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MEPIELAN E-Bulletin is a digital academic and practitioner newsletter of the MEPIELAN Centre, launched in 2010.  It features insight articles, reflective opinions, specially selected documents and cases, book reviews as well as news on thematic topics of direct interest of MEPIELAN Centre and on the activities and role of MEPIELAN Centre. Its content bridges theory and practice perspectives of relational international law, international environmental law and participatory governance , and international negotiating process, thus serving the primary goal of Centre: to develop an integrated, inter-disciplinary, relational, context-related and sustainably effective governance approach creating, protecting and advancing international common interest for the present and future generations. Providing a knowledge- and information-sharing platform and a scholarly forum, the Bulletin promotes innovative ideas and enlightened critical views, contributing to a broader scholarly debate on important issues of international common interest. The audience of the Bulletin includes academics, practitioners, researchers, university students, international lawyers, officials and personnel of international organizations and institutional arrangements, heads and personnel of national authorities at all levels (national, regional and local), and members of the civil society at large.

The North-Western Mediterranean Particularly Sensitive Sea Area

January 22, 2024

Written by

Tullio Scovazzi

  1. A New PSSA in the Mediterranean

By Resolution MEPC.380(80) of 7 July 2023, the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) designated the North-Western Mediterranean Sea as a Particularly Sensitive Sea Area (PSSA). It is the sixteenth PSSA so far established and the second in the Mediterranean Sea.(1)

PSSAs are areas that need special protection through action by IMO because of their significance for recognized ecological, socio-economic or scientific reasons and which may be vulnerable to damage by international maritime activities. They can be established according to a set of Revised guidelines for the identification of PSSAs, adopted in 2005 by the IMO Assembly under Resolution A.982(24),(2) as amended in 2015 by Resolution MEPC.267(68). A PSSA is intended to function as “a comprehensive management tool at the international level that provides a mechanism for reviewing an area that is vulnerable to damage by international shipping and determining the most appropriate way to address that vulnerability”. (3)

To be identified as a PSSA, an area should meet at least one among eleven ecological criteria (uniqueness or rarity; critical habitat; dependency; representativity; diversity; productivity; spawning or breeding grounds; naturalness; integrity; vulnerability; bio-geographic importance), three social, cultural and economic criteria (social or economic dependency; human dependency; cultural heritage) and three scientific and educational criteria (research; baseline for monitoring studies; education). In addition, the area should be at risk from international shipping activities, taking into consideration vessel traffic (operational factors; vessel types; traffic characteristics; harmful substances carried) and natural factors of hydrographical, meteorological and oceanographic character. The 2005 revised PSSAs guidelines specify that at least one of the relevant criteria should be present in the entire proposed PSSA, though this does not have to be the same criterion throughout the area.

PSSAs may be located everywhere in the oceans and seas, within or beyond the limits of national jurisdiction. They are identified by the MEPC on proposals by one or more IMO member States and under a procedure which takes place at the multilateral level.

PSSA proposals should be accompanied by “associated protective measures”, identifying the legal basis for each measure. Such measures include those available under IMO instruments and cannot be extended to fields different from shipping. They encompass the following options: designation of an area as a Special Area under MARPOL Annexes I, II, V or an emission control area under MARPOL Annex VI, or application of special discharge restrictions to vessels operating in the PSSA; adoption of ships’ routeing systems under the 1974 International Convention for the Safety of Life at Sea, including areas to be avoided, that is areas 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 by certain classes of ships; reporting systems near or in the area; other measures, such as compulsory pilotage schemes or vessel traffic management systems.

