Legal aspects of sustainable development of seaports in Poland

Sea ports are the driving force behind economic development. If ports operate efficiently and in conditions that support growth, the entire national economy gains. However, ports facing barriers and a scarcity of favourable factors have a negative impact on a country’s economy. In terms of sustainable development, it does not suffice to increase the economic potential of ports; it is also necessary to strive for balance between social and environmental interests, so that the sea may provide for everyone, including the future generations. It is important to enable ports to operate in such a way as not to stunt their competitiveness but to allow for development without disrupting the social and economic balance. The aim of this article is to investigate whether the existing legal instruments in the field of sustainable development of ports match the specific profile of ports as entities and whether the assumptions for sustainable development work well in practice. The article contains an analysis and assessment of legal regulations concerning sustainable development of sea ports. Selected legal instruments with direct or indirect impact on the formation of the sustainable development policy for Polish sea ports have been analysed at the global, European and national levels. Reference has been made to regulations related both to hard law and soft law. The article draws special attention to a balance between social, economic and environmental interests as a foundation for sustainable development.


Introduction
Maritime areas and sea ports are important for prosperity. They form trade routes, provide energy and resources, and their vicinity is an attractive location for living and recreation. Thanks to sea ports and maritime transport powering the world economy, it is possible to take advantage of the dynamic growth in international commerce. Moreover, mineral deposit mining, aquaculture, marine biotechnology and the emerging submarine technologies allow for a more efficient utilization of these resources. Equally important are the eco-systemic and recreational functions as well as the aesthetic and cultural aspects of marine exploitation. On the other hand, rapid development results in a conflict of interests and a deterioration of the marine environment. Coastal degradation is becoming increasingly severe, with overcrowded maritime waterways and sea beds littered with ship wreckage [1].
From a global and regional perspective, the protection of seas and oceans is of key importance in the context of the deteriorating environmental situation. Countries and organizations are facing a challenge which calls for a quick response to globalization and climate change. Swift action is necessary, otherwise it might turn out that "there is not enough sea to go round". The struggle for marine space and coastal areas is becoming increasingly fierce, while the decision-making process in the maritime economy is inadequate and requires an integrated and sustainable approach based on a tight cooperation so that a balance can be reached between ecology, the economy and society. It is important to cater equally for sea-related interests so as to ensure their cohesion, effectiveness and ability to ease conflicts. Therefore, it is necessary to adopt D. Pyć's thesis that a new philosophy of maritime law is needed. In that sense, it is a good idea, then, to take a look at the ways in which the law governs sustainable development at the global, European and national levels.
International maritime transport is part of the global economic system, with sea ports acting as vital links [2]. In Poland, there is increasingly more emphasis on the role of the sea port sector for the enhancement of the maritime economy and the promotion of a sustainable transport system which makes a positive contribution to economic growth in the entire country [3].

The concept of sustainable development
Sustainable development is becoming increasingly popular and applied more and more frequently to numerous spheres of life, such as the law, economics and society. There is no standardized, common definition of sustainable development that would make it universally applicable to every field of science in which it is used.
The concept of sustainable development emerged following the publication in 1987 of the so-called Brundtland report [4,5]. The document noted that human activity had led to a deterioration of environmental quality and irreversible depletion of natural resources. Ever since, this phenomenon has been accompanied by concern for the natural environment, climate change as well as human (cultural, social and technological) activity driven by economic development and the expanding industry. Currently, sustainable development is assumed to rest upon three permanently fused pillars: society, the environment and the economy.
Therefore, sustainable development is supposed to involve appropriate and conscious management of the relationship between economic growth, concern for the environment (natural environment mainly) and the necessity to provide for various human needs that to a large extent determine the quality of living [6].
There are three aspects distinguished within sustainable development, such as: − ecological (environmental and natural): emphasizing the need for alignment of business and social activity with the existing capabilities of eco-systems, and therefore to consider natural wealth as a priority, − economic: focusing on the need for balance between business activity and ecosystemic productivity, including also providing for human needs, − social: stressing the problem of "global polarization," whereby the world has become divided into rich and poor / well-developed and underdeveloped regions, and drawing attention to the spread of diseases and other issues, such as the lack of access to drinkable water, − civilizational: the integration of this aspect into the wider picture should ideally anticipate cutting-edge scientific achievements rather than adapt to the existing technology [7]. Sustainability in the context of seas, oceans, ports and coasts is also multidimensional. With regard to environmental protection, the idea of protecting the seas and oceans requires focusing on the preservation of natural resources in a non-deteriorated condition in the long-term perspective. Economic sustainability presumes that economic trends cannot rely on the uncontrolled and irrational exploitation of marine and oceanic resources. Social sustainability proposes that the change should be consistent with the fundamental values, expectations and needs of the community. Political sustainability is another idea; in it, the drive is towards change through agreement and as a result of equal distribution of power across society [8].
