The Expanding Role of Classification Societies in Conserving the Marine Environment: The Case of the 2004 BWM Convention

Abstract Private actors and their roles in conserving the marine environment have attracted increasing attention. Although classification societies were originally designed as industrial organizations developing internal standards on hull and machinery, their contributions to the marine environmental protection should not go ignored. As exemplified by the Ballast Water Management (BWM) Convention, an international shipping instrument on ballast discharge for which the implementation process was subject to technological uncertainties, their contributions can be described in three ways: verification on behalf of states as “recognized organizations”; participation in International Maritime Organization (IMO) sessions; and establishment of their own standards. It is argued that these multiple functions reveal the competence of classification societies to tackle vessel-source pollution, and further, that their technical know-how and firsthand experience accumulated from shipping practice demonstrate their potential to address other complicated marine environmental issues where experience and compliance technologies are essential. However, the expanding focus of classification societies to marine environmental issues should proceed with caution. A much under-discussed point is the impact of classification rules and standards developed by the International Association of Classification Societies (IACS) on international shipping conventions as agreed by states. Though it cannot be said that classification societies are making their own vessel-source discharge standards independent from the IMO lawmaking process, the Unified Requirements on BWM system installation illustrate that obligations under international instruments could be de facto complemented by industrial standards, despite the fact that no provisions incorporating the latter are explicitly spelled out in the former. Given the noticeable lack of state consent throughout the private standard-setting process and the near-universal applicability of IACS standards, legitimacy concerns arise as to whether it is justified for classification societies to wield such an impact on the development of vessel-source pollution requirements, affecting both states and other maritime stakeholders. In this respect, a global administrative law perspective is taken to examine in what ways their legitimacy could be challenged.


Introduction
The significance of private actors in the framework of global governance has garnered increasing attention. 1 The concept of "private actors" is comprehensive, incorporating individuals or nonstate entities that fall outside the traditional ambit of international subjects. As "participants" in international activities, their legal capacity varies according to the specific normative framework in question. 2 The same is true in the context of merchant shipping. Arguably, the term refers to all maritime stakeholders revolving around ocean transportation, such as vessels, seafarers, and cargos. Classification societies, with their overall objective of promoting safer and greener shipping, no doubt belong to such an all-encompassing category. As to their legal capacity, literature has explored the socalled "dual functions" in securing safety of life and ships at sea. 3 This means that classification societies are authorized by states to conduct surveys and certifications under the name of "recognized organizations" (ROs), channeling statutory shipping standards into the private sector (described here as a public function). At the same time, by virtue of their accumulated expertise and as unbiased sources of information with research and development capacities, classification societies are actively engaged in setting their own standards to ensure the seaworthiness of ships (described here as a private function).
In practice, however, the distinction between the public and private functions is not as watertight as it seems. The standards developed by classification societies can apply to both their public and their private arrangements. As noted by many authors, some classification standards are integrated into the international maritime regime through an explicit reference, elevating their status to statutory requirements in the sense that compliance with mandatory international shipping requirements relies on conformity with these standards. Yet this article reveals that in performing their public function, the same effect can also be produced by the classification standards even in the absence of explicit reference to their standards.
Although shipping standards are highly technical in nature, there is no reason why similar discussions cannot be had in relation to the normative framework for conservation of the marine environment. In this regard, of particular interest is the Ballast Water Management (BWM) Convention, which represents a marked departure from the conventional regulatory approach to vessel-source pollution. 4 Known as "one of the most difficult environmental instruments negotiated by the IMO," 5 the BWM Convention was adopted against the backdrop of inadequate scientific knowledge relating to both non-indigenous species and cost-effective technologies. In other words, it is an example of regulation that drives technological innovation. Consequently, there has been considerable uncertainty as to how the discharge standards contained therein can be achieved on a global scale, and it is unclear how compliance can be verified in reality. 6 Inevitably, this makes necessary the continuous input of scientific knowledge and experience accumulated from industrial practice into the operation of the Convention.
It is argued here that classification societies contribute to the implementation of the BWM Convention in three ways. First, as ROs, classification societies collect a wealth of relevant information, offering an opportunity to evaluate the maturity of compliant technologies by virtue of statutory survey and certification processes as entrusted to them by the flag state. Second, as participants in IMO sessions, primarily and formally through the International Association of Classification Societies (IACS), they influence the negotiation of the regulatory regime. And third, as private standard setters, classification societies fill the regulatory gaps in international maritime regulation. These multiple functions distinguish classification societies from other stakeholders in the maritime industry, and explain why they hold a more influential position than others in developing maritime regimes. Furthermore, it might be argued that the private standard-setting capabilities of classification societies and the politically neutral, technologyoriented standards adopted by those societies can contribute to the regulation of other complicated marine environmental issues that are dependent on technological solutions. It is in this regard that classification societies are capable of playing an expanding role.
Nevertheless, such a promise comes with risk. An overarching question remains whether such an expansive role for classification societies in marine environmental governance is justified. The global cover of the IACS and the binding effect of its resolutions among member societies suggest a (nearly) universal applicability of IACS standards to merchant shipping. Separate from the discussion of whether classification societies are capable of defending public interests in the face of commercial pressure, 7 it also needs to be considered whether these private classification standards can be regarded as legitimate. In the absence of an express deference to classification standards in the context of vessel-source pollution, by what means can they contribute to or affect the interpretation of relevant international law when state consent is manifestly lacking? In addition, the (near) universal applicability of IACS standards against which the performance of merchant shipping is benchmarked makes it increasingly difficult for maritime stakeholders, including non-IACS members, to argue that there exist other technical standards, producing an equivalent or better result in furtherance of safer and greener shipping. Thus, the legitimacy deficit can also arise from the private sphere, relating to the position of other private actors in developing standards at the institutional level, namely, how they are involved in the IACS's standard-setting processes. The development of "global administrative law" (GAL) may provide useful insights into how the legitimacy deficit in the present context should be examined. 8 Therefore, this article aims to explore the contribution of classification societies to the implementation of IMO instruments as well as their potential to develop a more expansive role in conserving the marine environment. In doing so, the BWM Convention provides a useful case study on how the multiple functions of classification societies, either individually or collectively in the form of IACS, have contributed to the environmental regulation of merchant shipping. Thus, after a brief introduction to classification societies and the IACS, the third section of this article addresses how they have contributed to the implementation of the BWM Convention and identifies areas in which their role is expanding. With the exclusive focus on the IACS's private standardsetting capabilities, the associated legitimacy deficit within the standard-setting process is evaluated in the fourth section of this article against the core elements of GAL: transparency, reason giving, review process, and participation. Finally, the conclusion summarizes the findings and highlights the implications of arguments presented in this article.

