Current Legal Developments

International Maritime Organization

Marine Environment Protection Committee

Identification of "particularly sensitive areas" and guidelines for designating

special areas
As reported in (1988) 3 IJECL 44-59, the Marine Environmental Protection Com-
mittee, at its twenty-third session, began consideration of the problem of "particu-
larly sensitive areas" and the development of guidelines for the designation of
"special areas" under the MARPOL 1973/78 Regime. Participating governments
were invited to submit observations. The observations of the Governments of the
Federal Republic of Germany, Sweden, Norway and the United Kingdom have
already been reproduced (at pp. 44, 51, 52 and 54 respectively). In Appendix 1 and
2 are reproduced observations from the Governments of Ecuador (in relation to the
Galapagos Archipelago), and Canada.

Appendix 1

Identification of Particularly Sensitive Areas, including Development of

Guidelines for Designating Special Areas under Annexes I, II and V

Special area to be avoided in the region of the Galapagos Archipelago

Submitted by Ecuador
The document shown in the annex, concerning the Galapagos Archipelago, was submitted
with a request that it be brought before both the Sub-committee on Safety of Navigation
(NAV 34/3) and the Marine Environment Protection Committee.

ANNEX
EMBASSY OF ECUADOR
NAVAL ATTACHE AND PERMANENT
REPRESENTATIVE TO IMO
Ref. AGNAIN SEC-058-0 17 March 1987
Mr. C.P. Srivastava
Secretary-General
IMO
Sir,
The Government of Ecuador, in a note to the Maritime Safety Committee of IMO in 1980

235
236

(MSC XLII/INF. 2), declared a "special area to be avoided in the region of the Galapagos
Archipelago".
Paragraphs 13.8 and 13.9 of the report of the Maritime Safety Committee on its forty-
second session in May 1980 (MSC XLII/21) indicated that the Committee took note of the
information provided by the Government of Ecuador on the establishment of an area to be
avoided in the region of the Galapagos Archipelago and invited the Government of Ecuador
to submit this routeing measure to the Subcommittee on Safety of Navigation for consider-
ation, with a view to its adoption by the International Maritime Organization.
In this context, our Government, having made detailed oceanographic studies of winds
and marine currents, and in order to protect from marine pollution the delicate ecological
system of the Galapagos Islands which has been declared by Unesco as belonging to the
"Heritage of Mankind"-in view of its special status as possessing species of marine flora
and fauna which are unique in the world-informs and Subcommittee on Safety of Naviga-
tion and the Marine Environment Protection Committee that it has defined "areas to be
avoided by merchant ships around the Galapagos Islands" based on the following consider-
ations :
(1) potential spillages that may occur in the event of casualties involving tankers carrying oil
or dangerous cargoes or substances;
(2) inadequacy of aids to navigation in the area of the Islands;
(3) prevailing conditions as regards the wind and the marine current;
(4) the limited or insignificant protection that can be provided in the Galapagos area in the
event of a spillage;
(5) limited traffic density through the Islands.
Ecuador has defined this ecological protection zone of the Galapagos Islands by plotting a
line 50 miles offshore parallel to the baseline of the territorial sea, around the Islands, as will
be seen from the attached table which shows 12 points of latitude and longitude which, when
joined up, surround the said "area to be avoided by merchant ships around the Galapagos
Islands".
In this area of restricted traffic, the National Maritime Authority would determine the fol-
lowing provisions:
(a) prohibition on the transit of tankers carrying oil or noxious chemicals
(b) restriction on transit for cargo and passenger ships which should direct requests for
authorization of innocent passage to the General Directorate of Merchant Marine pro-
vided they meet the safety requirements in the 1974 SOLAS Convention, in MARPOL
73/78 and in the International Oil Pollution Prevention Certificate, an authorization
which should be requested at least seventy-two (72) hours in advance, indicating the
route to be followed.
Consequently, I should be very grateful to you, Sir, if you would disseminate this infor-
mation to the Member States of the Organization for information and subsequent discussion
with a view to its being adopted by IMO at the next session of both the Subcommittee on
Safety of Navigation and the Marine Environment Protection Committee, emphasizing that
the restrictions on maritime traffic within the waters around the Galapagos Islands are
designed exclusively to preserve the ecology of this part of our national territory.
I avail myself of this opportunity to renew to you, Sir, the assurances of my highest con-
sideration.

