DEFINING "UNDULY': RESOLVING INHERENT TEXTUAL AMBIGUITY IN THE IMO'S BALLAST WATER MANAGEMENT CONVENTION.

• Author: Bobka, John R.
• Position: International Maritime Organization - NOTES

TABLE OF CONTENTS INTRODUCTION 268 I. BACKGROUND 271 A. What Is Ballast Water and Why Is It Regulated? 271 B. The Ballast Water Management Convention 274 II. THE BWMC'S UNDUE DETENTION AND DELAY PROVISIONS CAN BE READ TO CONSIDER WHERE THE COMPLIANCE Inspection Occurred 278 A. Ordinary Meaning of an Individual Term 279 1. Aggregate Ordinary Meaning 280 2. Applying the Ordinary Meaning in Context 281 3. Grappling with the Ambiguity of "Undue" 282 B. Testing the Geographic Consideration 284 1. In Context, Immediate and Distant 284 2. In Light of the BWMC's Object and Purpose 285 III. THE BWMC'S UNDUE DETENTION AND DELAY PROVISIONS SHOULD BE READ TO CONSIDER WHERE THE COMPLIANCE INSPECTION OCCURRED 290 A. Refining the Scope of "Undue" Will Avoid Self-Defeat and Incentivize BWMC Compliance 290 B. Incorporating Inspection Location Acknowledges Differences in States' Needs and Capabilities 293 CONCLUSION 295 INTRODUCTION

In the late 1980s, a striped menace made its first appearance in North America. (1) A native of the Black, Caspian, and Azov Seas, the zebra mussel appeared in Lake St. Clair in Canada. (2) The pestilent mussel found its way into major rivers and other waterways, and quickly proliferated into the United States. (1) Within two years, the zebra mussel had invaded every Great Lake. (4) The mussel caused, and still causes, rampant economic and environmental harm. (5) Indeed, once introduced, the invasive zebra mussel not only disrupts industry by colonizing in facilities' water pipes but also devastates populations of native organisms, thereby disturbing the ecological equilibrium of the invaded area. (6) But how did a mussel native to Eastern Europe and Western Asia get to North America in the first instance? "A release of larval mussels during the ballast exchange of a single commercial cargo ship traveling from the north shore of the Black Sea to the Great Lakes has been deduced as the likely vector of introduction to North America." (7)

Presently, the possibility of a zebra mussel-like catastrophe occurring in the Arctic is growing. (8) Human activity levels in the Arctic are increasing and will continue to do so should current climate change trends continue. (9) From industry and trade, to national security and even recreation, the world will access the Arctic for its resources as it becomes more accessible. (10) With increased activity comes the side effects of human endeavor, (11) including the environmental side effects of commercial vessel shipping. (12) As waterways such as the Northwest Passage become increasingly passable now and in the future, commercial vessel traffic in the Arctic will increase. (13) Because of this increase, the introduction of nonindigenous aquatic invasive (or "nuisance") species (14) into Arctic ecosystems via vessel ballast water discharge--a problem known to the rest of the navigable world for over a century (15)--is becoming a proposition of "when" rather than "if." (16) Indeed, "a disastrous outcome has already been predicted for the Arctic." (17)

Aquatic invasive species transfer is a serious threat to the world's aquatic ecosystems. (18) International (and domestic) instruments such as the International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWMC) seek to regulate vessels and their ballast water to reduce and eventually eradicate such transfers. (19) Now that the BWMC has entered into force, (20) it is critical to consider potential implementation issues that have received limited exploration during the ratification period. In an effort to begin a critical discourse, this Note closely examines one such issue: ships' undue delay and detention during compliance inspections. (21)

To meet its invasive species mitigation objectives, the BWMC authorizes, among other things, the inspection of vessels for compliance with other BWMC provisions. (22) These inspections may include checking for required documentation and logbooks, as well as testing ships' ballast water while in port. (23) According to the BWMC, a ship may not be "unduly detained or delayed" during, or as a result of, such inspections. (24) However, due to the lack of any definition of "unduly," there is an inherent tension between the undue delay and detention provisions and the BWMC's overall objectives. (25) This Note argues that to avoid undermining the BWMC's purpose and efficacy, the undue delay and detention provisions can and should be read such that the standard for what constitutes "undue" (26) takes into consideration the location of the compliance inspection (a "geography-dependent" standard). (27)

Part I of this Note provides background regarding ballast water regulation and introduces relevant BWMC provisions. Part II conducts a close textual analysis of the BWMC, arguing that the undue delay and detention provisions can be read to contemplate a geography-dependent standard. Part III first argues that the undue delay and detention provisions should be read to contemplate a dynamic, flexible standard as a general matter, and then argues specifically for the geography-dependent standard. A brief conclusion follows.