Classification Societies and the IACS: An Overview
The Emergence of Dual Functions Classification societies are not new users of the ocean. They were initially established for the benefit of marine underwriters and cargo owners in order to provide rating information on the quality of the vessels they insured or chartered so that the risks incurred could be assessed more accurately. 9 Against the backdrop of a rising demand for reliable and updated descriptions of hull and machinery, classification societies became institutionalized with internal rules developed and maintained with respect to technical requirements relating to hull structure, machinery, systems, and equipment. Thus, a Class certificate would be issued to vessels meeting Class rules, whereas in the case of nonconformity, Class so assigned to a vessel could be suspended or withdrawn. Despite the private nature of the class rules, conformity to these rules, as proof of seaworthiness, could make a real difference to a ship's capacity to seek marine insurance and other market opportunities. Thus, this time-honored commercial practice has made it practically almost impossible for ships to sail without a valid Class. Despite the similarity of function among the societies, they are operated autonomously, so the class rules diverge between societies. The question of which Class should be obtained to attest 8 GAL is no doubt a new concept with a broad ambit, indicating an expansion of a transnational framework beyond mere inter-state relations and a pluralist understanding of law within the international space where states are not the exclusive lawmaker within global regulatory governance. In view of normalizing and legitimizing the use of powers within various global institutional frameworks, GAL aims to establish a common normative structure with principles and other requirements on the processes that need to be followed. See seaworthiness is a matter to be determined between classification societies, marine underwriters, and shipowners. In parallel with the private activities within classification societies, international action began from the early 20th century, which led to the adoption of international conventions prescribing rules and standards in relation to ship construction, with the overall objective to ensure that a minimum level of safety requirements is observed by states parties. This does not mean that rules developed by the classification societies were segregated from international shipping conventions; instead, it might be said that these private standards have influenced and contributed to the substance of international law.
An often-cited example is the 1966 Load Line Convention, 10 in which Regulation 1 of the Annex reads: Ships built and maintained in conformity with the requirements of a classification society recognized by the Administration may be considered to possess adequate strength.
A similar example could be found in the SOLAS Regulation II-1/3-1, 11 which provides: In addition to the requirements contained elsewhere in the present regulations, ships shall be designed, constructed and maintained in compliance with the structural, mechanical and electrical requirements of a classification society which is recognized by the Administration.
Since classification societies and states share the same objectives-maritime safetydespite their limited scope, these provisions illustrate the willingness of states to integrate technical standards developed by classification societies into the statutory framework through explicit references to these standards. This permits a dynamic interpretation of the provisions of the relevant conventions, which automatically reflects changes in the societies' technical requirements.
Classification societies also perform a public function in that they play a role in enforcing international shipping regulations. Owing to the increasing complexity of ship inspections, as well as the technical expertise and personnel enjoyed by classification societies, it became commonplace to entrust classification societies with the power to verify vessels' compliance with shipping regulations. 12 In doing so, classification societies are stepping into the shoes of the flag states. In this respect, by using the term "recognized organizations," International Maritime Organization (IMO) instruments allow flag states to delegate their statutory functions to a varying degree to such "recognized organizations," which include, for enforcement purposes, classification societies. 13 As these international shipping instruments show, the scope of delegation is not confined to inspections of hull and machinery, but also covers antipollution equipment and the working conditions of seafarers on board. 14 The fulfillment of both private and public functions simultaneously puts classification societies in a seemingly paradoxical position. As private entities, classification societies are operating businesses on a commercial basis; however, they also perform a public role ensuring, on behalf of states, that vessels meet the minimum shipping standards as required under international law. 15

IACS: Structure and Activities
The global nature of merchant shipping requires global regulation. This not only necessitates cooperative efforts among states to establish a regulatory framework with universal application, 16 but, in view of effective and uniform implementation of international instruments, this also relies on concerted action among classification societies. 17 It is in this regard that the IACS, established in 1968, should be mentioned. There are currently 11 IACS members, covering approximately 90 percent of the gross tonnage of the world's merchant fleet. 18 It is no exaggeration to say that this association is an alliance of the world's leading classification societies. Structured similarly to intergovernmental organizations, the association comprises a Council as the IACS's supreme decision-making body, a Permanent Secretariat with both internal and external functions bestowed by the IACS Council, and other subsidiary bodies supporting the Council's operation (e.g., a General Policy Group under which task-specific Working Groups are established subject to their field of competence, a Quality Committee in charge of the Quality System Certification Scheme inside the IACS). 19 Interestingly, for classification societies seeking remedies against decisions made by IACS organs, regardless of whether they are a member of IACS, an Independent Appeal Board has been established allowing appeals to be heard by third-party adjudicators. 20 In its pursuit of promoting the safety of navigation and prevention of pollution, the IACS undertakes this mission through self-regulation and cooperation with other international institutions. In terms of the former, the IACS defines its purpose as introducing "minimum technical requirements in relation to the design, construction, maintenance and survey of ships and other marine-related facilities" among its members. 21 According to its constituent instrument, these minimum requirements are set out in mandatory resolutions adopted within the IACS, and consist of Unified Requirements (technical rules to be incorporated in the practice of member societies), implementation purposes), and Procedural Requirements (technical matters on the procedure), which the member societies must follow. 22 In addition, the IACS is not prevented from producing nonmandatory Recommendations, Guidelines, or other information for the benefit of the maritime industry. 23 Given the near-universal cover of vessels within its scope, the requirements developed by the IACS arguably constitute de facto industrial standards. 24 The dual functions aside, what remains underexplored is the classification societies' capacity to represent themselves within international organizations with regard to their role in implementing IMO instruments and, specifically, to directly participate in the negotiation process. This capacity is directly related to the IACS's purpose, to cooperate through assisting international regulatory bodies and standardization organizations "to develop, implement and interpret statutory regulations and industry standards." 25 While relevant international institutions include the European Union (EU) and International Organization of Standardization (ISO), the most important institution in this context is the IMO. By virtue of its "consultative status," IACS is permitted to participate in the discussion of agenda items at IMO sessions through a collective voice and to provide input into the work of IMO by submitting proposals and documents setting out its understanding of provisions and proposals. Since the IACS positions itself more as a technical advisor than as an advocate, according to one practitioner, it is a unique participant among all other nongovernmental organizations (NGOs) with observer status on the basis of the IACS's impartiality and expertise in relevant issues. 26 Thus, if classification societies are considered indispensable to merchant shipping as a result of their dynamic understanding of science and technologies obtained through their practical experience, it could be argued that the influential position of classification societies is strengthened by the IACS setting up uniform (and arguably universal) technical benchmarks, as well as speaking with one voice on behalf of member societies in its close collaboration with the IMO. In the following section, the role of classification societies in the implementation of IMO instruments is discussed from three angles: recognized organizations under IMO instruments; as observers in the IMO; and standard setters. From the perspective of these three functions, the contribution of classification societies to the international legal framework for pollution from ships is assessed.

