- Email: [email protected]
The Baltic Sea Area: Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) of 1974 and the Revised Convention of 1992
~
Pergamon
0025-326X(94)00153-7
Marine PollutionBulletin,Vol. 29, Nos 6--12,pp. 617-621, 1994 Elsevier ScienceLtd Printed in Great Britain
The Baltic Sea Area: Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) of 1974 and the Revised Convention of 1992" PETER EHLERS
HELCOM Maritime Committee, Federal Maritime and Hydrographic Agency, Postfach 301220, D-20305 Hamburg, Germany
states in the field of marine environmental policy. Since the Convention took effect in May 1980, the Commission, at its 14 regular annual meetings held since then, has adopted 136 recommendations on protection measures. Initially, and to ensure early progress, the recommendations focused primarily on maritime shipping and scientific co-operation in assessing the quality status of the Baltic Sea, as these were the fields in which most work had already been carried out nationally and internationally. Since the mid-1980s, the emphasis of the recommendations has been on measures to reduce inputs from landbased sources. A major step forward was taken at the Commission's ninth meeting in February 1988, when ministers of the environment made a Declaration on the Protection of the Marine Environment of the Baltic Sea Area. They decided that inputs of most harmful substances would have to be In March 1994 the Baltic Sea States celebrated the 20th substantially reduced by approximately 50% of the total anniversary of the Convention on the Protection of the discharges--in particular for heavy metals and toxic or Marine Environment of the Baltic Sea Area (Helsinki persistent organic substances and nutrients. After its Convention). The signing of this Convention by the then earlier isolated decisions on substances, the Commission's seven Baltic Sea states in Helsinki on the 22 March 1974 1988 Declaration was the first ever comprehensive marked an important political milestone in international attempt at achieving a large-scale reduction in harmful ecopolitics. All sources of pollution were, for the first time substances. for a sea area, included in one convention and were made At this time, political changes and the greater degree of the subject of regulations. This convention carried even openness that resulted from them led to a Baltic Sea greater weight in that marine environmental protection Environment Conference which was held in Ronneby, was one of the first areas in which the Baltic Sea states Sweden in September 1990. The conference of the Prime showed any willingness to co-operate. Ministers of the Baltic Sea states, Norway and the then During the past 20 years, the Helsinki Convention and CSFR ended with the Baltic Sea Declaration 1990, which in particular the Helsinki Commission as an international set out the principles and priority actions necessary to body established under this Convention became the firm enhance the Baltic Sea environment. Following this basis for far-reaching co-operation between the Baltic Sea conference a Joint Comprehensive Action Programme was developed to reduce emissions drastically and to *The article was first published as Whe Helsinki Convention, 1 9 9 2 restore the Baltic Sea's ecological balance. Improving the Baltic Sea Environment', in The International Journal of The Joint Comprehensive Environmental Action ProMarine and Coastal Law 1993, 8(2), 191-243. It is reproduced by kind permission of the publishers, Graham & Trotman Ltd, London. gramme, based on national plans provided by the The Helsinki Convention 1974 marked an important milestone in international ecopoUtics. AH sources of pollution were, for the first time for a sea area, made subject to regulations in one convention. By establishing the Helsinki Commission the Convention created the basis for far-reaching co-operation between the Baltic Sea states in the field of marine environmental protection. One of the most important steps was taken in 1992 by adopting a new Joint Comprehensive Action Programme as well as a revised version of the Convention. The latter takes account of the findings and experiences of the Helsinki Commission as well as of new ecopolitical developments, by introducing additional fundamental principles and making regulations more concrete and binding under international law.
