Annexes to COM(2002)11 - Signing of a new Protocol to the Barcelona Convention concerning cooperation in preventing pollution from ships and in combating pollution of the Mediterranean Sea by oil and hazardous and noxious substances in cases of emergency

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dossier COM(2002)11 - Signing of a new Protocol to the Barcelona Convention concerning cooperation in preventing pollution from ships and in ...
document COM(2002)11 EN
date January 15, 2002
ANNEX


The text of Annex II shows amendments adopted as a result of the meeting of all experts held in Monaco in bold. Changes discussed following EC proposals at the restricted meeting in Malta are shown in bold in boxes along with a comment in italics.


DRAFT PROTOCOL CONCERNING COOPERATION IN PREVENTING POLLUTION FROM SHIPS AND IN COMBATING POLLUTION OF THE MEDITERRANEAN SEA BY OIL AND HAZARDOUS AND NOXIOUS SUBSTANCES IN CASES OF EMERGENCY [10]

[10] The way of presenting the Articles of the Protocol and their Headings are corrected in order to be in line with the standard type adopted by the other Protocols and the Convention.


The Contracting Parties to the present Protocol,

Being Parties to the Convention for the Protection of the Mediterranean Sea against Pollution, adopted at Barcelona on 16 February 1976 and amended on 10 June 1995,

Desirous of implementing articles 6 and 9 of the said Convention, as amended,

Recognizing that grave pollution of the sea by oil and hazardous and noxious substances or a threat thereof in the Mediterranean Sea Area involves a danger for the coastal States and the marine environment,

Considering that the cooperation of all the coastal States of the Mediterranean Sea is called for to prevent pollution from ships and to respond to pollution incidents, irrespective of their origin,

Malta meeting:

The Meeting agreed that, after the fifth paragraph of the Preamble, a new paragraph should be inserted as follows :

Acknowledging the contribution of the European Community to the implementation of international standards as regards maritime safety and the prevention of pollution from ships,

Acknowledging the role of the International Maritime Organization and the importance of cooperating within the framework of this Organization, in particular in promoting the adoption and the development of international rules and standards to prevent, reduce and control pollution of the marine environment from ships,

Recognizing the importance of cooperation in the Mediterranean Sea Area in promoting the effective implementation of international regulations to prevent, reduce and control pollution of the marine environment from ships,

Recognizing also the importance of prompt and effective action at the national, subregional and regional levels in taking emergency measures to deal with pollution of the marine environment or a threat thereof,

Applying the precautionary principle, the polluter pays principle and the method of environmental impact assessment, and utilizing the best available techniques and the best environmental practices, as provided for in article 4 of the Convention,

Bearing in mind the relevant provisions of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982,

Taking into account the international conventions dealing in particular with maritime safety, the prevention of pollution from ships, preparedness for and response to pollution incidents, and liability and compensation for pollution damage,

Wishing to further develop mutual assistance and cooperation in preventing and combating pollution,

Have agreed as follows:


Article 1

DEFINITIONS

Malta meeting:

The Meeting agreed that Article 1 should be considered together with Article 14, and suggested that the text of paragraph e) as agreed by the Monaco Meeting should not be changed provided that the Third Meeting of National Legal and Technical Experts agrees with the text of Article 14 as reproduced below.

For the purpose of this Protocol:

(a) "Convention" means the Convention for the Protection of the Mediterranean Sea against Pollution, adopted at Barcelona on 16 February 1976 and amended on 10 June 1995; [11]

[11] The standard definition of the "Convention" is added under 1(a). This is exactly done in all other Protocols (LBS PROTOCOL, SPA & BD PROTOCOL, OFFSHORE PROTOCOL, HAZARDOUS WASTES PROTOCOL) and is also necessary for the new Protocol. The enumeration of the rest of the sub-paragraphs is corrected accordingly.

