Theoretical Utilisation of Biological Warfare from Aquatic Invasive Species
Maritime terrorism is the premeditated wilful destruction of ships, cargo and port facilities, injury or death to crew and passengers, or the disruption of port operations in order to spread fear and mayhem. Since 1970 there have been 156,772 terrorist events54 of which only 323 were maritime based, with well-known examples including, MV Limburg Yemen in 2002, and M-Star Straits of Hormuz in 2010. There have been 36 biological incidents occurring worldwide, all of which have targeted individuals as a protest against specific issues and have utilized anthrax or ricin. To date there have never been any maritime incidents utilizing biological weapons.
The use of IAS as potential biological weapons is hampered due to its indiscriminate nature and the highly temperamental environmental conditions required. Although biological warfare can be utilized by anyone, with regards to terrorism it doesn't meet the criteria laid down by the GTD for these reasons;
During the Cold War two events occurred within a few years of each other that were denied vehemently by both sides that could be classed as the first time biological warfare using IAS was carried out upon their opponents;
The New England Jellyfish is a plankton grazer which arrived in ballast water from vessels allied to the USA and deposited within Odessa in the Black Sea. This self-fertilizing hermaphrodite breeds as fast as it can eat56. They reach maturity within two weeks and then produce 8,000 eggs a day whereby the process continues.
The jellyfish had no predators in their new environment, and proceeded to decimate local plankton and crustaceans populations, whilst also economically devastating anchovy and mackerel industries, and further causing dolphins to permanently migrate from the area. They also inadvertently blocked water intake pipes of desalination plants causing over-heating, and equipment breakdowns reducing operational activity57.
The Central Asian Zebra Mussel originated around the Black Sea, but around the late 1970's found their way across to the USA, and were discharged in various locations within the great lakes. They rapidly spread, out-competing the endemic varieties and had the ability to attach themselves to any surface including other mussels. They also decimated fish hatcheries and as they became extremely concentrated, infrastructure management in the form of high temperature steam cleaning was required, which is extremely expensive, and utilization of chemicals which affected other organisms as well, which inadvertently led to a slight increase in Weil’s disease.
To reduce issues with blocked intake pipes within coastal industries, the cost to the region is just over $2M per annum which is just for the removal of the IAS59. Their release cannot be said to be entirely negative as they have increased duck populations60. They have also slowed the effects of red algae through the Erie lake system due to the filtering effect of the mussels, although there is speculation that they are no better at doing this than the endemics, just that there was a higher population due to them out-competing the natives61.
The IMO has acknowledged that it has neither the mandate nor the resources to enforce safety and environmental standards and requires the authority to impose penalties and sanctions similar to how FSC can deny entry to blacklisted vessels which are either unsafe or endangering the crew or environment under the MSA 1995.
Since 2004 the IMO have stated that all vessels should install disinfection kits to kill IAS although cost has been the greatest issue, coupled with negligible due to a lack of legislation; even so the true aim should be to protect the environment, not just satisfy legal requirements. Compliance leads to better environmental profiling and image. International cooperation has always been the weakest link as well as a lack of technical developments, operational changes and biological understanding of ballast water methods; however this will all be futile without full member determination64. The BWMC which was proposed in 2004 has finally, due to Finland’s approval in 2016, now led to the convention’s ratification; the BWMC will now come into force in 2017.
Current ballast water techniques do reduce the density of the organisms, but it is cost effectiveness that is the key criteria. Potential damage can be avoided with strict adherence to current procedures and utilizing specific technologies, although ballast water release can still occur on a judgement basis in incidents regarding potential ship or equipment damage, bad weather, physical stresses or cargo shifts that can affect vessel stability.
However, many hurdles still exist, including; a lack of technological investment as it is financially non-viable especially for retrofitting existing ships, lack of governmental sponsored research, no fast track method for vessel implementation, no standard technology compliant within the shipping industry or IMO, and complete lack of training both for equipment, the plethora of current standards, regulations, laws, procedures, and regulatory regimes.
The IMO have certified over 15 different treatments65, however some of the treatments have been shown to increase the threats of disease as the quiet warmer conditions within the tank act as disease incubators, whilst some treatments actively kills organisms such as copepods that eat the bacteria66. After treatment it has found that bacteria multiplies hundreds of times, and due to the higher concentrations mutate into new strains due to genetic exchanges increasing viral density and potential diseases. At present there are no regulations requiring measurement of diseases and this could lead to fatal flaws in security where terrorists could take advantage of new transport mediums, binding diseases to organisms, atmospheric or water sources67.