The sustainable development of ports should be identified with the management of specific relations, or -in other words -with seeking balance in the individual (social, economic, ecological and spatial) spheres of that development. What this approach seems to imply is that sustainable development will not happen automatically, but must be planned and implemented accordingly by all entities operating within ports, such as the port management body, commercial entities, maritime administration authorities, ship owners, residents, local authorities, etc.

The sustainable maritime transport system
For a number of years, international organizations have been trying to push through the concept for the sustainable development of transport as a model way to ensure optimum development in each branch of the transport industry. One of these organizations operating in the field of maritime transport is the International Maritime Organization (IMO). IMO implements international standards designed to help build up a culture of maritime safety [9], and which are consistent with efforts to establish the Sustainable Maritime Transportation System -SMTS. The general assumptions for the Sustainable Maritime Transportation System were developed by IMO in 2013. IMO's approach to international maritime transport, including the port sector, is aimed at striking a balance between social, economic and environmental interests. The organization has set priority directions and assumptions which have particular relevance to sustainable development in the maritime transport system. These directions include promoting and improving the culture of environmental safety and management, seaman education and training; energy efficiency and ship-port interface improvement; power supply for ships; new technologies and innovations; safety at sea; vessel traffic support and consultancy systems; technical cooperation, financing mechanisms, responsibility and insurance; ocean management. The directions and assumptions for the sustainable maritime transport system, set by IMO, are a lasting contribution to the worldwide work of the Rio+20 conference.
In the context of this article, special attention should be paid to the commitment to enhancing the efficiency of the ship-port interface as a component of the sustainable development of maritime transport and -by extension -ports as the system's crucial link. While strong pro-environmental leanings could be indicated in maritime transport in terms of energy consumption, the search is still on-going for new technologies that will allow improving energy efficiency. The Sustainable Maritime Transportation System requires efficient port facilities in order to maintain a high level of operating capacity of sea-going vessels (e.g. sewage disposal, hull cleaning, fuel and energy supply). Logistical infrastructure should keep ships travelling at optimum speeds. Adequate port and port access infrastructure enable port-based ship-handling businesses to provide fast and highquality services. Having adopted a sustainable investment policy, the management bodies of Polish ports have been able to gradually improve the condition of port infrastructure and its compliance with TFL (transport -forwarding -logistics) requirements [10]. Investment efforts with respect to infrastructure improvement at Polish ports, which are consistent with the proposed system priorities, are exemplified by the extension of Szczecin-Świnoujście waterway to 12.5 m and the construction of the Port of Gdynia's sewage treatment installations that filter waste on its way into municipal sewers.
There are calls for the SMTS to include simplification and standardization of shipment documents and a more widespread utilization of electronic clearance systems for ships, cargo, crews and passengers. Emphasis is being put on the importance of streamlining administrative procedures related to customs clearance, checks and inspections. This is consistent with the plans for a system of pre-arrival cargo notification and clearance. The National Treasury Administration has found that every third container is now being cleared before it calls at a Polish port [11]. Risk assessment is completed automatically or manually based on electronic data. Further action, if necessary, is taken with respect to goods which must be checked physically in order to be cleared. Customs clearance procedures at Polish sea ports are currently fully electronic. The European customs area has implemented a policy of mutual recognition of inspections and procedures to allow for a smooth flow of goods as a key component of the European Union's internal market.
All of the points discussed above form part of a "holistic" concept of energy efficiency across entire the system. It is also definitely necessary to utilize innovations and apply the best practices to ensure that the port-ship interface operates at full efficiency.