(b) "Pollution incident" means an occurrence or series of occurrences having the same origin, which results or may result in a discharge of oil and/or hazardous and noxious substances and which poses or may pose a threat to the marine environment, or to the coastline or related interests of one or more States, and which requires emergency action or other immediate response;

(c) "Hazardous and noxious substances" means any substance other than oil which, if introduced into the marine environment, is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea;

(d) "Related interests" means the interests of a coastal State directly affected or threatened and concerning, among others

(i) maritime activities in coastal areas, in ports or estuaries, including fishing activities;

(ii) the historical and tourist appeal of the area in question, including water sports and recreation;

(iii) the health of the coastal population;

(iii bis) the cultural, aesthetic, scientific and educational value of the area;

(iv) the conservation of biological diversity and the sustainable use of marine and coastal biological resources;

(e) "International regulations" means regulations aimed at preventing, reducing and controlling pollution of the marine environment from ships as adopted, at the global level and in conformity with international law, under the aegis of United Nations specialized agencies, and in particular of the International Maritime Organization; [12]

[12] Reservation by the European Community

(f) "Regional centre" means the "Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea" (REMPEC), established by Resolution 7 adopted by the Conference of Plenipotentiaries of the Coastal States of the Mediterranean Region on the Protection of the Mediterranean Sea at Barcelona on 9 February 1976, which is administered by the International Maritime Organization and the United Nations Environment Programme, and of which the objectives and functions are defined by the Contracting Parties to the Convention [13].

[13] In the new 1 (f) the word "whose" (one line before the end) is replaced by the correct "of which the" and the word "Barcelona" (end line), after the introduction of art. 1a) is unnecessary and is also deleted.


Article 1 bis

PROTOCOL AREA

The area to which the Protocol applies shall be the Mediterranean Sea Area as defined in article 1 of the Convention [14].

[14] This article is adjusted to the correction of Article 1 and, as a result, after the word "Convention" the rest of the text is deleted.


Article 2

GENERAL PROVISIONS

1. The Parties shall cooperate:

(a) to implement international regulations to prevent, reduce and control pollution of the marine environment from ships; and

(b) to take all necessary measures in cases of pollution incidents.


Malta meeting:


The Meeting agreed that, after paragraph 1 of Article 2, a new paragraph should be inserted as follows :


(1 bis) In cooperating, the Parties should take into account as appropriate the participation of local authorities, non-governmental organisations and economic operators.


2. Each Party shall apply this Protocol without prejudice to the sovereignty or the jurisdiction of other Parties or other States. Any measures taken by a Party to apply this Protocol shall be in accordance with international law.


Article 3

CONTINGENCY PLANS AND OTHER MEANS OF PREVENTING AND COMBATING POLLUTION INCIDENTS

1. The Parties shall endeavour to maintain and promote, either individually or through bilateral or multilateral cooperation, contingency plans and other means of preventing and combating pollution incidents. These means shall include, in particular, equipment, ships, aircraft and personnel [15] prepared for operations in cases of emergency, the enactment, as appropriate, of relevant legislation, the development or strengthening of the capability to respond to a pollution incident and the designation of a national authority or authorities responsible for the implementation of this Protocol.

[15] The word "manpower" is replaced by the word "personnel" used in the OPRC CONVENTION. The word manpower is no longer used because of its sexist connotation.

2. The Parties shall also take measures in conformity with international law to prevent the pollution of the Mediterranean Sea Area from ships in order to ensure the effective implementation in that Area of the relevant international conventions in their capacity as Flag State, Port State and Coastal State, and their applicable legislation. They shall develop their national capacity as regards the implementation of those international conventions and may cooperate for their effective implementation through bilateral or multilateral agreements.

3. The Parties shall inform the regional centre every two years of the measures taken for the implementation of this Article. The regional centre shall present a report to the Parties on the basis of the information received.


Article 4

MONITORING

The Parties shall develop and apply, either individually or through bilateral or multilateral cooperation, monitoring activities covering the Mediterranean Sea Area in order to prevent, detect and combat pollution, and to ensure compliance with the relevant international regulations.