Classification Societies and the 2004 BWM Convention
The Regulatory Regime of Ballast Water Management Ballast is one of the most commonly used methods to maintain stability and safety of navigation when ships are unladen or partially laden. By pumping water into the ballast tanks, additional weight is taken on board, thus ensuring efficient propeller and rudder 22  operation. 27 However, the release of ballast water at the destination ports raises concerns since aquatic organisms contained in the tanks, once released into coastal waters after having survived long voyages, may cause adverse ecological impacts. Owing to its global nature, it is not surprising that shipping is identified as one of the common pathways for introducing alien species. 28 Following attempts since 1993 to minimize the import of harmful aquatic organisms and pathogens from ballast water, it was not until 2004 that a set of mandatory ballast operation requirements was agreed on in the form of the BWM Convention. It is worth noting that by bringing invasive species into its regulatory focus, the IMO Marine Environmental Protection Committee (MEPC) implicitly expanded the scope of its mandate. Initially, the interpretation of "prevention and control of marine pollution from ships" was confined to environmental damage from pollutants such as oil spills, sewage, or garbage. The scope of this provision has thus been enlarged, now covering the less tangible ecological impacts of ballast water discharge. 29 Of particular significance is the adoption of the precautionary principle that serves as the foundation of the Convention, and that addresses the scientific gaps in demonstrating the causal relationship between the discharge of ballast water and environmental degradation.
That being said, the structure of the BWM Convention is largely similar to that of most IMO instruments. The main text provides the general obligation, enforcement regime, and other pertinent procedural matters, leaving detailed and specific operational requirements with respect to ballast water management and control in the Annex as "an integral part" of the Convention. 30 As a result of their highly technical nature, these regulations in the Annex may be reviewed and amended by virtue of the tacit acceptance procedure. 31 Specifically, ships under the jurisdiction of states parties are subject to two categories of obligations in the Annex: documentary and operational. The former stipulates that a ship-specific BWM Plan must be approved by the flag state, while each operation concerning ballast water management shall be recorded in the Ballast Water record book. 32 In the latter case, the performance of ballast water treatment is subject to the quantitative standards prescribed in the Convention. As the core requirement under the Convention, the discharge standards in Regulation D-2 are met by adhering to a complicated timetable pursuant to the ship's construction date and its ballast water capacity in Regulation B-3. 33 In order to meet these requirements, a type-approved ballast water management system (BWMS) must be installed on board. As a transitional solution, however, between the entry into force of the Convention and the effective date of 27 Source: http://archive.iwlearn.net/globallast.imo.org/ballast-water-as-a-vector/index.html (accessed 31 October 2022). 28  Regulation D-2, a ship may choose to either comply with the discharge standard or agree to conduct ballast water exchange according to the geographical and volumetric specifications under Regulations B-4 and D-1. The rationale of establishing an interim period before the application of the performance standard becoming mandatory is to allow ships sufficient time to identify and employ cost-effective ballast water management technologies. 34 In order to verify compliance with the requirements listed in the Annex, in common with other IMO conventions, ships shall be surveyed by the flag state pursuant to the procedures set out in Section E. Following a successful initial survey, a certificate (i.e., the International Ballast Water Management Certificate) is issued (subject to subsequent periodic surveys), as prima facie evidence of compliance in the case of inspection by port authorities. 35 This certificate can be withdrawn if the actual conditions on the vessel do not conform to the particulars of the BWM Convention, and this can render the ship unseaworthy, preventing it from proceeding to sea. In practice, however, the regulatory framework established to tackle the new challenge of invasive species from ships is far from ideal. As pointed out by many authors, the lack of cost-effective BWMS on the market is largely attributable to the seriously delayed entry into force of the Convention. 36 Additionally, as is outlined in this section, there have also been minor issues such as discrepancies in the regulations and unforeseeable safety and environmental concerns arising from BWMS installation, and these have posed obstacles to the implementation process. The global nature of shipping means that the solution to these problems does not rely solely on classification societies, but to a considerable extent requires also the active involvement of other stakeholders, such as manufacturers of BWMS and shipowners. As a consequence of these challenges, following the entry into force of the Convention, an "experience-building phase" was established, encouraging the voluntary submission of relevant data from states parties and from the industry. 37 It is expected that the gathered data will contribute to a full review of the BWM Convention, based on a systematic and evidence-based approach, in the hope that amendments could be drafted as a package no later than 2022. 38

Classification Societies and the Implementation of the BWM Convention
Classification Societies as "Recognized Organizations" Although most rules and standards provided for in IMO conventions address individual ships, states are the intermediaries, as these instruments need to be implemented through legislation and enforced at the domestic level. 39 International law acknowledges the practice whereby states can delegate their authority to perform statutory certification and services under mandatory IMO instruments and national legislation. It could be said that the United Nations Convention on the Law of the Sea (UNCLOS), 40 through the term "qualified surveyors of ships" in Article 94(4)(a) of the Convention, hints at the assisting role of classification societies in the obligation of flag states to ensure ships flying their flag comply with necessary measures relating to safety at sea. 41 There are specific references to the delegation of statutory powers to ROs scattered among various IMO instruments.
In order to provide a standardized approach for flag states in "recognizing, authorizing and monitoring" ROs, a Code has been adopted by the IMO laying down threshold requirements above which recognition can be attained, the mandatory requirements that ROs must comply with in order to perform public functions, as well as guidelines for oversight. 42 To become eligible, organizations must first meet the general requirements regarding the quality of their service (e.g., the capabilities of making class rules and of conducting research, as well as independence, impartiality, and transparency) as well as their capacity to comply with the Code and applicable national legislation. 43 In addition, a quality management system must be developed and implemented, with adequate resources made available to perform the tasks assigned to it by the flag state. 44 With regard to the statutory certification and services processes, the Code acknowledges the ROs' capacities to make their own standards in terms of compliance verification activities, providing that such internal requirements shall include those "specified and communicated by the flag State" and those "not stated by the flag State" but that ROs consider otherwise "necessary for specified or intended use." 45 As a procedural safeguard in particular, the Code requires that the process of developing and reviewing these internal requirements shall be open to participation by the flag states' representatives and other interested parties. 46 While performing statutory functions, extra caution shall be taken with respect to ships seeking new Class or those for which the original nationality is unknown. 47 In addition, the ROs shall exercise internal oversight in order to monitor their compliance with the RO Code and applicable national legislation, and to examine whether the authorized activities are in line with their quality management system. 48 Finally, the authorizing states are encouraged to establish an oversight program to verify ROs' compliance. 49 An interesting point remains regarding the approach taken to make the RO Code mandatory. Like its predecessors, the RO Code itself was adopted in a nonbinding form, 50 whereas the requirements under Parts 1 and 2 are nevertheless mandatory in The Code came into effect on 1 January 2015. 43  is questionable whether such a universal effect of GAIRS could apply beyond the rules and procedures they refer to. There seems to be a leap of logic in arguing that the mandatory application of the RO Code must extend to all IMO Conventions, including those where an explicit reference to the Code is missing. Be that as it may, what is unique about the BWM Convention is that, apart from empowering ROs with respect to surveys and certification subject to Section E of the Annex, 51 compliance with the discharge standards in Regulation D-2 is achieved through the installation of a certified BWMS on board. In other words, the compliant BWMS must be approved by states parties prior to the initiation of survey and certification. 52 It would be incorrect to read that the delegation of powers in Section E could cover granting type approval of the system concerned. In practice, however, the list provided by the IMO of approved BWMS suggests that classification societies could also be entrusted to test and certify the BWMS. 53 It could be argued that this function as ROs enables classification societies to review and evaluate the maturity of technologies at the current stage, with their experience and knowledge acquired paving the way for the subsequent development of shipping standards at both industrial and international levels. At least theoretically, one may wonder whether the BWM Convention in effect allows for such empowerment, and if so, how.