Commercial exchange between states is constantly growing, which increases demand for sustainable international maritime transport. Modern industry is keenly aware of the need for sustainable development and environmental protection issues. The sustainable development of sea ports relies not only on infrastructural improvements but also on administrative efficiency and procedural smoothness, as recognized in the plans for SMTS. The priorities and assumptions adopted for the Sustainable Maritime Transport system, including those relating to sea ports, though very general and terse, are still being elaborated.

The sustainable development of sea ports in EU documents
The European port policy originates with the founding documents of the European Union, namely the Treaty of Rome which made provisions for the establishment of a common transport policy of EEC member states. Despite the commitment, however, sea ports as infrastructural components remained heavily neglected until as late as the 1990s when the first steps were taken towards a European policy [12,13,14,15]. Since then, a great number of documents of various rank and relevance to port development have been issued. Among them, the most noteworthy one is the European Commission's Green Paper on Sea Ports and Maritime Infrastructure [16]. The document sets out recommendations concerning: a) connecting sea ports into a trans-European transport network; b) increasing the role of ports for safety at sea; c) environmental protection at sea and at port; d) enhancing the operation of ports as transfer hubs within intermodal transport chains; e) short-distance sea shipping; f) transparency with respect to port fees. The most important purpose of the undertakings proposed in the Green Paper was to bring about a stronger integration of ports within intermodal transport chains, while simultaneously guaranteeing free and fair competition at and between ports on equal terms and in a competitive, commercial and liberalized setting. An action programme was drawn up, which included the actions to be taken by the Community itself as well as recommendations addressed to the interested parties. The improvement of port infrastructure and port efficiency was another key undertaking within the programme, which related to ports.
Another important document was the Resolution of the European Parliament "European Port Policy" [17], which took into account the Commission's communications hitherto: "Communication on European Port Policy" [18] and "Communication on the Future Maritime Policy: a European Vision for Oceans and Seas" [19] and earlier resolutions on maritime policy. The resolution pointed out numerous challenges facing European ports, particularly in relation to the natural environment, globalization, sustainable development, employment and living conditions with particular reference to safety and life-long learning, financing, access to the market and administration, as well as discriminatory measures undertaken in violation of fair competition by states from outside the European Union on geographically relevant markets [20]. It also argued that port infrastructure and the natural environment can coexist in a sustainable way. The problem of environment destruction which frequently contributes to economic losses in other sectors, such as tourism, agriculture and fishing, should be considered in close cooperation with the commissioner for natural environment to draw up and implement EU legislation and guidelines on ports and the natural environment. The resolution's strategic aim was to stimulate competitiveness in maritime transport and provide modern high-quality service through propagating the four principles under the European port policy: safety, quickness of service provision, low costs and respect for the environment.
Of all the documents issued, special note should be taken of the communication entitled: Ports: the engine for growth [21] The communication posed the following challenges to the EU ports: first, to increase the volume of handled cargo by 50% and create new jobs; secondly, to adjust ports and coasts to the developments in the sea shipping and shipbuilding industry (construction of increasingly larger ships powered by alternative fuels); thirdly, to diversify ports and divide them into two groups: well-developed ports and ports with access difficulties causing bottlenecks leading to increased pollution.
The communication defines priorities for further development of the EU sector so that, in line with the communication's title, ports would power and energize the EU economy in the future. The first priority is to connect ports into a trans-European transport network (TEN-T) to allow for integrated planning of infrastructure, cohesive investment strategies and financing through the EU in line with TEN-T guidelines. The Connecting Europe instrument and structural funds will aim to ensure that ports are connected with their hinterland and a wider transport network.
Another priority is to attract investment and modernize port services through laying down EU legislation intended to improve transparency in the financing of the public sector, assure fair competition between ports as well as attract private investment. Red-tape cutbacks are being planned for ports as a continuation of the actions within the framework of the Blue Belt Initiative, Directive 2010/65/EU, the e-maritime and e-Freight initiatives. The proposals were for reducing the legal uncertainty of port operators through implementing common principles of open and non-discriminatory access to the market and port services.
Emphasis was also placed on social dialogue within the port sector, the importance of enhancing the impact of ports on the environment and the innovations which hold a key position in the sector.
"The Green Paper" [22] set the focus of the works on the integrated utilization and management of seas and oceans. The paper covers diverse areas such as sea shipping and sea ports, shipbuilding and sea-related industries, maritime supervision, fishing, aquaculture, marine research, maritime wind energy, maritime and coastal tourism, employment in maritime sectors, coastal region developments and external relations within the maritime economy.
