Burgeoning Practice of Southeast Asian States to Protect the Marine Environment from the Effects of International Shipping - Brill
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asia-pacific journal of ocean law and policy
2 (2017) 268-295
brill.com/apoc
Burgeoning Practice of Southeast Asian States
to Protect the Marine Environment from
the Effects of International Shipping
Millicent McCreath
Research Associate, Centre for International Law (cil)
National University of Singapore, Singapore
cilmmj@nus.edu.sg
Abstract
The marine environment of Southeast Asia is amongst the most ecologically important
in the world. A substantial volume of international shipping passes through the re-
gion which can have a deleterious effect on the environment due to impacts including
operational and accidental discharges, collisions and groundings. Recently Malaysia,
Indonesia, Viet Nam and the Philippines have introduced or commenced work to-
wards proposals for special measures to be adopted by the International Maritime
Organization (imo) targeting the risks of shipping. These proposed special measures
are in the form of “particularly sensitive sea areas” (pssas), and are being developed
under a cooperation program between the imo and the Norwegian aid organisation
(Norad). This article analyses the pssa proposals currently underway or recently final-
ised by Malaysia, Indonesia, Viet Nam and the Philippines, and the legal framework
for the establishment and implementation of measures for environmental protection
under the law of the sea and the imo.
Keywords
shipping – marine environment – Particularly Sensitive Sea Areas – pssa – law of the
sea – Southeast Asia – International Maritime Organization
i Introduction
The marine environment of Southeast Asia is amongst the most ecologi-
cally important in the world. This sensitive environment is vulnerable to the
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impacts of many activities such as overfishing and harmful fishing practices,
land-source pollution, port and coastal development and tourism. A substan-
tial volume of international shipping passes through the region which can have
a deleterious effect on the environment due to impacts including operational
and accidental discharges, collisions and groundings. In response to these
numerous threats, many of the States in Southeast Asia have implemented
various measures under their domestic laws to create marine protected areas
(mpas) in their maritime zones. These mpas come in many different forms,
regulating different harmful activities in different ways. A significant limita-
tion in the establishment of mpas by domestic mechanisms is their inability to
regulate international navigation beyond the territorial sea.
The international law of the sea represents a finely-wrought balance be-
tween the competing rights and interests of all States. States may variously
and often simultaneously have an interest as a flag State in international
navigational freedoms, as a coastal State in the right to protect its marine en-
vironment, and as a port State whose interests may lie somewhere in between.
Following the conclusion of the United Nations Convention on the Law of the
Sea (unclos) in 1982, the extent of coastal State maritime zones was substan-
tially increased, with sovereignty out to 12 nautical miles from the territorial
sea baselines (territorial sea), and sovereign rights out to 200 nautical miles
(exclusive economic zone (eez)). However, in order to preserve international
navigational rights, the jurisdiction of the coastal State to regulate unilaterally
for environmental protection is limited within but especially beyond the ter-
ritorial sea. Instead unclos refers to the “competent international organiza-
tion”, taken to be the International Maritime Organization (imo), as the forum
through which international rules and standards for international shipping are
adopted. For coastal States seeking to impose special rules for environmental
protection for shipping beyond the generally accepted international rules and
standards, in many cases they must do so either through, or on the advice of,
the imo.
Recently Malaysia, Indonesia, Viet Nam and the Philippines have introduced
or commenced work towards proposals for special measures to be adopted by
the imo targeting the risks of shipping. These proposed special measures are
in the form of “particularly sensitive sea areas” (pssas), and are being devel-
oped under a cooperation program between the imo and the Norwegian aid
organisation (Norad). The Philippines’ pssa was designated by the imo in
July 2017, the other Southeast Asian pssa proposals remain works in progress
as of July 2017. All four proposals cover waters over which the coastal State
is sovereign and has therefore in most cases extensive jurisdiction to impose
unilateral environmental regulations on foreign ships. However, in areas such
as international straits and archipelagic waters, where international rights of
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avigation are especially enshrined, the coastal State despite its sovereignty
n
generally requires imo approval for the adoption of such measures. Indonesia
and the Philippines are both archipelagic States through whose waters other
States are guaranteed a right of archipelagic sea lanes (asl) passage. Malaysia
and Indonesia together with Singapore are littoral States of the Straits of
Malacca and Singapore.
This article will analyse the pssa proposals currently underway or com-
pleted by Malaysia, Indonesia, Viet Nam and the Philippines, and the legal
framework for the establishment and implementation of measures for envi-
ronmental protection under the law of the sea and imo rules and practice.
In that context it will investigate the extent to which the law of the sea requires
pssa designation or imo approval at all for the protective measures proposed
by the four Southeast Asian States. Although pssas may be designated in any
maritime zone, the extensive coastal State prescriptive jurisdiction in internal
waters, territorial sea and archipelagic waters means that obtaining approval
through the imo of its associated protective measures is not always legally
necessary. However, there may be other reasons beyond international law to
render designation of a marine area as a pssa attractive, such as domestic po-
litical reasons. Further, pssa designation may have intrinsic value beyond the
value of the protective measures it incorporates.
ii International Oceans Governance Regime
Under unclos, the world’s oceans are divided into zones, with the coastal
State’s rights and jurisdiction receding in each zone further away from its land
territory. Simultaneously, the navigational rights of the flag State increase fur-
ther away from a State’s land territory. unclos was negotiated by consensus
and as a package deal, with no reservations permitted. A consequence of this
is that its provisions can be broad and lacking in detail, and to some extent it
operates as a framework convention. With regard to shipping, unclos makes
frequent reference to international rules and standards which it requires States
parties to comply with, and recognises the rule-making role of the “competent
international organization”, taken to be the imo for shipping. International in-
struments concluded under the imo such as solas1 and marpol2 are in most
1 International Convention for the Safety of Life at Sea, opened for signature 1 November 1974,
1184 unts 1 (entered into force 25 May 1980).
2 International Convention for the Prevention of Pollution from Ships (as Modified by the Proto-
col of 1978 Relating Thereto), opened for signature 2 November 1973, 1340 unts 184 (entered
into force 2 October 1983).