Article 5

COOPERATION IN RECOVERY OPERATIONS

In case of release or loss overboard of hazardous and noxious substances in packaged form, including those in freight containers, portable tanks, road and rail vehicles and shipborne barges, the Parties shall cooperate as far as practicable in the salvage of these packages and the recovery of such substances so as to prevent or reduce the danger to the marine and coastal environment.


Article 6

DISSEMINATION AND EXCHANGE OF INFORMATION

1. Each Party undertakes to disseminate to the other Parties information concerning:

(a) the competent national organization or authorities responsible for combating pollution of the sea by oil and hazardous and noxious substances;

(b) the competent national authorities responsible for receiving reports of pollution of the sea by oil and hazardous and noxious substances and for dealing with matters concerning measures of assistance between Parties;

(b bis) the national authorities entitled to act on behalf of the State in regard to measures of mutual assistance and cooperation between Parties;

Malta meeting:

[Article 6, paragraph 1 (b bis bis)]

The Meeting agreed that, after the word "concerned", the words "and other relevant applicable regulations" should be inserted as follows:


(b bis bis) the national organization or authorities responsible for the implementation of article 3.2, in particular [16] those responsible for the implementation of the international conventions concerned and other relevant applicable regulations, those responsible for the development of port reception facilities and those responsible for the monitoring of discharges which are illegal under MARPOL 73/78;

[16] After the word "in particular" the comma is deleted.


(b ter) its regulations and other matters which have a direct bearing on preparedness for and response to pollution of the sea by oil and hazardous and noxious substances;

(c) new ways in which pollution of the sea by oil and hazardous and noxious substances may be avoided, new measures for combating pollution, new developments in the technology of conducting monitoring and the development of research programmes.

2. The Parties which have agreed to exchange information directly [17] shall communicate such information to the regional centre. The latter shall communicate this information to the other Parties and, on a basis of reciprocity, to coastal States of the Mediterranean Sea Area which are not Parties to this Protocol.

[17] The phrase "between themselves" are deleted.

3. Parties concluding bilateral or multilateral agreements within the framework of this Protocol shall inform the regional centre of such agreements, which shall communicate them to the other Parties [18].

[18] The initial "The" is deleted and the last sentence is stated in better English.


Article 7

COMMUNICATION OF INFORMATION AND REPORTS CONCERNING POLLUTION INCIDENTS

The Parties undertake to coordinate the utilization of the means of communication at their disposal in order to ensure, with the necessary speed and reliability, the reception, transmission and dissemination of all reports and urgent information concerning pollution incidents. The regional centre shall have the necessary means of communication to enable it to participate in this coordinated effort and, in particular, to fulfil the functions assigned to it by paragraph 2 of article 10.


Article 8

REPORTING PROCEDURE

1. Each Party shall issue instructions to masters or other persons having charge of ships flying its flag and to the pilots of aircraft registered in its territory to report by the most rapid and adequate channels in the circumstances, following reporting procedures to the extent required by, and in accordance with, the applicable provisions of the relevant international agreements, to the nearest coastal State and to this Party:

(a) all incidents which result or may result in a discharge of oil or hazardous and noxious substances;

Malta meeting:


[Article 8, paragraph 1 (b)]


The Meeting agreed that, after the words "noxious substances", the words "including HNS carried in packaged form" should be inserted as follows:


(b) the presence, characteristics and extent of spillages of oil or hazardous and noxious substances including HNS carried in packaged form observed at sea which pose or are likely to pose a threat to the marine environment or to the coast or related interests of one or more of the Parties.

Following rejection by the Malta meeting of a text referring to ships sailing in waters under the jurisdiction of Parties, the EC proposed the following text which was not further discussed:

(Addition to 8.1) Without prejudice to provisions of Article 14 of the Protocol, each Party shall require the masters of every ship sailing in its territorial waters to comply with the obligations provided for under (a) and (b).


Malta meeting:


[Article 8, paragraph 1 (bis)]


The Meeting agreed that the words "its national law" should be replaced by the words "laws applicable to the Parties" as follows:


(1 bis) Each Party shall also issue instructions to persons having charge of sea ports or handling facilities under its jurisdiction to report to it, in accordance with laws applicable to the Parties, all incidents which result or may result in a discharge of oil or hazardous and noxious substances.

