Ocean Law Debates : The 50-Year Legacy and Emerging Issues for the Years Ahead [1 ed.] 9789004343146, 9789004343139

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Ocean Law Debates

Ocean Law Debates The 50-Year Legacy and Emerging Issues for the Years Ahead

Edited by

Harry N. Scheiber Nilufer Oral Moon-Sang Kwon

leiden | boston

Cover Illustrations: Marina Caron. Library of Congress Cataloging-in-Publication Data Names: Scheiber, Harry N., editor. | Oral, Nilufer, editor. | Kwon, Moon-Sang, editor. Title: Ocean law debates : the 50-year legacy and emerging issues for the years ahead / Edited by Harry N. Scheiber, Nilufer Oral, Moon-Sang Kwon. Description: Leiden : Brill, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017061429 (print) | LCCN 2018000753 (ebook) | ISBN 9789004343146 (eBook) | ISBN 9789004343139 (hardback : alk. paper) Subjects: LCSH: Law of the sea--History. Classification: LCC KZA1145 (ebook) | LCC KZA1145 .O33 2018 (print) | DDC 341.4/5--dc23 LC record available at https://lccn.loc.gov/2017061429

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-34313-9 (hardback) isbn 978-90-04-34314-6 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

For Judge Tullio Treves and In memory of Professor Stefan A. Riesenfeld

⸪

Contents Acknowledgments xi List of Illustrations xiii List of Abbreviations xiv List of Contributors xviii Introduction 1

Part 1 Fifty Years of Ocean Law Debates: The Law of the Sea Institute 1 The Law of the Sea Institute: A New Forum for Debate of Ocean Law in the 1960s “Decade of Uncertainty” 11 Harry N. Scheiber 2 The losi in Hawai’i: Ocean Law and Policy Debates, 1977–96 93 Sherry P. Broder 3 Seeking Lines in the Sea: Progress and Challenges in the Delimitation of Maritime Boundaries over the Past 50 Years 135 Clive Schofield 4 A Legacy of Stewardship for the Public Order of the Oceans: A Memorial Tribute to William T. Burke 158 Craig H. Allen 5 Lewis M. Alexander, Modern Master Mariner of the Law of the Sea 169 John Briscoe

Part 2 Perspectives on unclos 6 The Strategic Foundation of the Law of the Sea 183 James Kraska 7 Small States in the Decision-Making Process of unclos iii 216 Willy Østreng

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Contents

8

Special Address: iuu Fishing and the International Tribunal for the Law of the Sea 266 Jin-Hyun Paik

9

Special Address: On the Challenges to Stability and to the Rule of Law in Implementation of unclos 276 Bernard H. Oxman

Part 3 The European Union’s Record in Sustainable Management of Marine Resources 10

Regulating and Managing Fisheries Resources: Five Decades of Triumph and Failure in the European Union 287 Ronán Long

Part 4 Debates on a Regime for Biodiversity in the Area beyond National Jurisdiction (abnj) 11

Freedom of the High Seas or Protection of the Marine Environment? A False Dichotomy 331 Nilufer Oral

12

Perspectives on a Developing Regime for Marine Biodiversity Conservation and Sustainable Use beyond National Jurisdiction 354 Kristina M. Gjerde

13

Promoting a New Convergence: Developing New Regulatory Paradigms for Marine Areas beyond National Jurisdiction in the Pacific Ocean 381 Robin Warner

14

Governance of the Arctic Ocean beyond National Jurisdiction: Cooperative Currents, Restless Sea 401 David L. VanderZwaag

Contents

15

ix

Changes in the Law of Marine Genetic Resources in the abnj and under unclos 419 Su Jin Park

Part 5 New Developments (and Challenges) in the Arena of Ocean Law 16

Defining “Serious Harm” and “Harmful Effects” for Deep Seabed Mining in the Area 447 Kathryn Mengerink

17

Regulating Greenhouse Gas Emissions from Ships: The Role of the International Maritime Organization 478 Daniel Bodansky

18

Perspectives on the International Court of Justice Ruling in the “Whaling in the Antarctic” Case 502 Anastasia Telesetsky, Seokwoo Lee and Hee Eun Lee

19

Conservation or Claim? The Motivations for Recent Marine Protected Areas 529 David D. Caron and Stephen Minas

Index 553

Acknowledgments The coeditors and the Law of the Sea Institute acknowledge with special pleasure the contributions to this book made by many individuals and organizations. Our first debt is to the authors of the papers that comprise this volume. Having written preliminary versions for presentation at the losi 50th anniversary conference, held in Berkeley in late 2015, our authors have graciously borne the burdens of going through careful vetting and editorial processes, which have occasionally involved rather onerous deadlines! Their dedication to the project, evident in the excellence of their contributions, has been a remarkable gift to our Institute and, it may be fairly said, to the audience of readers. I owe a great personal indebtedness to my colleagues Nilufer Oral of I­ stanbul Bilgi University, who shared in the editorial work while also carrying the responsibilities of both her new position on the International Law Commission and her teaching and research in her university; and to Dr. Moon-Sang Kwon, who played an indispensable role in the conference organization, furthering at this anniversary year a lengthy record of collaboration between losi and the Korea Institute of Science and Technology (kiost). A major contribution to the project, including exceptional conference hospitality, was made by the law firm of Briscoe Ivester and Bazel. We are also grateful to the law firm of Morrison and Foerster, San Francisco, for complementary support. Cooperating academic sponsors have included the Dean’s Office and the Institute for Legal Research in the School of Law, University of California, Berkeley; Istanbul Bilgi University; Dalhousie University, Canada; the Harte Research Institute in the Texas A&M University; the Jon Van Dyke Institute in the Richardson School of  Law, University of Hawai’i; and the Australian National Centre for Ocean Resources and Security (ancors), University of Wollongong. Invaluable editorial advice and work in preparing manuscripts for press were provided by Jane L. Scheiber. Further excellent substantive counsel on the project design and the conference was provided by H. Jordan Diamond, who, following my recent retirement, has now become the co-director, with Professor Holly Doremus, of losi. The losi staff at uc Berkeley, Ms. Karen Chin and Ms. Toni Mendicino, carried with their customary efficiency and cheerfulness the task of making travel and local conference arrangements. Profe­ ssor Seokwoo Lee of Inha University provided liaison with Dr. Kwon’s office at kiost, while Charity Lee of the kiost staff was, as always, of enormous assistance in bringing efficiency to our transnational institutional collaboration. Finally, the authors and editors are especially indebted to Marie Sheldon and

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Acknowledgments

her colleagues in the editorial and production departments of Brill/Nijhoff for the talented attention and the time that they have devoted to this book and, equally, to the previous losi volumes that their distinguished house has published during the last sixteen years. Harry N. Scheiber Director Emeritus, losi

List of Illustrations

Figures

7.1 The design of analysis 223 7.2 The chronology of some important unclos iii events related to formal sessions 225 16.1 Existing and potential uses and impacts to the deep ocean 451 17.1 National emissions of CO2 484



Tables

7.1 Miles’ ratings of influential delegations and individuals at unclos iii, 1976 253 7.2 Miles’ ratings of influential compromise groups, delegations and individuals at unclos iii, 1976–1982 255 10.1 Applying legal principles for the purpose of successful resource management 327 16.1 Significance-determination factors identified from international and national environmental impact assessment frameworks 472 16.2 Significance-determination factors used to consider manganese nodule mining impacts 474

List of Abbreviations abnj ATBA amsa asean aslp biot caff cao cbd cbdr-rc

Areas Beyond National Jurisdiction Area To Be Avoided Arctic Marine Shipping Assessment 2009 Report Association of Southeast Asian Nations Archipelagic Sea Lanes Passage British Indian Ocean Territory Conservation of Arctic Flora and Fauna Central Arctic Ocean Convention on Biological Diversity Common but Differentiated Responsibilities and Respective Capabilities ccamlr Commission for the Conservation of Antarctic Marine Living Resources ccsbt Convention for the Conservation of Southern Bluefin Tuna ceq Council on Environmental Quality cfp Common Fisheries Policy cgtmt Criteria and Guidelines for Transfer of Marine Technology chm Common Heritage of Mankind cincpac Commander-in-Chief, u.s. Pacific Command cites Convention on International Trade in Endangered Species clcs Commission on the Limits of the Continental Shelf cms Convention on Migratory Species cop Conference of the Parties ebsa Ecologically or Biologically Significant Marine Areas eea European Environment Agency eec European Economic Community eedi Energy Efficiency Design Index eeoi Energy Efficiency Operational Indicator eez Exclusive Economic Zone efp Experimental Fishing Program eia Environmental Impact Assessment ets Emissions Trading Scheme fao un Food and Agriculture Organization ffa Forum Fisheries Agency frg Federal Republic of Germany ghg Greenhouse Gas glacier Global Leadership in the Arctic Conference

List of Abbreviations gmbsm helcom hf hms icao ices icj icnt icrw ilbi ilc imo ims ioc ipcc ipr isa itlos itpgrfa itu iucn iuu iwc jarpa i & ii kiost kordi losi ltc m marpol mat mbm mca mea mepc mgr mpa

xv

Global Multilateral Benefit Sharing Mechanism Baltic Marine Environment Protection Commission, also known as the Helsinki Commission High Frequency Highly Migratory Species International Civil Aviation Organization International Council for Exploration of the Seas International Court of Justice Informal Composite Negotiating Text International Convention for the Regulation of Whaling International Legally Binding Instrument International Law Commission International Maritime Organization Institute of Marine Studies Intergovernmental Oceanographic Commission Intergovernmental Panel on Climate Change Intellectual Property Rights International Seabed Authority International Tribunal for the Law of the Sea International Treaty on Plant Genetic Resources for Food and Agriculture International Telecommunications Union International Union for Conservation of Nature Illegal, Unregulated and Unreported International Whaling Commission Japanese Whale Research Program under Special Permit in the Antarctic Korea Institute of Ocean Science and Technology Korea Ocean Research and Development Institute Law of the Sea Institute Legal and Technical Commission nautical miles (also “nm”) International Convention for the Prevention of Pollution of Ships Mutually Agreed Terms Market-Based Mechanism Minimum Condition of Access Multilateral Environmental Agreement Marine Environment Protection Committee Marine Genetic Resource Marine Protected Area

xvi mrv msfd msr msy nammco ndc neafc newrep-a nieo nm noaa oidc ospar pame pic pices pci pop pssa rfmo romo sar sbt scs sdg seemp sio srfc srs stecf tac tfeu unced unclos unclos iii unep unfccc unfsa

List of Abbreviations Monitoring, Reporting, and Verification Marine Strategy Framework Directive Marine Scientific Research Maximum Sustainable Yield North Atlantic Marine Mammal Commission Nationally Determined Contribution North-East Atlantic Fisheries Commission New Scientific Whale Research Program in the Antarctic New International Economic Order nautical miles (also “M”) National Oceanic and Atmospheric Administration Oil-Importing Developing Country Convention for the Protection of the Marine Environment of the North-East Atlantic Protection of the Arctic Marine Environment Prior Informed Consent North Pacific Marine Science Organization Petro-Canada International Corporation Persistent Organic Pollutant Particularly Sensitive Sea Area Regional Fisheries Management Organization Regional Ocean Management Organization Search and Rescue Southern Bluefin Tuna South China Sea Sustainable Development Goal Specific Energy Efficiency Management Plan Scripps Institute of Oceanography, University of California Sub-Regional Fisheries Commission Ship Reporting System Scientific, Technical and Economic Committee for Fisheries Total-Allowable Catches Treaty on the Functioning of the European Union United Nations Conference on Environment and Development United Nations Law of the Sea Convention Third United Nations Law of the Sea Conference; also “Third Conference” United Nations Environment Programme un Framework Convention on Climate Change United Nations Fish Stocks Agreement

List of Abbreviations

xvii

unga United Nations General Assembly unicpolos/icp United Nations Informal Consultative Process on Oceans and Law of the Sea uri University of Rhode Island vclt Vienna Convention on the Law of the Treaties vme Vulnerable Marine Ecosystem vts Vessel Traffic System wcpa World Commission on Protected Areas wipo World Intellectual Property Organization wssd World Summit on Sustainable Development wto World Trade Organization zopff/c Zone of Peace, Freedom, Friendship and Cooperation

List of Contributors Craig H. Allen is Judson Falknor Professor of Law and Professor of Marine and Environmental Affairs, University of Washington. Daniel Bodansky is Foundation Professor, Sandra Day O’Connor College of Law, and Senior Sustainability Scientist, Global Institute of Sustainability, Arizona State University. John Briscoe is a Distinguished Senior Visiting Scholar at the Law of the Sea Institute at Berkeley Law, Adjunct Professor of Law at uc Hastings, and senior partner at Briscoe Ivester & Bazel llp in San Francisco. Sherry P. Broder is a practicing attorney, arbitrator, and hearings officer in Hawai’i and elsewhere in the Pacific and is founding director of Jon Van Dyke Institute of International Law and Justice in the William S. Richardson School of Law at the University of Hawai’i. David D. Caron is a Member of the Iran-United States Claims Tribunal in The Hague and Professor of International Law at King’s College London. Kristina M. Gjerde is Senior High Seas Advisor, International Union for Conservation of Nature and Natural Resources, Global Marine and Polar Programme; and Adjunct ­Professor, Middlebury Institute of International Studies at Monterey, California. James Kraska is Howard S. Levie Professor in the Stockton Center for the Study of International Law at the u.s. Naval War College; Distinguished Fellow at the Law of the Sea Institute, University of California, Berkeley School of Law; and Senior Fellow, Center for Oceans Law and Policy at University of Virginia School of  Law. Hee Eun Lee is Associate Dean and Professor of Law at Handong International Law School, Pohang, Korea.

List of Contributors

xix

Seokwoo Lee is Professor of Law at Inha University Law School, Incheon, Korea. Ronán Long holds the Nippon Foundation Professorial Chair of Ocean Governance and the Law of the Sea at the World Maritime Institute. Kathryn Mengerink is Executive Director at the Waitt Institute and from 2006–2016, the Director of the Ocean Program at the Environmental Law Institute. Stephen Minas is Assistant Professor at the School of Transnational Law, Peking University and Senior Research Fellow at the Transnational Law Institute, King’s College London. Nilufer Oral is a member of the Faculty of Law at Istanbul Bilgi University and a Member of the International Law Commission of the United Nations. Willy Østreng is a political scientist specializing in international affairs with a focus on the polar regions, ocean affairs, and international security. He is currently President of the Norwegian Scientific Academy for Polar Research. Bernard H. Oxman is Richard A. Hausler Professor of Law at the University of Miami School of Law, where he directs the Master of Laws Program in Ocean and Coastal Law. Jin-Hyun Paik is President of the International Tribunal for the Law of the Sea (itlos) and Professor of International Law in Seoul National University. Su Jin Park is Research Fellow, Ph.D., Korea Maritime Institute, Republic of Korea; past Visiting Scholar, Law of the Sea Institute, University of California, Berkeley School of Law, usa. Harry N. Scheiber is Director Emeritus of the Law of the Sea Institute; and Riesenfeld Chair Professor Emeritus and Chancellor’s Professor of Law and History, in the School of Law, University of California, Berkeley.

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List of Contributors

Clive Schofield is Director of Research at the Australian National Centre for Ocean Resource and Security (ancors), University of Wollongong, Australia (uow) and Leader of the Sustaining Coastal and Marine Zones theme of uow’s Global Challenges interdisciplinary research program. Anastasia Telesetsky is Professor of International Law, University of Idaho College of Law. David L. VanderZwaag is Professor of Law and the Canada Research Chair (Tier 1) in Ocean Law and Governance at the Marine and Environmental Law Institute, Dalhousie University, Halifax, Canada. Robin Warner is Professor at the Australian National Centre for Ocean Resources and ­Security (ancors), University of Wollongong, Australia.