Intentional damage is deemed a maritime security threat by the UN Secretary General68. However, there is insufficient concern regarding damage to the marine environment outside of nation’s jurisdiction to warrant any reallocation of policy powers.
There are numerous international treaties on the stockpiling of biological toxic weapons which makes it unlikely that individuals, companies, or environmental activists could acquire them, leaving only terrorist organisations or rival nations as potential users69. Al-Qaeda reportedly owns 15 modified cargo ships that are used to transport weapons and can be utilised as bombs for use against high risk targets70. The biological weapons convention71 stops the development, production and stockpiling of potential biological weapons for armed conflict, albeit allowing their use for defensive purposes. A lack of widespread national ratification and of enforcement effectiveness exists which makes legal regimes inadequate to counter any potential threats.
Within the United Kingdom attacks targeted at the populace would have to utilize pathogens or microorganisms that could either bypass water treatment plant safety measures: as virtually no-one gets water directly from freshwater sources like wells, pathogens and microorganisms would have to be able to survive in the cold waters of the British Isles for a considerable time in order for recreational and coastal tourism to be affected.
Whilst biological warfare hasn't been utilised by environmental activists, organised resistance is becoming more common, generally focused against infrastructure and new developments leading to property damage from their main weapon; arson72. Since 1996 the ALF & ELF have been attributed to 1,200 criminal acts including vandalism and arsons which has caused over $100 million of damage. However no violence to humans has ever occurred. The ALF however has released the American Mink73 into the wild across the UK as a protest against fur farming which has seriously compromised indigenous species.
On July 1st 2016, an incident occurred within the confines of the Port of Southampton. A failure of the ballast water systems of the MV Thunderchild75 a 10,000 TEU container ship that was taking on cargo has caused a biological incident that has affected many river users. The failure has resulted in thousands of tons of ballast water being deposited within the Solent and has since spread due to the tidal conditions throughout the local rivers and coastlines.
The ballast water was originally obtained within the Bay of Bengal76 which is well known as a source of major transboundary pollution issues. The BW contained a wide variety of IAS which has caused multiple incidents of various degrees of seriousness to numerous affected parties.
It has been deemed that this failure occurred due to an accident in on-board policy and inadequate training; however it should be noted that the vessel and the shipping company were not forthcoming in their involvement, and it has been speculated that they hoped that by keeping quiet they would avoid detection, could finish their cargo operations and depart for their next destination.
The MV Thunderchild and therefore its owners are liable for the majority of damages. However the Port of Southampton is also partially liable and stems from its limited breach of statutory duties caused by a third party. The pollution incident originated under their purview and control, which means that if the pollution, affected other users outside the port then the port count as third party trespassers at the very least.
The shipping company should have foreseen the consequences of a failure in their BW systems and had in place contingencies and plans already in place to mitigate such a release80. Even though the effects are potentially dubious in nature the owners are still liable for any damages caused from their breach of duty81.
The pathogens and diseases that were released during the BW incident came into contact with people using the local waters for recreation and tourism, and therefore unwarranted contact was established83.
BW release has a wide impact on numerous stakeholders in varying degrees over a lengthy time period due to the nature of the organisms, including damage to local tourism and recreational economies, public health concerns, and its indiscriminate nature85.
Private nuisance cases can be brought by individuals86 for damages to their property as long as there is ongoing interference, i.e. contamination to their drinking water supply.
Southampton waters come under the Water Resources Act 1991, and S161 states that diseases that could contaminate or enter controlled waters that could lead to long term chronic pollution have to be dealt with using mitigating operations. Those who caused or knowingly permitted its release are bound under strict civil liability, restrictions imposed on the ship owner under the MARPOL and BWM Convention due to escape or persistent discharge are liable for any damage caused including costs of prevention, damage reduction, and mitigations.
The BW incident is classed as an environmental incident that resulted in the injury or death87 resulting in a breach of the human rights act 194888.
Severe pollution also affects people’s wellbeing and contravenes CETR article 889 as does incidents of accidental spillage90.
Provisions within the Rome Statute established that the destruction of an ecosystem no matter its size could be classed as a war crime, as the extensive damage to an ecosystem would severely diminish the peaceful enjoyment of the inhabitants in the future.
Lack of Communication
As the vessel failed to inform the port, local authorities or anyone in the company of the incident they are liable for any additional damages that could have been mitigated92.
