Date of publication: 02.12.2021
In their previous article the authors presented the problem, which is a physical barrier, associated with the construction of the first wind farms in Polish maritime areas. In this article the attention will be drawn, among others, to the current status of excavation and disposal of dumped chemical weapons and the removal from Polish maritime areas of wrecks posing a threat to maritime economic activity, in light of current legal regulations.
Sinking of weapons in the Baltic Sea
As already pointed out earlier in the aforementioned article, the dumping of conventional and chemical weapons seized on German territory was legal until the 1960s. It was the fastest and not very costly method of demilitarizing Germany after World War II. In the absence of knowledge of how to destroy chemical weapons at the time, the method of neutralizing them by dumping additionally ensured that they would not be mined for reuse. Initially, chemical weapons must have been dumped at a depth of at least 4000 m, but for economic reasons this criterion was lowered, as a result of which tens of thousands of tons of ammunition ended up, among others, in the shallow Baltic Sea.
CW agents were neutralized by dumping in the Baltic Sea on the basis of the following decisions and legal acts:
- Potsdam Agreement – „Protocol of the Proceedings” (Berlin, 1 August 1945): as written in Section II, A.3.(i).b: entitled “The principles to govern the treatment of Germany in the initial control period”:
“All arms, ammunition and implements of war and all specialized facilities for their production shall be held at the disposal of the Allies or destroyed. The maintenance and production of all aircraft and all arms ammunition and implements of war shall be prevented”.
The purpose of the Potsdam Conference was to determine the mode of liquidation of the effects of World War II, the fate of Germany, the development of peace treaties, and the principles of organization of the postwar world. One of the most important provisions, enshrined in the Potsdam Agreement, was the demilitarization of Germany, while not specifying how to neutralize both conventional and chemical weapons;
- Continental Committee on Dumping: in 1946, the Allied Forces Command established as “the authorized means of disposing of dangerous munitions their sinking at sea or destruction". Due to the fact that dumping at sea at that time was the quickest, safest, and cheapest method of disposing of vast quantities of conventional and chemical munitions, the countries of the anti-Hitler coalition established an organization called the “Continental Committee on Dumping” to coordinate operations to dump weapons and the chemical warfare agents. It was also decided that occupational authorities of every zone were responsible for the disposal of weapons found on their territory.
Legal regulations on weapons lying on the bottom of the Baltic Sea
Approximately 60 years have passed since the end of the dumping of conventional and chemical weapons which were left over from World War II, and the period of time during which wrecks of ships or vessels which took part in warfare in the Baltic Sea are lying around is even longer. Due to the progressive corrosion of shipwrecks, containers and barrels with weapons and chemical ammunition. In the face of the increasing exploitation of the Baltic Sea resources, e.g. in the context of such investments as Nord Stream II, Baltic Pipe and offshore wind farms in Polish maritime areas, the risk of leakage of harmful substances such as fuels and oil derivatives, toxic warfare agents and their degradation products to the Baltic Sea water and seabed as well as to organisms living in it is growing. In view of the above, the authors of this article feel obliged to present to the readers the current legal status, both in terms of international and national law, of the issues concerning hazardous waste deposited on the seabed of the Baltic Sea, which are the remnants of warfare fought during World War II.
If we talk about international law on this issue, we should start first of all from the legal act, which is currently the basic legal document in the field of maritime law, and called in doctrine the constitution of the sea, that is the United Nations Convention on the Law of the Sea (UNCLOS), drawn up in Montego Bay on 10 December 1982. Poland ratified this Convention on 6 November 1998. It is important to keep in mind that the Law of the Sea Convention is an international agreement of universal application. In accordance with Article 123(b) of the Convention, States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end, they shall endeavour, directly or through an appropriate regional organization, to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment. In the further part of the Convention on the Law of the Sea, we find, among others, the obligation to protect and preserve the marine environment, contained in Article 192 of the Convention. Article 194, on the other hand, talks about measures that are necessary to prevent, reduce and control pollution of the marine environment. Paragraph 1 of the same legal standard states that “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavor to harmonize their policies in this connection”, while paragraph 3 indicates that the measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. In addition, Article 195 of the Convention on the Law of the Sea imposes a duty not to transfer damage or hazards from one area to another or transform one type of pollution into another. This provision, in its disposition, explicitly states that in taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.
