International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004
This is another public law convention that creates obligations on States Parties to enact legislation that is necessary in order to ensure compliance by ships with the requirements set forth therein. Its art. 4 provides:
Control of the Transfer of Harmful Aquatic Organisms and Pathogens through Ships’ Ballast Water and Sediments
1 Each Party shall require that ships to which this Convention applies and which are entitled to fly its flag or operating under its authority comply with the requirements set forth in this Convention, including the applicable standards and requirements in the Annex, and shall take effective measures to ensure that those ships comply with those requirements.
2 Each Party shall, with due regard to its particular conditions and capabilities, develop national policies, strategies or programmes for Ballast Water Management in its ports and waters under its jurisdiction that accord with, and promote the attainment of the objectives of this Convention.
There are, however, also rules that are enforceable directly on ships, to which the Convention applies, that are in ports or offshore terminals of a State Party other than that of which they are flying the flag, including their detention.1
Since the purpose of the Convention is to ensure the control and management of ballast water and sediments of ships, its scope of application is linked with the ships that are subject to its rules and to the notion of ballast water and of sediments.
Art. 3.1 so provides:
1 Except as expressly provided otherwise in this Convention, this Convention shall apply to:
(a) ships entitled to fly the flag of a Party; and
There is no consistency in the manner in which the linkage of ships to a State is described. Whilst also in art. 3(1) of the Convention for Prevention of Pollution of 1973 reference is made to ships entitled to fly the flag of a State Party and in art. 4(2) of the Convention on Registration of Ships it is provided that ships ‘have the nationality of the State whose flag they are entitled to fly’, in art. VII(1) of the Convention on Dumping of Wastes reference is made to vessels registered in or flying the flag of a State and in art. 8(1) of both the 1952 and 1999 Arrest Conventions reference is made to ships flying the flag of a Contracting State.2 The reference to the entitlement to flying the flag rather than to the flag the vessel is flying is more secure, because it is connected with a document, which is normally the register in which the ship is registered, rather than — at least formally — on a fact. But in practice there is no difference, because a court in order to establish what flag the ship is flying, would require evidence of the registry in which she is registered. What is meant by operation ‘under the authority’ of a State Party is not clear. That description would probably fit with the situation where a ship flying the flag of a State is operated, on the basis, for example, of a demise charter, by a company having its principal place of business in another State. Art. 3(3) so provides:
3 With respect to ships of non-Parties to this Convention, Parties shall apply the requirements of this Convention as may be necessary to ensure that no more favourable treatment is given to such ships.
The phrase ‘ships of non-Parties’ is an abridged formulation of the phrase ‘ships entitled to fly the flag of non-Parties’ and the flexible formula used in this provision seems in practice to entail a rather wide application of the Convention to such ships, since all provisions aiming at ensuring the control and management of ballast water and sediments would apply.
It is appropriate to consider seriatim the rather long list of such ships enumerated in art. 3(2).
(a) ships not designed or constructed to carry Ballast Water;
The question that might be asked is whether ships not designed or constructed to carry ballast water may nevertheless do so. Apparently the answer is no. Another question might be why no reference is made to sediments: this time the answer is based on the definition of sediments in art. 1(11) as ‘matter settled out of ballast water within a ship’: therefore if there is not ballast water there cannot be sediments.
(b) ships of a Party which only operate in waters under the jurisdiction of that Party, unless the Party determines that the discharge of Ballast Water from such ships would impair or damage their environment, human health, property or resources, or those of adjacent or other States.
As previously observed in connection with paragraph 3, ‘ships of a Party’ is an abridged formulation of ‘ships entitled to fly the flag of a State Party’. The basic exclusion is due to the fact that in the case considered there would normally be no element of internationality. But such element would instead materialise if the discharge of ballast water could impair or damage the environment, human health, property or resources of an adjacent State or other States. It does not seem appropriate that in such case the decision to apply the Convention be only that of the Party State the flag of which the ship is entitled to fly. However it appears that the risk of such impairment would entail a violation of the basic purpose of the Convention and might give rise to a dispute between States Parties.