The assumptions of the green paper were augmented by another communication from the European Commission, entitled "Integrated maritime policy of the European Union," known as the blue paper [23]. The communication stressed that all areas of activity related to the oceans and seas of Europe are interconnected and should be coordinated in such a way as to allow accomplishing the intended goals in the long-term perspective [24]. The aim of the integrated maritime policy was to allow effectively addressing the challenges arising from problems such as globalization, competitiveness, climate change, deterioration of the marine environment, maritime and energy safety as well as sustainable energy use.
The fundamental goal of the integrated policy for the European Union was to increase the sustainable use of the seas and oceans with the simultaneous development of Europe's maritime economy and coastal areas [25] in order to ensure competitiveness, safety and reliability in the sector. The European Commission has committed itself to a number of actions, some of which relate to: − creating a European maritime space without administrative and customs barriers and introducing a complex strategy for maritime transport in the period from 2008 to 2018 in order to improve the efficiency and competitiveness of maritime transport in Europe, − laying down guidelines on the application of environmental regulations relating to ports and proposing a new policy for ports to take into account their multiple roles. One of the specific port-related actions initiated by the Commission was to issue a communication and an action plan concerning the creation of a European maritime transport area without barriers, resulting in the passing of a directive on reporting formalities for ships entering or leaving ports in the EU member states 2017/2109 [26]. All these initiatives aim to cut back on red tape and facilitate maritime transport between EU ports.
Simultaneously with the Commission guidelines, the European Parliament and the Council issued a directive in 2008, laying down the framework for Community action in the field of maritime environment policy (framework directive on maritime strategy) [27]. The framework directive on maritime strategy urges that the maritime environment in Europe is exposed to various harmful factors which have a negative impact on the health of the maritime ecosystem. Therefore, a common framework and goals were set to address the prevention of harmful human activity, protection and preservation of the maritime environment.
The European Commission's Blue Paper set in motion a common initiative for releasing the potential of the "blue economy" whose players are not only member states and regions but also all sea ports connected with the maritime zone [28]. The key concern of the "blue growth" strategy concentrates on the utilization of the potential of maritime sectors (the blue economy) in order to ensure a lasting economic revival in the EU, and in particular to create new jobs and support investment and sustainable development in sea ports.
One of the more essential documents on port policy in the context of its sustainable development is the directive on port-reception facilities, which was first introduced in 2000. The Directive has been in force for some years, but requires a review. The payment system implemented by the directive in force, in which ships pay a fixed minimum fee for calling at port, has certainly contributed to the reduction in the amount of waste generated on land. The existing payment system, in which ships are allowed to deliver an unlimited quantity of waste for a specific fee, appears to be unacceptable and in violation of the general principle by which the polluter should pay. Therefore, European ports are aware of the need for correcting the payment system.
One of the latest documents is the so-called port regulation (EU) 2017/352 [29]. It is the first regulation devoted entirely to ports. It sets out the principles of financial transparency of ports, provision of port services and setting fees for using the port infrastructure. The attractiveness of maritime transport depends on the accessibility, efficiency and reliability of port services, on actions for simplifying administrative procedure at the port and lifting of limitations on the provision of port services.
The resolution defines and governs basic services such as bunkering, cargo handling, anchorage, passenger services, reception of ship-generated waste and cargo scraps, piloting for safe navigation inside and near the port, as well as tugging.
Because ports occupy a geographically limited territory, the number of serviceproviding entities at the port may be subject to limits related to a shortage of land or coastal space, infrastructural conditions, traffic capacity, or reasons of safety, environmental protection and sustainability.
It is necessary to permit diversity in payments for the use of port infrastructure in order to promote close-range maritime shipping and attract watercraft with above-average operating characteristics in terms of environmental friendliness, energy efficiency and rate of emissions, particularly where this relates to maritime transport operations at sea and on land. This should mark a step towards accomplishing the policy aims relating to environmental protection, climate change, sustainable development of ports and their surroundings, in particular through contributing to a reduction of the environmental impact of watercraft calling and waiting at the port.
The port management body or a competent authority may limit the number of port service providers for a given type of service due to the fact that a policy of no restrictions would be incompatible with the need for port operations being carried out in a safe, protected and environmentally sustainable way.