Introduction A half century, almost to the very month at this writing, has passed since the Law of the Sea Institute’s initial volume of conference papers was issued in 1967 in the book entitled Law of the Sea: Offshore Boundaries and Zones.1 The book presented a set of important scholarly studies that were prepared for the Institute’s inaugural meeting in 1966; it was edited by the eminent geographer, the late Lewis M. Alexander, a cofounder of losi at the University of Rhode ­Island a year earlier. It turned out to be the first volume in what became a stream of nearly-annual losi conference publications that has continued down to the present day. This line of major losi conferences was continued with a fiftieth anniversary meeting held in October 2015 at the University of California, Berkeley’s School of Law, where losi has been based since 2002. Papers from this historic meeting are now published, after vetting and editing, in the present volume. A predecessor anniversary meeting for losi, marking the Institute’s twenty-fifth year, was held in Malmö, Sweden, in August 1991. On that occasion, ­Professor Alexander—who had been losi’s director until 1977 and then ­continued to serve afterward as a principal guiding spirit of the ­organization— delivered a paper that he entitled, simply, “Looking Back.” Offering his reflections on what losi had contributed to ocean law and policy discourse since 1965, Alexander also provided in this paper an incisive commentary on unresolved ocean-law problems that he predicted—presciently, as it proved— would need to be addressed by the global community in the years ahead.2 Looking back again, on the occasion of the fiftieth anniversary, one may ­assert with confidence that losi has been consistent in pursuing the basic ­objectives that the Institute announced at its founding: “to afford an opportunity for increased exchanges of ideas and information on matters relating to the use and control of the sea and its resources,” and to provide “a non-political environment” for the free and open discussion of ocean law problems.3 From 1 Edited by Lewis M. Alexander, and published by the Ohio State University Press, 1967 (­designated as a publication of the Law of the Sea Institute and the Ohio State University’s Mershon Center for Education in National Security). 2 Alexander, “Looking Back,” in The Marine Environment, Sustainable Development: Law, Policy, and Science: Proceedings of the Law of the Sea Institute, August 6–9, 1991, ed. Alistair Couper and Edgar Gold (Honolulu: Law of the Sea Institute, University of Hawai’i), 647–654. 3 Dale C. Krause, “Opening Remarks,” The Future of the Sea’s Resources: Proceedings of the Second Annual Conference of the Law of the Sea Institute, June 26–29, 1967, edited by Lewis

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_002

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Introduction

its founding era at Rhode Island, followed by the period 1977–99, when it was based at the University of Hawai’i, afterward briefly at the University of Miami, and finally, during the last fifteen years at uc Berkeley, losi has maintained its position as a significant forum in the global discourse on ocean affairs. The present volume continues in that tradition, offering a mix of historical and analytic studies on ocean law and policy. In recognition of the anniversary occasion, a set of papers (Part 1) is devoted to the founding era, both as to context and as to the institutional history of losi. At its founding, as shown in Chapter 1 by coeditor Harry Scheiber, the movement for a comprehensive Law of the Sea treaty was at a standstill following the failure of the 1960 Geneva Conference. By analysis of the unresolved issues in law and policy that made the 1960s, as the author asserts, a “decade of uncertainty,” this paper provides a baseline, as it were, for systematic comparisons with the issues and the law of ocean uses today. The initial meetings of losi in Rhode Island may now be seen as having played a key role in the revival of the global discourse, contributing to the decision by the un to convene the conferences that culminated in the agreement in 1982 on the un Convention on the Law of the Sea (unclos), providing a constitutional-type framework for the ongoing development of ocean law down to the present day. Sherry Broder, Honolulu attorney and lecturer in international law at the University of Hawai’i, writes in Chapter 2 of the comparable lines of debates of three additional issues—the regime for seabed mining, the jurisdictional and areal-zonal terms of the Exclusive Economic Zone, and Pacific islands ­regional development—that were central concerns in losi debates during the period when losi was based in Hawai’i. In Chapter 3, Professor Clive Schofield, ­eminent political geographer and ocean law scholar on the Wollongong University (Australia) faculty, provides a critical recounting and analysis of how the matter of maritime boundaries—one of the issues of overarching ­importance in ocean law, both fifty years ago and today—has been debated and ­conceptually advanced in losi conferences and publications from the founding onward. Two additional papers in Part 1 memorialize the contributions to ocean law studies of two especially distinguished scholars: In Chapter 4, Professor Craig Allen of the University of Washington offers a keen analysis of the late ­William T. Burke’s scholarship. Professor Allen, who was Burke’s colleague on the University of Washington law faculty and who is an outstanding authority on ­marine navigation and enforcement issues, shows why Burke was u ­ niversally M. Alexander (Kingston, Rhode Island: University of Rhode Island, 1967), 1. Krause, an oceanographer, was, with Alexander and John Knauss, a cofounder of losi in 1965.

Introduction

3

acknowledged as a leading figure in both ocean law scholarship and ocean policy studies; indeed, few if any contemporaries were Burke’s equals either in the breadth of his learning or his capacity for creatively integrating into scholarly writings on law the relevant developments in science, technology, international relations, and jurisprudence. In Chapter 5, the attorney John Briscoe of San Francisco, a valued contributor to losi conferences for many years, offers a parallel memoir of Alexander, recalling the several dimensions of a remarkable career in scholarship, government service, public affairs, and, not least, the nurturing of losi in the organization’s founding years and after. By including in his paper some recollections by friends and colleagues of Alexander, Briscoe highlights the generosity with which Alexander mentored others and fostered collegiality and creative intellectual relationships in the oceans community. In Part 2, a cluster of studies offers a rich array of historical, jurisprudential and political perspectives on the 1982 un Convention on the Law of the Sea (unclos). In Chapter 6, Professor James Kraska, a leading authority on naval security and law of the sea and a member of the u.s. Naval War College faculty, offers an interpretation of “the strategic foundation” of the unclos regime. He portrays this foundation as having been built by the superpowers as they came together in a determination to assure navigation rights through straits and, more generally, to forge the legal accommodations required for effective nuclear submarine operations. Willy Østreng, a political scientist and leading Nordic scholar on both ­polar issues and general ocean law, analyzes in Chapter 7 the dynamics of ­u nclos iii (the Third Conference), which produced the unclos agreement, stressing the roles of leadership and the deployments of both “soft” and “hard” power. He gives attention to the various committees and the leadership styles that were important in shaping the outcome of negotiations, but also examining in closer focus how the interests of Norway, as a small state, were pursued in the talks and then realized in the implementation of the eez provisions of unclos. Two other papers in Part 2 were delivered as special keynote addresses to the fiftieth anniversary conference, each one on an important additional a­ spect of the 1982 Convention and its implementation: In Chapter 8, itlos Judge ­Jin-Hyun Paik provides learned commentary on the adjudication in the Tribunal of a path-breaking case concerning flag State obligations and the ­regulation of iuu fishing under the terms of unclos and in the matrix of the progressive de­velopment of international law. In Chapter 9, Professor B ­ ernard O ­ xman of the University of Miami, who has had a major role in both the ­scholarly study and the working diplomacy of ocean law since the early phase of the un initiatives,

4

Introduction

offers reflections on the challenges to stability and (more generally) to the rule of law in the legal ordering of the oceans—challenges as they have been dealt with in the past, and others before us today. Part 3 considers European Union issues. Professor Ronán Long of the World Maritime University, Malmö, author of numerous studies (many already considered classics in the literature) of international law and the jurisprudence of living marine resources management and conservation, provides in Chapter 10 a study in depth of the complex half-century history of successive transformations—both as to conceptions of purpose and structure and as to ­prescribed processes for implementation—of eu law and policy. Vividly presented are what Long terms “some of the catastrophic failures together with the all too infrequent triumphs” of the European approach to marine resources management. Part 4 consists of a set of papers covering comprehensively the major i­ ssues relating to protection of the marine environment in areas beyond n ­ ational ­jurisdiction (abnj), one of the most intensely debated issues currently ­engaging law of the sea experts. This Part opens with Chapter 11 by coeditor Professor Nilufer Oral, of Istanbul Bilgi University. She provides a doctrinal analysis of the freedom of the high seas and the ways in which its canons have been modified over time—a history that forms the essential legal context of current debates of the historic doctrine in its relation to the proposed new agreement for the protection of biological diversity in areas beyond national jurisdiction. In Chapter 12, Kristen Gjerde, an officer of the International Union for Conservation of Nature (icun) and one of the most active individuals in ­promoting the project for protection of the abnj environment, offers a d­ etailed overview and retrospective thoughts on the events that led to the un General Assembly’s decision to convene a preparatory conference for a new implementing agreement on biodiversity in the abnj. Gjerde’s review of the issues includes both an interpretation of how well they have been addressed in the early stage of negotiations and an analysis of the options that will determine the direction of future innovation. Two geographically disparate regions, the far northern cold waters of the Arctic and the warm marine areas of the Pacific, are studied in the two chapters following as significant examples of challenges of governance in the abnj. In Chapter 13, Professor Robin Warner of Wollongong University, who is a widely published and respected writer on biodiversity and on legal problems relating to the abnj, provides a survey of the issues—both in the framework of general ocean law and in the context of unique regional characteristics and problems—that need to be addressed in the Pacific Ocean area. In Chapter 14,

Introduction

5

the distinguished Canadian ocean law expert Professor David VanderZwaag, of Dalhousie University, analyzes the status of existing ocean law doctrines and institutions, of the emerging navigation regime (under terms of the imo Polar Shipping Code adopted in 2015), and of the regional agreements now in force or under debate regarding economic uses of the Arctic. His study covers the key issues regarding fisheries, preparedness for pollution response, and a wide range of options for enhanced environmental protection. Both of these closely focused regional studies serve as a reminder of Lewis Alexander’s legacy to the community of ocean law scholars, from his writings in the 1960s and 1970s, which was to stress that many of the solutions to problematic oceans issues might best be approached in a regional framework.4 The papers by Warner and VanderZwaag illustrate the value of this approach to study (and design of proposed policies), giving attention to the unique contexts of regional geography, climate, types of human settlement, already-existing commitments to terms of general international agreements or special bilateral or multilateral treaties, and various relevant aspects of regional and national cultures. The last study in Part 4 delves into the critical technical issues that must be addressed in the law of the sea with regard to the nature of the regimes for ­activities that were not given attention, or even anticipated as potential problems, at the time of the 1982 unclos agreement’s signing. Dr. Su Jin Park, research fellow in the Korea Maritime Institute, discusses in Chapter 15 one of these now-well-recognized “gaps” that persist in ocean law, viz., the rules ­needed to govern orderly access and benefit sharing of marine genetic ­resources in the abnj. Dr. Park argues for what she terms “a new convergence” of the doctrines of unclos with what she terms “modern conservation measures and tools developed under international environmental law.” Innovative approaches in the ongoing development of ocean law a­ ffecting marine environmental protection are considered in the book’s four ­closing chapters, comprising Part 5. In Chapter 16, Dr. Kathryn Mengerink, an ­authority on environmental law and executive director of the Waitt Institute, a f­ oundation devoted to protection of coral reefs and fisheries, offers a searching analysis of the legal obligations and liability aspects of the seabed mining regime being developed by the International Seabed Authority. Her discussion 4 Alexander, “Regionalism at Sea: Concept and Reality,” in Regionalization of the Law of the Sea [losi, 11th Annual Conference, Nov 1977], edited by Douglas M. Johnston (Cambridge, Mass.: Ballinger Publishing, 1978), 3–16; cf. Nilufer Oral, Regional Cooperation in Protection of the Marine Environment Under International Law: The Black Sea (Koninklijke and Leiden: Brill, 2013), 32–33 (summarizing Alexander’s pioneering work on marine regionalism and its influence on scholarship and policy).

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Introduction

focuses on the key concept of “significant harm,” highlighting the need for ­defining (with reliance upon systematic scientific studies) the environmental effects that are deemed to require avoidance, minimization, or some level of mitigation. Professor Daniel Bodansky of Arizona State University, who has played a prominent role in the national and world policy arenas on the subject of ­climate change, relates in Chapter 17 the ongoing development of International Maritime Organization (imo) initiatives in its regime-building project for addressing the threat posed by global greenhouse gas emissions. Insightful analysis is given to the important differences between the principles of State responsibility that are embodied in the imo regulations (which are ­applied uniformly) versus those embodied in the un climate change regime (in which “common but differentiated responsibilities” are prescribed). Bodansky also addresses highly significant differences in the policy processes by which ­regimes are defined, respectively, by the un and the imo. The focus of discussion shifts to judicial process in Chapter 18, in which the coauthors—Professors Anastasia Telesetsky of the University of Idaho, ­Seokwoo Lee of Inha University, and Hee Eun Lee of Handong International Law School—provide close textual analysis of the 2014 International Court of Justice (icj) ruling in the Whaling in the Antarctic Case. The authors also examine the larger context of the case, embedded in the long history of tensions (beginning with post-World War tensions) between Australia and New ­Zealand, on the one side, and Japan, on the other, with regard to Japan’s whaling operations. The tensions were revived and worsened in the 1980s and 1990s with regard to Japan’s violations of the bluefin tuna conservation agreement involving the same States. The language of the 2014 icj decision, the authors contend, falls short of providing the specificity required to define “scientific” whaling operations, or, equally, to determine the levels of whale kills that are “reasonable,” thus leaving the International Whaling Commission regime in “an uncertain limbo.” In Chapter 19, David D. Caron—professor and former dean of the Poon School of Law, King’s College, London, and a judge on the Iran-US Claims Tribunal in The Hague—and coauthor Stephen Minas, advanced-degree student at King’s, discuss how the declaration of Marine Protected Areas (unilaterally or by agreement among States) in the global oceans vividly illustrate what they term “the combustible interplay between conservation and territorial and strategic competition.” They consider as a major case in point the ongoing ­controversy, involving recent international arbitration proceedings, over the uk’s declaration of the Chagos Archipelago mpa and the legal challenge d­ eployed by Mauritius on grounds that the “hidden agenda” was not to

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Introduction

preserve marine resources but to advance security objectives and foreclose a ­return to their ­historic homes by Chagos residents who were displaced by ­unilateral uk action. The authors also explore the history and status of several mpas in the larger Indo-Pacific Ocean region, pointing out significant variations in the motivations and techniques for advancing either authentic environmental objectives or, instead, diverse “hidden agendas” through variations of mpas—or, in the case of China’s claims in the South China Sea, advancing the drive to attain dominance of a vast ocean region of critical strategic and commercial significance.

…

Both in “looking back” and now looking ahead, then, the papers in this volume illustrate the wide range of political, economic, scientific, and jurisprudential issues that inevitably come into play—often in a determinative way—in the development of the law of the sea. Problems are identified with great clarity by our authors. The adequacy of past solutions, as revealed in a half-century of ocean law history, together with the realistic possibilities for creative resolution of current challenges, are questions to which these papers offer guidance and, one hopes, a measure of useful wisdom as well!

