"Polish Yearbook of International Law" 1991-1992, vol. XIX

(1)

(2)

POLISH

YEARBOOK

OF

INTERNATIONAL

LAW

XIX

(3)

Board

of Editors

ANDRZEJ WASILKOWSKI (Editor-in-Chief)

JERZY RAJSKI

RENATASZAFARZ

WŁADYSŁAWCZAPLIŃSKI (ManagingEditor)

Advisory Board

LECH ANTONOWICZ,REMIGIUSZBIERZANEK,

WOJCIECH GÓRALCZYK,ROMANJASICA,JERZY KRANZ,

MANFRED LACHS |,JERZY MAKARCZYK, JANUSZMICKIEWICZ, [STANISŁAWE.NAHLIK

]

,

KRZYSZTOFSKUBISZEWSKI, JANUSZSYMONIDES,

KAROL WOLFKE

The editors express their gratitude to the Ministry of Foreign Affairs of the

(4)

POLISH

ACADEMY OF

SCIENCES

INSTITUTE

OF LEGAL

STUDIES

POLISH

YEARBOOK

OF

INTERNATIONAL

LAW

XIX

1991

-

1992

AGENCJA SCHOLAR

Warszawa

1993

(5)

The Polish

Yearbook

of

International Law

publishes

articles on public

international

law

,

conflicts of laws

,

and

different

aspects of relationship

between international

law and municipal

legal

system

.

The

Yearbook

is

open for Polish and foreign authors

.

The principal language of pub

-lication is English

,

but publishing texts in French

is

possible in

exceptional

cases

.

All texts express

exclusively

personal views of the authors

.

Authors

bear full

responsibility

for

statements and opinions expressed in the

published studies

.

Manuscripts should

be

addressed

to:

Dr

W

ł

adysł

aw

Czapli

ński

Institute

of Legal Studies

Polish Academy of Sciences

ul

.

Nowy Ś

wiat 72

PL

00 —

330 Warszawa

Tel

_/

Fax

(

022 ) 267 853

All manuscripts should be sent in triplicate with footnotes double space

at the end of the

manuscript

.

Instruction

for authors available

on

request

.

If

possible

,

the texts

can

be

sent on

IBM

—

PC

diskette elaborated with

Word

Perfect 5.1

.

The

present

volume should be cited

as

:

19

PolYBIL (

1991

—

92

)

©

Copyright by Institute of Legal

Studies

Polish

Academy

of Sciences

,

Warszawa

1993

ISSN 0554

-

498 X

Printed inPoland

AgencjaScholar

—

Wydawnictwo,Warszawa02-793 Żabińskiego20_/33.Objętość29ark.wyd.22ark.druk.

(6)

The Disintegration of the USSR from the

Point

of

View of

International Law

ZDZISŁAWBRODECKI,New

Convention on

the

Protection

of the

Marine Environment of the Baltic Sea Area

WŁADYSŁAWCZAPLIŃSKI,

International Legal Aspects of

Polish

-

Lithuanian Relations

ULRICH EVERLING,

The Position of the

Court of

Justice

ot

the

European Communities in

its

Institutional

System

JANUSZ GILAS, Equitable Principles of

the

Delimitation of

Continental

shelf

ROMANJASICA,

Polish

—

German Treaties of

1990

and 1991 on

the Confirmation of

their Mutual

Border and on

Good

Nieghborliness

and

Friendly Co

-

operation

ANDRZEJMĄCZYŃSKI,

La révocation

du

testament à la lumiè

re

de la loi

sur

ledroit

international privé

et

de

la

Convention de

La Haye sur les

conflits

de

lois en matière de forme des

dispositions testamentaires

ANNAMICHALSKA,JANSANDORSKI,

Remarks on the

Place of

International

Human

Rights

in

the

Constitution of the

Republic

of

Poland

EUGENIUSZPIONTEK,Europe

Agreement EEC

- Poland

(

Legal

Concept of a Scheme

)

ANNA PRZYBOROWSKA

-

KLIMCZAK,

Protection

of

Wildlife in

International Law

STANISŁAW SOŁTYSIŃSKI,

Agreement

on

Association

of

Poland

with European

Communities

(Legal and

Economic Issues)

. . .

179

ROMANWIERUSZEWSKI,

International Response to the

Human

Rights Violations in

the Territory of the

Former

Yugoslavia

ANNA WYROZUMSKA,

The Antarctic Treaty

as

a Customary

Law

MAREK

ŻYLICZ,

Towards

a

New World

Air

Transport System

. .

241

7

17

31

49

61

71

85

101

133

161

203

227

(7)

Polish Practicein International Law

1) Selected jurisprudence of

the

Supreme Court

and the

Cons

-titutional

Court comprising cases

connected

with

public

and

.

private

international law

,

published in

1992

.

—

by

EWA

SKRZYDŁO

-

TEFELSKA

2 ) International

treaties entered

into

force with respect

to

Poland

in 1991 and 1992

-

by

IWONA

CIESIELSKA

,

JOANNA

GOMU

Ł

A

255

264

Obituaries

Judge

Manfred Lachs

(1914

—

1993)

—

by Jerzy Makarczyk

. ..

271 Stanisł

aw

Edward

Nahlik (1911

—

1991)

—

by

Stanis

ł

aw

Waltoś

. .

274

Book Reviews

JANBARCZ,StosowanieprawaWspólnot Zachodnioeuropejskichwpaństwachczłonkows

-kich (Problemy konstytucyjnoprawne ),[Application of the Law of the European

Communitiesin the LegalSystems of theMember States]

—

byJerzyJaskiemia .

.

REMIGIUSZ BIERZANEK, Studia nad społecznością międzynarodową

.

Źródła prawa międzynarodowego.[StudiesontheInternationalCommunity.Sourcesof International

Law]

—

byAndrzej Wasilkowski

GENNADY M

.

DAN1LENKO, Law-Making in the International Community

—

by Władysław Czapliński

JOSTDELBRÜCK etal (editors),Neuntes deutsch-polnisches Juristen-Kolloquium:Der internationale und nationaleSchutzderMenschenrechte

—

byWładysławCzapliński

..

. JOSTDELBRÜCK (ed.),The Future of International Law Enforcement. New Scenarios

—

New Law? Proceedings of an International Symposium of the Kiel Institute of

International Law

—

by Władysław Czapliński

MAŁGOSIAFITZMAURICE, InternationalLegal Problems oftheEnvironmentalProtec

-tion oftheBalticSea

—

byZdzisław Brodecki

WOJCIECH KOWALSKI, Restytucja dzieł sztuki w prawie międzynarodowym [The

Restitution of Works of Art in International Law]

—

by Anna Przyborows

-ka-KIimczak

CEZARY MIK, Zbiorowe prawa człowieka [Collective Human Rights]

—

by Barbara Mikołajczyk

STEFAN OETER: Neutralitaet undWaffenhandel

—

by EwaBieńkowska

RENATA SZAFARZ, The CompulsoryJurisdiction of the InternationalCourt of Justice

—

by Rudolf Ostrihansky

JERZYTYRANOWSKJ, Integralnośćterytorialna,nienaruszalnośćgranic isamostanowie

-niew prawiemiędzynarodowym[Territorial Integrity,Inviolability of Frontiersand

Self

-

Determination in InternationalLaw]

—

BOGDAN WIERZBICKI, Sytuacja prawnauchodźcywsystemiemiędzynarodowej ochrony

prawczłowieka[LegalStatusofa RefugeeintheSystemofInternational Protectionof

HumanRights]

—

KAROLWOLFKE,CustominPresentInternationalLaw

—

byWładysław Czapliński .. .