Classification Societies as Participants in IMO Sessions
While most nonstate actors are not included as decision makers in international forums, they are nevertheless frequently involved in the broader processes that surround decision making. 54 Generally, through various means, private actors (especially NGOs) influence the development of international law in accordance with their agendas. 55 For private actors wishing to influence institutional proceedings, being accorded the formal status of observer by the international organization in question offers these entities access to negotiate the substance of international norms. Inside the IMO, consultative status is granted to NGOs provided they have met the IMO's criteria. 56 Qualified NGOs are entitled to submit comments and proposals on agenda items, to participate in IMO sessions as observers, and, subject to authorization, to make oral statements on any agenda item. 57 Despite the prerogatives enjoyed by NGOs and their increasing involvement in international lawmaking, it cannot be overemphasized that the participation of NGOs is not an inherent right, and states nevertheless retain dominance over the lawmaking process. Not only must observer status be obtained through application before the meeting, but more significantly, the observing NGOs are excluded from any voting process. 58 Throughout the lawmaking process, state consent remains paramount and flexibilities are maintained, as states are free to initiate private and informal sessions that exclude NGOs. 59 Nevertheless, as correctly pointed out by James Harrison, the significance of NGO participation lies in "their ability to influence debate through the provision of information and advice," shaping the direction in which international law should be developed. 60 As the representative of the world's leading classification societies, the IACS was granted consultative status in 1969, a year after it was established. According to its internal procedures, the IACS must refrain from making proposals regarding new work program items or amendments to mandatory IMO instruments; instead, such initiatives must be cosponsored with member states of the IMO. 61 In reality, the IACS's authoritative and well-informed proposals have been largely endorsed by states. 62 Interestingly, member societies of the IACS may lobby within the IMO outside of the IACS. Given their position as technical experts, classification societies are not prevented from joining IMO meetings individually as part of the delegations of member states. Somewhat unsurprisingly, it is thus difficult to gauge the real impact of classification societies upon lawmaking within the IMO, and it is also open to argument whether multiple channels of representation can be considered fair and proportionate. 63 The purpose of this subsection is to examine the manner in which classification societies have facilitated the implementation of the BWM Convention via influencing the development of the Convention. To this end, proposals submitted by the IACS provide examples illustrating how maritime expertise collected from its member societies has benefited the BWM Convention through clarifying the wording of and closing the legal gaps among the provisions. It is argued that this function of classification societies as participants in the IMO's decision-making process dictates how mandatory instruments should be implemented, as well as what should be implemented within their competence.
To begin with, regulations in Section E of the BWM Convention provide that a valid certificate must be carried on board a vessel. This requires not only the mandatory installation of compliant BWMS pursuant to the effective dates in Regulation B-3, but also an obligation relating to documentation that includes the BWM Plan, pending approval by the flag state. As no fixed timetable is set out, for existing ships, the document in question must be ready when the Convention enters into force. However, this could create uncertainty since the exact date of entry into force of the Convention was unknown. As pointed out by the IACS, together with other industry bodies, the date only becomes known when the threshold in Article 18(1) has been met. 64 This means that as a prerequisite for the statutory certificate, the approval of the BWM Plan and initial survey must be completed within a 12-month-period, which could impose an impractical burden on states parties, ROs, and shipyards. 65 The proposal was accepted by the MEPC in the form of an IMO Circular, which permitted the ratifying parties to issue (provisional) BWM Certificates for which the validity starts only after the Convention becomes fully effective; in the middle of this transition, a BWM Plan could be approved after the issue of the Certificate, allowing for a three-month grace period during which ships are not prevented from sailing provided such Plans have been submitted to the flag state. 66 In addition to the efforts of IACS and other industrial bodies to facilitate the implementation process, it is interesting to note that although the proposal was accepted in the form of a Circular, the issue does not neatly fall This Convention shall enter into force twelve months after the date on which not less than thirty States, the combined merchant fleets of which constitute not less than thirty-five per cent of the gross tonnage of the world's merchant shipping, have either signed it without reservation as to ratification, acceptance or approval, or have deposited the requisite instrument of ratification, acceptance, approval or accession. 65  into the categories of clarifying or interpreting specific terms within IMO instruments, which is what the IACS mainly works on, 67 but rather deals with the obligations of ratifying parties before the Convention enters into force. One might wonder whether the actions initiated by the IACS can only end up as Circulars and not lead to substantial amendment of the content of IMO instruments. The example of commissioning testing requirements suggests that this is not the case. Commissioning testing is defined as an operational test to verify that a type-approved BWMS meets the D-2 standards when installed. 68 In its original form, stipulations on commissioning testing were not included in the BWM Convention; instead, the requirements are briefly articulated by the subsequent BWMS Code as a step connecting the validation of a compliant BWMS installed on board and the statutory survey in Section E. 69 Without going into detail, the Code prescribes that the procedure of the installation commissioning shall be verified by the flag state. 70 Elsewhere, voluntary guidelines developed by the IMO specify that operational tests entailing sampling and analysis and validating the compliance of the BWMS should be conducted during the commissioning process. 71 As pointed out by the IACS in its proposal, the vague wording in the BWMS Code fails to set out the exact extent of the survey requirements in the voluntary guidelines and is unclear as to how commissioning testing should be conducted. 72 Moreover, the requirement that a commissioning procedure must be in place does not necessarily indicate that commissioning testing of the installed BWMS itself is mandatory. 73 Obviously, clarification as to the (non-) binding nature as well as the substance of commissioning testing is required, which inevitably entails amendment to the relevant mandatory instruments, either the BWMS Code or the Convention. Following wide support from state delegations, 74 the proposal initiated by the IACS led to an amendment of Regulation E-1, adding commissioning testing as a mandatory prerequisite to the initial survey, which demonstrates that the processes of the BWMS are working properly. 75 In this way, the IACS has managed to close the legal gap by creating uniformity of practice among states parties.
Classification Societies (IACS) as Private Standard Setters As described above, in carrying out their activities, classification societies are not prevented from making internal rules and standards evaluating the condition of ships to which they provide their services. Given its near-universal cover of merchant shipping, as well as its unifying efforts creating minimum shipboard performance benchmarks for its members, the IACS without doubt offers a helpful example of how private technical requirements can influence the interpretation of IMO rules and standards.
