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

Volumn 19, Issue 4, 2004, Pages 411-482

  Tsimplis, Michael ^a  

^a UNIVERSITY OF SOUTHAMPTON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

BALLAST WATER; INTERNATIONAL AGREEMENT; INTRODUCED SPECIES; LEGISLATION; STANDARD (REGULATION);

EID: 17144391529     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/1571808053310116     Document Type: Review

References (277)

1. With the exception of situations in which the ballast water was contaminated by cargo.
2. Depending on the type of the ship and its construction, ballast would be between 25%-50% of its dead weight tonnage (see, for example, the numbers given on ).
3. Estimated to be up to five billion tonnes per year (see, for example, or 10 billion tonnes (UNEP /CBD/ SBSTTA/6/INF/11). These movements of water when compared with the oceanic movements are small. For example, one major surface current, the Gulf Stream, carries 4,000 times more water.
4. The number of organisms reduces with the time the ballast water is kept in the tanks. Thus the problem is more important for short voyages. In addition, many of the organisms in coastal waters will be unable to survive in the open sea environment.
5. Altering an ecosystem may or may not have significant impacts. These impacts cannot be assessed fully beforehand as they will depend on the stability of the affected ecosystem and the way the new species will interact with it. Whatever the impacts are, there is usually no way to reverse them. This is of course not a new problem and the example of the discovery by Captain J. Cooke of the Hawaiian islands, which was followed by a large reduction of the native population due to transmission of sexual and viral diseases for which the natives did not have any immunity, is a striking one. Another example familiar to English culture is the arrival of the Plague by ships' rats. A case of replacement of a species by a similar one is also common, for example the domination of the (American originating) grey squirrel and the elimination in many areas in England of the indigenous red squirrel.
6. Ballast water exchange has been estimated to take 20-80 hours, during which ships are expected to travel about 1,000 miles (see the submission of Japan: MEPC-IBWWG 2/2/6, s. 3).
7. Different species may be introduced but not all of them will imbalance the ecosystem. Thus the term "invasive alien species" has been used to define species which establish themselves in alien environments and develop in a way that detriments the development of the native species (UNEP/CBD/SBSTTA/6/INF/11).
8. Oceanic processes such as currents as well as movements of animals and birds also cause similar effects but these are considered as part of the natural variability of the ecosystem and have presumably already led to some balance.
9. See UNEP/CBD/SBSTTA/6/INF/11.
10. International Convention on Biological Diversity, 5 June 1992.
11. The scope of the Convention on Biological Diversity includes (Art. 4) the areas of national jurisdiction but also, in respect of processes and activities taking place within the jurisdiction or under the control of the contracting state, all areas whether within or outside national jurisdiction.
12. See Meinhard Doelle, "The Quiet Invasion: Legal and Policy Responses to Aquatic Invasive Species in North America", (2003) 18 IJMCL 2, 261-294.
13. See, for example, COP/VI/23, III.7. In addition, as "a matter of urgency" the development of mechanisms to minimise hull fouling is flagged there for the agenda of the IMO. Moreover, the Johannesburg Plan for Implementation, Chapter 4, s. 34 calls for the states to: "Accelerate the development of measures to address invasive alien species in ballast water. Urge the International Maritime Organization to finalize its draft International Convention on the Control and Management of Ships' Ballast Water and Sediments."
14. Official Records of the Third United Nations Conference on the Law of the Sea, vol. XVII (United Nations publication, Sales No. E.84.V.3), Doc. A/CONF.62/122. The LOSC is viewed as the legal framework of the management of the seas and is supported as such by other legal instruments. See for example the Earth Summit on Sustainable Development 2002 and the agreed Johannesburg Implementation Plan, Chapter 4, s. 30(a) which "invite States to ratify or accede to and implement the United Nations Convention on the Law of the Sea of 1982, which provides the overall legal framework for ocean activities".
15. LOSC, Art. 192.
16. LOSC, Art. 194(1).
17. LOSC, Art. 194(1).
18. Arguably, shipping activities and operations including ballasting are covered by this section.
19. LOSC, Art. 194(2). This is reinforced by Principle 2 of the United Nations Conference On Environment And Development (Rio De Janeiro, 3-14 June 1992), Annex I, Rio Declaration On Environment And Development, General A/Conf.151/26 (Vol. I), 12 August 1992, which is arguably much broader in scope.
20. "[A]s well as the habitat of depleted, threatened or endangered species and other forms of marine life" (LOSC, Art. 194(5)). Any ecosystem subject to the introduction of invasive alien species is potentially fragile and even if the local species are neither rare nor endangered in the global sense this Article introduces an obligation to preserve the habitat of other forms of marine life (whether endangered or not).
21. An express reference to this obligation has been included in the Preamble of the BWC.
22. This has been also taken into account by the IMO in respect of the BWC as stated in the Preamble.
23. Rio Declaration On Environment And Development, Principle 15: "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." There is of course the very interesting question whether the "Principles" are obligations or guidelines, but this is beyond the scope of this work.
24. Case studies of invasive alien species are available from the US site , from the Global Invasive Species programme , and from the Convention of Biological Diversity website: . These include terrestrial and maritime cases. In it is stated that the invasion of the zebra mussel infestation in the Great Lakes caused damages and remedial measures of more than US$5 billion.
