Ballast and Biosecurity: The Legal, Economic and Safety Implications of the Developing International Regime to Prevent the Spread of Harmful Aquatic Organisms and Pathogens in Ships' Ballast Watert

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Ballast and Biosecurity: The Legal, Economic and Safety Implications of the Developing International Regime to Prevent the Spread of Harmful Aquatic Organisms and Pathogens in Ships' Ballast Watert

in Ocean Yearbook Online

References

t EDITORS' NOTE.-An earlier version of this paper was presented in June 2001 to the University of the Aegean-2nd International Conference 2001 "Safety of Maritime Trans- port." The author gratefully acknowledges the help provided by the faculty, staff and students of the World Maritime University (Sweden) where the author carried out the research for this paper. She also thanks Capt. Dandu Pughiuc, Chief Technical Advisor to the GEF/ I UNDP/IMO Global Ballast Water Management Programme for his comments. All opinions and any errors or omissions are the sole responsibility of the author. 1. It can be intentional, for example, importing exotic species or seeds for farming or other activities, or it can be unintentional, for example, seeds in dirt caught in car tires on international travel or attached to tourists' shoes.

2. International Maritime Organization, Focus on IMO: Alien invaders-putting a stop to the ballast water hitchhikers (London: IMO, 1998), p.l. Accessed 15 August 2002 on the World Wide Web: http://www.imo.org. 3. North American Commission for Environmental Cooperation, "Super in- vaders spreading fast," Trio (Winter 2000-2001). 4. International Maritime Organization, "UN moves on alien invaders," Media Release (10 July 2000) London: IMO, p.l. Accessed 15 August 2002 on the World Wide Web: http://www.imo.org. 5. E. Lazlo, "Human evolution in the third millennium," Futures 33 (2001): 649-58 provides an interesting analysis of social evolution through extensive evolu- tion, the objectives of which, according to Lazlo, are "conquest, colonization and consumption." Lazlo advances an alternative possibility based on an expansionary perspective called intensive evolution. Aside from the present paper, the analogy with human colonizing activity is also found in other writing in this field: see for example, C. Shine, N. Williams and L. Gundling, A Guide to Designing Legal and Institutional Frameworks on Alien Invasive Species (Gland, Switzerland, Cambridge and Bonn: IUCN, 2000). 6. G. Casale and H. Welsh, "The international transport of pathogens in ships' ballast water," Journal of Transportation Law, Logistics and Policy 66 (1997): 79- 87.

7. Michael Grey, "More muscle for port health," Lloyd s List MaritimeAsia (May 2001): 10 comments on this point in the context of the foot-and-mouth disease restrictions. 8. Global Ballast Water Management Programme, The Problem, (London: IMO, 2000). Accessed 15 August 2002 at GloBallast Programme Web site on the World Wide Web: http://globallast.imo.org/problem.htm. 9. Ibid. 10. World Infodesk (April 2001). "Vessel with first smokeless diesel engine," Marine Talk, 26 (electronic newsletter). Accessed 15 August 2002 on the World Wide Web: http://www.marinetalk.com/infodesk (it is found under the industry News link on this Web page).

11. B. Reyes (May 2001). "Owners and yards move to 'green' paints ahead of organisations' ban," Lloyd List 3 (electronic newsletter). 12. Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, UN Doc. A/CONF.48/ 14/Rev.l. Accessed 15 August 2002 on the World Wide Web: http://www.unep.org/documents/default.asp? DocumentID=97. 13. UN Doc. A/CONF.62/122. Accessed 15 August 2002 on the World Wide Web: http//www.un.org/depts/los/index.htm. 14. Agenda 21: Programme of Action for Sustainable Development, June 1992, UN Doc. A//CONF.151/26/Rev.l, Vol. 1 (1992). Accessed 15 August 2002 on the World Wide Web: http://www.unep.org/documents/default.asp? DocumentID=52.