With respect to the development of common technical standards among its members, the IACS follows a set of procedural requirements to ensure that unanimity can be achieved throughout the process. At the first level, the binding IACS Resolutions are drafted and updated by Working Groups (WGs) within the IACS. The WGs consist of subordinate permanent Panels, which are further divided pursuant to specific areas of competence, and ad hoc Expert Groups advising on specialized areas of work of classification societies. 76 Each Panel comprises one representative from each member classification society, while a Chair, approved by the IACS Council, is designated to convene and organize the meetings. 77 In developing the IACS Resolutions, the relevant body is bound by requirements that the technical standards be enforceable, technically and/or procedurally self-standing, capable of achieving uniformity, and shall not hinder development of or improved new technologies. 78 Non-IACS members are also entitled to participate in technical discussions, contributing to the development of drafts. 79 When drafting Resolutions, the Chair shall endeavor to achieve unanimity among the member societies and avoid voting; if voting becomes inevitable, a qualified majority representing two-thirds of the members eligible to vote is required. 80 Any draft Resolution is submitted to the General Policy Group (GPG) for review and formal adoption. 81 The GPG is the body responsible for the WGs' work programs and budget. Provided the review criteria have been fulfilled, the GPG, before adoption, must also seek unanimous agreement on the proposed Resolution. 82 Despite the similar membership of the GPG as compared to the WGs, the GPG requires a double simple majority in voting-that is, the decision to adopt IACS Resolutions shall be made by affirmative vote from more than half of the members entitled to vote who collectively represent no less than 50 percent of IACS's total registered gross tonnage. 83 Particularly in terms of the Unified Requirements (URs), each IACS member must implement the technical rules through ratification with a uniform application date. 84 In the case of any reservation, they are also obliged to inform the GPG about the part of UR subject to the reservation with an associated technical explanation. 85 Where there is a failure to achieve uniform application, the GPG and the subsidiary Panel must seek a compromise solution. If unanimity cannot be reached regarding the revised text, the GPG must 76  examine the reasons for the reservation and reconsider the mandatory value of the URs, which may lead to the consequence of either keeping the UR status or reducing the effect to a voluntary Recommendation. 86 Finally, IACS Resolutions are subject to periodic review by the WGs and are subject to amendment in light of the latest developments in technology or lawmaking activities in the IMO, in which case the same procedure outlined above will be followed. 87 In the case of ballast water management, the IACS has, to date, adopted three URs (in chronological order, M74, F45, and Z17) 88 concerning the potential safety and environmental hazards arising from the BWMS installation. Following detailed analysis of the mechanisms for ballast water treatment and, accordingly, the dangerous gas or liquid generated during the ballasting and deballasting process, UR M74 has been revised twice since its introduction in 2015. 89 In order to avoid the leakage of explosive and dangerous gases as defined by the IACS, 90 requirements were laid down in generic language in the previous version, prescribing additional need for ventilation, and installation of sensors detecting the concentration of hazardous gases, coupled with audible and visual alarms to be activated in the case of leakage. 91 Furthermore, tankers were subject to additional measures with the recommendation that two independent BWMSs should be installed, positioned in hazardous and nonhazardous areas, respectively. 92 By contrast, the latest revision that became effective in July 2022 provides bespoke requirements on BWMS installation pursuant to the specific hazards the BWMS could pose during its operation. 93 In addition, despite the hortatory tone that a design review of the BWMS concerned should be carried out by the member societies, the inspection and certification of its components at the manufactory is mandatory; for certain categories of BWMS a general risk assessment and subsequent approval by the classification societies are necessary during the review process. 94 The application of this revised UR M74 is accompanied by UR F45, which sets out preventive measures to be taken when designating an enclosed space for installing BWMS on board. 95 Following the type of BWMS technologies categorized in the newly revised M74, F45 gives particular attention to BWMS using chemicals and ozone regarding the location where the system is equipped. 96 In order to give effect to safety precautions under M74, this not only requires protective measures such as having 86  firefighting equipment (e.g., fixed fire-extinguishing system, portable firefighting equipment, fixed fire detection and alarm system) and personal equipment for seafarers engaged in BWMS maintenance and repair, 97 but the ventilation capacity must meet the numerical threshold in accordance with the type of BWMS technologies applied. 98 A more interesting case is UR Z17, the Annex of which was revised in August 2021, requiring the service supplier for BWMS commissioning testing to meet specified qualification requirements. 99 Unlike the previous two IACS instruments, which complement the obligation under the BWM Convention to install D-2-compliant BWMS by imposing additional safety requirements and standards, this instrument addresses the regulatory gap relating to the conduct of commissioning testing. In this regard, the Annex specifies the procedures for the sampling and analysis of ballast water, as well as for the verification of self-monitoring equipment, all of which are to be discharged by the service suppliers. 100 Following approval of IACS members relating to the qualification of service providers and the testing equipment, 101 Clause 18.5 provides that after treatment, the discharged ballast water shall be sampled in accordance with IMO Guidelines, 102 while the samples collected shall be analyzed pursuant to IMO Guidance for commissioning testing. 103 The use of word "shall" in this provision elevates the nonbinding instruments developed within the IMO to mandatory procedural requirements that service providers must conform to before the commissioning testing can be verified by the IACS members. Finally, service providers are obliged to submit the result of testing to the classification society concerned in a standard format. 104 Overall, instead of creating a set of discharge standards distinct from the BWM Convention or defining the performance parameters on ballast water treatment while the vessel is in operation, the Unified Requirements adopted by the IACS, rather, tackle the installation and the commissioning testing of type-approved BWMS on board before the statutory survey and certification under Section E under the Convention take place. In other words, these private standards serve the purpose of facilitating classification societies' public function as ROs in the sense that the technical minimum benchmark standards as reflected in the IACS Unified Requirements must be implemented by member societies when exercising the delegated authorities entrusted to them by the flag state. As a result, in practice, the verification of BWMS installed on board a vessel is conditional upon achieving compliance with the URs discussed above. The distinction between public and private functions appears artificial in the present case. By contributing to and implementing the obligations under the BWM Convention, classification societies can potentially influence the interpretation of international rules and standards 97 Ibid, clauses 4.1, 5.2 and 7.1.1. 98 Ibid, clause 6.2.2 and 6.2.3. 99 IACS, UR Z17 Rev16, note 88, Annex 1, at: https://iacs.org.uk/publications/unified-requirements/ur-z/ur-z17-rev16-cln (accessed 31 October 2022). 100 Ibid, Annex 1, clause 18.1. Service supplier is defined as "[a] person or company, not employed by an IACS Member, who at the request of an equipment manufacturer, shipyard, vessel's owner or other client acts in connection with inspection work and provides services for a ship or a mobile offshore unit such as measurements, tests or maintenance of safety systems and equipment, the results of which are used by surveyors in making decisions affecting classification or statutory certification and services." See ibid, clause 3. 101  on merchant shipping, in particular, how they are implemented at the shipboard level, independent of the involvement of states. Therefore, it is in this sense that classification societies (in the present context, through the IACS) function as "unofficial" makers of international law.