 

  1. The Specific PSSA Criteria

The North-Western Mediterranean Sea PSSA was jointly proposed by France, Italy, Monaco and Spain “in order to protect cetaceans from the risk of ship collisions, ship-generated pollution and to increase awareness on a critically important area for the fin whale and the sperm whale”(4). It is geographically defined by the lines joining ten points whose coordinates are given in Annex 1 to Resolution MEPC.380(80). The PSSA includes the waters of two Specially Protected Area of Mediterranean Importance (SPAMIs) established under the Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean (Barcelona, 1995), namely the “Pelagos sanctuary for the conservation of marine mammals”(5) and the “Cetacean migration corridor”(6), as well as a vast extent of interconnecting waters (see the map below) (7). Legally speaking, the waters included in the PSSA have today the condition of maritime internal waters (in the case of France, Italy and Spain), territorial sea (in the case of the four proposing States), exclusive economic zone (in the case of France and Spain), ecological protection zone (in the case of Italy) or high seas (as regards the waters off the Monegasque territorial sea) (8).

 

Proposed NW Med PSSA (Source: SHOM)

 

The environmental relevance of the area in question is evidenced by the large amount of international recognitions relating to portions of its waters, including eleven SPAMIs, two Ecologically or Biologically Significant Marine Areas (EBSAs), identified according to Decision IX/20 of 2008 of the Conference of the Parties to the Convention on Biological Diversity (Rio de Janeiro, 1992), and three Important Marine Mammal Areas (IMMAs), identified by the Marine Mammal Protected Area Task Force of the International Union for Conservation of Nature. Several marine protected areas have been established under the national legislation of the bordering States (9).

As explained in Annex 2 to Resolution MEPC.380(80), which describes the ecological and socio-economic criteria applying to the area, the North-Western portion of the Mediterranean basin is characterized by the rapid plunge of the coasts towards the deep-sea (up to 2,000 m) in proximity of the main islands of Corsica and Sardinia and along the coast of Liguria (Italy) and most of the coast of Provence / Côtes d’Azur (France) and Catalonia (Spain). Another notable feature of the area is the high density of canyons (submarine valleys) on the continental slope. Marine currents play an important role in the functioning of ecosystems, as through their associated horizontal and vertical movements they accompany the export of organic matter from the coast to the open sea. Although representing only 1% of the total surface area of the oceans, the North-Western Mediterranean Sea is home to around 10% of the world recorded species. It evidences multiple criteria for PSSA designation, which encompass ecological criteria (uniqueness or rarity; critical habitat; dependency; productivity; spawning and breeding grounds; fragility; bio-geographic criteria), social or economic criteria (social or economic dependency) and scientific and educational criteria (research; education).

The North-Western Mediterranean Sea has a set of geomorphological and oceanographic features that favour productivity levels of extraordinary biological and ecological importance and allow the existence of a naturally balanced food web. The area hosts the habitats of endangered or vulnerable cetacean species, such as the fin whale (Balaenoptera physalus), the sperm whale (Physeter macrocephalus), the Cuvier’s beaked whale (Ziphius cavirostris), the bottlenose dolphin (Tursiops truncatus) and the Risso’s dolphin (Grampus griseus) (10). The presence of cetaceans often depends on the distribution of prey, in particular the zooplankton species of Atlantic krill (Meganyctiphanes norvegica). The preservation of cetaceans is essential for maintaining the ecological balance in the Mediterranean Sea and contributes to the mitigation of climate change. All cetacean species are listed in Annex IV (animal and plant species of Community interest that require strict protection) of European Union Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

The increase in maritime traffic, combined with other phenomena, such as warming, acidification, eutrophication and bioaccumulation, are weakening the natural balance of the North-Western Mediterranean. Cetacean species are particularly vulnerable, because of their slow growth, high longevity and low reproduction rate.

The marine environment makes the area particularly attractive for seaside tourism, including whale-watching, a tourist service whose annual growth rate is estimated at 3.5%. The emblematic nature of cetaceans makes it easier build awareness in the general public on questions relating to the entire marine environment. Professional fishing activities are carried out in the area, even if they are affected by the decline in fish stocks.