617
Marine Pollution Bulletin measures to prevent and eliminate pollution. The term 'pollution' has been re-defined. In the 1974 Convention it meant substances whose introduction resulted in deleterious effects which had to be described, i.e. proof of causality was required. In the revised version, pollution means substances which are liable to create harmful effects, i.e. the potential risk is the decisive factor, not the proven effects. For fundamental obligations to be fulfilled, various fundamental ecopolitical principles have been established in an international Convention for the first time. One of the revised Convention's foremost innovations is the application of the precautionary principle. Preventive measures must be taken when there is reason to assume that substances or energy introduced into the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea----even when there is no conclusive evidence of a causal relationship. Accordingly, the Baltic Sea states are obliged to implement protective measures at an early stage even if conclusive scientific findings are not yet available. To. prevent and eliminate pollution of the Baltic Sea Area, the contracting parties shall promote the use of best environmental practice and best available technology. If this proves insufficient, additional measures shall be applied. The criteria for best environmental practice and best available technology are given in a new Annex II. Measures and possibilities are listed which should be considered in individual cases so as to ensure best environmental practice. With this approach, the Convention is a valuable opportunity to develop a protective strategy that incorporates the whole product cycle including its substitution. The term 'best available technology' is taken to mean G e n e r a l Regulations the latest stage of development of processes and methods of operation which indicate the practical suitability of a Scope The convention covers the whole of the Baltic Sea, particular measure for limiting discharges. Best available including the Kattegat as far as Skagen. Internal waters technology is to be used for all point sources to minimize are now expressly included in the new Convention in or eliminate inputs to water and air. The Convention further obliges the contracting parties recognition of the fact that harmful substances often enter the Baltic Sea through them. to apply the polluter pays principle. However, the Where land-based inputs are concerned, preventive question of how this is to be done in practice is not measures must often be taken far inland. The revised addressed. version takes account of this in that the necessary The contracting parties shall ensure that measurements measures are to be taken in the whole of the catchment and calculations of inputs are carried out in a scientifically area. This regulation thus removes criticisms that restric- appropriate manner to assess the state of the marine tions on discharges are meaningless if, at the same time, environment. This regulation removes a weak point in the riverine inputs are not stopped. work of the Helsinki Commission as until now only very The Convention covers the water body and the sea bed incomplete input data have been available. In addition, of the Baltic Sea, including their living resources and other protective measures taken may not cause unacceptable forms of marine life, Various regulations in the new strains on other environmental media. This reflects the version additionally apply .to the subsoil, concerning realization that environmental protection is possible only disposal under the sea bed with access from land, the when it encompasses all of nature's constituent parts. dumping of waste and offshore activities. In keeping with recent trends in international law, good neighbourly, international co-operation is established Fundamental principles and oblivations with regard to environmental impact assessments (EIAs). In the revised version, fundamental obligations have If an EIA is required by international law or suprabeen made more formal and their scope extended. The national regulations when measures may negatively affect contracting parties shall individually or jointly take all the marine environment of the Baltic Sea Area, the appropriate legislative, administrative or other relevant contracting party of origin shall notify the Commission
countries within the catchment area of the Baltic Sea, was presented to the Ministers of the Environment from the Baltic Sea Area at a Diplomatic Conference in Helsinki in April 1992. It was approved by the Ministers in its strategic approach and principles in a Baltic Sea Environmental Declaration 1992. The foundation was thus laid for numerous, far-reaching measures to protect the Baltic Sea. A further Conference of the Environment Ministers took place at Gdansk in March 1993, aiming at the continuous and accelerated implementation of the Joint Action Programme. By adopting the Gdansk Declaration, the Ministers agreed to make all efforts to mobilize local, national, bilateral or multilateral financial and other resources for implementing the programme, including grant financing. In parallel with the action programme a revision of the Convention was considered appropriate in the light of developments in international environmental law, international law of the sea and general experience since the 1970s. The Commission drafted the new version of the Helsinki Convention which, together with the action programme, was adopted by the Ministers of the Environment at their conference on the 9 April 1992. The revised version of the Helsinki Convention, again in a single authentic copy in the English language, agrees in form and substance with its 1974 predecessor. The Convention again includes all types of pollution, but for the first time it also takes account of nature conservation. Various new elements reflect developments in international environmental law since 1974. The Convention continues to be binding only for the contracting parties. It is not self-executing but requires appropriate national implementing regulations.
618
Volume29/Numbers6--12 and any contracting party which may be affected by a transboundary impact on the Baltic Sea Area. According to relevant regulations, the contracting party of origin is to enter into consultations with other contracting parties. In principle, however, the Convention restricts itself to procedural consultation obligations. Whether an EIA is required depends on other regulations, for example it is only for offshore activities that the Helsinki Convention itself requires such an assessment to be made. The revised Convention states that contracting parties undertake to prevent and eliminate pollution caused by harmful substances from all sources. A new Annex I sets out the necessary procedures and measures. 'Harmful substance' means any substance which, if introduced into the sea, is liable to cause pollution. 'Hazardous substance' is introduced as an additional term and means any harmful substance which due to its intrinsic properties is persistent, toxic or liable to bioaccumulate. Annex I contains general principles for dealing with harmful substances and criteria are formulated for their identification and evaluation. Substances to which priority is to be given are listed, for example DDT and its derivatives DDE and DDD, polychlorinated biphenyls and polychlorinated terphenyls are mentioned as hazardous substances which the contracting parties shall prohibit. The use of organotin compounds for antifouling paints for pleasure craft under 25 m and fish net cages is banned. The contracting parties shall endeavour to minimize and, whenever possible, to ban in the Baltic Sea Area those pesticides which are classed as hazardous substances. In addition to these fundamental obligations, the Convention regulates preventive measures for the different sources of pollution.
Pollution from Land-based Sources The revised Convention tightens and specifies measures to combat pollution from land-based sources, to prevent and eliminate pollution. Best environmental practice and best available technology are to be used to this end. The contracting parties shall co-operate in the development and adoption of specific programmes, guidelines, standards or regulations concerning emissions and inputs to water and air, environmental quality and products containing harmful substances and materials and the use thereof. The procedures and measures set out in a new Annex III go far beyond the principles in the old Convention. They cover municipal sewage water and industrial waste waters as well as pollution from fish farming and from diffuse sources, including agriculture. A prior special permit is required when harmful substances from point sources are to be introduced into the Baltic Sea Area. The principles for the issue of such permits are contained in Annex III. If the input from a water course flowing through the territories of two or more contracting parties or forming a boundary between them is liable to cause pollution of the marine environment of the Baltic Sea Area, the contracting parties concerned shall jointly and, if possible, in cooperation with a third state interested or concerned, take
appropriate measures to prevent and eliminate such pollution.