In a situation where after World War II the dumping of chemical weapons in the seas was a fully legal process, and in view of the fundamental legal principle of the non-retrospective application of laws (lex retro non agit), it is under the UNCLOS Convention, and in particular with the legal norms cited above, contained in that Convention, signatory States have a duty to reduce pollution of the marine environment from any source, including from dumped chemical weapons. These regulations are a kind of a bridge between, legal until the 1960s, the practice of dumping weapons and today's consequences of those actions in the form of release of toxic substances in the Baltic Sea and the resulting degradation of the marine environment.
London Convention & Chemical Weapons Convention
Other legal tools at the level of international law, closely related to the subject of this article are:
- The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, December 29, 1972. (London Convention);
The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), signed in Paris on 13 January 1993.
- The first Convention refers to the declarative expression of the prohibition of dumping wastes and other substances. In this Convention we can find such definitions as, among others, dumping, which is any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea and any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea (Article III of the Convention). Additionally, under the provisions of the Convention, the dumping of any material produced in any form (e.g. solid, liquid, semi-liquid, gaseous, or living organisms) for biological and chemical warfare is prohibited (Article IV of the Convention).
The CWC, on the other hand, refers to the prohibition of the development, production, stockpiling, and use of chemical weapons, and includes regulations relating to the destruction of chemical weapons stockpiles. The Convention introduces, in Article II, definitions such as:
1. “Chemical Weapons” means the following, together or separately:
(a) Toxic chemicals and their precursors, except were intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;
(b) Munitions and devices specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released a result of the employment of such munitions and devices;
(c) any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b);
2. “Old Chemical Weapons” means:
(a) chemical weapons which were produced before 1925; or
(b) chemical weapons produced in the period between 1925 and 1946 that have deteriorated to such extent that they can no longer be used as chemical weapons;
3. "Abandoned Chemical Weapons" means:
Chemical weapons, including old chemical weapons, abandoned by a State after 1 January 1925 on the territory of another State without the consent of the latter.
The key issue, according to the authors of this article, will be the proper qualification of the CW agents lying on the seabed of the Baltic Sea. According to the authors, we are dealing here with CW agents, defined as "old chemical weapons" and "abandoned chemical weapons".
Under Article III of the CWC, with respect to old chemical weapons and abandoned chemical weapons, each State Party shall declare whether there are abandoned chemical weapons on its territory and provide all available information on such weapons. However, paragraph 2 of Article III of the CWC stipulates that the provisions of this Article and the relevant provisions of Part IV of the Verification Annex IV shall not, at the discretion of a State Party, apply to chemical weapons buried on its territory before 1 January 1977 and which remain buried, or which had been dumped at sea before 1 January 1985. Unfortunately, the Republic of Poland made use of this very provision, thus closing the way for, inter alia, the commencement of consultations for the destruction of chemical weapons with the State Party identified as the Abandoning State Party; the provision of all necessary financial and technical resources, technical assistance and know-how, as well as other measures by the Abandoning State Party; in case the Abandoning State Party cannot be identified, applying to the Organization for the Prohibition of Chemical Weapons (OPCW) and other States Parties for assistance in destroying the abandoned chemical weapons; or entering into agreements or making arrangements with other States Parties for the destruction of the abandoned chemical weapons. In the absence of the ability to identify the Abandoning State Party, to request the Organization for the Prohibition of Chemical Weapons (OPCW) and other States Parties to provide assistance for the destruction of abandoned chemical weapons or to enter into agreements or arrangements with other States Parties to the Convention for the destruction of abandoned chemical weapons. The above fact creates, according to the authors of this article, a number of implications negatively influencing the effectiveness of the process of destruction of dumped chemical weapons in Polish maritime areas.