As regards the issue of vulnerability to damage by international shipping, addressed by Annex 3 to Resolution MEPC.380(80), the Mediterranean Sea is one of the busiest areas of navigation in the world, being the main connection between Asia and Europe, via the Suez Canal. From the mid-1990s to the mid-2000s it has seen an increase of 58% in transiting ships and of 30% in ship size. In the North-Western Mediterranean area several ports are active in traffic of goods (Valencia, Tarragona, Barcelona, Marseille, Genoa, La Spezia, Leghorn) or passengers (Toulon, Sète, Nice, Savona, and the ports of Corsica, Sardinia and the islands of Balearic or Tuscan Archipelagos). Ferry and cruise services are largely developed, traffic increasing significantly during the summer period (11). Marinas for pleasure craft have been established in several coastal localities. The Mediterranean is also a major route for oil tankers and an oil loading and unloading centre. Liquified natural gas and organic and inorganic compounds are transported therein as well. Within the North-Western Mediterranean Sea PSSA, risks to navigation are determined by some narrow passages fringed by islands, islets or rocks, such as the Strait of Bonifacio, located between Corsica and Sardinia, or the Hyères Passage, located between the Giens Peninsula and the islands of Porquerolles.

Collision with ships is recognized as a lethal threat to cetaceans (12) and a risk of damage to ships themselves (13). While collisions involve a wide variety of ships, their actual number is difficult to evaluate (14), also because they are not always noticed by seafarers. Scientific work carried out in certain cases in collaboration with shipping companies shows that the two most affected cetacean species are the fin and sperm whale. In the period between 1971 and 2001 more than 80% of the fatal collisions between ships and fin whales in the Mediterranean occurred in the North-Western Mediterranean Sea. It has been estimated that collisions alone will prevent the restoration of the fin whale subpopulation within the next 100 years.

The implementation of a speed reduction strategy is likely to allow a significant decrease in the likelihood of fatal collisions, as measures adopted in other marine areas show the relationship between speed and collisions. In 2013, after the introduction of a voluntary speed limit of 10 knots, no collisions with Bryde’s whales were recorded in the Hauraki Gulf (New Zealand). After the enactment of a 10-knot speed limit, in several seasonal management areas established along the Atlantic coast of the United States there were no right whale mortalities attributed to ship strikes.

Another risk for cetaceans generated by shipping is underwater noise due to the movement of the engine propeller, the noise level increasing with the shape of the propeller and the wear, size, speed and noise of the ship. It has been calculated that a 10% speed reduction would reduce the total sound energy by around 40%. Underwater noise, especially in the low frequencies, reduce the communication range of cetaceans and affect their capacity of orientation, foraging and establishing social relationships.

 

  1. The Specific Associated Protective Measures

According to Annex 4 to Resolution MEPC.380(80), the associated protective measures adopted for the North-Western Mediterranean PSSA are “recommendary in nature” and “are deemed to be applied by any commercial ships and pleasure yachts from 300 gross tonnage and upwards”. Their application to warships and other governmental ships operated for commercial purposes is explicitly excluded.

Four kinds of measures are envisaged, namely:

“1. Mariners should navigate with particular caution within the new NW Med PSSA, in areas where large and medium cetaceans are detected or reported, and reduce their speed to between 10 and 13 knots as voluntary speed reduction (VSR). However, a safe speed should be kept, so that proper and effective action could be taken to avoid collision and any possible negative impacts on ship’s manoeuvrability.

2. Mariners should keep an appropriate safety distance or speed reduction measure from any large and medium cetaceans observed or detected in close quarter situation. The safety distance or speed reduction measure should be adapted to the actual navigation circumstances and conditions of the ship.

3. Mariners should broadcast on VHF or other available means on scene, the position of medium and large cetaceans observed or detected within the designated PSSA and transmit the information and the position to a designated coastal Authority or Authorities.

4. Mariners should report any collision with cetaceans to a designated coastal Authority or Authorities, which should forward this information to the International Whaling Commission (IWC) global cetacean ship strikes database” (15).

Two remarks seem obvious as regards such measures.

First, all the associated protective measures – speed reduction, safety distance, broadcasting the position of medium and large cetaceans observed and reporting of collisions – are only recommended and do not have a mandatory character. IMO has preferred a bottom-up approach, based on voluntary involvement, rather than a top-down one, based on binding regime. The results of the choice depend on whether the environmental awareness of shipowners will prevail over self-interest and desire to overcome competitors through faster services (16).