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cases considered to be “generally accepted” and therefore binding on parties
to unclos. All instruments enacted under the imo must be compatible with
unclos.3 An important distinction must be drawn between “sovereignty” and
“sovereign rights” for the purposes of the following discussion. “Sovereignty”
refers to the absolute and exclusive legal authority of a State that can be lim-
ited only with that State’s agreement, while the “sovereign rights” of a State
refer to certain specified exclusive rights.
A coastal State’s maritime zones are measured from baselines which nor-
mally represent the low-water line along the coast.4 Within its internal waters
(waters landward of the baselines)5 the coastal State is sovereign as over its
land territory. The territorial sea may extend out to 12 nautical miles from the
baselines.6 The coastal State is sovereign within its territorial sea, however its
sovereignty is exercised according to the rules in unclos and general inter-
national law.7 Ships of all States enjoy the right of innocent passage through
the territorial sea, meaning that they may pass through the territorial sea in a
continuous and expeditious manner, refraining from certain activities.8 The
coastal State may adopt laws and regulations relating to innocent passage in
respect of various listed matters, provided that such laws and regulations shall
not apply to the design, construction, manning or equipment of foreign ships
beyond generally accepted international rules and standards and do not have
the effect of denying passage.9
In light of the importance of international rights of navigation, even within
a State’s territorial sea, the regime of transit passage was established to pro-
tect flag State navigational rights in straits used for international navigation.10
Compared to innocent passage, the coastal State has restricted jurisdiction to
adopt laws and regulations affecting ships in transit passage. Under u nclos,
certain States satisfying geographical requirements can be classified as
“archipelagic States”, and are entitled to draw straight baselines around their
archipelagos.11 The waters enclosed by the baselines are “archipelagic waters”
3 R. Beckman, pssas and Transit Passage – Australia’s Pilotage System in the Torres Strait
Challenges the imo and unclos, 38(4) Ocean Development & International Law 325–357
(2007), at 326.
4 unclos, art. 5.
5 unclos, art. 8.
6 unclos, arts. 2, 3.
7 unclos, art. 2.
8 unclos, arts. 17, 18, 19.
9 unclos, art. 21.
10 unclos, Pt. iii.
11 unclos, Pt. iv.
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within which the coastal State is sovereign.12 The right of innocent passage ap-
plies within archipelagic waters, however along routes normally used for inter-
national navigation, all vessels enjoy a right of asl passage.13 The right of asl
passage is broadly equivalent to the right of transit passage.
iii Area-based Management Tools to Target the Impacts of
International Shipping
The marine environment may be at risk from the direct and indirect impacts
of a variety of human activities, one being international shipping. mpas are an
increasingly prominent means of protecting important and vulnerable marine
areas from these impacts. Properly designated and managed mpas can be a
highly effective mechanism for the protection of the marine environment. The
mpa concept is notoriously ambiguous, with States and regional organisations
applying the term to areas that are protected by any number of varying mecha-
nisms, targeting different activities, and for different conservation outcomes.
Although there is no one definition for “marine protected area”, the most uni-
versally accepted definition is the 2008 formulation of the International Union
for the Conservation of Nature (iucn):
A clearly defined geographical space, recognised, dedicated and man-
aged, through legal or other effective means, to achieve the long-term
conservation of nature with associated ecosystem services and cultural
values.14
Although the mpa term is used flexibly, in applying the iucn definition it is
apparent that an area designated with protections only from shipping, i.e. only
with single-sector protection, would not be classified as an mpa. This article will
use the term “area-based management tools” (abmts) to refer to such single-
sector protective mechanisms, such as pssas. Although mpas that protect the
environment from all threatening activities will achieve greater conservation
outcomes, abmts that protect the marine environment from shipping remain
a legitimate conservation measure. Shipping has the potential to have signifi-
cant adverse effects on the marine environment, from for example operational
12 unclos, art. 49(1).
13 unclos, art. 53.
14 N. Dudley (ed), Guidelines for Applying Protected Area Management Guidelines (iucn,
2008), at 8.
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and accidental discharges, damage to reefs from groundings, noise pollution,
and disturbance to sensitive species and their habitats. The implementation of
abmts to regulate international shipping can reduce the risks of adverse envi-
ronmental impacts and therefore achieve meaningful conservation outcomes.
In practice however, as with all the pssa proposals discussed in this arti-
cle, abmts implemented to protect an area from shipping will most likely be
in addition to other measures focusing on other activities. Considering that
shipping abmts are implemented to protect vulnerable or important areas, in
many cases these areas will already be protected in some way under domestic
laws, either generally or with respect to particular sectors. Together these pro-
tections may form a comprehensive and conservation-focused mpa.
Several mechanisms exist under the law of the sea and international envi-
ronmental law for the creation of shipping abmts. The imo is recognised by
the international community as the competent international organisation for
the regulation of shipping. Accordingly, by establishing abmts under the aus-
pices of the imo, the protective measures are opposable to other States.
1 unclos
Uniformity of international rules relating to shipping is considered vital to the
preservation of the freedom of navigation.15 At the same time, coastal States
have an interest in protecting their coastline and maritime zones. The unclos
regime seeks to balance the interests of flag States in navigation and coastal
States in environmental protection. Under unclos, States are under a posi-
tive duty to take all individual or joint measures consistent with the conven-
tion that are necessary to prevent, reduce and control pollution of the marine
environment from any source.16 With regard to pollution from vessels, States
are required to establish through the competent international organisation in-
ternational rules and standards to prevent, reduce and control pollution of the
marine environment from vessels.17 In the same manner they are also required
to promote the adoption where appropriate of ships’ routeing systems to mini-
mise the threat of accidents that might lead to pollution.18
The unclos mechanism of referring to generally accepted international
rules and standards means that it is able to adapt to changing circumstances
15 J. Roberts, A. Chircop & S. Prior, Area-based Management on the High Seas: Possible Appli-
cation of the imo’s Particularly Sensitive Sea Area Concept, 25(4) The International Journal
of Marine and Coastal Law 483–522 (2010), at 494.
16 unclos, art. 192.
17 unclos, art. 211(1).