Tentative Observations: Implementing the BWM Convention and Beyond
Contributions of Classification Societies to the BWM Convention As observed by Michael Tsimplis, as a result of delays, objections, and subsequent reconsideration of obligations throughout its implementation process, it is difficult to assert that the BWM Convention is, overall, a satisfactory scheme to tackle non-indigenous species from ballast water. 105 However, the Convention bears the hallmark of a forward-looking approach to the making of international shipping standards in which compliance is dependent on the availability and practicability of future technologies. As discussed above, an evolutionary reading of "pollution of the marine environment" broadens the IMO's marine environmental mandate to include issues with considerable complexity in regulation and that demand sustained long-term effort from all levels of actors. Arguably, lawmaking techniques that promote technical innovation through regulations will become prevalent within the MEPC. An example is the recent adoption of the IMO's Initial Strategy on shipping decarbonization in 2018, which articulates the ultimate goal of reducing annual greenhouse gas emissions by at least 50 percent by 2050. 106 Currently, the absence of detailed rules and standards in furtherance of this goal and the lack of supporting shipboard technologies require contributions from the private sector to proactively devise appropriate solutions. 107 An increasing engagement of private actors across these maritime field can be clearly envisaged.
In the context of the implementation process of the BWM Convention, the three functions inquired into suggest that classification societies are primarily focused on the type approval of compliant BWMS (as ROs), the safety impact of on-board installation and verification (as private standard setters), and survey and certification (as ROs and participants in the IMO). However, classification societies should not be viewed as a sole solution provider in the context of ballast water management since they do not tackle the real problem, which is the lack of cost-effective BWMS that prevented the Convention from entering into force in a timely manner. Their contributions are indirect to the extent that classification societies provide a smooth, effective, and uniform implementation of the Convention through activities either in conjunction with states parties and the IMO or on their own.
Nevertheless, such indirect contributions should not be underestimated. What is observed in this case study is the mutual influence between technology and regulation, as well as how this interplay applies, bearing in mind the role of classification societies. Generally, technical know-how and firsthand experience accumulated from practice offer feedback to lawmakers, spurring the development of new rules and standards for merchant shipping. The regulatory framework thereby normalizes the use of certain technologies to achieve compliance and, provided that sufficient incentives are in place, it further encourages the development of new knowledge and innovation. 108 Classification societies, by virtue of their multiple functions, are proactively involved throughout this loop. On the one hand, their experience drawn from type approval, survey, and certification improves the application and implementation of the BWM Convention; specifically, industrial standards are updated with detailed requirements pursuant to the specific type of BWMS to be installed. On the other hand, both public and private standards dictate the manner in which activities within classification societies shall be conducted, shaping the direction of further technological development. This is why classification societies, vis-a-vis other private actors in the maritime sector, enjoy an incomparable status. Another intriguing observation that merits closer examination is the "unofficial" lawmaker status of classification societies. Despite their original purpose of facilitating IACS members' function as ROs in survey and certification, the three URs examined in this article reveal the possibility that private standards can influence how relevant provisions under the BWM Convention shall be applied and interpreted in practice. If it is correct to submit that the rules and standards adopted under the IMO instruments manage to fulfill the jurisdictional framework under UNCLOS concerning vessel-source pollution as a result of their status as "generally accepted," 109 it could be argued that the technical standards adopted through the IACS Resolutions fill the legal gaps in the regulatory regime established by the IMO. Undoubtedly, in spite of their purported universality, owing to the state-centric nature of international law, the IACS standards per se cannot not be accepted as GAIRS. 110 According to the IACS internal procedure, states are involved in neither the development nor the implementation of its Resolutions, and it would thus be a far-fetched argument to claim that the delegated statutory powers under Regulation E-1.3 imply an implicit incorporation of IACS standards. However, the effect of this relationship so that the implementation of an international instrument is contingent upon compliance with private standards and interpretation of those standards by the private actors is nonetheless unexpected.
These two observations invite a final remark on the private standard-setting capabilities of classification societies and the IACS at the institutional level. Not only do the research-based methodology, universal applicability, and connection to the implementation of IMO instruments of the private standards give momentum to the life of international law by offering updated, uniform and nuanced standards, 111 but their competence to develop industrial standards on conserving the marine environment demonstrates their potential to contribute to new regulatory frameworks, making these private actors the forerunners among others, particularly when international negotiations are impeded by political controversies. It is in this way that classification societies are capable of assuming an expanded role developing frameworks for marine conservation.
Conserving the Marine Environment by Classification Standards? The outlook described above is an optimistic view of the potential role of classification societies. However, it is one thing to determine whether classification societies have the competence to tackle environmental issues; it is another to conclude that their activities are justified in the eyes of various the participants within the merchant shipping industry.
As discussed above, under the Load Line Convention and SOLAS, technical standards developed by classification societies can be integrated into the respective conventions. By contrast, there is no such express reference among other IMO instruments dealing with marine pollution. Given the "unexpected" effect of IACS standards on the implementation of the BWM Convention, it is appropriate to ask how far classification societies can impose their own industrial standards on vessels, in the absence of states parties' involvement in the standard-setting process, when acting as ROs pursuant to IMO conventions. International law does not offer a definite answer to this question at this point. Even assuming that the RO Code applies to all mandatory IMO conventions, the requirement that ROs shall allow for the participation of flag states and other interested parties in the development and review of their technical standards in furtherance of their empowerment is far from clear. It is not known how states (and possibly other stakeholders) should be engaged in this process, nor the legal consequences if such standards are not adopted in a transparent manner. 112 Of course, as demonstrated by the IACS's internal procedures, classification societies must avoid potential normative conflicts between their classification standards and international and/or national law, and in the case of any conflict, IACS members are absolved from the obligation to comply with the IACS requirements, as public law takes precedence. 113 The potential to expand their role aside, it is unlikely that classification societies would in practice function as a vocal advocate for conserving the marine environment by, for instance, introducing more stringent pollution discharge standards than those that currently exist under international law. A more precise description of classification societies is that they are apolitical technical bodies and facilitators, and they make an important contribution to the development of the international regulatory framework through their incorporation of the practice of merchant shipping into that framework. Nevertheless, why should classification standards and their implications for public international law be accepted by states parties to IMO conventions?
Another challenge comes from the universal applicability of the IACS Resolutions and, consequently, the position of classification societies not affiliated to the IACS and other maritime stakeholders. Ostensibly, the binding effect of the IACS instruments, including the URs mentioned above, is confined to member classification societies. In practice, however, the strong position of the IACS by virtue of its authority and expertise in relation to the design, construction, maintenance, and survey of ships makes it burdensome for classification societies not affiliated to the IACS to completely disregard the IACS standards and, instead, to demonstrate that their private standards achieve the equivalent results when implementing IMO instruments as ROs. An investigation by the European Commission in 2009 observed that the exclusion of nonmember classification societies from the IACS's decision-making processes, as well as the full knowledge of the its technical works, could render classification societies that do not comply with the IACS Resolutions subject to substantial competitive constraints. 114 Theoretically, Makoto Seta has argued that private standards developed by an international institution could be directly incorporated into the structure of GAIRS for the purpose of Article 211 of UNCLOS. 115 If this is the case and classification societies standards are treated as having similarly universally binding effects, then do the opinions of those far less influential classification societies in the maritime industry matter? Furthermore, particularly with respect to private standards with environmental implications, if the legislative activities within the IMO represent a compromise among the wide-ranging interests of states, then why should the IACS, operating in a way resembling an intergovernmental organization, be more effective, particularly where interests other than those of member societies are not taken into account?