25. The Preamble of the BWC.
26. The IMO website, , states that the first incident was recorded back in 1909, but only after the 1970s was systematic research initiated.
27. See, for example, the US Non-Indigenous Aquatic Nuisance Prevention Control Act 1990 and the National Invasive Species Act of 1996 (NISA) implemented by the US Coastguard Regulations, at: .
28. IMO MEPC Resolution 50(31), "Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges"; IMO Assembly Resolution A.774(18), "Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges"; IMO Resolution A.868(20): "Guidelines for the Control and Management of Ship's Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens". New guidelines within the context of the BWC are under development by the MEPC under the leadership of particular states (Germany, for example, is leading a correspondence group for guidelines for the sampling of ballast water) or NGOs (for example the International Sailing Federation is developing guidelines for the development of ballast water management for pleasure and search and rescue craft). An account of the different groups that are developing guidelines can be found in BWC/CONF/10 (see also MEPC IBWWG 2/INF.2).
29. Referred to herein as the Ballast Water Convention 2004 or BWC.
30. BWC, Art. 2(2), and a reference to the Convention is also a reference to the Annex. Thus, under Art. 1(1), the definition of "Convention" as the International Convention for the Control of the Management of Ships' Ballast and Sediments presumably includes the Annex. The Netherlands have pointed out that the statement under Art. 2(2) is not a general obligation and it would have been better if it were incorporated into Art. 1(6) (BWM/CONF/18-ANNEX-1). Nevertheless this was not followed up.
31. This presumably means that the BWC is not considered to be a set of guidelines but a set of rules to be complied with.
32. BWC, Art. 2(1).
33. Art. 3(1)(a).
34. Art. 1(1). It also expressly includes submersibles, floating craft and platforms, FSUs and FPSOs. The gross tonnage of the ships is calculated in accordance with Annex 1 to the International Convention on Tonnage Measurements of Ships 1969 or any successor convention.
35. Inclusive of any suspended matter (Art. 1(2)).
36. BWC, Art. 1(2).
37. "[T]he sea including estuaries or into fresh water courses" (Art. 1(8)).
38. BWC, Art. 1(8).
39. The World Health Organisation (WHO) also overlaps with the activity of the IMO in relation to ballast water and ship sanitation. The WHO agrees that there is a potential public health risk from pathogens in ballast water (BWM/CONF/20) and in the newly drafted International Health Regulations provides for its member states to monitor and control ballast water "subject to other international agreements". Thus a potential conflict has been avoided and the BWC will be the determining instrument when it comes into force.
40. Conversely, if a species is non-toxic but it is known that it will not impair the biological diversity, it will not be included within the definition.
41. The scope of the Convention on Biological Diversity includes (Art. 4) the areas of national jurisdiction and also, in respect of processes and activities taking place within the jurisdiction or under the control of the contracting state, all areas whether within or outside national jurisdiction.
42. It is also unclear why the term "aquatic" is used in the definitions. Sea water can contain non-aquatic organisms in suspended matter, for example. These may not be pathogens but may be invasive alien species if discharged through the sediment on another land. The BWC is non-applicable to these but the purpose of the Convention On Biological Diversity was to eradicate those alien species which threaten ecosystems, habitats or species irrespective of whether they are aquatic or not.
43. Sediment is defined in BWC, Art. 1(11) as "matter settled out of ballast water within a ship".
44. BWC, Art. 1(3).
45. BWC, Art. 2(1). It is arguable that this wording is not very successful as it can be read in two ways. First, that the transfer of these organisms will be eliminated by the control and management of the ballast water and sediments of the ship. If that is the meaning then it is arguable that elimination will never be achieved through the BWC if there are additional sources for this transfer, as, for example, hull fouling. The second and probably correct interpretation is that the BWC will eliminate the transfer of these organisms by the ship's control and management system of ballast water and sediment. Maybe the use of the term "ballast water management" as defined under Art. 1(3) would have made this clearer.
46. BWC, Art. 2(1).
47. BWC, Art. 2(3), in respect of ballast water management either as a party to the BWC or in collaboration with other parties. Collaboration with non-parties is not expressly permitted or prohibited, but it is not a concern presumably because if the measures agreed are more stringent than those within the BWC, the objective of the Convention will be served. The Article has been drafted in wide terms to include additional measures within and outside the BWC following a proposal by the Netherlands (BWM/CONF/18-ANNEX-1) and earlier arguments to the same effect (for example, BWM/CONF/8, in which Croatia argues that because of the biological diversities and different oceanographic and meteorological conditions, the BWC should allow more stringent measures to parties provided that assistance to ships will be provided and no undue delay will incur, and the submission of Colombia (BWC/CONF/7)). The question of additional measures may also be relevant within the EU framework because of Art. 95 of the EC, which permits EU Members to impose more strict environmental measures than those imposed by the European Community. Notably, a distinction between measures pre-existing any EU legislation and those imposed afterwards appears to be developing in recent case law (Case C-3/00, Denmark v Commission) where the pre-existing, more stringent measures appear easier to uphold under the logic that they were known to the EC when the European-wide legislation was developed. This may be a good reason for developing strict national measures before the BWC comes into force and is implemented through an EU legal instrument.
