The International Law on Ballast Water : Preventing Biopollution [1 ed.] 9789004180789, 9789004166523

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The International Law on Ballast Water

Publications on Ocean Development Volume 63 A Series of Studies on the International, Legal, Intitutional and Policy Aspects of Ocean Development

General Editor: Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College, Oxford University

The International Law on Ballast Water Preventing Biopollution By

Maria Helena Fonseca de Souza Rolim With contributions by

Erkki Leppäkoski Gaetano Librando

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Rolim, Maria Helena. The international law on ballast water : preventing biopollution / by Maria Helena Fonseca de Souza Rolim ; with contributions by Erkki Leppäkoski, Gaetano Librando. p. cm. -- (Publications on ocean development, 0924-1922 ; v. 63) Includes bibliographical references. ISBN 978-90-04-16652-3 (hardback : alk. paper) 1. Marine pollution--Law and legislation. 2. Discharge of ballast water--Environmental aspects. 3. Nonindigenous aquatic pests--Control--Law and legislation. I. Leppäkoski, Erkki. II. Librando, Gaetano. III. Title. K3591.2.R65 2008 344.04’6343--dc22 2008009219

ISSN 09241922 ISBN 978 90 04 16652 3 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

To Adauto, Felipe, Thaís, José Francisco, Vanessa Moira McConnell, Gaetano Librando, Vicente Marotta Rangel

Contents Foreword by Efthimios E. Mitropoulos ......................................................... xiii Foreword by Andreas I. Chrysostomou ...........................................................xv Preface by Erik Røsaeg...................................................................................xvii Acknowledgements.........................................................................................xix Abbreviations .................................................................................................xxi Chapter 1: Introduction ............................................................................. 1 Chapter 2: Biopollution and Ballast Water ................................................. 7 2.1. 2.2. 2.3. 2.4.

Introduction ............................................................................................. 7 Definitions and Use of Terms ................................................................... 9 Scientific Aspects on Biopollution (Erkki Leppäkoski) ............................. 15 From Pollution to Biopollution of the Marine Environment .................. 21 2.4.1. Resolutions, Declarations and Principles ..................................... 22 2.4.2. Treaties ........................................................................................ 27 2.5. Conclusion ............................................................................................. 31 Chapter 3: Evolution of the International Law on Biopollution ............... 33 3.1. Introduction ........................................................................................... 33 3.2. Customary International Law ................................................................. 34 3.2.1. Material Element of Customary Rules and State Practice ............. 36 3.2.2. Subjective Element (Opinio juris sive necessitatis).......................... 40 3.2.3. Customary International Law and Ballast Water .......................... 42 3.2.4. Conclusions Regarding Customary International Law ................. 45 3.3. Treaty Law ............................................................................................. 46 3.3.1. International Health Regulations ................................................. 48 3.3.2. International Convention for Prevention of Pollution from Ships.................................................................... 51 3.3.3. United Nations Convention on the Law of the Sea...................... 56 3.3.4. Convention on Biological Diversity ............................................. 68 3.3.5. Conclusions Regarding Treaty Law .............................................. 71 3.4. Conclusion ............................................................................................. 72

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Chapter 4: IMO and Codification of the International Law on Ballast Water Management .................................................................. 73 4.1. The IMO and its Treaty-making Procedures (Gaetano Librando)............. 73 4.1.1. Safety Conventions...................................................................... 75 4.1.2. Pollution Prevention Conventions ............................................... 76 4.1.3. Legal Treaties ............................................................................... 76 4.1.4. Adopting a Convention ............................................................... 78 4.1.5. Entry into Force .......................................................................... 79 4.2. The IMO Resolutions............................................................................. 79 4.2.1. Introduction ................................................................................ 79 4.2.2. Juridical Nature of Resolutions of International Organizations..... 82 4.2.3. Juridical Nature of the IMO Resolutions on Ballast Water .......... 83 4.2.4. The IMO Resolutions on Ballast Water and National Law........... 84 4.2.5. The Evolution of the IMO Resolutions on Ballast Water ............. 86 4.2.6. Resolution 18, Research into the Effect of Discharge of Ballast Water Containing Bacteria of Epidemic Diseases (31 October 1973) ...................................................................... 88 4.2.7. IMO Assembly Resolution A.774(18), Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships’ Ballast Water and Sediments Discharges (4 November 1993) ................................................... 89 4.2.8. IMO Assembly Resolution A.868(20), Guidelines for the Control and Management Ship’s Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens (27 November 1997) ................................................................... 92 4.2.9. Conclusions Regarding the IMO Resolutions .............................. 96 4.3. The 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments ............................... 97 4.3.1. Introduction ................................................................................ 97 4.3.2. Text ........................................................................................... 100 4.3.3. Application................................................................................ 100 4.3.4. Definitions ................................................................................ 101 4.3.5. Principles................................................................................... 102 4.3.5.1. The Precautionary Principle ......................................... 103 4.3.5.2. International Cooperation and Transfer of Technology .................................................................. 108 4.3.5.3. The No Harm Principle: Prohibition of Transboundary Pollution ............................................. 109 4.3.6. Flag State Obligations and Jurisdiction ...................................... 110 4.3.6.1. Obligations.................................................................. 110 4.3.6.2. Jurisdiction .................................................................. 112

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4.3.7. Port and Coastal States Obligations and Rights ....................... 114 4.3.7.1. Sediment Reception Facilities................................... 114 4.3.7.2. Communication of Information .............................. 115 4.3.7.3. Inspection ................................................................ 115 4.3.7.4. Protected Areas (Tier 2) ........................................... 116 4.3.8. Procedures for Port State Control ............................................ 121 4.3.9. Port and Coastal States’ Jurisdiction......................................... 122 4.3.10. Annex ...................................................................................... 125 4.3.10.1. Section A – General Provisions ................................ 126 4.3.10.2. Section B – Management and Control Requirement for Ships ............................................. 127 4.3.10.3. Section C – Special Requirement in Certain Areas ........................................................... 129 4.3.10.4. Section D – Standards for Ballast Water Management.................................................. 129 4.3.10.5. Section E – Survey and Certification Requirements for Ballast Water Management ................................. 130 4.3.11. Guidelines ............................................................................... 130 4.3.12. Entry into Force ...................................................................... 134 4.3.13. Amendments ........................................................................... 137 4.3.14. Dispute Settlement Provisions ................................................. 138 4.3.15. Sovereignty and the BWM Convention ................................... 139 4.3.16. Conclusions Regarding the BWM Convention ........................ 142 4.4. Conclusion ........................................................................................... 143 Chapter 5: GloBallast Legislative Review: Brazilian Case Study ............. 145 5.1. Introduction ......................................................................................... 145 5.2. Unilateral Acts and Ballast Water.......................................................... 146 5.3. The Brazilian GloBallast Legislative Review .......................................... 149 5.3.1. Executive Summary ................................................................... 149 5.3.2. Brazilian Legal Framework ........................................................ 150 5.3.3. Conclusions............................................................................... 152 Chapter 6: Conclusion ............................................................................ 159 Bibliography ........................................................................................... 165 Annexes

............................................................................................... 183

Annex I:

International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 ......................... 185

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Annex II:

Guidelines required under the BWM Convention and adopted by IMO/MEPC Resolutions ......... 227

Resolution MEPC.152(55), Guidelines for Sediment Reception Facilities (G1) ......................................................... 227 Guidelines on Ballast Water Sampling (G2) (pending) Resolution MEPC.123(53), Guidelines for Ballast Water Management Equivalent Compliance (G3) ................................... 232 Resolution MEPC.127(53), Guidelines for Ballast Water Management and Development of Ballast Water Management Plans (G4) ............................................................... 236 Resolution MEPC.153(55), Guidelines for Ballast Water Reception Facilities (G5) ............................................................... 253 Resolution MEPC.124(53), Guidelines for Ballast Water Exchange (G6) .............................................................................. 258 Resolution MEPC.162(56), Guidelines for Risk Assessment Under Regulation A-4 of the BWM Convention (G7) ............................ 266 Resolution MEPC.125(53), Guidelines for Approval of Ballast Water Management Systems (G8) ..................................................................... 283 Resolution MEPC.126(53), Procedure for Approval of Ballast Water Management Systems that Make Use of Active Substances (G9) ............. 310 Resolution MEPC.140(54), Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10) .................................................................................. 326 Resolution MEPC.149(55), Guidelines for Ballast Water Exchange Design and Construction Standards (G11) .............................. 340 Resolution MEPC.150(55), Guidelines on Design and Construction to Facilitate Sediment Control on Ships (G12)........................................ 345 Resolution MEPC.161(56), Guidelines for Additional Measures Regarding Ballast Water Management Including Emergency Situations (G13) ................................................................... 349

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Resolution MEPC.151(55), Guidelines on Designation of Areas for Ballast Water Exchange (G14) .............................................. 358 Guidelines for Port State Control (pending) Resolution MEPC.56/23 Guidelines for Ballast Water Exchange in the Antarctic Treaty Area ..................................................... 365 Guidelines for Flag State Surveys and Inspections (pending) Annex III:

IMO Resolution A.868(20), 1997, Guidelines for the Control and Management of Ships’ Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens...................................... 367

Annex IV:

Draft of National Legislation on Ballast Water .................... 385

Index ...................................................................................................... 395

Foreword Scientists first recognized the signs of an introduction of aquatic alien species after a mass occurrence of the Asian phytoplankton algae Odontella in the North Sea in 1903. But it was not until the 1970s that the scientific community began reviewing the issue in detail. In the late 1980s, Canada and Australia were among countries experiencing particular difficulties with invasions of unwanted species, and they first brought their concerns about the problem of harmful aquatic organisms in ships’ ballast water to the attention of IMO’s Marine Environment Protection Committee (MEPC) in 1988. Since then, the MEPC, together with the Maritime Safety Committee and various technical sub-committees, have been dealing actively with the issue. The ability to ballast a ship is absolutely essential to its stability and its safe and efficient performance and operation. However, ballast water may also pose a serious ecological, economic and health threat. The scale of the problem should not be underestimated. The introduction of invasive marine species into new environments, whether by ships’ ballast water, attached to ships’ hulls or via other means has been identified as one of the four main threats to the world’s oceans, along with land-based sources of marine pollution, over-exploitation of living marine resources and the physical alteration or destruction of marine habitat. Increased trade and the consequent greater volumes of maritime traffic over the last few decades have served to fuel the problem. The effects in many areas of the world have been serious and significant. Quantitative data show that the rate of bio-invasions is continuing to increase, in some cases exponentially, and new areas are being found to be invaded all the time. As volumes of seaborne trade continue overall to increase, the problem may not yet have reached its peak. It is estimated that shipping transfers approximately 3 to 5 billion tonnes of ballast water globally each year and that a similar volume may also be transferred domestically within countries and regions annually. At least 7,000 different species are thought to be carried in ships’ ballast tanks around the world. The vast majority do not survive the journey, as the ballasting and deballasting cycle and the environment inside ballast tanks can be quite hostile to their survival. However, when all factors are favourable, an introduced species may survive to establish a reproductive population in the host environment, it may even become

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invasive, out-competing native species and multiplying to pest proportions. As a result, local ecosystems are being changed. In response, IMO first adopted Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships’ Ballast Water and Sediment Discharges in 1991; while the United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro in 1992, recognized the issue as a major international concern. The IMO Guidelines have since been kept constantly under review and updated. Subsequently, in February 2004, the International Convention for the Control and Management of Ships’ Ballast Water and Sediments was adopted. When it enters into force, this Convention will require all ships to implement a Ballast Water and Sediments Management Plan, to carry a Ballast Water Record Book and to carry out ballast water management procedures to a given standard. Parties to the Convention are given the option of taking additional measures which are subject to criteria set out in the Convention and in a number of associated IMO guidelines. In providing a broad overview of the legal aspects related to marine pollution caused by ballast water and tank sediments, this book offers a pragmatic analysis of the current international legal system, and includes principles of international customary law and also references to a comprehensive environmental treaty law framework which relates the Ballast Water Convention to other treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS), MARPOL and the Convention on Biological Diversity. With such a wide-ranging approach, this book will certainly provide a source of valuable information for all those with a requirement to pursue the subject in depth. I congratulate the author for her painstaking effort and wish her every success in the realisation of all her aspirations related to her book. Efthimios E. Mitropoulos Secretary-General, International Maritime Organization

Foreword A normal part of ship operation is the use of water ballast taken onboard vessels to ensure stability. Such water will contain organisms that will be transported by the ship until the vessel de-ballasts. During the voyage, temperature changes in the ballast water and lack of food and light kill many, but not all, of these organisms. Some hardy species may survive and establish populations in the surrounding waters. Such non-native species may cause serious ecological, economic and public health impacts, particularly when they become invasive. Over 100 species of marine organisms are known to have been introduced by ballast water. While some appear benign, others have become pests, threatening biodiversity, fisheries and aquaculture. Some introduced species severely deplete native populations or deprive them of food. Others form colonies which can smother existing fauna. Introduced toxic dinoflagellates cause red tides and algal blooms that can affect or even kill shellfish, fish, sea birds and humans. In response to this the International Maritime Organization (IMO), over many years, has been developing international legislation to prevent the harmful effects of transporting aquatic organisms in ships ballast water. The Marine Environment Protection Committee (MEPC), the Competent Organ of the IMO for matters relating to Marine pollution form ships, firstly dealt with the issue in 1988 reaching an agreement for global solution in 2004 by adopting the “International Convention for the Control and Management of Ships’ Ballast Water and Sediments”. The main requirements of the Convention include the requirement for ships to have on board a Ballast Water record book, which must be entered into after each ballast water operation; the phased implementation of a ballast water discharge standard, which is based on the ships ballast water capacity and its construction date; and requires ships to adhere to the performance standard where levels are set at which quantities of organisms are allowed to be discharged in ships’ ballast water. The convention will enter into force 12 months after it has been signed by 30 states representing 35% of world’s merchant shipping. The book analyses the complex legal issue relating to marine pollution caused by ballast water and tank sediments and offers a comprehensive coverage of relating principles of International customary law and the BWM Convention and provides the international maritime community with a unique source of information.

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Foreword

I congratulate Maria Helena for her passion and efforts to put this book together and I wish her to fulfill all her dreams and wishes in relation to this book. I sincerely hope that Maria Helena will continue this marvelous work which aims towards the protection of the Marine Environment. Andreas I. Chrysostomou Chairman of the Marine Environment Protection Committee (MEPC) of the International Maritime Organization, UN

Preface Migration of microorganisms via ballast water is a major environmental problem. The migrated species may disturb the ecological balance at the destination – permanently. It would be quite an exaggeration to say that the solution to environmental problems could or should be found in the current law, or even in the creation of new law. In this field, the biological, ecological and political sciences are more helpful, to mention but a few. However, when the problems and the remedies are reasonably ascertained, lawyers may be of some assistance. As from this stage, if a consensus should emerge or a political statement should be put forward, lawyers may be useful in reducing the thoughts to writing, fit them into a system and, occasionally, make observations as to their intended or 8unintended legal consequences. The greater the political commitment, the greater the need for lawyers in these functions. This monograph is a quite typical example of a lawyer’s response to the need for systematic overview and analysis of consequences. It will, I believe, be helpful in the national evaluation and eventual implementation of the international rules. The monograph may also have a spin-off effect for the direct benefit of the environment, because any discussion of the rules helps keeping the focus on them and increases the momentum in their implementation world wide. Basically, however, a legal treatise is always a treatise upon law more than upon the environment or whatever other subject it discusses. Therefore, the value of this book is not to be found in what it does for the environmentalists on the barricades. Its value is primarily found in what it does for lawyers trying to understand the international legislative process—in this or other fields. The legislative process in this field is indeed remarkable. A number of political statements of concern, political commitments, resolutions of international bodies and finally, a full fletched convention open for ratification, may or may not have created hard law. Concerns and idealism, perhaps occasionally mixed with more opportunistic interests, is in the process of establishing a new order for ballast water. This new order will hopefully be respected, and could in the future perhaps even be enforced against the unwilling. Regardless of the present state of the law—how far it has developed from soft to hard law—the direction of the development is clear. The biological facts speak

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for themselves: There is no turning back to unrestricted freedom of the seas in respect of ballast water pollution. We must only hope that this book will contribute to clarify and speed up the process. Erik Røsaeg Director, Scandinavian Institute of Maritime Law, University of Oslo

Acknowledgements This book stems from research initiated by the author as the Brazilian Legal Adviser to the Legislative Review Project of the GEF/UNPD/IMO Global Ballast Water Management Programme and improved at the Scandinavian Institute of Maritime Law (SIML) at University of Oslo, Norway. The International Maritime Organization (IMO) provided invaluable scientific data and bibliographical support to the author. The author acknowledges the assistance provided by the Brazilian Navy, in particular the Brazilian Permanent Representation to the IMO (BPRIMO) and the Brazilian Ministry of the Environment. Special thanks are owed to individuals who contributed to this volume. Mr. Efthimios E. Mitropoulos, Secretary-General of the IMO, and Mr. Andreas I. Chrysostomou, Chairman of the MEPC/IMO, provided the foreword, a reflection of their concern for the health of the oceans. Professor Erik Røsaeg, Director of SIML, wrote the preface and provided a reassuring presence throughout the progress of this book. Professor Erkki Leppaköski of Åbo Akademi University, Finland, set out the scientific scenario and background of the biopollution of the marine environment. Dr. Gaetano Librando, Head of Treaties and Rules Legal Section of IMO, contributed the section on the IMO and its treaty-making procedures, and provided constant legal assistance that gave the author fresh insight for this work. The author also expresses her gratitude for the support and technical assistance provided by the following individuals: Admiral Miguel Angelo Davena, Head of the BPRIMO. Mr. Dandu Pughiuc, Head of the Office for Ballast Water Management of IMO; Dr. Rosalie Balkin, Director of the Legal Affairs and External Relations Division of IMO; Dr. Moira McConnell, Marine & Environmental Law Institute, Dalhousie Law School, Canada, and coordinator of the IMO GloBallast Legislative Review; Ms. Kirsten Al-Araki, Head of the Library of SIML; Ms.Paula Barreto-Kuhlbrodt, Administrative Assistant at the IMO Library; Ignacio Velez, LLM in maritime law, University of Oslo; Dr. Walter Sá Leitão, Legal Adviser in maritime and international law of Petrobras; Ms. Cátia Ferreira of the Brazilian Public Health Agency; Professor Vicente Marotta Rangel, judge on the International Tribunal of the Law of Sea; Isobel Mackie, English revision; and Susan Rolston, Seawinds Consulting Services, who provided language and editorial assistance. Maria Helena Fonseca de Souza Rolim

Abbreviations AIS BWE BWM BWM Convention BWMS BWTS BWWG CBD GEF GloBallast ICJ IHR IMO MARPOL MEPC PSC OILPOL SPS Agreement UN UNCLOS UNDP WTO

aquatic invasive species ballast water exchange ballast water management International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 ballast water management systems ballast water treatment systems Ballast Water Working Group (IMO) Convention on Biological Diversity, 1992 Global Environment Facility Global Ballast Water Management Programme International Court of Justice International Health Regulations, 1969/2005 International Maritime Organization International Convention for the Prevention of Pollution from Ships, 1973/1978 Marine Environment Protection Committee (IMO) port state control International Convention for the Prevention of Pollution of the Sea by Oil, 1954 Agreement on the Application of Sanitary and Phytosanitary Measures United Nations United Nations Convention on the Law of the Sea, 1982 United Nations Development Programme World Trade Organization

Chapter 1 Introduction This book analyzes the international legal framework in regard to biopollution1 of the marine environment as the result of the exchange (up take and discharge) of ships’ ballast water. Specifically this means biological pollution of the marine environment through the unintentional2 transfer of harmful aquatic organisms3 and pathogens from a marine ecosystem to another due to the discharge of ships’ ballast water4 and associated sediments as well as related vectors. Special emphasis is placed on the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention),5 adopted in 2004 by the

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3

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Harmful aquatic organisms and pathogens that affect the biodiversity of the marine ecosystem have been described as biological pollution, hereinafter referred to as ‘biopollution’. The term unintentional is used to characterize the specific features of an action, i.e. to distinguish the issue from intentional transfer through, for example, the import of stock or seed species for aquaculture. This issue is the subject of a developing international legal framework. See Moira L. McConnell, GloBallast Legislative Review–Final Report, GloBallast Monograph Series No. 1 (London: IMO, 2002), 5. There is a wide variety of terminology with respect to this issue in international documents – alien, nonindigenous, non-native, exotic, new, foreign and pest. The term generally used in this book, harmful aquatic organisms and pathogens, is found in the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, IMO/BWM/CONF/36, 16 February 2004 [hereinafter BWM Convention], Article 1, paragraph 8, and in the 1997 IMO Assembly Resolution A.868(20), Guidelines for the control and management ship’s ballast water to minimize the transfer of harmful aquatic organisms and pathogens, which refers to many of these variations. This book deals specifically with the international law with respect to species occurring in ecosystems to which they are not indigenous and which threaten ecosystems, habitats or species. However, not all alien species prove to be invasive or harmful in the areas into which they are introduced. See Claire Shine, Nattley Williams and Lothar Gündling, A Guide to Designing Legal and Institutional Frameworks on Alien Invasive Species, IUCN Environmental Policy and Law Paper No. 40 (Gland: IUCN, 2000), 2–3. See BWM Convention, ibid., Article 1, paragraph. 2: ‘Ballast Water means water with its suspended matter taken on board a ship to control the trim, list draught, stability or stresses of the ship’. Annex I to this book. BWM Convention, ibid; see also: IMO/BWM/CONF/3, 30 July 2003. The convention is not yet in force.

Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 1–6. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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International Maritime Organization (IMO),6 and earlier resolutions7 adopted by IMO on this issue. A case study of the experience of Brazil explores the implications of this international legal regime. This review poses questions for any country to consider including whether or not addressing the full range of concerns and responsibilities surrounding biopollution requires new or different forms of legal and institutional responses at the national level. In principle, such a review should be seen as opportunity to develop and implement a more integrated approach to ocean and coastal management and to manage the interaction between pollution prevention, biodiversity protection and protection of human health security. Since the 1970s, various instruments of international law have addressed the problem of the transfer of aquatic organisms between marine environments in the context of several issues. In addition to the above-mentioned IMO instruments, the most notable instruments are the 1982 United Nations Convention on the Law of the Sea (UNCLOS)8 and the 1992 Convention on Biological Diversity (Biodiversity Convention or CBD).9 Several binding agreements and non-binding codes of conduct and technical guidelines mention the risk of alien species transfer, first as a health problem and secondly as an ecological and economic concern. These international instruments were developed under different multilateral processes for specific purposes.10 An awareness of the existing international legal framework is essential to understanding the current international regime on

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The IMO is the United Nations specialized agency competent to regulate matters relating to the safety of navigation, including maritime security, the prevention of marine pollution from ships, and related legal matters. See IMO Resolution 18, 31 October 1973, Research into the effect of discharge of ballast water containing bacteria of epidemic diseases; IMO Assembly Resolution A.774 (18), 1993, Guidelines for preventing the introduction of unwanted aquatic organisms and pathogens from ships’ ballast water and sediment discharges (revoked by A.868(20) ); MEPC 67(37), 1995, Guidelines on incorporation of the precautionary approach in the context of specific IMO activities; and IMO Assembly Resolution A.868(20), 1997, supra note 3. See Article 196, United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, entered into force 16 November 1994, 1833 UNTS 396; 33 ILM 1309 [hereinafter UNCLOS]. Available online at http://www.un.org/depts./los/index.htm. See Article 8(h), Convention on Biological Diversity, Rio de Janeiro, 22 May 1992, 1760 UNTS 142; 31 ILM 823 (1992) [hereinafter Biodiversity Convention]. Available online at http://www. biodiv.org/convention. Review of the Efficiency and Efficacy of Existing Legal Instruments Applicable to Invasive Alien Species, UNEP/CBD Technical Series No. 2 (Secretariat of the CBD: Montreal, 2001), 1; Moira McConnell, “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 water,” in Ocean Yearbook 17, Elisabeth Mann Borgese, Aldo Chircop and Moira McConnell, eds. (Chicago: University of Chicago Press, 2003), 235–236.

Introduction

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marine biopollution. In this respect, the BWM Convention,11 the first treaty to establish a specific regulatory regime to prevent the transfer and spread of species from one marine ecosystem to another, is especially important. Compared to other more visible forms of marine pollution such as oil pollution, the media, scholars and governments have paid relatively little attention to the issue of transfer of invasive aquatic organisms and pathogens through vectors such as the discharge of ballast water or sediments. This is despite the development of the international legal regime on the issue and the economic costs and the potentially irremediable harm to biodiversity and the related human health security risks posed by biopollution. This book considers this legal regime and its broader implications in four parts. First, Chapter 2, Biopollution and Ballast Water, provides an overview of the concepts in international law that are relevant to marine biopollution. These include ecosystem, environment, biodiversity, and biopollution of the marine environment. The negative impacts of harmful aquatic organisms and pathogens are briefly set out. A section by Erkki Leppäkoski,12 a special contribution to this book, outlines the scientific aspects of biopollution. He makes it clear that the eradication of alien species, once established in a new ecosystem, is not a realistic option. He underscores the relevance of adopting the precautionary principle to address the issue of transfer of invasive aquatic organisms and pathogens through the discharge of ballast water and sediments. The final section of this chapter outlines the evolution of the legal concept of pollution and argues that there is now a legal basis for an emerging awareness of a new term and form of pollution, i.e., biopollution. Chapter 3, Evolution of the International Law on Biopollution, analyzes the broader international legal framework with respect to the prevention of biopollution, particularly of the marine environment. It encompasses an overview of the fundamental customary and conventional international obligations of States found, inter alia, in four global instruments that served as references for drafting the BWM Convention: the 1969/2005 International Health Regulations (IHR);13 the 1973 International Convention for the Prevention of Pollution from Ships,

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See Final Act of the International Conference on Ballast Water Management for Ships, 2004, BWM/CONF/37, 16 February 2004. Erkki Leppäkoski, Department of Environmental and Marine Biology, Åbo Akademi University, Turku, Finland. International Health Regulations (2005) adopted 23 May 2005 at the World Health Assembly (Resolution WHA58.3). Available online at http://www.who.int/gb/ebwha/pdf_files/WHA58/ WHA58_3-en.pdf.

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as modified by the 1978 Protocol (MARPOL 73/78);14 UNCLOS;15 and the Biodiversity Convention.16 These treaties established international States’ obligations to take steps to protect the marine environment and marine biodiversity and, more specifically, to prevent the spread of species between ecosystems. The interface, interaction and relationships between these instruments, in tandem with the BWM Convention, suggest that the international legal regime on ballast water adopts a holistic perspective in order to ensure effective juridical protection of the marine environment. This chapter also considers the interaction of this regulatory regime with key principles of international environmental law. Chapter 4, The IMO and the Codification of the International Law on Ballast Water, comprises three sections. The first section, The IMO and its Treaty-making Procedures, is an insightful overview by Gaetano Librando.17 He considers the role of the IMO as specialized UN agency with competency to regulate matters relating to the safety of navigation, the prevention of marine pollution from ships and respective legal matters under the motto ‘safe, secure and efficient shipping on clean oceans’. The second section, The IMO Resolutions, reviews the relevant IMO resolutions and related guidelines in terms of both their juridical status and their approach to preventing the transfer of harmful aquatic organisms and pathogens from one ecosystem to another through ships’ ballast water. Revisiting the sources of international law, this section raises the following question: Are the ballast water guidelines binding or non-binding instruments? Although the IMO resolutions on ballast water cannot yet be characterized as a new independent formal source of international law, and the IMO does not regard them as binding per se, this does not mean they are completely lacking in juridical meaning. Under certain circumstances, they have limited indirect juridical effects, particularly as a large number of States have in fact adopted national laws or regulations purportedly reflecting these guidelines.18 This section also discusses the evolution of the IMO resolutions on ballast water; the impact of such resolutions on the control and management of the biopollution of the marine environment; and their influence on the codification of the international law on ballast water. During the interim period until the BWM Convention enters into force, the only specific international

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15 16 17

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International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 UNTS 184, as amended by the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 UNTS 61 [hereinafter MARPOL 73/78]. Supra note 8. Supra note 9. Comments written in 2005 by Gaetano Librando, Head, Treaties and Rules Legal Section, IMO, in a special contribution to this book. See Chapter 5 of this book.

Introduction

5

instrument on the issue is the 1997 IMO Assembly Resolution A.868 (20) and the guidelines therein, i.e., Guidelines for the control and management ship’s ballast water to minimize the transfer of harmful aquatic organisms and pathogens.19 This section also provides a synopsis and analysis of this resolution, and traces its evolution from the 1973 IMO Resolution 18, Research into the effect of discharge of ballast water containing bacteria of epidemic diseases.20 The third section of Chapter 4, The Ballast Water Management Convention, focuses on the interpretation of the convention as a specific regulatory instrument implementing the more general obligation not to introduce or spread a harmful aquatic organisms organism, that is, alien invasive species, as found in the health,21 law of the sea,22 and biodiversity regimes.23 The BWM Convention addresses these general obligations by providing comprehensive regulations aimed at preventing the spread of harmful aquatic organisms and pathogens as an unintentional byproduct of ships’ operations with ballast waters. The convention also provides an example of the potential interaction between international standard setting and the development of technology. Currently, there are no accepted technological solutions to this operational problem and the related harm caused by invasive aquatic species. However, an underlying assumption of the BWM Convention is that the setting of performance standards will provide an incentive for the development of appropriate and economically viable technology to prevent the spread of invasive aquatic species through ballast water discharges. To conclude this review of the international ballast water management regime, Chapter 5, The GloBallast Legislative Review: Brazilian Case Study, explores a case study of the developing national regime in Brazil. The first section of this chapter, Unilateral Acts and Ballast Water, focuses on the impact of national laws on the development of the legal framework on ballast water. The second section, Brazilian GloBallast Legislative Review, presents an overview and reflection on the first international project to cover the legal aspects of ballast water, namely, the Legislative Review Project developed under the Global Ballast Water Management Programme (GloBallast Programme). The GloBallast Programme is a cooperative initiative of the Global Environment Facility (GEF), the United Nations Development Programme (UNDP) and IMO.24 This section focuses on the

19

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21 22 23 24

Guidelines for the control and management ship’s ballast water to minimize the transfer of harmful aquatic organisms and pathogens, IMO Publication IMO-661E (London: IMO, 1998), 1–16. Research into the effect of discharge of ballast water containing bacteria of epidemic diseases, IMCO/ MP/CONF/WP.29, 31 October 1973, 24. See Chapter 3 of this book. Ibid. Ibid. McConnell, supra note 2.

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Brazilian case study report presented to the GloBallast Legislative Review Project by the author of this book. A comprehensive legislative and institutional review is an essential step for any country that intends to implement the BWM Convention. This chapter examines the outcomes of this project, both as a methodology and as an outline of the considerations for a State wishing to take action to control and manage biopollution of the marine environment in the interim period until adoption of the BWM Convention.

Chapter 2 Biopollution and Ballast Water Some 240 million years ago, well before the reign of the dinosaurs, all of the Earth’s major landmasses were locked into a single continent. A monstrous plaque of rock called Pangaea sat alone amidst the waters of an even more monstrous planetary ocean. Eventually, Pangaea fragmented. At geologic pace, its shards sailed out over the blank blue immensity to create, for the human moment, the present continental configuration […]. The effective collapse of the world’s ecological barriers is a phenomenon, so far as we know, without precedent in the entire history of life (The real Pangaea, of course, would have had plenty of very durable barriers).1

2.1. Introduction The oceans comprise approximately 71 per cent of the Earth’s surface and the total volume of the marine environment provides about 300 times more space for life than that provided by land and freshwater combined.2 The so-called planet Earth is a vast expanse of blue water. Shipping is drastically interfering which the natural ecological barriers of the marine environment3 through the transfer of aquatic organisms from one marine ecosystem to another, namely those contained in ships’ ballast water and associated sediments and hull fouling. Currently, at an

1

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3

Chris Bright, Life Out of Bounds: Bioinvasion in a Borderless World (London: Earthscan Publisher, 1999), 17. ‘The earliest organisms are believed to have originated in the ancient oceans, many millions of years before any forms of life appeared on dry land. All known phyla (both extinct and extant) originated in the sea […]. Today there are more phyla of animals in the oceans than in freshwater or on land […]. The majority of marine plants are microscopic, floating species, many marine animals are invertebrates without massive skeletons; and fish have small bones’. Carol M. Lalli and Timothy R. Parsons, Biological Oceanography: An Introduction, 3rd edition (Oxford: Pergamon Press, Butterworth-Heinemann, 1995), 7. ‘The world’s oceans can be subdivided into a number of marine environments. The most basic divisions separate the pelagic and benthic realms. The pelagic environment (pelagic meaning ‘open sea’) is that of the water column, from the surface to the greatest depth. The benthic environment (benthic meaning ‘bottom’) encompasses the seafloor and includes such areas as shores, littoral to intertidal areas, coral reefs, and the deep seabed’. Ibid., 8–9.

Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 7–32. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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ever-increasing rate, the marine natural communities4 are disrupted by alien species, that is, species that have crossed barriers to live in ecosystems to which they are not indigenous. For scientists, bioinvasion (biopollution) ‘is perhaps the only category of environmental degradation that can corrode virtually every level of biological organization’.5 In fact, it is not possible to predict which organisms will become successful invaders, where invasions will occur, when an invasion will happen, and what an invasion will do, notes Bright.6 Shipping has been identified as one of the key pathways for the transfer of species between marine ecosystems, and, evidently, the main biopolluter of the marine environment.7 Other important vectors include stock enhancement, aquaculture, fishing activities (transfer of equipment and living bait), ornamental fish trade, public and hobby aquaria, release from research laboratories, transport of sand and gravel, and the removal of natural barriers (e.g., canals connecting oceans or river systems). For millennia, ships carried solid ballast in the form of rocks, gravel, sand, roof tiles, and many other heavy materials. From the 1880s onward, ships increasingly used water for ballast to avoid the time-consuming task of loading and unloading solid materials and the dangers of vessel instability resulting from the shifting of solid ballast during a voyage. This seemed an ideal solution until the international community realized the undesirable effects of alien species transported by ballast water from one coast or sea to another, recognizing the role of such species as biopollutants.8 Ballast is any solid or liquid taken into a ship to increase the draft, to adjust the trim, to stabilize, or to maintain stress loads within acceptable limits.9 ‘Ballast and the process of ballast discharge and intake (ballast management) keeps ships balanced or stable and mitigates the stresses that ocean’s movement place on the vessel’s superstructure’.10 It is a technical requirement to a ship’s safety, but

4

5 6 7

8

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10

‘The various populations of micro-organisms, plants, and animals that inhabit the same physical are make up an ecological community’. Ibid., 11. Supra note 1, 22. Ibid., 25–29. Aage Björn Andersen, Sam Arne Nøland, Siri M. Bakke, Gjermund Gravir, Gerd Petra Haugom, Vibeke Henden Nilssen, Ballast Water Transfer Atlas Hazard Assessment and Decision Support, Pre-Study, Norwegian Research Council Technical Report No. 99-3166, Revision No. 1 (Høvik: Det Norske Veritas, 1999). Committee on Ships’ Ballast Operations, Marine Board, Commission on Engineering and Technical Systems and National Research Council, Stemming the Tide: Controlling Introductions of Nonindigenous Species by Ships’ Ballast Water (Washington DC: National Academy Press, 1996), 22. BWM Convention, Chapter 1, supra note 3, Article 1, paragraph 2; Alien invaders - putting a stop to the ballast water hitch-hikers, Focus on IMO (London: IMO, 1999), 1; ibid., 23. McConnell, Chapter 1, supra note 10, 217.

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the alien species carried in ballast water are one of the greatest agents of global marine environmental biopollution.11 The transfer of species in ballast is not a new phenomenon. Domestic regulatory controls of ballast discharge have existed since the 19th century. Although the issue was documented in 190312 by Ostenfeld, following the occurrence of the bloom of Odontella sinensis algae in the North Sea, it was only 70 years later that a ship was studied with a sample of ballast water.13 Indeed, the ballast concern has come to the international agenda, particularly since the 1980s, as a result of increased scientific awareness of the harmful impact of such transfers on the marine environment and the interconnected concerns about biodiversity preservation as a pillar of environmental and human security. For scientists, the ‘diversity of life in the ocean is being dramatically altered by the rapidly increasing and potentially irreversible effects of activities associated with human population’.14 One of the most critical (current or potential) contributors to changes in marine biodiversity is now acknowledged to be, inter alia, the invasion of exotic species.15 Unquestionably, increasing shipping without polluting the marine environment has been impossible. Neptune is now asleep under the mantle of harmful aquatic organisms and pathogens that shipping has spread through ballast water and its associated sediments.

2.2. Definitions and Use of Terms Basic scientific concepts are key instruments to study international environmental law. The following terms will be used throughout this book:

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See IMO Global Ballast Water Management Programme, 2000–2005, available online from http://globallast.imo.org; Jens Sorensen, “National and international efforts at integrated coastal management,” International Journal of Marine Environment Resources, Law and Society 25(1) (1997): 3–41. McConnell, Chapter 1, supra note 10, 219–220; see also S. Gollasch, Removal of Barriers to the Effective Implementation of Ballast Water Control and Management Measures in Developing Countries (London: GEF/UNPD/IMO, 1997). Julieta Salles Vianna Silva and Rosa Souza, Água de Lastro e Bioinvasão (Rio de Janeiro: Interciência ed., 2004), 1. Committee on Biological Diversity in Marine Systems, Understanding Marine Biodiversity– A Research Agenda for the Nation (Washington, DC: National Academy Press, 1995), 1. Other factors are fishing and removal of the ocean’s invertebrate and plant stocks, many of which are overexploited; chemical pollution and eutrophication; physical alterations to coastal habitat; and global climate change, including increased ultraviolet radiation and potentially rising temperatures, resulting in possible changes to oceans circulation. Ibid.

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Alien means a species that is not native to an area.16 In biological terms, [A] species is considered to be native in its past or present natural range (the habitats and ecosystems where it lives or lived) or within its natural dispersal potential. […] Where members of a species occur outside their “normal distribution”, they are considered to be alien in the new location. Because the species cannot reach this location by its own means, human agency of some kind is involved in moving or introducing the species concerned.17

The Biodiversity Convention Guiding Principles for the Prevention, Introduction and Mitigation of Impacts of Alien Species that Threaten Ecosystems, Habitats or Species (CBD Guiding Principles)18 defines an alien species as one that ‘has been introduced outside its natural past or present distribution’, with an introduction being defined as ‘the movement by a human agency, either directly or indirectly, of an alien species outside its natural range’.19 Alien invasive species (AIS),20 under the Biodiversity Convention, Article 2, is ‘an alien species which threatens ecosystems, habitats or species’. The term invasive has no standard definition, but it certainly encompasses the concept of adverse impact in the form of damage inflicted on the receiving species, site or ecosystem. Currently, there is no universally accepted definition of AIS.21 UNCLOS, Article 196, paragraph 1, adopts the term alien or new species comprising, in particular, those species which may cause ‘significant and harmful changes to a particular part of the marine environment’.22 The inclusion of the term new species suggests 16 17 18

19 20

21

22

Supra note 8, 128. Shine et al., Chapter 1, supra note 3, 1–2. Adopted as part of Decision VI/23 of the Conference of the Parties. Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP/CBD/COP/6/20), available online from http://www.biodiv.org/doc/meetings/cop/cop-o6/official/cop-o6-20-part2-en.pdf. Ibid., CBD Guiding Principles, Definitions, no. 6. AIS is now commonly in use and the only abbreviation accepted in European Union documents. AIS is used instead of, e.g., NIS for ‘nonindigenous species’, or ANS for ‘aquatic nuisance species’, as they are called in the United States, notes Leppaköski. ‘Rather, an abundance of terms is in use, each one dependent upon how the species and the damage it can inflict is perceived. […] Where the alien species in question was concerned with land or water use, terms developed, such as pest, weed, disease and noxious. In other instances, terms used have included exotic, alien, indigenous, native, nonindigenous, nonnative, as well as “invasive aliens.” […] international plant quarantine prefers the designation quarantine pest’. Sophie Riley, “Invasive alien species and protection of biodiversity,” Journal of Environmental Law 17(3) (2005): 326–327. UNCLOS, Chapter 1, supra note 8, Article 196, paragraph 1, provides: ‘States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto’.

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that the obligation under Article 196 is not limited to identified pests or harmful organisms but also includes the broader introduction of nonindigenous or alien species that ‘may cause significant changes in a marine ecosystem’.23 From the maritime sector come references to harmful aquatic organisms24 and unwanted aquatic organisms.25 Other terminology was used in Agenda 21, which refers to species as exotic,26 pests 27 and foreign.28 Indeed, different terms—new, nonindigenous, non-native, exotic, foreign, pest, and alien—are used in international documents to describe species occurring in ecosystems to which they are not indigenous and many of which may threaten ecosystems, habitats or native species. In fact, exotic/foreign/nonindigenous species are not harmful by definition; in many cases they live in harmony with other species and even humans in their new area. For scientists, the expression alien species is used consistently to describe all the above-mentioned terms, and alien invasive species are agreed to be a subset of alien species as a whole, as many introduced alien species do not become invasive. Invasive species means an alien species which becomes established in natural or semi-natural ecosystems or habitat, is an agent of change, and threatens native biological diversity.29 Currently, however, there is uncertainty with respect to when an alien species becomes invasive. A critical area of enquiry for scientists is identifying which introduced alien species will or may become invasive in a new habitat.30

23 24

25 26

27 28 29

30

McConnell, Chapter 1, supra note 2, 20. See BWM Convention, Chapter 1, supra note 3, Article 1, paragraph 8; 1997 IMO Assembly Resolution A.686(20), Chapter 1, supra note 3. IMO Assembly Resolution A.774(18), Chapter 1, supra note 7. United Nations General Assembly, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc. A/CONF.151/26/REV.1, Vols. 1–III (1992) [hereinafter Agenda 21], paragraph 11.13 (g). Ibid., paragrapn 14.77(b). Ibid., paragraph 15.3. Furthermore, ‘introduction means, in scientific terms, that the alien species, subspecies or lower taxon has been transported by humans across a major geographic barrier (such introductions within a country are also referred to as translocations) […]. From a legal point of view […] it is important to define the term introduction as the act that gives rise to the possibility of later invasion. […]. An unintentionally introduced alien species, or an intentionally introduced alien species that spreads beyond the area of human control, may die out within a short time, establish itself for a time and then die out, or remain in the area(s) in which it was first introduced without disrupting local biota or ecosystem’. Shine et al., Chapter 1, supra note 3, 1–3. See C. C. E. Hopkins, Introduced Marine Organisms: Workshop on Risks and Management Measures, Trondheim, Norway 10–11 May 2004, DN Utredning 2005-1 (Trondheim: Directorate for Nature Management, 2005), 1; Shine et al., Chapter 1, supra note 3, i.

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Ballast is any solid or liquid weight placed in a ship to increase the draft,31 to change the trim,32 or to regulate the stability.33 The etymology of the term ballast ‘meaning “useless load” in Middle Dutch, reflects the fact since time immemorial ship owners have endeavoured to avoid using ballast’.34 Biodiversity (biological diversity) is a relatively recent term that has become familiar because it has entered into the political agenda, in particular through the Biodiversity Convention.35 Article 2 of the convention defines biodiversity as ‘the variability among living organisms from all sources, including, inter alia, terrestrial, marine and other aquatic ecosystem and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystem’. It is an all-inclusive term which encompasses ‘the total variability among organisms and the habitats in which they live; it includes diversity of species, genetic materials, and ecosystems’.36 Biodiversity describes the interrelation among species, both flora and fauna, and the ecological communities they inhabit. Interference with any part of biodiversity affects the other components. This complex ecological interdependence does not respect legal national boundaries and jurisdiction. Clearly, issues of domestic concern do have an international impact, which invokes the enforcement of principles and rules of international environmental law to ensure the conservation of biodiversity and the preservation of life on Earth. Under this teleology, the BWM Convention, Article 2, paragraph 9, refers to international cooperation among the Parties, under the aegis of the IMO, to address threats and risks to vulnerable or threatened marine ecosystems and biodiversity in areas beyond the limits of national jurisdiction in relation to ballast water management. The BWM Convention acknowledges that threats to biodiversity extend beyond national boundaries. 31

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34 35

36

Draft means ‘The distance the ship extends below the waterline measured vertically to lowest point of the hull, propellers, or other point. When measured to the lowest point, it is the extreme draft; when measured at the bow, it is the forward draft; when measured at the stern, it is the after draft. The average of the forward and after drafts is the mean draft; the mean draft in the full load or ballast condition is the load or ballast draft’. Committee on Ships’ Ballast Operations, supra note 8, 130. Trim means ‘The difference between the drafts; the after draft minus the forward draft. Trim by the stern is positive; trim by the head or the bow is negative’. Ibid., 134. Stability or stable means ‘The condition in which a body will move back to a condition of equilibrium when given a small initial movement away from this condition’. Ibid. Ibid., 22. See G. T. Prance, “Biodiversity,” in Encyclopedia of Environmental Biology, Volume 1, William A. Nierenberg, ed. (Amsterdam: Academic Press, 1995), 183; Committee on Biological Diversity in Marine Systems and National Research Council, Understanding Marine Biodiversity – A Research Agenda for the Nation (Washington, DC: National Academy Press, 1995), 1. Ibid. See also G. Carleton Ray, “Ecological diversity in coastal zones and oceans,” in Biodiversity, E. O. Wilson, ed. (Washington, DC: National Academy Press, 1988), 36–50.

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Ecosystem (ecological ecosystem) is ‘a term first used by A. G. Tansley, in 1935, to describe a unit that consists of living and non-living parts, interacting to form a stable system. Fundamental concepts include the flow of energy via food chains and food webs, and the cycling of nutrients biogeochemically. Ecosystem principles can be applied to all scales. Principles that apply to an ephemeral pond, for example, apply equally to a lake, an ocean, or the whole planet’.37 An ecosystem is ‘a system made up of a community of animals, plants, and bacteria interrelated together with its physical and chemical environment’.38 It is ‘a community of organisms and their physical environment interacting as an ecological unit; the entire biological and physical content of a biotope’.39 For scientists, the highest level of ecological integration is the ecosystem, which comprises one or more communities in a large geographic area in addition to the surrounding environment, e.g., estuaries or the total pelagic water column.40 Under Article 2 of the Biodiversity Convention the term is defined as ‘a dynamic complex of plant, animal, and micro-organism communities and their non-living environment interacting as a functional unit’. The BWM Convention refers to ‘marine ecosystem’ in Article 2, paragraph 9. Although it does not offer a definition, the term shall be interpreted as defined in the Biodiversity Convention. An ecosystem approach to AIS management is a strategy that needs to be based on the best available science on the issue.41 From the juridical perspective, enforcement of the ecosystem approach is complex as legal system jurisdictional boundaries rarely correspond to those of an ecological ecosystem unit. Furthermore, sectoral legal approaches frequently prevail over integrated ones.42 Certainly, the ecosystem approach raises the need for international agreement on jurisdictional cooperation and harmonization of national legislation with respect to the control and management of ships’ ballast water and sediment exchange. Environment is an amorphous term.43 Dictionaries provide definitions that vary from ‘something that surrounds’, that is ‘all the conditions, circumstances,

37

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40 41 42 43

Michael Allaby, ed., A Dictionary of Ecology, 2nd edition (Oxford: Oxford University Press, 1998), 136. Victoria Neufeldt and David B. Guralnik, eds Webster’s New World Dictionary, 2nd edition (New York, 1994), 430. R. Lincoln, G. Boxshall, and P. Clark, A Dictionary of Ecology, Evolution and Systematics, 2nd edition (Cambridge: Cambridge University Press, 2001), 95. Lalli and Parsons, supra note 2, 11. Shine et al., Chapter 1, supra note 3, 31. Ibid. Catherine Redgwell, “International environmental law,” in International Law, Malcolm D. Evans, ed. (Oxford: Oxford University Press, 2003), 659.

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and influences surrounding, and affecting the development of an organism or group of organisms’,44 to ‘the complex of biotic, climatic, edaphic and other conditions which comprise the immediate habitat of an organism; the physical, chemical and biological surroundings of an organism at any given time’.45 In fact, legal definitions of the environment reflect the scientific approach to this term and include the atmosphere, atmospheric deposition, soils and sediments, water quality, biology and humans.46 Early treaties tended to refer to ‘flora’ and ‘fauna’ rather than environment, restricting the concept. For example, Article XX (b) and (g) of the General Trade Agreement on Tariffs and Trade (GATT) provided environmental protection rules, however, they did not refer to environment but to human, animal or plant life and to the ‘conservation of exhaustive natural resources’. For some, those terms have limited the scope of permissible exceptions to the rules of free trade, particularly in the context of the narrow construction given to the terms used by GATT Dispute Settlement Panels.47 Even UNCLOS48 does not define the term. Moreover, the international legal instruments referred to throughout this book, such as major treaties, guidelines and declarations, do not provide a definition of the term. Although the BWM Convention refers to the ‘environment’ in several articles,49 it does not offer a definition on the term therein. Accordingly, the term ‘environment’ shall be interpreted here using scientific parameters and encompassing water spaces including estuaries, bays, territorial sea, contiguous zone, continental shelf, exclusive economic zone (EEZ) and the high seas.

44 45 46 47

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49

Webster’s, supra note 38, 454. Lincoln et al., supra note 39, 101. UNEP (Environmental Data Report, 1992, 3. See Philippe Sands, Principles of International Environmental Law, 2nd edition (Cambridge: Cambridge University Press, 2003), 16; McConnell, Chapter 1, supra note 2, 38–42. ‘[G]enerally, even conventions limited to the “marine environment” avoid defining that term, as is the case in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), although Malta had proposed that the term “comprises the surface of the sea, the air space above, the water column and the sea-bed beyond the hightide mark including the biosystems therein or dependent thereon.” It seems, however, at least to have generally understood at the Third UN Law of the Sea Conference that “marine environment” did include both the atmosphere, and marine life’. Patricia W. Birnie and Alan E. Boyle, International Law and the Environment (Oxford: Oxford University Press, 1995), 3. BWM Convention, Chapter 1, supra note 3, Article 1, paragraph 8; Article 2, paragraphs 6 and 7; Article 3, paragraph 2 (b), (c) and (d); Article 5; Article 9, paragraph 3; Article 10, paragraphs. 2 and 3; Article 13, paragraph. 3; Annex Section A, Regulation A-4, paragraph 3; Annex Section D, Regulation D-5, paragraph 2 (2); Annex Section E, Regulation E-1, paragraph 6.

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Pollution of the marine environment, under Article 1, paragraph 4, of UNCLOS, is defined as [T]he introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea and reduction of amenities.

On the basis of this UNCLOS definition, a first approach to biopollution of the marine environment could be [T]he introduction by man, directly or indirectly, of organisms and pathogens into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea and reduction of amenities.

Pathogen means any agent, especially a micro-organism, able to cause disease.50

2.3. Scientific Aspects on Biopollution Erkki Leppäkoski 51 This contribution presents a review of relatively new scientific aspects of marine environmental problems, namely, the transfer of nonindigenous species, in particular in regard to harmful aquatic organisms and pathogens, from one coast or sea to another and their role as biopollutants. Although the BWM Convention has yet to be ratified and enforced by a sufficient number of member States, this scientific approach is already of great interest to publicists, the shipping and ship-building industries. In its biological context, ballast water itself is of environmental interest only in exceptional cases (e.g., when badly polluted by oil or chemicals). The problems arise from living organisms suspended in ballast water and associated sediments carried by the world’s merchant vessels. Not only water is carried in the ballast tanks, but also an entire community of organisms, from viruses and bacteria to microscopic algae, spores of macroalgae, larvae and adults of invertebrate animals, and even fish. There are thousands of examples of species introductions from all continents, including Antarctica, from remote oceanic islands, seas and inland waters. In general, all

50 51

Webster’s, supra note 38, 990. The section entitled ‘Scientific Aspects on Biopollution” was contributed by Erkki Leppäkoski, Professor of Environmental and Marine Biology, Åbo Akademi University, Turku, Finland. See the marine biology section of the Bibliography to this book provided by Erkki Leppäkoski.

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ecosystems are open to bioinvasions. Some of the non-native species are extremely beneficial. Several aquatic nonindigenous species have significantly improved fishery harvest of wild catches or aquaculture (total yield, extension of fishing season, better quality and economic value of harvest, etc.) In addition, and perhaps more importantly, many nonindigenous species and their larvae play an important role in coastal food webs, serving as food source for native species. In his classic paper on marine bioinvasions, Professor James T. Carlton52 first made marine scientists aware of problems related to aquatic invasive species (AIS). This marked a new era and gave a warning signal of environmental change comparable to Rachel Carson’s book Silent Spring.53 These are examples of works that made people think about the environment in terms of general and harmful chemicals/alien species in ways they never had before. Alien species became part of the global aquatic agenda in the late 1980s when the European zebra mussel invaded the North American Great Lakes, and its ‘counterpart’, the comb jelly Mnemiopsis leidyi—an American invader in European waters—conquered the Black Sea. Both of these species have had deleterious effects not only on native species and ecosystem functions, but also on fishing and aquaculture industries, on commercially important native species, and thus on economies of the riparian countries. Biological invasions of nonindigenous species54 constitute one of the four greatest threats to the world’s oceans and their biodiversity, the other three being loading by pollutants from land-based sources, overexploitation of living marine resources, and physical destruction of marine habitats.55 A basic difference between bioinvasions (biological pollution) and other forms of marine pollution should be kept in mind. While chemical and physical pollution can be reduced or stopped, living organisms tend to reproduce and spread if they meet hospitable environmental conditions in the water body into which they were initially released through shipping or other vectors. In fact, marine ecosystems have an inherent capacity to recover from anthropogenically-induced damage within a reasonable time. Even after severe oil spills, most of the observable environmental impacts along rocky shores has dissipated within two to ten or more years.56 52

53 54

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James T. Carlton, “Transoceanic and interoceanic dispersal of coastal marine organisms: the biology of ballast water,” in Oceanography and Marine Biology Annual Review 23 (1985): 313–372. Rachel Carson, Silent Spring (New York: Houghton Mifflin, 1962). For a review of terminology, see A. Occhipinti-Ambrogi and B. S. Galil, “A uniform terminology on bioinvasions: a chimera or an operative tool?,” Marine Pollution Bulletin 49(9–10) (2004): 688–694. Global Ballast Water Management Programme, “The Problem,” available online at http://globallast. imo.org. J. N. Neff and E. S. Gilfillan, “Indirect effects of marine oil spills on rocky shores: Examples from 3 large oil spills,” 42 Setac Globe (May-June 2004).

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By contrast, established AIS are permanent, and the impacts of invasive marine species are usually irreversible. There are very few examples of successful eradication of a marine invader. Thus, any transfer and release of a single AIS can be considered an ‘ecological roulette’.57 Nevertheless, not all water areas that are exposed to ballast water discharges or other shipping-related vectors are equally open to successful introductions of alien species. Certain biotic58 and abiotic59 characteristics and/or combinations of both make an aquatic ecosystem susceptible to invasions. High-risk areas are ports and waterways due to repeated releases of ballast water; dockyards due to emptying of ballast tank sediments and cleaning of hull fouling; receiving waters for cooling water from power plants due to increased water temperature, hospitable for invaders native to lower latitudes; designated areas for ballast water exchange, and so forth.60 In addition, estuaries and other brackish environments have repeatedly suffered severe infestations by ballast-mediated and other non-native species. Brackish water species seem to be over-represented among AIS61 for obvious reasons. Most ports are situated in brackish regions, e.g., at river mouths; hence the brackish fauna and flora stand a better chance of being loaded with ballast water. The extent of the impact of AIS on human interests can be illustrated by examples from aquatic ecosystems. In particular,62 examples include disease promoters

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J. T. Carlton and J. B. Geller, “Ecological roulette: The global transport of nonindigenous marine organisms,” Science 261 (1993): 78. For example, structural (number of species) and functional (e.g., life forms, feeding types, food web complexity) paucity of native fauna and flora; few predators; few parasites, or diseases; and abundant food supplies. For example, large size; range of habitats; availability of hospitable bottom substrates; disturbed by man (heavy pollution of receiving waters often severely impoverishes native fauna and flora whereas tolerant nonindigenous species may be able to colonise the area and become dominant); recipients for thermal pollution, i.e. cooling water from industrial and power plants; post-stress conditions; and unstable environment. S. Gollasch and E. Leppäkoski, Initial Risk Assessment of Alien Species in Nordic Coastal Waters, Nord 8 (Copenhagen: Nord Nordic Council of Ministers, 1999), 44. See W. J. Wolff, “Exotic invaders of the meso-oligohaline zone of estuaries in The Netherlands: Why are there so many?,” Helgoländer Meeresuntersuchungen 52 (1999): 393–400; M. Paavola, S. Olenin and E. Leppäkoski, “Are invasive species most successful in habitats of low native species richness across European brackish water seas?,” Estuarine, Coastal and Shelf Science 64 (2005): 738–750; N. Streftaris, A. Zenetos and E. Papathanassiou, “Globalisation in marine ecosystems: The story of non-indigenous marine species across European seas,” Oceanography and Marine Biology Annual Review 43 (2005): 419–453. Terms adopted from H. A. Mooney, “Invasive alien species: The nature of the problem,” in Invasive Alien Species – A New Synthesis, SCOPE Series 63, H. A. Mooney, R. N. Mack, J. A. McNeely, L. E. Neville, P. J. Schei, and J. K. Waage, eds (Washington, DC: Island Press, 2005), 1.

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(Vibrio cholerae repeatedly found in ballast tanks; crayfish plague); fishery disrupters (the North American comb jelly Mnemiopsis leidyi in the Black and Caspian Seas was most likely transferred with ballast water from the coast off Florida63); impeders of navigation (water hyacinth in East African lakes and elsewhere; now found in more than 50 countries on five continents); obstructers of water works (the zebra mussel, which has seriously affected cooling and water supply systems in North America); species eliminators (Nile perch, the Japanese Rapana whelk in the Black Sea that destroyed much of formerly profitable oyster and mussel banks,64 and Caulerpa seaweed, introduced in the mid-1980s from a public aquarium into the northwestern Mediterranean with detrimental impacts on native algae and animals and thus the overall biodiversity); and modifiers of biogeography and evolution (the biogeographical peculiarities of, e.g., the European semi-enclosed seas and the North American Great Lakes, developed since the last glaciation period, are threatened and these water bodies are, to an increasing extent, subject to worldwide biological homogenization of the aquatic flora and fauna). Biopollution by non-native organisms from microbes to plants and animals has changed coastal ecosystems and semi-enclosed seas and bays at an increasing rate over the past 50–60 years. Marine species invasions continue to pose one of the greatest risks to the biodiversity and integrity of coastal ecosystems and estuaries as well as of intensely trafficked inland waterways. AIS are no longer only of scientific interest or local concern. The most aggressive invader species represent a threat to the biosecurity of most coastal countries of the world. Shipping (ballast water and hull fouling) has been and will continue to be the most important vector for introductions into aquatic environments. Understanding the role of shipping as a vector for alien invasive organisms and pathogens is fundamental to ballast water management (e.g., risk assessment, treatment technologies and legal instruments). Every single ship can be regarded as a floating ecological island, moving across the seas, with species-rich communities transported both outside and inside of the hull. Today, shipping (including that connected with inland waterways) is the most common vector affecting the spread of aquatic species throughout the world. It has been estimated that the global merchant fleet annually transports some 3.5 billion tonnes of ballast water.65 Furthermore, there are more than 40,000 merchant vessels at sea at any given

63

64

65

Mnemiopsis contributed to the collapse of Black Sea commercial fisheries in the late 1980s, and a similar collapse in the Caspian Sea in the early 2000s, after being transferred from the Black Sea via the Volga-Don Canal. The Japanese gastropod also constitutes an important resource for fisheries for Rapana meat and shells in the Black and Marmara seas. Ø. Endresen, H. L. Behrens, S. Brynestad, A. B. Andersen and R. Skjong, “Challenges in global ballast water management,” Marine Pollution Bulletin 48(7–8) (2004): 615–623.

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time, and 3,000–4,000 aquatic species a day have been estimated to be in motion between coastal seas in ballast water ‘conveyor belts’ around the world.66 The number may be even higher if all types of vessels are included, up to an estimated 7,000–10,000 or more each week.67 The coastal world is facing an increase in ship-borne introductions for several reasons. For example, the increase of cargo volumes, bigger ships (= more ballast water to be transferred), faster ships (= better survival during the voyage), new donor and receiving areas (= new ship-assisted invasion corridors), as well as increased hull fouling due to the TBT (tributylin) ban if effective new hull coatings is not available soon, are all vectors of transmission. Predictive analyses of potential future invaders and quantitative models for assessing the risks of alien species, including their likely impact on a recipient area, can be accomplished for specific areas and species. A species’ invasion capacity is not a characteristic, but proof of a match between the species’ ecophysiological demands and environmental conditions in the recipient area, along with the availability of proper vectors for transport.68 It is a basic fact that established aquatic nonindigenous species are permanent arrivals. Compared with their terrestrial equivalents, water currents facilitate their dispersal (secondary introduction), and this is combined with fewer dispersal barriers.69 Data from the brackish Baltic Sea clearly supports this hypothesis. Here, aquatic dispersal has been rapid and effective, as demonstrated by some of the most successful invaders. Based on published first findings, the minimum rates of secondary, within-basin spread were estimated for some ship-mediated NIS in the Baltic Sea: the American barnacle Balanus improvisus 30 km.year –1; the North American bristle worm Marenzelleria viridis 170–480 km.year –1, and the mud snail Potamopyrgus antipodarum, native to New Zealand, 20–50 km.year –1.70 The eradication of established NIS is not a realistic option—prevention is the only solution. There are just a few examples globally of successful eradication

66

67

68

69

70

See Carlton and Geller, supra note 58; S. Gollasch, Untersuchungen des Arteintrages durch den internationalen Schiffsverkehr unter besonderer Berücksichtigung nichtheimischer Arten., PhD Thesis, Dr. Kovac, Hamburg. See J. T. Carlton, “The scale and ecological consequences of biological invasions in the world’s oceans,” in Invasive Species and Biodiversity Management, O. T. Sandlund, P. J. Schei and U. Viken, eds (Dordrecht: Kluwer Academic Publishers, 1999), 195; N. Bax, J. T. Carlton, A. MathewsAmos, R. L. Haedrich, F. G. Howarth, J. E. Purcell, A. Rieser, and A. Gray, “The control of biological invasions in the world’s oceans,” Conservation Biology 15(5) (2001): 1234–1246. M. Pienimäki and E. Leppäkoski, “Invasion pressure to the Finnish Lake District: invasion corridors and barriers,” Biological Invasions 6(3) (2004): 331–346. David M. Lodge, Roy A. Stein, Kenneth M. Brown, Alan P. Covich, Christer Brönmark, James E. Garvey, Steven P. Klosiewskt, “Predicting impact of freshwater exotic species on native biodiversity: Challenges in spatial scaling,” Australian Journal of Ecology 23(1) (1998): 53–67. E. Leppäkoski and S. Olenin, “Non-native species and rates of spread: Lessons from the brackish Baltic Sea,” Biological Invasions 2(2) (2000): 151–163.

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actions. In these cases, conditions allowed rapid action, such as removal of the Asian green mussel (Perna viridis) at a site in Queensland, Australia, the Japanese oyster drill (Thais clavigera) off Vancouver Island, Canada, and the Asian blackstriped mussel (Mytilopsis sallei) in Darwin, Australia. Other strategies for prevention involve raising awareness, monitoring, databases, and creating early warning systems. In the future, the IMO guidelines for ballast water uptake (e.g., avoid ballasting at night, in shallow areas, during algal blooms, etc.) need to be implemented internationally. Integrated vector management71 of ballast water must cover the entire life cycle, including uptake in the area of origin, transport and discharge at the final destination, that is, the port of call where ballast water is discharged.72 In addition, several technologies are being developed for ballast water treatment, for example, heating, ultraviolet, ultrasound and ozone treatments, filtration, oxygen depletion, and chemicals. However, serious problems remain unsolved. While several methods have proved effective in laboratory and pilot-scale tests, upscaling processing capacities as large as 5,000 m3.h–1 remains a challenge. Treatments can be effective in transoceanic traffic whereas in coastal shipping the duration of the voyage is an important parameter, that is, the shorter the treatment time, the higher the dose of disinfectant or energy required, and the higher the capital and operational costs. The development of a cost effective and reliable fullscale operation system will be difficult without thorough studies on the disinfecting potential of various technologies with various operational parameters on a variety of marine organisms in changing environmental conditions.73 The BWM Convention states in Regulation D-2 (Ballast Water Performance Standard) that Ships conducting Ballast Water Management in accordance with this regulation shall discharge less than 10 viable organisms per m3 greater than or equal to 50 micrometres in minimum dimension and less than 10 viable organisms per ml less than 50 micrometres in minimum dimension and greater than or equal to 10 micrometres in minimum dimension; and discharge of the indicator microbes shall not exceed the specified concentrations. […] 71

72

73

See J. T. Carlton and G. M. Ruiz, “Vector science and integrated vector management in bioinvasion ecology: Conceptual frameworks,” in Mooney et al., supra note 62, 36–58. Carlton and Ruiz suggest measures at each level of integrated ballast water management: At origin of ballast water (assess presence of algal blooms, known harmful species, high sediment loads; assess timing of ballasting relative to vertical migrations of bottom-living species), during the voyage (exchange coastal water for oceanic water; treat ballast water), and at destination (treat ballast water, transfer water to onshore facility, return to open sea for ballast water exchange). Ibid. S. Viitasalo, J. Sassi, J. Rytkönen, and E. Leppäkoski, “Ozone, ultraviolet light, ultrasound and hydrogen peroxide as ballast water treatments - experiments with mesozooplankton in lowsaline brackish water,” Journal of Marine Environmental Engineering 8(1) (2005): 35.

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Even if these biological quality criteria for discharged ballast water could be met, several key questions remain unanswered: How clean is clean? How can the quantity of remaining life in treated ballast water be assessed? Are organisms alive or virtually viable, that is, able to reproduce in the water into which they are released? While a medium-sized bulk carrier could still release half a million viable organisms when deballasting, from a biological viewpoint, a single fertilized female specimen would be sufficient to initiate an invasion. In fact, some of the short and long-term challenges for environmental scientists, technology developers and decision makers are readily identified: implementation of the IMO guidelines for ballast water exchange in the open sea; investment in research and development of cost-effective and environmentally sound ballast-water treatment methods; support of research and development concerning new antifouling coatings subsequent to the TBT ban; ratification and implementation of the BWM Convention; and development of applicable strategies for those regional seas not taken into consideration in the global convention (e.g., the North, Baltic, Black and Mediterranean seas). Eradication of established alien species is not a realistic option; effective treatment methods for ballast water must be developed that prevent or reduce the risks of ship-mediated introductions.

2.4. From Pollution to Biopollution of the Marine Environment A look at the past can illuminate the background of the principles we are trying to apply in modern international efforts to control the environment. The search for a legal regime to regulate the international environment becomes more intelligible when viewed in historical context.74

Classical references to pollution are few. Grotius, in the 16th century, was one of the earliest to mention international environmental law when he considered poisoning wells to prevent them from being used by invaders.75 However, neither Grotius nor any other classical writer appeared to express any concern for the nonintentional pollution of the environment. The focus was intentional pollution as a possible tactic of warfare. Pollution as a product of the industrial era and a byproduct of technological development would only emerge in the 20th century. Although the genesis of international environmental regulation dates to the 19th century, the modern development of soft law provisions on environmental 74

75

Forest L. Grieves, “Classical writers of international law and the environment,” Environmental Affairs 4(2) (1975): 309. Ibid., 311; John Warren Kindt, Marine Pollution and the Law of the Sea, Volume 1 (Buffalo, NY: William S. Hein, 1986), 9; Hugho Grotius, The Rights of War and Peace, trans. A. A. Campbell (London: Walter Dunne Publisher, 1993).

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issues dates from the post-World War II era. The evolution of environmental law in correlation with the law of the sea stands out as fast-paced from the 1970s. At that time, scientists, governments and international organizations acknowledged that the indiscriminate use of the oceans was decisively affecting their natural capacity for self-purification, which although great, was not limitless.76 Following a series of serious oil tanker accidents, States challenged IMO to implement its antipollution mandate. The definition of pollution of the marine environment emerged from the introduction of hazardous substances into the oceans and, later, energies that cause or may cause damage to marine ecosystems. Although biopollution from ships’ ballast water and sediments already existed, the international community was not yet aware of the gravity and danger of the phenomenon, thus the concept has only emerged in recent years. This section reviews the evolution of the term pollution of the marine environment under the international legal framework on the issue. The legal framework governing marine pollution has evolved from a series of non-binding resolutions, principles and declarations (soft law) to a robust binding multilateral treaty regime (hard law) that deals with specific aspects of pollution (including ballast water management), as well as more general protection of the marine environment and biodiversity. Both soft and hard law initiatives have contributed to the development of a definition of pollution and biopollution that is reflected in the international legal regime on biopollution, and several are reviewed below. The international legal regime on biopollution will be examined in detail in Chapter 3. 2.4.1. Resolutions, Declarations and Principles Several soft law initiatives spanning the 20th century identified principles that form the basis of the 21st century international legal regime governing ballast water management. Although all of these resolutions and declarations do not define pollution specifically, they do contribute to the current definition of the terms marine pollution and biopollution. In 1937, the Institute of International Law had the foresight to adopt the Luxemburg Resolution.77 In addition to the purpose of collaboration on the progressive codification of international law, this resolution served as legal background to the development of the new law of the sea and maritime and environmental law. It recommended that States prevent practices that are scientifically known to harm the

76 77

Shigeru Oda, Fifty Years of the Law of the Sea (The Hague: Kluwer Law International, 2003), 420. Luxembourg Resolution, Annuaire de L’Institut de Droit International 40 (August-September 1937), 268–271.

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sea, acknowledged the interrelationship between the development of scientific research and law,78 and recommended that governments provide effective support to international scientific organizations engaged in marine research. Moreover, it referred to the internationalresponsibility of the State to prevent acts harmful to the sea; recommended preserving the oceans for future generations, a precursor to the principle of sustainable development; and recalled the relevance of international cooperation vis-à-vis the use of the seas. Furthermore, the resolution was the first soft law international document to address practices damaging to marine life,79 providing as an example the introduction, without any criteria, of oil and other substances in the marine environment. Although the Luxemburg Resolution does not define marine pollution, it does identify the principal elements of the concept. In light of the resolution, the following could be construed as a definition of marine pollution: The uncontrolled introduction into the oceans of substances (crude oil, wastes and other toxic products) that cause damages to marine life, considering the great value of the oceans to human health and economic purposes.

In 1967, the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP)80 was established by several UN81 agencies for the purpose of advising on all scientific aspects of the prevention, reduction and control of the degradation of the marine environment to sustain life support systems, resources and amenities. In 1971, GESAMP adopted the General Guidelines and Principles for the Preservation of the Marine Environment (Ottawa Principles).82 These principles provide an overall structure for a global analysis of all aspects of ocean pollution.

78

79 80 81

82

The resolution encourages the State ‘to elaborate a study through scientific investigation on an international basis concerning the problem of the preservation of the sea resources and the sea fauna as a whole, not only against the abuses resulting from the deployment of highly destructive methods, but also against the practices that are damaging to sea life, such as, for example, the uncontrolled introduction of crude oil, residual waters and other toxic substances, and the adoption, without delay, of all the protective measures that appear to be justified in favor of the general interest, as a result of such study’. Ibid. Nevertheless, this was not included in the 1958 codification on the law of the sea. Oda, supra note 76, 422. Namely IMO, the United Nations Food and Agriculture Organization (FAO), the World Health Organization (WHO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Meteorological Organization (WMO), the International Atomic Energy Agency (IAEA), the United Nations Environment Programme (UNEP), and the United Nations Industrial Development Organization (UNIDO). See http://gesamp.imo.org. A/CONF.48/IWGMP.1/5; A/CONF.48/IWGMP.II/5, 2,; see also Shigeru Oda, The International Law of the Ocean Development Basic Documents (Leiden: Sijthoff, 1977), 502–505.

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The Ottawa Principles, prima facie, adopted a definition of pollution of the marine environment, namely: I. Definition The introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries), resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea water, and reduction of amenities.83

Further, the UN-sponsored 1972 Stockholm Conference on the Human Environment adopted a non-binding Declaration of Principles and a Programme for Action (Stockholm Declaration)84 in an attempt to find solutions to complex and interconnected environmental issues. Moreover, it placed the environment on the international agenda for the first time. The anthropocentrism of the declaration (‘man is both creature and moulder of his environment’)85 is regarded as a landmark in the development of environmental law.86 Since 1972, the development of 83

84

85 86

The provisions supra provided the key elements for the current legal definition of pollution of the marine environment adopted in the 1982 UNCLOS, Chapter 1, supra note 8, Article 1, paragraph. 4. This definition added a new element to the concept, namely, ‘is likely to result’ (in such deleterious effects), thereby broadening the concept by taking into account the potential harm to the marine environment. At its 23rd session, the UN General Assembly adopted Resolution 2398 (XXIII) of 3 December 1968 convening a United Nations Conference on the Human Environment. The conference was held 5–16 June 1972 in Stockholm and adopted the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration on the Human Environment), 16 June 1972, UN Doc. A/CONF.48/14/Rev. 1, 11 ILM 1416 (1972) [hereinafter Stockholm Declaration]. See also Hans Blix, “History of the Stockholm Declaration,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist, John Norton Moore and Said Mahmoudi, eds, Center for Oceans Law and Policy Series 7 (Leiden: Martinus Nijhoff Publisher, 2003), 15–24; Jutta Brunnée, “The Stockholm Declaration and the structure and processes of international environmental law,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist, John Norton Moore and Said Mahmoudi, eds, Center for Oceans Law and Policy Series 7 (Leiden: Martinus Nijhoff Publisher, 2003), 67–83; Alexandre Kiss and Diana Shelton, International Environmental Law (New York: Transnational Publisher, 1991); John Warren Kindt, Marine Pollution and the Law of the Sea (Buffalo: Willian S. Hein & Co., 1996), 12–26; Alexandre Kiss, “The destiny of the principles of the Stockholm Declaration,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist, John Norton Moore and Said Mahmoudi, eds, Center for Oceans Law and Policy Series 7 (Leiden: Martinus Nijhoff Publisher, 2003), 53–66. Stockholm Declaration, ibid., Proclamation 1. See “Stockholm Declaration of the United Nations Conference on the Human Environment, 1972,” in Basic Documents in International Law and World Order, 2nd edition, Burns H. Weston, Richard A. Falk, and Anthony A. D’Amato (St. Paul: West Publishing Co., 1990), 691–694; Gro H. Brundtland, Nosso Futuro Comum: Comissao Mundial sobre Meio Ambiente e Desenvolvimento, 1st edition (Sao Paulo: Getúlio Vargas, 1988), xiii.

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international treaty law has been guided by the principles addressed therein. For example, Article 2 of the BWM Convention, which sets out the general obligation of the Parties, adopted the teleology of the Stockholm Declaration Principles 7 and 21: Principle 7 States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

Principle 21 States have in accordance with the charter of the United Nations and the principles of international law, the sovereign rights to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

It was reasonable to presume that the 1972 Stockholm Conference would have defined pollution, but a definition was not forthcoming. Instead of a definition per se, other provisions in the Stockholm Report appear to deal with general categories such as ‘pollutants of broad international significance’, notes Kindt.87 Nevertheless, Principles 1, 6 and 7 outline a quasi-definition of pollution of the marine environment. Principle 1 refers to the ‘right to environment’,88 acknowledging the principle of sustainable development: Principle 1 Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. […]

Principle 6 addresses the introduction of substances into the marine environment: Principle 6 The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damages is not inflicted upon ecosystems. The just struggle of the problems of all countries against pollution should be supported.

87 88

Kindt, supra note 84, 35. In the 1980s, more than fifty States adopted such a right in their constitution and practically none of the new constitutions and constitutional modifications ignored such a right. The right to the environment also was adopted through treaties and international documents.

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The Stockholm Declaration does not refer specifically to biopollution. Unquestionably, however, the declaration improved international environmental law and influenced the new law of the sea as codified in the 1982 UNCLOS. Moreover, the adoption of environmental standards to prevent biopollution associated with ballast water and sediments have been outlined under the IMO anti-pollution mandate based, inter alia, on the principles set out in the Stockholm Declaration. IMO has adopted several non-binding resolutions that contribute to the definition of biopollution. Although resolutions ranging from the 1973 IMO Resolution 18, Research into the effect of discharge of ballast water containing bacteria of epidemic diseases,89 when the issue was more oriented to human health,90 to the 1997 IMO Assembly Resolution A.868 (20), Guidelines for the control and management of ships’ ballast water to minimise the transfer of harmful aquatic organisms and pathogens 91 do not define biopollution of the marine environment, they do outline the basic principles necessary for constructing a definition and drafting a regulatory regime for managing biopollution. These resolutions and IMO activities must be interpreted in conjunction with the provisions of UNCLOS.92 Throughout the 1990s, IMO resolutions were also drafted taking into consideration current environmental legal instruments. The preamble to Resolution A.868 (20), for example, expressly invokes the 1992 Convention on Biological Diversity.93 Although the resolution lacks a definition of pollution of marine environment, it calls on States to protect biological diversity, including marine biodiversity, and provides a holistic approach to managing the relationship between human activity and the environment. 89 90

91 92

93

IMCO/MP/CONF/WP.29, 31 October 1973, 24. Resolution 18 provides: ‘Ballast water taken in waters which may contain bacteria of epidemic diseases may, when discharged into the sea in another location, cause a danger of spreading of the epidemic diseases to other countries’. Guidelines, Chapter 1, supra note 3, 1–16. Blanco-Bazán notes: ‘From 1959 to 1973, conventions and protocols were adopted at IMO without the existence of a comprehensive law of the sea treaty framework. Between 1973 and 1982 this framework was elaborated was elaborated by UNCLOS III, in parallel to the adoption of the most important IMO treaties. From its adoption until its entry into force (1982–1994) UNCLOS served as an important reference to the always prolific on-going regulatory work undertaken by IMO. The last period, running from 1994 to present, features the dynamic interaction established between UNCLOS as a treaty in force on the one hand and IMO treaties on the other’. A. Blanco-Bazán, “IMO interface with the Law of the Sea Convention,” in Twentythird Annual Seminar: Current Maritime Issues and the International Maritime Organization, M. Nordquist and J. N. Moore, eds, Center for Oceans Law and Policy 4 (The Hague: Martinus Nijhoff Publisher, 1999). Convention on Biological Diversity, Rio de Janeiro, 22 May 1992 [hereinafter CBD], 1760 UNTS 79; 31 ILM 818 (1992); available online from http://www.cbd.int.

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2.4.2. Treaties For multilateral treaties, the greater the number of negotiating States, the greater the need for imaginative and subtle drafting to satisfy competing interests. The process inevitably produces much wording that is unclear or ambiguous. Despite the care lavished on drafting and the accumulated experience, there is no treaty which cannot raise some question of interpretation.94

From the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL)95 to the 2004 BWM Convention, the treaties with respect to the prevention of pollution from ships, except UNCLOS,96 avoid defining ‘pollution of the marine environment’. OILPOL, drafted under the aegis of the IMO, then IMCO,97 was the first treaty dealing with ocean pollution.98 In fact, oil was the first pollutant for which international control standards were set. In its original form, OILPOL created ‘restraint zones’, prohibiting the discharge of oil or oil mixtures in specific marine zones. It controlled the locations for operational discharges of oil by defining prohibited areas and excluding coastal zones. Ships were required to avoid, if possible, carrying ballast water in oil fuel tanks.99 The convention provided that penalties should be adequate in severity to discourage any such unlawful discharge.100 OILPOL made a significant contribution to the reduction of deliberate pollution of the sea by oil. However, OILPOL and its amendments were not concerned about defining pollution of the marine environment because, from the 1950s through 1973, conventions and protocols were adopted by IMO without a comprehensive law of the sea treaty framework 94

95

96 97 98

99 100

Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000), 13. For further details with respect to treaty interpretation, see G. G. Fitzmaurice, “Treaty interpretation and certain other treaty points, the law and procedure of the International Court of Justice,” The British Year Book of International Law, 1951 (London: Oxford University Press, 1952); Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edition (Manchester: Manchester University Press, 1984). International Convention for the Prevention of Pollution of the Sea by Oil, London, 12 May 1954, 327 UNTS 3. OILPOL was successively amended in 1962, 1969 and 1971 until it was replaced in 1973 by the MARPOL Convention. See Weston et al., supra note 86, 640–8; I. P. Blishchenco, E. P. Andreyev and S. A. Gureev, The International Law of the Sea (USSR: Progress Publisher, 1988), 185; G. Knight and H. Chiu, International Law of the Sea: Cases, Documents, and Readings (Pleasantville, NY: UNIFO Publisher, 1991), 666. UNCLOS, Chapter 1, supra note 8, Article 1, paragraph 4. International Maritime Consultative Organization (IMCO). Although a treaty dealing with oil pollution from ships had been drawn up in 1926, it was never opened for signature. See R. R. Churchill and A. V. Lowe, The Law of the Sea (Manchester: Manchester University Press, 1985), 216–219. OILPOL, supra note 95, Article VII. OILPOL, supra note 95, Article VI.

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in place.101 Furthermore, OILPOL probably did not refer to the term because there was no consensus on a definition under environmental law during this period. Nevertheless, OILPOL suggests the main elements with respect to the genesis of a definition of marine pollution. Clearly any definition of marine pollutions should include ‘unlawful discharge, by man, of oil or oil mixture into sensitive areas of the ocean causing damages to the sea’. Responding to the 1967 grounding of the Torrey Canyon, IMO convened an international conference to draft an international agreement to reduce contamination of the sea, land and air by ships. IMO recognized the need for an international agreement to reduce both accidental and operational pollution from ships. From this conference, the 1973 International Convention for the Prevention of Pollution from Ships, modified by the 1978 Protocol (MARPOL 73/78), was adopted, replacing OILPOL. However, similar to the OILPOL regime, MARPOL 73/78 does not provide a specific definition for pollution of the marine environment. Article 2 indirectly addresses the issue by defining ‘harmful substance’: Harmful substance means any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substances subject to control by the present Convention.

With this provision, MARPOL 73/78 introduced further elements that should be added to a definition of marine pollution: ‘introduction, by man, into the seas of a harmful substance which is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea’. The 1982 United Nations Convention on the Law of the Sea (UNCLOS), in Article 1, paragraph 4, offers a definition of pollution of the marine environment: Use of terms and scope 1. For the purpose of this Convention: […] (4) pollution of the marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.

It should be noted that this paragraph does not list ‘harmful aquatic organisms and pathogens’ non-intentionally introduced into the marine environment. The question is whether potentially harmful organisms and pathogens are ‘substances’,

101

Blanco-Bazán, supra note 92, 270.

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even though the harmful effects clearly fall within the enumerated categories of likely harm. For some legal scholars, the term substance includes the introduction of alien organisms into the marine ecosystem.102 Certainly, under the principle of effectiveness, res magis valeat quam pereat, UNCLOS aims to establish an effective international legal framework for the protection of the marine environment against any category of harm through human activities, whether or not known when the convention was drafted. Interpretation of the expression ‘pollution of the marine environment’ adopted by UNCLOS, in the light of Article 31, ‘General rule of interpretation’, of the Vienna Convention,103 reveals two main points: 1. The analysis of the preparatory drafts of UNCLOS suggests that the Convention adopted a broad concept of pollution of the marine environment that may be applied to all forms of harm or possible damage to the marine environment through human activity. 2. Although Part I, Article 1, paragraph 4 of UNCLOS does not expressly mention alien species, UNCLOS provides rules on the matter in Part XII and addresses obligations regarding invasive species.104 These obligations are both indirect—(a) under the general obligation imposed on the State to preserve and protect the marine environment (Article 192); (b) under specific obligations imposed on the States to prevent, reduce and control pollution of the marine ecosystem from any source (Article 194, paragraph 1) and from vessels (Article 194, paragraph 3(b) ); and (c) under specific obligations imposed on States to protect and preserve rare fragile ecosystem and the habitat of depleted, threatened or endangered species and other forms

102

103

104

Molenaar notes that the expression ‘substance’ would also comprise the introduction of ‘alien organisms’ in the marine environment caused by ships’ ballast water. This author argues that de-ballasting is an operational discharge and is captured within the notion of operational vessel source pollution. See E. Jaap Molenaar, Coastal State Jurisdiction Over Vessel-Source Pollution, International Law and Policy Series, Vol. 51 (The Hague: Kluwer Law International, 1998), 17; Andreyev recalls the widely accepted definition of marine pollution proposed by GESAMP and adopted by the 1972 Stockholm Conference on the Human Environment and the 1982 UNCLOS, which emphasizes that, from the legal point of view, what is particularly essential to the concept of pollution is not so much the fact of the introduction of pollutants into the marine environment as the resulting actual damage to other uses of the world ocean, Blishchenco et al., supra note 95, 180; Markus Böckenförde, “The introduction of alien or new species into the marine environment: A challenge for standard setting and enforcement,” in Marine Issues: From a Scientific, Political and Legal Perspective, P. Ehlers, E. Mann Borgese and W. Rudiger, eds (The Hague: Kluwer Law International, 2002), 245–248, 263. T. O. Ellias, The Modern Law of Treaties (Leiden: Oceana Publisher, 1974), 75; Vienna Convention on the Law of Treaties, Vienna, 22 May 1969, 1155 UNTS 331. McConnell, Chapter 1, supra note 2, 20.

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of marine life (Article 194, paragraph 5)—and direct, under Article 196, which provides: Use of technologies or introduction of alien or new species 1. States shall take all measures necessary to prevent, reduce, and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. 2. This article does not affect the application of this Convention regarding the prevention, reduction and control of pollution of the marine environment. The international legal principle of integration means that treaties are to be interpreted as a whole with reference to their declared or apparent objects, purposes and principle.105 Accordingly, there are no antinomies between Part I and Part XII of UNCLOS, instead there is an interrelation of juridical rules incorporating principles concerning environmental protection.106 Under this interpretation, the term pollution of the marine environment adopted in UNCLOS comprises the alien species and pathogens transferred from one marine ecosystem to another through ballast water and sediments up take and discharge. As noted above, the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments does not provide a definition of biopollution of the marine environment. Adopting an indirect approach, Article 1, paragraph 8 only addresses the agents of biopollution of the marine environment: “Harmful Aquatic Organisms and Pathogens” means aquatic organisms or pathogens which, if introduced into the sea including estuaries, or into fresh water courses, may create hazards to the environment, human health, property or resources, impair biological diversity or interfere with other legitimate uses of such areas.

This provision comprises the key elements to construct a definition of biopollution under the teleology and principles codified in UNCLOS. Since 1973, under the aegis of its treaty-making authority, IMO has contributed actively to the work of the UNCLOS by ensuring that IMO instruments conform to the rules set out in UNCLOS. Moreover, the authority of UNCLOS for the IMO is acknowledged by the United Nations. These reflections highlight the evolution of the correlation between pollution and biopollution. The latter term encompasses the introduction into the marine environment of harmful organisms (alien invasive species) and pathogens. Thus, 105

106

H. W. A. Thirlway, International Customary Law and Codification (Leiden: A. W. Sijthoff, 1971), 37–38. IMO/LEG/MIS/3/Rev.1, 2003, 34.

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the term biopollution of the marine environment shall be considered an interface of the UNCLOS definition of pollution and shall be interpreted as: The introduction through ships’ ballast water and sediments and all other types of vectors107 of harmful aquatic organisms108 and pathogens into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.

2.5. Conclusion Ex facto oritur jus Since the 19th century, ships have used ballast water for stability, discharging and taking up water at ports of call and en route as they travel through one ecosystem to another. From this perspective, ballast water and its associated sediments may transfer a cocktail of alien invasive species and potential pathogens between ecosystems. Biological invasions constitute one of the greatest threats to the world’s oceans. Indeed, while chemical and physical pollution can be reduced or stopped, living organisms tend to reproduce and spread, and the impact of AIS on the marine environment are usually irreversible. Moreover, there are just a few examples of successful eradication of such marine invaders. 107

108

Although this book focuses on ballast water as the major vector for the dispersal of alien invasive species, Leppäkoski refers to other vectors such as intentional introductions, releases from aquaria, fish markets, research laboratories, escapes from fish and shell fish forms, or migrants moving ‘on their own’ from the sites of initial introductions. Furthermore, ‘A ship is a biological island (…). Besides the potential complement of synanthropic hitchhikers (e.g., mice, rats, flies, and cockroaches) and the rich bouillabaisse of ballast water and sediment, living marine and estuarine organisms can occur elsewhere in and on the vessel. In this regard, it is necessary to distinguish the unique role of ballast water and sediment in transporting non-indigenous species from other ways in which a vessel may transport organisms. Of particular concern are organisms carried on the ship’s hull and in sea chests’. Committee on Ships’ Ballast Operations, supra note 8, 18–20. During the 49th session of the MEPC, 2003, discussions within the Ballast Water Working Group (BWWG) regarding the size range of viable organisms and their concentrations related to the Ballast Water Performance Standards were far from reaching an agreement or a consensus. This was especially the case regarding how feasible or precautionary the future convention should be in order to protect the marine environment from undesirable transfer of organisms via ballast water. Important points regarding the draft convention were raised by the participants, especially in respect of the need for a definition of viable organisms, as contrasted with dead organisms. A possible definition could be ‘viable organisms are organisms that possess the ability to grow and reproduce and, consequently, present the potential to settle in a certain area after being discharged’. See BWM/CONF/INF. 2, 3 November 2003.

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This scientific scenario invokes a multidisciplinary international legal framework to develop definitions and standards based on scientific criteria. We have moved beyond consideration of pollution following oil tanker catastrophes to consideration of biopollution, i.e. the transfer of AIS and pathogens through ships’ ballast water and sediments. A definition of pollution of the marine environment has evolved from merely describing certain types of pollutants (with an emphasis on oil and toxic substances) to a broader concept that encompasses every and all forms of risk of harm and damage to the marine environment, including energy sources, AIS and pathogens, i.e. biopollution. The current corpus juris on ballast water and its associated sediments, in particular, the IMO resolutions on ballast water and the BWM Convention do not expressly define biopollution of the marine environment. However, a definition can be inferred from the numerous non-binding and binding environmental and law of the sea initiatives since the 1950s. In particular, IMO’s treaty-making activity in correlation with UNCLOS has allowed us to suggest a definition of biopollution as adopted by publicists and in international legal instruments. The evolution of this international legal framework on biopollution and its implications for the BWM Convention are examined in detail in the following chapter.