Pollution from Ships For the prevention of pollution from ships, regulations only at regional level may be inadequate. The international nature of shipping necessitates global regulations for all ships sailing under the world's flags. This has primarily to be done by the International Maritime Organization (IMO) in which the main instrument against pollution from ships is MARPOL 73/78. The latter includes prohibitions and restrictions on the discharge of operational wastes and cargo residues as well as more restrictive special area regulations which apply to the Baltic Sea Area. The Helsinki Convention, obliging the contracting parties to take measures as set out in Annex IV to prevent pollution from ships, in essence reflects the application of MARPOL 73/78. In this the emphasis is on the contracting parties to co-operate within the IMO in promoting the development of international rules that are consistent with the aims of the Helsinki Convention. Furthermore the Convention obliges the contracting parties to co-operate in the Baltic Sea Area in the effective and harmonized implementation of rules adopted by the IMO. Contracting parties have a duty to assist each other in investigating violations of anti-pollution regulations. This includes inspection of oil, cargo, and other records as well as taking oil samples. As the corresponding MARPOL regulations have not yet entered into force, Annex IV of the Helsinki Convention still contains regulations on sewage from vessels. The discharge of sewage is permitted only when ships are at a given minimum distance from the nearest land. 'Holding tanks' are required if a ship has no sewage treatment plant. If shipping is to comply with international prohibitions on discharges into the marine environment, adequate reception facilities in ports are essential. The contracting parties are obliged to construct and operate such facilities and as such to develop and apply uniform requirements for the provision of reception facilities for ship-generated wastes. In addition, the contracting parties shall take special measures to reduce/minimize harmful effects on the marine environment caused by pleasure craft activities. In addition to adequate reception facilities, the measures shall, inter alia, deal with air pollution, noise and hydrodynamic effects.
Waste Disposal at Sea One of the Helsinki Convention's great ecopolitical successes is that even the original version prohibited the disposal of waste at sea; this is unlike in the North Sea Area, for instance. The original Article included the ban applying only to the dumping of waste, but did not expressly include incineration at sea which had not yet been identified as a problem in 1974. In reflecting the practise of the contracting parties not to allow incineration, the revised Convention expressly prohibits both incineration and dumping at sea. 619
Marine PollutionBulletin Exemptions from the ban on disposal are possible for dredged material. Annex V of the Convention regulates the conditions under which such material may be dumped. A permit for dredged material containing harmful substances can only be issued according to the guidelines adopted by the Helsinki Commission, to ensure compliance with international standards and limit values. Offshore Activities In the 1974 Convention, the prevention of pollution from offshore activities was addressed only in general terms. The new version contains more stringent regulations, for example each contracting party shall take all measures to prevent pollution of the marine environment from the exploration or exploitation of the sea bed and the subsoil thereof or from any associated activities thereon. Adequate preparedness must be ensured for immediate response to pollution incidents. The measures are set out in detail in a new Annex VI. These regulations include the application of the principles of best available technology and best environmental practice, EIAs and follow-up studies on the effects of offshore activities, restrictions to the use of oil-based drilling mud and prohibitions of the discharge of drilling muds and cuttings. Other regulations concern reporting procedures, contingency planning and the exchange of information. A pioneering innovation is tli~t, contracting parties shaft ensure that abandoned, disused offshore units and accidentally wrecked offshore units are entirely removed and brought ashore under the responsibility of the owner and that disused drilling wells are plugged.
Combating Marine Pollution Following the principle laid down in the Helsinki Convention, the Baltic Sea states have long co-operated to combat pollution incidents effectively. Whenever a pollution incident in the territory of a contracting party is likely to cause pollution to the marine environment of the Baltic Sea Area outside its territory and adjacent maritime area in which it exercises sovereign rights and jurisdiction according to international law, this contracting party shall notify without delay such contracting parties whose interests are affected or are likely to be affected. Whenever deemed necessary by the contracting parties, consultations should take place with a view to preventing, reducing and controlling pollution. The contracting parties shall individually or jointly take all appropriate measures to maintain an adequate ability to respond to pollution incidents. The findings and results of earlier co-operation are now reflected in Annex VII, dealing with adequate equipment, ships and manpower, regular surveillance outside the coastline including airborne surveillance, national contingency plans and bilateral or multilateral plans for response measures. Shipping is to report pollution events. Ships flying the flag of a contracting party are obliged to have an oil pollution emergency plan on board. Mechanical means are to be used in any response to a pofution incident. Chemical agents may only be used in 620
exceptional cases and after authorization by the appropriate national authority. When responding to a pollution incident at sea, a contracting party may request assistance from other contracting parties, but must bear the costs of the action.