48. Art. 2(6).
49. Art. 2(7). It is not clear whether the precautionary approach is applicable here, i.e. whether the fear that the harm would be more than a benefit without scientific confirmation would be sufficient to prohibit the ballast water management practices. Nevertheless it is clear that each state must make its own assessment in respect of their environment, health and property.
50. Art. 2(5). The encouragement would presumably include funding of innovative research and the development of technology as well as the dissemination of such research to developing countries.
51. Art. 2(8).
52. See, for example, reg. B-4(3).
53. Reg. C-1.
54. Art. 2(9).
55. See the Norwegian submission BWM/CONF/21.
56. Art. 3(1)(a).
57. Art. 3(1)(b).
58. Art. 3(3).
59. Art. 3(2)(a) and Art. 3(2)(f). Art. 3(2) presumably refers to tugs, similar small vessels and car ferries that have freeboard restrictions and carry solid ballast. Carrier vessels are not likely to fall into this category, as the carriage of solid ballast would reduce their earning capacity. It is arguable that even in a case where an exempted vessel has to take ballast for safety reasons it would fall outside the Convention and thus it would not need to demonstrate any necessity/ practicability under the Convention, for example under Art. 2(8). The exception is reasonably extended to vessels that use water as permanent ballast, have their tanks sealed and do not discharge it (Art. 3(2)(f)).
60. Under Art. 2(3). Notably, Art. 3(2) is a right of a party not an obligation even if it is included as a qualification to the general obligations. Thus if one reads this as an overriding right, the parties have jurisdiction to extend the scope of the Convention even into areas and ships excluded from the Convention with the only restriction that such actions will be consistent with the general framework of "international law", whatever this includes.
61. This is also the practice with other conventions where governments had chosen to extend the scope of the convention nationally. For example, see the UK position in respect of the 1974 Athens Convention and the 1976 Limitation Convention.
62. Art. 3(2)(e).
63. Art. 3(2)(e), but without restricting the operations of such vessels.
64. It does not matter whether the second state is a party to the Convention.
65. Art. 3(2)(b) and 3(2)(c).
66. The jurisdictional area arguably includes the Exclusive Economic Zone of the party as the parties have jurisdiction in respect of environmental protection as well as resources management under LOSC, Art. 56(1)(a) and 56(1)(b). Note also that the inclusion of the reference to the high seas under the BWC, Art. 3(2), implies that the EEZs are included within the jurisdictional areas of a state.
67. Where the ship operates exclusively within the waters of the flag state the situation is straightforward and the flag state can grant the exemption. Where the ship operates exclusively within the waters of a party other than the flag state party, the exemption is still granted by the flag state party but it is subject to authorisation by the state party in which the ship operates (see Art. 3(2)(c)).
68. Art. 3(2)(b)-(d). Thus the obligation owed to other parties is in respect of the environment of other states in general, in agreement with Art. 2(6) and 2(7), which are similarly restricted.
69. Thus it is only the general obligation of co-operation under Art. 2(9) which is imposed by the BWC to the parties in that respect. This is arguably a considerable underestimation of the risks as well as an arrangement which is not consistent with the precautionary principle.
70. Art. 4(1).
71. Art. 7(1).
72. The administration is defined in Art. 1(1) as the state under which the vessel is operating (usually the flag state government), or, for drilling platforms and the other vessels covered by the definition of ship under Art. 2(11), the coastal state. No administration is defined for drilling activities in the high seas.
73. The sanctions are not prescribed within the BWC but must be adequate to discourage violations of the BWC, Art. 8(3).
74. Art. 8(1).
75. Under Art. 3(2).
76. Art. 7(2).
77. Art. 8(1).
78. Art. 8(2).
79. Art. 8(1).
80. Art. 8(1). A report by the flag state should be given one year after the report of the violation where no action has been taken within this period.
81. Art. 2(3).
82. Art. 9(1). And also to inspect ships of non-parties to the BWC since Art. 3(3) requires that such ships will not receive "more favourable treatment".
83. See sub-section below headed "Certification and Surveying".
84. Art. 9(1)(c). This paragraph was under discussion and was finally included after the submission of proposals in support (see, for example, the submissions by the Netherlands (BWM/CONF/18-ANNEX-1) and Columbia (BWM/CONF/7)). Nevertheless the vessel cannot be "unduly" delayed for the purpose of waiting for the results of the analysis.
85. Art. 10(3).
86. Art. 9(2)(a).
87. Art 9(2)(b). This whole provision is arguably vague. Nevertheless, in order to have clear grounds for believing such serious inconsistencies in either the equipment or application of water ballasting procedures before a detailed inspection or discussion with the crew, such beliefs must be based on either obviously wrong equipment description, wrong entrances in the log books or on the results of the ballast water analysis.
88. Art. 9(3).
89. Or if this is not possible the consul or diplomatic representative as well as the certifying organisation (Art. 11(2)).
90. Art. 10(4). In such a case the report of the inspection will be sent to both the ship's flag state and to the party that has requested such an inspection.
91. Under Art. 9(2).
92. That is, the requesting party should submit information indicating that there "are clear grounds for believing" that the condition of the ship/ equipment does not correspond to the certificate or that the master and crew are not managing the ballast water exchange in accordance with the appropriate procedures.
