MODULE 5

Guide to Drafting a Ballast Water Management Act

1

GloBallast Training Course on the Legal Implementation of the BWM Convention

Module 5 / Guide to Drafting a Ballast Water Management Act

Module Aims & Objectives

This Module provides a comprehensive framework for incorporating the Ballast Water Management Convention into national legislation. At the end of the module the participants will be able to:

  • Understand the drafting requirements to implement the Ballast Water Management Convention
  • Utilize the Model Act provisions as a basis of drafting the national legislation.

.

The Module is divided into threeparts, namely:

1Basic Objectives for Ballast Water Management Legislation

2Elements of Drafting National Legislation for the Control and Management of Ships´ Ballast Water and Sediments

3Annexes to the Ballast Water Management Convention into National Legislation.

Module Contents

Module Aims & Objectives

5.1 Elements of Drafting National Legislation for the Control and Management of Ships’ Ballast Water and Sediments in the Context of the Model Act

5.1.1 Title

5.1.2 Purpose

5.1.3 Definitions

5.1.4 Application

5.1.5 Survey, Certification and Inspection

5.1.6 Control and Management of Ships’ Ballast Water and Sediments

5.1.7 Sediment Removal

5.1.8 Responsibilities of the Administration

5.1.9 Procedural Matters

5.1.10 Sanctions

5.2 Incorporating the Annexes to the Ballast Water Management Convention into national legislation

GUIDE TO DRAFTING A BALLAST WATER MANAGEMENT ACT

International agreements are generally incorporated into national law by either re-enactment (the approach by dualist legal systems where the international law and national law are viewed as two separate legal systems) or by reference (the approach by the monist systems where both the international law and national law are seen as one applicable legal system).

Incorporation by re-enactment is the approach by dualist system; it refers to the implementation of international law through detailed national law. Such a law would establish institutional, administrative and penal measures required by the international agreement into national law.

Incorporation by reference is the development of national law that requires an international agreement be complied simply by referring to it, without incorporating all of its details in national law.Nevertheless there are circumstances where even countries that adhere to the monist approach (incorporation by reference) there may be a need to give effect to an international agreement by way of a law specifically enacted in order to facilitate the effective application of an international agreement at a national level.

The Draft Ballast Water Management Act would provide a model for those countries that need to incorporate the BMW Convention by way of re-enactment and some guidance for those countries who follow the monist approach (incorporation by reference) but may yet wish to give effect to the BMW Convention by way of a specific law.

Under Article 2 of the Ballast Water Management Convention, Parties undertake to give full and complete effect to the provisions of the Convention and the Annex 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.

A Ballast Water Management Act would achieve the following objectives:

  • incorporate the relevant provisions of the BWM Convention into local law;
  • provide a legal framework to enable the proper implementation and enforcement of the BWM Convention by the relevant national authorities;
  • establish a legal regime within the country dealing with ballast water;
  • fix significant fines and sanctions for violation of the provisions of the Act; and
  • provide standard reporting forms and documentation.

The Model Ballast Water Management Act sets out a comprehensive framework for the legal implementation of the Convention.

Some of the factors to be considered in implementing the legislation include the following:

  • a Ballast Water Management Act is designed to create an ability on the part of the State to exercise control and to assess risks to its marine environment and prevent risks to other marine environments from harmful aquatic organisms and pathogens that may be carried in ship’s ballast water and sediment;
  • legislation should ensure that, irrespective of the primary legal responsibility, the agency identified for port-ship interaction for purposes of document filing and other communication is in a position to do so efficiently with a minimum of delay or other administrative burden on ships. In particular reporting to multiple agencies should be avoided. For example, consolidated or comprehensive reporting, ideally electronically, for quarantine, ballast water and other entry documents is recommended;
  • legislation should ensure that the agency designated to carry out or to supervise the administration of inspections and other enforcement activities seek as much as possible to do so on a whole ship basis with multi-skilled inspectors to check for quarantine, ballast water, MARPOL and SOLAS related inspections, anti-fouling system monitoring and other related inspections; and
  • states that are part of regional arrangements should work co-operatively to develop a regionally agreed upon approach, perhaps on a first port of call basis, to protect the marine environment. Any regionally adopted approach should seek to ensure consistency with the Guidelines andthe Ballast Water Management Convention.