Protected habitats, i.e. any areas that have a designation93 are protected due to strict liability from anyone who transports dangerous or polluting substances, or against those who sell, transport or release genetically modified organisms. Damage is not easily monitored or observable due to the slow accumulative nature of IS.
Public vs. Private
Environmental protection via tort, which in itself has issues as tort is generally concerned with private interests, whilst environmental damage is a public interest94. The only sure way of protecting the environment was to create a range of coercive laws and taxes that make it more expensive to pollute than it is to remedy the situation after conviction95.
If the BW incident occurred due to the actions of third party then the shipping company would still be partially liable96. However they would be able to avoid any economic restitution or compensation awarded to affected parties97.
If it could be proved that the BW incident had to occur to avoid further harm, then even though the actions were unlawful it was a necessity to avoid greater harm98.
Environmental enforcement has steadily grown and will continue to expand its purview as environmental conditions deteriorate, however issues like transboundary regulations, a lack of substantive application, and contradictory legislation hampers the process. The general public are also unaware that many environmental disruptions are actually legal.
Private prosecutions for environmental offenses require lower standards of proof than criminal penalties in tort actions but still need to establish culpability, and are relatively rare due to the costs involved99 unless you’re the RSPCA100.
Barriers to Prosecution
The biggest barrier to the successful implementation of legislation is the issue of causation101. To establish causation is both time consuming and expensive, which reduces possible environmental cases102. Many courts struggle to incorporate individual victims of traditional crimes where causation is clear cut let alone mass victimization of multiple disparate parties, which has disinclined prosecutors from pursuing cases where the full scope of possible impacts is impossible to record.
The lack of dedicated environmental courts run by specialist environmental lawyers is an ongoing barrier to the prosecution of cases, although another attempt to prove the use of purely environmental courts happened in Sept 2011 where a mock trial was conducted in the UK for the crime of Ecocide103 and sought to prove that restorative justice104 was a good deterrent to future environmental crimes.
Environmental crimes involves a complex set of variables that comes down due to current societal needs as it all depends on a balancing act of maintaining jobs and income against ecosystem maintenance, biodiversity and sustainability. Victims are often unaware that they have been exposed unless physical manifestations occur.
A major issue is that economic restitution105 never manages to restore the victim or the environment to its previous state and due to the vagaries of environmental law compensation is rarely awarded106. However if they are found liable for environmental damage then the defendants are required to pay for all administration, legal or any costs related to the remediation, containment, or future mitigations.
Damage to fisheries and aquaculture caused by pollution incidents have restitution based on accurate historical data of fish stocks107. Negligence provides compensation to the affected party, whilst not allowing the use of injunctions, and damages are rarely recoverable108.
Nuisance cases vary widely dependant on the level of the courts. Magistrates Courts have no power to sentence anyone for greater than 3 months and fines of up to £20,000. If they consider that a penalty greater than 3 months is necessary, they can convict, but must send the case to Crown Court for sentencing which then allows for unlimited fines and 2 year fixed terms per offense.
ECSOs have been available since 2010 for the distribution of monetary penalties, compliance, restoration, and desist orders for offenders who cause environmental damage109.
The Polluter Pays Principle which is a well-established practice that hasn’t been transposed into any legislation and is utilised when the potential damage in a case is uncertain but significant. It is instituted on a case by case basis due to its subjective nature, as it anticipates possible contingencies based on previous restoration cases at the cost of imposing damage limit allowances.
The Precautionary Principle cannot be legally quantified but has been successfully used in cases110. There appears to be no reported cases where prevention at the source of an environmental issue has been expressed111. It also suffers from its lack of significant legal weight, a lack of environmental sympathy and poor judiciary understanding that has led for some to advocate for specialised environmental courts112.
The Wingspread Declaration is utilised when an activity raises threats of harm to human health or the environment. It is a precautionary measure that should be taken even if some cause and effect relationships are not fully established under current legislation.
The Sunshine Regulation113 was originally intended as an embarrassment measure for large companies whose practices affected the environment. Mediocre performance would increase company exposure to negative press and damages to public image which would temporarily hamper profits. From a preventative standpoint it is effectively useless, especially long term due to its limited power and complete lack of any financial punishment.
Malicious Release of IAS
An intention to cause harm whether to an individual or a group in a health context (injury or death), or economic114 (industrial or infrastructure) shows malice of aforethought115 and therefore the use of the Mens Rea principle should be invoked116 Since such an action would be intentional and calculated so as to do indirect harm to others then it would be classed as a trespass as laid out in117.Continued on Next Page »