8.1 The Committee recalled that, at MEPC 49, it approved, in principle, the designation of the Western European Waters as a PSSA, with the provision that the area was reduced to bring the easterly line off the Shetland Isles to 0° longitude and referred the 48-hour mandatory reporting measure to NAV 50 for its consideration (MEPC 49/22, paragraph 8.25).

　

8.2 The Committee was informed that NAV 50 (July 2004) had considered a proposal by Belgium, France, Ireland, Portugal, Spain and the United Kingdom to establish a new mandatory ship reporting system for ships entering the Western European Waters PSSA in accordance with the provisions of SOLAS regulation V/11, as an associated protective measure (APM) for the PSSA submission for this region (MEPC 52/10/2).

　

8.3 The NAV Sub-Committee endorsed the establishment of a new mandatory Ship Reporting System in the Western European Waters PSSA, as set out in its report for adoption by MSC (NAV 50/19, annex 5).

　

8.4 The Committee endorsed the outcome of NAV 50 on this issue and designated, by resolution MEPC.121(52), the Western European Waters as a Particularly Sensitive Sea Area, as attached at annex 10. The Committee reconfirmed that the use of the mandatory ship reporting system for ships entering the PSSA would be free of charge.

　

　

8.5 The Committee recalled that, at MEPC 49, it approved, in principle, the extension of the existing Great Barrier Reef PSSA to include the Torres Strait Region and requested NAV 50 to consider the extension of the compulsory pilotage measure. In approving, in principle, this area as a PSSA, the Committee noted that, consistent with article 236 of UNCLOS, the APM would not apply to sovereign immune vessels (MEPC 49/22, paragraph 8.25).

　

8.6 The Committee was informed that NAV 50 (July 2004), after reviewing proposals by Australia and Papua New Guinea, agreed that the proposed compulsory pilotage in the Torres Strait was operationally feasible and largely proportionate to provide protection to the marine environment (MEPC 52/10/2).

　

8.7 In reaching this conclusion the NAV Sub-Committee recognized that the following issues had not been considered:

　

 This led to some delegations saying that a justification and demonstration of the compelling need of the proposed measure had not been submitted to the NAV Sub-Committee.

　

8.8 NAV 50 also noted the opinion of a number of delegations that there was no clear legal basis to adopt a compulsory pilotage regime in international straits and, consequently, the NAV Sub-Committee agreed to invite MEPC 52 to refer the legal issue of compulsory pilotage in straits used for international navigation to LEG 89 in October 2004, in order to enable MSC 79 in December 2004 to consider the proposal with the issue of the legal basis resolved.

　

8.9 Finally, NAV 50 requested MSC to consider whether there may be a need to develop guidelines and criteria for compulsory pilotage in straits used for international navigation notwithstanding the diverse view of delegations regarding a legal basis for such a regime. In this regard the NAV Sub-Committee agreed to request MSC to consider whether, for the purpose of enhancing safety of navigation in straits used for international navigation by means of compulsory pilotage, there may be a need for action (e.g., through establishing a new multilateral agreement or an amendment to any relevant instruments including guidelines and criteria) and decide as it deemed appropriate.

　

8.10 The Committee considered a further explanation on this issue by Australia and Papua New Guinea (MEPC 52/10/3). Although these delegations accepted the conclusions of NAV 50 with regard to the extension of the existing Great Barrier Reef compulsory pilotage arrangements to Torres Strait, they were nevertheless concerned that the Committee would review its decision at MEPC 49 of approval in principle. Resolution A.710(17) in 1991 had introduced a regime of recommended pilotage in the Torres Strait. However, compliance with this pilotage regime was declining and this resolution no longer provided an acceptable level of protection for Torres Strait. The proposed compulsory pilotage regime would have the same geographic application as that under resolution A.710(17). Independent risk assessments had confirmed that compulsory pilotage was currently assessed as the most appropriate APM for this PSSA. This proposal when implemented under the auspices of IMO would be consistent with UNCLOS, including, in particular, Parts III and XII. The right of transit passage under Part III of UNCLOS would not be impeded as a result of this proposal. The Australian Government would undertake to ensure that extra trained pilots would be available before compulsory pilotage was implemented so as to avoid a bottleneck.