Part 1 Fifty Years of Ocean Law Debates: The Law of the Sea Institute

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chapter 1

The Law of the Sea Institute: A New Forum for Debate of Ocean Law in the 1960s “Decade of Uncertainty” Harry N. Scheiber

Introduction

Today’s ocean law and policy community—jurists, marine scientists, legal scholars, government officials, advocates for environmental and for industry views—generally takes for granted the large array of forums for presentation and debate of their contributions to the global discourse on the oceans. Half a dozen journals or more devoted to ocean affairs that one can term “major” in standing, in addition to scores of law reviews devoted to international law and environmental law, are presently available for publication of articles. They are complemented by the varied academic presses’ book series and publications, to say nothing of the essentially unlimited opportunities for dissemination of papers in online format on the web. Some of these forums are of long standing, the earliest of the major specialized journals, for instance, having begun to publish in 1973. Most of the other venues mentioned above (prominently including, of course, web-based sites) are of more recent vintage. In this entire mix there is one entity, the Law of the Sea Institute (losi), that may fairly be termed “unique.” It deserves this distinction on the basis of the continuity over five decades of its annual conferences and major publications. But by the same token, the date of its founding, in 1965, and the inauguration of its publications program a year later, mean that it is the only one of the journals or conference series specializing in ocean law that pre-dates the convening of the third un Conference on the Law of the Sea (unclos iii) in 1973. Once unclos iii was convened, its deliberations inspired a surge of ­academic and public interest in ocean law and policy, in anticipation that the conference might achieve the goal of a writing/framework convention of universal application—the goal that unclos iii actually realized in 1982 with * Director Emeritus of the Law of the Sea Institute; and Riesenfeld Chair Professor Emeritus and Chancellor’s Professor of Law and History, in the School of Law, University of California, Berkeley.

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the ­completion and signature of the un Convention on the Law of the Sea (­u nclos). With that signing, there was a burgeoning of interest in a­ cademic, diplomatic, and specialized legal and policy circles—a surge of activities ­reflected in a proliferation of conferences, the founding of new academic programs, and the inauguration of new journals on ocean affairs. Moreover, there was increased attention to ocean law and policy in the larger, more diverse communities in the fields of international law, marine industries, and environmental policy. Meanwhile, there was also a spread globally of national-level policy initiatives, especially with respect to fisheries management, coastal ­resources management, and, increasingly, “integrated” approaches to the protection of marine ecosystems. Running through this entire sequence of cascading developments in ocean diplomacy and the concomitant expansion in variety and number of forums for ocean law and policy debate, was one durable constant: the Law of the Sea Institute’s role—through its conferences and its publications—as an invaluable and widely noticed source for exchanges of ideas and informed analysis of the ongoing developments in the field. A retrospect upon the history of losi—the subject of the present Chapter and others that follow here—can therefore be justified, one may argue, simply by dint of its role in ocean law debates during its fifty-year record of conferences and publications. But a fresh look at losi’s institutional founding years is of interest for another reason as well: for it involves our taking account of the context of the times, recapturing the status of ocean law debates and developments in in the 1960s. The Sixties decade was a period of profound uncertainty in ocean law, a fact too often obscured from collective memory because some latter-day commentators tend to portray the history of ocean law development after World War ii as linear, thus minimizing the significance of this major gap in continuity and momentum respecting the progress toward a comprehensive reform and codification of ocean law.1 In fact, progress toward what would in fact be achieved so historically with the unclos signing years later, in 1982, seemed almost hopelessly stalled from 1 A masterful discussion of the unresolved problems and new pressures in ocean law discourse in the aftermath of the 1958 Geneva Conference is provided by the University of Rhode Island scholar Lawrence Juda in his historical study, International Law and Ocean Use Management: The Evolution of Ocean Governance (London and New York: Routledge, 1996), 170–208. ­Another caveat as to the neglect of the 1960s period of deadlock is the classic study by Ann L. H ­ ollick, u.s. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981), 160 ff., with signal authority terming the 1960s period in question here as an “interregnum.”

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the time of the 1960 Geneva conference’s failure until the project was given new life by the un General Assembly at nearly the end of the decade. Reflecting anew on the era of uncertainty in the 1960s provides us with a benchmark that will underline the enormous magnitude of changes in the geopolitics of the marine economy, oceans science and technology, and the legal ordering of the oceans that have been so vastly transformed in the fifty years since then. The founding of losi in 1965 was an effort to address the ­issues that were causing a deadlock in the debates of ocean law reform, inspired by a vision that it was time to search for ways that could revivify the reform process.

The Founding of losi: “The Right Place at the Right Time, with the Right Idea”

We begin with an accounting of how the vision and entrepreneurial talent of a few key individuals achieved the institutional founding of losi in the space of only a few months; this was during the mid-1960s period when, as we have seen, hopeful interest in the long-desired project of designing a comprehensive ocean law regime was at low ebb. The site was the University of Rhode Island (uri), one of the smaller public research universities in the United States and located in the nation’s smallest state. Its research laboratory of marine studies, situated a few miles from campus on Narragansett Bay, with a faculty of fewer than a dozen scientists, had been reorganized in 1961 as the Graduate School of Oceanography. This move stemmed from the intent of the university’s administration to broaden its oceanographic research and teaching agendas, and in the process, of course, also to give it a higher profile among the small number of oceanographic institutions nationally—then dominated by the Scripps Institution of Oceanography (sio) in the University of California, where the nation’s only doctoral program in oceanography was then being offered, and by the Woods Hole Oceanographic Institute in Massachusetts.2 2 Smaller-scale marine research stations were located in the State of Washington, in M ­ iami, and in Texas. (Oral History of John Atkinson Knauss, conducted by Laura Harkewicz, ­November 2, 2005, http://scilib.ucsd.edu/sio/ora;/Knauss.pdf.) In fisheries science and stocks management, an important center of scientific work and advanced education, dating from the 1930s, was located at the University of Washington. Numerous other graduate universities also trained scientists with oceanographic interests, a few prominent examples including: in geology, New York University and Columbia University, and in zoology and marine biology, Harvard, uc Berkeley, Stanford and Michigan. The 1960s decade, meanwhile, was also marked by a surge in capacity of the nation’s

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Appointed in 1962 as first dean of the new uri graduate school was John A. Knauss (1925–2015). He had earned his doctorate at Scripps in 1959 as a student of Roger Revelle, a geophysicist and oceanographer who was an iconic figure in the field. Knauss was already an experienced figure in research support administration, having worked on grant programs in the Office of Naval Research (onr) in Washington in addition to serving in the Navy as a meteorologist during World War ii. His publications from his doctoral work at Scripps, a study of the Cromwell Current, had given him by 1970 a solid reputation in oceanography for leading-edge research on Pacific Ocean circulation. On first taking up the deanship at Rhode Island, Knauss thought of his mission as one of following the sio model, which by the 1940s had become committed to an interdisciplinary approach in both teaching and research in biological, chemical and physical oceanography; beginning in 1947 sio also coordinated an ambitious ecosystem study of the California Current, in response to the collapse of the California sardine fishery.3 ­oceanographic research fleets, reflecting the expansion of studies in these various oceanographic institutions and the flow of federal support, on which see the statistics and accompanying analysis in T.K. Treadwell et al., History of the u.s. Academic Oceanographic Research Fleet and the Sources of Research Ships (1988), http://scilib.ucsd.edu/sio/hist_oceanogr/ treadwell-vm453t84_1988.pdf. In addition, the u.s. Navy was engaged continuously in multifaceted deep-sea research during the post-World War ii years; and in coastal waters the state fisheries laboratories in California, Washington and several Atlantic Coast states also were conducting a variety of significant localized studies in applied fisheries biology and marine resources management. 3 Knauss, “Oral History,” pp. 26–29. Knauss’s textbook, Introduction to Physical Oceanography, widely used in earlier editions, was recently published with a coauthor, Newell Garfield, in a third edition (Long Grove, Illinois, 2017). Two studies by the present author—Harry N. Scheiber, “Pacific Ocean Resources, Science, and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries, 1945–1970,” Ecology Law Quarterly, 13 (1986), 394ff. [hereinafter cited as “Chapman and the Pacific Fisheries”]; and Scheiber, “California and the Founding of Modern Fisheries Oceanography: calcofi’s Early Years, 1947–1964,” CalCOFI Reports, 31 (1990), 63–83—provide historical analyses of the California Current project, which mobilized the coordinated resources of sio, the federal government, the State of California, the University of California at Berkeley, and Stanford University, to design and conduct a synoptic survey of a vast area of the offshore Pacific ocean waters. The initial purpose was to collect and analyze data that would explain the collapse of the California sardine fishery, but it grew in scope into a major study of ocean and fishery dynamics over an enormous offshore area of California and adjoining jurisdictions. The data from this project, and the ecosystem approach to fisheries studies that it advanced, would prove to be invaluable for basic fisheries dynamics research and then for a later ­generation of oceanographic and atmospheric studies benefiting from CalCOFI’s documentation of longterm climate change.

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Shortly after arriving in his new decanal post, Knauss was approached by Lewis Alexander (1921–2013), a geography professor who had joined the Rhode Island faculty two years earlier as a senior faculty member. A highly regarded scholar in the field of political geography, Alexander had become deeply interested in the prospect of combining in systematic fashion the concerns of ocean law and policy into a creative, integrated relationship with the established scientific areas of ocean studies. He was joined in approaching Knauss by a junior colleague on the faculty, Dale Krause.4 They proposed to Knauss that their university had a unique opportunity to seize the lead nationally in this emerging area of intellectual adventure—a quest to expand the outer boundaries of ocean studies, and thereby to take advantage of what they ­believed was the dawning of a new commitment by the scientific community and the u.s. Government to advance ocean science and education. Knauss was a sympathetic listener and willing ally, for he had already ­committed himself as one of three national leaders (with Athelstan Spilhaus [1911–98] and u.s. Senator Claiborne Pell [1918–2009]) in a highly organized movement, begun in 1963, to promote a major program that would be designated as the National Sea Grant College Program for support of education and research in ocean subjects at selected universities.5 In this campaign the leaders organized a national conference of more than two hundred educators and ocean scientists, held in 1965, the same year as the formal founding of losi, that endorsed a proposed statute to establish the new program. (The legislation was authored by Senator Pell and was successfully voted into law in 1966; since then the Sea Grant Program—as of this writing, facing possible deep funding cuts or even termination in the Trump administration’s preliminary budget—has played a major role in the support of ocean science and policy studies in America.6) 4 See John Briscoe’s memorial study of Lewis Alexander, in Chapter 5, below. Krause would later hold high-level positions in unesco, including directorship of the Ocean Sciences Division, based in Paris. 5 Senator Pell (representing Rhode Island) was prominent in Congress as a champion of naval research and oceanographic science; Spilhaus, famous as the inventor of the bathythermograph, was dean of engineering (later the university’s Institute of Technology) in the ­University of Minnesota and chairman of the National Academy of Sciences Committee on Oceanography. The term “sea grant college” was adopted for its similarity to the term “land grant college” that refers to public universities in the United States whose establishment was aided by proceeds from sale of federal land grants under terms of an act of Congress (the Morrill Act) of 1862. 6 “Sea Grant: Fifty Years History,” available at sgw2016.seagrant.gso.uri.edu; see also obituary on Knauss, available at www.gso.uri.edu/blog/gso-bids-farewell-to-dr-john-knauss; Margaret

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In his oral history, an interview conducted in 2005, Knauss recalled the larger context of the discussions he had with Alexander and Krause; he left no doubt that he appreciated fully the force of their arguments for bringing policy, law, and technology into an expanded agenda for the School of Oceanography and the university more generally. Because of his deep involvement in leadership of the lobbying movement for the Sea Grant College law, Knauss was already well informed as to larger issues in public policy and science that were at stake. At the time, he said, “a kind of underground talk was going on,” revealing a growing sense in academic, scientific, and governmental circles that a national and international debate on reform of ocean law might be soon revived.7 There was a rising sentiment in these circles that there was a need to define systematically the u.s. national interest in ocean affairs, with attention to specific policy changes and the related implications of any new u.s. policies vis-à-vis international ocean law.8 President Lyndon Johnson and Vice President Hubert Humphrey were being reported as favorable to the view that government funding for oceans research should be stepped up, including the initiation of administrative reorganizations that would be designed to give greater salience to ocean issues.9 Leiden, “John Knauss and Fifty Years of Service to Oceanography,” Oceanography, 14 no. 2 (2001); J. Miloy, Creating the College of the Sea: The Organization of the Sea Grant Program (Texas A&M University Sea Grant College Program Publication TAMU-SG-83-604) (1983); William Nierenberg, “Athelstan Spilhaus,” Proceedings of the American Philosophical Society, 144 (Sept. 2000), 344–347. 7 Knauss, “Oral History,” 28. See also n. 9 of this chapter, below. 8 The uncertainties as to direction of u.s. policy in the 1960s decade and the languishing of efforts for ocean law codification internationally are discussed insightfully in Hollick, u.s. Foreign Policy, 160–195. 9 See, inter alia, Edward Wenk, Jr., The Politics of the Ocean (Seattle: University of Washington Press, 1972), on the u.s. government’s administration and the politics of ocean research support. The Navy was becoming more aggressive, however, in its advocacy of spending programs for support of its military R&D. A Navy document, “Ten Year Program in Oceanography” (with much of the text classified, hence not public), called for $800 million for Navy projects; the federal government’s Interagency Committee on Oceanography, which was chaired by the Assistant Secretary of the Navy for R&D, proposed a long-range oceanographic plan for 1963–72, proposing expenditures of $1.3 billion for the Navy and $1.5 for ­civilian oceanography. Civilian proposals of larger scale followed, including The National Academy of Sciences Commission on Oceanography report in 1964, contending that $1,389,0000 ­invested in oceanography over fifteen years would bring a four times return in benefits to society. See E.W. Seabrook Hull, “Toward a Public Policy on the Ocean,” Impingement of Man on the Oceans, edited by Donald W. Hood (New York: Wiley-Interscience, 1971), 645. (These documents on funding were doubtless well known to Knauss and other founders of losi in 1965.)

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Meanwhile the u.s. Navy, though it was regarded as having weakened somewhat in its commitment to non-military blue water research projects, was known to be engaged in efforts to raise consciousness of civilian leaders as to how its operations at sea would be impacted by the 1958 Geneva conventions then pending ratification. The main focus of Navy planners’ concern was the danger that proclamations of extended offshore jurisdiction by coastal and archipelagic states would obstruct navigation by both surface ships and submarines. In addition, the Navy was worried about the possibility of new limitations on military uses of the seabed, for both offensive and defensive purposes, as were being proposed by the coalition of less developed countries and ngo-type organizations in the United States and Europe.10 In light of his former professional positions in the Navy’s Office of Naval Research, Knauss would have been sensitive to those security concerns. Consequently, he would have readily appreciated the merits of Alexander’s ­arguments, as a geographer, contending for an initiative that would stimulate debate on the security questions and other issues related to areal “zoning” of ocean space. All of those issues were a core element of the legal questions left unresolved by the four Geneva conventions of 1958 and the failed 1960 Conference. Moreover, by virtue of his temperament as well as his professional ­experience and current involvement in lobbying, Knauss needed no sustained persuasion to accept Alexander’s contention that there was an urgent need to mobilize legal and scientific expertise, in a collaborative mode, to address these and other outstanding questions in ocean law. 10 Hollick, u.s. Foreign Policy, 183–190. A valuable source is William T. Burke’s observations on military considerations among the unresolved issues in ocean law in the mid-60s, in a long paper Burke prepared for the Stockholm International Peace Research Institute (sipri): Towards a Better Use of the Oceans (Stockholm: Almqvist and Wiksell, 1968). This paper was written while Burke was also deeply involved in losi’s initial conferences and publications and also was organizing a major conference on military issues for the Mershon Center at Ohio State University. See also Wilfred A. Hearn [Admiral and Judge Advocate General of the u.s. Navy], “The Role of the Navy in the Formulation of Federal Policy Regarding the Sea,” Natural Resources Lawyer, 1, No. 1 (1968), 23–31; and Lawrence W. Martin, “The Role of Force in the Ocean,” with comment by Linton Wells in Perspectives on Ocean Policy: Conference on Conflict and Order in Ocean Relations (Washington, D.C.: Ocean Policy Project, Johns Hopkins University, 1974), 33–60. For the security ­perspective more broadly, see Chapter 6 in this volume, by James Kraska; and also Kraska, “From the Age of Discovery to the Atomic Age: The Conflux of Marine Science, Seapower, and Oceans Governance,” in Science, Technology and New Challenges to Ocean Law, e­ dited by Harry N. Scheiber, James Kraska, and Moon-Sang Kwon (Leiden and Boston: Brill/­Nijhoff, 2013), 55–62.