Chapter 3 Evolution of the International Law on Biopollution 3.1. Introduction This chapter reviews the development of the international legal framework regarding the prevention of pollution and biopollution of the marine environment and the impact of such corpus juris on the structure and teleology of the 2004 BWM Convention. This reflection comprises customary international law and treaties (in particular conventions referring to the transfer of alien species and pathogens from one ecosystem to another). Historically, both have been the main methods of creating binding international law.1 As noted by Dupuy and Vignes, both customary and treaty law are generally acknowledged formal sources of international law and their respective terms establish the ground rules of international law.2 1 2

Birnie and Boyle, Chapter 2, supra note 48, 11–12. René-Jean Dupuy and Daniel Vignes, A Handbook of the New Law of the Sea, Volume 1 (Dordrecht: Martinus Nijhoff, 1991), 29–30. In regard to the traditional formal sources of international law, the International Court of Justice Statute, Article 38, provides: ‘1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions whether general or particular, establishing rules expressly recognized by contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto’. The referred Article 59 provides that ‘The decision of the Court has no binding force except between the parties and in respect of that particular case’. For further analyses on the issue see Michael Akehurst, A Modern Introduction to International Law, 2nd edition (London: G. Allen & Unwinn, 1987); Antonio Ramiro Brotóns, Formación de Normas y Obligaciones Internacionales, Lecciones de Derecho Internacional Público (Murcia: Belluga, 1981); Ian Brownlie, Principles of Public International Law, 4th edition (Oxford: Claredon Press, 1980); Antonio Cassese, International Law in a Divided World, 1st edition (Oxford: Clarendon Press, 1986); Paul Guggenheim, Traité de Droit International Public, 2nd edition, Volume I (Genève, 1967); L. Lucchini and M. Voelckel, Droit de la Mer, Volume 1 (Paris: Pedone, 1990); Celso Albuquerque Mello, Direito Internacional Público, 11th edition, Volume 1 (Rio de Janeiro: Renovar, 1997); V. G. Moncayo, Derecho Internacional Público, 2nd edition, Volume 1 (Zavalia, 1987); L. Oppenheim, International Law, 8th edition, edited by

Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 33–72. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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Chapter 3 reviews the application of rules and principles found in customary law that are relevant to the control and management of ships’ ballast water and sediments. They include the freedom of the high seas and the obligation to prevent transboundary pollution. Both of these principles are further addressed, inter alia, in UNCLOS and the Biodiversity Convention. The evolution of treaty law on the control and management of ships’ ballast water and sediments, from sanitary to maritime law and the further interconnections with the law of the sea and environmental law are also examined. The requirements and obligations in international conventions to prevent pollution or biopollution (particularly provisions on special control in certain areas, the obligation to promote technical cooperation and communication of information, and the adoption of reception facilities) and States’ jurisdiction to regulate vessel-source pollution are highlighted. Emerging norms of customary law may be observed in the precautionary principle3 and several treaties incorporate it. The evolution of this principle is examined in greater detail in Chapter 4 of this book in tandem with the analysis of the BWM Convention. Actually, the convention is the corollary of anticipatory measures to prevent biopollution of the marine environment from ships’ ballast water and sediments.

3.2. Customary International Law The oldest source of international law is custom, also known as general international law,4 customary international law, unwritten international law, jus non scriptum, and usage.5 Certainly, custom was the essential, if not the exclusive,

3 4

5

H. Lauterpacht (London: Longmans, 1967); F. Parisi, “The formation of customary law,” paper presented at 96th Annual Conference of the American Political Science Association, Washington, DC, 2000; Fausto Quadros, and André Gonçalves Pereira, Manual de Direito Internacional Público, 3rd edition (Coimbra: Livraria Almedina, 1995); Vicente Marotta Rangel, Les Sources du Droit de la Mer, Traité du Nouveau Droit de la Mer (Paris: Econômica, 1985); Charles Rousseau, Droit International Public, Volume 1 (Paris: Sirey, 1970); Charles Rousseau, Derecho Internacional Público Profundizado (Buenos Aires: La Ley, 1966); Malcolm N. Shaw, International Law, 4th edition (Cambridge: Cambridge University Press, 1997); J. G. Starke, Introduction to International Law, 10th edition (London: Butterworths, 1989). Redgwell, Chapter 2, supra note 43, 664. See Bin Cheng, Custom: The Future of General State Practice in a Divided World, The Structure and Process of International Law (Dordrecht: Martinus Nijhoff, 1983), 171–205. According to Brownlie ‘Although occasionally the terms are used interchangeably, “custom” and “usage” are terms of art and have different meanings. A usage is a general practice which does not reflect a legal obligation, and examples are ceremonial salutes at sea and the practice of exempting diplomatic vehicles from parking prohibitions’. Supra note 2, 4–5.

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source of the law of the sea. Although it may not be the ultimate source of law, ‘customary international law is something which develops at a pace which, for being sure, tends to be majestic’.6 The question arises as to whether or not there exists a specific customary international rule on the control and/or management of the biopollution of the marine environment through ships’ ballast water and sediments. The basis for this analysis is Article 38, paragraph 1(b), of the International Court of Justice (ICJ) Statute which refers to international custom ‘as evidence of general practice accepted as law’. This provision addresses a contradictio in adjecto.7 Indeed, it is general practice accepted as law which constitutes evidence of a customary rule. International custom, under Article 38, does not simply mean habitual behaviour or usage, but general international law.8 Scholars9 and the ICJ10 acknowledge that the existence of customary rules can be deduced from the practice and behaviour of States. The traditional and modern approaches to customary international law both acknowledge the indispensable need of State practice (material/objective element) and opinio juris (subjective element) for the emergence of a customary rule.11

6 7

8 9

10

11

Thirlway, Chapter 2, supra note 105, 2. ‘It is notorious that this formulation is lacking, and already the 1920 Preparatory Committee which drafted the PCIJ-Statute appears to have been aware of this. For the Court cannot apply a custom, only customary law; and subpara 1(b) reverses the logical order of the events, since it is general practice accepted as law which constitutes evidence of customary rule’. M. E. Villiger, Customary International Law and Treaties, 2nd edition (The Hague: Kluwer Law International, 1997), 15. Cheng, supra note 4, 513. See Brownlie, supra note 2, 3–11; Cassese, supra note 2, 180–185; Cheng, supra note 4, 178; Mello, supra note 2, 267–275; Quadros and Pereira, supra note 2, 155–168; Thirlway, Chapter 2, supra note 105, 1–45. North Sea Continental Shelf Cases, Reports of Judgements, Advisory Opinions and Orders, The International Court of Justice Reports [1969], 77, 44. ‘The traditional custom results from general and consistent practices followed by states from a sense of legal obligation. It focuses primarily on state practice in the form of inter-state interaction and acquiescence. Opinio juris is a secondary consideration invoked to distinguish between legal and non-legal obligations. Traditional custom is evolutionary and is identified through an inductive process in which a general custom is derived from specific instances of state practice. […]. By contrast, modern custom is derived by deductive process that begins with general statements of rules rather than particular instances of practices. This approach emphasizes opinio juris over the state practice because it is deduced from multilateral treaties and declarations by international forum such as the General Assembly, which can declare existing customs, crystallize emerging customs, and generate new customs’. A. E. Roberts, “Traditional and modern approaches to customary international law: A reconciliation,” American Journal of International Law 95: 757–758.

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3.2.1. Material Element of Customary Rules and State Practice The material (objective) element of custom refers to the State practice, i.e., what States do in their relationships with one another, repeatedly, throughout the course of time in regard to a certain manner of acting with respect to certain situations. The basis of validity of the custom is the repeated use or practice of behaviour that is gradually held as legally mandatory.12 This is the quantitative formative element of an enforceable custom which reflects an act or omission.13 The behaviour shall be evident and based on good faith (nemo allegare turpitudinem suam potes). For example, when a State representative provides national statements and policy on the control and management of ships’ ballast water and sediments at an IMO international conference or meeting, it is understood that the representative discloses the real intention and behaviour of that State. Indeed, the State’s sovereignty is in the hands of its representative, who is given full authority to speak on its behalf.14 However, the question remains, what constitutes a State’s practice? In the 1950s, the ICJ case law adopted a restricted view of State practice in the Fisheries Case. Under Judge Read’s dissenting opinion, Customary law is the generalization of the practice of States. This cannot be established by citing cases where coastal States have made extensive claims […]. Such claims may be important as starting points, which, if not challenged, may ripen into historic title in the course of time […]. The only convincing evidence of State practices is to be found in seizures, where the coastal State asserts its sovereignty over the water in question by arresting a foreign ship.15

This narrow approach is endorsed by some scholars. They argue, State practice as the material element in the formation of custom is, it is worth emphasizing, material: it is composed of acts by States, with regards to a particular person, ship, defined area of territory, each of which amounts to the assertion or repudiation of a claim relating to a particular terms; but the occasion of an act of State practice contributing to the formation of custom must always be some specific dispute or potential dispute. The mere assertion in abstrato of the existence of a legal right or legal rule is not an act of State practice […]. Such assertions can be relied on as supplementary evidence both of Sate practice and of the existence of the opinio juris.16 12

13 14

15 16

See Akehurst, supra note 2, 25–26; Quadros and Pereira, supra note 2, 159; Villiger, supra note 7, 16–17. See Parisi, supra note 2, 5. ‘La doctrine et la pratique reconnaissent au chef de l’Etat, au ministre de Affaires étrangères et aux diplmates le pouvoir d’engager l’Etat qui’ls représent’. P. Cahier, “Le comportement des Etats comme source de droits et d’obligations,” in Recueil d’études de droit international en hommage à P. Guggenheim (Genève: Faculté de droit de l’Université de Genève/IUHEI, 1968), 38. Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Reports 116, at 191. Thirlway, Chapter 2, supra note 105, 58.

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From this perspective, the evidence of the material element of a customary rule to prevent biopollution of the marine environment would be the acts of the coastal State with respect to a specific lawsuit in internal waters and the territorial sea, including the arrest of a foreign vessel, voluntarily in port, after an incident of through ships’ ballast water and sediments discharge. Currently, however, legal scholars and ICJ case law adopt a broader view of State practice, which comprises several forms of State behaviour.17 Publicists acknowledge various documents as evidence of State practice including, inter alia, diplomatic correspondence; opinion of national legal advisers; instructions given to State representatives; declarations of foreign or legal policy; decisions of tribunals; work of the International Law Commission; conventional texts; practices of international organizations; verbal statements, which may confirm a preexisting customary rule and/or constitute instance of practice contributing to a new rule, moreover, the most striking asset of verbal statements is that they may shed light on the opinio juris of States;18 newspaper reports of actions taken by States and statements made by government spokesmen to parliament, the press, at international conferences and at meetings of international organizations; and national laws and judicial decisions.19 The abundant and easily accessible records of the UN General Assembly and its committees, and the IMO conferences and its committees provide evidence of the emergence of State behaviour and render obsolete the argument with respect to the paucity and/or unavailability of evidence to prove State practices. Accordingly, the documents provided by the IMO Marine Environment Protection Committee (MEPC) disclose the policy and the technical/legal statements of port/coastal and flag States on the control and management of ships’ ballast water and sediments.20 Several IMO documents refer to national policy on ballast water and it is clear that domestic laws and regulations on the issue are increasing rapidly. The following documents, for example, outline State policy, practice and domestic regulations on the control of the biopollution of the marine environment: 1. Brazil submitted to MEPC 25/INF.16 a paper regarding its activities under the GloBallast Programme. The document discloses the voluntary adoption of IMO 17

18 19 20

See Akehurst, supra note 2, 25–27; Birnie and Boyle, Chapter 2, supra note 48, 17; Villiger, supra note 7, 16–17; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Reports 14 at 100, paragraph 189. See Akehurst, supra note 2, 26. Ibid. See, e.g., IMO/MEPC 55/23, 16 October 2006; 55/2/17, 7 July 2006; 54/21, 27 March 2006; 53/24, 25 July 2005.

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Resolution A. 868(20) by the Brazilian government.21 Moreover, the GloBallast Programme provides a thorough analysis of the legal regime,22 States’ actions, and national strategy on the control and management of ships ballast water and sediments in Brazil,23 China, India, Iran, South Africa, and Ukraine. For example, GloBallast requires arriving ships to submit to the relevant port State authority a completed form that complies with the IMO Ballast Water Reporting Form (BWRF), a fundamental and essential first step for any port State wishing to commence a Ballast Water Management Programme. 2. MEPC/Cir.342 outlines the State practice on the control and management of ships’ ballast water and sediments as adopted by Argentina, Australia, China, Croatia, Finland, the Marshall Islands, Panama, Slovenia, United Kingdom, Vanuatu and Hong Kong/China.24 3. On 28 July 2000, Australia submitted to MEPC 45/2/11 a document addressing its approach to the development of criteria for the designation of ‘ballast water uptake control areas’ and ‘ballast water discharge control areas’ in conjunction with MEPC’s work on the implementation of ballast water uptake and discharge contingency zones. 4. Norway submitted three documents to MEPC 43/4/98 on various aspects of ‘harmful aquatic organisms in ballast water’.25 In the opinion of Norway’s delegation, it will not be possible for MEPC to make any real progress on this important and difficult subject until the Committee has been able to reach a 21 22

23

24 25

MEPC 25/INF.16, 6 August 2004. See Chapter 5 of this book; McConnell, Chapter 1, supra note 2; GloBallast Water Management Programme publications are available online at http://globallast.imo.org/publications. See, e.g., C. Clarke, R. Hilliard, A. de O. R. Junqueira, A. de C. L. Neto, J. Polglaze and S. Raaymakers, Ballast Water Risk Assessment, Port of Sepetiba, Brazil, Final Report, GloBallast Monograph Series No. 14 (London: IMO, 2003), 7. MEPC/IMO 43/4/6, 1 April 1999. For the Norwegian delegation ‘at present and for the foreseeable future, the global approach will have serious negative side effects; in particular, increased safety risks for ships, but also increased air pollution. A more practical and pragmatic solution will be to adopt the ballast water management area concept. This will provide a flexible regime for the application of new provisions on ballast water management, which can be adapted by IMO in the future in accordance with new knowledge and technical development. Regarding the ballast water management techniques (ballast water exchange, non release of ballast water, and discharge to reception facilities), it is desirable to expand the list of options: the provision should not be limited to what is available today, but should also include expected/possible new options thereby encouraging the development of new methods and technologies’. At MEPC 43/4/98, 30 April 1999, item 4, Norway fully supports the viewpoints on incorporation of ‘ballast water management techniques’ in the new draft provisions: ‘The performance requirement to “new” options can – at least for the time being – be based on the fact that there seems to be universal agreement that the method “ballast water exchange” (i.e., both the sequential method and the flow-through method) constitute a generally accepted ballast water management option. Consequently, the basic performance

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general agreement on two principally different concepts for regulating ballast water discharges: (i) the ballast water discharge management area concept (regulations generally prohibiting the discharge of ballast water in those coastal areas being established as ballast water management areas (BWMA), whenever the origin of the ballast water is another coastal area being ‘prohibited’ in relation to the BWMA in question); and (ii) the global approach (regulations generally prohibiting the discharge of ballast water in every coastal area, whenever the origin of the ballast water is another coastal area); State practice is based on three essential elements: duration, uniformity and generality.26 No single element should be considered in isolation. Weaknesses in one element can be overcome by the relatively greater strength of the others. Each of these elements is examined briefly in turn below. The short period of time of a specific State practice is not a bar to the formation of a customary rule for publicists and ICJ case law27 alike. There are no universally adopted minimum criteria with respect to the duration of State practice for the emergence of customary rules. The longer the time required to form a valid practice, the less likely it is for custom to anticipate effectively the intervention of formal legislation and to adapt to changing circumstances over time.28 The behaviour of States may be active, if they expressly adhere to or reject a customary rule, or passive, when States neither accept nor reject the rule, i.e. qui tacet consentire videtur si loqui debuisset ac potuisset.29 Accordingly, the significance of

26

27

28 29

requirement to any “new” option should be of a quality/quantity with respect to harmful aquatic organisms at least as good as the ballast water resulting when using one of the accepted methods for ballast water exchange’. R. Kolb, “Selected problems in the theory of customary international law,” Netherlands International Law Review 50(2) (2003): 133. In the North Sea Continental Shelf cases, the ICJ affirmed: ‘Although the passage of only a short period of time is not necessarily, or itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked […]’. See North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Reports 4 at paragraph 74, 73. Parisi, supra note 2, 5. In the Temple of Preah Vihear case between Thailand and Cambodia, the ICJ stated that silence has a legal and relevant meaning if the State could have adopted an active attitude ‘[…] it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset […]’. Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) [1962] ICJ Reports 6.

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silence is the tacit consent in cases in which the State could have protested to secure a right, or disagreed with the emergence of an international custom and does not clearly do so. To date, no State has submitted a formal protest to IMO in regard to the practices that are being adopted by port, coastal, and flag States based on the IMO Resolution A.868(20) or, eventually, on the IMO guidelines set out in the BWM Convention. Indeed, there is not yet any formal opposition to the formation of an international custom on this subject. International scholars30 and ICJ case law31 refer to the requirement of uniformity and consistency of practice for the formation of a customary rule. Complete uniformity is not required, but a substantial and consistent practice is.32 A review of IMO/MEPC documents suggests that there is not yet uniformity and consistency of port, coastal and flag State practice in regard to the management and control of ships’ ballast water and sediments. Indeed, national policy and regulations, which in turn are influenced by economic, political and administrative factors, influence State practice and provide ample evidence of the complexity of States adopting uniform behaviour on this issue. The third element of State practice, the generality of the practice, is not necessarily implied in the concept of universality.33 Moreover, silence may be evidence of either tacit agreement or a simple lack of interest in the issue. The practice should at least represent the interests of the international society as a whole, or of certain States, in certain regions (regional customary law).34 General customary law may be created irrespective of the will of some States. For example, it is not necessary to assert Swiss practice to create international customary law in regard to international shipping, considering that when this custom was formed Switzerland did not take any action on the issue.35 3.2.2. Subjective Element (Opinio juris sive necessitatis) The subjective element, i.e., the repetition of a specific behaviour of the State as being law, is essential for the emergence of customary rule.36 The sole material 30 31

32 33 34 35 36

See Brownlie, supra note 2, 6–7. ‘The party which relies on a custom […] must prove that this custom is established in such a manner that it has become binding on the other party […] that the rule invoked […] is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State […]’. This statement was made in the Asylum Case (Colombia v. Peru) [1950] ICJ Reports 266 at 276–277. Villiger, supra note 7, 43. Brownlie, supra, note 2, 6; Villiger, supra note 7, 29–30. See Villiger, supra note 7, 29–30. Quadros and Pereira, supra note 2, 163–164. See Akehurst, supra note 2, 25–34; Brownlie, supra note 2, 4–11; Dupuy and Vignes, supra note 2, 60–82; Quadros and Pereira, supra note 2, 155–168; Shaw, supra note 2, 68–88. See also

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element is not sufficient to entail a customary rule. Rather, the conviction and belief of such a procedure must be respected because it is necessary, correct, fair and legally appropriate. It is through the psychological element that the custom may be differentiated from constant, but not mandatory, usage and practices.37 General or vague formulations would be less effective.38 The ICJ Statute refers to a general practice ‘accepted as law’. The contradiction is that opinio juris implies acting according to the law. Nevertheless, this prerequisite of existence of the law may be construed as meaning that States must believe that something is already law before it can become law.39 Furthermore, the fundamental problem in regards to the custom is one of proof, especially the burden of proof.40 The modern tendency is to infer opinio juris indirectly from the behaviour of States and to verify not only what States do or refrain from doing, but also how other States react,41 because protest can interrupt the formation of a customary rule. Identification of the subjective element is complex because the traditional concept of the opinio juris creates a circulus inextricabilis.42 Currently, several States’ behaviour suggests the emergence of opinio juris required for the emergence of customary rules on the control and management of ships’ ballast water and sediments. Examples of States’ behaviour include national legislation of the port, coastal and flag States on ballast water;43 the voluntary

37 38

39 40 41 42 43

Daniel Bodansky, “Customary (and not so customary) international law,” Indiana Journal of Global Legal Studies 3(1995–1996): 105–119; Ian Brownlie, “A survey of international customary rules of environmental protection,” Natural Resources Journal 13(2) (1973): 179–189; Cahier, supra note 14, 237–265; W. Paul Gormley, “The codification of apacta sunt servanda by the International Law Commission: The preservation of classical norms of moral force and good faith,” St. Louis University Law Journal 14 (1969–1970): 357–428; Kolb, supra note 26, 119– 150; Lazare Kopelmanas, “Custom as a means of the creation of international law,” British Yearbook of International Law 18 (1937): 127–151; John G. Laylin, “Emerging customary law of the sea,” International Lawyer 10(4) (1976): 669–680; Parisi supra note 2, 1–38; Roberts, supra note 11, 757–791; Louis Sohn, “The law of the sea: Customary international developments,” American University Law Review 34 (1984–1985): 271–280. For further details, see Thirlway, Chapter 2, supra note 105, 46–60. ‘In the context of the UN drafting process, this would mean that a statement on the customary nature of a given conventional rule, or a vote cast in favor of that rule, offers more conclusive evidence of a State’s opinio that a vote upon, or an indiscriminate statement as to the customary nature of a whole convention with dozens or hundreds of articles and as many, or more, rules’. Villiger, supra note 7, 48–49. Akehurst supra note 2, 30–31. Brownlie, supra note 2, 7. Akehurst, supra note 2, 29–30. Ibid., 48; R. Douglas Brubaker, The Russian Arctic Straits (Leiden: Martinus Nijhoff, 2005), 46–49. ‘INTERTANKO records 17 places as having quarantine requirements for ballast water management. The places identified as having these requirements are Argentina, Australia, Brazil, Canada, Chile, Israel, New Zealand, Orkney Islands (UK) (including also Puerto Rico, US

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implementation of IMO resolutions on ballast water;44 domestic implementation of the Guidelines required under the BWM Convention; and the signature and the ratification of the BWM Convention. Indeed, those actions are the genuine link to transform State practices into customary law. However, it is worth remembering Thirlway’s argument, Opinio juris is the philosophers stone which transmutes the inert mass of accumulated usage into the gold of binding legal rules, but this matter has probably caused more academic controversy than all the actual contested claims made by States on the basis of alleged custom, put together.45

3.2.3. Customary International Law and Ballast Water Customary international law, as codified in treaties and resolutions, provides a long-standing legal background for the use of the oceans and prevention of pollution of the marine environment. Two key rules of customary international law, the freedom of the high seas and the no harm principle (prohibition of transboundary pollution), influence the regime for the control and management of ships’ ballast water. Since the Middle Ages, when the concept of mare liberum attributed to Hugo Grotius was crystallized in the principle of freedom of the seas, the legal regime for international space,46 i.e. space not subject to sovereignty, has been matter of concern of the law of the sea. Nevertheless, even Grotius recognized the particular coastal State interest in regard to the control of its maritime borders and ports.47 In the 13th century, based on customary law, the juridical summa diviso of the seas was delineated. The distinction between districtus (territorial waters subjected to the jurisdiction of the coastal State) and pelagus (high seas considered res communis omnium,48 i.e. an area of common interest and not

44 45 46

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Virgin Islands, American Samoa, US Trust Territory of the Pacific Islands, California, Port of Oakland (USA) Great Lakes (USA) and the Port of Vancouver (Canada)’. See McConnell, Chapter 1, supra note 2, 68–69; see http://www.intertanko.com. See Chapter 4, Section 2, of this book. Thirlway, Chapter 2, supra note 105, 47. Jean Cambacau and Serge Sur, Droit International Public, 4th edition (Paris: Montchrestien, 1999), 401, 441–512. Marie Jacobsson, “Flag state perspective,” in The Stockholm Declaration and the Law of the Marine Environment, M. H. Nordquist, J. N. Moore, and S. Mahamoudi, eds, Center for Oceans Law and Policy 7 (The Hague: Martinus Nijhoff, 2003), 299. The genesis of this institute goes back to Roman law, wherein the res communis omnium such as the air and the sea, due to their nature should be at the reach of all, in the sense of the possibility of use and fruition. Romans were the first to set forth the concept of freedom of the sea as a principle of law and viewed the seas as res nullius, meaning that they could not belong to any person or nation. Othon J. M. Sidou, Enciclopedia Saraiva de Direito (São Paulo: Saraiva, 1981),221.

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subject to any State’s claims of sovereignty thereon)49 remained for centuries and later was codified in treaty law.50 Furthermore, under customary international law of the sea, only the flag State has been responsible for ensuring that vessels comply with internationally accepted standards in regard to safety at sea and the protection of the marine environment.51 In this regard, Article 94 of UNCLOS addresses the flag State duty to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. Although it is essential to preserve the freedoms of the sea, the pragmatic consequence of this regime was the emergence of an international legal order for the oceans favourable to maritime nations associated with the dominance of maritime powers and the decline of the influence of States which had favoured closed sea.52 Indeed, the jurisdiction of the flag State on the high seas is, in principle, the sole legal interface of the principle of freedom of the seas, and is linked with the sovereignty of a State that grants its nationality to a vessel. Moreover, international responsibility in regard to pollution of the marine environment in the high seas relies on flag State control. From an environmental perspective, the adoption of the BWM Convention by the flag State, and the consequent obligation to comply with the Guidelines therein, and the implementation of national laws and regulations on ballast water, provide the pillars for an effective legal regime to prevent biopollution from ships’ ballast water and sediments. The no harm principle also emerged under customary law and is an essential element of the international legal regime to prevent biopollution. The no harm principle refers to the obligation of States to prevent, reduce and control pollution, and to avoid transboundary environmental harm.53 State responsibility not to cause environmental damage to other States or to areas beyond national jurisdiction was accepted as an obligation by the international community prior to

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For a study on the evolution of the historical, political and strategic aspects of the freedom of the seas principle, see A. Pierce Higgins, The International Law of the Sea (London: Longmans, Gree and Co., 1945);and George P. Smith II, Restricting the Concept of Free Seas (Huntington: Robert E. Krieger Publishing, 1980). Vicente Marotta Rangel, A Natureza Juridica e Delimitacao do Mar Territorial, 2nd edition (São Paulo: Revista dos Tribunais, 1970). UNCLOS, Chapter 1, supra note 8, codified several customary rules, e.g., Article 2 addresses the concept of the coastal State’s sovereignty over the waters adjacent to its coasts and Article 87 expressly acknowledges the principle of the freedom of the high seas. Doris König, “Port state control: An assessment of European practice,” in Marine Issues: From a Scientific, Political and Legal Perspective, P. Ehlers, E. Mann Borgese, and R. Wolfrum, eds (The Hague: Kluwer Law International, 2002), 38. Brownlie, supra note 2, 233. ‘State practice further supports the customary law obligation to consult and to notify of potential transboundary harm’. Redgwell, Chapter 2, supra note 43, 664.

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the Stockholm Conference54 and has been accepted by most legal scholars as a rule of international customary law. This obligation is referred to in the Trail Smelter Case55 as one of the pillars of the international legal framework on the preservation of the marine environment.56 It was also been addressed in arbitration decisions,57 soft law declarations58 and treaty law.59 However, the due diligence aspect of this principle cannot be identified as an absolute obligation to prevent transboundary water pollution because harm is inherent in the interaction of States.60 The rule of law must be effective, recognizing that minor damage to the marine environment is an inevitable consequence of the coexistence of States and, therefore, should be excluded from the category of unlawful acts.61 Consideration of actions as harmful to the marine environment depends on factors external to the legal rule such as the level of the technical-scientific instruments adopted to identify marine pollution/biopollution and the consequences thereof in a certain ecosystem; the technical-scientific capacity of a port, coastal or flag State; whether or not the event occurred in a sensitive oceanic area; the systemic conditions and characteristics of the sea currents where the ballast water

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Sands, Chapter 2, supra note 47, 241. ‘Under the principle of international law […] no state has the right to use or permit the use of territory in such manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’. Ibid., 242. For further analyses, see Andre Nolkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint (Dordrecht: Martinus Nijhoff/Graham & Trotman, 1993). Trail Smelter Arbitration (United States v. Canada) [1938/1941] 3 R.I.A.A. 1905; Corfu Channel Case [1949] ICJ Reports 4, at 22; 16 ILR155, 158); Lac Lanoux Arbitration (France v. Spain) 24 ILR, 101. For example, Principle 21 of the 1972 Stockholm Declaration, Chapter 2, supra note 84, provides, inter alia, that States have ‘the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. For example, Article 2 of the 1979 Convention on Long-Range Transboundary Air Pollution, Geneva, 13 November 1979, 18 ILM 1442 (1979); Convention on Environmental Impact Assessment in a Transboundary Context [Espoo Convention], Espoo, 25 February 1991, 30 ILM 800 (1991); UNCLOS, Chapter 1, supra note 8, Article 194, paragraph 2; BWM Convention, Chapter 1, supra note 3, Article 2, paragraph 6. Nolkaemper, supra note 56, 34. ‘In recent practice two adjectives have been used to formulate the threshold of the harm: appreciable and significant. The 1991 ILC draft Articles prohibit pollution that may cause appreciable harm to other watercourse states or to their environment, the 1991 Espoo Convention obliges states to prevent significant adverse trans-boundary environment effects. The ICL has considered appreciable harm as a factual standard, evidencing that the harm must be capable of being established by objective evidence’. Ibid., 34–37.

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and sediments were discharged; and the procedures adopted in the management and control of the ballast water and sediment discharge. Several factors contribute to the specification of the contents of the due diligence obligation to prevent appreciable harm to other States. These factors are interconnected with the economic and technological capabilities of States to prevent appreciable harm62 and the risk of appreciable harm. The level of risk associated with the polluting activity, for example, the transfer of alien invasive species and pathogens through ships’ ballast water and sediments, is of particular concern when a high level of risk can be identified. Moreover, one must consider whether it is an existing or new form of pollution, i.e. the distinction made by international legal scholars between the obligation to prevent (new) pollution and the obligation to reduce and control (existing) pollution. Indeed, biopollution has emerged in legal theory as a new pollution form that requires preventive measures to control and manage such phenomena. Finally, the nature of the affected interests, which invokes the assessment of the real impact of the biopollution on the marine environment, must also be considered as contributing to the due diligence obligation. 3.2.4. Conclusions Regarding Customary International Law Customary international law can be deduced from State practice in tandem with the conviction that such action is necessary and legally appropriate. Currently, the concept of State practice is broad and comprises several forms of State behavior which includes national law, judicial decisions, and statements made by the government to parliament, the press, international conferences and meetings of international organizations such as the IMO/MEPC. Furthermore, these actions may suggest, at the least, evidence of the opinio juris which transforms State practice into customary hard law. Accordingly, several behaviours disclose the will of States with respect to the domestic framework on ballast water, in particular, national legislation of port, coastal and flag States on ships’ ballast water and sediment control and management; States’ voluntary implementation of IMO resolutions on ballast water and sediments; and the signature and, ultimately, ratification of the BWM Convention. The abundant and easily accessible records of IMO documents on port, coastal and flag States control and management of ships’ ballast water render obsolete

62

Accordingly, Article 194, paragraph 1 of UNCLOS reads: ‘States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities […]’. Chapter 1, supra note 8.

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the problems of paucity and/or unavailability of information with respect to the issue. Such documents reveal the State practice and or evidence of opinio juris with respect to national ballast water procedures. Nevertheless, it is early to invoke regional or universal customary international law on the control and management of ships’ ballast water. However, the documents suggest the possibility of the emergence of customary rules which would flow from State practice based on the legal framework in the BWM Convention, not yet in force, in particular the attached Guidelines and those adopted by the IMO/MEPC resolutions. Moreover, the general customary international obligation of port, coastal and flag States to prevent transboundary pollution, codified in several treaties, underlies the legal regime to prevent biopollution. The customary international obligation of the flag State to ensure that vessels comply with internationally accepted standards on safety at sea and protection of the marine environment, which is also codified in treaty law under the duty to effectively exercise its jurisdiction on ships flying its flag, is the pillar of the international legal framework on the control and management of ships’ ballast water.

3.3. Treaty Law Four global international conventions are the main reference models for drafting the BWM Convention: (i) the International Health Regulations, 1969, as amended in 2005; (ii) MARPOL 73/78; (iii) UNCLOS, 1982; and (iv) the Biodiversity Convention, 1992. With the exception of MARPOL, each of these instruments includes international obligations for States to prevent the introduction of or to control or eradicate alien species that threaten ecosystems, habitats or species. The interconnection between these international treaties and the BWM Convention suggests that a holistic approach to preventing pollution/biopollution of the marine environment is the most effective way to deal with bioinvasions in a borderless world. Indeed, only more recent legal instruments addressed the issue from a holistic or integrated perspective. Existing international documents were developed under different multilateral processes for specific purposes, affecting how they reference alien species. Several binding agreements and nonbinding codes of conduct and technical guidelines specifically mention alien species.63 Initially, the issue of alien species was addressed in sanitary law. The 1969 International Health Regulations, as amended in 2005, and other standards 63

See SCBD, Chapter 1, Introduction, supra note 10.

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and international measures related to health security included provisions to prevent marine biopollution. Ballast water can be a pathway for the transfer and introduction of human health diseases (pathogens) such as various strains of cholera and other pests. For example, the discharge of ballast water has been identified as being responsible for the transport of the bacterium Vibrio cholerae from Asian to Latin American coastal waters, and the southeast Asian dinoflagellates of the genera Gymnodinium and Alexandrium, which cause paralytic shellfish poisoning, into Australian waters, harming local shellfish industries.64 In 1973, following the 1967 Torrey Canyon oil tanker disaster, IMO convened an international conference to draft a comprehensive convention with respect to all aspects of marine pollution by ships.65 The ballast water problem emerged in the context of the transport of pathogens harmful to humans. The conference adopted Resolution 18 with respect to Research into the Effect of Discharge of Ballast Water Containing Bacteria of Epidemic Diseases.66 In the 1970s, maritime and sanitary law interconnections emerged in the IMO resolutions on this issue.67 Expanded scientific knowledge on the risks associated with the transfer of alien invasive species to the marine environment propelled IMO to implement its anti-pollution mandate. IMO’s efforts were facilitated by the emerging new law of the sea regime, namely UNCLOS, which provided a comprehensive framework for holistic integrated management of the oceans. UNCLOS extended the enforcement powers of port States beyond the territorial sea to balance the flag State’s exclusive jurisdiction on the high seas and strengthened States’ obligations to prevent marine

64 65 66 67

“Alien Invaders,” Chapter 2, supra note 9, 1. See MARPOL 73/78, Chapter 1, supra note 14. See Chapter 4, Section 2, of this book. Even trade agreements addressed the issue from a sanitary perspective. The 1995 World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which applies to all sanitary and phytosanitary measures that may, directly or indirectly, affect international trade, is relevant to concerns with respect to alien species that are classified as pests or diseases. The SPS Agreement, Annex A.1 provides: ‘Sanitary or phytosanitary measures - Any Measure applied (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; […]; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pest; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests’. See Environmental Assessment of Trade Agreements and Policy (Copenhagen: Nordic Council of Ministers, 1998), 1–132.

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pollution/biopollution. UNCLOS specifically addresses the intentional or accidental introduction of alien or new species into the marine environment.68 Moreover, under environmental legal conservation instruments69 such as the Biodiversity Convention, States are required to prevent, control or ‘eradicate’ those aliens species which threaten ecosystems, habitats or species.70 These treaties provide a multifaceted and multidisciplinary international legal framework to prevent and control biopollution of the marine environment based, inter alia, on the precautionary principle, no harm principle, sharing of information, scientific research, international cooperation, integrated ocean management, sustained development, transfer of technology, and the ‘central principle of earlier law that the flag state has responsibility for the regulation and control of pollution from its ships’.71 In tandem with the BWM Convention legal framework, the four above-mentioned treaties are the core of domestic regulatory design for the control and management of ships’ ballast water and associated sediments. They underlie the measures that provide technical guidance to shipping about the known risks of unintentional introduction of harmful aquatic organisms and pathogens. Each of these instruments is examined in more detail below. 3.3.1. International Health Regulations Since the 1852 Sanitary Convention, one of the earliest international quarantine treaties, aimed at protecting Mediterranean countries72 from the plague, yellow fever and cholera, the international community has adopted the control approach to the transfer of harmful organisms and pathogens.73 The distribution of viral, bacterial and protozoal agents and algal toxins in marine habitats depends on the interplay of currents, tides and human activities.74 The ocean serves as a conduit

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70 71 72 73 74

UNCLOS, Chapter 1, supra note 8, Article 196, requires Parties to ‘take all measures necessary to prevent, reduce or control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species alien or new species to a particular part of the marine environment, which may cause significant and harmful changes thereto’. For example, the 2004 International Council for the Exploration of the Sea (ICES) Code of Practice on the Introduction and Transfer of Marine Organisms, the non-binding 1995 FAO Code of Conduct for Responsible Fisheries and the 1994 ICES/EIFAC Code of Practice on the Introductions and Transfer of Marine Organisms. Biodiversity Convention, Chapter 1, supra note 9, Article 8(h). Birnie and Boyle, Chapter 2, supra note 48, 273. France, Portugal, Sardinia, Tuscany and Turkey. Riley, Chapter 2, supra note 21, 338. Ibid., 339–340. Ibid.

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for many human diseases and threats to public health through processes such as ingestion of contaminated seafood, viruses (e.g., hepatitis A and poliovirus) and bacteria (E. coli and Salmonella) of fecal origin concentrated in filter-feeding shellfish (e.g., oysters and clams), and through shipping activities. Marine pathogenic bacteria such as Vibrio cholerae75 and harmful algae species can be transported great distances in the ballast water of ships and introduce a disease from one part of the world to another causing ecological, economic and human health problems.76 Harmful algal species can also be transported by major ocean currents such as the Gulf Stream. The international and national77 human, plant and animal health security regimes are complementary systems for protecting the health of the oceans. Nevertheless, existing agreements related to protection of biodiversity and the marine environment do not fully address the range of concerns that are raised by the ballast water transfer of alien species. The genesis of the International Health Regulations (IHR) dates back to the mid-19th century when cholera epidemics overran Europe. In 1851, the first International Sanitary Conference on public health was convened in Paris. Established in 1948, the World Health Organization (WHO) adopted the 1951 International Sanitary Regulations, which were renamed in 1969 as the International Health Regulations (IHR).78 The purpose of these regulations was to enhance global health security by preventing the spread of listed highly infectious diseases such as the plague and cholera through border control measures (quarantine). Further, the IHR sought to maximize security against the international spread of diseases with minimum interference with world traffic.

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‘Vibrio cholerae is a free-living bacterium found in water and in association with plankton. V. cholerae non-01/non-0139 strains are frequently isolated from aquatic ecosystems worldwide’. I. N. G. Riveira, E, K. Lipp, A. Gil, N. Choopun, A. Hug and R. R. Colwell, “Method of DNA extraction and application of multiplex polymerase chain reaction to detect toxigenic Vibrio cholaere 01 and 0139 from aquatic ecosystems,” Environmental Microbiology 5(7) (2003): 599–606; S. A. McCarthy and F. M. Khambaty, “International dissemination of epidemic Vibrio cholerae by cargo ship ballast and other nonpotable waters,” Applied and Environmental Microbiology 60(7) (July 1994): 2597–2601. Committee on the Ocean’s Role in Human Health and National Research Council, From Monsoons to Microbes: Understanding the Ocean’s Role in Human Health (Washington, DC: National Academy Press,, 1999), 2. See, for example, Chapter 5 of this book; GGPAF Projects, Brazilian Sanitary Surveillance Agency (ANVISA, Ministry of Health, Brasilia, 2003), available online from http://www.anvisa. gov.br. Available online from http://www.who.int/csr/ihr/current/en/index.html.

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In 2005, the World Health Assembly approved a new set of International Health Regulations to manage international public health emergencies.79 The new rules are intended to prevent, protect against, control and provide a public health response to the international spread of disease. Under the revised regulations, countries have much broader obligations to build national capacity for routine preventive measures. These routine measures include public health actions at ports, airports and land borders.80 Health measures are comprised of procedures to prevent the spread of disease or contamination, but do not include law enforcement or security measures.81 The IHR requires States to develop and strengthen the capacity to detect, assess, notify and report events in accordance with the provisions therein.82 Furthermore, the IHR obliges States to notify WHO of all events that may constitute a public health emergency of international concern within its territory in accordance with any health measures implemented in response to those events.83 States may request WHO assistance to assess any epidemiological evidence obtained.84 Moreover, States are allowed to adopt additional health measures, in accordance with their relevant national law and obligations under international law, in response to specific public health risks or public health emergencies of international concern.85 The IHR addresses several provisions to marine vessels. A ship shall not be prevented from calling at any port for a public health reason. However, if such a point of entry is not equipped to apply health measures under the IHR, a ship may be ordered to proceed at its own risk to the nearest suitable port.86 Furthermore, a ship shall not be refused free pratique for public health reasons,87 i.e. permission to enter a port, embark or disembark, discharge or load cargo or stores. Under the 2005 IHR, IMO is included, inter alia, as a competent international organization with which WHO is expected to cooperate and coordinate its activities.

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81 82 83 84 85 86 87

World Health Organization, Revision of the International Health Regulations (58th World Health Assembly, Agenda item 3.1,WHA 58.3, 23 May 2005) [hereinafter IHR]. The revised regulations came into force 15 June 2007. The regulations are available online from http://www.who. int/csr/ihr/en/. See IHR, ibid.; Public Health Agency of Canada, “Revising the International Health Regulations,” available online from http://www.phac-aspc.gc.ca/cepr-cmiu/ihr_e.html; McConnell, Chapter 1, supra note 2, 213–255. IHR, ibid., Article 1. Ibid., Article 5. Ibid., Article 6. Ibid., Article 11. Ibid., Article 43. Ibid., Article 28, paragraph 1. Ibid., Article 28, paragraph 2.

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The ballast water problem as it relates to sanitary issues has been addressed in WHO. It has acknowledged the potential public health risk associated with the presence of pathogens in ballast water and fully supported the goals of the 2004 IMO International Conference on Ballast Water Management for Ships (2004 Conference). WHO submitted a proposal to include cross-references between the IHR and the draft IMO BWM Convention. Accordingly, it was agreed that the IHR should address public health standards, including the ‘Sanitation Certificate’ and the ‘Guide to Ship Sanitation’ and the BWM Convention should provide provisions on ballast water management.88 To this end, the 2004 BWM Convention includes umbrella provisions for the control and management of ships’ ballast water and sediments. These provisions require, inter alia, that the Parties shall ensure that a ship flying its flag or operating under its authority is surveyed and certified in accordance with the regulations in its annex. 3.3.2. International Convention for Prevention of Pollution from Ships As noted above, responding to increasing international concern about pollution of the marine environment by ships, IMO convened the 1973 International Conference on Marine Pollution. IMO faced the challenge of implementing its antipollution mandate to draft a suitable international agreement to prevent the contamination of the marine environment from all sources of pollution from the land, air and, mainly, by ships.89 Accordingly, IMO adopted the 1973 International Convention for the Prevention of Pollution from Ships, amended by the 1978 Protocol (MARPOL 73/78)90 as an umbrella treaty with respect to the prevention of pollution of the marine environment from the ‘deliberate, negligent or accidental release of oil and other substances from ships […].91 Superseding the 1954 OILPOL,92 MARPOL adopted a similar approach in regard to technical measures to limit oil discharges. However, MARPOL 73/78 differs substantially from the old regime. Indeed, it is not limited to oil pollution, but also regulates other types of ship-based pollution, including the bulk carriage of noxious liquids, harmful substances carried by sea in packaged form, and ships’ sewage, wastes and air pollution.

88 89 90

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See BWM/CNF/20, 27 January 2004; available online from http://www.who.int. “MARPOL-25 Years,” Focus on IMO (London: IMO, October 1998). MARPOL 73/78, Chapter 1, supra note 14; MARPOL 73/78, Consolidated Edition (London: IMO, 2000). Preamble, MARPOL 73/78, ibid; Focus on IMO (April 2001); available online from http:// www.imo.org. OILPOL was the first international treaty dealing directly with vessel-source pollution, albeit it was limited to oil pollution.

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MARPOL 73/78 is comprised of six annexes that address specific pollution categories: (i) Regulations of the Prevention of Pollution by Oil93; (ii) Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk; (iii) Regulations for the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged form; (iv) Regulations for the Prevention of Pollution by Sewage from Ships; (v) Regulations for the Prevention of Pollution by Garbage from Ships and (vi) Regulations for the Prevention of Air Pollution from Ships. It also includes two protocols dealing with reports on incidents involving harmful substances and arbitration. In 1992, the Parties to MARPOL 73/78 comprised over 85 per cent of the gross registered tonnage of the world’s merchant fleet. There are compelling grounds for treating MARPOL as a customary standard to be complied with by the vessels of all States, whether or not they have chosen to ratify the convention.94 According to Birnie and Boyle, MARPOL 73/78 is now included in the generally accepted international rules and standards prescribed by Article 211 of UNCLOS as the minimum extent of the flag State’s duty to exercise diligent control of its vessels in the prevention of marine pollution.95 The preamble to MARPOL sets forth the broad objective of the convention: ‘To achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances’. MARPOL endorses the preventive principle96 which allows action to be taken to protect the environment at an early stage. Such principles ‘prohibit activity which causes or may cause damage to the environment in violation of standards established under the rules of international law’.97 Initially, it was suggested that international rules governing ballast water and sediment pollution would be included in a new annex to MARPOL 73/78, to complement existing international standards for a particular substance or category of substance.98 IMO Resolution A.868(20) 1997 adopted the Guidelines for the Control and Management of Ships’ Ballast Water to Minimize the Transfer of

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The convention incorporated much of OILPOL and its amendments into Annex I. Birnie and Boyle, Chapter 2, supra note 48, 267. Ibid. MARPOL 73/78, Chapter 1, supra note 14, Article 1 reads: ‘The Parties to the Convention undertake to give effect to the provisions of the present Convention and those Annex thereto by which they are bound, in order to prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the Convention’. Sands, Chapter 2, supra note 47, 247; see also Principles 6, 7, 15, 18 and 24 of the 1972 Stockholm Declaration, Chapter 2, supra note 84. McConnell, Chapter 1, supra note 2, 32–33.

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Harmful Aquatic Organisms and Pathogens.99 The guidelines call for, inter alia, MEPC to regulate this issue in a new annex to MARPOL 73/78.100 McConnell suggests that ‘if it was an annex to MARPOL then national level legislative implementation would have been simplified, at least with respect to administrative placement and adoption of regulations’.101 However, the impact of alien invasive species on the oceans differs substantially from oil pollution and special methods are required to prevent biopollution of the marine environment. As a result, the decision was made to adopt an independent instrument, i.e. a specific convention on the control and management of ships’ ballast water and sediments, drawn up under MARPOL.102 The Draft Consolidated Text of an International Convention for the Control and Management of Ships’ Ballast Water and Sediments103 followed a similar format to Annex I (oil) of MARPOL. The 2004 BWM Convention adopted much the same regulatory formula by establishing anti-pollution measures for the prevention and control of marine pollution by ships. These measures include (a) a tiered system of discharge standards to deal with marine areas needing additional environmental protection;104 (b) accommodation of existing ships and new ship design requirements through a phase-in process; (c) an international certificate based on multiple flag-State surveys for specified ships;105 (d) reception facilities;106 (e) obligations to promote technical cooperation;107 and (f) communication of information,108 inter alia, with respect to text of laws and regulations on pollution/biopllution, reception facilities including their location, capacity and available facilities and other characteristics. Sharing information on the legal and administrative States’ actions to avoid pollution/biopollution of the marine environment at the international level is an essential requirement for the control and management of aquatic invasive species for safety, strategic and environmental reasons.109 99 100 101 102 103 104

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See Chapter 4, Section 3, of this book. IMO/MEPC 41/20, section 9. McConnell, Chapter 1, supra note 2, 32. See Chapter 4, Section 3, of this book. IMO/MEPC 46/3/2, 19 January 2001; McConnell, Chapter 1, supra, note 2, 32. MARPOL 73/78, Chapter 1, supra note 14, Annex I, Regulation 1 paragraph 10: ‘special area means a sea area where for recognized technical reasons in relation to its oceanographic and ecological condition and to the particular character of its traffic the adoption of special mandatory methods for the prevention of sea pollution by oil is required […]’; BWM Convention, Chapter 1, supra note 3, Annex, Section C, Special Requirements in Certain Areas. MARPOL 73/78, ibid., Annex I, Regulations 4, 5 and 6; BWM Convention, ibid., Annex, Section E, Survey and Certification Requirements for Ballast Water Management: MARPOL 73/78, ibid., Annex I, Regulation 12; BWM Convention, ibid., Article 5. MARPOL 73/78, ibid., Article 17; BWM Convention, ibid., Article 13; IMO/LEG/MISC/4, 61. MARPOL 73/78, ibid., Article 11, paragraph 1; BWM Convention, ibid., Article 14, paragraph 1. LEG/MISC/4, 2005, 71.

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Three aspects of MARPOL 73/78 are of particular relevance to the BWM Convention: the establishment of special control in certain areas, certification and inspection regimes, and the provision of reception facilities. Each of these is examined in greater detail below. In addition, the enforcement jurisdiction of MARPOL 73/78 is assessed. OILPOL was the first treaty to provide special protection for certain marine areas in regard to vessel-source pollution.110 It established prohibition zones in which more stringent discharge standards applied. MARPOL 73/78 used a similar approach by providing special areas where, for recognized technical reasons in relation to oceanographic and ecological conditions and the particular character of its traffic, the adoption of special mandatory methods for the prevention of sea pollution by oil is required.111 Annex 1, Regulation 10, to MARPOL defined such special areas112—(semi-)enclosed seas in an oceanographic sense—as marine areas that benefit from more stringent controls on discharges of pollutants into the sea. Further, these measures could also apply to the high seas. The 2004 BWM Convention does not refer to the term ‘special areas’, but similar to MARPOL’s designated special areas formula, adopts a two-tier approach to standards and operating requirements. Under Tier 2, a State may, consistent with international law, determine that measures, in addition to general standards, be adopted. The convention provides for special requirements in certain areas and requires ships to meet a specific standard or requirement.113 Regulatory conventions require the flag State to conduct periodic surveys and inspections of ships under its jurisdiction. The flag State is responsible primarily for ensuring that the ship flying its flag complies with regulations on vessel-source pollution. Moreover, the primary obligation to safeguard against substandard ships lies with the flag State.114 Accordingly, under MARPOL, flag States are

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113

114

See “MARPOL 73/78,” Focus on IMO (London: IMO, September 1998). MARPOL 73/78, Chapter 1, supra note 14, Annex I, Regulation 1, paragraph 10. ‘For the purpose of this Annex, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the Gulfs area, the Gulf of Aden area, the Antarctic area an the North-west European waters’. BWM Convention, Chapter 1, supra note 3, Annex, Section C, Regulation C-1; see also Chapter 4, Section 3, of this book. See Molenaar, Chapter 2, supra note 102, 25–27; G. C. Kasoulides, Port State Control and Jurisdiction (Dordrecht: Martinus Nijhoff, 1993); Z. O. Ozcayir, Port State Control (London: LLP, 2001). Moreover, the IMO notes: ‘As in the case of IMO safety instruments, the enforcement of MARPOL relies primarily on the exercise of the flag-State jurisdiction in regard to the construction, design, equipment and manning of ships. MARPOL also includes regulations on the voluntary inspection of foreign ships in port, to ensure that they comply with anti-pollution rules and standards and to prevent the ship from sailing if these requirements are not met. Furthermore, MARPOL entitles port States to institute proceedings in accordance with their law.

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required to inspect vessels at periodic intervals, and to issue an international oil pollution prevention certificate.115 Such a certificate ‘shall be accepted by the other parties and regarded for all purposes covered by the present Convention as having the same validity as a certificate issued by them’.116 Similar to MARPOL, ships to which the BWM Convention applies are subject to surveys by their flag State. The flag State will issue a ship a certificate after it fulfils the standards set out in a survey conducted in accordance the rules established in Regulation E-1, Section E – Survey and Certification Requirements for Ballast Water Management.117 Like MARPOL, the BWM Convention also includes regulations on inspection of foreign ships voluntarily in port to ensure that they comply with anti-pollution rules and standards and to prevent the ship from sailing if these requirements are not met.118 Under MARPOL Annex 1, Regulation 12, paragraph 1, States are required to ensure the provision at oil loading terminals, repair ports, and in other ports in which ships have oily residues to discharge, of facilities for the reception of such residues to discharge, of facilities for the reception of such residues and oily mixtures as remain from oil tankers and other ships adequate to meet the needs of the ships using them without causing undue delay to ships.

Similarly, Article 5, paragraph 1, of the BWM Convention requires States to provide efficient reception facilities for sediments disposal. Such facilities shall provide for the safe disposal of sediments and avoid transboundary pollution. Further, both conventions call on Parties (port and coastal States) to notify the IMO of all cases where the facilities are allegedly inadequate.119 Enforcement of MARPOL relies primarily on the exercise of flag State jurisdiction. However, the coastal State has the primary responsibility to ensure that the waters under its jurisdiction are protected from vessel-source pollution. Accordingly, MARPOL calls on coastal States to ensure that national environmental laws and regulations are compatible with the criteria established by IMO; to address appropriate sanctions to the flag State; to use all appropriate and practicable

115 116 117 118 119

Provisions on the institution of proceedings in this regard should be read together with the regulations included in Article 228 of UNCLOS. Regulations contained in UNCLOS and MARPOL on the exercise of flag and port State jurisdiction should be related to the UNCLOS provisions dealing with the exercise of coastal State jurisdiction in connection with the enforcement of anti-pollution measures’. LEG/MISC/4, 26 January 2005, 40. MARPOL 73/78,Chapter 1, supra note 14, Annex I, Regulations 4 and 5. MARPOL 73/78, ibid., Article 5, paragraph 1. See Chapter 4, Section 3, of this book. BWM Convention, Chapter 1, supra note 3, Article 9. MARPOL 73/78, Chapter 1, supra note 14, Regulation 12, paragraph 5, Annex I; BWM Convention, ibid., Article 5, paragraph 2.

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measures of detection and environmental monitoring; to effectively control and inspect foreign ships in national ports; and to implement the regulations and standards established in international treaties. MARPOL Article 4, paragraph 2, provides Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefore under the law of that Party.

Under MARPOL, the flag State exercises universal jurisdiction over its ships. Regardless of were violations occur, they are prohibited and sanctions are to be established under the law of the flag State. Moreover, proceedings must be brought if there is sufficient evidence of violations.120 In practice, such jurisdiction does not prevent port State control, which is often a more realistic method of ensuring higher levels of compliance.121 3.3.3. United Nations Convention on the Law of the Sea Conflicts among coastal and flag States in regard to the uses of the oceans reflects opposing interests vis-à-vis coastal States’ sovereignty over the territorial sea and the principle of freedom of the high seas. Until the 1940s, fishing and navigation were the primary economic uses of the sea, and use conflicts were resolved by unwritten law applied as customary international law.122 Codification of the law of the sea emerged from several initiatives under the aegis of the United Nations, in particular the Third United Nations Conference on the Law of the Sea (1973– 1982), which adopted the 1982 United Nations Convention on the Law of the Sea (UNCLOS).123 The conference involved participants from more than 150 countries, representing all regions of the world. The so-called constitution of the oceans, UNCLOS provided a new economic and legal order for the oceans. A landmark in international cooperation in the treaty-making process,124 UNCLOS is considered an umbrella treaty in regard to preventing pollution/ biopollution of the marine environment. In this regard, the legal framework addressed in the BWM Convention can be viewed in two dimensions under the legal regime provided in UNCLOS: 120 121 122

123 124

MARPOL 73/78, ibid., Article 4, paragraph 1. Sands, Chapter 2, supra note 47, 271. Arnd Bernaerts, Bernaerts’ Guide to the Law of the Sea, The 1982 United Nations Convention (Couldson,: Fairplay Publications, 1988), 2. UNCLOS, Chapter 1, supra note 8. Ibid., xx–xxxvii. The Third Conference on the Law of the Sea, where the final text of UNCLOS was drafted, consolidated the conception that the use of the oceans is quickly developing; recognized that the resources of marine ecosystems will be essential for the survival of future generations; stated that these resources are limited; and, finally, declared that the belief that

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1. The horizontal dimension encompasses internal waters (coastal State sovereignty and prescriptive and enforcement jurisdiction125 and port State’ enforcement jurisdiction126); the territorial sea (coastal State sovereignty and prescriptive and enforcement jurisdiction,127 and port State enforcement jurisdiction128); the contiguous zone129 (coastal State sovereign rights and jurisdiction,130 and port State enforcement jurisdiction131); the exclusive economic zone (coastal State sovereign rights for specific purposes132 and jurisdiction in respect to artificial installations, marine scientific research, and marine environmental protection,133 as well as port State enforcement jurisdiction134 and flag State jurisdiction135); and the high seas (freedom of navigation,136 general flag State jurisdiction137 and port State enforcement jurisdiction in specific circumstances138). 2. The vertical dimension encompasses continental shelf (coastal State sovereign rights139 and jurisdiction) and the Area (common heritage of mankind140).

125 126 127 128 129

130 131 132 133 134 135 136 137 138 139 140

they are unlimited is false and very dangerous. The conference placed significant importance on the control of marine pollution of all origins and demonstrated that the emerging different types of ships’ discharges, particularly toxic wastes in certain regions and the introduction of alien species in national territories via ships’ ballast water, imposed an obligation on the international community to recognize that these new sources of pollution were drastically affecting the oceans. These facts required coastal/port and flag States to adopt national and international legal measures to restrict the use of the seas as a receptacle of pollutants: ex facto oritur jus. UNCLOS, ibid., Articles 2 and 8. Ibid., Article 218. Ibid., Article 2. Ibid., Article 218. ‘The contiguous zone enjoys independent legal status only as long as the coastal state has not proclaimed an exclusive economic zone (Article 57) exceeding the outer limits of the contiguous zone. If an exclusive economic is established, it begins beyond and adjacent to the territorial sea (Article 55), with the resultant effect that the contiguous zone becomes a part of the exclusive economic zone, and all provisions which apply to the latter also apply completely and fully (as there are no exceptions) in the contiguous zone. The principle of freedom of navigation applies in this zone as well as elsewhere (Articles 58, 87) outside the territorial sea, but other states are to have due regard for the rights of the coastal state in the exclusive economic zone and to comply with its laws and regulations’. Bernaerts, supra note 122, 30. UNCLOS, Chapter 1, supra note 8, Article 33. Ibid., Article 218. Ibid., Articles 55, 56, paragraph 1(a). Ibid., Article 56, paragraph 1(b). Ibid., Article 218. Ibid., Article 217. Ibid., Article 90. Ibid., Article 92. Ibid., Article 218. Ibid., Article 77, paragraph 1. Ibid., Article 156

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The Secretariat of IMO, and its predecessor IMCO, actively contributed to the work of the Third UN Conference on the Law of the Sea to ensure that the drafting of IMO instruments conformed to the basic principles guiding UNCLOS.141 Under UNCLOS, Article 211, paragraph 1, IMO has the legislative authority with respect to pollution from ships.142 Indeed, Article 211, paragraph 2, requires States to adopt anti-pollution laws and regulations in compliance with international rules and standards set by IMO. Such laws and regulations must have at least the same effect as that of generally accepted international rules and standards established through the competent international organization (i.e. IMO).143 Article 211, paragraph 2, is addressed to flag and coastal States144 and completes the obligation of States under Article 194, paragraph 3(b), to take measures to prevent marine pollution from ships. UNCLOS is not clear in regard to the legal effect of international rules and standards. Since the Third UN Conference on the Law of the Sea, a multitude of terms have been used to denote international rules relating to the prevention, reduction, and control of the pollution of the marine environment, causing interpretation problems even with the participants in the UNCLOS negotiations.145 Moreover, the term ‘generally accepted’146 is also a matter of different interpretation among legal experts. On the one hand, they consider as generally accepted, not only customary rules and jus cogens, but also technical and specific rules on navigation and pollution to which the international community has given ‘a consent at the same time diffuse and general’.147 On the other hand, some agree that the most reasonable interpretation is that the generally accepted rules and standards are those embodied in relevant IMO conventions in force.148 141 142

143 144

145

146

147

148

IMO/LEG/MISC/4, 2. In UNCLOS, the term ‘competent international organization’ is used in the singular if it refers to IMO. B. Vukas, The Law of the Sea (Leiden: Martinus Nijhoff, 2004), 30. See LEG/MISC/3/Rev.1, 3. M. Nordquist and S. Yankov, United Nations Convention on the Law of the Sea, 1982, A Commentary, Volume 4 (Dordrecht: Martinus Nijhoff, 1991), 181. Vukas notes: ‘The terms “rules”, “standards”, “regulations”, “procedures” and “practices” were used in different combinations and they were characterized as “generally accepted”, “international”, “applicable”, “internationally agreed”, “global”, “regional”, “relevant” and “specified”. Supra note 142, 26. The Secretariat of IMO recently suggested that it would be necessary for the appropriate bodies of IMO to consider what guidelines IMO can usefully provide in regard to rules and regulations that are deemed to be ‘generally accepted’. LEG/MISC/1, 52, § 122. D. Vignes, “La valeur juridique de certains règles, normes ou pratiques mentionnées au TNCO comme ‘généralement acceptées, ” Annuaire Francaise de Droit International 25 (1979) : 712–719. See M. Valenzuela, “IMO: Public international law and regulations, the law of the sea and ocean industry: New opportunity and restraints,” in The Law of the Sea and Ocean Industry:

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Furthermore, publicists construe the term ‘standards’ under two different meaning, i.e., (a) as a special sort of binding rule and, like rules, standards should be restricted to those laid down in instruments intended to be binding; or (b) as having an extra-legal meaning of a level of quality or achievement, and thus may be inserted in a binding or in a non-binding document. In fact, standards are addressed in both non-treaty IMO documents and conventions, e.g., IMO Resolution A.868(20) sets out standards on the control and management of ships ballast water and sediments, which are improved upon in the BWM Convention. A further element of treaty law is consideration of the prescriptive or legislative jurisdiction (the authority to lay down rules)149 and enforcement jurisdiction (the authority to implement the rules)150 with respect to vessel-source pollution. The term jurisdiction describes the limits of the legal competence of a State or other regulatory authority (such as the European Community) to exercise its power, under international law, to make, apply and enforce rules to persons, property and circumstances. Jurisdiction is a facet of State sovereignty which includes the principle of non-interference in domestic affairs by other States.151 The provisions regarding enforcement in UNCLOS were adopted to balance the opposing interests of flag and coastal States.152 Accordingly, it is essential to consider the jurisdiction of the coastal State, port State and flag State under UNCLOS as it relates to the BWM Convention. IMO treaties do not have, at the global level, the objective of regulating the jurisdictional power of the coastal State because this is a subject exclusively within the scope of UNCLOS. Blanco-Bazán notes that ‘UNCLOS provides the enforcement framework for IMO instruments by establishing the degree to which coastal States may legitimately interfere with foreign ships in order to

149

150 151

152

New Opportunities and Restraints, Proceedings of the Law of the Sea Institute Sixteenth Annual Conference, June 21–24, 1982, Halifax, Nova Scotia, Douglas M. Johnston and Norman G. Letalik, eds (Honolulu: Law of the Sea Institute, 1984), 141–151. Furthermore, Vukas suggests: ‘Where the adoption of the treaty instruments is not considered to be either appropriate or timely in a particular case, IMO promotes the adoption and implementation of recommendations, codes, uniform standards, recommended practices, etc. While note legally binding on governments, these recommendations, codes, etc., represent agreed international standards which governments find both acceptable and useful for incorporation, in whole or in part, in their national regulatory regimes’. Supra note 142, 97. V. Lowe, “Jurisdiction,” in International Law, 1st edition, M. D. Evans, ed. (Oxford: Oxford University Press, 2003), 333–351. Ibid., 351–354. See Akehurst, supra note 2, 104; D. W. Bowet, Jurisdiction: Changing Patterns of Authority Over Activities and Resources’, The Structure and Process of International Law (Dordrecht: Martinus Nijhoff, 1983), 555; Lowe, ibid., 329; Molenaar, Chapter 2, supra note 102, 75; Özcayir, supra note 114, 61; Shaw, supra note 2, 572. Bernaerts, supra note 122, 68.

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ensure compliance with IMO rules and standards’.153 Indeed, under UNCLOS, coastal State enforcement jurisdiction with respect to anti-pollution laws and regulations can be exercised to a limited extent depending on factors such as the location of the violation (internal waters, territorial sea or exclusive economic zone), location of the ship (voluntary in port, territorial sea or exclusive economic zone) and the intensity of the violation (substantial discharge, major discharge, any violation). UNCLOS provisions relating to coastal and port State jurisdiction in internal waters, the territorial sea and the EEZ relevant to the ballast water management regime are outlined below. The legal status of internal waters is often assimilated to that of a State’s territory154 taking into account the territorial principle, which justifies the State’s jurisdiction over its territory. UNCLOS does not include specific provisions on the jurisdiction of the coastal State in regard to its internal waters.155 In principle, aside from specific exceptions provided in UNCLOS,156 there is no right of innocent passage in most internal waters. The State has the right to determine the basis of entry into its internal waters (ports) subject to customary practice or international agreement.157 The coastal State is free to apply national laws and to determine conditions of entry for foreign vessels in its internal waters (ports)158 and adopt, for example, specific requirements for the discharge of ballast water.159 153

154

155

156 157

158 159

A. Blanco-Bazán, “The environmental UNCLOS and the work of IMO in the field of prevention of pollution form vessels,” in International Marine Environmental Law: Institutions, Implementation and Innovations, Andree Kirchner, ed. (The Hague: Kluwer Law International, 2003), 41. ‘Publicists in the field of international law appear to be unanimous in adhering to the theory that ports and harbor constitute part of the territory of the country where they are located’. Kasoulides, supra note 114, 1–34. UNCLOS, Chapter 1, supra note 8, refers to internal waters in Article 8: ‘1.Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters’. Ibid., Article 8 paragraph 2. See R. R. Churchill and A. Lowe, The Law of the Sea, 3rd edition (Manchester: Juris Publishing, 1999), 62–65; A. V. Lowe, “The right of entry into maritime ports in international law,” San Diego Law Review 14 (1977): 597–622. Birnie and Boyle, Chapter 2, supra note 48, 370. See, e.g., the Brazilian law, Rule of the Maritime Authority on the Management of Ship’s Ballast Water (NORMAM 20/DPC, 2005), Article 1, paragraph 1: ‘This rule applies to all the ships, national or foreign, that use the ports or Brazilian terminals’; the US laws Non-indigenous Aquatic Nuisance Prevention and Control Act, 1990, as amended, and regulations, and the National Invasive Species Act, 1996, which provides: ‘All vessels with ballast tanks on all waters of the US are asked to use precautionary ballast water loading practices (listed as per the IMO Guidelines) and avoid ballast operations in or near marine sanctuaries, coral reefs etc, clean

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National regulations may relate to navigational rules160 as well as ballast water discharge and standards. No limitation is imposed on the stringency of the conditions that can be established by the coastal State, and the State does not have an obligation to seek the approval of IMO for stricter measures when such measures are intended to be applied in its internal waters or ports.161 Furthermore, the port State exercises full jurisdictional powers over its internal waters, and its laws and regulations are fully enforceable.162 Port and coastal States have the right to establish which ports are open to international trade163 and may even close their international ports to protect their vital interests. Accordingly, the freedom of access granted to foreign vessels is not absolute. However, considering that port and coastal States’ sovereignty is limited by international law,164 access is usually granted to any foreign vessel

160

161 162

163 164

tanks regularly, discharge minimal amounts of ballast in internal and coastal waters, address the problem of other ship vectors of organism transfer (i.e., rinse, anchors and anchor chains during retrieval, remove fouling organisms from hull, piping and tanks on a regular basis)’. H. Ringbon, Environmental Protection and Shipping – Prescriptive Coastal State Jurisdiction (Scandinavian Institute of Maritime Law, Oslo University, M. Phil. Thesis, 1999), 21. IMO, BWM/ CONF/9, 25 November 2003, 2. In this regard, see the opinion of Kasoulides, supra note 114. He notes: ‘[T]he interpretation of this principle, however, has not been fully uniform. A basic component of the port state’s competence, the right to deny access to their maritime ports used for maritime trade, has been the subject of controversial theories and interpretations […]. The first school of thought, starting with Gentilli and Grotius […] expressed its belief in the existence of a general right of access to foreign ports. The Institute of International Law in 1928 stated that “as a general rule access to ports and roadsteads is open to foreign vessels” and this was reiterated by Colombos, who supported, inter alia, the view that “prohibition of the use of ports to foreign nationals would imply a neglect of the duties for the promotion of international intercourse, navigation and trade which customary international law impose upon it”. Jessup supported the view that the right of access to ports is an independent right and that such right should be distinguished from the right of innocent passage. This view was upheld by the controversial decision in the Aramco Arbitration where the Tribunal stated that “according to a great principle of public international law, the ports of every state must be open to foreign merchant vessels and can only be closed when the vital interests of state so require.”’ O’Connell did not accept the existence of a universal and abstract right of access but rather considered that ‘there is a special rule of international law aimed at eliminating discrimination in respect to access to ports. The prerogative of the coastal State to close under special circumstances those ports which are normally open to international traffic is also well established in international law. Even the authors that support the existence of a right of access agree on the permissibility of imposing conditions of such entry and that access is reasonable restricted. This led […] to conclude that ‘even those that assert a right of access recognize the right of the littoral state to regulate coastal ports’. D. P. O’Connell, The International Law of the Sea (Oxford: Clarendon Press, 1982), 2–5. Özcayir, supra note 114, 69. See, for example, the 1923 Convention on the International Regime of Maritime Ports; North Sea Continental Shelf Cases; the Permanent Court of International Justice’s Advisory Opinion in the

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voluntarily in port with a lawful purpose and which complies with the requirements of the port State for entry at its port. Moreover, in accordance with UNCLOS, Article 211, paragraph 3, States which establish particular requirements for prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization.

Under this legal framework, the coastal State has the right to address particular requirements with respect to the uptake or discharge of ships’ ballast water within its internal waters. Accordingly, the BWM Convention, Article 4, paragraph 2, allows a State, with due regard to its particular conditions and capabilities, to develop national policies, strategies or programmes for ballast water management in its ports and waters under its jurisdiction consistent with the provisions provided therein. In accordance with the sovereignty principle, a coastal State has exclusive prescriptive jurisdiction in the territorial sea on environmental issues.165 In exercising sovereignty in the territorial sea, the coastal State can introduce measures with respect to accidents, emergencies, safety of operations and discharges. These measures cannot be incompatible with the right of innocent passage of foreign ships in the territorial sea.166 Thus, coastal States may adopt stricter antipollution discharge standards than the international standards required by the BWM Convention. Under ‘General Obligations’, Article 2, paragraph 3, of the BWM Convention clearly provides:

165 166

Jurisdiction of the European Commission of the Danube Case; the decision of the Permanent Court of International Justice in the Oscar Chinn Case; and the Aramco Case. For further analyses, see Kasoulides, supra note 114, 5–22. Nevertheless, Lowe quotes practices suggesting that no right to entry exists: ‘The practice of denying the right of entry, grounded in the concept of sovereignty, dates back many centuries. In early English practice the King often regulated trade by limiting or denying access to English ports. For example, on 12 March 1236, Henry III promulgated the order “Let no foreigner from greater France, or other power, go to England without license from the King’ […]. The same principle is prevalent in modern practice. For example, a Bulgarian Decree of 10 October 1951; […] in China no foreign ship is allowed to enter or leave a port or harbour on a boundary river except […] with the approval of the Chinese Government” ‘. Supra note 157, 610–622. UNCLOS, Chapter 1, supra note 8, Article 21, paragraph 1(f ). Ibid., Article 211, paragraph 4. Bernaerts notes: ‘The term “innocent passage” is vaguely described rather than precisely defined. Transitory navigation through the territorial sea-passage must not be prejudicial to the peace, good order or security of the coastal state. A catalogue of activities can be used as a guide in determining whether passage is innocent. With the exception of a general clauses which reads, “any other activity not having a direct bearing on passage”, the clauses

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3. Nothing in this Convention shall be interpreted as preventing a Party from taking, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ship’s Ballast Water and Sediments, consistent with international law. However, UNCLOS Article 21, paragraph 2, sets out the primary exception to the coastal State prescriptive jurisdiction in its territorial sea. It excludes laws and regulations on the ‘construction, design, equipment or manning standards’ for foreign ships unless they are giving effect to generally accepted international rules or standards, in this case, also to those addressed in MARPOL.167 McConnell notes, [O]ne of the more significant constraints on the coastal State legislative activity is found in Article 21(2). The omission of “operations” from 21(2) in effect delineates areas of flag State control and international standards. This means that requiring a ballast water management plan, record book, reporting forms (although they may be contrary to FAL [Convention on Facilitation of International Maritime Traffic, 1965]) and requiring the use of mid ocean exchange, an operational ballast water management method, does not fall afoul of this provision. On the face of it, requiring a designated ballast water management officer on foreign flag vessels could be seen as affecting manning.168

With respect to coastal States’ enforcement jurisdiction in the territorial sea, UNCLOS, Article 220, paragraph 2, provides: Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Conventions or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspections of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7.

The BWM Convention adopted a similar legal framework on this issue.169 Actions must take into account the safeguard measures provided in UNCLOS Articles 223 to 233, which prohibit undue delay of a foreign vessel, excessive physical inspection and general disregard for accepted international rules.170

167 168 169 170

cover activities which pose a serious and unacceptable threat to the coastal state […]. In addition, the general term “innocent passage” must be interpreted and applied in the light of national law which has been implemented by the coastal state […]’. Supra note 122, 28. LEG/MISC/4, 2005, 49. McConnell, Chapter 1, supra note 2, 26. BWM Convention, Chapter 1, supra note 3, Article 8, paragraph 2. Bernaerts, supra note 122, 68.

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The exclusive economic zone extends to 200 nautical miles from the territorial sea baseline171 and gives coastal State sovereign rights to natural resources, whether living or non-living, and jurisdiction, inter alia, in regard to the protection and preservation of the marine environment.172 From Grotius to UNCLOS, the dialectic between the freedom of the seas and the principle of extended coastal State rights beyond the territorial sea underlies the genesis of the EEZ. Currently, the EEZ is part of international law and reflects a negotiated formula adopted at the Third UN Conference on the Law of the Sea. The coastal State’s prescriptive jurisdiction on vessel-source pollution in the EEZ is addressed in UNCLOS, Article 56, paragraph 1(b)(iii). Such laws and regulations must, in accordance with Article 211, paragraph 5, conform to and apply generally accepted international rules and standards established through IMO. Accordingly, UNCLOS limits coastal State discretion on the kind of antipollution legislation it can promulgate. Although the coastal State may adopt special mandatory measures in regard to a particular, clearly defined area of the EEZ, where more stringent pollution discharge controls are allowed,173 such measures shall be subject to IMO approval and based on scientific and technical evidence.174 Furthermore, as in the territorial sea, the coastal State has no prescriptive jurisdiction with respect to construction, design, equipment and manning standards for foreign vessels. This regime is compatible with the nature of the EEZ and ensures uniformity of applicable pollution standards negotiated and adopted under IMO. Accordingly, it is expected that national laws on the control and management of ships’ ballast water within the EEZ will adopt the standards set out in the BWM Convention. The coastal State has no full enforcement jurisdiction in regard to violations of international anti-pollution regulations and standards by foreign vessels in passage in the EEZ. Enforcement provisions in UNCLOS refer to several requirements for such jurisdiction. Indeed, if the vessel voluntarily enters port or docks at an offshore terminal of another State, the coastal State may institute proceedings in regard to violations of applicable international rules and standards for prevention

171 172

173 174

UNCLOS, Chapter 1, supra note 8, Article 57. Ibid., Article 56. See also Maria Helena Fonseca de Souza Rolim, A Tutela Jurídica dos Recursos Vivos do Mar (São Paulo: Max Limonad, 1998), 65–66; F. Orrego Vicuna, The Exclusive Economic Zone: Regime and Legal Nature Under International Law (Cambridge: Cambridge University Press, 1989). UNCLOS, Chapter 1, supra note 8, Article 211, paragraph 6, and Article 234. The exception is Article 234 which applies to ice-covered areas within the limits of the EEZ, and allows coastal States a broad discretion, free from IMO supervision, to adopt non-discriminatory national standards for pollution control with due regard for navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

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of pollution from vessels.175 Otherwise, only if there are clear grounds for believing that a ship navigating in the EEZ violated applicable anti-pollution international rules and standards, the coastal State ‘may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred’.176 If such a violation results in a substantial discharge causing or threatening significant pollution of the marine environment, the coastal State [M]ay undertake physical inspection the vessel for matters related to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection.177

Finally, if there is clear objective evidence that a ship in the EEZ has committed a violation resulting in a discharge causing major damage or threat of major damage to the coastal State, prosecution and arrest are allowed.178 Improvements to the port State enforcement regime are relatively recent.179 Changes emerged from the ‘lack of preparedness on the part of the flag States to meet their most basic obligations as flag States’.180 Port State authority of a coastal State is set out in several maritime conventions, including, inter alia, MARPOL 73/78,181 SOLAS 73/78,182 the 1969 Civil Liability Convention,183 UNCLOS184 and, most recently, the 2004 BWM Convention.185 Under UNCLOS, port State jurisdiction is granted when a vessel is voluntarily in port. Indeed, a port State cannot oblige a ship on the high seas or even in its territorial waters or EEZ to proceed to its ports and apply its national laws and open

175

176 177 178 179

180 181 182

183

184 185

UNCLOS, Chapter 1, supra note 8, Article 220, paragraph 1, refers to violations which have occurred ‘within the territorial sea or the exclusive economic zone of that State’. Ibid., Article 220, paragraph 3. Ibid., Article 220, paragraph 5. Ibid., Article 220, paragraph. 6. See United Nations, Division for Ocean Affairs and the Law of the Sea, Enforcement by Port States, Legislative History of Article 218 of the UNCLOS (New York: United Nations, 2002). Port State jurisdiction was first introduced for detailed international consideration at the 1973 IMO Conference on Marine Pollution. The evolution of the concept is discussed by Kasoulides, supra note 114, 110–141. Jacobsson, supra note 47, 299. MARPOL 73/78, Chapter 1, supra note 14, Article 21. International Convention for the Safety of Life at Sea, London, 1 November 1974, 1184 UNTS 2, as amended, Chapter I, Regulation 19. International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 UNTS 3, as amended by the protocols of 1976 and 1992, Article VII (11). UNCLOS, Chapter 1, supra note 8, Article 218. BWM Convention, Chapter 1, supra note 3, Articles 9 and 10.

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proceedings provided for in the port State’s enforcement regime. However, article 218 of UNCLOS, which is the core of the port State enforcement regime, confers on port States the power to investigate and prosecute discharges in violation of international applicable rules and standards established through the IMO, wherever they have occurred. In such cases, port States can undertake investigations and institute proceedings in regard to any discharge from vessels outside its internal waters, territorial sea or EEZ, including violations on the high seas (in contrast with the traditional flag State exclusive enforcement jurisdiction on the high seas) and within the coastal zones of another State. In the latter case, this jurisdiction is subject to a request of the State concerned. The relevance of Article 218 ‘is that it may ensure prompt prosecution where the coastal state is unable or incompetent to act, or where the vessel is unlikely to come within the flag state’s authority. […]. In that sense, Article 218 creates a form of universal jurisdiction concurrent with the flag state, and in some cases, with the coastal state’.186 Several provisions of UNCLOS set out jurisdictional powers of States over foreign ships voluntarily in their ports in connection with the implementation of anti-pollution measures.187 For example, under Article 25, paragraph 2, a coastal State has enforcement powers to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters is subject. Although this provision does not expressly refer to port State jurisdiction, it comprises such powers. Article 219 refers to detention of foreign vessels in port. Under Article 226, paragraph 1(c), port States must ensure that vessels do not sail until they can proceed to sea without representing an unreasonable threat of damage to the marine environment. However, ships can be granted permission to leave port in order to proceed to the nearest appropriate repair yard. These measures do not prejudice the right of the port States to impose penalties in accordance with their national law for violation of anti-pollution rules and standards, even if the violation consists solely in the non-observance of preventive measures without any illegal discharge having occurred.188 In exercising its jurisdiction, the port State must comply with the UNCLOS provisions on safeguards189 to balance the powers of enforcement and avoid arbitrary acts. Under customary law of the sea and UNCLOS, only the flag State has been responsible for ensuring that vessels comply with internationally accepted safety and environmental standards.190 Under UNCLOS Article 94, the flag State

186 187 188 189 190

Birnie and Boyle, Chapter 2, supra note 48, 282. UNCLOS, Articles 25, paragraph 2, 219–220 and 226; IMO/LEG/MISC/4, 2005, 45–48; IMO/LEG/MISC/4, 45. UNCLOS, Chapter 1, supra note 8, Articles 223–233. König, supra note 51, 37–38.

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exercises its jurisdiction and control over ships that fly its flag in three areas: administrative (e.g., fixing the conditions for the granting of nationality to ships,191 maintaining a register of ships,192 inspecting before registration and thereafter at appropriate intervals,193 issuing flag documents,194 and investigating allegations of improper control);195 technical (e.g., construction, equipment, seaworthiness, manning, training of crew, use of signals, maintenance of communication, collision prevention);196 and social matters (e.g., labour conditions). Further, the flag States’ national laws and regulations on ship-source pollution should have at least the same effect as those of generally accepted international rules and standards established through IMO.197 Under Article 92, paragraph 1, the primacy and exclusiveness of jurisdiction on the high seas relies on the flag State. However, the exclusive jurisdiction of the flag State is not absolute. UNCLOS includes several exceptions198 that grants other States a share in legislative or enforcement jurisdiction with the flag State, such as universal port State jurisdiction and the rights of hot pursuit and intervention.199 Article 217 of UNCLOS requires flag States to adopt measures for the implementation and effective enforcement of international rules and standards irrespective of where a violation occurs. As a result, conflict of jurisdiction between the port/coastal and the flag State may emerge. Indeed, with respect to jurisdiction over vessel-source pollution within the EEZ, no international legal instrument infers a presumption in favour of either the flag or the coastal State. In general, Birnie suggests, UNCLOS can be seen as serving the interests of maritime States within the EEZ, although the extension of jurisdiction does give a wider area of control to coastal States if they choose to use it.200 Nevertheless, from the perspective of preventing biopollution of the marine environment, such concurrent jurisdiction should be avoided by anticipatory measures based on cooperation among States in regard to safety and security at sea. The adoption of environmental laws by the flag State, especially the anti-pollution IMO treaties and regulations, and effective enforcement of them, is essential to preventing biopollution of the marine environment. 191 192 193 194 195 196 197 198

199 200

UNCLOS, Chapter 1, supra note 8, Article 91, paragraph 1. Ibid., Article 94, paragraph 2(a). Ibid., Article 94, paragraph 4(a). Ibid., Article 91, paragraph 2. Ibid., Article 94, paragraph 6. Ibid., Article 94, paragraph 3. Ibid., Article 211, paragraphs 1 and 2. For example, ibid., Articles 99; 100; 108, paragraph 1; 109, paragraph 1; and 110, paragraphs 1, 4 and 5. Ibid., Article 111. Birnie and Boyle, Chapter 2, supra note 48, 279.

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UNCLOS Article 194, in regard to pollution measures, does not distinguish between flag and coastal States. All States have a specific duty to take measures to prevent pollution from vessels, including intentional and unintentional discharges, presumably including ships’ ballast water and sediment pollution, and to regulate the design, construction, equipment, operation and manning of vessels.201 Furthermore, under Article 196, States are required to prevent, reduce and control pollution of the marine environment from the use of technologies under their jurisdiction, or the intentional or accidental introduction of alien or new species that may harm the marine environment. In addition, UNCLOS obliges States and other entities to publicize legislative and other measures taken by them with respect to the prevention of vessel-source pollution and the safety of navigation.202 3.3.4. Convention on Biological Diversity The 1992 Convention on Biological Diversity (Biodiversity Convention or CBD) was adopted under the aegis of the United Nations Environment Programme (UNEP) and signed by 153 States and the European Community at the United Nations Conference on the Environment and Development (UNCED) in 1992.203 The CBD focuses on the conservation of biological diversity, the sustainable use of biological resources, the fair and equitable sharing of benefits arising from the use of genetic resources, and the communication of research results.204 The Biodiversity Convention regime applies to the components of biodiversity found within the limits of the jurisdiction of the State party.205 However, for processes and activities carried out under the jurisdiction or control of a party, regardless of where the effects of such activities take place, the Convention applies within the area of national jurisdiction or beyond the limits of national jurisdiction.206 This concept is particularly important for the control and management of biopollution of the marine environment through ships’ ballast water and sediments

201 202

203

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205 206

UNCLOS, Chapter 1, supra note 8, Article 194, paragraph 3(b). Ibid., Articles 21, paragraph 3; 22, paragraph 4; 24, paragraph 2; 41, paragraph 2; 52, paragraph 2; 60, paragraph 3; 60, paragraph 5; 211, paragraph 3; 211, paragraph 6; and 217, paragraph 7. Biodiversity Convention, Chapter 1, supra note 9. See also, Sands, Chapter 2, supra note 47, 515–524. SCBD, Chapter 2, supra note 10, Chapter 1. See also Global Invasive Species Programme (GISP), a partnership program initiated by the Scientific Committee on Problems of the Environment (SCOPE), World Conservation Union (IUCN) and the United Nations Environment Programme (UNEP), available online at http://www.gisp.org/. Biodiversity Convention, Chapter 1, supra note 9, Article 4 (a). Ibid., Article 4 (b).

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because of the mobility of alien invasive species and pathogens. Although the preamble to the CBD does not expressly refer to the precautionary principle, it acknowledges that measures should not be avoided or postponed where there is a lack of full scientific certainty. Further, the preamble states that biodiversity should be sustainably used for the benefit of present and future generations. The real problem is that, currently, the emerging scientific understanding of ecosystem interactions and related issues does not neatly fit into the existing national institutional jurisdiction legal framework.207 The Biodiversity Convention includes biodiversity protection provisions regarding the transfer of alien species and taking into account the interdependency of marine ecosystems. Article 6(h) (in situ conservation measures) clearly proposes the eradication of alien species that threaten ecosystems, habitats or species.208 This is a broad, binding obligation which leaves the Parties free to choose appropriate means by which to implement it. Moreover, under Article 22, paragraph 2, Parties are required to implement the convention ‘with respect to the marine environment consistently with the rights and obligations of States under the law of the sea’. Thus, the CBD provisions must be considered in the context of the legal framework set out in UNCLOS, in particular Part XII on the conservation and preservation of the marine environment. The influence of the Biodiversity Convention on the IMO anti-pollution conventions underlies the great challenge IMO faces in balancing shipping interests with conservation and preservation of marine biodiversity. The anti-pollution technical guidelines provided under the BWM Convention set out the minimum standards to be adopted by the States to protect the oceans against harmful aquatic species and pathogens.209 The guidelines are based on the precautionary principle, which acknowledges that scientific uncertainties cannot be considered barriers with respect to the protection of the marine environment. The Biodiversity Convention adopts four key planning tools and cooperative approaches for States to achieve a holistic approach with respect to the management of the environment, namely:210

207 208

209 210

McConnell, Chapter 1, supra note 10, 216, 239. In 1998, the fourth Conference of the Parties to the Biodiversity Convention decided that alien species were a cross-cutting issue within the convention. It asked the Subsidiary Body on Scientific, Technical Advice to develop guiding principles for the prevention, introduction and mitigation of impacts of alien species. Robert Höft, The Convention on Biological Diversity’s Programme of Work on Invasive Alien Species, available online at http://www.fao.org/ docrep/008/y5968e/y5968e06.htm. See Chapter 4 of this book. Shine et al., Chapter 1, supra note 3, 14–15.

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1. Integrated Management: In accordance with its particular conditions and capabilities, States are to integrate as far as possible and as appropriate the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.211 2. Identification and Monitoring: States are to identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity and to monitor their effects through sampling and other techniques,212 and establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity.213 3. Impact Assessment: States are to introduce appropriate procedures requiring environmental impact assessment for projects, programmes and policies likely to have a significant adverse impact on biodiversity and undertake notification, exchange of information and consultation with neighbouring countries which may be affected by damaging processes and activities.214 4. Research and Training: Taking into account the special needs of developing countries, the Parties undertake to establish and maintain programmes for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity.215 These measures offer decision-makers guidance for the national implementation of the BWM Convention, which adopted a similar package deal to prevent, minimize and ultimately eliminate the transfer of harmful aquatic organisms and pathogens through the control and management of ships’ ballast water and sediments. However, one of the most significant barriers to policy development and implementation of the international legal framework on ballast water and sediment biopollution has been the paucity of reliable quantitative information on the ecological and socioeconomic impacts of alien invasive species on the marine environment. These data are required to support decision-makers understanding of the scale and complexity of the issue and to enable stakeholders to determine the costs versus the benefits of their actions. Indeed, the international response to the alien invasive species problem has been insufficient to counter their increasing toll on biological diversity and society.216 211 212 213 214 215 216

Biodiversity Convention, Chapter 1, supra note 9, Article 6(b). Ibid., Article 7(c). Ibid., Article 8(a). Ibid., Article 14. Ibid., Article 12. Convention on Biological Diversity, “Pilot assessments: The ecological and socio-economic impact of invasive alien species on island ecosystems,” UNEP/CBD/SBSTTA/9/INF/33, 5 November, 2003, 6.

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Although biopollution through ships’ ballast water was not the central focus at the time of negotiations of the Biodiversity Convention, currently it has a prominent place in this regime. In 1995, the Parties adopted the Jakarta Mandate on Marine and Coastal Biological Diversity. Accordingly, the Biodiversity Convention is now focused on integrated marine and coastal area management, the sustainable use of living resources, establishment of marine protected areas, management of mariculture and the control of aquatic invasive species.217 The Jakarta Mandate has as operational objectives, inter alia, to achieve better understanding of the pathways and the causes of the introduction of alien species and the impact of such introductions on biological diversity; to put in place mechanisms to control all pathways, including shipping, trade and mariculture, for potential alien invasive species in the marine coastal environment; and to maintain an incident list on introductions of alien species.218 3.3.5. Conclusions Regarding Treaty Law Multilateral agreements on biopollution of the marine environment are not a new phenomenon. In fact, States’ obligations concerning the transfer of aquatic organisms have been subject of international regulations since the 1970s. International sanitary law dealt with concerns about the potential risk posed by ships’ ballast water discharges for the global spread and dissemination of pathogens, especially the diverse community of micro-organisms carried in ballast water and its impact on public health. As a result, quarantine measures have been adopted under the aegis of WHO. These measures were further improved with provisions regarding surveillance, which obliged States to develop and strengthen capacity to detect and assess events interconnected with bioinvasions. Further, the law of the sea regime, adopted in UNCLOS, provided port/coastal and flag States with a broad international obligation to prevent the transfer of alien or new species that may cause harm to the marine environment. This international regime deals with biopollution through a comprehensive legal framework on the use and protection of the oceans, and predominantly focuses on State jurisdiction regarding vessel-source pollution and a holistic concern on environmental rights. Interconnected with principles for sustainable development, the international law on biopollution was strengthened under the biodiversity regime set out in the Biodiversity Convention. The CBD offers decision-makers guidance

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Jeremy Firestone and James Corbett, “Coastal and ports environments: International legal and policy responses to reduce ballast water introductions of potentially invasive species,” Ocean Development & International Law 36(3) (2005): 292. Information on the Marine and Coastal Biodiversity Programme of CBD is available online at http://www.cbd.int/marine/default.shtml.

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based on the precautionary principle and, for the first time, refers to eradication of alien invasive species. Although eradication is not a realistic option for most marine alien invasive species, this option was included in the BWM Convention, The BWM Convention is the first specific anti-biopollution convention aimed at preventing, minimizing and ultimately eliminating the transfer of harmful aquatic organisms and pathogens.

3.4. Conclusion From customary to treaty law, the basis of the international legal regime on biopollution of the marine environment is the general duty of the State to prevent transboundary pollution and the specific obligation of the flag State to effectively exercise its jurisdiction over ships that fly its flag to ensure, inter alia, that vessels comply with internationally-accepted safety and environmental standards. Four international legal instruments set out international obligations for States to protect and preserve the marine environment and to tackle global ecological problems, including, the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments: the International Health Regulations, MARPOL, UNCLOS and the Biodiversity Convention. The key components of this legal framework are the preventive and the precautionary approach based, as far as possible, on scientific research, international cooperation, transfer of technology, adoption of special control in certain areas, and risk assessments. The 2004 BWM Convention must be interpreted under this international corpus juris, in particular, UNCLOS.

