The intricacy of legal standards in terms of management of ships’ ballast water and sediments
Rome was not built in a day, neither was the 2004 Convention. The pernicious nature of ballast water was scientifically recognised in the 70’s. The 1967 Torrey Canyon disaster urged IMO to address the issue of marine pollution regulations. Resolution 18 of the 1973 International Conference on marine pollution, held in London41, referred to the environmental threat caused by ballast water. The marine environment protection committee (MEPC)42 was created during this same conference. However at this time, priority was given to “visible” marine pollution, meaning oil tankers pollution. It was not until the late 80’s, that Canada and Australia reported invasive species difficulties to the MEPC. This brought along the first Guidelines adopted by the MEPC in 199143 for preventing the introduction of unwanted organisms and pathogens from ships’ ballast water and sediment discharges44. The United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro in 1992, recognized the issue as a major international concern45. This Conference urged States to evaluate additional necessary measures for combating marine environment damage by maritime transport, through twelve different means, including considering the adoption of appropriate rules relating to de-ballasting in order to prevent alien species propagation46.
The problem with ballast water has steadily become a priority for IMO47. As of today, IMO recommends mid-ocean ballast water exchange48, where species survival is minimal.
We can now see that this problem has received international recognition. However without the implementation of a common norm, we end up with a complex situation of legal norms, national and regional, relating to the management of ships’ ballast water and sediments. To address this situation in the most appropriate and satisfying way for the whole maritime world, IMO acknowledged the need for prior in-depth study. The « GloBallast » Program was created and established in six distinct world regions. An international norm was therefore drafted based on this need for a common norm and this prior study.
The need for a common international standard in terms of management of ships’ ballast water and sediments
The need for an international convention was recognised by IMO several years before the actual adoption in 2004, thus due simply to lack of international convention for this matter, contrarily to the threat that lies within coastal ballasting, and also due to the disparity in legal standards of ballast water management. This need is increased by the kaleidoscopic dimension of the problem.
The legal standards disparity:
Through such a disparity in legal standards relating to the management of ships’ ballast water and sediments, one can realize that there exists a multitude of national, regional or even federal rules, which frustrates achieving a consistent adequate solution to a global problem.
47 Reconnu au rang des priorités des travaux de l’OMI dans la résolution A.744(18) du 4 novembre 1993. Puis ces directives furent mises à jour dans la Résolution A.868(20) du 27 novembre 1997.
48 Cette recommandation minimise le risque du fait de l’absence totale de chance de survie d’une espèce littorale dans les eaux océaniques.
Countries having already enforced national laws relating to ballast water management include Australia, Argentina, Brazil, Canada, Chili, Georgia, Israel, Lithuania, New-Zealand, Panama, Peru, Russia, Ukraine and the United States49, however this is not an exhaustive list. The latter illustrates how disparate actual legal standards are. As a first approach it seems interesting to analyze the French legal situation relating to ballast water management.
In 2006, France introduced technical and criminal legal provisions aimed to « prevent, reduce and eventually eliminate the transfer of harmful and pathogen aquatic organisms through the control and management of ships’ ballast water and sediments », through article 39 of the statute no 2006-1772 dated 30 December 200650, which adopted articles L.218-82 to L.218-86 of the Code of the environment51. Therefore according to article L. 218-83 of the Code of the environment, the master of the ship must present on board documentation of the exchange in international waters of at least 95% of ballast water; or biological neutralization of such ballast water, by onboard equipment approved by the competent administrative authority (on technical and environmental grounds); or finally, certify that no de-ballasting operations are needed to be carried out in French territorial waters.52 This article applies to ships of a gross tonnage equal to, or over, 300 units of the universal measurement, excluding navy ships and ships in difficulty53, penetrating into French territorial or internal waters from an area beyond the international coastal shipping zone or a zone expressly designated by a competent administrative authority. Any contravening to these provisions constitutes an offense and is punishable by fine of 300 000 Euros. Notice that this fine was set proportionately to the 49 “A safer and more efficient management of ballast water”, Jaqueline Tan, Legal briefing UK P&I Club, mars 2011.
fine fixed in the case of marine pollution by oil, which is set at 1 million Euros. This seems to be contrary to the consequences of these two marine pollutions. Indeed the introduction in an ecosystem of an invasive species is known to be irreversible, when oil pollution is very harmful for the ecosystem but it is also known to dissipate, albeit after many years. Thus one would have thought that the Legislator would set the fine in proportion but contrary to what he did. We can therefore note that this article proves the ignorance of the extent rendered by an introduction of harmful aquatic organisms and pathogens in a marine ecosystem.
Furthermore, it should be noted that there is no provision in the event of coastal navigation54, when we know that aquatic species vary greatly depending on the French coast alone. For example, a coastal navigation which has been much discussed recently, taking place between Brittany (France) and Spain, such coasters would be legally able to introduce alien species from one port to another. This possibility increases the potential risk and contributes to the propagation of a previously introduced species. Finally, regular monitoring of ships’ ballast water entering French ports is carried out enough to verify the effective implementation of this legislation. Thus we can conclude that the present situation of French legislation for the management of ships’ ballast water is far from satisfactory. In addition, this legislation only contributes to the disparity of global standards in this area of law.