In order to ensure accessibility of port services for all port users, at each berthing point, continuously, around the clock, and to assure safety, protection and environmental sustainability of port operations, member states may decide to impose upon port service providers the obligation to provide public services, where port services are concerned, and may grant the port management body or a competent authority the right to impose such obligations.
The resolution does not impose any specific model of management of sea ports, other management models being permitted subject to compliance with the rules of provision of port services. The resolution does not restrict the port management body or the competent authority in their ability to establish a payment collection system as long as fees for using port infrastructure, paid by ship operators and cargo owners are transparent, including in particular easy to identify, non-discriminatory and spent on maintaining and developing the service infrastructure and facilities necessary to perform or make easier the transport operations on the premises of ports and on their access waterways.
Ports contribute to the European industry's long-term competitiveness on world markets by providing added value and new jobs in all coastal regions of the European Union.
According to the European Commission, the new resolution is supposed to help connect ports into flexible transport and logistical chains and thereby to increase efficiency in the utilization and operation of the trans-European transport network and a sustainable internal market.
Besides the documents discussed above, an important role for policy-making for sustainable development of sea ports is played by the European Sea Port Organization (ESPO) established in 1993 and based in Brussels. ESPO's mission is to represent European sea ports and provide ports with incentives for pro-active environmental protection through: − providing guidelines and preparing recommendations on environmental management (Green guidebook), − developing guidelines on specific issues (for example, conservation of nature), − developing and promoting tools and methodologies for port environment management (EcoPorts tools), − providing a platform for port cooperation and sharing experience (EcoPorts experience), − visibility and recognition for top players (ESPO award, EcoPorts marking and certification). ESPO carries out research among its members and uses the resulting data to publish annual reports. It also sets the most important ten environmental priorities for European ports. The most important priority in recent years is air quality, energy consumption, noise, water quality, deepening, waste and rubbish.

Domestic legal instruments
The Republic of Poland's maritime policy up to 2020 (with a perspective until 2030) was adopted on 17 March 2015 by a resolution no. 33/2015 of the Council of Ministers and is based on the constitutional principle of sustainable development [30]. The draft of Polish maritime policy was developed at the international level by the Interdepartmental Team for Maritime Policy of the Republic of Poland. The priorities of the Polish maritime policy include strengthening the position of Polish sea ports; increasing the competitiveness of maritime transport; ensuring safety at sea; establishing conditions for growth for a maritime economy based on knowledge and qualifications; rational utilization of marine natural resources; sustainable management of the fishing industry; improving the energy security of the country and streamlining maritime management. From a procedural point of view, Polish maritime policy is currently a development-oriented policy, but requires a practical approach for better efficiency. Enabling access to electrical power connections in the coastal areas and providing adequate and sufficient facilities for reception of ship-generated waste will not only make Polish ports more attractive, but will also reduce air pollution emissions, noise levels and the quantity of waste discharged directly into the sea, as well as contribute to an improvement in the health of the marine environment. The stated mission of the Republic of Poland's maritime policy is to maximize benefits for the citizens and the economy, which arise from a sustainable use of the seaside location of the country and the resources of the seas and oceans.
The year 2013 saw the establishment of a programme for the development of sea ports until 2020 (with perspectives until 2030) [31] whose primary focus is operational and implementational. The programme was created to implement medium-term development strategy and the Transport Development Strategy until 2020 (with a perspective until 2030) and will form the framework for infrastructural investments in Polish sea ports in connection with the European Union's budget planning for 2014-2020. It covers within its scope ports with primary importance for the maritime economy (i.e. Gdańsk, Gdynia and Świnoujście) and the other boards and quays which contribute to economic development in their surrounding areas. Besides the goals, priorities and tasks related to the continued development of Polish sea ports, a diagnosis of the current economic situation of the port sector and a forecast for cargo volume and passenger traffic were formulated. That was used to formulate the main goal of the programme, two detailed goals and six priorities. The goal of the programme is to increase the competitiveness of Polish sea ports and their contribution to the social and economic development of the country as well as making sea ports more prestigious in the international transport network. The two detailed goals were specified as follows: aligning the service portfolio of sea ports with the changing market needs and creating a safe and environmentally friendly port system. As with the Sea Port Development Strategy until 2015, the guiding principle of the Programme was compliance with other programme documents emanating from the European Union and domestic documents specifying the directions of social and economic development. Documents such as programmes, strategies and policies at the global, European and national levels usually set out non-binding standards, which makes their effective implementation questionable.
