Committee Reports > List of Committees > Joint > 1979 > Committee on the Secondary Legislation of the European Communities > Report No. 38 - Community Action in regard to Marine Pollution arising from the Carriage of Oil

REPORT

A. INTRODUCTION

European Council’s Decision

1. At its meeting in Copenhagen on 7th and 8th April, 1978 the European Council decided that the prevention and combating of marine pollution particularly by hydrocarbons should be a major Community objective. It invited the Council acting on proposals from the Commission, and the Member States to take action within the Community and to adopt common attitudes within international bodies to secure (i) implementation of existing international rules particularly in regard to minimum standards for operation of ships, (ii) the prevention of accidents by co-ordinated action in regard to compulsory shipping lanes and control of sub-standard vessels, and (iii) effective measures to combat pollution.

2. In this report the Joint Committee deals with the measures taken and the proposals made within the European Economic Community since the Copenhagen summit to deal with marine pollution arising from the carriage of oil. The Appendix to this report contains brief explanatory notes on the various international conventions and agreements which are either mentioned in the report itself or referred to by the Commission as being relevant.

Treaty Provisions

3. A reference to the relevant Treaty provisions is necessary in order to clarify the right of the Joint Committee to examine this topic under its terms of reference.

4. By virtue of Article 84 (1) the EEC Treaty provisions relating to transport apply only to transport by rail, road and inland waterway. However, under Article 84 (2) “the Council may, acting unanimously, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport”. Measures relating to sea and air transport have not, therefore, to be based on Commission proposals and the Council can (and have)adopted measures under Article 84 which the Joint Committee do not have and are not entitled to have an opportunity of examining in draft.

5. The matters covered in this memorandum are, however, regarded as covered by the Joint Committee’s terms of reference because (a) the Commission’s Communication can be regarded as containing guidelines for legislation and as far as the Committee’s terms of reference are concerned it seems irrelevant that the legislation may be based on Article 84, (b) measures actually adopted under Article 84 become “Acts of the institutions” which are within the terms of reference and (c) draft measures under Article 84 have been put forward by the Commission at the request of the Council and the fact that the Commission is not acting out of a legal obligation seems also irrelevant to the terms of reference.

B. COMMISSION’S ANALYSIS

International Action

6. In response to the invitation of the European Council the Commission sent a Communication to the Council of Ministers on the subject on 27th April, 1978 [R/1004/78]. It drew attention to a complex set of relevant international rules and regulations on (a) the prevention of pollution by tankers, (b) the safety of ships and navigation (which are not limited to the specific problem of the carriage of oil) and (c) liability and compensation for damage caused by accidental pollution. As a succession of tanker accidents and increasing marine pollution show, these international rules are ineffective. The Commission attributes this to lack of enforcement and to gaps in the rules themselves. In particular, the Commission points to (i) the fact that most of the relevant international conventions and agreements are not in force because they have not been ratified by enough States, (ii) the lack of adequate control machinery and real international collaboration, (iii) the inadequacy of facilities available and the absence of any world-wide convention for organising emergency facilities, (iv) the short-comings which arise from the responsibility being on the flag state for ensuring compliance of ships with international standards, (v) the absence of a system to enable coastal states to control the navigation of ships and (vi) the need for the improvement of crew standards and qualifications.

Constraints on the Community

7. The Commission sees considerable economic and legal constraints on the Community taking measures concerning safety at sea and the prevention of pollution. It does not, however, think that these constraints should stand in the way of a package of Community measures being adopted.

8. The Community’s dependence on oil imports gives it an interest in keeping down freight costs. Moreover the Community oil tanker fleet represents about 20 per cent of the world fleet and carries not only Member States’ supplies but also 17 per cent and 9 per cent respectively of US and Japanese imports. Unilateral action by the Community to raise standards could damage its trade. The Commission therefore argues that action in this area should be taken either within international organisations or in liaison with other OECD members, in particular the USA and Japan.