1. BACKGROUND

   1. What Is Ballast Water and Why Is It Regulated?

      "A ship takes on and discharges ballast water to compensate for changes in its weight caused by activities such as loading and unloading cargo or consuming fuel or supplies." (28) Compensating for changes in weight stabilizes the vessel at sea. (29) A vessel carrying a lighter load will carry more ballast water. (30) Depending on its size, a vessel can take on upwards of twenty-five million gallons of ballast water. (31) A vessel usually takes on ballast water at the most recent port of call and relinquishes the ballast water either at the next port or "en route in shallower water or calmer seas." (32) Regulating ballast water transfer in ports and shallow water is imperative because these are effectively the only places where a vessel can safely take on or release ballast water. (33)

      While estimates vary, global commercial shipping activity transfers several billion tons of ballast water annually. (34) Given this immense volume, the incidental collection of organisms, pollutants, and sediments during ballast water intake may come as no surprise. (35) Among the "hitchhikers" are aquatic invasive species, considered to be one of the most serious threats to the world's aquatic ecosystems. (36) As defined in the BWMC, aquatic invasive species, or '"Harmful Aquatic Organisms and Pathogens[,]' means aquatic organisms or pathogens which, if introduced into the sea including estuaries, or into fresh water courses, may create hazards to the environment, human health, property or resources, impair biological diversity[,] or interfere with other legitimate uses of such areas." (37)

      Ranging from goby to toxic algae, and of course, zebra mussels, (38) aquatic invasive species can cause severe environmental and economic harm in non-native ecosystems. (39) Aquatic invasive species diminish native species populations by (1) outhunting them for food, or simply hunting them; (2) "interbreeding with them;" or (3) "introducing harmful pathogens and parasites" into the ecosystem. (40) Invasive species also impair ecosystems by disturbing natural processes such as hydrological or nutrient cycles. (41)

      Invasive species invasions carry a staggering price tag. In the United States alone, land-based and aquatic invasive species cause an estimated $137 billion in damage annually. (42) Introduced to the Black Sea via ballast water transfer in the early 1980s, the comb jelly decimated the fishing industry and cost the region an estimated $250 million. (43) Invasive species implicate public health as well: ballast water can transfer cholera bacteria or pollutants such as polychlorinated biphenyls (PCBs), which can be subsequently consumed by humans. (44)

      As "the primary distributor of aquatic invasive species," commercial shipping relocates thousands of nonindigenous invasive species each year via ballast water exchange. (45) Although the majority of organisms do not survive the trip, (46) survival rates are increasing; (47) the resilient species that do survive can cause severe damage. (48) In addition, although invasive species are less likely to survive in deep water, the dangers of deep water ballast water exchange limit vessels to shallower waters or ports, where non-indigenous invasive species are more likely to survive. (49) Further, researchers have found that invasive species' presence, and therefore the probability of significant harm, in coastal ecosystems increases as shipping volume increases.

      Perhaps one of the most troublesome aspects of aquatic invasive species invasions is the irrevocableness of the invasion itself. Indeed, "[i]t is a basic fact that established aquatic nonindigenous species are permanent arrivals." (51) Remedial measures rarely result in complete eradication. (52) As such, preventing aquatic invasive species from reaching foreign ports via ballast water is effectively "the only solution." (53)

   2. The Ballast Water Management Convention

      The International Maritime Organization (IMO), a United Nations agency charged with "the safety and security of shipping and the prevention of marine pollution by ships," (54) adopted the BWMC in 2004. (55) The BWMC entered into force on September 8, 2017, one year after reaching its threshold for ratification. (56) To enter into force, the BWMC required "ratification by a minimum of 30 States, representing 35 percent of world merchant shipping tonnage." (57) Although the treaty easily passed the thirty-country minimum by 2016, Finland's entry as the fifty-second contracting nation raised the shipping tonnage above the 35 percent threshold. (58) Between 2004 and 2017, guidelines for the BWMC's implementation were developed as ballast water treatment technology progressed, causing more countries to join. (59) As of August 6, 2018...