Chapter 4 IMO and Codification of the International Law on Ballast Water Management 4.1. The IMO and its Treaty-making Procedures Gaetano Librando1 The International Maritime Organization (IMO) is the United Nations specialized agency competent to regulate matters relating to the safety of navigation – including maritime security – the prevention of marine pollution from ships and the legal matters relating thereto. These aims are well encapsulated in its motto ‘safe, secure and efficient shipping on clean oceans’. The role of the Organization is acknowledged in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which establishes the general obligation for States to comply with the standards adopted by IMO on matters concerning safety of navigation, which include construction, equipment and manning of ships and anti-pollution.2

1

2

At the end of 2004, I met the author of this book, Dr. Maria Helena Fonseca de Souza Rolim, at IMO. We discussed IMO in general and in particular the Organization’s treaty-making practice. At the end of the meeting, Dr. Fonseca de Souza Rolim asked me to write a contribution for her book. If you have ever met the author, you would know that it is impossible to refuse any request from her. Therefore, although some of the readers may be aware of these issues, I present here my modest contribution. The views expressed in this paper are those of the author and should not be considered as necessarily reflecting the positions or views of IMO. Gaetano Librando is Head of the Treaties and Rules Legal Section of IMO, London. Although IMO is explicitly mentioned in only one article of UNCLOS (Article 2, Annex VIII), wherever the convention refers to the ‘competent international organization’ in connection with the adoption of international shipping rules and standards in matters concerning maritime safety, efficiency of navigation, and the prevention and control of marine pollution from vessels and by dumping, that expression applies exclusively to the IMO because of the global mandate of the Organization as a specialized agency within the UN system.

Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 73–144. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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IMO was established by the Convention on the International Maritime Organization (IMO Convention), adopted by the United Nations Maritime Conference at Geneva on 6 March 1948,3 and began its operations in 1959. Article 1 of the IMO Convention, which sets out the purposes of the Organization, establishes the global scope of IMO’s safety and antipollution activities. It also refers to other tasks such as the promotion of efficiency of navigation and the availability of shipping services based upon the freedom of shipping of all flags to take part in international trade without discrimination. Part XV of the IMO Convention deals with the relationship between the IMO, the United Nations and other international organizations. Thus Article 59 features IMO as the specialized agency within the UN system in the field of shipping and the effect of shipping on the marine environment. Articles 60 to 62 refer to cooperation between IMO and other specialized agencies, as well as governmental and non-governmental organizations, in matters of common concern and interests. The IMO work is carried out in close cooperation and co-ordination with the activity of the United Nations and of the other UN specialized agencies which may share some of the IMO’s objectives. To this end, the IMO has entered into agreements of co-operation with these bodies. Almost 50 treaties and hundreds of guidelines and codes have been adopted under the auspices of the IMO. These instruments are constantly refined and updated, and constitute the regulatory framework of international shipping. The vast majority of IMO treaties are in force, and several of them have a large, almost universal acceptance. Additionally, they cover almost all the world fleet tonnage to which they apply. Ongoing consultations with the United Nations over the years have assured that, ever since the adoption of UNCLOS, all IMO instruments conform to it. Today it is virtually impossible for a ship to sail, unless its flag State is party to the principal IMO conventions. The wide acceptance and uncontested legitimacy of the IMO’s universal mandate in accordance with international law is evidenced by the following: 1. At present, 164 sovereign States representing all regions of the world are Parties to the IMO Convention and accordingly Members of IMO. 2. All Members may participate at meetings of IMO bodies responsible for drafting and adopting recommendations containing safety and antipollution rules and standards. These rules and standards are normally adopted by consensus. 3. All States, irrespective of whether they are Members of IMO or of the United Nations, are invited to participate at IMO conferences in charge of adopting

3

The original name, ‘Inter-Governmental Maritime Consultative Organization’ (IMCO), was changed into the present name by Assembly Resolutions A.358(IX) and A.371(X), adopted in 1975 and 1977, respectively.

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new IMO conventions. All IMO treaty instruments have so far been adopted by consensus. The IMO governing bodies are the Assembly, which meets every two years and is open to participation by all Member States, and the Council, which meets every six months. The Council is the only elected body and has 40 Members.4 The technical and legal work of the Organization is carried out in committees and sub-committees, which are open to participation by all Members. Intergovernmental and non-governmental organizations, with specific competence and know-how, take active part in the work of the Organization. Committees meet at regular intervals, on average every six months. The main committees are the Maritime Safety Committee (MSC), the Marine Environment Protection Committee (MEPC), the Legal Committee (LC), the Facilitation Committee (FC) and the Technical Co-operation Committee (TCC). In order to be implemented, the treaties adopted by the IMO must be accepted by States and incorporated by them into their national legislation. From a legal perspective, it is then for the national administrations to make sure that ships flying their flags comply with the requirements contained in the IMO treaties and non-treaty instruments. Nonetheless, the IMO, by means of various techniques, actively encourages flag States to take the necessary implementing action. The IMO treaties can be broadly divided into three main groups: those concerning safety of navigation, those dealing with preventing and combating marine pollution, and those regulating liability and compensation issues and other legal matters. In more recent years, security has also been the focus of IMO treaties. 4.1.1. Safety Conventions Among the most important conventions adopted at IMO on safety and security of navigation are the International Convention for the Safety of Life at Sea (SOLAS 1974), which has been accepted by 155 States with a combined merchant fleet represent 98.52 per cent of the world tonnage (the International Ship and Port Facilities Security Code (ISPS) was adopted in 2002 as an integral part of SOLAS); the Load Lines Convention (LL 1966), which has been accepted by 155 countries, whose fleets represent 98.49% of the world tonnage; the International Regulations for the Prevention of Collisions at Sea (COLREG 1972), accepted

4

The following States are Members of the Council for the 2004–2005 biennium: Algeria, Argentina, Australia, Bahamas, Bangladesh, Brazil, Canada, Chile, China, Cyprus, Denmark, Egypt, France, Germany, Ghana, Greece, India, Indonesia, Italy, Japan, Malta, Mexico, Netherlands, Nigeria, Norway, Panama, Philippines, Poland, Portugal, Republic of Korea, Russian Federation, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Turkey, United Kingdom, United States and Venezuela.

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by 146 States with 97.60% of the world tonnage; the Convention on Standards of Training Certification and Watchkeeping for Seafarers (STCW 1978), with 149 States Party and 98.51% of the world tonnage; and the Convention on Maritime Search and Rescue (SAR 1979), which has been accepted by 83 countries with 52.05 % of the world tonnage. 4.1.2. Pollution Prevention Conventions The main anti-pollution conventions are: the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), which has been accepted by 130 States, whose fleets represent 97.07% of the world tonnage; the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters (London Convention 1972), which has been accepted by 81 States representing 69.85% of the world’s fleets; the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC 1990), which has been accepted by 85 States representing 63.85% of the world’s fleets; and the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention 1969), which has been accepted by 81 States representing 71.79% of the world’s fleets. In October 2001, the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (Anti-Fouling Convention) was adopted, which aims to fade out and ultimately prohibit the use of toxic anti-fouling paints containing organotins that are harmful to aquatic life. In February 2004, the Convention for the Control and Management of Ships’ Ballast Water and Sediments was adopted. The aim of this treaty is to prevent and ultimately eliminate the potentially devastating effects of the spread of harmful aquatic organisms carried by ships’ ballast water, thus safeguarding the biodiversity of the oceans. This is the treaty that is the very subject of the present book. 4.1.3. Legal Treaties While much of the IMO’s work concentrates on technical measures to prevent accidents, the Organization also deals with the issue of compensating those who are victims of accidents at sea. It is a fact that, in spite of the technological innovations in safety of ships and prevention of pollution and of constant improvement in the training of maritime personnel, incidents at sea are still bound to happen. Incidents involving ships carrying oil and causing pollution of the sea are among the best known to the general public. Internationally, their consequences are governed by a regime comprising two IMO treaties: the 1992 Civil Liability Convention for Oil Pollution Damage (CLC), and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention). Together, these two treaties constitute a system for sharing the cost of liability for oil pollution damage between shipowners and cargo owners.

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This unique system of liability and compensation has been working effectively for almost three decades. Over the years, it has evolved in light of the experience gained from the incidents and in order to respond to the changing perception of society vis-à-vis the consequences of oil spills. One hundred and seven States are parties to the CLC (93.61% of the world’s fleets) and 93 States are parties to the Fund Convention (88.40% of the world’s fleets). Since 1 November 2003, the total amount of compensation under the two conventions has become 203 million SDR for each incident (US$ 306 million5). In May 2003 a Protocol was adopted establishing a Supplementary Fund that will make available additional compensation to victims of oil pollution damage in the State Parties to the Fund Convention that accept it. With its entry into force on 3 March 2005, the total amount available for compensation for each incident in State Parties became 750 million SDR (US$ 1,132 million). Liability and compensation for dangerous goods other than oil carried on board ships is dealt with in the 1996 International Convention on Liability and compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS). This convention is based on a two-tier system similar to that established under the CLC and Fund Convention and, as does the CLC, requires compulsory insurance for the shipowner. However, the treaty also covers fire and explosion, including loss of life and personal injury, as well as loss or damage to property caused by pollution. Once in force, the treaty will make it possible for up to 250 million SDR (US$ 377 million) to be paid out in compensation to victims of accidents involving all kinds of hazardous and noxious substances, such as chemicals and liquefied gases. These materials are defined by reference to lists of substances which are contained in various IMO conventions and codes. The International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers 2001) covers pollution damage from ships’ fuel oil in the territory, the territorial sea and the exclusive economic zone. It is modelled on the CLC described above and requires the registered owner of a ship to maintain compulsory insurance cover. Claims for compensation can be brought directly against the insurer. The treaty will apply to ships over 1,000 gross tonnage and will enter into force one year after the date on which 18 States, including five States with ships whose combined gross tonnage is not less than one million gross tonnage, have deposited their instruments of acceptance. Once the Bunkers and the HNS conventions enter into force, a complete international liability and compensation regime for all types of damage caused at sea will be in place.

5

The SDR (Special Drawing Right) has been converted at the exchange rate applicable on 11 April 2005.

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Other important legal treaties in the field of liability and compensation for damage at sea are the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC) and the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (PAL). IMO legal treaties also include the International Convention on Salvage, 1989 (Salvage), the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 (SUA) and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988 (SUA PROT 1988). Both SUA and the Protocol were substantially amended by IMO’s Legal Committee following the events of 11 September 2001. The amendments were considered and adopted by an international legal conference convened by IMO from 10 to 14 October 2005. 4.1.4. Adopting a Convention IMO has six main bodies concerned with the preparation, adoption and implementation of conventions. These are: the Assembly, the Council, the Maritime Safety Committee, the Marine Environment Protection Committee, the Legal Committee and the Facilitation Committee. Developments in shipping and other related industries are discussed by Member States in these bodies, and the need for a new convention or amendments to existing conventions can be raised in any of them. Normally the suggestion is first made in one of the committees, since these meet more frequently than the governing bodies. If agreement is reached in the committee, the proposal goes to the Council and, as necessary, to the Assembly. If the governing body considers that there is a compelling need to develop a new treaty (or to amend an existing one), it authorizes the competent committee to proceed with the work. The committee concerned then studies the matter in greater detail and ultimately draws up a draft instrument. Often the subject is referred for detailed consideration to a specialized sub-committee. Work in the committees and sub-committees is undertaken by the representatives of Member States of the Organization. The views and advice of intergovernmental and international non-governmental organizations which have consultative status with IMO are also kept in due consideration. Once the draft instrument has been agreed upon, and the competent committee has reached the conclusion that the draft instrument has good prospects both for adoption by an international conference and subsequent implementation by States, it is then submitted to the Council and the Assembly with a recommendation that a conference be convened to consider the draft for formal adoption. Invitations to attend such a conference are sent to all IMO Member States and also to all States which are members of the United Nations, or any of its specialized agencies. These conferences are therefore truly global conferences open to all governments who would normally participate in a UN conference. All governments participate on an equal footing and each of them has one vote. In addition, organizations of the UN

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system and organizations with consultative status in the IMO are invited to send observers to the conference to assist governments in their deliberations. The draft treaty is circulated to governments and organizations for comments, usually six months before the date of the conference, together with the comments thereon from governments and interested organizations. The last necessary changes are agreed at the conference, in order to produce a draft acceptable to all, or the majority of the governments present. The convention thus agreed upon is then adopted by the conference and deposited with the IMO SecretaryGeneral who transmits certified copies to governments. The convention is then opened for signature by States, usually for a period of 12 months. Signatories may ratify, accept or approve the convention, while non-signatories may accede. 4.1.5. Entry into Force In order to enter into force—that is, before it becomes binding upon governments that have ratified it—a treaty must be accepted formally by a certain number of individual governments. Each convention includes the conditions that are to be met before it enters into force. In general, the more complex the treaty is, the stricter the conditions for its entry into force.6 When the conditions have been fulfilled, and after a period of grace intended to enable all the States to take the necessary measures for implementation, the treaty enters into force for the States which have accepted it. At present IMO conventions enter into force within an average of five years after adoption. The majority of the IMO treaty instruments are in force or are on the verge of fulfilling requirements for entry into force. It is hoped that the conditions for the entry into force of the BWM Convention will be met in the near future.

4.2. The IMO Resolutions Binding or non-binding documents? This is the question. 4.2.1. Introduction Since the 1960s, the codification of international maritime law has been achieved under the aegis of IMO by way of resolutions, codes, standards, protocols and treaties.7 We can classify IMO instruments establishing standards for world shipping

6

7

The BWM Convention will enter into force twelve months after the date on which not less than thirty States, whose merchant fleets constitute not less than 35 per cent of the gross tonnage of the world’s merchant shipping, have accepted it. Louise La Fayette, “The Marine Environment Protection Committee: The conjunction of the law of the sea and international environmental law,” International Journal of Marine and Coastal Law 16(2) (2001): 155–238.

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into two categories: (i) technical standards and procedures on construction and operation of ships, and (ii) uniform rules and procedures regarding legal issues, which can take the form of conventions or other binding treaty instruments incorporating technical regulations, and non-binding instruments regarded by IMO as of equal importance for States to incorporate into their national legislation.8 The various terminology adopted in these instruments makes it difficult to distinguish soft law from hard law. Moreover, even such references are complex. The term soft law expresses a contradictio in adjecto. The so-called soft law is not law inasmuch as law presupposes enforcement. Soft law is not in itself legally binding. Indeed, the expression soft law is used in reference to any international instrument other than a treaty that contains principles, norms, standards, or other statements of expected behaviour. It is generally understood that soft law creates and defines goals to be achieved in the future rather than actual duties, establishes programmes rather than prescriptions, and offers guidelines and recommendations rather than strict obligations. Furthermore, the term hard law is redundant, since all laws are hard, i.e. legally binding. As Birnie notes, [T]he language of “regulations” and “codes” etc. can refer to either aim; one has to look at an instrument’s substance, intention and effect in each case. The increasingly misleading nature of the term “soft law” has already been indicated, and as the literature reveals, it is an amorphous conglomeration of instruments some [of ] which are non-binding, some binding in parts because they may include elements of customary law or provisions which may in time crystallize into custom, some never intended to be binding but merely to provide guidance or set goals.9

Accordingly, reference to the IMO resolutions on ballast water as soft law10 instruments does not necessarily mean that all rules therein are non-binding, i.e., the customary rules expressed in such resolutions have binding legal effect. The so-called ‘soft resolutions’ may adopt guidelines incorporating customary provisions. Resolutions of international organizations provide the legal background to create or crystallize customary law, advancing the codification of international law. Furthermore, when the IMO resolutions on ballast water are voluntarily

8

9 10

Patricia Birnie, “The status of environmental ‘soft–law’: Trends and examples with special focus on IMO norms,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Rigbom, ed. (The Hague: Kluwer Law International, 1997), 44–45. Ibid. Dupuy argues ‘soft law is a paradoxical term for defining an ambiguous phenomenon. Paradoxical because, from a general and classical point of view, the rule of law is usually considered “hard”, i.e., compulsory, or it simply does not exist. Ambiguous because the reality thus designated,

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adopted by port, coastal and flag States through national laws, they have binding effect with respect to the behaviour of that State on the control and management of ships’ ballast water. From this perspective, can the coastal State impose the obligations set out in the voluntary guidelines on foreign flag vessels, affecting other international obligations on the matter? For example, do the provisions in IMO Resolution A.868(20) for the control and management of ships’ ballast water, voluntarily and unilaterally adopted by the coastal State, legally bind the flag State in the waters and jurisdiction of the coastal State even if they are contrary to UNCLOS? Can the IMO resolutions on ballast water be considered a source of international law? These reflections open Pandora’s Box regarding the legal nature of the IMO resolutions on the control and management of ships’ ballast water. To answer these questions, this section reviews the sources of international law.11 The concern about the binding legal effect of the resolutions of international organizations is relatively recent. In fact, the slow rate at which international rules are implemented through the familiar sources of international law is, in some cases, incompatible with a world experiencing deeply and accelerated change. This changing environment requires the ability to swiftly draft international rules adopting precise technical-scientific criteria. This is particularly pertinent to shipping12 and marine environmental issues. This section concludes with a review of the provisions of IMO resolutions dealing with the control and management of ships’ ballast water and their legal implications for port, coastal and flag States.

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considering its legal effects as well as its manifestations, is often difficult to identify clearly, but a new process of normative creation does exist and soft law certainly constitutes part of the contemporary law-making process but as a social phenomenon it evidently overflows the classical and familiar legal categories by which scholars usually describe and explain both the creation and the legal authority of international norms. In other words soft law is a troublemaker because it is either not yet or not only law’. Dupuy and Vignes, Chapter 3, supra note 2, 420. Dinah Shelton, “International law and ‘relative normativity’,” in International Law, Malcolm D. Evans, ed. (Oxford: Oxford University Press, 2006). Ringbom notes, ‘there are several arguments speaking for attaching a certain legal weight to these soft law resolutions: it is a sign of what a majority of States consider to be the standard and are thereby of importance of the interpretation of effective law; shipping has a long tradition of following rules which do not exist in form of convention; soft law is often the common way of regulating details, while the conventions draw up the main guidelines and IMO increasingly often seems to favor soft law rather than conventions for purely practical reasons’. Henrik Ringbom, Environmental Protection and Shipping, Prescriptive Coastal State Jurisdiction in the 1990’s, Marius No. 224 (Oslo: Nordisk Institutt for Sjørett, 1996), 42–43.

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4.2.2. Juridical Nature of Resolutions of International Organizations Traditional public international law usually only refers to the sources of international law addressed in Article 38 of the Statute of the International Court of Justice (ICJ), which considers treaties and custom the principal formal sources of international law.13 This classical approach does not include the resolutions of international organizations in the law-making process. However, legal scholars14 and the ICJ are increasingly concerned about the relevance of such instruments, particularly those issued by the UN General Assembly.15 Accordingly, the resolutions of international organizations are considered admissible sources of international law under certain conditions and circumstances. For example, Knight and Chiu argue that several […] constitutions of charters of international organizations confer power on those organizations to impose binding obligations on their members by resolutions, usually by qualified majorities. Such obligations derive their authority from the international agreement constituting the organization, and resolutions so adopted by organization can be seen as “secondary sources” of international law for its members.16

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See Blishchenco et al., Chapter 2, supra note 95, 14–18; P. A. Higgins and C. A, Colombos, The International Law of the Sea, 2nd edition (London: Longmans, 1945), 7; Oppenheim, Chapter 3, supra note 2, 23–35. See Birnie and Boyle, Chapter 2, supra note 48, 19–20; Jean Cambacau and Serge Sur, Droit International Public, 4th edition (Paris: Montchrestien, 1999), 101; Edvard Hambro, “Some notes on the development of the sources of international law,” Scandinavian Studies in Law 17 (1973), 92; Laurent Lucchini and Michel Voelckel, Droit de La Mer (Paris: Pedone, 1990), 63; Shelton, supra note 11, 169. Thirlway argues: ‘Many resolutions of the UN General Assembly are convenient material sources of law, inasmuch as they state, with apparent authority, propositions of general law, and are often assented to by a very large majority of the Members, and thus of the States of the World. It is therefore tempting to confer on them also the authority of a formal source of law, to look no further than the resolution itself in order to assert the binding quality of the rule enunciated. This is particularly so when it is difficult to discern a consistent practice of States in application of those rules, adequate to permit the conclusion that a customary rule exists.” Hugh Thirlway, “The sources of international law,” in International Law, Malcolm D. Evans, ed. (Oxford: Oxford University Press, 2006), 141. See Gary Knight and Hungdah Chiu, The International Law of the Sea: Cases, Documents and Readings (London: Elsevier Applied Science, 1991), 35; Cançado Trindade, O Direito Internacional em um Mundo em Transformação (Rio de Janeiro: Renovar, 2002), 75; Vicente Marotta and Hugo Caminos, “Sources of the law of the sea,” in Dupuy and Vignes, Chapter 3, supra note 2, 34–36; Krysztof Skubizewski, “A new source of the law of the nations: Resolutions of international organizations,” in Recueil D’Etudes de Droit International en Homage à Paul Guggenheim, Faculté de Droit de l’Université de Genève (Geneva: Institut Universitaire des Haute Études Internationales, 1968), 508–520.

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From this perspective, Article 38 cannot be considered an exhaustive statement on the sources of international law.17 Thirlway suggests: For example, let us suppose that the resolutions of the UN General Assembly have become a new source of international law. How would one set about proving that this so? Presumably, by showing that in their relations with each other States asserted rules stated in such resolutions, and accepted such rules as binding when asserted against them. This would however amount to saying that an international custom had arisen whereby such resolutions created binding international law. It would follow, either that a new source (resolutions) had arisen through the operation of an existing source (custom); or, perhaps more accurately, that the scope of custom as a source had become widened to include resolutions. On the latter view, a resolution would be (as it is now) a material source of law, but the formal source would be custom.18

Although academic controversies on the issue remain, the resolutions of international organizations may be regarded as a key element in the development of international law, in particular with respect to safety and security of the seas. The most realistic option is to revisit the international society behaviour on the issue and how it has been operated to regulating biopollution of the marine environment from ship’s ballast water. 4.2.3. Juridical Nature of the IMO Resolutions on Ballast Water The IMO/MEPC resolutions on control and management of ships’ ballast water provide the legal background to crystallize existing customary rules and/or create new customary law on the issue. Although they cannot be characterized as a new, independent, formal source of international law, this does not mean that the IMO resolutions on ballast water are completely lacking in their juridical impact on the development of the legal regime to prevent and control biopollution of the marine environment. In fact, such resolutions have indirect limited juridical effect. They are an immediate source of international maritime law, and an international custom should arise whereby such resolutions create binding international rules. Accordingly, State practice in compliance with the rules provided by the IMO resolutions on ballast water may be considered the objective element of customary law.19 The voluntary adoption of the Resolution A.868(20) by the port/coastal

17

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‘There may come a time when the collective actions of international community within the framework provided by international organizations will acquire the character of a separate source of law […]. Furthermore, the legal significance of a resolution may also be considered in relation to the development of customary law, in particular whether it is declaratory of existing law or a contribution to creation of new law’. R. Jennings and A. Watts, Oppenheims’s International Law, 9th edition (Harlow, Essex: Longman, 1992), 45; J. G. Starke, Introduction to International Law (London: Butterworths, 1989), 51–57; 624–625. Thirlway, supra note 15, 138. See Chapter 3, Section 2, of this book.

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and flag States through national laws and regulations may be regarded as the subjective element of customary law, i.e. the opinio juris which transforms State practice into binding rules. Numerous cases, codes and guidelines, initially addressed in non-mandatory IMO resolutions, have been incorporated into IMO treaties. For example, the preamble to the BWM Convention refers to the 1997 IMO Assembly Resolution A.868(20), which laid the foundation for the rapid implementation of such convention. Furthermore, the IMO resolutions on ballast water are essential instruments for the development of international law to prevent biopollution of the marine environment. Since the 1980s, e.g., the Ballast Water Management Plan (BWMP) approach adopted under the IMO guidelines on ballast water has been revised and updated on the basis of scientific and technological advances to enhance ecological risk minimisation procedures for ballast water. Resolution A. 868(20) encourages States to address the issue on the basis of internationally agreed practices that search for marine ecological protection vis-à-vis ships and human safety. Although the guidelines in the resolution are not binding per se, the voluntary adoption of such recommendations in conjunction with the State practices adopted on the basis of the provisions therein serve as legal background to the emergence of customary law on the control and management of ships’ ballast water. 4.2.4. The IMO Resolutions on Ballast Water and National Law Since the 1990s, the IMO resolutions on ballast water voluntarily adopted by States through national laws and regulations have influenced the behaviour of the port/coastal and flag States on the control and management of ships’ ballast water. In this respect, the IMO resolutions are sometimes called voluntary guidelines. Several countries have adopted a standardized approach based on IMO Assembly Resolution A.868(20). The preamble to the BWM Convention acknowledges that […] several States have taken individual action with a view to prevent, minimize and ultimately eliminate the risks of introduction of Harmful Aquatic Organisms and Pathogens through ships entering their ports, and also that this issue, being of worldwide concern, demands action based on globally applicable regulations together with guidelines for their effective implementation and uniform interpretation.

National legislation implementing recommendations can be applied with binding character to foreign ships because the resolutions of IMO are normally adopted by consensus and accordingly reflect global agreement by all IMO Member States. However, the countries that adopt such rules in their national laws cannot impose some aspects of the guidelines’ obligations on foreign flag vessels to the extent that they affect other international obligations. As McConnell notes,

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[F]iling a ballast water report form is not required under the FAL20 Convention, nor does the STCW21 require that the crew be specifically trained regarding the Guidelines issues in order to be certified. However, the text of the Guidelines clearly recognizes the existence of national legislation mandating fees, use of alternative ballast exchange zones and reporting requirements. The text of the Resolution also recognizes the obligations of States under the 1992 CBD, and Agenda 21 and the need to adopt a precautionary approach.22

In fact, to minimize such problems, States should take into account existing obligations addressed in treaties previously ratified, before voluntarily adopting the IMO guidelines. Accordingly, a national legislative review is the first step for States that intend to adopt Resolution A.868(20) and to implement the BWM Convention.23 Australia was one of the first countries to seek international action on this issue through IMO and implemented these guidelines in 1990. The Australian Ballast Water Management Requirements have been in place since July 2001.24 Under Canadian law, the Canadian Ballast Water Management Guidelines, as amended 8 June 2001, are explicitly intended to implement the IMO guidelines, with regional annexes setting out additional specific requirements.25 In Brazil, ballast water reporting and inspection requirements were already in place under a sanitary law that requires ships on national or international voyages to file a Ballast Water Information Form (BWIF) essentially based on the IMO guidelines.26 For China, under the frontier quarantine law, the sanitary authority is required to apply sanitary supervision to both inbound and outbound vessels, including supervision of ballast water management. The quarantine authority can require ships to file a ballast water report form (BWRF) that is similar to the IMO guidelines’ BWRF.27 In the Ukraine, orders have been issued that require harbour masters of merchant shipping ports to gather data on ships’ water ballast in accordance with the standard IMO BWRF.28 Since the 1990s, comparative legal analysis of the BWRF reveals the influence of Resolution A.868(20) on national laws prior to adoption of the 2004 BWM Convention.

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22 23 24 25 26 27 28

Convention on the Facilitation of International Maritime Traffic, London, 1 April 1965, 591 UNTS 265; 4 ILM 501, as amended to 2001. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, London, 7 July 1978, 1361 UNTS 2, as amended in 1995 and 1997. McConnell, Chapter 1, supra note 2, 11. See Chapter 5 of this book. Ibid., 71. Ibid., 73. See Chapter 5 of this book. McConnell, Chapter 1, supra note 2, 52. Ibid., 66.

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4.2.5. The Evolution of the IMO Resolutions on Ballast Water IMO’s initial focus on vessel-source pollution referred to oil and other substances. Anti-biopollution measures associated with ballast water have developed slowly. The first IMO document addressing biopollution of the marine environment was Resolution 18,29 adopted by the 1973 International Conference on Marine Pollution (1973 Conference). This conference addressed all significant sources of pollution of the marine environment and, in particular, called for the complete elimination of deliberate pollution by oil from ships. Initially, the IMO concern was on the spread of epidemic diseases through ballast water containing bacteria, an international health problem. The 1973 Conference requested that the World Health Organization (WHO), in collaboration with the Inter-Governmental Maritime Consultative Organization (IMCO), initiate cooperative research on the issue. In the late 1980s and early 1990s, several IMO Member States presented case studies on the ballast water issue, and asked MEPC30 to establish international rules on ships’ ballast water and sediment biopollution.31 In 1981, non-binding rules with respect to specifications for oil tankers with dedicated clean ballast tanks were set out in Resolution A.495(XII) with reference to Annex I of MARPOL 73/78. In 1991, Resolution MEPC 50(31) adopted Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ship’s Ballast Water and Sediments Discharges, which were originally drafted by Canada. Further information from Australia led to a revision of the 1991 Guidelines and the adoption in 1993 of IMO Assembly Resolution A.774(18) which endorsed without restrictions the guidelines set out in Resolution MEPC 50(31).32 Adopting the guidelines as an Assembly resolution gave them more weight than as an MEPC resolution. Indeed, this is normal IMO procedure as the Assembly has the overall competence to recommend to Member States the adoption of guidelines concerning, inter alia, the prevention and control of biopollution of the marine environment from ships. Following international community recognition that harmful aquatic organism and pathogen transfer in ships’ ballast water was an ecological problem, States 29

30 31

32

IMCO Resolution 18, Research into the effect of discharge of ballast water containing bacteria of epidemic diseases, MP/CONF/WP.29, 31 October 1973, 24. Resolution MEPC 50 (31) (MEPC 31/21, Annex 16), 3. McConnell notes that Canada and Australia were two of the first countries to research and draft surveys on species transfer. In 1988, Canada presented a Report on The Presence and Implication of Foreign Organisms in Ship Ballast Water Discharges in the Great Lakes, MEPC 26/4. McConnell, Chapter 1, supra note 2, 1. “Alien invaders,” Chapter 2, supra note 9, 4; La Fayette, supra note 7, 175.

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operated under the current international environmental law, in particular, Agenda 21,33 the principles set out in the 1992 Rio Declaration and the imperative for sustainable development. Accordingly, the IMO resolutions on ballast water were influenced by their ecological principles and were based on ‘precautionary, preventive and cooperative risk minimisation practices to accommodate concerns about ecological protection and ships and human safety, with primacy in all cases given to ship and human safety’.34 In 1995, the World Wide Fund for Nature (WWF) submitted a document to the 37th Session of MEPC on the precautionary approach with respect to the use of TBT (tributylin) as an anti-fouling agent on ships.35 Resolution MEPC 67(37) (1995) adopted Guidelines on the Incorporation of the Precautionary Approach in the Context of Specifics IMO Activities.36 These guidelines provide IMO with a powerful tool to minimize and/or eliminate the biopollution of the marine environment from shipping activities. The core of the guidelines is the implementation of proactive measures with respect to the protection of the oceans, which is further addressed in the preamble to the BWM Convention. Finally, in 1997, the IMO Assembly adopted Resolution A.868(20) providing Guidelines for the Control and Management of Ships’ Ballast Water to Minimise the Transfer of Harmful Aquatic Organisms and Pathogens, which revised the earlier guidelines. These guidelines formally adopt a risk minimisation management approach to the problem. The teleology of this resolution is consistent with the provisions of UNCLOS37 and Agenda 21. The guidelines assert that port, coastal and flag States must apply the precautionary approach according to their capabilities. A synopsis and analysis of the three primary IMO resolutions relating to ballast water and sediment discharge management is provided below. The precautionary approach, particularly as adopted in IMO Assembly Resolutions A.774(18) and A.868(20), is reviewed as it pertains to flag, coastal and port States.

33

34 35

36 37

Agenda 21, Chapter 17, paragraph 17.30(a) (vi), which calls upon States to consider the adoption of appropriate rules on ballast water discharge to prevent the spread of non-indigenous organisms. Agenda 21, Chapter 2, supra note 26. McConnell, Chapter 1, supra note 2, 92. This case takes into account the 1992 Rio Declaration which prescribes a precautionary approach for all activities that have a potentially adverse impact on the environment. States and international decision makers are called upon to incorporate precautionary action on a wide basis. MEPC 37/10/7, 16 June 1995, Agenda item 10 – Follow-up Action to UNCED. MEPC 37/22/Add.1. See Chapter 3, Section 3, of this book.

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4.2.6. Resolution 18, Research into the Effect of Discharge of Ballast Water Containing Bacteria of Epidemic Diseases (31 October 1973) The Conference, Noting that ballast water taken in waters which may contain bacteria of epidemic diseases may, when discharged into the sea in another location, cause a danger of spreading of the epidemic diseases to other countries, Request the World Health Organization, in collaboration with the Inter-Governmental Maritime Consultative Organization, to initiate studies to that problem on the basis of any evidence and of proposals which may be submitted by any Government.38

In 1971, IMCO Assembly Resolution A.237(VII) called for ‘the complete elimination of the wilful and intentional pollution of the seas by oil and harmful substances other than oil and the minimization of accidental spillages’. Recommendation 86 of the 1972 United Nations Conference on the Human Environment called upon States ‘to bringing all significant sources of pollution within the marine environment under appropriate controls’. These measures set the stage for the 1973 Conference to adopt Resolution 18, providing the link between ships’ ballast water management and bacteria of epidemic diseases. Thus the interconnection between maritime law and sanitary law was established. This was advanced through the 1991 Resolution MEPC 50(31), 1993 IMO Assembly Resolution A.774(18) and 1997 IMO Resolution A.868(20). Although Resolution 18 did not expressly mention the term ‘environment’, principles consistent with the 1972 Stockholm Declaration were addressed therein, namely prohibition of transboundary pollution, international organization cooperation and scientific research. With regard to the prohibition of transboundary pollution, Resolution 18 acknowledges the States’ responsibility to ensure that activities within their jurisdiction or control do not cause damage to the seas of other States or areas beyond the limits of national jurisdiction. This general obligation is addressed to port/ coastal and flag States. Under Resolution 18, both WHO39 and IMCO40 were called on to collaborate with the development of studies on the danger of the spread of epidemic diseases 38 39

40

MP/CONF/WP.29, 31 October 1973, 24. WHO aims for all peoples to attain the highest possible level of health and has an strong interest in controlling the environmental factors that affect human health. The health of the environment, specifically the health of the oceans, relates to its target. See Revision of the International Health Regulations, A58/55, 23 May 2005. IMO, then IMCO, is implicitly recognized as the competent international organization concerning offsetting rules and standards for the protection of the marine environment from vessels pollution and for maintaining safety of navigation. IMO is the main forum for the preparation of the new international legal regime on ballast water pollution.

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through the discharge of ships’ ballast water. The globalization of this problem requires national implementation of standards focused on the prevention or minimization of the effects of biopollution on the marine environment. The resolution noted that international organizations are an essential forum for cooperation in regard to environmental policy-making. Likewise it recognized the high level of technical-scientific knowledge of biopollution and the effects thereof on the marine environment required to draft technical and legal standards for the control and management of ships’ ballast water and sediments. 4.2.7. IMO Assembly Resolution A.774(18), Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships’ Ballast Water and Sediments Discharges (4 November 1993) In 1991, Resolution MEPC 50(31) adopted guidelines on the introduction of unwanted aquatic organisms and pathogens from ships’ ballast water and sediment discharges. The 1993 IMO Assembly Resolution A.774(18) fully endorsed the guidelines. The IMO resolution recognizes that many species of bacteria, plants and animals can survive in a viable form in the ballast water and sediment carried in ships, even after a journey of several weeks duration. Resolution A.774(18) points out that ‘the introduction of diseases may also arise as a result of port State waters being inoculated with large quantities of ballast water containing viruses or bacteria, thereby posing health threats to indigenous human, animal and plant life’. Resolution A.774(18) recognizes that the discharge of ballast water and sediment causes ecological instability41 by leading to unplanned and unwanted introductions of harmful aquatic organisms, disease bacteria and viruses that are known to harm public health and property and the environment. Further, the issue has global implications and, consequently, there is the imperative for international cooperation to solve the problem equitably and responsibly. International cooperative measures can be safely used to minimize the probability that harmful aquatic organisms are transported between geographic areas by way of ships’ ballast water or sediment.42 The resolution goes on to note the rights and obligations of the port/coastal and flag States vis-à-vis discharge procedures and to recognize the principle of prohibition of transboundary pollution.43 Governments have the right to impose ballast water and sediment discharge measures to protect their waters from harmful organisms carried in ship’s ballast water and sediments. At the same time, States are obliged to

41 42 43

Preamble, IMO Resolution A.774 (18), Chapter 1, supra note 7. Ibid. Ibid.

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ensure that ballast water loaded in their ports does not contain harmful aquatic organisms that pose a threat to the waters of other states. Finally, the resolution recommends the exchange of ballast water in deep ocean areas or open seas44 in the absence of more scientifically-based means of control of harmful aquatic organisms and pathogens. The guidelines adopted by Resolution A.774(18) encourage the port State to use appropriate ballast water management practices aimed at preventing or minimizing the uptake and discharge of contaminated water and sediment in ballasting and de-ballasting operations. States are required to develop and adopt training, education and ship management plan measures.45 Under these guidelines, and further guidelines adopted under Resolution A.868(20), ballast water exchange is considered an interim short-term solution eventually to be replaced or supplemented by more effective alternative methods. The appendix to Resolution A.774(18) provides a ballast water report form (BWRF) that is to be completed by the ship’s Master prior to arrival in port and provided to the port State Authority upon request. Resolution A.774(18) applies to all ships, although the port State determines the extent to which the guidelines apply.46 It recognizes that ballast water discharge from ships appears to have been the most prominent medium for transferring organisms between geographically separated water bodies.47 The guidelines provide administrative concepts for both port and flag States. The port State Authority is defined as ‘any official or organization authorized by the Government of a port State to administer guidelines or enforce standards and regulations relevant to the implementation of national and international shipping control measures’.48 Administration is defined as the ‘Government of the State under whose authority the ship is operating’.49 Although it does not expressly define biopollution, we can interpret the preamble and Guideline 4, paragraph 1, as defining biopollution as the ‘introduction into the marine ecosystem, by man, through ship’s ballast water and sediment discharges, of unwanted aquatic organisms and pathogens causing injury to public health and property, fisheries, aquaculture and to the environment generally’. The guidelines outlined in Resolution A.774(18) incorporate the teleology of the precautionary principle. They make recommendations with respect to the marine environment and suggest the following measures:

44 45 46 47 48 49

Ibid., Guideline 7. Ibid., Guideline 8. Ibid., Guideline 3. Ibid., Guideline 1. Ibid., Guideline 2. Ibid.

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a. Discharge procedures: Member States (port/coastal and flag States) should adopt ballast water and sediment discharge procedures to protect the health of citizens, to safeguard fisheries and to protect the environment.50 b. Quarantine laws: These procedures range from regulation based upon quarantine laws to guidelines providing suggested measures for controlling or reducing the problem.51 Such procedures should be based on practicable and effective technical measures.52 c. Notification: IMO Member States should notify IMO about specific requirements established53 and any local outbreaks of infectious diseases or water-borne organisms that have been identified as a cause of concern to health and environmental authorities in other countries.54 d. Information: The government of the State under whose authority the ship is operating and non-governmental shipping organizations should distribute information on ballast water and sediment discharge procedures being applied to shipping by port State Authorities.55 Further, they should inform IMO of research and development studies regarding the control of aquatic organisms and pathogens found in ships’ ballast water and sediment56 and on incidents where compliance with ballast water and sediment discharge procedures required by a port State has resulted in ship safety problems, unacceptably high costs or delays to ships.57 Member States should also provide IMO with details of annual compliance records for ballast water and sediment discharge procedures that they apply.58 e. Sensitive areas: Ballast water and sediment discharge procedures should take into account the environmental sensitivity of these areas determined by IMO Member States.59 In 1994, MEPC sent IMO Member States a Circular Letter in regard to the Application of IMO Resolution A.774(18) on Ballast Water Management.60 In the 50 51 52 53 54 55 56 57 58 59 60

Ibid., Guideline 4. Ibid., Guideline 4, paragraph 2. Ibid., Guideline 4, paragraph. 3. Ibid., Guideline 5, paragraph 1. Ibid., Guideline 5, paragraph 7. Ibid., Guideline 5, paragraph 2. Ibid., Guideline 5, paragraph 4. Ibid., Guideline 5, paragraph 5. Ibid., Guideline 5, paragraph 6. Ibid., Guideline 8. Furthermore, the IMO Assembly required MPEC and MSC ‘to keep the ballast water issue and the application of the Guidelines under review with a view to further developing the Guidelines as a basis for a new Annex to MARPOL 73/78’. Under Resolution A.774 (18) the Ballast Water Convention was still at the stage of being included as a new Annex to MARPOL 73/78. See MEPC 36/WP.4, 2 November 1994.

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letter, MEPC ‘reiterates the global importance of this issue and reconfirms the necessity expressed by the IMO Assembly in 1993 for all governments to apply the Guidelines as adopted by the Assembly’.61 Nevertheless, MEPC recognized that the existing guidelines did not completely resolve the problem and expressly noted the need to develop improved ballast water management and treatment options, in addition to those provided in the existing guidelines. Since 1995, several other practical initiatives on ballast water treatment have been completed. The objective of these projects is the testing of the effectiveness, environmental soundness and practicability of treatment options on board vessels. The treatment options considered include ballast water exchange, filtration, hydrociclone, heat treatment, coagulation/flocculation, pH adjustment, chemical treatment (ozone, glutaraldehyde, oxygen deprivation, hydrogen peroxide based formulations and chlorine), cavitation, ultraviolet light,62 and more advanced techniques for ballast water exchange at sea. No single or simple universal solution presently exists for shipboard treatment or management to prevent the transfer of viable non-native organisms in ballast water.63 Unquestionably, this complexity underlies ballast water’s technical-scientific Pandora’s Box. The scientific uncertainties that invoke the precautionary principle, in addition to their high implementation cost, suggest that technical effectiveness of the various treatment options and cost effectiveness will play an important role in the selection and long-term viability of a particular ballast water treatment option. 4.2.8. IMO Assembly Resolution A.868(20), Guidelines for the Control and Management Ship’s Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens (27 November 1997) IMO Assembly Resolution A.868(20) acknowledges that the discharge of ballast water and sediments into the waters of port States may result in the establishment of harmful aquatic organisms and pathogens that pose a threat to indigenous human, animal and plant life, and to the marine environment. Through this resolution the IMO Assembly seeks to encourage States to address this issue based on appropriate methods of risk minimization in light of scientific and technological advances and consistent with the precautionary approach to environmental protection.

61 62

63

Ibid. See Alan Taylor et al., “Preventive treatment and control techniques for ballast water,” in Invasive Species Aquatic Species of Europe. Distribution, Impacts, and Management, Erkki Leppäkoski, Stephan Gollasch, and Sergej Olenin, eds (Dordrecht: Kluwer Academic Publisher, 2003), 84–507; GloBallast Programme, “Treatment Technology”, available online at http://globallast.imo.org. Ibid.

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The guidelines adopted by Resolution A.868(20) apply to all ships of IMO Member States and are addressed to flag State administrations, port State government authorities authorized to administer the guidelines, and presumably, the coastal State. However, the port State determines the extent of application, i.e. it can exempt ships from a part, or the whole, of the provisions of the guidelines in areas within their jurisdiction. Nevertheless, any State wishing to apply restrictions to ballast water operations should still follow these guidelines when adopting legislation or creating procedures.64 Under Resolution A.868(20), States under whose authority the ship is operating are encouraged to maintain and exchange information through the IMO in regard to severe outbreaks or infestations of harmful aquatic organisms that may threaten the marine ecosystem, fees, domestic laws and regulations, alternative exchange zones, reception facilities and contingency plans, technical research, and ballast water and sediment management and treatment requirements being applied to shipping.65 With respect to the application of precautionary practices, port States should inform local agents and/or ships about areas and situations where the uptake of ballast water should be minimized.66 Resolution A. 868(20) requires ships that carry ballast water to develop a Ballast Water Management Plan (BWMP) to assist in minimizing transfer of harmful aquatic organisms and pathogens. The BWMP is the key instrument in this regard. The BWMP should be specific to each ship and include, inter alia, (a) the guidelines, (b) approval documentation relevant to treatment equipment, and (c) an indication of records required and the location of possible sampling points.67 Further, the guidelines oblige the ship’s Master to assist with port State monitoring of ballast water by providing the ship’s plan, records pertaining to ballast arrangements and details concerning the location of sampling points.68 The guidelines require flag States to ensure training for ships’ Masters and crews on ballast water and sediment management, including record keeping. Such training should include the application of the most recent procedures in regard to the control and management of ballast water in order to minimise the introduction of harmful aquatic organisms and pathogens in the marine environment. Under the guidelines, technical precautionary procedures should be followed by the flag State. Accordingly, care should be taken to avoid unnecessary discharge 64

65 66 67 68

IMO Assembly Resolution A.868(20), Guidelines for the Control and Management Ship’s Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens (27 November 1997), Guidelines 3 and 4, paragraph 2. Ibid., Guideline 5. Ibid., Guideline 8, paragraph 2(2). Ibid., Guidelines 7 and 8, paragraph 1(4). Ibid., Guideline 11, paragraph 11.

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of ballast water.69 Precautionary practices should be included in an approved BWMP with respect to loading ballast water and cleaning ballast tanks. The uptake of ballast water should be minimized or avoided in areas identified by the port State, in very shallow water, and in darkness when bottom-dwelling organisms may rise up in the water column.70 Routine cleaning of ballast tanks to remove sediments, if possible, should be carried out in mid-ocean or under controlled arrangements in port or dry dock.71 In considering the precautionary principle, Appendix 2 provides: [I]n the absence of a more conclusive scientifically criteria based means of control, exchange of ballast water in deep ocean areas or open seas currently offers a means of limiting the probability that fresh water or coastal aquatic species will be transferred in ballast water.72

Ships should adopt one or more of the following options to manage ballast water: mid-ocean exchange outside coastal waters (usually outside 200 nm) using either a sequential or flow through method; where practicable, ships should conduct ballast exchange in deep water, in open ocean, and as far as possible from shore; if neither is viable, then exchange can occur in a designated zone or water can be discharged to a reception facility or other approved water treatment methods may be used.73 In the sequential method, ballast tanks are pumped out and refilled with clean water; in the flow-through method, ballast tanks are simultaneously filled and discharged by pumping in clear water.74 Any exchange procedure must take into account ship safety considerations set out in Appendix 2 to the resolution. Under Appendix 2, recommended safety precautions include, inter alia, records of ballasting and/or de-ballasting; avoidance of over and under-pressurization of ballast tanks; monitoring and controlling the amount of ballast water; avoidance of ballast water exchange in freezing conditions; and inclusion in the BWMP of a list of circumstances under which ballast water exchange should not be undertaken.75 The crew is required to be trained on these safety measures. The BWMP should also include the list of key shipboard control personnel undertaking ballast water exchange at sea, and ships’ officers should be trained on this matter.76

69 70 71 72 73 74 75 76

Ibid., Guideline 9, paragraph 1(3). Ibid., Guideline 9, paragraph 1(1). Ibid., Guideline 9, paragraph 1(2). Ibid., Appendix 2, Guideline 1, paragraph 3. Ibid., Guideline 9, paragraph 2. Ibid., Appendix 2, Guideline 1, paragraph 3. Ibid., Appendix 2, Guideline 2. Ibid., Appendix 2, Guideline 3.

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The precautionary practices set out in Guideline 9 with respect to the flag State’s obligations and in Appendix 2 are clear.77 However, it is impossible to provide specific guidelines for each type of ship at this time. As a result, ship owners are required to consider the many variables that apply to their ships, including type and size of ship, ballast tank configurations and associated pumping systems, trading routes and associated weather conditions, port State requirements, and manning. Port States should complement ships’ precautionary uptake practices by informing ships with respect to the requirements regarding ballast water management, location and terms of use of alternative exchange zones, areas with outbreaks of infestations or known populations of harmful organisms and pathogens, areas with phytoplankton blooms, nearby dredging operations, when a tidal stream is known to be more turbid, and areas where tidal flushing is known to be poor.78 These provisions follow from the free flow of information, a pillar of environmental law. In operational precautionary practices, port States shall consider the information in regard to the age of the ballast water, the ecological-environmental conditions of the port where ballast water uptake occurred, and the port of proposed discharge. Finally, port States should undertake biological baseline surveys in their ports and disseminate the results of their research and investigations.79 While the guidelines recognize the port and coastal States’ right to manage ballast water under national law, the State is still required to disclose the discharge restrictions and to notify IMO of any measure adopted.80 Enforcement and monitoring measures adopted by port States are subject to specific detailed conditions: a. Safety of ships: The port State should consider the overall effect of ballast water and sediment discharge procedures on the safety of ships and those on board. b. Effectiveness of the procedures: It is fundamental that ballast water and sediment management rules be effective, environmentally safe, minimize costs and delays to the ship, and be based as much as possible on the guidelines. c. Uniform and national enforcement or monitoring : Enforcement or monitoring activities should be applied in a fair, general uniform and consistent manner at all ports within the country. d. Sampling : Compliance monitoring should be undertaken by the port State by, for example, taking and analyzing ballast water and sediment samples to

77 78 79 80

‘Guidance on Safety Aspects of Ballast Water Exchange at Sea’. Ibid., Guidelines 8, paragraphs 2(1) and (2). Ibid., Guideline 10, paragraph 3(2). Ibid., Guideline 11, paragraph 2.

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test for the continued survival of harmful aquatic organisms and pathogens; sampling and analysis can be required before permitting a ship to discharge in environmentally sensitive areas.81 Under the guidelines, port States should provide reception and treatment facilities for environmentally safe disposal of tank sediments and water and ensure that the facilities are adequate.82 4.2.9. Conclusions Regarding the IMO Resolutions Since the 1970s, the IMO has adopted several resolutions on ships’ ballast water. Initially, the risk of alien invasive species transfer was addressed as a health problem. The initial IMO concern was the danger of spreading epidemic diseases to other countries through ships’ ballast water. Further guidelines adopted an ecological and economic approach to the issue, establishing standards for the control and management of ships’ ballast water. The most recent IMO guidelines on ballast water, adopted in IMO Assembly Resolution A.868(20), include provisions on flag State regulatory and administrative matters. These measures include the BWMP and precautionary practices. Port/coastal States regulatory and administrative requirements with respect to, inter alia, reception facilities, alternate exchange zones, contingency arrangements, precautionary practices and national legislation are also included. Resolution A.868 acknowledges the States’ prescriptive jurisdiction on the control and management of ships’ ballast water due to the lack of internationallybinding rules. It is usually affirmed that IMO resolutions on ballast water are essentially recommendations to IMO Member States so that countries taking national action on the matter adopt a standardized approach to minimizing the unintentional transfer of aquatic organisms between marine environments to avoid the biopollution. The IMO resolutions on ballast water are not considered a formal source of international law per se. The coastal State cannot unilaterally impose the voluntary guideline obligations on a foreign flag vessel to the extent that they affect other international obligations, inasmuch that States, in good faith, may and should express their real intention to the international community through legally-binding treaties that clearly state rights and obligations. Although the guidelines adopted by IMO resolutions have been generally considered soft law, i.e. non-binding on port, coastal and flag States, the influence of these instruments on the States’ behaviour suggests that the IMO resolutions on ballast water are the basis for international law on ballast water management. They certainly constitute part of the contemporary law- making process. Indeed, the IMO resolutions on ballast water provide the 81 82

Ibid., Guideline 11. Ibid., Guideline 7, paragraphs 2(1) and 2(2).

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legal background to create and/or crystallize customary law. These resolutions directly influenced the codification of the international law to prevent biopolluion of the marine environment. As a result, they have indirect limited juridical effect, particularly as several States have adopted national laws or regulations purportedly based on these guidelines in order to achieve a standardized approach to the issue. Moreover, Resolution A.868(20), as we will see in the next section, provides legal guidance to the BWM Convention.

4.3. The 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments 4.3.1. Introduction In 1996, MEPC considered the hazards to the marine environment through biopollution, adopting the Guidelines for the Implementation of Annex VI of MARPOL 73/78 to minimize the introduction of undesired aquatic organisms and pathogens from ships’ ballast water and sediment discharges.83 Initially, it was expected that the ballast water standards would become another annex to MARPOL. However, in 1999, MEPC proposed three options for the purpose of establishing regulations for the management and control of ballast water:84 1. Amendments to an existing annex to MARPOL 73/78: This option would be adopted and considered in accordance with the provisions of Article 16 of MARPOL 73/78.85 2. A protocol to add a new annex to MARPOL 73/78: This option raised conceptual issues such as whether or not the definition of harmful substance adopted in Article 2, paragraph 2, of MARPOL 73/7886 comprised the subject of the new annex, namely, harmful aquatic organisms and pathogens and how Articles 6,87 788 and 889 of MARPOL 73/78 would be applied in the context of the new annex for ballast water management.90 3. A new convention, i.e. a specific treaty addressing the matter. 83 84 85 86

87 88 89 90

MEPC/IMO 38/13/1, 38th session, Agenda item 13, 3 April 1996. MEPC/IMO 43/4, 43rd session, 5 January, 1999, 3. MEPC/IMO 43/4/1, 43rd session, 22 February, 1999, 3–5. Under MARPOL, Article 2(2), ‘Harmful substance means any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substance subject to control by the present Convention’. MARPOL 73/78, Chapter 1, supra note 14. Dealing with ‘Detection of violation and enforcement’. With respect to ‘Undue delay of ships’. In regard to ‘Reports on incidents involving harmful substances’. Supra note 83.

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The majority of delegations opted for an independent international convention on the control and management of ships’ ballast water and sediments.91 Delegates recognized that the unique impacts of biopollution of the marine environment through alien invasive species differs significantly from vessel-source pollution by oil and required specific methods for its control and management.92 In 2002, the IMO Council agreed to convene a diplomatic conference in 2004 to consider the adoption of a draft convention for the control and management of ships’ ballast water and sediments. The International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention) was adopted by consensus at the IMO International Conference on Ballast Water Management for Ships on 13 February 2004.93 The BWM Convention adopts the same structure and regulatory strategy as IMO’s umbrella vessel-source marine pollution prevention instrument, MARPOL 73/78, which deals with oil, chemicals, harmful substances in packaged forms, sewage, garbage and air emissions.94 Further, the BWM Convention, as the first specific regulatory regime on biopollution through ballast water, expanded essential principles, rights and obligations with respect to the protection of the marine environment, especially

91 92 93

94

Supra notes 84 and 85. La Fayette, supra note 7, 175. Representatives of 70 States participated in the conference, namely the representatives of: Algeria, Argentina, Australia, Bahamas, Bahrain, Bangladesh, Barbados, Belgium, Brazil, Canada, Chile, China, Colombia, Côte D’Ivoire, Croatia, Cuba, Cyprus, DPR Korea, Denmark, Ecuador, Egypt, Estonia, Finland, France, Germany, Ghana, Greece, Guatemala, India, Indonesia, Iran, Ireland, Israel, Italy, Japan, Kenya, Kuwait, Latvia, Liberia, Malta, Marshall Islands, Mexico, Morocco, Netherlands, New Zealand, Nigeria, Norway, Oman, Panama, Peru, Philippines, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Singapore, Slovenia, South Africa, Spain, Sweden, Trinidad and Tobago, Turkey, Ukraine, United Kingdom, United States, Vanuatu, Venezuela and Vietnam.; BWM/CONF/DC/WP.1, 11 February 2004, 1–2. Under the rules of procedure, formal criteria were established to manage the conference including, inter alia, the following: (a) representation: the delegation of each State participating in the conference should consist of accredited representatives; (b) quorum: would be constituted by the representatives of a majority of the States participating in the conference; (c) basic document: should consist of the Draft International Convention for the Control and Management of Ships’ Ballast Water and Sediments, as contained in document BWM/ CONF/2; (d) voting: each State represented at the conference should have one vote; decisions of the conference on all matters of substance would be taken by two-thirds majority of representatives present and voting, and decisions on matters of procedure would be taken by a simple majority of representatives present and voting; (e) committees: a Committee of the Whole, a Drafting Committee and other committees and subsidiary bodies, as required; and (f ) languages: the official languages of the conference were Arabic, Chinese, English, French, Russian and Spanish. BWM/CONF/3, 30 July 2003. McConnell, Chapter 1, supra note 2, 15.

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those in UNCLOS,95 in particular, Article 196, paragraph 1,96 and in Article 8(h) of the Biodiversity Convention. As discussed in Chapter 3, the legal background of the BWM Convention97 is set by the umbrella treaty UNCLOS, which remains the key source of State responsibility for protection of the marine environment. However, since the 1980s, ecological concerns have trigged a more holistic and integrated approach with respect to environmental issues.98 Biodiversity loss as a result of interaction between human activities and the environment constitutes an international and domestic challenge. Moreover, there is as of yet no commonly agreed set of monitoring and assessment procedures to measure either how much biodiversity there is or how much is being lost at the level of genetics, species or ecosystems. The flag, port and coastal States’ obligation to protect the marine environment from the transfer of alien invasive species must be considered in the light of the provisions of Agenda 21 and the CBD. The preamble to the BWM Convention acknowledges the interface and interconnections between those conventions and expressly recalls the precautionary approach as an essential mechanism to control and manage ships’ ballast water and sediments. Although treaties are the most important source of binding rules, maritime and environmental global issues pose challenges for traditional international law. Frequently, they are preceded by non-binding instruments (soft law), which provide guidelines to States that closely border the traditional sources of international law. Accordingly, the 1997 IMO Assembly Resolution A.868(20) referred in the preamble to the BWM Convention sets out guidelines regarding the control

95

96

97

98

McConnell notes ‘[…] if the transfer of harmful aquatic organisms and pathogens (alien species) is considered as a problem of ships source marine pollution then a web of safeguards and obligations under UNCLOS are triggered and will affect the design of a domestic regulatory regime’. Ibid., 25. The Preamble to the BWM Convention, Chapter 1, supra note 3, recalls Article 196, paragraph 1, of UNCLOS, which provides: ‘States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto’. This general obligation, addressed to the port, coastal and flag States in regard to the protection of the marine environment, is the pillar of the BWM Convention which adopted the teleology of the UNCLOS, particularly Part XII on the protection and preservation of the marine environment. BWM Convention, ibid., Article 16, provides ‘Relationship to International Law and Other Agreements – Nothing in this Convention shall prejudice the rights and obligations of any State under customary international law as reflected in the United Nations Convention on the Law of the Sea’. See UNEP/CBD/COP/7/INF/22, 15 December 2003.

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and management of ships’ ballast water. Currently, we are in an intermediate stage, where the BWM Convention has been adopted and, hopefully, will enter into force. At that time, the BWM Convention will be the international law on ballast water and the soft law instruments discussed in this book will become less relevant. However, no-one knows how long it will take before the convention enters into force. During the interim, the sole instruments providing guidance on the matter will be the IMO resolutions on ballast water, in particular, Resolution A.868(20), which have been voluntarily adopted by States through national law and the guidelines required under the BWM Convention. 4.3.2. Text The BWM Convention sets out rights and obligations in Articles 1–22 for flag, port and coastal States. The annex, which forms an integral part of the convention,99 provides the technical details in the following areas: (a) general provisions; (b) management and control requirements for ships; (c) special requirements in certain areas; (d) standards for ballast water management; and (e) survey and certification requirements for ballast water management. A set of 17 guidelines required under the BWM Convention and adopted through MEPC resolutions provide technical guidance for the uniform implementation of the provisions of the convention.100 4.3.3. Application The BWM Convention applies to all ships that carry ballast water.101 It is directed at flag or registry States or ships which operate under the authority of a State, and to the coastal State administrations governing floating offshore platforms adjacent to the coast.102 Regarding ships of non-Parties to the convention, Parties are to apply the requirements as may be necessary to ensure that no more favourable treatment is given to such ships. The convention does not apply to:103 1. ships not designed or constructed to carry Ballast Water; 2. ships of a Party which only operate in the waters under the jurisdiction of that Party, unless the Party determines that the discharge of Ballast Water

99 100

101 102 103

BWM Convention, Chapter 1, supra note 3, Article 2, paragraph 2. Stephan Gollasch, Matej David, Matthias Voigt, Egil Dragsund, Chad Hewitt and Yasuwo Fukuyo, “Critical review of the IMO international convention on the management of ships’ ballast water and sediments,” Harmful Algae 6(4) (2007): 585–600. As of February 2008, two guidelines are still pending. MEPC 44/4/1, 3 December 1999, 1. BWM Convention, Chapter 1, supra note 3, Articles 3, paragraph 1. Ibid., Article 3, paragraph 2.

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4.

5.

6.

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from such ships would impair or damage their environment, human health, property or resources, or those of adjacent or other states; ships of a Party which only operate in waters under the jurisdiction of another Party, subjected to the authorization of the latter Party for such exclusion. No Part shall grant such authorization if doing so would impair or damage their environment, human health, property or resources, or those of adjacent or other Sates. Any Party not granting such authorization shall notify the Administration of the ship concerned that this Convention applies to such ship;104 ships which only operate in waters under the jurisdiction of one Party and on the high seas, except for ships not granted an authorization pursuant to subparagraph (c), unless such Party determines that the discharge of Ballast water from such ships would impair or damage their environment, human health, property or resources, or those of adjacent of other States; any warships, naval auxiliary and other ship owned or operate by a State and used, for the time being, only on government non-commercial service. However, each Party shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with their Convention; and permanent Ballast Water in sealed tanks on ships, that is not subject to discharge.

4.3.4. Definitions Article 1 of the BWM Convention, dealing with definitions, does not address a wide range of concepts or essential terms such as biodiversity, biopollution and alien species. Instead of ‘alien species’, the convention adopts a more restrictive expression, ‘harmful aquatic organisms and pathogens’. Nevertheless, relevant environmental terms not addressed in the BWM Convention can be defined through the rules and principles addressed in UNCLOS and the Biodiversity Convention (see Chapter 3). The United Nations expressly recognizes the implications of UNCLOS for IMO treaties. Avoidance of overlapping or potential conflicts between the work of IMO and that of UNCLOS has been achieved by including specific provisions in several IMO conventions indicating that their text would not prejudice the codification and development of the law of the sea under UNCLOS.105 Thus the legal provisions on ballast water were developed with full consideration of the terms of UNCLOS. 104 105

MEPC 44/4, 2 December 1999, 2. IMO/LEG/MISC/3/Rev.1, 06.01.2003, 3; BWM Convention, Chapter 1, supra note 3, Article 16: ‘Nothing in this Convention shall prejudice the rights and obligations of any State under customary international law as reflected in the United Nations Convention on the Law of the Sea’.

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‘Administration’, under the BWM Convention, Article 1, paragraph 1, refers to [T]he Government of the State under whose authority the ship is operating. With respect to floating platforms engaged in exploration and exploitation of the sea-bed and its subsoil adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of its natural resources, including Floating Storage Units (FSUs) and Floating Productions Storage and Offloading Units (FPSOs), the Administration is the Government of the coastal State concerned.

Usually the term refers to the flag or registry State and the coastal State administration governing fixed or floating offshore platforms adjacent to the coast. ‘Biopollution of the marine environment’ is not defined under the BWM Convention. Chapter 2 of this book addresses this matter. Article 1, paragraph 4, of UNCLOS, which defines ‘pollution of the marine environment’, also applies to the BWM Convention. Although UNCLOS does not clearly address the unintentional introduction of harmful organisms and pathogens into the marine environment, a more liberal interpretation of the terms ‘substance’ and ‘marine pollution’ certainly will include harmful aquatic organisms and pathogens, in particular, those introduced through ships’ ballast water and sediment exchanges. ‘Harmful aquatic organisms and pathogens’, under the BWM Convention, Article 1, paragraph 8, means [..] aquatic organisms or pathogens which, if introduced into the sea, including estuaries, or into fresh water courses may create hazards to the environment, human health, property or resources, impair biological diversity or interfere with other legitimate uses of such areas’.

This is a more restrictive term than alien species and refers specifically to organisms that may cause danger to the environment, human health, property or resources, impair biological diversity, or interfere with other legitimate uses of such marine areas. 4.3.5. Principles Several principles concerning the protection of the environment can be identified in international resolutions, declarations, decisions of the International Court of Justice and other international tribunals, customary international law and treaty law.106 The BWM Convention endorses essential principles with respect to the protection of the marine environment, in particular those in UNCLOS and the CBD, including the precautionary and preventive principles, international

106

Kiss and Shelton, Chapter 2, supra note 84.

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co-operation and transfer of technology, and the no harm principle. The rights and obligations which flow from this interconnected international framework are the legal background to a holistic approach with respect to integrated control and management of ships’ ballast water exchange. Their aim is to protect the marine environment and its interdependent ecosystems from the unintentional introduction of alien invasive species.107 The application of each of these essential principles is examined in more detail below. 4.3.5.1. The Precautionary Principle The early use of the precautionary principle (or precautionary approach, as it is called in the United States and other countries)108 began in the 1800s in the field of public health.109 However, its application to environmental hazards and uncertainties 107 108

109

McConnell, Chapter 1, supra note 10, 221. ‘In some European languages, the precautionary principle is referred to as principe de précaution, princípio de precaución, Vorsorgeprinzip, Voorzorg(s)beginsel, føre-var princippet and försiktighetsprincip (in French, Spanish, German, Dutch, Norwegian and Swedish, respectively). In English it is also known as “the principle of precautionary action”. Whereas this is widely regarded as an appropriate substitute for “precautionary approach”, this term is preferred by some, apparently to avoid the more extreme versions of the precautionary principle that demand absolute environmental protection. For instance, when discussing the application of the precautionary principle to high fisheries, Professor Orrega Vicuña writes: “Since scientific uncertainty is normally the rule in fisheries management a straightforward application of the precautionary principle would have resulted in the impossibility of proceeding with any activity relating to marine fisheries. It is on these grounds that the concept of the “precautionary approach” surfaced with a view to provide a more flexible tool for the specific needs of fisheries management”.’ (Francisco Orrega Vicuña, “The Changing International Law of High Seas Fisheries”, Cambridge, 1999, p. 157). Arie Tronwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague: Kluwer Law International, 2002), 3. An early use in Europe occurred in 1854 by Dr. John Snow, who recommended removing the handle from the Broad Street water pump in an attempt to stop the cholera epidemic that was ravaging central London. Harremoës notes: ‘Some evidence for a correlation between the polluted water and cholera had been published five years earlier by Snow himself. This evidence was not “proof beyond reasonable doubt.” However, it was proof enough for Snow to recommend the necessary public health action, where the likely costs of inaction would have been far greater than the possible costs of action […].The biological mechanism underlying the link between polluted water and cholera was unknown at the time of this successful “precautionary prevention” in 1854, that was 30 years later, in 1884, when Koch announced his discovery of the cholera vibrio in Germany […] it was a classic case of precautionary prevention, containing several of the key elements of an approach to scientific uncertainty, ignorance and policy-making. These elements include the difference between “knowing” about a hazard and its likely causes and “understanding” the chemical and biological or other processes underlying the link; a focus on the potential costs of being wrong, and the use of minority scientific opinions in public policymaking’. Poul Harremoës, David Gee, Malcolm MacGarvin, Andy Stirling, Jane Keys, Brian Wynne, and Sofia Guedes Vaz, eds, The Precautionary Principle in the 20 th Century—Late Lessons from Early Warnings (London: Earthscan, 2002), 4–5.

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only emerged as an explicit and coherent concept within environmental science and international environmental law in the 1980s. Since then it has been used in the political arena and addressed by several international agreements and resolutions, particularly those on the marine environment. Since the 1970s, it has featured as a principle in domestic legal systems, notably in Germany.110 Scholars distinguish the precautionary principle, which provides a legal background for action to be taken even in case of significant scientific uncertainty, from the preventive principle which originated in the 1930s. The preventive principle requires action to be taken at an early stage and, if possible, before damage has actually occurred. Under the preventive principle, activity that causes or may cause damage to the environment in violation of the standards adopted by rules of international law is prohibited.111 In contrast, the precautionary principle provides that ‘in cases where there are threats to human health or the environment the fact that there is scientific uncertainty over those threats should not be used as the reason for not taking action to prevent harm’.112 The precautionary principle is based on several arguments: acknowledgement that human activities impacting the environment often have negative consequences that cannot be fully anticipated or conclusively proven in advance; risk assessment is essential to save lives, prevent damage to the environment and provide a basis for decision-making;113and the need to act in case of potentially serious or irreversible threats to health or the environment to reduce potential hazards before there is strong proof of harm, taking into account the likely costs and benefits of action and inaction.114 The vulnerability of the marine environment and the unreliability of science to accurately predict threats to the marine environment invokes the precautionary principle which has been adopted by, inter alia, the Rio Declaration, Principle 15; Agenda 21, paragraphs. 17.21 and 17.22; and the preamble to the 1997 Protocol to MARPOL 73/78. The Biodiversity Convention does not specifically refer to the precautionary principle, although the preamble acknowledges that ‘where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such threat’.

110

111 112 113 114

See Sands, Chapter 2, supra note 47, 267; Elizabeth Fisher, “Is the Precautionary Principle Justiciable?,” Journal of Environmental Law 13(3) (2001), 316; Harremoës et al., ibid., 4. Sands, Chapter 2, supra note 47, 246–247. Fisher, supra note 110, 316. Ibid., 317–8; Harremoës et al., supra note 110, 188. Harremoës et al., ibid.

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Although bioinvasions were not the central focus of the initial negotiations under the Biodiversity Convention, currently, the issue has a prominent place in this regime.115 In practice, a precautionary approach will be applied were there are ‘threats of serious or irreversible environmental damage’ and where there is scientific uncertainty over those threats.116 Implementation of this principle requires, inter alia, construction of appropriate facilities for the reception of sediments;117 research and monitoring for the early detection of hazards; a general reduction in environmental burdens; the promotion of clean production and innovation; adoption of the proportionality principle, which states that the cost of actions to prevent hazards should not be disproportionate to the likely benefits; a cooperative approach between stakeholders to solve common problems via integrated policy measures that aim to improve the environment, competitiveness and employment; and action to reduce risks before full proof of harm. The adoption of the precautionary principle necessarily involves high costs and could pose difficulties for the implementation of advanced protection measures with respect to the marine environment. National restrictions on the implementation of precautionary measures usually arise from economic issues. Moreover, experts involved in technological development and government officials are often not sensitive to public values, priorities and concerns at several levels, ranging from local to international.118 The precautionary principle serves as a warning for port, coastal and flag States to adopt responsible and ethical behaviour with respect to scientific environmental assessment of the impact of transfers of harmful aquatic organisms and pathogens on the marine environment. Currently, the scientific consensus on the role of shipping as the main vector for alien invasive organisms and pathogens transfer is fundamental to ballast water management. Management measures include risk assessment, treatment technologies and legal instruments to balance the scientific uncertainties on the issue, and to respond to the concern that eradication of established alien invasive species is not a realistic option.119 115

116

117 118 119

‘The Parties to the CBD adopted the Jakarta Mandate on Marine and Coastal Biological Diversity in 1995. As a result, the CBD is now focused on integrated marine and coastal area management, the sustainable use of living resources, establishment of marine protected areas, management of mariculture and the control of aquatic invasive species’. Firestone, Chapter 3, supra note 217, 292. United Nations General Assembly, “Rio Declaration on the Environment and Development,” Report of the United Nations Conference on the Environment and Development, Rio de Janeiro, 3–14 June 1992, A/CONF.151/26, Vol. 1, 12 August 1992, Principle 15. BWM Convention, Chapter 1, supra note 3, Article 5. Harremoës et al., supra note 109, 213–214. See Chapter 2, Section 3, of this book.

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In the 1990s, MEPC was charged with developing guidelines for the application of the precautionary approach in the context of the IMO framework.120 The guidelines, adopted in 1995 under MEPC Resolution 67(37),121 recognize the vulnerability of the environment and the unreliability of science to accurately predict threats to the marine environment and to identify acceptable mitigating measures. The precautionary approach as set out in these guidelines, provides IMO with a decision-making framework that gives the benefit of the doubt to the environment where serious or irreparable harm to the marine environment is possible. Both Resolution 67(37) and the preamble to the BWM Convention expressly recall Principle 15 of the Rio Declaration, which invokes the precautionary approach.122 Guideline 1 of Resolution 67(37) provides: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

Under this teleology, new regulations adopted by IMO must be developed in accordance with the precautionary approach.123 In cases of uncertainty, all options must be evaluated consistent with the precautionary approach.124 Environmental assessment and risk analyses are required to identify the environmental impacts of the proposed course of action, and to determine whether these impacts can be prevented or minimized.125 It should also be noted that the precautionary approach relies on the collection and dissemination of scientific data.126

120 121 122 123

124 125 126

IMO/ MEPC 37/10/7, 16 June 1995. IMO/MEPC 37/22/Add.1. Rio Declaration, supra note 116. MEPC 67(37), Guidelines on incorporation of the precautionary approach in the context of specific IMO activities (London: IMO, 1995), Guideline 4, paragraph 2. Ibid., Guideline 4, paragraph 3. Ibid., Guideline 4, paragraph 5. Ruiz notes that ‘understanding invasion patterns and processes depends greatly upon empirical measures. Although observation and theory have resulted in a conceptual framework for invasion ecology, the empirical data needed to rigorously test many key hypotheses and develop robust predictions lag far behind. This gap is especially conspicuous for marine systems, existing both in the quality and quantity of descriptive data. At the present time, most analyses that evaluate patterns of invasion or test specific hypotheses derive data from the existing literature, which is extremely uneven in space and time. This “by-catch” approach to data collection can result in biases, creating apparent patterns that must be viewed with caution. We call for a concerted international effort to conduct quantitative surveys, designed explicitly to test a variety of hypotheses and to produce the high-quality empirical data that is now lacking. Without this

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These provisions in Resolution 67(37) reinforce UN General Assembly Resolution 47/191, which required the UN specialized agencies to report on steps taken to implement the precautionary principle in line with Agenda 21. Paragraph 17 of Agenda 21 states: A precautionary and anticipation-based approach rather than a reactive approach is necessary to prevent the degradation for the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, waste audits a minimization, construction and/or improvement of sewage treatment facilities, quality management criteria for the proper handling of hazardous substances and a comprehensive approach to damaging impacts from air, land and water.

Resolution 67(37) adopted several practical measures to meet its obligations under Agenda 21, in particular with respect to: 1. Research and information, e.g., the promotion of national and international research and information programs to identify, understand an disseminate information about threats to the environment from maritime operations;127 2. Protective measures and best technology, e.g., where existing practices fail to provide adequate environmental protection, encouragement of the development and use of cost-effective interim protective measures within feasible timeframes, which include best environmental practice and best available technology;128 3. Clean technology, e.g., promotion of clean technologies and waste minimization techniques for maritime activities, including use of best environmental practice;129 and 4. Environment assessment, e.g., where appropriate, that decision-making should be preceded by environmental assessment and risk analysis to identify the environmental impacts of the proposed or alternative courses of action.130 Accordingly, the BWM Convention, in adopting the precautionary principle, will require specific initiatives such as research to better assess the risk to the marine environment from the transfer of alien invasive species and pathogens,

127 128 129 130

information base, many fundamental questions in marine invasion ecology will remain unresolved, limiting advances for basic science as well as its ability to guide effective management and policy’. Gregory M. Ruiz and Chad Hewitt, “Toward understanding patterns of coastal marine invasions: A prospectus,” in Invasive Aquatic Species of Europe, E. Leppäkoski, S. Olenin, and S. Gollasch, eds (Dordrecht: Kluwer Academic, 2003), 529. MEPC 67(37), supra note 123, Guideline 4, paragraph 7. Ibid., Guideline 4, paragraph 11. Ibid., Guideline 4, paragraph 12. Ibid., Guideline 4, paragraph 5.

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and the development of new technologies to minimize the risk to the environment and human life.131 Several precautionary practices are identified in the BWM Convention. For example, the convention calls on port States to complement ships’ precautionary uptake practices by identifying and informing ships of areas where ballast water uptake should be minimized or where ships should not take up ballast water due to known conditions.132 The convention also establishes requirements for ballast water management systems (BWMS) that use active substances.133 4.3.5.2. International Cooperation and Transfer of Technology By the end of the 1960s, international organizations were drafting and implementing environmental protection measures that required coordinated monitoring to obtain, verify and evaluate data and information on global environmental trends.134 International cooperation and transfer of technology were seen as key to achieving success in this regard. Thus subsequent legal instruments such as UNCLOS (e.g., Parts XII, XIII and XIV), make specific provisions for cooperation among States, either directly or through competent international organizations, in the field of marine pollution, marine scientific research and marine technology. Some of these provisions refer to cooperation through assistance to developing countries. Article 43(a) of the IMO Convention provides that IMO should, through its Technical Cooperation Committee, consider any matter within its scope concerning ‘the implementation of technical cooperation projects funded by the relevant United Nations Programme for which the Organization acts as the executing or co-operating agency or by funds in trust voluntary provided to the Organization.135 The BWM Convention, Article 13, paragraph 3, sets out a general obligation of regional cooperation to neighbouring States with common interests in protecting the marine environment in a given geographical area and, in particular, in States bordering enclosed and semi-enclosed seas. Moreover, Parties to the BWM Convention are required to cooperate to develop harmonized procedures. The development of regional systems of cooperation is an effort, inter alia, to prevent transboundary biopollution of the marine environment. Under the specific obligation of technical assistance in Article 3,

131

132 133 134

135

Institute of Science in Society, “Use and Abuse of the Precautionary Principle,” available online at http://www.i-sis.org.uk/prec.php. BWM Convention, Chapter 1, supra note 3, Annex, Section C, Regulation C-2. Ibid., Annex, Section D, Regulation D-3.2. A. A. Kovalev, Contemporary Issues of the Law of the Sea: Modern Russian Approaches (Utrecht: Eleven International Publisher, 2004), 273–292. IMO/LEG/MISC/4, 60.

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paragraph 1, Parties to the convention are required to provide support, directly or through the IMO and other international bodies, to those Parties that request technical assistance in the control and management of ships’ ballast water and sediments.136 The wide spectrum of this obligation of technical assistance includes: 1. Training personnel on relevant legal and technical aspects for the control and management of ships ballast water and sediments. 2. Ensuring the availability of relevant technology, equipment and facilities, which can be interpreted under the precautionary principle to include the obligation to use the best available technology, providing an incentive for technological development. In fact, international agreements, in particular those on biopollution of the marine environment, require States to use the best technology to achieve sustainable development.137 3. Initiating joint research and development programmes, e.g., the GloBallast Programme, a joint programme aiming to assist developing countries to reduce the transfer of harmful organisms in ships’ ballast water. This programme provided technical assistance, legal advice, capacity building and institutional strengthening to remove barriers to effective ballast water management arrangement in six pilot countries: Brazil, China, India, Iran, South Africa and Ukraine.138 Further, similar to Article 16 of the Biodiversity Convention, the BWM Convention, Article 13, paragraph 2, requires to flag, port and coastal States to cooperate actively, subject to their national laws, regulations and policies, in the transfer of technology.139 4.3.5.3. The No Harm Principle: Prohibition of Transboundary Pollution The no harm principle obliges States to not allow their territory to be used in such a manner so as to cause harm to the territory of other States, or to commons territory, such as the high seas.140 As with other international legal instruments141 that have included the no harm principle, Article 2, paragraphs 6 and 7 of the BWM Convention references this principle in a general obligation addressed to flag, port and coastal States: 136 137

138 139 140 141

For example, see BLG 11/WP.2, 19 April 2007, Annex 2, 13–14. R. Wolfrum, “Precautionary principle,” in New Technologies and Law of the Marine Environment, J.-P Beurier, A. Kiss and S. Mahmoudi, eds (The Hague: Kluwer Law International, 2000), 209. See Chapter 5 of this book. See also Biodiversity Convention, Chapter 1, supra note 9, Article 16. See Chapter 3, “Customary International Law and Ballast Water”. UNCLOS, Chapter 1, supra note 8, Article 194, paragraph 2: ‘States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to

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2.6 Parties taking action pursuant to this Convention shall endeavour not impair or damage their environment, human health, property or resources, or those of other States. [emphasis added] 2.7 Parties should ensures that the Ballast Water Management practices used to comply with this convention do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States. [emphasis added]

The obligation of the State to ensure that the activities, particularly in relation to transboundary resources, within its jurisdiction or under its control do not harm the environment of another State or zone beyond its national jurisdiction refers to the preventive principle.142 Implementation of this principle requires the adoption of stringent environmental measures and policies. The technical standards set out in the guidelines required under the BWM Convention and those provided in the annex to the convention are underlined by the no harm principle to prevent biopollution of the marine environment. 4.3.6. Flag State Obligations and Jurisdiction 4.3.6.1. Obligations The obligations of flag States under the BWM Convention can be grouped into four categories: 1. 2. 3. 4.

Ensuring compliance with the convention Developing ballast water management plans and related documents Issuing International Ballast Water Management certificates Managing ballast tank sediments

Each of these obligations is examined in turn below. The primary and essential flag State obligation in the BWM Convention, Article 4, paragraph 1, is for the flag State to require its ships, namely vessels either entitled to fly its flag or operating under its authority, to comply with the convention, including the applicable standards and requirements provided in its annex. The flag State shall take ‘effective measures’ to ensure that its ships comply with the requirements.143 The primacy of the flag State’s responsibility to comply with the rules in the convention is the pillar of the legal regime on the control and management of ships’ ballast water and sediment pollution.

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cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention’. Sands, Chapter 2, supra note 47, 247. MEPC 44/4, 2 December 1999, 3.

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Under the BWM Convention, each ship is required to have on board and to implement a ballast water management plan (BWMP)144 (written in either English, French or Spanish and in the working language of the crew). The BWMP shall take into account the guidelines required under the BWM Convention and be approved by the Administration. The plan, inter alia, shall detail safety procedures for the ship and the crew associated with the ballast water management requirements of the convention. An officer shall be designated as being responsible for compliance with the BWMP and for reporting to port authorities.145 Under the BWM Convention, the officers and crew members engaged in ballast water management are required to be familiar with their duties with respect to the ship’s BWMP.146 Moreover, each ship is to carry a ballast water record book (BWRB)147 onboard for two years and to maintain it for a further three years under company control. The BWRB shall contain the information set out in Appendix II to the BWM Convention. These records will be in the working language of the crew and translated into English, French or Spanish and available for inspection to authorities based on requests under international law. Under Article 7 of the BWM Convention, a State is required to ensure that ships flying its flag or operating under its authority and subject to survey and certification are so surveyed and certified in accordance with the regulations established in the annex.148 A specific initial survey and interim surveys to ensure that the ship is in compliance with the BWM Convention requirements shall be carried out by the flag State or nominated organization (classification society) for ships 400 and above gross tonnage. Flag States are to develop appropriate procedures for smaller vessels. The flag State will issue an International Ballast Water Management Certificate upon successful completion of a survey which is to be accepted by other States.149 Ship design and ballast water management requirements will vary in accordance with the date of ship construction150 and the discharge location (special areas). However, if port or coastal States establish more stringent measures with respect to prevention, reduction or elimination of the transfer of harmful aquatic organisms and pathogens, or call for special requirements in certain areas, no additional survey and certification of the flag State shall be required. Further, the

144 145 146 147 148 149 150

BWM Convention, Chapter 1, supra note 3, Annex, Section B, Regulation B-1. Ibid., which refers to the ‘administration’, usually the flag State. Ibid., Annex, Section B, Regulation B-6. Ibid, Annex, Section B, Regulation B-2. Ibid., Annex, Section E. Ibid., Annex, Regulation E-2, paragraph 1. Ibid., Annex, Section 3, Regulations B-3 and B-4.

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State under whose authority the ship is operating is not obligated to survey and certify additional measures imposed by the coastal State. The verification of additional measures is the responsibility of the port or coastal State implementing such measures. Under Article 12, such measures shall not cause undue delay to the ship. Finally, tank sediments shall be managed in accordance with the BWMP. Requirements will vary depending on the construction date of the ship.151 4.3.6.2. Jurisdiction The flag State grants a ship its nationality152 and consequently exercises sovereignty on board. Moreover, the flag State has exclusive prescriptive and enforcement jurisdiction over vessel-source pollution with respect to ships flying its flag or operating under its authority, irrespective of the location of the vessel and wherever any violation under the BWM Convention occurs.153 Article 8 of the convention acknowledges the flag State’s universal jurisdiction. Indeed, if the flag State is informed of any violation of the requirements under the BWM Convention, it is to investigate the matter wherever the violation occurs. If sufficient evidence is available to enable proceedings, these proceedings are to be done in conformity with the flag States’ national laws. Similar to MARPOL 73/78, enforcement of the BWM Convention relies primarily on the exercise of flag State jurisdiction. Furthermore, the BWM Convention adopted the UNCLOS teleology regarding flag State jurisdiction. The extra-territorial jurisdiction of the flag State is intended to link the flag States’ international responsibility with respect to pollution/biopollution of the marine environment with the principle of the freedom of the seas. Adoption of anti-pollution measures by the flag State, especially the IMO treaties and regulations, is crucial for global protection of the oceans. The BWM Convention acknowledges the enforcement jurisdiction of both the coastal154 and flag155 State vis-à-vis any violation in the EEZ. Flag and coastal States’ concurrent enforcement jurisdiction regarding environmental issues in waters under the coastal State’s jurisdiction may arise, but flag State enforcement will, at least for pollution inside the territorial sea and the EEZ, only be possible with the coastal State’s consent. Implementation of the BWM Convention relies on the cooperation between port, coastal and flag

151 152 153 154 155

Ibid., Annex, Section B, Regulation B-5. UNCLOS, Chapter 1, supra note 8, Article 91. BWM Convention, Chapter 1, supra note 3, Article 8. Ibid., Article 8, paragraph 2. Ibid., Article 8, paragraph 1.

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States156 through the harmonization of jurisdiction and the adoption of safeguards already defined in UNCLOS.157 Under UNCLOS, Article 94, the flag State shall effectively exercises its jurisdiction and control in administrative, technical and social matters over ships that fly its flag, under its national laws. Accordingly, the BWM Convention also deals with administrative and technical matters. However, it does not deal with social matters, i.e. labour conditions. With respect to administrative matters, UNCLOS sets out five main responsibilities for flag States that underline the legal framework set out in the BWM Convention: 1. Fix the conditions for granting nationality to ships.158 2. Maintain a register of ships.159 3. Inspect ships before registration and thereafter at appropriate intervals.160 The BWM Convention calls on the flag State to ensure that ships flying its flag or operating under its authority and subject to survey and certification are surveyed and certified in accordance with the regulations established in the annex to the convention. Survey and certification requirements for ballast water management are the sole responsibility of the flag State.161 As noted above, flag States are not obligated to survey or certify more stringent measures or special requirements imposed by port or coastal States. The port or coastal State cannot require additional survey or certification of the flag State. The verification of such additional measures is the responsibility of the port or coastal State implementing such measures and should not cause undue delay to the ship.162

156

157 158 159 160 161 162

The obligation for flag States to adopt and enforce anti-pollution laws and regulations in compliance with international rules and standards adopted by IMO is included in Articles 211 (2) and 217, UNCLOS, Chapter 1, supra note 8. Under Article 211(2), States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations must at least have the same effect as that of generally accepted international rules and standards, i.e., those addressed in the BWC, established though the competent international organization (IMO); Article 217 exclusively addresses the enforcement of international rules and standards by flag States and provides that such enforcement must take place irrespective of where a violation occurs. Likewise, the BWM Convention, Chapter 1, supra note 3, Article 8, reads: ‘Any violation of the requirements of this Convention shall be prohibited and sanctions shall be established under the law of the Administration of the ship concerned, wherever the violation occurs’ [emphasis added]. UNCLOS, ibid., Articles 223–232. Ibid., Article 91, paragraph 1. Ibid., Article 94, paragraph 2(a). Ibid., Article 94, paragraph 4(a). BWM Convention, Chapter 1, supra note 3, Article 7; and Annex, Section E. Ibid., Article 12.

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4. Issue flag documents.163 The BWM Convention requires each ship to have on board and to implement a ballast water management plan approved by the flag State and a ballast water record book.164 5. Investigate allegations of improper control.165 The BWM Convention recognizes the flag State’s universal jurisdiction by providing that any violation of the requirements of the BWM Convention are prohibited and that sanctions are to be established under the law of the flag State, wherever the violation occurs. Further, if the flag State is informed of such a violation, it is to investigate the matter, and if sufficient evidence is available to enable the opening of a proceeding, this is to be done in conformity with its national laws.166 Technical matters refer to construction, equipment, seaworthiness, manning, training of crew, use of signals, maintenance of communication, and collision prevention.167 The BWM Convention includes two key technical provisions. First, standards for ballast water management shall be approved by the flag State taking into account the guidelines developed by the IMO, together with the BWM Convention.168 Second, the flag State shall approve the BWMP and, inter alia, is to detail safety procedures for the ship and the crew associated with ballast water management requirements.169 Both the annex and guidelines to the BWM Convention set out essentially technical rules. Under this legal framework, the BWM Convention relies on the flag State to enforce compliance with its technical rules. 4.3.7. Port and Coastal States Obligations and Rights The BWM Convention establishes obligations and rights for port and coastal States with respect to four key areas: sediment reception facilities, communication of information, inspections, and protected areas. 4.3.7.1. Sediment Reception Facilities Under Article 5 of the BWM Convention, ports and terminals designated by the port or coastal State for cleaning or repairing ballast water tanks are required to ensure adequate facilities for sediment reception that take into account the

163 164 165 166 167 168 169

UNCLOS, Chapter 1, supra note 8, Article 91, paragraph 2. BWM Convention, Chapter 1, supra note 3, Annex, Section B, Regulations B-1 and B-2. UNCLOS, Chapter 1, supra note 8, Article 94, paragraph 6. BWM Convention, Chapter 1, supra note 3, Article 8. Ibid., Article 94, paragraph 3. Ibid., Annex, Section D-3. Ibid., Annex, Section B-1.

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guidelines required under the BWM Convention.170 These reception facilities are to operate without unduly delaying vessels and must provide for the safe disposal of sediment such that it does not impair or damage the State’s environment, human health, property or resources or those of other States. Ships are required to manage sediments, that is, remove and dispose of sediments from spaces designated to carry ballast water, in accordance with their BWMP.171 4.3.7.2. Communication of Information States are required, under Article 14, to report to the IMO and other Parties the requirements and procedures for ballast water management. This duty includes the location of receptions facilities and any requirements for ships unable to comply with the BWM Convention for reasons set out in Regulation A-3 (Exceptions) and B-3 (Ballast Water Management for Ships). 4.3.7.3. Inspection The BWM Convention, similar to MARPOL, provides regulations for the inspection of foreign ships voluntarily in port to ensure that they comply with anti-pollution rules and standards. The regulations also prevent the ship from sailing if these requirements are not met. Under Article 9, inspections of vessels are allowed with respect to a ship in any port or offshore terminal of another State to monitor whether the ship is in compliance with its requirements. The inspections are limited to verifying the existence of a valid International Ballast Water Certificate, inspecting the ballast water record book, and/or taking a sample of the ship’s ballast water in accordance IMO guidelines required under the BWM Convention and adopted through MEPC resolution. Nevertheless, if there are clear grounds for believing the vessel is in violation of the BWM Convention, or if there is a request from another State with sufficient evidence that the vessel is operating or has operated in violation of the BWM Convention, then a thorough inspection and/or investigation may be carried out.172 Such inspections should not unduly delay or detain the ship. However, compensation may be available to the ship if the inspection results in undue delay.173 Finally, in cases of violation of the BWM Convention, the ship must be notified. A written report, containing all the evidence and all circumstances under which the action was deemed necessary, is to be sent to the administration of the vessel, usually 170

171 172 173

IMO, Guidelines for Sediment Reception Facilities (G1), MEPC 55/23, Annex 4, Resolution MEPC. 152(55), adopted 13 October 2006. BWM Convention, Chapter 1, supra note 3, Annex, Section B, Regulation B-5.1. Ibid., Article 10, paragraph 4. Ibid., Article 12, paragraph 2.