5.1 Elements of Drafting National Legislation for the Control and Management of Ships’ Ballast Water and Sediments in the Context of the Model Act

The need for flexibility and the importance of acknowledgement of diverse legal, economic and political situations is a factor that must be taken into consideration. At the same time the need to cooperate in the development of global standards is important to both the environmental and trade/economic development regimes. Some countries may consider that it is imperative to proceed with national legislation ahead of the coming into force of the IMO Convention. This need can arise from a mix of economic and ecological factors affecting the country. Other countries may feel that legislation should only be enacted once a Convention has been adopted. However, they may still wish to take immediate action as both a flag and coastal/port State, perhaps in the form of guidelines, research, voluntary administrative requirements to help support research and education of seafarers and other relevant personnel.

It should be noted that legislation is only one component of a comprehensive response.

In order to support the legislation, adequate and coordinated administrative infrastructure and programmes such as, inspector training, seafarer education, biological surveys of ports and nearby coastal waters and the development of environmentally, safe sediment disposal in reception facilities, are essential.

In light of the diversity among countries and the need to accommodate and support a range of regulatory responses this Section presents a non exhaustive “list of elements” for policymakers and legislative drafters to consider in developing legislation that implements the Ballast Water Management Convention.

5.1.1 Title

The title of legislation will vary depending on the form of the regulatory instrument chosen, e.g., whether it is stand alone legislation or an amendment to, or regulation affiliated with, existing legislation. The title will also depend on legislative drafting protocols in each country. A title for legislation that is not part of existing legislation should indicate the general scope, that is, what is covered, by the legislation.

5.1.2 Purpose

The legislative text will refer to the country’s international obligations under the Ballast Water Management Convention.

5.1.3 Definitions

Definitions are an important part of legislation because they precisely define the scope of the legislation and terminology within the legislation, e.g., who does it apply to and what object or activity does it apply to. Article 3 of the Ballast Water Management Convention contains a number of definitions. Some of them are standard definitions found in most IMO conventions. Some are particular to the Convention.

5.1.4 Application

An application provision (even if not labeled as such in the country’s legislation for reasons relating to drafting protocols) is necessary to build on the definitions and clarify the scope of activities regulated by the legislation. The Convention has an Application section (Article 3) and the domestic legislation should be consistent with the provisions of Article 3 of the Convention.

According to Article 3 of the Convention, the Convention requirements apply to all ships operating under the flag or authority or a party State. The Convention also applies indirectly to ships of countries that do not become a party to the Convention. States party to the Convention are required to apply the Convention in a way that ensures that ships of non party States are not given more favorable treatment than ships of State that have ratified the Convention (non discrimination).

The Convention does not apply to “ships not designed or constructed to carry ballast water”, or ships operating only within one country’s waters or between one country’s waters and high seas (if this does not negatively impact on the aquatic resources of another State). In other words, countries are not required (but can choose to do so) to regulate ships that do not operate on international routes, unless this exemption results in transboundary harm. The Convention also does not apply to warships, navy or ships used for government non-commercial activities, although countries are required to adopt appropriate (operational viable) measures that are the Convention.

It can be seen then that the Convention sets a “floor” or minimum standards for flag State responsibilities for implementation the Convention, when the country becomes party to it. With respect to ships for which it has flag State administrative responsibilities a country can adopt standards that are broader or more stringent than the Convention minimum.

The following points are suggestions for issues specific to national level legislation that would apply to both flag/national ships (if the country is a flag State) and foreign flag ships (i.e., it covers both flag State and port/coastal State responsibilities):

a)This legislation (or applicable name) applies to all ships that have ballast tanks entering national (or insert country’s name) waters.

The Convention refers to “all ships” but does not apply to ships “not designated or constructed to carry ballast water.”

b)This legislation (or applicable name) applies to all national (or insert country’s name) ships that have ballast tanks.

Although the Convention only applies to international shipping, concerns about containment and preventing the transfer of organism and pathogens between ports in a country suggests that vessels engaged in coastal journeys within a country could also be regulated at a domestic level. A suggestion such as this one, which relates to a country’s flag State jurisdiction, will help to better protect the environment even if the country does not formally adopt the Convention when it comes into force.

c) This legislation applies (or, does not apply) to national warships, naval auxiliary ships, and government non-commercial service ships.