1 ter. In accordance with the Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil, each Party shall issue instructions to persons having charge of offshore units under its jurisdiction to report to it by the most rapid and adequate channels in the circumstances, following reporting procedures it has prescribed, all incidents which result or may result in a discharge of oil or hazardous and noxious substances.

1 quater. The information collected in accordance with paragraphs 1, 1bis and 1 ter shall be communicated to the regional centre, as appropriate.

2. The information collected in accordance with paragraphs 1, 1 bis and 1 ter shall be immediately communicated to the other Parties likely to be affected by the pollution incident:

(a) by the Party which has received the information, preferably directly or through the regional centre; or

(b) by the regional centre.

In case of direct communication between Parties, these shall inform the regional centre of the measures taken, and the centre shall communicate them to the other Parties.

2 bis. The Parties shall use a mutually agreed standard form proposed by the regional centre for the reporting of pollution incidents as required under paragraph 2 of this article.

3. In consequence of the application of the provisions of paragraph 2, the Parties are not bound by the obligation laid down in article 9, paragraph 2, of the Convention.


Article 9

OPERATIONAL MEASURES

1. Any Party faced with a pollution incident shall:

(a) make the necessary assessments of the nature, extent and possible consequences of the pollution incident or, as the case may be, the type and approximate quantity of oil or hazardous and noxious substances and the direction and speed of drift of the spillage;

(b) take every practicable measure to prevent, reduce and, to the fullest possible extent, eliminate the effects of the pollution incident;

(c) immediately inform all Parties likely to be affected by the pollution incident of these assessments and of any action which it has taken or intends to take, and simultaneously provide the same information to the regional centre, which shall communicate it to all other Parties;

(d) continue to observe the situation for as long as possible and report thereon in accordance with article 8.

2. Where action is taken to combat pollution originating from a ship, all possible measures shall be taken to safeguard:

(a) human lives;

(b) the ship itself; in doing so, damage to the environment in general shall be prevented or minimized.

Any Party which takes such action shall inform the International Maritime Organisation either directly or through the regional centre.


Article 9 bis

EMERGENCY MEASURES ON BOARD SHIPS, ON OFFSHORE INSTALLATIONS AND IN PORTS

1. Each Party shall take the necessary steps to ensure that ships flying its flag have on board a pollution emergency plan as required by, and in accordance with, the relevant international regulations.

Following rejection by the Malta meeting of a text referring to ships sailing in waters under the jurisdiction of Parties, the EC proposed the following text which was not further discussed:

(2) Without prejudice to Article 14, each Party shall require the masters of ships flying its flag and shall invite masters of each ship sailing in its territorial waters, in case of a pollution incident, to follow the procedures described in the emergency plan and in particular to provide the proper authorities, at their request, with such detailed information about the ship and its cargo which is relevant to actions taken in pursuance of article 9, and to co-operate with these authorities

3. Each Party shall require that authorities or operators in charge of sea ports and handling facilities under its jurisdiction as it deems appropriate have pollution emergency plans or similar arrangements that are coordinated with the national system established in accordance with article 3 and approved in accordance with procedures established by the competent national authority.

4. Each Party shall require operators in charge of offshore installations under its jurisdiction to have a contingency plan to combat any pollution incident, which is coordinated with the national system established in accordance with article 3 and in accordance with the procedures established by the competent national authority.


Article 10

ASSISTANCE

1. Any Party requiring assistance to deal with a pollution incident may call for assistance from other Parties, either directly or through the regional centre, starting with the Parties which appear likely to be affected by the pollution. This assistance may comprise, in particular, expert advice and the supply to or placing at the disposal of the Party concerned of the required specialized personnel, products, equipment and nautical facilities. Parties so requested shall use their best endeavours to render this assistance.