Ill 279 281 282 284 286 287 290 291 292 295 297 298

Polish Bibliography of International

Law

, 1990

—

1992

300

(8)

19POLISH YEARBOOK

OFINTERNATIONALLAW 1991

-

1992

PL ISSN0554

-

498X

The Disintegration

of

the USSR from the

Point

of

View

of

International

Law

LECH ANTONOWICZ

The reconstruction of the Union of Soviet Socialist Republics undertaken in 1985 finished with its disintegration in December 1991

.

As efforts to transform the Soviet Union into a union of sovereign states have not

succeeded

,

the leaders of three Slavonic republics: Belarus, Russia and

Ukraine, concluded in Minsk on December 8, 1991, an agreement on the

creation of the Commonwealth of Independent States

,

considered

as

a new

subject, not

as

a continuation of the

USSR

.

According to the agreement, access to the Commonwealth has beenleft free to all republics of the former USSR, as well as for the other states accepting its aims and principles. The preamble states that the USSR has ceased to exist as a subject of inter

-national law and a geopolitical reality.1

OnDecember 21,1991, inAlma

Ata

,

representativesofelevenformer Soviet republics signed a Protocol to the Agreementonthe creation of theCommon

-wealth of IndependentStates(CIS)

.

Ithasbeenagreed thatitentersintoforce

atthe time of ratification byrespectiveparties.2_{Parties to the Agreement}_have

beenaccordingly:Armenia,Azerbaijan,Belarus, Kazakhstan,Kirgiz, Moldavia,

Russia, Tadjikistan, Turkestan, Ukraine and Uzbekistan

.

Lithuania, Latvia andEstonia havestayed outside theCommonwealth(they havebeenuniversally recognized asindependent states), as well asGeorgia

.

Finally, onDecember30,1991,onthe69thanniversaryof the proclamation

ofthe USSR, thememberstates ofthe CIS undertook an attempttoregulate problems resulting from thenew formulationof their mutualrelations

.

3

All these facts require an international legal analysis of the following

questions. What istheinternationallegalstatusofstates existinginthe territory

ofthe former

USSR

?How shouldthe relationshipbetween thesestatesandthe

•i _Commonwealth_{of Independent}_States_Documents_adopted_by_{the Heads of}_State_and_Govern

-ment, 8 December1991

-

30April1992,Foreign BroadcastInformationService, SpecialMemoran

-dum,8 May1992,pp.1

-

5.

2 _A_._{a., pp}

.

₆

-

₇_.

3 _A

(9)

8 LECH ANTONOWICZ

USSR be defined? What is theinternational legal character of theCommon

-wealth of Independent

States

?

1

.

The disintegration of a state

can occur

in two ways. Firstly,

a

secession

of one or more parts of state territory takes place, and a state preserves its international legal continuity and identity within its changed boundaries

.

Secondly, a dismemberment of a state can be observed, where a predecessor state

ceases

toexistasasubjectof internationallaw,and isreplaced by twoor more

new

states

.

TheVienna Convention ofAugust23, 1978,onthe succession of states with respect to treaties4

considers thetwo forms ofdisintegration of a state, but doesnot provide any criteria of differentiation between them.

Theoretically, adifferentiation isclear

,

butit may becomplicated in par

-ticular

cases

of state succession

.

Such complications can be observed with respecttothe disintegration of the

USSR

.

At first sight it may be supposed that the disintegration of the USSR constitutesan exampleof the dismemberment ofa state which ceased toexist

as an international legal subject. Such an opinion was expressed by Russian lawyer V

.

Pustogarov in his study published shortly before the events of December

1991.5

Pustogarov stated that neitherthe decrease of territory, nor the deep reconstruction of the internal state system, nor thechanging of the

official

name

will resultinthe changing of theinternationallegalstatusof the USSR, whereas theeventual division into component unitswill constitutethe endof her existence asan internationallegal subject

.

Consequently,rights and duties of the USSR as a member of the UN and a party to international

agreementswill be divided among republics as

successor

states,

none

of which could claimexclusivesuccessiontothe

USSR

.The headsofthe memberstates of the

CIS

havedecided that all these states are

successors

to therights and obligationsof the former USSR.6

Thedetailedanalysisof elements to be taken into accountwhileconsidering

this problem leads to the conclusion that Russia is identical with the USSR,

and notsimply a

successor

state. Important elementscan bequoted in fovour ofsucha thesis

.

First of all, there is a general presumption towards the continuity of statehoodininternational law. In contemporary practice,thecollapseofastate as asubjectofinternational law is exceptional7

_.

_From _{the point}_of _{view of the}

4

UNDoc.A_/Conf.80_/35;17ILM 1488,1978

.

5 _V_._{P u s t o g a r o v:}_„_{ErozyaSoiuza.}_{Mezhdunarodno-}_{pravovyeposledstvya}_”_,_Mezdunarod

-naya Zhizn, No

.

11, pp. 74

-

82, 1991; by the same author: „Sovetske respubliki w mirovom soobstchestve” ,ibidem,No.4,pp. 5-16, 1991

.

6 _{Commonwealth of Independent States Documents}_,_op

.dt.,p.142.

7

Comp.L. A n t o n o w i c z: Państwoi terytoria. Studiummiędzynarodowoprawne [States

(10)

9

THE DISINTEGRATIONOFTHEUSSR...

interestsof theinternationalcommunity itisgenerallymore favourable todeal with the continuity of states than with the state succession, as the scope of

successionwithrespect tointernational legalrights and obligationsis disputable bothin theory and practice

.

Russia hasalways played a dominant role within the Soviet federal state. Notwithstandingtheconstitutional equalityofall republics,theRussianSocialist Federal SovietRepublic hasbeenmentionedfirstof allrepublics in all subsequent Soviet constitutions.Thisderivesfromthehistoricalfactors in the

sense

thatbefore the OctoberRevolution, Russiaactedas statein internationalrelations

as

auniform internationallegalsubject,and itplayeda decisiverole in the creation oftheUSSR accordingtothe agreement of December30, 1922,concluded byfourSovietrepublics

ofthat time:Russian Federation, Transcaucasian Federation,Ukraineand Belarus

.

8

Demographic,economicandmilitaryfactorsweredecisiveforthecrucialimportance ofRussia

.

The

area

of theRussianRepublicconstituted 3

_/

4 of theareaof theUSSR,

and her population morethan 50 % ofthe total population of the Union

.

IninternationalrelationsRussia

was

treated as the

fundamental

partof the USSR,and sometimes even identifiedwith her. From this pointof viewit was impossible that Russiacould participate inany international legalinstrument

togetherwith the Union, though suchapossibility existedwithrespecttoother

federal republics

,

namelyUkraineand Belarus.Theirequalconstitutionalstatus could not assurethem equaltreatment under international law

.

Thespecial positionofRussiaamong allSoviet republicsfounditsexpres

-sion alsoin the processof thedisintegration of the USSR in 1991

.