93. Unless the obligation of the parties under Art. 10(1), to "co-operate in the detection of violations and the enforcement" of the BWC, may be taken to mean that the treatment of a clear request for a full inspection has to be treated in the general case as part of the cooperation for detection of violations.
94. Art. 10(2). Permission to sail for the purpose of repairs or ballast water discharge may be granted by the coastal state if there is no danger involved in such an action.
95. Art. 11(1).
96. Art. 11 (3).
97. Art. 12(1).
98. Art. 12(2).
99. For example, under Art. 8(1) and (2).
100. Art. 4(2). Nevertheless such efforts are recognised as being with due regard to the capabilities of each party. Thus the standard of these policies could differ between parties and arguably there is some scope here for the port state to balance its national trade and environmental interests. The Norwegian submission BWM/CONF/21 has suggested that this should be moved to a resolution but it was retained.
101. Notably each party is not under an obligation to provide sediment reception facilities but where it does so these must be adequate. Where the facilities may be inadequate, each party is under an obligation to inform the IMO (Art. 5(2)).
102. Art. 5(1).
103. Art. 6(1).
104. Art. 6(2).
105. Art. 13(1)(a). Earlier drafts did not include anything on the issue of technical co-operation. The IMO Secretariat suggested a conference resolution (BWM/CONF/6) and a late (5/2/2004) proposal by Brazil (BWM/ CONF/27) arguing that the weight of a resolution is less than that of an article to the Convention led to the development of Art. 13.
106. Art. 13(1)(c).
107. Art. 13(1)(b).
108. Art. 13(3).
109. Art. 13(3).
110. And the IMO has the obligation to circulate all relevant information Art. 14(2)).
111. Art. 14(1)(a).
112. Art. 14(1)(c), referring to ships which cannot comply as they fall under regs. A-3 and B-4 of the Annex. The IMO has to forward such information to the parties.
113. Art. 14(1)(b).
114. Whether subject to ratification, acceptance or approval or not (Art. 17(2)(a),(b)).
115. Art. 17(2)(c). Deposit of an instrument to the IMO Secretary-General is required in all cases (Art. 17(3)). Regional organisations such as the EU cannot, presumably, be members of the BWC.
116. By express written notification to the depositary (Art. 17(5)).
117. Art. 17(4). Such arrangements may be modified by the state party.
118. Art. 18(1).
119. Art. 18(3). The three-month time limit for coming into entry for a new state is also supported under Art. 18(2) in the situation where a state ratifies the Convention within the 12 months after the conditions for entry into force have been met but less than three months before the Convention has entered into force.
120. Art. 15.
121. Nevertheless they are not new. They were drafted by Japan on the basis of the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (5 October 2001) (MEPC-IBWWG 2/2/7).
122. Art. 2(2).
123. Art. 19(1).
124. Art. 19(3)(a).
125. Art. 19(3)(b).
126. Art. 19(3)(c). These are discussed below.
127. Art. 19(2)(b). But only parties to the BWC can participate in the groups specified by the MEPC to formulate the revision or amendments of the ballast water quality standards (reg. D-5).
128. Art. 19(2)(a). The amendment proposal must be submitted to the Secretary-General and distributed to other parties.
129. Art. 19(2)(c). Thus, for example, if the BWC has 30 parties (the minimum required) and an amendment has been submitted and is under consideration at the MEPC where 10 of them are present, seven votes will be required to get the amendment adopted.
130. Art. 19(2)(e)(i).
131. Art. 19(2)(f)(i).
132. Objection must have been notified to the Secretary-General (Art. 19(2)(e)(ii)).
133. Art. 19(2)(f)(ii).
134. In accordance with Art. 19(2)(e)(ii) and if that objection has not been withdrawn.
135. The Secretary-General has to inform all parties in relation to the entry into force dates in general and for each party (Art. 19(6)(a)) as well as in relation to any notifications (Art. 19(b)). Moreover he acts as the depositary for the BWC (Art. 21) and is obliged to inform the parties in relation to all new participations or denunciations of the BWC (Art. 21(2)).
136. Art. 19(2)(f)(ii). In both cases if either the objection under Art. 19(2)(e)(ii) is withdrawn or the additional notification is given, amendment to the Annex will come into force for this party six months after they have notified or withdrawn their objection (Art. 19(2)(g)(i) and (ii)).
137. Art. 19(4).
138. Art. 20(1) and (2).
139. Reg. B-1. Strictly speaking the administration (Art. 1(1)) must approve the management plan, taking into account the relevant IMO guidelines. It is unclear whether the guidelines are mandatory or not. The wording suggests that they are not although other countries, for example Norway, have suggested that it should be otherwise (BWM/CONF/16).
140. Reg. B-1 specifies that it should at least contain detailed safety procedures (reg. B-1(1)); a detailed description of the actions to be taken to implement the management requirements (reg. B-1(2)); describe in detail the procedures for the disposal of sediments both at sea and to shore (reg. B-1(3); designate the responsible officer on board (reg. B-1(5)); describe the procedure for co-ordinated action with the coastal state for ballast exchange at sea (reg. B-1 (4)); and contain the reporting requirements under the BWC (reg. B-1(6)).
