U.S. should clarify intent so regulations defending against invasive species are not superseded by UNCLOS

UNCLOS, however, fails to clearly address the problem of invasive species. If the treaty were interpreted such that invasive species were intended to be covered by the broad definition of “pollution” as defined in Article 1.1.3, then coastal states would be potentially constrained in their ability to prevent the spread of these invasive species from ships operating outside of the territorial sea. As the IMO has failed to prescribe international standards for the treatment of ballast water, more stringent measures by the U.S. could be interpreted as being “beyond generally accepted international rules or standards.”9 This would leave the United States reliant upon the remaining authority granted in 211 to require treatment and practices as a condition of entry into port.

We urge instead the better interpretation that alien species are not intended to be addressed by the definition of “pollution” by UNCLOS. This interpretation is supported by the fact that invasive species are addressed by Article 196, and not in Article 194, which addresses the regulation of various types of marine pollution generally. Moreover Article 196 distinguishes invasive species from pollution within the provision. We recommend that the Senate include an interpretive statement on this issue as part of its advice and consent to be included with the instrument of accession specifying that the United States does not view invasive species as “pollution” for purposes of UNCLOS.