The Marine Strategy Framework Directive and the Helsinki Convention
From a more local perspective, directly affecting the environment of the Baltic Sea, two main sources of law relevant to the subject of this article should be mentioned:
- Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive);
- The Convention on the Protection of the Marine Environment of the Baltic Sea Area of April 9, 1992. (Helsinki Convention).
The Marine Strategy Directive establishes a framework within which Member States shall take the necessary measures to achieve or maintain good environmental status in the marine environment by the year 2020 at the latest. For that purpose, marine strategies shall be developed and implemented in order to protect and preserve the marine environment, prevent its deterioration or, where practicable, restore marine ecosystems in areas where they have been adversely affected and prevent and reduce inputs in the marine environment, with a view to phasing out pollution, so as to ensure that there are no significant impacts on or risks to marine biodiversity, marine ecosystems, human health or legitimate uses of the sea. Thus, it introduces a framework for cooperation, inter alia on the prevention of marine pollution, understood as the direct or indirect introduction into the marine environment, as a result of human activity, of substances or energy, including human-induced marine underwater noise, which results or is likely to result in deleterious effects such as harm to living resources and marine ecosystems, including loss of biodiversity, hazards to human health, the hindering of marine activities, including fishing, tourism and recreation and other legitimate uses of the sea, impairment of the quality for use of sea water and reduction of amenities or, in general, impairment of the sustainable use of marine goods and services.
The Helsinki Convention applies to the protection of the marine environment of the Baltic Sea area, which comprises the water and the seabed, including its living resources and other forms of marine life. Each of the signatory States shall, within its territorial sea and internal waters, implement the provisions of the Helsinki Convention through appropriate national authorities. The Contracting Parties shall take, individually or jointly, all appropriate legislative, administrative and other measures to prevent and abate pollution in order to promote the ecological recovery of the Baltic Sea area and to preserve its ecological balance. Furthermore, they undertake to prevent and eliminate, in accordance with the provisions of this Convention, pollution of the marine environment of the Baltic Sea area resulting from harmful substances from all sources and, for this purpose, to implement the procedures and measures provided for in this Convention. Additionally, the Helsinki Convention introduces legal definitions which are relevant to the issue of toxicological warfare agents deposited in the Baltic Sea. According to this Convention:
- "Harmful substance" means any substance, which, if introduced into the sea is liable to cause pollution;
- "Hazardous substance" means any harmful substance which due to its intrinsic properties is persistent, toxic or liable to bio-accumulate;
- "Pollution incident" means an occurrence or series of occurrences having the same origin, which results or may result in a discharge of oil or other harmful substances and which poses or may pose a threat to the marine environment of the Baltic Sea or to the coastline or related interests of one or more Contracting Parties, and which requires emergency actions or other immediate response.
These definitions, along with looking at CW agents found in the Baltic Sea through the lens of United Nations A/RES/68/208 Resolution adopted by the General Assembly, entitled “Cooperative measures to assess and increase awareness of environmental effects related to waste originating from chemical munitions dumped at sea” will allow us to look at the issue of CW agents in the Baltic Sea from a different perspective, as waste deposited on the seabed and constituting nothing more than a delayed-ignition bomb.
National legislation on seabed weapons
On the grounds of the internal law of the Republic of Poland, the key legal acts, in the opinion of the authors, concerning the issue addressed in this article are:
- Act concerning the maritime areas of the Republic of Poland and the maritime administration, 21 march 1991;
- The Act of 20 July 2017, The Water Law;
- The Act of 27 April 2001, The Environmental Protection Law.
According to the Act concerning the maritime areas of the Republic of Poland and the maritime administration, the authorities of the maritime administration are:
- The Minister of Transport and Marine Economy - as the chief organ of maritime administration;
- The directors of the maritime offices - as the local authorities of the maritime administration.
The organs of maritime administration include, in particular, the following issues:
- protection of the marine environment against pollution caused by the use of the sea and by dumping wastes and other substances within the scope not regulated by geological and mining law;
- management over the territorial sea and internal sea waters and over the land covered by these waters, as referred to in the provisions of the Act of 20 July 2017. - Water Law;
- to perform tasks in the field of protection of the marine environment and protection against flooding in accordance with the provisions of the Act of 20 July 2017. - Water Law.
