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Marine Policy 31 (2007) 251–257

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Environmental protection and the freedom of the high seas:The Baltic Sea as a PSSA from a Swedish perspective

Ylva Uggla�

MTM, Man Technology Environment Research Centre, Orebro University, SE-701 82 Orebro, Sweden

Received 7 April 2006; received in revised form 22 August 2006; accepted 26 August 2006

Abstract

In 2005, the Baltic Sea, except for its Russian waters, was designated as a particularly sensitive sea area (PSSA) by the International

Maritime Organization (IMO). The previous designation of the Western European waters as a PSSA—intensely debated within the

IMO—had repercussions for this process. Reviewing the case exposes the conflict between the fundamental principles, territorial

sovereignty, and freedom of the high seas that international law seeks to balance. Likewise, review indicates that the PSSA concept is

under almost constant reconceptualization as it is put to test in practice.

r 2006 Elsevier Ltd. All rights reserved.

Keywords: Particularly sensitive sea area; The Baltic Sea; Environmental protection

1. Introduction

In recent decades attention has been focussed on theenvironmental protection of the Baltic Sea. Politicians,public authorities, and environmental organizations allportray the Baltic Sea as a unique, fragile, and threatenedinland sea that merits special protection, not least due toincreased Russian oil exports. To this end, the formalconcept of the particularly sensitive sea area (PSSA) hasbeen emphasized as a way to strengthen environmentalprotection in the area.

In 2005 the Baltic Sea, except for its Russian waters, wasdesignated as a PSSA by the International MaritimeOrganization (IMO). The designation was preceded bydiscussions and deliberations within the IMO, primarilyconcerning the size of the proposed area. Consideration ofthe Baltic Sea as a PSSA also prompted internal politicaldebate in Sweden, mainly concerning two questions. Firstwas whether Sweden should await other Baltic Sea states,and then submit a common application to the IMO, orproceed with a unilateral national application for designa-tion of Swedish Baltic waters as a PSSA. Second was

ee front matter r 2006 Elsevier Ltd. All rights reserved.

arpol.2006.08.003

303271.

ess: ylva.uggla@sam.oru.se.

whether or not the proposed associated protective mea-sures (APMs) related to the designation were sufficient.The latter question reveals a significant divergence ofopinion between those who accept the freedom of the highseas as the unyielding basis of the Law of the Sea, andthose who seek to challenge the current order and findways to dislodge this principle.This paper examines the Baltic Sea PSSA process from a

Swedish perspective. This process was influenced by theprevious designation of the Western European waters as aPSSA, a designation that was intensely debated within theIMO, partly because of the size of the area, and partlybecause of the proposed banning of single-hulled tankers[1]. Reviewing the case of the Baltic Sea reveals that thePSSA concept is under almost constant reconceptualiza-tion as it is put to test in practice. Thus, each designation ofa new PSSA functions as part of a continuous trial, testingthe scope and limits of the PSSA concept.The next section of this paper presents an introduction

to the regulation of the sea transport of oil and thePSSA concept. The third section presents the particularcase of the Baltic Sea, including some considerationsregarding the previous designation of the WesternEuropean waters as a PSSA and a review of theSwedish debate. The paper concludes that the boundary

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between the freedom of the high seas and territorialsovereignty will most likely be continuously contested inendeavouring to establish an order that embraces environ-mental protection.

2. Regulation of the sea transport of oil and the notion of

PSSA

The history of civilization has been primarily concernedwith man’s attempts to assert his sovereignty, hismanagement, and the rule of his laws over some 30percent of the earth’s surface—the land masses andcontiguous waters. Now in a single generation we facethe tasks of resolving the legal status of and establishingmanagerial regimes for the other 70 percent of ourplanet—the oceans [2].

