Sea Control - Sea Control 271 - Navigation in Particularly Sensitive Sea Areas with So Yeon Kim

Episode Date: August 29, 2021

Links1. "Problems and Processes of Restricting Navigation in Particularly Sensitive Sea Areas," by So Yeon Kim, The International Journal of Marine and Coastal Law, June 3, 2021. 2. "Making International Law Truly ‘International’?Reflecting on Colonial Approaches to the China-Vietnam Dispute in the South China Sea and the Tribute System,"  by So Yeon Kim, Journal of the History of International Law, January 31, 2021.

Hey, this is Jared. Today, I'm joined by Soyeon Kim, and we'll be discussing navigation in particularly sensitive sea areas. If you think that we're talking about FONOPS, no, this isn't that. This is going to be a lot of policy discussion, but I think you're going to enjoy Soyeon's perspective on having a unique aspect of law of the sea. Don't miss everything going on over at the website, simsec.org. The final iteration for Project Triton posted over the last two weeks, we partnered with Lockheed Martin and the Naval Warfare Studies Institute at the Naval Post Graduate School for the topic Emerging Technologies. We got so many submissions that we had to expand the topic week to encompass two weeks, so go check all those out. We've also

officially put out our call for articles for the end-of-year fiction contest. Go over to simsec.org for full details. You should also expect, if it hasn't posted already, it should be up very shortly, the SimSec Forum for Authors and Readers, so go ahead and nominate your favorite articles from the last year. Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast Network, the Bilge Pumps, you can find Alex, Jamie, Drack, and a pile of iron brew bottles wherever you download your podcasts. On that note, I'll turn it over to Kimber's men. You're listening to Sea Control, hosted by the Center for International Maritime Security. Aloha, shipmates, and welcome back aboard Sea Control. Today, we're joined by Soyeon

Kim, and we'll be discussing her article from the International Journal of Marine and Coastal Law, Problems and Processes of Restricting Navigation in Particularly Sensitive Sea Areas. Soyeon, welcome. Would you mind telling us a little bit about yourself? Thank you for having me today. I'm currently a PhD candidate in law at the University of Cambridge, and I'm writing a PhD thesis on international marine protected areas. And the article I'll be introducing today is part of my thesis, and it explores the particularly sensitive sea areas. Thanks, and as a reminder to our listeners, all opinions are our own and not reflective of any institutions with which we might be otherwise associated.

So we'll just jump right into the questions. What constitutes a particularly sensitive sea area? So the particularly sensitive sea areas, also called the PSSAs, are a form of marine conservation measure established by the International Maritime Organization, or the IMO. They are established to protect the marine environment against damage caused by navigation. So a PSSA is constituted of an area that is protected and legally binding measures that protects the area. These legally binding measures are also called the associated protective measures or the APMs, but I'll simply call it as measures. So various measures have been adopted to date, namely traffic separation scheme, area to be avoided, no anchoring areas, routing and

reporting systems, precautionary areas, and so forth. And how does a state go about establishing a PSSA? The first step of the designation process of the PSSA is that a state proposes a PSSA and the measures. Within the IMO, the Merit Environment Protection Committee considers the application and then establishes an informal technical group if there are no objections from others. And the Sumerian Environment Protection Committee considers the proposals for PSSAs on a case-by-case basis, and they consider whether or not the area fulfils at least one criterion amongst ecological, socioeconomic, or scientific attributes. The informal technical group then assesses the scientific and technical aspects of the proposal, and then recommends that application to be adopted by the committee. After the committee approves, the measures are referred to another competent committee, which may be Maritime Safety Committee or the Assembly, etc. So this depends on where the responsibilities of the relevant instruments of the measures lie.

After the measures are approved by the relevant committee, the Marine Environment Protection Committee, the central committee, then designates the PSSAs with the measures. What are the 2005 guidelines and how and why were those approved? So the full name of the 2005 guideline is actually the revised guidelines for the identification and designation of PSSAs. But there has previously been guidelines for states to follow when they wanted to propose or approve the PSSAs. But because the most recent guideline was revised in 2005, we just call it 2005 guidelines. So in order to know how and why the 2005 guidelines were approved, we must know how the initial guideline was adopted, which was in 1991. So to go back in history a bit, the concept of the PSSA actually originated

