Decreto n.º 23/2017

Decreto n.º 23/2017

de 31 de julho

A problemática das espécies introduzidas em meios marinhos, vulgarmente designadas por exóticas ou invasoras, através das águas de lastro dos navios tem sido alvo de grande preocupação a nível mundial, sendo considerada uma das quatro maiores ameaças aos oceanos do mundo, com efeitos deletérios sobre a biodiversidade, a pesca, o turismo e a saúde humana, entre outros, sendo as outras ameaças a contaminação marinha por fontes terrestres, a sobre-exploração dos recursos vivos do mar e a destruição de habitats.

Face a esta ameaça com graves consequências socioeconómicas, têm sido diversas as tentativas de prevenção e combate da introdução de espécies, em particular no que respeita às águas de lastro dos navios no tráfego internacional.

Em resposta à ameaça colocada pelas espécies marinhas invasoras, a Conferência das Nações Unidas sobre o Meio Ambiente e o Desenvolvimento, realizada no Rio de Janeiro, em 1992, exortou a Organização Marítima Internacional (OMI) e outros organismos internacionais a tomar medidas para abordar a transferência de organismos nocivos pelos navios.

Posteriormente, em 2002, a Cimeira Mundial sobre o Desenvolvimento Sustentável, celebrada em Joanesburgo, na África do Sul, confirmou o compromisso com os resultados alcançados na Conferência das Nações Unidas sobre o Meio Ambiente e o Desenvolvimento, realizada no Rio de Janeiro, em 1992, tendo apelado para a aceleração do desenvolvimento de medidas para abordar a ameaça das espécies invasoras na água de lastro e convidado a OMI a finalizar a Convenção das Águas de Lastro.

A OMI, como uma agência especializada das Nações Unidas responsável pela regulamentação internacional relativa à segurança dos navios e à prevenção da poluição marinha, posicionou-se na vanguarda das iniciativas internacionais para resolver o problema das águas de lastro dos navios, tendo nesse sentido adotado as resoluções A.774(18), de 1993, e A.868(20), de 1997, com a finalidade de minimizar a transferência de organismos aquáticos nocivos e agentes patogénicos.

Entretanto, vários Estados adotaram medidas de caráter individual com o objetivo de prevenir, minimizar e, em última instância, eliminar os riscos da introdução de organismos aquáticos nocivos e agentes patogénicos para os navios que entrem nos seus portos.

Reconhecendo que esta preocupação de interesse global exige medidas baseadas em regras aplicáveis à escala global que permitam prevenir, minimizar e, por último, eliminar os riscos para a biodiversidade, a pesca, o turismo e a saúde humana, entre outros, a OMI adotou, através de Conferência Diplomática realizada em fevereiro de 2004, a Convenção Internacional para o Controlo e Gestão das Águas de Lastro e Sedimentos dos Navios.

Esta Convenção, que agora cabe aprovar, tem assim como objetivo prevenir, minimizar e, por último, eliminar a transferência de organismos nocivos e agentes patogénicos.

Assim:

Nos termos da alínea c) do n.º 1 do artigo 197.º da Constituição, o Governo aprova, para adesão, a Convenção Internacional para o Controlo e Gestão das Águas de Lastro e Sedimentos dos Navios, adotada em Londres a 13 de fevereiro de 2004, e cujo texto, na versão autêntica em língua inglesa e respetiva tradução certificada em língua portuguesa, se publica em anexo.

Visto e aprovado em Conselho de Ministros de 29 de junho de 2017. - António Luís Santos da Costa - Augusto Ernesto Santos Silva - Ana Paula Mendes Vitorino.

Assinado em 10 de julho de 2017.

Publique-se.

O Presidente da República, Marcelo Rebelo de Sousa.

Referendado em 18 de julho de 2017.

O Primeiro-Ministro, António Luís Santos da Costa.

International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004

The Parties to this Convention,

Recalling Article 196(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which provides that "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,"

Noting the objectives of the 1992 Convention on Biological Diversity (CBD) and that the transfer and introduction of Harmful Aquatic Organisms and Pathogens via ships' ballast water threatens the conservation and sustainable use of biological diversity as well as decision IV/5 of the 1998 Conference of the Parties (COP 4) to the CBD concerning the conservation and sustainable use of marine and coastal ecosystems, as well as decision VI/23 of the 2002 Conference of the Parties (COP 6) to the CBD on alien species that threaten ecosystems, habitats or species, including guiding principles on invasive species,

Noting further that the 1992 United Nations Conference on Environment and Development (UNCED) requested the International Maritime Organization (the Organization) to consider the adoption of appropriate rules on ballast water discharge,

Mindful of the precautionary approach set out in Principle 15 of the Rio Declaration on Environment and Development and referred to in resolution MEPC.67(37), adopted by the Organization's Marine Environment Protection Committee on 15 September 1995,