15. See for example, the U.S. Environmental Protection Agency involvement and concerns about the Annex VI of MARPOL (ship source air emission controls): Intertanko (31 August 2001). U.S. Environmental Protection Agency retreats from MARPOL Annex VI. Weekly Nezus no. 35/200 (electronic newsletter); the possibility that the EPA will also become more involved in ballast water management: Sandra Spears (21 September 2001). "Green is the red hot topic," Lloyd's List, p. 17; or the Indian government's decision to transfer port development approvals from the Shipping Ministry to the Environment Ministry: author unknown (August 2001). "Port approvals get tougher," Fairplay Daily News. 2 (electronic newsletter). In the case of Annex VI, this shift has been construed by the shipping industry as an act of unilateralism and a challenge to the hegemony of the IMO regime. 16. At yet another level the problem serves to highlight the dynamic relation- ship between technical developments and the rate and direction of regulatory activ- ity, particularly with reference to the question of what really leads or creates change. This question has been explored at length by regime theorists such as Oran Young and others: See for example O. Young, ed., The Effectiveness of International Environ- nental Regimes. Causal Connections and Behavioural Mechanisms (Cambridge, Massa- chusetts: MIT Press, 1999). Others have examined international rulemaking from the perspective of discourse analysis: see for example an interesting study by K. Back- strand, 4Vhat Can Nature Withstand? Science, Politics and Discourses in T ransboundary Air Pollution Diplomacy (Lund, Sweden: Monograph, Lund University, Political Studies 115,2001).

17.Alieninvaders (n. 2 above). 18. Tanks vary depending on the ships' function. Modern ships have segre- gated ballast tanks (SBT), that is, tanks devoted only to the ballasting operation. Some older ships still operate with integrated systems but these are now being phased out. Although I have not researched the point, it is possible, as suggested to me by a student at the World Maritime University, Shafiq Islam, that the require- ment for dedicated clean or segregated tanks (i.e., no oil or other substances mixing in with the ballast water) may have inadvertently created a more hospitable environ- ment for invasive species. 19. Alien invaders (n. 2 above), p. 1. 20. Comments by Dandu Pughiuc, Chief Technical Advisor, GloBallast, during a lecture to the Maritime Administration Students in the Master of Maritime Affairs Degree Programme at the World Maritime University, January 2001, Malmb, Sweden.

21. International Maritime Organization, Guidelines for the Control and Man- agement of Ships' Ballast Water to Minimize the Transfer of Harmful Aquatic Or- ganisms and Pathogens, 1997, in Resolution A. 868 (20) (London: IMO) (1998). 22. International Convention for the Safety of Life at Sea, 1974 and its Protocol of 1978 (London: IMO). See also: Harmful Aquatic Organisms in Ballast Water. Alternative Ballast Water Treatment Method, submission by Japan, 15 February 2001, MEPC 46/INF.19 (London: IMO). 23. S. Gollasch, Removal of Barriers to the Effective Implementation of Ballast Water Control and Management Measures in Developing Countries (London: GEF/UNDP/ IMO, 1997). 24. "Goodness Grows in North Carolina Soybeans,"in text ed. note, 5/28/2002, North Carolina Department of Agriculture and Consumer Services. Accessed 23 Au- gust 2002 on the World Wide Web: http://www.ncagr.com/agscool/commodities/ soykid.htm.

25. A. Cohen and B. Foster "The regulation of biological pollution: Preventing exotic species' invasions from ballast water discharged into California coastal wa- ters," Golden Gate University. Law Reuiew 30 (Spring 2000): 787. N.B.: Citations in the original text have been omitted. 26. Some States such as Australia and New Zealand also check for hull fouling. Interestingly, an electronic list serve posted a notice in early July 2001 of a proposed "Planning Meeting: Workshop on Ship Fouling and Biological Invasions in Aquatic Ecosystems" (notice on file). The Workshop was proposed by a member of the U.S. Navy, Naval Surface Warfare Centre and a member of the USCG Environmental Standards Division. The proponents note the following: "Historically, hull fouling has been the most important means by which shipping has transported non-indigenous species ... impending limitations on the use of the most effective antifouling paint [organotin based] and on the conduct of hull cleanings, may result in increased fouling of ships and the subsequent transport of non-indigenous species." The issue has also been raised in the meetings relating to the Convention on Biological Diversity: See for example, SBSTTA/6/7 paras 20-22. Accessed 15 Au- gust 2002 on the World Wide Web: http://www.biodiv.org.