Although the RussianSocialistFederalSoviet Republic declared her state sovereigntyon

June 14, 1990,9 _contrary _to _{other republics she}_did _{not declare independence}

nor

adecision toleave the Union. Russia had aconstitutionalright tosecede,

as

other republics, but her declaration of secession would be pointless after Kazakhstan declared her independence

on

December 16, 1991. At that time

a

conflictbetweenstateagencies ofthe disintegratingUSSR and governmental

agenciesof the Russian Federation took place, but it was clearly of internal, and not of international,character

.

Asto the principle,it wasfinished by the

demission ofthe President of the USSR

on

December25, 1991

.

Itisgenerallyagreed that changesof territory and population

,

even

more

important than those in the relations between the

USSR

and Russia,do not influencetheinternational legal personality of a state concerned

.

So thedec

-laration by the presidents of Belarus, Russia and Ukraine on the dismember

-ment of the

USSR

as subject of international law does not

seem

correct

.

However

, they wereright from the point of view of geopolitical reality. The latter notion isnotclear,but it can besupposedthat it relates to apoliticaland ideological formationfunctioningin

a

territoryconcerned

.

8 _{Istoria sovetskoy konstitutsii ( v}_dokumentakh₎₁₉₁₇

-

₁₉₅₆_,_Moskva_1957,_pp_.₃₉₄

-

₃₉₈_:_see_also

W

.

S u c h e c k i:Genezafederalizmu radzieckiego[Genesisof theSoviet Federalism],Warszawa1961

.

9 _Cf

(11)

10 LECHANTONOWICZ

It

can

beasked whether the stance of the international community with

regardtothe disintegrationof the

USSR

acceptsthethesisaccordingtowhich Russia continues theinternational legal personality oftheUnion

.

It

seems

that numerous factsconfirm it

.

Memberstatesof the CIS onDecember 21,1991, declared theirsupportfor theRussiancontinuityof the Soviet membershipof the

UN

including the membership of the Security Council

,

as

well as the membership of other

international

organizations

.

10_In _practice_Russia_did _not

meetanydifficulties in replacing theUSSRininternational organizations. The retaking of the place in the Security Council by Russia can be justifiable exclusively on the grounds of her identity with the USSR

.

The UN practice does not accept thesuccession with respect to membershipof the UN

.

In all cases of the dismemberment of

UN

member states (India

-

Pakistan, Pakis

-tan

-

Bangladesh, Malaysia

-

Singapore)

one

state

was

treated

as

identical with theformer statewhileanotheronehad toapplyfor membership

as

anew state

.

The only exception, the dismemberment of the United Arab Republic into EgyptandSyria,was not typical

as

both stateshad beenmembers of the UN before their uniting

.

The succession with respect to membership in the UN would imply the recognition of membership rights and obligations of all

successor

states

.

.The problem of Russia’s representation in bilateral international relations

hasbeenresolvedaccordingtothe

same

pattern. After the disintegrationofthe USSR,foreign embassies inMoscowbecameembassiestotheRussianFedera

-tion, andSovietembassies abroad weretransformedintoembassies of Russia

.

Claims by the other republics to share of the former Soviet state property abroadare not taken into account

,

and do not shakethis opinion

.

The iden

-tification of Russia with the USSR could be recognized notwithstanding the fact that thelatter state has been mentioned several times under the name it borne till the end of 1991

.

The change of the name of the state does not influenceits internationallegalpersonality

.

Thenew nameofthe statedoesnot

requirethe revision of the UN Charter

,

though it can bechanged when the opportunity of other substantial changes occurs

.

Formally, the name Russian Federationor Russia is used

.

The problem will be resolved in a new Russian constitution

.

Itcan be mentioned that Russiainfact hasneverbeen and is not a federal state

.

Itdoes not consist of compotent territorial units which would be equal

and possess the same legal status

.

It should rather be called a differentiated state composed of the centralised dominant part, and several autonomous territorial units.

Theidentificationof RussiawiththeUSSRmeansthatsheis subject tothe samerightsand obligations under international law as theSoviet Union, with

some

exceptions

.

According to the Vienna Convention on the succession of

(12)

11

THE DISINTEGRATION OFTHEUSSR...

states with respect to the treaties of August 23, 1978, provides that the state identical toapredecessor stateisbound by all international agreements except those concerningexclusivelyseceding parts of territory

.

Soonecan admitthat

Russiais bound by theDanube convention of August 18, 1948,butit should not be a member of the Commission for the Danube

.

The membership is

limited to the riparianstateswhich Russiafor the time beingis not

.

2

.

From thepoint of view of theconstitutionallaw of theUSSR (under all the successive constitutions), all Soviet union republics possessed the same status. This principle also governed the constitutional regulation of their international positionsincetherevisionof theconstitution of February1

,

1944.11

In theory

,

the international legal status of the republics was the same

.

The maximum numberof unionrepublicswas16,and sincethetransformationofthe Karelo

-

FinnishRepublicfrom theunion republicintotheautonomousrepublic

within theRussianFederation in 1956,

—

15. This figureremainedunchanged till the period ofsystem transformations oftheUSSR in the late

1980’

s

.

TheSovietunion republicscomposing the USSR werenotsovereignstates erga omnes

.

Their relations with foreign states only

were

governed by inter

-national law

,

but this law was not applicable in the relations between the

republics and between the republics and the Union. The relations within the USSR remained the domain of theconstitution of the USSR

.

Therefore the Soviet Union shouldbetreatedasa constitutionallylegal,andnotinternational

-lylegal, union of states

.

According to the constitutions of the USSR, the Soviet union republics werecalledsovereignstates

.

However

,

notwithstandingimportant competences in internationalrelations

,

they werenotsovereign in the light of international law.Theirstatuscorresponded with thenotionofcomponent states

.

Inpractice, only tworepublics, Belarus and Ukraine,activelyparticipated in international relations

.

They were original members of the United Nations and of certain specialized organizations of the UN system

.

Under these circumstances they could becomeparties tomultilateral treaties concluded under the auspices of the UN.

Because of these

reasons

, certain authors were ready to recognize the

international legal personality only of the two republics mentioned above.12

While consideringtheactual status of post

-

Soviet states, Ukraineand Belarus should alsobe treatedseparately,even iftheir

manner

inthetransformationof theUSSR

was

similartootherrepublics

.

At

first theydeclared theirsovereignty

11 _Istoria_,_a

.a., p. 824; cf. also L. A n t o n o w i c z, „Położenie ZSRR w prawie między

-narodowym”_[The_{status of the}_USSRunderinternationallaw],15StudiaPrawnicze(1967),pp.7-27.

12 _{E .} _{D o l a n:}

„Themember-republicsof the USSRas subjects of the lawofnations”,iCLQ

1955, No. 4, pp. 632-636; A . V e r d r oß, DieVölkerrechtssubjektivität der Gliedstaaten der Sowjetunion,1 ÖZÖR218 (1946

—

48).

(13)

12 LECHANTONOWICZ

(Belarus on July 27, 1990;Ukraine on July 16,1990), and subsequently pro

-clamed independence(on August 25

,

1991, and August 24,1991,respectively; Ukraine decidedalsotoorganizea plebiscite on this question onDecember 1, 1991)

.