Nature Conservation and Biodiversity An important innovation in the revised Convention is that the protection of the environment is no longer seen only from the point of view of reductions in inputs; nature conservation and biodiversity are now also included. Contracting parties are, individually and jointly, to take a f appropriate measures to conserve natural habitats and biological diversity. They further undertake to ensure the sustainable use of natural resources within the Baltic Sea Area. This regulation at present only exists as a conceptual basis, however, and well-defined measures are still to be decided. The contracting parties merely have undertaken to aim at adopting appropriate guidelines and criteria.
Reporting and Exchange of Information In another new departure, the 1992 Helsinki Convention requires the contracting parties to report regularly to the Commission on the legal and other measures taken to implement the Convention's provisions and the recommendations adopted thereunder. With this regulation, reporting as already practised for recommendations is better defined and is made binding under international law. The Commission now has a valuable instrument to confirm the implementation of the Convention and its decisions. In the interests of greater openness, the contracting parties shall ensure that information is made available to the public on the condition of the Baltic Sea, measures taken or planned, permits issued, the results of water sampling and water quality objectives. As this obligation can, however, conflict with the interests of the protection of information, the provisions of the Convention do not affect the right or obligation of any contracting party under its national law to protect information related to intellectual property including industrial and commercial secrecy, national security and the confidentiality of personal data.
Helsinki Commission For the purpose of co-operation under the Helsinki Convention, the Baltic Marine Environment Protection Commission (Helsinki Commission) has been established, consisting of representatives of all contracting parties. Meetings are held at least once a year. The chairmanship is given to each contracting party in alphabetical order. The duties of the Commission are to continuously observe the implementation of the Convention, to make recommendations on measures relating to the purposes of the Convention, to define criteria and objectives, and to promote dose co-operation with other bodies.
Volume 29/Numbers 6-12
The secretariat of the Commission consists of the executive secretary as the chief administrative official, additional secretaries and the administrative staff. The budget shall be contributed by the contracting parties.
Scientific and Technological Co-operation The Convention dictates that the contracting parties closely co-operate in the scientific and technological fields. Wide-ranging activities have long been common, for example the joint scientific monitoring programmes, quality status assessments and co-ordinated research programmes. Difficulties still arise, however, as research projects in territorial waters, the continental shelf and the fishing or exclusive economic zone must often be preceded by lengthy procedures to obtain permission from the coastal states. Although hardly promising, a first attempt at simplifying the procedure has been made by introducing a clause stating that the contracting parties will harmonize their policies with respect to permission procedures.
Final Provisions The final provisions dealing with amendment procedures, ratification, entry into force and withdrawal correspond to similar conventions. The revised Convention will enter into force after ratification or approval by the European Community and all the signatory states bordering the Baltic Sea. As the 1974 Convention will cease to apply when its revised version comes into force, transitional regulations shall ensure continuity of the work of the Helsinki Commission.
Conclusions The 1992 Helsinki Convention in many respects contains significant improvements compared with its 1974 predecessor. Account is taken on a large scale of the findings and experiences of the Helsinki Commission as well as of new ecopolitical developments since then, thereby removing the original's weak points. This is the case with the inclusion of internal waters and the extension of preventive measures to the whole of the catchment area. The firm establishment for the first time of fundamental ecopofitical principles points the way forward for international environmental law in general. The fact that environmental protection regulations for offshore activities have been made more concrete must be viewed as a considerable improvement.
The inclusion of a regulation for nature conservation and biodiversity encourages moves to take a more comprehensive view of environmental protection. In addition, the requirement to collect data and to report and exchange information will ensure greater openness both for the Commission and the public and will improve the basis upon which findings are made. Despite the above, it is considered that some points require attention. It would have enhanced the Convention's comprehensiveness if individual land-based pollution sources had been identified and corresponding regulations introduced in addition to general principles and criteria. For instance, regulations of a more concrete nature are needed to ensure the reduction of airborne inputs which are a major source of marine pollution. Among diffuse sources, agriculture is prominent and it would have been beneficial if more detailed reduction measures had been formulated. Another field of environmental concern is fishing. The marine environment is very much adversely affected by over-fishing and harmful fishing methods. Therefore it would also have been desirable to introduce protective measures for fisheries. It is concluded that the revised Helsinki Convention is an effective legal instrument that allows energetic protective measures. Its success will depend on how promptly the necessary measures are taken. It will be one of the Commission's main tasks to intensify its supervision of the implementation of the Convention. The reporting obligations of the contracting parties will enable the Commission to do so. Its effectiveness would doubtless have increased had it been given powers of inspection and control, but this appears to be incompatible with member states' concepts of sovereignty. The 1992 Helsinki Convention was adopted together with the Environmental Joint Action programme, which illustrates that lasting improvements in the quality of the Baltic Sea depend ultimately not so much on international regulations as on heavy investments--particularly in Estonia, Latvia, Lithuania, Poland and Russia. A conservative estimate of the cost of the programme over the next 20 years is 18 x 109 ECU. Its success thus depends on the mobilization of the necessary funds. If they are not made available, international obligations, principles and criteria alone will not solve the environmental problems. This point illustrates that progress in protecting the Baltic Sea ultimately depends on factors outside the scope of the Convention. However, the Convention's importance as a modem, progressive legal instrument which can further the protection of the marine environment is not diminished.