2. Where the Parties engaged in an operation to combat pollution cannot agree on the organization of the operation, the regional centre may, with their approval, coordinate the activity of the facilities put into operation by these Parties.

3. In accordance with applicable international agreements, each Party shall take the necessary legal and administrative measures to facilitate:

(a) the arrival and utilization in and departure from its territory of ships, aircraft and other modes of transport engaged in responding to a pollution incident or transporting personnel, cargoes, materials and equipment required to deal with such an incident; and

(b) the expeditious movement into, through and out of its territory of the personnel, cargoes, materials and equipment referred to in subparagraph (a).


Article 10 bis

REIMBURSEMENT OF COSTS OF ASSISTANCE

1. Unless an agreement concerning the financial arrangements governing actions of Parties to deal with pollution incidents has been concluded on a bilateral or multilateral basis prior to the pollution incident, Parties shall bear the costs of their respective action in dealing with pollution in accordance with paragraph 2.

2. (a) If the action was taken by one Party at the express request of another Party, the requesting Party shall reimburse to the assisting Party the costs of its action. If the request is cancelled, the requesting Party shall bear the costs already incurred or committed by the assisting Party;

(b) if the action was taken by a Party on its own initiative, that Party shall bear the cost of its action;

(c) the principles laid down above in subparagraphs (a) and (b) shall apply unless the Parties concerned otherwise agree in any individual case.

3. Unless otherwise agreed, the costs of the action taken by a Party at the request of another Party shall be fairly calculated according to the law and current practice of the assisting Party concerning the reimbursement of such costs.

4. The Party requesting assistance and the assisting Party shall, where appropriate, cooperate in concluding any action in response to a compensation claim. To that end, they shall give due consideration to existing legal regimes. Where the action thus concluded does not permit full compensation for expenses incurred in the assistance operation, the Party requesting assistance may ask the assisting Party to waive reimbursement of the expenses exceeding the sums compensated or to reduce the costs which have been calculated in accordance with paragraph 3. It may also request a postponement of the reimbursement of such costs. In considering such a request, assisting Parties shall give due consideration to the needs of developing countries.


Malta meeting:


[Article 10 bis, paragraph 5]


The Meeting agreed that the words "of international law and national or supra-national regulations " should be replaced by the words "national and international law, applicable to one or the other Party involved in the assistance" as follows:


(5) The provisions of this article shall not be interpreted as in any way prejudicing the rights of Parties to recover from third parties the costs of actions taken to deal with pollution incidents under other applicable provisions and rules of national and international law, applicable to one or the other Party involved in the assistance.


Article 10 ter

PORT RECEPTION FACILITIES

Malta meeting:

[Article 10 ter, paragraph 1]

After an extensive exchange of views, the Meeting agreed to amend 10 ter 1 as follows:

(1) The Parties shall take all necessary steps to ensure that reception facilities meeting the needs of ships are available in their ports and terminals. The Parties shall ensure that ships calling to their ports utilize, as necessary, these facilities and contribute at reasonable cost to their operation.

The earlier text was :

1. The Parties shall take all the necessary steps to ensure the provision and utilisation at reasonable cost in their ports and terminals of reception facilities, adequate to meet the needs of the ships using them, without causing undue delay to ships [19].

[19] The phrase "at reasonable cost" is transferred after the word "utilization" because the word "adequate" refers to the word "reception facilities" and the existing formulation was confusing.

2. The Parties shall also ensure the provision of adequate reception facilities for pleasure craft.

3. The Parties shall take all the necessary steps to ensure that reception facilities operate efficiently to limit any impact of their discharges to the marine environment.

4. The Parties shall take the necessary steps to provide ships using their ports with updated information relevant to the obligations arising from MARPOL 73/78 and from their legislation applicable in this field.


Article 10 quater

ENVIRONMENTAL SAFETY OF MARITIME TRAFFIC

Malta meeting:

The Meeting agreed that the words "within the framework" should be replaced by the words "respecting the competences" as follows:


In conformity with generally accepted international standards and within the framework of their recognized competencies, the Parties shall take the necessary steps to assess the environmental safety, individually, bilaterally or multilaterally, of the recognized routes used in maritime traffic and shall take the appropriate initiatives, respecting the competences of the International Maritime Organization, aimed at reducing the risks of accidents or the environmental consequences thereof.