There is

no

doubt that Ukraine and Belarus have become independent states

.

One shouldconsider what isthe internationallegal relationto theformer USSR on

one

hand, and to the former Soviet republics, Belarussian and Ukrainian

,

on

theother hand

.

Thefirstquestionshould beanswered

according

tothelaw of state succes

-sion, theeffectsof which are regulated by the Vienna conventions:of August 23,

1978

,

with respect to treaties, and of April 7

,

1983, with respect to state property

,

archives, and statedebts

.

13

The international legal relationship between Belarus and Ukraine as sove

-reignstates

,

and BelarussianandUkrainianSoviet Republics,should be defined in a different way. It could be considered from the point of view of state succession, that a proclamation of sovereignty is of qualitative importance underinternationallaw

.

Thesovereigntyis an attributeofstatehoodascriterion

ofdifferentiation between statesandother geopolitical units.

Internationallegalpractice inthis fieldwhich is, infact,very poorrefersin such acontextto the notionsofidentity and continuity.Similar tothe Philip

-pinesand India, which became members of the UN as dependent units and preserved thisstatusafterdeclaring independence, both Belarusand Ukraine

areidenticalwiththeformerSoviet republics asfar

as

theirinternational legal

rights andobligationsare concerned

.

3

.

Except for Belarus and Ukraine,theotherSoviet republics did not make

use of their constitutionalcompetences in the field of international relations

.

Consequently,theirinternational legal status as componentstatesof the USSR was

never

realized

.

Theycan be treated asidenticalfrom thepoint of view of internationallaw, butthisissue isdeprivedof anypractical importance

.

Inter

-nationalagreements concluded by the USSR and any other Soviet republic

exceptUkraineand Belarus wouldhavesuch importance

.

We

are

thinking here

of the following republics: three Transcaucasian

—

Armenia, Azerbaijan and Georgia

,

and five Central Asiatic

—

Kazakhstan,Kirgistan,Tadjikistan, Turk

-men and Uzbek

.

Thethree Baltic republics and Moldavia should be dealt with separately because of the particularcircumstances of their inclusion into the USSR in

1940

.

Amongtheseeight, theCentral Asiaticrepublics did not become indepen

-dent states after the October Revolution, and the Transcaucasian ones were independent for a very short period

.

After the establishing of the USSR in

13 _{UN Doc}

.

_A

(14)

13

THEDISINTEGRATION OF THE USSR...

1922, they all became its compotent parts

.

The amendment to the Soviet constitution in 1944granting unionrepublicsthe competence toactin interna

-tionalrelationshad for them

—

contrary to Belarus and Ukraine

—

nopractical effect

.

First in the period directly precedingthe disintegration of the USSR,

Azerbaijanand Asiatic republics started todealwith neighboring Islamic states. Since the transformation from the component states of the

USSR

into independentstates, the former Soviet republicsshould be treated

as

successor states with respect to the Soviet Union

.

It is difficult to establishthe date of succession

.

The respective states declared their independence

—

like Ukraine and Belarus

—

between August and December 1991

.

Two processes: the

emancipation of former Soviet republics and disintegration of the USSR followed simultaneously

.

The declarations of independence were not realized immediately

.

Theagreement ofAlmaAtaof December21,1991,thedemission of the president of theUSSR,and theself

-

dissolutionofthe SupremeSovietof

the USSR constituted a turning point in the process. Participants to the conference ofeleven stateson December30,1991, wereindependent states

.

Nearly all former Soviet republics have been internationally recognized. Georgiawas theonlyexception,andthedelay has been caused by thecivilwar.

The explanation of this issue is that, according to international practice,

recognitionsignifiesnotonly asimplestatementconfirming the existenceofan international legalsubject, butalso theintentiontoenter intodirect relations

with it.There is no doubt that Georgia became independent by the disinteg

-rationoftheUSSR,though it wasnotimmediatelyrecognized

.

She should be treated as astate as shecould not possess anyother internationallegal status. Anunrecognized state is also a state

.

The secession of theSovietrepublicscan be appreciatedfrom thepoints of viewof international and Soviet constitutionallaw

.

Self

-

determinationconstitutesoneof thefundamental principlesofcontem

-poraryinternationallaw

.

Theprinciple has beenincluded into the

UN

Charter on the initiative of the Soviet Union

.

14 _It _{is disputable whether} _the _{right to}

self

-

determinationincludes also a right to secede;soJ

.

Tyranowskistatesthat therighttoself

-

determinationprovidestherightof colonial peoples to indepen

-dence,butnottheright tosecedeforanycompotentpartof a territory of any state

.

15

It

seems

,

however, that no provisionof the Charter indicates that the right of self

-

determination should be limited to terzitories of certain kind,

accordingtodegreeof developmentorpolitical status

.

Inanycase

one

should differentiatebetweentheimplementationofself

-

determinationbyindependent stateson the

one

hand,and colonial territories on the other hand

.

1 4 _{C f}_._S

.

_B

.

_{K r y l o v}_:_{Materiały k istorii Organisalsii Ohedivnyonnikh Nacyi}_,_Moskva

_-

_Lenin

-grad 1949, vol

.

I,p

.

9

.

15 _J_. _{T y r a n o w s k i}_: _Integralno_{ść terytorialna}, _{nienaruszalność} _granic _{i samostanowienie}

w prawiemiędzynarodowym[Territorial Integrity, Inviolability of Boundaries, and Self-Deter

(15)

14 LECHANTONOWICZ

TheSoviet Union

was

the onlystatewhosesuccessive constitutionsprovided for the right of component republics to secede

.

Theformulas wereclear and unequivocal,but deprived of any regulation on their implementation. The latter were passed shortly before the disintegration of the USSR, and

were

never appliedin practice

.

It canbe asked whetherthe secession of the republics was consistent with Soviet constitutional law

.

The answer shouldbeaffirmativetaking intoaccount the provisions dealing with the right to secede, as these provisions did not containany limitation

.

However,their interpretation isdifficult becauseofthe lack of executory regulations

.

From the point of view of international law, the conformity of secession with Soviet constitutional law is not important. Theaction by internaldisin

-tegration powers constitutes the onlycriterion of legality of secession

.

If this condition is fulfilled, and a secession takes place effectively, it results in the creationofastateasa subject of international law.Sothe disintegration of the USSR wascarried intoeffectas the train of actsof secession

.

4

.

ThethreeBaltic states:Lithuania, Latviaand Estonia, should be treated separatelyasbefore their annexation by the USSR they weresovereign states under international law. Their annexation by the Soviet Union in summer, 1940,wascontrarytointernational law

.

The starting point for this annexation was the German

-

Soviet treaty of August23,1939,knownasthe Ribbentrop

-

Molotov pact,and in particular the secret protocol according to which Lithuania should have belonged to the German sphereof influence, and Latvia and Estonia to theSovietone. While implementing this illegal treaty the parties modified the division of territories to include Lithuania in theSoviet sphere

.

Subsequently the USSR forced the Balticstatestoconclude treaties constituting the basesof stationingoftheRed Army in their territories.

TheUSSR took advantage of the military presence topressupon the Baltic states to hold parliamentary elections, consequently to proclaim the Soviet republics, and to demand admission to the Soviet Union

.