Also mindful that the 2002 World Summit on Sustainable Development, in paragraph 34(b) of its Plan of Implementation, calls for action at all levels to accelerate the development of measures to address invasive alien species in ballast water,

Conscious that the uncontrolled discharge of Ballast Water and Sediments from ships has led to the transfer of Harmful Aquatic Organisms and Pathogens, causing injury or damage to the environment, human health, property and resources,

Recognizing the importance placed on this issue by the Organization through Assembly resolutions A.774(18) in 1993 and A.868(20) in 1997, adopted for the purpose of addressing the transfer of Harmful Aquatic Organisms and Pathogens,

Recognizing further that several States have taken individual action with a view to prevent, minimize and ultimately eliminate the risks of introduction of Harmful Aquatic Organisms and Pathogens through ships entering their ports, and also that this issue, being of worldwide concern, demands action based on globally applicable regulations together with Guidelines for their effective implementation and uniform interpretation,

Desiring to continue the development of safer and more effective Ballast Water Management options that will result in continued prevention, minimization and ultimate elimination of the transfer of Harmful Aquatic Organisms and Pathogens,

Resolved to prevent, minimize and ultimately eliminate the risks to the environment, human health, property and resources arising from the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships' Ballast Water and Sediments, as well as to avoid unwanted side-effects from that control and to encourage developments in related knowledge and technology,

Considering that these objectives may best be achieved by the conclusion of an International Convention for the Control and Management of Ships' Ballast Water and Sediments,

have agreed as follows:

Article 1

Definitions

For the purpose of this Convention, unless expressly provided otherwise:

1 - "Administration" means the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State. With respect to floating platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast over which the coastal State exercises sovereign rights for the purposes of exploration and exploitation of its natural resources, including Floating Storage Units (FSUs) and Floating Production Storage and Offloading Units (FPSOs), the Administration is the Government of the coastal State concerned.

2 - "Ballast Water" means water with its suspended matter taken on board a ship to control trim, list, draught, stability or stresses of the ship.

3 - "Ballast Water Management" means mechanical, physical, chemical, and biological processes, either singularly or in combination, to remove, render harmless, or avoid the uptake or discharge of Harmful Aquatic Organisms and Pathogens within Ballast Water and Sediments.

4 - "Certificate" means the International Ballast Water Management Certificate.

5 - "Committee" means the Marine Environment Protection Committee of the Organization.

6 - "Convention" means the International Convention for the Control and Management of Ships' Ballast Water and Sediments.

7 - "Gross tonnage" means the gross tonnage calculated in accordance with the tonnage measurement regulations contained in Annex I to the International Convention on Tonnage Measurement of Ships, 1969 or any successor Convention.

8 - "Harmful Aquatic Organisms and Pathogens" means aquatic organisms or pathogens which, if introduced into the sea, including estuaries, or into fresh water courses, may create hazards to the environment, human health, property or resources, impair biological diversity or interfere with other legitimate uses of such areas.

9 - "Organization" means the International Maritime Organization.

10 - "Secretary-General" means the Secretary-General of the Organization.

11 - "Sediments" means matter settled out of Ballast Water within a ship.

12 - "Ship" means a vessel of any type whatsoever operating in the aquatic environment and includes submersibles, floating craft, floating platforms, FSUs and FPSOs.

Article 2

General Obligations

1 - Parties undertake to give full and complete effect to the provisions of this Convention and the Annex thereto in order to prevent, minimize and ultimately eliminate the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships' Ballast Water and Sediments.

2 - The Annex forms an integral part of this Convention. Unless expressly provided otherwise, a reference to this Convention constitutes at the same time a reference to the Annex.

3 - Nothing in this Convention shall be interpreted as preventing a Party from taking, individually or jointly with other Parties, more stringent measures with respect to the prevention, reduction or elimination of the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships' Ballast Water and Sediments, consistent with international law.

4 - Parties shall endeavour to co-operate for the purpose of effective implementation, compliance and enforcement of this Convention.

5 - Parties undertake to encourage the continued development of Ballast Water Management and standards to prevent, minimize and ultimately eliminate the transfer of Harmful Aquatic Organisms and Pathogens through the control and management of ships' Ballast Water and Sediments.

6 - Parties taking action pursuant to this Convention shall endeavour not to impair or damage their environment, human health, property or resources, or those of other States.

7 - Parties should ensure that Ballast Water Management practices used to comply with this Convention do not cause greater harm than they prevent to their environment, human health, property or resources, or those of other States.

8 - Parties shall encourage ships entitled to fly their flag, and to which this Convention applies, to avoid, as far as practicable, the uptake of Ballast Water with potentially Harmful Aquatic Organisms and Pathogens, as well as Sediments that may contain such organisms, including promoting the adequate implementation of recommendations developed by the Organization.

9 - Parties shall endeavour to co-operate under the auspices of the Organization to address threats and risks to sensitive, vulnerable or threatened marine ecosystems and biodiversity in areas beyond the limits of national jurisdiction in relation to Ballast Water Management.