9. There are also legal constraints arising out of the question of jurisdiction of riparian States in international law, a matter which is being dealt with by the Third Conference on the Law of the Sea. The text being negotiated at the Conference would permit coastal States to regulate innocent passage through their territorial waters in relation to such matters as safety of navigation, control of traffic, conservation of environment and prevention of pollution. It would also allow coastal States to control pollution in accordance with international standards in the 200-mile economic zone. In the case of pollution arising from or threatened by an accident at sea all States have rights outside their territorial waters to protect their coasts and interests.

10. Of the Member States only France has established a 200-mile zone with jurisdiction over pollution; the others have only a 200-mile fishing zone. The territorial waters of the Member States vary from 3 to 12 miles.

Commission’s Proposals

11. Notwithstanding the constraints the Commission in its Communication of 27th April, 1978 suggested the following action:—

(a)a Community action programme,

(b)Accession by Community to the Protocol to the Barcelona Convention on pollution in the Mediterranean and the opening of negotiations with the signatories to the Bonn Agreement regarding pollution in the North Sea,

(c)Ratification by Member States of the MARPOL and SOLAS Conventions with their additional protocols and the ILO Convention No. 147,

(d)Extension to 12 miles of territorial seas of all Member States,

(e)Adoption by Community of Administrative Agreement of eight North Sea countries relating to standards on vessels,

(f)Joint action by Member States within IMCO to (i) improve system of shipping lanes, (ii) enhance safety of navigation, (iii) establish a system of mutual assistance and (iv) secure implementation of the convention on training of seafarers and issue of certificates.

Since April the Council has decided on the measures indicated below.

C. COMMUNITY ACTION

Council Meeting (Foreign Affairs), June, 1978

12. The Council adopted the following:—

A Community action programme which is concerned exclusively with studies to be undertaken by the Commission.

Council Meeting (Transport), June, 1978

13. The Council adopted the following:—

(i)Recommendation (which is not legally binding) that Member States which have not already done so should ratify the MARPOL and SOLAS Conventions with the additional protocols and ILO Convention No. 147, and

(ii)A statement on the strengthening of the effectiveness of the inspection of ships and crews.

Council Meeting (Transport), November, 1978

14. The Council adopted the following:—

(a)Recommendation that all Member States sign and ratify the 1978 International Convention on the Training, Certification and Watch-Keeping of Seafarers.

(b)Directive concerning pilotage of vessels by deep-sea pilots in the North Sea and the English Channel,

(c)Directive concerning the minimum requirements for certain tankers entering or leaving Community ports, and

(d)Decision that Ireland and Italy accede to the Administrative Agreement of 2nd March, 1978 between certain Maritime Authorities on the maintenance of standards on merchant ships.

Council Meeting (Environment), December, 1978

15. The Council agreed in principle to decisions on

—the authorisation to be given to the Commission to negotiate the Community’s accession to the Bonn Agreement of 9th June, 1969 for co-operation in dealing with pollution of the North Sea by oil,

—the conclusion of the protocol to the Barcelona Convention for the protection of the Mediterranean Sea against pollution of 16th February, 1976, concerning co-operation in combating pollution by oil and other harmful substances in cases of emergency.

It instructed the Permanent Representatives Committee to finalise the necessary texts so that a formal decision could be taken as soon as possible.

General Views of Joint Committee

16. The Joint Committee naturally welcomes the decision of the European Council to make the prevention and combating of marine pollution particularly by hydrocarbons a major Community objective. However it believes that the problem has now become so acute that what is needed is not merely a commitment to policies but effective action to deal with the problem. Ideally the problem should be tackled at international level but the history of the efforts to get appropriate standards adopted through the agency of IMCO is not encouraging. The Committee therefore considers that the Commission should be encouraged, as an initial step, to incorporate internationally agreed rules in proposals for Community legislation. Ireland being particularly vulnerable has a vital interest in seeing that the problem is successfully tackled and it seems to the Committee that it is imperative that we ratify the relevant international conventions so as to strengthen our case for the adoption of appropriate Community legislation.