1Other international treaties related to the sea transport of oil include

the International Convention on Civil Liability for Oil Pollution Damage

(CLC 1969), the International Convention Relating to Intervention on the

High Seas in Cases of Oil Pollution Causalities (INTERVENTION 1969),

and the International Convention on the Establishment of an Interna-

tional Fund for Compensation for Oil Pollution Damage (FUND 1971).

2.1. International conventions

Shipping is certainly a transboundary activity, in whichvessels in commercial traffic regularly cross nationalboarders, making use of the freedom of the high seas.The history of modern international Law of the Sea may beunderstood as a continual endeavour to balance twofundamental but opposing principles, the first beingterritorial sovereignty and the second being the freedomof the high seas. Throughout history, the boundarybetween the freedom of and sovereignty over the seas hasbeen contested and challenged [3]. Today, these principles,previously established in customary law, are regulated ininternational conventions, the main one being the UnitedNations Convention on the Law of the Sea (UNCLOS),which restricts coastal states’ sovereignty to the outer limitof their territorial sea. Foreign ships, however, enjoy theright of innocent passage through territorial seas. Passagemeans navigation through the territorial sea for thepurpose of: (a) traversing that sea without entering internalwaters or calling at a roadstead or port facility outsideinternal waters; or (b) proceeding to or from internalwaters or a call at such roadstead or port facility (Article18), and it is innocent as long as it is not prejudicial tothe peace, good order or security of the coastal State(Article 19).

In the twentieth century, sea transportation has resultedin obvious pollution, such as oil spills, operationaldischarges and waste dumping. Oil pollution from vesselsis the most apparent and widely publicized source ofmarine pollution, and the international community hasdeveloped a wide range of rules to minimize it. A draftconvention to control oil pollution from ships wasprepared as long ago as 1926; it was, however, neveradopted, and it was not until 1954 that the internationalcommunity succeeded in adopting the first convention onpollution from ships, the International Convention for thePrevention of Pollution of the Sea by Oil (OILPOL).OILPOL was later incorporated into the InternationalConvention for the Prevention of Pollution from Ships

(MARPOL 73/78), one of the most comprehensiveconventions concerning the maritime environment,which entered into force in 1983 [4]. A new article inMARPOL concerned the ‘‘special areas’’ concept, and the1973 Convention identifies the Mediterranean, Black,Baltic, and Red Seas and the Gulfs area as special areas.Special areas are areas considered to be especiallyvulnerable to oil pollution, and in such areas oil dischargesare completely prohibited with just a few and well-definedexceptions.

2.2. The impact of tanker disasters

One of the first oil tanker accidents to attract extensivepublic attention was that of the Torrey Canyon, which ranaground while entering the English Channel in 1967.Repeated tanker accidents have drawn increasing mediaattention and stirred up public opinion, which in turn havecreated a conducive climate for regulating the sea transportof oil. For example, the Exxon Valdez accident in 1989resulted in the Oil Pollution Act of 1990 (OPA 90—whichrequires that all tankers calling in US ports have doublehulls), the International Convention on Oil PollutionPreparedness, Response and Co-operation (OPRC 1990),and the amendment of MARPOL 73/78 to require that allnew oil tankers delivered after July 1996 have doublehulls.1 The so-called Erika packages and EU directivescame as a direct consequence of the sinking of the tankerErika off the coast of France in 1999. Likewise, the loss ofthe Prestige off the coast of Spain in 2002 led to theadoption of a unilateral law that bans single-hulled tankersfrom entering Spanish ports (24343 Royal Decree-Law 9/2002) and repeated demands from EU member states tospeed up the phasing-out of single-hulled tankers, as well asthe application for the designation of the WesternEuropean waters as a PSSA [5]. The Prestige disaster alsohad an immediate and significant impact on Swedishdebate concerning the environmental protection of theBaltic Sea, leading to a call for its immediate designation asa PSSA [6].Although disaster-led, the regulation of the sea trans-

port of oil concerns both safety issues and accidentprevention, and the prevention of discharges duringregular operation. The former concerns the occasionalthough high-profile consequences of the sea transportof oil, whereas the latter concerns ongoing practicesthat actually result in more substantial discharges.Terminal operations, involving the loading or dischargingof oil, are the most common occasions of oil pollution inthe sea [7].

