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Countering Ship-Source Biological Pollution: The Continuing Saga of the IMO Ballast Water Convention Ciarán McCarthy B.L. Introduction • Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (Ballast Water Management Convention) • International Maritime Organisation (IMO): UN specialist maritime agency • Seeks to prevent and control marine pollution from ships Shipping in Context • More than 90 per cent of global trade is carried by sea • Increased throughout the last century as result of industrialisation and liberalisation of economies • Encouraged free trade and demand for consumer products • Ireland: Sea-based transport accounting for 99% of the total volume and 95% of the total value of imports/exports: Marine Coordination Group, Harnessing our Ocean Wealth: An Integrated Marine Plan for Ireland (Marine Coordination Group: Dublin, 2012), at 15 However, with modern shipping comes modern shipsource pollution • Media attention focused on accidental or operational discharge of oil cargoes or fuel • “Super tankers” (Very or Ultra Large Crude Carriers) • Developed in mid-sixties following closure of Suez Canal (Six Day War) • Ship owners sought economic means of transporting crude shipments around the Cape of Good Hope • Up to half million tons deadweight and half kilometer LOA • Accidents involving these ships including the Torrey Canyon (1967), Amoco Cadiz (1978), Exxon Valdez (1989), Sea Empress (1996) • Smaller tankers such as the Erika (1999) (pictured) or the Prestige (2002) • Increased EU involvement – including the phasing out of single-hulled tankers • Consequential and familiar harm to the environment and to wildlife Other forms of ship-source pollution and/or environmental damage? • Noise and atmospheric pollution from marine diesel engines burning high sulfur content fuel oil • Wildlife collisions • End-of-life dismantling • Biological pollution – Hull fouling – Ballast water What is ballast? • Ships are inherently unstable - ballast is any heavy material to aid their stability • Transverse stability of ship or ability to return to upright if heeled over by an external force is dependent on its righting lever and metacentric height • These in turn dependent on the relative positions of the centres of gravity and buoyancy • Adjust position of the ship’s centre of gravity by loading or discharging ballast • Also used to correct internal list • Adjust longitudinal trim and to keep hull stresses within permissible limits • In port ballast loaded or discharged as per cargo requirements • On passage fuel and fresh water consumed, ballast loaded or discharged to compensate and ensure: – Propeller immersion – Visibility from the navigating bridge – Adjust water and air draughts • Wooden ships: solid materials such as stone and gravel used as ballast • Sometimes only evidence of a wreck today is the presence of ballast • For example, Albion lost in Courtmacsherry Bay in Cork in 1821 with the loss of 43 persons • Area known locally as Cuis Albion; stones not native to the area can be observed at low water: (Bourke, E.J., Shipwrecks of the Irish Coast 1105 – 1993 (Dublin: EJ Bourke, 1994), at 116 • • Steel ships introduced in mid to latter part of the 19th Century • Bigger and heavier and use of solid ballast became impractical and insufficiently dynamic • Practice developed of carrying water ballast in sealed tanks within the vessel • Pumped on board through sea chests or by gravity; opposite process to discharge Ballast water stored in large internal tanks situated on the sides and bottom of the ship Cross section of a vessel under construction showing ballast tanks • Tanks have other functions apart from carrying water Contain longitudinal and transverse frames, pipes etc. which can trap water and sediment • Sediment consists of mud and other solid materials also loaded with ballast water • Between 3 and 5 billion tonnes of ballast water shipped internationally each year (IMO) • Individual ships capable of carrying up to 130,000 tonnes of ballast water What’s the problem? • Co-incidentally, ballast water tanks double as aquariums • Ballast water one of the principal vectors of invasive alien species • Responsible for the transfer of between 7,000 and 10,000 different species of marine microbes, plants and animals globally (Carlton, 1999) • First noticed by scientific community in North Sea 1903 (algae) – not until 1970s that serious study undertaken • Late 1980s Canada and Australia among countries experiencing particular problems with invasive species – brought concerns to attention of IMO Marine Environment Protection Committee (MEPC) Some Examples (IMO) • Comb jelly: Devastating impact on fisheries • Cholera: Peru epidemic 1991 to 1994 thought to be as result of ballast water Zebra mussel Native to the Caspian and Black Seas Interferes with native molluscs and causes economic damage Chinese Mitten Crab • From China: named after hairy ‘mittens’ on claws • Cause economic damage by breeding rapidly • Burrows into river banks, causing them to collapse • Germany in 1912, Baltic Sea in 1926, Thames in 1935 • Great Lakes 1965, San Francisco 1992: https://www.nobanis.org • Normally early phase of establishment, followed by dormant period, followed by periods of rapid dispersal and massive population outbreak • In San Francisco Bay became so numerous that in 1998 they threatened to shut down the state's water supplies • 20,000 to 40,000 