from the 1972 Stockholm Conference, which is the United Nations Conference on the Human environment, but the member states of the International Maritime Organization started to discuss from 1986. However, the discussion to establish the PSSA as a standalone concept or not actually staggered the discussion until 1991. And in 1991, Australia first proposed the Great Barrier Reef as a PSSA, even before the International Maritime Organization came up with a guideline. So this proposal to designate the Great Barrier Reef as a PSSA was adopted first and then the PSSA guideline was adopted right after the designation. But this first guideline in 1991 was criticized because the states believed that the procedures to propose and approve

the PSSAs were too complicated. So later the guideline was revised in 2000 and once again in 2005 and now we have the 2005 guidelines to help the member states of the international maritime organization to understand the process of proposing and approving the PSSAs. How many PSSAs are there and is there a particular area of the world where they predominate? There have been 17 particularly sensitive sea areas to date and they are mostly concentrated in European, Central American, and Oceania region. There are currently no PSSAs in Northeast Asia, South Asia, and South Africa to date. Are there countries that have proven particularly adept at using the PSSA regime? It is difficult to say that a specific country

is adept at using the PSSA regime, but one noticeable point is that the European states have been jointly proposing the PSSAs frequently. So there are three PSSAs in Western Europe which is the Baltic Sea, the Wadden Sea and the Western European Waters. The Western European Waters refers to the whole maritime area surrounding the United Kingdom and it reaches down to Spanish coasts. Many scholars have pointed out that this effort of designating most of the maritime area and Western Europe has actually been a coordinated effort by the European Union or the EU. The EU started to actively regulate vessel source pollution after the Erika and the Prestige accidents in 1999 and 2002. Both of these accidents were oil spill accidents that polluted

the European coasts. So along with the EU legislation and establishing the European Maritime Safety Agency, the EU led the designation for the effective protection of European ports. And in line with that, the EU approached the PSSA designation in the IMO as also as a general EU maritime policy to protect their marine environment. And one of your arguments is that the PSSA regime is underutilized due to politics and politicization. What do you mean by politics in this context? Yes, I argue here that the PSSA designation process was crafted to be an arena of politics so that it can balance the environmental interests and shipping interests.

Actually, a healthy political process helps the agenda to develop and the participants to shed light on possible obstacles. However, in this case of PSSA regime, I believe that the politics inside and outside the IMO and the politicization has led to incoherent outcome of the PSSA designations. And I believe this ultimately undermined legitimacy of the PSSA. For politics, I bore the definition of David Easton, and he defines politics as the process of authoritative distribution of values in a society. Using this definition, politics would mean the authoritative process of deciding how much protection is given to the proposed PSSA area. And here the protection would be, for example, the size of the particularly sensitive sea area or the range of measures, etc. This process is authoritative because the PSSA is decided under both the legal competence of the International Maritime Organization and also the authority of the states. While politics is a term used to illustrate the general picture of the distribution of values in this process, politicization is carried out by a state or a group of states.

So if a state or a group of states politicizes the decision-making process, it means that the states or the group of states regard the issue as part of their policies, and they try to advance their national or communal interest in it. In contrast, non-politicization occurs when a state does not find an issue significant enough to seek more values. So when a state is not politicizing the issue it would not have been on the matter. When these definitions are applied to the PSSA regime, politicization may be defined when a state or a group of states prioritizes an issue and advances their interest based on governmental or communal decisions.

So in this sense, the act of proposing a PSSA can also be an example of politicization as it is steered by the interests and planned actions of the state or the states and likewise a parallel comment can be made about an act of actively opposing to the PSSA proposal so for example when a state proposes a PSSA site and all the other states are not interested in the proposal the proposing state is politicizing the proposal whereas all the other states are not so in this sense, politicization and non-politicization can occur in an issue simultaneously. Thanks for the definitions. Can I ask you, if we want to discuss politicization, could you talk about the establishment of the regime in the Baltic in particular? Because that

seemed to be, of the examples that you use, maybe the most contentious. Yes, so for the Baltic Sea PSSA, it was quite politicized in a sense because there was a massive opposition from Russia. So Baltic Sea is a semi-closed sea in Europe. And actually, the motive of, as I've discussed before, the motive of these PSSAs in Europe was steered by the oil spill accidents. And the thing is, from Russian ports, there are a lot of oil vessels that's carrying from the Russian ports out to the Atlantic Sea, Atlantic Ocean, I'm sorry. So in that sense, a lot of most of the proposing states were Baltic Sea neighboring states or coastal states, except Russia. And Russia didn't want the Russian ports and their territorial sea and exclusive economic zone to be included in this Baltic Sea PSSA. So in that sense, it was very contentious on how to decide the geographical scope of the Baltic Sea PSSA.