(Signed) Pedro R. Cabezas

Captain
Naval Attaché
Permanent Representative
of Ecuador to IMO
 237

Geographical co-ordinates ,
1.- 02°20'00"N 4.- 00°30'00"S 7.- 02° 15'00"S 10.- O1° 27'00"S
91°32'00"W 88°24'00"W 89°25'00"W 92° 13'00"W
2–or20'00"N 5.- 01° O1'00"S 8.- 02° 11'00"S 1 l.- 0 1' 31'00"N
90° 19'00"W 88°23'00"W 90°34'00"W 92°59'00"W
3.- 01° 01'00" N 6.- 02°04'00"S 9.- 01° 45'00"S 12.- 02° 19'00"N
89° 24'00" W 89°03'00"W 91°55'00"W 92°29'00"W
238

Submitted by Canada
1 Canada welcomes the initiative being taken by the Organization on the issue of particu-
larly sensitive sea areas and strongly supports efforts to identify such areas and define
measures for their protection. Special protective measures for sensitive terrestrial areas,
such as national parks, wildlife sanctuaries and wilderness area, are now well estab-
lished. It is appropriate that attention now be given to protecting the endangered mar-
ine ecology of sensitive sea areas.
2 In response to the specific information requested from member States by MEPC Circ.
171, Canada offers the following comments:
.1 The criteria on which Canada has based its marine pollution prevention controls,
have been dictated by the need to protect rich inshore and offshore fisheries; endan-
gered marine mammal populations; recreational waters and beaches; the delicate
ecology of Canada's Arctic waters; and the need to preserve the water quality of
Canada's inland freshwater lakes and rivers.
.2 Current Canadian legislative and other measures and restrictions impose a zero dis-
charge regime for oil and any other pollutant substance prescribed by regulation.
This zero discharge regime applies to all fresh and salt waters under Canadian juris-
diction. Garbage is also prescribed by Regulations to be a pollutant, however, sew-
age controls currently apply only to waters of the Great Lakes and the St. Lawrence
Seaway system.
.3 Under the Arctic Waters Pollution Prevention Act, a total prohibition on deposit of
wastes is in effect within Canadian Arctic waters. These waters are sensitive by vir-
tue of being ice covered. Total prohibitions on discharges of pollutants are also in
effect under the Canada Shipping Act for fishing zones. The Fisheries Act prohibits
the depositing of deleterious substances into any water frequented by fish or on ice
over such water. In all these Acts, and Regulations made pursuant to them, there
are penal provisions for violations as well as civil liability provisions.
.4 Under the Canada Water Act, there is provision for the designation of "water qual-
ity management areas" in which the deposit of waste is prohibited. Waters, in
respect of which water quality management has become a matter of national con-
cern, may be so designated and programs in respect thereof may be initiated. Under
the Ocean Dumping Control Act, a prohibition applies to the disposal of any sub-
stance by placement on ice.
.5 The Great Lakes System of North America, shared by Canada and the United
States, constitutes the world's largest freshwater ecosystem. In order to restore and
maintain the physical, chemical and biological integrity of this sensitive ecosystem,
Canada and the United States have entered into a Great Lakes Water Quality
Agreement pursuant to which regulatory measures have been adopted for the con-
trol and abatement of pollution from land-based sources as well as from shipping
and dredging activities. Provisions for co-ordinated surveillance and monitoring
programs are also made.
.6 Moratoria on oil exploration in certain off-shore areas of Canada's west coast as
well as in Lancaster Sound in the eastern Arctic, have been in effect for many years
due to the particularly sensitive nature of these waters.
.7 It is perhaps fair to state however, that all of the above-mentioned measures have
been developed without the benefit of the kind of organized set of criteria for the
identification of particulary sensitive areas that could evolve from the efforts of this
Committee.
 239