The six priorities of the programme were specified as follows: developing port and seaside access infrastructure; adjusting port infrastructure to the changing cargo structure and developments in other economic functions; integrating ports with other members of transport supply chains through developing land-side port access infrastructure; digitization of Polish sea ports; ensuring safety for port users; compliance with environmental restrictions in planning port operations.
The sixth priority indicates the need for bringing port operations into compliance with standards for environmental protection and principles of sustainable development. Ports and business entities operating within ports should cut back on those of their operations which have a harmful impact on the environment. The authors of the programme stress that the construction of port infrastructure for reception of ship-generated sewage waste from ships anchored at the port and their subsequent discharge into the land-based sewage system will be an important component of plans to improve the port environment. This investment will be carried out in conformity with the requirements of 2014 by amendments to Appendix IV of the MARPOL Convention.
Besides the on-going efforts related to reducing the negative impact of port operations on the environment, there are indications that Polish sea ports should consider in their investment plans coastal systems, which are becoming increasingly popular in Europe, for powering vessels with electricity, also known as cold-ironing. The application of coldironing, thanks to supplying energy from land-based sources, will allow ships berthed at port to reduce their noise levels and exhaust emissions. The cold-ironing system is also approved of by the European Commission.
The programme also states investment efforts forming part of the environmental management at port: obtaining thermal energy from renewable energy sources, extending infrastructure for alternative fuels (e.g. LNG), providing for ship-generated waste reception in line with the requirements of Appendix V to the MARPOL Convention and improving handling safety of hazardous cargo. The need is also indicated for updating the list of Natura 2000 areas located within the administrative boundaries of ports in order to optimally protect the natural environment and simultaneously to provide ports with optimum conditions for growth.
Besides investment measures, the need has been signalled for taking organizational and legislative action such as adjusting the infrastructure for access by road and rail to the requirements of the TEN-T network, establishing a national preference system to support intermodal transport, supporting initiatives with a focus on integration of the representatives of sea port environments, for example, through cluster initiatives.
It seems that the sea port development programme until 2020 is broader and more specific in setting directions for the development of sea ports and the methods of accomplishing the goals set. The programme sets out a number of specific investments which should be implemented in step with the programme. Moreover, the programme lays down progress indicators and implementation result as well as lists funding sources which will make the programme more easily trackable.

Conclusion
The sustainable development of ports is not supposed to be a stumbling block to economic growth, but an alternative approach adopted in opposition to economic development as traditionally conceived, but with no detriment to high living standards. Also, sustainable development is not incompatible with progress. It is a call for caution and moderation with the aim of reconciling key areas, such as economic growth and equal distribution of benefits. Thanks to compliance by sea ports with the principles of sustainable development, we will not only increase their potential, but we will also save communities and maritime and oceanic resources that will provide for both ourselves and our posterity.
It is worth stressing that legal regulations on sea ports, including on their sustainable development, may be mostly classified as soft law. At the global, European and national levels, legal instruments take the form of documents setting out non-binding legal standards. There is a variety of policies, programmes and communications, all of which are only guidelines and recommendations for port management bodies, but which do not require absolute compliance. These documents are the product of a compromise between private and public entities interested in the development of sea ports in a broad sense. It should also be noted that legal instruments discussed in this article are in principle not only mutually cohesive but also mutually complementary. This is especially noticeable at the European and national levels.
There was a long-running discussion on the way in which to lay down principles for a common port policy: in the form of an EU directive or resolution. For a number of years, wide-ranging consultations were conducted with the representatives of entities interested in port policy and their opinions and requests were considered, but it was impossible to reach a win-win settlement in the form of a binding piece of legislation. It was only in recent years that the European Commission has geared up efforts to increase port competitiveness, attract new investment, ensure sustainable development, preservation of the natural environment, transparency in public fund management, as well as extend the role of ports within the trans-European transport network. Most of these problems are covered by a new regulation on port services and financial transparency of ports, to enter into force in 2019, which will be binding on the member states and by extension also port management bodies covers most of these issues. In the future, it will possible to assess the effectiveness of the solutions implemented in the resolution.