Formally the requests were accepted onAugust 3 (Lithuania), August 5(Latvia) and August6 (Es

-tonia),1940

.

Notwithstanding theappearances, thereisnodoubt that the annexation of the Balticstates by the

USSR

wascontrary tointernational law

.

These states did not losetheir internationalpersonality, evenif they

were

notable to realize its attributes

.

It shouldbeasked,however,howlong such adifference between theory andpracticecan exist

.

There are no rules of international law establishing the time limit for restoring a statehood illegally abolished by another state

.

It seems however thatsuchastatus cannot exist ad infinitum

.

The annexation of theBalticstates

(16)

15

THE DISINTEGRATIONOF THEUSSR...

to the

USSR

being illegal, the passage of timeexceedingtwice their existence as independentstatescombined with theinertionoftheinternationalcommunity

legalized the original illegality

.

Such

a

solution is not rare in international relations

.

These considerationsareimportantfor the appreciation of the contemporary legalstatusof Lithuania, Latvia and Estonia

.

According to the point of view

adopted, they

can

be treated either

as

the new subjects of international law created in the course of secession or

as

the states identical with the states

existing in the period between the two World Wars, and subject to foreign administration since 1940

.

In the latter

case

the Baltic states could not be treated

as successor

states with respect to the USSR

.

Available documentsshow that the governmentsof Lithuania

,

Latvia and Estonia

—

notwithstandingdifferent attitudes during theprocess of regaining independence

—

treat theirstatesasidentical with theformerBaltic states

.

For example,they did notagree to proceedinaccordancewith Soviet lawevenifit would lead to thesameeffect (independence)

.

5

.

Moldavia has got particular status in comparison with the other post

_-

Sovietstates. She

was

annexed to the

USSR

in1940,like Lithuania,Latvia

andEstonia,

on

the baseofthe Ribbentrop

-

Molotov pact

.

Atthat time Molda

-via (which

was

not independent, butconstituteda part of Romania) provided that: a part of it was passed to the Ukrainian Republic, and a part of the Ukrainian Republic was created. In effect, Moldavia should be regarded as a new, successor state with respect to the USSR. It could be united with Romaniaif her population and governmentopenly

express

such

a

will

.

6

.

TheCommonwealth of IndependentStatescreated in December 1991 is not yet fullyformed.It is clear that it is not astatefrom the pointof viewof

international law

.

In theirdeclaration onthe establishing oftheCISofDecem

-ber 21, 1991

,

the state participantsexpressed the view that the

CIS

is neither a state

nor

a

supranational structure

.

16

Thecreation of theCISwas preceded by the concept of aconfederalstate to replacethe USSR. Theconcept had its historical roots, but

was

in a way inconsistent

.

A

confederationisanassociationofstates, butnot

a

state

.

If the proposed Unionof the SovereignStates hadbeena state,itscomponent units would not have been sovereign states

,

even

possessing wider international

competences than the former Soviet republics under the constitution of the USSR

.

Itseems thatthe Commonwealth of IndependentStatesistobe regardedas

an association of states, meaning

an

international organization

.

Its original

16 _{Commonwealth of Independent}_States

(17)

16 LECHANTONOWICZ

members

are

11 states

:

Belarus, Russia, Ukraine, Armenia, Azerbaijan, Mol

-davia,Kazakhstan,Kirgistan,Tadjikistan, Turkmenistan and Uzbek

.

Outside

ofthe

CIS

remaintheformerSoviet republics of Lithuania, Latvia and Estonia, as well as Georgia

.

No other state joined the CIS

.

Georgia is the party to

certaintreaties concluded intheframework of the CIS

.

17

Therelations between themembers of theCIS which aresovereign states are governed by internationallaw

.

On

March 13, 1992, thestates of the CIS concluded the treaty

on

plenipotentiary missions, the status of which corres

-ponds with the generalinternational legal practice

.

18

At present one observes a transitional period of emancipation of states which formerly constituted parts of

one

state

.

In this context

a

notion of a national of theCIS can be used, although it is not legally correct

.

The acts establishing the CIS do not providea common nationality.

Delimitation of territories of the post

-

Soviet states follows in accordance

with the boundaries of the republics

.

However,someof them

are

disputable

.

Distinction should be drawn between possiblemodifications ofexisting boun

-daries and creation of new states onthe course of secession of parts of the territoriesof the former republics.Such a possibility exists as those republics

-

at presentindependentstates

—

have not been ethnicallyhomogenous.Some of them

are

not homogenous also from the point of view of their territorial structure, asthey consist i.a

.

of autonomous units

.

In particular

,

secessions of such autonomous units from Russia cannot be excluded

.

Two autonomous republics, TchechenandTatarstan declared sovereignty,though thesestatements were of purelydeclaratoryimportance

.

Agreements between member states constitute thelegal foundation of the CIS

.

Accordingtotheircontent andform,theyaretypicalinternational treaties governed by international law

.

Particularagreementswere concluded by adif

-ferentcircle ofparticipants which

seems

to be typical for theCIS

.

Main organs

oftheCommonwealth aretheCouncil of theHeadsofStates and theCouncil of theHeads of Governments

.

The official seat of the organs is Minsk, the capital of Belarus, but different agencies operate also in capitals of other memberstates

.

It is too early to statewhether the CommonwealthofIndependentStatesis a subjectof internationallaw

.

Noagreement between theCISand anystateor otherinternational organizationhas been known

.

Probably agreementsofthis kind will beconcluded in thefuture and then firm conclusions

can

be drawn

.

TheagreementofMarch 13, 1992,

on

the principles of custom policy provides

that the

Custom

Union established by it constitutes within the scope of its functions

an

independentsubject ofinternational law

.

19

17 _Ibidem,_pp_.

29-30, 79, 93,114.

18 _Ibidem,_p_.₉₃_.

(18)

19POLISHYEARBOOK OFINTERNATIONALLAW

1991

-

1992

PLISSN0554

—

498X

New

Convention

on

the Protection

of the Marine

Environment

of the Baltic Sea

Area

ZDZISŁAW BRODECKI

1 .

Introduction

The

„

Ostpolitik” ofWilly Brandt enabled the adoptionofasetofregional

Baltic agreements

.

Duringthefirst Balticwaveofour timethe Conventionon

the Protection of the Marine Environment of the Baltic Sea Area (1974) was

signed by Denmark, Finland

,

the GDR, the FRG, Poland, Sweden and the USSR

.

Ten years after its entry into force,the Baltic States were not so far

from theprevious stage of isolation

.

Itcould be observed in state behaviour, organization,managementand law.

Thebehaviour of states hasbeen influenced bythe idea of security whichis

traditionally associated with its military aspects

.

The Baltic States calculated everything from a national standpoint

.

They simply ignored international

obligationstoreducesuchemissionswhich causedenvironmentalharm outside of theirown territories.

The Helsinki Commission (HELCOM) had to promote inter

-

state equity and guarantee greater rationality. During the first years of existence it was

rather acommunity of expertscontributing to national policies

.

Thepower of

HELCOM didnot allow itschairman to undertake any operational activities

.

Thelegalnaturaofthe actsofHELCOM(alldecisionsandrecommendations)

aswell as theopticoutsystem in relation to the adoption and amendmentof

annexescould not make its position stronger

.