In order to deal with these questions, it is necessary to examine to what degree classification standards, especially the IACS Resolutions binding upon the member societies, should be viewed as legitimate or effective from the perspective of the recipients of those standards.

Tackling the Legitimacy Deficit From the Perspective of Global Administrative Law
Legitimacy in relation to the power exercised within a given institution is argued to provide a basis for "compliance pull." 116 Generally, theories on the legitimizing effect in international law have been grouped into three types: source-based (requiring the consent of the states concerned), procedure-oriented (providing procedural safeguards), and substantive (producing desired results). 117 Given the diversity in size, scope of activities, expertise, and interests they present, it is inherently difficult to provide a clear and generally accepted understanding of the concept of legitimacy, applicable to all private actors involved in global governance. 118 However, insofar as private actors such as the IACS are undertaking regulatory functions as "unofficial" international lawmakers, exerting influence upon both states and the maritime industry, particularly where there are no other international institutions competent to deal with the same matters, it is important to scrutinize these entities from the perspective of legitimacy, specifically, procedural legitimacy. In this respect, the school of "global administrative law" and its four core elements, namely, transparency, reason giving, review process, and participation, offer an interesting model against which the legitimacy of private standards can be evaluated. 119 This section therefore analyzes the standard-setting process within the IACS, focusing on where the legitimacy deficit is located on the basis of the four elements identified.

Transparency
As a central element of GAL, transparency refers to the requirement that relevant information is to be accessible not only among the decision makers internal to the process, but also to those "external to the institutions," enabling external stakeholders to determine whether "the public justification for action proffered by the institution is cogent." 120 As argued above, the standards contained in the IACS Resolutions are compulsory and upon which the compliance with international shipping regulations could become conditional when member classification societies are acting as ROs. For external players, learning the content of the standards could induce significant costs if no public access to the background information is allowed, while a more serious issue concerns whether copyright protection should extend to the text of these standards, given their normative impact. 121 Hence, not surprisingly, the European Commission has raised serious concern over the IACS's previous practice that non-IACS classification societies be precluded from having access to its Resolutions and technical background information in relation to specific classification standards. 122 In response to the European Commission's observations, the IACS has effected improvements regarding access to its documents. In principle, all IACS Resolutions in force, including their future versions and the historical file containing the main points of discussion and any technical background documents, must be placed in the public domain. 123 In digital form, IACS Resolutions and Recommendations currently in force are compiled in its "Green Book" online, which is updated once new or revised IACS instruments are adopted. In addition, the so-called "Blue Book," containing all revision records of IACS's technical work and historical data is published annually. 124 Non-IACS classification societies that wish to embed IACS Resolutions into their published rules are entitled to use the IACS publications in a royalty-and license-free way. Moreover, in applying IACS Resolutions, they are entitled to seek further information and assistance from the member societies. 125 In the case of a decision not to publish the IACS Resolution or the Technical Background document, a non-IACS member is entitled to bring the case before the Independent Appeal Board. 126 In this way, it could be argued that transparency within the IACS standard-setting process has been considerably enhanced, particularly vis-a-vis non-IACS classification societies. However, it should be noted that the open access of relevant information is confined to the final IACS standards, with draft technical documents being kept confidential. Therefore, in order to know why the IACS standards are developed in a certain manner, other elements of GAL, such as participatory rights, are essential to establishing the legitimacy of these standards.

Reason Giving
Although expertise of the IACS can provide a source of legitimacy with regard to the adoption of private standards, it does not necessarily guarantee that the decisions to adopt such standards are only technical and neutral on all occasions. 127 The quest for legitimacy demands procedural safeguards, bridging professional knowledge and providing a basis on which the technical standards have been adopted through persuasion and support. To this end, a salient feature is the requirement that reasons be given explaining how decisions are reached. As observed, although the duty to give reasons in decision making has been enshrined in some areas of public international law, institutional practice seems to suggest that this requirement is materialized to various degrees among those engaged in global governance. 128 For example, the Internet Corporation for Assigned Names and Numbers (ICANN), a nongovernmental body that aims to maintain the stable and secure operation of the Internet community, imposes a high level of reason giving if the policies under consideration could "substantially affect the operation of the Internet or third parties." 129 When relevant resolutions are approved by the ICANN Board, the rationale justifying their adoption, the voting results, and the separate statement of any director desiring the publication of such a statement must be published in the ICANN's meeting minutes. 130 By contrast, it could be argued that, at best, the requirement to give reasons when IACS is making decisions is implemented in a fragmented fashion. Generally, given the confidential nature of the technical documents before they are finalized, the requirement to provide an explanation with respect to the making and revision of IACS standards is internal in nature and is limited to classification societies participating in the technical work within the IACS. 131 As to maritime stakeholders external to its standard-setting process, the query procedures in response to technical issues within the IACS's competence could be used as a mechanism to obtain reasons relating to decision making, although this applies only on a case-by-case basis. In the situation where inquiries are received from individual shipowners, shipyards, or manufacturers, either the Permanent Secretariat or the member classification societies are obliged to respond. 132 When inquiries are made by international organizations, international industrial associations, or flag states, there is a more complicated arrangement, which requires the Working Groups to draft responses. These responses are subject to the General Policy Group's approval, 133 particularly where the subject matter is covered by existing IACS Resolutions, and the unanimous decisions on queries should be recorded and archived by the WG. 134

Review Process
Generally, the review mechanism provides the pertinent decision-making institution an opportunity to reconsider its decision during their implementation phase. Such a mechanism is especially essential for technical standard-setting bodies like the IACS in order to maintain their state-of-the-art position so that their decisions are timely and updated in line with evolving technology and market needs. Therefore, the IACS standards as well as their implementation status are subject to internal review by the Working Groups (within which new IACS Resolutions are drafted initially) on an annual basis. As demonstrated by its internal procedure, the review process is established by the IACS in order to (1) identify any difficulties encountered during the implementation process (e.g., reservation to the URs) and propose remedies to ensure that IACS standards can be applied in an effective and uniform manner by the member societies; (2) keep abreast of the latest development of technology, as demonstrated by the case study of UR M74 on BWMS installation, where UR M74 has been revised twice pursuant to a growing understanding of compliant BWMS; and (3) retain consistency with developments in IMO instruments. 135 Interestingly, the review process also addresses the situation where the IACS Resolutions in question are also covered wholly or in part by any subsequent IMO instruments. The IACS aims to avoid normative conflicts between its Resolutions and IMO conventions by prescribing that actions on Resolutions shall be taken pursuant to the binding nature of IMO instruments, including decisions relating to the deletion, modification, and retention of Resolutions. 136 When finalized, revised IACS Resolutions are adopted following the same procedure as for the adoption of new Resolutions.