Combating Pollution

17. The Joint Committee agrees with the Commission that whereas the solution for the overall problem must be found on an international basis, the Community should not be inhibited from taking such action as it can on its own initiative. Progress towards formulating appropriate internationally acceptable rules is necessarily a slow process and, as the Commission points out, a succession of tanker accidents and increasing marine pollution have highlighted the failure effectively to enforce the international conventions and agreements that do exist. In the Joint Committee’s view it is particularly regrettable that there is no world-wide convention for organising emergency facilities to deal with major oil spills. It notes, however, that regional agreements provide for co-operation between coastal States in dealing with oil pollution in the Baltic, Mediterranean and North Sea. In the Committee’s view, consideration should be given to the feasibility of the Community taking the initiative in organising emergency facilities in other Community waters. In this connection the Committee believes that it is important that there should be agreement within the Community on the appropriate measures for dealing with oil spillages. In the interests of fishing the Committee is advised that mechanical removal or dispersal rather than the use of chemicals should be favoured wherever possible.

Community Action Programme

18. The Community action programme adopted by the Council in June, 1978 provides for a series of preliminary studies to be undertaken by the Commission to identify the measures needed at Community level to control and reduce pollution of the sea by oil. The Joint Committee is advised that the benefits to Ireland from these studies could be considerable in terms of possible availability of technical assistance from other Member States in dealing with a major oil spillage. However, the Committee would prefer the emphasis to be placed on research into the prevention of oil spills from either ships or offshore exploration rather than on the scavenging arrangements following spillage.

Ratification of Conventions

19. In the Commission’s view the solution worked out at international level particularly in the additional Protocols to the MARPOL and SOLAS Conventions are technically a match for the problems of oil pollution. In recommending that the Member States, which had not already done so, should ratify the SOLAS and MARPOL Conventions with their additional Protocols the Council agreed that they “can make a substantial contribution”, the former “towards improving both technical and welfare standards affecting, respectively, the safety of ships and their equipment and the living and working conditions of their crews” and the latter “towards protecting the marine environment against pollution by ships, particularly oil tankers”. Ratification by the Member States will not, of itself, be sufficient to bring these Conventions into force internationally. However, the Commission is examining the possibility of adopting at Community level the provisions of the Conventions but presumably will not come forward with specific proposals unless all Member States ratify them.

20. In these circumstances the Joint Committee recommends that Ireland ratify both Conventions and the additional Protocols. The Committee understands that as far as SOLAS is concerned, ratification should not present undue difficulty but implementing legislation will be necessary. As far as MARPOL is concerned the Committee is advised that the technological equipment to enable effect to be given to certain provisions has not yet been fully developed. However, the Committee finds it difficult to accept that the Council would have agreed to recommend ratification unless it was satisfied that the technological difficulties could be overcome.

21. The International Labour Organisation Convention No. 147 concerning minimum standards in merchant ships is an umbrella Convention involving the ratification of a number of subsidiary ILO Conventions, a number of which have already been ratified by Ireland. The Joint Committee understands that Ireland has already indicated in Council that she will accede to the Administrative Agreement of 2nd March, 1978 between eight North Sea countries on the maintenance of standards on merchant ships and that this necessarily involves ratification of ILO Convention No. 147. The Committee trusts therefore that preparation of the legislation necessary to implement the Convention will be proceeded with quickly. It understands that a Certification of Seamen Bill will shortly be introduced in the Dáil to enable one of the subsidiary ILO Conventions to be ratified. The Committee is also informed that the enactment of this Bill should enable Ireland to ratify the International Convention on the Training, Certification and Watch-keeping of Seafarers. This Convention seeks to bring the training and certification of seamen on a worldwide basis up to the highest generally accepted international standards and the Committee is advised that Irish standards are already as high as those provided for in the Convention.

22. In regard to the Bonn Agreement of 1969 and the Protocol to the Barcelona Convention of 1976 the former, which concerns cooperation in dealing with pollution of the North Sea by oil, is of more direct interest to this country. Ireland has already been granted observer status at meetings held under this agreement. The Committee understands that the Council’s approval merely gives the Commission a mandate to negotiate Community accession and to come back to the Council with the results of these negotiations. In regard to the Protocol to the Barcelona Convention, which concerns co-operation in combating pollution by oil and other harmful substances in the Mediterranean Sea, the Committee is informed that the Commission is empowered to put forward the Community position at meetings of the contracting parties, in accordance with such directives as the Council may give it. It understands that the Commission has undertaken to consult the Council before entering into any financial commitment going beyond a contribution to the secretarial costs. These assurances were sought to guard against the possibility that Community accession might involve the Community in a financial commitment from which Ireland would derive no direct benefit.

