Although statistically irrelevant, global cataclysmic events such as meteorite strikes, volcanic eruptions and climatic shifts have in the past decimated biodiversity. However, and with greater frequency, humanity’s activities, expansion and advancement have caused similar levels of biodiversity loss both to plants and animals within the world’s oceans.
The discharge of ballast from a Chinese freighter off the Peruvian coast in January of 1991 was viewed from the shipping industry at the time as normal procedure. This displaced ballast was acquired from the Bay of Bengal, and contained plankton which was infested with a form of Vibro Cholera.
The Peruvian population became infected from eating shellfish that had ingested plankton, and from drinking or bathing in water supplies drawn directly out of the rivers which at best had only minimal processing. It worked its way inland, and was spread faster due to massive overcrowding, whilst the waters themselves spread along the coastline. The lack of water purification, chlorination protocols, insufficient infrastructure with regards to medical facilities and waste disposal, coupled with minimal international support lead to 4,000 deaths within a matter of weeks, with a further 393,000 contracting the disease. This tragedy was almost certainly an accident.
What could happen if this was done with malicious intent?
Terrorists, environmental protesters, individuals, rival nations or organizations could utilize biological weapons to spread indiscriminate fear through the populace utilizing diseases contained within ballast water, or make use of invasive species to cripple or destroy the economic infrastructure, and recreational, tourism or environmental industries.
Purpose of Maritime & Environmental Law
Seeks to address the damage caused by individuals or companies that have directly and indirectly caused disruptions to environmental quality or physical damage to natural resources in the name of territorial or economic human expansion. The damage can be from a range of sources, including biological or chemical agents; damage that require extensive management to restore the original state. Human activities have led to numerous environmental issues i.e. eutrophication.
Legislation of the British Isles
From 879AD the British Isles has had legislation, before then it was down to foreign invaders or feudal cult beliefs. Legislation continued to evolve over the centuries until a major event occurred starting in 1760 and lasting until 1840 in the form of the Industrial Revolution, which ushered in a constant degradation to the environment never before seen other than through natural disasters. Rapid expansion of industries and an uptake in social travel lead pollution to become a transboundary issue.
By the 19th century very few regulations existed regarding pollution, with no regulatory bodies in place that were capable of creating, let alone enforcing any laws made. Prior to this there was no administrative structure to gather evidence that could be used to prosecute defendants who tried to utilise private laws of dispute in addition to English common laws which at the time were deemed to be highly ineffectual. However the new social and professional classes demanded protection against threats to their commercial ventures and interests.
A paradigm shift occurred after WW2 regarding development and implementation. Scientific leadership allowed for conflict dispersal of individuals, organisations, and nations through debates, conferences, research and education which would lead to a consensus that could then be lobbied to the highest levels. Political leadership allowed legislation to be enacted and provide enforcement power, and socio-economic leadership would then provide the moral dimensions against cost of implementation.
Environmental law had a slow development compared to other legal regimes. Prominent academics of the time in their chosen fields produced a lot of scholarly case studies, journals, critical and comparative literature on environmental subjects, but the issues that they envisioned were a concern of a few likeminded researchers, scientists and conservationists who spent years or decades debating only to find that when they submitted their findings they had emerged too late on the political or public policy spectrums. This meant that only limited or expensive methods could rectify or at best mitigate the issues.
A catastrophe such as an oil spill would garner public attention and guarantee a burst of activity from the current political entity which would look for a sustainable solution to show they took the situation seriously. However a combination of short-lived public memory, and frequent changes to political landscapes would mean that the core issue would continue to exist.
Environmental management at local, regional and national levels has been ignored or unimagined by earlier generations and have only recently become a prominent issue within the global context.
Current environmental contingencies, regimes, plans and projects are only effectively mitigating but not materially solving the underlying issues which still continue. The issue comes down to a consensus in transboundary policy13, and about priorities with some public opinions extending to a need to protect the environment, but mostly with passive indifference. Governments put aside generally just enough to satisfy the people’s expectations.
