Ballast Water Control: Issues & Recommendations for Protecting the United States

Washington University Global Studies Law Review Volume 10 | Issue 4 2011 Ballast Water Control: Issues & Recommendations for Protecting the United States' Shared Pacific Coastline Rebecca M. Thibault Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Law Commons Recommended Citation Rebecca M. Thibault, Ballast Water Control: Issues & Recommendations for Protecting the United States' Shared Pacific Coastline, 10 Wash. U. Global Stud. L. Rev. 837 (2011), https://openscholarship.wustl.edu/law_globalstudies/vol10/iss4/7 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . BALLAST WATER CONTROL: ISSUES & RECOMMENDATIONS FOR PROTECTING THE UNITED STATES’ SHARED PACIFIC COASTLINE I. INTRODUCTION The biological diversity of sea-life is besieged by the effects of human activity.1 Under the cover of the ocean, these changes are often concealed from view. However, our inability to readily see these alterations to the marine environment neither masks nor diminishes the insidiousness of this critical environmental problem. Humans have many ways of affecting the biological diversity, or biodiversity, of a marine ecosystem. And the encroachment of aquatic invasive or nonindigenous species,2 commonly mediated by humans, is “one of the most important agents of . . . change to marine biodiversity at the genetic, species, and ecosystem levels.”3 Indeed, it has been noted that this invasion “constitutes one of the four greatest threats to the world’s oceans and their biodiversity.”4 “Biodiversity” describes the biological diversity of genetic, species, and ecological levels in a given ecosystem.5 The Convention on Biological 1. Cheryl Ann Butman & James T. Carlton, Preface to COMM’N ON GEOSCIENCES, ENV’T, & RESOURCES, UNDERSTANDING MARINE BIODIVERSITY, at ix (1995) [hereinafter UNDERSTANDING MARINE BIODIVERSITY], available at http://books.nap.edu/openbook.php?record_id=4923&page=24. 2. See infra notes 5–6 and accompanying text for a full explanation of the use of this term in this Note. 3. Id. The other most important critical issues identified are the activities of “fisheries operations, chemical pollution and eutrophication, alteration of physical habitat, and global climate change.” UNDERSTANDING MARINE BIODIVERSITY, supra note 1, at 25. 4. Erkki Leppäkoski, Scientific Aspects on Biopollution, in MARIA HELENA FONSECA DE SOUZA ROLIM, THE INTERNATIONAL LAW ON BALLAST WATER: PREVENTING BIOPOLLUTION 15, 16 (2008). The other great threats include those posed by land-based pollution sources, over-exploitation of living marine resources, and the destruction and physical modification of the marine habitat. Id. (citation omitted). See also Efthimios E. Mitropoulos, Foreword to MARIA HELENA FONSECA DE SOUZA ROLIM, THE INTERNATIONAL LAW ON BALLAST WATER: PREVENTING BIOPOLLUTION, at xii 2008 (noting the same threats to the ocean environment). 5. J.L. Harper & D.L. Hawksworth, Preface, in BIODIVERSITY—MEASUREMENT AND ESTIMATION 5, 6 (D.L. Hawksworth, ed., 1995). Genetic diversity refers to the diversity within a species, species diversity refers to the number of different species, and ecological diversity refers to the diversity of the community. Id. Harper and Hawksworth give a concise and informative overview of the definition of the term biodiversity. Id. at 5–11. They explain the etymology of the term as well as how biodiversity is assessed or measured in taxonomic, molecular, or phylogenetic levels. Id. The authors caution that biodiversity may mean “quite different things to different people,” id. at 6, but this should not deter a robust scientific discussion about biodiversity. So as not to become mired in a scientific debate about the term’s definition, this Note will rely on the broad definition offered by the Convention on Biological Diversity. See infra note 6 . 837 Washington University Open Scholarship 838 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 10:837 Diversity6 and this Note both use the term biodiversity to mean “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”7 Edward O. Wilson, renowned scientist and tireless advocate for the conservation, protection, and study of biodiversity,8 illustrates the importance of biodiversity by noting that “[e]ach species possesses a unique combination of genetic traits that fits it more or less precisely to a particular part of the environment.”9 The general threat to biodiversity brought on by the introduction of nonindigenous species is the displacement of one or more native species. Globalization and trade have contributed widely to this displacement. For example, Columbus’s landing in 1492 had an especially startling force in the Caribbean and the Americas: the settlers and their living cargo caused changes to entire landscapes, creating fields of new grass species where once there were forests.10 Indeed, the result of these biological changes has led some biologists to refer to the post-Columbus years as the “Homogenocene” era, a reference to the homogenization of ecosystems “mixing unlike substances to create a uniform blend.” Indeed, “[w]ith the Columbian Exchange, places that were once ecologically distinct have 6. The Convention on Biological Diversity, entered into force on December 29, 1993, developed from a working group of the UN Environment Programme. CONVENTION ON BIOLOGICAL DIVERSITY, History of the Convention, http://www.cbd.int/history/ (last visited Feb. 22, 2012). Three objectives motivated the Convention: “1. The conservation of biological diversity, 2. The sustainable use of the components of biological diversity, 3. The fair and equitable sharing of the benefits arising out of the utilization of genetic resources.” CONVENTION ON BIOLOGICAL DIVERSITY, About the Convention, http://www.cbd.int/convention/about.shtml (last visited Feb. 22, 2012). Signed by 168 of 193 parties, the United States is not included in that figure. CONVENTION ON BIOLOGICAL DIVERSITY, List of Parties, http://www.cbd.int/convention/parties/list/ (last visited Feb. 22, 2012). Though signed by President Clinton in June 1993, the Convention was never ratified by the Senate. For a thorough review of the United States’ legal concerns with ratification of the Convention, see William J. Snape, III, Joining the Convention on Biological Diversity: A Legal and Scientific Overview of Why the United States Must Wake Up, 10 SUSTAINABLE DEV. LAW & POL’Y 11 (Spring 2010). 7. Convention on Biological Diversity art. 2, Dec. 29, 1993, 176 (...truncated)