Russia raised an issue saying that their exclusive economic zone has not been limited yet. Therefore, because Russia is not a proposing state of the PSSA, you cannot decide how much scope the Baltic Sea PSSA can have. So in that sense, in the end, the Baltic Sea PSSA had to exclude the path that the Russians were opposing to. Although the initial motive was actually to prevent the oarskills from those vessels coming out from Russian ports. Most of the PSSAs in existence mirror national regulations already in place. So why would states do that? And is that an effective use of the PSSA regime? Yeah, it is surprising how many PSSAs mirror the existing national or international regulations. Six of the PSSAs were previously a National Merit and Protected Area, and nine of them were already inscribed as World Heritage Sites

or listed under the Ramsar Convention on the Lens of International Importance, especially as waterfowl habitat. Why states do that, I assume, is because it can bring public awareness, as the PSSA is designated by the International Maritime Organization. And the organization is a quasi-universal organization with 174 states. Another usefulness, I assume, is that the PSSAs accompany the measures in the area, which can regulate the foreign vessels. This can be environmentally very useful when the new PSSA is in the exclusive economic zone, where the state has less authority to regulate foreign vessels navigating than the territorial sea. And according to the United Nations Convention on the Law of the Sea, see, the International Maritime Organization is the competent organization that can produce

international standards and regulations on these matters. However, I also discovered in the article that most of the PSSAs actually mirrored existing measures into the associated protective measures in the PSSAs. And many of the associated protective measures in the PSSAs were already implemented prior to the PSSA designation. So in this sense, I argued that this kind of PSSA usage would be ineffective and would not live full to its potential that the PSSA regime has. So you brought up the associated protective measures. I'm going to go slightly out of order on what we had discussed previously. What are the associated protective measures and why have they been less effective than originally thought? So associated protective measures are legally

binding measures implemented in the PSSAs. They can regulate shipping in PSSAs and also take a tailor-made approach to each PSSA based on the threat that they're facing. However, this wide scope for regulating the substances and threats is curtailed by the legal basis of the associated protective measures. According to the 2005 guidelines, it says that the International maritime organization can only adopt measures in the PSSAs that are actions to be or have been or approved or adopted by the IMO so it's basically saying that you establish you are approving the measure itself can't be the legal basis there has to be a case where it has been previously approved or adopted as such the PSSA itself does not provide the legal basis therefore cannot enforce

them but rather the measures required a separate approval process in the relevant subcommittee of the international maritime organization and this raises the hurdle of adopting new measures in the PSSA and also it would require two approval process of approving the PSSA but also approving the measures and this hurdle has made the measures less effective than they were originally thought states seeking environmental protection against shipping activities then do not necessarily have to seek the PSSA designation to actually get the same measures in the area that they want to be protected. And now there are states like Indonesia which forego PSSA application and just instead request similar measures through other IMO committees such as Maritime Safety Committee.

The PSSA proposals also require an onerous process of preparing information on the vulnerability of the proposed area. And they also have to show like the threats posed by the international shipping activities, etc. But this is not required when you're requesting the navigational measures through other IMO committees. So in this sense, it is quite actually natural for the states to just go for the measures and just forego the PSSA applications. How do ecosystems complicate the process of establishing PSSAs? So the 2005 guidelines state that a PSSA fulfilling the ecological criteria needs to be, quote, a biologically functional unit, an effective self-sustaining entity. End quote. So they require that the International Maritime Organization should consider the linkage between the area and the size of the area and also to the environment threat that they're posed in the area to the ecosystem. So I would call this criterion an ecosystem criterion.