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2.3. The PSSA guidelines

To protect the Baltic Sea environment, internationalconventions have been supplemented by regional agree-ments, such as the 1992 Baltic Sea Convention (whichentered into force in 2000) within the Helsinki Commission(HELCOM). The most recent environmental protectionmeasure put in place in the region is the designation of theBaltic Sea, except for its Russian waters, as a PSSA by theIMO in 2005. Designation as a PSSA is not a regulation inits own right, but serves as a basis for the proposal ofAPMs. The significance of a PSSA designation has beendiscussed, and often the symbolic dimension—i.e. thePSSA designation calls attention to the environmentalsensitivity of the area—is pointed out as its intrinsic value.The adoption of APMs, however, is a crucial part of thePSSA designation [8].

The PSSA concept was introduced to the IMO (then theInter-Governmental Maritime Consultative Organization,IMCO) by the Swedish delegation at the InternationalConference on Tanker Safety and Pollution Prevention in1978 [9]. After some years of deliberation in informalworking groups and expert seminars, in 1991 the IMOAssembly approved the first set of guidelines for identifyingparticularly sensitive sea areas, IMO Resolution A.720(17).The designation of the first PSSA, the Great Barrier Reef,coincided with the adoption of the resolution, but theguidelines were soon criticized for being too extensive andcomplicated, and in 1999 the initial resolution wassupplemented by IMO Resolution A.885(21), containingnew procedures for the identification of PSSAs [10].2

The application to designate the Baltic Sea as a PSSAwas based on yet another resolution, IMO ResolutionA.927(22), which was adopted at the 22nd Assembly in2001. In 2004, at the time of the Baltic Sea application, theguidelines were again called into question. Nevertheless,the Baltic Sea PSSA process has been carried out inaccordance with the then valid IMO Resolution A.927(22),Guidelines for the Designation of Special Areas underMARPOL 73/78 and Guidelines for Identification andDesignation of Particularly Sensitive Sea Areas, whichdefines a PSSA as follows:

A PSSA is an area that needs special protection throughaction by IMO because of its significance for recognizedecological, socio-economic, or scientific reasons andbecause it may be vulnerable to damage by internationalshipping activities (Resolution A.927(22), Annex 2,Section 1.2).

2The designation of the Great Barrier Reef (Australia) in 1990, was

followed by the designation of Sabana-Camguey (Cuba) in 1997, Malpelo

Island (Colombia), the Florida Keys (the USA), and the Wadden Sea

(Denmark, Germany, and the Netherlands) in 2002, Paracas National

Reserve (Peru) in 2003, the Western European Waters in 2004, and with

the Baltic Sea (Denmark, Estonia, Finland, Germany, Latvia, Lithuania,

Poland, and Sweden), the Canary Islands (Spain), the Galapagos Islands

(Ecuador), and the extension of the existing Great Barrier Reef PSSA to

include the Torres Strait in 2005 (IMO 2006, www.imo.org).

Under the PSSA guidelines Annex 2, Section 6.1 the APMsare limited to actions within the scope of the IMO. In theguidelines it is stated that [11]:

(1)

The application should propose the APMs which areavailable through IMO and show how they provide theneeded protection from the threats of damage posed byinternational maritime activities occurring in andaround the area:(a) The application should identify the proposed

measures which may include:(i) any measure that is already available in an

existing instrument; or(ii) any measure that does not yet exist but that

should be available as a generally applicablemeasure and that falls within the competence ofIMO; or

(iii) any measure proposed for adoption in theterritorial sea or pursuant to Article 211(6) ofthe United Nations Convention on the Law ofthe Sea.