The orthodox Soviet interpretation of sovereignty was behind an old ap

-proach to environmental management and law that the Helsinki Convention created therules of co

-

existence rather than rulesofco

-

operation anda

„

code

of behaviour

”

rather than the rules of law, concentrating on pollution from

ships instead of land

-

based pollution

.

Its value was simply „less than

zero

”

.

After the collapse of the Soviet empire and its vision of a

„

Common Future” ,there wasan opportunity to

„

thinkglobally and act locally

”

.

Thatis

why theEECEnvironmental Programme

„

Towards Sustainability” waslaun

-ched within the framework of the new Convention on the Protection of the

Marine Environment of the Baltic Sea Area (1992) which was signed by 12 states and theEEC.1

1 _The_{Czech and Slovak} _Federal _Republic_{does not}_exist_{any longer}_.₁₃_States_may_become

(19)

18 ZDZISŁAW BRODECKI

The Contracting States have agreed to extend, strengthenandmodernize thelegal

regimefor the protectionofthe marine environment of the Baltic SeaArea

.

Doesthe newConvention represent somethingmore than the level of political consent currently able to change a glum perspectivefor thecommonfuture of our area?

2 .

A

scientific

perspective

Long

-

rangetransportand inputsvia rivers and precipitationarethe largest

sources

of pollution of the Baltic

Sea

.

These sources originatefrom industry,

agriculture,domestic sewage, traffic and energy production

.

It is often very difficultto trace them.For instance

,

some of the nitrogen entering the Baltic viaPolish riversmay have its originin atmospheric emissionsfrom a country outside theBaltic drainage basins

.

The demandforahigherstandard of living in the Eastern Balticcountries will resultin dramaticefforts to increase the yield from agriculture

.

Onecan

expect that the mistakesmade in the western countries will be repeated since gradual pollutionis notas spectacular asthe catastrophesof tankers.

The reconstruction of industry in Poland, Lithuania, Latvia, Estonia and Ukraineinvolves hugelong

-

term investments that must bemade profitablein terms of economics and the environment.It is a dangerousillusion to believe that the technological standards will have morethan marginal effects on the

Baltic environment

.

These standards which are badly designed as too low or

toohigharesimply ignored in the practice.The trend towardssustainabilityis particularlyrelevant tonewinitiatives,connected with environmental planning aiming atlong

-

termeffects and changes

.

Thescenarioofthe developmentin CentralandEasternEurope gives aglum

perspective for thefuture of the Baltic Sea.The goal

—

reverse loading and eutrophicationtothe levelsof 40 years ago

—

may not bemet in the next50

years.2 A common international strategy with clearly defined priorities and responsibilities is urgently needed

.

3 .

Region

and

regionalism

Aregion has a geographical connotation

.

The Baltic SeaArea is therefore definedastheBalticSea properwith the Gulf of Bothnia,theGulfof Finland and theentrance to the Baltic Sea bound by the parallel of the Skaw in the Skagerrak at 57degrees44.8’ North

.

At

the request of the BalticStatesthe old Convention does not include internal waters ofthe Contracting Parties

.

In the future theinternal waters (waters on the landward side of the base lines from which the breadthoftheterritorial sea is measured accordingtothe

2

F.W u 1 f f:Prioritiesfor the Restoration of the Baltic Sea

—

a Scientific Perspective,Rapport presentedduring the international seminar held in Tvarminnein1991.

(20)

19

HEW CONVENTION ONTHEPROTECTION OF THE MARINEENVIRONMENT...

designation of theStates)willbe included accordingtoa new conceptof region asadopted by theHelsinkiConvention1992. The newConventionalso refersto

thecatchment areaoftheBalticSea inthecontextof cooperationamongst the States

.

Itmeans that thenewagreementrefersto regionalism asa mechanism designed to implement various types ofcooperative activities amongstates

.

3

The best evidence of regionalism is the Baltic Sea Joint Comprehensive Programme

.

The workofthe TaskForce hasstartedin all countries within the catchment area of the Baltic Sea with an aim to provide a concrete plan to restorethe BalticSeatoa sound ecological balance,itcontainsa list of priority

actions needed toreversetheeutrophicationof thesea, to identify the problem hotspots”, and tosuggest proceduresto reduce pollution

.

4

areas5

4

.

The

comprehensive approach

It was an ambition of the old Convention to represent the comprehensive approachto the protection ofmarine environment from pollution.5However, amisleading focalpoint could beobserved in the text and in the practice

.

6In fact, the 1974 Convention provided only a general framework for national rulesontheprotectionofthe environment (theso

-

called „umbrella” approach) excepttheprotectionof the marine environment against vessel

-

based pollution (almost the piecemeal approach)

.

It used to be a copy of MARPOL 73

_/

78

.

The development of other global orregional rulesofinternational environ

-mentallaw (e.g., the London Convention 1972, LRTAP1979, Montreal Gui

-delines1985)7_and_{the preparatory work}_{on „}_{The Earth}_Charter” _(later_adopted

duringthe RioConference 1992)8_had_an _impact_{on the}_new_Helsinki _Conven

-tion ontheProtection of theMarineEnvironment of the Baltic SeaArea. The new agreement made an effort to relocate its focal point by formulation of principlesandobligations concerningeitherallsourcesof pollution of pollution from land

-

based sources, prevention of pollution from ships, pleasure crafts, prohibitionofincineration, prevention of dumping, exploration and exploitation

of the seabed and its subsoil

.

Also the annexes concern almost all sources of pollution:harmfulsubstances, criteriafortheuse of best environmental practice and bestavailabletechnology, criteria andmeasuresconcerningthe prevention of pollution from land

-

based sources.

3 _Cf._M_. _F_{i t}z m_{a u}_r_{i c}_e:_{International Legal Problems of the Environmental}_Protection _of

the Baltic Sea,Dordrecht

-

Boston

-

London1992,at7.

4 _See,

forexample,Z . B r o d e c k ia n dM . S i l lén:Pollution of the Baltic Sea Area and Its InternationalDimensionsyTheConference ofBalticRectors,Visby1991, at 7

-

8.

5 _M_. _{F i t z m a u r i c e: supra note 3,}_{at 19.}

6 _Cf._{Z . B r o d e c k i: Ecological}_Damages_in_{International}_Law_,_Warsaw_1990,_{at 161}_-_163. 7

The1972 Conventiononthe Prevention of Marine Pollution by Dumping of Wastes and Other

Matter; the 1979 Convention on Long

-

Range Transboundary Air Pollution (Geneva); The 1985

Guidelines for the Protection of the SeasfromLand-Based Sources

.

Ibidem, at87

-

91, 99

-

102.

8

(21)

20 ZDZISŁAW BRODECKI

5

. Fundamental

principles and obligations

A attentionmust be given to

the

fundamental

principles

and

obligations.

A newsetofgeneral ideasis reflected in Article 3 which providesthat: „1

.

The Contracting Partiesshall individuallyor jointlytake all appropriatelegis

-lative, administrativeor other relevantmeasurestoprevent and eliminate pollution in

orderto promotetheecological restoration oftheBaltic SeaArea andthepreservation of itsecologicalbalance.