But in practice, this ecosystem criterion confused states on whether this PSSA should only contain one biological functional unit or whether it can contain multiple ecosystems. And this confusion surfaced as a contentious issue in the designation process of Western European waters and the Baltic Sea. So, as I've mentioned before, the Western European waters, it's a massive geographical scope, whereas the Baltic Sea is quite semi-closed sea, and it is quite a more of a single biological functional unit compared to Western European waters. But because the International Maritime Organization was undecided on how to interpret this ecosystem criterion, and when it faced a lot of political interest and their conflicts, like I've mentioned before about Russian oppositions, the International Maritime Organization therefore easily overlooked the ecosystem criterion and made inconsistent decisions. So the Western European PSSA neglected this ecosystem criterion and is now over-inclusive of the ecosystems as the area now contains different ecosystems. And this was possible due to the EU's lobbying and active engagement in the IMO to trying to protect the Western European waters. But in contrast, the Baltic Sea PSSA overlooked the criterion by being under-inclusive and including only a part of the ecosystem, because Russia opposed to their waters being included in the Baltic Sea PSSA. So the politics in the IMO that's caused by inconsistent decisions on this ecosystem criterion also curtailed the potential legal development of the PSSA regime and of how it can be resolved in the future PSSA regimes.

regimes. You've identified multiple redundant processes to include national measures. Other committees within the IMO, you specify that Indonesia has done this, that can impose the same kind of restrictions as the PSSA regime. Is the regime superfluous? I don't believe that the regime was superfluous by design originally. I think it has somewhat become in that sense in practice, but there is definitely an advantage of the state to pursue the PSSA designation because the area can be named as the PSSA, and that itself is an advantage for some states. This can not only increase public awareness, but also increase the awareness of the foreign vessels navigating the area. So it's actually quite informative for the navigators. But recently,

some states have deemed this awareness advantage to not be so important insofar as they can secure the same environmental protection in the area. So the IMMA knows this challenge and they've been trying to keep the uniqueness of the PSSA regime by trying to discourage the states in foregoing the PSSA application and using other methods. So the Maritime Safety Committee recently adopted a new procedure in 2019 to encourage the proposing states to first consider a submission to the Maritime Environment Protection Committee with the view to establishing the PSSAs and the associated protective measures when they're drafting or proposing sheep's rooting system reporting systems or other measures when they're clearly for protecting the marine

environment so it's basically saying when you're asking measures for marine environmental reasons just consider PSSAs first however as the procedure only encourages states to consider submitting the PSSA proposal rather the states will comply with this new procedure is actually not confirmed yet So, for example, in the same year that the procedure was announced, which was in 2019, the Brazil actually proposed the establishment of an area to be avoided in the Santos Basin region to protect the marine environment and reduce the risk of maritime incidents, which is clearly under the umbrella of PSSA, but they didn't resort to the PSSA and rather just relied on other committees. The other committee did not approve of this Brazil's proposal, so we'll have to see

how the states will comply with this new regulation and how the IMO also further deals with it. Thank you. A final follow-up question if you'll permit me one. Which of the measures that you've identified, whether it's associated protective measures, the PSSA, national processes, which of those will actually result in an entry on a nautical chart? Because to me as a mariner, that is the thing that will actually get my attention. Rather than a law written in a book somewhere that I then have to go find and reference, the nautical chart is in my face as I'm navigating to tell me to avoid this area or that I need to behave in a certain manner in a specific area. Yeah, so as far as I know, these measures, associative protective measures,

are actually all written in the nautical charts. That's why a lot of states apply for the IMO for PSSAs or other measures. So for example, traffic separation schemes of clearly showing which routes to take in which states would be in the nautical charts or area to be avoided or no anchoring areas or recommended pilotage in the straits would be in the nautical charts so in that sense there are advantage of that for the PSSAs but the thing is these measures can also be somewhat pursued in other routes in the IMO by the states so it's basically it's very important because if you're navigating the territorial sea all of these measures can be adopted by the coastal state because it's under their authority to do it but in exclusive economic

zones which is from 12 nautical miles from the baseline there needs to be special reasons for the states to pursue this it should be related according to the law of the sea it says that it has to be relevant to the economic activities of the state, which is the jurisdiction of the coastal state. But the advantage of the IMO would be that they can do this through the IMO, even if the area that they want to protect is in the exclusive economic zone, and that it can be in the nautical charts. This is an excellent conversation. I'd like to thank my guest, Soyeon Kim. Soyeon, where can we find you online, and what are you working on next? thank you um my short cv can be found on the cambridge law faculty website and it has a

linkedin and twitter linked to the website as well i'll be working on my thesis for this year and hopefully graduate my phd program by next year but after this i'll be working on my other areas of interest which is south china sea dispute and also animal welfare discourse in the to see. I look forward to the next time we have you on, we can address you as Dr. Soyeon Kim. So thank you again for joining us. To listeners, thanks for tuning in. We'll see you next time. © BF-WATCH TV 2021 We'll be right back.