Arctic Yearbook 2015 - Page 179

179 Arctic Yearbook 2015 detection (Bernstein 1993). There are high transactions costs to determine causality and loss with legal processing (Fernandez 2008). Tort liabilities can be very tough to allocate when multiple tortfeasors are involved, which is not uncommon in cases of marine invasions. Thus far, the only internationally ratified policy entered into force, with 71 sovereign states and 84% of the gross tonnage of merchant shipping included, is the Antifouling Convention of 2001 that bans antifouling substances containing organotins and biocides with tributyltin from use. Violation of the ban involves penalties for those liable. The organotin and tributyltin substances had been commonly used to ward off sessile marine invasive species on hulls of ships (commercial, recreational) as well as prevent extra weight and fuel use from the biofouling marine invasive species create (Fernandez 2008). That convention did not advocate alternative antifouling substances. Segerson (1990) suggests combining liability with an ex ante policy, such as paying in to an insurance fund that could cover prevention and/or remediation activities, since liability is ex post. Another pathway for marine invasive species via maritime shipping, ballast water, has legally enforceable regulations developed by different states all over the world. However IMO’s (International Maritime Organization) BWM Convention (International Convention for the Control and Management of Ships’ Ballast Water and Sediments), cannot yet enter into force as an international treaty (Miller 2014). Thus the limited feasibility of liability rules among states for compensating after environmental damages occur, coupled with the predicaments existing in international agreements for prevention, generate a perplexing situation. Legal precedents where liabilities have been imposed for invasive species exist, but are limited to some disputes regarding insects, weeds and cattle that had escaped from properties. This can potentially provide the necessary analogies for applying tort laws (Courtney 2006). Quarantines in e.g. Australia, New Zealand and Hawaii require ex-ante action in that deliberately introduced species must go through quarantines and trials funded by those intending to make the introductions in order to demonstrate that there should be no unexpected and costly invasions. Those introducing the species generally remain liable after the introduction as well (USDA 2015 - State Laws and Regulations, Hawaii). Another legal example is provided by Colorado Division of Wildlife v. Cox, (1992), which determined that exotic-free ecosystems and biodiversity are to be regarded as public rights encompassed by public nuisance law, with the Colorado statute referring to defendants as “liable” (Larsen 1995). Marine invasions are indisputably more difficult to handle, and none of these directly account for the potential of unintentional introductions, but as Larsen (1995) notes, public nuisance liability is expected to alter the behavior of shipping actors while also effectively contribute to prohibiting high-risk activities. As mentioned, the RKC was intentionally introduced in the Barents Sea by Soviet scientists in order to create a new lucrative fishery. The introduction proved successful and thus profitable for Russia, but the species unexpectedly spread west. The need for cooperative international management became apparent as the crab moved into Norwegian waters in the 1970s, and other species were being simultaneously jointly managed under the newly established Joint Russian-Norwegian Fisheries Commission (1974). RKC cooperation initially consisted of Norwegian agreement not to harvest the crabs, which were appearing there in small numbers. By the 1990s, however, economic damages and Kourantidou, Kaiser & Fernandez