All legal acts presented above, concerning the issue of chemical weapons remaining on the seabed of the Baltic Sea after World War II, are legal regulations focused on the aspect of monitoring the levels of chemical substances and the threat they pose to the marine environment. None of the legal acts directly regulates the aspect of extraction and neutralization of harmful substances from the Baltic Sea. The closest to regulating this issue is the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction (CWC), however for the reasons described in the earlier part of this article the Polish State has for the time being withdrawn from the application of the regulations contained therein.
Legislative aspect of shipwrecks in Polish maritime areas
As already indicated in an earlier article on chemical weapons in Polish maritime areas, there are more than 415 wrecks in Polish maritime areas, of which about 100 are located in the Gulf of Gdansk. Unfortunately, both the authorities of maritime administration and environmental protection bodies have shown a lack of decisive action in this respect. Only 2% of the wrecks in Polish maritime areas have been investigated. What is more, even in the case of vessels, in which a threat related to the leakage of fuel and oil-derivative substances was identified, no quick and effective actions were taken on the basis of articles 2 and 21 of the Act on crisis management, inter alia, in the scope of preparation to take control over the threats, as well as removal of effects of the event that had already occurred and restoration of resources. The situation related to wrecks in Polish maritime areas is not improved by the fact that Poland has not yet ratified the The Nairobi International Convention on the Removal of Wrecks, also known as the Wreck Removal Convention (“WRC”), signed in Nairobi in May 2007. The WRC Convention entered into force on April 14, 2015. Poland's failure to ratify this Convention is an undesirable state of affairs for at least the following two reasons:
- beyond the Poland's reach are the benefits of mandatory financial liability coverage;
- non-ratification of the Convention is tantamount to non-fulfilment by Poland of the obligation set forth in EU Council Document No. 15859/08 ADD 1 of November 19, 2008, which, as it were, obliged member states to be bound by the WRC before January 1, 2013.
The Wreck Removal Convention was intended to provide a legal framework for action, through their removal, against shipwrecks presenting a hazard or navigational obstacle, or a threat to the marine environment. According to Article 1(1) of the WRC Convention, it applies in principle within the exclusive economic zone, but a State Party may, by virtue of Article 3(2), extend the application of this Convention to wrecks located within its territory, including the territorial sea. Along with the entry into force of the WRC Convention, a discussion began on the possibility of applying the Convention to wrecks dating back to the Second World War, i. e., the scope of the Act, which is as close to Poland as possible. An additional justification for undertaking an analysis of the possibility of applying the WRC Convention to such objects is the fact that the Nairobi Convention adopts a broad definition of wreck, covering also any object that is or has been on board such a ship or is lost at sea from a ship (Article 1(4) of the WRC Convention).
One of the views towards which the authors of this article are inclined is that, despite the lack of retroactivity of legal acts, the purpose of adopting the WRC Convention is to extend and clearly establish the rights of states to intervene in the case of wrecks posing a threat in the exclusive economic zone. In such a case, the shipowner's liability cannot be applied to a wreck that predates the entry into force of the WRC Convention, however the application of the Convention to such wrecks may be justified by the realization of the purpose of the Convention, i.e., to give the State the right to intervene in the face of danger. This is undoubtedly an argument that the application of the WRC Convention to pre-existing wrecks posing a threat is justified. However, as long as Poland does not undertake actions aimed at ratification of the WRC Convention, considerations on the possibility or lack thereof of applying the Convention to WWII shipwrecks in Polish maritime areas will be purely theoretical.
Threats to potential investors of offshore wind farms in Polish maritime areas
Despite the statutory delegation, the maritime administration did not conduct a comprehensive identification of hazardous materials dumped in Polish maritime areas and did not recognize the scale of the related threats.