Article 3

Application

1 - Except as expressly provided otherwise in this Convention, this Convention shall apply to:

(a) ships entitled to fly the flag of a Party; and

(b) ships not entitled to fly the flag of a Party but which operate under the authority of a Party.

2 - This Convention shall not apply to:

(a) ships not designed or constructed to carry Ballast Water;

(b) ships of a Party which only operate in waters under the jurisdiction of that Party, unless the Party determines that the discharge of Ballast Water from such ships would impair or damage their environment, human health, property or resources, or those of adjacent or other States;

(c) ships of a Party which only operate in waters under the jurisdiction of another Party, subject to the authorization of the latter Party for such exclusion. No Party shall grant such authorization if doing so would impair or damage their environment, human health, property or resources, or those of adjacent or other States. Any Party not granting such authorization shall notify the Administration of the ship concerned that this Convention applies to such ship;

(d) ships which only operate in waters under the jurisdiction of one Party and on the high seas, except for ships not granted an authorization pursuant to sub-paragraph (c), unless such Party determines that the discharge of Ballast Water from such ships would impair or damage their environment, human health, property or resources, or those of adjacent of other States;

(e) any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service. However, each Party shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with this Convention; and

(f) permanent Ballast Water in sealed tanks on ships, that is not subject to discharge.

3 - With respect to ships of non-Parties to this Convention, Parties shall apply the requirements of this Convention as may be necessary to ensure that no more favourable treatment is given to such ships.

Article 4

Control of the Transfer of Harmful Aquatic Organisms and Pathogens Through Ships' Ballast Water and Sediments

1 - Each Party shall require that ships to which this Convention applies and which are entitled to fly its flag or operating under its authority comply with the requirements set forth in this Convention, including the applicable standards and requirements in the Annex, and shall take effective measures to ensure that those ships comply with those requirements.

2 - Each Party shall, with due regard to its particular conditions and capabilities, develop national policies, strategies or programmes for Ballast Water Management in its ports and waters under its jurisdiction that accord with, and promote the attainment of the objectives of this Convention.

Article 5

Sediment Reception Facilities

1 - Each Party undertakes to ensure that, in ports and terminals designated by that Party where cleaning or repair of ballast tanks occurs, adequate facilities are provided for the reception of Sediments, taking into account the Guidelines developed by the Organization. Such reception facilities shall operate without causing undue delay to ships and shall provide for the safe disposal of such Sediments that does not impair or damage their environment, human health, property or resources or those of other States.

2 - Each Party shall notify the Organization for transmission to the other Parties concerned of all cases where the facilities provided under paragraph 1 are alleged to be inadequate.

Article 6

Scientific and Technical Research and Monitoring

1 - Parties shall endeavour, individually or jointly, to:

(a) promote and facilitate scientific and technical research on Ballast Water Management; and

(b) monitor the effects of Ballast Water Management in waters under their jurisdiction.

Such research and monitoring should include observation, measurement, sampling, evaluation and analysis of the effectiveness and adverse impacts of any technology or methodology as well as any adverse impacts caused by such organisms and pathogens that have been identified to have been transferred through ships' Ballast Water.

2 - Each Party shall, to further the objectives of this Convention, promote the availability of relevant information to other Parties who request it on:

(a) scientific and technology programmes and technical measures undertaken with respect to Ballast Water Management; and

(b) the effectiveness of Ballast Water Management deduced from any monitoring and assessment programmes.

Article 7

Survey and certification

1 - Each Party shall ensure that ships flying its flag or operating under its authority and subject to survey and certification are so surveyed and certified in accordance with the regulations in the Annex.

2 - A Party implementing measures pursuant to Article 2.3 and Section C of the Annex shall not require additional survey and certification of a ship of another Party, nor shall the Administration of the ship be obligated to survey and certify additional measures imposed by another Party. Verification of such additional measures shall be the responsibility of the Party implementing such measures and shall not cause undue delay to the ship.

Article 8

Violations

1 - Any violation of the requirements of this Convention shall be prohibited and sanctions shall be established under the law of the Administration of the ship concerned, wherever the violation occurs. If the Administration is informed of such a violation, it shall investigate the matter and may request the reporting Party to furnish additional evidence of the alleged violation. If the Administration is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. The Administration shall promptly inform the Party that reported the alleged violation, as well as the Organization, of any action taken. If the Administration has not taken any action within 1 year after receiving the information, it shall so inform the Party which reported the alleged violation.

2 - Any violation of the requirements of this Convention within the jurisdiction of any Party shall be prohibited and sanctions shall be established under the law of that Party. Whenever such a violation occurs, that Party shall either:

(a) cause proceedings to be taken in accordance with its law; or

(b) furnish to the Administration of the ship such information and evidence as may be in its possession that a violation has occurred.