The problem with norm disparity:
The multitude of standards for the management of ships’ ballast water and sediments is a real problem for the maritime industry. Indeed, carriers are forced to adapt to regulations according to each trip and to the territorial waters entered or transited during such voyage, while the introduction of invasive species through the discharge of ballast water, is a global problem. That is to say, a phenomenon that is susceptible of occurring on any coast and within any proportions, wherever it occurs.
Such an abundance of diverse regulations appears to be less prejudicial for some carriers, such as liner companies55, then for others. Effectively, the former would just need to undertake a regulations review of each country (origin, destination or transited), in order to comply with the regulations of those countries. However this can be just as difficult for such carriers when national regulations differ between themselves greatly, or if the liner transits56 through multiple territorial water jurisdictions.
This constraint leads to constant adaptation costs. First, we may remark that an analysis of standards would be studied prior to travel. Then, adaptation to standards may not always be possible from one country to another, thus meaning that respect of the strictest global standards would be necessary to make sure to never be at fault. Yet then, we would be entitled to ask whether such a variety of national or regional standards would play in disfavor of certain ports. It is true that shipping, like other means of global trade, is always in search of gaining in speed and in cost. Some carriers could then conclude that a port with no restrictions or less stringent limitations is more suitable to their commercial needs. The State of New York adopted in December 2010, measures 100 times more stringent than the 2004 IMO Convention. According to some, the New York standards aim towards the discharge of ballast water comparable to drinking water. Such standards are impracticable according to ship-owners due to lack of such high-performing technology, so the State has postponed for a year their entry into force57, again according to the ship-owners the latter does not improve in any way the situation. Others state that these measures may cause ship-owners to avoid the ports of this State. Is this really conceivable in international trade? Moreover, if technology succeeds in implementing adaptable systems of ballast water management; such systems will most likely be more expensive and require a longer training process.
Additionally, in the case of a charter-party, which party would be held for non-compliance with rules relating to the management of ballast water? The answer is simple in the case of bareboat chartering58 and voyage chartering59. In fact in these cases, respectively, the charterer or the lessor would be in charge of the « gestion nautique”60 (ships’ operational management) and the « gestion commercial”61 (commercial management) of the chartered vessel. Any dispute in these scenarios would be determined by the type of charter-party. However in case of a time charter62, we would have to ask ourselves whether the traditional separation of the operational and commercial management would apply and easily determine that either the lessor or charterer is responsible for ballast water management. Certainly ballast water management relates to operational management of the ship, but a lessor could argue that proper handling of the ballast tanks is mainly required during loading and unloading of goods. Would new charter party clauses excluding ship-owners’ liability due to non-compliance with the chosen ports’ regulations for ballast water management be needed?
Finally, heterogeneity of standards also demonstrates the issue of bringing particular and specific solutions according to the laws of each country. For a concrete example, following the Fukushima disaster, China banned coastal de-ballasting for reasons of safety. Indeed, the probable radiation of waters coming from Japan threatened the Chinese populations’ health according to its government. While this type of measure is very specific and limited in time, it illustrates the fact that an international standard would cover the entire problem and not just one facet of it.
A contradiction within the legal systems themselves:
There is not only a disparity of standards between countries but also within the same country. Indeed, invasive species is an issue which concerns maritime law and environmental law. These areas of law are in some countries governed by different agencies. Moreover, in federal states63 one can remark that different federate and/or federal entities tackle at the same time regulation of ballast water management, thus creating discrepancies and irregularities of standards within the same legal system.
National regulatory confusion has already been proven in the United States. Between EPA64 measures and US Coast Guard measures, the State of New York itself adopted in December 2010, measures relating to the management and discharge of ballast water within waters under their jurisdiction. In all ship-owners just need to know which of these three rules takes precedence? At first glance, carriers’ predictability of standards seems to be denied. However we may also be led to believe that through this, carriers have the ability to choose the regulation which is most favorable to them. Nevertheless, as we will see further on, the unpredictability of such regulations worsens the situation economically by increasing the hazard of a fine and thus the insurance premium in the long term, and environmentally by opening the choice to the simplest and in the same way least environmental rule of management and discharge of ballast water. This matter becomes financial when there exists in the same country two separate institutions with different budgets, sometimes even with budgets in competition, one managing the shipping industry and the other environmental issues. Such cases are common in federal systems, where two legal systems overlap, and sometimes multiply the rules governing the same subject.