Article 10 quinquies

Malta meeting:

The Meeting agreed that the words "access to their ports" should be replaced by the words "reception in places of refuge, including ports" and that the title of the article should be changed accordingly as follows:

Title: RECEPTION OF SHIPS IN DISTRESS IN PORTS AND PLACES OF REFUGE


The Parties shall define national, subregional or regional strategies concerning reception in places of refuge, including ports, of ships in distress presenting a threat to the marine environment. They shall cooperate to this end and inform the regional centre of the measures they have adopted.


Article 11

SUBREGIONAL AGREEMENTS

The Parties may negotiate, develop and maintain appropriate bilateral or multilateral subregional agreements in order to facilitate the implementation of this Protocol, or part of it. Upon request of the interested Parties, the regional centre shall assist them, within the framework of its functions, in the process of developing and implementing these subregional agreements.


Article 11 bis

THE REGIONAL CENTRE

Article DELETED, see Article 1 "Definitions"


Article 12

MEETINGS

1. Ordinary meetings of the Parties to this Protocol shall be held in conjunction with ordinary meetings of the Contracting Parties to the Convention, held pursuant to article 18 of the Convention. The Parties to this Protocol may also hold extraordinary meetings as provided in article 18 of the Convention.

2. It shall be the function of the meetings of the Parties to this Protocol, in particular:

(a) to examine and discuss reports from the regional centre on the implementation of this Protocol, and particularly of its articles 3, 6 and 10 quinquies;

(b) to formulate and adopt strategies, action plans and programmes for the implementation of this Protocol;

(c) to keep under review and consider the efficacy of these strategies, action plans and programmes, and the need to adopt any new strategies, action plans and programmes and to develop measures to that effect;

(d) to discharge such other functions as may be appropriate for the implementation of this Protocol.


Article 13

RELATIONSHIP WITH THE CONVENTION

1. The provisions of the Convention relating to any protocol shall apply with respect to the present Protocol.

2. The rules of procedure and the financial rules adopted pursuant to article 24 of the Convention shall apply with respect to this Protocol, unless the Parties agree otherwise.


FINAL PROVISIONS


Article 14

EFFECT OF THE PROTOCOL ON DOMESTIC LEGISLATION

Malta meeting:


Taking into account the agreement to consider Article 1 in conjunction with Article 14, the Meeting suggested that the text of Article 14 as adopted by the Monaco Meeting should be replaced by the following text:


In implementing the provisions of this Protocol, the right of Parties to adopt relevant stricter domestic measures or other measures in conformity with international law, in the areas covered by this Protocol, shall not be affected.


The earlier version was:

The provisions of this Protocol shall not affect the right of Parties to adopt relevant stricter domestic measures for the implementation of this Protocol.


Article 15

RELATIONS WITH THIRD PARTIES

The Parties shall, where appropriate, invite States that are not Parties to the Protocol and international organizations to cooperate in the implementation of the Protocol.


Article 16

SIGNATURE

This Protocol shall be open for signature at.....on..... and at.....from ...............2001 to ............2002 by any Contracting Party to the Convention.


Article 17

RATIFICATION, ACCEPTANCE OR APPROVAL

This Protocol shall be subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Government of Spain, which will assume the functions of Depositary.


Article18

ACCESSION

As from......., this Protocol shall be open for accession by any Party to the Convention.

Article 19

ENTRY INTO FORCE

1. This Protocol shall enter into force on the thirtieth day following the deposit of the sixth instrument of ratification, acceptance, approval or accession.

2. From the date of its entry into force, this Protocol shall replace the Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency of 1976, in the relations between the Parties to both instruments.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Protocol.


DONE at ....., on......, in a single copy in the Arabic, English, French and Spanish languages, the four texts being equally authentic.