27. Convention on Biological Diversity, 1992, UN Doc. UNEP/Bio.Div/ N7-INC.5/4UNEP. Accessed 15 August 2002 on the World Wide Web: http:// / www.biodiv. org/ convention. 28. StrategicPlan forthe Convention on BiologicalDiversity, 13 March 2001, UNEP/ / CDB Secretariat, accessed 15 August 2002 on the World Wide Web: http://www. biodiv.org.

29. A. Morgan and D. Harrison, "Invading jellyfish crisis for Caspian seals," Nature Watch, Sunday Telegraph (5 November 2000), London. 30. Gollasch (n. 23 above). 31. Food and Agricultural Organization (FAO). The State of World Fisheries and Aquaculture 2000. Rome: FAO, 2000. Accessed 15 August 2002 on the World Wide Web: http://fao.org/DOCREP/003/x8002E/x8002EOO.htm.

32. Alien invaders (n. 2 above), p. 9. 33. Ibid. See also: J. C. J. M. van den Bergh, et al. (2002). Exotic harmful algae in marine ecosystems: an integrated biological-economic-legal analysis of impacts and policies. Marine Policy 26.: 59-74 for a discussion of the growing problem on European coasts. 34. There is now an effort to encourage ports to conduct base line port surveys: See S. Raaymakers, "Port surveys underway," Ballast Water News 4 (2001): 3-5; C. L. Hewitt and R. B. Martin, Centre for Research on Introduced Marine Pests, "Revised protocols for baseline port surveys for introduced marine species: survey design, sampling protocols and specimen handling," Technical Report 22 (2001) (Hobart, Australia: CSIRO) 15 August 2002 on the World Wide Web: http://crimp.marine. csiro.au / reports/ techreport22.html.

35. F. McEnnulty, N. Bax, B. Schaffelke and M. Campbell, A Rapid Response Toolbox: Strategies for the control of ABWMAC listed species and related taxa in Australia (posted draft August 2000) Centre for Research on Introduced Marine Pests (Ho- bart, Australia: CSIRO). Accessed 15 August 2002 on the World Wide Web: http:// / crimp.marine. csiro / au / reports toolbox.pdf. 36. The Problem (n. 8 above). 37. See for example: L. K. Terpstra, " 'There goes the neighbourhood'-the potential private party liability of the international shipping industry for exotic ma- rine species introduced via ballast water in England," Transnational Lawyer, vol. 11 (1998): 277-309; Cohen and Foster (n. 25 above). 38. "Exchange of views," NUMAST Telegraph (May 2001): 21; "Ballast water treatment 2001," MER (May 2001): 14-15.

39. Gollasch (n. 23 above). 40. The Problem (n. 8 above).

41.Standards fartheManagementandControlofBallastWater, submitted by Brazil (6 February 2001), MEPC 46/3/14 (London: IMO): Annex, p. 3.

42. Unknown author, "Unwanted passengers," Shipping World and Shipbuilder (March 2001): 22. 43. Casale and Welsh (n. 6 above).

44. The issue is governed by the Australian Quarantine Act 1908, as amended by the Quarantine Amendments Act, No. 137, 2000 and amendments to Quarantine Regulations 2000. See: Australian Ballast Water Management Requirements, Australian Quarantine and Inspection Service (AQIS) Department of Fisheries and Forestry. Canberra, Australia: 2001. See also: http://www.affa.gov.au/, accessed 15 August 2002 on the World Wide Web. 45. The question of States' international responsibility to prevent export of alien species or, at a minimum, a duty to warn, has not received much attention. The contingencies associated with invasions make it difficult to ascertain fault and causation.