18 Ibid.
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and international priorities, and to incorporate advances in scientific knowl-
edge and technology. In the years since the negotiation of unclos, greater
attention has been directed to the health of the world’s oceans and the need
to protect the marine environment. At the time of drafting (1973–1982), con-
cepts such as mpas, integrated oceans management and the ecosystems ap-
proach were not yet widely recognised and were not explicitly incorporated
into the text. Although unclos itself does not specifically require the estab-
lishment of mpas, it places numerous obligations on parties to protect and
preserve the marine environment. This includes taking all measures necessary
“to protect and preserve rare or fragile ecosystems as well as the habitat of
depleted, threatened or endangered species and other forms of marine life.”19
Despite this positive obligation, the expression of the precise duties and stan-
dards is vague and therefore may be difficult to enforce in practice. However,
the content of this duty was somewhat clarified or even extended in the South
China Sea Arbitration award of 12 July 2016 where the tribunal stated that the
general obligation to protect and preserve the marine environment in art. 192
of u
nclos imposes a due diligence obligation to take measures necessary to
protect and preserve rare and fragile ecosystems and habitats.20
(1) Coastal State Prescriptive Jurisdiction within the Territorial Sea
In the territorial sea, the default jurisdictional regime is the sovereignty of the
coastal State. However, the coastal State cannot enact or enforce any law which
is discriminatory or which would have the practical effect of denying or im-
pairing the right of innocent passage.21 For vessels in innocent passage, the
coastal State may adopt laws and regulations relating relevantly to the safety
of navigation and the regulation of maritime traffic; the conservation of the
living resources of the sea; the preservation of the environment of the coastal
State and the prevention, reduction and control of pollution thereof;22 and the
prevention, reduction and control of marine pollution from foreign vessels.23
These laws cannot apply to the design, construction, manning or equipment
of foreign ships unless giving effect to generally accepted international rules
or standards.24 The coastal State has jurisdiction to require foreign ships in
innocent passage to use sea lanes and traffic separation schemes (tss) “where
19 unclos, art. 194(5).
20 South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of
China) Award of 12 July 2016, pca Case No. 2013–19, at par. 959.
21 unclos, art. 24.
22 unclos, art. 21(1).
23 unclos, art. 211(4).
24 unclos, art. 21(2).
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necessary having regard to the safety of navigation”.25 Although the coastal
State may put in place such measures directly, they must take into account the
recommendations of the imo.26 Any vessel that commits an act of wilful and
serious pollution contrary to unclos is no longer in innocent passage,27 and
the coastal State may generally take such action against the ship as its domes-
tic laws provide.
(2) Coastal State Prescriptive Jurisdiction within Straits Used for
International Navigation
A major development in the law of the sea under unclos was the significant
increase in coastal State entitlement to maritime zones. This had the effect of
enclosing within the territorial sea straits used for international navigation.
The regime of transit passage was included in unclos to preserve navigation-
al rights and duties on straits, providing for more expansive navigational rights
than the innocent passage that applies in the territorial sea. Compared to the
territorial sea, the coastal State has substantially restricted prescriptive juris-
diction to regulate vessels in transit passage. In straits used for international
navigation, unclos provides that sea lanes and tsss may only be designated
where necessary to promote the safe passage of ships, and are to be adopted
by the imo, before designation by the coastal State.28 The imo’s General Provi-
sions on Ships’ Routeing provide that, “an area to be avoided will not be adopt-
ed if it would impede the passage of ships through an international strait.”29
Coastal State environmental jurisdiction in straits extends only to adopting
laws “giving effect to” applicable international regulations regarding the dis-
charge of oil, oily wastes and other noxious substances.30
(3) Coastal State Prescriptive Jurisdiction within Archipelagic Waters
The regime of archipelagic waters is a compromise reached during the ne-
gotiation of unclos between archipelagic States that considered the waters
enclosed by their islands to be internal waters, and flag States that resisted
restrictions on navigational rights.31 In the order of 20 States claim to satisfy
the geographical requirements to justify their status as archipelagic States
25 unclos, art. 22.
26 unclos, art. 22(3)(a).
27 unclos, art. 19(2).
28 unclos, art. 41.
29 imo Res.A.572(14), General Provisions on Ships’ Routeing, adopted 20 November 1985,
par. 3.7, as amended.
30 unclos, art. 42(1)(b).
31 EJ. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer Law Interna-
tional, The Hague, 1998), at 293.
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under unclos.32 Some of these claims are problematic from a legal point of
view in their imperfect application of the requirements in Pt iv of unclos.33
The territorial sea lies seaward of the archipelagic baselines, and archipe-
lagic waters lie within.34 Within archipelagic waters there concurrently exist
areas in which innocent passage applies and areas in which asl passage ap-
plies.35 asl passage applies on designated asls representing all normal pas-
sage routes used for international navigation.36 If no asls are designated, the
right of asl passage applies through the routes normally used for international
navigation.37 The right of innocent passage applies outside of routes normally
used for international navigation through archipelagic waters. Where innocent
passage is applicable, archipelagic States have the same jurisdiction to regulate
navigation as they do in the territorial sea.38 Archipelagic State prescriptive ju-
risdiction regarding asl passage is broadly similar to coastal State prescriptive
jurisdiction in straits.39
There is no flexibility in the text of unclos for designating asls, as they
must include “all normal passage routes used as routes for international
navigation”.40 However in practice, the designation of asls may be negotiated
between the archipelagic state and the user state. Jurisdiction to designate tsss
for asls is limited to where necessary for the safe passage of ships through nar-
row channels.41 It is the imo, not the archipelagic State, that adopts the asls
and tsss, though only those as agreed with the archipelagic State, which sub-
sequently designates them.42 Archipelagic State environmental jurisdiction
in asls in unclos extends only to adopting laws giving effect to applicable
international regulations regarding the discharge of oil, oily wastes and other
noxious substances.43
32 K. Baumert & B. Melchior, The practice of archipelagic States: A study of studies, 46(1)
Ocean Development and International Law 60–80 (2015), at 60.
33 Ibid.
34 unclos, arts. 48, 49.
35 unclos, arts. 52, 53.
36 unclos, art. 53(4).
37 unclos, art. 53(12).