Environmental law currently is managed by the Environment Agency which enforces it as a coherent body, and has systems in place to deter world-be offenders through the use of fixed penalties. An issue has been that international legislation is not binding under English law unless it has been incorporated into legislation; until then it is at best a soft law or utilised as best practice.
Individuals pollute the environment due to self-interest while environmental responsible behaviour is discouraged due to cultural, economic, and political structure.
Evolution of International Legislation
Before the advent of WW1 the nations of Europe were bound together through ancient pacts of trade, fellowship, royal bloodlines and a military alliance system. After the assassination of Archduke Ferdinand, these oaths and pacts were called upon which lead to WW1. After hostilities ended the European nations attempted to restore the original order by severely managing and penalising the losers which lead to years of anger and resentment which would in due course bring about WW2.
The 1948 Universal Declaration of Human Rights was the first international agreement that had an environmental clause16. After the 1958 Geneva Convention, maritime and environmental laws became intertwined17, and by the late sixties pollution had become a concern for all nations18 and led to the Stockholm & Rio Declarations which was to ensure that activities within a nation’s borders did not cause transboundary harm. By 1975 international support was strong and allowed the UN to implement environmental programs that identified and prevented the release of any substances that were liable to harm human health or effect living resources and amenities whilst promoting public support and changing sentiments which would later be called EIA.
Maritime legislation was revolutionised under UNCLOS in 1982, but it was the Rome Convention of 1988 and the Treaty of Maastricht in 1992 that would change the direction in which maritime affairs were conducted. A few disparate environmental events happened in the 1990s. The Washington Declaration in 1993 formed a commission on global governance that looked into the potential of a unified environmental state. Whilst the London Protocols, Aarhus Convention and Gothenburg Protocol tied human right violations directly into environmental policies. Of direct project note the BWMC was ratified in 2016.
Shipping Industry Legislation
The change from solid ballast to liquid ballast to improve a vessel’s stability especially when travelling without cargo was seen as a soft law as it became a common industry practice in the 1880s. Issues over the change of ballast medium would occur sporadically up to the late 1960s when the threat had become noticeable globally.
One solution to BW issue is the potential for shore based ballast exchanges similar to a mobile water treatment plant or desalination technique which is an alternative concept whereby living organisms are no longer displaced or killed which must effect ocean biodiversity. Every port has facilities available to provide fresh water.
Comprehensive regulation on maritime pollution didn’t exist until after the 1967 Torrey Canyon incident which led to UNCLOS (3). However even though large scale pollution events like Deep Water Horizon and Exxon Valdez do cause immeasurable damage to the environment, it has been identified by the GESAMP that only 12% of pollution comes from vessels worldwide.
The shipping industries worldwide are failing in their attempts to minimise incidents of BW, pollution or IAS releases within ports. Enforcement of international and local legislation is generally ineffective in preventing incidents, with a general apathy on behalf of FS especially when the incident happens under another country’s jurisdiction. FS don’t take enough responsibility for vessels, doesn’t effectively discharge their duties or even delegate them to PSC effectively.
Under internationally binding laws, the UK has control of its territorial waters to a distance of 12nm and has influence over the remaining 188nm as its economic exclusive zone. However, there are currently only limited mechanisms in international law for forbidding access for ships entering a sovereign power’s waters if they are conducting innocent passage. Innocent passage is one of the most important freedoms and must not be interrupted even if a vessel is blacklisted. Since coastal laws are fatally weak and cannot be effectively used on suspected vessels until the ship has traversed thousands of miles of coastline in substandard conditions, it means that malicious activities can happen at any time.