46. Pughiuc (n. 20 above). 47. Guidelines (n. 21 above).

48. The individuality of each ship is reflected in, for example, G. A. B. King, Tanker Practice. The Construction, Operation and Maintenance of Tankers, 4th ed. (Lon- don: The Maritime Press, 1965), p. 92ff that advises of the need for masters to keep detailed notes on the ballasting and response of the vessel particularly in the first year or 18 months of the ship's life to provide a handling guide to future operators. 49. Author unknown. (15 March 2001). "Ballast under the spotlight," Fairplay, p. 23. 50. Author unknown. (14 December 2000). "Good water out, bad water in," Fairplay, p. 22. A more recent survey on the East Coast suggests this is improving; however, there are still questions that might arise regarding auditing of compliance reporting by ships. 51. The Shipping Federation of Canada, 28 September 2000. Accessed 15 Au- gust 2002 on the World Wide Web: http://www.shipfed.ca/library/ballastwater/ / ballastwaterbestpractices.html. The Code essentially replicates the IMO Guidelines. The Shipping Federation has also been active in discouraging U.S. State level regulations that adopt ap- proaches not in conformity with the federal practice. See: Submission of The Shipping Federation of Canada to the Senate of Michigan Natural Resources and Environmental Affairs Committee in Respect of Senate Bill No. 955. This was a proposal by Michigan to require sterilization of all ballast water. The Michigan approach would have dealt with the issue on the basis of permits. Accessed 15 August 2002 on the World Wide Web: http: //www.shipfed.ca/ ballastwater/ ballastwaterpresentation.html.

52. Lloyd's Register, "Practical solutions to new ballast-water legislation," The Naval Architect ( January 2001): 24-26. 53. There is another variation called the dilution method that operates on much the same basis. 54. P. Van Dyck, "Feasible?," The Motor Ship (August 2001): 25-31. 55. Lloyd's Register, (n. 52 above).

56. Author unknown, "Paints and coatings. Ballast tanks take centre stage. Is there a problem waiting in the wings?," Fairplay Solutions (February 2001): 12-13. 57. Ibid. 58. Author unknown, (n. 56 above). 59. Other issues that may be raised on this topic relate to the use of chemicals, such as those in the chlorine class, to treat ballast water, the interaction of these chemicals with tank coatings, and crew occupational health and safety rules in stor- ing and administering the chemicals. There are also concerns relating to the envi- ronmental impact of the treatment process itself. 60. IMO Committee Report and Draft text of an International Convention for the Control and Management of Ships' Ballast Water and Sediments, December 2000, MEPC 46/3 (London: IMO, 2000). See especially Annex 3 dealing with a circular to consider design suggestions for ballast water and sediment management options.

61. UNCLOS (n. 13 above). 62. J. Charney, "The marine environment and the 1982 Law of the Sea Con- vention," The International Lawyer 28 (1994): 879-901.

63. M. Nordqvist, ed. in chief, United Nations Convention on the Law of the Sea 1982. A Commentary, vol. IV, (Dordrecht: Martinus Nijhoff, 1991), pp. 73-76. 64. R. Platz6der, ed., Third United Nations Conference on the Law of the Sea: Docu- ments, vol. X, (New York: Oceana Publications, 1986), p. 453. 65. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Juris Publishing, 1999), pp. 62-65 regarding the right to set conditions for access to the port as stated in Nicaragua, (1986) ICJ Rep. 14 at 111.

66. For example, Articles 211, 217, 218, 219 and 220 all require a detailed consideration of the ship's location and standard of proof. 67. (n. 14 above). 68. Ibid.

69. (n. 27 above). 70. (n. 21 above). 71. Alien invaders (n. 2 above), p. 15.

72. Canada and Australia were the earliest countries to pursue this issue as it related to species transfer. In 1988 Canada presented a study report, The Presence and Implication of Foreign Organisms in Ship Ballast Water Discharged in the Great Lakes. 4 July 1988, MEPC 26/4, (London: IMO). 73. Alien invaders (n. 2 above). 74. IMO Resolution A.774(18).

75. (n. 21 above). 76. New Ballast Water Management Arrangements for International Shipping Visiting Australia, by Australia (16 February 2001), MEPC 46/3/5, (London: IMO). 77. Det Norske Veritas (DNV), The EMBLA Methodology, (Norway: Det Norske, 1999). Accessed 15 August 2002 on the World Wide Web: http://projects.dnv.com/ / embla/ emblaset.html. 78. The Problem (n. 8 above).