2.4. The designation of the Western European waters as a

PSSA

Ever since the approval of the first guidelines, the PSSAconcept has been under continuous, often contentiousdiscussion. The aforementioned application for the Wes-tern European waters to be designated as PSSA aroused itsshare of opposition. In this case, two main issues weredisputed: the first being the size of the proposed area, andthe second the legal basis of the proposed ban on single-hulled tankers carrying heavy fuel oil—a proposal whichwas later withdrawn. The controversial proposal to ban thecarriage of heavy fuel oil in single-hulled tankers was metwith resistance because it was presumed to violate thefreedom of innocent passage and the freedom of the highseas, and thus was not a measure within the scope of theIMO [12]. The Western European case can thus be seen asan attempt to challenge the principle of the freedom of thehigh seas, thereby giving priority to environmental protec-tion and seeking to extend national and regional authorityin the area.In response to the Western European application,

Liberia, Panama, the Russian Federation, and severalindustrial-sector non-governmental observers submittedproposals to the 51st Meeting of the Marine Environ-mental Protection Committee, held in March 2004 (MEPC/51) commenting on the guidelines. They stated, forexample, that the PSSA concept ought to be reserved formore restricted areas with unique ecosystems. According tothe proposal from Liberia, Panama, and the RussianFederation, ‘‘the PSSA concept is only relevant if appliedin geographically limited sea areas with unique ecosystemsand not the wide geographical regions envisaged in theWestern European PSSA’’ [13]. The MEPC/51, however,

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stressed that there is no legal basis for such a statement.The proposal also called for the suspension of considera-tion of the then currently proposed PSSAs (the WesternEuropean waters, the Torres Strait, the Baltic Sea, theCanary Islands, and the Galapagos Island PSSAs) and anyPSSA proposals under development. The MEPC/51,however, dismissed this request, concluding:

Suspension of consideration of current and new PSSAproposals would set a dangerous precedent. It would becontrary to MEPC practice and tradition of respect forthe Resolutions of the Committee and the Assembly. Itwould be a step backwards in MEPC’s work for saferoceans and cleaner seas. It would further signal asignificant step back from the gains made by the IMO inthe past decade to adopt a precautionary and integratedapproach to protection of the marine environment andlead to questions within the international community asto IMO’s commitment to marine environmental protec-tion [14].

At the MEPC/52, held in October 2004, the guidelineswere again discussed, and after lively debate the MEPCagreed to review the PSSA guidelines, ‘‘with the objectiveof clarifying and, where appropriate, strengthening, thePSSA guidelines’’ [15]. The proposed amendments con-cerned: (i) the criteria for designation, (ii) the need forapplicants to establish that the identified vulnerability willbe addressed by the APMs, (iii) the necessity to establish alegal basis for the APMs, and (iv) various procedural issues[16]. The revised guidelines, Resolution A.982(24), wereadopted at the 24th Assembly in December 2005.

3. The Baltic Sea as a PSSA from a Swedish perspective

Reviewing the Baltic Sea as a PSSA, we again see tankeraccidents functioning as a catalyst for increased environ-mental protection and stricter regulation. In response tothe collision between the Baltic Carrier and the Tern inDanish waters in March 2001, HELCOM arranged anExtraordinary Ministerial Meeting in September the sameyear, where the Commission agreed to ‘‘investigate thebenefits from designating parts of the Baltic Sea Area as aparticularly sensitive sea area’’ [17].