141. A translation into English, French or Spanish is also required if the working language is none of these three languages (reg. B-1(7)). The entries must be in the working language of the ship. An English, French or Spanish version must be made available where the working language is different but in case of discrepancies the ship's working language entries are those that prevail (reg. B-2(5)).
142. The minimum information that must be recorded is detailed in Appendix II of the BWC. In addition to the ship's name, IMO number, gross tonnage and flag, the ballast water capacity of the vessel and the location of the ballast tanks must be shown. In all activities relating to ballast water exchanges, whether it is uptake, circulation, treatment or discharge at sea or at a reception facility, the time and the location of the operation, the estimated volume involved and the compliance with the ballast water management plan must be certified by the signature of the officer in charge of the operation (reg. B-2(5), Appendix II (3.1-3.3)) and signed by the master as soon as a page is completed (reg. B-2(5)). In cases of accidental or emergency ballast water exchanges, the relevant circumstances must also be recorded (Appendix II (3.5)).
143. Reg. B-2(1).
144. Reg. B-2(2).
145. Reg. B-2(4) and B-2(6). Where the vessel is unmanned and under tow, the towing ship must hold the book.
146. Reg. B-2(6).
147. There are several technical problems that have to be resolved in relation to the treatment of ballast water and sediments. Filtering for the larger particles (larger than 50 micrometres) and then exposure to ultraviolet radiation, heat or chemicals to kill smaller organisms appears to be the way forward (MEPC-IBWWG 2/2/9, Submission by the World Conservation Union on the basis of a report by the Netherlands Royal Institute for Sea Research). Nevertheless a filtering system must be capable of self-cleaning in order to remain operational to the required standards. The use of chemicals may have adverse effects but may be necessary when bacteria and viruses are concerned as these are too small to be dealt with by filtering.
148. Reg. D-1(2).
149. Reg. D-1(1). This is taken to be fulfilled when the ballast tanks are flushed three times, but if the ballast tanks are flushed less than three times then it is for the ship to show that the 95% limit has been exceeded (reg. D-1(2)).
150. These are described in reg. B-4 and will be discussed below. The argument goes that most coastal organisms will be unable to survive in the open waters of the high seas and that high seas water will contain much less harmful organisms than coastal water.
151. Reg. D-2.
152. See the Norwegian submission BWM/CONF/21.
153. Submission to the MEPC 49/2/21 by the Chairman of the ICES/IOC/IMO Study Group on Ballast Water and Other Ship Vectors (SGBOSV).
154. One micrometre equals 0.000001m or one thousandth of a millimetre.
155. That is, less than 10 per cubic centimetre or 10 million per cubic metre. It is not clear why different volume units are used.
156. Reg. D-2(1).
157. For cholera, less than 1 gm per wet weight of zooplankton samples.
158. Reg. D-2. Several numbers were discussed and arguments that the standards set should represent significant efforts to reduce the risks of transfer and to act as incentive to companies developing treatment solutions (BWM/CONF/18-ANNEX-1), contributed in the selection of the standards. Other countries considered it unreasonable to agree on standards without first assessing the effort and expenditure involved (BWC/CONF/26).
159. On the other hand it is easy to see how such tests can be run by an inspecting authority.
160. See note 153 above. The SGBOSV is based upon the International Council for the Exploration of the Sea, a highly respected European-based scientific group with focus on the North Atlantic. Workshops were also organised by other research entities (see, for example, MEPC-IBWWG 2/2/ 11 about a US initiative). This has now been renamed the ICES/IOC/IMO Working Group on Ballast and Other Ship Vectors (WGBOSV). Information can be found on the ICES website at .
161. MEPC 49/2/21 and the additional BWM/CONF/INF.3.
162. An order of magnitude is a factor of 10.
163. It is unclear to this author how this can be assessed if the relationship between concentration and risk is unknown.
164. The scientific significance of the presented research and the derived statistics can and have been questioned. For example one can raise questions on the validity of using the present day median or mean concentrations as a benchmark if one does not know the link between the concentration of each category and the risks of invasions. A Norwegian proposal (BWM/CONF/17) also outlines some of the difficulties with the selected values and the methodology, pointing out that the failure to resolve the statistics of the observed concentrations in terms of voyage length poses a major problem, as the longer the journey the lower the concentrations and, at the same time, short journeys pose the greater challenge for developing efficient techniques for cleaning ballast water.
165. BWM/CONF/17.
166. In general, the administration as defined under BWC, Art. 1(1).
167. Reg. D-3(1). These are under development. A flavour of them in respect of the approval of ballast water treatment systems (BWTS) can be found in the submission in the Netherlands draft included in BWM/CONF/INF.5 or that by Brazil in BWNVCONF/INF.6. A question indirectly raised by the Brazilian submission is whether the assessment of such a system should be ensured on a test vessel or on the vessel applied. Another question relates to the validity of the guidelines as mandatory or voluntary. Notably the text of reg. D-3(1) states that BWTS must be approved by the administration, "taking into account the guidelines". The text of the above referred Dutch draft says that any approval should be "in accordance" with the guidelines. It is thus questionable whether the BWC language which is non-conclusive in respect of whether the guidelines are mandatory or not can be rendered so at least in respect of some of them. This would arguably be absurd.