mitten crabs a day clogged the screens (www.sfgate.com) • Mitten crabs San Francisco • In Far East numbers controlled by natural predators and humans • Not eaten outside there as vector for human liver fluke • Discovered in Waterford in 2006 (opposite Belview Container Terminal) • Media reports: damage soft sediment banks and flood defences – Inland Fisheries/Fisheries Inspector • Impact on protected Twaite Shad fish • Local fisherman catching them for years in eel traps and returning to the water alive • Dozen specimens sent for analysis by Inland Fisheries Ireland and identity confirmed • Waterford CC by-law banned eel fishing in 2010 • None seen since • Accept that uncontrolled ballast water discharge potential to cause pollution • Accept that shipping necessary to current economy/ballasting necessary to shipping practices • How prevent or restrict that damage? Unilateral Measures • National Invasive Species Act introduced in US in 1996 • Provides for control of ballast water and for civil and criminal penalties • Similar measures in Australia since 1998 • Other countries and sub-national jurisdictions have developed or are developing national or local legislation • Includes Canada, New Zealand, various individual US States and individual ports, such as Buenos Aires • Unsatisfactory as lack of uniform implementation International Measures • 1991 the IMO Marine Environmental Protection Committee (MEPC) adopted the International Guidelines on preventing ballast water pollution • UN Conference on Environment and Development held in Rio de Janeiro in 1992, recognized the issue as a major international concern. • 1993, the IMO Assembly adopted resolution based on the 1991 Guidelines • IMO adopted, in November 1997, resolution inviting its Member States to use these new guidelines • After more than 14 years of negotiations between IMO Member States, BWM Convention adopted in 2004 • 22 Articles and an Annex forming an integral part of the Convention (art. 2 (2)) Preamble refers to: • 1992 Convention on Biological Diversity • The need for a precautionary approach called for by Principle 15 of the Rio Declaration • Article 196 (1) of the United Nations Convention on the Law of the Sea (UNCLOS), (obliges States to take all necessary measures to prevent, reduce and control pollution of the marine environment resulting from the introduction of new or alien species) • Article 3: “no more favourable treatment” of ships of non-party States • Article 16 provides that nothing in the Convention shall prejudice the rights of States under customary international law as reflected in UNCLOS • Form of Port State Control – restriction on vessel port entry – trade and other legal issues • In mid part of last century argued that right to innocent passage provided a corollary right of free access to ports: Saudi Arabia v. Arabian American Oil Co., (ARAMCO) 27 ILR 117 • Refuted by more recent jurisprudence: Nicaragua v. United States of America) [1986] ICJ Rep 14, para. 213 • And by advent of Port State Control (including under SOLAS) • And by UNCLOS (Articles 211, 218 and 219 refer to PSC; Article 8 (1) refers to the internal waters of the state) • Clear that no international right to unrestricted access to ports • References in Preamble and main body to internationally agreed upon standards connect Convention to IMO regulatory strategy and sustainable development General provisions • Provides definitions of “ballast water”, “sediments”, and “Harmful Aquatic Organisms and Pathogens” (art. 1) • “Ballast Water Management” is defined as “mechanical, physical, chemical and biological processes, either singularly or in combination, to remove, render harmless, or avoid the uptake or discharge of Harmful Aquatic Organisms and Pathogens within Ballast Water and Sediments”(art. 1 (3)) • Convention does not apply to warships, ships with permanent ballast in sealed tanks (art. 3) Flag State duties • Obligations for Flag States to ensure that ships flying their Flag comply with the requirements of the Convention and its Annex (art. 4 (1)) • Flag States to ensure that their ships are surveyed and provided with Certificates in accordance with the Convention (art. 7) • Article 8 provides for sanctions to be imposed in the event of violations of the provisions of the Convention Port State Control • Limited to verifying that a valid Certificate is carried, inspecting the Ballast Water Record book and/or sampling (art. 9 (1)) • Where a valid Certificate is not carried or where there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the Certificate or the crew are not familiar with essential procedures relating to ballast water management, a detailed inspection may be carried out (art. 9 (2)) • In the event of the detection of violations the ship may be warned, detained or excluded or granted permission to put to sea to discharge ballast water or proceed to the nearest repair yard (art. 10 (2)) • All possible efforts shall be made to avoid a ship being unduly detained or delayed (art 12) Ballast Water Management Standards Convention introduces two standards for ballast water management (do not apply to ships that discharge ballast to reception facility): 1. Interim Exchange Standard under Regulation D1 1. Performance Standard under Regulation D-2 which it is envisaged that all ships will eventually comply with Ballast Water Exchange Standard • Exchange Standard achieved by pumping through three times the volume of each ballast