The situation is also complicated in certain places of the world as the Great Lakes65, where not only two countries have different legal rules but the states of one of these countries also do. Moreover, which law shall prevail when the waters crossed are considered territorial waters for two countries with different regulations? A current example is the territorial waters dispute in South China Sea. In the case of difference, one could believe that the applicable law is that of the port of destination. Still if such law provides less stringent standards than the other countries claiming jurisdiction, this seems unfair. In the end, one would think to apply the highest standards, or choose the most stringent law enforced in each country. Maritime industry could do without such complication and absurdity, in particular through the enforcement of a common international standard.
Even at a supra-national level there is need to ensure the homogeneity of texts. The general problem of the introduction of invasive species in Mediterranean waters was addressed by the Protocol concerning Specially Protected Areas and Biodiversity in the Mediterranean, annexed on June 10, 1995, to the Barcelona Convention for the protection of the marine and coastal environment of the Mediterranean. The parties shall take all appropriate measures to regulate the intentional or accidental introduction of non-native species or genetically modified and prohibit those that may have harmful impacts on ecosystems, habitats or species in the area of application of the said protocol. It is undeniable that, if not through its purpose, at least through the methods of implementing the plan of action for the Mediterranean, similarities are visible with IMO’s GloBallast Partnership project. This is why emphasis was given to the need for greater harmonization of work in both international fora, in order to avoid duplication66.
The multitude and disparity of standards demonstrates a legal inconsistency towards a multifaceted and global problem.
A multi-factor need:
It seems essential to define the factors of the necessity of a common international norm. For these factors, ecological, economic and sanitary, all put forward the importance of an enforced and widely ratified international convention.
The result of an invasive species is primarily an overwhelming impact on the environment. Because of their irreversible effect and the increase in severity through time, aquatic invasions are considered the second greatest threat to global biodiversity after habitat loss67. When a species succeeds in invading a new marine environment, it is mainly because it has no predators and a sufficient amount of prey.
The ecological impact affects native species. Moreover, several species of different levels of the food chain (producers, consumers, decomposers) can be affected by the introduction of invasive species. The fortuitous introduction in the Caspian Sea of the North Atlantic comb jellyfish has virtually destroyed the possibility of fishermen to live from their catch. The sectors grieved by this ecological disruption are diverse and include, but are not limited to the fishermen, the industries with fish products as main source, Iranian fishing fleet and Iranian shipyards68. However, some scientists believe that such a disruption was not solely caused by the comb jellyfish introduced through ballast water. Indeed, they state that the origin goes back to the overfishing in the 70’s of predators on plankton, such as dolphin, bluefin tuna and mackerel69. This raises the question of the efficiency of separate regulations dealing with ballast water or overfishing.
The most affected native species become endangered species. If one often refers to tomorrow’s world and the possibility for our children to be able to see as many creatures as we were able, in order to raise awareness on environmental problems, it is significant to understand that the loss of species is also a problem for human lives. Many Inca civilizations have lived for hundreds of years of native species solely from their area of habitat. It is a matter of survival for these populations. In the early 90’s the Golden mussel70 native to southern Asia waters was introduced in South America. The species was then transported to the estuary of the Rio Plata by ballast, before reaching Porto Alegre attached to ships’ hulls. This species has managed to penetrate through several South American countries and is said to be spreading at the speed of over 240 Km per year71. This mussel disrupts the ecosystem by attaching itself on any hard substrate and forming clusters stifling any other organism or preventing their access to nourishment. Scientists fear that such species infiltrates the largest wetland in the world72, home to thousands of species. This ecological factor of the problem of invasive species underlines the importance and the need for natural environments to be protected from human activities, hence the application of environmental law.
Nevertheless, the recognition of biodiversity disruption is really acknowledged when it harms directly man and so focuses on the economic factor of the need for a common standard.
The economic factor:
All is not about money however money is a unquestionable mean of weight in many debates. One tends to react to events quicker when there are economic stakes. If oil pollution disasters engendered solely the death of marine animals, the IOPC73 Funds may still be in the phase of discussion. Effectively, it is also an economic matter for people living from the marine environment, including fishermen, restaurants, and municipalities due to coastal tourism.
Table of contents :
PART ONE: The intricacy of legal standards in terms of management of ships’ ballast water and sediments
Chapter 1: The need for a common international standard in terms of management of ships’ ballast water and sediments
Section 1 – The legal standards disparity
Section 2 – A multi-factor need
Chapter 2: The making of a common international norm by the 2004, IMO Convention for the control and management of ships’ ballast water and sediments
Section 1 – The Glo-Ballast program
Section 2 – The drafting of a common international norm
PART TWO: The harmonization of legal rules relating to the control and management of ship’s ballast water and sediments through the implementation of IMO’s 2004 Convention
Chapter 1. The contribution of uniform legal solutions for the management of ships’ ballast water and sediments
Section 1 – Classic legal solutions
Section 2 – The contribution of innovative legal solutions
Chapter 2. Moderate efficacy of IMO’s 2004 Convention
Section 1 – Classic limits to international conventional norms
Section 2 – Technological and financial limits to the 2004 Convention