38 unclos, art. 52(1).
39 unclos, arts. 53, 54.
40 unclos, art. 53(4); msc Res.71(69), Adoption of Amendments to the General Provisions
on Ships’ Routeing (Resolution A.572(14) as Amended), adopted 19 May 1998, Annex 2,
General Provisions on the Adoption, Designation and Substitution of Archipelagic Sea
Lanes.
41 unclos, art. 53(6).
42 unclos, art. 53(9).
43 unclos, arts. 54, 42(1)(b).
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(4) Coastal State Prescriptive Jurisdiction within the Exclusive
Economic Zone
In the eez, the coastal State has jurisdiction for the protection and preserva-
tion of the marine environment.44 With regard to vessel-source pollution, the
coastal State may adopt laws and regulations for the prevention, reduction and
control of pollution, “conforming to and giving effect to generally accepted in-
ternational rules and standards” established through the imo.45 By providing
that the coastal State laws and regulations are only to give effect to generally
accepted international rules and standards, interference with the freedom of
navigation (which third States enjoy in all eezs) is avoided.
unclos recognises that in some cases the international rules and standards
for vessel-source pollution adopted under art. 211(1) may not be sufficient to
protect certain areas within a State’s eez due to their special circumstances.46
Article 211(6) sets down a series of procedural requirements for the imposition
of such special mandatory measures. The coastal State must identify a particu-
lar, clearly defined area that it has reasonable grounds to believe requires spe-
cial mandatory measures for the prevention of pollution from vessels.47 This
need for protection must be due to recognised technical reasons regarding its
oceanographic and ecological conditions, and its utilisation or protection of
its resources, and the particular character of its traffic. If the imo determines
that the conditions in the particular area meet the requirements in art. 211(6),
the coastal State may adopt laws and regulations for the prevention, reduction
and control of pollution from vessels. These laws and regulations must either
implement imo rules and standards or navigation practices for special areas,
or additional rules as accepted by the imo.48 If the coastal State intends to
adopt additional rules, they must not require foreign vessels to observe design,
construction, manning or equipment standards beyond the generally accepted
international rules and standards.49 In practice no area has been designated
under art. 211(6).50 Rather, it has been used as the legal basis for associated
44 unclos, art. 56(1)(b).
45 unclos, art. 211(5).
46 unclos, art. 211(6).
47 Ibid.
48 Ibid.
49 unclos, art. 211(6)(c).
50 S. Lalonde, ‘Marine Protected Areas in the Arctic’ in EJ. Molenaar, AG. Oude Elferink &
DR. Rothwell (Eds.), The Law of the Sea and the Polar Regions: Interactions between Global
and Regional Regimes. 85–111, (Martinus Nijhoff, Leiden, 2013), at 92.
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rotective measures (apms) proposed for pssas.51 Special rules may also be
p
implemented under art. 234 for “ice-covered areas”.
2 pssas
The concept of pssas is not directly founded in an international instrument,
but rather emerged from imo practice.52 Controversy arose at the imo during
the discussions surrounding the Western Europe pssa proposal regarding its
legality and the relationship between pssas and art. 211(6) of unclos. A legal
opinion provided by the un Division for Ocean Affairs and the Law of the Sea
concluded that the pssa guidelines “derive” from the provisions of unclos
art. 211(6) however they are more “detailed and ‘liberal’ in their approach” due
to in part to the “broader range of protective measures available within the
competence of imo since the negotiation of unclos”.53 The 2005 imo Revised
Guidelines for the Identification and Designation of Particularly Sensitive Sea
Areas give art. 211(6) as a legal basis for apms.54 It is the apms rather than the
pssa designation that have legal status, and most apms can be separately ad-
opted through the imo without pssa designation.55 However designation has
advantages including identification on charts in accordance with Internation-
al Hydrographic Organisation symbols.56
A pssa is defined in the pssa Guidelines as:
[A]n area that needs special protection through action by imo because
of its significance for recognised ecological, socio-economic, or scientific
51 imo Res.A.982(24), Revised Guidelines for the Identification and Designation of
Particularly Sensitive Sea Areas, adopted 1 December 2005; A. Chircop, ‘The Designation
of Particularly Sensitive Sea Areas: A New Layer in the Regime for Marine Environmental
Protection from International Shipping’ in A. Chircop, T. McDorman & S. Rolston (Eds.),
The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston. 573–608,
(Brill, 2009), at 589, 593.
52 J. Roberts & M. Tsamenyi, ‘The Regulation of Navigation under International Law: A Tool
for Protecting Sensitive Marine Environments’ in TM. Ndiaye & R. Wolfrum (Eds.) Law of
the Sea, Environmental Law and Settlement of Disputes: Liber Amoricum Judge Thomas A
Mensah. 787–810, (Martinus Nijhoff, Leiden, 2007), at 801.
53 leg Doc. 87/17, Report of the Legal Committee on the Work of its Eighty-seventh Session,
adopted 23 October 2003, Annex 7.
54 imo Res.A.982(24). supra note 51.
55 chircop, supra note 51, at 591–592; roberts & tsamenyi, supra note 52, at 802–806.
56 chircop, supra note 51, at 604–605.
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attributes where such attributes may be vulnerable to damage by interna-
tional shipping activities.57
pssas may be designated within or beyond the limits of the territorial sea.58 An
application for pssa designation is submitted to the imo by a member State
or group of States that have a common interest in the area. Put simply, the ap-
plication must satisfy certain requirements: the area must meet at least one of
the specified ecological, socio-economic or scientific criteria; the area must be
at risk from international shipping; and the proposed apms must have a clear
legal basis and be within the competence of the imo. The criteria are outlined
in detail in the pssa Guidelines. Along with meeting at least one of the crite-
ria, the proposing State must show that the “recognised attributes” of the area
are at risk from international shipping activities by reference to a number of
factors.59 The factors are divided into vessel traffic characteristics and natural
factors, and include amongst others the types of vessels, volume or concentra-
tion of traffic, harmful substances carried, and the hydrographical, meteoro-
logical and oceanographic characteristics of the area that may increase the risk
of harm from shipping.60
An application for pssa designation must include a proposal for at least one
apm, and further measures may be added subsequently to address identified
vulnerabilities.61 The pssa Guidelines provide examples of options for apms,
including designation as a marpol Special Area and adoption of ships’ route-
ing and reporting systems under solas. The suggested measures also include
“development and adoption of other measures aimed at protecting specific sea
areas against environmental damage from ships, provided that they have an
identified legal basis.”62 The application must justify why the proposed apms
are appropriate for the protection of the area.63 The legal bases for apms are
(i) any measure that is already available under an existing imo instrument;
(ii) any measure that does not yet exist but could become available through
amendment of an imo instrument or adoption of a new imo instrument; and
(iii) any measure proposed for adoption in the territorial sea, or pursuant to
art. 211(6) of unclos where necessary to address the particularised needs of
the area.