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An increasingly prominent item in the agenda of outstanding ocean i­ssues in 1965 pertained to the minerals and energy industries: “There was some concern,” Knauss recalled, “about … using the ocean for more things” beyond navigation and deep-sea fishing; and more specifically, “there [were] people thinking that maybe manganese nodules would be of economic importance.”11 Thus did Knauss rather laconically refer to the question of seabed mining—a concern that actually was then dramatically attracting attention from industry, government agencies, and oceanographers in the discourse on future uses of the world’s oceans. The intense interest focused on seabed mining’s potential highlighted a need for resolving the conflicting views concerning several key rules of international law that should govern ocean mining projects.12 The interrelated legal questions that were then at the forefront of contention, were the following: • Whether the legitimate extent of the territorial sea of coastal nations should be recognized as in the range of six to twelve miles, or to an even greater distance from the coastline, rather than the traditional three miles; • Whether a coastal state, in the waters it declared as a contiguous zone, under terms of Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, might legitimately exercise jurisdiction over fisheries and other resource exploitation, rather than jurisdiction only in specific policing matters such as smuggling, immigration, and health; • What should be the specific scientific process and statistical standard for determining whether the assessment of fish stocks by a management ­regime conformed to the standard termed in the 1958 Fishing Convention as “Optimal Sustainable Yield”; • Whether the legal outermost boundary of the continental shelf was too ­indeterminately specified in the 1958 Convention, and so required redefinition; and • What new institutional structure and what internationally agreed rules should be created for the control of deep seabed “ocean drilling,” possibly including a comprehensive regulatory regime that would assign property rights, damage liability, and otherwise control future deep seabed mining for manganese or other mineral treasures in the area beyond the limits of coastal state jurisdiction.13 11 12

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Knauss, “Oral History.” The specifics of the debates on some of the zoning issues aired at the initial losi ­meetings are considered further by Clive Schofield in Chapter 2, below, as well as in later sections of the present Chapter. Knauss, “Oral History,” 28.

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In the event, Knauss readily appreciated the urgency and value of what Alexander and Krause were proposing, and so he enthusiastically endorsed their project. He then won immediately the support of the university’s president for the initiative. Thus in February 1965 the university officially announced establishment of the Law of the Sea Institute as a unit associated with the School of Oceanography, but with ties to other disciplinary departments of the university. An unusual element in the losi organizational structure, given the vital connection to uri, was the establishment of an executive committee— subject to expansion in number of members without restrictions as to institutional affiliation—as its governing body. (Only a few years later, this feature of its directorate would become a source of contention in relations with the uri administration, culminating in transfer of the losi in 1977 to a new base at the University of Hawai’i.14) Reflecting later on why he thought the losi project was organized and brought to life so efficiently in 1965, Knauss concluded: “We just happened to be in the right place at the right time, with the right idea.”15 The right place, because of the nimbleness with which a small state university could, and did, launch such a project without first enduring an extended bureaucratic review process.16 The right time, because of the rising evidence (whether “underground” or otherwise) that new national governmental funding and political support for oceans research seemed likely to be achieved, after many years of languishing interest by national politicians and policy officials. And the right idea, because there had been a severe loss of momentum in international oceans diplomacy, after the failure of the 1960 Geneva conference; and with the inherited Grotian order of ocean law breaking down and so manifestly ­beyond restoration, new initiatives were vitally needed to resolve the heightening conflicts globally with regard to the contested rules governing virtually all elements of the ocean law regime.

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Ibid.; and Knauss, “Commentary,” in Ocean Governance Strategies and Approaches for the 21st Century, edited by Thomas A. Mensah [losi Proceedings, 1994] (Honolulu: losi, 1996), 593–595. See Afterword of this Chapter. Knauss also remarked in his Oral History that it was “the right place” not only because his university was amenable to a rapid organization of the project but also because it was located only 170 miles from New York, an easy train ride or drive for un staff and delegates to the General Assembly and to the ocean related meetings held at the headquarters there. See Afterword of this Chapter.

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When uri approved the losi project in February 1965, it was announced that the Institute would be activated immediately under the directorship of Lewis Alexander. As Alexander had proposed, losi would undertake as its initial project the organizing of a conference that would bring together experts from law, industry, science and policy to provide their respective disciplinary and sectoral perspectives on the major outstanding issues in ocean law and ­policy.17 An executive committee was named, consisting of Alexander, Knauss, and Krause, plus two outsiders: first, the economist Francis Christy, Jr. of the Resources for the Future Foundation and author of influential writings critical of contemporary practices in fisheries management, and, second, law professor William T. Burke of Ohio State University, who had already established his reputation internationally as a major scholar in ocean law. At this same time Burke (1926–2014) was also active in organizing an ambitious conference at Ohio State University on military issues in relation to ocean law.18 A broadening of their university’s curriculum in ocean studies was one of the founding group’s goals (one that would be fully realized during the ensuing decade), with the concomitant advantage of raising the program’s profile more generally in the academic world. However, the immediate goal for losi was narrowly focused: It was to provide a prominent authoritative forum for airing and debate of diverse viewpoints on key oceans issues, encouraging free interchange among experts from the various fields of specialization in which they were prominent.19 This would become the model for the fifty years of future activities of the new institute. 17

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Expanding the uri teaching program with new interdisciplinary faculty appointments would be a long-term objective that Knauss pursued successfully as dean and later provost at uri. But for losi itself, the initial project was for a major conference on ocean issues, with publication of the papers to follow. In subsequent years, Knauss’s long-term objective was achieved, as uri reorganized its structure to establish a Department of ­Geography and Ocean Affairs, with Professor Alexander again playing a lead role. This was a project sponsored by his university’s Mershon Center for Education in ­National Security. Burke and Christy took opposing positions on internationalization linked with demilitarization, as discussed further, below, this Chapter. It was fully anticipated by the founding group that the interests of national governments, organizations and agencies, as well as of ideological factions within academic disciplines, would inevitably find expression in specific presentations. However, papers presented by individuals advocating legal or policy reforms explicitly to serve particular interests would provide the opportunity, through free and open debate, for the critical examination of such positions and for advancement of the arguments for opposed positions. See, e.g., Chapters 2 (by Clive Schofield) and 3 (by Sherry Broder), below, for detail of some of the losi debates of this sort.

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Not least important in this plan for the Institute was its potential for providing guidance to the u.s. Government—which is to say, there was a specific objective of examining policy options that ought to be under consideration in Washington with regard to the promotion and regulation of ocean uses. At the forefront, in the latter arena of policy, was the broad range of vital questions in international law, listed above, that had been left unresolved after the failure of the un conference on law of the sea in Geneva in 1960. Resolving all these questions required international agreement on regimes for each of the “zones” that the 1958 conventions had defined (albeit with varying degrees of specificity) and definition of the rights and obligations that would prevail for each category of oceans use.

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The zoning of ocean space was quintessentially a political geographer’s issue; and unsurprisingly, it was with a view toward encouraging discussion of the principles that should dictate regimes to establish their areal extent—and to conceptualize the functions of—ocean zones, that the geographer Alexander shaped the program for the losi inaugural conference. It would be a weeklong inaugural event, held on the uri campus in August 1966. And indeed, the book that contained the papers from the initial conference was edited by Alexander and published under the title Law of the Sea: Offshore Boundaries and Zones.20 Section 2 of this Chapter contains further discussion of the institutional beginnings of losi, together with notice of individuals who contributed in important ways to the ocean law and policy debates in the Institute’s initial conferences, held in 1966 and 1967. These initial events established a model for the annual conferences that followed. They also set the standard of quality that the Institute has sought to maintain in subsequent years. Then, through an analysis of those conferences (and of some of the most important papers presented in “one-off” symposia and conferences on oceans issues that were held in other forums in the 1960s), I have sought to construct a snapshot view of the state of play in ocean law debates that addressed the uncertainties of the complex and swiftly changing background of geopolitical and technological developments of that era.

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Law of the Sea: Offshore Boundaries and Zones, edited by Lewis Alexander (Columbus, Ohio: The Ohio State University Press, 1967), hereinafter cited as Alexander, Offshore Boundaries.

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losi and the Discourse on Ocean Law

Looking back at losi’s founding, it would add a dramatic note if we were able to describe the organization as being of “humble origins.” The truth is quite to the contrary, however, for the founders obtained generous outside funding, mainly from the Office of Naval Research (Knauss’s earlier professional base). By contemporary standards it was a grand enterprise. In combination with ­internal university funding, the onr grant was sufficient to underwrite a threeday conference at the University of Rhode Island, with twenty-seven program contributors and about one hundred participants in total; they included government officials, marine engineers and scientists, business executives, legal scholars, and social scientists. Significantly, nearly all the program presenters in the i­ nitial conference were from the United States, rather than its having the kind of wide representation of nationalities that would become the norm at losi conferences and publications starting ten years later. losi obtained further support from the university and the Office of Naval Research—with additional grants from two other national agencies, the Bureau of Commercial Fisheries and the Environmental Science Service ­Administration—to fund a second major conference. It was held in June 1967, again in Rhode Island. Nearly forty participants had places on the program, with considerable overlap of individuals from the first conference. Panel sessions were organized on fisheries; coastal and ocean seabed drilling and ­mining, with attention mainly to the prospect of manganese nodule mining; marine scientific research; and u.s. policies in international oceans diplomacy.21 Leading Personae in the Debates The two initial losi conferences were notable not only for size and the unusual multiplicity of disciplines represented, but, above all, for the eminence of so many of the presenters in their respective fields—in both respects presaging the essential features of losi activities in subsequent years. Some of those presenters also contributed to ocean law debate in other forums of that day, as will be noted in the following discussion. Of exceptional interest in the initial conferences were two senior figures of international prominence in recent ocean-law diplomacy: Arthur H. Dean 21

Papers presented at the second conference were published by losi itself, in a photooffset volume entitled The Future of the Sea’s Resource: Proceedings of the Second Annual Conference of the Law of the Sea Institute, June 26–29, 1967), edited by Lewis M. Alexander (Kingston, ri: Law of the Sea Institute, 1968), hereinafter cited as Alexander, Future of the Sea’s Resources.

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(1898–1987), member of the prominent Wall Street law firm Sullivan and Cromwell, and head of the u.s. Delegation at both the 1958 and 1960 Law of the Sea Conferences at Geneva; and second, William C. Herrington (1903–89), a respected fisheries scientist who had directed oversight of Japanese fisheries and whaling as a senior civilian officer in the Allied Occupation in Japan, had been lead u.s. negotiator for the 1953 tripartite North Pacific International Fisheries Convention, and had led the American delegation in the 1955 scientific meeting in Rome preparatory to the 1958 Geneva Convention on the Law of the Sea (unclos i). Herrington had been a major figure in shaping u.s. policies on fisheries and other aspects of ocean uses while serving during 1951–66 as a senior-level officer in the Department of State.22 Another internationally recognized participant who spoke at both the 1966 and 1967 meetings was Wilbert C. “Wib” Chapman (1910–1970), former dean of the University of Washington School of Fisheries and then, during 1948–53, Herrington’s predecessor (and first appointee to hold the fisheries position) in the State Department. While in the State Department, Chapman was the architect of the Inter-American Tropical Tuna Convention, and he led in other u.s. efforts to form multilateral regional fisheries agreements.23 Chapman had been the single most prominent leader in the post-World War ii campaign for adoption of the Maximum Sustainable Yield (msy) standard for fisheries regulation. After leaving his government post, he had become a spokesman 22

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Amy L. Toro, “Transformation in Fisheries Management: A Study of William C. H ­ errington,” in Oceanographic History: The Pacific and Beyond, edited by Keith R. Benson and Philip F. Rehbock (Seattle and London: University of Washington Press, 2002), 423–442. (Toro’s ­paper, the only study of its kind on Herrington published to date, is an insightful analysis of Herrington’s long career along with commentary on the fascinating background of shifts in dominant views of effective fisheries management.) Herrington’s role as the effective czar of Japanese fisheries and whaling reconstruction during the Occupation (an episode in the history of Japanese whaling long forgotten in the ensuing international debates of the International Whaling Commission moratorium and other iwc policies), and his creative role in the formulation and advancement in u.s. diplomacy of the “abstention principle,” are recounted in a book by the present author: Harry N. Scheiber, Inter-Allied Conflicts and Ocean Law, 1945–53: The Occupation Command’s Revival of Japanese Whaling and Marine Fisheries (Taipei: Academia Sinica, 2001); my research is based on Herrington’s papers, on primary documentation in American, uk, Australian, New Zealand, and Japanese governmental archives, and on interviews with Herrington, several Japanese fishing industry and government officials, and u.s. ­diplomatic and academic officials. Harry N. Scheiber, “u.s. Policy, the Pacific Tuna Economy, and Ocean Law Innovation: The Post-World War ii Era, 1945 to 1970,” in Bringing New Law to Ocean Waters, edited by David D. Caron and Harry N. Scheiber (Leiden and Boston: Martinius Nijhoff, 2004), 29–54.

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and lobbyist for the American tuna industry in both u.s. policy debates and international conferences. He served as a leading member of industry advisory teams for the u.s. delegations in major international fisheries meetings and was a respected (though certainly controversial) analyst of ocean resource uses. Chapman had brought to international discourses since the end of World War ii a brilliant mind and extraordinary knowledge of fisheries science, the industry, and the domestic policies of States throughout the world—and, as  was always remarked of him, an effectiveness in diplomacy born of his ­capacity for winning authentic and enduring friendships internationally, with supporters and opponents alike.24 All the aforementioned individuals lent a vital element of gravitas to the discussions at the inaugural losi conferences in 1966 and 1967. Another figure long experienced in international law was Edward W. Allen, a Seattle lawyer who had written both polemical pieces and scholarly studies of u.s. fisheries policies and international economic relations, and who served as legal counsel to the Pacific Coast and Alaska coastal salmon fishing industry. As a prominent advocate of extended coastal fisheries jurisdiction, Allen had written and lectured widely, presenting his staunchly nationalist views warning of the ­American Pacific coast industry’s competition from Japan; and thus he supported Herrington’s efforts to promote the “abstention doctrine” for purposes of protecting the Northeast Pacific area’s American and Canadian salmon fleets from Japanese competition.25 Following Herrington’s success in negotiating the I­ nternational North Pacific Fisheries Convention in 1952, Allen was appointed to serve as one of the u.s. members of the commission created by the inpfc to oversee implementation of the tripartite agreement.26 24

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Scheiber, “Chapman and the Pacific Fisheries,” 383–534, is the only biographical study published to date on Chapman and his influential career as biologist, museum curator, lobbyist for marine science, educator, State Department official, and industry spokesman. Burdick Brittin, a u.s. Navy officer who had been attached to the u.s. Delegation at the 1960 Geneva conference, recalled that when Chapman arrived on the floor, after deliberations had already begun on the first day, everything came to a prolonged halt while delegates and staff members rushed to greet him! (Scheiber, private interview of Capt. Brittin, who was author of International Law for Seagoing Officers [1956 and later editions], now under authorship of Craig Allen, in a 6th edition, published by the Naval Institute, 2014.). Scheiber, “Chapman and the Pacific Fisheries,” 444–447. On the campaign to implement the 1945 Truman Fisheries Proclamation, and on the politics and diplomacy of the abstention policy pursued by Herrington, see ibid., 430–445, and inter alia, Harry N. Scheiber, “Origins of the Abstention Doctrine in Ocean Law: ­Japanese–u.s. Relations and the Pacific Fisheries, 1937–1958,” Ecology Law Quarterly, 16 (1989); and id., “Reflections on the Abstention Doctrine in the Diplomatic History of