621
Pergamon
0025-326X(94)00153-7
Marine PollutionBulletin,Vol. 29, Nos 6--12,pp. 617-621, 1994 Elsevier ScienceLtd Printed in Great Britain
The Baltic Sea Area: Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) of 1974 and the Revised Convention of 1992" PETER EHLERS
HELCOM Maritime Committee, Federal Maritime and Hydrographic Agency, Postfach 301220, D-20305 Hamburg, Germany
states in the field of marine environmental policy. Since the Convention took effect in May 1980, the Commission, at its 14 regular annual meetings held since then, has adopted 136 recommendations on protection measures. Initially, and to ensure early progress, the recommendations focused primarily on maritime shipping and scientific co-operation in assessing the quality status of the Baltic Sea, as these were the fields in which most work had already been carried out nationally and internationally. Since the mid-1980s, the emphasis of the recommendations has been on measures to reduce inputs from landbased sources. A major step forward was taken at the Commission's ninth meeting in February 1988, when ministers of the environment made a Declaration on the Protection of the Marine Environment of the Baltic Sea Area. They decided that inputs of most harmful substances would have to be In March 1994 the Baltic Sea States celebrated the 20th substantially reduced by approximately 50% of the total anniversary of the Convention on the Protection of the discharges--in particular for heavy metals and toxic or Marine Environment of the Baltic Sea Area (Helsinki persistent organic substances and nutrients. After its Convention). The signing of this Convention by the then earlier isolated decisions on substances, the Commission's seven Baltic Sea states in Helsinki on the 22 March 1974 1988 Declaration was the first ever comprehensive marked an important political milestone in international attempt at achieving a large-scale reduction in harmful ecopolitics. All sources of pollution were, for the first time substances. for a sea area, included in one convention and were made At this time, political changes and the greater degree of the subject of regulations. This convention carried even openness that resulted from them led to a Baltic Sea greater weight in that marine environmental protection Environment Conference which was held in Ronneby, was one of the first areas in which the Baltic Sea states Sweden in September 1990. The conference of the Prime showed any willingness to co-operate. Ministers of the Baltic Sea states, Norway and the then During the past 20 years, the Helsinki Convention and CSFR ended with the Baltic Sea Declaration 1990, which in particular the Helsinki Commission as an international set out the principles and priority actions necessary to body established under this Convention became the firm enhance the Baltic Sea environment. Following this basis for far-reaching co-operation between the Baltic Sea conference a Joint Comprehensive Action Programme was developed to reduce emissions drastically and to *The article was first published as Whe Helsinki Convention, 1 9 9 2 restore the Baltic Sea's ecological balance. Improving the Baltic Sea Environment', in The International Journal of The Joint Comprehensive Environmental Action ProMarine and Coastal Law 1993, 8(2), 191-243. It is reproduced by kind permission of the publishers, Graham & Trotman Ltd, London. gramme, based on national plans provided by the The Helsinki Convention 1974 marked an important milestone in international ecopoUtics. AH sources of pollution were, for the first time for a sea area, made subject to regulations in one convention. By establishing the Helsinki Commission the Convention created the basis for far-reaching co-operation between the Baltic Sea states in the field of marine environmental protection. One of the most important steps was taken in 1992 by adopting a new Joint Comprehensive Action Programme as well as a revised version of the Convention. The latter takes account of the findings and experiences of the Helsinki Commission as well as of new ecopolitical developments, by introducing additional fundamental principles and making regulations more concrete and binding under international law.
617
Marine Pollution Bulletin measures to prevent and eliminate pollution. The term 'pollution' has been re-defined. In the 1974 Convention it meant substances whose introduction resulted in deleterious effects which had to be described, i.e. proof of causality was required. In the revised version, pollution means substances which are liable to create harmful effects, i.e. the potential risk is the decisive factor, not the proven effects. For fundamental obligations to be fulfilled, various fundamental ecopolitical principles have been established in an international Convention for the first time. One of the revised Convention's foremost innovations is the application of the precautionary principle. Preventive measures must be taken when there is reason to assume that substances or energy introduced into the marine environment may create hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea----even when there is no conclusive evidence of a causal relationship. Accordingly, the Baltic Sea states are obliged to implement protective measures at an early stage even if conclusive scientific findings are not yet available. To. prevent and eliminate pollution of the Baltic Sea Area, the contracting parties shall promote the use of best environmental practice and best available technology. If this proves insufficient, additional measures shall be applied. The criteria for best environmental practice and best available technology are given in a new Annex II. Measures and possibilities are listed which should be considered in individual cases so as to ensure best environmental practice. With this approach, the Convention is a valuable opportunity to develop a protective strategy that incorporates the whole product cycle including its substitution. The term 'best available technology' is taken to mean G e n e r a l Regulations the latest stage of development of processes and methods of operation which indicate the practical suitability of a Scope The convention covers the whole of the Baltic Sea, particular measure for limiting discharges. Best available including the Kattegat as far as Skagen. Internal waters technology is to be used for all point sources to minimize are now expressly included in the new Convention in or eliminate inputs to water and air. The Convention further obliges the contracting parties recognition of the fact that harmful substances often enter the Baltic Sea through them. to apply the polluter pays principle. However, the Where land-based inputs are concerned, preventive question of how this is to be done in practice