3 Under the work to be done by the Particularly Sensitive Sea Areas Working Group,
Canada proposes that the following approach be adopted:
.1 A definition for "particularly sensitive areas" should be developed by the Working
Group for consideration by the Committee.
.2 A set of general criteria should be developed which all countries, regardless of their
state of development in the marine sciences, could apply to determine which marine
areas are particularly sensitive. Some of these criteria could be based on the inher-
ent characteristics of the marine area, such as:
- important fishing grounds;
- important spawning grounds, fish habitats or migration routes;
- areas of major concentrations of marine mammals or seabirds;
- areas occupied or visited by endangered species;
- ice-covered or ice-infested waters;
- freshwater ecosystems.
Other criteria could be based on the particular uses of the marine area such as:
- recreational purposes, e.g., scuba diving, whale
watching, etc.;
- shipping and related activities.
.3 A set of more specific criteria should be developed which would be more technical
in nature in that they would need to be supported by marine scientific research.
Examples which could be included in this set are:
- areas subject to oxygen depletion or seasonal stratification;
- areas already under stress from natural or man-made activities where
additional pollution loading may be critical, such as areas subjected to conta-
mination from large concentrations of industrial activities, or phenomena
such as oil seepage.
In this context, Canada notes with interest the work being carried out by the IOC
Group of Experts on the Effects of Pollution (GEEP) in identifying vulnerable
organisms and determining biological testing procedures. This work would be use-
ful in the development of specific criteria for the identification of sensitive sea areas.
.4 Measures for the protection of sensitive areas should then be developed which
could include:
- the setting of standards and guidelines for the control of shipping activities.
The controls considered could include limited discharge, prohibited discharge
or traffic prohibition depending on the criteria applicable to the area;
' - provisions for penalties for non-compliance;
- recommendation of other actions to be taken to minimize
pollution risk.
.5 Using the criteria developed, particularly sensitive areas beyond the territorial seas
could then be identified.
4 Canada looks forward to a fruitful outcome of the Organization's deliberations on the
issue of particularly sensitive sea areas, which could form the basis for action by national
administrations.

Annex II of MARPOL 73/78

During the last 20 years the international maritime community has become aware
of the possible threats to the marine environment from noxious and hazardous sub-
240

stances some of which are carried in increased quantities by sea. Due to a suc-
cession of spectacular and dramatic accidents involving oil tankers the public inter-
est and environmental considerations were at first concentrated on pollution from
hydrocarbon oils carried by sea. Gradually, however, the environmental danger
from maritime accidents involving particularly noxious and poisonous substances
was made more and more obvious. Thus, at the beginning of the 1970s there was a
general consent that the international regime should be expanded to deal with pol-
lution of the sea, not only by oil but also by "other noxious substances other than
oil" .2
The first regulation was finally achieved with the adoption of the International
Convention for the Prevention of Pollution from Ships (MARPOL) originally
adopted in 1973 and subsequently amended by a Protocol in 1978.3 MARPOL is a
framework text to which are appended five Annexes, two of which (Annexes I and
II) are compulsory, i.e. on ratification states must accept these. A special com-
mittee, the Marine Environment Protection Committee (MEPC) was created in
1973, partly as a result of the 1973 Marine Pollution Conference. Membership is
open to all IMO members. It has responsibility for the implementation and amend-
ment of the MARPOL and quasi-legislative authority with respect to amendments
to this convention as a result of its 1978 Protocol.
Annex I, which relates to oil pollution, and Annex II, which concerns the car-
riage of noxious liquid substances in bulk, are already in force. The MEPC in 1984
approved a number of amendments to Annex I which entered into force on 1 July
1986. The Committee also, at its 21st session in 1985, approved a number of
important amendments to Annex II which came into force on 6 April 1987 when
this Annex became effective. Annex III contains regulations for the prevention of
pollution from harmful substances carried by sea in packaged forms; Annex IV
regulations for the prevention of pollution by sewage from ships and Annex V regu-
lations for the prevention of pollution by garbage from ships. Annex V has been
ratified by states representing 50 per cent of the world tonnage and will come into
force in 1989. The coming into force of Annex III is also imminent.

Provisions of Annex 11

Annex II came into force in April 1987. Its main objectives are both operational
pollution from chemical tanker operations and accidental spills. The hazardous and
 241

noxious nature of chemicals, however, makes the regulation of their transportation