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the flag State. The BWM Convention places specific obligations on the port State regarding notification of control actions. Furthermore, ports are the only place where compliance with the BWM Convention can be checked. Thus port State control measures are of paramount importance if full compliance with the convention is to be achieved.174 4.3.7.4. Protected Areas (Tier 2) The BWM Convention, similar to MARPOL’s designated special areas formula,175 adopts a two-tier approach to standards and operating requirements.176 This two-tiered approach provides, firstly, that certain baseline requirements are to be applied to all ships that carry ballast water on international voyages (Tier 1).177 Secondly, when these ships enter certain designated areas, they may be subject to further controls regarding the uptake and/or discharge of ballast water (Tier 2).178 Tier 1 measures set out minimum standard requirements for ballast water and sediment discharge and uptake that apply to all ships. These measures include mandatory requirements for a ballast water and sediments management plan, a ballast water record book, and requirements for new ships to carry out ballast water and sediment management procedures to a given standard or range of standards. Tier 2 measures will allow coastal States, individually or in conjunction with other Parties, to designate (based on international law and the guidelines required under the BWM Convention) special requirements in certain areas in which more stringent requirements to prevent, reduce or eliminate the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments may be imposed. In these designated areas, States may require further measures to those set out in Tier 1. However, the State shall communicate this information to IMO at least six months (except in emergency or epidemic situation) prior to the date of implementation of such measures, and obtain the approval of IMO.179 Actions required of vessels would be minimized because they should be related 174 175 176 177 178

179

IMO/MEPC 45/2/3, 30 June 2000, 3. MARPOL 73/78, Chapter 1, supra note 14, Annex 1, Regulation 10. See McConnell, Chapter 1, supra note 2, 15; La Fayette, supra note 7, 78–180. BWM Convention, Annex, Section B, Management and Control Requirements for Ships. Ibid., Annex, Section C, Special Requirements in Certain Areas; IMO/MEPC 45/2, 8 May 2000, 2; MEPC 45/2/9, 29 July 2000; MEPC 45/2/11, 28 July 2000, 1–4; IMO, International Conference on Ballast Water Management for Ships, Agenda item 6, Consideration of the draft International Convention for the Control and Management of Ships’ Ballast Water and Sediments, Comments on the draft Convention (as contained in BWM/CONF/2), Submitted by the United Nations Division for Ocean Affairs and the Law of the Sea, BWM/CONF/9, 25 November 2003. Ibid., Regulation C-1, paragraph 3.

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directly to the circumstances of the specific marine environment in which a vessel is taking up and/or discharging ballast water. Based on an assessment of the risk, this approach provides for both flexibility and technological innovation.180 In 2000, MEPC 45/2 addressed the jurisdictional features with respect to the adoption of special ballast water requirements in certain areas. MEPC concluded that the implications or limitations under Article 196 and other relevant articles of UNCLOS would have to be understood when establishing ballast water management areas (BWMA) beyond an EEZ.181 This suggests the possibility of establishing a BWMA in zones beyond coastal State jurisdiction, but only under the criteria provided under international law. Further, the IMO Legal Office, in MEPC 46/3, refers to Articles 196, 197 and 237, paragraph 2, of UNCLOS, concluding that based on these international rules there is in principle no obstacle for States to agree on the establishment of ballast water management areas in the EEZ or extending beyond the EEZ. Nevertheless, in principle, enforcement beyond the EEZ would rely entirely upon flag States.182 This suggests that the State may adopt special requirements in certain areas adjacent to the EEZ, that is, the coastal State may extend its prescriptive jurisdiction to the high seas as a measure of effective prevention of biopollution of the marine environment. The BWM Convention, Regulation C-1, paragraph 1, in regard to special requirements in certain areas, does not expressly refer to the extension of the jurisdiction of the port or coastal State. However, under Article 2, paragraph 9, States are required to cooperate ‘to address’ threats and risks to sensitive, vulnerable, or threatened marine ecosystems and biodiversity ‘in areas beyond the limits of national jurisdiction in relation to Ballast Water Management’.183 Given the legal

180 181 182 183

IMO/MEPC 45/2, 8 May 2000, 3. IMO/MEPC 46/3/4, 16 February 2001, 2. Ibid. The purpose of this paragraph, submitted by the World Wildlife Fund, is ‘to allow Parties to the Convention to address concerns with the introduction of harmful aquatic organisms and pathogens in areas beyond the limits of national jurisdiction. While it is assumed that in most cases ballast water discharges beyond national jurisdiction may not be harmful, it should be taken into consideration that current knowledge of ecosystems and biodiversity in those areas is limited and that in certain areas negative effects may occur. Accordingly, the States parties thereto should be able to address such concerns on the basis of this provision. The provision is in accordance with paragraph 31 of the World Summit on Sustainable Development (WSSD) Plan of Implementation that calls for actions ‘to promote the conservation and management of the oceans through actions at all levels, giving due regard to the relevant international instruments to maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction’. World Summit on Development, 25 August–4 September 2002, Johannesburg Plan of Implementation [hereinafter WSSD Plan], 5 September 2002, 14; IMO/ MEPC 49/WP.16/Add.1, 17 July 2003, 1.

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background of this provision,184 the expression ‘to address’ could be interpreted as ‘to take action’, that is, acknowledgement of the prescriptive jurisdiction of the coastal State to legislate to protect certain areas beyond national jurisdiction. In this regard, the Parties to the BWM Convention may take actions to protect certain ecosystems that are vulnerable or already affected by marine pollution beyond the EEZ. These measures must be carried out with the acknowledgment, inspection and authorization of IMO to assure the adoption of standards criteria established by IMO. However, enforcement jurisdiction on the high seas would rely, in principle, entirely upon flag States. Since the 1970s, international law concerning stringent anti-pollution measures for the preservation of special marine areas has increased. A review of MARPOL,185 UNCLOS186 and the BWM Convention187 reveals that there is a striking, but not identical, resemblance between provisions for special areas. Similarly, these conventions acknowledge that certain areas should be subject to more restrictive environmental protection and give coastal States the right to adopt additional stringent measures for the prevention of pollution of the marine environment.188 Likewise, PSSAs or ‘particularly sensitive sea areas’ (defined as areas that need special protection through action by IMO because of their significance for recognized ecological or social-economic or scientific reasons and which may be vulnerable to environmental damage by maritime activities)189 are to be protected. This international legal framework provides a preventive and precautionary approach to management of the oceans, taking into account, inter alia, the complex oceanographic and ecological conditions of the marine environment. Under the BWM Convention, similar to MARPOL and UNCLOS, coastal States may require mandatory methods and specified discharge standards and

184 185 186 187

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189

Ibid. MARPOL 73/78, Chapter 1, supra note 14, Annex I. UNCLOS, Chapter 1, supra note 8, Article 211, paragraph 6. BWM Convention, Chapter 1, supra note 3, Annex, Section C, Special Requirements in Certain Areas. MARPOL, Chapter 1, supra note 14, Annex I, Regulation 1 paragraph 10; UNCLOS, Chapter 1, supra note 8, Article 211, paragraph 6; BWM Convention, Chapter 1, supra note 3, Annex, Section C-1, paragraph 1. See Molenaar, Chapter 2, supra note 102, 436–437; IMO Assembly Resolution A.720 (17) which adopted the Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas. The guidelines establish criteria and procedures for the adoption of the special areas provided for in the MARPOL 73/78, as well as for the designation of particularly sensitive sea areas (PSSAs), a type of marine protected area devised by IMO to protect sensitive sea areas from damage caused by international shipping. See La Fayette, supra note 7, 185; Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, IMO Resolution A.927(22), 29 November 2001.

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requirements in such areas.190 However, the coastal State must justify the need for such a regulation,191 communicate to IMO the provisions adopted,192 and ensure that such measures are consistent with international law.193 Under MARPOL, provisions on special areas relate to enclosed or semienclosed areas, which may include parts of the territorial sea, the EEZ and the high sea.194 UNCLOS, Article 211, paragraph 6, restricts special areas to a particular, clearly defined area of the EEZ.195 Unlike MARPOL196 and UNCLOS,197 the BWM Convention does not expressly designate such areas. This raises further issues concerning special areas and coastal States’ jurisdiction. Instead, the BWM Convention refers to two categories of ‘certain areas’ under coastal State jurisdiction and outlines conditions for their adoption: 1. Special requirements in certain areas in regard to the ballast water uptake which are restricted to areas under State jurisdiction, in accordance with the Annex, Section C-2. Under these provisions, the coastal State shall endeavor to notify mariners of areas under their jurisdiction, i.e. the territorial sea, contiguous zone and EEZ, where ships should not uptake ballast water due to known specific conditions. These conditions include (1) areas known to contain outbreaks, infestations, or populations of harmful aquatic organisms and pathogens,

190

191

192 193

194 195

196

197

MARPOL, Chapter 1, supra note 14, Annex I, Regulation 1 paragraph 10; UNCLOS, Chapter 1, supra note 8, Article 211, paragraph 6; BWM Convention, Chapter 1, supra note 3, Annex, Section C-1, paragraph 1. MARPOL, ibid., Annex VI, Appendix III; UNCLOS, ibid., Article 211 para.6; BWM Convention, ibid., Annex, Section C-1, paragraph 3 (2) (2). BWM Convention, ibid., Annex, Section C, Regulation C-1 paragraph 3 (2). MARPOL, Chapter 1, supra note 14, Annex I, Regulation 8A, paragraph 4; UNCLOS, Chapter 1, supra note 8, Article 6; BWM Convention, ibid., Annex, Section C-1, paragraph 1. LEG/MISC/4, 26 January 2005, 51. ‘A special area […] implies a certain area of the EEZ, possibly including parts of the territorial sea or even the EEZ of an adjacent or opposite state […] but definitively excluding reaching beyond. It therefore has to be clearly distinguished from MARPOL 73/78 special areas covering enclosed or semi-enclosed areas and often including high seas areas’. E. Franckx, ed., Vessel-source Pollution and Coastal State Jurisdiction – The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991–2000) (The Hague: Kluwer Law International, 2001), 131. MARPOL, Chapter 1, supra note 14, Annex I, Regulation 1, paragraph 10, which, provides: ‘Special areas means a sea area where for recognized technical reasons in relation to its oceanographic and ecological condition and to the particular character of its traffic the adoptions of special mandatory methods for the prevention of sea pollution by oil is required. Special areas shall include those listed in regulation 10 of this Annex’. ‘For the purpose of Annex I, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the “Gulfs areas”, and the Gulf of Aden area, the Antarctic area and the North West European waters’. See Molenaar, Chapter 2, supra note 102, 36. UNCLOS, Chapter 1, supra note 8, Article 211 paragraph 6 (a).

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which are likely to be used for ballast water uptake or discharge; (2) areas near sewage outfalls; or (3) areas where tidal flushing is poor or times during which a tidal stream is known to be more turbid.198 Coastal States’ are to notify IMO and any potentially affected coastal States of the precise coordinates of such areas and, where possible, the location of any alternative area or areas for the uptake of ballast water. In regard to the uptake of ballast water, in particular circumstances, the BWM Convention expressly refers to ‘areas under State jurisdiction’. 2. Special requirements in certain areas in regard to the ballast water exchange (discharge or uptake) which may be adopted in areas under the coastal States’ jurisdiction and, under this author’s interpretation, in the EEZ beyond, in accordance with the Annex, Section C-1. If a Party, individually or jointly with other Parties, determines that measures in addition to those in the BWM Convention, Annex, Section B, are necessary to prevent, reduce, or eliminate the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments, there is, in principle, no obstacle for States to agree on the establishment of BWMAs in the EEZ or extending beyond it. However, in practice, enforcement beyond the EEZ would depend entirely upon flag States. The Party (or Parties) may, consistent with international law, require that ships meet a specified standard or requirement with respect to the prevention of biopollution of the marine environment. Nevertheless, a Party to the BWM Convention must take into account the IMO guidelines on the issue, communicate to IMO the precise coordinates where additional measures are applicable, justify the need and reasoning for the application of the additional measures, and describe the additional measures and any arrangements that may be provided to facilitate a ship’s compliance with the additional measures. The provisions in the BWM Convention in regard to special requirements in certain areas do not apply to 1. the uptake or discharge of ballast water and sediments necessary to ensure the safety of a ship in emergency situations or saving life at sea; 2. the accidental discharge or ingress of ballast water and sediments resulting from damage to a ship or its equipment: i. provided that all reasonable precautions have been taken before and after the occurrence of the damage or discovery of the damage or discharge for the purpose of preventing or minimizing the discharge; and ii. unless the owner, Company or officer in charge wilfully or recklessly caused damage;

198

BWM Convention, Chapter 1, supra note 3, Annex, Section C-2, paragraph 1.

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3. the uptake and discharge of ballast water and sediments when being used for the purpose of avoiding or minimizing pollution incidents from ships; 4. the uptake and subsequent discharge on the high seas of the same ballast water and sediments; or 5. the discharge of ballast water and sediments from ship at the same location where the whole of the ballast water and those sediments originated and provided that no mixing with unmanaged ballast water and sediments from other areas has occurred.199 Section C of the BWM Convention adopts the principle of supplementation, meaning that the provisions drawn up by IMO provide the minimum required standards for port and coastal States under the precautionary principle. Nevertheless, the exceptions addressed therein can be interpreted under the nemo tenetur ad impossibilia principle, which acknowledges that, in certain circumstances, the precautionary approach shall not be applied due to other relevant values such as the safety of human life and shipping. 4.3.8. Procedures for Port State Control IMO Resolution A.787(19) (1995), amended by IMO Resolution A.882(21) (1999), adopted Procedures for Port State Control. These procedures seek to ensure that ships comply at all times with maritime safety standards and marine pollution-prevention standards prescribed under various international conventions. The resolution also acknowledges the need for port States to include in their activities an assessment of the ability of ships’ crew to perform their duties in respect of operational requirements. The control procedures should be regarded as complementary to national measures taken by the flag State in their countries and abroad, and are intended to provide assistance to flag State administrations in securing compliance with convention provisions to safeguard the safety of the crew, passengers, and ships and to ensure prevention of pollution.200 However, Article 1, paragraph 2(1), of Resolution A.882(21) does not refer to the BWM Convention as the treaty was still being drafted. Additional measures on port State control are envisioned in the BWM Convention. In 2004, MEPC 52 instructed the sub-committee on Flag State Implementation (FSI) ‘to develop the Guidelines on port State control under the BWM Convention, focusing, in particular, on the sampling of the discharge from Ballast Water Management Systems installed on board ships pursuant to Type Approval under the Guidelines for approval of ballast water management 199 200

See BWM Convention, Chapter 1, supra note 3, Annex, Section A, Regulation A-3. Procedures for Port State Control, IMO Resolution A.787 (19), 23 November 1995, Article 1, paragraph 3(3).

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system (G 8) or Prototype Approval under the Procedures for approval of prototype ballast water treatment technologies (G 10)’.201 However, under FSI 14/9,202 the sub-committee agreed to extend the target completion date for the Guidelines for Port State Control from 2006 to 2008. 4.3.9. Port and Coastal States’ Jurisdiction As discussed in Chapter 3, port and coastal States have varying degrees of jurisdiction over vessels in marine waters. The limits of their jurisdiction vis-à-vis control and management of ships’ ballast water and protection of the marine environment depends on whether a vessel is in internal waters, the territorial sea, the contiguous zone or the EEZ. Port and coastal State jurisdiction under the BWM Convention in each of these areas is examined in turn. Port/coastal States jurisdiction203 in regard to foreign ships depends on a wide range of interconnected issues, in particular, the nature of the ship, the location where a violation occurs, the legal regime of innocent passage, and the concurrent flag State jurisdiction.204 The BWM Convention, Article 4, paragraph 2, provides: Each Party shall, with due regard to their particular conditions and capabilities, develop national policies, strategies or programmes for ballast water management in its ports and waters under its jurisdiction consistent with the Ballast Water Convention.

The actions of port/coastal States are based on the principle of sovereignty and, from internal waters to the high seas, the sovereignty of the port/coastal State declines with direct legal implications for jurisdictional issues. Under international law, port/coastal States have full sovereignty in their internal waters205 and ports and may establish entry conditions for foreign vessels. They also have the right to take the necessary steps to prevent any breach of such conditions. No limitation is imposed on the stringency of the conditions that can be provided by the port/coastal State. Moreover, States are not obligated to seek the approval of IMO for stricter anti-pollution measures in their ports or internal waters.206

201 202 203 204

205 206

FSI 12/21, 31 March 2005. Sub-Committee on Flag State Implementation, 14th session, Agenda item 19, 30 June 2006. Franckx, supra note 195, 80–105, 125–132. ‘During the last few decades, coastal states have become increasingly reluctant to accept common flag state jurisdiction and the consequent problems of enforcement and have sought more influence and control in pollution matters related to navigation, effective exercise of jurisdiction, and rights for prevention measures’. Bernaerts, Chapter 3, supra note 122, 66; See Chapter 3 of this book. BWM/CONF, 25 November 2003, 2.

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In fact, port/coastal States have the right to draft national laws on the control and management of ships’ ballast water and impose obligations with respect to the protection of the marine environment to ships that voluntarily enter their ports.207 The port/coastal State’s jurisdiction to regulate vessel-source pollution within internal waters is generally accepted. However, similar to UNCLOS,208 under the BWM Convention, Article 9, inspections of ships are limited to verifying compliance with the convention by confirming a valid certificate, inspection of the ballast water record book, and/or sampling the ship’s ballast water, in accordance with the IMO guidelines required under the BWM Convention.209 In the territorial sea,210 the coastal State may adopt laws and regulations consistent with the BWM Convention in regard to the prevention, reduction and control of biopollution through ships’ ballast water and sediments. The coastal State must provide for sanctions under its national laws in regard to violations of the BWM Convention within its jurisdiction.211 Moreover, other States are under a general obligation to comply with the laws and regulations adopted by the coastal State in accordance with UNCLOS, including those for the protection and preservation of the marine environment and other rules of international law.212 The BWM Convention also provides, under Article 2, paragraph 3: Nothing in this Convention shall be interpreted as preventing a Party from taking, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships’ Ballast Water and Sediments, consistent with international law.213

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210 211 212 213

See, e.g., the Brazilian law NORMAN, 20/DPC, 2005, Rule of the Maritime Authority on the Management of Ships’ Ballast Water, Article 1, paragraph 1, which provides: ‘This rule applies to all ships, national or foreign, that use the terminal or Brazilian ports’ (non-official translation). UNCLOS, Chapter 1, supra note 8, Article 226, paragraph 1(a). See Annex II of this book; Article 2, paragraph 3(1) of the 2005 Brazilian Maritime Authority’s Ships’ Ballast Water Management Regulation provides: ‘The ships that stop at Brazilian ports or terminals are subject to naval inspection to assert whether the ship is in compliance with this regulation’; Article 2 paragraph 3 (2) reads: ‘The Ballast Water Form (Annex A/Annex B) must be submitted to the Port Authorities by the ship’s captain or agents, at least 25 hours prior to the ship’s estimated arrival …the ship is required to carry onboard a copy of this form for naval inspection purposes […]’ (non-official translation). See Chapter 3 of this book. BWM Convention, Chapter 1, supra note 3, Article 8. UNCLOS, Chapter 1, supra note 8, Article 58. BWM/CONF/9, supra note 178. In a document suggesting certain changes to the draft ballast water convention, the United States noted: ‘Recognizing that the Convention’s purpose is to prevent, minimize, and ultimately eliminate aquatic invasions, it is fully consistent and appropriate

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Such provisions, however, shall not hamper the innocent passage of a foreign vessel, as coastal State sovereignty in the territorial sea is limited by this legal regime.214 Non-innocent passage only arises when damage occurs. The threat of pollution or non-compliance with passive requirements, such as construction, equipment, design and manning does not render passage non-innocent. Indeed, a foreign ship loses its right of innocent passage if it does not comply with the requirements of Article 19 of UNCLOS, e.g., if it engages in any act of wilful and serious pollution of the marine environment. The discharge of ballast water and sediments, if both serious and wilful, should be considered to be prejudicial to the marine environment of the port/coastal State and restrain the right of innocent passage.215 However, even under such circumstances, the interests of the flag State have to be balanced with those of the coastal States involved. Not all countries claim a contiguous zone,216 and for most purposes this zone falls into the ambit of the rules for the EEZ. The coastal State has additional specific law enforcement (prevention and punishment) rights, but no legislative jurisdiction, with respect to activities that infringe or may infringe on specified

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for the Convention to respect the sovereign right of a Party to establish more stringent measures, consistent with international law, should such measures be necessary. The right of a Contracting Government to take more stringent measures is a long-standing and fundamental concept and was most recently incorporated in the International Convention on the control of Harmful Anti-fouling System on Ships, where its inclusion supported by the vast majority of delegations’. IMO, International Conference on Ballast Water Management for Ships, Agenda item 6, Consideration of the Draft International Convention for the Control and Management of Ships’ Ballast Water and Sediments, Outstanding issues, Submitted by the United States, BWM/ CONF/12, 5 January 2004, 1. See Chapter 3 of this book. ‘These cumulative criteria represent a significant threshold, in particular the element of intent. “Willful” implies that the act of pollution has to be intentional, but does not reveal which type of intent is required, for example malicious intent. While the seriousness of the act of pollution is certainly consistent with the notion that innocence should only disappear in cases which are “prejudicial etc.” to the coastal state, no definition of “serious” is provided. Since the requirement are cumulative, it is important to realize that intentional operational discharges will in general not also be “serious”. Admittedly, however, the vagueness of this term gives the coastal state much room for interpretation. Apart from the possibility of “stretching” this term, it is not unlikely that under certain conditions illegal operational discharges should be considered “serious”. Examples could include already heavily polluted enclosed seas or areas which are highly sensitive to pollution and are recognized internationally. The fact that the coastal state does not have invoke a specific category of interests which it seeks to protect, for example its coastline, and the fact that the term “pollution” has only been defined in a general sense in the 1982 Convention, contributes to a larger measure of discretion. Finally, while accidental discharges are often “serious”, they cannot meet the criterion of intent’. Franckx, supra note 195, 126–127. See Chapter 3 of this book.

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categories of laws that apply in the territorial sea.217 The coastal State may exercise the control necessary to prevent infringement of sanitary law,218 which is the most relevant issue with respect to the interface between ships’ ballast water, biopollution and pathogens.219 Within the EEZ,220 the coastal State has jurisdiction with regard to the protection and preservation of the marine environment221 and may adopt laws and regulations for the prevention of the biopollution of the marine environment.222 It has enforcement rights (and responsibilities) for international rules and standards or national laws giving effect to the international rules and standards governing vessel-source marine pollution. The coastal State, e.g., has enforcement rights in the EEZ in regard to the guidelines adopted in the BWM Convention, namely those adopted through domestic laws. However, the flag State exercises exclusive jurisdiction in the EEZ with respect to vessel-source pollution in regard to ships who fly its flag.223 Coastal States resist accepting flag State jurisdiction and correlated enforcement problems with respect to the EEZ. UNCLOS sets out the key provisions on the issue224 and adopts safeguards in regard to proceedings against foreign ships. Article 225 provides that States, when applying measures of enforcement against foreign vessels, are not to endanger the safety of navigation or otherwise create any hazard to a vessel, or bring the vessel to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk. Enforcement of the BWM Convention within the EEZ relies on cooperation between coastal and flag States. Accordingly, the BWM Convention, Article 10, paragraph 1, states: Parties shall co-operate in the detection of violations and the enforcement of the provisions of this Convention.

4.3.10. Annex The annex to the BWM Convention forms an integral part of the convention.225 The annex includes provisions on the technical aspects to preventing biopollution of the marine environment from ships. Entitled Regulations for the Control and Management of Ships’ Ballast Water and Sediments, the annex is comprised of five

217 218 219 220 221 222 223 224 225

McConnell, Chapter 1, supra note 2, 28. UNCLOS, Chapter 1, supra note 8, Article 33, paragraph 1(a). See Chapter 3 of this book. Ibid. UNCLOS, Chapter 1, supra note 8, Article 56(b)(iii). Ibid., Article 211, paragraph 5. BWM Convention, Chapter 1, supra note 3, Article 8. See Chapter 3 of this book. BWM Convention, Chapter 1, supra note 3, Article 2, paragraph 2.

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sections: (i) Section A – General Provisions; (ii) Section B – Management and Control Requirements for Ships; (iii) Section C – Special Requirements in Certain Areas; (iv) Section D – Standards for Ballast Water Management; and (v) Section E – Survey and Certification Requirements for Ballast Water Management. Each section is comprised of regulations that set out technical standards and requirements. Appendix 1 to the convention provides a template for the form of the International Ballast Water Management Certificate to be adopted by the BWM Convention Member States. Appendix 2 to the convention provides a form for the ballast water record book. Details of the annex provisions are reviewed below by section. 4.3.10.1. Section A – General Provisions Section A provides details on general provisions of the BWM Convention such as definitions, general applicability of the convention, exceptions and exemptions to the convention, and terms for equivalent compliance for specific classes of vessels. In addressing the essential technical-administrative concepts pertinent to the control and management of ships’ ballast water and sediments, the convention defines two key concepts: active substance and company. Active substance refers to ‘a substance or organism, including a virus or a fungus, that has a general or specific action on or against Harmful Aquatic Organisms and Pathogens’. Company means ‘the owner of the ship or any other organization or person such as the manager or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Safety Management Code’. Under Regulation A-2, ships are required to conduct the discharge of ballast water only through ballast water management, in accordance with the provisions of the annex. Regulation A-3 identifies exceptions to the application of the requirements of Regulation B-3 (Ballast Water Management for Ships), or any measures adopted by a State Party that are more stringent criteria than the BWM Convention,226 consistent with international law, and with respect to special requirements in certain areas.227 Regulation A-4 outlines the permanent exemptions228 that States, in waters under their jurisdiction, may grant with regard to the application of Regulations B-3 (Ballast Water Management for Ships) or C-1 (Special Requirements in Certain Areas). These exemptions are 226 227 228

Ibid., Article 2, paragraph 3. Ibid., Annex, Section C. ‘[…] the IMO Risk Assessment Guidelines are to support the BWC. Specifically, Regulation A-4 that allows Parties to exempt vessels from compliance with ballast water management prior to discharge if an acceptably low risk can be discerned. WGBOSV discussed the application

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1. granted to a ship or ships on a voyage or voyages between specified ports or locations; or to a ship which operates exclusively between specified ports or locations; 2. effective for a period of no more than five years subject to intermediate review; 3. granted to ships that do not mix Ballast Water or Sediments other than between the ports or locations specified in paragraph 1.1; and 4. granted based on the Guidelines on risk assessment developed by the Organization. Under Regulation A-5, States administrations are required to determine equivalent compliance for pleasure craft used solely for recreation or competition or craft used primarily for search and rescue. This provision relates to vessels less than 50 meters in length overall and with a maximum ballast water capacity of eight cubic meters. Equivalent compliance is to be determined in accordance with the IMO guidelines. 4.3.10.2. Section B – Management and Control Requirement for Ships Section B provides details on the primary management and control measures for ships: establishing a ballast water management plan, maintaining a ballast water record book, construction standards for new ships, and ballast water exchange and sediment management criteria. Under Regulation B-1, each ship is required to have on board a ballast water management plan. These plans are to be approved by the flag State taking into account the IMO guidelines. The plan must be written in the working language of the ship, however, if the language used is not English, French or Spanish, of risk assessment principles in relation to Regulation A-4 application. It was agreed that the risk assessment to support an exemption must be able to determine the likelihood of an unmanaged ballast water discharge causing at least one new species introduction into the receiving port. An additional requirement includes identifying whether the species is known or suspected to impair or cause harm to the environment, human health, property or resources to aid in determining whether the species is ‘harmful’. Under the IMO BWC an exemption can be granted for up to 5 years for a ship that operates within a specified transit between two or more ports. It was agreed that the only biologically defensible means to determine an evaluation of risk over this period would be to undertake a species specific exemption within a single bioprovince (an area within which the animal and plant species show a high degree of similarity). We noted that states have to inform neighboring states when an exemption is granted. Concerns were expressed regarding whether or not neighboring states will have the power to veto the exemption under the proposed convention’. ICES/IOC/IMO Working Group on Ballast Water and Other Ship Vectors (WGBOSV), Report 2005, 15; Recommendations on Ballast Water Risk Assessment Exemptions Relevant to Guideline G7 and Regulation A-4 of the BWC, submitted to IMO/MEPC 53 by the International Council for the Exploration of the Sea.

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a translation into one of these languages must be included. The BWMP is specific to each ship and should, at a minimum, 1. detail safety procedures for the ship and the crew associated with the ballast water management requires by the BWM Convention; 2. provide a detailed description of the actions to be taken to implement the ballast water management requirements and supplemental ballast water management practices as set forth in the BWM Convention; 3. detail the procedures for the disposal of sediments at sea and to shore; 4. include the procedures for coordinating shipboard ballast water management that involves discharge to the sea with the authorities of the State into whose waters such discharges will take place; 5. designate the officer on board in charge of ensuring that the plan is properly implemented; and 6. contain the reporting requirements for ships provided under the BWM Convention.229 Ballast tank sediments shall also be managed in accordance with the provisions of the ship’s BWMP.230 Each ship shall also carry on board a ballast water record book for two years and maintain it for a further three years under the shipping company’s control (Regulation B-2). The BWRB provides the ballast water operation information set out in Appendix 2 to the BWM Convention. These records must be in the crew’s language and translated into English, French or Spanish and available to authorities on the basis of a request consistent with international law. The BWM Convention adopts specifics standards in regard to ballast water management for ships constructed before or after 2009 (Regulation B-3). A ship constructed in 2009 and subject to regulation B-3.3 will not be required to comply with regulation D-2 until its second annual survey, but no later than 31 December 2011.231 A ship constructed before 2009 with a ballast water capacity 229 230 231

BWM Convention, Chapter 1, supra note 3, Annex, Section B, Regulation B-1. Ibid., Annex, Section B, Regulation B-5. Assembly Resolution A.1005(25), Application of the International Convention for the Control and Management of ships’ Ballast Water and Sediments, A 25/INF.8, Assembly, 25th session, 29 November 2007. The preamble to Resolution A.1005(25) acknowledges that ‘regarding the development of ballast water treatment technologies there are uncertainties as to whether typeapproved technologies would be immediately available for all ships subject to regulation B-3.3 and before, to address the ships to which this regulation would apply to first, this resolution provides an understanding only for those ships constructed in 2009’. Furthermore, ‘ships subject to regulation B-3.3 constructed in 2009 should not be subject to enforcement of the requirements of that regulation if type-approved technology is not immediately available to achieve the D-2 standard set forth in the Convention’.

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of between 1,500 and 5,000 cubic metres is required to conduct ballast water management that complies with the standards set out in Regulation D-1 or D-2 until 2014, and for those ships less than 1,500 or greater than 5,000 cubic metres, until 2016. Ships constructed after 2009 shall at least meet the standards described in Regulation D-2. Regulation B-4 calls for ballast water exchange at least 200 nautical miles from the nearest land and in water at least 200 metres in depth, taking into account the IMO guidelines. However, the ship cannot be required to deviate from its intended voyage, or delay the voyage, in order to comply with such requirements. Finally, under Regulation B-5, ships are required to remove and dispose of sediments from spaces designated to carry ballast water according to the provisions of the ship’s BWMP. 4.3.10.3. Section C – Special Requirement in Certain Areas As noted above in the discussion on Protected Areas, port/coastal States have the right to apply more stringent measures in certain areas (Tier 2) under Regulation C-1, paragraph 1. Further, States are required to notify mariners of areas under their jurisdiction where ships should not uptake ballast water taking into account, inter alia, infestations; populations of harmful aquatic organisms and pathogens, such as toxic algal blooms; proximity to sewage outfalls; or areas where tidal flushing is poor or times when a tidal stream is known to be more turbid (Regulation C-2). 4.3.10.4. Section D – Standards for Ballast Water Management Regulations D-1 and D-2 provide specific ballast water exchange rate and performance standards. Ships performing ballast water exchange are required to do so with an efficiency of at least 95 per cent volumetric exchange of ballast water. With regard to performance standards, ships are required to discharge less than 10 viable organisms per cubic metre greater than or equal to 50 micrometres in minimum dimension and less than 10 viable organisms per millilitre less than 50 micrometres in minimum dimension and greater than or equal to 10 micrometres in minimum dimension. Ballast water management systems used to comply with the BWM Convention must be approved by the administration, taking into account the IMO guidelines (Regulation D-3). Such systems must be safe for the ship, its equipment and the crew. In adopting and carrying out any programme to test and evaluate promising ballast water treatment technologies, States are to take into account IMO guidelines and allow participation only by the minimum number of ships necessary to test such technologies (Regulation D-4). Review of technologies shall not

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only consider IMO guidelines, but also safety issues with respect to the ship and the crew; environmental acceptability, i.e., not causing more environmental impact than they solve; practicability; cost effectiveness; and biological effectiveness, e.g., removing harmful aquatic organisms and pathogens in ballast water (Regulation D-5). 4.3.10.5. Section E – Survey and Certification Requirements for Ballast Water Management Under the BWM Convention, flag States are required to ensure that each ship to which Regulation E-1 applies is issued a certificate after successful fulfillment of standards under the rules with respect to survey and certification requirements for ballast water management. The BWM Convention requires a specific initial survey and interim surveys to ensure that the ship is in compliance with its rules. It must be carried out by the flag State for vessels of 400 gross tonnage and above.232 The flag State must develop appropriate survey measures for other ships.233 The Ballast Water Management Certificate (BWMC) issued by the flag State is the result of these surveys and is regarded by other Parties to the BWM Convention as having the same validity as a certificate issued by them.234 It will be valid for up to five years, subject to periodic surveys,235 and ceases to be valid if the ship is transferred to another flag State.236 The ballast water management requirements for each ship will vary depending on the date of ship construction237 and the discharge location, namely, special areas.238 4.3.11. Guidelines To achieve a standard approach to ships’ ballast water and sediments control and management, the BWM Convention adopted technical guidelines,239 which were

232 233 234 235 236 237 238 239

Ibid., Annex, Section E, Regulation E-1. Ibid., Annex, Section D, Regulation D-5. Ibid., Annex, Section E, Regulation E-2.1. Ibid., Annex, Section E, Regulation E-1.2; E-5. Ibid., Annex, Section E, Regulation E- 5. 9.2. Ibid., Annex, Section B, Regulation B-3. Ibid., Annex, Section C. IMO, International Conference on Ballast Water Management for Ships, Draft Conference Resolution on Future Work by the Organization concerning the Development of Guidelines in Support of the Convention (SEC), BWM/CONF/10, 19 December 2003; MEPC 53/INF.22, 8 September 2005; MEPC 53/2/10, 15 April 2005; BLG 11/ WP.2, 19 April 2007.

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to be developed under the auspices of IMO.240 A set of 17 guidelines supports the uniform implementation of the convention:241 1. Guidelines for Sediment Reception Facilities (G1)242 (linked with Article 5.1) 2. Guidelines on Ballast Water Sampling (G2)243 (linked with Article 9 ) 3. Guidelines for Ballast Water Management Equivalent Compliance (G3)244 (linked with Regulations A-5) 4. Guidelines for Ballast Water Management and the Development of Ballast Water Management Plans (G4)245 (linked with Regulation B-1) 5. Guidelines for Ballast Water Reception Facilities (G5)246 (linked with Regulation B-3.6) 6. Guidelines for Ballast Water Exchange (G6)247 (linked with Regulation B-4.1)

240

241 242 243

244

245 246

247

‘In addition, the Convention envisions a substantial ‘administrative’ role for the IMO. In ten instances, an Article or an Annex Regulation of the Convention makes reference to guidelines to be developed by the IMO. Given the unusually heavy burden placed on the IMO to provide more detailed guidance for the full development and implementation of the Convention, the Conference at which the Convention was adopted, approved a resolutions which calls on the IMO to develop the guidelines as a matter of urgency […] as soon as possible’. Firestone and Corbett, Chapter 3, supra note 217, 295; IMO, Final Act of the International Conference on Ballast Water Management for Ships, 2004; Report of International Council for the Exploration of the Sea (ICES/IOC/IMO Working Group on Ballast and Other Ships Vector Report, Arendal, Norway), 2005. Gollasch, et al., supra note 101, 586–587. IMO, supra note 170. BLG 11/4/1 (Secretariat); BLG 11/4/5 (Brazil); BLG 11/4/10 (United Kingdom); FSI 14, June 2006 BLG 11/ WP.2, 19 April 2007. (Pending). Guidelines on Ballast Water Sampling (G2) identify the best procedures for collecting ballast water samples from ships in order to enable port State control officers and sanitary surveyors to verify the compliance of a ship with the requirements set out in the BWM Convention. These guidelines can also be used to verify the procedures established under the ship’s BWMP, particularly with respect to the standards that the ship shall meet in relation to ballast water management and ballast water performance standards (ballast water exchange – standard D-1; or ballast water treatment – standards D-2). The guidelines outline some of the difficulties in undertaking this task and indicate the best places to collect ballast water samples onboard a ship. Measures to deal with the ballast water samples up to the final analysis are still under discussion and development by IMO WGBW (MEPC and BLG Sub-Committee). IMO, Guidelines for Ballast Water Management Equivalent Compliance (G3), MEPC 53/24/ Add.1, Annex 1, Resolution MEPC. 123(53), adopted on 22 July 2005. Ibid, Annex 5, Resolution MEPC. 127(53). IMO, Guidelines for Ballast Water Reception Facilities (G5), MEPC 55/23, Annex 5, Resolution MEPC. 153(55), adopted on 13 October 2006. IMO, Guidelines for Ballast Water Exchange (G6), MEPC 53/24/Add.1, Annex 1, Resolution MEPC. 124(53), adopted on 22 July 2005.

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7. Guidelines For Ballast Water Risk Assessment (G7)248 (linked with Regulation A-A-4) 8. Guidelines for Approval of Ballast Water Management Systems (G8)249 (linked with Regulation D.3.1) 9. Procedures for approval of Ballast Water Management Systems that Make Use of Active Substances (G9)250 (linked with Regulation D-3.1) 10. Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10)251 (linked with Regulation D-4.3.1) 11. Guidelines for Ballast Water Exchange Design and Construction Standards (G11)252 (linked with Regulation D-2) 12. Guidelines on Design and Construction to Facilitate Sediment Control on Ships (G12)253 (linked with Regulation B-5.2) 13. Guidelines for Additional Measures regarding Ballast Water Management including Emergency Situations (G13)254 (linked with Regulation A-2 and Section C) 14. Guidelines on Designation of Areas for Ballast Water Exchange (G14)255 (linked with Regulation B-4.1.(1) and (2) ) 15. Ballast Water Guidelines for Port State Control256 248

249 250 251

252

253 254

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IMO, Guidelines for Risk Assessment Under Regulation A-4 of the BWM Convention (G7), MEPC 56/23, Resolution MEPC.162 (56), adopted on 13 July, 2007; BLG 11/4/4 (Australian and New Zealand); BLG 11/4/5 (Brazil); BLG 11/4/13 (United States); BLG 11/ WP.2, 19 April 2007; Resolution MEPC.126 (56), adopted on 13 July 2007. Ibid, Annex 3, Resolution MEPC. 125(53). Ibid., Annex 4, Resolution MEPC. 126(53). IMO, Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10), MEPC 54/21, Annex 1, Resolution MEPC. 140(54). adopted 24 March 2006. IMO, Guidelines for Ballast Water Exchange Design and Construction Standards (G11), MEPC 55/23, Annex 1, Resolution MEPC. 149(55), adopted 13 October 2006. MEPC 55/23., Annex 2, Resolution MEPC. 150(55). IMO, Guidelines for Additional Measures regarding Ballast Water Management including Emergency Situations (G13), MEPC 56/23, Resolution MEPC.161(56), adopted 13 July 2007; MEPC 55/2/22 (Norway); MEPC 56; BLG 11/4/12 (United States); BLG 11/4/16 (Singapore); BLG 11/ WP.2, 19 April 2007. IMO, Guidelines on Designation of Areas for Ballast Water Exchange (G14), MEPC 55/23, Annex 3, Resolution MEPC.151(55), adopted 13 October 2006. FSI 13/23; FSI 14/19; FSI 15 (June 2007), target completion date 2008. Ballast Water Guidelines for Port State Control (PSC) (G15) outline the surveys and inspections required under the BWM Convention for vessels in service. Surveys and inspections should be conducted that are feasible, quickly verified, sufficiently effective and uniformly applied internationally in order to avoid unduly delays to ships. Ballast water management standards regulated under the BWM Convention may have to be verified in more detail in these inspections depending on the level of compliance that the ship can demonstrate to the PSC officer during inspections related to the applicable requirements.

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16. Guidelines for Ballast Water Exchange in the Antarctic Treaty257 17. Ballast Water Guidelines for Flag State Surveys and Inspections258 Guidelines are standards of behaviour that can be binding or non-binding.259 This terminology suggests that the rules come from treaties or non-binding resolutions. The critical issue is to determine when the rule is part of the lex lata, i.e. positive law. The authority for the rule as a rule of law, i.e. binding on States, is determined by the formal source of the rule. If a rule is set out in a treaty, then it is binding on the States party to that treaty.260 Accordingly, the BWM Convention is the formal source of the law on the control and management of ships’ ballast water as it is the essence of the legal system on this issue. The guidelines required therein, however, derive their legality from such a primary source of international law and, consequently, are a hierarchically inferior source of law. Certainly, the guidelines shall be constructed under the limits addressed in the BWM Convention. However, the BWM Convention does not clearly address this issue even though the guidelines are relevant to the interpretation and application of the rules and standards provided for in the convention. Indeed, the legal status of the guidelines developed by IMO under the BWM Convention is a controversial issue. The ballast water’s legal Pandora’s Box invokes the principle of the effectiveness of international instruments. From this perspective, the guidelines should be interpreted consistent with the teleology of the interconnected articles and regulations of the BWM Convention. In several provisions of the BWM Convention, Parties are ‘requested to apply these Guidelines’ or ‘may apply’ rather than ‘shall apply the Guidelines’. Thus the guidelines are predominantly recommendatory in nature. Nevertheless, several provisions require that Parties ‘shall take into account the Guidelines developed by the Organization’, which can be interpreted as strict compliance with the guidelines is expected. Other provisions use more stringent terms and require the Parties to act ‘in 257

258

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IMO, Guidelines for Ballast Water Exchange in the Antarctic Treaty Area, MEPC. 56/23, Annex 4, Resolution MEPC.163(56), adopted 13 July 2007. IMO, Interim Survey Guidelines for the purpose of the International Convention for the Control and Management of Ships. Ballast Water and Sediments under the Harmonized System of Survey and Certification, Resolution A.948(23), BWM.2/Circ.7. Ballast Water Guidelines for Flag State Surveys and Inspections relate to the BWM Convention and its requirements in accordance with the Harmonized System of Surveys and Certification (HSSC) of IMO. These guidelines provide a technical checklist to administrations and recognized organizations or classifications societies on the conduct the surveys set out in the BWM Convention for the construction of ships. ‘To guide: To direct or lead, to show the way. Guidance is the act of giving direction, providing advice or offering the means for taking and holding a course. Guidelines are standards of behavior, biding or nonbinding.’ Christine Rossini, English as a Legal Language (The Hague: Kluwer Law International, 2004), 248. Thirlway, supra note 15, 119.

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accordance with the Guidelines’. Thus each guideline must be interpreted, in particular, under the related article or regulation and, more generally, from the holistic perspective of the BWM Convention. Moreover, international customary rules can emerge from State practice based on the guidelines. Indeed, the technical rules provided in the guidelines may be adopted and applied in the practice of port, coastal and flag States. The voluntary adoption of the guidelines through national laws and regulations, consistent with international law, are binding on foreign ships voluntarily in port. Furthermore, the guidelines might be part of international rules and standards that flag States are required to comply with UNCLOS. 4.3.12. Entry into Force The consent of the State is one of the pillars of the international legal framework provided in the 1969 Vienna Convention. Indeed, only through consent shall States be bound to a treaty, except in the cases where a treaty also addresses customary rules. Under traditional treaty-making procedures, authorized State representatives261 drafted and agreed to the BWM Convention at the 2004 International Conference on Ballast Water Management for Ships.262 Article 17 of the BWM Convention, taking into accounting Article 11 of the Vienna Convention, refers to consent through signature, ratification, acceptance, approval and accession to the Convention: Signature, Ratification, Acceptance, Approval and Accession 1. This Convention shall be open for signature by any State at the Headquarters of the Organization from 1 June 2004 to 31 May 2005 and shall thereafter remain open for accession by any State. 2. States may become Parties to the Convention by: a. signature not subject to ratification, acceptance or approval; or b. signature subject to ratification, acceptance, or approval, followed by ratification, acceptance or approval; or c. accession 3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General. […]. The BWM Convention foresees that the ratification shall be effected by deposit of the instrument with the IMO Secretary-General. The device of ratification by

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The Vienna Convention, Chapter 2, supra note 103, Article 7, paragraph 1, provides: ‘[A] person is considered as representing a State for the purpose of adopting or authenticating the text pf a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers […]’. IMO, List of Documents Issued in Connection with the International Conference on Ballast Water Management for Ships, IMO/BWM/CONF/INF.9, 10 April 2004.

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the competent authorities of the State is historically well established and was originally provided to ensure that the representative did not exceed his powers or instructions in regard to the making of a particular agreement. Although ratification or approval was originally a function of the sovereign, currently it is subject to constitutional control. Consent by ratification is probably the most popular of the methods adopted by a State to adhere to a treaty. Nevertheless, consent by signature does retain some significance, especially in light of the fact that to insist upon ratification in each case before a treaty becomes binding is likely to burden the administrative machinery of government and result in long delays.263 A State uses accession to become a party to a treaty that it did not sign whilst the treaty was open for signature. Technically, accession requires the State to deposit an instrument of accession with the depositary. Under Article 15 of the Vienna Convention, consent by accession shall be addressed in the treaty. Treaties become operative when and how the negotiating States decide.264 Generally, treaties provide that they come into effect upon a certain date or after a determined period following the last ratification. Under the legal framework adopted by IMO, each convention includes specific provisions in regard to the conditions to entry into force. Mexico submitted a proposal for the purpose of finalizing the text of Article 18, paragraph 1, in regard to the number of countries necessary for the BWM Convention to enter into force. The proposal considered several interconnected factors: 1. An adequate balance must be struck between the increase in the number and technical and financial significance of the international obligations assumed by Member States in their capacity as Port States and the number of ratifications necessary to establish the Convention’s entry into force, so that those States in particular find their interests reflected in the regulations they are required to enforce and finance; 2. it is essential to have a truly global document based on the principle of universal representation among the whole international community, regardless of the level of integration that exists among certain States; and 3. owing to the current geopolitical situation, and by contrast withy the circumstances surrounding the earliest maritime treaties, the number of Member States has greatly increased. Accordingly, the number of States that jointly determine when the BWM Convention should enter into force must also be increased, thus ensuring that it becomes a truly global instrument.265

263 264 265

Shaw, Chapter 3, supra note 2, 818–819. Vienna Convention, Chapter 2, supra note 103, Article 24. IMO, International Conference on Ballast Water Management for Ships, Proposal Concerning Entry into Force (Article 18.1), Submitted by the Government of Mexico, BWM/CONF/30, 9 February 2004.

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Mexico proposed that Article 18, paragraph 1, should read as follows: The Convention shall enter into force when 40 States, the combined merchant fleets of which constitute not less than 50 per cent of the gross tonnage of the world’s merchant shipping, have deposited an instrument of ratification, acceptance, approval or accession.

The combined formula was adopted by the BWM Convention, Article 18, paragraph. 1, which provides: [T]he Convention shall enter into force twelve months after the date on which not less than thirty States, the combined merchant fleets of which constitute not less than thirty-five percent of the gross tonnage of the world’s merchant shipping, have either signed it without reservation as to ratification, acceptance or approval or have deposited the requisite instrument of ratification, acceptance, approval or accession in accordance with Article 17.

The BWM Convention, not yet in force, was finalized at London, 13 February 2004. As of January 2008 the following States are signatories to the BWM Convention: Argentina,266 Australia,267 Brazil,268 Barbados,269 Egypt,270 Finland,271 Kiribati,272 Maldives;273 Netherlands,274 Nigeria,275 Norway,276 Saint Kitts and Nevis,277 Sierra Leone,278 Spain,279 Syrian Arab Republic,280 and

266 267 268 269 270 271 272 273

274 275

276 277

278 279

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Ibid., subject to ratification. Ibid. Ibid. Ratification done at 11 May 2007. Ratification done at 18 May 2007. Subject to acceptance. Ratification done at 5 February 2007. Ratification done at 22 June 2005; representing 0.01% of the gross tonnage of the world’s merchant shipping. Subject to approval. Accession done at 13 October 2005; representing 0.07% of the gross tonnage of the worlds’ merchant shipping. Ratification done at 20 March 2007. Accession done at 30 August 2005; representing 0.00% of the gross tonnage of the world’s merchant shipping. Ratification done at 21 November 2007. Ratification done at 14 September 2005; representing 0.45% of the gross tonnage of the worlds’ merchant shipping. Ratification done at 2 September 2005; representing 0.07% of the gross tonnage of the world’s merchant shipping.

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Tuvalu.281 The countries that have ratified the BWM Convention represent approximately 3.46 per cent of the gross tonnage of the world’s merchant shipping fleet. 4.3.13. Amendments The BWM Convention, Article 19, offers two procedures for amendments: after consideration within IMO and by a conference of Parties. The provisions for amendments after consideration within IMO are as follows: 1. any Party may propose an amendment to the BWM Convention; 2. amendments shall be adopted by two-thirds majority of the Parties present and voting in the MEPC, on condition that at least one-third of the Parties are present at the time of voting; 3. amendments shall be communicated by the Secretary-General to the Parties for acceptance; 4. an amendment to an Article of the BWM Convention shall be deemed to have been accepted on the date on which two-thirds of the Parties have notified the Secretary-General of their acceptance of it; 5. an amendment to the Annex shall be deemed to have been accepted at the end of twelve months after the date of adoption or such other date as determined by MEPC. However, if by that date more than one-third of the Parties notify the Secretary-General that they object to the amendment, it shall be deemed not to have been accepted; 6. an amendment to an Article shall enter into force for those Parties that have declared that they have accepted it six months after the date on which it is deemed to have been accepted; and 7. an amendment to the Annex shall enter into force with respect to all Parties six months after the date on which it is deemed to have been accepted, except for any Party that has made its objection known. Amendments by a conference are governed by the following provisions: 1. upon the request of a Party to which at least one-third of the Parties have concurred, the IMO shall convene a Conference of Parties to consider amendments to the BWM Convention; 2. an amendment adopted by such a conference by a two-thirds majority of the Parties present and voting shall be communicated by the Secretary-General to all Parties for acceptance; and

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Accession done at 2 December 2005; representing 0.02% of the gross tonnage of the world’s merchant shipping.

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3. unless the conference decides otherwise, the amendment shall be deemed to have been accepted and shall enter into force in accordance with the procedures specified in the above item (a) (vi) and (vii) respectively. 4.3.14. Dispute Settlement Provisions The peaceful settlement of dispute is the core of international law and international relations.282 The BWM Convention refers to a range of diplomatic and legal methods for handling disputes. Under Article 15, any dispute between Parties concerning the interpretation or application of the convention is to be settled by negotiation,283 enquiry,284 mediation,285 conciliation,286 arbitration,287

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See John Merrills, “The means of dispute settlement,” in International Law, 1st edition, Malcolm D. Evans, ed. (Oxford: Oxford University Press, 2003), 523–577; Shaw, Chapter 3, supra note 2, 914–950; A. E. Boyle, “UNCLOS, the marine environment and the settlement of disputes,” in Competing Norms in the Law of Marine Environmental Protection, H. Ringbom, ed. (The Hague: Kluwer Law International, 1997), 241–256; United Nations General Assembly, Manila Declaration on the Peaceful Settlement of International Disputes, Resolution 37/10 (1982), reprinted in 21 ILM 449. Negotiation is a diplomatic method which is used more often in practice. Indeed, ‘negotiation is the only means employed, not just because it is the first to be tried and is often successful, but also because its advantages may appear so great as to rule out other methods, even where the chances of a negotiated settlement are slight’. Merrills, supra note 282, 531. Inquiry in a broader sense refers to ‘the process performed whenever a court or other body attempts to resolve a dispute issue of fact’. In a narrower sense, the term can be used as ‘a specific institutional arrangement which may selected instead of arbitration or other techniques to establish the facts. In this institutional sense, then, inquiry refers to a particular type of international tribunal, known as the commission of inquiry and introduced by the 1889 Hague Convention’. Ibid., 535. Mediation is a diplomatic method which is an adjunct of negotiation and involves a third party. Ibid., 533. Under Article 1 of the Regulations on the Procedure of International Conciliation, adopted by the Institute of International Law, in 1961, Conciliation means ‘A method for the settlement of international disputes of any nature according to which a Commission set up by the Parties, either on a permanent or an ad hoc basis to deal with a dispute proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by them, or of affording the Parties with a view to its settlement, such aid as the may request’. Ibid., 537. The oldest of the legal methods of settlement of dispute is arbitration. ‘A distinctive feature of arbitration is that the parties themselves set up a tribunal to decide a dispute, or a series of disputes, usually on the basis of international law, and agree to treat its decisions as binding’. Ibid., 539.

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juridical settlement,288 resort to regional agencies or arrangements,289 or other peaceful means of their own choice. 4.3.15. Sovereignty and the BWM Convention Summa in cives ac suditos legibusque soluta potestas Coexistence and cooperation are the core of the legal framework to preventing biopollution of the marine environment. Currently, international law, inter alia, through environmental principles and standards imposes even more restrictions on the traditional concept of sovereignty. Sovereignty seems to be the oldest subject in international law.290 While some publicists have announced the decline and even the death of the myth of sovereignty, others consider sovereignty the pillar of international law.291 Bodin refers to sovereignty as a supreme authority and power in a certain territory, exercised by a monarch; absolute authority, indivisible, non-transferable, perpetual and original power.292 However, in defining sovereign power as absolute and perpetual the author did not acknowledge such power as unlimited, as is often misunderstood.293 Indeed, Bodin subjected sovereignty not only to the divine and natural law, but also to treaties.294 Classical preGrotius authors, including Francisco de Vitoria,295 Francisco Suárez296 and

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291 292

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Juridical settlement ‘involves the reference of disputes to permanent tribunals for a legally binding decisions’. States may agree to ‘take future disputes, or any particular dispute, to the Court by concluding a treaty in appropriate terms, or to make a unilateral acceptance of jurisdiction’, known Optional Clause. Ibid., 541. See, e.g., Charter of the United Nations, Article 52; the Manila Declaration refers to ‘resort to regional agencies or arrangements’ meaning, inter alia, e.g., bodies such as the Organization of American States (OAS), the Organization of African Unity (OAU) and the European Economic Community (EEC). Ibid., 547–553. Franz X. Perrez, Cooperative Sovereignty: From Independence to. Interdependence in the Structure of International Environmental Law (The Hague: Kluwer Law International, 2000), 1. Ibid., 117. Jean Bodin, Los Seis Libros de La Republica (Madrid: Aguillar, 1973), 46–51; Hermann Heller, La Soberania (México: UNAM, 1965), 80; Franz Neumann, The Rule of Law (Dover): Berg, 1986), 77–83. Jean Bodin, On Sovereignty, edited and translated by Julian Franklin (Cambridge: Cambridge University Press, 2003), xiii ; Perrez, supra note 291, 26. Perrez, supra note 290, 2. Vitoria ‘subjected the freedom and authority of the states to higher norms. Thus, he required the Christian Kings to respect the “precepts of the gospel”. But while only Christians could be lead by divine law, the relations with all nations […] should be governed by a ius gentium that is common to all mankind and that results from man’s rational nature and from natural law […] Examples of such binding rules of ius gentium were […] the common ownership of the seas, the right of communication and the freedom of travel’. Ibid., 30. ‘Suárez […] still perceived state freedom as limited’. Ibid., 31.

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Alberto Gentili,297 also envisaged and accepted limitations to sovereignty.298 Likewise, Grotius argued that sovereignty was limited by international law.299 Currently, the BWM Convention provides several criteria for the control and management of ships’ ballast water that restrict the port/coastal and the flag States sovereignty through a general duty to cooperate300 and concrete obligations to cooperate.301 Under Article 2, paragraph 6, the BWM Convention provides a general obligation to act cooperatively. Although a broad duty is addressed to States, it does not provide specific obligations therein: (6) Parties taking action pursuant to this Convention shall endeavour to not impair or damage the environment, human health, property or resources, or those of other States.

This provision offers a vague legal framework. States are bound to a basic guideline for general behaviour, i.e. to refrain from causing damage to the marine environment by discharges of ballast water and sediments, prohibiting transboundary pollution. This general obligation does not significantly affect the port/coastal and flag States’ sovereignty. Indeed, States do not object to the acceptance and ratification of international treaties that address this level of commitment. Moreover, the general obligation to prevent pollution in this article certainly has emerged under customary law. However, when an international treaty provides concrete obligations to cooperate,302 the behaviour of States varies according to the impact and legal effects of such obligations on States’ sovereignty. Often port/coastal and flag States are hesitant to ratify international treaties which may affect their independence. The BWM Convention includes concrete forms of cooperation that have minimal, some or significant effect on the freedom and independence of States. Provisions of the BWM Convention that have minimal effect on a States’ freedom and independence include: 1. Exchange of information: Article 6, paragraph 2, provides ‘Each Party shall, to further the objectives of this Convention, promote the availability of relevant

297

298 299 300 301 302

‘Gentili accepts a right of armed intervention […]. to safeguard the freedom of the sea […] This shows that economic prosperity was seen already in the late middle ages as an important goal limiting the freedom of states […]. In giving the sates the right to intervene with armed force when international law was violated, Suárez and Gentili clearly accepted a limitation of the freedom of the states and a primacy of international law over state sovereignty’. Ibid., 33. Ibid., 30–33. Ibid., 34–37. BWM Convention, Chapter 1, supra note 3, Article 2, paragraph 6. Ibid., Articles 6 and 13. For details in regard to ‘concrete obligations to cooperate’, see Perrez, supra note 290, 262.

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information to other Parties who request it on: (a) scientific and technology programmes and technical measures undertaken with respect to Ballast Water Management; and (b) the effectiveness of Ballast Water Management deduced from any monitoring and assessment programmes’ [emphasis added]; and 2. Undertake joint scientific research and cooperate in the investigation, monitoring and assessment of common problems: Article 6, paragraph 1, reads: ‘Parties shall endeavour, individually or jointly, to: (a) promote and facilitate scientific and technical research on Ballast Water Management; and (b) monitor the effects of Ballast Water Management in waters under their jurisdiction’. [emphasis added] Provisions of the BWM Convention that have some effect on the freedom and independence of the States deal with: 1. Provision of technical and financial assistance: Article 13, asks that ‘1. Parties undertake […] as appropriate in respect to the control and management of ships’ ballast water and sediments to provide support for those which request technical assistance: (a) to train personnel; to ensure the availability of relevant technology, equipment and facilities […] 2. Parties undertake to co-operate actively, subject to their national laws, regulations and policies, in the transfer of technology in respect of the control and management of ships’ Ballast Water and Sediments’ [emphasis added]; and 2. Entering into consultation or negotiation: Article 2, para. 9, states: ‘Parties shall endeavour to co-operate under the auspices of the Organization to address threats and risks to sensitive, vulnerable or threatened marine ecosystems and biodiversity in areas beyond the limits of national jurisdiction in relation to Ballast Water Management’. [emphasis added] To achieve its purposes, the BWM Convention provides for concrete forms of cooperation with significant effect on State sovereignty. It calls on States to join an international treaty, to participate in common decision-making and accept common decisions, e.g., to participate in the adoption and implementation of measures addressed in the guidelines required under the BWM Convention. For example, Article 4 provides: Each Party shall require that ships to which this Convention applies and which are entitled to fly its flag […] comply with the requirements set forth in this Convention, including the applicable standards and requirements in the Annex, and shall take effective measures to ensure that those ships comply with those requirements. [emphasis added].

Further demands are made on States in Article 5 which reads: Each Party undertakes to ensure that, in ports and terminals designated by that Party where cleaning or repair of ballast tanks occurs, adequate facilities are provided

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for the receptions of Sediments, taking into account the Guidelines developed by the Organization. [emphasis added].

4.3.16. Conclusions Regarding the BWM Convention The 2004 BWM Convention is a complex anti-pollution convention comprised of 22 articles; an annex encompassing five sections that provides technical regulations for the control and management of ships’ ballast water and sediments; and two appendixes setting out standard formats with respect to the International Ballast Water Management Certificate and the required form of the ballast water record book for reporting and verification regarding each ballast water operation, including discharges at sea and to reception facilities. A further 17 guidelines drafted by IMO interconnect with the BWM Convention. These guidelines provide essential additional technical instruction to support the implementation of this environmental protection convention. Consistent with UNCLOS, the BWM Convention aims at to prevent, minimize and ultimately eliminate the risks to the environment, human health, property and marine resources arising from the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments. The core regulatory regime provided in the BWM Convention is underlined by the precautionary principle. The precautionary principle holds that scientific uncertainty is not be used as a reason for postponing actions to avoid or minimize potentially serious or irreversible threats to health and/or the environment. Indeed, the impacts of alien invasive species are usually irreversible and eradication of an established alien invasive specie is not a realistic option. Scientific data on alien invasive species led to the adoption of the guidelines developed by IMO. These guidelines are more easily updated with advances in scientific-technological findings. Although the legal nature of such guidance is controversial, considering the provision of the BWM Convention, it is predominantly recommendatory in nature. The preventive and precautionary regulatory regime provided in the BWM Convention is primarily addressed to flag States. Ballast water discharges can impact international waters, in particular, when exchanges occur on the high seas. In principle, the flag State exercises sole enforcement jurisdiction regarding environmental and safety international rules and standards established through the IMO on the high seas. Nevertheless, the BWM Convention can also be considered a protective port State convention from the perspective of anti-biopollution practices. These practices include quarantine measures regarding harmful aquatic organisms and pathogens discharged into the receiving ports through ships’ ballast water. Accordingly, more stringent protective measures can be adopted by port States, including, inter alia, a regulatory regime regarding ballast water reception facilities; designation of ballast water exchange areas; requirements for use of

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treatment technologies prior to Regulation D-2 standards entering into force; and stricter standards than provided in Regulation D-2. Similar to MARPOL’s designated special areas formula, the BWM Convention adopts a two-tier approach to standards and operating requirements. This approach provides, firstly, that certain baseline requirements be applied to all ships that carry ballast water on international voyages (Tier 1), and secondly, when ships enter certain designated areas they may be subject to further controls with respect to the uptake and/or discharge of ballast water (Tier 2). To become operative, such a convention provides intricate interconnected technical-legal provisions. The BWM Convention provides not only for a specific number of States to ratify it, but that they must also represent a specific percentage of the gross tonnage of the world’s merchant shipping. Accordingly, the success and effectiveness of the first specific treaty on the control and management of ships’ ballast water and sediments relies, primarily, on the implementation of a preventive and precautionary regime by the shipping community. Such a regime should protect the marine environment from the main vector for the transfer of harmful aquatic organisms and pathogens from one ecosystem to another.

4.4. Conclusion The codification of the legal regime on biopollution through ships’ ballast water and sediments under IMO evolved from soft to hard law. Initially, in the 1970s, IMO focused on health problems interconnected with the danger of the spreading of diseases through ballast water containing bacteria of epidemic diseases. In the 1990s, IMO guidelines, recommendatory in nature, adopted a preventive approach and subsequently adopted a precautionary approach that takes into account the reality that such transfers can not be completely prevented. This philosophy underlies the legally-binding 2004 BWM Convention. Recognizing that the international legal framework currently in force does not specifically and systematically regulate the issue, the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments was adopted under the auspices of IMO. Influenced by the law of the sea and environmental law regimes, this treaty aims to reduce and, ultimately, to eliminate the effects of ballast water exchanges on the marine environment. It addresses rights and obligations of port, coastal, and flag States and provides technical guidelines for the control and management of ballast water. The regulatory protective regime of the BWM Convention is primarily directed to flag States. Shipping nations have an essential responsibility to comply with anti-pollution conventions, regulations and standards adopted through IMO, as do port and coastal States’ administrations.

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Existing customary and conventional obligations are the pillars of the BWM Convention regime. In particular, the convention establishes the general obligation for States regarding the protection of the marine environment under the preventive principle and the specific obligation to take action to prevent the transfer of potentially harmful aquatic organisms and pathogens between ecosystems under the precautionary principle. This is particularly the case where there are threats of serious or irreversible environmental damage, despite the scientific uncertainty of those threats. From a scientific perspective, complete eradication of alien invasive species is not realistic. Prevention is the only solution. There are only a few examples of successful eradication actions, where conditions allowed rapid action. Accordingly, the BWM Convention may be viewed as a pioneering treaty in breaking new technical and legal grounds towards the development of a new order for the oceans, demonstrating the evolution of the traditional concept of sovereignty into so-called cooperative sovereignty.

Chapter 5 GloBallast Legislative Review: Brazilian Case Study 5.1. Introduction The GloBallast Legislative Review Project (Project)1 is an essential component of the comprehensive Global Ballast Water Management Programme (GloBallast Programme).2 It analyzes and reviews the legal and administrative framework in six pilot countries, namely Brazil, China, India, Iran, South Africa and Ukraine. Its goal was to help developing countries reduce the transfer of harmful aquatic organisms and pathogens and to implement the voluntary Guidelines for the control and

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McConnell notes ‘The project performed a number of interdependent functions including: legal data collection; analysis of strategic regulatory design options for the pilot countries to assist in the implementation of the various facets of IMO Resolution A.868 (20) Guidelines for the control and management of ships ballast water to minimize the transfer of harmful aquatic organisms and pathogens and to lay a foundation for the rapid implementation of a proposed International Convention for the Control and Management of Ships’ Ballast Water and Sediments; developing best practices recommendations and a list of elements to be considered in drafting national legislation for the pilot and other countries wishing to address the problem of the transfer of potentially harmful aquatic organisms and pathogens in ships’ ballast water and sediments; building legal expertise and capacity in the six pilot countries; […]’. McConnell, Chapter 1, supra note 2, iii. The GloBallast Programme is a cooperative initiative of the Global Environment Facility (GEF), the United Nations Development Programme (UNDP), and the International Maritime Organization (IMO) with the purpose of assisting developing countries to reduce the transfer of harmful organisms and pathogens through ships’ ballast water.In 1999, GEF approved the Project for the Removal of Barriers for the Effective Implementation of the Control of Ballast Water and Management Measures in Developing Countries, which was later designated as GloBallast Programme. The GloBallast Programme focused on six pilot ports to assess the efficiency of the ballast water management criteria. Its main activities have been to test a standardized method of ballast water risk assessment in the following ports: Sepetiba (Brazil), Dalian (China), Mumbai (India), Khark Island (Iran), Odessa (Ukraine) and Saldanha Bay (South Africa). The first step of the GloBallast method was to collate data from BWRFs to identify the source ports from which ballast water is imported to the demonstration port. See Alexandre de Carvalho Neto and Silvio Jablonski, O Programa GloBallast no Brasil, Água de Lastro e Bioinvasão (Rio de Janeiro: Interciência ed., 2004), 11–20.

Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 145–158. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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management of ships’ ballast water to minimize the transfer of harmful aquatic organisms and pathogens set out in IMO Assembly Resolution A.868(20).3 Indeed, the Project laid a basis for the adoption of a proposed BWM Convention and of national policy on the issue. In 2001, during the 1st International Workshop on the Legal Aspects of Ballast Water Management and Control,4 the local legal consultant of the referred countries reviewed domestic laws and regulations on the issue and made recommendations to MEPC for inclusion in the IMO draft BWM Convention text. The Project identified several similar elements in the six pilot countries, in particular the involvement of several governmental agencies reflecting the multidisciplinary nature of the issue; national legislative overlap on biopollution through ships’ ballast water; different legal approaches to the issue, i.e. provisions under environmental, sanitary, and maritime laws and/or the law of the sea; national and international legal frameworks based on the preventive and precautionary principles, particularly as set out under MARPOL, UNCLOS and the Biodiversity Convention; and the clear influence of IMO Resolution A.868(20) on the national legal framework of the pilot countries. The Project also noted the impact of MARPOL, UNCLOS and the Biodiversity Convention on the regulatory design for the proposed BWM Convention, and acknowledged the emergence of the international will to adopt such a new convention to achieve integrated management of the oceans. Finally, the Project noted that a legislative review is a necessary first step for any country that intends to implement the BWM Convention.

5.2. Unilateral Acts and Ballast Water One cannot complain that this is an illicit process in any way, for the technological changes of the time, and the disturbances that have resulted in environmental and social matters, require that there be changes in the law. It is not a matter of recording old rules, but one of making new ones, and there are no other ways of doing this than by agreement or unilateral action; and when agreement is not forthcoming then by unilateral action alone.5 The Preamble to the BWM Convention notes that [S]everal States have taken individual actions with a view to prevent, minimize and ultimately eliminate the risks of introduction of Harmful Aquatic Organisms and Pathogens through ships entering their ports, and also that this issue, being of worldwide concern,

3

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D. C. Pughiuc, Chief Technical Adviser, GloBallast Programme; Resolution A.868(20), Chapter 1, supra note 2, ii. 1st International Workshop on the Legal Aspects of Ballast Water Management and Control, GEF/ UNPD/IMO/World Maritime University, Malmö, Sweden, November 15–16, 2001. O’Connell, Chapter 3, supra note 162, 31.

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demands action based on globally applicable regulations together with guidelines for their effective implementation and uniform interpretation.

This provision acknowledges the relevance of unilateral acts of the State, in particular the national laws6 and regulations based on generally accepted international rules and standards, to develop the legal framework with respect to the prevention of biopollution of the marine environment. Although not addressed in Article 38 of the Statute of the ICJ and not recognized, at least officially, as a formal source of international law, national laws are an essential juridical element for changing traditional international law. Despite divergent interpretations as to the binding or non-binding effect of unilateral acts, they have played an essential role in the development of international environmental law and the law of the sea.7 Accordingly, State practices based on unilateral acts (domestic law) were essential to the formation of international customary law of the sea. Indeed, the current concept of State practice is quite broad.8 The national laws of port/coastal and flag States on the control and management of ballast water may be considered the material element of the custom,9 or, at least, indicative of the opinion juris.10 The evolution of the concept of jurisdiction of the coastal State in regard to the EEZ is the most striking illustration of the cumulative effect of unilateral actions.11 In the Fisheries Jurisdiction Case, the ICJ acknowledged the binding legal effects of unilateral acts.12 Currently, unilateral acts tend to be justified only on the hypothesis that change is necessary. This interpretation has a significant impact on the methodology of international law.13 6

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8 9 10 11 12

13

See, e. g., the national laws on ballast water in the United States, available online at http:://www. marad.dot.gov/programs/ballastwater/legreg.htm; Australia, _available online at http://www.environment.gov.au/coasts/index.html, www.epa.vic.au/ballast water/documents.asp; and Canada, available online at http://www.tc.gc.ca/acts-regulations/GENERAL/C/csa/regulations/400/ csa448/csa448.html. Conflicts and paradoxes characterize the evolution of the concept of the EEZ. The antecedents of the Latin American behaviour, which the United States has systematically objected to, were the unilateral 1945 Truman Proclamations, which established fishing conservation zones in the high seas adjacent to the US territorial waters. Rolim, Chapter 3, supra note 172, 43–51; Rafael de la Colina, Evolución del Derecho del Mar en America: Contribuición Latinoamericana, México y el Régimen de Mar (Tlatelolco: Secretaria de Relaciones Exteriores, 1974), 39; V. Rodríguez Cedeño and Milagros C. Betancourt, Introducción al Estudio del Derecho de los Tratados y de los Actos Jurídicos Unilaterales de los Estados, Temas de Derecho Internacional VII (Caracas, 2004), 123–214. See Chapter 3 in this book. Ibid. Ibid. O’Connell, Chapter 3, supra note 162, 32. Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Merits - Judgment - General List No. 56 [1974] ICJ 1 (25 July 1974). O’Connell, Chapter 3, supra note 162, 31.

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The GloBallast Legislative Review Project provides examples of the impact of domestic law on the development and codification of the technical and legal rules on ballast water.14 The influence of such domestic laws in the drafting of the new BWM Convention is evident in several requirements, procedures and measures that already have been adopted through unilateral State action.15 Examples include the requirement of presenting a ballast water report form prior to entry into territorial waters or a port; inspection, survey, and sampling requirements; and provisions for the management or treatment of ballast water. In order to effectively prevent and control the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments, the BWM Convention, adopted after the GloBallast Legislative Review, recognizes that port/

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‘A review of the requirements of the countries currently reported by INTERTANKO as having requirements allows for some general observations about existing national requirements: (a) the majority of the requirements apply at a national level to all ports, however a number are at a single port level or other sub-national level. In cases where there is national level legislation, the subnational legislation usually operates as a supplemental requirement for the jurisdictional area. In one or two cases the national requirements are specifically related to human health and disease prevention, but could apply more broadly; (b) The legislation varies amongst countries. Examples include quarantine/pest control, human health, fisheries, ship source pollution; (c) the underlying regulatory requirements are similar among countries and are generally consistent with IMO guidelines. Most require a ballast water report form prior to port or entry into territorial waters. This is usually combined with a requirement for management or treatment of the water. The main difference amongst countries relates to the latter issue. In some cases mid ocean exchange is mandatory, in others it is voluntary for all ports or some ports only, or an alternative method is required or allowed and in some cases the discharge is dependent on an assessment of the level of risk posed by a vessel. In most cases it applies to all ballast-carrying ships in the particular geographic location, which will include ballast-carrying ships in the national flag fleet. However, these requirements, which relate to entry to ports or national waters, do not necessarily require ballast water management reporting for their flag vessels if they are not operating in that country’s waters’. McConnell, Chapter 1, supra note 2, 70. ‘Australia was one of the first countries to seek international action in this issue. It is generally regarded as the leading country in research in this field. It also began a programme of port biological surveys in 1996 and has developed standardized surveys and port sampling protocols and ships ballast water sampling protocols. These have been adapted for use in the GloBallast pilot countries. Canada and Australia were the earliest countries to raise concerns about ballast water in connection with invasive species; in 1989 the “Voluntary Guidelines for the Control of Ballast Water Discharges from Ships Proceeding to the St. Lawrence River and Great Lakes” were developed by the Canadian Coast Guard. These Guidelines require that the ship’s master file a Ballast Water Exchange Report on entering the St Lawrence. The Guidelines also provided for a designated alternative discharge zone where deep water exchange was not possible for reasons of safety or the voyage route. The 1989 region specific Voluntary Guidelines were rescinded in September 2000 when they were replaced by “The Canadian Ballast Water Management Guidelines” as amended to June 8, 2001’. McConnell, Chapter 1, supra note 2, 73.

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coastal States shall undertake national initiatives consistent with the convention’s objectives. Port/coastal States shall, with due regard to their particular conditions and capabilities, develop national laws, policies, strategies or programmes for ballast water management in their ports and waters under their jurisdiction.16 It should be noted that UNCLOS, Article 211, paragraph 2, acknowledges that national legislation has at least the same effect as the standards established through IMO.17

5.3. The Brazilian GloBallast Legislative Review The Brazilian GloBallast Legislative Review18 was designed to identify issues, provide legal references, and develop recommendations for the most effective means of national implementation of IMO Resolution A.868 (20) and of the BWM Convention. The Brazilian case is an example of the success of the Project, which has contributed to the improvement of the Brazilian legal framework on this issue. Since 2005, Brazil is signatory to the BWM Convention. 5.3.1. Executive Summary The Brazilian national law with respect to the control and management of ship’s ballast water exchange was deeply influenced by the international legal framework dealing with protection and conservation of the marine environment. The Brazilian legal system has drawn on the major international treaties related to this issue, and the country has assumed a domestic and international commitment towards the adoption of the substantive and regulatory standards set out in the following international conventions: Convention on the Prevention of Marine Pollution by Dumping of Waste and other Matter, London, 1972; MARPOL 73/78; the Convention on Civil Liability for Oil Pollution Damage, 1969 and the 1976 Protocol (Civil Liability Convention); the International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (OPPRC); UNCLOS and the Biodiversity Convention. In chronological order, these issues were covered under Brazilian maritime law and law of the sea, sanitary law and, currently, environmental law. From a comparative law perspective, Brazilian environmental rules rank on a par with the leading maritime, land and air prevention and conservation laws the world over. 16 17 18

BWM Convention, Chapter 1, supra note 3, Article 4. IMO, LEG/MISC/3/Rev.1, 3. Maria Helena Fonseca de Souza Rolim, Brazilian Local Legal Consultant, Project No:GLO/99/ G31/A/1G/19 (Supervision of Ministry of Environment, Brazil, December 2001). The contents of this work reflect the opinions and ideas of the local legal consultant, and do not necessarily represent the opinion of the Government of Brazil. Chapter 5 is a summary of the report.

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In view of this, the debate over ballast water issues should not be circumscribed within such a specialized context as the shipping rules; instead, these discussions should be held within the broader realm of environmental rules. The Brazilian legal system provides for concurrent jurisdiction of the federal government, states and municipalities over environmental protection issues. The draft legislation on ballast water, as presented in this report, follows the current trend towards the achievement of ecology-oriented objectives, whilst coping with international shipping standards. The more stringent rules ensuing from this approach, however, should not be seen as an obstacle to maritime transportation activities, but rather as an effective tool for sustainable development. It is important to highlight the impact of IMO on the Brazilian legal scenario. Brazil has been an IMO Member since 1963. In order to facilitate the adoption of IMO’s directives and procedures for international maritime transportation, Brazil established the Coordination Committee for IMO Issues (CCA-IMO) in Rule No. 367 of December 1998. CCA-IMO is tasked with studying the issues discussed at IMO meetings; formulating the positions of the Brazilian delegations in IMO meetings; and proposing measures to be implemented at a domestic level in response to the commitments assumed by Brazil at IMO, and through recommendations approved by IMO. 5.3.2. Brazilian Legal Framework The Brazilian legal framework includes rules with respect to environmental, marine and health issues with a view to avoiding pollution/biopollution of the marine environment and protecting the marine ecosystem, as well as minimizing the impact of marine pollution on human health. In practice, marine environmental protection has been addressed by the Ministries of Environment, Health and the Brazilian Navy. Regarding issues relating to biopollution through the exchange of ballast water, concerted actions are being taken by these ministries, which have yet to reach an institutional level. The Constitution of the Federative Republic of Brazil states that every citizen has the right to an ecologically stable environment, an asset that is for common use of the public and essential to the healthy quality of life (Article 225). In keeping with the teleology underlying the Brazilian constitutional system, Brazilian environmental laws adopt the following rules, among others: 1. to preserve and restore the environmental resources envisaging their rational use and permanent availability (Law no. 6938/81); 2. to impose on the polluter and the predator the obligations to recover and/or indemnify the damages caused and to impose a fee on users for the use of environmental resources for economic purposes (Law no. 6938/81); 3. to create the National Environmental Policy aimed at the control and zoning of actual or potential polluting activities, among other issues (Law no. 6938/81).

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Brazil has adopted the legal system set out under UNCLOS for delineation of internal waters, the territorial sea, the EEZ and delimitation of the continental shelf. Within these ocean areas, Brazil exercises its jurisdiction and control with respect to marine pollution/biopollution. Biopollution of the marine environment through the uptake or discharge of ballast water may be regarded as a crime against the environment. Pursuant to Law no. 9605/98, crimes against the environment are, among others, any activity that causes any type of pollution to such an extent that it results or may result in damages to human health, hinders or prevents the use of public beaches; or occurs due to the release of solid, liquid or gaseous wastes or debris. According to Decree no. 3.179/99, the introduction of non-native or exotic species in waters under Brazilian jurisdiction, without authorisation by the relevant environmental authority, is regarded as a crime against the environment. Marine environmental protection is addressed in Law no. 8617/93, which provides for the monitoring and inspection of the marine environment for sanitation control and conservation purposes on domestic or foreign ships. The recentlyenacted Brazilian law on oil pollution issues (Law no. 9966/2000) is in line with the most advanced international standards for prevention and control of marine pollution by oil and other toxic or hazardous substances, as per the principles prescribed in MARPOL 73/78, the Civil Liability Convention, and OPPRC. The rules adopted by the Ports and Coasts Office of the Navy for the Traffic and Stay of Ships in Brazilian Jurisdictional Waters (NORMAN 08/2000/2001) were drafted on the basis of MARPOL 73/78 and IMO Resolutions A.868 (20), A 587(20) and MSC.43 (64). The Ballast Water Reporting Form, to be provided to the Port State Authority upon request, contains specific requirements related to a) vessel information, e.g. vessel name, owner, last port and country, next port and country, IMO number; b) ballast water, e.g., total ballast water on board, total ballast water capacity; c) ballast water tanks, e.g., reporting requirements about the ballast water management plan on board, total number of tanks on board; d) ballast water history; e) checking that a copy of IMO Ballast Water Guidelines are on board (IMO Resolution A.868(20); and f ) responsible officer’s name, title and signature. This document is pivotal to controlling the nature and quality of ballast water. An identical document is required by the Ministry of Health, through the National Sanitation Inspection Agency. MARPOL 73/78 establishes rules for the prevention of pollution by oil, dangerous liquid substances transported in bulk, dangerous substances transported in bundles, containers, portable tanks or by highway and railway tank-cars. It defines rules for the prevention of pollution caused by sewage and waste released by ships. The rules addressed in MARPOL apply to ships (including rules for their construction and operation) and also to ports and terminals. Brazilian cargo ships or tankers that are heading to foreign ports have already been adapted to the MARPOL rules. Law no. 9966/2000 provides rules and requirements aimed at

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the prevention, control and surveillance of the pollution caused by oil releases and other toxic or dangerous substances in waters under Brazilian jurisdiction. The law applies to ships in waters under Brazilian jurisdiction, established ports and port facilities. As part of the GloBallast Project, a draft of legislation for the regulation on control and management of ballast water was formulated for each country.19 The legislation was based on the provisions of the draft of the BWM Convention and relevant IMO resolutions on the issue. 5.3.3. Conclusions In the GloBallast Legislative Review Report, the lead consultant, Dr. Moira McConnell provided commentary and recommendations on ballast water issues under international law and set out a series of questions for the local legal advisors to respond to. These questions highlight factors to be considered by any country seeking to design a regulatory regime to respond to the problem of ballast water or other ship source vectors of invasive species and pathogen transfer. Dr. McConnell identified uncertainties posed by the legal characterisation of the problem, diverse constitutional structures and the administrative and legal transitions currently underway in countries moving to an integrated management approach to managing coastal and ocean activities as important factors in regulatory design. The following questions are framed around six key issue areas. For the purposes of this book this section only provides a summary of the Brazilian Local Legal Consultant commentary with respect to the issue.20 Issue 1. Do States currently have an international legal obligation to take action to prevent the unintentional transfer between ecosystems of potentially harmful aquatic organisms and pathogens? If so, how is this obligation legally characterised in international law and does it extend to preventing the transfer in ships’ ballast water? Brazilian Local Legal Consultant Comments: The international legal standards provided in the conventions referred to in the Executive Summary, above, clearly address a States’ international legal obligation to take action to prevent intentional and unintentional transfer between ecosystems of potentially harmful aquatic organisms and pathogens. However, ‘pollution’ encompasses all

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See Annex IV to this volume with respect to the suggestions in this regard offered by the author of this book as Brazilian Local Legal Adviser. The complete information is available in the 1st International Workshop on the Legal Aspects of Ballast Water Management and Control, supra note 4.

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types of undue interference in the marine environment in a manner detrimental to the health and well-being of marine species, or any changes that cause damage to marine flora and fauna. Under international law, several meanings have been imparted to the word ‘pollution’. Under UNCLOS, however, there is a consensus that pollution is necessarily caused by man, directly or indirectly, through the introduction of substances or energies that cause an ecological imbalance in the marine environment, with adverse effects on humankind and to ecosystems the world over, and interfering with the assimilation capacity of the environment and with other uses of the environment. Accordingly, human activity that introduces new or alien species into the marine environment could be considered ‘biopollution of marine environment’. The 1992 Convention on Biological Diversity imposes on the State a specific duty to avoid the introduction or eradication of exotic species that may pose a threat to ecosystems, habitats or species. Irrespective of its international environmental obligations under international conventions, the State is also bound by the precepts of customary international rules. Increasingly, custom has been invoked in international disputes between States. In this sense, the Siena Forum has acknowledged that ‘the customary rules binding on all the Member States may likewise apply to countries that are not parties to conventions adopted within a specific context. Therefore, a State that is not a party to conventions on marine water pollution prevention which allows its ships to discharge noxious substances into the sea may have its actions examined under international rules of custom’. Therefore, the State has international responsibility for the prevention and protection of marine ecosystems under the conventional and common laws. Issue 2. Do States have any legal obligations that constrain or otherwise shape their national response to the problem of preventing ballast water transfer of potentially harmful aquatic organisms and pathogens? Brazilian Local Legal Consultant Comments: The legal obligations of the State that constrain their national response to the problem of the transfer of potentially harmful species and pathogens in ships’ ballast water leads us to reflect on two issues: (1) the interconnection between domestic and international laws; (2) the impact of ‘soft law’ rules on the drafting of domestic laws, as well as of international customary law and conventional law (treaties). In the first case, given the international nature of the problem, ballast water management regimes shall be addressed by the State in domestic laws while respecting the applicable international standards. This requires the State to resolve discrepancies between its internal normative structures and existing international standards. In the second case, it can be seen that international marine protection rules and standards defined in soft law instruments often influence domestic legislative processes. For example, in drafting the rules on this issue, the Brazilian Ministry of Health took the IMO

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resolutions into consideration even though environmental and public health protection issues had already been generally prescribed in the Brazilian Constitution. Regarding the principle of innocent passage, originating from customary law and consolidated by UNCLOS, it is important to examine how this principle might restrict the sovereignty of a coastal State. In fact, if any of the assumptions in Article 19 of UNCLOS are not present, the coastal State may partially suspend the right to innocent passage without discrimination and after proper publicity, in order to balance the national legal obligation to prevent the transfer of potentially harmful aquatic organisms and pathogens through ballast water. Issue 3. If a State takes regulatory action to deal with the transfer of potentially harmful species and pathogens in ships’ ballast water, what principles and goals should inform its strategy? Brazilian Local Legal Consultant Comments: A closer look at the comments reveals a holistic view of this issue with a solution based on principles adopted under environmental law and the new law of the sea. The intended system points to the current in-depth and comprehensive international legal framework, as well as to the fundamental principles to be followed by States. This ecology- and environment-oriented era embraces three basic notions: first, the damaging effects of pollution or improper exploitation of an ecosystem are generally not limited to a circumscribed area, i.e. the environmental concerns have no frontiers; second, international cooperation is required in the legal, political, economic and technological fields; and, third, sustainable development is an indispensable need. Over the last thirty years, the fast growth of marine pollution, destruction of coastal habitats, and over-exploitation of sea resources have shown that the goals of the 1972 Stockholm Conference on the Human Environment have not been fully attained. The Stockholm Declaration draws attention to the need to preserve the natural resources on Earth, imputing to States the general obligation to avoid marine pollution by substances that may pose a threat to human health and damage to marine resources. The conference did pave the way for a new international order based on the pursuit of economic factors subordinated to ecology-oriented requirements. This has given rise to new principles that must govern the interrelations between international players and will lead to a period of uncertainty in defining State-based rules of law. Six fundamental principles emanating from the Stockholm Declaration guided the work of the Third UN Conference on the Law of the Sea: 1. 2. 3. 4.

Sovereignty of States over their natural resources Prohibition against transboundary pollution International cooperation Sustainable development

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5. Prevention of damage to the marine environment 6. State responsibility for ensuring compliance with international legal obligations UNCLOS gives a legal status to protection of the seas. It establishes a stable (but flexible) legal order that must be modified to conform to the new de facto situation arising from continuing deterioration of the oceans due to non-sustainable production and consumption modes, notably in industrialised countries. Agenda 21 suggests basic directives for sustainable development, based on a corollary of international cooperation and solidarity. As this interdependence of ecosystems goes well beyond the territorial limits of States, issues highlight the need for international cooperation that allows national interests (reflecting the sovereignty of States) to contribute to the strengthening of the common interests of humankind. Chapter 7 of Agenda 21, devoted to protection of the oceans and its living resources, envisions a new legal system for protecting marine ecosystem. It incorporates an ecological standard for exploitation of the oceans in keeping with the precepts defined at other international fora, inter alia, UNCLOS. Agenda 21 emphasizes the need for incorporating the precautionary and polluter pays principles into international initiatives to protect the marine environment. The Rio Declaration stands as a landmark for ecology and sustainable development, and its principles should be incorporated into the political decision-making processes as well as into the international legal instruments on maritime affairs. At a regional level, the Brasília Declaration on the Environment (1989) acknowledged the essential need for an equilibrium between socio-economic development and environmental protection and conservation practices; it also reaffirms the sovereignty of States over their natural resources; suggests cooperation at regional and worldwide levels; and reaffirms the assistance to scientific development efforts, as well as the access to scientific information and to non-polluting technology transfers. These principles were ratified by the Centre for Advanced Studies on Latin America (CEPAL) at the Tlaletolco Conference on the Environment and Development in 1991. In making express reference to protection and sustained development of oceans, seas and coastal zones, the Brasília Declaration on the Environment urges the international community to devise specific methods to optimise the benefits, while at the same time minimising the abuses caused by fisheries, also presenting specific directives for proper use of the marine ecosystem, namely: (a) an inventory of the living resources at a region, in order to assess its potential and possible extraction levels; (b) the determination of special areas in light of the characteristics, dynamics, and degree of economic dependency on the respective resources; (c) systematic information on the changes in coastal dynamics at regional and international levels; (d) international cooperation with emphasis on marine species existing within the sovereignty zone or jurisdiction of two or more neighbouring States, or on the high seas; (e) an integrated management of marine resources; (f ) environmentally compatible technologies

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that allow for the sustainable development of a region; (g) prohibition against the discharge of toxic substances in the oceans; and (h) preparation of a worldwide agreement on protection of the marine environment against terrestrial pollution. The transformation in the world’s views on environmental and marine problems, as well as the asymmetry of States in facing the ecology issue, are fraught with paradoxes and complexities. Within this context, new models for man-environment relations spring forth in an evolutionary approach to environmental law principles. This is the beginning of the ‘sustainable development’ phase that will translate into a new international order as to use of the oceans. Issue 4. At what level of governance should a State’s regulatory response to the problem of transfer potentially harmful organisms in ships’ ballast water be developed? Brazilian Local Legal Consultant Comments: This problem must be tackled by international public law through bilateral or multilateral international agreements to avoid transborder harm to the marine environment. In Brazil, it is crucial to harmonise international practices and the Brazilian constitutional principles. The Brazilian Constitution regulates these issues in a decentralised manner, and expressly vests the federal government, the states and the municipalities with authority to act on an exclusive basis in certain circumstances, and concurrently in others. Several factors must be considered in drafting a Brazilian ballast water management legal regime. These include: 1. the Brazilian legal system and its allocation of federal, state and local authority to legislate on environmental, sanitation, marine and maritime laws; 2. the complexity of the Brazilian constitutional system vis-à-vis the characterisation of common, concurrent and subsidiary authority among the federal, state and local government authorities to legislate on environmental, sanitation, marine and maritime laws; 3. the exclusive authority of the federal government to legislate on maritime, port, sea and river navigation issues (Article 22 of the Brazilian Constitution); 4. the international treaties signed by Brazil in the environmental, maritime, sanitation and law of the sea areas; 5. the pressure exerted by the current precepts of law that call for the drafting of internal regulations to introduce the international criteria and standards devised by IMO and other international regulatory authorities in the Brazilian legal system. Thus a strategic decision to implement a mandatory ballast water management regime is a first step in the regulatory process. This mandatory process must rely on (generic) federal laws as well as Brazilian constitutional principles. State legislation

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must be drafted in keeping with federal laws, and must be targeted at local ports. This national system must be harmonised with international and regional legal mechanisms. Issue 5. How is the problem of aquatic species and pathogen transfer best characterized in national systems in order to achieve the principles and goals in number 3 above and what agency should be charged with administration? Brazilian Local Legal Consultant Comments: These comments reflect the Brazilian reality. There is currently a period of transition in Brazilian integrated management of coastal and ocean activities based on new international legal principles. The Brazilian legal system has already adopted MARPOL, and the IMO guidelines are being implemented, in particular through the Ministry of Health. However, devising a national system will be a complex task. Concerted efforts will have to be exerted by the Ministries of Health, the Environment, and the Navy to redefine the strategic aspects underlying this issue. It is important that the BWM Convention be incorporated into the Brazilian legal system in the form of domestic law. As a result, the international criteria will apply at a domestic level, and local port rules will have to abide by these standards as well. Issue 6. What can be recommended to countries to implement the IMO Guidelines and fulfill existing international and national obligations to prevent the spread and introduction of harmful invasive aquatic organisms and pathogens that also paves the way for binding international rules to respond to the problem on a global basis? Brazilian Local Legal Consultant Comments: The complexity involved in devising a solution for this problem occurs at several levels: (1) how the State will regulate this issue in the current transition phase, that is, while the Convention is still under preparation; (2) technical standards to be adopted in relation to the problem of ballast water transfer of invasive aquatic organisms and pathogens are yet to be defined; (3) economic and strategic difficulties for the coastal States concerning the installation of proper facilities for receipt and treatment of ballast water; (4) in the contemporary international security scenario, maritime law may henceforth be treated as a matter of national security. As regards issue (1), in this transition phase, a State may adopt the rules set out in the convention via domestic implementation of the major criteria prescribed in the international legal instrument. This mechanism was used during the preparatory work for UNCLOS. When UNCLOS came into force at an international conventional law level, several mechanisms had already been adopted by the negotiating States at the Third United Nations Conference on the Law of the Sea, at the customary law level (e.g., the EEZ), and some national laws had also been adopted. This solution is in keeping with international public

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law standards. Thus, the State may prepare national rules in compliance with the standards set out at the IMO guidelines and the BWM Convention. Issue (2) is a major issue as the technical and scientific solutions necessary to prepare the technical standards are still unresolved. The principles of the Convention on Biological Diversity must be applied. In Brazil, Article 28 of the Sanitation Law (ANVISA Resolution) clearly states that ‘at the discretion of the sanitation authority, every ship shall be subject to sampling of ballast water for analysis, with a view to identifying the presence of harmful and pathogenic agents, physical indicators, or chemical components’. One of the options available to the State while the convention is under development is to implement the IMO guidelines. In the specific case of Brazil, its sanitation laws are already in line with the prerequisites in the IMO guidelines, particularly with regard to the ballast water report form. Issue (3) invokes the principle of international cooperation to implement proper facilities at the ports of coastal States that lack in the operational conditions to do so on their own. As regards Issue (4), the approach recommended in the IMO guidelines for reporting, recording, training, port surveys, precautionary practices and continuing scientific research to ensure better informed risk assessments should be adopted jointly at the ministerial level, including national security and defence authorities.