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Of comparably eminent stature were other participants in the inaugural conferences who were based in the field of international law. Requiring special mention is Myres McDougal (1906–1998), professor of international law at Yale, mentor to several of the rising generation of scholars in ocean law, and coauthor with his former student William T. Burke of the recently published book, The Public Order of the Oceans (1962)—a treatise presenting detailed critiques of each of the four 1958 Geneva agreements. The authors argued that when recognizing the elements of real power that had been deployed in the negotiations, analysts should abandon their dedication to the legal forms and abstract norms that were so seductively attracting their main attention. Their book would attain the enduring status of a classic, albeit a controversial one, in the literature of ocean law for its advocacy of what was later termed its “functional” approach to the subject, in opposition to the traditional ­doctrinal-analytical framework used by “textualists.”27 The functionalist contention was that, to understand accurately the forces that animated the ocean-law negotiators at Geneva in 1958, or in international ocean affairs generally, commentators must pull aside the curtain consisting of the “sterile exercises” of doctrinal debates which rested upon diverse precedents drawn from customary law; thereby would be revealed for realistic analysis the full context of power relationships, ideological conflict, and vested economic interests that had produced the four 1958 conventions.28

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­Modern Ocean Law,” in The Law of the Sea: From Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos, edited by Lilian del Castillo (Brill International Law e-Books on Line, 2015). Douglas Johnston, The Historical Foundations of World Order: The Tower and the Arena (Leiden: Martinus Nijhoff, 2008), 34ff., includes as a featured element in its broad historical analysis a perceptive discussion of McDougal’s theories of power relationships and international law. A fascinating sidelight as to the classic Public Order of the Oceans is that in 1956–57 McDougal initially invited Shigeru Oda to be coauthor; but as Judge Oda wrote years later, he felt it imperative to withdraw from the project, since he was unable to adapt to the application of the theoretical underpinning (“the eight-value or policy-oriented approach”) that McDougal wanted for the book. Consequently McDougal engaged William Burke as coauthor; compatibility of their viewpoints was evident. (Shigeru Oda, Fifty Years of the Law of the Sea: … Selected Writings [The Hague: Kluwer Law, 2003], 640.). Myres S. McDougal and William T. Burke, “The Community Interest in a Narrow Territorial Sea: Inclusive versus Exclusive Competence Over the Oceans,” Cornell Law Quarterly, 45 (1960), 177ff., 239. In earlier years Stefan A. Riesenfeld of uc Berkeley School of Law and Stanford University law professor Joseph Walter Bingham had introduced the “legal realist” approach into their commentaries on ocean law; but they were advocates of extended coastal state jurisdiction over offshore waters, directly the opposite of what McDougal and Burke contended for, viz., a norm that would limit the extent of coastal

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In several other important national forums of the losi start-up years, Burke and McDougal were called upon to set the stage, as it were, with opening papers in which they spelled out the legal issues that were then in play; these papers provided systematic introductions to interdisciplinary discussions of ocean governance issues. In these presentations, they hewed closely to a format of seriatim analyses of the four 1958 Geneva conventions, largely in a critical vein and expressing pessimism about future prospects in each legal and policy area those conventions addressed.29 Burke was then professor of law at Ohio State University and was a member of the five-person losi founding executive board.30 He played an important role in planning the initial losi

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state j­ urisdiction offshore only to the width of a narrow territorial sea. Bingham’s position on ocean law was grounded in his systematic philosophical analysis of law, presented in numerous articles published prior to the 1930s writings on ocean law. Bingham’s largely forgotten role in the early Legal Realism movement in the United States is discussed in Harry N. Scheiber, “Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law,” Law and History Review, 26 (2008), 649–678. The functionalism of McDougal and Burke, the signature theme in what was often termed the “New Haven School” theory of international law, was derivative from the ­Legal Realism movement generally but also especially from the ocean law writings of Riesenfeld and Bingham. In any event, numerous of McDougal’s colleagues on the Yale Law faculty had become strongly committed to the Legal Realism approach in legal scholarship and were central figures in that movement from the 1930s onward. (Laura Kalman, ­Legal ­Realism at Yale, 1927–1960 [Chapel Hill: University of North Carolina Press, 1986].) The realist position on ocean law of Riesenfeld, who had been a research associate working with Bingham in the late 1930s, was set forth in his now-classic treatise, Protection of Coastal Fisheries Under International Law (Washington, d.c.: Carnegie Endowment for International Peace, 1942); see also Scheiber, “Chapman and the Pacific Fisheries,” 437–441. McDougal, “Revision of the Geneva Conventions on the Law of the Sea,” in Marine Resources Symposium, Natural Resources Lawyer, 1 No. 2 (1968), 19–28; and Burke, “A Negative View of a Proposal for un Ownership of Ocean Mineral Resources,” in ibid., 1 no. 1 (1968), 42–62. A reappraisal of McDougal and the New Haven School and its “policy-based knowledge structures” is in Hengameh Saberi, “Yale’s Policy Science and International Law … ,” in The Oxford Handbook of the Theory of International Law, edited by Anne Orford and Florian Hoffmann (Oxford: Oxford University Press, 2016). As already mentioned, above, in 1965 Burke was also engaged in organizing a major conference at his university for analysis of maritime and related security issues in international law, a subject that was left largely outside the purview of losi conference agendas, which were concerned with peaceful uses of the oceans. In 1966 he published his important monograph, Ocean Sciences, Technology, and the Future International Law of the Sea (Columbus: Mershon Center, Ohio State University, Pamphlet Series, No. 2, Jan. 1966),

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conferences, and he collaborated closely with Alexander in the editing and publication of the first losi proceedings volume in 1967.31 Other prestigious international lawyers involved in the losi conferences were Richard Baxter, of the Harvard Law School faculty; Richard Young, a ­private lawyer and author of an influential scholarly article on the continental shelf in developing ocean law; L.F.E. Goldie, professor of law at Syracuse University who was then engaged in research on the seabed mining issues ­implicated in the 1958 Geneva conventions; Quincy Wright, professor of political science and international law at the University of Virginia, formerly at the University of Chicago, who was a leading writer on the law of war and had been president of both the American Society for International Law and the American Political Science Association; and the Washington, d.c. attorney Northcutt Ely. Two additional scientists of notable international standing, Don McKernan and Milner B. Schaefer, were also among the leading presenters at the first losi conferences. McKernan was a fisheries management expert and had served as the first director of the u.s. Bureau of Commercial Fisheries. In 1966 he had recently been appointed as the Department of State’s top fisheries officer, succeeding Herrington (who himself had succeeded Chapman) in that post.32 hereinafter cited as Burke, Ocean Sciences. Burke’s paper delivered to the initial losi conference included concise summaries of sections of this later book pertaining to specific challenges to existing international law that he anticipated would arise from continuing scientific and technological advances and from new projects such as seabed mining engineering proposals and innovations in the partially secret Navy undersea program. 31 Alexander, Offshore Boundaries. Alexander spent several months at Ohio State University, in Columbus, as a visiting fellow in the 1966–67 academic year; Burke and he were cooperating closely in that period in the planning of the second losi conference then being organized for meeting in Rhode Island in June 1967. As mentioned above, Burke also served as one of the two “outside members” of the inaugural five-person losi executive committee. Fully thirty-five years later, as is recounted by Craig Allen in Chapter 4 and the Afterword section of this chapter, below, Burke was similarly instrumental in the reorganization and establishment of losi at its new headquarters in the School of Law, uc Berkeley. 32 It is noteworthy that University of Washington (uw) graduates and faculty members played a central role in post-World War ii debates on fisheries and in policy development: In addition to Chapman and McKernan, Herrington had been associated with uw during his early career as a scientist in the staff of the Halibut Commission, which was headed by uw professor William F. Thompson, a great luminary in fisheries management and the doctoral dissertation supervisor and mentor of Chapman, McKernan, Milner B. Schaefer, John L. Kask (all eminent in the field) and numerous other marine scientists and fisheries administrators of the 1940s–1960s period who had also held early career

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Schaefer, a senior professor and head of the Institute for Marine Research at Scripps, was a pioneering scientist in the development of fishery-dynamics theory. Schaefer’s “equilibrium yield” fishery population model, developed during his ten-year tenure as director of the Inter-American Tropical Tuna Commission (iattc), was acclaimed as “probably the single most ­important conceptual tool” in the literature on “dynamics of an exploited natural population.”33

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research positions under Thompson’s supervision. The economist James Crutchfield was a uw faculty member; and the university’s School of Fisheries had sponsored a series of conferences on scientific management that became major forums publishing debate of the efficiency-oriented approach that the economists were pressing as a better alternative to the prevailing management theories based on the Maximum Sustainable Yield (msy) concept. Withal, “the uw Mafia,” the term often deployed informally (usually admiringly) by insiders with regard to the uw alumni and faculty influence in ocean law debates, was well merited. (See Scheiber, “Chapman and the Pacific Fisheries,” 414n.). Schaefer’s “equilibrium yield” fishery population model, a modification of “pure” msy, was well recognized; the quotation above is from Gerald Paulik’s praise of Schaefer’s scholarship, reported in Deborah Day, Milner Baily Schaefer Biography, http://scilib.csd .edu/sio/biogr/Schaefer _Biogr.pdf; see also Milner Schaefer, “Biological and Economic Aspects of the Management of Commercial Marine Fisheries,” Transactions of the American Fisheries Society, 88 (1959), 100–104; and discussion in Douglas Johnston, International Law of Fisheries: A Framework for Policy-Oriented Inquiries (New Haven and Dordrecht: Yale University Press and Martinus Nijhoff, 1987), 49–51. There has been some recent writing in the field of history of science in which the significance of Schaefer’s contributions, and more generally of msy theory and its applications (including the positive results indisputably achieved in several major fisheries), have been downplayed or represented in the most negative and dismissive terms. This under-estimation of Schaefer in recent days owes much to the way in which one of Schaefer’s contemporary (1960s-70s) critics, the distinguished biologist Dr. Sidney Holt, has enjoyed a long and productive life (to the advantage of all scholars and “fisheries people” generally in the oceans community) and has gone on to re-fight the old battle and declared a victory for his views, leaving the msy idea to be buried, to “rest in peace” forever. Holt portrays msy as a doctrine that “both enthrones and institutionalizes greed” and as “a perfect example of pseudo-science with little empirical or sound theoretical basis.” (Holt, “Maximum Sustainable Yield: The Worst Idea in Fisheries Management,” available at https://breachingtheblue.com/2011/10/03/ maximum-sustainable-yield-the-worst-idea-in-fisheries-management/.). Holt granted important interviews with a doctoral student in history of science whom he refers to as “my friend Mary Carmel Finley.” Adopting Holt’s critique and biases into her dissertation and early research publications on msy, Finley, now a professor at ­Oregon State University, has embraced Holt’s views wholesale, and in this and other ways similarly portrayed msy as a sinister doctrine badly supported by either the data or theory—and cynically deployed by the industrial powers in the 1950s and after to enhance their fishing dominance and to contain the expansionist aims of poor coastal nations. I find incomprehensible, however, Holt’s argument (which she champions) as to

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When losi was founded, Schaefer had recently organized a major interdisciplinary research project and conference on ocean issues in science and policy. Its proceedings were published in 1964 under the title California and the World Ocean.34 Any symposium on ocean issues in the mid-1960s would have been regarded as irrelevant if it neglected to give attention to recent predictions of a sensational future for manganese nodule mining in the seabed. Hence, predictably, another featured presenter at the initial losi conferences was John L. Mero, a University of California, Berkeley engineering graduate who was then a ­research associate in the Institute for Marine Research at sio and an officer

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the containing of Japan, which by then was restored as the leading marine fishing nation in the world—and hardly an oppressed ldc in the fisheries economy—through the application of an msy-based tripartite “abstention” regime under the International North Pacific Fisheries Convention (inpfc). Holt’s view, now reiterated in Finley’s work, is that msy was a measure blatantly exploitative; they derisively give the msy regime concept no credit for the protection of any important stocks (except marginally for whales, with its unique iwc regime, at a crucial juncture advised to apply msy by Holt himself). They do not grant any credit even as regards the “holding action” that preserved for more than fifteen years the high-value commercial salmon stock levels in the Northeastern Pacific Ocean area covered by the inpfc. (Holt’s reference to Finley is in ibid., at p. 5; for Finley’s assertions, see both her first book, All the Fish in the Sea: Maximum Sustainable Yield and the Failure of Fisheries Management [Chicago: University of Chicago Press, 2011], and a follow-up study, All the Boats in the Ocean: How Government Subsidies Led to Global Overfishing [Chicago: University of Chicago Press, 2017], in which she once again portrays msy as a villainous management concept that was ultimately responsible [intervening variables seem to be heavily discounted here] for the expansion of both distant-water and coastal fishing capacity that has depleted or damaged fish stocks internationally.) The more plausible alternative view is that the salmon runs in Alaska (still establishing records in some years) owe much to the preservation of stocks by the infpc, and that the sustainable tuna regimes initially designed and administered by Schaefer have survived to the present day and have been to some degree responsible for the continuing availability of commercial stocks! Readers interested in this question, seeking a measured entrée point to fisheries management history of how msy actually unfolded as such a contentious issue in the history of science, are best advised to consult the singularly unbiased and reliable study by Tim D. Smith, Scaling Fisheries: The Science of Measuring the Effects of Fishing, 1855–1955 (Cambridge, uk: Cambridge University Press, 1994). J.L. Kask, “Dedication: Wilbert McLeod Chapman, 1910–70; Milner Baily Schaefer, ­1912–70,” in World Fisheries Policy: Multidisciplinary Views, edited by Brian J. Rothschild (Seattle and London: University of Washington Press, 1972), pp. i–xi. The proceedings of the conference Schaefer directed were first collected in a photo-offset volume, California and the World Ocean (Los Angeles: California Museum of Science and Industry, 1964), then published the following year in more permanent printed format.

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of an industrial firm gearing up for seabed mining projects. Mero was the principal initiator, early patent holder, prophet, and ubiquitous proselytizer in a sudden and growing “excitement” of the 1960s regarding the allegedly dazzling prospects for deep seabed mining. That excitement had spread quickly through engineering, industrial, and government policy circles, so much so that at times it bore the hallmarks of the classic “gold rush” mentality—reminiscent, in its intensity of faith-based belief, of the spirit of the Dutch Tulip Bulb Mania. (It was also to be further compared with the Tulip episode when it suffered an equally dramatic crash ending.)35 In any case, apart from Mero himself, several mining industry executives and government officials concerned with seabed issues were invited as participants in both the 1966 and 1967 conferences; and the question of deep seabed mining regime proposals would soon afterward be the central focus of discussions in the annual meeting of the Natural Resources Section of the American Bar Association, papers from which were published in a newly founded journal, the Natural Resources Lawyer, in 1968.36 Fisheries management law and policies were also discussed in depth at both initial conferences, with commissioned papers by the policy analyst Francis T. Christy, Jr., of the Resources for the Future Foundation staff; and the economists Giulio Pontecorvo of Columbia University and James Crutchfield of the University of Washington. All three of these scholars were widely published advocates for giving primacy to economic efficiency in designing fisheries management schemes, over the traditional, then-dominant “biological approach” to management that was expressed in the Maximum Sustainable Yield (msy) concept. Christy was also an advocate of vesting in a un-sponsored agency the comprehensive regulation of global high seas fishing, a view he set forth in the first losi conferences.37 Among other authorities on marine fisheries issues who joined them in discussions at the 1967 losi meeting were Roy Jackson, a fisheries policy officer in the un Food and Agriculture Organization (fao) and 35 36

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For today’s seabed issues seen in light of advances in scientific research and technology, see Chapter 16, by Kathryn Mengerink, in this volume. The symposium appeared in two issues of the inaugural volume of Natural Resources Lawyer, Vol. i: No. 1 (June 1968) and No. 2 (July 1968). The Marine Technology Society published in 1966 the proceedings of a conference on seabed mining issues that opened with a paper by Burke, “Legal Aspects of Ocean Exploitation,” with other contributions authored by various scientists, government officials, mining industry company and trade group leaders, and political scientists. Marine Technology Society, Exploiting the Ocean: Transactions of the Second Annual mts Conference and Exhibit, June 27–29, 1966 (Washington, d.c.: Marine Technology Society, 1966). Further discussed below, in this chapter.

