational, Scientific, and Cultural Organization (UNESCO). However, these measures were still considered insufficient and the need to develop new protective measures for the GBR’s marine environment became crucial. Following the recognition of the GBR as the first PSSA, discussions between 1990 and 1991 among IMO bodies concentrated on the standards that would be used in evaluating the circumstances and conditions necessary for a marine area to be designated a PSSA. The criteria and methods of designation were subsequently defined by Resolution 720(17), adopted in November 1991. Moreover, it was decided that the only way a marine area could become recognized as a PSSA was by an IMO recommendation. This was decided because Resolution 720(17) imposed considerable restrictions on the freedom of the seas and passage through PSSAs. In fact, the need for a compatible standard for both maritime transport and marine environmental protection led to the establishment of several criteria, which have consequently been accepted and respected by all. However, the formula did not have much success in practice because of its arduous and complex procedures. The archipelago of Sabana- Camagüey was the only area to be recognized as a PSSA on the basis of the original Resolution 720(17) criteria, and was only considered for PSSA designation after a request was made by Cuba in 1997. As originally envisioned, IMO resolutions were to be regularly revised in order to better define the concept of PSSA and to improve its implementation. The first revisions to the identification and determination measures for PSSAs began in 1999 with the amendments to Resolution 720(17) that were embodied in Resolution 885(21). Then, in 2001, Resolution 927(22) was adopted and was the last amendment needed in order to complete and finalize the necessary procedures for designating an area a PSSA. After these amendments were implemented, the IMO recognized three new PSSAs in 2002: Malpelo Island in Colombia; the Florida Keys; and the Wadden Sea in the Netherlands, Denmark, and Germany. In 2003, the Paracas National Reserve in Peru was also designated a PSSA. Finally, in 2004, Western European waters in Belgium, France, Ireland, Portugal, Spain, and the United Kingdom became PSSAs. Nevertheless, it was not until December of 2005 that the Assembly adopted Resolution 982(24), which provided a legal framework dealing exclusively with PSSAs. This last stage in the normative process allowed for the recognition of several new PSSAs, including: the Canary Islands in Spain; the Baltic Sea in Denmark, Estonia, Finland, Germany, Lithuania, Poland, and Switzerland; and the Galápagos archipelago in Ecuador. However, because Resolution 982(24) was not included in the text of MARPOL, it remained legally non-binding. It is questionable whether the model for PSSAs really offers a new alternative for the protection of particularly sensitive marine areas. Although the development of the PSSA concept has continued throughout the last fifteen years, the effectiveness of PSSAs still remains very limited. Specifically, this article analyzes these limitations and the potential for improvement of the PSSA model. Part II begins with a discussion of the PSSA model and its relation to other environmental concepts. Then, Part III provides an evaluation of the current PSSA model. Finally, Part IV discusses possible improvements of the PSSA model and identifies various locations that would benefit from a PSSA designation