Under international law a coastal State’s legal requirements that apply in its territory (including territorial waters) are applicable to foreign flag military and governmental non-commercial vessels (subject to the normal rules regarding Innocent Passage). However, because of customary international law (as reflected in UNCLOS, Art. 236) regarding sovereign immunity, the legislation is not considered enforceable against these ships. The coastal State has some remedial powers in that a foreign flag military or government non-commercial ship that does not comply can be required to leave the territorial waters.

d)Obligations of National (or insert name of the country) Ships

Alternatively a title dealing with this elements could explicitly refer to “ships entitled to fly the flag” of the relevant country. The following sets out some of the responsibilities that a country may wish to impose on its national/flag ships.

(i) All national ships that have ballast tanks must carry and apply an approved Ballast Water Management Plan that responds to matters outlined under the Convention, including precautionary ballast water uptake and management practices.

In principle the precautionary practices should be listed in and become part of a ship’s Ballast Water Management Plan. As noted earlier under the “Definition” element, the Convention labels these practices as “supplemental” and refers to recommendations developed by the Organization.

(ii) All ships that have ballast tanks and intend to discharge ballast water in the national waters of the State (or country’s name waters) must apply the ship’s Ballast Water Management Plan before entering its Territorial Sea.

Countries vary regarding the breadth of the declared TerritorialSea (maximum 12nm). A country may wish to replace the reference to TerritorialSea with specific geographical or nautical mile references.

(iii) Ships using mid ocean exchange for ballast water management in accordance with the IMO Resolution A.868 (20) Guidelines must do so in waters deeper then (xx) metres and must apply the ship human safety considerations set out in Appendix 2 of the Guidelines.

It is clear that ship and human safety considerations are aligned and are necessarily paramount for the ship’s master and the Maritime Administrations. The depth and distance requirement for water exchanges could also be identified by using an internationally recognized geographical reference.

(iv) All national ships that have ballast tanks must carry, maintain and have available for inspection a Ballast Water Record (Book) in the format and meeting the requirements set out in (the IMO Guidelines or the draft Convention when it comes into effect).

These are primarily requirements found in the current text of the Convention. The Convention refers to a Book and provides a sample page. It requires that the Book be kept on board for a minimum of two year followed by minimum three-year retention under the control of the company. The Convention also requires that the entries must be written in the working language of crew (and possibly also the officers if that differs) and may require, where the language is notEnglish, French or Spanish, a translation into one of those languages.

(v) All national ships that have ballast tanks must appoint an officer in charge of ensuring implementation of the ship’s Ballast Water Management Plan, maintenance of the Ballast Water Record (Book) and provision of the harmful aquatic organism or pathogen related information required by a country.

It is recommended that the legislation requires that all national ships that have ballast tanks file a Ballast Water Reporting Form with the designated reporting agency of any country.

It should be noted that the IMO Guidelines are based, in part, on coastal/port State review of a uniform reporting form submitted by a ship. The Convention is not based on the same coastal/port State risk assessment approach. Nevertheless, it is suggested that countries require use of the standard Ballast Reporting Form in the Guidelines and support risk assessments, for ships that do not have or are unable for some reason to apply the ship’s Ballast Water Management Plan. In addition it will allow a country to have advance notice of ships’ entering that have a valid International Ballast Water Management Certificate (along with other Certificates).

(vii) All national ships that have ballast tanks must have crew and officers that are familiar with the Guidelines and Convention, and with the requirements of the ship’s Ballast Water Management Plan for safe ballast waste management.

This does not require that all crew be trained to implement the ship’s Ballast Management Plan. Until there is a change to the STCW requirements it may prove difficult for ship operators working with multinational crews, to ensure that all crew members have this training. However, it is clear that, at a minimum the ship’s master, the officer(s) designated as responsible for the Ballast Water Management Plan and personnel directly involved in carrying it out must have this training.

(viii) All ships of more than 400 Gross Tonnes that have ballast tanks must obtain and carry a valid International Ballast Water Management Certificate granted by the Administration in accordance with the survey requirements in the Convention.

5.1.5 Survey, Certification and Inspection

Ships are required to be surveyed and certified (Article 7 Survey and Certification) and may be inspected by port State control officers (Article 9 Inspection of Ships) who can:

  • verify that the ship has a valid certificate;
  • inspect the Ballast Water Record Book;
  • and/or sample the ballast water.

If there are concerns, then a detailed inspection may be carried out and “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.” All possible efforts shall be made to avoid a ship being unduly detained or delayed (Article 12 Undue Delay to Ships).