Transcript Ciarán McCarthy #envucc 2016

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