Chapter 6 Conclusion E la nave va Ships have always required ballast, initially, in the form of rocks, sand, and other heavy materials, for the safe operation of vessels. Since the 1880s, however, ships increasingly used water for ballast to avoid the time-consuming task of loading solid materials and to reduce the danger of vessel instability resulting from the shifting of solid ballast during a voyage. This seemed an ideal solution until the international community realized the dangerous effects on the marine environment of the transfer from one ecosystem to another of alien invasive species contained in ballast water (marine, fresh or brackish) and its associated sediment. Such discharges into the waters of port States may cause irreversible damage. The uptake and discharge of ballast water is potentially the most significant form of introducing invasive species in port and States’ jurisdictions worldwide. Bioinvasions have been disastrous in many locations. They continue to grow at an alarming pace, causing damage to the marine environment as well as human health, biodiversity, fishing and mariculture. Actually, this is not a new phenomenon. In 1903, the first reference to the problem was presented by Ostenfeld following the occurrence of the flowering of the Odontella sinensis algae in the North Sea. However, it was not until 70 years later that a sample of a ship’s ballast water was studied. Scientists acknowledge that the oceans’ natural communities are being disrupted by bioinvasions that are fast becoming one of the greatest threats to the Earth’s biological diversity. Vessels are referred as a ‘floating ecological islands’, carrying species-rich communities from one coast or sea to another. Harmful aquatic organisms and pathogens are ‘free dangerous dancers’ that do not respect geographical and jurisdictional boundaries in the oceans. As a result, multilateral agreements based on standardized technical approaches are required to respond to global biopollution. Eradication of established alien invasive species is not a realistic option. There are just a few examples of successful eradication actions. Effective treatment methods for the control and management of ships ballast water to prevent or reduce the risks of ship-mediated introductions are required. This global problem underlies major ecological and economic negative impacts in numerous ecosystems. Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 159–164. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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From a holistic perspective, this book provides a thorough study of the international legal regime in regard to biopollution of the marine environment through ships’ ballast water and associated sediments. It gives the reader a broad overview of the evolution of the rules on this issue. The legal framework on ballast water comprises a complex of interconnected provisions addressed in the IMO resolutions on ballast water, technical rules and standards, national legislation, customary international law, and international treaties, in particular, the 2004 BWM Convention, which is not yet in force. Since the 1980s, alien invasive species have been part of the international agenda. Accordingly, the international law on ballast water has evolved from a customary to a conventional regime focused on the general obligation of States to prevent and control pollution, in particular biopollution, of the marine environment. This obligation is linked with the no harm and preventive principles and is further underlined by the precautionary principle as defined by current international environment law and adopted in the context of IMO practices, procedures and resolutions. The preventive and/or precautionary approaches are the central pillars of the legal structure of this corpus juris. Initially, the issue of ballast water biopollution was related to health security under sanitary law, in particular, the 1969 International Health Regulations (amended in 2005). Almost simultaneously, in the 1970s, the codification of the international law on ballast water emerged under the IMO in the form of soft law initiatives. Initially, health guidelines evolved into broader guidelines developed under the general legal framework addressed in anti-pollution conventions, namely MARPOL 73/78, the law of the sea regulatory regime adopted by the UNCLOS (1982), and the 1992 biodiversity regime. A review of the legal nature of the IMO guidelines on the control and management of ship’s ballast water opens the Pandora’s Box on this issue. The mechanism to transform non-binding instruments, i.e. soft law, into mandatory rules with the features of hard law, is extremely complex if not addressed through treaty or customary law. It is prudent to recall the sovereign State’s real intent in participating in drafting an international instrument. It is assumed that States make a conscious decision to draft either a text that will be legally binding through international treaty, and considered law, or an instrument that is not legally binding, i.e. through resolutions adopting guidelines on specific technical issues. Given the lack of distinction in the terminology adopted in the international instruments drafted under the aegis of IMO, the complexity in distinguishing soft law from hard law rules is evident. The terms ‘regulations’, ‘guidelines’ and ‘codes’ can refer to either purpose. Thus analyzing the content of an IMO instrument is pivotal to verifying whether it draws on the general principles of international law and/or rules long established in customary and treaty law. Accordingly, irrespective of the juridical classification of such an international instrument, it may provide binding rules. Generally, the IMO resolutions on ballast water are considered recommendatory. However, despite this limited juridical effect, they have a fundamental and

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ever-increasing role in the development of international law, particularly as the legal background to customary international law and treaties. From this perspective, State practice based on the provisions of IMO resolutions on ballast water suggests the emergence of the material element in the formation of custom on the control and management of ships’ ballast water. Moreover, the voluntary adoption of IMO Resolution A.868(20) through national legislation in several countries, and the sense of legal obligation with respect to the rules addressed therein, as opposed to motives of morality, suggests the emergence of opinio juris on the issue, which transmutes State practice into binding legal rules. It is a complex and controversial issue to prove the uniformity, consistency and generality of regional or universal practice of States in regard to the control and management of ships’ ballast water and sediments. Prospectively, however, regional or universal practices can emerge. Before developing a national strategy, policies and regulations on ballast water issues, States need to identify existing relevant international and regional obligations and to review domestic laws. The GloBallast Legislative Programme was the first attempt to review the national legal framework on ballast water of the pilot countries (Brazil, China, India, Iran, South Africa and Ukraine) with the goal of ensuring effective implementation of government policy objectives. The GloBallast Programme identified similar key elements in the six pilot countries, in particular, the influence and/or adoption of the IMO Resolution A.869(20). Moreover, the GloBallast Programme outlines recommendations and considerations for effective regulatory design to implement the guidelines in IMO Resolution A.868(20) and to lay a foundation for rapid implementation of the BWM Convention. These measures include, inter alia: 1. Use of standardized international reporting forms and documentation. 2. Legislation to address the ability of port/coastal States to exercise control and to asses risks to its marine environment and to prevent risks to the marine environment from harmful aquatic organisms and pathogens through ships’ ballast water and sediments. 3. Port/coastal States should consider prohibiting the discharge and uptake of ballast water in internal waters, ports (where not in internal waters) and the territorial sea, subject to emergency and safety related exceptions. Prevention may extend to activity within the contiguous zone, if the country has made claims with respect to sanitary measures. In the EEZ, areas that require special protection may be designated under UNCLOS in cooperation with IMO. 4. Agencies responsible for ballast water management must ensure that there is administrative responsibility to implement current flag State obligations, crew training, competency evaluation and certification standards and, as appropriate, to administer surveys and issue International Ballast Water Management Certificates. The significant increase of national legislation to prevent biopollution through ships’ ballast water and sediments starts a transitional era which serves as a catalyst

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for the principles set out in the IMO resolutions on ballast water. Voluntary adoption by port/coastal and flag States of the IMO guidelines is an essential factor for the adoption of a standardized approach to the control and management of ballast water and sediments. The BWM Convention recognizes that several States have taken unilateral actions to prevent, minimize and ultimately eliminate the risks of introduction of harmful aquatic organisms and pathogens. However, this issue, being of worldwide concern, demands action based on globally applicable regulations together with guidelines for their effective implementation and uniform interpretation. The BWM Convention, the first specific anti-biopollution treaty on ballast water, is the central pillar of the international framework with respect to the juridical control and management of ship’s ballast water and sediments. Initially, IMO expected that ballast water standards would be established as another annex to MARPOL 73/78, which already includes international standards for various categories of substances. However, the option ultimately chosen was to adopt an independent convention on the control and management of ships ballast water and associated sediments rather than adapt a convention addressed to oil pollution of the marine environment, which differs considerably from biopollution. Nevertheless, the BWM Convention and MARPOL 73/78, especially Annex I, adopt much the same regulatory formula in establishing anti-pollution measures for the prevention and control of ship source pollution. Both conventions provide a tiered system of discharge standards to deal with marine areas needing additional environmental protection, accommodate existing ships and new ship design requirements through a phase-in process, introduce an international certificate based on multiple flag State surveys for specified ships, and require provision of reception facilities. The BWM Convention must also be interpreted in terms of the regime provided in UNCLOS, in particular, Part XII, which sets out obligations regarding invasive species. Indirectly, States are under the general duty to conserve and protect the marine environment from all sources of pollution. Directly, States are required to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. Finally, the BWM Convention must also be considered in conjunction with the legal regime set out by the Biodiversity Convention. In particular, Article 8(h) regarding in situ conservation measures expressly requires States to prevent the introduction, control or eradication of alien species that threaten ecosystems, habitats or species. Such obligations apply not only to biodiversity in the State Party’s territory, but also to biodiversity elsewhere. The biodiversity regime establishes essential criteria for planning tools and calls for States to adopt a cooperative

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approach to protect the environment. This regime includes: integrated management; identification of activities that have or are likely to have significant adverse effects on the conservation and sustainable use of biological diversity; introduction of appropriate procedures for requiring an environmental impact assessment for projects and policies likely to have a significant adverse impact on biodiversity; and taking into account the special needs of developing countries, Parties are to establish and maintain programmes for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity. Accordingly, the Preamble to the BWM Convention expressly refers to the objectives of the Biodiversity Convention. Furthermore, in several provisions, it adopts such preventive measures. The complex and multidisciplinary anti-biopollution regulatory regime addressed in the BWM Convention applies to all ships that carry ballast water. It is comprised of 22 articles with respect to obligations and rights of port/coastal and flag States. In addition, five sections provide technical regulations for the control and management of ships’ ballast water and sediments. Two appendices respectively address standard formats in regard to issuance of the International Ballast Water Management Certificate and the ballast water record book for reporting and verification. A set of 17 guidelines issued through the IMO and interconnected with the BWM Convention provide additional technical guidance and instructions to support the uniform implementation of the convention. The guidelines provide preventive and precautionary measures with safety implications for vessels, the environment, human health, property or resources, and other States. Nevertheless, ballast water management requirements are to avoid causing ships undue delay or deviation from a planned route. The BWM Convention includes provisions for both port/coastal and flag States. From the perspective of the port or coastal State, the convention requires that all ships intending to discharge ballast water into ports conduct ballast water management. Under a selective alternative approach, however, ships may be exempted from ballast water management procedures in certain situations. Factors considered in taking such a decision include the origin and destination port, the characteristics of the ecosystems involved, and an assessment of when the level of risk of such discharges is acceptable. Risk assessment is the key component to evaluating the level of risk. The port State, with due regard to its particular conditions and capabilities, is to develop national policies, strategies or programmes for ballast water management in its ports. Ballast water exchange areas may be designated by the port State in sea areas where the distance from the nearest land (at least 200 or at a minimum 50 nautical miles) and water depth (200 metres) do not meet the requirements to carry out a complete water exchange in all ballast tanks.

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The BWM Convention is a flag State convention in regard to ballast water exchange in international waters, i.e. the high seas. Accordingly, the convention requires flag States to comply with the provisions and standards with respect to ballast water management. The BWM Convention established two essential environmental protection standard regimes: the Ballast Water Exchange Standard, which requires ships to exchange a minimum of 95 per cent ballast water volume (Regulation D-1); and the Ballast Water Performance Standard (Regulation D-2), which requires that the discharge of ballast water shall have less than 10 viable organisms per cubic metre greater than or equal to 50 micrometres in minimum dimension and less than 10 viable organisms per millilitre less than 50 micrometres in minimum dimension and greater than or equal to 10 micrometres in minimum dimension. The restrictions environmental law imposes on States in the exercise of sovereignty reflects the impact of the post-Stockholm era on international relationships. The current international environmental law regime contributes decisively to the adoption of the concept of a cooperative sovereignty restricting the idea of freedom of the seas. The management and control of biopollution through the transfer of harmful aquatic organisms and pathogens from one ecosystem to another necessarily requires regional and international cooperation. The preventive and/or precautionary international regime for ballast water management requires States to implement measures that may affect their sovereignty. These measures include applicable standards and requirements set forth in the annex to the BWM Convention, and addressed in the guidelines, together with the convention itself. A high priority is placed on port/coastal States policies and flag States strategies. A holistic understanding of the marine environment and integrated control and management of ships’ ballast water and sediments are the key elements to prevent biopollution of the marine environment. Managing the interaction between biopollution prevention and biodiversity protection is required. We cannot predict how long time it will take for the BWM Convention to enter into force. The convention will come into force twelve months after the date on which not less than thirty States, the combined merchant fleets of which constitute not less than thirty-five per cent of the gross tonnage of the world’s merchant shipping, have either signed or ratified the Convention. In the interim, the legal tools for control and management of ships’ ballast water and sediments are the 1997 IMO Assembly Resolution A.869(20), national legislation on the issue, and the guidelines required under the BWM Convention and adopted by IMO/MEPC Resolutions. However, the legal nature of those documents vis-à-vis the traditional sources of international law remains controversial. It is important that the BWM Convention becomes a international legal rule, either entering into force or through customary law, in order to control and manage ships’ ballast water and to protect the world’s oceans from biopollution.

Bibliography I. General Books Bobbio, Norberto. A Era dos Direitos. Rio de Janeiro: Campus ed., 1992. —. Teoria do Ordenamento Jurídico. 10th edition. Brasilia: UnB, 1997. Heller, Hermann. La Soberanía: Contribución a la teoría del derecho estatal y del derecho internacional. Buenos Aires: Fondo de Cultura Económica, 1995. Kelsen, Hans. A Ilusão da Justiça. São Paulo: Martins Fontes ed., 1998. Merle, Marcel. Sociologia das Relações Internacionais. Brasília: Universidade de Brasília ed., 1981. Moreira, Adriano. Teoria das Relações Internacionais. Coimbra: Almedina ed., 1996. Strenger, Irineu. Relações Internacionais. São Paulo: LTr ed., 1998.

II. Books on Public International Law Accioly, Hildebrando. Manual de Direito Internacional Público. 11th edition. São Paulo: Saraiva ed., 1995. Accioly, Hildebrando and Geraldo Eulálio do Nascimento Silva. Manual de Direito Internacional Público. 12th edition, São Paulo: Saraiva ed., 1996. Aust, Anthony. Modern Treaty Law and Practice. Cambridge: Cambridge, University Press, 2000. Akehurst, Michael. A Modern Introduction to International Law. 6th edition. London: Unwin Hyman, 1987. Boson, Gerson de Britto Mello. Constitucionalização do Direito Internacional. Belo Horizonte: Del Rey ed., 1996. Bowett, D. W. The Law of International Institutions. London: Stevens & Sons, 1982. Brownlie, Ian. Principles of Public International Law. 4th edition. New York: Oxford University Press, 1995. Buergenthal, Thomas and Harold G. Maier. Public International Law in a Nutshell. Eagan, MN: West Publishing, 1990. Cachapus, Antônio Paulo. O Poder de Celebrar Tratados. Porto Alegre: Sergio Antonio Fabris ed., 1995. Cambacau, Jean and Sere Sur. Droit International Public. 4th edition. Paris: Montchrestien, 1999. Cassese, Antonio. International Law in a Divided World. New York: Claredon Paperbacks, 1986. Elias, T. O. The Modern Law of Treaties. Leiden: Oceana, 1974. Goode, Roy, Herbert Kronke, Ewan McKendrick and Jeffrey Wool. Transnational Commercial Law: International Instruments and Commentary. Oxford: Oxford University Press, 2004. Grotius, Hugo. The Rights of War and Peace, including the Law of Nature and of Nations. Translated by A. C. Campbell, AM. Westport: Hyperion Press, 1979. Hohmann, Harald. Precautionary Legal Duties and Principles of Modern International Environmental Law. London: Graham & Trotman/Martinus Nijhoff, 1995. Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 165–182. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

166

Bibliography

Kelsen, Hans and Umberto Campagnolo. Direito Internacional e Estado Soberano. São Paulo: Martins Fontes ed., 2002. McDougal, Myres S. and W. Michael Reisman. International Law Essays: A Supplement to International law in Contemporary Perspective. New York: Foundation Press, 1981. Mello, Celso D. de Albuquerque. Direito Internacional Público, Volume I. Rio de Janeiro: Renovar ed., 1997. Nollkaemper, André. The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint. The Netherlands: Martinus Nijhoff & Graham Trotman, 1993. Oppenheim, L. International Law: A Treatise. 8th edition. London: Longmans, 1967. Pereira, André Gonçalves and Fausto Quadros. Manual do Direito Internacional Público. Coimbra: Almedina ed., 1995. Perrez, Franz Xaver. Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law. Leiden: Kluwer Law International, 2000. Rangel, Vicente Marotta. Direito e Relações Internacionais. São Paulo: Revista dos Tribunais, 2002. Reuter, Paul. Introduction to the Law of Treaties. London: Pinter Publishers, 1989. Rezek, J. F. Direito Internacional Público. 9th edition. São Paulo: Saraiva ed., 2002. — Direito dos Tratados. Rio de Janeiro: Forense ed., 1994. Rodríguez-Cedeño, Víctor and Milagros Betancourt. Introduccion al Estudio del Derecho de los Tratados y de los Actos Juridicos Unilaterales de los Estados, Temas de Derecho Internacional VIII. Caracas: Italgrafica ed., 2004. Shaw, Malcolm N. International Law. 5th edition. Cambridge: Cambridge University Press, 2003. Sinclair, Ian. The Vienna Convention on the Law of Treaties. 2nd edition. Manchester: Manchester University Press, 1984. Starke, J. G. Introduction to International Law. 10th edition. Guilford and King’s Lynn: Biddles Ltd., 1989. Thirlway, H. W. A. International Customary Law and Codification. Leiden: A.W. Sijthoff, 1972. Trindade, Antônio Augusto Cançado. O Direito Internacional em um Mundo em Transformação. Rio de Janeiro: Renovar ed., 2002. — Princípios do Direito Internacional Contemporâneo. Brasilia: Universidade de Brasília, 1981. Villiger, Mark E. Customary International Law and Treaties. Leiden: Kluwer Law International, 1997. Zacklin, Ralph. The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies. Leiden: Sithoff’s Uitgeversmaatschappij, 1968.

III. Books on Maritime Law, Law of the Sea and Environmental Law Andreyev, E. P. and S. A. Gureev. The International Law of the Sea. USSR: Progress Publisher, 1988. Bernaerts, Arnd. Bernaerts’ Guide to the Law of the Sea: The 1982 United Nations Convention. Couldson: Fairplay Publications, 1988. Birnie, Patricia W. and Alan Boyle. International Law and the Environment. Oxford: Clarendon Press, 2002. Churchill, R. R. and A. V. Lowe. The Law of the Sea. Manchester: Manchester University Press, 1985. Dudley, John, Barry Scott and Edgar Gold. Towards Safer Ships & Cleaners Seas: A Handbook for Modern Tankship Operations. Arendal: Assuranceforeningen GARD, 1994. Dupuy, René-Jean and Daniel Vignes. A Handbook on the New Law of the Sea, Volumes 1 and 2. Dordrecht: Martinus Nijhof Publishers, 1991. Falkanger, Thor, Hans Jacob Bull and Lasse Brautaset, Scandinavian Maritime Law. 2nd edition. Oslo: Universitetsforlaget, 2004.

Bibliography

167

Franckx, Erik,ed. Vessel- Source Pollution and Coastal State Jurisdiction, The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution, 1991–2000. The Hague: Kluwer Law International, 2001. Gollasch, Stephan and Erkki Leppäkoski. Initial Risk Assessment of Alien Species in Nordic Coastal Waters. Copenhagen: Nordic Council of Ministers, 1999. Gregorios, Timagenis. International Control of Marine Pollution, Volumes 1 and 2. New York: Oceana Publisher, 1980. Higgins, A. Pearce and John C. Colombos. The International Law of the Sea. London: Longmans, Green and Co., 1945. Hildreth, Richard G. Ocean and Coastal Law. Englewood Cliffs: Prentice-Hall, 1983. Hohmann, Harald. Precautionary Legal Duties and Principles of Modern International Environmental. London: Graham & Trotman/Martinus Nijhoff, 1994. Kasoulides, George C. Port State Control and Jurisdiction: Evolution of the Port State Regime, Dordrecht: Martinus Nijhoff, 1993. Kindt, John Warren. Marine Pollution and the Law of the Sea, Volumes 1–4. Buffalo: Willian S. Hein & Co., 1986. Kiss, Alexandre and Dinah Shelton. International Environmental Law. 2nd edition. New York: Transnational, 2000. Klein, Natalie. Dispute Settlement in the UN Convention on the Law of the Sea. Cambridge: Cambridge University Press, 2005. Knight, Gary and Hungdah Chiu. The International Law of the Sea: Cases, Documents, and Readings. New York: Elsevier/UNIFO, 1991. Kovalev, A. A. Contemporary Issues of the Law of the Sea: Modern Russian Approaches. Utrecht: Eleven International Publishers, 2004. Kolb, Robert. Case Law on Equitable Maritime Delimitation: Digest and Commentaries. The Hague: Martinus Nijhoff, 2003. Kontou, Nancy. The Termination and Revision of Treaties in the Light of New Customary International Law. Oxford: Clarendon Press, 1994. Lucchini, Laurent and Michel Voelckel. Droit de La Mer. Paris: Pedone, 1990. Molenaar, Erik Jaap. Coastal State Jurisdiction over Vessel-Source Pollution. The Hague: Kluwer Law International, 1998. Morell, James B. The Law of the Sea: The 1982 Treaty and Its Rejection by the United States. Jefferson, NC: MacFarland & Company Publishers, 1992. Marr, Simon. The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. The Hague: Martinus Nijhoff, 2003. Nixon, Dennis W. Marine and Coastal Law, Cases and Materials. Westport, CT: Praeger, 1994. Nolkaemper, André. The Legal Regime for Transboundary Water Pollution: Between Discretion and Constraint. Dordrecht: Martinus Nijhoff/Grahan & Trotman, 1993. Nordquist, Myron H. and S. Yankov, eds. United Nations Convention on the Law of the Sea 1982, A Commentary, Volumes 2–4. Dordrecht: Martinus Nijhoff, 2002. O’Connell, D. P. The International Law of the Sea, Volume 1. Oxford: Clarendon Press, 1982. Oda, Shigeru. The International Law of the Ocean Development: Basic Documents, Volume 1. Leiden: Sijthoff, 1972. —Fifty Years of the Law of the Sea. The Hague: Kluwer Law International, 2003. Ozcayir, Z. Oya. Port State Control. London: Lloyd’s of London Press, 2001. Payoyo, Peter Bautista. Cries of the Sea: World Inequality, Sustainable Development and the Common Heritage of Humanity. The Hague: Martinus Nijhoff, 1997. Ringbom, Henrik. Competing Norms in the Law of Marine Environmental Protection. The Hague: Kluwer Law International, 1997.

168

Bibliography

—Environmental Protection and Shipping: Prescriptive Coastal State Jurisdiction in the 1990’s. Oslo: Scandinavian Institute of Maritime Law, 1996. Rolim, Maria Helena Fonseca de Souza. A Tutela Jurídica dos Recursos Vivos do Mar na Zona Econômica Exclusiva. São Paulo: Max Limonad ed., 1998. Slouka, Zdenek. International Custom and the Continental Shelf. The Hague: Martinus Nijhoff, 1968. Scovazzi, Tullio. Elementi Di Diritto Internacionale Del Maré. Milan: Giuffrè ed., 1990. Smith, Brian D. State Responsibility and the Marine Environment: The Rules of Decision. Oxford: Clarendon Press, 1988. Smith II, George P. Restricting the Concept of Free Seas. New York: Krieger, 1980. Timagenis, Gregorios. International Control of Marine Pollution, Volumes 1 and 2. New York: Oceana, 1980. Vicuña, Francisco Orrego. The Exclusive Economic Zone: Regime and Legal Nature under International Law. Cambridge: Cambridge University Press, 1989. Vukas, Budislav. The Law of the Sea. The Hague: Martinus Nijhoff, Netherlands, 2004.

IV. Articles on Maritime Law, Law of the Sea and Environmental Law Andersen, Steinar. “National and International Premises in Ocean Management: The Case of Norway,” in The 1982 Convention on the Law of the Sea, Proceedings, Albert Koers and Bernie Oxman, eds. Honolulu: The Law of the Sea Institute, 1984, pp. 500–520. Andrew, Dale. “Environmental effects of changes in international freight movements associated with trade liberalisation and structural reform in the transport sector,” in Environmental Assessment of Trade Agreements and Policy, Ole Kristian Fauchald and Mads Greaker, eds. TemaNord Vol. 551. Oslo: Nordic Council of Ministers, 1998, pp. 35–42. Angelo, Joseph. “The International Maritime Organization and Protection of the Marine Environment,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp. 105–111. Balkin, Rosalie. “The establishment and work of the IMO Legal Committee,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp. 291–307. Bateman, Sam, Donald R. Rothwell and David VanderZwaag. “Navigational rights and freedoms in the new millennium: Dealing with 29th century controversies and 21st century challenges,” in Navigational Rights and Freedoms and the New Law of the Sea, Donald R. Rothwell and Sam Bateman, eds. The Hague: Martinus Nijhoff, 2000, pp. 314–335. Behman, Awni and Peter Faust. “Twilight of flag state control in education, training and practice, in ships’ ballast water,” in Ocean Yearbook, 17, Elisabeth Mann Borgese, Aldo Chircop and Moira McConnell, eds. Chicago: University of Chicago Press, 2003, pp.167–192. Behman, Awni. “Ending flag state control in the field of prevention of pollution from vessels?,” in International Marine Law: Institutions, Implementation and Innovations, Andree Kirchner, ed. The Hague: Kluwer Law International, 2003, pp. 123–135. Behrens, Hanna Lee. Ballast Water Transfer Atlas: Hazard Assessment and Decision Support, Pre-Study, Norwegian Research Council Technical Report 99–3166, Høvik: Det Norske Veritas, 1999. Birnie, Patricia. “The status of environmental ‘soft law’: Trends and examples with special focus on IMO norms,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Ringbom, ed. The Hague: Kluwer Law International, 1997, pp.31–57.

Bibliography

169

—“Implementation of IMO regulations and oceans policy post-UNCLOS and post-UNCED,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp. 361–390. Blanco-Bazán, Augustín. “IMO interface with the law of the sea,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp.269–287. —“The environmental UNCLOS and the work of IMO in the field of prevention of pollution from vessels,” in International Marine Law: Institutions, Implementation and Innovations, Andree Kirchner, ed. The Hague: Kluwer Law International, 2003, pp. 31–47. Brunnée, Jutta. “The Stockholm Declaration and the structure and processes of international environmental law,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist and John Norton Moore, eds. The Hague: Martinus Nijhoff, 1999, pp.67–84. Burk, W. T. “Introduction: Importance of the 1982 UN Convention on the Law of the Sea and its future development,” Ocean Development & International Law 27(1–2) (1996): 1–4. Cappelen, Ådne. “Assessment of global and regional effects of trade policies,” in Environmental Assessment of Trade Agreements and Policy, Ole Kristian Fauchald and Mads Greaker, eds. TemaNord Vol. 551. Oslo: Nordic Council of Ministers, 1998, pp. 93–100. Chandrasekhara, P. and Rahmatullah Khan. The International Tribunal for the Law of the Sea, Law and Practice. The Hague: Kluwer Law International, 2001. Crayford, John V. “Forthcoming changes to the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78),” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp.133–148. Dieu, Jacques. “EU policies concerning ship safety and pollution prevention versus international rule-making,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Ringbom, ed. The Hague: Kluwer Law International, 1997, pp. 141–163. Djalal, Hasjim. “The Law of the Sea Convention and navigational freedoms,” in Navigational Rights and Freedoms and the New Law of the Sea, Donald R. Rothwell and Sam Bateman, eds. The Hague: Martinus Nijhoff, 2000, pp.1–10. Douay, Claude. “Le droit de la mer et la préservation du milieu marin,” in Le Noveau Droit de la Mer, Daniel Bardonnet and Michel Virally, eds. Paris: A. Pedone, 1983, pp. 231–267. —“Les sanctions en matière de pollution dans la zone économique exclusive,” in Perspectives du Droit de la Mer à L’issue de la 3e Conférence des Nations Unies, Colloque de Rouen (2–4 juin 1983) de la Société Française pour le Droit International et de la Faculté de droit et des sciences économiques de Rouen. Paris : A. Pedone, 1984, pp. 210–223. Dupuy, Pierre-Marie. “Le principe de précaution et le droit international de la mer,” in Le Noveau Droit de la Mer, Daniel Bardonnet and Michel Virally, eds. Paris: A. Pedone, 1983, pp. 205–220. —“Soft law and the international law of the environment,” Michigan Journal of International Law 12(1990–1991): 420–435. Evans, Malcolm D. “The law of the sea,” in International Law, Malcolm D. Evans, ed. Oxford: Oxford University Press, 2003, pp. 623–656. Fakhry, Aref. “Capacity-building in international marine environmental law: Perspectives of developing countries in vessels,” in International Marine Law: Institutions, Implementation and Innovations, Andree Kirchner, ed. The Hague: Kluwer Law International, 2003, pp. 93–99. Falk, Richard and Hilal Elver. “Comparing global perspectives: The 1982 UNCLOS and the 1992 UNCED,” in Order for the Oceans at the Turn of the Century, Davor Vidas and Willy Østreng, eds. Dordrecht: Kluwer Law International, 1999, pp. 145–156.

170

Bibliography

Fauchald, Ole Kristian, “Assessment of legal implications of trade agreements for the use of environmental instruments,” in Environmental Assessment of Trade Agreements and Policy, Ole Kristian Fauchald and Mads Greaker, eds. TemaNord Vol. 551. Oslo: Nordic Council of Ministers, 1998, pp. 109–114. Franckx, Erik. “Marine environment jurisdictional issues: Coastal states,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist and John Norton Moore, eds. The Hague: Martinus Nijhoff, 1999, pp. 287–298. Gaskell, Nicholas. “Decision making and the Legal Committee of the International Maritime Organization,” International Journal of Marine and Coastal Law 18(2) (2003):.155–214. Gelberg, Ludwik. “The freedom of the seas: Common heritage of mankind,” in The Management of Humanity’s Resources: The Law of the Sea, René-Jean Dupuy, ed. The Hague: Martinus Nijhoff, 1982, pp. 329–336. Grieves, Forest L. “Classical writers of international lw and the environment,” Environmental Affairs 4(1975): 309–322. Gold, Edgar. “The control of vessel source pollution,” in Oceans Law Policy in the Post-UNCED Era: Australian and Canadian Perspective, L. K. Kriwoken, M. G. Haward, D. VanderZwaag and B. W. Davis, eds. London: Kluwer Law International, 1996, pp. 243–256. Grunawalt, Richard J. “Freedom of navigation in the post-Cold War era,” in Navigational Rights and Freedoms and the New Law of the Sea, Donald R. Rothwell and Sam Bateman, eds. The Hague: Martinus Nijhoff, 2000, pp. 11–21. Hakapää, Kari. “Jurisdictional developments and the Law of the Sea Convention: Some observations on vessel-source pollution,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist and John Norton Moore, eds. The Hague: Martinus Nijhoff, 1999, pp.277–285. Hamdl, Günther. “Regional arrangements and third state vessels – Is the pacta tertieis principle being modified?,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Ringbom, ed. The Hague: Kluwer Law International, 1997, pp. 217–240. Horrocks, J. Christopher. “Thoughts on the respective roles of flag states and port states,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp. 191–198. Hveem, Helge and Morten Bøås. “The trade-environment debate: Pre-negotiations, negotiated agreements and implementation,” in Environmental Assessment of Trade Agreements and Policy, Ole Kristian Fauchald and Mads Greaker, eds. TemaNord Vol. 551. Oslo: Nordic Council of Ministers, 1998, pp. 21–34. Jacobsson, Marie. “Flag state perspective,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist and John Norton Moore, eds. The Hague: Martinus Nijhoff, 1999, pp. 299–309. Kasoulides, George C. “Global and regional port state regimes,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Ringbom ed. The Hague: Kluwer Law International, 1997, pp. 121–139. Keselj, Tatjana. “Port state jurisdiction in respect of pollution from ships: The 1982 United Nations Convention on the Law of the Sea and the memoranda of understanding,” Ocean Development and International Law 30 (1999): 127–160. Kiss, Alexandre. “The destiny of the principles of the Stockholm Declaration,” in The Stockholm Declaration and Law of the Marine Environment, Myron H. Nordquist and John Norton Moore, eds. The Hague: Martinus Nijhoff, 1999, pp. 53–66. —“The international protection of the environment,” in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory, 2nd edition, R. St. J. Macdonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp.1069– 1093.

Bibliography

171

La Faytte, Louise. “The Marine Environment Protection Committee: The conjunction of the law of the sea and international environmental law,” International Journal of Marine and Coastal Law 16(1) ( January 2001): 155–238. Laylin, John G. “Emerging customary law of the sea,” International Lawyer 10(4) (1976): 669–679. Loughlin, Martin. “Ten tenets of sovereignty,” in Sovereignty in Transition: Essays in European Law, Neil Walker, ed. Portland, OR: Hart Publishing, 2003, pp. 55–86. Lowe, A.V. “The right of entry into maritime ports in international law,” San Diego Law Review 597 (1976–1977): 597–622. Molenaar, Erik Jaap. “Residual jurisdiction under IMO regulatory conventions,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Ringbom, ed. The Hague: Kluwer Law International, 1997, pp. 201–216. —“Navigational rights and freedoms in a European regional context,” in Navigational Rights and Freedoms and the New Law of the Sea, Donald R. Rothwell and Sam Bateman, eds. The Hague: Martinus Nijhoff, 2000, pp. 22–46. Oxman, Bernard. “Customary International law in the absence of widespread ratification of the U.N. Convention on the Law of the Sea,” in The 1982 Convention on the Law of the Sea, Albert Koers and Bernie Oxman, eds. Honolulu: The Law of the Sea Institute, 1984, pp. 668–699. Palmer, Geoffrey. “New ways to make international environmental law,” American Journal of International Law 86 (1992): 259–283. Plant, Glen. “The relationship between international navigation rights and environmental protection: A legal analysis of mandatory ship traffic systems,” in Competing Norms in the Law of Marine Environmental Protection, Henrik Ringbom, ed. The Hague: Kluwer Law International, 1997, pp. 11–29. Plaza, Fernando. “The future for flag state implementation and port state control,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp.199–219. Riphagen, Willem. “La navigation dans le noveau droit de la mer,” in Le Noveau Droit de la Mer, Daniel Bardonnet and Michel Virally, eds. Paris: A. Pedone, 1983, pp. 141–176. Roach, J. Ashley. “Alternatives for achieving flag state implementation and quality shipping,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp.151–175. Roermund, Bert Van. “Sovereignty: Unpopular and Popular,” in Sovereignty in Transition: Essays in European Law, Neil Walker, ed. Portland, OR: Hart Publishing, 2003, pp. 33–54. Rosene, Shabtai. “The International Maritime Organization interface with the Law of the Sea Convention,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp.251–268. Scovazzi, Tullio. “Marine specially protected areas and present international law of the sea,” in New Technologies and Law of the Marine Environment, J-P. Beurier, A. Kiss and S. Mahmoudi, eds. The Hague: Kluwer Law International, 2000, pp. 179–191. Vicuna, Francisco Orrego. “The law of the sea experience and the corpus of international law: Effects and interrelationships,” in The Developing Order of the Oceans, Robert Krueger and Stefan Riesenfeld, eds. Honolulu: The Law of the Sea Institute, University of Hawaii, 1985, pp. 5–40. Wolfrum, Rüdiger. “IMO interface with the Law of the Sea Convention,” in Current Maritime Issues and the International Maritime Organization, John Norton Moore and Myron H. Nordquist, eds. Center for Oceans Law and Policy 4. The Hague: Martinus Nijhoff, 1999, pp. 203–223.

172

Bibliography

— “Precautionary principle,” in New Technologies and Law of the Marine Environment, J-P. Beurier, A. Kiss and S. Mahmoudi, eds. The Hague: Kluwer Law International, 2000, pp. 203–213. Ziller, Jacques. “Sovereignty in France: Getting rid of the mal de Bodin,” in Sovereignty in Transition: Essays in European Law, Neil Walker, ed. Portland, OR: Hart Publishing, 2003, pp. 261–277.

V. Articles on Ballast Water Bax, Nicholas, Angela Williamson, Max Aguero, Exequiel Gonzalez and Warren Geeves. “Marine invasive alien species: A threat to global biodiversity,” Marine Policy 27(4) (2003): 313–324. Carlton, James T. “Bioinvasion ecology: Assessing invasion impact and scale,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 7–19. Carvalho, Alexandre Leal Neto and Silvio Jablonski. “O Programa GloBallast no Brasil,” in Água de Lastro e Bioinvasão, Julieta Silva and Rosa Suza, eds. Rio de Janeiro: Interciência, 2004, pp. 11–20. Chad, Hewitt and Keith R. Hayes. “Risk assessment of marine biological invasions,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 456–466. Chircop, Aldo. “Professionalization of the field of marine affairs: Towards standard-setting in education, training and practice in ships’ ballast water,” in Ocean Yearbook 17, Elisabeth Mann Borgese, Aldo Chircop and Moira McConnell, eds. Chicago: University of Chicago Press, 2003, pp. 19–55. Eno, Clare and John P. Hamer. “Nature conservation implications of marine biological invasions,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 477–483. Ferreira, Carlos Eduardo L. “Cascos de navios e plataformas como vetores na introdução de espécies exóticas,” in Água de Lastro e Bioinvasão, Julieta Silva and Rosa Suza, eds. Rio de Janeiro: Interciência, 2004, pp. 143–155. Firestone, Jeremy and James Corbett. “Coastal and port environments: International legal and policy responses to reduce ballast water introductions of potentially invasive species,” Ocean Development & International Law 36(3) (2005): 291–316. Flagella, Maria Monia and Ameer A. Abdulla. “Ship ballast water as a main vector of marine introductions in the Mediterranean Sea,” WMU Journal of Maritime Affairs 4(1) (2005): 95–120. Galil, Bella S. and Norbert Hulsmann, “The biological efficacy of open ocean exchange – Implications for ballast water management,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 508–510. Gollasch, Stephan. “Hazard analysis of aquatic species invasions,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 447–455. —Removal of Barriers to the effective Implementation of Ballast Water Control and Management Measures in Developing Countries (Review of Ballast Water Regulations and Associated Guidelines), GEF/UNDP/IMO, February 1998, pp. 1–180. Gollasch, Stefan, E. MacDonald, S. Belson, H. Botnen, J. T. Christensen, J. P. Hamer, G. Houvenaghel, A. Jelmert, I. Lucas, D. Masson, T. McCollin, S. Olenin, A. Persson, I. Wallentinus, L. P. M. J. Wetsteyn, and T. Wittling. “Life in ballast tanks,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 217–231.

Bibliography

173

Gollasch, Stephan, Majej David, Mathias Voigt, Egil Dragsund,Chad Hewwitt, and Yasuwo Fukuyo. “Critical review of the IMO International Convention on Management of Ships’ Ballast Water and Sediments,” Harmful Algae 6(4) (2007): 585–600. Hamer, John P. “Ballast tank sediments,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 232–234. Hopkins, Christopher C. E. “Introduced marine organisms in Norwegian waters, including Svalbard,” Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 240–252. Homan, Harold. “Managing ballast water,” in Stemming the Tide: Controlling Introduction of Nonindigenous Species by Ships’ Ballast Water, Committee on Ships’ Ballast Operations, Marine Board, Commission on Engineering and Technical Systems, and National Research Council. Washington, DC: National Academy Press, 1996, pp. 32–91. Jastremy, Wendy. “A proposed international framework convention on bioinvasive species,” in Reforming the International Environmental Treaty-Making System, Lawrence Susskind, William Moomaw and Kevin P. Gallagher, eds. Cambridge, Harvard Program on Negotiation Press, 2001, pp. 13–30. Leppäkoski, Erkki, Stefan Gollasch and Sergej Olenin. “Alien species in European waters,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 1–6. Lopes, Rubens M. “Bioinvasões aquáticas por organismos zooplanctônicos: Uma breve revisão,” in Água de Lastro e Bioinvasão, Julieta Silva and Rosa Suza, eds. Rio de Janeiro: Interciência, 2004, pp. 113–131. Mansur, Maria Cristina, C. B. Quevedo, C. P. Santos and C. T. Callil. “Prováveis vias de introdução de Limnoperna fortunei na Bacia da Laguna dos Patos, Rio Grande do Sul e novos registros de invasão no Brasil pelas Bacias do Paraná e Paraguai,” in Água de Lastro e Bioinvasão, Julieta Silva and Rosa Suza, eds. Rio de Janeiro: Interciência, 2004, pp. 33–38. Mansur, Maria Cristina, C. T. Callil, F. R. Cardoso and J. A. A. Ibarra. “Uma retrospectiva e mapeamento da invasão de espécies de corbicula oriundas do Suddeste Asiático, na América do Sul,” in Água de Lastro e Bioinvasão, Julieta Silva and Rosa Suza, eds. Rio de Janeiro: Interciência, 2004, pp.39–58. McConnell, Moira L. “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 water,” in Ocean Yearbook 17, Elisabeth Mann Borgese, Aldo Chircop and Moira McConnell, eds. Chicago: University of Chicago Press, 2003, pp. 213–255. McGee, Sarah. “Proposal for ballast water regulation: Biosecurity in an insecure world,” Colorado Journal of International Environmental Law & Policy 12(2001): 141–159. Minchin, Dan and Stefan Gollasch. “Vectors – How exotics get around,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 183–192. Moore, Gerald. “Legal aspects of marine pollution control,” in Marine Pollution, R. Johnston, ed. London: Academic Press, 1976, pp. 589–697. Muller, Jakob C. and Eva Griebeler. “Genetics on Invasive Species,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 173–182. Ojaveer, Henn, Erkki Leppäkoski, Sergej Olenin and Anthony Riccardi. “Ecological impact of Ponto-Caspian invaders in the Baltic Sea, European inland waters and the Great Lakes: An inter-ecosystem comparison,” in Invasive Aquatic Species of Europe: Distribution, Impacts and

174

Bibliography

Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 412–425. Raaymakers, Steve. “The Ballast Water Problem: Global Ecological, Economic and Human Health Impacts,” Paper presented at the RECSO/IMO Joint Seminar on Tanker Ballast Water Management and Technologies, Dubai, UAE, 16–18 December 2002. Ruiz, Gregory M. and Chad L. Hewitt. “Toward understanding patterns of coastal marine invasions: A prospectus,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 529–547. Shine, Clare, Nattley Williams and Lothar Gündling. A Guide to Designing Legal and Institutional Frameworks on Alien Invasive Species, Environmental Policy and Law Report No. 40, Gland: International Union for the Conservation of Nature and Natural Resources, 2000. Silva, Julieta Salles Vianna, et al. “Água de lastro e bioinvasão,” in Água de Lastro e Bioinvasão, Julieta Silva and Rosa Suza, eds. Rio de Janeiro: Interciência, 2004, pp. 1–10. Taylor, Alan, et al. “Preventive treatment and control techniques for ballast water,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 484–507. Terpstra, Lance K. “There goes the neighbourhood: The potential private party liability of the international shipping industry for exotic marine species introduction via ballast water,” Transnational Lawyer 11 (1998): 278–322. Tsimplis, Michael. “Alien species stay home: The International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004,” International Journal of Marine and Coastal Law 19(4) (2004): 411–482.

VI. Articles on Public International Law Akehurst, Michael. “Jurisdiction in international law,” British Year Book of International Law 145 (1972–1973): 145–257. Sloan, Blaine. “The binding force of a ‘recommendation’ of the General Assembly of the United Nations,” British Year Book of International Law 25 (1948): 1–33. Bleicher, Samuel. “The legal significance of re-citation of General Assembly resolutions,” American Journal of International Law 63 (1969): 444–478. Bodansky, Daniel. “Customary (and not so customary) international law,” Indiana Journal of Global Legal Studies 3 (1995–1996): 105. Bos, Maarten. “Will and order in the nation-state system: Observations on positivism and international law,” in The Structure and Process of International Law, 2nd edition, R. St. John MacDonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp. 51–78. Bowett, D. W. “Jurisdiction: Changing patterns of authority over activities and resources,” in The Structure and Process of International Law, 2nd edition, R. St. John MacDonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp. 555–580. Brownlie, Ian. “A survey of international customary rules of environmental protection,” Natural Resources Journal 13(1973): 179–189. Buijs, Govert. “ ‘Que les Latins Appellent Maiestatem’: An exploration into the theological background of the concept of sovereignty,” in Sovereignty in Transition: Essays in European Law, Neil Walker, ed. Portland, OR: Hart Publishing., 2003, pp. 229–257. Carty, Anthony. “Critical international law: Recent trends in the theory of international law,” European Journal of International Law 2(1) (1991): 66–96.

Bibliography

175

Castañeda, Jorge. “Valeur juridique des résolutions des Nations Unies,” Recueil des Cours 129 (1970–1971): 207–331. Cheng, Bin. “Custom: The future of general state practice in a divided world,” in The Structure and Process of International Law, 2nd edition, R. St. John MacDonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp. 513–554. Fitzmaurice, G. G. “The law and procedure of the International Court of Justice: Treaty interpretation and certain other treaty points,” British Year Book of International Law 29 (1952): 1–62. Goldsworthy, Jeffrey. “The debate about sovereignty in the United States: A historical and comparative perspective,” in Sovereignty in Transition: Essays in European Law, Neil Walker, ed. Portland, OR: Hart Publishing., 2003, pp. 423–446. Gormley, Paul W. “The codification of pacta sunt servanda by the International Law Commission: The preservation of classical norms of moral force and good faith,” Saint Louis University Law Journal 14 (1969–1970): 367–428. Hambro, Edvard. “Some notes on the developments of the sources of international law,” Scandinavian Studies in Law 17 (1973): 75–93. Johnson, D. H. N. “The effect of resolutions of the General Assembly of the United Nations,” British Yearbook of International Law 97 (1955–1956): 97–122. Kolb, Robert. “Selected problems in the theory of customary international law,” Netherlands International Law Review 50(2) (2003): 119–150. Kopelmanas, Lazare. “Custom as a means of the creation of international law,” British Yearbook of International Law 18 (1937): 127–151. Loughlin, Martin. “Ten tenets of sovereignty,” in Sovereignty in Transition: Essays in European Law, Neil Walker, ed. Portland, OR: Hart Publishing., 2003, pp. 55–86. Parisi, Francesco. “The formation of customary law,” Law and Economics Research Papers Series No. 01–06, Arlington, VA: School of Law, George Mason University, 2001. Roberts, Anthea Elizabeth. “Traditional and modern approaches to customary international law: A reconciliation,” American Journal of International Law 95(4) (2001): 757–791. Shelton, Dinah. “International law and ‘relative normativity’,” in International Law, Malcolm D. Evans, ed. Oxford: Oxford University Press, 2003, pp.145–172. Shibaeva, E. “Law of international organizations in the system of modern international law,” Indian Journal of International Law 17 (1997): 227–233. Simma, Bruno. “Consent: Strains in the treaty system,” in The Structure and Process of International Law, 2nd edition, R. St. John MacDonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp. 485–509. Skubiszewski, Krzysztof. “A new source of the law of nations: Resolutions of international organizations,” Recueil D’Études de Droit International (1968): 508–520. —“Enactment of law by international organizations,” British Year Book of International Law 41 (1965–1966): 198–274. Szasz, Paul C. “General law-making processes,” in The United Nations and International Law, Christopher C. Joyner, ed. Cambridge: American Society of International Law, 1997, pp. 27–64. Tammes, A. J. P. “Decisions of international organs as a source of international law,” Recueil des Cours (1958-II): 261–364. Thirlway, Hugh. “Treaty interpretation and other treaty points: The law and procedure of the International Court of Justice, 1960–1989 (Part IV),” British Year Book of International Law 63 (1992): 1–96. —“The sources of international law,” in International Law, Malcolm D. Evans, ed. Oxford: Oxford University Press, 2003, pp. 117–144.

176

Bibliography

Stone, Julius. “A sociological perspective on international law,” in The Structure and Process of International Law, 2nd edition, R. St. John MacDonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp. 263–303. Vignes, Daniel. “The impact of international organizations on the development and application of public international law,” in The Structure and Process of International Law, 2nd edition, R. St. John MacDonald and Douglas M. Johnston, eds. The Hague: Martinus Nijhoff, 1986, pp. 809–853. Virally, Michel. “La valeur juridique des recommandations des organisations internationales,” Annuaire Francais de Droit International 2 (1956): 66–96. —“Les résolutions dans la formation du droit international du développement,” Études et Travaux de L’Institut Universitaire de Haute Études Internationales 13 (1971): 1–190.

VII. Marine Biology Bax N., J. T. Carlton, A. Mathews-Amos, R. L. Haedrich, F. G. Howarth, J. E. Purcell, A. Rieser, and A. Gray. “The control of biological invasions in the world’s oceans,” Conservation Biology 15 (2001): 1234–1246. Carlton, J. T. “Transoceanic and interoceanic dispersal of coastal marine organisms: The biology of ballast water,” Oceanography and Marine Biology Annual Review 23 (1985): 313–371. —“Biological invasions and cryptogenic species,” Ecology 77 (1996): 1653–1655. —“The scale and ecological consequences of biological invasions in the world’s oceans,” in Invasive Species and Biodiversity Management, O. T. Sandlund, P. J. Schei and U. Viken, eds. Dordrecht: Kluwer Academic Publishers, 1999, pp. 195–212. — and J. B. Geller. “Ecological roulette: The global transport of nonindigenous marine organisms,” Science 261 (1993):78–82. — and G. M. Ruiz. “Vector science and integrated vector management in bioinvasion ecology: Conceptual frameworks,” in Invasive Alien Species – A New Synthesis, H. A. Mooney, R. N. Mack, J. A. McNeely, L. E. Neville, P. J. Schei, and J. K. Waage, eds. SCOPE Series 63. Washington, DC: Island Press, 2005, pp. 36–58. Carson, R. Silent Spring. New York: Houghton Mifflin, 1962. Crosby, A. W. Ecological Imperialism. The Biological Expansion of Europe 900–1900. Cambridge: Cambridge University Press, 1986. Endresen, Ø, H. L. Behrens, S. Brynestad, A. B. Andersen, and R. Skjong. “Challenges in global ballast water management,” Marine Pollution Bulletin 48 (2004): 615–623. Gollasch, S. Untersuchungen des Arteintrages durch den internationalen Schiffsverkehr unter besonderer Berücksichtigung nichtheimischer Arten. PhD Thesis, Dr. Kovac, Hamburg, 1996. Gollasch, S. and E. Leppäkoski. Initial Risk Assessment of Alien Species in Nordic Coastal Waters. Nord 8. Copenhagen: Nordic Council of Ministers, 1999. Gollasch, S. E. MacDonald, S. Belson, H. Botnen, J. T. Christensen, J. P. Hamer, G. Houvenaghel, A. Jelmert, I. Lucas, D. Masson, T. McCollin, S. Olenin, A. Persson, I. Wallentinus, L. P. M. J. Wetsteyn, and T. Wittling. “Life in ballast tanks,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 217–231. Grigorovich, I. A., R. I. Colautti, E. L. Mills, K. Holeck, A. G. Ballert, and H. J. MacIsaac. “Ballast-mediated animal introductions in the Laurentian Great Lakes: Retrospective and prospective analyses,” Canadian Journal of Fisheries and Aquatic Sciences 60 (2003): 740–756.

Bibliography

177

Hamer, J. P. “Ballast tank sediments,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 232–234. Hayes, K. R. and C. Sliwa. “Identifying potential marine pests: A deductive approach applied to Australia,” Marine Pollution Bulletin 46 (2003): 91–98. IMO GloBallast – Global Ballast Water Management Programme 2000–2005. http://globallast. imo.org/ Leppäkoski, E. “Harmful non-native species in the Baltic Sea: An ignored problem,” in Baltic Coastal Ecosystems: Structure, Function and Coastal Zone Management, G. Schernewski and U. Schiewer, eds. Berlin: Springer-Verlag, 2002, pp. 253–275. Leppäkoski, E and S. Olenin. “Non-native species and rates of spread: Lessons from the brackish Baltic Sea,” Biological Invasions 2 (2000): 151–163. Leppäkoski, E and S. Olenin. “Xenodiversity of the European brackish water seas: The North American contribution,” in Marine Bioinvasions: Proceedings of the First National Conference, Massachusetts Institute of Technology, January 24–27, 1999, J. Pederson, ed. Cambridge: Massachusetts Institute of Technology, MIT Sea Grant College Program, 2000, pp. 107–119. Lodge, D. M., R. A. Stein, K. M. Brown, A. P. Covich, C. Brönmark, J. E. Garvey, and S. P. Klosiewski. “Predicting impact of freshwater exotic species on native biodiversity: Challenges in spatial scaling,” Australian Journal of Ecology 23 (1998): 53–67. Mooney, H. A. “Invasive alien species: The nature of the problem,” in Invasive Alien Species – A New Synthesis, H. A. Mooney, R. N. Mack, J. A. McNeely, L. E. Neville, P. J. Schei, and J. K. Waage, eds. SCOPE Series 63. Washington, DC: Island Press, 2005, pp. 1–15. Mooney, H. A., R. N. Mack, J. A. McNeely, L. E. Neville, P. J. Schei, and J. K. Waage, eds. Invasive Alien Species – A New Synthesis. SCOPE Series 63. Washington, DC: Island Press, 2005. Neff, J. N. an d E.S. Gilfillan. “Indirect effects of marine oil spills on rocky shores: Examples from 3 large oil spills,” Setac Globe, May-June 2004, pp. 42–43. Occhipinti-Ambrogi, A. and B. S. Galil. “A uniform terminology on bioinvasions: A chimera or an operative tool?,” Marine Pollution Bulletin 49 (2004): 688–694. Ojaveer, H., E. Leppäkoski, S. Olenin, and A. Ricciardi. “Ecological impact of Ponto-Caspian invaders in the Baltic Sea, European inland waters and the Great Lakes: An inter-ecosystem comparison,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 412–425. Paavola, M., S. Olenin, and E. Leppäkoski. “Are invasive species most successful in habitats of low native species richness across European brackish water seas?,” Estuarine, Coastal and Shelf Science 64 (2005): 738–750. Pienimäki, M. and E. Leppäkoski. “Invasion pressure to the Finnish Lake District: Invasion corridors and barriers,” Biological Invasions 6 (2004): 331–346. Reise, K., S. Gollasch and W. Wolff. “Introduced marine species of the North Sea coasts,” in Invasive Aquatic Species of Europe: Distribution, Impacts and Management, Erkki Leppäkoski, Stefan Gollasch and Sergej Olenin, eds. Dordrecht: Kluwer Academic Publisher, 2002, pp. 260–266. Ricciardi, A. and H. J. McIsaac. “Recent mass invasion of the North American Great Lakes by Ponto-Caspian species,” Trends in Ecology and Evolution 15 (2000): 62–65. Ricciardi, A. and J. B. Rasmussen. “Predicting the identity and impact of future biological invaders: A priority for aquatic resource management,” Canadian Journal of Fisheries and Aquatic Sciences 55 (1998): 1759–1765. Ruiz, G. M., P. Fofonoff, A. H. Hines, and E. D. Grosholz. “Non-indigenous species as stressors in estuarine and marine communities: Assessing invasion impacts and interactions,” Limnology and Oceanography 44 (1999): 950–972.

178

Bibliography

Streftaris, N., A. Zenetos and E. Papathanassiou. “Globalisation in marine ecosystems: The story of non-indigenous marine species across European seas,” Oceanography and Marine Biology Annual Review 43 (2005): 419–453. Viitasalo, S., J. Sassi, J. Rytkönen, and E. Leppäkoski. “Ozone, ultraviolet light, ultrasound and hydrogen peroxide as ballast water treatments: Experiments with mesozooplankton in low-saline brackish water,” Journal of Marine Environmental Engineering 8 (2005): 35–55. Wolff, W. J. “Exotic invaders of the meso-oligohaline zone of estuaries in The Netherlands: Why are there so many?,” Helgoländer Meeresuntersuchungen 52 (1999): 393–400

VIII. Treaties Convention on Biological Diversity, Rio de Janeiro, 22 May 1992, 1760 UNTS 79; 31 ILM 818 (1992). International Convention for the Control and Management of Ships’ Ballast Water and Sediments, IMO/BWM/CONF/36, 16 February 2004. International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 UNTS 184, as amended by the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 UNTS 61. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, entered into force 16 November 1994, 1833 UNTS 396; 33 ILM 1309. Vienna Convention on the Law of Treaties, Vienna, 22 May 1969, 1155 UNTS 331.

IX. Report Rolim, Maria Helena Fonseca de Souza. Brazilian GloBallast Programme, Final Report, Project No. GLO/99/G31/A/1G/19, 2002, pp. 1–110.

X. IMO Documents Assembly: A 23/Res.944, 18 March 2004 A 21/Res. 882, 4 February 2000 A.868(20), 27 November 1997 A 787/Res. 787, 23 November 1995 A.774(18), 4 November 1993 Council: C 78/SR.2, 23 June 1997 International Conference on Marine Pollution: MP/CONF/WP.29, 31 October 1973 International Conference on Ballast Water Management for Ships: BWM/CONF/37, 16 February 2004 BWM/CONF/36, 16 February 2004 BWM/CONF/ 27, 5 February 2004 BWM/CONF/22, 23 January 2004

Bibliography

BWM/CONF/21, 22 January 2004 BWM/CONF/20, 27 January 2004 BWM/CONF/12, 5 January 2004 BWM/CONF/10, 19 December 2003 BWM/CONF/9, 25 November 2003 BWM/CONF/3, 30 July 2003 BWM/CONF/INF.9, 19 April 2004 BWM/CONF/INF.8, 12 February 2004 BWM/CONF/INF.7, 30 January 2004 BWM/CONF/INF.6, 27 January 2004 BWM/CONF/INF.2, 3 November 2003 BWM/CONF/RD/2/Rev.1, 16 February 2004 BWM/CONF/DC/WP.1 11 February 2004 BWM/CONF/RD/1, 9 February 2004 Legal Committee: LEG 89/14, 24 September 2004 LEG 87/17, 23 October 2003 LEG/MISC/4, 26 January 2005 LEG/MISC/3/Rev.1, 6 January 2003 Marine Environment Protection Committee: MEPC 53/1, 6 August 2004 MEPC 52/24, 18 October 2004 MEPC 52/2/11, 6 August 2004 MEPC 52/2/4, 8 July 2004 MEPC 52/1, 19 April 2004 MEPC 51/2, 4 March 2004 MEPC 48/2/19, 16 August 2002 MEPC 46/3/4, 16 February 2001 MEPC 45/2/13, 28 July 2000 MEPC 45/2/11, 28 July 2000 MEPC 45/2/9, 26 July 2000 MEPC 45/2/24, 30 June 2000 MEPC 45/2/3, 30 June 2000 MEPC 45/2/2 28 June 2000 MEPC 45/2 8 May 2000 MEPC 44/4/5, 29 December 1999 MEPC 44/4/1, 3 December 1999 MEPC 44/4, 2 December 1999 MEPC 44/4/8, 30 April 1999 MEPC 43/4/7, 30 April 1999 MEPC 43/4/6, 1 April 1999 MEPC 43/4/4, 1 April 1999 MEPC 43/4/1, 22 February 1999 MEPC 43/4, 5 January 1999 MEPC 38/13/1, 3 April 1996 MPEC 37/22/Add.1, 15 September 1995 MEPC 37/18, 2 December 1994

179

180

Bibliography

MEPC 31/21, 4 July 1991 MEPC 30/24, 8 January 1991 MEPC 53/INF. 22, 8 September 2005 MEPC 52/INF.8, 14 July 2004 MEPC 52/INF.16, 6 August 2004 MEPC 52/INF.13, 6 August 2004 MEPC 46/INF.37, 1 June 2001 MEPC 52/WP.3, 11 October 2004 MEPC 49/WP.16/Add.1, 17 July 2003 MEPC 49/WP.7 17 July 2003 MEPC 49/WP.2, 16 June 2003 MEPC 38/WP.16, 8 July 1996 MEPC 36/WP.4, 2 November 1994 Maritime Safety Committee: MSC 79/WP.11, 8 December 2004 Marine Environment Protection Committee: MEPC 37/10/7, 16 June 1995 Maritime Safety and Marine Environment Protection Committees: MSC/Circ.806 &MEPC/Circ. 329, 30 June 1997

Globallast Monograph Series: No. 1, GloBallast Legislative Review, Final Report, Moira L McConnell, London: IMO, 2002. No. 14, Ballast Water Risk Assessment, Port of Sepetiba, Brazil, Final Report, C. Clarke, R. Hilliard, A. de O. R. Junqueira, A. de C. L. Neto, J. Polglaze and S. Raaymakers, London: IMO, 2003,

Focus on IMO A Summary of IMO Conventions, IMO, April 2001, pp. 1–85. Basic Facts about IMO, IMO, March 2000, pp. 1–29. Alien invaders: Putting a stop to the ballast water hitch-hikers, IMO, August 1999, pp. 1–18. MARPOL 25 Years, IMO, October 1998, pp. 1–33. MARPOL 73/78, IMO, September 1998, pp. 1–14. Liability and Compensation, IMO, June 1998 pp. 1–11.

Ballast Water News Issue 1, April-June 2000 Issue 2, July –September 2000 Issue 3, October- December 2000 Issue 4, January-March 2001 Issue 5, April-June 2001

Bibliography

181

Issue 6, July-September 2001 Issue 7, October-December 2001 Issue 8, January-March 2002 Issue 9, April-June 2002 Issue 11, October- December 2002 Issue 13, April-June 2002 Issue 14, July-September 2003 Issue 16, January-March 2004 Issue 17, April-June 2004

XI. Other Documents Jakarta Ministerial Statement on the Implementation of the Convention on Biological Diversity, available from http://www.biodiv.org/programmes/areas/marine/default.asp. United Nations Conference on Trade and Development, Review of Maritime Transport 2004, New York and Geneva, UNCTAD Secretariat, 2004, 1–140. World Health Organization, Fifty-eighth World Health Assembly: Third Report of Committee A, 23 May 2005, 1–60. World Health Organization, Intergovernmental Working Group on Revision of the International Health Regulations, Review and approval of proposed amendments to the International Health Regulations: relations with other international instruments, Provisional agenda item 3, A/IHR/ IGWG/INF.DOC./1 (30 September 2004).

Annexes

Annex I INTERNATIONAL MARITIME ORGANIZATION

E IMO

INTERNATIONAL CONFERENCE ON BALLAST WATER MANAGEMENT FOR SHIPS Agenda item 8

BWM/CONF/36 16 February 2004 Original: ENGLISH

Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting From the Work of the Conference International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 Text adopted by the Conference 1. As a result of its deliberations, as recorded in the Record of Decisions of the Plenary (BWM/CONF/RD/2/Rev.1) and the Final Act of the Conference (BWM/CONF/37), the Conference adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004. 2. The above-mentioned Convention, as adopted by the Conference, is annexed hereto.

For reasons of economy, this document is printed in a limited number. Delegates are kindly asked to bring their copies to meetings and not to request additional copies. Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 185–226. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 The Parties to this Convention Recalling Article 196(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which provides that “States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto.” Noting the objectives of the 1992 Convention on Biological Diversity (CBD) and that the transfer and introduction of Harmful Aquatic Organisms and Pathogens via ships’ ballast water threatens the conservation and sustainable use of biological diversity as well as decision IV/5 of the 1998 Conference of the Parties (COP 4) to the CBD concerning the conservation and sustainable use of marine and coastal ecosystems, as well as decision VI/23 of the 2002 Conference of the Parties (COP 6) to the CBD on alien species that threaten ecosystems, habitats or species, including guiding principles on invasive species. Noting Further, that the 1992 United Nations Conference on Environment and Development (UNCED) requested the International Maritime Organization (the Organization) to consider the adoption of appropriate rules on ballast water discharge. Mindful of the precautionary approach set out in Principle 15 of the Rio Declaration on Environment and Development and referred to in resolution MEPC.67(37), adopted by the Organization’s Marine Environment Protection Committee on 15 September 1995. Also Mindful that the 2002 World Summit on Sustainable Development, in paragraph 34(b) of its Plan of Implementation, calls for action at all levels to accelerate the development of measures to address invasive alien species in ballast water.

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Conscious that the uncontrolled discharge of Ballast Water and Sediments from ships has led to the transfer of Harmful Aquatic Organisms and Pathogens, causing injury or damage to the environment, human health, property and resources. Recognizing the importance placed on this issue by the Organization through Assembly resolutions A.774(18) in 1993 and A.868(20) in 1997, adopted for the purpose of addressing the transfer of Harmful Aquatic Organisms and Pathogens. Recognizing Further that several States have taken individual action with a view to prevent, minimize and ultimately eliminate the risks of introduction of Harmful Aquatic Organisms and Pathogens through ships entering their ports, and also that this issue, being of worldwide concern, demands action based on globally applicable regulations together with guidelines for their effective implementation and uniform interpretation. Desiring to continue the development of safer and more effective Ballast Water Management options that will result in continued prevention, minimization and ultimate elimination of the transfer of Harmful Aquatic Organisms and Pathogens. Resolved to prevent, minimize and ultimately eliminate the risks to the environment, human health, property and resources arising from the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships’ Ballast Water and Sediments, as well as to avoid unwanted side-effects from that control and to encourage developments in related knowledge and technology. Considering that these objectives may best be achieved by the conclusion of an International Convention for the Control and Management of Ships’ Ballast Water and Sediments. HAVE AGREED as follows: Article 1 Definitions For the purpose of this Convention, unless expressly provided otherwise: 1. “Administration” means the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State. With respect to floating platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of its natural resources, including Floating Storage Units (FSUs) and Floating Production Storage and Offloading Units (FPSOs), the Administration is the Government of the coastal State concerned.

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2. “Ballast Water” means water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of the ship. 3. “Ballast Water Management” means 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. 4. “Certificate” means the International Ballast Water Management Certificate. 5. “Committee” means the Marine Environment Protection Committee of the Organization. 6. “Convention” means the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 7. “Gross tonnage” means the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I to the International Convention on Tonnage Measurement of Ships, 1969 or any successor Convention. 8. “Harmful Aquatic Organisms and Pathogens” means aquatic organisms or pathogens which, if introduced into the sea including estuaries, or into fresh water courses, may create hazards to the environment, human health, property or resources, impair biological diversity or interfere with other legitimate uses of such areas. 9. “Organization” means the International Maritime Organization. 10. “Secretary-General” means the Secretary-General of the Organization. 11. “Sediments” means matter settled out of Ballast Water within a ship. 12. “Ship” means a vessel of any type whatsoever operating in the aquatic environment and includes submersibles, floating craft, floating platforms, FSUs and FPSOs. Article 2 General Obligations 1. Parties undertake to give full and complete effect to the provisions of this Convention and the Annex thereto in order to prevent, minimize and ultimately eliminate the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships’ Ballast Water and Sediments. 2. The Annex forms an integral part of this Convention. Unless expressly provided otherwise, a reference to this Convention constitutes at the same time a reference to the Annex. 3. Nothing in this Convention shall be interpreted as preventing a Party from taking, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships’ Ballast Water and Sediments, consistent with international law.

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4. Parties shall endeavour to co-operate for the purpose of effective implementation, compliance and enforcement of this Convention. 5. Parties undertake to encourage the continued development of Ballast Water Management and standards to prevent, minimize and ultimately eliminate the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships’ Ballast Water and Sediments. 6. Parties taking action pursuant to this Convention shall endeavour not to impair or damage their environment, human health, property or resources, or those of other States. 7. Parties should ensure that Ballast Water Management practices used to comply with this Convention do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States. 8. Parties shall encourage ships entitled to fly their flag, and to which this Convention applies, to avoid, as far as practicable, the uptake of Ballast Water with potentially Harmful Aquatic Organisms and Pathogens, as well as Sediments that may contain such organisms, including promoting the adequate implementation of recommendations developed by the Organization. 9. Parties shall endeavour to co-operate under the auspices of the Organization to address threats and risks to sensitive, vulnerable or threatened marine ecosystems and biodiversity in areas beyond the limits of national jurisdiction in relation to Ballast Water Management. Article 3 Application 1. Except as expressly provided otherwise in this Convention, this Convention shall apply to: (a) ships entitled to fly the flag of a Party; and (b) ships not entitled to fly the flag of a Party but which operate under the authority of a Party. 2. This Convention shall not apply to: (a) ships not designed or constructed to carry Ballast Water; (b) ships of a Party which only operate in waters under the jurisdiction of that Party, unless the Party determines that the discharge of Ballast Water from such ships would impair or damage their environment, human health, property or resources, or those of adjacent or other States; (c) ships of a Party which only operate in waters under the jurisdiction of another Party, subject to the authorization of the latter Party for such exclusion. No Party shall grant such authorization if doing so would

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impair or damage their environment, human health, property or resources, or those of adjacent or other States. Any Party not granting such authorization shall notify the Administration of the ship concerned that this Convention applies to such ship; (d) ships which only operate in waters under the jurisdiction of one Party and on the high seas, except for ships not granted an authorization pursuant to sub-paragraph (c), unless such Party determines that the discharge of Ballast Water from such ships would impair or damage their environment, human health, property or resources, or those of adjacent of other States; (e) any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service. However, each Party shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with this Convention; and (f ) permanent Ballast Water in sealed tanks on ships, that is not subject to discharge. 3. With respect to ships of non-Parties to this Convention, Parties shall apply the requirements of this Convention as may be necessary to ensure that no more favourable treatment is given to such ships. Article 4 Control of the Transfer of Harmful Aquatic Organisms and Pathogens Through Ships’ Ballast Water and Sediments 1. Each Party shall require that ships to which this Convention applies and which are entitled to fly its flag or operating under its authority comply with the requirements set forth in this Convention, including the applicable standards and requirements in the Annex, and shall take effective measures to ensure that those ships comply with those requirements. 2. Each Party shall, with due regard to its particular conditions and capabilities, develop national policies, strategies or programmes for Ballast Water Management in its ports and waters under its jurisdiction that accord with, and promote the attainment of the objectives of this Convention. Article 5 Sediment Reception Facilities 1. Each Party undertakes to ensure that, in ports and terminals designated by that Party where cleaning or repair of ballast tanks occurs, adequate facilities are provided for the reception of Sediments, taking into account the

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Guidelines developed by the Organization. Such reception facilities shall operate without causing undue delay to ships and shall provide for the safe disposal of such Sediments that does not impair or damage their environment, human health, property or resources or those of other States. 2. Each Party shall notify the Organization for transmission to the other Parties concerned of all cases where the facilities provided under paragraph 1 are alleged to be inadequate. Article 6 Scientific and Technical Research and Monitoring 1. Parties shall endeavour, individually or jointly, to: (a) promote and facilitate scientific and technical research on Ballast Water Management; and (b) monitor the effects of Ballast Water Management in waters under their jurisdiction. Such research and monitoring should include observation, measurement, sampling, evaluation and analysis of the effectiveness and adverse impacts of any technology or methodology as well as any adverse impacts caused by such organisms and pathogens that have been identified to have been transferred through ships’ Ballast Water. 2. Each Party shall, to further the objectives of this Convention, promote the availability of relevant information to other Parties who request it on: (a) scientific and technology programmes and technical measures undertaken with respect to Ballast Water Management; and (b) the effectiveness of Ballast Water Management deduced from any monitoring and assessment programmes. Article 7 Survey and Certification 1. Each Party shall ensure that ships flying its flag or operating under its authority and subject to survey and certification are so surveyed and certified in accordance with the regulations in the Annex. 2. A Party implementing measures pursuant to Article 2.3 and Section C of the Annex shall not require additional survey and certification of a ship of another Party, nor shall the Administration of the ship be obligated to survey and certify additional measures imposed by another Party. Verification of such additional measures shall be the responsibility of the Party implementing such measures and shall not cause undue delay to the ship.

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Article 8 Violations 1. Any violation of the requirements of this Convention shall be prohibited and sanctions shall be established under the law of the Administration of the ship concerned, wherever the violation occurs. If the Administration is informed of such a violation, it shall investigate the matter and may request the reporting Party to furnish additional evidence of the alleged violation. If the Administration is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. The Administration shall promptly inform the Party that reported the alleged violation, as well as the Organization, of any action taken. If the Administration has not taken any action within 1 year after receiving the information, it shall so inform the Party which reported the alleged violation. 2. Any violation of the requirements of this Convention within the jurisdiction of any Party shall be prohibited and sanctions shall be established under the law of that Party. Whenever such a violation occurs, that Party shall either: (a) cause proceedings to be taken in accordance with its law; or (b) furnish to the Administration of the ship such information and evidence as may be in its possession that a violation has occurred. 3. The sanctions provided for by the laws of a Party pursuant to this Article shall be adequate in severity to discourage violations of this Convention wherever they occur. Article 9 Inspection of Ships 1. A ship to which this Convention applies may, in any port or offshore terminal of another Party, be subject to inspection by officers duly authorized by that Party for the purpose of determining whether the ship is in compliance with this Convention. Except as provided in paragraph 2 of this Article, any such inspection is limited to: (a) verifying that there is onboard a valid Certificate, which, if valid shall be accepted; and (b) inspection of the Ballast Water record book, and/or (c) a sampling of the ship’s Ballast Water, carried out in accordance with the guidelines to be developed by the Organization. However, the time required to analyse the samples shall not be used as a basis for unduly delaying the operation, movement or departure of the ship.

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2. Where a ship does not carry a valid Certificate or there are clear grounds for believing that: (a) the condition of the ship or its equipment does not correspond substantially with the particulars of the Certificate; or (b) the master or the crew are not familiar with essential shipboard procedures relating to Ballast Water Management, or have not implemented such procedures; a detailed inspection may be carried out. 3. In the circumstances given in paragraph 2 of this Article, the Party carrying out the inspection shall take such steps as will ensure that the ship shall not discharge Ballast Water until it can do so without presenting a threat of harm to the environment, human health, property or resources. Article 10 Detection of Violations and Control of Ships 1. Parties shall co-operate in the detection of violations and the enforcement of the provisions of this Convention. 2. If a ship is detected to have violated this Convention, the Party whose flag the ship is entitled to fly, and/or the Party in whose port or offshore terminal the ship is operating, may, in addition to any sanctions described in Article 8 or any action described in Article 9, take steps to warn, detain, or exclude the ship. The Party in whose port or offshore terminal the ship is operating, however, may grant such a ship permission to leave the port or offshore terminal for the purpose of discharging Ballast Water or proceeding to the nearest appropriate repair yard or reception facility available, provided doing so does not present a threat of harm to the environment, human health, property or resources. 3. If the sampling described in Article 9.1(c) leads to a result, or supports information received from another port or offshore terminal, indicating that the ship poses a threat to the environment, human health, property or resources, the Party in whose waters the ship is operating shall prohibit such ship from discharging Ballast Water until the threat is removed. 4. A Party may also inspect a ship when it enters the ports or offshore terminals under its jurisdiction, if a request for an investigation is received from any Party, together with sufficient evidence that a ship is operating or has operated in violation of a provision in this Convention. The report of such investigation shall be sent to the Party requesting it and to the competent authority of the Administration of the ship concerned so that appropriate action may be taken.

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Article 11 Notification of Control Actions 1. If an inspection conducted pursuant to Article 9 or 10 indicates a violation of this Convention, the ship shall be notified. A report shall be forwarded to the Administration, including any evidence of the violation. 2. In the event that any action is taken pursuant to Article 9.3, 10.2 or 10.3, the officer carrying out such action shall forthwith inform, in writing, the Administration of the ship concerned, or if this is not possible, the consul or diplomatic representative of the ship concerned, of all the circumstances in which the action was deemed necessary. In addition, the recognized organization responsible for the issue of certificates shall be notified. 3. The port State authority concerned shall, in addition to parties mentioned in paragraph 2, notify the next port of call of all relevant information about the violation, if it is unable to take action as specified in Article 9.3, 10.2 or 10.3 or if the ship has been allowed to proceed to the next port of call. Article 12 Undue Delay to Ships 1. All possible efforts shall be made to avoid a ship being unduly detained or delayed under Article 7.2, 8, 9 or 10. 2. When a ship is unduly detained or delayed under Article 7.2, 8, 9 or 10, it shall be entitled to compensation for any loss or damage suffered. Article 13 Technical Assistance, Co-operation and Regional Co-operation 1. Parties undertake, directly or through the Organization and other international bodies, as appropriate, in respect of the control and management of ships’ Ballast Water and Sediments, to provide support for those Parties which request technical assistance: (a) (b) (c) (d)

to train personnel; to ensure the availability of relevant technology, equipment and facilities; to initiate joint research and development programmes; and to undertake other action aimed at the effective implementation of this Convention and of guidance developed by the Organization related thereto.

2. Parties undertake to co-operate actively, subject to their national laws, regulations and policies, in the transfer of technology in respect of the control and management of ships’ Ballast Water and Sediments.

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3. In order to further the objectives of this Convention, Parties with common interests to protect the environment, human health, property and resources in a given geographical area, in particular, those Parties bordering enclosed and semi-enclosed seas, shall endeavour, taking into account characteristic regional features, to enhance regional co-operation, including through the conclusion of regional agreements consistent with this Convention. Parties shall seek to co-operate with the Parties to regional agreements to develop harmonized procedures. Article 14 Communication of Information 1. Each Party shall report to the Organization and, where appropriate, make available to other Parties the following information: (a) any requirements and procedures relating to Ballast Water Management, including its laws, regulations, and guidelines for implementation of this Convention; (b) the availability and location of any reception facilities for the environmentally safe disposal of Ballast Water and Sediments; and (c) any requirements for information from a ship which is unable to comply with the provisions of this Convention for reasons specified in regulations A-3 and B-4 of the Annex. 2 The Organization shall notify Parties of the receipt of any communications under the present Article and circulate to all Parties any information communicated to it under subparagraphs 1(b) and (c) of this Article. Article 15 Dispute Settlement Parties shall settle any dispute between them concerning the interpretation or application of this Convention by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice. Article 16 Relationship to International Law and Other Agreements Nothing in this Convention shall prejudice the rights and obligations of any State under customary international law as reflected in the United Nations Convention on the Law of the Sea.

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Article 17 Signature, Ratification, Acceptance, Approval and Accession 1. This Convention shall be open for signature by any State at the Headquarters of the Organization from 1 June 2004 to 31 May 2005 and shall thereafter remain open for accession by any State. 2. States may become Parties to the Convention by: (a) signature not subject to ratification, acceptance, or approval; or (b) signature subject to ratification, acceptance, or approval, followed by ratification, acceptance or approval; or (c) accession. 3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General. 4. If a State comprises two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval, or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. 5. Any such declaration shall be notified to the Depositary in writing and shall state expressly the territorial unit or units to which this Convention applies. Article 18 Entry into Force 1. This Convention shall enter into force twelve months after the date on which not less than thirty States, the combined merchant fleets of which constitute not less than thirty-five percent of the gross tonnage of the world’s merchant shipping, have either signed it without reservation as to ratification, acceptance or approval, or have deposited the requisite instrument of ratification, acceptance, approval or accession in accordance with Article 17. 2. For States which have deposited an instrument of ratification, acceptance, approval or accession in respect of this Convention after the requirements for entry into force thereof have been met, but prior to the date of entry in force, the ratification, acceptance, approval or accession shall take effect on the date of entry into force of this Convention or three months after the date of deposit of instrument, whichever is the later date. 3. Any instrument of ratification, acceptance, approval or accession deposited after the date on which this Convention enters into force shall take effect three months after the date of deposit.

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4. After the date on which an amendment to this Convention is deemed to have been accepted under Article 19, any instrument of ratification, acceptance, approval or accession deposited shall apply to this Convention as amended. Article 19 Amendments 1. This Convention may be amended by either of the procedures specified in the following paragraphs. 2. Amendments after consideration within the Organization: (a) Any Party may propose an amendment to this Convention. A proposed amendment shall be submitted to the Secretary-General, who shall then circulate it to the Parties and Members of the Organization at least six months prior to its consideration. (b) An amendment proposed and circulated as above shall be referred to the Committee for consideration. Parties, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Committee for consideration and adoption of the amendment. (c) Amendments shall be adopted by a two-thirds majority of the Parties present and voting in the Committee, on condition that at least one-third of the Parties shall be present at the time of voting. (d) Amendments adopted in accordance with subparagraph (c) shall be communicated by the Secretary-General to the Parties for acceptance. (e) An amendment shall be deemed to have been accepted in the following circumstances: (i) An amendment to an article of this Convention shall be deemed to have been accepted on the date on which two-thirds of the Parties have notified the Secretary-General of their acceptance of it. (ii) An amendment to the Annex shall be deemed to have been accepted at the end of twelve months after the date of adoption or such other date as determined by the Committee. However, if by that date more than one-third of the Parties notify the Secretary-General that they object to the amendment, it shall be deemed not to have been accepted. (f ) An amendment shall enter into force under the following conditions: (i) An amendment to an article of this Convention shall enter into force for those Parties that have declared that they have accepted it six months after the date on which it is deemed to have been accepted in accordance with subparagraph (e)(i).

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(ii) An amendment to the Annex shall enter into force with respect to all Parties six months after the date on which it is deemed to have been accepted, except for any Party that has: (1) Notified its objection to the amendment in accordance with subparagraph (e)(ii) and that has not withdrawn such objection; or (2) Notified the Secretary-General, prior to the entry into force of such amendment, that the amendment shall enter into force for it only after a subsequent notification of its acceptance. (g) (i) A Party that has notified an objection under subparagraph (f )(ii)(1) may subsequently notify the Secretary-General that it accepts the amendment. Such amendment shall enter into force for such Party six months after the date of its notification of acceptance, or the date on which the amendment enters into force, whichever is the later date. (ii) If a Party that has made a notification referred to in subparagraph (f)(ii)(2) notifies the Secretary-General of its acceptance with respect to an amendment, such amendment shall enter into force for such Party six months after the date of its notification of acceptance, or the date on which the amendment enters into force, whichever is the later date. 3. Amendment by a Conference: (a) Upon the request of a Party concurred in by at least one-third of the Parties, the Organization shall convene a Conference of Parties to consider amendments to this Convention. (b) An amendment adopted by such a Conference by a two-thirds majority of the Parties present and voting shall be communicated by the SecretaryGeneral to all Parties for acceptance. (c) Unless the Conference decides otherwise, the amendment shall be deemed to have been accepted and shall enter into force in accordance with the procedures specified in paragraphs 2(e) and (f ) respectively. 4. Any Party that has declined to accept an amendment to the Annex shall be treated as a non-Party only for the purpose of application of that amendment. 5. Any notification under this Article shall be made in writing to the Secretary-General. 6. The Secretary-General shall inform the Parties and Members of the Organization of: (a) any amendment that enters into force and the date of its entry into force generally and for each Party; and (b) any notification made under this Article.

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Article 20 Denunciation 1. This Convention may be denounced by any Party at any time after the expiry of two years from the date on which this Convention enters into force for that Party. 2. Denunciation shall be effected by written notification to the Depositary, to take effect one year after receipt or such longer period as may be specified in that notification. Article 21 Depositary 1. This Convention shall be deposited with the Secretary-General, who shall transmit certified copies of this Convention to all States which have signed this Convention or acceded thereto. 2. In addition to the functions specified elsewhere in this Convention, the Secretary-General shall: (a) inform all States that have signed this Convention, or acceded thereto, of: (i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession, together with the date thereof; (ii) the date of entry into force of this Convention; and (iii) the deposit of any instrument of denunciation from the Convention, together with the date on which it was received and the date on which the denunciation takes effect; and (b) as soon as this Convention enters into force, transmit the text thereof to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations. Article 22 Languages This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic. DONE AT LONDON this thirteenth day of February, two thousand and four. IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments for that purpose, have signed this Convention.

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Regulations for the Control and Management of Ships’ Ballast Water and Sediments Section A - General Provisions Regulation A-1 Definitions For the purposes of this Annex: 1. “Anniversary date” means the day and the month of each year corresponding to the date of expiry of the Certificate. 2. “Ballast Water Capacity” means the total volumetric capacity of any tanks, spaces or compartments on a ship used for carrying, loading or discharging Ballast Water, including any multi-use tank, space or compartment designed to allow carriage of Ballast Water. 3. “Company” means the owner of the ship or any other organization or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility has agreed to take over all the duties and responsibilities imposed by the International Safety Management Code1. 4. “Constructed” in respect of a ship means a stage of construction where: 1. the keel is laid; or 2. construction identifiable with the specific ship begins; 3. assembly of the ship has commenced comprising at least 50 tonnes or 1 percent of the estimated mass of all structural material, whichever is less; or 4. the ship undergoes a major conversion. 5. “Major conversion” means a conversion of a ship: 1. which changes its ballast water carrying capacity by 15 percent or greater, or 2. which changes the ship type, or 3. which, in the opinion of the Administration, is projected to prolong its life by ten years or more, or 4. which results in modifications to its ballast water system other than component replacement-in-kind. Conversion of a ship to meet the provisions of regulation D-1 shall not be deemed to constitute a major conversion for the purpose of this Annex. 1

Refer to the ISM Code adopted by the Organization by resolution A.741(18), as amended.

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6. “From the nearest land” means from the baseline from which the territorial sea of the territory in question is established in accordance with international law except that, for the purposes of the Convention, “from the nearest land” off the north-eastern coast of Australia shall mean from a line drawn from a point on the coast of Australia in latitude 11°00´ S, longitude 142°08´ E to a point in latitude 10°35´ S, longitude 141°55´ E thence to a point latitude 10°00´ S, longitude 142°00´ E thence to a point latitude 9°10´ S, longitude 143°52´ E thence to a point latitude 9°00´ S, longitude 144°30´ E thence to a point latitude 10°41´ S, longitude 145°00´ E thence to a point latitude 13°00´ S, longitude 145°00´ E thence to a point latitude 15°00´ S, longitude 146°00´ E thence to a point latitude 17°30´ S, longitude 147°00´ E thence to a point latitude 21°00´ S, longitude 152°55´ E thence to a point latitude 24°30´ S, longitude 154°00´ E thence to a point on the coast of Australia in latitude 24°42´ S, longitude 153°15´ E. 7. “Active Substance” means a substance or organism, including a virus or a fungus, that has a general or specific action on or against Harmful Aquatic Organisms and Pathogens.

Regulation A-2 General Applicability Except where expressly provided otherwise, the discharge of Ballast Water shall only be conducted through Ballast Water Management in accordance with the provisions of this Annex.

Regulation A-3 Exceptions The requirements of regulation B-3, or any measures adopted by a Party pursuant to Article 2.3 and Section C, shall not apply to: 1. the uptake or discharge of Ballast Water and Sediments necessary for the purpose of ensuring the safety of a ship in emergency situations or saving life at sea; or 2. the accidental discharge or ingress of Ballast Water and Sediments resulting from damage to a ship or its equipment:

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1. provided that all reasonable precautions have been taken before and after the occurrence of the damage or discovery of the damage or discharge for the purpose of preventing or minimizing the discharge; and 2. unless the owner, Company or officer in charge wilfully or recklessly caused damage; or 3. the uptake and discharge of Ballast Water and Sediments when being used for the purpose of avoiding or minimizing pollution incidents from the ship; or 4. the uptake and subsequent discharge on the high seas of the same Ballast Water and Sediments; or 5. the discharge of Ballast Water and Sediments from a ship at the same location where the whole of that Ballast Water and those Sediments originated and provided that no mixing with unmanaged Ballast Water and Sediments from other areas has occurred. If mixing has occurred, the Ballast Water taken from other areas is subject to Ballast Water Management in accordance with this Annex. Regulation A-4 Exemptions 1. A Party or Parties, in waters under their jurisdiction, may grant exemptions to any requirements to apply regulations B-3 or C-1, in addition to those exemptions contained elsewhere in this Convention, but only when they are: 1. granted to a ship or ships on a voyage or voyages between specified ports or locations; or to a ship which operates exclusively between specified ports or locations; 2. effective for a period of no more than five years subject to intermediate review; 3. granted to ships that do not mix Ballast Water or Sediments other than between the ports or locations specified in paragraph 1.1; and 4. granted based on the Guidelines on risk assessment developed by the Organization. 2. Exemptions granted pursuant to paragraph 1 shall not be effective until after communication to the Organization and circulation of relevant information to the Parties. 3. Any exemptions granted under this regulation shall not impair or damage the environment, human health, property or resources of adjacent or other States. Any State that the Party determines may be adversely affected shall be consulted, with a view to resolving any identified concerns. 4. Any exemptions granted under this regulation shall be recorded in the Ballast Water record book.

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Regulation A-5 Equivalent Compliance Equivalent compliance with this Annex for pleasure craft used solely for recreation or competition or craft used primarily for search and rescue, less than 50 metres in length overall, and with a maximum Ballast Water capacity of 8 cubic metres, shall be determined by the Administration taking into account Guidelines developed by the Organization.