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former u.s. Government official; and Hiroshi Kasahara, a Japanese fisheries policy expert who would later serve on the University of Washington faculty and as a senior fisheries officer in the fao. Also participating in the losi debates of international fisheries law was Shigeru Oda, then professor of law at Tohoku University in Japan and coauthor of a major treatise in Japanese on law of the sea. After completing advanced legal studies at Yale in the “McDougal era” immediately following World War ii, Oda had emerged as an academic commentator who, like McDougal and Burke, was singularly critical of the four 1958 Geneva Conventions. During his illustrious later career in the law, including his long tenure as judge on the International Court of Justice, Oda would remain dedicated to the canon of “freedom of the seas” as a core value of customary law that should be protected against what he viewed as misguided and “disquieting” policies that were rationalized by doctrinal innovations.38 So far as the social sciences were concerned, apart from the geographer Alexander it was only economists and political scientists specializing in international relations who held center stage in the 1960s ocean law and policy discourse, whether in the initial losi conferences or the few other symposia of the time with similar focus on ocean law. The political scientist Robert L. Friedheim presented a paper at the 1966 conference.39 Then only a few years into a career that would be exemplary of interdisciplinary studies, Friedheim had earned a Ph.D. in American history and had published in that field; he then served as an Army intelligence officer, moving on to an academic career on the political science faculty at Purdue University. In late 1966 he joined the research staff of the Center for Naval Analyses, a think tank funded by the u.s. Government and mainly conducting studies of security issues commissioned 38

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Shigeru Oda wrote in the preface to his book International Control of Sea Resources (­Leyden: A.W. Sythoff, 1963), which presented detailed subject-by-subject critiques of the then-recent 1958 Geneva conventions, that he was “disturbed by what he considers certain disquieting new trends in the field, and [was] concerned about some of the international agreements entered into at the United Nations conferences.” He would become equally concerned with regard to the terms of the 1982 unclos, as he affirmed in his introduction to a second edition of this book under same title (Dodrecht, Boston and ­London: Kluwer/ Martinus Nijhoff, 1989). Important essays on Oda’s jurisprudence ­appear in several chapters, especially one on the maritime boundaries issue authored by Jon Van Dyke, in Judge Shigeru Oda: Liber Amicorum, edited by N. Andano, E. McWhinney, and R. Wolfrum (2 vols., Brill/Nijhoff, 2002). “Factor Analysis as a Tool in Studying the Law of the Sea,” in Alexander, Offshore B ­ oundaries, 47–70.

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by the Navy.40 Friedheim’s paper at the initial losi meeting was a study of process during the 1958 Geneva conference negotiation, offering a statistical factor analysis of voting patterns and coalitions on varying issues as revealed by the “clustering of variables” in roll call data. The proceedings of the 1966 losi meeting do not indicate much as to the other participants’ reactions to Friedheim’s findings, which he supported by use of “un-rotated, orthogonally rotated, and obliquely rotated factor matrices.” But whatever its technical apparatus, arcane as no doubt it was for most of his losi audience, his paper offered a perspective relevant to diplomatic strategies that could be deployed to anticipate the likely coalitional alignments in future ocean law negotiations. His paper also significantly presaged Friedheim's own later monograph that treated (in a similar analytical mode) the lengthy negotiations of the Third un Conference on the Law of the Sea that culminated in the 1982 unclos.41 Friedheim’s scholarship continues to be interesting to scholars as a quantitative counterpoint to Edward Miles’s classic study, Global Ocean Politics, which in 1993 would address the same subject of Third Conference coalitional behavior by analyzing a great volume of qualitative data drawn from a huge number of contemporaneous interviews that Miles conducted with delegates.42 Looking ahead in time, it should be noted that Miles (1929–2016) would play a centrally important role in losi activities from the mid-1970s until his career’s end, presenting papers at the annual conferences on (among other topics) regional organizations and their functions, international fisheries ­relations, and nuclear issues. He was a close colleague of Burke and the oceanographer ­Warren Wooster, three key figures in the ocean law and policy group at the ­University of Washington; and he also gave long service to losi, both as a ­member of its executive board and as a principal conference organizer. By dint of his ubiquitous and greatly respected involvements over four

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Obituary for Robert Friedheim, in The Los Angeles Times, Feb. 9, 2001. He had served for more than twenty-five years as professor and in several administrative positions at the University of Southern California, and he was the prolific author of important ­monographs on ocean issues and editor of books in the field. 41 Friedheim, Negotiating the New Ocean Regime (Columbia, s.c.: University of South ­Carolina Press, 1993). 42 Miles, Global Ocean Politics: The Decision Process at the Third un Conference on the Law of the Sea, 1973–1982 (The Hague and Boston: Martinus Nijhoff, 1993). In Chapter 7 of the present volume, examining afresh the negotiation process in the Third un Conference, Willy Østreng draws on the varying types of data presented, respectively, in the writings of Miles and Friedheim.

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d­ ecades, Ed Miles may fairly be termed, in retrospect, losi’s “in-house political scientist.” An Emergent “Oceans Community” The wide range of disciplines and professional fields (including industry leadership) represented in the initial losi conferences—and represented similarly in other forums on ocean issues in the late 1960s—is an indication that there was emerging what would soon be commonly referred to in academic papers, policy discussions, and the press as “the oceans community.” Years later, a National Science Foundation official, speaking at the 1988 losi conference, welcomed what he characterized as a recently emerging “magnificent convergence,” in the discourse on ocean issues, of expertise from the scientific, legal, and policy communities.43 In fact, this “convergence” had already been taking form a considerable time before losi was founded. In the field of fisheries management, for example, in the United States representatives of the fishing and processing industries had been systematically appointed to advisory commissions on both domestic and foreign policy since 1950. There had been similar industry and legal representation on the advisory bodies to the delegation led by William Herrington in his negotiation of the International North Pacific Fisheries Convention in 1951–52 and in the u.s. delegation to the 1958 un Geneva Conference.44 In the international negotiations on ocean law, the u.s. Navy was also well represented on American delegations. With so many crucial ocean law issues still unresolved after 1960, including even the width of the territorial sea and the legitimate extent of the offshore fisheries jurisdiction of the coastal states, the American fisheries-sector coalition began to interact systematically with other 43

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Robert Corell, “Marine Science in the 1990s,” in New Developments in Marine Science and Technology: Economic, Legal and Political Aspects of Change: Proceedings of the 22nd A ­ nnual Conference of the losi, … 1988, edited by Lewis Alexander, Scott Allen and Lynne Carter Hanson (Honolulu: University of Hawai’i, 1989), 28. For theoretical and ­policy-oriented perspectives on the functions, achieved and potential, of interdisciplinary studies, cf. Willy Østreng, Science Without Boundaries: Interdisciplinarity in Research, Society and Politics (Lanham, Maryland: University Press of America, 2009). Scientists were also the main participants in the u.s. delegation at the 1955 Technical Conference, held in Rome to advise on the scientific issues in fisheries management that the International Law Commission had placed on the agenda for the 1958 Geneva meeting. Herrington commented in later writings that most delegations in the 1958 talks, especially those representing less developed countries, were staffed only with legal experts, whereas those of the major industrial countries, including the United States, included individuals with expertise in the ocean sciences.

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industrial/scientific/engineering clusters of experts and other special interest representatives, driven by the desire to deploy its influence effectively in the shaping of u.s. domestic and foreign policies.45 In the maritime shipping and trade sectors, as well as in the mining industry, similar concerns were driven by the continuing uncertainties of international ocean law; leaders in these fields reached out to expert consultants from academia and the professions. They relied principally, however, on their own legal counsel in their efforts to grapple with the changes under way or anticipated in law of the sea. And those lawyers increasingly developed ties with the academic and policy communities. Among the most influential in this cohort were Edward Allen, whose activities with respect to Pacific fisheries diplomacy are mentioned above; and Robert B. Krueger, a Los Angeles attorney who served as counsel to mining and defense industry firms on the West Coast and in the late 1960s was chairman of the American Bar Association’s committee on ­marine resources. Krueger was author of several scholarly books and was a member of the California governor’s advisory council on marine resources; he later served on the u.s. delegation to the un Seabed Committee, and for more than twenty years thereafter he was frequently a featured presenter at conferences and in journal symposia on ocean affairs. Krueger’s views on policy issues and legal reform of course generally reflected his clients’ interests, but, as was true of Allen as well, he commanded the respect of policy officials, legal scholars, and others in the arenas of ocean law debate. Emblematic of his standing with the academics in the losi leadership structure was Krueger’s appointment as coeditor (with uc Berkeley professor Stefan Riesenfeld) of the proceedings volume from the eighteenth annual losi conference, which was held in San Francisco in 1983, the year following the signing of the unclos agreement.46 45

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Harry N. Scheiber, “The Stratton Commission: An Historical Perspective on Policy Studies in Ocean Governance, 1969 and 1988,” in The Stratton Roundtable: Looking Back, Looking Forward, edited by R. Knecht et al. (Washington: noaa, 1998), 31–38. During Chapman’s tenure in the State Department, he successfully institutionalized an important role for the nation’s varied fisheries interests by creating, on a corporativist model—over the ­objections of the Department’s policy and diplomatic personnel—a set of industry ­advisory boards that became involved in individual treaty negotiations, in the deliberations associated with the development of position papers on policy, and in the voicing of industry perspectives on (and certainly exerting an influence on) ordinary administrative and decision making processes. Scheiber, “Chapman and the Pacific Fisheries,” 473–480. Allen often adopted a polemical, even combative, nationalistic tone in public speeches and correspondence, whereas Krueger had a distinctly more measured intellectual and rhetorical style; but both men were learned in the law and broadly experienced in highprofile law practice. Biographical data on Krueger as of 1968 are in Natural Resources

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Some prominent oceanographers and other scientists within the emergent ocean community—individuals who, like John Knauss, had already become involved in the 1960s as public advocates for new policies relating to ocean studies—embraced the trend for bringing interdisciplinary perspectives into the analysis of ocean issues. Of special interest is the role taken by Milner B. Schaefer, the eminent marine biologist on the sio faculty, whose role in the inaugural losi conference has been mentioned above. During his research directorship of two of the most important postwar regional marine fisheries agencies, the federal Pacific Oceanic Fisheries Investigation (based in Honolulu) and the regional Inter-American Tropical Tuna Commission, Schaefer had designed scientific research programs in an interdisciplinary mode, even incorporating recently developed ecosystem and population-dynamics concepts.47 But his interest in collaborations across disciplinary boundaries extended also to socio-economic and legal aspects of marine and coastal phenomena. Appropriately, then, Schaefer was named by Governor Edmund G. Brown of California to direct a multi-author research project during 1963–65, culminating in a public conference on the state’s outstanding ocean policy issues. The aforementioned conference proceedings volume, California and the World Ocean, with contributions from both the public and private sectors and from scientific institutions, was published at the very time when losi was being formed; and it was widely noticed for its emphasis on the multi-disciplinary approach—prescribed both for future scientific investigations and for public policy formation with regard to the terrestrial and oceanic areas of the California coastal region, conceived as an integrated social and ecological unit.48 Schaefer became a spokesman for a similarly holistic approach to ocean law and marine policy more generally, urging leaders in the u.s. Congress to include in future support for oceanography enhanced attention to grants

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­Lawyer, 1, no. 2, p. iii; other comment in text, above, is based on my professional contacts with Mr. Krueger in ocean law forums, and on notes from a formal interview of Krueger conducted by myself at his La Jolla, California, home shortly before his death. On Allen, see Scheiber, “Chapman and the Pacific Fisheries,” 443–446 et passim. Scheiber, “Chapman and the Pacific Fisheries,” 385–386, 414–415; Smith, Scaling Fisheries, 331ff. Harry N. Scheiber, “Success and Failure in Science-Policy Interactions: Cases from the ­History of California Coastal and Ocean Studies,” in National Research Council, Improving Interactions Between Coastal Science and Policy (Washington, d.c.: The National Academy of Sciences, 1995); and Scheiber, “From Science to Law to Politics: An Historical View of the Ecosystem Idea and its Effect on Resource Management,” Ecology Law Quarterly, 24 (1997), 645–648.

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for research in law and the social sciences. He advised u.s. Senator Warren ­Magnuson in 1964 that in many cases the handicaps to rational, effective, and economically ­efficient development … of unutilized or underutilized resources … lie to a large extent in the area of economic and legal factors, and therefore a thorough study of such factors, and consideration of possible means of changing them, will be highly important.49 The same approach to analysis of ocean law and policy was reflected in the ­basic multidisciplinary design that losi’s founders had envisioned for the organization. And this approach—embracing, as we have noted, an even b­ roader range of disciplinary perspectives than Schaefer had named—would be sustained in all the losi conferences and publications down to the present day.

The Major Challenge of Ocean Law: The Specter of “Anarchy” in Ocean Space

The first two losi conferences addressed a broad range of the perplexing issues in ocean law development that had brought the movement for codification to virtually a complete halt following the Geneva Conference failure in 1960. The eminent ocean-law scholar Patricia Birnie (1926–2013) once wrote that the four 1958 Geneva conventions were notable “more for what they failed to do than what was settled there, and for the constructive ambiguity with which they papered over the cracks, … neglecting or fudging various issues.”50 The framework of the initial losi meetings followed the sectoral approach that had been taken in Geneva, with the four separate agreements of 1958. Most of the p ­ resenters at the losi meetings situated their subjects mainly with ­reference to the terms—especially the ambiguities and the troublesome “­fudging” of major questions—of the four agreements. In addition, however, much ­attention was given to scientific questions (notably with regard to ­fisheries and to the seabed mining question) both as they bore on the Geneva agreements and, in light of emerging technologies, as they portended new challenges to ocean law. 49 50

Schaefer to Senator Magnuson, May 6, 1964, copy of letter in Wilbert M. Chapman Papers, Special Collections Dept., University of Washington Library, Seattle. Birnie, “Ocean Governance: Past, Present, and Future,” in Ocean Governance: Strategies and Approaches for the 21st Century [28th losi Proceedings, 1994] (Honolulu: University of Hawai’i, 1996), 623.

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Hence an analysis of the proceedings in these conferences can serve us as a lens through which to place in sharp focus several outstanding problems in ocean law of that day, and also to recapture the character and viability of the various solutions to those problems that experts were then advocating. In that sense, as we have noted at the outset of this Chapter, the record serves as a base line from which to assess the vast magnitude of changes since the 1960s in the geopolitical, scientific and technological, economic, and jurisprudential contexts of ocean law debate. There were also some perdurable issues on the initial losi agenda that even today remain less than fully resolved. Most notable in that regard is the matter of a regime for protection of biodiversity in the high seas area beyond national jurisdiction—a subject of central importance, discussed in detail in other chapters of this book. Also, there are strong indications now that seabed mining is actually going to be undertaken, possibly reviving a modicum of credibility for the extravagant prophesies voiced at the initial losi conferences; and this important activity, if it does materialize, raises a set of issues regarding environmental impacts that intersect with concerns about biodiversity that are driving the movement for a new un convention for the area beyond national jurisdiction. And this is in addition to a cascade of more recently emerged challenges to ocean governance. These new developments include, most prominently, the environmental dangers to marine ecosystems that have been generated by an acceleration of technological innovations, and the ­remorseless ramping-up in intensity of their application with the rising scale of operations in the economic uses of the oceans—all these challenges being magnified by the pressures of global population growth, accompanied by rising expectations as to living standards, and the pervasive threats to the marine environment associated with climate change.51

…

The first losi conference began on a startling note, with Myres McDougal’s presentation of the first substantive paper of the meeting. Senator Pell had just finished with his welcoming address, commending the conferees for bringing their expertise to the task of re-evaluating the outstanding ocean law issues that were involved in the stalling of progressive reform. Pell ended his talk with a statement of hope that losi would contribute “to a quick reconvening” of

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Harry N. Scheiber, “Economic Uses of the Ocean and the Impacts on Marine Environments,” in The World Ocean in Globalisation, edited by Davor Vidas and Peter J. Schei (Leiden and Boston: Martinus Nijhoff Publishers, 2011), 65–97.