3.1. The PSSA process—a review

At the time of the HELCOM meeting, environmentalorganizations, such as the WWF, Greenpeace, and theSwedish Society for Nature Conservation, were campaign-ing for the Baltic Sea to be designated as a PSSA. In a 1997report, the WWF mentions that it might be possible toidentify the Baltic Sea as a PSSA [18]. In 2000, Greenpeacelaunched the Baltic Sea campaign, one of the focus issuesof which was risks associated with the shipping and illegaldumping of oil. In this campaign, Greenpeace treatedPSSA designation as a suitable measure for restrictingunwanted vessel traffic, and contacted representatives of

the parties in parliament trying to persuade them to takeaction in the matter.October 2002 saw the presentation of a number of

motions supported by all parties in parliament, concerningdesignation of the Baltic Sea as a PSSA. Although withsome differences in their claims, the main thrust of themotions was that Sweden should not await HELCOM anda joint decision, since this would be much too slow aprocess. Instead, Sweden should apply to the IMO for thedesignation of Swedish waters in the Baltic Sea as a PSSA,and work in co-operation with HELCOM to induce all theBaltic Sea states to apply for designation of their watersas PSSAs. The main arguments favouring such an applica-tion were the large number of illegal oil discharges,the difficulties of taking legal action against thesedischarges, and the expected increase in oil transport fromRussian ports.The issue was further emphasized in light of the Prestige

disaster. This event had immediate and significant impacton the Swedish debate, and in a parliamentary debate on29 January 2003, parliament concurred with a proposalfrom the Committee of Environment and Agriculture that(1) government should apply as soon as possible to theIMO to designate Swedish waters in the Baltic Sea as aPSSA, (2) government should intensify its work withinHELCOM with the object of accomplishing the designa-tion of the entire Baltic Sea as a PSSA, and (3) effortsconcerning the analysis and proposal of protectivemeasures ought to be prioritized [19].At this time, the Swedish Maritime Administration was

already working, via a Swedish governmental commission,on investigating the conditions of the designation of theBaltic Sea as a PSSA. In its March 2003 report, theSwedish Maritime Administration stated that: (1) designa-tion of the Baltic Sea as a PSSA would allow theintroduction of three kinds of protective measures: restric-tions concerning discharges, routing systems, and pilotage;(2) an individual Swedish application to the IMO wouldprobably be met with resistance; and (3) according to theHELCOM Copenhagen Declaration of 2001, the partiesagreed to investigate the benefits of designation of theBaltic Sea as a PSSA, an effort that should be concluded bythe year 2003. This conclusion also became the govern-ment’s official line of policy. Consequently, the PrimeMinister and the Minister for the Environment werereported to the Standing Committee on the Constitutionfor ignoring the parliamentary resolution to unilaterallypursue designation.The Government, however, adhered to its adopted line

of policy, and at the Ministerial Meeting in June 2003,HELCOM adopted the HELCOM Bremen Declaration,stating that EU Member States and Accession Countries,based on the experience gained with existing PSSAs, shouldconsider the possible designation of areas in the Baltic Seaas PSSAs. Russia should be invited to join this effort, andFinland and Sweden invited interested HELCOM Con-tracting Parties to join their respective efforts. This

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endeavour resulted in an application from Denmark,Estonia, Finland, Germany, Latvia, Lithuania, Polandand Sweden to the IMO in 2003. In April 2004, the BalticSea, except for its Russian waters, was approved inprinciple as a PSSA. This decision was followed by thefinal designation of the area and a decision regardingAPMs at the 24th Assembly, December 2005. The APMs inthe Baltic Sea PSSA include traffic separation schemes, adeepwater route, and areas to be avoided (recommenda-tion). These protective measures entered into force on 1July 2006.

The main stumbling blocks in this process have beendifficulties trying to engage the Russian Federation in theundertaking, and objections to the size of the proposedBaltic Sea PSSA. Designation of the Western Europeanwaters as a PSSA had repercussions for the debateconcerning the designation of the Baltic Sea. In retrospect,the head of the Maritime Safety Inspection at the SwedishMaritime Administration has commented on the designa-tion of the Western European Waters, saying that it wasdisadvantageous to pursue the designation of the Baltic Seaas a PSSA.