Second, not all the measures available for preventing collisions have been recommended. In 2009, MEPC issued a Guidance document for minimizing the risk of ship strikes with cetaceans (17), inviting IMO member States to take into account all the interests involved: those pertaining to biological objectives and those of various stakeholders, such as government agencies, scientists and researchers, the shipping community, port authorities and environmental non-governmental organizations. The document envisages three kinds of operational measures that could be considered to reduce and minimize the risk, namely routeing measures, reporting measures (18), and speed restrictions. The same range of measures are listed in the Guidance issued in 2014 by the International Whaling Commission (19).

In 2022, the Meeting of the Parties to the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (Monaco, 1996; ACCOBAMS) adopted Resolution 8.18, which recalls that the most effective measures for mitigation of ship strikes are those that separate whales from vessels, or at least minimise co-occurrence, in space and time, using, inter alia, routing schemes where such measures are possible. It adds that, where routing to keep whales and vessels apart is not possible, the only demonstrated measure to reduce fatal collisions with most large whales is to reduce speed (20).

It thus appears that, in the North-Western Mediterranean PSSA, the most effective measure, that is routeing, at least in certain area were cetaceans are particularly present, is not even recommended.

 

ENDNOTES

  1. The fifteen previous PSSAs are: Great Barrier Reef Region (Australia), with Torres Strait extension (Australia, Papua New Guinea) and South-West Coral Sea extension (Australia); Archipelago of Sabana-Camaguey (Cuba); Sea area around Malpelo Island (Colombia); Sea area around the Florida Keys (United States); Wadden Sea (Denmark, Germany, Netherlands); Paracas National Reserve (Peru); Western European Waters (Belgium, France, Ireland, Portugal, Spain, United Kingdom); Canary Islands (Spain); Galapagos Islands (Ecuador); Baltic Sea Area (Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland, Sweden); Papahānaumokuākea Marine National Monument (United States); Strait of Bonifacio (France, Italy); Saba Bank (Netherlands); Jomard Entrance (Papua New Guinea); Tubbataha Reefs National Park (Philippines).
  2. The Guidelines were for the first time adopted in 1991 under Resolution A.720(17).
  3. Guidance document for submission of PSSA proposals to IMO (MEPC.1/Circ.510) of 10 May 2006), para. 1.2.
  4. See doc. MEPC 79/10 of 9 September 2022, p. 1.
  5. The sanctuary was established under an agreement concluded in 1999 by France, Italy and Monaco. Covering a total area of 87,500 km², it is a SPAMI since November 2002.
  6. The corridor, which is totally located within waters falling under Spanish jurisdiction, was established as a protected area under Royal Decree No. 699/2018 of 29 June 2018 (Boletín Oficial del Estado No. 158 of 30 June 2018). Covering a total area of 46,385 km², it is a SPAMI since December 2019.
  7. Notably, the PSSA includes most of the already established Strait of Bonifacio PSSA.
  8. The legal condition of some waters will change once Italy and Monaco decide to establish an exclusive economic zone.
  9. In France, Calanques National Park, Port-Cros National Park, Bouches de Bonifacio Natural Reserve, Cape Corsica and Agriate Marine Natural Park, Gulf of Lion Natural Marine Park, Blue Coast Marine Park, Cerbère Banyuls Marine Natural Reserve, and Embiez Archipelagos; in Italy, Tuscan Archipelago National Park, Maddalena Archipelago National Park, Asinara National Park and Asinara Island Marine Protected Area, Cinque Terre National Park and Cinque Terre Marine Protected Area, Portofino Marine Protected Area, Capo Testa – Punta Falcone Marine Protected Area, Bergeggi Island Marine Protected Area, and Secche della Meloria Marine Protected Area; in Spain, Cap de Creus Natural Park, de Montgri les iles Medes e Baix ter Natural Park, and Columbretes Islands Marine Reserve.
  10. Some of the Mediterranean cetacean subpopulations are genetically isolated from the Atlantic populations.
  11. The Mediterranean is the second world market for cruise activities, after the Caribbean Sea.
