2.5 PREVENTION OF MARINE POLLUTION

Introductory note
Having adopted Recommendation XV-3, setting out mandatory rules relating to the disposal of waste at land based facilities, the Consultative Parties, at the same meeting, went on to address the question of pollution of the marine environment from ships operating in the Antarctic Treaty area. Again, a Recommendation (XV-4) in mandatory terms was adopted. A notable feature of this Recommendation is the manner in which it takes account of rules relating to marine pollution that have been generated in other fora (primarily the IMO) and integrates them with specific rules for the Antarctic. This Recommendation was taken as the basis for Annex IV to the Protocol.
2.5.1 Antarctic Treaty Recommendations

XV-4. Human impact on the Antarctic environment. Prevention, control and response to marine pollution

 The Representatives,
Recalling Recommendations IX-6 and X-7 on oil contamination of the Antarctic marine environment;
Recognizing the special characteristics of the Antarctic Treaty area and the particularly hazardous nature of the area for vessel operations;
Recognizing further that the Antarctic derives much of its scientific importance from its uncontaminated condition;
Reaffirming their commitment to the avoidance and reduction of the contamination of the sea by oil and other pollutants;
Noting the framework provided by the 1982 United Nations convention on the Law of the Sea in its Part XII and other relevant international agreements for the protection and preservation of the marine environment;
Bearing in mind the need to take measures relating to the design, construction, manning, and equipment of vessels engaged in or supporting Antarctic operations to avoid marine pollution from vessels;
Recognizing further the importance of the expeditious exchange of information on weather and ice conditions in the Antarctic Treaty area and with respect to accidents and emergency response efforts;
Mindful of the need for accurate and up-to-date charting of the Antarctic Treaty area; and
Acknowledging the value of cooperation directly and through appropriate international organizations in efforts to avoid and respond to marine pollution incidents;
Recommend to their Governments that:
1 They approve and take measures within their competence necessary to ensure compliance with:

a. a prohibition within the Antarctic Treaty area on all intentional discharges from vessels into the marine environment which include oil;
b. a prohibition within the Antarctic Treaty area on disposal from vessels into the marine environment of all plastics and garbage other than food wastes, provided that disposal of food wastes should be made as far as practicable from land, but in no event within 12 nautical miles of land or ice shelves; and
c. a prohibition within the Antarctic Treaty area on discharge of sewage from vessels within 12 nautical miles of land or ice shelves.
 In implementing these provisions, they give due consideration to the need to avoid detrimental effects on dependent or associated ecosystems outside the Antarctic Treaty area.
2. They take measures within their competence necessary to ensure compliance by all their vessels engaged in or supporting Antarctic operations with the relevant provisions of the following conventions:

a. the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Dumping Convention);
b. the International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 relating thereto, with Annexes I, II, III, and V (MARPOL 73/78);
c. the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers with Annex, 1978, (the STCW Convention);
d. the International Convention for the Safety of Life at Sea, 1974, and the Protocol of 1978 relating thereto (SOLAS);
e. the International Convention on Load Lines, 1966 (the Load Lines Convention); and
f. the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS).
 3. When such vessels are warships, naval auxiliaries or other state-owned or state-operated vessels used, for the time being, only on government non-commercial service, they shall take appropriate measures not impairing operations or operational capabilities of such vessels to ensure that they act in a manner consistent so far as is reasonable and practicable with these provisions.
4. If they are not parties, they become parties to the conventions listed in paragraph 2 (a) - (f).
5. Those that are parties to MARPOL 73/78 consider taking actions within the International Maritime Organization (IMO) to secure designation of the waters south of 60° South Latitude as a special area under Annexes I and V of that Convention, provided that the establishment of reception facilities otherwise called for in these Annexes not be considered either necessary or desirable in the Antarctic Treaty area.
6. They establish contingency plans for marine pollution response in Antarctica, including contingency plans for vessels operating in the Antarctic Treaty area, particularly vessels carrying oil. To this end they shall:
a. cooperate in the formulation and implementation of such plans and in responding to pollution emergencies in Antarctica; and
b. draw on the advice of the IMO and other international organizations, as appropriate.
 7. They convene, in accordance with Recommendation IV-24, a meeting of experts to consider and provide advice on the establishment of contingency plans for marine pollution response and additional requirements to reduce and prevent pollution of the Antarctic marine environment, giving due consideration to the need to avoid detrimental effects on dependent and associated ecosystems outside the Antarctic Treaty area.
8. They keep under continuing review measures to reduce and prevent pollution of the Antarctic marine environment.

