1. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Prevention of Invasive Species from Ballast Water: Problems and Prospects of Chinese law LIU Nengye

2. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University 1. Introduction 2. International Regime 3. Current Chinese Legal Framework 4. Prospects 5. Final Conclusions

3. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Introduction -The introduction of invasive marine species into new environments by ships’ ballast water attached to ships’ hulls and via other vectors has been identified as one of the four greatest threats to the world’s oceans -China as a major coastal country is also facing serious problems caused by invasive species from ballast water 1. The marine biological diversity is threatened 2. Fishing, tourism and other aquiculture are seriously influenced 3. Some toxic invasive algae are harmful for human health

4. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University International Legal Regime -United Nations Convention on the Law of the Sea (LOSC) Article 196(1) :States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto -1992 Convention on Biological Diversity (CBD) Article 8(h): each Contracting Party shall, as far as possible and as appropriate, prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species

5. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University International Maritime Organization -1997 Resolution A.868 (20), Guidelines for the Control and Management Ship’s Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms Non-binding soft law Rely heavily on the mid-ocean exchange of waters taken up from coastal waters in the vicinity of the port of origin for oceanic waters Provide little incentive for treatment innovation

6. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University -2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention) It will enter into force 12 months after the ratification of 30 states representing at least 35 per cent gross tonnage of the world’s merchant shipping Not yet the case but there is a clear trend to happen in foreseeable future It established a two-tier process for ballast water management, including standards set by the Convention and more stringent rules from coastal States

7. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Chinese Law -China ratified both the LOSC and the CBD in the 1990s -China has not yet been a member of BWM Convention -As one of six pilot countries (Iran, India, Ukraine, South Africa, Brazil and China), China actively participates the Globallast program, which is co-organized by the IMO, the Global Environment Facility (GEF) and the United Nations Development Programme (UNDP). This program aims to assist less- industrialized countries to prepare for the implementation of BWM Convention

8. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Fragmented Legislation -Para.1, Art.62 of the Marine Environment Protection Law 1999 (MEPL 99) and Art.15 of Regulation on the Prevention and Control of Marine Pollution from Ships 2010 (Regulation 10) Both only intend to implement the MARPOL for preventing oil pollution from vessels -Para.4, Art.18 of Frontier Health and Quarantine Law and Art.29 of Rules for Administration of Quarantine and Inspection of International Shipping on entry or exit at frontier ports Both only aims to prevent epidemic threat from ballast water

9. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Disintegrated Institutions -Maritime Safety Agency (MSA) is the competent department for the implementation of MEPL and Regulation10 to prevent vessel-source pollution -State Administration of Quality Supervision, Inspection and Quarantine (SAQSIQ) and its office in every Chinese seaport -Ministry of Agriculture -State Fishing Agency -State Oceanic Administration

10. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University The Loophole There is a loophole in current Chinese legislation to deal with the ecological impact caused by invasive species from ballast water The negative effects -Great environmental loss that China can not turn a blind eye -The competitiveness of Chinese shipping industry is also harmed. There are strict state practice in U.S, Australia, Brazil and etc, meaning Chinese international shipping must follow the requirements to do the ballast water treatment. While non-Chinese flags have no obligation sailing into Chinese water/ports

11. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University China’s Accession to the BWM Convention -China’s attitude towards BWM Convention is positive -The major concern towards BWM Convention is that it is quite costly for Chinese shipping industry to be equipped with ballast water treatment system required by the Convention -In 2009, China also submitted its own ballast water management systems that make use of active substances to the IMO. It received Basic Approval from IMO in March 2010. Then the previous concern does not exist any more -Based on Art. 15 of Regulation 10, the BWM Convention should be directly applied to domestic system in the future when it entered into force

12. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Will the Accession to the BWM Convention be Enough? -The BWM Convention and its Annexes only provide first tier measures to prevent invasive species from ballast water -It is in the discretion of coastal States to enact and enforce second tier measures in designated areas, which can be more stringent than the BWM Convention -The BWM Convention differs from 1973 International Convention for the Prevention of Pollution from Ships, as amended by the 1978 Protocol (MARPOL) in many aspects. The MEPL 99 and Regulation 10 aim at implementing MARPOL domestically, which may not be suitable to fully implement BWM Convention

13. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Prospects -A new Regulation on the Prevention of Invasive Species from Ballast water is in need -It is suggested by the Globallast-China Program -The Regulation should set second tier measures in sea areas under China’ jurisdiction, based on scientific research. -It should also clarify which institution is competent to deal with the issue

14. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Conclusions -There is a loophole in current Chinese legal system to deal with invasive species from ballast water -China’s accession to the BWM Convention is necessary but will not be the solution to all -A national Regulation on implementing BWM Convention is in need

15. 8th Annual Colloquium of the IUCN Academy of Environmental Law – Ghent, Belgium 2010 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Thanks for your attention!