a much more complex procedure compared with Annex I.
Chemical products shipped in bulk have been classified by the Joint Group of
Experts on the Scientific Aspects of Marine Pollution (GESAMP) into four cate-
gories, A to D, according to the degree of damage caused to the environment.
Their evaluation took into consideration their bioaccumulation, damage to living
resources (aquatic toxicity), hazard to human health by oral intake, skin contact
and inhalation, and reduction of amenities. Some 250 products were evaluated and
appeared in a list attached to the convention.
The GESAMP profiles, however, are based on the intrinsic toxicity to marine life
and may not reflect the actual marine hazards for products which are volatile and
nearly insoluhle in sea water. Since these represent a sizeable proportion of bulk
products they were recently under consideration by the IMO's Bulk Chemical Sub-
4
committee (BCH).4
Categorization of cargoes not previously evaluated is a continuous problem for
port authorities. Annex II requires that all products shipped in bulk be evaluated
for pollution hazards and, if necessary, assigned a pollution category and transport
requirements. This creates difficult problems for a number of chemicals and
especially mixtures of various lubricant oil additives. The additives are particularly
difficult because their chemical compositions are very complex and many of their
properties are considered confidential information by manufactures. These classifi-
cations have to be handled by "tripartite agreement" procedures established under
Annex II. These procedures involve the governments of the exporting, importing
and flag states and they are cumbersome and time-consuming. These issues are also
5
under consideration by the IMO's Bulk Chemical Subcommittee and GESAMP.
Reclassification of substances can also give rise to procedural and implemen-
tation problems. GESAMP's reclassification of several common petrochemical pro-
ducts, such as hexane and heptane, based on new toxicity data, resulted in more
stringent requirements for many of these common cargoes, most changing to
Category B pollutants under the Chemical Code from their previous status as non-
pollutants (Appendix III). Although not effective until the next set of amendments
to Annex II, these changes are likely to have a substantial effect on the tanker mar-
ket.
Category A substances, defined as the worst pollutants requiring the application
of "stringent anti-pollution measures", are highly hazardous to human health or
aquatic life6 and moderately to highly toxic to aquatic life. Category B products
produce tainting of sea food and are slightly to moderately toxic to aquatic life.
Category C substances are slightly toxic to aquatic life and finally Category D are
defined as the least harmful but, nevertheless, "require some attention in oper-
242

ational conditions".' In addition, a list of other liquid substances is also included in

Annex II. This list contains substances other than those categorized A,B,C or D,
which presently are not considered harmful but are frequently carried by sea in
bulk.s 8

Discharge criteria

Regulation 5 of Annex II specifies the conditions under which discharge of residues

may take place. Discharge of products of Category A or tank washings, ballast
water or other mixtures containing Category A substances is prohibited. The resi-
due of substances of this category and tank washing must be discharged in a recep-
tion facility until a predetermined concentration is attained in the effluent and until
the tank is empty. After diluting the remaining residue with a water volume of no
less than 5 per cent of the tank volume, it may be discharged at sea provided a
number of conditions are met9:

(i) The ship is underway. Speed should be no less than 7 knots if self-propelled; or
4 knots if non-self-propelled.
(ii) Discharges must be made below the waterline, taking into account the location
of the discharging vessel's sea-water intake.
(iii) The vessel must be more than 12 miles from the nearest land and in a depth
exceeding 25 metres.
(iv) Discharges are to be made within regulations and procedures approved by the
vessel's flag state and based on IMO standards.

By analogy to MARPOL Annex I, zonal prohibitions are expressed in terms of

special areas. These include only two regional seas, the Baltic Sea'() and the Black
Sea." Annex II also prohibits the carriage of Category B and C substances in tanks
in which the residue quantities after unloading exceed the quantities given in the
Annex. For substances of Category B, the quantity which may be discharged from a
tank and its associated cargo piping is limited to 1 cubic metre. In case the vessel is
unable to reach this limit, the discharge of the resultant residue should be made
into a reception facility. The concentration and rate of discharges of the effluent
should be regulated in such a way that the concentration of the substance in the
wake astern of the ship does not exceed 1 part per million. 12
Category C substances are subject to restrictions similar to those of Category B
except that the quantity of residue discharged is limited to 3 cubic metres and the
concentration in the wake may not exceed 10 parts per million.
The Annex requires also the use of a Cargo Record Book to provide a complete
 243

picture of the handling of noxious substances during their carriage at sea, loading
and unloading. 13 The Cargo Record Book should be inspected by surveyors
appointed by the contracting parties to MARPOL 73/78 to ensure full compliance
with the applicable requirements of the Annex and they are also required to issue
measures for the design, construction and operation of the tankers which contain at
least "all the provisions given in the Code for the Construction and Equipment of
«
Ships carrying Dangerous Chemicals in Bulk".
It should be emphasized that the chemical industry has a good record on preven-
tion of pollution, a fact strengthened by efforts to minimize the overall residue
quantities and deliver expensive chemical products in pure and uncontaminated
condition. This was achieved even before the adoption of Annex II with extensive
5
research to increase the efficiency of existing tank-stripping techniques
Efficient tank-stripping also facilitates removal of the last remaining noxious resi-
dues after completion of the cleaning process. Final waste removal is generally
regarded as a dangerous activity posing a serious risk to human health and slop
retention on board is undesirable in the case of chemical tankers because of product
compatibility problems constituting a safety risk.