Other Community Measures

23. The Commission has made a proposal for a Council Decision concerning procedures for ship inspection [R/2928/78] which aims to harmonise the inspection of ships in all Community ports by making compulsory the application within the Community of Resolutions A321 (IX) and A391 (X) of the Inter-Governmental Maritime Consultative Organisation (IMCO). Resolution A321 (IX) recommends procedures for the port inspection of ships in accordance with the provisions of the International Convention for the Safety of Life at Sea, 1960, and the International Convention on Load Lines, 1966. Both Conventions have been ratified by this country and the Joint Committee is advised that the procedures set out in the Resolution are already being implemented. Resolution A391 (X) recommends procedures for the control of discharges under the International Convention for the Prevention of Pollution of the Sea by Oil, 1954 as amended in 1962 and 1969. The Convention and amendments have been ratified by this country. The Committee is, however, advised that legislation may be required to ensure that the procedures set out in the appendix to the Resolution for the port inspection of tankers, are carried out.

24. Member States are obliged to comply with the Council Directive concerning minimum requirements for certain tankers entering or leaving Community ports by 1st January, 1980. The Directive stipulates that oil, gas and chemical tankers of 1,600 gross tons and over entering or leaving ports must contact the competent authorities of the Member State concerned and

—give information on the nature and volume of the cargo

—complete a check list giving the main details of the ship

—use the services of radar and radio stations, and

—report any incident which may affect safety at sea.

The Directive also stipulates that if a Member State becomes aware of a hazard which might affect other Member States it must warn the Member States concerned as quickly as possible. The Joint Committee is informed that many of the requirements of the Directive are normally complied with by vessels entering and leaving Irish ports and that certain others could be met without great difficulty although it appears that legislation may be necessary for the enforcement of some at least of the requirements.

25. The Council Directive concerning pilotage of vessels by deep-sea pilots in the North Sea and the English Channel provides that Member States which are North Sea or English Channel coastal states must take the necessary steps to ensure that ships requiring a pilot in the North Sea and the English Channel may be provided with an adequately qualified pilot and that each Member State shall encourage vessels flying its national flag, who require a pilot in this area, to use only the services of such fully qualified pilots. The Joint Committee is advised that Ireland can comply with the Directive by encouraging Irish vessels utilising the services of the pilots in the North Sea and English Channel area to use fully qualified pilots carrying the necessary certificate of competency.

Extension of Territorial Waters

26. The Joint Committee has been informed that the Commission’s proposal regarding the extension of the territorial seas of all Member States to twelve miles has not yet come before the Council and that progress on the proposal is problematic because of the reservations of one Member State in particular. The extension of the territorial seas to 12 miles would mean amendment here of section 3 of the Maritime Jurisdiction Act, 1959 which establishes the present limit of the territorial sea at three nautical miles and consequently no change is possible without the Houses being given an opportunity of considering the matter. The Joint Committee is advised that extension of our territorial seas, which would impose extra obligations on the State as well as conferring certain rights, has wide implications beyond those of pollution control, such as security, health, customs and fiscal regulations and foreign policy and that domestically there has been no demand for an extension.

27. The question of territorial seas and indeed economic zones will come up if the Third Conference on the Law of the Sea now about to embark on its eighth session in Geneva succeeds in reaching agreement on a Convention clarifying the question of jurisdiction of riparian States.

Acknowledgements

28. The Joint Committee wishes to acknowledge with sincere thanks the substantial assistance it received in considering this matter from the Irish Congress of Trade Unions and also from the Dublin Port and Docks Board. Irish Shipping Limited and the Irish Chamber of Shipping.

Chairman of the Joint Committee.

7th March, 1979.