168. Reg. D-3(2). The IMO must define the procedure for permitting or restricting the use of such additives. If permission to use is withdrawn then the use of the relevant additive must stop after one year. Reg. D-3(2) was added after a proposal submitted by the Netherlands (BWM/CONF/ 19) which requires the strict regulation of chemicals and biocides. The principles of a system for approval and withdrawal of such chemicals has been sketched in the Dutch proposal and examples of such evaluation and control of chemicals in other contexts were provided in an Appendix to this proposal. Nevertheless, two points need to be mentioned. First, the adoption of the proposed Dutch modification by the BWC Conference does not imply adoption of the general principles outlined there. Secondly, that all the outlined systems of existing evaluation mechanisms have problems (see, for example, the commentary on the EU REACH system by Ruxandra Cana, "Registration, Evaluation Authorisation and Restrictions of Chemicals: An Analysis", (April 2004) European Environmental Law Review 99-109). Thus, the issue of which chemicals /biocides could be potentially used for the purpose of improving the quality of ballast water has remained unanswered and only a general plan for an IMO-based system of authorisation has been included in the regulations.
169. Reg. D-3(3).
170. To the extent that their incompatibility with the cargo does not affect the ship or its equipment.
171. See also reg. D-5 where safety to the ship and crew is only one of the criteria used to evaluate reg. D-2.
172. Note the change in terminology from "ballast water management systems" to "ballast water treatment technologies". The term "treatment technology" arguably refers to any component of the BWM system whether it involves active treatment, for example by chemical additives or radiation, as well as passive systems involved with the filtering and diluting of ballast waters. It is unclear whether the term adds or restricts anything as developments of any component of a BWM system would qualify as a change in the "treatment technology" and vice versa even if it only means shifting of components of the BWM system in time (for example first filtering the treatment by additives).
173. Reg. D-4. Research programmes should be in accordance with the guidelines of the IMO (reg. D-4(3)) and only the minimum necessary number of ships may be allowed to participate (reg. D-4(4)) and thus prolong the time for compliance with reg. D-2. An earlier draft included an additional section in which prior to a party exempting ships under experimental techniques from the obligations under reg. D-2, it had to seek the agreement of all port states that the ship using the experimental techniques was going to visit. (See, for example, BWM/CONF/ 21.)
174. Reg. D-4(2). The five years start from the day of installation of the new treatment technology
175. Reg. D-4(4) returns to the term of "treatment system" rather than "treatment technology".
176. Reg. D-4(4).
177. See also the submission of Germany (BWM/CONF/26).
178. Three years before the date criteria (reg. D-2). Notably, alternative reviewing methods were considered, for example the establishment of a scientific technical group (MEPC-IBWWG 2/2/2). Such an option is still available as the MEPC retains the discretion to form a group or groups under reg. D-5(3).
179. See Table 1 and the relevant discussion.
180. Reg. D-5(1).
181. Reg. D-5(2)(1)-(5) respectively.
182. Any revision is still subject to adoption under Art. 19 (reg. D-5(4)).
183. The reference to the socio-economic effects to developing countries (reg. D-5(1)) directly links to the economic effectiveness (reg. D-5(2)(4)) for the shipowners of developing countries. It is arguable that the environmental effects for these countries and the risks taken should prevail, but this is not clear within reg. D.
184. Reg. D-5.
185. Nevertheless the wording of reg. D-5 indicates otherwise: the doubts appear to be whether the standards of reg. D-2 can be met.
186. I.e. reg. D-1, where flushing of ballast water tanks is prescribed.
187. I.e. reg. D-2.
188. A simplified arrangement submitted by the Netherlands (BWM/CONF/ 18-ANNEX-1, p. 5) was not accepted.
189. Reg. B-3(2) referring to the "anniversary date" which is defined in reg. A-1(1) as the date in each year in which the certificate (see below) expires.
190. Reg. A-1(4). Thus when the keel is laid (reg. A-1(4)(1)); or construction identifiable with the ship begins (reg. A-1(4)(2)) or assembly of the ship has commenced and this involves at least 50 tonnes or 1% of the mass of structural material (whichever is less) (reg. A-1(4)(3)); or a major conversion takes place (reg. A-1(4)(4)). In turn a major conversion is defined as one that either changes the ballast water capacity by 15% (reg. A-1(5)(1)); or changes the ship type (reg. A-1(5)(2)); or would increase the ship's lifetime by at least 10 years (this must be the opinion of the administration) (reg. A-1(5)(3)); or any conversion which would modify the ballast system other than straight replacement of components or those modifications necessary to comply with reg. D-1 (reg. A-1(5)(4)).
191. Which complies with the IMO guidelines.
192. Reg. B-3(6).
193. Reg. B-3(7).
194. Always taking into account the IMO guidelines (reg. B-4(1)).
195. Reg. B-4(1)(2). The distance from land is measured from the baseline of the territorial sea (reg. A-1(6)), with an exception of the north-eastern coast of Australia where the baseline is given within the regulation. The reference to the baseline is "in accordance with international law" rather than an explicit reference to section 2 of the UN Convention on the Law of the Sea.