Section B – Management and Control Requirements for Ships Regulation B-1 Ballast Water Management Plan Each ship shall have on board and implement a Ballast Water Management plan. Such a plan shall be approved by the Administration taking into account Guidelines developed by the Organization. The Ballast Water Management plan shall be specific to each ship and shall at least: 1. detail safety procedures for the ship and the crew associated with Ballast Water Management as required by this Convention; 2. provide a detailed description of the actions to be taken to implement the Ballast Water Management requirements and supplemental Ballast Water Management practices as set forth in this Convention; 3. detail the procedures for the disposal of Sediments: 1. at sea; and 2. to shore; 4. include the procedures for coordinating shipboard Ballast Water Management that involves discharge to the sea with the authorities of the State into whose waters such discharge will take place; 5. designate the officer on board in charge of ensuring that the plan is properly implemented; 6. contain the reporting requirements for ships provided for under this Convention; and 7. be written in the working language of the ship. If the language used is not English, French or Spanish, a translation into one of these languages shall be included. Regulation B-2 Ballast Water Record Book 1. Each ship shall have on board a Ballast Water record book that may be an electronic record system, or that may be integrated into another record book

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or system and, which shall at least contain the information specified in Appendix II. Ballast Water record book entries shall be maintained on board the ship for a minimum period of two years after the last entry has been made and thereafter in the Company’s control for a minimum period of three years. In the event of the discharge of Ballast Water pursuant to regulations A-3, A4 or B-3.6 or in the event of other accidental or exceptional discharge of Ballast Water not otherwise exempted by this Convention, an entry shall be made in the Ballast Water record book describing the circumstances of, and the reason for, the discharge. The Ballast Water record book shall be kept readily available for inspection at all reasonable times and, in the case of an unmanned ship under tow, may be kept on the towing ship. Each operation concerning Ballast Water shall be fully recorded without delay in the Ballast Water record book. Each entry shall be signed by the officer in charge of the operation concerned and each completed page shall be signed by the master. The entries in the Ballast Water record book shall be in a working language of the ship. If that language is not English, French or Spanish the entries shall contain a translation into one of those languages. When entries in an official national language of the State whose flag the ship is entitled to fly are also used, these shall prevail in case of a dispute or discrepancy. Officers duly authorized by a Party may inspect the Ballast Water record book on board any ship to which this regulation applies while the ship is in its port or offshore terminal, and may make a copy of any entry, and require the master to certify that the copy is a true copy. Any copy so certified shall be admissible in any judicial proceeding as evidence of the facts stated in the entry. The inspection of a Ballast Water record book and the taking of a certified copy shall be performed as expeditiously as possible without causing the ship to be unduly delayed.

Regulation B-3 Ballast Water Management for Ships 1. A ship constructed before 2009: 1. with a Ballast Water Capacity of between 1,500 and 5,000 cubic metres, inclusive, shall conduct Ballast Water Management that at least meets the standard described in regulation D-1 or regulation D-2 until 2014, after which time it shall at least meet the standard described in regulation D-2; 2. with a Ballast Water Capacity of less than 1,500 or greater than 5,000 cubic metres shall conduct Ballast Water Management that at least meets the standard described in regulation D-1 or regulation D-2 until 2016, after which time it shall at least meet the standard described in regulation D-2.

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2. A ship to which paragraph 1 applies shall comply with paragraph 1 not later than the first intermediate or renewal survey, whichever occurs first, after the anniversary date of delivery of the ship in the year of compliance with the standard applicable to the ship. 3. A ship constructed in or after 2009 with a Ballast Water Capacity of less than 5,000 cubic metres shall conduct Ballast Water Management that at least meets the standard described in regulation D-2. 4. A ship constructed in or after 2009, but before 2012, with a Ballast Water Capacity of 5,000 cubic metres or more shall conduct Ballast Water Management in accordance with paragraph 1.2. 5. A ship constructed in or after 2012 with a Ballast Water Capacity of 5000 cubic metres or more shall conduct Ballast Water Management that at least meets the standard described in regulation D-2. 6. The requirements of this regulation do not apply to ships that discharge Ballast Water to a reception facility designed taking into account the Guidelines developed by the Organization for such facilities. 7. Other methods of Ballast Water Management may also be accepted as alternatives to the requirements described in paragraphs 1 to 5, provided that such methods ensure at least the same level of protection to the environment, human health, property or resources, and are approved in principle by the Committee. Regulation B-4 Ballast Water Exchange 1. A ship conducting Ballast Water exchange to meet the standard in regulation D-1 shall: 1. whenever possible, conduct such Ballast Water exchange at least 200 nautical miles from the nearest land and in water at least 200 metres in depth, taking into account the Guidelines developed by the Organization; 2. in cases where the ship is unable to conduct Ballast Water exchange in accordance with paragraph 1.1, such Ballast Water exchange shall be conducted taking into account the Guidelines described in paragraph 1.1 and as far from the nearest land as possible, and in all cases at least 50 nautical miles from the nearest land and in water at least 200 metres in depth. 2. In sea areas where the distance from the nearest land or the depth does not meet the parameters described in paragraph 1.1 or 1.2, the port State may designate areas, in consultation with adjacent or other States, as appropriate, where a ship may conduct Ballast Water exchange, taking into account the Guidelines described in paragraph 1.1. 3. A ship shall not be required to deviate from its intended voyage, or delay the voyage, in order to comply with any particular requirement of paragraph 1.

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4. A ship conducting Ballast Water exchange shall not be required to comply with paragraphs 1 or 2, as appropriate, if the master reasonably decides that such exchange would threaten the safety or stability of the ship, its crew, or its passengers because of adverse weather, ship design or stress, equipment failure, or any other extraordinary condition. 5. When a ship is required to conduct Ballast Water exchange and does not do so in accordance with this regulation, the reasons shall be entered in the Ballast Water record book. Regulation B-5 Sediment Management for Ships 1. All ships shall remove and dispose of Sediments from spaces designated to carry Ballast Water in accordance with the provisions of the ship’s Ballast Water Management plan. 2. Ships described in regulation B-3.3 to B-3.5 should, without compromising safety or operational efficiency, be designed and constructed with a view to minimize the uptake and undesirable entrapment of Sediments, facilitate removal of Sediments, and provide safe access to allow for Sediment removal and sampling, taking into account guidelines developed by the Organization. Ships described in regulation B-3.1 should, to the extent practicable, comply with this paragraph. Regulation B-6 Duties of Officers and Crew Officers and crew shall be familiar with their duties in the implementation of Ballast Water Management particular to the ship on which they serve and shall, appropriate to their duties, be familiar with the ship’s Ballast Water Management plan.

Section C – Special Requirements in Certain Areas Regulation C-1 Additional Measures 1. If a Party, individually or jointly with other Parties, determines that measures in addition to those in Section B are necessary to prevent, reduce, or eliminate the transfer of Harmful Aquatic Organisms and Pathogens through ships’ Ballast Water and Sediments, such Party or Parties may, consistent with international law, require ships to meet a specified standard or requirement. 2. Prior to establishing standards or requirements under paragraph 1, a Party or Parties should consult with adjacent or other States that may be affected by such standards or requirements.

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3. A Party or Parties intending to introduce additional measures in accordance with paragraph 1 shall: 1. Take into account the Guidelines developed by the Organization. 2. Communicate their intention to establish additional measure(s) to the Organization at least 6 months, except in emergency or epidemic situations, prior to the projected date of implementation of the measure(s). Such communication shall include: 1. The precise co-ordinates where additional measure(s) is/are applicable; 2. The need and reasoning for the application of the additional measure(s), including, whenever possible, benefits; 3. A description of the additional measure(s); and 4. Any arrangements that may be provided to facilitate ships’ compliance with the additional measure(s). 3. To the extent required by customary international law as reflected in the United Nations Convention on the Law of the Sea, as appropriate, obtain the approval of the Organization. 4. A Party or Parties, in introducing such additional measures, shall endeavour to make available all appropriate services, which may include but are not limited to notification to mariners of areas, available and alternative routes or ports, as far as practicable, in order to ease the burden on the ship. 5. Any additional measures adopted by a Party or Parties shall not compromise the safety and security of the ship and in any circumstances not conflict with any other convention with which the ship must comply. 6. A Party or Parties introducing additional measures may waive these measures for a period of time or in specific circumstances as they deem fit. Regulation C-2 Warnings Concerning Ballast Water Uptake in Certain Areas and Related Flag State Measures 1. A Party shall endeavour to notify mariners of areas under their jurisdiction where ships should not uptake Ballast Water due to known conditions. The Party shall include in such notices the precise coordinates of the area or areas, and, where possible, the location of any alternative area or areas for the uptake of Ballast Water. Warnings may be issued for areas: 1. known to contain outbreaks, infestations, or populations of Harmful Aquatic Organisms and Pathogens (e.g., toxic algal blooms) which are likely to be of relevance to Ballast Water uptake or discharge; 2. near sewage outfalls; or

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3. where tidal flushing is poor or times during which a tidal stream is known to be more turbid. 2. In addition to notifying mariners of areas in accordance with the provisions of paragraph 1, a Party shall notify the Organization and any potentially affected coastal States of any areas identified in paragraph 1 and the time period such warning is likely to be in effect. The notice to the Organization and any potentially affected coastal States shall include the precise coordinates of the area or areas, and, where possible, the location of any alternative area or areas for the uptake of Ballast Water. The notice shall include advice to ships needing to uptake Ballast Water in the area, describing arrangements made for alternative supplies. The Party shall also notify mariners, the Organization, and any potentially affected coastal States when a given warning is no longer applicable. Regulation C-3 Communication of Information The Organization shall make available, through any appropriate means, information communicated to it under regulations C-1 and C-2.

Section D - Standards for Ballast Water Management Regulation D-1 Ballast Water Exchange Standard 1. Ships performing Ballast Water exchange in accordance with this regulation shall do so with an efficiency of at least 95 percent volumetric exchange of Ballast Water. 2. For ships exchanging Ballast Water by the pumping-through method, pumping through three times the volume of each Ballast Water tank shall be considered to meet the standard described in paragraph 1. Pumping through less than three times the volume may be accepted provided the ship can demonstrate that at least 95 percent volumetric exchange is met. Regulation D-2 Ballast Water Performance Standard 1. Ships conducting Ballast Water Management in accordance with this regulation shall discharge less than 10 viable organisms per cubic metre greater than or equal to 50 micrometres in minimum dimension and less than 10 viable organisms per millilitre less than 50 micrometres in minimum dimension and greater than or equal to 10 micrometres in minimum dimension; and discharge

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of the indicator microbes shall not exceed the specified concentrations described in paragraph 2. 2. Indicator microbes, as a human health standard, shall include: 1. Toxicogenic Vibrio cholerae (O1 and O139) with less than 1 colony forming unit (cfu) per 100 millilitres or less than 1 cfu per 1 gram (wet weight) zooplankton samples ; 2. Escherichia coli less than 250 cfu per 100 millilitres; 3. Intestinal Enterococci less than 100 cfu per 100 milliliters. Regulation D-3 Approval Requirements for Ballast Water Management Systems 1. Except as specified in paragraph 2, Ballast Water Management systems used to comply with this Convention must be approved by the Administration taking into account Guidelines developed by the Organization. 2. Ballast Water Management systems which make use of Active Substances or preparations containing one or more Active Substances to comply with this Convention shall be approved by the Organization, based on a procedure developed by the Organization. This procedure shall describe the approval and withdrawal of approval of Active Substances and their proposed manner of application. At withdrawal of approval, the use of the relevant Active Substance or Substances shall be prohibited within 1 year after the date of such withdrawal. 3. Ballast Water Management systems used to comply with this Convention must be safe in terms of the ship, its equipment and the crew. Regulation D-4 Prototype Ballast Water Treatment Technologies 1. For any ship that, prior to the date that the standard in regulation D-2 would otherwise become effective for it, participates in a programme approved by the Administration to test and evaluate promising Ballast Water treatment technologies, the standard in regulation D-2 shall not apply to that ship until five years from the date on which the ship would otherwise be required to comply with such standard. 2. For any ship that, after the date on which the standard in regulation D-2 has become effective for it, participates in a programme approved by the Administration, taking into account Guidelines developed by the Organization, to test and evaluate promising Ballast Water technologies with the potential to result in treatment technologies achieving a standard higher than that in

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regulation D-2, the standard in regulation D-2 shall cease to apply to that ship for five years from the date of installation of such technology. 3. In establishing and carrying out any programme to test and evaluate promising Ballast Water technologies, Parties shall: 1. take into account Guidelines developed by the Organization, and 2. allow participation only by the minimum number of ships necessary to effectively test such technologies. 4. Throughout the test and evaluation period, the treatment system must be operated consistently and as designed. Regulation D-5 Review of Standards by the Organization 1. At a meeting of the Committee held no later than three years before the earliest effective date of the standard set forth in regulation D-2, the Committee shall undertake a review which includes a determination of whether appropriate technologies are available to achieve the standard, an assessment of the criteria in paragraph 2, and an assessment of the socio-economic effect(s) specifically in relation to the developmental needs of developing countries, particularly small island developing States. The Committee shall also undertake periodic reviews, as appropriate, to examine the applicable requirements for ships described in regulation B-3.1 as well as any other aspect of Ballast Water Management addressed in this Annex, including any Guidelines developed by the Organization. 2. Such reviews of appropriate technologies shall also take into account: 1. safety considerations relating to the ship and the crew; 2. environmental acceptability, i.e., not causing more or greater environmental impacts than they solve; 3. practicability, i.e., compatibility with ship design and operations; 4. cost effectiveness, i.e., economics; and 5. biological effectiveness in terms of removing, or otherwise rendering not viable, Harmful Aquatic Organisms and Pathogens in Ballast Water. 3. The Committee may form a group or groups to conduct the review(s) described in paragraph 1. The Committee shall determine the composition, terms of reference and specific issues to be addressed by any such group formed. Such groups may develop and recommend proposals for amendment of this Annex for consideration by the Parties. Only Parties may participate in the formulation of recommendations and amendment decisions taken by the Committee.

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4. If, based on the reviews described in this regulation, the Parties decide to adopt amendments to this Annex, such amendments shall be adopted and enter into force in accordance with the procedures contained in Article 19 of this Convention.

Section E - Survey and Certification Requirements for Ballast Water Management Regulation E-1 Surveys 1. Ships of 400 gross tonnage and above to which this Convention applies, excluding floating platforms, FSUs and FPSOs, shall be subject to surveys specified below: 1. An initial survey before the ship is put in service or before the Certificate required under regulation E-2 or E-3 is issued for the first time. This survey shall verify that the Ballast Water Management plan required by regulation B-1 and any associated structure, equipment, systems, fitting, arrangements and material or processes comply fully with the requirements of this Convention. 2. A renewal survey at intervals specified by the Administration, but not exceeding five years, except where regulation E-5.2, E-5.5, E-5.6, or E-5.7 is applicable. This survey shall verify that the Ballast Water Management plan required by regulation B-1 and any associated structure, equipment, systems, fitting, arrangements and material or processes comply fully with the applicable requirements of this Convention. 3. An intermediate survey within three months before or after the second Anniversary date or within three months before or after the third Anniversary date of the Certificate, which shall take the place of one of the annual surveys specified in paragraph 1.4. The intermediate surveys shall ensure that the equipment, associated systems and processes for Ballast Water Management fully comply with the applicable requirements of this Annex and are in good working order. Such intermediate surveys shall be endorsed on the Certificate issued under regulation E-2 or E-3. 4. An annual survey within three months before or after each Anniversary date, including a general inspection of the structure, any equipment, systems, fittings, arrangements and material or processes associated with the Ballast Water Management plan required by regulation B-1 to ensure that they have been maintained in accordance with paragraph 9 and remain satisfactory for the service for which the ship is intended. Such annual surveys shall be endorsed on the Certificate issued under regulation E-2 or E-3.

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5. An additional survey either general or partial, according to the circumstances, shall be made after a change, replacement, or significant repair of the structure, equipment, systems, fittings, arrangements and material necessary to achieve full compliance with this Convention. The survey shall be such as to ensure that any such change, replacement, or significant repair has been effectively made, so that the ship complies with the requirements of this Convention. Such surveys shall be endorsed on the Certificate issued under regulation E-2 or E-3. 2. The Administration shall establish appropriate measures for ships that are not subject to the provisions of paragraph 1 in order to ensure that the applicable provisions of this Convention are complied with. 3. Surveys of ships for the purpose of enforcement of the provisions of this Convention shall be carried out by officers of the Administration. The Administration may, however, entrust the surveys either to surveyors nominated for the purpose or to organizations recognized by it. 4. An Administration nominating surveyors or recognizing organizations to conduct surveys, as described in paragraph 3 shall, as a minimum, empower such nominated surveyors or recognized organizations2 to: 1. require a ship that they survey to comply with the provisions of this Convention; and 2. carry out surveys and inspections if requested by the appropriate authorities of a port State that is a Party. 5. The Administration shall notify the Organization of the specific responsibilities and conditions of the authority delegated to the nominated surveyors or recognized organizations, for circulation to Parties for the information of their officers. 6. When the Administration, a nominated surveyor, or a recognized organization determines that the ship’s Ballast Water Management does not conform to the particulars of the Certificate required under regulation E-2 or E-3 or is such that the ship is not fit to proceed to sea without presenting a threat of harm to the environment, human health, property or resources such surveyor or organization shall immediately ensure that corrective action is taken to bring the ship into compliance. A surveyor or organization shall be notified immediately, and it shall ensure that the Certificate is not issued or is withdrawn as appropriate. If the ship is in the port of another Party, the appropriate authorities of the port State shall be notified immediately. When an officer 2

Refer to the guidelines adopted by the Organization by resolution A.739(18), as may be amended by the Organization, and the specifications adopted by the Organization by resolution A.789(19), as may be amended by the Organization.

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of the Administration, a nominated surveyor, or a recognized organization has notified the appropriate authorities of the port State, the Government of the port State concerned shall give such officer, surveyor or organization any necessary assistance to carry out their obligations under this regulation, including any action described in Article 9. Whenever an accident occurs to a ship or a defect is discovered which substantially affects the ability of the ship to conduct Ballast Water Management in accordance with this Convention, the owner, operator or other person in charge of the ship shall report at the earliest opportunity to the Administration, the recognized organization or the nominated surveyor responsible for issuing the relevant Certificate, who shall cause investigations to be initiated to determine whether a survey as required by paragraph 1 is necessary. If the ship is in a port of another Party, the owner, operator or other person in charge shall also report immediately to the appropriate authorities of the port State and the nominated surveyor or recognized organization shall ascertain that such report has been made. In every case, the Administration concerned shall fully guarantee the completeness and efficiency of the survey and shall undertake to ensure the necessary arrangements to satisfy this obligation. The condition of the ship and its equipment, systems and processes shall be maintained to conform with the provisions of this Convention to ensure that the ship in all respects will remain fit to proceed to sea without presenting a threat of harm to the environment, human health, property or resources. After any survey of the ship under paragraph 1 has been completed, no change shall be made in the structure, any equipment, fittings, arrangements or material associated with the Ballast Water Management plan required by regulation B-1 and covered by the survey without the sanction of the Administration, except the direct replacement of such equipment or fittings.

Regulation E-2 Issuance or Endorsement of a Certificate 1. The Administration shall ensure that a ship to which regulation E-1 applies is issued a Certificate after successful completion of a survey conducted in accordance with regulation E-1. A Certificate issued under the authority of a Party shall be accepted by the other Parties and regarded for all purposes covered by this Convention as having the same validity as a Certificate issued by them. 2. Certificates shall be issued or endorsed either by the Administration or by any person or organization duly authorized by it. In every case, the Administration assumes full responsibility for the Certificate.

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Regulation E-3 Issuance or Endorsement of a Certificate by Another Party 1. At the request of the Administration, another Party may cause a ship to be surveyed and, if satisfied that the provisions of this Convention are complied with, shall issue or authorize the issuance of a Certificate to the ship, and where appropriate, endorse or authorize the endorsement of that Certificate on the ship, in accordance with this Annex. 2. A copy of the Certificate and a copy of the survey report shall be transmitted as soon as possible to the requesting Administration. 3. A Certificate so issued shall contain a statement to the effect that it has been issued at the request of the Administration and it shall have the same force and receive the same recognition as a Certificate issued by the Administration. 4. No Certificate shall be issued to a ship entitled to fly the flag of a State which is not a Party. Regulation E-4 Form of the Certificate The Certificate shall be drawn up in the official language of the issuing Party, in the form set forth in Appendix I. If the language used is neither English, French nor Spanish, the text shall include a translation into one of these languages. Regulation E-5 Duration and Validity of the Certificate 1. A Certificate shall be issued for a period specified by the Administration that shall not exceed five years. 2. For renewal surveys: 1. Notwithstanding the requirements of paragraph 1, when the renewal survey is completed within three months before the expiry date of the existing Certificate, the new Certificate shall be valid from the date of completion of the renewal survey to a date not exceeding five years from the date of expiry of the existing Certificate. 2. When the renewal survey is completed after the expiry date of the existing Certificate, the new Certificate shall be valid from the date of completion of the renewal survey to a date not exceeding five years from the date of expiry of the existing Certificate. 3. When the renewal survey is completed more than three months before the expiry date of the existing Certificate, the new Certificate shall be valid from the date of completion of the renewal survey to a date not exceeding five years from the date of completion of the renewal survey.

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3. If a Certificate is issued for a period of less than five years, the Administration may extend the validity of the Certificate beyond the expiry date to the maximum period specified in paragraph 1, provided that the surveys referred to in regulation E-1.1.3 applicable when a Certificate is issued for a period of five years are carried out as appropriate. 4. If a renewal survey has been completed and a new Certificate cannot be issued or placed on board the ship before the expiry date of the existing Certificate, the person or organization authorized by the Administration may endorse the existing Certificate and such a Certificate shall be accepted as valid for a further period which shall not exceed five months from the expiry date. 5. If a ship at the time when the Certificate expires is not in a port in which it is to be surveyed, the Administration may extend the period of validity of the Certificate but this extension shall be granted only for the purpose of allowing the ship to complete its voyage to the port in which it is to be surveyed, and then only in cases where it appears proper and reasonable to do so. No Certificate shall be extended for a period longer than three months, and a ship to which such extension is granted shall not, on its arrival in the port in which it is to be surveyed, be entitled by virtue of such extension to leave that port without having a new Certificate. When the renewal survey is completed, the new Certificate shall be valid to a date not exceeding five years from the date of expiry of the existing Certificate before the extension was granted. 6. A Certificate issued to a ship engaged on short voyages which has not been extended under the foregoing provisions of this regulation may be extended by the Administration for a period of grace of up to one month from the date of expiry stated on it. When the renewal survey is completed, the new Certificate shall be valid to a date not exceeding five years from the date of expiry of the existing Certificate before the extension was granted. 7. In special circumstances, as determined by the Administration, a new Certificate need not be dated from the date of expiry of the existing Certificate as required by paragraph 2.2, 5 or 6 of this regulation. In these special circumstances, the new Certificate shall be valid to a date not exceeding five years from the date of completion of the renewal survey. 8. If an annual survey is completed before the period specified in regulation E-1, then: 1. the Anniversary date shown on the Certificate shall be amended by endorsement to a date which shall not be more than three months later than the date on which the survey was completed; 2. the subsequent annual or intermediate survey required by regulation E-1 shall be completed at the intervals prescribed by that regulation using the new Anniversary date;

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3. the expiry date may remain unchanged provided one or more annual surveys, as appropriate, are carried out so that the maximum intervals between the surveys prescribed by regulation E-1 are not exceeded. 9. A Certificate issued under regulation E-2 or E-3 shall cease to be valid in any of the following cases: 1. if the structure, equipment, systems, fittings, arrangements and material necessary to comply fully with this Convention is changed, replaced or significantly repaired and the Certificate is not endorsed in accordance with this Annex; 2. upon transfer of the ship to the flag of another State. A new Certificate shall only be issued when the Party issuing the new Certificate is fully satisfied that the ship is in compliance with the requirements of regulation E-1. In the case of a transfer between Parties, if requested within three months after the transfer has taken place, the Party whose flag the ship was formerly entitled to fly shall, as soon as possible, transmit to the Administration copies of the Certificates carried by the ship before the transfer and, if available, copies of the relevant survey reports; 3. if the relevant surveys are not completed within the periods specified under regulation E-1.1; or 4. if the Certificate is not endorsed in accordance with regulation E-1.1.

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Appendix I Form of International Ballast Water Management Certificate International Ballast Water Management Certificate Issued under the provisions of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (hereinafter referred to as “the Convention”) under the authority of the Government of ............................................................................................................ (full designation of the country) by ........................................................................................................ (full designation of the competent person or organization authorized under the provisions of the Convention) Particulars of ship1 Name of ship .................................................................................. Distinctive number or letters ........................................................ Port of registry ................................................................................ Gross Tonnage ................................................................................ IMO number2 ................................................................................ Date of Construction ...................................................................... Ballast Water Capacity (in cubic metres) ......................................... Details of Ballast Water Management Method(s) Used ............................ Method of Ballast Water Management used .................................... Date installed (if applicable) ........................................................... Name of manufacturer (if applicable) ............................................. The principal Ballast Water Management method(s) employed on this ship is/are: ❑ in accordance with regulation D-1 ❑ in accordance with regulation D-2 (describe) ............................................................................................. ❑ the ship is subject to regulation D-4

1 2

Alternatively, the particulars of the ship may be placed horizontally in boxes. IMO Ship Identification Number Scheme adopted by the Organization by resolution A.600(15).

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THIS IS TO CERTIFY: 1. That the ship has been surveyed in accordance with regulation E-1 of the Annex to the Convention; and 2. That the survey shows that Ballast Water Management on the ship complies with the Annex to the Convention. This certificate is valid until ............................. subject to surveys in accordance with regulation E-1 of the Annex to the Convention. Completion date of the survey on which this certificate is based: dd/mm/yyyy Issued at (Place of issue of certificate) .............................. (Date of issue)

Signature of authorized official issuing the certificate

(Seal or stamp of the authority, as appropriate)

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Endorsement for Annual and Intermediate Survey(S) THIS IS TO CERTIFY that a survey required by regulation E-1 of the Annex to the Convention the ship was found to comply with the relevant provisions of the Convention: Annual survey:

Signed ........................... (Signature of duly authorized official) Place......................... Date ......................... (Seal or stamp of the authority, as appropriate)

Annual*/Intermediate survey*:

Signed ........................... (Signature of duly authorized official) Place......................... Date ......................... (Seal or stamp of the authority, as appropriate)

Annual*/Intermediate survey*:

Signed .......................... (Signature of duly authorized official) Place .......................... Date............................ (Seal or stamp of the authority, as appropriate)

Annual survey:

Signed .......................... (Signature of duly authorized official) Place .............................. Date ............................... (Seal or stamp of the authority, as appropriate)

*Delete as appropriate.

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Annual/Intermediate Survey In Accordance With Regulation E-5.8.3 THIS IS TO CERTIFY that, at an annual/intermediate* survey in accordance with regulation E-5.8.3 of the Annex to the Convention, the ship was found to comply with the relevant provisions of the Convention: Signed ............................ (Signature of authorized official) Place ............................ Date ............................ (Seal or stamp of the authority, as appropriate)

Endorsement to Extend the Certificate if Valid For Less than 5 Years Where Regulation E-5.3 Applies The ship complies with the relevant provisions of the Convention, and this Certificate shall, in accordance with regulation E-5.3 of the Annex to the Convention, be accepted as valid until ............................................................... Signed ............................ (Signature of authorized official) Place ............................ Date ............................ (Seal or stamp of the authority, as appropriate)

* Delete as appropriate

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Endorsement Where the Renewal Survey has Been Completed and Regulation E-5.4 Applies The ship complies with the relevant provisions of the Convention and this Certificate shall, in accordance with regulation E-5.4 of the Annex to the Convention, be accepted as valid until ................................ Signed ............................ (Signature of authorized official) Place ............................ Date ............................ (Seal or stamp of the authority, as appropriate)

Endorsement to Extend the Validity of the Certificate Until Reaching the Port of Survey or for a Periodof GraceWhere Regulation E-5.5 or E-5.6 Applies This Certificate shall, in accordance with regulation E-5.5 or E-5.6* of the Annex to the Convention, be accepted as valid until ................................ Signed ................................ (Signature of authorized official) Place ................................ Date................................. (Seal or stamp of the authority, as appropriate)

*Delete as appropriate

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Endorsement for Advancement of Anniversary Date Where Regulation E-5.8 Applies In accordance with regulation E-5.8 of the Annex to the Convention the new Anniversary date is ................................ Signed ................................ (Signature of authorized official) Place ................................ Date ................................ (Seal or stamp of the authority, as appropriate) In accordance with regulation E-5.8 of the Annex to the Convention the new Anniversary date is ................................. Signed ............................... (Signature of duly authorized official) Place ................................ Date ................................ (Seal or stamp of the authority, as appropriate)

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Appendix II Form of Ballast Water Record Book International Convention for the Control and Management of Ships’ Ballast Water and Sediments Period From: ....................... To: .................... Name of Ship ................................................................. IMO number ................................................................. Gross tonnage ................................................................ Flag ................................................................................ Total Ballast Water capacity (in cubic metres) ................. The ship is provided with a Ballast Water Management plan Diagram of ship indicating ballast tanks:

❑

1. Introduction In accordance with regulation B-2 of the Annex to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, a record is to be kept of each Ballast Water operation. This includes discharges at sea and to reception facilities.

2. Ballast Water and Ballast Water Management “Ballast Water” means water with its suspended matter taken on board a ship to control trim, list, draught, stability, or stresses of a ship. Management of Ballast Water shall be in accordance with an approved Ballast Water Management plan and taking into account Guidelines3 developed by the Organization.

3. Entries in the Ballast Water Record Book Entries in the Ballast Water record book shall be made on each of the following occasions:

3

Refer to the Guidelines for the control and management of ships’ ballast water to minimize the transfer of harmful aquatic organisms and pathogens adopted by the Organization by resolution A.868(20).

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3.1 When Ballast Water is taken on board: 1. Date, time and location port or facility of uptake (port or lat/long), depth if outside port 2. Estimated volume of uptake in cubic metres 3. Signature of the officer in charge of the operation. 3.2 Whenever Ballast Water is circulated or treated for Ballast Water Management purposes: 1. Date and time of operation 2. Estimated volume circulated or treated (in cubic metres) 3. Whether conducted in accordance with the Ballast Water Management plan 4. Signature of the officer in charge of the operation 3.3 When Ballast Water is discharged into the sea: 1. Date, time and location port or facility of discharge (port or lat/long) 2. Estimated volume discharged in cubic metres plus remaining volume in cubic metres 3. Whether approved Ballast Water Management plan had been implemented prior to discharge 4. Signature of the officer in charge of the operation. 3.4 When Ballast Water is discharged to a reception facility: 1. 2. 3. 4. 5.

Date, time, and location of uptake Date, time, and location of discharge Port or facility Estimated volume discharged or taken up, in cubic metres Whether approved Ballast Water Management plan had been implemented prior to discharge 6. Signature of officer in charge of the operation 3.5 Accidental or other exceptional uptake or discharges of Ballast Water: 1. 2. 3. 4.

Date and time of occurrence Port or position of the ship at time of occurrence Estimated volume of Ballast Water discharged Circumstances of uptake, discharge, escape or loss, the reason therefore and general remarks. 5. Whether approved Ballast Water Management plan had been implemented prior to discharge 6. Signature of officer in charge of the operation 3.6 Additional operational procedure and general remarks

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4. Volume of Ballast Water The volume of Ballast Water onboard should be estimated in cubic metres. The Ballast Water record book contains many references to estimated volume of Ballast Water. It is recognized that the accuracy of estimating volumes of ballast is left to interpretation.

Record of Ballast Water Operations Sample Ballast Water Record Book Page Name of Ship: ..................................................... Distinctive number or letters ............................... Date

Item (number)

Record of operations/signature of officers in charge

Signature of master ..........................................

Annex II Resolution MEPC.152(55) Adopted on 13 October 2006 Guidelines for Sediment Reception Facilities (G1) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting further that Article 5 of the Ballast Water Management Convention provides that, each Party undertakes to ensure that, in ports and terminals designated by that Party where cleaning or repair of ballast tanks occurs, adequate facilities are provided for the reception of sediments, taking into account the Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop these Guidelines as a matter of urgency. Having Considered, at its fifty-fifth session, the draft Guidelines for sediment reception facilities (G1) developed by the Ballast Water Working Group, and the recommendation made by the Sub-Committee on Flag State Implementation at its fourteenth session. Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 227–366 © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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1. ADOPTS the Guidelines for sediment reception facilities (G1) as set out in the Annex to this resolution; 2. INVITES Governments to apply these Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep these Guidelines under review.

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Guidelines for Sediment Reception Facilities (G1) 1.

Introduction

Purpose 1.1. The purpose of these guidelines is to provide guidance for the provision of facilities for the reception of sediments that are provided in accordance with Article 5 of the Convention. The guidance is also intended to encourage a worldwide uniform interface between such facilities and the ships without prescribing dedicated shoreside reception plants. Application 1.2. These guidelines apply to sediment reception facilities referred to in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Convention), Article 5 and Regulation B-5. 1.3. These guidelines do not apply to sediment from tanks other than ballast water tanks. 1.4. It is recognized that some countries, areas or ports have requirements or regulations relating to the disposal of waste materials including waste material from ships which may include sediment from ships ballast water tanks. These guidelines are not intended in any way to replace or adversely impact any local or national requirements or regulations concerning the disposal and/or treatment of sediment from ships ballast water tanks.

2.

Definitions

2.1. For the purposes of these guidelines, the definitions in the Convention apply and: 1. “Ballast Water Tank” means any tank, hold or space used for the carriage of ballast water as defined in Article 1 of the Convention.

3.

General Requirements for Reception Facilities

3.1. Article 5 of the Convention requires that: “reception facilities shall operate without causing undue delay to ships and shall provide for the safe disposal of such sediments that does not impair or damage their environment, human health, property or resources or those of other States.”

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3.2. A facility should provide the resources to enable, as far as practicable, their use by all ships wishing to discharge sediment from ballast water tanks. 3.3. Each Party shall report to the Organization and, where appropriate, make available to other Parties, information on the availability and location of any reception facilities for the environmentally safe disposal of sediments.

4.

Provision of Sediment Reception Facilities

4.1. When considering the requirements of these facilities many factors will have to be taken into account, these should include but not be limited to: 1. regional, national and local legislation which will affect the facility and related to the items below; 2. site selection; 3. collection, handling and transport of sediment; 4. sampling, testing and analysis of sediment; 5. storage of sediment and storage conditions; 6. estimated required capacity (volume/weight) including moisture content of the sediment the facility will handle; 7. environmental benefits and costs; 8. proximity of available sites to local ballast tank cleaning and repair facilities; 9. effect on the environment in construction and operation of the facility; 10. training of facility staff; 11. equipment required to off load sediment from ships, such as cranes; 12. human health; 13. safety; 14. maintenance; 15. operational limitations; and 16. waterway access, approaches and traffic management.

5. Treatment, Handling and Disposal of Received Sediment 5.1. Disposal, handling and treatment measures applied to the sediment shall avoid unwanted side effects that may create a risk to or damage to the Party’s environment, human health, property or resources or those of other States. 5.2. Personnel involved in the handling of sediment should be aware of the possible risk to human health associated with sediment from ships ballast water tanks. Personnel should be adequately trained and be provided with suitable personal protective clothing and equipment.

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Capabilities of a Reception Facility

6.1. Reception facilities should be designed, taking into account the ship types that may be anticipated to use them and consideration should be given to the requirements for ballast tank cleaning that may take place and of repair facilities in the area(s) the reception facility serves. 6.2. Details of the capabilities and any capacity limitations of reception process (facilities and equipments) should be made available to ships wishing to use the facility. The details made available to ships should include but not be limited to: 1. 2. 3. 4. 5. 6. 7. 8. 9.

maximum capacity (volume or weight) of sediment; maximum volume or weight that can be handled at any one time; packaging and labelling requirements; hours of operation; ports, berths, areas where access to the facility is available; ship-to-shore transfer details; if ship or shore crew are required for the transfer; contact details for the facility; how to request use of the facility including any notice period and what information is required from the ship; 10. all applicable fees; and 11. other relevant information.

7. Training 7.1. Personnel in charge of and those employed in the provision of a sediment reception facility including the treatment and disposal of sediment, should have received adequate instruction. Frequent training should include but not be limited to: 1. the purpose and principles of the Convention; 2. the risks to the environment and human health; 3. risk associated with the handling of sediment including both general safety and human health risks; 4. safety; 5. adequate knowledge of the equipment involved; 6. a sufficient understanding of ships using the facility, and any operational constraints; 7. the ship/port communication interface; and 8. an understanding of local disposal controls. 7.2. The training should be organized by the manager or the operator of the reception facility and delivered by suitably qualified professionals.

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Resolution MEPC.123(53) Adopted on 22 July 2005 Guidelines for Ballast Water Management Equivalent Compliance (G3) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation A-5 of the Annex to the Ballast Water Management Convention provides that equivalent compliance with its provisions for pleasure craft used solely for recreation or competition or craft used primarily for search and rescue, less than 50 metres in length overall, and with a maximum Ballast Water capacity of 8 cubic metres, shall be determined by the Administration taking into account Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invites the Organization to develop these Guidelines as a matter of urgency. Having Considered the draft Guidelines for ballast water management equivalent compliance developed by the Ballast Water Working Group and the recommendation made by the Sub-Committee on Bulk Liquids and Gases at its ninth session. 1. ADOPTS the Guidelines for ballast water management equivalent compliance, as set out in the annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines for Ballast Water Management Equivalent Compliance (G3) 1. Administrations shall take these Guidelines into account in determining whether ships satisfy the requirements of Regulation A-5, Equivalent compliance of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004. Ships subject to these Guidelines should, insofar as practicable, comply with the Convention, and if that is not practicable, shall achieve equivalent compliance in accordance with Regulation A-5 and these Guidelines. Definitions 2. For the purpose of these Guidelines the definitions in the Convention apply. Application 3. These Guidelines apply to pleasure craft used solely for recreation or competition or craft used primarily for search and rescue less than 50 metres in overall length and with a maximum ballast water capacity of eight cubic metres. Overall length means the length of the hull excluding bowsprits, booms, bumpkins, pulpits, etc. Exceptions 4. These Guidelines do not apply to the uptake or discharge of ballast water and sediments: 1. necessary for the purpose of ensuring the safety of a ship in emergency situations or saving life at sea; 2. when being used for the purpose of avoiding or minimizing pollution incidents from the ship; and 3. on the high seas of the same ballast water and sediments. 5.

In addition, these Guidelines do not apply to: 1. the accidental discharge or ingress of ballast water and sediments resulting from damage to a ship or its equipment provided that all reasonable precautions have been taken before and after the occurrence of the damage or discovery of the damage or discharge for the purpose of preventing or minimizing the discharge and the owner or the person in charge did not wilfully cause such damage;

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2. the discharge of ballast water and sediments from a ship at the same location where the whole of that ballast water and those sediments originated provided that no mixing with unmanaged ballast water from other areas has occurred. In the context of these Guidelines, “same location” shall be taken to mean the same harbour, mooring or anchorage; and 3. the discharge of ballast water and sediments if the master reasonably decides that compliance with these Guidelines would threaten the safety or stability of the ship, its crew, or its passengers because of adverse weather, ship design or stress, equipment failure, or any other extraordinary condition. Precautionary practices to minimize the uptake or transfer of harmful aquatic organisms and pathogens Uptake of ballast water 6. Wherever possible, ballast water should be taken up outside of port waters and as far from the coast as practicable. In addition, consideration should be given to the use of dockside water supplies (e.g. water not taken directly from the harbour; such as fresh water, potable water, etc.) as the source for ballast water. 7. When loading ballast water, every effort should be made to avoid the uptake of potentially harmful aquatic organisms, pathogens and sediments that may contain such organisms. The uptake of ballast water should be minimized or, where practicable, avoided in areas and situations such as: 1. in areas identified by the port State in connection with warnings provided by ports concerning ballast uptake and any other port contingency arrangements in the event of emergency situations; 2. in darkness when organisms may rise up in the water column; 3. in very shallow water; 4. where propellers may stir up sediment; 5. areas with current large phytoplankton blooms (algal blooms, such as red tides); 6. nearby sewage outfalls; 7. where a tidal stream is known to be more turbid; 8. where tidal flushing is known to be poor; or 9. in areas close to aquaculture. 8. If it is necessary to take on and discharge ballast water in the same location, care should be taken to avoid unnecessary discharge of ballast water that has been taken up in another location.

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Discharge of ballast water 9. To prevent, minimize and ultimately eliminate the transfer of harmful aquatic organisms and pathogens to the maximum extent practicable taking into account the nature of the ship Ballast Water should either be exchanged prior to discharge in accordance with Regulation B-4 or otherwise managed in accordance with the requirements of the Administration. Any chemical treatment shall only use Active Substances approved by the Organization pursuant to Regulation D-3 of the Convention. Sediment control 10. Where practicable, routine cleaning of the ballast tank to remove sediments should be carried out under controlled arrangements, and suitable arrangements made for the environmentally sound disposal of any resulting sediments. Compliance with other guidelines 11. Nothing in these Guidelines shall prevent a ship to which these Guidelines apply from using any method of Ballast Water Management approved under any other Guidelines issued by the Organization. If suitable new and emergent treatments and technologies prove viable, these should be evaluated with a view to be incorporated, as appropriate, into these Guidelines.

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Resolution MEPC.127(53) Adopted on 22 July 2005 Guidelines for Ballast Water Management and Development of Ballast Water Management Plans (G4) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation B-1 of the Annex to the Ballast Water Management Convention provides that each ship shall have on board and implement a ballast water management plan approved by the Administration, taking into account Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invites the Organization to develop these Guidelines as a matter of urgency. Having Considered the draft Guidelines for ballast water management and development of ballast water management plans developed by the Ballast Water Working Group and the recommendation made by the Sub-Committee on Bulk Liquids and Gases at its ninth session. 1. ADOPTS the Guidelines for ballast water management and development of ballast water management plans, as set out in the Annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Draft Guidelines for Ballast Water Management and The Development of Ballast Water Management Plans (G4) 1.

Introduction

1.1. Ballast water is essential to control trim, list, draught, stability, or stresses of the ship. However, ballast water may contain aquatic organisms or pathogens which, if introduced into the sea including estuaries, or into fresh water courses, may create hazards to the environment, human health, property or resources, impair biological diversity or interfere with other legitimate uses of such areas. 1.2. The selection of appropriate methods of ballast water management should take into account the need ensure that Ballast Water Management practices used to comply with this Convention do not cause greater harm than they prevent to the environment, human health, property or resources of any States and the safety of ships. 1.3. The objectives of these Guidelines are to assist Governments, appropriate authorities, ships masters, operators and owners, and port authorities, as well as other interested parties, in preventing, minimizing and ultimately eliminating the risk of introducing harmful aquatic organisms and pathogens from ships’ ballast water and associated sediments while protecting ships’ safety in applying the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (hereinafter referred to as the “Convention”). 1.4. These guidelines consist of two parts: Part A – “Guidelines for Ballast Water Management”, which contains guidance on the general principles of Ballast Water Management; and Part B – “Guidelines for the development of Ballast Water Management Plans”, which contains guidance on the structure and content of Ballast Water Management Plans required by Regulation B-1 of the Convention.

2.

Definitions

2.1. For the purposes of these Guidelines, the definitions in the Convention apply. 2.2. Ballast Water Tank means any tank, hold, or space used for the carriage of ballast water.

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Application

3.1. The Guidelines apply to all ships and to Flag Administrations, port States, coastal States, ship owners, ship operators, ships’ personnel involved in Ballast Water Management, ship designers, ship builders, classification societies as well as other interested parties.

PART A – Guidelines for Ballast Water Management 1.

Ship Operational Procedures

1.1. Precautionary practices Avoiding unnecessary discharge of ballast water 1.1.1. If it is necessary to take on and discharge ballast water in the same port to facilitate safe cargo operations, care should be taken to avoid unnecessary discharge of ballast water that has been taken up in another port. 1.1.2. Managed ballast water which is mixed with unmanaged ballast water is no longer in compliance is no longer in compliance with Regulations D-1 and D-2 of the Annex to the Convention. Minimizing the uptake of harmful aquatic organisms, pathogens and sediments 1.1.3. When loading ballast, every effort should be made to avoid the uptake of potentially harmful aquatic organisms, pathogens, and sediment that may contain such organisms. The uptake of ballast water should be minimized or, where practicable, avoided in areas and situations such as: 1. in areas identified by the port State in connection with advice provided by ports under paragraph 2.2.2; 2. in darkness when organisms may rise up in the water column; 3. in very shallow water; 4. where propellers may stir up sediment; or 5. where dredging is or recently has been carried out. 1.2.

Ballast water management options

1.2.1. Ballast Water Exchange 1.2.1.1. Ballast water exchange is to be conducted in accordance with Regulation B-4 of the Convention and in accordance with the Guidelines for Ballast Water Exchange. 1.2.1.2. The voyage should be planned taking into account when ballast water exchange in accordance with Regulation B–4 of the Convention can be carried out.

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1.2.1.3. Because of the possibility that partially exchange may encourage regrowth of organisms, ballast water exchange should only be commenced in any tank if there is sufficient time to complete the exchange to comply with the standard in Regulation D-1 and the ship can comply with the distance from land and minimum water depth criteria in Regulation B-4. As many complete tanks should be exchanged to the standard in Regulation D-1 as the time allows, if for any tank the standard in Regulation D-1 can not be fully met the exchange should not be commenced for that tank. 1.2.1.4. If ballast water exchange is not undertaken for the reasons in Regulation B-4.4, i.e. if the master reasonably decides that such exchange would threaten the safety or stability of the ship, its crew, or its passengers because of adverse weather, ship design or stress, equipment failure, or any other extraordinary condition, then details of the reasons ballast water exchange was not undertaken are to be recorded in the Ballast Water Record Book. 1.2.1.5. A port State may designate areas in which exchange may be conducted taking into account the Guidelines on designation of areas for ballast water exchange. Designated areas should only be used for those ballast water tanks that are intended to be discharged in the port of that State and that could not be exchanged in accordance with Regulation B-4.1 of the Convention. 1.2.2. Ballast Water Management Systems 1.2.2.1. Ballast Water Management Systems installed for compliance with Regulation B-3 are to be approved in accordance with Regulation D-3. Such systems are to be operated in accordance with the system design criteria and the manufacture’s operational and maintenance instructions. The use of such systems should be detailed in the ship’s Ballast Water Management Plan. All failures and malfunctions of the system are to be recorded in the Ballast Water Record Book. 1.2.3. Discharge to ballast water reception facilities 1.2.3.1. If ballast water reception facilities provided by a port State are utilized, Regulation B-3.6 applies. 1.2.4. Prototype ballast water treatment technologies 1.2.4.1. Prototype ballast water treatment technologies should be used within a programme approved by the Administration in accordance with Regulation D-4. 1.3.

Sediment management

1.3.1. Regulation B-5 requires that all ships shall remove and dispose of sediments from spaces designated to carry ballast water in accordance with the ballast water management plan.

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1.3.2. All practical steps should be taken during ballast uptake to avoid sediment accumulation, however, it is recognized that sediment will be taken on board and will settle on tank surfaces. When sediment has accumulated, consideration should be given to flushing tank bottoms and other surfaces when in suitable areas, i.e. areas complying with the minimum depth and distance described by Regulations B-4.1.1 and B-4.1.2. 1.3.3. The volume of sediment in a ballast tank should be monitored on a regular basis. 1.3.4. Sediment in ballast tanks should be removed in a timely basis in accordance with the Ballast Water Management Plan and as found necessary. The frequency and timing of removal will depend on factors such as sediment build up, ship’s trading pattern, availability of reception facilities, work load of the ship’s personnel and safety considerations. 1.3.5. Removal of sediment from ballast tanks should preferably be undertaken under controlled conditions in port, at a repair facility or in dry dock. The removed sediment should preferably be disposed of in a sediment reception facility if available, reasonable and practicable. 1.3.6. When sediment is removed from the ship’s ballast tanks and is to be disposed of by that ship at sea, such disposal should only take place in areas outside 200 nm from land and in water depths of over 200 m. 1.3.7. Regulation B-5 requires that ships constructed in or after 2009 should, without compromising safety or operational efficiency, be designed and constructed with a view to minimize the uptake and undesirable entrapment of sediments, facilitate removal of sediments, and provide safe access to allow for sediment removal and sampling, taking into account the Guidelines for sediments control on ships (G12). This also applies to ships constructed prior to 2009, to the extent practicable. 1.4.

Additional Measures

1.4.1. Ships to which additional measures apply, under Regulation C-1, should take them into account in the ships voyage planning. Actions taken to comply with any additional measures should be recorded in the Ballast Water Record Book. 1.5.

Exemptions

1.5.1. Regulation A-4 provides that an exemption may be granted from the requirements of Regulations B-3 or C-1 by a Party or Parties to a ship in specific circumstances. Applications for and the granting of such exemptions should be completed in accordance with the Guidelines for risk assessment (G7). 1.5.2. Ships granted an exemption referred to in paragraph 1.5.1 above should record the exemption in the Ballast Water Record Book and what actions have been taken with regards to the ships ballast water.

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Recording Procedures Procedures for ships

2.1.1. To facilitate the administration of ballast water management and treatment procedures on board each ship, a responsible officer is to be designated in accordance with Regulation B-1 to ensure the maintenance of appropriate records and to ensure that ballast water management and/or treatment procedures are followed and recorded. 2.1.2. When carrying out any ballast water operation the details are to be recorded in the Ballast Water Record Book together with any exemptions granted in accordance with Regulation B-3 or C-1. 2.1.3. Where a port State requires information on ships ballast operations, relevant documentation, which takes account of the information requirements of the Convention, should be made available to the port State. 2.2.

Procedures for port States

2.2.1. Port States should provide ships with details of their requirements concerning ballast water management including: 1. the location and terms of use of areas designated for ballast water exchange under Regulation B-4.2 of the Convention; 2. any additional measures determined under Regulation C-1 of the Convention; 3. warnings concerning ballast uptake and any other port contingency arrangements in the event of emergency situations; and 4. the availability, location, capacities of reception facilities that are provided for the environmentally safe disposal of ballast water and/or sediments, under Article 5 and Regulation B-3.6. 2.2.2. To assist ships in applying the precautionary practices described in section 1.1 of Part A, port States are required by Regulation C-2 of the Convention to endeavour to notify mariners of area(s), where ships should not uptake Ballast Water due to known conditions. Similar notification should be given for areas where the uptake of ballast water should be minimized, such as: 1. areas with outbreaks, infestations or known populations of harmful organisms and pathogens; 2. areas with current phytoplankton blooms (algal blooms, such as red tides); 3. nearby sewage outfalls; 4. areas where a tidal stream is known to be the more turbid; 5. areas where tidal flushing is known to be poor;

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6. nearby dredging operations; and 7. nearby or in sensitive or estuarine sea areas.

3. Training and Education 3.1. Regulation B-6 requires that officers and crew shall be familiar with their duties in the implementation of Ballast Water Management particular to the ship on which they serve. Owners, managers, operators, and others involved in officer and crew training for ballast water management should consider the following: 3.2. Training for ships’ masters and crews as appropriate should include instructions on the requirements of the Convention, the ballast water and sediment management procedures and the Ballast Water Record Book particularly having regard to matters of ship safety and maintenance of records in accordance with the information contained in these Guidelines. 3.3. The Ballast Water Management Plan should include training and education on ballast water management practices and the systems and procedures used on board the ship.

PART B – Guidelines for the Development of Ballast Water Management Plans 1.

Introduction

1.1. These Guidelines have been developed to assist with the preparation of a ship’s Ballast Water Management Plan (hereafter referred to as the “Plan”). The Plan must be approved by the Administration in accordance with Regulation B1 of the Convention. 1.2. This Part is comprised of three primary sections: 1. General: this section provides the objectives and a general overview of the subject matter and introduces the reader to the basic concept of the Guidelines and the Plan that is expected to be developed from them. This section also contains guidance on updating and use of the Plan. 2. Mandatory provisions: this section provides guidance to ensure that the mandatory provisions of Regulation B-1 of the Annex to the Convention are met. 3. Non-mandatory provisions: this section provides guidance concerning the inclusion of other information in the Plan. This information, although not required under Regulation B-1 of the Convention, may be found

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useful by local authorities in ports visited by the ship, or may provide additional assistance to the ship’s master. 1.3.

2. 2.1.

The format for a Ballast Water Management Plan is given in Appendix 1.

General Concept of the Guidelines

2.1.1. These Guidelines are intended to provide a basis for the preparation of the Plans for individual ships. The broad spectrum of ships for which Plans are required makes it impractical to provide specific guidelines for each ship type. For a Plan to be effective and to comply with Regulation B-1 of the Annex of the Convention, it must be carefully tailored to the particular ship for which it is intended. Properly used, the Guidelines will ensure that all appropriate issues that may be applicable to a particular ship are considered in developing the Plan. 2.1.2. The issues that may require consideration include but are not limited to: type and size of ship, volume of ballast carried and total capacity of tanks used for ballast, ballast pumping capacity, ship and crew safety issues, voyage type and length, the ship’s typical operational requirements, and ballast water management techniques used on board. 2.2.

Concept of the Plan

2.2.1. The Plan is required to be onboard the ship and available to guide personnel in safe operation of the Ballast Water Management system employed on a particular ship. Effective planning ensures that the necessary actions are taken in a structured, logical, and safe manner. 2.2.2. For the Plan to accomplish its purpose, it must be: 1. realistic, practical, and easy to use; 2. understood by ship’s personnel engaged in ballast water management, both on board and ashore; 3. evaluated, reviewed, and updated as necessary; and 4. consistent with the operational ballasting requirements of the ship. 2.2.3. The Plan envisioned by Regulation B-1 of the Annex to the Convention is intended to be a simple document. Inclusion of extensive background information on the ship, its structure, etc., should be avoided, as this is generally available elsewhere. If such information is relevant, it should be kept in annexes, or an existing document or manual reference should be made to the location of the information.

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2.2.4. The Plan is a document to be used on board by the ship’s personnel engaged in ballast water management. The Plan must therefore be available in a working language of the ship’s personnel. A change in the personnel and or the, working language or would require the issuance of the Plan in the new language(s). 2.2.5. The Plan should be readily available for inspection by officers authorized by a Party to the Convention. 2.3.

Exemptions

2.3.1. Regulation A-4 allows that exemption may be granted to a ship from Regulation B-3 or C-1. 2.3.2. Details of exemptions should be retained with the Plan. 2.3.3. Any exemption granted is to be recorded in the Ballast Water Record Book. 2.4.

Additional Measures

2.4.1. The Convention, in Regulation C-1 Additional Measures, gives a Party individually or jointly with other Parties, the right to introduce measures in addition to those in Section B. Such Additional Measures are to be communicated to the Organization at least 6 months prior to the projected date of implementation. 2.4.2. The Plan should be accompanied by a most recent list of Additional measures, as communicated by the Organization relevant to the ship’s trade. The Plan should contain details and advice on the actions a ship must take to comply with any additional measures that may be required in accordance with Regulation C-1 and for any emergency or epidemic situations. 2.5.

Review of the Plan

2.5.1. Regular review of the Plan by the owner, operator, or master should be conducted to ensure that the information contained is accurate and updated. A feedback system should be employed which will allow quick capture of changing information and incorporation of it into the Plan. 2.5.2. Changes to the provisions of this Plan will need Administration approval.

3.

Mandatory Provisions

3.1. This section provides individual guidelines for the seven mandatory provisions of Regulation B-1 of the Annex to the Convention. In addition, it provides information to assist ships personnel in managing ballast water and sediments.

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3.2. Regulation B-1 of the Annex to the Convention provides that the Plan shall be specific to each ship and shall at least: 1. detail safety procedures for the ship and the crew associated with Ballast Water Management as required by the Convention; 2. provide a detailed description of the actions to be taken to implement the Ballast Water Management practices required by the Convention; 3. detail the procedures for the disposal of sediments at sea and to shore; 4. include the procedures for co-ordinating shipboard Ballast Water Management that involves discharge to the sea with the authorities of the State into whose waters such discharge will take place; 5. designates the officer on board in charge of ensuring that the Plan is properly implemented; 6. contain the reporting requirements for ships provided for under the Convention; and 7. be written in the working language of the ship. If the language used is not English, French or Spanish, a translation into one of these languages should be provided. 3.3. The Ballast Water Management Plan should give guidance on the ballast handling procedures to be followed, including: 1. uptake of ballast water; 2. step-by-step procedures and sequences for the Ballast Water Management System used; and 3. any operational or safety restrictions including those associated with the Ballast Water Management System used. This will also assist ship’s personnel when responding to enquiries from inspection officers authorized by a Party. 3.4. Safety aspects of the Ballast Water Management system used should include, as applicable, guidance on: 1. stability to be maintained at all times to values not less than those recommended by the Organization (or required by the Administration); 2. approved longitudinal stress and, where applicable, torsional stress values are to be maintained within permitted values; 3. transfer or exchange of ballast that can generate significant structural loads by sloshing action in partially-filled tanks. If these operations include partially-filled tanks, consideration should be given to carrying out the operation in favourable sea and swell conditions such that the risk of structural damage is minimized;

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4. wave-induced hull vibrations when carrying out ballast water exchange; 5. forward and aft draughts and trim, with particular reference to bridge visibility, slamming and minimum forward draft; 6. the effects of any potential hazards and occupational health that may affect ship’s personnel shall also be identified together with any safety precautions that need to be taken; and 7. the possible effects of tank over pressurization. 3.5. If a ship is able to complete at least 95 per cent volumatic exchange in less than three pumped volumes, documentation indicating that this ballast water exchange process has been approved under Regulation D-1.2 should be provided in the Plan. 3.6. The Plan should also include procedures for the disposal of sediments and in particular: 1. on the sediment removal or reduction at sea, and when cleaning of the ballast tanks to remove sediments; 2. regarding the safety consideration to be taken if tank entry is required to remove sediments; and 3. regarding the use of port reception facilities for sediments. 3.7. The Plan should clearly identify the officer in charge of ballast water management and outline his/her duties which should include: 1. ensuring that the Ballast Water Management performed follows the procedures in the Plan; 2. ensuring that the Ballast Water Record Book and any other necessary documentation are maintained; and 3. being available to assist the inspection officers authorized by a Party for any sampling that may need to be undertaken. 3.8. The Plan should contain guidance on the recording requirements according to ship’s Ballast Water Record Book provided for under this Convention including details of exemptions granted to the ship. 3.9. In addition to the above, the Plan should include the following: 1. A foreword which should provide the ship’s crew with explanations on the need for ballast water management and for record keeping. The foreword should include a statement that, “This Plan must be kept available for inspection on request by an authorized authority”.

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2. Ship particulars including at least: 1. ships’ name, flag, port of registry, Gross Tonnage, IMO number*, length (BP), beam, international call sign; deepest ballast drafts (normal and heavy weather); 2. the total ballast capacity of the ship in cubic meters and other units if applicable to the ship; 3. a brief description of the main ballast water management method(s) used on the ship; and 4. identification (rank) of the officer in charge for implementing the Plan. 3. Information on Ballast Water Management System used on board, including: 1. ballast tank arrangement; 2. ballast capacity plan; 3. a ballast water piping and pumping arrangement, including air pipes and sounding arrangements; 4. ballast water pump capacities; 5. the Ballast Water Management System used on board, with references to operational and maintenance manuals held on board; 6. installed ballast water treatment systems; and 7. a plan and profile of the ship, or a schematic drawing of the ballast arrangement. 4. Information on the ballast water sampling points, including: 1. A list or diagrams indicating the location of sampling and access points in pipelines and ballast water tanks, to enable crew members to assist the authorized officers of a Party that have reason to obtain samples. 2. This section should make clear that sampling of ballast water is primarily a matter for the authorized inspection officers, and there is unlikely to be any need for crew members to take samples except at the express request, and under the supervision, of the authorized inspection officers. 3. The authorized inspection officers should be advised of all safety procedures to be observed when entering enclosed spaces. 5. Provisions for crew training and familiarization, including: 1. requirements of a general nature regarding Ballast Water Management; 2. training and information on ballast water management practices;

* In accordance with resolution A.600(15) IMO Ship Identification Number Scheme.

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3. 4. 5. 6. 7. 8.

9. 10. 11.

4.

ballast water exchange; ballast water treatment systems; general safety considerations; the Ballast Water Record Book and maintenance of records; the operation and maintenance of installed ballast water treatment systems; safety aspects associated with the particular systems and procedures used onboard the ship which affect the safety or human health of crew and passengers and/or the safety of the ship; precautions for entering tanks for sediment removal; procedures for the safe handling and packaging of sediment; and storage of sediment.

Non-Mandatory Information

4.1. In addition to the provisions required by Articles and regulations of the Convention, the owner/operator may include in the Plan, as appendices, additional information such as: provision of additional diagrams and drawings, shipboard equipment and reference materials. National or regional requirements that differ from the Convention may also be recorded for reference. 4.2. Non-mandatory information may also include manufactures manuals (either as extracts or complete) or reference to the location on board of such manuals and other relevant material.

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Appendix Standard Format for The Ballast Water Management Plan Preamble The ballast water management plan should contain the information required by Regulation B-1 of the Convention. For guidance in preparing the plan the following information is to be included. The plan should be specific to each ship.

Introduction At the beginning of each plan, wording should be included to reflect the intent of the following text. 1. This Plan is written in accordance with the requirements of Regulation B-1 of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Convention) and the associated Guidelines. 2. The purpose of the Plan is to meet the requirements for the control and management of ship’s ballast water and sediments in accordance with the Guidelines for Ballast Water Management and the Development of Ballast Water Management Plans resolution MEPC XX(YY) (The Guidelines). It provides standard operational guidance for the planning and management of ships’ ballast water and sediments and describes safe procedures to be followed. 3. This Plan has been approved by the Administration and no alteration or revision shall be made to any part of it without the prior approval of the Administration. 4. This Plan may be inspected on request by an authorized authority. Note: The Plan is to be written in the working language of the crew, if the text is not in English, French, or Spanish, the plan is to include a translation into one of these languages.

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Ship Particulars At least the following details should be included: Ships’ name; Flag; Port of registry; Gross Tonnage; IMO number*; Length (BP); Beam; International call sign; Deepest ballast drafts (normal and heavy weather); Total ballast capacity of the ship in cubic meters and other units if applicable to the ship; A brief description of the main ballast water management method(s) used on the ship; and Identification (rank) of the appointed ballast water management officer. Index An index of sections should be included to reference the content of the Plan. Purpose Should contain a brief introduction for the ship’s crew, explaining the need for ballast water management, and the importance of accurate record keeping. Plans/Drawings of the Ballast System Plans or drawings of the ballast system for example: 1) ballast tank arrangement; 2) ballast capacity plan; 3) a ballast water piping and pumping arrangement, including air pipes and sounding arrangements; 4) ballast water pump capacities; 5) the ballast water management system used onboard, with references to detailed operational and maintenance manuals held on board; 6) installed ballast water treatment systems; and 7) a plan and profile of the ship, or a schematic drawing of the ballast arrangement.

*In accordance with resolution A.600(15) IMO Ship Identification Number Scheme.

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Description of the Ballast System A description of the ballast system. Ballast Water Sampling Points Lists and/or diagrams indicating the location of sampling and access points in pipelines and ballast water tanks. A note that sampling of ballast water is primarily a matter for the authorized authority, and there is unlikely to be any need for crew members to take samples except at the express request, and under the supervision, of the authorized authority. Operation of the Ballast Water Management System A detailed description of the operation of the Ballast Water Management System(s) used on board. Information on general ballast water management precautionary practices. Safety Procedures for the Ship and the Crew Details of specific safety aspects of the ballast water management system used. Operational or Safety Restrictions Details of specific operational or safety restrictions including those associated with the management system which affects the ship and or the crew including reference to procedures for safe tank entry. Description of the Method(s) used on Board for Ballast Water Management and Sediment Control Details of the method(s) used on board for the management of ballast and for sediment control including step-by-step operational procedures. Procedures for the Disposal of Sediments Procedures for the disposal of sediments at sea and to shore. Methods of Communication Details of the procedures for co-ordinating the discharge of ballast in waters of a coastal State. Duties of the Ballast Water Management Officer Outline of the duties of the designated officer. Recording Requirements Details of the record-keeping requirements of the Convention.

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Crew Training and Familiarization Information on the provision of crew training and familiarization. Exemptions Details of any exemptions granted to the ship under Regulation A-4. Approving Authority Details and stamp of approving authority.

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Resolution MEPC.153(55) Adopted on 13 October 2006 Guidelines for Ballast Water Reception Facilities (G5) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation B-3.6 of the Ballast Water Management Convention provides that, the requirements of ballast water management standards do not apply to ships that discharge ballast water to a reception facility designed taking into account the Guidelines developed by the Organization for such facilities. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop these Guidelines as a matter of urgency. Having Considered, at its fifty-fifth session, the draft the Guidelines for ballast water reception facilities (G5) developed by the Ballast Water Working Group, and the recommendation made by the Sub-Committee on Flag State Implementation at its fourteenth session. 1. ADOPTS the Guidelines for ballast water reception facilities (G5) as set out in the Annex to this resolution; 2. INVITES Governments to apply these Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep these Guidelines under review.

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Guidelines for Ballast Water Reception Facilities (G5) 1.

Introduction

Purpose 1.1. The purpose of these guidelines is to provide guidance for the provision of facilities for the reception of ballast water as referred to in Regulation B-3.6 of the Convention. These guidelines are not intended to require that a Party shall provide such facilities. The guidance is also intended to encourage a worldwide uniform interface between such facilities and the ships without prescribing dedicated shoreside reception plants. Application 1.2. These guidelines apply to ballast water reception facilities referred to in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Convention), Regulation B-3.6. 1.3. These guidelines do not apply to reception facilities for sediment referred to in Article 5 and Regulation B-5 of the Convention.

2.

Definitions

2.1. For the purposes of these guidelines, the definitions in Article 1 and Regulation A-1 of the Convention apply.

3.

General Requirements for Ballast Water Reception Facilities

3.1. A ballast water reception facility should be capable of receiving ballast water from ships so as not to create a risk to the environment, human health, property and resources arising from the release to the environment of Harmful Aquatic Organisms and Pathogens. A facility should provide pipelines, manifolds, reducers, equipment and other resources to enable, as far as practicable, all ships wishing to discharge ballast water in a port to use the facility. The facility should provide adequate equipment for mooring ships using the facility and when applicable safe anchorage. 3.2. Each Party shall report to the Organization and, where appropriate, make available to other Parties, information on the availability and location of any reception facilities for the environmentally safe disposal of ballast water.

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Provision of Ballast Water Reception Facilities

4.1. When considering the requirements of these facilities many factors will have to be taken into account, these should include but not be limited to: 1. regional, national and local legislation which will affect the facility and related to the items below; 2. site selection; 3. ship type and size that will use the facility; 4. ship configurations; 5. mooring requirements; 6. handling of ballast water; 7. sampling, testing and analysis of ballast water; 8. storage and of conditions of ballast water; 9. environmental benefits and costs; 10. proximity of available sites to local ports; 11. effect on the environment in construction and operation of the facility; 12. training of facility staff; 13. human health; 14. safety; 15. maintenance; 16. operational limitations; 17. waterway access, approaches and traffic management; and 18. the amount of ballast water likely to be received.

5. Treatment and Disposal of Received Ballast 5.1. Disposal of ballast water from a reception facility should not create a risk to the environment, human health, property and resources arising from the release or transfer to the environment of Harmful Aquatic Organisms and Pathogens. 5.2. Treatment methods applied to the ballast water should not produce effects that may create a risk to the environment, human health, property and resources. 5.3. Where ballast water is disposed into the aquatic environment it should at least meet the ballast water performance standard specified in Regulation D-2 of the Convention. Disposal to other environments should be to a standard acceptable to the Port State. Such a standard should not create a risk to the environment, human health, property and resources arising from the release or transfer to the environment of Harmful Aquatic Organisms and Pathogens.

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6.

Suspended Matter

6.1. Ballast water discharged from a ship should be accepted by the ballast water reception facility including its suspended matter.

7.

Capabilities of a Reception Facility

7.1. Details of the capabilities and any capacity limitations of a treatment facility should be made available to the ships that intend to use the facility. 7.2. The details made available to ships should include but not be limited to: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

maximum volumetric capacity of ballast water; maximum volume of ballast water that can be handled at any one time; maximum transfer rates of ballast water (cubic metres per hour); hours of operation; ports, berths, areas where access to the facility is available; ship-to-shore pipeline connection details (pipeline size and reducers available); if ship or shore crew are required for duties such as to connect or disconnect hoses; contact details for the facility; how to request use of the facility including any notice period and what information is required from the ship; all applicable fees; and other relevant information.

7.4. The facility should provide ship to shore connections that are compatible with a recognized standard such as those in the Oil Companies International Marine Forum (OCIMF) “Recommendations for Oil Tankers Manifolds and Associated Equipment”. It is recognized that this standard was originally produced for oil tankers however the general principles in this standard can be applied to connections for ballast transfer on other ship types in particular the sections related to flanges and connection methods.

8. Training 8.1. Personnel in charge of and those employed in the provision of a ballast water reception facility including the treatment and disposal of ballast water

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should have received adequate instruction. Frequent training should include but not be limited to: 1. the purpose and principles of the Convention; 2. the risks to the environment and human health; 3. risk associated with the handling of ballast water including both general safety and human health risks; 4. safety; 5. adequate knowledge of the equipment involved; 6. a sufficient understanding of ships using the facility, and any operational constraints; 7. the ship/port communication interface; and 8. an understanding of local disposal controls. 8.2. The training should be organized by the manager or the operator of the reception facility and delivered by suitably qualified professionals.

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Resolution MEPC.124(53) Adopted on 22 July 2005 Guidelines for Ballast Water Exchange (G6) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation B-4 of the Annex to the Ballast Water Management Convention addresses the conditions under which ballast water exchange should be conducted, taking into account Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invites the Organization to develop these Guidelines as a matter of urgency. Having Considered the draft Guidelines for ballast water exchange developed by the Ballast Water Working Group and the recommendation made by the SubCommittee on Bulk Liquids and Gases at its ninth session. 1. ADOPTS the Guidelines for ballast water exchange, as set out in the Annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines for Ballast Water Exchange (G6) 1.

Introduction

1.1. The purpose of these Guidelines is to provide shipowners and operators with general guidance on the development of ship specific procedures for conducting ballast water exchange. Whenever possible ship owner and operators should enlist the assistance of classification societies or qualified marine surveyors in tailoring ballast exchange practices for various conditions of weather, cargo and stability. The application of processes and procedures concerning ballast water management are at the core of the solution to prevent, minimize and ultimately eliminate the introduction of harmful aquatic organisms and pathogens. Ballast water exchange offers a means, when used in conjunction with good ballast water management practices, to assist in achieving this solution. 1.2. Ballast water exchange introduces a number of safety issues, which affect both the ship and its crew. These Guidelines are intended to provide guidance on the safety and operational aspects of ballast water exchange at sea. 1.3. Given that there are different types of ships, which may be required to undertake ballast water exchange at sea, it is impractical to provide specific guidelines for each ship type. Shipowners are cautioned that they should consider the many variables that apply to their ships. Some of these variables include type and size of ship, ballast tank configurations and associated pumping systems, trading routes and associated weather conditions, port State requirements and manning. Application 1.4. The Guidelines apply to all those involved with ballast water exchange including, shipowners and operators, designers, classification societies and shipbuilders. Operational procedures and guidance reflecting the issues rose in these Guidelines should be reflected in the ships ballast water management plan.

2.

Definitions

2.1. For the purposes of these Guidelines, the definitions in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Convention) apply and: 1. “Ballast Water Tank” – means any tank, hold, or space used for the carriage of ballast water.

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Responsibilities

3.1. Shipowners and operators should ensure, prior to undertaking ballast water exchange, that all the safety aspects associated with the ballast water exchange method or methods used onboard have been considered and that suitably trained personnel are onboard. A review of the safety aspects, the suitability of the exchange methods being used and the aspects of crew training should be undertaken at regular intervals. 3.2. The Ballast Water Management Plan is to include the duties of key shipboard control personnel undertaking ballast water exchange at sea. Such personnel should be fully conversant with the safety aspects of ballast water exchange and in particular the method of exchange used on board their ship and the particular safety aspects associated with the method used. 3.3. In accordance with Regulation B-4.4 of the Convention if the master reasonably decides that to perform ballast water exchange would threaten the safety or stability of the ship, its crew or its passengers, because of adverse weather, the ship’s design, stress, equipment failure, or any other extraordinary condition a ship shall not be required to comply with Regulations B-4.1 and B-4.2. 1. When a ship does not undertake ballast water exchange for the reasons stated in paragraph above, the reasons shall be entered in the Ballast Water Record Book. 2. The port or coastal State concerned may require that the discharge of ballast water must be in accordance with procedures determined by them taking into account the Guidelines for additional measures including emergency situations (G13).

4.

Ballast Water Exchange Requirements

4.1. Exchange of ballast water in deep ocean areas or open seas offers a means of limiting the probability that harmful aquatic organisms and pathogens be transferred in ships ballast water. 4.2. Regulation D-1 of the Convention requires that: 1. ships performing ballast water exchange in accordance with this regulation shall do so with an efficiency of at least 95 per cent volumetric exchange of ballast water; and 2. for ships exchanging ballast water by the pumping-through method, pumping through three times the volume of each ballast water tank shall be considered to meet the standard described in paragraph 1. Pumping through less than three times the volume may be accepted provided the ship can demonstrate that at least 95 per cent volumetric exchange is met.

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4.3. There are three methods of Ballast Water exchange which have been evaluated and accepted by the Organization. The three methods are the sequential method, the flow-through method and the dilution method. The flow-through method and the dilution method are considered as “pump through” methods. 4.4. The three accepted methods can be described as follows: Sequential method – a process by which a ballast tank intended for the carriage of ballast water is first emptied and then refilled with replacement ballast water to achieve at least a 95 per cent volumetric exchange. Flow-through method – a process by which replacement ballast water is pumped into a ballast tank intended for the carriage of ballast water, allowing water to flow through overflow or other arrangements. Dilution method – a process by which replacement ballast water is filled through the top of the ballast tank intended for the carriage of ballast water with simultaneous discharge from the bottom at the same flow rate and maintaining a constant level in the tank through out the ballast exchange operation.

5.

Safety Precautions Associated with Ballast Water Exchange

5.1. Three methods of carrying out ballast water exchange at sea have been identified as acceptable by the Organization. Each has particular safety aspects associated with it that should be considered when selecting the method(s) to be used on a particular ship. 5.2. When identifying the ballast water exchange method(s) for the first time for a particular ship, an evaluation should be made which should include: 1. the safety margins for stability and strength contained in allowable seagoing conditions, as specified in the approved trim and stability booklet and the loading manual relevant to individual types of ships. Account should also be taken of the loading conditions and the envisaged ballast water exchange method or methods to be used; 2. the ballast pumping and piping system taking account of the number of ballast pumps and their capacities, size and arrangements of ballast water tanks; and 3. the availability and capacity of tank vents and overflow arrangements, for the flow through method, the availability and capacity of tank overflow points, prevention of under and over pressurization of the ballast tanks. 5.3.

Particular account should be taken of the following: 1. stability which is to be maintained at all times and not less than those values recommended by the Organization or required by the Administration;

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2. longitudinal stress, and where applicable torsional stress values, not to exceed permitted values with regard to prevailing sea conditions; 3. exchange of ballast in tanks where significant structural loads may be generated by sloshing action in the partially filled tank to be carried out in favourable sea and swell conditions such that the risk of structural damage is minimized; 4. wave-induced hull vibrations when carrying out ballast water exchange; 5. limitations of the available methods of ballast water exchange in respect of sea and weather conditions; 6. forward and aft draughts and trim, with particular reference to bridge visibility, slamming, propeller immersion and minimum forward draft; and 7. additional work loads on the master and crew. 5.4. Having undertaken an evaluation for a particular ship and the exchange method or methods to be used, the ship should be provided with procedures, advice and information appropriate to the exchange method(s) identified and ship type in the Ballast Water Management Plan. The procedures, advice, and information in the Ballast Water Management Plan, may include but is not limited to the following: 1. avoidance of over and under-pressurization of ballast tanks; 2. free surface effects on stability and sloshing loads in tanks that may be slack at any one time; 3. maintain adequate intact stability in accordance with an approved trim and stability booklet; 4. permissible seagoing strength limits of shear forces and bending moments in accordance with an approved loading manual; 5. torsional forces; 6. forward and aft draughts and trim, with particular reference to bridge visibility, propeller immersion and minimum forward draft; 7. wave-induced hull vibrations when performing ballast water exchange; 8. watertight and weathertight closures (e.g. manholes) which may have to be opened during ballast exchange must be re-secured; 9. maximum pumping/flow rates – to ensure the tank is not subjected to a pressure greater than that for which it has been designed; 10. internal transfers of ballast; 11. admissible weather conditions; 12. weather routeing in areas seasonably affected by cyclones, typhoons, hurricanes, or heavy icing conditions; 13. documented records of ballasting and/or de-ballasting and/or internal transfers of ballast;

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14. contingency procedures for situations which may affect ballast water exchange at sea, including deteriorating weather conditions, pump failure and loss of power; 15. time to complete the ballast water exchange for each tank or an appropriate sequence thereof; 16. continual monitoring of the ballast water operation; monitoring should include pumps, levels in tanks, line and pump pressures, stability and stresses; 17. a list of circumstances in which ballast water exchange should not be undertaken. These circumstances may result from critical situations of an exceptional nature or force majeure due to stress of weather, known equipment failures or defects, or any other circumstances in which human life or safety of the ship is threatened; 18. ballast water exchange at sea should be avoided in freezing weather conditions. However, when it is deemed absolutely necessary, particular attention should be paid to the hazards associated with the freezing of overboard discharge arrangements, air pipes, ballast system valves together with their means of control, and the build up of ice on deck; and 19. personnel safety, including precautions which may be required when personnel are required to work on deck at night, in heavy weather, when ballast water overflows the deck, and in freezing conditions. These concerns may be related to the risks to the personnel of falling and injury, due to the slippery wet surface of the deck plate, when water is overflowing on deck, and to the direct contact with the ballast water, in terms of occupational health and safety. 5.5. During ballast water exchange sequences there may be times when, for a transitory period, one or more of the following criteria cannot be fully met or are found to be difficult to maintain: 1. bridge visibility standards (SOLAS V/22); 2. propeller immersion; and 3. minimum draft forward. 5.6. As the choice of acceptable ballast water exchange sequences is limited for most ships, it is not always practicable to dismiss from consideration those sequences where transitory non-compliance may occur. The practical alternative would be to accept such sequences provided an appropriate note is placed in the Ballast Water Management Plan to alert the ship’s master. The note would advise the master of the nature of the transitory non-compliance, that additional planning may be required and that adequate precautions need to be taken when using such sequences.

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5.7. In planning a ballast water exchange operation that includes sequences which involve periods when the criteria for propeller immersion, minimum draft and / or trim and bridge visibility cannot be met, the Master should assess: 1. the duration(s) and time(s) during the operation that any of the criteria will not be met; 2. the effect(s) on the navigational and manoeuvring capabilities of the ship; and 3. the time to complete the operation. 5.8. A decision to proceed with the operation should only be taken when it is anticipated that: 1. the ship will be in open water; 2. the traffic density will be low; 3. an enhanced navigational watch will be maintained including if necessary an additional look out forward with adequate communications with the navigation bridge; 4. the manoeuvrability of the vessel will not be unduly impaired by the draft and trim and or propeller immersion during the transitory period; and 5. the general weather and sea state conditions will be suitable and unlikely to deteriorate. 5.9. On oil tankers, segregated ballast and clean ballast may be discharged below the water line at sea by pumps if the ballast water exchange is performed under the provisions of Regulation D-1.1 of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, provided that the surface of the ballast water has been examined either visually or by other means immediately before the discharge to ensure that no contamination with oil has taken place.

6.

Crew Training and Familiarization

6.1. Appropriate training for ships’ masters and crews should include instructions on the safety issues associated with ballast water exchange based upon the information contained in these Guidelines. Instruction should be provided on the ships’ Ballast Water Management Plan including the completion of required records. 6.2. Ships’ officers and crew engaged in ballast water exchange at sea should be trained in and be familiar with the following as appropriate: 1. the ship’s ballast pumping and piping arrangements, positions of associated air and sounding pipes, positions of all compartment and tank suctions

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and pipelines connecting them to ship’s ballast pumps and, in the case of use of the flow through method of ballast water exchange, the openings used for release of water from the top of the tank together with overboard discharge arrangements; the method of ensuring that sounding pipes are clear, and that air pipes and their non-return devices are in good order; the different times required to undertake the various ballast water exchange operations including the time to complete individual tanks; the method(s) in use for ballast water exchange at sea if applicable with particular reference to required safety precautions; and the need to continually monitor ballast water exchange operations.

Future Considerations in Relation to Ballast Water Exchange

7.1. These Guidelines may be revised and updated in the light of possible technical evolutions with the ballast water exchange methods and of new ballast water management options.

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Resolution MEPC.162(56) Adopted on 13 July 2007 Guidelines for Risk Assessment Under Regulation A-4 of the BWM Convention (G7) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that regulation A-4 of the Convention stipulates that a Party or Parties, in waters under their jurisdiction, may grant exemptions to any requirements to apply regulation B-3 or C-1, in addition to those exemptions contained elsewhere in this Convention, but only when they are, inter alia, granted based on the Guidelines on risk assessment developed by the Organization. Noting Also that the International Conference on Ballast Water Management for Ships, in its resolution 1, invited the Organization to develop the Guidelines for uniform application of the Convention as a matter of urgency. Having Considered, at its fifty-sixth session, the draft Guidelines for risk assessment under regulation A-4 (G7) of the BWM Convention developed by the Ballast Water Working Group, and the recommendation made by the SubCommittee on Bulk Liquids and Gases at its eleventh session. 1. ADOPTS the Guidelines for risk assessment under regulation A-4 (G7) of the BWM Convention as set out in the annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines for Risk Assessment Under Regulation A-4 of the BWM Convention (G7) 1.

Purpose

1.1. The purpose of these Guidelines is to assist Parties to ensure that provisions of regulation A-4 of the Convention are applied in a consistent manner, and based on scientifically robust risk assessment, which ensures that the general and specific obligations of a Party to the Convention are achieved. 1.2. An additional purpose is to provide assurance to affected States that exemptions granted by a Party meet the regulation A-4.3 obligations. 1.3. The Guidelines outline three risk assessment methods that will enable Parties to identify unacceptable high risk scenarios and acceptable low risk scenarios, and advise Parties on procedures for granting and withdrawing exemptions in accordance with regulation A-4.

2.

Introduction

2.1. Regulation A-4 of the Convention states that a Party or Parties, in waters under their jurisdiction may grant exemptions to any requirements to apply regulation B-3 or C-1, in addition to those exemptions contained elsewhere in the Convention, but only when they are: 1. granted to a ship or ships on a voyage or voyages between specified ports or locations; or to a ship which operates exclusively between specified ports or locations; 2. effective for a period of no more than five years subject to intermediate review; 3. granted to ships that do not mix ballast water or sediments other than between the ports or locations specified in paragraph 2.1.1; and 4. granted based on the Guidelines that have been developed by the Organization. 2.2. These Guidelines provide advice and information regarding risk assessment principles and methods, data needs, advice on application of risk assessment methods, procedures for granting exemptions, consultation and communication processes, information for reviewing exemptions and advice regarding technical assistance, co-operation and regional co-operation. 2.3. These Guidelines also provide advice regarding the roles of the Organization, shipping industry, port States and other States that might be affected by granting an exemption in accordance with regulation A-4 of the Convention.

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2.4. Scientifically robust risk assessment underpins the process of Parties granting exemptions under regulation A-4 of the Convention. The assessment must be sufficiently robust to distinguish between unacceptable high risk scenarios and acceptable low risk scenarios where the discharge of ballast water not meeting regulations B-3 and C-1 is unlikely to impair or damage the environment, human health, property or resources of the granting Party and of adjacent or other States. 2.5. Risk assessments should be based on best available scientific information. 2.6. The Guidelines should be kept under review in order to incorporate experiences gained during their application and any new scientific and technical knowledge.

3.

Application

3.1. These Guidelines apply to Parties granting exemptions to ships under regulation A-4 of the Convention. 3.2. Shipowners or operators wanting to seek an exemption under regulation A-4 should also consult these Guidelines.

4.

Definitions

4.1. For the purposes of these Guidelines, the definitions in the Convention apply. 4.2. “Anadromous”: species that spawn/reproduce in freshwater environments, but spend at least part of their adult life in a marine environment. 4.3. “Biogeographic region”: a large natural region defined by physiographic and biologic characteristics within which the animal and plant species show a high degree of similarity. There are no sharp and absolute boundaries but rather more or less clearly expressed transition zones. 4.4. “Catadromous”: species that spawn/reproduce in marine environments, but spend at least part of their adult life in a freshwater environment. 4.5. “Cryptogenic”: species that are of unknown origin, i.e. species that are not demonstrably native or introduced to a region. 4.6. “Donor Port”: port or location where the ballast water is taken onboard. 4.7. “Euryhaline”: species able to tolerate a wide range of salinities. 4.8. “Eurythermal”: species able to tolerate a wide range of temperatures. 4.9. “Freshwater”: water with salinity lower than 0.5 psu (practical salinity units). 4.10. “Marine water”: Water with salinity higher than 30 psu. 4.11. “Non-indigenous species”: any species outside its native range, whether transported intentionally or accidentally by humans or transported through natural processes.

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4.12. “Recipient port”: port or location where the ballast water is discharged. 4.13. “Target species”: species identified by a Party that meet specific criteria indicating that they may impair or damage the environment, human health, property or resources and are defined for a specific port, State or biogeographic region.

5.

Risk Assessment Principles

5.1. Risk assessment is a logical process for assigning the likelihood and consequences of specific events, such as the entry, establishment, or spread of harmful aquatic organisms and pathogens. Risk assessments can be qualitative or quantitative, and can be a valuable decision aid if completed in a systematic and rigorous manner. 5.2. The following key principles define the nature and performance of risk assessment: 1. Effectiveness – That risk assessments accurately measures the risks to the extent necessary to achieve an appropriate level of protection. 2. Transparency – That the reasoning and evidence supporting the action recommended by risk assessments, and areas of uncertainty (and their possible consequences to those recommendations), are clearly documented and made available to decision-makers. 3. Consistency – That risk assessments achieve a uniform high level of performance, using a common process and methodology. 4. Comprehensiveness – That the full range of values, including economic, environmental, social and cultural, are considered when assessing risks and making recommendations. 5. Risk Management – That low risk scenarios may exist, but zero risk is not obtainable, and as such risk should be managed by determining the acceptable level of risk in each instance. 6. Precautionary – That risk assessments incorporate a level of precaution when making assumptions, and making recommendations, to account for uncertainty, unreliability, and inadequacy of information. The absence of, or uncertainty in, any information should therefore be considered an indicator of potential risk. 7. Science based – That risk assessments are based on the best available information that has been collected and analysed using scientific methods. 8. Continuous improvement – Any risk model should be periodically reviewed and updated to account for improved understanding. 5.3. In undertaking risk assessment when considering granting an exemption, the risk assessment principles should be carefully applied. The lack of full scientific certainty should be carefully considered in the decision making process. This

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is especially important under these Guidelines, as any decision to grant an exemption will allow for the discharge of ballast water that does not meet the standards of regulation D-1 or D-2.

6. 6.1.

Risk Assessment Methods General

6.1.1. There are three risk assessment methods outlined in these Guidelines for assessing the risks in relation to granting an exemption in accordance with regulation A-4 of the Convention: • Environmental matching risk assessment • Species’ biogeographical risk assessment • Species-specific risk assessment 6.1.2. Environmental matching risk assessment relies on comparing environmental conditions between locations, species’ biogeographical risk assessment compares the overlap of native and non-indigenous species to evaluate environmental similarity and to identify high risk invaders, while species-specific risk assessment evaluates the distribution and characteristics of identified target species. Dependent on the scope of the assessment being performed, the three approaches could be used either individually or in any combination, recognizing that each approach has its limitations. 6.1.3. Environment matching and species’ biogeographical risk assessment may be best suited to assessments between biogeographic regions. Species-specific risk assessment may be best suited to situations where the assessment can be conducted on a limited number of harmful species within a biogeographic region. 6.2.

Environmental matching risk assessment

6.2.1. Environmental matching risk assessments compare environmental conditions including temperature and salinity between donor and recipient regions. The degree of similarity between the locations provides an indication of the likelihood of survival and the establishment of any species transferred between those locations. 6.2.2. Since species are widely distributed in a region, and are rarely restricted to a single port the environmental conditions of the source region should be considered. 6.2.3. These regions are typically defined as biogeographic regions. Noting that all of the existing biogeographical schemes were derived for different purposes than proposed here, it is suggested that the Large Marine Ecosystems (LME)

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scheme (http://www.edc.uri.edu/lme) be used based on best available information at this time, with local and regional adaptation as necessary. It is recognized that the suggested biogeographical scheme may not be appropriate in certain circumstances and in this case other recognized biogeographical schemes may need to be considered1. 6.2.4. Environmental matching should therefore compare environmental conditions between the donor biogeographic region and the recipient port to determine the likelihood that any species found in the donor biogeographic region are able to survive in the recipient port in another biogeographic region. The environmental conditions that may be considered for environmental matching include salinity, temperature or other environmental conditions, such as nutrients or oxygen. 6.2.5. The difficulty in using environmental matching risk assessments is identifying the environmental conditions that are predictive of the ability of the harmful species to successfully establish and cause harm in the new location, and in determining whether the risk of ballast water discharge is sufficiently low to be acceptable. Environmental matching risk assessments have limited value where the differences between a donor biogeographic region and a recipient port are small as high similarity is likely to indicate high likelihood of successful establishment. 6.2.6. Environmental conditions should also be compared between the donor and recipient ports. Similarity in key environmental conditions between the two ports is a stronger indication that species entrained in ballast water in the donor port could survive when released into the waters of the recipient port. The environmental conditions that may be considered for environmental matching include salinity, temperature or other environmental conditions, such as nutrients or oxygen. 6.2.7. The data necessary to enable a risk assessment using environmental matching includes, but is not limited to: 1. Origin of the ballast water to be discharged in recipient port. 2. Biogeographic region of donor and recipient port(s). 3. The average and range of environmental conditions, in particular salinity and temperature. This information is used to determine the degree of environmental similarity between the donor and recipient environments. In many cases, it should be possible to use existing data for part or all of these environmental profiles.

1

Watling and Gerkin (http://marine.rutgers.edu/OBIS/index.html) based on Briggs (1953) and Springer (1982); IUCN bioregion system; Briggs (1953) and Ekman (1974; 1995); Longhurst provinces.

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6.2.8. The following should be considered in gathering data on the environmental conditions: 1. The seasonal variations in surface and bottom salinities and temperatures at the recipient port and the larger water body the port is contained within (e.g., estuary or bay). Surface and bottom values are needed to determine the full range of environmental conditions available for a potential invader (e.g., low salinity surface waters allowing the invasion of a freshwater species). Salinity and temperature depth profiles are not required if available data indicates the waters are well mixed over the entire year. 2. In recipient ports with strong tides or currents, the temporal variations in salinity should be determined over a tidal cycle. 3. In areas with seasonal or depth variations, the salinity should be determined on a seasonal and/or depth basis. 4. Any anthropogenic influences on freshwater flow that could temporarily or permanently alter the salinity regime of the recipient port and surrounding waters. 5. The seasonal temperature variation of coastal waters for the biogeographic region of the recipient port. Consideration should be given to both surface waters and to how temperature varies with depth. 6.2.9. It is recommended that the analysis of environmental conditions be followed by a consideration of the species known to be in the donor region that can tolerate extreme environmental differences. If present, a species-specific approach should be used to evaluate the risks associated with these species. Such species include: • species that utilize both fresh and marine environments to complete their life-cycle (including anadromous (e.g., Sea Lamprey) and catadromous (e.g., Chinese Mitten crab) species); • species with a tolerance to a wide range of temperatures (eurythermal species) or salinities (euryhaline species). 6.3.