57 imo Res.A.982(24), supra note 51, at 3.
58 Ibid., at 5.
59 Ibid., at 7.
60 Ibid.
61 Ibid., at 9.
62 Ibid., at 7.
63 Ibid.
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iv Proposals by Southeast Asian States for pssas
Recently, Indonesia, Malaysia, Viet Nam and the Philippines have commenced
procedures for the designation of pssas in their waters. The P hilippines’
pssa proposal was approved by the imo in 2017. Assistance for these projects
has been provided by the imo/Norad Technical Cooperation Project
No. 2 – Prevention of pollution from ships through the adoption of Particularly
Sensitive Sea Areas (pssas) within the Southeast Asian Sea region.64 The ob-
jective of the imo/Norad work on pssas in Southeast Asia is to protect the
marine environment from international shipping through the adoption by the
imo of pssas. To that end, the imo/Norad project assisted the four States to
prepare proposals to the imo for pssa designation for areas that “shall be re-
garded as high priority and limited in number as well as less controversial.” The
intention is that following the imo/Norad project, the beneficiary countries
will be able to replicate the process for future pssa proposals, if any.65 These
pssa applications are the first in Southeast Asia, however they follow the re-
cent adoption of a pssa in the Jomard Entrance in Papua New Guinea (2016)
and the 2015 Coral Sea extension to the Great Barrier Reef pssa. The following
section will examine the available information on the proposals or the works
in progress for the establishment of pssas of these Southeast Asian nations.
1 The Philippines
In January 2016 the Philippines submitted to the mepc a proposal for the des-
ignation of the Tubbataha Reefs Natural Park (trnp) as a pssa.66 The trnp is
located in the Sulu Sea, 80 nautical miles southeast of Palawan and 180 nautical
miles northeast of North Borneo.
The trnp is already designated as a national mpa under the Philippines do-
mestic legislation, and is a “no-take” zone.67 As a no-take zone, prior authori-
sation is required for entry to the area, and the domestic legislation provides
that it is off-limits to navigation except where sanctioned by the authorities.68
64 See imo, MARINE ENVIRONMENT PROJECTS FUNDED BY THE NORWEGIAN AGENCY
FOR DEVELOPMENT COOPERATION (Norad), available at http://www.imo.org/en/
OurWork/Environment/SupportToMemberStates/MajorProjects/Pages/IMO-Norad
-projects.aspx.
65 Ibid.
66 mepc Doc.69/10/1, Identification and Protection of Special Areas and pssas: Designation
of the Tubbataha Reefs Natural Park as a Particularly Sensitive Sea Area, 15 January 2016.
67 Republic Act 10067 (Philippines), known as Tubbataha Reefs Natural Park (trnp) Act of
2009, at s 2.
68 Ibid., s 19.
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Dumping of waste, littering, anchoring, bioprospecting without permit and
hunting and fishing activities are prohibited.69 In this context, pssa desig-
nation would serve as an added layer of protection in the pre-existing mpa.
The trnp is also designated as a unesco World Heritage Area and a Ramsar
Wetland. The mpa has an area of 97,030ha, and is surrounded by a 10 nautical
mile buffer zone.70 It is located inside the Philippines’ archipelagic baselines
and therefore the Philippines is sovereign in the relevant area.71
(1) Submission to the mepc
The 2016 submission to the mepc described the objective of pssa designation
as to address the trnp’s fragility and to protect it from “the increasing threat
of international shipping activities”.72 The only proposed apm was an atba,
which would apply to ships exceeding 150gt. The submission stated that the
atba would reduce the risk of collisions or groundings within or near the reef,
reducing the risks of marine pollution and physical and chemical destruction
of living benthic organisms and corals.73
Regarding the trnp’s vulnerability to impacts from international ship-
ping activities, satellite data obtained showed that between October 2012 and
September 2013 3,111 ships passed within 20 nautical miles of the trnp’s core
area.74 Approximately 70% of these vessels were cargo ships, 10% were tank-
ers and 18% other vessels.75 The trnp is at the intersection of north–south
and east–west shipping routes connecting the South China Sea to the Celebes
Sea and to the Pacific Ocean.76 International maritime traffic passing near
the trnp was considered to be mainly travelling from major Philippine ports
and Northeast Asia to ports in Indonesia, Papua New Guinea and Australia.77
Many of these ships pass within the 10 nautical mile buffer zone, a significant
proportion of which are chemical and oil tankers.78 Therefore the Philippines
considered that there was a significant risk of accidental spills or groundings
on the reefs.79 Previous grounding incidents were cited to support this concern.
69 Ibid., ss 22, 23, 24, 26.
70 Ibid., ss 4, 5.
71 unclos, art. 49.
72 mepc Doc.69/10/1, supra note 66, at par. 4.