Extract from Report of XVth ATCM

Marine Pollution
89. The Meeting welcomed the papers presented by the United States, Uruguay, and the Federal Republic of Germany on this issue and adopted Recommendation XV-4 on the Prevention, control, and response to marine pollution. The Recommendation calls for Governments to take measures within their competence to prohibit within the Antarctic Treaty area certain discharges and disposal from vessels and to ensure that their vessels comply with the relevant provisions of specified international conventions on vessel safety and pollution control. It also calls upon them to become parties to these Conventions if they are not. It calls in addition for the establishment of contingency plans for marine pollution response and sets forth a procedure for doing so.
90. In addressing the issue of vessels subject to the prohibitions referred to in the Recommendation (paragraph 1), the Meeting took note of the difficulties and hazards posed for small yachts in meeting the requirements in paragraphs 1 (b) and 1 (c) of having to dispose of food wastes and sewage beyond 12 nautical miles of land or ice shelves. In light of this, it decided that these provisions could be interpreted to provide a limited exception for such vessels, while affirming that every effort should be made to comply with them.
91. In dicussing the sovereign immunity clause in paragraph 3, some Representatives expressed a preference for limiting the scope of the potential exception provided by this clause. Others expressed difficulty in doing so, and noted that the clause parallels similar provisions in a number of international conventions governing vessels. The Meeting affirmed that the provisions of the recommendation should apply to all vessels and all agreed to make every effort to ensure that their vessels with sovereign immunity engaged in or supporting Antarctic operations act in a manner consistent with these provisions.
92. The prohibitions contained in the Recommendation XV-4 on discharge and disposal of certain wastes within the Antarctic Treaty area are consistent with designation of the area as a special area under the 1973/78 International Convention for the Prevention of Marine Pollution from Ships. Therefore, the Meeting agreed that the Contracting Parties to the Antarctic Treaty that are also parties to MARPOL 73/78 consider formally proposing the designation of the Antarctic Treaty Area as a special area under MARPOL 73/78 within the International Maritime Organization (IMO). Nevertheless, the Representatives agreed in the Recommendation that the establishment of waste reception facilities for vessels in the Antarctic Treaty area would not be desirable, because they wished to avoid transferring the problem of waste disposal from vessels to Antarctic stations and facilities. They noted that this could place a significant burden upon Governments adjacent to the Antarctic Treaty area in providing such reception facilities. In light of this fact, therefore, they agreed that flag states of vessels concerned should consider means of assisting at arriving at an acceptable solution. It was noted that commercial operators might also be interested in providing solutions.
93. The Meeting drew attention to the linkages between the issue of marine pollution and other issues on the agenda of the Consultative Meeting, including waste disposal, hydrographic charting and the provision and improvement of hydrometeorological services for vessels and aircraft safety. It also noted that it would be helpful if Governments informed each other of steps taken to implement the provisions of Recommendation XV-4.
94. In relation to future work on contingency plans for marine pollution response, the Meeting noted that the host government of the next Consulative Meeting should initiate at an appropriate time the consultations concerning the date and place for the meeting of experts called for in paragraph 7 of the Recommendation. The expert from the IMO informed the Meeting that the IMO Assembly had agreed to provide assistance to Governments in the development of contingency plans and establishment of reception facilities. The view was expressed that care should be taken to avoid excessive demands on Antarctic experts by coordinating the timing and location of such meetings.
95. In looking at future work, there was agreement that issues related to liability for marine pollution damage warranted attention, as well as consideration of the relevance of additional international conventions to questions of marine pollution in Antarctica. In this context, specific mention was made of further restrictions on dumping and incineration at sea in the Antarctic Treaty area, pursuant to the London Dumping Convention; considering designation of the Antarctic Treaty area as a special area under Annex II of MARPOL 73/78 on transport of chemicals in bulk; and the 1989 Convention on Control of Transboundary Movement of Hazardous Wastes and Their Disposal. Attention was called to the hazards of vessel operation in the Antarctic Treaty area and the view expressed that it would be useful to consider special requirements for vessel construction in the future.

Extract from Report of XVIth ATCM

 (68) It was noted that the Antarctic Treaty Consultative Parties have adopted Recommendation XV-3, paragraphs 18, 19 and 21, which address the topic of marine dumping. Notwithstanding that most Antarctic Treaty Consultative Prties are members of the International Convention for the Prevention of Marine Pollution by the Dumping of Wastes and other Matter, it was noted that the problem of marine dumping should be kept in mind and that particular attention should be paid to it in further considerations relating to marine pollution as required by Recommendation XV-4.
(70) Concerning the item on marine pollution, the Meeting welcomed the timely and important work by the Standing Committee on Antarctic Logisitics and Operations (SCALOP) on the prevention of oil pollution by national Antarctic programmes and the continuing development of a comprehensive format for oil spill contingency plans in the Antarctic. However, the Meeting recognised that other wider marine pollution issues in Aantarctica still had to be addressed fully.
(71) The Meeting noted the provisions of Recommendaton XV-4(7) which called for the Parties to convene a meeting of experts to review, consider and provide advice on the prevention of marine pollution in the Antarctic Treaty Area. The Meeting agreed to encourage SCALOP to convene the meeting of experts in close consultation with the Marine Environment Protection Committee (MEPC) of the IMO. The MEPC has international and long-established experience with the necessary procedures required to prevent and combat marine pollution.
(72) It was agreed that the Meeting of Experts should consider the following topics:

a. review of the work carried out by SCALOP on the prevention of oil pollution and the development of oil spill contingency plans in Antarctica and their application to non-governmental activities;
b. assessment of the environmental effects of marine dumping and the disposal of sewage and food wastes into the sea in the Antarctic Treaty Area, and review of the best practicable means to prevent or reduce such pollution;
c. investigation of the best practicable means to monitor marine pollution in the Antarctic, particularly as regards compliance with Annex IV of the Protocol on Environmental Protection to the Antarctic Treaty and the proposed amendments for teh designation of the antarctic Treaty Area as a 'Special Area' under Annexes I, II and V of MARPOL 73/78, as well as the establishment of base-line surveillance programmes to quantify actual levels of marine pollution in the Antarctic Treaty Area.

2.5.2 Annex IV to the Protocol on Environmental Protection to the Antarctic Treaty

Prevention of marine pollution

Article 1: Definitions

 For the purpose of this Annex:
a. 'discharge' means any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying;
b. 'garbage' means all kinds of victual, domestic and operational waste excluding fresh fish and parts thereof, generated during the normal operation of the ship, except those substances which are covered by Articles 3 and 4;
c. 'MARPOL 72/78 means the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocol of 1978 relating thereto and by any other amendment in force thereafter;
d. 'noxious liquid substance' means any noxious liquid substance as defined in Annex II of MARPOL 73/78;
e. 'oil' means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined oil products (other than petrochemicals which are subject to the provisions of Article 4);
f. 'oily mixture' means a mixture with any oil content; and
g. ship' means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms.

Article 2: Application

 This Annex applies, with respect to each Party, to ships entitled to fly its flag and to any other ship engaged in or supporting its Antarctic operations, while operating in the Antarctic Treaty area.

Article 3: Discharge of oil

 1. Any discharge into the sea of oil or oily mixture shall be prohibited, except in cases permitted under Annex I of MARPOL 73/78. While operating in the Antarctic Treaty area, ships shall retain on board all sludge, dirty ballast, tank washing waters and other oily residues and mixtures which may not be discharged into the sea. Ships shall discharge these residues only outside the Antarctic Treaty area, at reception facilities or as otherwise permitted under Annex I of MARPOL 73/78.
2. This Article shall not apply to:
a. the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:
i. provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimising the discharge; and
ii. except if the owner or the Master acted either with intent to cause damage, or recklessly and with the knowledge that damage would probably result; or
 b. the discharge into the sea of substances containing oil which are being used for the purpose of combating specific pollution incidents in order to minimise the damage from pollution.

Article 4: Discharge of noxious liquid substances

 The discharge into the sea of any noxious liquid substance, and any other chemical or other substances, in quantities or concentrations that are harmful to the marine environment, shall be prohibited.

Article 5: Disposal of garbage

 1. The disposal into the sea of all plastics, including but not limited to synthetic ropes, synthetic fishing nets, and plastic garbage bags, shall be prohibited.
2. The disposal into the sea of all other garbage, including paper products, rags, glass, metal, bottles, crockery, incineration ash, dunnage, lining and packing materials, shall be prohibited.
3. The disposal into the sea of food wastes may be permitted when they have been passed through a comminuter or grinder, provided that such disposal shall, except in cases permitted under Annex V of MARPOL 73/78, be made as far as practicable from land and ice shelves but in any case not less than 12 nautical miles from the nearest land or ice shelf. Such comminuted or ground food wastes shall be capable of passing through a screen with openings no greater than 25 millimeters.
4. When a substance or material covered by this article is mixed with other such substance or material for discharge or disposal, having different disposal or discharge requirements, the most stringent disposal or discharge requirements shall apply.
5. The provisions of paragraphs 1 and 2 above shall not apply to:
a. the escape of garbage resulting from damage to a ship or its equipment provided all reasonable precautions have been taken, before and after the occurrence of the damage, for the purpose of preventing or minimising the escape; or
b. the accidental loss of synthetic fishing nets, provided all reasonable precautions have been taken to prevent such loss.
 6. The Parties shall, where appropriate, require the use of garbage record books.