196. Reg. B-4(1)(1).
197. Reg. B-4(4).
198. Reg. B-4(4). The full text is as follows: "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."
199. I.e. reg. B-4(4).
200. I.e. where the ship, in order to comply with reg. B-4(1) would have deviated or delayed.
201. Reg. B-4(5).
202. In such a case the ship complies with the absolute minimum set out in reg. B-4(2) but not with the more general reg. B-4(1).
203. Unless, of course, the coastal state imposes additional measures. As ships trading exclusively within the jurisdiction of one state may be excluded from the application of the BWC this may be an opportunity for imposing stricter rules with more immediate effects.
204. Under reg. B-4(3), which states that the ship should not be required to deviate in order to comply.
205. In consultation with adjacent states (reg. B-4(2)). Such areas are semi-enclosed seas where the depth/distance criteria cannot be met. See, for example, BWC/CONF/29 (and MEPC-IBWWG 2/2/3 by Italy), the submissions by Croatia, Italy and Slovenia, in respect of, primarily, the Adriatic Sea.
206. Reg. B-4(3).
207. Reg. B-5.
208. Reg. B-5(2) refers to "ships described in regulation B-3(3) to B-3(5)".
209. Reg. B-5(2). Always in accordance with the IMO guidelines and putting the safety and operational efficiency first (see the intervention by the Association of European Shipbuilders and Shiprepairers (AWES) in BWMCONF/ 3). In addition to this clarification they suggested and succeeded to a change in the wording of reg. B-1(3) from a requirement of the ballast water management plan to detail the procedures for the disposal of sediments "in port or dry dock" to a requirement to detail these procedures to "shore". The original text was by implication requiring the existence of such facilities at dry docks. This has become more vague and it is arguably up to each party to make national arrangements.
210. Reg. B-5(2).
211. Such measures should be in accordance with international law.
212. Reg. C-1(1).
213. Reg. C-1(2).
214. Reg. C-1(3)(1). It is questionable whether "taking into account the guidelines" can actually have any restrictive effect in the type of additional measures introduced.
215. Reg. C-3(5).
216. Reg. C-1(3)(2). The IMO must be informed of the precise coordinates to which the measures will apply (reg. C-1(3)(2)(1)); the need and reasoning for the additional measures (reg. C-1(3)(2)(2)); what the measures will be (reg. C-1(3)(2)(3)); relevant arrangements to facilitate compliance (reg. C-1(3)(2)(4)).
217. Reg. C-1(3)(3).
218. Reg. C-3(5).
219. It is clear that only conventions to which the ship "must comply" are covered by reg. C-3(5), and such conventions should be in force and compulsory for the particular type of ship. There is a question on whether such conventions must be in force in either the flag state or the port state or both.
220. Reg. C-3(4).
221. This is referred to as a "known condition" in reg. C-2(1). It is unclear how certain this knowledge can be, but presumably, taking into account the precautionary principle, scientific certainty would not be expected.
222. Such warnings should also be communicated to other coastal states affected and the IMO under reg. C-2(2) when applied and when no longer applicable. Notably the obligation to notify other coastal states is not limited to coastal states which are parties to the BWC although it is difficult to see what the consequence would be if such notification is not given, especially in respect of non-parties. The IMO is also under an obligation to "make available" any warnings under regs. C-1 or C-2. Arguably the obligation is to make public the information rather than notify all IMO members.
223. Reg. C-2(1)(2).
224. Thus "outbreaks, infestations or population" of harmful organisms are all covered (reg. C-2(1)) and these have to be "of relevance to Ballast Water uptake and discharge", which is not easy to decipher. The reference may be only to organisms covered by the BWC or to organisms that can survive in ballast water long enough to pose threats to other areas. Nevertheless the reference would probably not cover all species capable of being transferred through ballast water though arguably it would cover the toxic ones.
225. Reg. C-2(3).
226. Alternatively, one can view reg. C-2 not as independent of reg. C-1 but rather as a category of the additional measures specified in reg. C-1. In such a case the obligation to take into account the IMO guidelines (see reg. C-1(3)(1)) may provide for specifications to be developed through the MEPC.
227. Norway (BWC/CONF/16) considered Art. 2(3) as not linked with the BWM Convention mechanisms.
228. It is arguably reinforced by the joint treatment of "Article 2(3) and Section C" in the subsequent reg. A-3.
229. Reg. C-2.
230. Reg. B-4(1).
231. Reg. 134(1).
232. Since it has not been included in the wording of reg. A-2.
233. Under Art. 2(3) and reg. C.
234. Under reg. B-3 which in turn points to regs. D-1/D-2.
235. Reg. A-3(1).
236. Reg. A-3(2).
237. Reg. A-3(2)(2).
238. Reg. A-3(2)(1).
239. Reg. A-3(3).
240. Reg. A-3(4). Thus provided that the ballast water has been taken in at high seas there would be no obligations if the water is returned to the high seas, albeit in another part of the world.
241. Reg. A-4(1)(1). The same applies to a specific voyage or voyages between specified ports/locations,
242. 242 Reg. A-4(1)(3).
243. These should also be subject to intermediate review (reg. A-4(1)(2)). Notably the Netherlands suggested a one-year validity for such exemptions on the grounds that the routing of particular vessels may change temporarily as they may be chartered for other/additional routes (see BWM/CONF/18-ANNEX-1, p. 2).