It was not to our advantage that the Western Europeancountries had brought about this [y] PSSA, along theAtlantic coast and a huge part of the North Sea [y] but,it was because of political reasons in the aftermath of thePrestige (author’s translation) [20].

The debate concerning the Baltic Sea as a PSSA, as well asthe aforementioned efforts of Liberia, Panama, theRussian Federation, and industry observers to derail theBaltic Sea PSSA process, illustrates the concerns ofshipping nations and industry, and the ongoing discussionand trial that the PSSA concept has been subject to.

3.2. The Swedish debate

3.2.1. The Baltic Sea—a sea at risk

In the Swedish debate, all participants seem to agree onthe vulnerability of the Baltic Sea and the threat posed byincreased shipping, not least Russian oil exports, in theregion. In this case it is not the risk per se that is beingdebated and negotiated, but what measures to take tomitigate such risks and how best to proceed to protect theenvironment of the Baltic Sea.

The participants engaged in the process of making theBaltic Sea a PSSA—the government, members of parlia-ment, environmental organizations, etc.—all agree on thenecessity of managing the risks related to shipping by wayof formal regulatory means, including rules backed bysanctions. One identified problem, which has repeatedlysurfaced in the debate, is the large number of illegal oildischarges and the difficulties of taking legal action againstthem. Another recurrent issue is the impending risk of atanker accident. In this regard the jurisdiction of thecoastal state is limited. Individual states certainly have theright to establish unilateral rules, as was the case with OPA

90 in the USA and the 24343 Royal Decree-Law 9/2002 inSpain, but the jurisdiction of national rules is restricted tointernal waters. A coastal state has limited ability toinvestigate or control ships using their right of innocentpassage, for example, in case of suspected oil dumping.Neither can a coastal state control how an oil spilltransports itself and crosses borders. Thus, efficientregulation of the sea transport of oil requires internationalco-operation and agreements. In the case of the Baltic Sea,however, representatives of environmental organizations,describe regional settlements such as the HELCOMagreements as week and toothless, while the IMO isdefined as a powerful organization. Consequently, practi-cally all actors engaged in the debate have come to supportthe idea of a PSSA application, although conceptions ofthe process and its significance differ between variousactors.

3.2.2. PSSA—a Swedish concern?

One obvious dividing line between the government andthe parliament concerned whether or not Sweden shouldapply to the IMO as an individual state for the designationof Swedish waters as a PSSA. In debate, members ofparliament stressed that the matter was urgent and that theHELCOM process was too slow, so government should actunilaterally. This opinion was established by parliamentaryresolution in January 2003. In contrast, the government—which also stressed the urgency of the matter—emphasizedthat it was necessary to co-operate with other Baltic Seanations to succeed with the application. In one of theparliamentary debates on the issue the Minister for theEnvironment concluded:

I feel that we are of one opinion. We all consider theBaltic Sea to be worth particular protection. We allagree to apply for its designation as an area in need ofparticular protection [y] We all agree that we want tosee results. That is why the government has chosen thisstrategy [y] We must act in a way that makes ussuccessful within the IMO (author’s translation) [21].

This statement was based on the conclusion to theaforementioned report from the Swedish Maritime Admin-istration, which stresses that an individual Swedishapplication to the IMO would probably meet withresistance.

3.2.3. The role and scope of APMs

Another dividing line, concerning how APMs areunderstood, runs between government, on one hand, andparliament and the environmental organizations, on theother. In motions and debates, members of parliament hadidentified measures such as environmental pilotage, man-datory insurance, and the required use of double-hulledtankers. In press releases, polemics, and the like, environ-mental organizations had expressed their views, which weremuch more challenging than the government’s. Oneexample is the Greenpeace demand for a ‘‘Baltic Driver’s

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Licence’’, including measures such as high-quality ships(e.g., double-hulled tankers and appropriate classing),high-quality crew (meaning crew certification), full andunlimited liability, and environmental pilotage.