is not measures must often be taken far inland. The revised addressed. version takes account of this in that the necessary The contracting parties shall ensure that measurements measures are to be taken in the whole of the catchment and calculations of inputs are carried out in a scientifically area. This regulation thus removes criticisms that restric- appropriate manner to assess the state of the marine tions on discharges are meaningless if, at the same time, environment. This regulation removes a weak point in the riverine inputs are not stopped. work of the Helsinki Commission as until now only very The Convention covers the water body and the sea bed incomplete input data have been available. In addition, of the Baltic Sea, including their living resources and other protective measures taken may not cause unacceptable forms of marine life, Various regulations in the new strains on other environmental media. This reflects the version additionally apply .to the subsoil, concerning realization that environmental protection is possible only disposal under the sea bed with access from land, the when it encompasses all of nature's constituent parts. dumping of waste and offshore activities. In keeping with recent trends in international law, good neighbourly, international co-operation is established Fundamental principles and oblivations with regard to environmental impact assessments (EIAs). In the revised version, fundamental obligations have If an EIA is required by international law or suprabeen made more formal and their scope extended. The national regulations when measures may negatively affect contracting parties shall individually or jointly take all the marine environment of the Baltic Sea Area, the appropriate legislative, administrative or other relevant contracting party of origin shall notify the Commission
countries within the catchment area of the Baltic Sea, was presented to the Ministers of the Environment from the Baltic Sea Area at a Diplomatic Conference in Helsinki in April 1992. It was approved by the Ministers in its strategic approach and principles in a Baltic Sea Environmental Declaration 1992. The foundation was thus laid for numerous, far-reaching measures to protect the Baltic Sea. A further Conference of the Environment Ministers took place at Gdansk in March 1993, aiming at the continuous and accelerated implementation of the Joint Action Programme. By adopting the Gdansk Declaration, the Ministers agreed to make all efforts to mobilize local, national, bilateral or multilateral financial and other resources for implementing the programme, including grant financing. In parallel with the action programme a revision of the Convention was considered appropriate in the light of developments in international environmental law, international law of the sea and general experience since the 1970s. The Commission drafted the new version of the Helsinki Convention which, together with the action programme, was adopted by the Ministers of the Environment at their conference on the 9 April 1992. The revised version of the Helsinki Convention, again in a single authentic copy in the English language, agrees in form and substance with its 1974 predecessor. The Convention again includes all types of pollution, but for the first time it also takes account of nature conservation. Various new elements reflect developments in international environmental law since 1974. The Convention continues to be binding only for the contracting parties. It is not self-executing but requires appropriate national implementing regulations.
618
Volume29/Numbers6--12 and any contracting party which may be affected by a transboundary impact on the Baltic Sea Area. According to relevant regulations, the contracting party of origin is to enter into consultations with other contracting parties. In principle, however, the Convention restricts itself to procedural consultation obligations. Whether an EIA is required depends on other regulations, for example it is only for offshore activities that the Helsinki Convention itself requires such an assessment to be made. The revised Convention states that contracting parties undertake to prevent and eliminate pollution caused by harmful substances from all sources. A new Annex I sets out the necessary procedures and measures. 'Harmful substance' means any substance which, if introduced into the sea, is liable to cause pollution. 'Hazardous substance' is introduced as an additional term and means any harmful substance which due to its intrinsic properties is persistent, toxic or liable to bioaccumulate. Annex I contains general principles for dealing with harmful substances and criteria are formulated for their identification and evaluation. Substances to which priority is to be given are listed, for example DDT and its derivatives DDE and DDD, polychlorinated biphenyls and polychlorinated terphenyls are mentioned as hazardous substances which the contracting parties shall prohibit. The use of organotin compounds for antifouling paints for pleasure craft under 25 m and fish net cages is banned. The contracting parties shall endeavour to minimize and, whenever possible, to ban in the Baltic Sea Area those pesticides which are classed as hazardous substances. In addition to these fundamental obligations, the Convention regulates preventive measures for the different sources of pollution.
Pollution from Land-based Sources The revised Convention tightens and specifies measures to combat pollution from land-based sources, to prevent and eliminate pollution. Best environmental practice and best available technology are to be used to this end. The contracting parties shall co-operate in the development and adoption of specific programmes, guidelines, standards or regulations concerning emissions and inputs to water and air, environmental quality and products containing harmful substances and materials and the use thereof. The procedures and measures set out in a new Annex III go far beyond the principles in the old Convention. They cover municipal sewage water and industrial waste waters as well as pollution from fish farming and from diffuse sources, including agriculture. A prior special permit is required when harmful substances from point sources are to be introduced into the Baltic Sea Area. The principles for the issue of such permits are contained in Annex III. If the input from a water course flowing through the territories of two or more contracting parties or forming a boundary between them is liable to cause pollution of the marine environment of the Baltic Sea Area, the contracting parties concerned shall jointly and, if possible, in cooperation with a third state interested or concerned, take
appropriate measures to prevent and eliminate such pollution.