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another un conference on the law of the sea. McDougal was appalled: “I think it may take a hundred years for the law of the sea to recover from the last two international conferences,” he declared “and I would regard the immediate call of another conference as an unmitigated disaster”!52 Burke and McDougal were on record in viewing as an already-unfolding disaster the extended claims by many coastal states to jurisdiction (or, in some notorious cases, claims to entire sovereignty) beyond both the traditional three-mile width of the territorial sea and even well beyond the twelve-mile limit of the contiguous zone authorized in the 1958 conventions. So far as these two eminent commentators were concerned, the inherited Grotian order, with its freedoms for navigation, fishing, and other uses of the high seas, for centuries had served brilliantly the common interest of all nations and peoples.53 In their previous analyses of the Geneva agreements, they had deplored the legitimatization of new zones for ocean uses that vested exclusive rights in coastal states. The only real concession McDougal had made prior to his losi talk was with respect to the contiguous zone; he expressed a guarded approval of coastal state control (if “reasonable”) over fishing practices out to a distance of approximately six miles offshore.54 52 53

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Pell, in Alexander, Offshore Boundaries (referring especially to the terms of a fisheries regime), and McDougal, “International Law and the Law of the Sea,” ibid, 3. Burke later reflected, in his great treatise, The New International Law of Fisheries: unclos 1982 and Beyond (Oxford: Clarendon Press, 1994), that the 1958 Geneva agreements are most notable for “their substantial irrelevance to the most critical questions of fishery conservation and management, … [being] too limited in geographic and subject-matter scope to have had a significant effect, at least for conservation purposes…. In a sense, the most significant decisions at these conferences were negative in that they involved the refusal to adopt specific proposals.” (Ibid., 9–10.) Similarly, Judge Treves has averred that, in light of the substantive shortcomings of the several Geneva conventions followed by the limited number of ratifications that were obtained (except for the Continental Shelf agreement), their importance “is mostly historical”; they were “soon seen by a majority of states as obsolete,” once unclos was negotiated, and even in their own time they consisted in many parts merely of reiterations of customary law. Tullio Treves, “Historical Development of the Law of the Sea,” in The Oxford Handbook of the Law of the Sea, edited by Donald R. Rothman et al. (Oxford: Oxford University Press, 2015), 17. McDougal, “Revision of the Geneva Conventions on the Law of the Sea,” Natural ­Resources Lawyer, 1, No. 2 (1966), 20, 26. In November of the next year, Pell introduced in the u.s. Senate Foreign Relations Committee a resolution endorsing internationalization of control of ocean space beyond the area of national jurisdiction (referring to the “anarchy” that then threatened the legal order of the oceans), and spelling out in detail the p ­ rinciples that should govern design of a regime for the seabed. (90th Cong., 1st Sess., Senate Committee on Foreign Relations, Hearing: Governing the Use of Ocean Space, 12–14.) Pell was

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In firing an opening shot at the first losi meeting, however, McDougal took an extreme position, veering away from his more moderate earlier view. He offered full disclosure at the outset with the notice, “I remain a diehard on this,” asserting that “there is today just no rational ground for a territorial sea at all.” He did admit that there was possible merit in an argument for “a flexible concept of contiguous zones,” but only if jurisdiction was “reasonable,” that is, strictly limited to policing measures on customs, immigration, or health and sanitation (which, ironically, was precisely the set of contiguous zone functions that Article 24 of the Territorial Sea Convention authorized). He would often tell students in his classes, he went on, that he not only favored, as a general proposition, “the narrowest possible territorial sea,” but coming down to specifics he saw no problem with making the low-tide mark its outermost boundary!55 Not even the most ardent champions of the freedom of the seas in serious contemporary legal discourse, whether they were British or Japanese or ­others taking a “diehard” stance, gave credence to moving the limit of a coastal ­nation’s sovereign jurisdiction to a point on the beach where seawater was ­ankle-deep! Whatever McDougal’s intention (perhaps simply to be provocative so as to inspire debate), despite the advantage of eminent reputation he found no allies for the low-tide standard. To be sure, there was a spectrum of opinion on the matter of the territorial sea’s width; but McDougal’s position was an outlier at one end of that spectrum. The only explicit support that McDougal received from other conferees was in favor of his previously expressed, more moderate, position; this support came from Professor Oda, who regarded extended jurisdiction as legitimate only within the strict terms of Article 24. Policing functions in a moderately extended offshore zone were properly authorized, he contended in a paper given at the 1967 conference; but in the case of “exploitative activity” a coastal nation would violate established tenets of international law by excluding foreign flag vessels and their operations in such a zone. Giving the coastal state such an advantage over distant-water fishing interests, Oda contended, sacrificed “the general interests of the world community” that were founded on “the underlying rationale of free competition [as] one of the basic values endorsed by modern history in many fields.”56

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joined as sponsor by Senator Norris Cotton of New Hampshire. Both the State D ­ epartment and the Department of Defense voiced strong opposition to the resolution and its broad ­purposes. (Ibid., 23ff.). McDougal, in Alexander, Offshore Boundaries. Emphases added. Oda, “Distribution of Fish Resources of the High Seas: Free Competition or Artificial Quotas?,” in Alexander, Future of the Sea’s Resources, 29, 30. Oda’s positions on this and all

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If McDougal was an outlier, positioned in his extremism beyond the spectrum of mainstream debate at the initial losi meetings, at the other extreme of that spectrum was the concept of a supranational global regime that would be vested with authority to allocate and regulate the exploitation of all marine natural resources, including seabed minerals. This position was being contended for in international forums by the Commission to Study the Organization of Peace (Peace Commission), which during the war years advocated for a un organization to be founded, and then after 1945 promoted a broad program of collective action for international control of nuclear power, demilitarization and supranational control of seabed activities, a panoply of new commitments to support economic development and human welfare in the less developed and newly independent countries, and peaceful settlement of disputes.57 Clark Eichelberger, chairman of the Peace Commission, presented the case for the commission’s program on the seabed regime issue at the initial losi conference. “Shall we say that this vast area” of the world’s oceans, he asked, “be an area of anarchy in which a new struggle for colonial riches, and thus a new power struggle” should be permitted to develop? He was joined in championing this position by the resources economist Francis Christy, Jr., one of the major voices in the criticism that economists had been recently mounting against open access to the ocean fisheries. Christy was by 1965 a spokesman for the Peace Commission, advocating the internationalization of ownership and control of all marine resources in the high seas in the losi meetings; he called for creation of a supranational authority, empowered to allocate global marine

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other issues in the Fishing Convention were exactly the same as the Japanese delegation had contended for during the negotiations at Geneva. See Oda’s report on the Geneva process, with extensive quotations from Japanese position statements, in his contribution, “Japan and the United Nations Conference on the Law of the Sea,” Japanese Annual of International Law, 1959 ([Tokyo, 1959]), 65–86. The Peace Commission, originally founded to champion the League of Nations, was a prestigious non-governmental organization with a powerful voice advocating strongly internationalist policies in the debates of the 1940s-60s. (Ambassador Pardo’s famous un speech championing the Common Heritage cause, for example, relied heavily upon, and made specific reference to, the Peace Commission agenda and recommendations.) But the Peace Commission was very different from the ngos that have played so important a role in ocean policy making since the early 1970s. The Peace Commission did not d­ evelop the large membership base that modern-day ngos typically recruit; rather, it exercised its influence by mobilizing elite figures in public life to gain access to highly placed ­government officials and agencies, and engaging with the few independent ­forums, ­notably losi among these few, where legal and policy debates were going on. See Harold ­Josephson, James T. Shotwell and the Rise of Internationalism in America (London: Associated ­University Presses, 1975), 239–245.

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fishing quotas by auction and to then distribute a portion of revenues to the less developed and landlocked nations.58 Shortly after the first losi conference was held, President Lyndon Johnson had given unexpected endorsement to what Eichelberger and Christy hoped would become the controlling theme in future ocean law development. The President declared in a speech at the commissioning of a new u.s. oceanographic ship in July 1966: “We must be careful to avoid a race to grab and to hold the lands under the high seas…. We must ensure that the deep seas and the ocean bottoms are, and remain, the legacy of all human beings.”59 (This statement definitely presaged, and may well have been the immediate inspiration for, the famous Malta delegation resolution of 1967 on the “common heritage of mankind” and the floor address at the un by Ambassador Pardo that are commonly cited as a watershed moment in diplomacy, leading to the Third Conference on the Law of the Sea.) Another element in the larger context of ocean policy discourse, similarly lifting the hopes of internationalists, was the negotiation that culminated in the signing in January 1967 of the “Outer Space Treaty,” declaring that the moon, other celestial bodies, and the uses and exploitation of space should be “the province of all mankind.” Other terms of the treaty—parallel to what the Peace Commission was proposing for the seabed—banned military activity or installations of any kind in outer space.60 Eichelberger and others advocating supranational control of ocean uses also cited precedent for their cause in the 1959 treaty under which twelve nations agreed to ban all military activity and declared complete freedom of scientific research in the Antarctic.61 58

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“Comments,” in Alexander, the Sea’s Resources, 299–302 (Eichelberger), and 302–309 (Christy). Eichelberger had been a leading figure in the Peace Commission, beginning with a predecessor interwar American organization that supported the League of ­Nations and international cooperation more generally; and when he was a top officer of the Peace Commission in the mid-1960s the organization advocated a ban on military uses of the seabed—a proposal staunchly opposed by the U.S Department of Defense because it would foreclose the application of anticipated new anti-submarine, missile launching and other technologies in the u.s. arsenal of Cold War-era weaponry. (Statement of Eichelberger in u.s. Senate Foreign Relations Committee, Hearing: 33ff.; and ­letter of ­Assistant Secretary of Defense Paul Warnke, ibid., 39ff.). Johnson, Speech at the commissioning of a new u.s. oceanographic research vessel, July 13, 1966, in Hearing (ibid.), 40 (emphasis added), also quoted in both Natural Resources Lawyer, 1 (1968), 30, and in Alexander, Future of the Sea’s Resources, 307. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, published as Annex to un Doc. A-C.1/L.396 (1966). Antarctic Treaty, signed Dec. 1, 1959, and entered into force, June 3, 1961, http://www .gc.noaa.gov/documents/1959-Antarctic-treaty.pdf.

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Nearly all the participants in the initial losi conferences—whatever the degree of their sympathy for the general proposition that the oceans should be regarded as “common heritage”—responded to the Peace Commission’s ideas with varying degrees of skepticism, some expressing scarcely disguised scorn. In Burke’s view, for example, such “blueprints for utopia” were an unwelcome contribution to a discourse that could produce a fair and workable global ocean regime only if discussants recognized the relevant political and social realities, including the actual decision processes that would be ­involved. ­Others as well, including McKernan, Chapman, and Herrington (three ­formidable voices in any fisheries policy debate), focused criticism on the hard fact, as they saw it, that neither the contending big powers in the Cold War nor the maritime nations in the un would ever consent to creation of a supranational agency under un auspices (which was the decision-making route that the Peace C ­ ommission contemplated). Some of these critics also expressed doubts, or even explicit disdain, as to the competence of existing un administrative bureaucracies to accomplish efficient oversight of a vast and complex world regime for fisheries. There was no representation at the initial losi meetings from any of the less developed countries (ldcs), nor from the South American states that were aggressively pushing for extended jurisdiction and even sovereignty out to 200 miles. Hence, expectedly, the main thrust of comments was a determination, first, to preserve the twelve-mile maximum outer limit of the contiguous zone, and, second, to foster bilateral and multilateral agreements on fisheries, in lieu of supranational control, within the twelve-mile zone. If anything, the increased effectiveness of the Group of 77—the coalition of ldcs, first organized in 1964 but growing steadily in number, often gaining support from the Soviet bloc and the prc—was regarded as posing a serious obstacle to any initiatives through the un that might seek to halt the march of creeping jurisdiction, ­stating as an obvious fact that the successful conclusion of the Geneva accords of 1958 would have been impossible to replicate if attempted in the international political climate, destabilized as it was by the new bloc alignments, in the mid-1960s.62 62

Alexander expressed a similarly cautionary view as to any future conference that might involve 130 nations with equal votes. (“Offshore Claims of the World,” in Alexander, Offshore Boundaries, 83–84.) The eminent international law scholar Lewis Henkin concurred, stating in a 1968 paper that “a comprehensive new law for the sea is not now feasible, and perhaps not desirable”; he added, however, that “it may be time to deal anew with [discrete] segments of the law of the sea where the need for new law is clear and the problems visible.” Henkin, “Changing Law for the Changing Sea,” in American Assembly of Columbia University, Uses of the Sea (Englewood Cliffs, nj: Prentice-Hall, 1968), 83–84.

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For McDougal, the danger of what he called “agglutination,” by which a coastal state’s jurisdictional claim for one purpose, even if legitimate under terms of the Geneva conventions, was that it would prove merely a launching platform for proclaiming ever-larger areal zones and ever-expanding jurisdictional claims. “When they get one thing,” he wrote, “they grab something else”; these claims “tend to stick to each other.” The ambiguous terms of the 1958 Continental Shelf Convention, McDougal had warned, was responsible for creating “the expectation that coastal states are authorized to extend their monopoly to the middle of the ocean.” Unfettered, the ongoing extensions of jurisdiction would destroy a system under freedoms of the sea that had been of “inestimable benefit for the whole of mankind.”63 And a supranational agency, from his viewpoint, would be the capstone of this outrage. On one issue, however, even the harshest critics of the supranational agency approach were in agreement with Oda’s special concern about the threat posed by Chile, Peru, and Ecuador with their 200-mile claims: Oda warned that the reliance on “non-legal concepts” (biological or geological) to warrant the unilateral extensions of jurisdictions in the contiguous zones or the continental shelves of coastal states was triggering an escalation of claims on the basis of “a hitherto unrecognized legal mystique of the percolation of sovereignty”!64 In sum, with regard to the interrelated problems of the definition and function of offshore zones, within the extremes of McDougal’s view on one end of the spectrum (or beyond it) and the Peace Commission view at the other end, a largely consensual view of positions along the spectrum of opinion ­favored incremental innovations. Staying within the conceptual terms and the areal (zone) limits prescribed in the four Geneva Conventions was the most effective course, as seen by this American-dominated set of important oceans experts. There was general agreement that the most dangerous challenge to an orderly, productive and peaceful regime of the oceans was what was variously termed the “anarchy” and “chaos” that existed in the then-prevailing, p ­ rofoundly ­unstable, dynamic of offshore claims. Proclamations of territorial sea and contiguous zone limits were proliferating, the coastal nations being undeterred by the Geneva Conventions and at the same time being encouraged in their stance by key International Court of Justice decisions (most n ­ otably the 63

McDougal, “Revision of the Geneva Conventions on the Law of the Sea,” Natural ­Resources Lawyer, 1, No. 2 (1966), 20, 26. The troublesome Continental Shelf Convention provision for a coastal state claim out to the depth of the ocean that was subject to exploitation, the provision that worried McDougal and others, is discussed further in the present chapter and in full context in Clive Schofield’s analysis in Chapter 3, this volume. 64 Oda, International Control, 20. Emphasis added.