79. Convention is now planned for 2003 or early 2004 adoption. 80. Consolidated text of an International Convention for the Control and Management of Ships' Ballast Water and Sediments, draft prepared by the USA (19 January 2001), MEPC 46/3/2, (London: IMO); the latest version is Draft International Convention for the Control of Ships' Ballast Water and Sediments, MEPC 48/2 (April, 2002). 23 Au- gust 2002 on the World Wide Web: http://globallast.imo.org. 81. The International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto, reprinted in MARPOL 73178 consolidated edition 2002 (London: IMO, 2001). 82. Although the later revision in November 2001 suggests that, if agreement on the use of zones as a means of resolving differing ideas about the level of protec- tion is reached, this provision may not be needed. IMO, MEPC Harmful Aquatic Organisms in Ballast Water, Report of the Ballast Water Working Group, convened during MEPC46, (30 November 2001), IMO doc. MEPC 47/2, (London: IMO).

83. (n. 81 above). 84. Ibid. 85. Draft Text of an International Convention for the Control and Management of Ships' Ballast Water and Sediments, 11 December 2000, MEPC 46/3 (London: IMO). 86. Advice Concerning Legal Aspects of the Draft International Convention for the Con- trol and Management of Ships' Ballast Water and Sediments, 16 February 2001, MEPC 46/3/4 (London: IMO).

· All ships (including offshore exploration and exploitation units) car- rying flags of IMO member States or operating under the authority of a Party must comply, unless exempted. Ships that do not use ballast water, do not undertake international voyages (i.e., staying within one State's jurisdiction, or operating in one State's waters and the high seas), warships, navy or other government non-commercial vessels are exempt, although the latter are encouraged to comply. · Crew members must be trained in the convention's requirements and the appropriate operating techniques. An officer must be designated as responsible for assuring compliance with the BWMP and for re- porting to port authorities. · All vessels must have a BWMP (either in Spanish, English, or French and in the working language of the crew) and a Ballast Water Record 87. "Tier 2"Requirements for Ballast Water Management, submitted by Norway (16 6 February 2001), MEPC 46/3/9 (London: IMO). 88. Standards and Continued Technical Development, submitted by the United States (14 February 2001), MEPC 46/3/3 (London: IMO). 89. Comparison of Treatment Techniques of Ballast Water and Sediments, submitted by Japan (16 February 2001), MEPC 46/3/13 (London: IMO).

90. Annex Reg. A-3 1 91. MARPOL 73/78 (n. 81 above). 92. (n. 90 above). 93. (1965) I.L.M. 4: 501 as amended to 2001.

94. International Convention on the Control of Harmful Anti-Fouling Systems, IMO Doc. AFS/Conf/26 (18 October 2001), MEPC (London: IMO). 95. Invasive Alien Species, Options for Future Work, SBSTTA VI/8, 20 De- cember 2000, Accessed 23 August 2002 on the World Wide Web: http://www. biodiv.org / doc / meetings/ sbstta/ sbstta-06 / official / sbstla-06-08-en.doc. 96. An online resource with links to ports and port or country regulations is now maintained by INTERTANKO on the World Wide Web: http://www. intertanko.com/tankerfacts/environmental/ballast/ballast reg.htm. 97. The Problem (n. 8 above).