Pollution from Ships For the prevention of pollution from ships, regulations only at regional level may be inadequate. The international nature of shipping necessitates global regulations for all ships sailing under the world's flags. This has primarily to be done by the International Maritime Organization (IMO) in which the main instrument against pollution from ships is MARPOL 73/78. The latter includes prohibitions and restrictions on the discharge of operational wastes and cargo residues as well as more restrictive special area regulations which apply to the Baltic Sea Area. The Helsinki Convention, obliging the contracting parties to take measures as set out in Annex IV to prevent pollution from ships, in essence reflects the application of MARPOL 73/78. In this the emphasis is on the contracting parties to co-operate within the IMO in promoting the development of international rules that are consistent with the aims of the Helsinki Convention. Furthermore the Convention obliges the contracting parties to co-operate in the Baltic Sea Area in the effective and harmonized implementation of rules adopted by the IMO. Contracting parties have a duty to assist each other in investigating violations of anti-pollution regulations. This includes inspection of oil, cargo, and other records as well as taking oil samples. As the corresponding MARPOL regulations have not yet entered into force, Annex IV of the Helsinki Convention still contains regulations on sewage from vessels. The discharge of sewage is permitted only when ships are at a given minimum distance from the nearest land. 'Holding tanks' are required if a ship has no sewage treatment plant. If shipping is to comply with international prohibitions on discharges into the marine environment, adequate reception facilities in ports are essential. The contracting parties are obliged to construct and operate such facilities and as such to develop and apply uniform requirements for the provision of reception facilities for ship-generated wastes. In addition, the contracting parties shall take special measures to reduce/minimize harmful effects on the marine environment caused by pleasure craft activities. In addition to adequate reception facilities, the measures shall, inter alia, deal with air pollution, noise and hydrodynamic effects.
Waste Disposal at Sea One of the Helsinki Convention's great ecopolitical successes is that even the original version prohibited the disposal of waste at sea; this is unlike in the North Sea Area, for instance. The original Article included the ban applying only to the dumping of waste, but did not expressly include incineration at sea which had not yet been identified as a problem in 1974. In reflecting the practise of the contracting parties not to allow incineration, the revised Convention expressly prohibits both incineration and dumping at sea. 619
Marine PollutionBulletin Exemptions from the ban on disposal are possible for dredged material. Annex V of the Convention regulates the conditions under which such material may be dumped. A permit for dredged material containing harmful substances can only be issued according to the guidelines adopted by the Helsinki Commission, to ensure compliance with international standards and limit values. Offshore Activities In the 1974 Convention, the prevention of pollution from offshore activities was addressed only in general terms. The new version contains more stringent regulations, for example each contracting party shall take all measures to prevent pollution of the marine environment from the exploration or exploitation of the sea bed and the subsoil thereof or from any associated activities thereon. Adequate preparedness must be ensured for immediate response to pollution incidents. The measures are set out in detail in a new Annex VI. These regulations include the application of the principles of best available technology and best environmental practice, EIAs and follow-up studies on the effects of offshore activities, restrictions to the use of oil-based drilling mud and prohibitions of the discharge of drilling muds and cuttings. Other regulations concern reporting procedures, contingency planning and the exchange of information. A pioneering innovation is tli~t, contracting parties shaft ensure that abandoned, disused offshore units and accidentally wrecked offshore units are entirely removed and brought ashore under the responsibility of the owner and that disused drilling wells are plugged.
Combating Marine Pollution Following the principle laid down in the Helsinki Convention, the Baltic Sea states have long co-operated to combat pollution incidents effectively. Whenever a pollution incident in the territory of a contracting party is likely to cause pollution to the marine environment of the Baltic Sea Area outside its territory and adjacent maritime area in which it exercises sovereign rights and jurisdiction according to international law, this contracting party shall notify without delay such contracting parties whose interests are affected or are likely to be affected. Whenever deemed necessary by the contracting parties, consultations should take place with a view to preventing, reducing and controlling pollution. The contracting parties shall individually or jointly take all appropriate measures to maintain an adequate ability to respond to pollution incidents. The findings and results of earlier co-operation are now reflected in Annex VII, dealing with adequate equipment, ships and manpower, regular surveillance outside the coastline including airborne surveillance, national contingency plans and bilateral or multilateral plans for response measures. Shipping is to report pollution events. Ships flying the flag of a contracting party are obliged to have an oil pollution emergency plan on board. Mechanical means are to be used in any response to a pofution incident. Chemical agents may only be used in 620
exceptional cases and after authorization by the appropriate national authority. When responding to a pollution incident at sea, a contracting party may request assistance from other contracting parties, but must bear the costs of the action.