73 Ibid.
74 Ibid., at par. 36.
75 Ibid.
76 Ibid., at par. 37.
77 Ibid., at par. 39.
78 Ibid., at pars. 38, 43.
79 Ibid., at par. 44.
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Adding to the vulnerability to shipping impacts was the steeply rising slope of
the reefs, meteorological conditions including typhoons, and strong surface
currents.80
The designation submission sought the implementation of an atba as “the
most urgent and practical associated protective measure to reduce the risks as-
sociated with international shipping activities”.81 The objective of the atba was
to both steer ships around the trnp and thus avoid groundings and accidental
discharges, and to give more time to respond to incidents of vessels adrift or
in distress.82 The proposal stated that diverting traffic around the trnp would
cause “minimal to no disruption” of current or future international shipping
traffic, as additional travelling distances would be minimal.83 The Philippines
confirmed later to the Sub-Committee on Navigation, Communications and
Search and Rescue (ncsr) that the proposed atba would be recommendatory
in nature.84
(2) mepc Decision
At its 69th session the plenary of the mepc considered the Philippines’ propos-
al, and following expressions of support from several delegations, forwarded
the proposal to the Technical Group on pssas to assess compliance with the
pssa Guidelines.85 No delegation spoke in opposition to the proposal when
it was discussed at the plenary. The Technical Group in its report agreed that
the trnp met the ecological, socio-economic and scientific criteria, and that
it was vulnerable to damage from international shipping activities.86 It also
agreed that the proposed atba was appropriate to address the identified vul-
nerability from shipping, and that it had a legal basis in Pt xii of unclos and
Regulation v/10 of solas.87
On the basis of the report of the Technical Group, the Committee designat-
ed the trnp as a pssa in principle, noting that the Philippines would s ubmit
80 Ibid., at pars. 45–50.
81 Ibid., at par. 64.
82 Ibid., at par. 65.
83 Ibid., at par. 67.
84 nscr Doc.4/wp.7, Routeing Measures and Mandatory Ship Report Systems: Report of the
Experts Group on Ships’ Routeing, 8 March 2017, at par. 4.13.
85 mepc Doc.69/21, Report of the Marine Environment Protection Committee on its Sixty-
Ninth Session, 13 May 2016, at par. 10.
86 mepc Doc.69/wp.11, Identification and Protection of Special Areas and pssas, Report of
the Technical Group on pssas, 21 April 2016, at par. 6.
87 Ibid., at Annex, par. 5.
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detailed proposals for apms to the ncsr.88 Final approval was planned for msc
98 (June 2017) with final designation of the pssa scheduled for the mepc’s 71st
session in July 2017.89
(3) Submission to ncsr
Following the in-principle approval of the mepc, the Philippines submitted a
proposal to the ncsr.90 The proposal outlined the establishment of not only
the atba but also two two-way routes with a precautionary area. The two-way
routes (one north–south and the other east–west) were to be recommendatory
and designed so that ships are able to keep their courses clear of the atba.91
The objectives for the atba and the two way routes were outlined as to reduce
the risk of accidental groundings; to allow more time to respond to incidents;
to reduce the risk of collision and to reduce the risk of pollution.92 As well as
introducing the additional apm in the form of the two-way routes, the sub-
mission to the ncsr expanded on the information provided to the mepc. The
two-way routes were proposed to be each 5 miles wide and 20 miles long, ori-
ented north–south and east–west, and meeting at a precautionary area to the
south-east of the pssa.93
(4) 2017 imo Committee and Sub-Committee Decisions
The Experts Group on Ships’ Routeing, as instructed by ncsr, issued its report
on the trnp pssa proposal on 8 March 2017.94 The Group agreed with estab-
lishment of the atba as an apm.95 However, it did not consider that the traffic
through the area was heavy enough to warrant the imposition of the two-way
routes, as the risk of collision was low. The Group invited the Philippines to
study the effect of the atba (if approved) and consider the need for adjacent
routeing measures in the future. The Group invited the ncsr to approve the
establishment of the atba.96 The ncsr in turn approved the e stablishment
88 mepc Doc.69/21, supra note 85, at par. 10.12.
89 Ibid.
90 ncsr Doc.4/3/4, Routeing Measures and Mandatory Ship Reporting Systems: Establish-
ment of an area to be avoided and adjacent two-way routes with a precautionary area
as Associated Protective Measures for the Tubbataha Reefs Natural Park Particularly
Sensitive Sea Area (pssa) in the Sulu Sea, Philippines, 2 December 2016.
91 Ibid., at par. 1.
92 Ibid., at par. 5.
93 Ibid., at Annex 4.
94 nscr Doc.4/wp.7, supra note 84.
95 Ibid., at par. 4.13.
96 Ibid., at par. 6.1.5.
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of the atba and invited the msc to adopt the atba as an apm for the trnp
p ssa.97 The msc accordingly adopted the atba at its 98th session in June
2017.98 Subsequently the trnp pssa was formally designated by the mepc at
its 71st session in July 2017.99 Audio records of the plenary meetings show that
the trnp pssa proposal was not controversial at the imo.100 The pssa will
take effect on 1 January 2018.
(5) Legal Necessity of pssa Designation
The pssa is located entirely within the Philippines’ archipelagic waters.101 The
extent of the Philippines’ jurisdiction in the trnp depends on the passage re-
gime that applies in that particular area. As discussed above, where the right
of innocent passage applies, archipelagic States have the same jurisdiction to
regulate navigation as they do in the territorial sea.102 Where the right of asl
passage applies, the archipelagic State has restricted jurisdiction to regulate
international navigation. To date, no asls have been designated by the Philip-
pines. The Philippine Archipelagic Sea Lanes Bill was received by the Senate on
30 June 2016, however it is currently pending in the Foreign Relations Commit-
tee and is yet to be passed.103
With no asls currently designated, ships may exercise the right of asl
passage “through the routes normally used for international navigation”.104 A
requirement for designation as a pssa is evidence of a risk posed to the marine
environment from shipping. The documentation provided by the Philippines
in support of its proposal includes diagrams showing at least two major ship-
ping routes passing through the edge of the trnp.105 From October 2012 to
September 2013 3,111 ships passed within 20 nautical miles of the core area of
97 msc Doc.98/11, Navigation, Communications and Search and Rescue, Report of the fourth
session of the Sub-Committee, Note by the Secretariat, 24 March 2017, at par. 2.2.3.
98 msc Doc.98/23, Draft Report of the Maritime Safety Committee on its Ninety-Eighth Ses-
sion, 28 June 2017, par. 11.3.
99 mepc Res.294(71), Designation of Tubbataha Reefs Natural Park as a Particularly Sensi-
tive Sea Area, adopted 7 July 2017.
100 Available at www.docs.imo.org.
101 ncsr Doc.4/3/4, supra note 90, at 5.