In January 2004, representatives of Greenpeace and theWWF, together with representatives of all parties inparliament except for the Social Democrats, wrote a jointpolemic. In it they criticized the government’s application,calling for a more comprehensive proposal, including threesuggestions: (i) ship construction must meet certainstandards, so that low-quality ships, such as the Prestige,can be excluded from the Baltic Sea; (ii) crews must possessadequate skills and training; and (iii) the shipping industrymust assume financial responsibility for the impacts of itsactivities.

The writers of the polemic also claimed that all thesemeasures are applicable and related to the IMO’s sphere ofauthority.

However, in this matter as well, the government followedthe Swedish Maritime Administration’s interpretation ofwhat constituted appropriate APMs. As an expert author-ity, the Swedish Maritime Administration had been work-ing on Swedish governmental commission, and theproposal of APMs from Denmark, Estonia, Finland,Germany, Latvia, Lithuania, Poland, and Sweden hadsuggested new traffic separation schemes, a deepwaterroute, and areas to be avoided. According to the head ofMaritime Safety Inspection at the Swedish MaritimeAdministration, the formal designation of the Baltic Seaas a PSSA, after all, is mainly an act of political symbolism.He states that the greatest advantage would be the newtraffic separation schemes for the narrow inlet of Born-holm—‘‘that is something we [the Swedish MaritimeAdministration] have wanted for twenty years’’ (author’stranslation) [22].

It is the position of the Swedish Maritime Administra-tion and the government that the proposals put forward bythe environmental organizations and members of parlia-ment were totally out of the question. In retrospect, theysay that some of the participants in the debate hadunrealistic expectations and misconceptions of the PSSAconcept, regarding it as a ‘‘miraculous cure’’ [23].

The actors that pursued more far-reaching protectivemeasures were disappointed, and think that the govern-ment acted far too cautiously, in that it pursued onlymeasures that were already available, but did not try to goafter measures that did not yet exist, but that should beavailable as generally applicable measures falling within thecompetence of IMO. According to those critical voices, thegovernment acted timorously and demonstrated an inertiathat is difficult to understand, and the Swedish MaritimeAdministration manifested an old-fashioned view ofregulation, defending the freedom of the high seas aboveother values [24]. It is their opinion that the governmentshould have used the PSSA concept as a way to challengethe current order and tried to dislodge the principle of thefreedom of the high seas.

4. Concluding discussion

In the aftermath of the Baltic Sea PSSA process, one ofthe remaining issues concerns the differing attitudestowards the international Law of the Sea, and how tobalance the two fundamental principles of the freedom ofthe high seas and sovereignty—which in this case concernsthe environmental protection of a country’s own territory.Those who want to question the current judicial systememphasize that the freedom of the seas is accompanied byno corresponding responsibility, and that the sea is a‘‘victim of the tragedy of the commons’’ [25]. Those whosupport the present order, however, find the idea ofproposals that hinder innocent passage absurd.The designation of the Western European waters raised

the matter of whether the PSSA criteria were much toobroad [26], and whether frequent use of the designationwould cause inflation of the concept [27]. In both the caseof the Western European waters and the Baltic Sea, the sizeof the proposed area became an issue within the IMO. Theproposal from some actors to restrict the application of thePSSA concept to geographically limited sea areas that wasput forward in the Western European case, in due course,was dismissed by the MEPC/51. This approach of theMEPC/51 encouraged the Baltic Sea states to apply for adesignation of the major part of the Baltic Sea as a PSSA.The issue was disputed within the IMO, but the opponentsof the application (the main opponent being Russia) didnot gain a hearing for their opinion that the area was tooextended [28].Furthermore, the Western European application was