Species’ biogeographical risk assessment

6.3.1. Species’ biogeographical risk assessment compares the biogeographical distributions of nonindigenous, cryptogenic, and harmful native species that presently exist in the donor and recipient ports and biogeographic regions. Overlapping species in the donor and recipient ports and regions are a direct indication that environmental conditions are sufficiently similar to allow a shared fauna and flora. The biogeographical analysis could also be used to identify high risk invaders. For example, native species in the donor biogeographic region that

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have successfully invaded other similar biogeographic regions but that are not found in the recipient biogeographic region could be considered high risk invaders for the recipient port or location. The larger the number of biogeographic regions that such species have invaded, the greater the potential that those species would be able to become established in the recipient port or biogeographic region if introduced by ballast water not meeting regulation B-3 or C-1. Another general indicator of risk would be if the donor biogeographic region is a major source of invaders to other areas. 6.3.2. The data necessary to enable a risk assessment using a species biogeographical approach includes but may not be limited to: 1. records of invasion in the donor and recipient biogeographic regions and ports; 2. records of native or non-indigenous species that could be transferred through ballast water in the donor biogeographic region that have invaded other biogeographic regions and the number and nature of biogeographic regions invaded; 3. records of native species in the donor region that have the potential to affect human health or result in substantial ecological or economic impacts after introduction in the recipient region through ballast water transfer. 6.3.3. The species’ biogeographical risk assessment could also be used to identify potential target species in the donor regions as indicated by native species with wide biogeographical or habitat distributions or which are known invaders in other biogeographic regions similar to that of the recipient port. 6.4.

Species-specific risk assessment

6.4.1. Species-specific risk assessments use information on life history and physiological tolerances to define a species’ physiological limits and thereby estimate its potential to survive or complete its life cycle in the recipient environment. That is, they compare individual species characteristics with the environmental conditions in the recipient port, to determine the likelihood of transfer and survival. 6.4.2. In order to undertake a species-specific risk assessment, species of concern that may impair or damage the environment, human health, property or resources need to be identified and selected. These are known as the target species. Target species should be selected for a specific port, State, or geographical region, and should be identified and agreed on in consultation with affected States. 6.4.3. To determine the species that are potentially harmful and invasive, parties should initially identify all species (including cryptogenic species) that are present in the donor port but not in the recipient port. Target species should then be selected based on criteria that identify the species that have the ability to

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invade and become harmful. The factors to consider when identifying target species include, but should not be limited to: • evidence of prior introduction; • demonstrated impacts on environment, economy, human health, property or resources; • strength and type of ecological interactions, e.g. ecological engineers; • current distribution within biogeographic region and in other biogeographic regions; and • relationship with ballast water as a vector. 6.4.4. Species-specific risk assessments should then be conducted on a list of target species, including actual or potentially harmful non-indigenous species (including cryptogenic species). As the number of species included in the assessment increases the number of low risk scenarios decreases. This is justified if the species assessments are accurate. The difficulty arises when the assessments are conservative due to lack of data. It should be recognized however, that the fewer the number of species analyzed, the greater the uncertainty in predicting the overall risk. The uncertainty associated with limiting the analysis to a small number of species should therefore be considered in assessing the overall risk of invasion. 6.4.5. It should be noted that there are limitations involved with using a target species approach. Although some data and information can be obtained to support decision making, identifying species that may impair or damage the environment, human health, property or resources is subjective and there will be a degree of uncertainty associated with the approach. For example, it is possible that species identified as harmful in some environments may not be harmful in others and vice versa. 6.4.6. If species-specific risk assessments are undertaken when the donor and recipient ports are within different biogeographic regions, Parties should identify and consider any uncertainties resulting from lack of data on the presence of potentially harmful species in the donor location. 6.4.7. The data necessary to enable a risk assessment using the species-specific approach includes, but is not limited to: 1. biogeographic region of donor and recipient port(s); 2. the presence of all non-indigenous species (including cryptogenic species) and native species in the donor port(s), port region and biogeographic region, not present in the recipient port, to allow identification of target species; 3. the presence of all target species in the recipient port(s), port region, and biogeographic region; 4. the difference between target species in the donor and recipient ports, port region, and biogeographic region;

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5. life history information on the target species and physiological tolerances, in particular salinity and temperature, of each life stage; and 6. habitat type required by the target species and availability of habitat type in the recipient port. 6.4.8. If a target species is already present in the recipient port, it may be reasonable to exclude that species from the overall risk assessment for that port unless that species is under active control. It is important to recognize, however, that even when a non-indigenous species or cryptogenic species has been reported from the donor and recipient ports, its continual introduction into the recipient ports could increase the probability that it will become established and/or achieve invasive population densities. 6.4.9. A risk assessment can take different forms. A simple assessment can be undertaken as outlined in paragraph 6.4.7 of whether a target species is present in the donor port but not in a recipient port and can be transported through ballast water. However, if considered appropriate, the likelihood of target species surviving each of the following stages may be assessed, including: 1. Uptake – probability of viable stages entering the vessel’s ballast water tanks during ballast water uptake operations; 2. Transfer – probability of survival during the voyage; 3. Discharge – probability of viable stages entering the recipient port through ballast water discharge on arrival; and 4. Population establishment – probability of the species establishing a selfmaintaining population in the recipient port. 6.4.10. To determine the likelihood of transfer and survival of a harmful species, the probability of each species surviving each of the stages contained in paragraph 6.4.9 may be assessed. To the extent possible the different life stages of the target species may also be assessed considering seasonal variations of life stage occurrence in donor port with seasonal conditions in the recipient port. The overall risk assessment for the discharge of unmanaged ballast water is therefore determined based on the assessment of all target species surviving all these stages. 6.4.11. In assessing whether a species will survive in the recipient port, physiological tolerances of all life stages need to be considered. 1. The ability of the adults to survive would be indicated by the physiological limits for both temperature and salinity that fall within the environmental ranges observed in the recipient port and larger water body. As a check, a comparison could be made with the native and/or introduced ranges of the species to determine if the predicted tolerances (based on lab or field studies) reflect actual distributions.

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2. For other life stages the physiological requirements of each stage in the life cycle should be compared against the environmental conditions during the season(s) of reproduction, noting that these stage(s) may live in different habitats to complete their life cycle (e.g., coastal pelagic larvae of estuarine benthic invertebrates). Data should be collected as appropriate. 3. Comparisons of known physiological tolerances for other conditions should be conducted if the data are available and relevant. 6.4.12. To evaluate whether the species-specific risk assessment approach is sufficiently robust to predict invaders, the approach could be used to estimate the probabilities of invasion for a suite of existing invaders within the recipient port. Failure to accurately predict existing invaders may indicate that the model under predicts the risk. 6.5.

Evaluation and decision-making

6.5.1. The port State granting exemptions shall, in both the evaluation and consultation processes, give special attention to regulation A-4.3 which states that any exemptions granted under this regulation shall not impair or damage the environment, human health, property or resources of adjacent or other States. Regulation A-4.3 also states that States that may be adversely affected shall be consulted, and Parties should refer to section 8 regarding consultation. 6.5.2. It is important for the transparency and consistency of the risk assessments to define a priori criteria to distinguish between unacceptable high risk scenarios and acceptable low risk scenarios where the risk of ballast water not meeting regulations B-3 and C-1 is unlikely to impair or damage the environment, human health, property or resources of the granting Party and of adjacent or other States. The specific criteria depend upon the risk assessment approach, as well as the uncertainty in the analysis. 6.5.3. For an environmental matching risk assessment: 1. A high-risk scenario could be indicated if the environmental conditions of the donor ports overlap the environmental conditions of the recipient region. 2. A low-risk scenario could be indicated if the environmental conditions of the donor port do not overlap the environmental conditions of the recipient region. 6.5.4.

For the species’ biogeographical risk assessment:

1. A high-risk could be indicated if the recipient port presently contains non-indigenous species whose native range includes the donor biogeographic region.

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2. A high-risk could be indicated if the donor and recipient ports share nonindigenous species whose source is from other biogeographic regions. 3. A moderate to high risk could be indicated if the recipient biogeographic region presently contains non-indigenous species whose native range includes the donor biogeographic region. 4. A moderate to high risk could be indicated if the donor biogeographic region is a major source for invaders for other biogeographic regions. 6.5.5. For a species-specific risk assessment, an assessment could be deemed high risk if it identifies at least one target species that satisfies all of the following: • • • •

likely to cause harm; present in the donor port or biogeographic region; likely to be transferred to the recipient port through ballast water; and likely to survive in the recipient port.

6.5.6. The overall probability of a successful invasion also depends in part on the number of organisms and the frequency with which they are introduced over the entire period of the exemption. Therefore, it is recommended that a risk assessment should consider estimates of at least the following four factors: 1. 2. 3. 4.

the total volume of water discharged the volume of water discharged in any event (voyage) the total number of discharge events the temporal distribution of discharge events.

6.5.7. In all cases, the level of uncertainty needs to be considered in evaluating the extent of risk. High levels of uncertainty in the biogeographical distributions and/or physiological tolerances of a target species may be sufficient in themselves to classify the risk as high. Additionally, the potential ecological impact of the target species should be considered in deciding the level of acceptable risk. The absence of, or uncertainty in, any information should not be considered a reason to grant an exemption to regulation B-3 or C-1. 6.5.8. Once the level of risk and the extent of uncertainty have been assessed, the result can be compared to the levels a Party(s) is willing to accept in order to determine whether an exemption can be granted. 6.5.9. Ships on a voyage(s) or route(s) that satisfy the requirements of regulation A-4.1 and that pass(es) the terms of acceptance in the risk assessment may be granted an exemption. 6.5.10. It is recommended that an independent peer review of the risk assessment method, data and assumptions be undertaken in order to ensure that a scientifically rigorous analysis has been conducted. The peer review should be undertaken by an independent third party with biological and risk assessment expertise.

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Procedures for Granting Exemptions

7.1. The purpose of this section is to provide guidance for Parties, Administrations and ships, engaged in the process of applying for, evaluating and/or granting exemptions in accordance with the provisions of regulation A-4. The appendix also identifies minimum information required for an exemption application. 7.2. Parties may undertake the risk assessment themselves in order to grant exemptions, or require the shipowner or operator to undertake the risk assessment. In any event the Party granting an exemption is responsible for evaluating the risk assessment, verifying the data and information used, and ensuring the risk assessment is conducted in a thorough and objective manner in accordance with the Guidelines. The recipient port State(s) should reject any application for exemption found not to be in accordance with these Guidelines, and should provide reasons as to why the application was not accepted. 7.3. Shipowners or operators wanting to seek an exemption should contact the relevant Parties to ascertain the risk assessment procedures to be undertaken and the information requirements of these procedures. 7.4. Where a Party has determined that the shipowner or operator should undertake the risk assessment, the Party should provide relevant information, including any application requirements, the risk assessment model to be used, any target species to be considered, data standards and any other required information. The shipowner or operator should follow these Guidelines and submit relevant information to the Party. 7.5. The port State shall ensure that, as required by regulation A-4.1.3, exemptions are only granted to ships that do not mix ballast water or sediments other than between the locations specified in the exemption. The port State should require evidence of the specific measures undertaken to ensure compliance with this regulation at the time the exemption is granted and over the duration of the exemption. Non-compliance during the period of exemption should result in prompt suspension or revocation of the exemption. 7.6. An exemption shall not be effective for more than 5 years from the date granted. The approval may contain seasonal and time-specific or other restrictions within the time of validity. 7.7. The result of the risk assessment should be stated as: 1. The voyage(s) or route(s) represent(s) an acceptable risk. The application for an exemption is granted. 2. The voyage(s) or route(s) may represent an unacceptable risk. Further consideration is required.

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3. The voyage(s) or route(s) represent(s) an unacceptable risk. The exemption from the ballast water management requirements of regulation B-3 or C-1 of the Convention is not granted.

8.

Consultation

8.1. In accordance with regulation A-4.3, Parties shall consult any State that may be adversely affected from any exemptions that may be granted. This should include adjacent States and any other States that may be affected, including those located in the same biogeographic region as the recipient port(s). States should exchange information and endeavour to resolve any identified concerns. Sufficient time must be given for affected States to consider proposed exemptions carefully. 8.2. Affected States should be provided with information on: the risk assessment method applied; the quality of the information used in the assessment; uncertainties in the model, model inputs and/or risk assessments; the rationale for the proposed exemption; and any terms or conditions applicable to the exemption. 8.3. The risk assessment should document the following elements as appropriate: • Criteria or reference for defining target species in the risk method. • The inventories of native, non-indigenous, and cryptogenic species used in the species’ biogeographical risk assessment. • Acceptance criteria applied in each step of the analysis. The risk assessment has to be put in a relevant context to enable determination of whether the risk level is acceptable or not. The only transparent verifiable way of doing this is to compare the actual risk level with clear predefined acceptance criteria in paragraphs 6.5.2 to 6.5.8. 8.4. In addition, the criteria or scientific methods used in defining and delimiting the biogeographic regions shall be presented if a scheme other than that recommended in paragraph 6.2.3 is used. 8.5. The invitation for comments should contain one of the two following options for the affected State’s response: 1. Supported without comments or conditions. 2. Supported with comments and/or conditions. 8.6. The deadline for comments from the affected State(s) should be specified in the invitation. If no response within the given time-limit is received, this may be regarded as “Accepted without comments or conditions”.

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8.7. If an affected State does not support the granting of the exemption(s), the appropriate reasons should be provided. Any conditions or limitations which an affected State believes to be necessary to enable them to support an exemption should be clearly identified.

9.

Communication of Information

9.1. Each Party to the Convention that has indicated it will grant exemptions should establish a point or points of contact for receipt of applications. Relevant contact details should be submitted to the Organization. In the absence of such information from a Party, the IMO MEPC contact point should be regarded as the contact point for the purpose of these Guidelines. 9.2. The Organization should circulate the list of contacts, and keep this list updated on a regular basis. 9.3. The decision of the recipient port State(s) shall be communicated to the shipowners or operators, the affected State(s), and the Organization as soon as possible before the effective date of the exemption. The decision should explain the basis for granting the exemption and how any comments from affected States were addressed and specify the voyage or voyages in which the exemption is granted, including the specified ports or location(s), the duration of the exemption and details of any conditions or limitations on the exemption. 9.4. Exemptions granted in accordance with regulation A-4 of the Convention, shall be effective after communication to the Organization and circulation of relevant information to Parties. 9.5. Any exemption granted shall also be recorded in the ballast water record book in accordance with regulation A-4.4. 9.6. Where exemptions have been granted for a specific voyage, any changes in voyage plans must be communicated to the Party that has granted the exemption prior to undertaking the voyage or prior to discharge of ballast water.

10.

Review of Risk Assessment and Withdrawal of Exemptions

10.1. It is recommended that information used in the risk assessment be reviewed regularly as data and assumptions used in the assessment can become outdated. 10.2. It is recommended that an intermediate review be undertaken within 12 months but in any circumstances no later than 36 months after permission is granted. A recipient port State may require several reviews to be taken during the period the exemption is granted for, but more frequent than annual reviews generally should not be required.

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10.3. Renewal of an exemption following the initial 60 months must not be granted without a thorough review of the risk assessment, consultation with affected States, and notice of the decision to the Organization under regulation A-4.2. 10.4. An exemption granted under regulation A-4 of the Convention may need to be withdrawn where the actual risk associated with a voyage has increased substantially since the risk assessment was conducted. This would include emergency situations such as outbreaks, incursions, infestations, or proliferations of populations of harmful aquatic organisms and pathogens (e.g., harmful algal blooms) which are likely to be taken up in ballast water (regulation C-2 of the Convention). 10.5. When a port State notifies mariners of areas under its jurisdiction where ships should not uptake ballast water due to an emergency or other high risk situation, all exemptions should be withdrawn from ships that take up ballast water in the defined area. In such circumstances the shipowners or operators should be notified of the decision to withdraw the exemption as soon as possible. 10.6. Guidelines for additional measures regarding ballast water management including emergency situations (G13) adopted by resolution MEPC.161(56) provide guidance to rapidly identify appropriate additional measures whenever emergency situations occur in relation to ballast water operations.

11.

Technical Assistance, Co-operation and Regional Co-operation

11.1. Article 13 of the Convention provides that Parties undertake, directly or through the Organization and other international bodies, to provide support for those Parties which request technical assistance, that Parties undertake to co- operate and that Parties shall endeavour to enhance regional co-operation. 11.2. With regard to these risk assessment Guidelines, assistance should include provision of data and information required to undertake a risk assessment, technical assistance regarding the methods for undertaking risk assessment and acceptance criteria.

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Appendix Application to Port State An application for exemption to the port State should as a minimum contain information on the points listed below.

1.

General Information • Period for which an application is sought; from month and year to month and year. • Why an exemption under regulation A-4 is sought.

2.

Ship’s Information • • • • • • •

Ship name IMO number Port of registry Gross Tonnage Owner Call sign Ballast water management option usually undertaken by ship, including ballast water treatment technology, if installed • A copy of the Ship’s Ballast Water Management Plan should be submitted • The Administration may also require ballast water and sediment management history for a determined period.

3.

Route Information • Route of application, given as donor port(s) and recipient port for ballast water discharge. • If single voyage: Date and time of departure and arrival. • If multiple voyages: Voyage frequency, regularity and estimated amount of ballast water discharged during the exemption period. Estimated time and dates for departures and arrivals. • Any voyages the ship plans to take to ports other than the specified ports during the duration of the exemption. • If multiple voyages, the estimated total number of voyages and the amount of ballast water discharged under the duration of the exemption.

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Resolution MEPC.125(53) Adopted on 22 July 2005 Guidelines for Approval of Ballast Water Management Systems (G8) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation D-3 of the Annex to the Ballast Water Management Convention provides that Ballast Water Management Systems used to comply with this Convention must be approved by the Administration, taking into account Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invites the Organization to develop these Guidelines as a matter of urgency. Having Considered the draft Guidelines for Approval of Ballast Water Management Systems developed by the Ballast Water Working Group. 1. 2. 3.

ADOPTS the Guidelines for approval of Ballast Water Management Systems, as set out in the Annex to this resolution; INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and AGREES to keep the Guidelines under review.

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Guidelines for Approval of Ballast Water Management Systems (G8) Contents 1. Introduction General Goal and purpose Applicability Summary of requirements 2. Background 3. Definitions 4. Technical Specifications Ballast Water Management Systems Ballast Water Treatment Equipment Control and Monitoring Equipment 5. Land-based Testing Requirements for Approval of Ballast Water Management Systems Ballast Water Treatment Equipment scaling 6. Typical Document Requirements for the Plan Approval Process 7. Approval and Certification Procedures 8. Installation Requirements Sampling facilities 9. Installation Survey and Commissioning Procedures Annex Part 1 – Part 2 –

Specifications for Pre-test Evaluation of System Documentation Test and Performance Specifications For Approval of Ballast Water Management Systems Part 3 – Specification for Environmental Testing for Approval of Ballast Water Management Systems Part 4 – Sample Analysis Methods for the Determination of Biological Constituents in Ballast Water Appendix – Type Approval Certificate of Ballast Water Management System

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Guidelines for Approval of Ballast Water Management Systems (G8) 1.

Introduction

General 1.1. These Guidelines for Approval of Ballast Water Management Systems are aimed primarily at Administrations, or their designated bodies, in order to assess whether ballast water treatment systems meet the standard as set out in Regulation D-2 of the “International Convention for the Control and Management of Ships’ Ballast Water and Sediments,” hereafter referred to as the “Convention”. In addition, this document can be used as guidance for manufacturers and ship owners on the evaluation procedure that equipment will undergo and the requirements placed on Ballast Water Management Systems. These Guidelines should be applied in an objective, consistent and transparent way and their application should be evaluated periodically by the Organization. 1.2. Articles and Regulations referred to in these Guidelines are those contained in the Convention. 1.3. The Guidelines include general requirements concerning design and construction, technical procedures for evaluation and the procedure for issuance of the Type Approval Certificate of the Ballast Water Management System. 1.4. These Guidelines are intended to fit within an overall framework for evaluating the performance of Systems that includes the experimental shipboard evaluation of prototype Systems under the provisions of Regulation D-4, approval of Ballast Water Management Systems and associated systems that comply fully with the requirements of the Convention, and port State control sampling for compliance under the provisions of Article 9 of the Convention. 1.5. The requirements of Regulation D-3 stipulate that Ballast Water Management Systems used to comply with the Convention must be approved by the Administration, taking into account these Guidelines. In addition to such Ballast Water Management System approval, as set forth in Regulation A-2 and Regulation B-3, the Convention requires that discharges of ballast water from ships must meet the Regulation D-2 performance standard on an on-going basis. Approval of a system is intended to screen-out management systems that would fail to meet the standards prescribed in Regulation D-2 of the Convention. Approval of a system, however, does not ensure that a given system will work on all vessels or in all situations. To satisfy the Convention, a discharge must comply with the D-2 standard throughout the life of the vessel.

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1.6. The operation of Ballast Water Management Systems should not impair the health and safety of the ship or personnel, nor should it present any unacceptable harm to the environment or to public health. 1.7. Ballast Water Management Systems are required to meet the standards of Regulation D-2 and the conditions established in Regulation D-3 of the Convention. These Guidelines serve to evaluate the safety, environmental acceptability, practicability and biological effectiveness of the systems designed to meet these standards and conditions. The cost effectiveness of type-approved equipment will be used in determining the need for revisions of these Guidelines. 1.8. These Guidelines contain recommendations regarding the design, installation, performance, testing and approval of Ballast Water Management Systems. 1.9. To achieve consistency in its application, the approval procedure requires that a uniform manner of testing, analysis of samples, and evaluation of results is developed and applied. These Guidelines should be applied in an objective, consistent, and transparent way; and their suitability should be periodically evaluated and revised as appropriate by the Organization. New versions of these Guidelines should be duly circulated by the Organization. Due consideration should be given to the practicability of the Ballast Water Management Systems. .

Goal and purpose 1.10. The goal of these Guidelines is to ensure uniform and proper application of the standards contained in the Convention. As such the Guidelines are to be updated as the state of knowledge and technology may require. 1.11. The purpose of these Guidelines is to: 1. define test and performance requirements for the approval of Ballast Water Management Systems; 2. assist Administrations in determining appropriate design, construction and operational parameters necessary for the approval of Ballast Water Management Systems; 3. provide a uniform interpretation and application of the requirements of Regulation D-3; 4. provide guidance to equipment manufacturers and ship owners in determining the suitability of equipment to meet the requirements of the Convention; and 5. assure that Ballast Water Management Systems approved by Administrations are capable of achieving the standard of Regulation D-2 in land-based and shipboard evaluations.

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Applicability 1.12. These Guidelines apply to the approval of Ballast Water Management Systems in accordance with the Convention. 1.13. These Guidelines apply to Ballast Water Management Systems intended for installation on board all ships required to comply with Regulation D-2. Summary of requirements 1.14. The land-based and shipboard approval requirements for Ballast Water Management Systems specified in these Guidelines are summarized below. 1.15. The manufacturer of the equipment should submit information regarding the design, construction, operation and functioning of the Ballast Water Management System in accordance with Part 1 of the annex. This information should be the basis for a first evaluation of suitability by the Administration. 1.16. The Ballast Water Management System should be tested for Type Approval in accordance with the procedures described in Parts 2 and 3 of the Annex. 1.17. Successful fulfilment of the requirements and procedures for Type Approval as outlined in Parts 2 and 3 of the Annex should lead to the issuance of a Type Approval Certificate by the Administration. 1.18. When a Type Approved Ballast Water Management System is installed on board, an installation survey according to section 8 should be carried out.

2.

Background

2.1. The requirements of the Convention relating to approval of Ballast Water Management Systems used by ships are set out in Regulation D-3. 2.2. Regulation D-2 stipulates that ships meeting the requirements of the Convention by meeting the ballast water performance standard must discharge: 1. less than 10 viable organisms per cubic metre greater than or equal to 50 micrometres in minimum dimension; 2. less than 10 viable organisms per millilitre less than 50 micrometres in minimum dimension and greater than or equal to 10 micrometres in minimum dimension; and 3. less than the following concentrations of indicator microbes, as a human health standard: 1. Toxicogenic Vibrio cholerae (serotypes O1 and O139) with less than 1 Colony Forming Unit (cfu) per 100 millilitres or less than 1 cfu per 1 gramme (wet weight) of zooplankton samples; 2. Escherichia coli less than 250 cfu per 100 millilitres; and 3. Intestinal Enterococci less than 100 cfu per 100 millilitres.

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Definitions

For the purpose of these Guidelines: 3.1. Active Substance means a substance or organism, including a virus or a fungus that has a general or specific action on or against Harmful Aquatic Organisms and Pathogens. 3.2. Ballast Water Management System (BWMS) means any system which processes ballast water such that it meets or exceeds the Ballast Water Performance Standard in Regulation D-2. The BWMS includes Ballast Water Treatment Equipment, all associated Control Equipment, Monitoring Equipment and Sampling Facilities. 3.3. The Ballast Water Management Plan is the document referred to in Regulation B-1 of the Convention describing the ballast water management process and procedures implemented on board individual ships. 3.4. Ballast Water Treatment Equipment means equipment which mechanically, physically, chemically, or biologically 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. Ballast Water Treatment Equipment may operate at the uptake or discharge of ballast water, during the voyage, or at a combination of these events. 3.5. Control Equipment refers to the installed equipment required to operate and control the Ballast Water Treatment Equipment. 3.6. The Convention means the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 3.7. Monitoring Equipment refers to the equipment installed for the assessment of the effective operation of the Ballast Water Treatment Equipment. 3.8. Sampling Facilities refers to the means provided for sampling treated or untreated ballast water as needed in these Guidelines and in the “Guidelines for Ballast Water Sampling” developed by the Organization. 3.9. Shipboard Testing is a full-scale test of a complete BWMS carried out on board a ship according to Part 2 of the annex to these Guidelines, to confirm that the system meets the standards set by Regulation D-2 of the Convention. 3.10. Treatment Rated Capacity (TRC) is the maximum continuous capacity expressed in cubic metres per hour for which the BWMS is type approved. It states the amount of ballast water that can be treated per unit time by the BWMS to meet the standard in Regulation D-2 of the Convention. 3.11. Land-based Testing is a test of the BWMS carried out in a laboratory, equipment factory or pilot plant including a moored test barge or test ship, according to Parts 2 and 3 of the Annex to these Guidelines, to confirm that the BWMS meets the standards set by Regulation D-2 of the Convention. 3.12. Viable Organisms are organisms and any life stages thereof that are living.

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4. Technical Specifications 4.1. This section details general technical requirements which a BWMS should meet in order to obtain Type Approval. Ballast Water Management Systems 4.2. The BWMS should not contain or use any substance of a dangerous nature, unless adequate arrangements for storage, application, mitigation, and safe handling, acceptable to the Administration, are provided to mitigate any hazards introduced thereby. 4.3. In case of any failure compromising the proper operation of the BWMS, audible and visual alarm signals should be given in all stations from which ballast water operations are controlled. 4.4. All working parts of the BWMS that are liable to wear or to be damaged should be easily accessible for maintenance. The routine maintenance of the BWMS and troubleshooting procedures should be clearly defined by the manufacturer in the Operating and Maintenance Manual. All maintenance and repairs should be recorded. 4.5. To avoid interference with the BWMS, the following items should be included: 1. every access of the BWMS beyond the essential requirements of paragraph 4.4, should require the breaking of a seal; 2. if applicable, the BWMS should be so constructed that a visual alarm is always activated whenever the BWMS is in operation for purposes of cleaning, calibration, or repair, and these events should be recorded by the Control Equipment; 3. in the event of an emergency, suitable by-passes or overrides to protect the safety of the ship and personnel should be installed; and 4. any bypass of the BWMS should activate an alarm, and the bypass event should be recorded by the Control Equipment. 4.6. Facilities should be provided for checking, at the renewal surveys and according to the manufacturer’s instructions, the performance of the BWMS components that take measurements. A calibration certificate certifying the date of the last calibration check, should be retained on board for inspection purposes. Only the manufacturer or persons authorized by the manufacturer should perform the accuracy checks. Ballast Water Treatment Equipment 4.7. The Ballast Water Treatment Equipment should be robust and suitable for working in the shipboard environment, should be of a design and construction

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adequate for the service for which it is intended and should be so installed and protected as to reduce to a minimum any danger to persons on board, due regard being paid to hot surfaces and other hazards. The design should have regard to materials used in construction, the purpose for which the equipment is intended, the working conditions to which it will be subjected and the environmental conditions on board. 4.8. The Ballast Water Treatment Equipment should be provided with simple and effective means for its operation and control. It should be provided with a control system that should be such that the services needed for the proper operation of the Ballast Water Treatment Equipment are ensured through the necessary automatic arrangements. 4.9. The Ballast Water Treatment Equipment should, if intended to be fitted in locations where flammable atmospheres may be present, comply with the relevant safety regulations for such spaces. Any electrical equipment that is part of the BWMS should be based in a non-hazardous area, or should be certified by the Administration as safe for use in a hazardous area. Any moving parts, which are fitted in hazardous areas, should be arranged so as to avoid the formation of static electricity. Control and Monitoring Equipment 4.10. The BWMS should incorporate Control Equipment that automatically monitors and adjusts necessary treatment dosages or intensities or other aspects of the BWMS of the vessel, which while not directly effecting treatment are nonetheless required for proper administration of the necessary treatment. 4.11. The Control Equipment should incorporate a continuous self-monitoring function during the period in which the BWMS is in operation. 4.12. The Monitoring Equipment should record the proper functioning or failure of the BWMS. 4.13. To facilitate compliance with Regulation B-2, the Control Equipment should also be able to store data for at least 24 months, and should be able to display or print a record for official inspections as required. In the event the Control Equipment is replaced, means should be provided to ensure the data recorded prior to replacement remains available on board for 24 months. 4.14. It is recommended that simple means be provided aboard ship to check on drift by measuring devices that are part of the Control Equipment, repeatability of the Control Equipment devices, and the ability to re-zero the Control Equipment meters.

5. Typical Document Requirements for the Plan Approval Process 5.1. The documentation submitted for approval should include at least the following:

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1. a description of the BWMS. The description should include a diagrammatic drawing of the typical or required pumping and piping arrangements, and sampling facilities, identifying the operational outlets for treated ballast water and any waste streams as appropriate and necessary. Special considerations may have to be given to installations intended for ships that have unusual pumping and piping arrangements; 2. equipment manuals, supplied by manufacturers, containing details of the major components of the BWMS and their operation and maintenance; 3. a generic operations and technical manual for the complete BWMS. This manual should cover the arrangements, the operation and maintenance of the BWMS as a whole and should specifically describe parts of the BWMS which are not covered by the manufacturer’s equipment manuals; 4. the operations section of the manual including normal operational procedures and procedures for the discharge of untreated water in the event of malfunction of the Ballast Water Treatment Equipment, maintenance procedures, and emergency action necessary for securing the ship; 5. methods for the conditioning of treated water prior to discharge should be provided, and assessment of discharged water should include a description of the effect of treatment on the ship’s ballast water, in particular the nature of any treatment residuals and by-products and the water’s suitability for discharge into coastal waters. A description should also be provided of any actions necessary to monitor, and if necessary “condition”, treated water prior to discharge in order that it meets applicable water quality regulations; 6. a description of BWMS side streams (e.g., filtered material, centrifugal concentrate, waste or residual chemicals) including a description of the actions planned to properly manage and dispose of such wastes; 7. a technical section of the manual including adequate information (description and diagrammatic drawings of the monitoring system and electrical/electronic wiring diagrams) to enable faultfinding. This section should include instructions for keeping a maintenance record; 8. a technical installation specification defining, inter alia, requirements for the location and mounting of components, arrangements for maintaining the integrity of the boundary between safe and hazardous spaces and the arrangement of the sample piping; and 9. a recommended test and checkout procedure specific to the BWMS. This procedure should specify all the checks to be carried out in a functional test by the installation contractor and should provide guidance for the surveyor when carrying out the on-board survey of the BWMS and confirming the installation reflects the manufacturer’s specific installation criteria.

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Approval and Certification Procedures

6.1. A BWMS which in every respect fulfils the requirements of these Guidelines may be approved by the Administration for fitting on board ships. The approval should take the form of a Type Approval Certificate of BWMS, specifying the main particulars of the apparatus and any limiting conditions on its usage necessary to ensure its proper performance. Such certificate should be issued in the format shown in Appendix 1. A copy of the Type Approval Certificate of BWMS should be carried on board ships fitted with such equipment at all times. 6.2. A Type Approval Certificate of BWMS should be issued for the specific application for which the BWMS is approved, e.g., for specific ballast water capacities, flow rates, salinity or temperature regimes, or other limiting conditions or circumstances as appropriate. 6.3. A Type Approval Certificate of BWMS should be issued by the Administration based on satisfactory compliance with all the test requirements described in Parts 2, 3 and 4 of the Annex. 6.4. An Administration may issue a Type Approval Certificate of BWMS based on separate testing or on testing already carried out under supervision by another Administration. 6.5. The Type Approval Certificate of BWMS should: 1. identify the type and model of the BWMS to which it applies and identify equipment assembly drawings, duly dated; 2. identify pertinent drawings bearing model specification numbers or equivalent identification details; 3. include a reference to the full performance test protocol on which it is based, and be accompanied by a copy of the original test results; 4. identify if it was issued by an Administration based on a Type Approval Certificate previously issued by another Administration. Such a certificate should identify the Administration that conducted the tests on the BWMS and a copy of the original test results should be attached to the Type Approval Certificate of BWMS. 6.6. An approved BWMS may be Type Approved by other Administrations for use on their vessels. Should equipment approved by one country fail Type Approval in another country, then the two countries concerned should consult one another with a view to reaching a mutually acceptable agreement.

7.

Installation Requirements

Sampling facilities 7.1 The BWMS should be provided with sampling facilities so arranged in order to collect representative samples of the ship’s ballast water.

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7.2. Sampling facilities should in any case be located on the BWMS intake, before the discharging points, and any other points necessary for sampling to ascertain the proper functioning of the equipment as may be determined by the Administration.

8.

Installation Survey and Commissioning Procedures

8.1. Verify that the following documentation is on board in a suitable format: 1. a copy of the Type Approval Certificate of BWMS; 2. a statement from the Administration, or from a laboratory authorized by the Administration, to confirm that the electrical and electronic components of the BWMS have been type-tested in accordance with the specifications for environmental testing contained in Part 3 of the Annex; 3. equipment manuals for major components of the BWMS; 4. an operations and technical manual for the BWMS specific to the ship and approved by the Administration, containing a technical description of the BWMS, operational and maintenance procedures, and backup procedures in case of equipment malfunction; 5. installation specifications; 6. installation commissioning procedures; and 7. initial calibration procedures. 8.2. Verify that: 1. the BWMS installation has been carried out in accordance with the technical installation specification referred to in paragraph 8.1.5; 2. the BWMS is in conformity with the Type Approval Certificate of BWMS issued by the Administration or its representative; 3. the installation of the complete BWMS has been carried out in accordance with the manufacturer’s equipment specification; 4. any operational inlets and outlets are located in the positions indicated on the drawing of the pumping and piping arrangements; 5. the workmanship of the installation is satisfactory and, in particular, that any bulkhead penetrations or penetrations of the ballast system piping are to the relevant approved standards; and 6. the Control and Monitoring Equipment operates correctly.

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This annex provides detailed test and performance specifications for a BWMS and contains: PART 1 – Specifications for Pre-Test Evaluation of System Documentation PART 2 – Test and Performance Specifications for Approval of Ballast Water Management Systems PART 3 – Specification for Environmental Testing for Approval of Ballast Water Management Systems PART 4 – Sample Analysis Methods for the Determination of Biological Constituents in Ballast Water

PART 1 – Specifications for Pre-Test Evaluation of System Documentation 1.1. Adequate documentation should be prepared and submitted to the Administration as part of the approval process well in advance of the intended approval testing of a BWMS. Approval of the submitted documentation should be a pre-requisite for carrying out independent approval tests. General 1.2. Documentation should be provided by the manufacturer/developer for two primary purposes: evaluating the readiness of the BWMS for undergoing approval testing, and evaluating the manufacturer’s proposed test requirements and procedures for the test. Readiness evaluation 1.3. The readiness evaluation should examine the design and construction of the BWMS to determine whether there are any fundamental problems that might constrain the ability of the BWMS to manage ballast water as proposed by the manufacturer, or to operate safely, on board ships. The latter concern should, in addition to basic issues related to the health and safety of the crew, interactions with the ship’s systems and cargo, and potential adverse environmental effects, also consider the potential for longer term impacts to the safety of the crew and vessel through effects of the BWMS on corrosion in the ballast system and other spaces. 1.4. The evaluation should also address the degree, if any, to which the manufacturer’s/developer’s efforts during the research and development phase tested the performance and reliability of the system under operational shipboard conditions and should include a report of the results of those tests.

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Test proposal evaluation 1.5. Evaluation of the test proposal should examine all of the manufacturer’s stated requirements and procedures for installing, calibrating, and operating (including maintenance requirements) the BWMS during a test. This evaluation should help the test organization to identify any potential health or environmental safety problems, unusual operating requirements (labour or materials), and any issues related to the disposal of treatment by-products or waste streams. Documentation 1.6.

The documentation to be submitted should include at least the following:

l. Technical Manual – The technical description should include: – – – –

product specification; process description; operational instructions; details (including Certificates where appropriate) of the major components and materials used; – technical installation specifications in accordance with manufacturers’ specific installation criteria; – system limitations; and – routine maintenance and trouble-shooting procedures; 2. BWMS Drawings – Diagrammatic drawings of the pumping and piping arrangements, electrical/electronic wiring diagrams, which should include reference to any waste streams and sampling points; 3. Link to the Ballast Water Management Plan – Information regarding the characteristics and arrangements in which the equipment is to be installed as well as the scope of the ships (sizes, types and operation) for which the equipment is intended. This information can later form the link between the equipment and the ship’s Ballast Water Management Plan; and 4. Environmental and Public Health Impacts – Potential hazards for the environment should be identified and documented based on environmental studies performed to the extent necessary to assure that no harmful effects are to be expected. In the case of Ballast Water Management Systems that make use of Active Substances or Preparations containing one or more Active Substances the procedure described in the “Procedure for the Approval of Ballast Water Management Systems that make use of Active Substances” should be followed. The equipment must then ensure that dosage of the Active Substance and the maximum allowable discharge concentration are kept under the approved criteria at all times.

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1.7. The documentation may include specific information relevant to the test set-up to be used for land-based testing according to these Guidelines. Such information should include the sampling needed to ensure proper functioning and any other relevant information needed to ensure proper evaluation of the efficacy and effects of the equipment. The information provided should also address general compliance with applicable environment, health and safety standards during the Type Approval procedure.

PART 2 – Test and Performance Specifications for Approval of Ballast Water Management Systems The Administration decides the sequence of land-based and shipboard testing. 2.1.

Quality Assurance and Quality Control Procedures

2.1.1. The testing body performing the tests should have implemented appropriate quality control measures in accordance with recognized international standards acceptable to the Administration. 2.1.2. The approval testing process should contain a rigorous quality control/ quality assurance program, consisting of: 1. Both a Quality Management Plan (QMP) and a Quality Assurance Project Plan (QAPP). Guidance on preparation of these plans, along with other guidance documents and other general quality control information are available from appropriate international organizations1. 2. The QMP addresses the quality control management structure and policies of the testing body (including subcontractors and outside laboratories). 3. The QAPP is a project specific technical document reflecting the specifics of the BWMS to be tested, the test facility, and other conditions affecting the actual design and implementation of the required experiments. 2.2.

Shipboard tests

2.2.1.

A shipboard test cycle includes:

1. the uptake of ballast water of the ship; 2. the storage of ballast water on the ship; 3. treatment of the ballast water in accordance with paragraph 2.2.2.3 by the BWMS, except in control tanks; and 4. the discharge of ballast water from the ship. 1

Such as ISO/IEC 17025.

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Success criteria for shipboard testing 2.2.2. In evaluating the performance of BWMS installation(s) on a ship or ships, the following information and results should be supplied to the satisfaction of the Administration: 1. Test plan to be provided prior to testing. 2. Documentation that the BWMS is of a capacity within the range of the Treatment Rated Capacity for which it is intended. 3. The amount of ballast water tested in the test cycle onboard should be consistent with the normal ballast operations of the ship and the BWMS should be operated at the Treatment Rated Capacity for which it is intended to be approved. 4. Documentation of the results of three consecutive, valid test cycles showing discharge of treated ballast water in compliance with Regulation D-2. 5. Valid tests are indicated by uptake water, for both the control tank and ballast water to be treated, with viable organism concentration exceeding 10 times the values of Regulation D-2.1 and control tank viable organism concentration exceeding the values of Regulation D-2.1 on discharge. 6. Sampling regime: 1. For the control tank: 1. Three replicate samples of influent water, collected over the period of uptake (e.g. beginning, middle, end). 2. Three replicate samples of discharge control water, collected over the period of discharge (e.g. beginning, middle, end). 2. For treated ballast water: 1. Three replicate samples of discharge treated water collected at each of three times during the period of discharge (e.g. 3 × beginning, 3 × middle, 3 × end). 3. Sample sizes are: 1. For the enumeration of organisms greater than or equal to 50 micrometres or more in minimum dimension, samples of at least one cubic metre should be collected. If samples are concentrated for enumeration the samples should be concentrated using a sieve no greater than 50 micrometres mesh in diagonal dimension.

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2. For the enumeration of organisms greater than or equal to 10 micrometres and less than 50 micrometres in minimum dimension, samples of at least one litre should be collected. If samples are concentrated for enumeration the samples should be concentrated using a sieve no greater than 10 micrometres mesh in diagonal dimension. 3. For the evaluation of bacteria a sample of at least 500 millilitres should be taken from the influent and treated water. 7. The test cycles including invalid and unsuccessful test cycles are to span a trial period of not less than six months. 8. The applicant is requested to perform three consecutive test cycles that comply with Regulation D-2 and which are valid in accordance with paragraph 2.2.2.5. Any invalid test cycle does not affect the consecutive sequence. 9. The source water for test cycles shall be characterized by measurement of salinity, temperature, particulate organic carbon and total suspended solids. 10. For system operation throughout the trial period, the following information should also be provided: 1. documentation of all ballast water operations including volumes and locations of uptake and discharge, and if heavy weather was encountered and where; 2. the possible reasons for the occurrence of an unsuccessful test cycle, or a test cycle discharge failing the D-2 Standard should be investigated and reported to the Administration; 3. documentation of scheduled maintenance performed on the system; 4. documentation of unscheduled maintenance and repair performed on the system; 5. documentation of engineering parameters monitored as appropriate to the specific system; 6. documentation of functioning of the control and monitoring equipment. 2.3. 2.3.1.

Land-based testing The test set-up including the Ballast Water Treatment Equipment should operate as described in the provided documentation during at least 5 valid replicate test cycles. Each test cycle should take place over a period of at least 5 days.

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A land-based test cycle should include: the uptake of ballast water by pumping; the storage of ballast water for at least 5 days; treatment of ballast water within the BWMS, except in control tanks; and the discharge of ballast water by pumping.

2.3.3. Testing should occur using different water conditions sequentially as provided for in paragraphs 2.3.16 and 2.3.17. 2.3.4. The BWMS should be tested at its rated capacity or as given in paragraphs 2.3.12 to 2.3.14 of Part 2 of the annex to these Guidelines for each test cycle. The equipment should function to specifications during this test. 2.3.5. The analysis of treated water discharge from each test cycle should be used to determine that the average of discharge samples does not exceed the concentrations of Regulation D-2 of the Convention. Land-based testing objectives, limitations and criteria for evaluation 2.3.6. The land-based testing serves to determine the biological efficacy of the BWMS under consideration for Type Approval. The approval testing aims to ensure replicability and comparability to other treatment equipment. 2.3.7. Any limitations imposed by the Ballast Water Management System on the testing procedure described here should be duly noted and evaluated by the Administration. Land-based set-up 2.3.8. The test set-up for approval tests should be representative of the characteristics and arrangements of the types of ships in which the equipment is intended to be installed. The test set-up should therefore include at least the following: 1. the complete BWMS to be tested; 2. piping and pumping arrangements; 3. the storage tank that simulates a ballast tank, constructed such that the water in the tank must be completely shielded from light. 2.3.9.

The control and treated simulated ballast tanks should each include:

1. a minimum capacity of 200 m3; 2. normal internal structures, including lightening and drainage holes; 3. standard industry practices for design, construction and surface coatings for ships; and 4. the minimum modifications required for structural integrity on land.

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2.3.10. The test set-up should be pressure-washed with tap water, dried and swept to remove loose debris, organisms and other matter before starting testing procedures, and between test cycles. 2.3.11. The test set-up will include facilities to allow sampling as described in paragraphs 2.3.25 and 2.3.26 and provisions to supply influents to the system, as specified in paragraph 2.3.18 and/or 2.3.19. The installation arrangements must conform in each case with those specified and approved under the procedure outlined in section 7 of the main body to these Guidelines. Ballast Water Treatment Equipment scaling 2.3.12. In-line treatment equipment may be downsized for land-based testing, but only when the following criteria are taken into account: 1. equipment with a TRC equal to or smaller than 200 m3/h should not be downscaled; 2. equipment with a TRC larger than 200 m3/h but smaller than 1000 m3/h may be downscaled to a maximum of 1:5 scale, but may not be smaller than 200 m3/h; and 3. equipment with a TRC equal to, or larger than, 1000 m3/h may be downscaled to a maximum of 1:100 scale, but may not be smaller than 200 m3/h. 2.3.13. The manufacturer of the equipment should demonstrate by using mathematical modelling and/or calculations, that any downscaling will not affect the ultimate functioning and effectiveness on board a ship of the type and size for which the equipment will be certified. 2.3.14. In-tank treatment equipment should be tested on a scale that allows verification of full scale effectiveness. The suitability of the test set-up should be evaluated by the manufacturer and approved by the Administration. 2.3.15. Larger scaling may be applied and lower flow rates used than provided for in 5.1, if the manufacturer can provide evidence from full-scale shipboard testing and in accordance with 5.2 that scaling and flow rates will not adversely affect the ability of the results to predict full-scale compliance with the standard. Land-based test design-inlet and outlet criteria 2.3.16. For any given set of test cycles (5 replicates is considered a set) a salinity range should be chosen. Given the salinity, the test water used in the test set up described above should have dissolved and particulate content in one of the following combinations:

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Salinity > 32 PSU

3 – 32 PSU

< 3 PSU

Dissolved Organic Carbon (DOC)

> 1 mg/l

> 5 mg/l

> 5 mg/l

Particulate Organic Carbon (POC)

> 1 mg/l

> 5 mg/l

> 5 mg/l

Total Suspended Solids (TSS)

> 1 mg/l

> 50 mg/l

> 50 mg/l

2.3.17. At least two sets of tests cycles should be conducted, each with a different salinity range and associated dissolved and particulate content as prescribed in paragraph 2.3.12. Tests under adjacent salinity ranges in the above table should be separated by at least 10 PSU2. 2.3.18. Test organisms may be either naturally occurring in the test water, or cultured species that may be added to the test water. The organism concentration should comply with paragraph 2.3.19 below. 2.3.19. The influent water should include: 1. test organisms of greater than or equal to 50 micrometres or more in minimum dimension should be present in a total density of preferably 106 but not less than 105 individuals per cubic metre, and should consist of at least 5 species from at least 3 different phyla/divisions; 2. test organisms greater than or equal to 10 micrometres and less than 50 micrometres in minimum dimension should be present in a total density of preferably 104 but not less than 103 individuals per millilitre, and should consist of at least 5 species from at least 3 different phyla/divisions; 3. heterotrophic bacteria should be present in a density of at least 104 living bacteria per millilitre; and 4. the variety of organisms in the test water should be documented according to the size classes mentioned above regardless if natural organism assemblages or cultured organisms were used to meet the density and organism variety requirements. 2

For example, if one set of test cycles is carried out at >32 PSU and a second set at 3–32 PSU, the test cycle in the 3–32 PSU range needs to be at least 10 PSU less than the lowest salinity used in the test cycle in the >32 PSU range.

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2.3.20. The following bacteria do not need to be added to the influent water, but should be measured at the influent and at the time of discharge: 1. 2. 3. 4.

Coliform; Enterococcus group; Vibrio cholerae; and Heterotrophic bacteria.

2.3.21. If cultured test organisms are used, then it should be ensured that local applicable quarantine regulations are taken into account during culturing and discharge. Land-based monitoring and sampling 2.3.22. Change of numbers of test organisms by treatment and during storage in the simulated ballast tank should be measured using methods described in Part 4 of the Annex, paragraphs 4.5 to 4.7. 2.3.23. It should be verified that the treatment equipment performs within its specified parameters, such as power consumption and flow rate, during the test cycle. 2.3.24. Environmental parameters such as pH, temperature, salinity, dissolved oxygen, TSS, DOC, POC and turbidity (NTU)3 should be measured at the same time that the samples described are taken. 2.3.25. Samples during the test should be taken at the following times and locations: immediately before the treatment equipment, immediately after the treatment equipment and upon discharge. 2.3.26. The control and treatment cycles may be run simultaneously or sequentially. Control samples are to be taken in the same manner as the equipment test as prescribed in paragraph 2.3.25 and upon influent and discharge. A series of examples are included in Figure 1. 2.3.27. Facilities or arrangements for sampling should be provided to ensure representative samples of treated and control water can be taken that introduce as little adverse effects as possible on the organisms. 2.3.28. Samples described in paragraphs 2.3.25 and 2.3.26 should be collected in triplicate on each occasion. 2.3.29. Separate samples should be collected for: 1. organisms of greater than or equal to 50 micrometres or more in minimum dimension; 2. organisms greater than or equal to 10 micrometres and less than 50 micrometres in minimum dimension; and 3. for coliform, enterococcus group, Vibrio cholerae and heterotrophic bacteria. 3

NTU=Nominal Turbidity Unit.

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2.3.30. For the comparison of organisms of greater than or equal to 50 micrometres or more in minimum dimension against the D-2 standard, at least 20 litres of influent water and l cubic metre of treated water, in triplicate respectively, should be collected. If samples are concentrated for enumeration, the samples should be concentrated using a sieve no greater than 50 micrometres mesh in the diagonal dimension. 2.3.31. For the evaluation of organisms greater than or equal to 10 micrometres and less than 50 micrometres in minimum dimension, at least 1 litre of influent water and at least 10 litres of treated water must be collected. If samples are concentrated for enumeration, the samples should be concentrated using a sieve no greater than 10 micrometres mesh in the diagonal dimension. 2.3.32. For the evaluation of bacteria, at least 500 millilitres of influent and treated water should be collected in sterile bottles. 2.3.33. The samples should be analysed as soon as possible after sampling, and analyzed live within 6 hours or treated in such a way so as to ensure that proper analysis can be performed. 2.3.34. The efficacy of a proposed system should be tested by means of standard scientific methodology in the form of controlled experimentation, i.e. “experiments”. Specifically, the effect of the BWMS on organism concentration in ballast water should be tested by comparing treated ballast water, i.e. “treated groups”, to untreated “control groups”, such that: 1. one experiment should consist of a comparison between control water and treated water. Multiple samples, but at a minimum of three, of control and treated water within a single test cycle should be taken to obtain a good statistical estimate of the conditions within the water during that experiment. Multiple samples taken during a single test cycle should not be treated as independent measures in the statistical evaluation of treatment effect, to avoid “pseudo-replication”. 2.3.35. If in any test cycle the average discharge results from the control water is a concentration less than or equal to 10 times the values in Regulation D-2.1, the test cycle is invalid. 2.3.36. Statistical analysis of BWMS performance should consist of t-tests, or similar statistical tests, comparing control and treated water. The comparison between control and treated water will provide a test of unexpected mortality in the control water, indicating the effect of an uncontrolled source of mortality in the testing arrangement.

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2.4. Reporting of test results 2.4.1. After approval tests have been completed, a report should be submitted to the Administration. This report should include information regarding the test design, methods of analysis and the results of these analyses. 2.4.2. The results of biological efficacy testing of the BWMS should be accepted if it is shown that the system has met the standard in Regulation D-2 in all test cycles as specified in paragraph 4.7 under land-based testing and shipboard testing as specified in section 2.2 of this Annex.

PART 3 – Specification for Environmental Testing for Approval of Ballast Water Management Systems Test specifications 3.1. The electrical and electronic sections of BWMS in the standard production configuration should be subjected to the programme of environmental tests set out in this specification at a laboratory approved for the purpose by the Administration or by the competent authority of the manufacturer’s home country. 3.2. Evidence of successful compliance with the environmental tests below should be submitted to the Administration by the manufacturer together with the application for type approval. Test specification details 3.3. Equipment should operate satisfactorily on completion of each of the operating environment tests listed below. Vibration tests 3.4. A resonance search should be made over the following ranges of oscillation frequency and amplitude: 1. 2 to 13.3 Hz with a vibration amplitude of 1 mm; and 2. 13.2 to 80 Hz with an acceleration amplitude of 0.7 g. This search should be made in each of the three orthogonal planes at a rate sufficiently low to permit resonance detection. 3.5. The equipment should be vibrated in the above mentioned planes at each major resonant frequency for a period of two hours. 3.6. In the absence of any resonant frequency, the equipment should be vibrated in each of the planes at 30 Hz with an acceleration of 0.7 g for a period of two hours.

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3.7. After completion of the tests specified in paragraph 3.5 or 3.6 a search should again be made for resonance and there should be no significant change in the vibration pattern. Temperature tests 3.8. Equipment that may be installed in exposed areas on the open deck, or in an enclosed space not environmentally controlled should be subjected, for a period of not less than two hours, to: 1. a low temperature test at −25°C; and 2. a high temperature test at 55°C. 3.9. Equipment that may be installed in an enclosed space that is environmentally controlled including an engine-room, should be subjected, for a period of not less than two hours, to: 1. a low temperature test at 0°C; and 2. a high temperature test at 55°C. 3.10. At the end of each of the tests referred to in the subparagraphs above, the equipment should be switched on and it should function normally under the test conditions. Humidity tests 3.11. Equipment should be left switched off for a period of two hours at a temperature of 55°C in an atmosphere with a relative humidity of 90%. At the end of this period, the equipment should be switched on and should operate satisfactorily for one hour under the test conditions. Tests for protection against heavy seas 3.12. Equipment that may be installed in exposed areas on the open deck should be subjected to tests for protection against heavy seas in accordance with 1 P 56 of publication IEC 529 or its equivalent. Fluctuation in power supply 3.13.

Equipment should operate satisfactorily with:

1. a voltage variation of +/− 10% together with a simultaneous frequency variation of +/− 5%; and 2. a transient voltage of +/− 20% together with a simultaneous frequency transient of +/− 10%, with a transient recovery time of three seconds.

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Inclination test 3.14. The BWMS should be designed to operate when the ship is upright and when inclined at any angle of list up to and including 15° either way under static conditions and 22.5° under dynamic conditions (rolling) either way and simultaneously inclined dynamically (pitching) 7.5° by bow or stern. The Administration may permit deviation from these angles, taking into consideration the type, size and service conditions of the ship and operational functioning of the equipment. Any deviation permitted is to be documented in the Type Approval Certificate. Reliability of electrical and electronic equipment 3.15. The electrical and electronic components of the equipment should be of a quality guaranteed by the manufacturer and suitable for their intended purpose.

PART 4 – Sample Analysis Methods for the Determination of Biological Constituents in Ballast Water Sample processing and analysis 4.1. Samples taken during testing of BWMS are likely to contain a wide taxonomic diversity of organisms, varying greatly in size and susceptibilities to damage from sampling and analysis. 4.2. When available, widely accepted standard methods for the collection, handling (including concentration), storage, and analysis of samples should be used. These methods should be clearly cited and described in test plans and reports. This includes methods for detecting, enumerating, and identifying organisms and for determining viability (as defined in these Guidelines). 4.3. When standard methods are not available for particular organisms or taxonomic groups, methods that are developed for use should be described in detail in test plans and reports. The descriptive documentation should include any experiments needed to validate the use of the methods. 4.4. Given the complexity in samples of natural and treated water, the required rarity of organisms in treated samples under Regulation D-2, and the expense and time requirements of current standard methods, it is likely that several new approaches will be developed for the analyses of the composition, concentration, and viability of organisms in samples of ballast water. Administrations/Parties are encouraged to share information concerning methods for the analysis of ballast water samples, using existing scientific venues, and papers distributed through the Organization.

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Sample analysis 4.5. Sample analysis is meant to determine the species composition and the number of viable organisms in the sample. Different samples may be taken for determination of viability and for species composition. 4.6. Viability of an organism can be determined through live/dead judgement by appropriate methods including, but not limited to: morphological change, mobility, staining using vital dyes or molecular techniques. 4.7. A treatment test cycle should be deemed successful if: 1. it is valid in accordance with paragraph 2.2.2.5 or 2.3.35 as appropriate; 2. the average density of organisms greater than or equal to 50 micrometres in minimum diameter in the replicate samples is less than 10 viable organisms per cubic metre; 3. the average density of organisms less than 50 micrometres and greater than or equal to 10 micrometres in minimum diameter in the replicate samples is less than 10 viable organisms per millilitre; 4. the average density of Vibrio cholerae (serotypes O1 and O139) is less than 1 cfu per 100 millilitres, or less than 1 cfu per 1 gramme (wet weight) zooplankton samples; 5. the average density of E. coli in the replicate samples is less than 250 cfu per 100 millilitres; and 6. the average density of intestinal Enterococci in the replicate samples is less than 100 cfu per 100 millilitres. 4.8. It is recommended that a non-exhaustive list of standard methods and innovative research techniques be considered4.

4

Suggested sources may include but not be limited to: 1. The Handbook of Standard Methods For the Analysis of Water and Waste Water 2. ISO standard methods 3. UNESCO standard methods 4. World Health Organization 5. American Society of Testing and Materials (ASTM) standard methods 6. U.S. EPA standard methods 7. Research papers published in peer-reviewed scientific journals 8. MEPC papers.

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Appendix BADGE OR CIPHER

NAME OF ADMINISTRATION

Type Approval Certificate of Ballast Water Management System This is to certify that the Ballast Water Management System listed below has been examined and tested in accordance with the requirements of the specifications contained in the Guidelines contained in IMO resolution MEPC…(..). This certificate is valid only for the Ballast Water Management System referred to below. Ballast Water Management System supplied by .................................................. Under type and model designation .......................................................................... and incorporating: Ballast Water Management System manufactured by .......................................... to equipment/assembly drawing No. ......................... date ................................ Other equipment manufactured by .................................................................. to equipment/assembly drawing No. ............................................... date .......... Treatment Rated Capacity ................................ m3/h. A copy of this Type Approval Certificate, should be carried on board a vessel fitted with this Ballast Water Management System at all times. A reference to the test protocol and a copy of the test results should be available for inspection on board the vessel. If the Type Approval Certificate is issued based on approval by another Administration, reference to that Type Approval Certificate shall be made. Limiting Conditions imposed are described in the appendix to this document. Official stamp

Signed ..................................................................... Administration of .................................................... Dated this ....................... day of ............. 20 ..........

Enc.

Copy of the original test results.

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Figure 1

Diagrammatic arrangement of possible land-based tests

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Resolution MEPC.126(53) Adopted on 22 July 2005 Procedure for Approval of Ballast Water Management Systems that Make Use of Active Substances (G9) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation D-3.2 of the Annex to the Ballast Water Management Convention provides that Ballast Water Management systems that make use of Active Substances or Preparations containing one or more Active Substances used to comply with this Convention, shall be approved by the Organization based on a Procedure developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop this Procedure as a matter of urgency. Having Considered, at its fifty-third session, the draft Procedure for Approval of Ballast Water Management systems that make use of Active Substances developed by the Ballast Water Working Group. 1. ADOPTS the Procedure for approval of Ballast Water Management Systems that make use of Active Substances, as set out in the Annex to this resolution; 2. INVITES Governments to apply the Procedure as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Procedure under review.

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Contents 1. 2. 3. 4.

Introduction Definitions Principles General Requirements Identification Data-set for Active Substances and Preparations Assessment report 5. Risk Characterization Screening for persistency, bioaccumulation and toxicity Toxicity testing of the treated Ballast Water Risk characterization and analysis 6. Evaluation Criteria Ship and personnel safety Environmental protection 7. Regulation of the use of Active Substances and Preparations Handling of Active Substances and Preparations Hazard documentation and labelling Procedures and use 8. Approval Basic approval Final approval Notification of approval Modification Withdrawal of approval Appendix Approval Scheme for Active Substances or Preparations and Ballast Water Management systems that make use of Active Substances

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Procedure for Approval of Ballast Water Management Systems that Make Use of Active Substances (G9) 1.

Introduction

1.1. This procedure describes the approval and withdrawal of approval of Ballast Water Management systems that make use of Active Substances to comply with the Convention and their manner of application as set out in Regulation D-3 of the “International Convention for the Control and Management of Ships’ Ballast Water and Sediments”. The Convention requires that at withdrawal of approval, the use of the relevant Active Substance or Substances shall be prohibited within 1 year after the date of such withdrawal. 1.2. To comply with the Convention, Ballast Water Management systems that make use of Active Substances or Preparations containing one or more Active Substances shall be approved by the Organization, based on a procedure developed by the Organization. 1.3. The objective of this procedure is to determine the acceptability of Active Substances and Preparations containing one or more Active Substances and their application in Ballast Water Management systems concerning ship safety, human health and the aquatic environment. This procedure is provided as a safeguard for the sustainable use of Active Substances and Preparations. 1.4. This procedure is not intended for the evaluation of the efficacy of Active Substances. The efficacy of Ballast Water Management systems that make use of Active Substances should be evaluated in accordance with the “Guidelines for Approval of Ballast Water Management Systems”. 1.5. The goal of the procedure is to ensure proper application of the provisions contained in the Convention and the safeguards required by it. As such the procedure is to be updated as the state of knowledge and technology may require. New versions of the procedure will be circulated by the Organization following their approval.

2.

Definitions

2.1. For the purposes of this procedure, the definitions in the Convention apply and: 1. “Active Substance” means a substance or organism, including a virus or a fungus that has a general or specific action on or against Harmful Aquatic Organisms and Pathogens. 2. “Ballast Water Discharge” means the ballast water as would be discharged overboard.

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3. “Preparation” means any commercial formulation containing one or more Active Substances including any additives. This term also includes any Active Substances generated onboard for purposes of Ballast Water Management and any relevant chemicals formed in the Ballast Water Management system that make use of Active Substances to comply with the Convention. 4. “Relevant Chemicals” means transformation or reaction products that are produced during the treatment process or in the receiving environment and may be of concern to the aquatic environment and human health when discharged.

3.

Principles

3.1. Active Substances and Preparations may be added to the ballast water or be generated on board ships by technology within the Ballast Water Management system using an Active Substance to comply with the Convention. 3.2. Active Substances and Preparations accomplish their intended purpose through action on Harmful Aquatic Organisms and Pathogens in ships’ ballast water and sediments. However, if the ballast water is still toxic at the time of discharge into the environment, the organisms in the receiving water may suffer unacceptable harm. Both the Active Substance or Preparation as well as the Ballast Water Discharge should be subjected to toxicity testing in order to protect the receiving environment or human health from toxic effects due to the discharges. Toxicity testing is needed to determine if an Active Substance or Preparation can be used and under which conditions the potential of harming the receiving environment or human health is acceptably low. 3.3. Ballast Water Management systems that make use of Active Substances and Preparations must be safe in terms of the ship, its equipment and the personnel to comply with the Convention. 3.4. The approval of Active Substances and Preparations using viruses or fungi for use in Ballast Water Management Systems is not addressed in this procedure. The approval of such substances for Ballast Water Management should require an additional consideration by the Organization in compliance with Regulation D-3 of the Convention if the use of such substances is proposed.

4. 4.1.

General Requirements Identification

4.1.1. The proposal for approval of an Active Substance or a Preparation should include a chemical identification and description of the chemical components

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even if generated onboard. A chemical identification should be provided for any Relevant Chemicals. 4.2.

Data-set for Active Substances and Preparations

4.2.1. A proposal for approval should include information on the properties or actions of the Preparation including any of its components as follows: 1. Data on effects on aquatic plants, invertebrates, fish, and other biota, including sensitive and representative organisms: • • • • • •

acute aquatic toxicity; chronic aquatic toxicity; endocrine disruption; sediment toxicity; bioavailability/biomagnification/bioconcentration; and food web/population effects.

2. Data on mammalian toxicity: • • • • • •

acute toxicity; effects on skin and eye; chronic and long-term toxicity; developmental and reproductive toxicity; carcinogenicity; and mutagenicity.

3. Data on environmental fate and effect under aerobic and anaerobic conditions: • modes of degradation (biotic; abiotic); • bioaccumulation, partition coefficient, octanol/water coefficient; • persistence and identification of the main metabolites in the relevant media (ballast water, marine and fresh waters); • reaction with organic matter; • potential physical effects on wildlife & benthic habitats; • potential residues in seafood; and • any known interactive effects. 4. Physical and chemical properties for the Active Substances and Preparations and the treated ballast water, if applicable: • melting point; • boiling point; • flammability;

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density (relative density); vapour pressure, vapour density; water solubility / dissociation constant (pKa); oxidation/reduction potential; corrosivity to the materials or equipment of normal ship construction; autoignition temperature; and other known relevant physical or chemical hazards.

5. Analytical methods at environmentally relevant concentrations. 4.2.2. A proposal for approval should include the above data set either for the Preparation or for each component separately, and a list of the name and relative quantities (in volumetric percentages) of the components should be also attached. As described in section 8.1, all proprietary data should be treated as confidential. 4.2.3. The tests for Active Substances and Preparations should be carried out in accordance with internationally recognized guidelines1. 4.2.4. The testing process should contain a rigorous quality control/quality assurance programme consisting of: 1. Both a Quality Management Plan (QMP) and a Quality Assurance Project Plan (QAPP). Guidance on preparation of these plans, along with other guidance documents and other general quality control information are available for download from the International Organization for Standardization (ISO) (www.iso.org). 2. The QMP addresses the quality control management structure and policies of the Test Organization (including subcontractors and outside laboratories). 3. The QAPP is a project specific technical document reflecting the specifics of the system to be tested, the test facility, and other conditions affecting the actual design and implementation of the required experiments. 4.2.5. Dossiers already used for registration of chemicals can be submitted by the applicant to satisfy the required data needed for the evaluation of Active Substances and Preparations according to this procedure. 4.2.6. The proposal should describe the manner of application of the Preparation for Ballast Water Management, including required dosage and retention time. 4.2.7. A proposal for approval should include (Material) Safety Data Sheets ( (M)SDS).

1

Preferably Organization for Economic Cooperation and Development (OECD) Guidelines for Testing of Chemicals (1993) or other equivalent tests.

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Assessment report

4.3.1. A proposal for approval should include an assessment report. The assessment report should address the quality of the test reports, the risk characterization and a consideration of the uncertainty associated with the assessment.

5. 5.1.

Risk Characterization Screening for persistency, bioaccumulation and toxicity

5.1.1. An assessment on the intrinsic properties of the Active Substance and/or Preparation such as persistency, bioaccumulation and toxicity should be conducted (see Table 1 in section 6). 1. Persistence tests: Persistence should preferably be assessed in simulation test systems that determine the half-life under relevant conditions. Biodegradation screening tests may be used to show that the substances are readily biodegradable. The determination of the half-life should include assessment of relevant chemicals. 2. Bioaccumulation tests: The assessment of the (potential for) bioaccumulation should use measured bioconcentration factors in marine (or freshwater) organisms. Where these tests are not applicable, or if logPow 3. 5.3.8. Based on the information on fate and behavior of Active Substances and Preparations, the discharge concentrations at selected time intervals should be predicted. 5.3.9. The effect assessment of the Active Substances, Preparations and Relevant Chemicals is initially based on a dataset of acute and/or chronic ecotoxicity data for aquatic organisms, being primary producers (algae or sea grasses), consumers (crustaceans), predators (fish), and should include secondary poisoning to mammalian and avian top-predators, as well as data for sediment species. 5.3.10. An assessment of secondary poisoning is redundant if the substance of concern demonstrates a lack of bioaccumulation potential (e.g., BCF 40 days in freshwater*, or > 180 days in marine sediment, or > 120 days in freshwater sediment*

Bioaccumulation

BCF > 2,000 or LogPoctanol/water ≥3

Toxicity

Chronic NOEC < 0.01 mg/l

* For the purpose of marine environmental risk assessment half-life data in freshwater and freshwater sediment can be overruled by data obtained under marine conditions.

6.4.2. The Organization should determine the overall acceptability of the risk the Preparation may pose in its use for Ballast Water Management. It should do so by comparing the information provided and the undertaken assessment of PBT and the discharge with scientific knowledge of the Active Substances, Preparations and Relevant Chemicals concerned. The risk evaluation should qualitatively take into account cumulative effects that may occur due to the nature of shipping and port operations. 6.4.3. The risk evaluation should consider the uncertainties involved in the application for approval, and as appropriate, provide advice on how these uncertainties can be dealt with.

7. 7.1.

Regulation of the Use of Active Substances and Preparations Handling of active substances and preparations

7.1.1. The proposal for approval of Active Substances and Preparations should include information on their intended use and application. The quantity of Active Substances and Preparations to be added to the ballast water and the maximum

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allowable concentration of the Active Substances therein should be described in the instructions provided by the manufacturer. The system should ensure that the maximum dosage and maximum allowable discharge concentration are not exceeded at any time. 7.2.

Hazard documentation and labelling

7.2.1. The proposal should include ( (M)SDS) as required. The (M)SDS should describe appropriate storage and handling together with the effects of degradation and chemical reactivity during storage and should be included in the instructions provided by the manufacturer. 7.2.2. Documentation of hazards or the (M)SDS should conform to the UN Globally Harmonized System of Classification and Labelling of Chemicals (GHS) and the relevant IMO regulations (e.g. the IMDG Code) and guidelines (e.g. the GESAMP Hazard Evaluation Procedure). Where these regimes are not applicable, relevant national or regional regimes should be followed. 7.3.

Procedures and use

7.3.1. Detailed procedures and information for safe application of Active Substances and Preparations on board should be supplied and comply with the approval conditions such as maximum allowable concentration and maximum discharge concentration, if any.

8. 8.1.

Approval Basic approval

8.1.1. All proprietary data should be treated as confidential by the Organization and its Technical Group, the Competent Authorities involved, and the evaluating regulatory scientists, if any. 8.1.2. Procedure to be followed: 1. The manufacturer should evaluate the Active Substances or Preparations and the potential discharge in accordance with the approval criteria specified in this procedure. 2. Upon completion, the manufacturer should prepare an Application on the Active Substances and Preparations and submit it to the Member of the Organization concerned. 3. The Administration having received a satisfactory application should as soon as possible propose an approval to the Organization. 4. Members of the Organization may propose an approval.

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5. The Organization should announce and set the time frame for the evaluation of Active Substances and Preparations. 6. Parties, Members of the Organization, the United Nations and its Specialized Agencies, intergovernmental organizations having agreements with the Organization and non-governmental organizations in consultative status with the Organization may submit information that is relevant to the evaluation. 7. The Organization should establish a Technical Group in accordance with its rules of procedure ensuring that proprietary data should be treated as confidential. 8. The Technical Group should review the comprehensive proposal along with any additional data submitted and report to the Organization whether the proposal has demonstrated a potential for unreasonable risk for environment, human health, property or resources in accordance with the criteria specified in this procedure. 9. The Technical Group’s report should be in written form and circulated to the Parties, Members of the Organization, the United Nations and its Specialized Agencies, intergovernmental organizations having agreements with the Organization and non-governmental organizations in consultative status with the Organization, prior to its consideration by the competent Committee. 10. The Committee of the Organization should decide whether to approve any proposal, introduce any modifications thereto, if appropriate, taking into account the Technical Group’s report. 11. The Member of the Organization that submitted the application to the Organization should inform in writing the applicant about the decision made with regard to the respective Active Substance or Preparation and their manner of application. 12. Active Substances or Preparations receiving basic approval by the Organization may be used for prototype or type approval testing based on the guidelines developed by the Organization4. An Active Substance or Preparation may be used for Prototype or Type Approval testing for the approval of different BWMS without going through basic approval again. 8.2.

Final approval

8.2.1. In accordance with Regulation D-3.2, a Ballast Water Management system using an Active Substance or Preparation to comply with the Convention 4

Guidelines for approval of prototype ballast water treatment technologies and Guidelines for approval of Ballast Water Management Systems.

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(which received basic approval) must be approved by the Organization. For this purpose, the Member of the Organization submitting an application should conduct the Type Aproval tests in accordance with Guidelines for Approval of Ballast Water Management Systems. The results should be conveyed to the Organization for confirmation that the residual toxicity of the discharge conforms to the evaluation undertaken for Basic Approval. This would result in Final Approval of the Ballast Water Management system in accordance with Regulation D-3.2. Active Substances or Preparations that have received Basic Approval by the Organization may be used for evaluation of Ballast Water Management systems using Active Substances or Preparations for Final Approval. 8.3.

Notification of approval

8.3.1. The Organization will record the Basic and Final Approval of Active Substances and Preparations and Ballast Water Management systems that make use of Active Substances and circulate the list once a year including the following information: • Name of Ballast Water Management system that make use of Active Substances and Preparations; • Date of approval; • Name of manufacturer; and • Any other specifications, if necessary. 8.4.

Modification

8.4.1. Manufacturers should report any modifications in names, including trade and technical name, composition or use of the Active Substances and Preparations in the Ballast Water Management systems approved by the Organization, to the Member of the Organization. The Member of the Organization should inform the Organization accordingly. 8.4.2. Manufacturers intending to significantly change any part of a Ballast Water Management System that has been approved by the Organization or the Active Substances and Preparations used in it should submit a new application. 8.5. Withdrawal of approval 8.5.1. The Organization may withdraw any approval in the following circumstances: 1. If the Active Substances and Preparations or Ballast Water Management system that make use of Active Substances no longer conforms to requirements due to amendments of the Convention.

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2. If any data or test records differ materially from data relied upon at the time of approval and are deemed not to satisfy the approval condition. 3. If a request for withdrawal of approval is made by the Member of the Organization on behalf of the manufacturer. 4. If unreasonable harm to environment, human health, property or resources is demonstrated by any Member of the Organization or observer to have been caused by the approved Ballast Water Management system that make use of Active Substances or Preparations.

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Appendix Approval Scheme for Active Substance or Preparation and Ballast Water Management systems that make use of Active Substances

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Resolution MEPC.140(54) Adopted on 24 March 2006 Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that regulation D-4.3 of the Ballast Water Management Convention provides that, in establishing and carrying out any programme to test and evaluate promising Ballast Water technologies, Parties shall take into account Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop these Guidelines as a matter of urgency. Having Considered, at its fifty-fourth session, the draft Guidelines for approval and oversight of prototype ballast water treatment technology programmes developed by the Ballast Water Working Group. 1. ADOPTS the Guidelines for approval and oversight of prototype ballast water treatment technology programmes as set out in the annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10) Content 1.

2. 3.

Introduction General Purpose Applicability Programme requirements

Definitions Programme Application Requirements Participants Ballast water treatment technology description Ship description Installation and installation survey description Performance test and evaluation description Time schedule and reporting 4. Installation Survey and Statement of Compliance Installation survey Statement of Compliance 5. Performance Requirement for Already Installed Systems 6. Programme Oversight Appendix Statement of Compliance for a Prototype Ballast Water Treatment Technology

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Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10) 1.

Introduction

General 1.1. These Guidelines provide recommendations for Administrations on the approval and oversight of programmes for prototype ballast water treatment technologies in accordance with regulation D-4 of the “International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004” (the Convention). The intention of regulation D-4 is to provide opportunities to test and evaluate promising ballast water treatment technologies aboard ships with the potential to meet or exceed the performance standards in regulation D-2 of the Convention. The document may also assist manufacturers, ship owners and other stakeholders undertaking development activities in the area of ballast water treatment. The Guidelines also make recommendations on criteria for approval of such programmes. Recommendations outlined in these Guidelines should be applied in an objective, consistent and transparent way and their application should be evaluated periodically by the Organization. 1.2. Regulations referred to in these Guidelines are those contained in the Convention. 1.3. The Guidelines include general recommendations on design and construction, technical procedures for overall performance testing and evaluation, procedures for the issuance of a Statement of Compliance in accordance with regulation D-4 and Administration oversight responsibilities. 1.4. As the level of ballast water management knowledge, experience and subsequently technological achievements continue to develop, these Guidelines may require updating. Periodical review of their content in light of such developments should be carried out and any revisions duly circulated by the Organization. Purpose 1.5.

The main purpose of these Guidelines is to: 1. assist Administrations to approve or reject proposed programmes and in cases where approval is granted, to issue a Statement of Compliance under regulation D-4; 2. describe the responsibilities of the Administration in the oversight of the programme’s execution; and 3. encourage a uniform interpretation and application of regulation D-4.

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Applicability 1.6. These Guidelines apply to programmes established to test and evaluate promising ballast water treatment technologies in accordance with regulation D-4. Programme requirements 1.7. The Programme for prototype ballast water treatment technologies in accordance with these Guidelines should contain the following three main steps: 1. Programme Application, Submission and Approval: The submission should include a detailed plan describing the prototype technology and implementation of the programme as described in Section 3. Further, the applicant should include evidence on the potential of the prototype technologies meeting or exceeding the performance standard in regulation D-2. If the prototype ballast water treatment technology makes use of Active Substances, or preparations containing one or more Active Substances, the substances should have received Basic Approval, as described by the Procedure for the Approval of Ballast Water Management systems that make use of Active Substances (G9). All of the above information should be the basis for the Administration in its evaluation and approval of the submitted programme. In the case where a programme is approved, the applicant may proceed in accordance with the approved programme taking into account any conditions set by the Administration. 2. Installation Survey and Statement of Compliance: The installation of the prototype ballast water treatment technology in accordance with the approved Programme should be verified by an installation survey. Provided that this survey confirms adherence to the approved programme, including any applicable conditions set by the Administration, a Statement of Compliance under regulation D-4 may be issued by the Administration. 3. Performance Evaluations and Reporting: During the test and evaluation period, a prototype ballast water treatment technology should be subjected to on-going experimental testing and evaluation according to the approved programme to evaluate both the engineering and biological performance under shipboard operating conditions. Reporting to the Administration should be of the form and schedule in accordance with the approved programme.

2.

Definitions

2.1. Prototype Ballast Water Treatment Technology - means any integrated system of ballast water treatment equipment as under regulation D-4, participating in a programme for testing and evaluation with the potential of meeting

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or exceeding the ballast water performance standard in regulation D-2 including treatment equipment, all associated control equipment, monitoring equipment and sampling facilities. A prototype ballast water treatment technology may be a mechanical, physical, chemical, or biological unit process, either singularly or in combination that may or may not use Active Substances that remove, render harmless, or avoid the uptake or discharge of Harmful Aquatic Organisms and Pathogens within ballast water and sediments. Prototype ballast water treatment technologies may operate at the uptake or discharge of ballast water, during the voyage or in any combination of these phases. 2.2. Ballast Water Management Plan - is the document referred to in regulation B-1 of the Convention describing the ballast water management processes and procedures on board individual ships. 2.3. Active Substances - means a substance or organism, including a virus or a fungus that has a general or specific action on or against Harmful Aquatic Organisms and Pathogens. 2.4. Control Equipment - refers to the installed equipment required for proper functioning of the prototype ballast water treatment technology. 2.5. Monitoring Equipment - refers to the equipment installed for assessment of the correct operation of the prototype ballast water treatment technology. 2.6. Convention - means the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004. 2.7. Sampling Facilities - refers to the means provided for sampling treated or untreated ballast water as needed in these Guidelines.

3.

Programme Application Requirements

3.1. This section provides the detailed elements and documentation that should be included in a Programme and Programme Application as defined in section 1.7.1. The Programme Application should contain information on the following aspects: 1. 2. 3. 4. 5. 6.

participants ballast water treatment technology description ship description installation and installation survey description performance test and evaluation description time schedule and reporting

3.2. All relevant and requested documentation describing the Programme for which the applicant is applying for approval should be submitted to the Administration. The application should only encompass one prototype ballast

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water treatment technology and should not normally result in installations in more than three ships. Prototype installations onboard more than one ship should be justified in the application and may rest upon technology development requirements related to, for example: – – – –

capacity issues; geographical areas of operation; specific onboard conditions varying as a function of ship type; and refit to existing vessels versus installations onboard new vessels.

3.3. The Programme Application should also take into account safety and environmental regulations which have to be met by the ship so as to ensure that other international and/or national requirements are not compromised by the prototype ballast water treatment technology. 3.4. The Programme should implement appropriate quality control measures in accordance with recognized international standards to which all participants specified in Section 3.5 should be required to comply. Participants 3.5. The Programme should provide an overview of the different participants included in the Programme Application including, as appropriate: – the ship owner or operator; – the manufacturer(s); and – the testing institution or any laboratories, institution(s) or companies carrying out elements of or the entire programme or advising the manufacturer in carrying out the programme. 3.6. The roles and responsibilities of each of the identified participants should be clearly described within the Programme Application. Ballast water treatment technology description 3.7. The Programme Application should include information regarding design, construction, operation and functioning of the proposed ballast water treatment technology. The information should also include any foreseen conditions limiting its application with respect to voyage duration, ship type, capacity (flow rate and/or volume) or any other such condition if relevant. 3.8. The Programme Application should contain documentation on the potential of the prototype technologies meeting or exceeding the performance standard in regulation D-2. Recognized scientific and statistical practices should have been utilized in the preparation of this documentation.

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3.9. The construction, operation and maintenance of the technology should be adequately described to allow for consideration by the Administration and this should include: 1. The prototype ballast water treatment technology should have a configuration and construction suitable for shipboard installation and normal onboard operation; 2. Design, construction and material should be suitable for the purpose for which the equipment is intended, the working conditions to which it should be subjected and the environmental conditions onboard. This should include considerations of: 1. vibration – to ensure that there are no potential resonance occurring; 2. temperature – to assure safe and proper operations and performance of the technology over a range of temperatures applicable for shipboard installations; 3. humidity – to ensure the suitability of equipment exposed to humidity/ water as applicable to shipboard installations; 4. power fluctuation – to ensure proper functioning over a voltage/frequency variation; and 5. inclination – to assure that the technology should operate during those scenarios it is intended for, taking into account the motion of the vessel and that it should remain safe and not represent any danger to crew or ship onboard during inclination. 3. Routine maintenance of the prototype ballast water treatment technology and trouble-shooting procedures should be clearly described by the manufacturer in a operating and maintenance manual. 4. The prototype ballast water treatment technology should be provided with simple and effective means for its operation and control. 5. In case of a failure compromising the proper operation of the prototype ballast water treatment technology, audible and visual alarm signals are to be activated at all stations from where ballast water operations may be controlled. 6. The prototype ballast water treatment technology programme should provide for record keeping of the entire ballast water operations including: 1. 2. 3. 4.

record of operations and any malfunctioning during operations; record of all essential parameters necessary to ensure proper functioning; date and time of start and end of the ballast operation; and ballast operation mode (loading, discharge, transfer).

7. The prototype ballast water treatment technology should allow for sampling such that representative samples of the ship’s ballast water can be

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collected as described in the experimental design as described in the Programme Application. 3.10. The Programme Application should include descriptions of the working principles, use if any Active Substances, operational conditions and application feasibility of the prototype ballast water treatment technology. 3.11. The Programme Application should include an assessment of the potential effects upon other personnel, shipboard systems and structure, highlighting any special safety provisions that maybe necessary due to the characteristics of the installation and/or operation of the prototype ballast water treatment technology. Ship description 3.12. The Programme Application should include a full and complete description of the ship(s) in which the prototype ballast water treatment technology is to be installed. This description should include: – – – – – – – – – – – –

ships’ name; date of construction; flag; port of registry; gross tonnage; dead weight; IMO number; length (bp); beam; international call sign; deepest ballast drafts (normal and heavy weather); total ballast capacity of the ship in cubic metres and other units if applicable to the ship.

3.13. The description should also include normal operational ballast flow rates and volumes, and, to the extent possible, typical voyage lengths and routes. Installation and installation survey description 3.14. The Programme Application should fully describe the manner in which the equipment should be integrated into the ship and should provide the following for the onboard installation: 1. process flow diagram of the prototype ballast water treatment technology; 2. “equipment arrangement” drawings of the proposed prototype ballast water treatment installation. These should show scaled lay-outs of the

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3.

4. 5.

6.

7. 8. 9. 10. 11.

spaces and important mechanical and structural features such as major propulsion and electrical components, bulkheads and pillars, and doors and other means of access/egress; “piping arrangement” drawing of the prototype ballast water treatment system installation, including ballast and cross-connected piping systems, sample piping, and the operational outlets for treated effluent and any waste streams; information relating to onboard safety matters; an assessment of the potential effects upon other shipboard systems and the ship’s structure, highlighting those aspects of the design and operation of the system, and its integration into the ship, to be put in place to prevent any compromises to crew and ship safety; assurance of adequate safety interlocks and failsafe measures to ensure subdivision boundaries, structural integrity, and vessel stability are not compromised; assurance that new piping and flows should not result in unsafe ballasting or deballasting situations, e.g., overpressure; assurance that escape arrangements in manned spaces are not compromised; arrangements for maintaining the integrity any boundary between safe and hazardous spaces; attention to restrictions related to the use of electrical equipment in hazardous areas; and a provision for safe storage and use of Active Substances.

3.15. The installation survey description should contain a listing of those items which should be validated at the survey and these include, as a minimum, the following: 1. updated, as-installed diagrammatic drawings of any additional pumping and piping arrangements, identifying the operational outlets for treated effluent and any waste streams. Special consideration may have to be given to installations on ships that have unusual pumping and piping arrangements, as well as restrictions related to the use of electrical equipment in hazardous areas; 2. equipment manuals, supplied by manufacturers, which should contain details of the major components of the treatment system; 3. operations and technical manual for the complete installed prototype ballast water treatment. This manual should cover the arrangements and operation of the system as a whole and should specifically describe the parts of the system which may not be covered by the manufacturer’s equipment manuals. The operations section of the manual should include

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normal operational procedures and procedures for the discharge of untreated water in the event of malfunction of the equipment. The technical section of the manual should include adequate information (description and diagrammatic drawings of the pumping and piping arrangements, of the monitoring system and electrical/electronic wiring diagrams) to enable fault finding and should include instructions for keeping a maintenance record; 4. the installation should comply with manufacturer’s specific installation criteria. A technical installation specification defining, inter alia, the location and mounting of components, arrangements for maintaining the integrity of any boundary between safe and hazardous spaces, and the arrangement of the sample piping; 5. the Ballast Water Management Plan; and 6. any other conditions required by the Administration. 3.16. The Programme Application should provide a recommended test and survey procedure. This procedure should specify all the checks to be carried out in a functional test and should provide guidance for the surveyor when carrying out the on-board survey of the treatment system. This procedure may be amended as necessary prior to the survey and with the concurrence of the Administration. Performance test and evaluation description 3.17. A full description of the onboard tests and evaluations to be undertaken should be provided. When available standard methods for the collection, handling (including concentration), storage, and analysis of samples should be applied. These methods should be clearly referenced and described in test plans and in reports. This includes methods for detecting, concentrating, enumerating, and identifying organisms and for determining viability. When non-standard methods are used they should be validated, documented and reported. A description of the experimental design and sampling procedure should be provided. 3.18. The Programme should evaluate: 1. the biological efficacy of the installed prototype ballast water treatment technology; 2. the operational performance which should include, but not be limited to: – unplanned maintenance and manning requirements – operational data relative to manufacturer’s specification – consideration of the environmental conditions identified in section 3.9.2; 3. the effects upon the ship’s systems and structure; and 4. any other characteristics identified by the participants or the Administration.

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3.19.

Experimental Design and Protocols should include:

1. a general description of the experimental test including the experimental hypotheses being tested and methods for the determination of biological efficacy and operational performance. The Programme Application should identify the test locations, source waters, and relevant environmental water conditions, to the extent possible. The overall study plan should take full advantage of the range of locations provided by the vessel’s operations, to the extent practicable; 2. a detailed description for each of the experiments including: 1. ballast water sample collection for each treatment and control, identification and number of replicate tanks, ballast water samples and time points encompassed in the test; 2. description of test runs: replicate tests (tests at same location and environmental conditions) and comparative tests (tests at different locations or environmental conditions). Description of how the efficacy of the treatment process should be evaluated; include a description of how the efficacy should be quantified, as well as a description of the comparison of biological efficacies; 3. the plan should address statistical analysis (including power analysis) and data confidence issues. Fully describe the intended statistical tests, use of controls, and replicates for each experiment; and 4. how the experiment accounts for the range of seasons, organic matter content, turbidity, pH, salinity, etc. likely to be encountered in operation and, to the extent possible, describe the range of these variables; 3. the experimental design should address the operation of the ship’s systems whose arrangements (e.g., cross connections) have the potential to confound the resulting data. Time schedule and reporting 3.20. The Programme Application should include procedures and schedules for reporting the progress and status of the Programme through all phases. Reporting to the Administration should occur on a regular basis throughout the Programme. In addition, reporting should include the results and evaluation of all conducted experiments. 3.21. The Programme Application should present an overall time schedule compliant with project management standards. This schedule should include an estimation of major task element time lines. Each of these should have an anticipated period of performance and execution and include events such as approval

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of the Programme by the Administration, the installation survey, experimental and progress reports. Major task elements should include the installation of the prototype ballast water treatment technology into the ship, initiation and execution of experiments and maintenance periods.

4.

Installation Survey and Statement of Compliance

Installation survey 4.1. Following approval of the Programme Application, the Programme may proceed to installing the onboard prototype ballast water treatment technology. 4.2. Following installation a survey should be performed by the Administration, or any designated body appointed by the Administration to act on its behalf, to verify that the system installation has been carried out in accordance with the approved Programme and that the workmanship of the installation is satisfactory. Statement of Compliance 4.3. Upon successful completion of the Installation Survey a Statement of Compliance may be issued by the Administration, or by a person or organization duly authorized by the Administration. In every case, the Administration assumes full responsibility for the Statement of Compliance. The recommended format for the Statement of Compliance is given in the Appendix. 4.4. The Statement of Compliance should be valid until five years after the dates specified in regulations D-4.1 and D-4.2, as appropriate.

5.

Performance Requirement for Already Installed Systems

5.1. Ships with already installed prototype ballast water treatment technologies that wish to make use of the provision of regulation D-4, may do so provided that a Programme Application is approved by the Administration.

6.

Programme Oversight

6.1. The Administration or any designated body appointed by the Administration to act on its behalf should ensure that the Programme as approved is followed. 6.2. The Administration should revoke the Statement of Compliance if the ship fails to follow the approved Programme or otherwise does not comply with the conditions of regulation D-4.4.

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Appendix 1 Statement of Compliance for a Prototype Ballast Water Treatment Technology (Official seal) Issued under the provisions of

Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes (G10) (Resolution MEPC.140(54) ), under the authority of the Government of (full designation of country) by (full designation of the competent person or organization recognized by the Administration) Particulars of ship Name of ship IMO Number* Distinctive number or letters Port of registry Gross tonnage Ballast Water Capacity, Volume and Flow Rates Date on which keel was laid or ship was at a similar stage of construction or, (in the case of a converted ship) date on which conversion was commenced Date by which the ship is required to comply with regulation D-2 Date on which the prototype ballast water treatment system was installed Name and address of prototype ballast water treatment technology manufacturer Trade name of technology Serial number or other identifying marking Name of Active Substance and details of Basic Approval Brief description of the prototype technology

* IMO Ship Identification Number Scheme adopted by the Organization by resolution A.600(15).