2.The Contracting Parties shall apply the precautionary principle, i

.

e

.

, to take preventivemeasureswhenthereisreasontoassumethatsubstances or energy introduced, directlyorindirectly,intothemarineenvironmentmay createhazardstohuman health,

harm livingresourcesand marineecosystems,damageamenities or interfere with other legitimateusesof theseaevenwhen thereisnoconclusiveevidenceofacausalrelation

-ship betweeninputs andtheiralleged effects

.

3.Inorderto prevent and eliminatepollutionof theBalticSeaArea theContracting Parties shall promote the use of Best Environmental Practice and Best Available

Technology

.

If the reduction of inputs,resulting from the useof Best Environmental

Practice and Best AvailableTechnology, asdescribed in Annex II, doesnot lead to environmentallyacceptable results, additionalmeasuresshallbeapplied

.

4

.

TheContracting Parties shallapply thepolluter

-

paysprinciple

.

5.TheContractingParties shall ensure thatmeasurementsandcalculationsofemissions frompointsourcestowater andairandof inputsfrom diffusesourcestowaterandairare

carriedoutin ascientifically appropriatemannerin order toassessthestateofthe marine

environment oftheBaltic Sea Areaand ascertain theimplementationofthis Convention

.

6. The Contracting Parties shall use their best endeavours to ensure that the implementation of this Convention does not cause transboundary pollution in areas

outsidethe BalticSeaArea.Furthermore,therelevantmeasures shallnotleadeither to unacceptable environmentalstrains onairqualityand the atmosphereor onwaters,soil

andgroundwater, tounacceptablyharmfulorincreasingwaste disposal,or toincreased riskstohumanhealth

.

”

Thedutytotake

all

appropriatelegislative,administrative or

other

relevant

measuresto prevent or eliminatepollution is atraditional obligationadopted by the old Convention. The new form does not change it. Attention should

alsobegiventothefactthat Denmark andGermany are obligedtoimplement the Community obligations9

whereas Finland, Norway and Sweden use the

Nordicconcept of environmental law when designing their ownlegislation.10

The

other

BalticStates,however,

have

not integrated theirownenvironmental laws.11 Itis apity thatthenewConvention hasnotobliged all Baltic Statesto

9 _{The Treaty of}_Rome_provides_for_{particular procedures aimed at ensuring full implementation}

byMemberStatesof community obligations,whiletheEuropeanCourt of Justice hasdeveloped its own legal principles aimed at achieving greater integration of Community law into a national legalsystem

.

See e

.

g

.

,L.K räm e r: „The implementation ofenvironmentallaws by theEuropean

Economic Communities” , International Conference on Environmental Enforcement,Proceedings, VolumeI,Budapest 1992,at183

_-

229.

10 _{The 1974 Convention} _on_the _Protection_of _the _Environment _was _concluded _by _Denmark_,

Finland, NorwayandSweden.

(22)

21

NEWCONVENTION ON THE PROTECTION OFTHE MARINE ENVIRONMENT...

integratetheirenvironmental law by adoption of the Community obligations ortheNordicconcept ofenvironmental law,12_hence_moving_{forward the process}

of integration throughenvironmentallaw

.

Inclusion in the new Convention of the precautionary principle is quite understandable

,

sinceitwasinitiated by theOECDalready in 1987 andechoed

in certain binding instruments of the EEC

.

13 _{It has been also} _declared _by

Scandinavian countries

.

14 _Central _and _Eastern _{Europe must adopt the} _same

rule that preventive measures have to be taken here even when noevidence exists of acausal link between theemissionsand the effects

.

As the required technical know

-

how exists mainly in western countries, much of their technologycould be transferred to the new markets offered by

CentralandEasternEurope

.

This transfer of technology will becritical for the

successoftheBaltic Sea JointComprehensive Programme

.

Itis very important thatthenewConvention hasobliged touse Best Environmental Practice (BEP)

and the Best Available Technology (BAT) and described in Annex II the

measures which shall be applied.

ThePolluterPaysPrinciple(PPP)wasdeveloped as amethod of allocating

the costs of pollution control. In its original version, as introduced by the

OECD,it meant that thepolluter should bear theexpensesofcarryingout the

measuresdecided by public authoritiestoensure that the state of origin pays for itsown abatement costs, while an affected State (the Victim Pays Principle

—

VPP,

as

reversal of the PPP) pays for the occurring residual damage. As a compromise between thePPPand theVPP,the Equally Shared Responsibility

Principle(ESRP) and theMutualCompensationPrinciple(MCP)haverecently

beensuggested

.

15 _{Here the} _new _Convention _on _the _Protection _of _the _Marine

Environment of the BalticSea Area israther conservative, in that is hasonly

declared the existance of the PPPin a general way

.

For the good of the Baltic States, the new Convention recognizes the responsibility of states to ensure that activities within their jurisdiction and

control do not cause transboundary pollution in areas outside the Baltic Sea Area. Such an approach is in harmony with the Community obligations and

environmental law of Contracting Parties

.

16

6 .

The issues

in

context

Inrelation to harmful substances (the

„

blacklist” and „greenlist”)attention must be given to Article5 ofthe new Convention, which states that:

12 _Supra_{note 10}_. 13 L

.

K r äm e r:supranote 9,at192

-

196. 14 _Supra_{note 10.} 15 _Z. _{B r o d e c k i}_:_supra_{note 6,}_{at 22}

-

29 and35-37. 16

The principle oftheprohibitionofthe injurious use of a territory is awell

-

established rule of customaryinternational law.

(23)

22 ZDZISŁAWBRODECKI

„The ContractingParties undertaketo preventandeliminate pollution of themarine environment of the BalticSea Area caused by harmful substances from all sources,

according to the provisions of this Convention and, to this end, to implement the proceduresand measures ofAnnexI.”

Annex IobligestheContractingPartiestoprohibit, totally orpartially, the

use of specified substances17 _in _the _{Baltic Sea Area and} _its

_catchment

_area

. Other

substances

are bannedforcertainapplication.Moreover,

the States

shall endeavourtominimize and, wheneverpossible, toban the useofpesticides in thisarea.

Dischargesof otherharmful substancesnotonthelist are

also

formulated

in more precise form. New Article 6 on principles and obligations from

land-based sources providesthat:

„1

.

TheContracting Parties undertake to prevent and eliminate pollution of the BalticSeaArea fromland

-

based sources byusing,interalia,BestEnvironmental Practice for allsources and BestAvailableTechnologyfor pointsources.The relevant measures

tothisend shallbe taken byeach ContractingPartyin the catchment areaof theBaltic Seawithoutprejudice toits sovereignty.

2.The ContractingPartiesshallimplement the proceduresandmeasuresset outin

AnnexIII

.

Tothisend theyshall,interalia,asappropriateco

-

operatein thedevelopment and adoptionofspecificprogrammes, guidelines, standards or regulations concerning

emissions andinputs towaterand air,environmental quality,and products containing

harmful substancesand materials and theuse thereof.

3

.

Harmfulsubstancesfrompointsourcesshall not,except in negligiblequantities, beintroduced directly or indirectly into the marine environmentofthe BalticSea Area,

without a prior special permit, which may be periodically reviewed, issued by the appropriate national authority in accordance with the principles contained in Annex III, Regulation 3

.