  12. “Although the vulnerability among species varies, a wide variety of cetaceans have been involved in ship strikes. Evidence of a strike has been noted by blood in the water; animals seen with cuts; propeller gashes or severed tailstocks; animals observed sinking after strikes indicating death; fractured skulls, jaws, and vertebrae; or haemorrhaging, massive bruising or other injuries noted during a necropsy of an animal” (MEPC.1/Circ.674 of 31 July 2009, para. 5).
  13. “Damage to vessels, ranging from minor to extreme, has resulted from ship strikes of cetaceans. Such damage includes cracked hulls; damaged propellers, propeller shafts, and rudders; damaged port and starboard aft strut actuators; broken steering arms; and ruptured seawater piping” (doc. quoted at note 12, para. 4).
  14. The proposal by the sponsoring States recalls a recent collision: “the vessel Hypatia de Alexandria, from the Balearia fleet, brushed against two fin whales that were 15 miles off the coast of the Llobregat Delta on 26 May 2022. One of the individuals made an emergency dive about 50 metres from the vessel and the other is believed to have grazed the keel of the vessel” (doc. quoted at note 4, Annex I, p. 25).
  15. The proposal by the sponsoring States included three supplementary measures, namely: “5. Recommendation to designated coastal Authority(ies) to broadcast information, when needed, to ships about the presence of large and medium cetaceans as navigational warning. 6. Recommendation to ship masters to determine the watchkeeping arrangements taking into account the presence of large and medium cetaceans, including the use of infrared binoculars to help the detection of large and medium cetaceans by night or fixed infrared camera detection system. These systems would help to detect not only large and medium cetaceans, but also any man-overboard or castaways by night. 7. The designated coastal Authority(ies) should prepare material and disseminate information in order to raise awareness on the crews (by means such as the publication of materials) and increase their knowledge on the protection of the marine environment on the PSSA with a particular emphasis on cetaceans” (doc. quoted at note 4, p. 4).
  16. The proposal by the sponsoring States recognizes that “voluntary speed reduction measures can have economic implications unless it is associated with an incentive system to reward virtuous ships” (doc. quoted at note 4, Annex 2, p. 8).
  17. Quoted supra, note 12.
  18. The REPCET (repérage en temps-réel des cétacés) system allows the crews of equipped vessels to report cetacean sightings in real time to a network of commercial vessels equipped with it. When cetaceans are reported on the route, navigation is adapted to avoid a collision. The Minister of the environment, energy and sea of France has identified the REPCET system as an available equipment for reporting positions in order to avoid collisions between ships and cetaceans in the marine protected areas Pelagos (Mediterranean) and Agoa (Antilles) (decrees of 2 May 2017 and 11 December 2017, in Journal Officiel de la République Française No. 105 of 4 May 2017 and No. 291 of 14 December 2017).
  19. “The current options for reducing risk are therefore limited to avoiding actions by the vessel, reducing cruising speeds, or routing vessels away from areas with large numbers of whales. Taking action to avoid a collision requires both detecting the whale in time and an appropriate avoidance manoeuvre. Good visual lookouts may be kept on cruise ships with large crews in good sighting conditions during daylight hours, but their effectiveness will be limited during poor weather or darkness” (IWC Guidance for Cruise Line Operators to Minimise Risk of Collisions with Cetaceans, 2014, p. 1).
  20. Resolution 8.12 also “recommends Parties to implement, as a matter of urgency, mitigation measures in the following high-risk areas in the ACCOBAMS Area, where ship strikes with the following species are frequent: – Strait of Gibraltar – fin and sperm whales; – Balearic Islands – fin and sperm whales; Balearic Basin and Catalan Coast – fin and sperm whales; – Eastern Alborán Sea – fin and sperm whales; – Pelagos Sanctuary – fin and sperm whales; – Hellenic Trench, Greece – sperm whales” (para. 3).

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