102 unclos, art. 52(1).
103 Philippine Archipelagic Sea Lanes Act, Senate of the Philippines, available at, .
104 unclos, art. 53(12).
105 ncsr Doc.4/3/4, supra note 90, at par. 13.
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the trnp.106 According to the proposal submitted to the mepc, the trnp “lies
at the intersection of the north–south and east–west shipping routes that tra-
verse the Sulu Sea, connecting the South China Sea to the Celebes Sea and to
the Pacific Ocean respectively.”107 At least some of this traffic uses this route
to connect major ports in the Philippine island of Luzon and northeast Asia
with ports in Indonesia, Papua New Guinea and Australia.108 This data shows
that it is at least arguable that the trnp is situated on a route normally used for
international navigation, and therefore that these ships are in asl passage.109
The Philippines’ jurisdiction to impose measures regulating asl traffic is
limited. The atba under the pssa has the effect of diverting ships arguably in
asl passage off routes normally used for international navigation. However, as
the proposal to the mepc stated, “[t]he establishment of the abta will cause
minimal to no disruption of current and future international maritime around
the trnp, as the available data shows that only a portion, not the whole, of
shipping traffic around the trnp actually enter its boundaries.”110 Therefore
the impact on international navigational rights will in practice be minor.
Further it is important to note that although the original proposal to the mepc
seemed to suggest that the atba would be mandatory (in its outlining of en-
forcement mechanisms), it was later confirmed at the ncsr that the atba is to
be recommendatory only.
Although archipelagic State prescriptive jurisdiction to regulate ships in asl
passage is restricted, there is no limitation on the adoption of recommenda-
tory measures. Provided that it does not require foreign flagged vessels to ob-
serve the measures it imposes, it is free adopt such environmental regulations
as it wishes. If a ship voluntarily observes the atba, there is no interference
with asl passage. If the Philippines had planned to make the atba manda-
tory, imo approval would be required to divert foreign ships in asl passage
from the normal international passage routes. Although imo approval is not
required for recommendatory-only measures affecting ships in asl passage, a
significant advantage of implementing the recommendatory atba under the
106 Ibid., at par. 14.
107 mepc Doc.69/10/1, supra note 66, at par. 37.
108 ncsr Doc.4/3/4, supra note 90, par. 14.
109 See JL. Batongbacal, ‘Barely Skimming the Surface: Archipelagic Sea Lanes Navigation
and the imo’ in AG. Oude Elferink & DR. Rothwell (Eds.), Oceans Management in the 21st
Century: Institutional Frameworks and Responses. 49–68, (Martinus Nijhoff Publishers,
Leiden, 2004), at 63.
110 mepc Doc.69/10/1, supra note 66, at par. 67.
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pssa mechanism is its marking on the charts of the International Hydrograph-
ic Organisation (iho). This is also an advantage for international shipping, as
groundings have occurred at the trnp in the past.
2 Malaysia
Following an earlier information document,111 Malaysia submitted to the 71st
session of the mepc in 2017 a proposal for the designation of Pulau Kukup and
Tanjung Piai as a pssa.112 The area is located at the southern extreme of pen-
insular Malaysia, within the Straits of Malacca. Pulau Kukup and Tanjung Piai
are both Malaysian National Parks and wetlands of international importance
under the Ramsar Convention.113 Pulau Kukup (Kukup Island) is a 6.4km2 man-
grove island and is a habitat for vulnerable and endangered birds and endan-
gered mammals.114 Tanjung Piai (Cape Piai) comprises 5.2km2 of mangroves
and 4km2 of intertidal mudflats, and is habitat to endangered and threatened
mammals. It also supports significant tourism and fisheries activities.115
The area is located in the Strait of Malacca, a major international ship-
ping route, and is near the entry point to the Port of Tanjung Pelepas and
the Strait of Singapore and Johor. The area is however just outside of the tss
in place in the Straits of Malacca and Singapore. In addition to vessel traffic,
a threat to the environment of the area is posed by illegal anchoring nearby
which has been accompanied by illegal discharge of oily waste, sewage and
garbage.116 Several maritime safety measures are already in place for the Straits
of Malacca and Singapore, which are discussed in detail in the pssa proposal.
During the preparation of the pssa proposal Malaysia considered numerous
apms such as speed limits, discharge restrictions and mandatory reporting,117
however the final apms sought were an atba and a mandatory no-anchoring
111 mepc Doc.68/inf.22, Identification and Protection of Special Areas and Particularly
Sensitive Sea Areas: Protection of Pulau Kukup (Kukup Island) and Tanjung Piai (Cape
Piai), submitted by Malaysia, 6 March 2015.
112 mepc Doc.71/inf.24, Identification and Protection of Special Areas and Particularly
Sensitive Sea Areas: Protection of Pulau Kukup (Kukup Island) and Tanjung Piai (Cape
Piai), submitted by Malaysia, 28 April 2017.
113 Convention on Wetlands of International Importance especially as Waterfowl Habitat,
opened for signature 2 February 1971, 996 unts 245 (entered into force 21 December 1975).
114 mepc Doc.71/inf.24, supra note 112, at par. 4.
115 Ibid.
116 Ibid., at par. 5.
117 Cooperative Mechanism on Safety of Navigation and Environment Protection in the
Straits of Malacca and Singapore, Cooperative Mechanism Component, .
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zone for all ships of 300 grt and above.118 According to the proposal the estab-
lishment of the atba and no-anchoring zone “will cause minimal to no disrup-
tion of current and future international maritime traffic around the pk-tp, as
the available data shows that only a portion, not the whole, of shipping traffic
around the area actually enter[s] its boundaries.”119 The proposal includes the
enforcement mechanisms that will be put in place to ensure compliance with
the apms.120
(1) Consideration by the imo
The Malaysian pssa proposal was considered by the plenary of the 71st session
of the mepc on 5 July 2017. Singapore noted that the proposed pssa is located
near the tss of the Straits of Malacca and Singapore which is a strait used
for international navigation in which all ships enjoy a right of transit passage.