The Contracting Partiesshall ensure that authorized emissions to waterand airaremonitored andcontrolled

.

4

.

Ifthe input fromawatercourse,flowingthrough the territoriesoftwo or more Contracting Partiesor forming aboundary betweenthem,is liabletocausepollution of the marine environmentofthe BalticSea Area,the ContractingParties concernedshall

jointlyand,ifpossible, in co

-

operation with athird stateinterested orconcerned, take

appropriatemeasuresin order to prevent and eliminate such pollution.”

Under AnnexIII regulation 3 the Contracting Parties shall be obliged to apply

the

specified principles and procedures when issuing the permits for

industrial plants.18

In this context, the new Convention has introduced the environmental

impactassessment asanational instrument whichissubjecttothe decisionof a competent national authority.Itusedtobe undertakenforproposedactivities

17_Substances_{banned for all final}_uses_,_{except for}_drugs

:DDT [l ,l ,l

-

trioch!oro

-

2,2

-

bis(chloro

-pheny)

_-

ethane] and itsderivativesDDE andDDD.PCB’s (polychlorinated biphenyls)and PCT’s

(polychlorinated terphenyls)are banned for alluses,except in existingclosed system equipment until the endofservicelifeorfor research, developmentandanalyticalpurposes.

18

(24)

23

NEWCONVENTION ON THE PROTECTION OF THE MARINEENVIRONMENT...

that werelikelytohaveasignificant

adverse

impact

on

theenvironment. It is reflected in

Article

7 in thefollowingform.:

„

1

.

Wheneveranenvironmental impactassessmentofaproposed activitythat islikely

tocauseasignificantadverseimpact on themarine environmentof theBaltic Sea Areais required byinternationallaworsupra-nationalregulationsapplicabletotheContracting

Partyoforigin,that ContractingPartyshallnotify the Commission and any Contracting Party which may be affected by a transboundaryimpacton the BalticSeaArea

.

2.The Contracting Partyoforigin shallenterintoconsultationswithanyContracting

Partywhich islikely to be affected by such transboundary impact, whenever consul

-tationsare requiredbyinternationallaworsupra

-

nationalregulationsapplicable to the

ContractingParty of origin

.

3

.

Wheretwo or more ContractingParties sharetransboundary waterswithin the

catchmentarea oftheBalticSea,theseParties shallcooperatetoensure thatpotential

impactsonthe marine environment of theBalticSea Areaarefullyinvestigatedwithin

the(

.

..

)”

.

In relation topreventionofpollutionfromships anddumping, theprovisionsof the old Convention and somedocumentsadopted by HELCOM (e.g., theGuidelinesfor

Co-operation in Investigating Violations or Suspected Violations of Discharge and Related Regulationsfor Shipsand Dumping) have been almost repeated by the new

Conventionandits Annexes.The basic provisions of thenew Convention are governed

by:

Article 8

•1

.

In order toprotectthe Baltic SeaAreafrompollutionfromships,theContracting

Partiesshall take measuresasset outin Annex IV

.

2.The Contracting Partiesshall develop and apply uniform requirementsfor the

provision of reception facilitiesfor ship

_-

generated wastes, takinginto account,inter alia, thespecial needsofpassenger shipsoperatingin theBalticSea Area.

Article 11

1

.

The Contracting Parties shall, subject to exemptions set forth in paragraphs

2 and 4of thisArticle,prohibit dumpingin theBalticSea Area.

2.Dumpingof dredged material shallbe subjecttoapriorspecialpermitissuedbythe appropriatenational authority in accordance with theprovisions ofAnnex V

.

3.Each Contracting Party undertakes toensurecompliance with the provisions of thisArticle byships andaircraft:

a) registeredinits territoryorflyingits flag;

b)loading,withinits territory or territorialsea,matter which is tobe dumped;or

c)believed to beengaged indumpingwithinits internal

-

watersand territorialsea

.

4.Theprovisionsof thisArticleshallnotapplywhenthesafetyofhuman lifeor of

ashiporaircraftat sea isthreatenedby the completedestructionortotal loss ofthe ship

or aircraft,or in anycasewhichconstitutesadangertohuman life,ifdumpingappearsto be the only way ofavertingthethreatand if thereis every probabilitythat thedamage consequentuponsuchdumpingwill be lessthanwould otherwiseoccur

.

Suchdumping shall besoconducted astominimizethelikelihoodof damagetohumanormarine life.

5

.

Dumping made under the provisions of paragraph 4 of this Article shall be

reportedand dealt withinaccordancewithAnnexVII and shall bereportedforthwith

(25)

24 ZDZISŁAWBRODECKI

6.In case of dumping suspected to be in contravention of the provisions of this

Article theContractingPartiesshallco

-

operate ininvestigatingthematter inaccordance with Regulation2 ofAnnexIV.

Theprevention of pollution fromoffshore activitieswasalmostnot regulated bythe

old Convention

atall.19At that time theproblem of exploitation of the

BalticSea Areawasnot yetadvanced.It has becomea real problem,hence the

new Conventionregulatesexplorationand exploitation of the seabed and its

subsoil more precisely.Article 12 states:

„

1

.

Each Contracting Partyshall take allmeasures in ordertoprevent pollution of

themarine environment of theBalticSea Arearesultingfromexplorationorexploitation of itspart of theseabedand thesubsoilthereof orfromany associated activitiesthereon as well as to ensurethat adequate preparedness ismaintained forimmediate response

actions against pollution incidentscausedby suchactivities

.

2

.

In order toprevent andeliminatepollution from such activities the contracting

Parties undertaketoimplement the procedures and measuresset outin AnnexVI,as far as theyare applicable.”

Annex VI on the prevention of pollution from offshore activities governs

notonly a sphere ofco-operationbutalsodischargesand reporting_procedure.20

7 .

A „

Code

of behaviour”

Modern law ontransboundary harm hasemphasized aquestion of notifi

-cation and consultation on pollutionincidents.21 It provides that states shall

have relevantinformation onactivities

that

mayproduceasignificant, adverse harmful effect and shall consult with potentially affected states at an early stageand

in

good faith. Notificationand consultationson pollution incidents are alsogoverned by the new Conventionin Article 13, in thelight of which:

1

.

Wheneverapollution incident in the territory ofa ContractingPartyis likely to

cause pollution to themarine environmentof the BalticSeaArea outside itsterritory and adjacent maritime area in which it exercises sovereign rights and jurisdiction accordingto international law,this Contracting Partyshall notify without delaysuch ContractingParties whoseinterestsare affected or likely to be affected.

2.Wheneverdeemed necessary by theContracting Partiesreferred to inparagraph 1, consultationsshould take place with aviewtopreventing, reducing and controlling such pollution

.

49 _Article₁₀_just_repeated

thateachContracting Party shall takeallappropriatemeasures in

order to prevent pollution of the marineenvironmentresultingfromexplorationand exploitation ofthe seabed and itssubsoil.

20 _{For the purposes of this Annex,}_{offshore activity}

meansany exploration and exploitation of oil andgas byafixedorfloating offshore installation or structureincludingallassociated activities thereon.

21

Negotiations will generallybemosteffectiveifthereremainsarealpossibilityoflitigation. It is mostoftenused within the contextof legal enforcementproceedings.