much more of a challenge because of its proposal to bansingle-hull tankers, which accordingly was intensely de-bated within the IMO. In the case of the Baltic Sea theproposal to ban single-hull tankers remained an issue ofinternal debate. Thus, in both the cases of PSSAdesignation the proposal to ban single-hull tankers raisedcontentious debate, but in different arenas. Instead ofbeing a challenge to the present order, the Baltic Seaapplication indicates adjustment to the debate and out-come of the Western European PSSA. Thereby itrepresents a kind of ‘‘self-regulation’’ that anticipated thesuggested revision of the PSSA guidelines. First, thedeliberative strategy was explicit as to the connectionbetween the application and the Resolution on PSSAguidelines; for example, the actors were careful todemonstrate the uniqueness and vulnerability of the area,and that the proposed APMs met actual threats, caused byshipping, to this vulnerability. Second, the proposed APMswere cautious and did not challenge the prevailing practiceestablished in the designation of the Western EuropeanPSSA. APMs that might have posed challenges, such as aproposal for crew certification and a ban on single-hulledtankers, were considered totally out of the question.The designation of the Western European waters as a

PSSA brought about a revision and strengthening of thePSSA guidelines. Most likely, the boundary between the

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freedom of the high seas and territorial sovereignty will becontinuously contested in an endeavour to establish anorder that embraces environmental protection. In achievingthis, it is not at all certain that designations of PSSAs willplay a central role. As Detjen [29] points out, PSSAdesignation is certainly not the only means of environmentalprotection, and, although it is in some ways significant, itmight be that it is not the most efficient. The recent PSSAdesignations and subsequent revision of the guidelinesindicate that the concept of PSSA gradually has become atool for reiteration of rules already put in place byUNCLOS and MARPOL. Thus, amendment of interna-tional conventions (as for example the strengthening of theMARPOL in the wake of the Western European PSSAdesignation) and extended possibilities to take action againstillegal activities (i.e. violation of rules already in place) mightbe more purposeful ways to accomplish environmentalprotection. In its 2003 report the Swedish Commission onthe Marine Environment even calls for a fundamentalchange of the regulatory framework, stating that:

Makeshift repairs to the current system are not enough.Our way of working and addressing the issue [ofenvironmental protection] has led us to the end of theroad. Our current regulatory frameworks do not protectour seas. Our seas must be decoupled from theregulatory frameworks which currently restrict theefforts [30].

The recent PSSA designations, with contentious justifica-tion of the freedom of the high sea and subsequent revisionof the PSSA guidelines, however, indicate that such arevision of the international law of the sea is remote.

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March 2004.

[15] MEPC 52 delegation report, 11–15 October 2004.

[16] MEPC 52/8 Proposed amendments to assembley resolution

A.927(22). Submitted by the United States.

[17] The Copenhagen declaration section, vol. VII.

[18] Ebbesson J. Nature conservation n the Baltic Sea Area, WWF,

Stockholm. Report No.3: 97, 1997.

[19] Parliamentary records 2002/03:48, 29 January 2003.

[20] Interview with the head of the maritime safety inspection at the

Swedish Maritime Administration. 6 December 2005.

[21] Parliamentary records 2002/03:28. 3 December 2002.

[22] Interview with the head of the maritime safety inspection at the

Swedish maritime administration. 6 December 2005.

[23] Interview with the first secretary of the Ministry of Industry,

Employment and Communications. 6 February 2006.

[24] Interview with the campaign director at Greenpeace. 6 December

2005; Interview with a representative for the Liberal Party 25

November 2005.

[25] SOU 2003, No.71 ‘Havet—tid for en ny strategi’, p.26, Interview with

the campaign director at Greenpeace. 6 December 2005.

[26] Detjen, 2006.

[27] Interview with the first secretary of the Ministry of Industry,

Employment and Communications, 6 February 2006.

[28] Interview with the head of the maritime safety inspection at the

Swedish Maritime Administration. 6 December 2005.

[29] Detjen, 2006.

[30] SOU 2003, No.71, p. 26 ff.

Ylva Uggla has a Ph.D. in sociology. She is conducting research on

environmental policy, regulation and risk management.