　

8.11 Australia and Papua New Guinea proposed that, if the Committee endorsed the recommendation of NAV 50 to refer the legal issues to the Legal Committee, it should also refer document MEPC 52/10/3 to that Committee to assist in those deliberations. The delegations informed the Committee that they had already submitted a document on this issue to the Legal Committee under LEG 89/15.

　

8.12 Some delegations suggested that the Committee, being responsible for the designation of PSSAs, should be able to address all technical, legal, and administrative issues related to the proposed extension of the Great Barrier Reef compulsory pilotage arrangements to the Torres Strait and, therefore, they did not wish to refer the legal issues to the Legal Committee in this case.

　

8.13 However, the majority of the delegations that spoke preferred the procedural path that the NAV Sub-Committee had recommended. Consequently, the Committee endorsed the recommendation of NAV 50 to refer the legal issue of compulsory pilotage in straits used for international navigation to LEG 89, in order to enable MSC 79 to consider the full aspects of the proposal including the legal issue. The Committee recommended that the Legal Committee should also review document MEPC 52/10/3 by Australia and Papua New Guinea in this regard.

　

　

8.14 The Committee recalled that after substantive debate at MEPC 51, a majority of delegations agreed, in principle, that the "Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas" under Annex 2 of resolution A.927(22) should be reviewed, provided that specific proposals, as well as a justification, would be submitted to a future session of MEPC. The resulting revised PSSA Guidelines would then be presented as a draft resolution for consideration and adoption by the Assembly (MEPC 51/22, paragraph 8.11).

　

8.15 The Committee also recalled that the proposals for a moratorium which would suspend consideration of any current or new proposals under the existing PSSA Guidelines, while the revision of the Guidelines was conducted, were not accepted. MEPC 51 acknowledged that resolution A.927(22) was under the purview of the Assembly and agreed not to recommend a moratorium. This meant that work on the PSSAs, approved in principle but not yet designated, could continue, whilst both current and future PSSA applications to the Committee could be assessed in accordance with resolution A.927(22) until a review of the Guidelines had been completed and further action was taken by the Assembly (MEPC 51/22, paragraph 8.15).

　

8.16 The Committee considered the proposed amendments to resolution A.927(22) to strengthen and clarify the PSSA Guidelines as submitted by the United States (MEPC 52/8). In presenting these proposals the delegation of the United States drew the Committee's attention to four principal areas that these amendments addressed:

　

 The delegation proposed that the review should be completed for adoption by the twenty-fourth session of the Assembly.

　

8.17 The Committee also considered the proposed amendments to the PSSA Guidelines submitted by the Russian Federation (MEPC 52/8/1). In presenting these proposals the delegation of the Russian Federation mentioned that it aimed to address the shortcomings in the current PSSA-process and establish clearer criteria through specific amendments as shown in its submission. The proposals reflected Russia's opposition to the designation of large geographical areas as PSSAs and the need for at least one APM in any application. If no APM was suggested the application should be declared null and void. Amendments to existing PSSAs must be submitted to MEPC with changes indicated. Russia wished to prioritize the criteria for PSSA designation by giving the ecological criteria the highest priority, as the ultimate goal of a PSSA designation was protection of the marine environment. Any proposal to designate a PSSA in an entirely closed or semi-closed sea area should be made on the basis of consensus of the coastal States. Finally, any proposed APM should be linked to the size and location of the proposed PSSA.

　

8.18 The Committee also considered the proposed amendments to the PSSA Guidelines submitted by ICS and INTERTANKO (MEPC 52/8/2). The observers from ICS and INTERTANKO introduced their amendments to enhance the importance of the concept of "core area" and "buffer zones" in a PSSA. This should bring the aspect of identification more in line with the important aspect of designation of PSSAs. It called for a clear and precise illustration of the proposed PSSA and the area(s) needed to protect this area from the risks identified from shipping activities (MEPC 52/8/2).