An important question is whether the IACS standards are subject to external review by domestic or international adjudicative bodies. The issue of civil liability of classification societies for their failure to ensure that contracted ships meet the standards (either IMO regulations or the class rules) on seaworthiness has been explored in the legal literature. 137 The case law associated with the sinking of the Erika has opened up the possibility that classification societies could also be subject to criminal penalties for failing to carry out their duties. 138 Yet no pathway to review the substance of the IACS Resolutions has been made available to stakeholders other than those entitled to participate in its standard-setting process. At best, limited indirect methods are available for states parties: For example, they can apply the dispute settlement clause within the context of a specific IMO instrument concerning its "interpretation or application," 139 or more generally through proposals submitted to the MEPC seeking clarification on IMO conventions. However, such practice has been rare, which suggests that the IACS standards are in fact accepted among states. Nevertheless, given the impact of IACS standards on the implementation of international maritime regulations on ships under their jurisdiction, it would have been desirable to offer flag states a direct channel for review.

Participation
Participation of interested parties in decision making and other processes is a wellestablished principle under international law, specifically to allow those who are affected and are likely to be affected by an institution's decisions to have their views heard and taken into account within the decision-making process. 140 Also relevant to transparency, stakeholder participation contributes to a well-informed decision-making framework by identifying special interests and broadening the scope of factual assessment. 141 Especially in the case of private regulatory bodies that are engaged in global governance, namely, exercising transnational authority in the public sphere, participation is all the more crucial since the competence of private regulatory bodies to govern is not mandated by states that themselves are normally democratically accountable.
With respect to the IACS specifically, reform took place in 2009 following an antitrust investigation by the European Commission on ship classification. In addition to transparency, the amended IACS Charter establishes flexible arrangements granting nonmembers access to draft IACS technical work so long as they are recognized as "classification societies" as defined by the IACS. 142 Within the WGs where IACS requirements are first considered and concluded, upon application, nonmembers are entitled to join the preparatory work with the same opportunities to comment and to be involved in the discussions on a nondiscriminatory basis, while their technical input, including their consenting or dissenting views, must be recorded by the WG Chair. 143 Furthermore, oversight is available should the classification society in question consider its effective participation has been denied. In this respect, a three-tier complaint mechanism has been established, which requires the relevant WG Chair to first seek an agreeable solution; if the matter remains unresolved, the grievance should be addressed at a higher level by the GPG Chair in written form with reasoned decisions; and as the last step, the Independent Appeal Board serves as the final adjudicator. 144 Moreover, the term "stakeholders" should not be understood as being limited to classification societies not affiliated to the IACS, particularly when interests other than maritime safety are at stake. In developing IACS shipping standards that have significant environmental implications, such as the BWMS discussed above, there is no reason why NGOs with the aim of promoting environmental protection should not be involved in the IACS standard-setting process. Through the term "external organizations other than classification societies," arguably, the IACS acknowledges a broader range of stakeholders in this context, albeit with a more limited scope of privilege relating to participation compared with nonmember classification societies. To begin with, the participation of external parties in the WGs is contingent upon invitations issued by the IACS at its discretion on the basis that their participation is "beneficial for discussion of specific issues." 145 Unlike the non-IACS classification societies that are entitled to engage in the drafting process of resolutions on an equal basis vis-a-vis the IACS members within the WGs, subject to the preliminary approval by the GPG, external parties may only comment once the drafting of the IACS Resolutions has been completed. 146 In responding to the comments received, the WG concerned must give consideration to whether the draft Resolutions should be amended accordingly, and in the event of final approval, the external parties must receive feedback on how their comments have been reflected in the relevant Resolution. 147 It is open to question whether the safeguards as set out in the IACS internal procedures really do lead to the effective participation of relevant stakeholders in its standard-setting processes. Obviously, the vague wording and the considerable discretion of the IACS in terms of the participation of external parties other than classification societies potentially undermine the degree to which these entities are involved in developing the IACS Resolutions within the WGs. Unlike classification societies, for which eligibility can be benchmarked against the criteria in the IACS Charter, it is not known whether the IACS is open to all environmental NGOs, nor is it clear whether invited NGOs are able to resort to remedies inside the IACS in the event that the GPG decides not to circulate a draft Resolution under consideration. With respect to non-IACS classification societies, a recent amendment to the IACS Charter has removed the bureaucratic obstacle that required non-IACS members to subscribe to its online platform before participating in the substantial development of the IACS standards. 148 However, the requirement that all classification societies joining the WGs bear their own costs and be financially obliged to make a "reasonable and proportionate contribution to the running expenses of the WG" 149 is a potential obstacle to their participation. It is doubtful whether nonmembers of IACS actually possess the necessary financial capacity, owing to the very tiny market share they account for in the merchant shipping industry. Further research on how this mechanism works in practice and on the perception of relevant stakeholders is desirable.

Conclusion
Although classification societies are just one element of the merchant shipping industry among other maritime stakeholders, they are unique in nature and function. This article has examined the role of classification societies in conserving the marine environment through a case study on the BWM Convention, exploring how classification societies have contributed to the implementation of the Convention. Rather than actively seeking solutions to an expedient commercialization of effective BWMS to meet the discharge standards under the BWM Convention, which is the primary reason for the delayed implementation of the Convention, the contributions of the IACS have been indirect. However, the authors of this article wish to draw attention to the untapped potential of classification societies in a normative framework that features complicated environmental issues that are driving technological developments. By implementing the text of these conventions into practice, classification societies acquire technical know-how and experience. Their position is further strengthened at the international level where feedback from the IACS is incorporated into IMO conventions and proposals to improve the instruments concerned or where IACS Resolutions themselves perform a quasistatutory function. Therefore, the autonomous decision-making processes within classification societies appear to open up the possibility of private governance over the marine environment where states play a correspondingly less essential role. In the long run, therefore, the contributions of classification societies to IMO and other processes can vigorously support sustainable uses of the oceans.
Yet this argument is not without challenge. Instead of arguing for classification societies as a vocal advocate promoting shipping standards on pollution discharges, it is more appropriate to characterize them as apolitical technical bodies and facilitators, contributing to the development of the international regulatory framework through the incorporation of merchant shipping practice. What is more intriguing and challenging, however, arises from the impact of the private standards adopted by the IACS. While efforts are made to avoid potential normative conflicts between its Resolutions and rules and standards developed by states, the universal applicability of the IACS Resolutions 148 Before July 2020, only classification societies subscribing to the IACS Technical Contributions Forum were eligible to participate in comments and discussions in relation to IACS Resolutions. Participation within this online platform was limited to discussions about the IACS technical work program items, and the wording seems to suggest that only when interests regarding specific IACS Resolutions were shown by the non-IACS members would they be allowed to participate in the drafting process. 149 IACS Charter, Annex 3, Rule 1.2(f). nevertheless influences how rules and standards contained in the IMO instruments are applied and interpreted. As explored in the penultimate section in this article, the four core elements of GAL, while not applying in such a way that all participants in global governance must follow the same procedural safeguards in their standard-setting processes, nor suggesting that there exists a legitimate institution par excellence, nevertheless provide a helpful benchmark against which the expanding role of the IACS can be evaluated in order to assess its legitimacy. Inside the IACS, particularly following the European Commission's investigation into the IACS processes, significant progress has been made in relation to the position of non-IACS classification societies and other stakeholders with respect to access to information and to participation in the IACS technical work. There is, however, still room for improvement.