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THIS IS TO CERTIFY: 1. That the ship has a prototype ballast water treatment system which is subject to a programme approved in accordance with regulation D-4 by the Government of (insert Government title) on (insert date of approval of programme). 2. That the prototype ballast water treatment technology installation has been surveyed in accordance with Section 4 of the annex to resolution MEPC.140(54). 3. A copy of the approved programme is on board the ship together with equipment, operations and maintenance manuals for the prototype ballast water treatment technology. This Statement is valid until (date) (Place of issue of Statement) (Date of issue) (Signature of authorized official issuing the Statement) (Seal or stamp of the authority, as appropriate)

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Resolution MEPC.149(55) Adopted on 13 October 2006 Guidelines for Ballast Water Exchange Design and Construction Standards (G11) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation D-1 of the Ballast Water Management Convention stipulates that ships performing ballast water exchange shall do so with an efficiency of at least 95 per cent volumetric exchange of ballast water and that MEPC 51 identified the need for additional guidance on design and construction standards for ships conducting ballast water exchange. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop the Guidelines for uniform application of the Convention as a matter of urgency. Having Considered, at its fifty-fifth session, the draft Guidelines for ballast water exchange design and construction standards (G11) developed by the Ballast Water Working Group, and the recommendation made by the Sub-Committee on Bulk Liquids and Gases at its tenth session. 1. ADOPTS the Guidelines for ballast water exchange design and construction standards (G11); 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines for Ballast Water Exchange Design and Construction Standards (G11) 1.

Introduction

Purpose 1.1. These Guidelines outline recommendations for the design and construction of ships to assist compliance with Regulation D-1 (Ballast Water Exchange Standard ) of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Convention). 1.2. These Guidelines have been developed to give guidance to shipbuilders, ship designers, owners and operators of ships in designing safe, environmentally acceptable, technically achievable, practicable, and cost effective ballast water exchange as required in Regulation D-1. 1.3. These Guidelines should be applied without compromising the ship’s safety and operational efficiency and taking into account the design of ship types, which may have special safety considerations for example container ships and bulk carriers.

2.

Definitions

2.1. For the purposes of these Guidelines, the definitions in the Convention apply and: 1. “Ballast Water Tank” – means any tank, hold or space used for the carriage of ballast water as defined in Article 1 of the Convention. 2. “Sequential Method” – means a process by which a ballast tank intended for the carriage of ballast water is first emptied and then re-filled with replacement ballast water to achieve at least a 95 per cent volumetric exchange. 3. “Flow-through Method” – means a process by which the replacement ballast water is pumped into a ballast tank intended for the carriage of ballast water, allowing water to flow through overflow or other arrangements. 4. “Dilution Method” – means a process by which replacement ballast water is filled through the top of the ballast tank intended for the carriage of ballast water with simultaneous discharge from the bottom at the same flow rate and maintaining a constant level in the tank throughout the ballast exchange system.

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Ballast Water Exchange – Design and Construction Considerations

General considerations 3.1. When designing and constructing a ship that will operate with ballast water exchange the following considerations should be taken into account: 1. maximizing the efficiency of ballast water exchange; 2. increasing the range of sea conditions under which ballast water exchange may be conducted safely; 3. shortening the time to complete ballast water exchange (thereby increasing the types of voyages under which ballast water exchange can be undertaken safely); and 4. minimizing the accumulation of sediments (refer to Guidelines on design and construction to facilitate sediment control on ships (G12)). Consideration at the design phase of new ships 3.2. When designing new ships the following aspects related to ballast water management equipment should be considered: 1. ballast water management and the processes chosen to achieve it, should be considered as a component of the ship’s design; 2. design and installation of the ballast water pumping and piping system should ensure that ease of operation and maintenance is maximized; 3. ballast tank design should facilitate all aspects of ballast water management; 4. installation of monitoring and/or recording equipment for all ballast water operations and treatment processes. If any records are automatically recorded by the equipment they should be in a format that can easily be retained and be made readily available to appropriate authorities; 5. remote data management; 6. the design of the ballast water exchange system should be such that it facilitates future compliance of the standards set in Regulation D-2 of the Convention, minimizing the need to install new equipment/retrofitting and to carry out dry-docking and/or hot work. It should reduce, as far as possible, the costs of any adaptation for this purpose. Special consideration should be given to the feasibility of combining ballast water exchange methods with ballast water treatment technologies, aiming at meeting, in the future, the standards of Regulation D-2. Adequate spaces for new complementary equipment and pipelines, which may be necessary to meet future standards D-2, should also be considered and planned.

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3.3. Where designing new ships ballast water systems designs should take special account of the need for sampling the ballast water by port State control or other authorized organizations. The arrangements should be such that samples as required by the Guidelines for ballast water sampling (G2) can be taken. The sampling arrangements should enhance the quality and ease of sampling of ballast water or sediments, without the need to enter potentially dangerous spaces or partially filled ballast tanks. 3.4. Where ballast water exchange at sea is the chosen method, when designing new ships the following aspects should be considered: 1. design of ship structures to enable ballast water exchange to be conducted at various sea states/swell conditions and provide to the ship information on the maximum sea state that ballast water exchange can be conducted; 2. minimize the burden on ships crew (e.g. minimize the number of operational steps, the number of partially loaded tanks and the time taken); 3. minimize the risk of tank over/under pressurization; 4. minimize the flow of ballast water on deck; 5. maintaining bridge visibility standards (SOLAS V/22), propeller immersion and minimum draft forward at any stage of a designed ballast water exchange operation; 6. the consequences of ballast water exchange at sea, including stability, hull girder strength, shear forces, torsional stresses, resonance, sloshing, slamming and propeller immersion. 3.5. The ballast water exchange methods currently in use are the sequential, flow-through (tank overflow) and dilution methods: 1. where the sequential method is to be used, particular attention should be given to the ballast tank layout, total ballast capacity, individual tank configuration and hull girder strength. If the plan requires simultaneously empting and refilling closely matched diagonal tanks then consequential torsional stresses should be considered. Still water bending moments, shear forces and stability should remain at or within safe limits; 2. where the flow through method is to be used adequate provision should be made to avoid the risk of over pressurization of ballast tanks or ballast piping. The installation of additional air pipes, access hatches (as an alternative to deck manholes), internal overflow pipes (to avoid flowing over the deck) and interconnecting ballast trunks between tanks where applicable and possible may be considered. Water on decks and/or direct contact posses a safety and occupational health hazard to personnel. The design should, where possible, be such that it avoids water overflowing directly on to decks to avoid the direct contact by personnel with the ballast water;

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3. where the dilution method is to be used adequate provision should be made for appropriate piping arrangements to facilitate the ballast water pumping into the previously ballasted tanks through the top of the ballast tank and, simultaneously, discharging the ballast water through the bottom of the tank at the same flow rate while maintaining a constant ballast water level in the tank throughout the exchange operation. Adequate provision should also be made to avoid the risk of over pressurization of ballast tanks or ballast piping. The hydrodynamic performance of the ballast tank is crucial to ensure full water exchange and sediment scouring.

4. Design Considerations to Enhance Management, Control and Operational Strategies Sea chests 4.1.

The following should be considered: 1. sea chest design should be such that sediment accumulation is minimized; and 2. provision of a high sea chest.

Ballast tanks 4.2. The design of ballast tanks should also take account of the Guidelines on design and construction to facilitate sediment control on ships (G12). Ship-to-shore ballast transfer arrangements 4.3. If consideration is given to providing ship-to-shore connections to transfer ballast to shore-based ballast water reception facilities, the arrangements should be compatible with a recognized standard such as those in the Oil Companies International Marine Forum (OCIMF) “Recommendations for Oil Tankers Manifolds and Associated Equipment”. It is recognized that this standard was originally produced for oil transfer connections, however the general principles in this standard can be applied to connections for ballast transfer in particular the sections related to flanges and connection methods.

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Resolution MEPC.150(55) Adopted on 13 October 2006 Guidelines on Design and Construction to Facilitate Sediment Control on Ships (G12) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Regulation B-5.2 of the Ballast Water Management Convention provides that, ships constructed in or after 2009 should, without compromising safety or operational efficiency, be designed and constructed with a view to minimize the uptake and undesirable entrapment of sediments, facilitate removal of sediments, and provide safe access to allow for sediment removal and sampling taking into account Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop these Guidelines as a matter of urgency. Having Considered, at its fifty-fifth session, the draft Guidelines on design and construction to facilitate sediment control on ships developed by the Ballast Water Working Group, and the recommendation made by the Sub-Committee on Bulk Liquids and Gases at its tenth session. 1. ADOPTS the Guidelines on design and construction to facilitate sediment control on ships as set out in the Annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines on Design and Construction to Facilitate Sediment Control on Ships (G12) 1.

Purpose

1.1. Regulation B-5.2 of the Convention requires that ships described in Regulations B-3.3 to B-3.5 should, without compromising safety or operational efficiency, be designed and constructed with a view to minimize the uptake and undesirable entrapment of sediments, facilitate removal of sediments and provide safe access to allow for sediment removal and sampling, taking into account these Guidelines. Ships described in Regulation B-3.1 of the Convention should, to the extent practicable, also comply with Regulation B-5.2 taking into account these Guidelines. 1.2. The purpose of these Guidelines is to provide guidance to ship designers, ship builders, owners and operators in the development of ship structures and equipment to achieve the objectives of paragraph 1.1 and thereby, reduce the possibility of introducing harmful aquatic organisms and pathogens. 1.3. There may be a conflict between preventing accumulation of sediments and preventing the discharge of harmful aquatic organisms and pathogens.

2.

Introduction

2.1. Water taken up as ships’ ballast can contain solid alluvial matter that, once the water is becalmed in a ship’s ballast tank, will settle out onto the bottom of the tank and other internal structures. 2.2. Aquatic organisms can also settle out of the ballast water and can continue to exist within the sediment. These organisms can survive for long periods after the water they were originally in has been discharged. They may thereby be transported from their natural habitat and discharged in another port or area where they may cause injury or damage to the environment, human health, property and resources. 2.3. Regulation B-5.1 of the Convention requires that all ships remove and dispose of sediments from spaces designated to carry ballast water in accordance with the Ballast Water Management Plans. These Guidelines are to assist ship designers, ship builders, owners and operators to design ships to minimise the retention of sediment. Guidance on the management of sediment is contained in the Guidelines for Ballast Water Management and the Development of Ballast Water Management Plans (G4).

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Definitions

3.1. For the purposes of these Guidelines, the definitions in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Convention) apply. 3.2. Ballast Water Tank – for the purposes of these Guidelines a ballast water tank is any tank, hold or space used for the carriage of ballast water as defined in Article 1 of the Convention.

4.

Design for Reducing Accumulation of Sediment

4.1. Ballast water tanks and their internal structure should be designed to avoid the accumulation of sediment in a ballast tank. The following should, as far as is practicable, be taken into account when designing ballast tanks: 1. horizontal surfaces to be avoided wherever possible; 2. where longitudinals are fitted with face bar stiffeners, consideration should be given to fit the face bar stiffeners below the horizontal surfaces to aid drain off from the stiffeners; 3. arrange for induced flows of water, either by pump forces or gravitational forces, to wash along horizontal or near horizontal surfaces so that it resuspends already settled sediment; 4. where horizontal stringers or webs are required, drainage holes to be as large as possible, especially if edge toe-stops are fitted where horizontal stringers are used as walkways, to encourage rapid flow of water off them as the water level in the tank falls; 5. internal girders, longitudinals, stiffeners, intercostals and floors, where fitted should incorporate extra drain holes which allow water to flow with minimal restriction during discharge and stripping operations; 6. where inner members butt against bulkheads, their installation should be such as to prevent the formation of stagnant pools or sediment traps; 7. scallops should be located at the joints of the inner bottom (tank top) longitudinals or intercostals and floors to allow for good airflow, and thus drying out of an empty tank. This will also allow air to escape to the air pipe during filling so that minimum air is trapped within the tank; 8. pipeline systems should be designed such that, when deballasting, disturbance of the water in the tank is as powerful as possible, so that the turbulence re-suspends sediment; and 9. flow patterns in ballast water tanks should be studied (for example by the use of Computational Fluid Dynamics (CFD) ) and considered, so that

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internal structure can be designed to provide effective flushing. The amount of internal structure in double bottom tanks will reduce the scope for improving flow patterns. The hydrodynamic performance of the ballast tank is crucial to ensure sediment scouring. 4.2. Any designs depending upon water flow to re-suspend sediment should, as far as possible be independent of human intervention, in order that the work load of ships’ crews is minimal when operating the system. 4.3. The benefits of design concepts for reducing sediment accumulation are that there is likely to be good sediment removal while deballasting, with minimum retention of sediment in the tanks, and therefore a reduction or no need for removal by other means. 4.4. The design of all ships should provide safe access to allow for sediment removal and sampling. 4.5. The design of ballast water tanks should facilitate installation of high sea suction points on each side of the tank. 4.6. When practical, equipment to remove suspended matter at the point of uptake should be installed.

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Resolution MEPC.161(56) Adopted on 13 July 2007 Guidelines for Additional Measures Regarding Ballast Water Management Including Emergency Situations (G13) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (Ballast Water Management Convention) together with four Conference resolutions. Noting that regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that Section C of the Annex to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments provides that, if a Party, individually or jointly with other Parties, determines that measures in addition to those in Section B of the Convention are necessary to prevent, reduce, or eliminate the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments, such Party or Parties may, consistent with international law, require ships to meet a specified standard or requirement taking into account the Guidelines developed by the Organization. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop these Guidelines as a matter of urgency. Having Considered, at its fifty-sixth session, the draft Guidelines for additional measures regarding ballast water management including emergency situations (G13) developed by the Ballast Water Working Group.

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1. ADOPTS the Guidelines for additional measures regarding ballast water management including emergency situations (G13) as set out in the annex to this resolution; 2. INVITES Governments to apply these Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep these Guidelines under review.

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Guidelines for Additional Measures Regarding Ballast Water Management Including Emergency Situations (G13) 1.

Introduction

1.1. The International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004, hereafter referred to as the “Convention”, regulates the transfer of harmful aquatic organisms and pathogens from ships’ ballast water and sediments. 1.2. These Guidelines have been developed pursuant to regulation C-1 of the Convention. These Guidelines provide guidance under regulation C-1 for a Party or Parties to use when determining if measures in addition to those in Section B of the Convention are necessary in order to prevent, reduce or eliminate the transfer of harmful aquatic organisms and pathogens through ships’ ballast water and sediments. 1.3. The Guidelines should be kept under review in order to make use of experiences gained in their application.

2. 2.1.

Assessment When a State Intends to Introduce Additional Measures General

2.1.1. The Convention, in regulation C-1 Additional Measures, provides that a Party individually or jointly with other Parties, may introduce measures in addition to those in Section B. A Party or Parties may require ships, in accordance with international law, to meet or exceed a specified standard or requirement. 2.1.2. A Party intending to introduce additional measures should take these Guidelines into account, and endeavour to make available all appropriate services for ships to facilitate their compliance with any additional measures. 2.2.

The assessment

2.2.1. Before a Party, individually or jointly with other Parties, intends to introduce additional measures in accordance with regulation C-1 of the Convention, it should assess the need for and nature of the measures, which should include: 1. identification of the concern, i.e., the potential harm from the introduction of harmful aquatic organisms and pathogens in the area to be covered by the additional measures; 2. description of the cause(s) of the identified concern;

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3. identification of potential additional measures to be introduced; and 4. identification of potential effects and consequences, beneficial and detrimental, resulting from introduction of the proposed additional measure(s). 2.2.2. A Party should assess the character of the concern. Such an assessment may include a consideration of such things as: 1. What are the probabilities or consequences of future introductions of harmful aquatic organisms and pathogens on the environment, human health, property, or resources? 2. If harmful aquatic organisms or pathogens have already been introduced, what effects are they already having on the environment, human health, property or resources, and how might this be affected by future introductions? 3. Whether ballast water from ships is a vector for the introduction of harmful aquatic organisms and pathogens? Identification of the additional measures to be introduced 2.2.3. The additional measure(s) to be introduced shall be in accordance with Article 7.2 and regulation C-1.3 of the Convention, and should be clearly identified in respect of: 1. the area(s) where the additional measure(s) is/are applicable defined by precise co-ordinates; 2. the operational and/or technical requirement(s) which applies to ships in the area(s), and the requirement(s) to provide documentation for compliance if needed; 3. the arrangements which may be provided to facilitate ships’ compliance with the additional measure(s); 4. the effective date and duration of the measure(s); and 5. any other requirements and services in relation to the additional measure(s). Effects and consequences of introduction of the proposed measure(s) 2.2.4. The economic consequences resulting from the introduction of the additional measure(s) should be taken into account. In this respect the following aspects may be relevant: 1. the economic benefits and possible costs, including costs to the industry, associated with the additional measure(s); and 2. any other effects and consequences.

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Procedures to follow when establishing additional measures

2.3.1. A Party or Parties intending to introduce additional measures in accordance with regulation C-1 of the Convention should consult adjacent States and other States that may be affected before the additional measures are decided upon so that such consultations can, where appropriate, meaningfully inform decision making. The Assessment as outlined in section 2.2 of these Guidelines should be presented to affected States, and States should be invited to comment on the draft assessment, if appropriate. 1. In regulation C-1 of the Convention two procedures for introducing additional measures are possible – one procedure which requires IMO approval, and another procedure which only requires IMO notification. 2. The Party or Parties should ensure that any additional measure(s) shall not compromise the safety and security of the ship and in any circumstances not conflict with any other conventions or customary international law with which the ship must comply. 3. The legal determination upon which the additional measure(s) is submitted should be identified. 4. In introducing additional measures, the Party or Parties should, inter alia, provide the following information to the Organization, in particular the Marine Environment Protection Committee (hereafter known as the “MEPC”): 1. the Assessment as outlined in section 2.2; 2. the identification of the legal determination upon which each additional measure(s) is submitted; and 3. the following additional details: 1. if the additional measure(s) is already provided under an existing IMO instrument; or 2. if the additional measure(s) does not yet exist but could become available through amendment of any IMO instrument or adoption of a new IMO instrument; or 3. if the additional measure(s) is proposed for adoption in the territorial sea1 or pursuant to the United Nations Convention on the Law of the Sea where existing measures or a generally applicable measure would not adequately address the concern identified in section 2.2. 1

This provision does not derogate from the rights and duties of coastal States in the territorial sea as provided for in the United Nations Convention on the Law of the Sea.

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5. Where a Party or Parties may seek to introduce additional measures through the notifying procedure, the IMO should be notified at least 6 months prior to the projected date of implementation, except in emergency circumstances in accordance with regulation C-1.3.2 of the Convention. 6. In the case where a Party or Parties intend to introduce additional measure(s) that requires approval by the Organization under international law as reflected in UNCLOS (see regulation C-1.3.3 of the Convention), the Party or Parties should, in accordance with the rules adopted by the MEPC for submission of papers, submit the application to introduce additional measure(s) to the MEPC for its approval. 7. In considering additional measures that require the approval of the Organization, the MEPC should be expected to consider an application submitted to it by a proposing Party or Parties on a case-by-case basis. In assessing each proposal, the MEPC should be expected in particular to consider: 1. whether such additional measures are in accordance with Article 7.2 and regulation C-1.3 of the Convention; 2. whether the proposed additional measures are appropriate to prevent, reduce, or eliminate the identified potential harm from the introduction of harmful aquatic organisms and pathogens in the area to be covered by the additional measures; 3. whether such measures might result in an increased potential for significant adverse effects by international shipping activities on the environment outside the area to be covered by the additional measures; and 4. whether such measures might, inter alia, result in any impact on the safety and commercial aspect of international shipping activities. 8. In the case where an application is submitted for approval, if the MEPC approves the application, the additional measure(s) may be implemented. If the application is not approved, the additional measure(s) cannot be implemented. The proposing Party or Parties may submit a revised application to the Marine Environment Protection Committee for approval subsequently. 2.4.

Communication of information

2.4.1. A Party or Parties intending to introduce additional measures should inform adjacent States and other States that may be affected, the shipping industry in general and ships entering the areas concerned as soon as possible, and in

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the case of those measures requiring approval of the Organization, as soon as the proposal has been so approved. The information should at least contain: 1. the precise co-ordinates where and applicable date when additional measure(s) is/are applicable; 2. the need and reasoning for the application of the additional measure(s), including, whenever possible, benefits; 3. a description of the additional measure(s); and 4. any arrangements that may be provided to facilitate ships’ compliance with the additional measures. 2.4.2. Communications in accordance with regulation C-1 of the Convention shall be submitted to the Marine Environment Protection Committee. Except in emergency situations, the intention to establish such additional measures is required by regulation C-1.3 to be communicated to the Organization at least six months prior to the projected date of implementation. In emergency situations, additional measures should be communicated to the Organization as soon as possible. 2.4.3. In both cases (approval/non-approval), in due time before the introduction of the additional measure(s) a Party or Parties intending to introduce additional measures should inform affected States, the shipping industry in general and ships entering the areas concerned, the following should be communicated: 1. the precise co-ordinates where additional measure(s) is/are applicable; 2. the operational and/or technical requirement(s) which applies or apply to ships in the area(s), and the requirement(s) to provide documentation for compliance if needed; 3. the arrangements which may be provided to facilitate ships’ compliance with the additional measure(s); 4. the effective date and duration of the measure(s); and 5. any other requirements and services in relation to the additional measure(s). 2.4.4. The Organization shall issue circulars or post relevant information on the website in accordance with the provisions of the Convention.

3.

Emergency or Epidemic Situation

3.1. A Party or Parties may adopt an additional measure(s) to address an emergency or epidemic situation.

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3.2. If such a measure is adopted, a Party or Parties should, as soon as possible, notify adjacent and other States that may be affected, the shipping industry in general, and ships operating in the areas of concern. Such information should contain: 1. 2. 3. 4.

the precise co-ordinates of the area; the need for such additional measure(s); a description of the additional measure(s); any arrangements that may be provided to facilitate ships’ compliance with the additional measure(s); and 5. the effective date when the measure(s) applies and when the measure(s) is no longer in effect.

3.3. In an emergency or epidemic situation, the additional measure(s) adopted should be communicated to the Organization as soon as possible. The Organization shall post relevant information on its website and retain such information for dissemination to the Committee.

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Appendix Flow Chart – Procedure For Introducing Additional Measures

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Resolution MEPC.151(55) Adopted on 13 October 2006 Guidelines on Designation of Areas for Ballast Water Exchange (G14) The Marine Environment Protection Committee Recalling Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by the international conventions for the prevention and control of marine pollution. Recalling Also that the International Conference on Ballast Water Management for Ships held in February 2004 adopted the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the Ballast Water Management Convention) together with four Conference resolutions. Noting that Regulation A-2 of the Ballast Water Management Convention requires that discharge of ballast water shall only be conducted through Ballast Water Management in accordance with the provisions of the Annex to the Convention. Noting Further that regulation B-4.2 of the Convention stipulates that in sea areas where the distance from the nearest land or the depth does not meet the parameters described in Regulation B-4.1, the port State may designate areas, in consultation with adjacent or other States, as appropriate, where a ship may conduct ballast water exchange and MEPC 52 identified the need for additional guidance on the designation of areas for ballast water exchange. Noting Also that resolution 1 adopted by the International Conference on Ballast Water Management for Ships invited the Organization to develop the Guidelines for uniform application of the Convention as a matter of urgency. Having Considered, at its fifty-fifth session, the draft Guidelines on designation of areas for ballast water exchange (G14) developed by the Ballast Water Working Group, and the recommendation made by the Sub-Committee on Bulk Liquids and Gases at its tenth session. 1. ADOPTS the Guidelines on designation of areas for ballast water exchange (G14) as set out in the Annex to this resolution; 2. INVITES Governments to apply the Guidelines as soon as possible, or when the Convention becomes applicable to them; and 3. AGREES to keep the Guidelines under review.

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Guidelines on Designation of Areas for Ballast Water Exchange (G14) 1.

Purpose

1.1. The purpose of these Guidelines is to provide guidance to port States for the identification, assessment and designation of sea areas where ships may conduct ballast water exchange in accordance with Regulation B-4.2 of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Convention).

2.

Introduction

2.1. Regulation B-4.2 of the Convention allows port States to designate areas, in consultation with adjacent or other States, as appropriate, where ships may conduct ballast water exchange. 2.2. These Guidelines provide generic guidance to promote uniform application of Regulation B-4.2 in designating areas for ballast water exchange to minimize the risk of introduction of harmful aquatic organisms and pathogens. Party or Parties designating an area according to Regulation B-4.2 should endeavour not to impair or damage their environment, human health, property or resources or those of other States (under Article 2.6 of the Convention).

3.

Application

3.1. These Guidelines are intended for port States considering and intending to designate areas for ballast water exchange in accordance with Regulation B-4.2. Regulation B-4.2 states that “in sea areas where the distance from the nearest land or the depth does not meet the parameters described in paragraph 1.1 or 1.2, the port State may designate areas, in consultation with adjacent or other States, as appropriate, where a ship may conduct Ballast Water exchange”.

4.

Definitions

4.1. For the purposes of these Guidelines, the definitions in the Convention apply.

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Process for the Designation of Sea Areas for Ballast Water Exchange

5.1. There are three integral steps to designating an area as a ballast water exchange area: identification, assessment and designation. The Guidelines provide criteria to address and consider for each of these steps (see sections 7, 8 and 9), however these criteria are not intended to be exhaustive. 5.2. A port State considering designating ballast water exchange areas shall do this in accordance with its rights and obligations under international law.

6.

Consultation and Regional Co-operation

6.1. The port State should consult with adjacent or other States, as appropriate, when identifying, assessing and designating potential ballast water exchange areas. It must be recognized that some States may not be a Party to the Convention, however this should not negate the consultation process. The port State initiating the consultation process should exchange information and should take into account all views and comments of the adjacent and other States as far as practicable. States should endeavour to resolve any identified concerns. 6.2. If multiple Parties wish to jointly designate ballast water exchange areas, they could do so under Article 13.3 of the Convention through a regional agreement.

7.

Identification of Potential Sea Areas for Ballast Water Exchange

7.1. Depending upon the nature of the seas surrounding the port State, it may be considered appropriate for single or multiple ballast water exchange areas to be identified. 7.2. The following considerations should be taken into account when identifying potential sea area(s) for undertaking ballast water exchange: Legal aspects 7.2.1. Any national or international legal requirements or obligations should be considered in identifying potential sea areas for designation under Regulation B-4.2. 7.2.2. Sea areas beyond the jurisdiction of a port State may provide the most practical and appropriate area for ballast water exchange. A Party should not designate ballast water exchange areas in waters under the jurisdiction of another State, without its agreement and consultation with adjacent and other States. Consultation should be initiated as soon as possible in the process to facilitate

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exchange of information and agreement for the designation of the ballast water exchange area (see section 6). Important resources and protected areas 7.2.3. In the designation of ballast water exchange area, Parties should consider and avoid, to the extent practicable, potential adverse impact in aquatic areas protected under national or international law, as well as other important aquatic resources including those of economic and ecological importance. Navigational constraints 7.2.4. Any designation of ballast water exchange areas should take into account navigation impacts, including the desirability of minimizing delays, as appropriate, taking into consideration the following: 1. the area should be on existing routes if possible, 2. if the area cannot be on existing routes, it should be as close as possible to them. 7.2.5. Constraints to safe navigation must be considered when selecting the location and size of the ballast water exchange area. Such considerations should include, but are not limited to: 1. 2. 3. 4. 5.

8.

increased shipping traffic congestion; proximity to other vessel traffic (small craft, offshore platforms, etc.); adequate aids to navigation; security of the area; and shipping lanes/routeing systems.

Assessment of Identified Sea Areas

8.1. Risk assessment is a logical process for objectively assigning the likelihood and consequences of specific events. Risk assessments can be qualitative or quantitative, and can be a valuable decision aid if completed in a systematic and rigorous manner. 8.1.1. The following key principles define the nature and performance of risk assessment: 1. Effectiveness – That risk assessments accurately measure the risks to the extent necessary to achieve an appropriate level of protection. 2. Transparency – That the reasoning and evidence supporting the actions recommended by risk assessments, and areas of uncertainty (and their

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3. 4.

5.

6.

7. 8.

possible consequences to those recommendations), are clearly documented and made available to decision-makers. Consistency – That risk assessments achieve a uniform high level of performance, using a common process and methodology. Comprehensiveness – That the full range of values, including economic, environmental, social and cultural, are considered when assessing risks and making recommendations. Risk Management – Low risk scenarios may exist, but zero risk is not obtainable, and as such risk should be managed by determining the acceptable level of risk in each instance. Precautionary – That risk assessments incorporate a level of precaution when making assumptions, and making recommendations, to account for uncertainty, unreliability, and inadequacy of information. The absence of, or uncertainty in, any information should therefore be considered an indicator of potential risk. Science based – That risk assessments are based on the best available information that has been collected and analysed using scientific methods. Continuous improvement – Any risk model should be periodically reviewed and updated to account for improved understanding.

8.2. The identified ballast water exchange area(s) should be assessed in order to ensure that its designation will minimize any threat of harm to the environment, human health, property or resources taking into account but not limited to the following criteria: 8.2.1. Oceanographic (e.g., currents, depths) •

• •

Currents, upwellings or eddies should be identified and considered in the evaluation process. Sea areas where currents disperse discharged ballast water away from land should be selected where possible. Areas where tidal flushing is poor or where a tidal stream is known to be turbid, should be avoided where possible. The maximum water depth available should be selected where possible.

8.2.2. Physico-chemical (e.g., salinity, nutrients, dissolved oxygen, chlorophyll ‘a’) •

High nutrient areas should be avoided where possible.

8.2.3. Biological (e.g., presence of Harmful Aquatic Organisms and Pathogens, including cysts; organisms density) •

Areas known to contain outbreaks, infestations, or populations of Harmful Aquatic Organisms and Pathogens (e.g. harmful algal blooms) which are likely to be taken up in Ballast Water, should be identified and avoided where possible.

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8.2.4. •

Environmental (e.g., pollution from human activities) Sea area(s) that may be impacted by pollution from human activities (e.g., areas nearby sewage outfalls) where there may be increased nutrients or where there may be human health issues, should be avoided where possible. Sensitive aquatic areas should be avoided to the extent practicable.

• 8.2.5. •

Important resources (e.g., fisheries areas, aquaculture farms) Location of important resources, such as key fisheries areas and aquaculture farms should be avoided.

8.2.6. •

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Ballast water operations (e.g., quantities, source, frequency) A foreseen estimation of the quantities, sources and frequencies of ballast water discharges from vessels that will use the designated sea area should be considered in the assessment of such area.

8.3. An assessment of the most appropriate size of the designated ballast water exchange area needs to take into account the above considerations.

9.

Designation of Sea Areas for Ballast Water Exchange

9.1. The location and size that provide the least risk to the aquatic environment, human health, property or resources should be selected for designation. The spatial limits of the ballast water exchange area/s should be clearly defined and shall be in accordance with international law. It may also be possible for the designation of a ballast water exchange area to apply over specified timeframes, and these should be clearly defined. 9.2. A baseline evaluation should be conducted to aid future monitoring and review. The process of identification and assessment may provide sufficient information for the baseline.

10.

Communication

10.1. A Party or Parties intending to designate areas for ballast water exchange under Regulation B-4.2 should communicate this intention to the Organization prior to the implementation of the designated ballast water exchange area. Such communication should include: 1. The precise geographical co-ordinates, depth limit and/or distance from nearest land that defines the designated ballast water exchange area.

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2. Other information that may be relevant to facilitate ships’ identification of the designated ballast water exchange area, for example navigation aids. 3. Details of the characteristics of the designated ballast water exchange area that may be relevant to assist ships plan their voyage, including: use of area by other traffic, current and tidal flow, wind and swell conditions, seasonal events (cyclones, typhoons, ice, etc.). 10.2. The Organization shall circulate information regarding designated ballast water exchange areas to the Members of the Organization. 10.3. Port States should provide adequate advice to ships on the location and terms of use of the designated ballast water exchange area. Such advice may include exchanging as many tanks as possible under regulation B-4.1, as far as practicable taking into account regulation B-4.3, before utilizing the designated ballast water exchange area.

11.

Monitoring and Review

11.1. The use of the designated ballast water exchange area and any impacts on the aquatic environment, human health, property or resources of the port State or those of other States should be monitored and reviewed on a regular basis. 11.2. One reason for monitoring may be to document the occurrence of harmful aquatic organisms in such areas which may be introduced by ballast water exchange. In case harmful aquatic organisms are found to be introduced, the designated ballast water exchange area may be closed to avoid promoting the spread of such newly occurring species to other regions.

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Resolution MEPC.56/23 Adopted on 13 July 2007 Guidelines for Ballast Water Exchange in the Antarctic Treaty Area 1. The application of these Guidelines should apply to those vessels covered by Article 3 of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Ballast Water Management Convention), taking into account the exceptions in regulation A-3 of the Convention. These Guidelines do not replace the requirements of the Ballast Water Management Convention, but provide an interim Ballast Water Regional Management Plan for Antarctica under Article 13(3). 2. If the safety of the ship is in any way jeopardized by a ballast exchange, it should not take place. Additionally these guidelines do not apply to the uptake or discharge of ballast water and sediments for ensuring the safety of the ship in emergency situations or saving life at sea in Antarctic waters. 3. A Ballast Water Management Plan should be prepared for each vessel with ballast tanks entering Antarctic waters, specifically taking into account the problems of ballast water exchange in cold environments and in Antarctic conditions. 4. Each vessel entering Antarctic waters should keep a record of ballast water operations. 5. For vessels needing to discharge ballast water within the Antarctic Treaty area, ballast water should first be exchanged before arrival in Antarctic waters (preferably north of either the Antarctic Polar Frontal Zone or 60°S, whichever is the furthest north) and at least 200 nautical miles from the nearest land in water at least 200 metres deep. (If this is not possible for operational reasons then such exchange should be undertaken in waters at least 50 nautical miles from the nearest land in waters of at least 200 metres depth). 6. Only those tanks that will be discharged in Antarctic waters would need to undergo ballast water exchange following the procedure in paragraph 5. Ballast water exchange of all tanks is encouraged for all vessels that have the potential/capacity to load cargo in Antarctica, as changes in routes and planned activities are frequent during Antarctic voyages due to changing meteorological and sea conditions. 7. If a vessel has taken on ballast water in Antarctic waters and is intending to discharge ballast water in Arctic, sub-Arctic, or sub-Antarctic waters, it is recommended that ballast water should be exchanged north of the Antarctic

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Polar Frontal Zone, and at least 200 nautical miles from the nearest land in water at least 200 metres deep. (If this is not possible for operational reasons then such exchange should be undertaken in waters at least 50 nautical miles from the nearest land in waters of at least 200 metres depth.) 8. Release of sediments during the cleaning of ballast tanks should not take place in Antarctic waters. 9. For vessels that have spent significant time in the Arctic, ballast water sediment should preferably be discharged and tanks cleaned before entering Antarctic waters (south of 60°S). If this cannot be done then sediment accumulation in ballast tanks should be monitored and sediment should be disposed of in accordance with the ship’s Ballast Water Management Plan. If sediments are disposed of at sea, then they should be disposed of in waters at least 200 nautical miles from the shoreline in waters at least 200 metres deep. 10. Governments are invited to exchange information on invasive marine species or anything that will change the perceived risk associated with ballast water.

Annex III Resolution A.868(20) Adopted on 27 November 1997 Guidelines for the Control and Management of Ships’ Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens The Assembly Recalling Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning prevention and control of marine pollution from ships. Recalling also resolution A.774(18) by which it recognized that the uncontrolled discharge of ballast water and sediment from ships has led to the transfer of harmful aquatic organisms and pathogens, causing injury to public health and damage to property and the environment, and accordingly adopted Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and Pathogens from Ships’ Ballast Water and Sediment Discharges, and further that the Marine Environment Protection Committee (MEPC) and the Maritime Safety Committee (MSC) shall keep the ballast water issue and the application of the Guidelines under review with a view to further developing the Guidelines as a basis for a new Annex to MARPOL 73/78. Recalling Further that the 1992 United Nations Conference on Environment and Development (UNCED), in its Agenda 21 requests IMO to consider the adoption of appropriate rules on ballast water discharge to prevent the spread of non-indigenous organisms, and further proclaims in its Declaration on Environment and Development that States shall widely apply the precautionary approach according to their capabilities. Bearing in Mind that MEPC/Circ.288 recognized that the existing Guidelines do not provide a complete solution towards the total prevention of the introduction of harmful aquatic organisms and pathogens, but urged that focus should be Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 367–384. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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directed on measures aimed at minimizing the risks, emphasizing further that in applying the existing Guidelines, the ship’s safety was of paramount importance. Noting the objectives of the Convention on Biological Diversity, 1992, and that the transfer and introduction of alien aquatic species with ballast water threatens the conservation and sustainable use of biological diversity. Noting further the status of work carried out by MEPC as requested by resolution A.774(18) concerning the development of legally binding provisions on ballast water management together with guidelines for their effective implementation, as well as the Guidance on Safety Aspects of Ballast Water Exchange at Sea prepared by the Sub-Committee on Ship Design and Equipment, and distributed as MEPC/ Circ.329 and MSC/Circ.806, both of 30 June 1997. Recognizing that several States have taken unilateral action by adopting legally binding provisions for local, regional or national application with a view to minimizing the risks of introducing harmful aquatic organisms and pathogens through ships entering their ports, and also that this issue, being of worldwide concern, demands action based on globally applicable regulation together with guidelines for their effective implementation and uniform interpretation, Having considered the recommendation of the MEPC at its fortieth session on this issue 1. Adopts the Guidelines for the Control and Management of Ships’ Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens set out in the Annex to the present resolution; 2. Requests Governments to take urgent action in applying these Guidelines, including the dissemination thereof to the shipping industry, to use them as a basis for any measures they adopt with a view to minimizing the risks of introducing harmful aquatic organisms and pathogens, and to report to the MEPC on any experience gained in their implementation; 3. Requests also the MEPC to work towards completion of legally binding provisions on ballast water management in the form of a new Annex to MARPOL 73/78, together with guidelines for their uniform and effective implementation with a view to their consideration and adoption in the year 2000; 4. Requests further the MSC to include in its workplan the evaluation of information received from interested parties, particularly that relevant to 12.2 of the Guidelines adopted herewith, with a view to determining the hazards and potential consequences for various existing ship types and operations. The MSC is also requested to consider any other relevant issues concerning ballast water management as well as design objectives for new ships, with a view to minimizing to the extent possible risks of introducing harmful aquatic organisms and pathogens with ships’ ballast water and sediments; 5. Revokes resolution A.774(18).

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Contents Chapter 1 - Introduction Chapter 2 - Definitions Chapter 3 - Application Chapter 4 - Guideline Objectives and Background Chapter 5 - Dissemination of Information Chapter 6 - Training and Education Chapter 7 - Procedures for Ships and Port States 7.1. Procedures for ships 7.2. Procedures for port States Chapter 8 - Recording and Reporting Procedures 8.1. Procedures for ships 8.2. Procedures for port States Chapter 9 - Ships’ Operational Procedures 9.1. Precautionary practices 1. Minimizing uptake of harmful aquatic organisms, pathogens and sediments 2. Removing ballast sediment on a timely basis 3. Avoiding unnecessary discharge of ballast water 9.2. Ballast water management options 1. Ballast water exchange 2. Non-release or minimal release of ballast water 3. Discharge to reception facilities 4. Emergent and new technologies and treatments Chapter 10 - Port State Consideration 10.1. Highly disparate conditions between uptake and discharge ports 10.2. Ballast water age 10.3. Presence of target organisms Chapter 11 - Enforcement and Monitoring by Port States Chapter 12 - Future Consideration in Relation to Ballast Water Exchange 12.1. Research needs 12.2. Long-term evaluation of safety aspects in relation to ballast water exchange Chapter 13 - Ballast System Design Appendix 1 - Ballast Water Reporting Form Appendix 2 - Guidance on Safety Aspects of Ballast Water exchange at Sea

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1.

Introduction

1.1. Studies carried out in several countries have shown that many species of bacteria, plants, and animals can survive in a viable form in the ballast water and sediment carried in ships, even after journeys of several months’ duration. Subsequent discharge of ballast water or sediment into the waters of port States may result in the establishment of harmful aquatic organisms and pathogens which may pose threats to indigenous human, animal and plant life, and the marine environment. Although other media have been identified as being responsible for transferring organisms between geographically separated water bodies, ballast water discharge from ships appears to have been among the most prominent. 1.2. The potential for ballast water discharge to cause harm has been recognised not only by the International Maritime Organization but also by the World Health Organization, which is concerned about the role of ballast water as a medium for the spreading of epidemic disease bacteria. 1.3. These Guidelines are not to be regarded as a certain solution to the problem. Rather, each part of them should be viewed as a tool which, if correctly applied, will help to minimize the risks associated with ballast water discharge. As scientific and technological advances are made, the Guidelines will be refined to enable the risk to be more adequately addressed. In the interim, port States, flag States and other parties that can assist in mitigating this problem should exercise due care and diligence in an effort to conform to the maximum extent possible with the Guidelines. 1.4. The selection of appropriate methods of risk minimization will depend upon several factors, including the type or types of organisms being targeted, the level of risk involved, its environmental acceptability, the economic and ecological costs involved and the safety of ships.

2.

Definitions

For the purposes of these Guidelines, the following definitions apply: Administration means the Government of the State under whose authority the ship is operating. Convention means MARPOL 73/78 (International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 related thereto). Member States means States that are Members of the International Maritime Organization. Organization means the International Maritime Organization (IMO).

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Port State authority means any official or organisation authorized by the Government of a port State to administer guidelines or enforce standards and regulations relevant to the implementation of national and international shipping control measures. Treatment means a process or mechanical, physical, chemical or biological method to kill, remove or render infertile, harmful or potentially harmful organisms within ballast water.

3.

Application

The Guidelines are directed to Member States and can apply to all ships; however, a port State authority shall determine the extent to which they do apply.

4.

Guideline Objectives and Background

4.1. The objectives of these Guidelines, developed under technical and scientific guidance, are intended to assist Governments and appropriate authorities, ship masters, operators and owners, and port authorities, as well as other interested parties, in minimizing the risk of introducing harmful aquatic organisms and pathogens from ships’ ballast water and associated sediments while protecting ships’ safety. 4.2. The Guidelines allow port States to exempt ships within the area under their jurisdiction from part or all of the relevant provisions. Notwithstanding, any administration wishing to apply restrictions to ballast water operations should still follow these Guidelines, when developing legislation or procedures. 4.3. In order that the Guidelines may be implemented in a standard and uniform manner, all Member State Governments, ship operators, other appropriate authorities and interested parties are requested to apply these Guidelines.

5.

Dissemination of Information

5.1. Administrations are encouraged to maintain and exchange information relevant to these Guidelines through the Organization. Accordingly, administrations are encouraged to provide the Organization with the following: 1. Information on severe outbreaks or infestations of harmful aquatic organisms which may pose a risk; 2. Copies of current domestic laws and regulations;

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3. Technical and research information; 4. Education materials (such as audio and video tapes) and printed materials; and 5. Location and terms of use of alternative exchange zones, contingency strategies, availability of shore reception facilities, fees, etc. 5.2. Member States, applying ballast water and sediment discharge procedures, should notify the Organization of specific requirements and provide to the Organization, for the information of other Member States and non-governmental organizations, copies of any regulations, standards, exemptions or guidelines being applied. Verification and detailed information concerning port State requirements should be obtained by the ship prior to arrival. 5.3. Port State authorities should provide the widest possible distribution of information on ballast water and sediment management and treatment requirements that are being applied to shipping. Failure to do so may lead to unnecessary delays for ships seeking entry to port States. 5.4. Shipping organizations and ships’ managers should be familiar with the requirements of port State authorities with respect to ballast water and sediment management and treatment procedures, including information that will be needed to obtain entry clearance. 5.5. Member States are invited to provide the Organization with details of any research and development studies that they carry out with respect to the impact and control of harmful aquatic organisms and pathogens in ships’ ballast water and sediment. 5.6. Member States should provide to the Organization details of records describing reasons why existing requirements could not be complied with, e.g. force majeure, heavy weather, failure of equipment, or lack of information concerning port State requirements.

6. Training and Education 6.1. Training for ships’ masters and crews as appropriate should include instructions on the application of ballast water and sediment management and treatment procedures, based upon the information contained in these Guidelines. Instruction should also be provided on the maintenance of appropriate records and logs. Governments should ensure that their marine training organizations include this in the contents of their syllabus. 6.2. The application of processes and procedures concerning ballast water management are currently at the core of the solution to minimize the introduction of harmful aquatic organisms and pathogens.

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6.3. Governments are encouraged to include knowledge of duties regarding the control of pollution of the sea by harmful aquatic organisms and pathogens in their training requirements for certificates.

7.

Procedures for Ships and Port States

7.1. Procedures for ships 7.1.1. Every ship that carries ballast water should be provided with a ballast water management plan to assist in the minimization of transfer of harmful aquatic organisms and pathogens. The intent of the plan should be to provide safe and effective procedures for ballast water management. 7.1.2. The ballast water management plan should be specific to each ship. 7.1.3. The ballast water management plan should be included in the ship’s operational documentation. Such a plan should address, inter alia: – – – –

relevant parts of these Guidelines; approval documentation relevant to treatment equipment; an indication of records required; and the location of possible sampling points.

7.2. Procedures for port States 7.2.1. Reception and treatment facilities should be made available for the environmentally safe disposal of ballast tank sediments. 7.2.2. Discharge of ship’s ballast water into port reception and/or treatment facilities may provide an acceptable means of control. Port State authorities wishing to utilize this strategy should ensure that the facilities are adequate.

8.

Recording and Reporting Procedures

8.1. Procedures for ships 8.1.1. Where a port State authority requires that specific ballast water procedures and/or treatment option(s) be undertaken, and due to weather, sea conditions or operational impracticability such action cannot be taken, the master should report this fact to the port State authority as soon as possible and, where appropriate, prior to entering seas under its jurisdiction. 8.1.2. To facilitate the administration of ballast water management and treatment procedures on board each ship, a responsible officer should be appointed to maintain appropriate records and to ensure that ballast water management and/or treatment procedures are followed and recorded.

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8.1.3. When taking on or discharging ballast water, as a minimum, the dates, geographical locations, ship’s tank(s) and cargo holds, ballast water temperature and salinity as well as the amount of ballast water loaded or discharged should be recorded. A suitable format is shown in appendix 1. The record should be made available to the port State authority. 8.1.4. The location and suitable access points for sampling ballast or sediment should be described in the ship’s ballast water management plan. This will allow crew members to provide maximum assistance when officers of the port State authority require a sample of the ballast water or sediment. 8.2. Procedures for port States 8.2.1. Consistent with 5.2 above, port States should provide ships with the following information: – – – –

details of their requirements concerning ballast water management; location and terms of use of alternative exchange zones; any other port contingency arrangements; and the availability, location, capacities of and applicable fees relevant to reception facilities that are being provided for the environmentally safe disposal of ballast water and associated sediment.

8.2.2. To assist ships in applying the precautionary practices described in 9.1.1. below, port States should inform local agents and/or the ship of areas and situations where the uptake of ballast water should be minimized, such as: – areas with outbreaks, infestations or known populations of harmful organisms and pathogens; – areas with current phytoplankton blooms (algal blooms, such as red tides); – nearby sewage outfalls; – nearby dredging operations; – when a tidal stream is known to be the more turbid; and – areas where tidal flushing is known to be poor.

9.

Ships’ Operational Procedures

9.1. Precautionary practices 9.1.1. Minimizing uptake of harmful aquatic organisms, pathogens and sediments When loading ballast, every effort should be made to avoid the uptake of potentially harmful aquatic organisms, pathogens and sediment that may contain such organisms. The uptake of ballast water should be minimized or, where practicable, avoided in areas and situations such as:

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– areas identified by the port State in connection with advice relating to 8.2.2. above; – in darkness when bottom-dwelling organisms may rise up in the water column; – in very shallow water; or – where propellers may stir up sediment. 9.1.2. Removing ballast sediment on a timely basis Where practicable, routine cleaning of the ballast tank to remove sediments should be carried out in mid-ocean or under controlled arrangements in port or dry dock, in accordance with the provisions of the ship’s ballast water management plan. 9.1.3. Avoiding unnecessary discharge of ballast water If it is necessary to take on and discharge ballast water in the same port to facilitate safe cargo operations, care should be taken to avoid unnecessary discharge of ballast water that has been taken up in another port. 9.2. Ballast water management options 9.2.1. Ballast water exchange Near-coastal (including port and estuarine) organisms released in mid-ocean, and oceanic organisms released in coastal waters, do not generally survive. When exchanging ballast at sea, guidance on safety aspects of ballast water exchange as set out in appendix 2 should be taken into account. Furthermore, the following practices are recommended: – where practicable, ships should conduct ballast exchange in deep water, in open ocean and as far as possible from shore. Where this is not possible, requirements developed within regional agreements may be in operation, particularly in areas within 200 nautical miles from shore. Consistent with 9.1.2. above, all of the ballast water should be discharged until suction is lost, and stripping pumps or eductors should be used if possible; – where the flow-through method is employed in open ocean by pumping ballast water into the tank or hold and allowing the water to overflow, at least three times the tank volume should be pumped through the tank; – where neither form of open ocean exchange is practicable, ballast exchange may be accepted by the port State in designated areas; and – other ballast exchange options approved by the port State. 9.2.2. Non-release or minimal release of ballast water In cases where ballast exchange or other treatment options are not possible, ballast water may be retained in tanks or holds. Should this not be possible, the ship should only discharge the minimum essential amount of ballast water in accordance with port States’ contingency strategies.

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9.2.3. Discharge to reception facilities If reception facilities for ballast water and/or sediments are provided by a port State, they should, where appropriate, be utilized. 9.2.4. Emergent and new technologies and treatments 9.2.4.1. If suitable new and emergent treatments and technologies prove viable, these may substitute for, or be used in conjunction with, current options. Such treatments could include thermal methods, filtration, disinfection including ultraviolet light, and other such means acceptable to the port State. 9.2.4.2. Results concerning the application and effectiveness of new ballast water management technologies and associated control equipment should be notified to the Organization with a view to evaluation and incorporation, as appropriate, into these Guidelines.

10.

Port State Considerations

The following is provided for the guidance of port State authorities in the implementation of their ballast water management programme, and to assess risks in relation to the ballast water containing harmful aquatic organisms and pathogens. 10.1. Highly disparate conditions between uptake and discharge ports Significantly different conditions may exist between port(s) of origin and the port in which ballast water is discharged. Examples include freshwater ballast being released into highly saline ports. There may be organisms capable of surviving such extreme transfers; however, there is a lower probability of species establishment under such transport events. 10.2. Ballast water age The length of time during which ballast water is within an enclosed ballast tank may also be a factor in determining the number of surviving organisms, because of the absence of light, decreasing nutrients and oxygen, changes of salinity and other factors. However, the maximum length of survival of organisms in ballast water varies, and in many cases is not known. Water of an age of 100 days should be considered the minimum for applying this consideration. Ballast water and sediments may contain dinoflagellate cysts and other organisms capable of surviving for a much longer length of time. 10.3. Presence of target organisms 10.3.1. Under certain circumstances it may be possible to determine if one or more target species are present in the water of a specific port and have been ballasted in a ship. In these circumstances, the receiving port State authority may invoke management measures accordingly. Even if such target species are not present, however, it should be noted that the ship may still be carrying many untargetted species which, if released in new waters, could be potentially harmful.

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10.3.2. Port States are encouraged to carry out biological baseline surveys in their ports and to disseminate the results of their investigations.

11.

Enforcement and Monitoring by Port States

11.1. Consistent with the precautionary approach to environmental protection, these Guidelines can apply to all ships unless specifically exempted by a port State authority within its jurisdiction. In accordance with 5.2. above, port State authorities should inform the Organization on how the Guidelines are being applied. 11.2. Member States have the right to manage ballast water by national legislation. However, any ballast discharge restrictions should be notified to the Organization. 11.3. In all cases, a port State authority should consider the overall effect of ballast water and sediment discharge procedures on the safety of ships and those on board. Guidelines will be ineffective if compliance is dependent upon the acceptance of operational measures that put a ship or its crew at risk. Port States should not require any action of the master which imperils the lives of seafarers or the safety of the ship. 11.4. It is essential that ballast water and sediment management procedures be effective as well as environmentally safe, practicable, designed to minimize costs and delays to the ship, and based upon these Guidelines whenever possible. 11.5. Any instructions or requirements of a ship should be provided in a timely manner and be clear and concise. 11.6. Port States should on request provide a visiting ship with any requested information relative to ballast water management and its potential effects with respect to harmful aquatic organisms and pathogens. 11.7. Any enforcement or monitoring activities should be undertaken in a fair, uniform and nationally consistent manner at all ports within the port State. Where there are compelling reasons whereby nationally consistent procedures cannot be followed, then deviations should be reported to the Organization. 11.8. Compliance monitoring should be undertaken by port State authorities by, for example, taking and analysing ballast water and sediment samples to test for the continued survival of harmful aquatic organisms and pathogens. 11.9. Where ballast water or sediment sampling for compliance or effectiveness monitoring is being undertaken, port State authorities should minimize delays to ships when taking such samples. 11.10. When sampling for research or compliance monitoring, the port State authority should give as much notice as possible to the ship that sampling will occur, to assist in planning staffing and operational resources. 11.11. The master has a general obligation to provide reasonable assistance for the above monitoring which may include provision of officers or crew, provision

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of the ship’s plans, records pertaining to ballast arrangements and details concerning the location of sampling points. 11.12. Sampling methods for research and monitoring is the responsibility of the individual port State. The Organization welcomes information on new or innovative methods of sampling and/or analysis, and any relevant information should be provided to it. 11.13. Port State authorities should indicate to the master or responsible officer the purpose for which a sample is taken (i.e., monitoring, research or enforcement). Results of analyses of samples should be made available to ship’s operators on request. 11.14. Port State authorities may sample or require samples to analyse ballast water and sediment, before permitting a ship to proceed to discharge its ballast water in environmentally sensitive locations. In the event that harmful aquatic organisms or pathogens are found to be present in the samples, a port State’s contingency strategy may be applied.

12.

Future Considerations in Relation to Ballast Water Exchange

12.1. Research needs Operational measures such as ballast water exchange may be appropriate in the short term; however, there is a clear need for further research. These Guidelines should be revised and adjusted in the light of results concerning new ballast water management options. 12.2. Long-term evaluation of safety aspects in relation to ballast water exchange Recognizing the need to evaluate the hazards and potential consequences for various types of ships and operations, interested parties should carry out detailed studies and provide information relevant to: – experience gained from carrying out ballast water exchange at sea, including any samples/model procedures; – operational precautions and procedures implemented to avoid potential hazards and consequences that may arise during the ballast water exchange at sea; – an evaluation of the safety margins between the actual metacentric height and stresses versus the allowable seagoing limits specified in the approved trim and stability booklet and loading manual, relevant to different types of ships and loading conditions;

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– any hazards which may arise due to human element issues relative to the responsible execution of ballast water exchange at sea in a manner which may not be fully prudent; – operational procedures carried out prior to initiating the ballast water exchange at sea and check points during the exchange; – the extent of training and management necessary to ensure that the process of ballast water exchange at sea is effectively monitored and controlled on board; – plan of action to incorporate any unique procedures should an emergency occur which may affect the exchange of ballast water at sea; and – the decision-making process, taking into account relevant safety matters, including ship’s position, weather conditions, machinery performance, ballast system inspection and maintenance, crew safety and availability.

13.

Ballast System Design

Builders, owners and classification societies should take these Guidelines into consideration when designing new ships or modifying existing ships.

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Appendix 1

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Appendix 2 Guidance on Safety Aspects of Ballast Water Exchange at Sea 1.

Introduction

1.1. This document is intended to provide guidance on the safety aspects of ballast water exchange at sea. The different types of ships which may be required to undertake ballast water exchange at sea make it presently impractical to provide specific guidelines for each ship type. Shipowners are cautioned that they should consider the many variables that apply to their ships. Some of these variables include type and size of ship, ballast tank configurations and associated pumping systems, trading routes and associated weather conditions, port State requirements and manning. 1.2. Ballast water exchange at sea procedures contained in relevant management plans should be individually assessed for their effectiveness from the environmental protection point of view as well as from the point of view of their acceptability in terms of structural strength and stability. 1.3. In the absence of a more scientifically based means of control, exchange of ballast water in deep ocean areas or open seas currently offers a means of limiting the probability that fresh water or coastal aquatic species will be transferred in ballast water. Two methods of carrying out ballast water exchange at sea have been identified: 1. the sequential method, in which ballast tanks are pumped out and refilled with clean water; and/or 2. the flow-through method, in which ballast tanks are simultaneously filled and discharged by pumping in clean water.

2.

Safety Precautions

2.1. Ships engaged in ballast water exchange at sea should be provided with procedures which account for the following, as applicable: 1. avoidance of over and under-pressurization of ballast tanks; 2. free surface effects on stability and sloshing loads in tanks that may be slack at any one time; 3. admissible weather conditions;

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4. weather routeing in areas seasonably affected by cyclones, typhoons, hurricanes, or heavy icing conditions; 5. maintenance of adequate intact stability in accordance with an approved trim and stability booklet; 6. permissible seagoing strength limits of shear forces and bending moments in accordance with an approved loading manual; 7. torsional forces, where relevant; 8. minimum/maximum forward and aft draughts; 9. wave-induced hull vibration; 10. documented records of ballasting and/or de-ballasting; 11. contingency procedures for situations which may affect the ballast water exchange at sea, including deteriorating weather conditions, pump failure, loss of power, etc.; 12. time to complete the ballast water exchange or an appropriate sequence thereof, taking into account that the ballast water may represent 50 % of the total cargo capacity for some ships; and 13. monitoring and controlling the amount of ballast water. 2.2.

If the flow through method is used, caution should be exercised, since:

1. air pipes are not designed for continuous ballast water overflow; 2. current research indicates that pumping of at least three full volumes of the tank capacity could be needed to be effective when filling clean water from the bottom and overflowing from the top; and 3. certain watertight and weathertight closures (e.g. manholes) which may be opened during ballast exchange, should be re-secured. 2.3. Ballast water exchange at sea should be avoided in freezing weather conditions. However, when it is deemed absolutely necessary, particular attention should be paid to the hazards associated with the freezing of overboard discharge arrangements, air pipes, ballast system valves together with their means of control, and the accretion of ice on deck. 2.4. Some ships may need the fitting of a loading instrument to perform calculations of shear forces and bending moments induced by ballast water exchange at sea and to compare with the permissible strength limits. 2.5. An evaluation should be made of the safety margins for stability and strength contained in allowable seagoing conditions specified in the approved trim and stability booklet and the loading manual, relevant to individual types of ships and loading conditions. In this regard particular account should be taken of the following requirements: 1. stability to be maintained at all times to values not less than those recommended by the Organization (or required by the Administration);

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2. longitudinal stress values not to exceed those permitted by the ship’s classification society with regard to prevailing sea conditions; and 3. exchange of ballast in tanks or holds where significant structural loads may be generated by sloshing action in the partially filled tank or hold to be carried out in favourable sea and swell conditions so that the risk of structural damage is minimized. 2.6. The ballast water management plan should include a list of circumstances in which ballast water exchange should not be undertaken. These circumstances may result from critical situations of an exceptional nature, force majeure due to stress of weather, or any other circumstances in which human life or safety of the ship is threatened.

3.

Crew Training and Familiarization

3.1. The ballast water management plan should include the nomination of key shipboard control personnel undertaking ballast water exchange at sea. 3.2. Ships’ officers and ratings engaged in ballast water exchange at sea should be trained in and familiarized with the following: 1. the ship’s pumping plan, which should show ballast pumping arrangements, with positions of associated air and sounding pipes, positions of all compartment and tank suctions and pipelines connecting them to ship’s ballast pumps and, in the case of use of the flow through method of ballast water exchange, the openings used for release of water from the top of the tank together with overboard discharge arrangements; 2. the method of ensuring that sounding pipes are clear, and that air pipes and their non-return devices are in good order; 3. the different times required to undertake the various ballast water exchange operations; 4. the methods in use for ballast water exchange at sea if applicable with particular reference to required safety precautions; and 5. the method of on-board ballast water record keeping, reporting and recording of routine soundings.

Annex IV Draft of Legislation on Ballast Water (Based on the conclusions and outcomes of the 2001 Malmö Workshop meeting and on the comments and reference model presented by Dr. Moira McConnell, the Lead Consultant of the Project) Bill No. _____ Provides for the regulations on control and management of Ballast Water under the Brazilian Jurisdiction and makes other provisions. Chapter I General Provisions Chapter II Ballasting Operations in Brazilian Jurisdictional Waters Chapter III Ballast Water Reporting and Management for all ships entering Brazilian Jurisdictional Waters Chapter IV Obligations of Brazilian ships and masters Chapter V Ballast Water Management Certificate Chapter VI Sediment Removal Chapter VII Responsibility Chapter VIII Infractions and Sanctions Chapter IX Final and Supplementary Provisions Fonseca de Souza Rolim, The International Law on Ballast Water, pp. 385–394. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

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Chapter I General Provisions Purpose Article 1. This law regulates the control and management of ships’ ballast water within Brazilian jurisdiction, encompassing the discharge of ballast water or sediments, by domestic or foreign ships, which may result in the presence of harmful aquatic organisms and pathogens that may pose threats or cause injuries to human and marine indigenous environment, in accordance with the domestic law and the international treaties signed by Brazil.

Application Article 2.

The provisions of this Law shall apply to:

I. all ships that use ballast in water entering or in transit through Brazilian jurisdictional waters; II. ships flying the flag of a Party to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments; (note: when this international convention comes into force on an international level, and is incorporated into the Brazilian legal system). Sole Paragraph: this law does not apply to warships, naval auxiliary ships, and government non-commercial service ships.

Definitions Article 3.

For the purposes of this Law, the following definitions shall apply:

I. “Administration” means the __________ (insert the Brazilian agency name responsible for administration, control and management of ships’ ballast water within Brazilian jurisdiction); II. “Authority” means the __________ (insert the name of the relevant agencies responsible for managing the coastal/port State functions under this legislation) III. “Alien Species” means organisms that are not indigenous to the marine ecosystem in that part of Brazilian waters; IV. “Ballast Water” means water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of a ship; V. “Alternative ballast water discharge and exchange zone” means marine areas in Brazilian waters designated as ecologically safe in accordance with applicable environmental legislation for ships’ ballasting operations;

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VI. “Ballast Water Management” means mechanical, physical, chemical, biological or other processes to kill, remove, render infertile, or avoid the uptake or discharge of harmful aquatic organisms and pathogens with ballast water and sediments; VII. “Ballast water management plan” means a plan specific to the ship that has been approved by the Administration as meeting international guidelines under IMO Resolution A.868 (2)__________ [ or Regulation B-1 (or its replacement regulation) in the Convention – reference to this Convention will be made only after it comes into force within the international legal scenario]; VIII. “Ballast water management record book” means the on board book that ships are required to use for recording ballasting operations__________ [in accordance with the Convention Regulation B-2 ( or new number) – reference to this Convention will be made only after it comes into force within the international legal scenario]; IX. “Ballast water reporting form” means a document required by the Authority, developed in accordance with IMO Resolution A.868 (20); X. “Convention” means the International Convention for the Control and Management of Ships’ Ballast Water and Sediments [reference to this Convention will be made only after it comes into force within the international legal scenario]; XI. “Ecology-Sensitive Areas” means marine ecosystem regions determined by an act of the Public Authorities, in which the conservation, pollution control and maintenance of ecological balance are conditioned to implementation of special measures regarding the transit of ships with a view to protecting and conserving the environment; XII. “Environmental Impact Assessment” means the instrument devised by the National Environmental Policy to identify and describe the potential effects of ballast water-related activities on the environment; XIII. “Environmental License” means an administrative act by which the competent environmental authority lays down the criteria, restrictions and environmental control measures to be followed by the individual or corporate venture in order to conduct any activities using environmental resources and to operate any ventures deemed actually or potentially polluting, or which may do harm to the environment in any way; XIV . “Harmful aquatic organisms or pathogens” means aquatic organisms or pathogens which, if introduced into the sea including estuaries or into fresh water courses, may create hazards to human health, harm to living resources and aquatic life, damage to amenities, or impairment of biological diversity, or may interfere with other legitimate uses of such areas; XV. “Port State authority” means any official or organisation authorised by the Government of a port State to administer guidelines or enforce

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standards and regulations relevant to the implementation of Brazilian law and international shipping measures; XVI. “Sediments” means matter settled out of ballast water within a ship; XVII. “Ship” means vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms, floating storage units, and floating production storage and loading units; XVIII. “Ship fouling” means the attachment of aquatic organisms to a ship or part of a ship; XIX. “Strategic plan” means a plan developed for each port to implement the coastal/port State responsibilities under this legislation to prevent the introduction and spread of harmful aquatic organisms or pathogens; XX. “Brazilian waters” means the inland waters, port waters, territorial sea, and economic exclusive zone.

Chapter II Ballasting Operation in Brazilian Jurisdictional Waters Article 4. Ballasting operations by domestic or foreign ships are prohibited in Brazilian jurisdictional waters without permission from the Authority. Paragraph 1. Permission to discharge will be granted by the Authority after review of the Ballast Water Reporting form and, if deemed necessary, inspection, without undue delay to the ship. Paragraph 2. Ships shall use ballast water management practices and obtain ballast water uptake permission from the Authority, which shall advise the master regarding marine areas where ballast water uptake shall be avoided.

Chapter III Ballast Water Reporting and Management for all ships entering Brazilian Jurisdictional Waters Article 5. All ships that use ballast water shall file directly, or through an agent, a Ballast Water Reporting Form with the Authority __________ 24 hours before entry into Brazilian waters. Paragraph 1. The shipping agency, through its legal representative or forwarding agent or person directly in charge for the ship, shall disclose the information set out in paragraph 1 of this article, by filling out the following document:

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I. Form Ballast Water Reporting issued by the Ministry of Health’s National Sanitation Surveillance Agency (ANVISA); or II. Form Ballast Water Reporting as per _____ issued by the Brazilian Navy. Article 6. All ships that use ballast water and intend to discharge ballast water in Brazilian waters shall apply their Ballast Water Management Plan before entering the Brazilian Jurisdictional Waters. Article 7. In order to avoid marine pollution, ships’ operational procedures shall follow, among other forms of management, the precautionary practices listed below, without prejudice to the application of other national or international rules on the matter: (…) Article 8. When loading ballast, every effort shall be made to avoid the uptake of potentially harmful aquatic organisms, pathogens and sediments that may contain such organisms. For this purpose, the uptake of ballast water shall be minimised and avoided in areas and situations such as: I. Areas identified by the Brazilian port pursuant to Brazilian laws; II. In the dark, when bottom-dwelling organisms may rise up in the water column; III. In very shallow water; I V . Ships using mid-ocean exchange for ballast water management shall do so in waters deeper than __________ metres. Article 9. Ships that do not file a Ballast Water Reporting Form or apply ballast water management: I. will be subject to inspection; II. may have its ballast water sampled and analysed before discharge is permitted; III. may, if deemed necessary to protect the safety of the marine ecosystem or human health in Brazil, be denied permission to discharge ballast water or entry to a port. Article 10. Refusal to file a Ballast Water Reporting Form, or filling a Form with false or misleading information, shall be punishable pursuant to article 21 hereof. Article 11. Organised ports, port facilities and platforms, as well as support facilities, shall provide for emergency plans to be adopted in ballast water pollution events for the control and management of ships’ ballast water with a view to minimising the transfer of harmful aquatic organisms and pathogens, pursuant to Brazilian laws and the IMO guidelines. Paragraph 1. Within the areas where there is concentration of organised ports, port facilities and platforms, as well as the respective support facilities, emergency

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plans shall be conceived in a concerted manner, with a view to allowing for integrated management of the areas subject to pollution risks.

Chapter IV Obligations of Brazilian ships and masters Article 12. All Brazilian ships that use ballast water must file a Ballast Water Reporting Form, pursuant to international and domestic laws in effect. Article 13. All Brazilian ships that use ballast water must carry and apply a Ballast Water Management Plan pursuant to –[the IMO Guidelines or the Convention (when the latter comes into force)] including preventative ballast uptake practices. Article 14. All Brazilian ships that use ballast water must carry, maintain and have available for inspection a Ballast Water Record Book pursuant to __________ [defined in the Convention (when it comes into force)].

Chapter V Ballast Water Management Certificate Article 15. All ships of more than 400 gross tonnes that use ballast water must carry a valid international Ballast Water Management Certificate granted by the Administration in accordance with the survey requirements under international law. Article 16. The International Ballast Water Management Certificate shall be drawn up in accordance with the form set forth in the IMO Guidelines for the Control and Management of Ships’ Ballast Water. Article 17. The International Ballast Water Management Certificate shall be valid for _____ ( _____ ) years. Sole Paragraph: The International Ballast Water Management Certificate shall cease to be valid in any of the following events: I. If the structure equipment, systems, fittings, arrangements or material necessary to achieve full compliance with the international standards established by IMO are changed, replaced or significantly repaired, and the Certificate is not modified in accordance with those standards; II. Upon transfer of the ship to the flag of another State. A new Certificate shall only be issued when the other State issuing the new Certificate is fully satisfied that the ship is in compliance with the requirements prescribed in the international standards established by IMO; and

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III. Other cases defined under Brazilian law and pursuant to the international treaties signed by Brazil.

Chapter VI Sediment Removal Article 18. Discharge or removal of sediments from ballast tanks or other related equipment is prohibited in Brazilian waters. Paragraph 1. Discharge may occur with permission from the Authority at designated reception facilities.

Chapter VII Responsibility Shipping Agencies, Ship owners, Persons Directly in Charge for the Ship, Consignees, Shipmaster Article 19. All Shipping Agencies, Ship owners, Persons Directly in Charge for the Ship, Consignees, and Shipmaster engaged in the storage or discharge of ballast water into Brazilian jurisdictional waters shall: I. provide the local environmental and sanitation authorities with the information requested thereby pursuant to Brazilian law and under the international treaties signed by Brazil; II. forward ballast water sampling to the Brazilian authorities, whenever required; III. submit the Ballast Water Report required by the Ministry of Health or [and, as the case may be] by the Brazilian Navy. Port Management Authorities, Port Facility Operators, and Related Persons Article 20.

Every legal entity involved in port activities shall:

I. comply with the rules and guidelines set out in Brazilian domestic and international legislation; II. abide by the orders and accompany the competent environmental authority who is on duty within the port area, as well as inspect the ballast water reception and treatment facilities; and III. keep Emergency Plans available for use in case of accidents.

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Chapter VIII Infractions and Sanctions Article 21.

The following events constitute a breach punishable under this Law:

I. Failure to comply with article 4 hereof: Penalty – Fine and prompt interdiction of the activities carried out at the location; II. Failure to comply with article 5 hereof: Penalty – Fine and temporary suspension of the activities carried out at the location; III. Failure to comply with article 7 hereof: Penalty – Fine and prompt suspension of the activities in the ship operating in an irregular manner. IV . Failure to comply with article 9 hereof: Penalty – Fine and prompt suspension of the activities in the ship operating in an irregular manner. 1. This penalty shall be meted out on the following persons, irrespective of negligence or wilful misconduct [insert this wording if the strict liability doctrine is to apply, considering the principle of Polluter Pay] OR 1. This penalty shall be meted out on the following persons, to the extent of their omission or commission [insert this wording if the at-fault liability doctrine is to apply] : 1.1. the ship-owner; 1.2. the outfitter or ship operator; 1.3. the shipmaster. V.

Failure to comply with article 14 hereof: Penalty – Fine and no authorisation for the entry into Brazilian territorial waters or call at Brazilian ports.

Paragraph 1. The value of penalties dealt with in this article shall be determined in proper regulations. Paragraph 2. The events of breach of article 18 hereof shall be spelled out in proper regulations. Paragraph 3. The penalties provided in this Law do not affect any right to compensation or other civil or criminal remedy that may apply.

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Chapter IX Final and Supplementary Provisions Article 22. The Executive Branch shall issue a Decree within _____ ( _____ ) days to regulate compliance with this Law. This Law shall come into force within _____ ( _____ ) days from its publication; all provisions to the contrary are hereby repealed. [Insert articles deemed necessary after review of the Bill by the competent authorities, considering priority issues as well as the following topics: 1. specific duties of the environmental agencies; 2. reference to international treaties signed by Brazil; 3. the framework for operation and inspection of ballast water activities.]

Index A Acceptance, 134, 136–137 Accepted international rules, 63–64, 72 Accession, 134–135 Active substance, 126 Administration, 101–102, 111, 113, 121, 129, 143 Administrative matters, 67, 113 Agenda 21, 99, 104, 155 Alien, 1, 10 Alien invasive species (AIS), 10–11, 18, 53, 69, 72, 96, 98–99, 103, 105, 107, 159–160 Alien species, 2–3, 8–11, 16–19, 21, 29–30, 69, 71, 101–102 Alternative exchange zones, 93, 95 Amendments, 137 Annex I, International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004, 185–226 Annex II, Guidelines required under the BWM Convention, 227–366 Annex III, Resolution A.869(20), 1997, 367–383 Annex IV, Draft of Legislation on Ballast Water, 385–393 Anti-bipollution, 72, 86, 162-163 Anti-pollution, 58, 60, 64–66, 73–74, 76, 112, 115, 122, 142–143, 160, 162 Anticipatory measures, 67 Appendix, 142 Approval, 134, 136 Aquatic invasive species, 16, 53 Arbitration, 138 Area, 57 Arrangements, 139 Assembly, 75, 78, 82–84, 92 Athens Convention relating to the Carriage of Passenger and their Luggage by Sea, 78

B Bacteria, 5, 86, 88–89, 143 Ballast, 8, 12, 159 Ballast tank sediments, 110, 114, 128 Ballast water, 1, 3 – 4, 9, 15, 17–21, 31–32, 35, 47, 72, 76, 80, 83–84, 86, 89–98, 100–101, 108, 115, 120–121, 124, 127, 130, 140, 142–143, 146, 148, 151–153, 158–164 Ballast Water Exchange Standard, 164 Ballast Water Information Form, 85 Ballast water management, 62, 105, 113, 114–115, 117, 122, 126, 129–130, 141, 149, 163–164 Ballast Water Management Areas (BWMA), 117, 120 Ballast Water Management Certificate (BWMC), 110, 130, 142, 161, 163 Ballast Water Management for Ships (BWMS), 115, 126–127 Ballast Water Management Plan (BWMP), 63, 84, 93–94, 96, 110–112, 113, 116, 127–129, 151 Ballast water management practices, 90 Ballast Water Management System (BWMS), 108, 121, 129 Ballast Water Performance Standard, 20, 164 Ballast Water Record Book (BWRB), 63, 111, 114–116, 123, 127–128, 142, 163 Ballast Water Report Form (BWRF), 85, 90, 123, 148, 151, 158 Bibliography, 165–181 Biodiversity, 2–3, 9, 12, 16, 18, 26, 69, 76, 99, 101, 117, 159, 163–164 Biodiversity Convention (CBD), 2, 4, 10, 13, 26, 46, 68–72, 99, 101, 104–105, 109, 146, 149, 153, 158, 162–163 Bioinvasion, 8, 16, 31, 105, 159 Biological diversity, 70, 102, 159

Fonseca de Souza Rolim, The International law on Ballast Water, pp. 395–401. © 2008 Koninklijke Brill NV. Printed in the Netherlands.

396

Index

Biopollution, 1–3, 6–8, 15, 18, 26, 30, 32–33, 45, 53, 56, 72, 83–84, 86–87, 89–90, 96–98, 101–102, 110, 112, 117, 125, 139, 143, 146–147, 150–151, 159–161, 164 Biosecurity, 18 Brasilia Declaration on the Environment, 155 Brazilian Case Study, 145 Brazilian GloBallast Legislative Review, 5, 145, 149 BWM Convention, 1, 3–5, 43, 46, 48, 53, 55–56, 59, 62–65, 72, 76, 79, 84–85, 97–98, 100–102, 106–107, 108–113, 115, 118, 120–123, 125–126, 128–130, 133–144, 146, 148–149, 152, 157–158, 160, 162–164 C Certification, 54, 100, 111, 113, 130 Civil Liability Convention for Oil Pollution Damage (CLC), 65, 76 Clean technology, 107 Coastal State, 42, 44–45, 55–64, 66, 81, 83, 87–88, 95–96, 99–100, 102, 105, 109, 111, 113–114, 117–124, 129, 134, 140, 143, 147, 149, 154, 161–164 Codes, 74, 79–80, 84 Communication of information, 53, 114–115 Conciliation, 138 Conference of Parties, 137 Conference on the Human Environment, 88 Contingency plans, 93 Contiguous zone, 57, 119, 122, 124 Continental shelf, 57, 151 Contradiction in adjecto, 80 Convention for the Control and Management of Ships’ Ballast Water and Sediments, see BWM Convention Convention for the Suspension of Unlawful Acts against the Safety Maritime Navigation, 78 Convention on the International Maritime Organization, 74 Convention on the Law of the Sea, see UNCLOS Convention on Limitation of Liability for Maritime Claims, 78 Convention on Maritime Search and Rescue, 76

Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters, 76, 149 Convention on Standards of Training Certification and Watchkeeping for Seafarers, 76 Corpus juris, 32, 72, 160 Council, 75, 78 Custom, 82–83, 147, 153, 161 Customary law, 33–34, 42, 45, 56, 66, 72, 80, 83–84, 97, 134, 140, 147, 153–154, 160–161, 164 Customary standard, 52 D Damage, 66, 76–77 Deep ocean areas, 90, 94 Designated zone, 94 Detention of the vessel, 63, 66 Discharge procedures, 91 Diseases, 49, 86, 88–89, 91, 96, 143 Dispute settlement provisions, 138 Districtus, 42 Draft of Legislation on Ballast Water, 150, 385–393 Duty, 72, 115 E Ecological, 7 Ecological Community, 8 Ecological instability, 89 Ecosystem, 3, 8, 13, 16–18, 29, 69, 103, 117–118, 143–144, 152–154, 159, 164 Enclosed sea, 108, 119 Enforcement, 65–66, 95, 117, 124–125 Enforcement jurisdiction, 54, 57, 59–60, 63, 66, 112, 118 Enquiry, 138 Entry into force, 79, 134–136 Environment, 3, 13–14, 16, 69, 89–91, 102, 104, 110, 115, 140, 142, 151, 163 Environmental impact assessments, 107 Environmental law, 87, 95, 104, 143, 146–147, 149–150, 154, 156, 164 Environmental principles, 139 Epidemic, 88, 96, 143 Exclusive economic zone, 14, 57, 60, 64–67, 112, 117–120, 122, 124–125, 147, 151, 157, 161

Index

Exotic species, 1, 9, 151, 153 Extra-territorial jurisdiction, 112 F Facilitation committee, 75, 78 Flag State, 43–45, 52–59, 65–67, 72, 74–75, 81, 84, 87–88, 93, 96, 98, 100, 102, 105, 109–114, 117–118, 121–122, 125, 127, 130, 134, 140, 143, 147, 161–164 Flag State enforcement jurisdiction, 66 Fleet tonnage, 74 Floating offshore platforms, 100 Floating platforms, 102 Floating productions storage, 102 Floating storage units, 102 Foreign vessels, 63, 122, 124, 151 Freedom of High Seas, see High seas Fungus, 126 G General provisions, 126 Generally accepted international rules, 52, 58, 63–64,147 Genetics, 68, 99 GESAMP, 23 GloBallast, 5, 37, 109, 152, GloBallast Legislative Review, 5, 145, 148, 152 Global Ballast Water Management Programme (GloBallast Programme), 5, 145, 161 Global Environment Facility (GEF), 5 Gross tonnage, 136–137, 143, 164 Guidelines, 4, 20, 43, 52, 74, 80–81, 84–87, 89–90, 92–94, 96–97, 106, 110–111, 114 –116, 120–121, 123, 125, 127, 129–134, 141–143, 151, 157–158, 160, 164 Guidelines for the Control and Management of Ships’ Ballast Water to Minimize the transfer of Harmful aquatic Organisms and Pathogens, 146, see IMO Assembly Resolution A.869(20) Guidelines required under the BWM Convention: G1, Guidelines for Sediment Reception Facilities, 131, 227–231; G2, Guidelines on Ballast Water Sampling, 131;

397

G3, Guidelines for Ballast Water Management Equivalent Compliance, 131, 232–235; G4, Guidelines for Ballast Water Management and the Development of Ballast Water Management Plans, 131, 236–252; G5, Guidelines for Ballast Water Reception Facilities, 131, 253–257; G6, Guidelines for Ballast Water Exchange, 131, 258–265; G7, Guidelines for Ballast Water Risk Assessment, 132, 266–282; G8, Guidelines for Approval of Ballast Water Management Systems, 132, 283–309; G9, Procedures for approval of Ballast Water Management Systems that Make Use of Active Substances, 132, 310–325; G10, Guidelines for Approval and Oversight of Prototype Ballast Water Treatment Technology Programmes, 132, 326–339; G11, Guidelines for Ballast Water Exchange Design and Construction Standards, 132, 340–344; G12, Guidelines on Design and Construction to Facilitate Sediment Control on Ships, 132, 345–348; G13, Guidelines for Additional Measures regarding Ballast Water Management including Emergency Situations, 132, 349–357; G 14, Guidelines on Designation of Areas for Ballast Water Exchange, 132, 358–364; Guidelines for Ballast Water Exchange in the Antarctic Treaty, 133, 365–366; Guidelines for Port State Control, 132; Guidelines for Flag State Surveys and Inspections, 133 H Hard law, 80, 143 Harmful aquatic organisms, 1, 3, 11, 15–16, 24, 28, 38, 53, 63, 70, 72, 76, 84, 86–87, 89–90, 92–93, 97, 101–102, 105, 108, 111, 116–117, 119, 126, 129–130, 143–144, 146, 148, 152–154, 157, 159, 161, 164 Harmful substances, 28, 51, 88, 97 Health, 2, 49, 72, 86, 89, 96, 101–103, 115, 140, 143, 150, 153–154, 157, 159–160 High seas, 34, 42–43, 56–57, 65–66, 101, 117–118, 121–122, 164

398

Index

I ICJ case law, 35–37, 39–40, 147 IMO, 2, 4, 20, 45–46, 58–61, 64, 66, 73–81, 83–85, 91–93, 95–96, 100–101, 106, 112, 114–116, 118, 123, 127, 129–131, 134–135, 137, 143, 146, 149–151, 156–158, 160–161, 162–164 IMO Assembly Resolution A.869(20), 5, 146, 149, 151, 161, 164, 367–383 Impact assessment, 70 Infestation, 93, 119 Information, 91, 95, 107, 128 Innocent passage, 60, 62, 124, 154 Inspection, 54, 63, 65, 85, 114–115, 118, 123, 148 Inspection regimes, 54 Integrated management, 70, 152 Integrated ocean management, 48, 146 Internal waters, 57, 60–62, 66, 122–123, 161 International Ballast Water Certificate, 111, 115, 142 International Conference on Marine Pollution, 86 International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 76 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 76 International Convention on Civil Liability for Bunker Oil Pollution Damage, 77 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 77 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, see BWM Convention International Convention for Prevention of Pollution from Ships, see MARPOL International Convention for the Safety of Life at Seas (SOLAS),65, 75 International Convention on Oil Pollution Casualties, 76

International Convention on Oil Pollution Preparedness, Response and Co-operation, 76, 149 International co-operation, 48, 56, 72, 89, 103, 108, 154–155, 158, 164 International corpus juris, see Corpus juris International Health Regulations, 3, 46, 48–51, 160 International organization, 82–83, 88–89, 108 International Regulations for the Prevention of Collisions at Sea, 75 International Safety Management Code, 126 International Ship and Port Facilities Security Code, 75 International trade, 61, 74 Invasive aquatic organisms, 3, 5 Invasive species, 5, 11, 71, 152 Investigation, 66, 95 J Jakarta mandate, 71 Juridical, 82–83 Juridical settlement, 139 Jurisdiction, 43, 56–57, 62, 64, 67, 72, 88, 100–101, 110, 112–114, 117–120, 122–123, 125–126, 147, 149–152, 159 Jus cogens, 58 L Law of the sea, 69, 143, 146–147, 149, 154, 157 Law-making process, 82, 96 Legal committee, 75, 78 Legislative jurisdiction, see Prescriptive jurisdiction Lex lata, 133 Liability, 75–76 M Management and control requirements for ships, 125 Mare liberum, 42 Marine biopollution, 3, 44, 52 Marine ecosystem, 29, 90, 93, 117, 150

Index

Marine environment, 6, 7, 9, 15, 22, 24–33, 44, 53, 56, 58, 62, 64–66, 72, 74, 81, 83–84, 86–90, 92, 96–99, 102–106, 108, 110, 112, 117–118, 122–125, 140, 143–144, 147, 149–151, 155, 159–162, 164 Marine environment protection committee, 75, see MEPC Marine pollution, 6, 28, 52, 73, 75, 98, 102, 118, 125, 150–151 Maritime law, 88, 146, 149, 156–157 Maritime personnel, 76 Maritime safety committee, 75, 78 Maritime security, 73 MARPOL, 3, 28, 46, 51–56, 65, 72, 76, 97, 104, 112, 115–116, 119, 143, 146, 149, 151, 157, 160, 162 Measures for BWM Convention implementation, 70 Mediation, 138 MEPC, 37, 45, 53, 83, 86–87, 89, 91, 97, 100, 106, 117–118, 137, 146, 164 Mid ocean exchange, 63, 94 Monitoring measures, 70, 95 N National law, 66, 81, 84, 97, 112, 123, 125, 149 National legislation, 75, 96, 160–161 Natural law, 139, 147 Negotiation, 138, 141 New species, 1, 30 No harm principle, 42–44, 48, 103, 109–110, 160 Nominated organization, 111 Non-binding, 80, 96, 99, 133, 147, 160, see Soft law Nonindigenous, 1, 15–16, 18–19 Non-native, 1, 16, 151 Notification, 91 O Off loading units, 102 OILPOL, 27, 51, 54 Oil pollution, 51–53, 76–77 Open seas, 90, 94 Opinio juris sive necessitatis, 40–42, 45–46, 84, 147, 161

399

P Particularly sensitive sea areas (PSSAs), 118 Pathogens, 1, 3, 47, 63, 69–70, 72, 84, 86–87, 89, 92, 101–102, 105, 107, 111, 116, 119, 125–126, 129–130, 143–144, 146, 148, 152–154, 157, 161, 164 Pelagus, 42 Penalties, 66 Pest, 1 Pollution, 2, 16, 21–22, 24, 27, 29–33, 45, 56, 58, 63, 65, 68, 72, 76, 86, 88, 102, 110, 112, 118, 121, 124, 140, 150–154, 160 Pollution from ships, 58, 65 Pollution from vessels, see Pollution from ships Pollution prevention convention, 76 Port, 17, 60–62, 64–66, 90, 95, 114–115, 122–123, 127, 134, 146, 148–149, 151–152, 158–159, 163 Port State, 44–45, 56–57, 59, 61–62, 65–66, 81, 83, 87–90, 92–96, 99–100, 105, 108–109, 111, 113–114, 117, 121–124, 129, 135, 140, 143, 147, 151, 159, 161–164 Port Sate control, 121 Port State enforcement regime, 66 Port State jurisdiction, 66 Precautionary approach, 72, 87, 99, 103, 105–107, 118, 121, 143, 160 Precautionary practices, 93–96, 108, 158 Precautionary principle, 3, 48, 69, 72, 86, 90, 92, 94, 102–104, 107, 121, 143–144, 146, 155, 163 Prescriptive jurisdiction, 57, 59, 62–64, 96, 112, 117–118 Preventive principle, 87, 102, 104, 110, 118, 143–144, 146, 160, 163 Principles see No harm Principle, Environmental Principle, Precautionary Principle Preventive Principle Proportionality principle, 105 Protected areas, 54, 116–117, 129, 143, see Special control requirements in certain areas Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 78

400

Index

Q Quarantine law, 71, 85, 91 R Ratification, 134–136 Reception facilities, 53–55, 93–94, 96, 115, 142 Receptions of sediments, 105 Regional agencies, 139 Regulations for the control of ships’ ballast water and sediments, 125, 201 Res communis omnium, 42 Resolution A.868(20), see IMO Assembly Resolution A.869(20) Resolutions, 2, 4, 22, 32, 46–47, 79–96, 100, 104, 133, 160, 162 Rio Declaration, 87, 104, 106, 155 Risk assessments, 72, 105, 127, 158, 163 S Safeguard, 63, 66, 113 Safety, 68, 72–76, 83–84, 94–95, 111, 114, 120–121, 128, 130, 163 Sanctions, 114 Sanitary Authority, 85 Sanitary law, 85, 88, 125, 146, 149, 158, 160 Scientific aspects on biopollution, 15 Scientific research, 48, 72, 88, 141, 158 Security, 75, 83, 158 Sediments, 1, 3, 15, 17, 31, 55, 72, 89, 91–93, 96, 115–116, 121, 127, 130, 140, 142–143, 159–162, 164 Sediments reception facilities, 114 Semi-enclosed sea, 108, 119 Sensitive areas, 91, 117 Sharing of information, 48, 53 Shipping, 7–9, 18, 20, 73–74, 78–79, 81, 87, 93, 105, 121, 128, 137, 143, 150 Signature, 134 Soft law, 21, 80, 96, 99, 143, 153, 160 Sources of international law, 4, 33, 81–83, 96, 99, 133, 164 Sovereign rights, 57, 64, 110 Sovereignty, 42–43, 56–57, 59, 61–62, 112, 122, 124, 139–144, 154–155, 164

Special control requirements in certain areas, 54, 72, 100, 116, 118–119, 126, 129 Specialized agencies, 74 Standards, 43, 54, 58–64, 66, 69, 72, 74, 79–80, 89, 96–97, 100, 104, 110, 114–116, 118, 121, 125, 127–130, 133–134, 139, 141–143, 147, 149–151, 153, 155, 158, 160–162, 164 Standards for ballast water management, 126, 129 State practice, 36–37, 39, 45, 83–84, 134, 147, 161 Statute of the International Court of Justice (ICJ), 82, 147 Stockholm Declaration, 88, 154 Substantial discharge, 60 Survey, 53–55, 95, 100, 111, 113, 128, 148, 158, 161–162 Survey and certification requirements for ballast water management, 126, 130 Sustainable development, 23, 48, 87, 117, 150, 154–155 T Technical assistance, 108–109 Technical co-operation, 53 Technical co-operation committee, 75, 108 Technical standards, 110, 157 Technical matters, 67 Territorial sea, 56–57, 60, 62–64, 66, 112, 119, 122–124, 148, 151, 161 Tier 2, see Protected areas Torrey Canyon, 47 Trail Smelter Case, 44 Transboundary pollution, 34, 42, 44, 55, 72, 88, 108–109, 154 Transfer of technology, 48, 72, 103, 108, 141 Treatment options, 92, 148, 159 Treatment technologies, 105, 129, 143 Treaty, 3–4, 33, 46, 56, 72, 75, 77–78, 82, 84–85, 97, 99, 101, 112, 133–135, 139–140, 143, 149, 153, 160–162

Index

U UNCLOS, 2, 4, 10, 28, 43, 46, 48, 52, 56–60, 62–69, 71–74, 81, 87, 99, 101–102, 108, 112–113, 117–119, 123–125, 134, 142, 146,149, 151, 154–155, 157, 160–162 Unilateral acts, 146–147, 162 Unintentional discharges, 1, 68 United Nations, 5, 56, 73, 107–108, 154, 157 United Nations Maritime Conference, 74 Unlawful acts, 44 Unwanted aquatic organisms, 11, 89–90

401

V Vessel source pollution, 54–55, 59, 64, 67, 71, 86, 98, 112, 123, 125, 162 Vienna Convention, 134–135 Violation of rules, 65–66, 114–115 Virus, 15, 126 Viruses, 89 Vulnerable, 117 W Water-borne organisms, 91 World Health Organization (WHO), 71, 86, 88 World Wide Fund for Nature, 87