244. Reg. A-4(1)(4). The exemptions are only effective until the relevant information is communicated to the IMO and the parties (reg. A-4(2)).
245. Reg. A-4(3). If the party granting the exemption thinks that there could be adverse effects on other states, it is under an obligation to consult with them. Nevertheless there is no prohibition in proceeding with the exemption if such a dispute is not resolved.
246. Those with length 50 m or less and with less than 8M3 of maximum ballast water capacity (reg. A-5).
247. Reg. A-5. Thus it is possible that some of the smallest vessels will be altogether excluded, at least in some parties. For example the Netherlands have expressed a clear view that all such vessels should be excluded (BWM/CONF/18-ANNEX-1, p. 3) from some of the requirements of the BWC. Of course a complete exemption could cause problems, especially where heavily polluted areas may be used for ballast intake. Thus this regulation is attempting to strike a balance between reducing the administrative burden and the significant cost that would follow a requirement for compliance for small vessels with the wish to retain the ability to restrain the intake of ballast water for particular areas. See also the comments of the International Sailing Federation (MEPC-IBWWG 2/2/8).
248. Reg. A-4(4).
249. Floating platforms, FSUs and FPSOs are excluded from reg. E.
250. For all other ships (including FSUs, floating platforms and FPSOs) reg. A-1(2) requires their administration to establish appropriate procedures to test compliance. Thus significant diversity may become the rule in respect of such ships.
251. Reg. E-2. The certificate is to be issued by the administration (i.e. the flag state in the general case) after surveying the vessel and should be accepted by all parties. The administration may authorise another person or organisation but even in such a case the administration remains responsible for the certificate (reg. E-1(1)(8)). In addition the administration may require another party to survey the ship and issue a certificate (reg. E-3(1)). In such a case the way the certificate was issued must be stated together with a statement that it is equivalent to a certificate issued by the administration (reg. E-3(3)). A copy of the survey report and the certificate should also be sent to the administration (reg. E-3(2)).
252. Acting as issuing party after a request from the flag state (see note 251).
253. Reg. E-4.
254. Reg. E-5(1). Notably the period of validity can arguably vary according to the type of vessel.
255. Reg. E-5(9)(1).
256. Reg. E-5(9)(2). If the transfer is between parties then the new administration can ask the previous administration within three months of the day of the transfer for copies of the survey report and the certificates. In all other transfers the ship must in essence be treated anew with initial survey.
257. Reg. E-5(9)(3). The necessary surveys are outlined under reg. E-1(1).
258. Reg. E-5(9)(4).
259. The surveys must be conducted by officers of the flag state or by appropriately recognised organisations or surveyors (reg. E-1(1)(3)). Such surveyors or organisations should have minimum powers as described in reg. E(1)(4). A direct reference to IMO Resolutions A.739 (18) and A.789(19) and their future amendments is made within the regulation. The administration should notify the IMO, and the IMO should notify the other parties, of the powers delegated to surveyors.
260. Reg. E-1(1)(1).
261. Reg. E-1(1)(2). Where the renewal survey is conducted within three months from the expiry date or after the expiry date of the existing certificate, the new certificate will be valid for up to five years from the date of expiry (reg. E-5(2)(1) and E-5(2)(2)). Where the renewal survey is completed more than three months before the expiry date then the new certificate is valid for five years from completion of the renewal survey (reg. E-5(2)(3)). These provisions provide initiative for the conduct of renewal surveys during the three months before the expiry date.
262. Reg. A-1(1).
263. Reg. E-1(1)(4). The requirement of maintenance is given in reg. E-1(1)(9) which states: "The condition of the ship and its equipment, system 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." Thus a seaworthiness criterion is introduced. This should arguably be interpreted narrowly within the context of ballast water management rather than widely as referring to other aspects of ships' safety. The text of an earlier draft at this point, as well as another point where the same criterion of "threat to the environment" appeared, included at the beginning the term "reasonable". This word was removed following proposals by Denmark (BWM/CONF/28) in which it was argued that no such text was included in the Biodiversity Convention from which the BWC derives and thus it is inappropriate to add such a qualification. Apart from improving the consistency of the text between the two Conventions it is very difficult to see how much change has been effected by the omission of this word.
264. It is unclear whether the administration or the ship will decide on this and whether there should be advance notice at the time of issuance of the certificate in respect of whether an intermediate survey will be conducted.
265. Reg. E-1(1)(4).
266. Reg. E-1(1)(5). Only modifications relevant to ballast water management would call for an additional survey. Compliance with the BWC is the objective of these surveys.
267. Reg. E-(1)(3)-(5).
268. Reg. E-1(1)(10). Direct replacement of parts is allowed.
269. Reg. E-1(1)(6). The term used is: "[N]ot fit to proceed to sea without presenting a threat of harm to the environment, human health, property or resources...".
270. Reg. E-1(1)(6).
271. Reg. E-1(1)(7). Such reporting should take place at its earliest opportunity.
272. Reg. E-1(1)(7).
273. See Art. 17 and the comments in the sub-section above headed "Management of Ballast Water Exchange".
274. For example, reg. A-3, exemptions under regs. A-4, A-5, B-4(3).
275. Reg. B-4(3).
276. Reg. D-5.
277. A breach of an obligation under the BWC would not necessarily imply negligence.