tank • Or otherwise demonstrating a 95% volumetric exchange (Regulation B-4) • Where possible, ballast water exchange should occur not less than 200 miles from land and in water which is at least 200 metres deep (Regulation B-4.1.1) • When not possible, at least 50 miles from land and in water at least 200 m deep (Regulation B-4.1.2) • In sea areas where the nearest land or depth does not meet those parameters, a State may designate ballast water exchange areas (Regulation B-4.2) • Ships must not be required to deviate from or delay, their intended voyage to comply with these requirements (Regulation B-4.3) Ballast Water Exchange Standard • Effectiveness of ballast water exchange has been questioned: • Pumping will not guarantee the complete removal of harmful organisms due to the design of ballast tanks which trap water and sediments • 95% volumetric exchange does not equate to a 95% rate of organism removal: (Karim, M. S., Prevention of Pollution of the Marine Environment from Vessels: The Potential and Limits of the International Maritime Organisation (Switzerland: Springer International Publishing, 2015), at 74 Performance Standard • Performance Standard introduces specific biological criteria to ensure performance, i.e., through treating the water and proving through testing • Specifies amount of viable organisms allowed in given units of ballast water prior to discharging ballast (Reg. D-2) • Convention provided for a planned phase-in period (Reg. B-3) • Depending on capacity and date of construction ships had to meet the Management Standard from intermediate or renewal surveys and had to meet the more stringent Performance Standard by 2016 at latest • Due to the slow adoption rate of the Convention, in 2013 the IMO Assembly adopted a Resolution to reschedule the phase-in process (Res. A.1088 (28) 2014): Most ships would now not be required to comply with the Performance Standard until first renewal survey Ballast treatment • IMO Technical group of experts established to review the proposals for ballast water management systems to reach Performance Standard • Options being considered include (http://globallast.imo.org): • Mechanical treatment such as by filtration • Physical treatment using ultra-violet light, electric current and heat treatment • Chemical treatment by adding biocides to kill organisms • Various combinations of the above Irish legislation • Sea Pollution (Miscellaneous Provisions) Act 2006 gives effect to a number of marine pollution treaties, including the Anti-Fouling and Air Pollution Conventions • At late legislative stage long title was amended to include the Ballast Water Management Convention (Dáil Debates 3 June 2004, Eamon Ryan) • Amends Sea Pollution Act 1991 to provide for ballast water management • Provides for the making of Regulations prohibiting or regulating the discharge of ballast water or sediments (s. 10) • Criticised as having “a rather disjointed feel to it … reflects the Irish practice of an ad hoc ‘hybridised’ legislative approach to international antipollution implementation in the marine sector” • Resulted in “definitions for one international purpose … being crudely transposed in the same legislation for other international definitional purposes”: Symmons, C. (2006) ‘Annotated Statutes: Sea Pollution (Miscellaneous Provisions) Act 2006’ Irish Current Law Journal, April 2008, 1, at 2 Status of the BWM Convention? • Convention was opened for signature in 2004 and will enter into force 12 months after ratification by not less than 30 States, the combined fleets of which constitute not less than 35% of the gross tonnage of the world’s merchant shipping (Art. 18) • At the beginning of April 2016, 49 States representing 34.82% of the gross tonnage of the world’s merchant shipping had ratified it (http://www.imo.org) Stakeholders’ Response? • IMO Secretary General Koji Sekimizu criticised ship owners for failing to encourage governments to ratify the Convention (Unusual, as foundation of the maintenance of order on the high seas traditionally rested upon the jurisdiction of Flag States) • Ship owners concerned as so far only 54 BWM systems have been approved by the IMO • Only 17 manufacturers of these systems have indicated that they plan to submit designs for approval under stricter US testing standards • Fear wasting money on systems that might not meet the US requirements and would have to be replaced (“Owners Warned on Ballast Delay” (Nautilus International Telegraph, Volume 48 (6) June 2015), p. 10) • Panama and the Bahamas concerned that even with approved ballast water management systems, ship owners could still be penalized in the absence of a clear sampling methodology and unified procedures for port State control officers Ballast tanks not designed for sampling • Who has ratified? • According to Marine Notice 47/2011 the Convention was expected to achieve the required ratifications within 12 months • Ireland’s maritime administration was preparing the required legislation and the country was to ratify the Convention when that process had been completed • However, Ballast Water Management Convention has still not come into force • Among the countries that have ratified the Convention are the Syrian Arab Republic, the Islamic Republic of Iran and Kiribati (http://www.imo.org) • Ireland, the UK, USA, Bahamas and Panama have not • For purposes of international law regulation of ballast water and sediment discharge remains unregulated