Article 6: Discharge of sewage

 1. Except where it would unduly impair Antarctic operations:
a. each Party shall eliminate all discharge into the sea of untreated sewage ("sewage" being defined in Annex IV of MARPOL 73/78) within 12 nautical miles of land or ice shelves;
b. beyond such distance, sewage stored in a holding tank shall not be discharged instantaneously but at a moderate rate and, where practicable, while the ship is en route at a speed of no less than 4 knots.
 This paragraph does not apply to ships certified to carry not more than 10 persons.
2. The Parties shall, where appropriate, require the use of sewage record books.

Article 7: Cases of emergency

 1. Articles 3, 4, 5 and 6 of this Annex shall not apply in cases of emergency relating to the safety of a ship and those on board or saving life at sea.
2. Notice of activities undertaken in cases of emergency shall be circulated immediately to all Parties and to the Committee.

Article 8: Effect on dependent and associated ecosystems

 In implementing the provisions of this Annex, due consideration shall be given to the need to avoid detrimental effects on dependent and associated ecosystems, outside the Antarctic Treaty area.

Article 9: Ship retention capacity and reception facilities

 1. Each Party shall undertake to ensure that all ships entitled to fly its flag and any other ship engaged in or supporting its Antarctic operations, before entering the Antarctic Treaty area, are fitted with a tank or tanks of sufficient capacity on board for the retention of all sludge, dirty ballast, tank washing water and other oil residues and mixtures, and have sufficient capacity on board for the retention of garbage, while operating in the Antarctic Treaty area and have concluded arrangements to discharge such oily residues and garbage at a reception facility after leaving that area. Ships shall also have sufficient capacity on board for the retention of noxious liquid substances.
2. Each Party at whose ports ships depart en route to or arrive from the Antarctic Treaty area undertakes to ensure that as soon as practicable adequate facilities are provided for the reception of all sludge, dirty ballast, tank washing water, other oily residues and mixtures, and garbage from ships, without causing undue delay, and according to the needs of the ships using them.
3. Parties operating ships which depart to or arrive from the Antarctic Treaty area at ports of other Parties shall consult with those Parties with a view to ensuring that the establishment of port reception facilities does not place an inequitable burden on Parties adjacent to the Antarctic Treaty area.

Article 10: Design, construction, manning and equipment of ships

 In the design, construction, manning and equipment of ships engaged in or supporting Antarctic operations, each Party shall take into account the objectives of this Annex.

Article 11: Sovereign immunity

 1. This Annex shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with this Annex.
2. In applying paragraph 1 above, each Party shall take into account the importance of protecting the Antarctic environment.
3. Each Party shall inform the other Parties of how it implements this provision.
4. The dispute settlement procedure set out in Articles 18 to 20 of the Protocol shall not apply to this Article.

Article 12: Preventive measures and emergency preparedness and response

 1. In order to respond more effectively to marine pollution emergencies or the threat thereof in the Antarctic Treaty area, the Parties, in accordance with Article 15 of the Protocol, shall develop contingency plans for marine pollution response in the Antarctic Treaty area, including contingency plans for ships (other than small boats that are part of the operations of fixed sites or of ships) operating in the Antarctic Treaty area, particularly ships carrying oil as cargo, and for oil spills, originating from coastal installations, which enter into the marine environment. To this end they shall:
a. co-operate in the formulation and implementation of such plans; and
b. draw on the advice of the Committee, the International Maritime Organization and other international organizations.
 2. The Parties shall also establish procedures for cooperative response to pollution emergencies and shall take appropriate response actions in accordance with such procedures.

Article 13: Review

 The Parties shall keep under continuous review the provisions of this Annex and other measures to prevent, reduce and respond to pollution of the Antarctic marine environment, including any amendments and new regulations adopted under MARPOL 73/78, with a view to achieving the objectives of this Annex.

Article 14: Relationship with MARPOL 73/78

 With respect to those Parties which are also Parties to MARPOL 73/78, nothing in this Annex shall derogate from the specific rights and obligations thereunder.

Article 15: Amendment or modification

 1. This Annex may be amended or modified by a measure adopted in accordance with Article IX (1) of the Antarctic Treaty. Unless the measure specifies otherwise, the amendment or modification shall be deemed to have been approved, and shall become effective, one year after the close of the Antarctic Treaty Consultative Meeting at which it was adopted, unless one or more of the Antarctic Treaty Consultative Parties notifies the Depositary, within that time period, that it wishes an extension of that period or that it is unable to approve the measure.
2. Any amendment or modification of this Annex which becomes effective in accordance with paragraph 1 above shall thereafter become effective as to any other Party when notice of approval by it has been received by the Depositary.

Next Section - 2-6