Moreover, there were no records of wrecks containing data on their location, amount of fuel in the tanks and condition of the structure, no information on the quantity, type and exact location of dumped chemical weapons and no methodology and technique of estimating the risk related to contamination of the marine environment. Similar to maritime administration, the administration of environmental protection acted.
Despite information on threats posed by hazardous materials deposited on the seabed of the Baltic Sea, no monitoring of Polish marine waters, including sediments and living organisms (e.g. fish, mussels) for concentrations of toxic warfare agents and their breakdown products, or - except for benzo(a)pyrene - fuel and petroleum products from shipwrecks, has been carried out. Water quality surveys and assessments have not even covered the already recognized sites of sunken CW agents and fuel shipwrecks.
Another problem, which poses a direct threat to potential investors connected with OWF in Polish maritime areas is the fact that the SAR Service does not have trained personnel and specialist equipment to carry out actions in the area of chemical contamination and to combat threats connected with oil-derived materials deposited in the seabed sediments and with fuel in the wreck tanks.
Similar to the SAR Service, the Polish Navy is capable, to a very limited extent, of taking actions concerning toxic warfare agents in Polish sea areas, as well as wrecks located at greater depths. The Navy does not have equipment for direct elimination of chemical contamination, including environmental protection in a manner compliant with the provisions of applicable law (The CWC Convention).
In addition, Navy mine divers have been trained to conduct underwater work to a depth of 52 m, where it is no secret that fragments of wrecks, posing the greatest danger, lie at a depth of about 70 m.
With the legislative shortcomings regarding effective solutions to the problems associated with the remnants of WWII indicated in this article, and with the Polish state administration's approach to this issue to date, which seems to either overlook or ignore the dangers associated with the possible leakage of toxic warfare agents or petroleum products in significant quantities into the Baltic Sea environment, a private investor, upon discovering a threat from toxic warfare agents or the excavation of chemical munitions, is left alone with the need to solve this problem.
Given the high complexity of the process of neutralizing CW agents, or even conventional munitions, deposited in the marine environment and the need to engage highly specialized equipment and personnel for such an operation, the services of private entities offering such services, which will be costly, and the use of these services will require tenders under the Public Procurement Law. It should be emphasized that in such a situation, due to the tender procedure, the response time for clearing a given area in the adjacent zone of weapons lying on the bottom of the Baltic Sea may be very significantly extended.
Taking into account additionally the above mentioned passivity of the state administration as regards the obligation to monitor and identify threats from both toxic warfare agents and shipwrecks lying on the seabed of the Baltic Sea, and thus the sometimes great uncertainty as to the quantity, degree and type of threat, calculating the costs of excavation and neutralization of such hazardous materials may prove simply impossible or so time-consuming that it will block investments in OWF for many months.
The purpose of this article was, firstly, to indicate the enormous legislative gaps in the current legal system in relation to issues related to chemical weapons, among others, deposited on the seabed of the Baltic Sea, and secondly, to draw the attention of entities wishing to engage in offshore wind energy in Polish maritime areas to the subject of this article, in the context of quite ambitious plans related to investments in Polish offshore wind energy, which in view of the above considerations may turn out to be simply unrealistic (especially in terms of accepted forecasts and action schedules).
It should not be forgotten that the lack of appropriate approach of entities investing in Polish offshore wind energy to the problem of unexploded ordnance and chemical weapons on the seabed of the Baltic Sea may lead to many legal implications, e.g. withdrawal of the permit to build an OWF, or to actual implications, e.g. causing an environmental disaster in the Baltic Sea.
Without decisive actions of our state, aimed both at the ratification of appropriate sources of international law, as well as at the systematization of national law, i.e. by undertaking further works on the amendment of the Maritime Code and a number of other acts directly related to the problem, the activities related to offshore wind farms in Polish maritime areas will remain only activities at a purely theoretical level, which are repeatedly discussed in isolation from the obstacles and problems described above.
Mateusz Romowicz – attorney at law
Przemysław Niewiński, MA – lawyer, law firm consultant
Kancelaria Radcy Prawnego
Legal Consulting-Mateusz Romowicz