98. For example, an NGO has recently filed an action arguing that ballast water discharges should be covered by the U.S. Clean Water Act: R. Nelson, "Shipping now on states of alert," Lloyd's List (6 August 2001): 4. See also, the U.S. govern- ment response to this claim, "USA Office of Water, Office of Wetlands, Oceans and Watershed, EPA, Aquatic Nuisance Species in Ballast Water Discharges: Issues and Options Draft Report for Public Comment," (September 2001). Accessed 15 August 2002 on the World Wide Web: http://www.epa.gov/owow/invasive_species/ ballast_report/reportl.html. Others have also examined other domestic regulatory options that fall within the broader environmental regime: See, for example, E. Biber, "Exploring Options for Controlling the Introduction of Non Indigenous Species to the United States," Virginia Environmental Lawjoumal 18 (1999): 375- 465. 99. INTERTANKO, International Chamber of Shipping, Model Ballast Water Management Plan, 2nd ed., (London, Norway: INTERTANKO, ICS, 1999, 2000). It is now under revision for consistency with the prepared Convention. 100. "Good water out, bad water in," (n. 50 above). . 101. L. Karaminas, An Investigation of Ballast Water Management Methods with Par- ticular Emphasis on the Risks of the Sequential Method (UK: Lloyd's Register, 2000).

102. 1999/2000 IMO Pilot, Germanischer Lloyd, Germany. Accessed 15 Au- gust 2002 on the World Wide Web: http://germanlloyd.org. Web site path: Facts and publications/fleet/shipsafety/IMO Pilot. 103. Det Norske Veritas (n. 77 above). 104. Karaminas (n. 101 above), p. 2. 105. Alien invaders (n. 2 above). 106. The Problem (n. 8 above). 107. See http://globallast.imo.org/R&Ddirectory8thed.doc. Accessed 23 Au- gust 2002.

108. MEPC 46/3/13, 16 February 2001; The "special pipe" has been devel- oped under the auspices of the Japan Association of Marine Safety with funding support from the Nippon Foundation. This is also a low cost, minor retro fitting, low maintenance, environmentally sensitive method. However, it has not yet proved as effective against pathogens. Research is still underway (interview 25 July with Capt. Takeaki Kukuchi, General Manager, Marine Pollution Dept., JAMS). 109. Ballast Water Treatment. (August 2002). Accessed 23 August 2002 from the World Wide Web: http://globallast.imo.org/R&Ddirectory8thed.doc. 110. Ballast Water Treatment (n. 109 above). 111. Ibid. 112. Ibid. 113. Karaminas (n. 101 above). 114. The method is described in a submission by Japan to IMO: Alternative Ballast Water Treatment Method (15 February 2001), MEPC 46/INF.19 (London: IMO); See also Van Dyke (n. 54 above), p. 26.

115. P. Zhou and V. Lagogiannis, "Ballast Water Treatment by Heat-EU Shipboard Trials" (paper presented to the GloBallast R&D Symposium, London: IMO, 26-27 March 2001) Accessed 15 August 2002 on the World Wide Web: http: // globallast.imo.org/ index.asp?page=Abstracts.htm.

116. (n. 76 above). 117. It must be noted that the draft convention does not require filing of these forms as it relies on an international certificate system. 118. Although, in some cases, they may be aware because of port client com- plaints about ship corrosion resulting from contact with municipal runoff and sew- age in the water.

119. Raaymakers (n. 34 above). 120. MARPOL 73/78 (n. 81 above). 121. Ibid. 122. Convention on Biological Diversity, COP 5, Decision V/8. The Interim GuidingPrinciples for the Prevention, and Mitigation of the Impacts, of Alien Invasive Species, have as the first principle, the precautionary approach. Accessed 15 August 2002 on the World Wide Web: http://www.biodiv.org/decisions. 123. P. Jenkins, (1999). Global Policy Changes Needed to Stop Biological Inva- sions Caused by International Trade. Presented at the Workshop on the Legal and In- stitutional Dimensions of Alien Invasive Species Introduction and Control. Held at IUCN, Environmental Law Centre, Bonn, Germany, 10-11 December 1999. Ac- cessed 23 August 2002 on the World Wide Web: http://www.invasives.org/ publications.html.

124. D. Wilson and D. Gascoine, "National Risk Management and the SPS Agreement" (paper presented at 1999 Conference, Globalisation and the Environ- ment-Risk Assessment and the WTO, Melbourne Business School, Australia, 1999). Accessed 23 August 2002 on the World Wide Web: http://www.dpie.gov.au/ content/publications.cfm. 125. N. Bankes, "International environmental law for the new millennium: the challenges ahead," CCIL Bulletin (Winter 2000): pp. 13-15.

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