Singapore reiterated the importance of ensuring that proposed measures for
environmental protection are in accordance with imo regulations and inter-
national law including unclos. Indonesia raised the issue that the area of
the proposed pssa is within an area under ongoing maritime boundary ne-
gotiations between Indonesia and Malaysia. Chile, Peru and the United Arab
Emirates spoke in favour of the proposal generally. Japan stated that it con-
sidered that the proposed area satisfied the pssa criteria and therefore that it
would be beneficial to designate it as a pssa from an environmental point of
view. However Japan also stated that safety aspects should be considered by
the ncsr as the proposal includes an atba which would affect navigation in
the Straits of Malacca and Singapore which is one of the most crowded straits
in the world. The United States stated that it was not objecting to the Techni-
cal Group reviewing the proposal but that it was concerned about the impact
it may have on other strait States and hoped that the Group would consider
that.121
Following its referral by the mepc, the Malaysian pssa proposal was con-
sidered by the Technical Group on pssas.122 The Group noted Indonesia’s
strong reservation to the proposal due to the ongoing maritime boundary ne-
gotiations between Indonesia and Malaysia regarding an area including the
118 mepc Doc.71/inf.24, supra note 112, at pars. 88–90.
119 Ibid., at par. 91.
120 Ibid., at pars. 93–94.
121 Audio recording of the plenary meeting of the 71st session of the mepc, 5 July 2017, avail-
able at https://docs.imo.org/Category.aspx?cid=47&dtid=8&mmid=675.
122 mepc Doc. 71/wp.10, Identification and Protection of Special Areas and pssas, Report of
the Technical Group on pssas, 6 July 2017, at pars. 5–11.
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proposed pssa. Consequently, “the Group agreed not to review the proposal
and recommended that Malaysia and Indonesia address the [maritime bound-
ary delimitation reservation] prior to any re-submission to mepc at a future
date.”123 Malaysia indicated that a proposal for the establishment of an atba
and mandatory no-anchoring area would be submitted to the fifth session of
the ncsr in 2018. Singapore raised concerns at the mepc plenary discussion
of the report of the Technical Group on pssas regarding Malaysia’s stated in-
tention to submit a proposal for routeing measures to the ncsr in 2018, as it
considered that it may have an impact on the safety of navigation in the tss of
the Straits of Malacca and Singapore.124 Singapore urged Malaysia to continue
to cooperate and consult with neighbouring States.
(2) Legal Necessity of pssa Designation
Although the Malaysian proposal was not considered by the Technical Group
on pssas at its July 2017 meeting, the proposal may be resubmitted in the fu-
ture and a discussion of the legal necessity of pssa designation remains worth-
while. Determining whether pssa designation or imo approval is necessary for
the two apms that were proposed by Malaysia depends, as with the other pro-
posals discussed here, on the legal status of the waters and the passage regime
to be affected. The area is located very close to the Malaysian coast. Malaysia
has not publicised its territorial sea baselines, however according to the pssa
proposal it is located within Malaysia territorial waters.125 However, as dis-
cussed above, the area of the proposed pssa is located within an area over
which Indonesia and Malaysia are currently negotiating their maritime bound-
ary. Malaysia has extensive prescriptive jurisdiction under Pt ii of u nclos for
environmental protection in the territorial sea. However, also relevant to the
extent of Malaysia’s prescriptive jurisdiction is the fact that the proposed pssa
is located within a strait used for international navigation governed by Pt iii
of unclos.
Although the proposed pssa is located within the strait, the maps provided
in the application show that it is outside of the tss. The tss in the Straits of
Malacca and Singapore is mandatory for ships transiting the strait, and there-
fore it is unlikely that any ship passing through the area marked for pssa des-
ignation (and therefore not in the tss) would be exercising transit passage.
Transit passage extends only to continuous and expeditious transit of the
123 Ibid., at par. 7.
124 Audio recording of the plenary meeting of the 71st session of the mepc, 7 July 2017, avail-
able at https://docs.imo.org/Category.aspx?cid=47&dtid=8&mmid=678.
125 mepc Doc.71/inf.24, supra note 112, at par. 1.
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strait.126 Any other activity remains subject to the other applicable provisions
of unclos.127 The effect of that provision is that ships passing through the
area marked for pssa designation are subject to the prevailing passage regime
in the relevant zone, in this case innocent passage through the territorial sea.
In the territorial sea Malaysia has extensive unilateral jurisdiction to impose
measures for environmental protection on foreign ships, provided they do not
have the effect of hampering innocent passage. Coastal States may unilaterally
adopt routeing measures (including no-anchoring areas and atbas) within
their territorial sea, however the imo encourages the coastal State to design
the routeing system in accordance with imo guidelines and criteria and to sub-
mit them to the imo for adoption.128
Any vessel seeking to anchor in the proposed pssa area is not in continuous
and expeditious transit of the strait, and likely not in innocent passage either,
as innocent passage includes anchoring only in so far as incident to ordinary
navigation or due to exceptional circumstances.129 The no-anchoring zone, es-
pecially considering its small area, is therefore not likely to hamper innocent
passage and is able to be adopted unilaterally by Malaysia. The same would
apply to the atba.
If either of the proposed apms encroached upon the tss, the jurisdictional
situation would be markedly different. The jurisdiction of Malaysia over ships
in transit passage is similar to that of the Philippines discussed above over ves-
sels in asl passage. Malaysia has jurisdiction to adopt laws and regulations
relating to transit passage in respect of the safety of navigation and the regula-
tion of maritime traffic, and the prevention, reduction and control of pollution
by giving effect to applicable international regulations regarding the discharge
of oil, oily wastes and other noxious substances in the strait.130 There is no pro-
vision for unilateral coastal State prescriptive jurisdiction for either maritime
safety or environmental protection. imo approval is required for designating
maritime safety measures, and environmental regulations can only give effect
to applicable international regulations.131 Any mandatory measure that would
have the practical effect of hampering or obstructing transit passage would be
unlikely to be approved.
126 unclos, art. 38(2).
127 unclos, art. 38(3).
128 imo Res.A.572(14), supra note 29, at par. 3.14.
129 unclos, art. 18(2).
130 unclos, art. 42(1).
131 molenaar, supra note 31, at 290–294.
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