Ballast water rules foreshadow uncertain future


The latest move by the international community to limit shipping’s impact on the environment has been met with qualified welcome but also trepidation and profound irritation.

Irritation because the rules on ballast water management, while costly to implement, may still not be enough to satisfy at least one key maritime jurisdiction. And trepidation because this could signal a long-term weakening of the one global authority that claims to make internationally binding regulations for the shipping industry.

The International Convention for the Control and Management of Ships’ Ballast Water and Sediments – the BWM Convention – has been under discussion for 14 years. Finland, the latest country to accede to its terms, finally gave the convention enough international backing to take effect. It is now set to come into force in September 2017.

The convention has been framed by the International Maritime Organization (IMO), the United Nations (UN) body overseeing safety and security at sea and the prevention of pollution by ships. The convention seeks to address the enormous damage done by ballast water to the eco-systems into which it is discharged.

Far from being a triumph of international cooperation, it has exposed a deep fracture in the commitment to regulate shipping as a global industry. The torturously evolved regulations may yet prove too weak to satisfy the United States. That country is not party to the convention and has already introduced its own, potentially stricter, ballast water management rules.

By not waiting for the IMO convention to win the required level of international support, and by not endorsing the IMO proposals, the United States has deeply unsettled the shipping community.

It has effectively rejected the argument that shipping – as a global industry – should be regulated by global agreements; an argument that for decades has been a sacred text for the global shipping lobby. And it has implicitly acknowledged that the ‘global rules for a global industry’  approach has a crippling weakness: The framing and implementing of globally accepted rules takes so long that people outside shipping lose faith.

The details of the US position are almost too complex to unpick. What is clear is that ships discharging ballast water in US waters will have to use a treatment system approved by the US Coast Guard (USCG), not just the IMO. As yet no systems have been approved by the USCG. Instead the USCG has allowed the use of what is called the Alternate Management System (AMS), in practice a system type-approved in accordance with current IMO Guidelines.

But this is a temporary expedient. The waiver is in place for only five years, after that a fully USCG-approved system must be installed. There is, at the time of writing, no guarantee that an AMS will be granted full approval. Ballast water treatment systems that satisfy the IMO regulations may be non-compliant in US waters. Shipowners who install an AMS in good faith, at a cost of anything approaching US$1million and up to US$3 million per ship, could have to scrap their systems and start afresh.

The United States has bypassed an international rule making body and imposed its own, stricter standards. It has acted unilaterally before. After the 1989 Exxon Valdez disaster US legislators mandated thicker and doubled hulls for tankers without waiting for international consensus. The European Union (EU), meanwhile, has shown itself ready to force the pace on sulphur rules for marine fuels and exhaust emissions.

If there is a lesson for the IMO it is that public concern about environmental degradation, particularly concern in developed, democratic countries, means governments will act with or without international consensus.

The BWM Convention has its supporters. IMO Secretary-General Kitack Lim, called it a “truly significant milestone for the health of our planet”. He said the spread of invasive species in ballast water was one of the “greatest threats to ecological and the economic well-being”. That invites the question, if the threat is so great how can a 14-year timetable to reach (partial) agreement possibly be justified?

International bodies can move quickly in response to specific catastrophes. There is at least one major example of the IMO acting with impressive swiftness. The International Ship and Port Security code (ISPS) came into force in 2004, less than three years after the 9/11 terrorist attacks (although whether the code is fit for purpose is another matter).

But environmental degradation may prove to be a catastrophe of an entirely different order; it is likely to be prolonged, cumulative and deeply contentious. Given the entrenched interests of the shipping industry and its near perpetual sense of financial crisis, and given the reluctance of some governments to prioritise environmental protection, the IMO, on issues of the environment, is set to be outflanked.

Not for the first time its authority is at risk. The new chairman of the International Chamber of Shipping (ICS), Esben Poulsson, in his first major address after taking office, lamented the way the story of the ballast water regulations had unfolded. “Unless we are very careful,” he said, [the] “IMO could eventually be reduced to merely rubber stamping decisions which in reality will have been taken elsewhere, whether in Europe, the United States or by the emerging powers in Asia.”

His words were framed as a warning; they may simply be a description of the inevitable.

This paper is intended as a general summary of issues in the stated field. It is not a substitute for authoritative advice on a specific matter. It is provided for information only and free of charge. Every reasonable effort has been made to make it accurate and up to date but no responsibility for its accuracy or correctness, or for any consequences of reliance on it, is assumed by Gray Page.

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