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