Reception facilities

Contracting parties also undertook to provide reception facilities to allow stripping

of cargo tanks of ships unloading noxious liquid substances at their ports. The facili-
ties are to be used for residues, slops mixtures and ballast water containing
Category A substances in all areas, Category B in special areas, Category C within
special areas, and Category C outside special areas when the quantity of residues
exceeds the required limits.
A problem faced by industry is that very few ports have adequate reception facili-
ties and ships are sometimes put in a quite impossible position: prohibited from dis-
charging polluted slops mixtures and ballast water but not provided with the
required alternative means of disposal.
Unlike Annex I, however, the provisions of Annex II include a requirement that
certain residues should be discharged at reception facilities at the unloading port.
States are also under an obligation to construct reception facilities for the unloading
of those residues. The interpretation of this provision is a matter of controversy and
the industry supports the view that reception facilities should be provided in all
ports visited by their vessels. States parties to MARPOL, on the other hand, claim
that their responsibility is not to provide the necessary reception facilities but to
make sure that commercial enterprises and local and ports authorities provide such
facilities. They also take the view that construction of such facilities is necessary
only in ports where a cargo falling under the provision of the Annex has been dis-
charged. '
244

The total quantities of cargo residues for disposal under Annex II are limited,
compared with the case of oil residues but their handling and ultimate safe disposal
pose severe problems for administrations and the shore authorities concerned.
There is also the issue of responsibility and liability for those chemical residues
handled at ports, and coastal authorities are reluctant to assume exclusive responsi-
bility. Handling charges could also prove a stumbling block if set at a very high rate.
A possible solution is the adoption of mobile collection systems.
Subsequent storage and treatment of wastes are also essential elements of the
pollution prevention and cleaning process. If a facility is to deal with all types of
chemical waste products, it must incorporate five different treatment methods: (i)
storage tanks with gravity separation; (ii) steam stripper; (iii) flocculation/flotation
unit; (iv) biological treatment; and (v) waste incineration. 17
The 1985 amendments

The complex nature of a noxious chemical made necessary the amendment of the
standards for arrangements for discharges in the light of the current lack of
adequate reception facilities and a clear indication that these facilities will not be
available in the near future. Tests also proved an absence of any possibility of an
effective control and verification of compliance with the requirements and an
unacceptable increase in the workload for ships' crews. Another operational prob-
lem was the requirement of pre-washing, especially for Category B and C tankers
which are subject to complex and strict regulations. Category B tankers are
especially obliged to wash their tanks before discharging within the special areas.
Contaminated water then has to be either retained on board for disposal at a recep-
tion facility in port at a later date, or metered overboard in accordance with the
requirements in the Annex. In such cases vessels could have to change their route,
either when reception facilities are not available or to get away from the 12-mile
coastal prohibition zones and the special areas.
These Amendments were adopted in December 1985 and came into force with
Annex II in April 1987.1s They introduced radical changes to the design of vessels'
tanks to reduce residues to new lower levels and, where necessary, to achieve these
new limits by more thorough stripping arrangements for tanks and piping systems.
This resulted in a reduction in the projected requirements for reception facilities
ashore which is now restricted solely to ports receiving Category A substances and
Category B and C solidifying and highly viscous substances and to ports within
special areas.'9 They are also designed to encourage shipowners to improve the
efficiency of unloading and thereby reduce the amount of wastes and other cargo
residues which have to be disposed of.
The main changes can be summarized as follows:

(1) The requirements in Regulation 5 were phrased in such a way that the carriage
 245

of Category B and C substances is prohibited in tanks which cannot be emptied

to residue quantity levels of 0.1 or 0.3 cubic metres for B and C substances
respectively.
(2) New Regulation 8 provides that after unloading, a pre-wash shall be carried
out in accordance with procedures laid down in the standards and that the
resulting tank-washing shall be discharged to a reception facility at the unload-
ing port unless: (i) the tank is to be reloaded with the same or a compatible
substance; (ii) the residues in the tank, when suitable, will be removed by ven-
tilation ; (iii) all tank washings and contaminated ballast water will be retained
on board for discharge to a reception facility at another port with adequate
facilities; (iv) in respect of Category B and C substances, the cargo tanks have
been efficiently stripped in accordance with the procedures and arrangements
of the standards.
(3) The ship's manual should also identify all operational procedures with respect
to cargo handling, cargo tank ballasting and deballasting.

It is very early to assess the effectiveness of the implementation of Annex 11 and

chemical tankers were given a period of grace during the initial stages of implemen-
tation. Port states were asked to adopt a flexible approach with respect to those
non-complying chemical tankers which gave evidence, through a special statement
in their Certificate of Fitness, that effective progress was being made towards full
compliance.20 In cases of prosecutions the port state should also consider the avail-
ability of reception facilities to the ship involved.

George Kasoulides
London School of Economics