Nature Conservation and Biodiversity An important innovation in the revised Convention is that the protection of the environment is no longer seen only from the point of view of reductions in inputs; nature conservation and biodiversity are now also included. Contracting parties are, individually and jointly, to take a f appropriate measures to conserve natural habitats and biological diversity. They further undertake to ensure the sustainable use of natural resources within the Baltic Sea Area. This regulation at present only exists as a conceptual basis, however, and well-defined measures are still to be decided. The contracting parties merely have undertaken to aim at adopting appropriate guidelines and criteria.
Reporting and Exchange of Information In another new departure, the 1992 Helsinki Convention requires the contracting parties to report regularly to the Commission on the legal and other measures taken to implement the Convention's provisions and the recommendations adopted thereunder. With this regulation, reporting as already practised for recommendations is better defined and is made binding under international law. The Commission now has a valuable instrument to confirm the implementation of the Convention and its decisions. In the interests of greater openness, the contracting parties shall ensure that information is made available to the public on the condition of the Baltic Sea, measures taken or planned, permits issued, the results of water sampling and water quality objectives. As this obligation can, however, conflict with the interests of the protection of information, the provisions of the Convention do not affect the right or obligation of any contracting party under its national law to protect information related to intellectual property including industrial and commercial secrecy, national security and the confidentiality of personal data.
Helsinki Commission For the purpose of co-operation under the Helsinki Convention, the Baltic Marine Environment Protection Commission (Helsinki Commission) has been established, consisting of representatives of all contracting parties. Meetings are held at least once a year. The chairmanship is given to each contracting party in alphabetical order. The duties of the Commission are to continuously observe the implementation of the Convention, to make recommendations on measures relating to the purposes of the Convention, to define criteria and objectives, and to promote dose co-operation with other bodies.
Volume 29/Numbers 6-12
The secretariat of the Commission consists of the executive secretary as the chief administrative official, additional secretaries and the administrative staff. The budget shall be contributed by the contracting parties.
Scientific and Technological Co-operation The Convention dictates that the contracting parties closely co-operate in the scientific and technological fields. Wide-ranging activities have long been common, for example the joint scientific monitoring programmes, quality status assessments and co-ordinated research programmes. Difficulties still arise, however, as research projects in territorial waters, the continental shelf and the fishing or exclusive economic zone must often be preceded by lengthy procedures to obtain permission from the coastal states. Although hardly promising, a first attempt at simplifying the procedure has been made by introducing a clause stating that the contracting parties will harmonize their policies with respect to permission procedures.
Final Provisions The final provisions dealing with amendment procedures, ratification, entry into force and withdrawal correspond to similar conventions. The revised Convention will enter into force after ratification or approval by the European Community and all the signatory states bordering the Baltic Sea. As the 1974 Convention will cease to apply when its revised version comes into force, transitional regulations shall ensure continuity of the work of the Helsinki Commission.
Conclusions The 1992 Helsinki Convention in many respects contains significant improvements compared with its 1974 predecessor. Account is taken on a large scale of the findings and experiences of the Helsinki Commission as well as of new ecopolitical developments since then, thereby removing the original's weak points. This is the case with the inclusion of internal waters and the extension of preventive measures to the whole of the catchment area. The firm establishment for the first time of fundamental ecopofitical principles points the way forward for international environmental law in general. The fact that environmental protection regulations for offshore activities have been made more concrete must be viewed as a considerable improvement.
The inclusion of a regulation for nature conservation and biodiversity encourages moves to take a more comprehensive view of environmental protection. In addition, the requirement to collect data and to report and exchange information will ensure greater openness both for the Commission and the public and will improve the basis upon which findings are made. Despite the above, it is considered that some points require attention. It would have enhanced the Convention's comprehensiveness if individual land-based pollution sources had been identified and corresponding regulations introduced in addition to general principles and criteria. For instance, regulations of a more concrete nature are needed to ensure the reduction of airborne inputs which are a major source of marine pollution. Among diffuse sources, agriculture is prominent and it would have been beneficial if more detailed reduction measures had been formulated. Another field of environmental concern is fishing. The marine environment is very much adversely affected by over-fishing and harmful fishing methods. Therefore it would also have been desirable to introduce protective measures for fisheries. It is concluded that the revised Helsinki Convention is an effective legal instrument that allows energetic protective measures. Its success will depend on how promptly the necessary measures are taken. It will be one of the Commission's main tasks to intensify its supervision of the implementation of the Convention. The reporting obligations of the contracting parties will enable the Commission to do so. Its effectiveness would doubtless have increased had it been given powers of inspection and control, but this appears to be incompatible with member states' concepts of sovereignty. The 1992 Helsinki Convention was adopted together with the Environmental Joint Action programme, which illustrates that lasting improvements in the quality of the Baltic Sea depend ultimately not so much on international regulations as on heavy investments--particularly in Estonia, Latvia, Lithuania, Poland and Russia. A conservative estimate of the cost of the programme over the next 20 years is 18 x 109 ECU. Its success thus depends on the mobilization of the necessary funds. If they are not made available, international obligations, principles and criteria alone will not solve the environmental problems. This point illustrates that progress in protecting the Baltic Sea ultimately depends on factors outside the scope of the Convention. However, the Convention's importance as a modem, progressive legal instrument which can further the protection of the marine environment is not diminished.
621