However, any vessel that causes serious or wilful pollution loses all rights under innocent passage and can be considered by the FS as causing a threat to its sovereignty. FSC exercises its powers over internal waters and PSC. As a matter of practice, PSC will not exercise jurisdiction on vessels that are essentially internal to the ship. In most cases the FS allows vessels into their ports from other FS only on the condition that they have trade treaties. The ISPS code is a prime example of how a FS can regulate power within its ports, as it reduces the risk from attacks and can control access due to inter alia although FSC does have an incentive ensuring that the port remains commercially viable.
Since the Paris MOU of 1983, PSC has had rights over FS in relation to pollution matters with legislation allowing for 25% of all vessels to be inspected in an effort to reduce the number of substandard ships. Its failings are due to the myriad of conflicting regulations, the lack of resources, man-power and the commercial image. Ports that conduct too many inspections, or have stringent enforcement can lead to vessels diverting to less problematic ports as economic considerations are paramount to both parties, which means that generally only 20% of vessels are inspected.
MARPOL mandatory pollution incident reports are consistently low, with lacklustre PSC enforcement being the primary cause. SOLAS and IMO resolution a.787 gives the power to PSC to detain any vessel regardless of FSC challenges if deficiencies are not rectified. However this only occurs in 5.5% of cases, and thus only one vessel in every 2000 will ever be detained for pollution related concerns.
Fisher in 2001 suggested that shipping companies buy pollution compensation insurance via their P&I clubs as this could offset victim damages and would bypass courts and get restitution directly from the insurance companies which would reduce the backlog of environmental cases. How quickly people forget that a crude form of the current PP existed within the first applications of 19th century English torts in the form of the CBA.
Invasive Aquatic Species
First noted in the 18th century after the unification of the British Empire which caused a steady expansion especially in trade due to technological advancements culminating in the introduction of steam machinery which further increased the effects of IS dissemination. Average growth of trade is 7-8% annually globally since 1950. It wasn’t until the late 1970s that any real support was forthcoming on the issue of IAS. Before then it had been common practice to maximise economics over all other considerations; environmental problems were at best a secondary concern.
IAS is a very human orientated issue, although natural processes like climatic events, animal and bird migrations have also introduced species to new environments. It is the activities of humanity that has caused an exponential growth in species dispersal, but it cannot be solved and therefore we can only mitigate the harm by slowing the spread of IAS. Pearce states that “malign invaders are simply taking advantage of ecosystems already damaged due to human activities, and that they often help nature’s recovery long term.” There have been many IS invasions worldwidE and whilst IAS is a major issue, it is only a tertiary issue to the much larger problems of humanity and habitat loss.
Any species irrespective of taxonomic group could be classed as invasive if transported to a new environment where it displaces the endemic inhabitants or damages local ecosystems. This occurs mostly at present from ballast water used to maintain the stability of vessels due to its easy accessibility and negligible cost. Over seven billion tons of ballast water is shipped around the world yearly containing seeds, spores, plankton, bacteria, eggs and larval forms of organisms.
Distribution of IAS is most efficacious when salinity and temperature is similar, and invasions generally occur up to 8-10k miles away from the initial source. If a voyage is too short then there is a high chance that the species already exists in the area, and if it is too long then the organism’s dies on-route.
Key Invasive Species Legislation
Convention on International Trade in Endangered Species of Wild Fauna and Flora, Weeds Act 1959, Import of Live Fish Act 1980, Wildlife and Countryside Act 1981, Environmental Protection Act 1990, Wild Mammals Protection Act 1996
Certain species are noteworthy for both being an issue and a boon to a region. The Water Hyacinth is a quandary as it thrives on polluted water and absorbs heavy metals from industrial processes which leads to rapid growth culminating in damaged aquaculture, infrastructure disruption as water intake pipes and hydroelectric turbines become fouled, becomes a carrier for diseases such as cholera, malaria, and bilharzia, and causes eutrophication in still water. It has been ineffectively managed with expensive herbicides and introduced predators which have failed to stop its growth. However, it could be markedly reduced if the water was cleaned due to more stringent industrial laws, and is economically advantageous as it can utilised as livestock fodder, biogas energy production, and used as fertilisers.