　

8.19 In a separate submission commenting on the proposals by the United States in document MEPC 52/8, the observers from ICS and INTERTANKO aimed to rebalance the seriousness of the PSSA approval process by placing the onus on submitting State(s) rather than on the Informal Technical Group which, when reviewing applications in the past, had sometimes had to extract, with much difficulty, useful information from proponents. The United States had proposed to eliminate the current review form. On the other hand, ICS and INTERTANKO proposed a new review form, as shown in the annex to their paper, the main aim being to ensure that sufficient information was provided in the application. The proposed new review form also provided clear instructions to the Informal Technical Group on how it should arrive at its assessment (MEPC 52/8/3).

　

8.20 In introducing its document MEPC 52/8/4, the observer from WWF mentioned that it had substantive comments on some of the proposals made by the United States. In general, WWF was concerned that the precautionary and preventative basis that underpinned the present Guidelines would be lost as a result of some of the changes proposed by the United States. WWF disagreed with the United States on a large number of amendments relating to the criteria, as they required an unrealistic level of purity and uniqueness. Furthermore, it was concerned with the presupposition of the United States that the IMO did not have the legal competence under the general provisions of UNCLOS to adopt measures to protect the marine environment in cases where no specific instrument was provided for a proposed APM. The observer further expressed concern regarding the suggested amendments from the Russian Federation as they would restrict PSSAs to "Special Areas" only and following confirmation that all other protective measures had failed.

　

8.21 The observer from WWF also reminded the Committee of the decision of the 7^th Conference of Parties to the Convention on Biological Diversity (VII/5) that called for the creation of representative networks of marine protected areas and urgent action to protect such areas from all threats, including shipping. It further called for a framework of sustainable management practices and action to protect biodiversity over the wider marine and coastal environment. Finally the observer suggested that the developing countries that needed assistance, when preparing a PSSA application, should be offered such assistance through the IMO Integrated Technical Co-operation Programme.

　

8.22 The Committee was generally supportive of the submissions on this item. At the same time, there was a general feeling that the PSSA-concept and function should not be altered by the review, or that the review should have an impact on the current PSSA applications. Also, a clarification on a number of issues within the PSSA Guidelines would be necessary.

　

8.23 The delegation of the United States proposed the following procedure for the conduct of the review:

　

8.24 This proposal was broadly supported, although several delegations expressed the view that there was no urgency in finalizing the review by the end of 2005.

　

　

8.25 After consideration of the proposals and the comments thereto, the Committee agreed to convene an "Informal Technical Group on the PSSA Guidelines", which was instructed to:

　

8.26 The Committee acknowledged that by focusing the action at this session on organizational issues and clarifying the issues for the review, rather than embarking on the review of the PSSA guidelines itself, more work would be left for MEPC 53.

　

　

8.27 The Chairman of the Group on the PSSA Guidelines, Ms. Lindy S. Johnson (United States), in introducing the report of the Group (MEPC 52/WP.12) informed the Committee that it had developed, as instructed and guided by the discussion on this issue in plenary, the following terms of reference for the intersessional Correspondence Group on the PSSA Guidelines:

　

8.28 Some members of the Informal Group expressed the desire to have a face-to-face meeting in view of the limited time available for the review. However, other members voiced concerns regarding obtaining approval from the Council for such a meeting, as well as the inability to participate because of travel implications.

　

8.29 In recognizing that the terms of reference provide that MEPC 52/8 were to be used as the base document for the review and, as appropriate, for preparation of amendments to the PSSA Guidelines, the Informal Group recommended that the Committee invite Member Governments and observers to submit specific comments on the base document, taking into account documents MEPC 52/8/1, MEPC 52/8/2, MEPC 52/8/3, and MEPC 52/8/4, as well as the discussions and direction given in the report of the Committee. These comments should be provided to the Co-ordinator of the Correspondence Group by 15 November 2004. Participants in this process should, when submitting comments, clearly identify which Member Government or observer organization they represent. Comments should be submitted to Ms. Lindy S. Johnson¹ (United States).