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­ nglo-Norwegian Fisheries Case, icj Rep 116), and, not least, by the weakening A of the u.s. Government’s resolve to defend the three-mile rule. Meanwhile the first European Community fisheries policy, adopted in 1964, also recognized the legality of the twelve-mile fishing zone rule, and the uk ­proclaimed, also in 1964, a twelve-mile fishing zone.65 By the time the second losi conference met in 1967, Congress had enacted the Bartlett Act of 1966, creating a u.s. fishing zone out to a 12-mile width from the baselines of the coast; and the salmon fishing interests, a politically powerful sector of the u.s. industry, were already organized to press for further ­enlargement of the u.s. zone. They hoped to end what, together with many New England fishing operators, they regarded as a ruthless “invasion” of “their” fishing grounds by European, Japanese, and other foreign distant water fleets with their large-scale factory ship operations.66 As the twelve-mile limit was in accord with the maximum justified by the Geneva agreement, it was hoped by those who opposed the current trend that u.s. adherence to it would be a major stabilizing influence, stemming the tide of new claims for extended jurisdictions. It is intriguing that there was no notice taken by losi panelists of the Nationalist government of China’s publication of the “Nine-Dash Line” in 1947 (prior to takeover by the prc regime), with its claim of ownership or jurisdiction over virtually the entire South China Sea: It was not mentioned in the ­official offshore-boundary studies by either the Department of State or fao, and, notoriously, it was never asserted in ocean diplomacy until being s­ uddenly revived by the prc many decades later. The degree to which the current-day 65

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In 1966 a u.s. Department of State survey reported that only 15 states of 91 were adhering to the three-mile rule (the territorial waters line) as also the extent of their fishing zone; later  in that year both the United States and Japan removed themselves from the ­three-mile group by adopting the twelve-mile rule. The fao also counted 15 states in the three-mile group in early 1966, with ten claiming three to ten miles, 49 claiming twelve miles, and 17 claiming more than twelve (up to 200) miles. Roy Jackson, “Some Observations on the Future Growth of World Fisheries,” in Alexander, Future of the Sea’s Resources, 12. Harry N. Scheiber and Christopher Carr, “Constitutionalism and the Territorial Sea: An Historical Study,” Territorial Sea Journal, 2 (1992), 67–90. Warnings had been sounded by then that the various u.s. coastal fishing interests (West Coast salmon and halibut, Gulf shrimp, and New England cod and other fishers, including a nascent trawling sector especially) regarded the Bartlett Act as “only a step in the right direction.” For the California distant-water tuna industry, however, the 12-mile declaration was a damaging move, as it would encourage the view that similar extensions of fishing zone widths—potentially up to 200 miles and even possibly sovereignty claims, as was noted in the current interpretation of the most extreme South American nations’ offshore jurisdictional claims— would gain acceptance as legitimate under evolving customary law. (Chapman, “Fisheries ­Resources in Offshore Waters,” in Alexander, Offshore Boundaries and Zones, 100.).

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South China Sea controversy has destabilized regional ocean authority and power relationships—unresolved despite the recent arbitral decision against China—is reminiscent, albeit in a context today of much greater concern about possible military conflict, of the way in which the extended jurisdiction movement and the rising power of the ldcs were seen in the 1960s as forces that were dangerously destabilizing ocean law and international relations. The changing geopolitical realities of that day were complex, of course: Commentators were already routinely writing in the 1960s, for example, of the global “population explosion” and how its pressures on resources were animating the rivalries of major marine fishing powers and the coastal states. The specter of resource depletion also drove the nascent enthusiasm about deep seabed mining and undersea oil or gas production as solutions to potential shortfalls of land-based energy sources. Infusing every debate on ocean resources law and policy was recognition that a remorselessly accelerating ­technology, as an “underlying social reality,” had overtaken and was threatening to overwhelm the capacity of existing ocean law and institutions to contain these pressures. Security issues and tensions were embedded in the very fabric of the legal order of the oceans. The Vietnam War, although it was mentioned in perhaps four lines at most of the entire proceedings of the first and second losi conferences, together with the emergence of a Sino-Soviet “split” in global great-power relations, had introduced further uncertainties into the ­discourses on ocean law.67

…

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The initial losi conferences, like the Geneva agreements, were concerned mainly with the “peaceful uses of the oceans”; four papers in all were focused on military security, and this issue was peripheral. Nonetheless, the issue was implicit—and certainly not unimportant (for example, with regard to transit of warships in coastal zones and archipelagic straits)—and it did receive explicit attention especially from panelists concerned with the problem of a seabed regime. Three revealing contemporary analyses of global security issues and ocean law were presented at a May 1968 Columbia University conference: L.S. Martin and Hedley Bull, “The Strategic Consequences of Britain’s Revised Naval Role”; Marshall Shulman, “The ­Soviet Turn to the Sea”; and Gordon J.F. MacDonald, “An American Strategy for the Oceans,” in American Assembly of Columbia University, Uses of the Sea. How the u.s. military viewed the seabed issue was presented in Warnke’s letter to the Foreign ­Relations Committee, Nov. 1967, in Hearing: Governing the Use of Ocean Space; and, more g­ enerally, in Hollick, u.s. Foreign Policy, 202–239. Perspectives from the 1978 losi conference (held in The Netherlands) were provided by a set of excellent papers in a panel on military questions in ocean law and policy, Law of the Sea: Neglected Issues, edited by John King Gamble, Jr. (Honolulu: Law of the Sea Institute, University of Hawai’i, 1979), 325–422.

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The intractable core reality that had become evident by 1966–67 was that the Geneva agreements had proven no more adequate to the task of moving ocean law forward effectively (that is, in “progressive development of the law”) than had been the application of the inherited doctrines of customary law. The essence of this dilemma was expressed succinctly by Arthur Dean, who wrote after the collapse of the 1960 Geneva conference: “The historic doctrines of the Freedom of the Seas do not have the same appeal for newly formed nations” as had traditionally been accorded them in the West. “Our noblest traditions,” Dean counseled, were regarded by the ldcs as scarcely disguised rationales for the imperial expansion and colonialism of the past.68 The e­ xtended-jurisdiction movement was producing in international law what the British jurist H ­ umphrey Waldock feared would become “a disorderly riot of unilateral claims.” Similarly, the eminent American scholar Philip Jessup warned that finding a solution for the “semi-anarchic condition” of ocean law was imperative.69 None of the panelists at the initial losi meetings expressed opinions to the contrary: the manifest core consensus was that solutions must be sought to reverse the trending destabilization of the legal order. But then again, nearly all of the panelists were Americans or Canadians (the only exceptions being Shigeru Oda and two other Japanese, and one Scot at the second conference). The tone of the losi conferences papers and panel comments reflected what may fairly be termed the core viewpoint of the developed industrial nations in the 1960s, as became manifest from the start of the un Caracas meeting on the unclos project. As conceptualized by the advanced industrial nations, the approach to ocean law questions was that the issues were “essentially ­scientific, technological, and economic.” The competing view, held by the less developed nations, was, by contrast, ideological and politically aspirational—“an approach viewing the law of the sea as simply one among many elements in a continuing and constant struggle against the industrialized nations for their just share of the world’s resources … and their rightful place in its political organization.”70 These countries of the ldc (Group of 77) bloc in the emerging new order, as 68 69

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Quoted in Juda, International Law and Ocean Use Management, 155, 162. Waldock, “The Anglo-Norwegian Fisheries Case,” British Year Book of International Law, 28 (1951), 114, 171; Jessup, “The un Convention on the Law of the Sea,” 59 Columbia Law Review (1958), 264. These characterizations are presented in an excellent contemporary analysis by H. Gary Knight, “The Third un Law of the Sea Conference: Caracas,” American University Field Staff Reports, 18, No. 1 (1974), not paginated. One ought not gainsay, however, that both approaches may fairly be termed “ideological” even though the term has very often, if not defensibly so, been applied only to the viewpoint of the ldcs.

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decolonization was occurring, had not been represented on panels at the losi meetings in the mid-1960s. And yet the anticipation of their likely influence in future international negotiations was an ineffable presence, ominously hanging over the initial losi debates.

Science, Technology, and New Frontiers of Enterprise

There were enormous differences, of course, between the larger geopolitical and techno-economic contexts of the 1960s era and those of the present day. Vast changes were generated by five decades of advances in science and technology, growth of world population from under 3 billion in the Sixties compared with 7.5 billion today (with the un estimating a further rise to 9.7 billion by 2050), intensification of investment and activity in the industrialized and resources sectors of the worldwide marine economy, and the convergence of these elements in new threats to the marine environment—with the ultimate convergence, as it may be termed, now manifested in the critical (and overarching) problems being generated by climate change.71 In the institutional dimension of ocean-law context, too, there is an impact on ocean governance and law today that is in marked contrast to that of the 1960s. In the mid-1960s only the fao and, to a lesser but growing degree, unesco, were agencies of the un whose activities had to be taken into account on anything close to the extent that multiple agencies and other actors are involved in policy and law making today. Burke identified in additional five ­international scientific organizations engaged in forward-looking oceans research and policy formation in the mid-60s.72 The size, jurisdictional reach, scope of policy concerns, and sheer complexity of the institutional structure for ocean governance are such that solely within the un organization itself there are some fifteen major specialized agencies with oceans-related responsibilities. Meanwhile the larger un structure now embraces the three major institutions created under terms of unclos—the International Seabed A ­ uthority, itlos, and the Continental Shelf Commission. All of them, together with a 71 See, inter alia, David D. Caron, “Climate Change and the Oceans,” in Regions, Institutions, and Law of the Sea, edited by Harry N. Scheiber and Jin-Hyun Paik (Leiden and Boston: Brill/Nijhoff 2013); Harry N. Scheiber, “Economic Uses of the Oceans”; Davor Vidas, “­International Law for the Anthropocene?,” Anthropocene, 9 (2015), 1–13; Symposium ­Issue: “The Law of the Sea Convention at 30: Successes, Challenges, and New Agendas,” edited by David Freestone, International Journal of Marine and Coastal Law, 27 (2012). 72 Ocean Sciences, 16–17.

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greatly expanded role that has been taken up by the International Maritime Organization (imo) and by emerging programs of the regional fishery management organizations (rfmos), are exercising great influence today on the trends and content of ocean law and uses. The non-governmental o­ rganizations are prominent players in every aspect and every forum of ocean law debates, and especially so with regard to environmental issues; and a significant number of large private-sector organizations (many of them international in membership) with ambitious agendas, are also now becoming an estimable presence in the oceans discourse.73 In the arena of formal legal innovation, human activities involving ocean resources operate under a wide panoply of “soft law” as well as under accession to unclos and other instruments that define rights, duties, and obligations to cooperate. The strictures of soft law—whether ­formalized in generalized codes such as the fao has p ­ romulgated on fisheries and port control, or instead found embedded in international agreements (and, by reiteration in a significant number of such agreements, attaining the status of “emerging” or “accepted” customary law)—today constitute a body of strongly stated norms for which there was only a slight counterpart in the 1958 Geneva Conventions. Thus the proposed “principles” of ocean law that were distilled in writings by Jon Van Dyke more than fifteen years ago, for e­ xample, and more recently formulated in several iterations by David Freestone, demand consideration if not unqualified assent today; but (if addressed at all) they were largely aspirational and only vaguely defined at the time of losi’s founding and initial conference debates.74 All that having been said, however, some noteworthy commonalities are ­evident when one compares the key substantive issues in the ocean law debates of our own day with the issues debated during the mid-1960s era of uncertainty, when losi was founded. In both periods, virtually every discussion of ocean affairs debates has reflected a keen awareness of accelerated, far-reaching advances in science and technology, inspiring concerns about the adjustments in law and public policy 73

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I draw the specific numbers regarding present institutional structures from an invaluable survey and analysis of the global governance structure and its large context that is provided in an important multi-author project soon to appear as a publication of the International Maritime Law Institute, Comprehensive Study on Effective and Sustainable Global Ocean Governance, edited by David J. Attard and Malgosia Fitzmaurice (private circulation document, as submitted to the Nippon Foundation, 11 Feb. 2017). See Jon Van Dyke, “Sharing Ocean Resources—in a Time of Scarcity and Selfishness,” in Law of the Sea: The Common Heritage and Emerging Challenges, edited by Harry N. Scheiber (Boston and Leiden: Brill/Nijhoff, 2000); David Freestone, “Problems of High Seas Governance,” in Vidas, The World Ocean in Globalisation: Climate Change … , Chapter 6.

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needed to meet the rising challenges that were anticipated. Apart from these substantive concerns, the oceans community in both periods has sought to define satisfactorily in international law the extent, and distance from the shoreline, to which coastal states may (a) define the terms of access, and (b) regulate the operations of scientific exploratory investigations, including those with commercial and/or security implications. Stated in other terms, the latter issue addresses the degree to which the tenets of “freedom of the seas,” under prevailing international law, accommodate or constrain marine scientific ­research (msr) in the vast segments of world oceans that in the 1960s were experiencing “enclosure” by dint of creeping jurisdiction—and which in today’s world are located in the much more extensive ocean areas comprising national eezs and the areas claimed as extensions of various states’ continental shelf formations. Moreover, there is a striking parallel in the magnitude of attention focused on the potential exploitation of the resources of the seabed in the “high seas” areas of the global ocean—the Area Beyond National Jurisdiction (abnj)—in the mid-1960s and today. The research and policy analysis that centered on the issue of deep seabed mining in the 1960s, with emphasis especially on potential mining of manganese nodules, foreshadowed (and has its counterpart in) the concentrated scholarly and diplomatic attention that has been devoted in our own day to the issues of biodiversity protection in the abnj oceans, including the seabed. At present, the oceans community is fully engaged in the elaborate and ritualized process of initiating a un conference for the writing of a new international convention.75 By contrast, the seabed law debates of the 1960s proved to be a useful prelude to the historic negotiations regarding the Seabed Authority and the adoption in 1994 of the Agreement on Article xi of unclos—even though the extravagant predictions as to an early commencement of commercial manganese nodules proved far off the mark. Indeed, as recently as 2016, after passage of half a century’s time, an initiative announced by a seriously troubled speculative mining venture for seabed mining in the Bismarck Sea is a reminder that the 1960s vision of mining for fabulously valuable nodules from the deep seabed still remains well short of even the serious beginning of realization.76 75

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This effort, aimed at enlarging the jurisdictional reach and amplifying the terms of the 1982 unclos so as to protect marine biodiversity, is analyzed in its several dimensions in Chapters 11–15 in this volume. Julian Smith, “Seafloor Miners Set to Cut into an Invisible Frontier,” Scientific American, available at https://www.scientificamerican.com/article/seafloor-miners-poised-to-cut -into-an-invisible-frontier/. Although the private corporation undertaking this project

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Assessments of Progress and Portents of Change There was a broadly shared understanding in the 1960s decade that accelerating technological change and innovation needed to be comprehended, and then responded to, in public policy and diplomacy in the interests of global security and human welfare. This understanding was nowhere expressed more effectively vis-à-vis the legal ordering of the oceans than in the writings of ­William T. Burke. While he was active as a co-organizer of the initial losi conferences, Burke had commanded a central role in both national and international learned discourses of the mid-1960s on the subject of science and technology in relation to international ocean law. In addition to publishing in Europe a monographic study analyzing current and anticipated advances in technologies that raised new issues in the law, Burke wrote in 1966 his short book, Ocean Sciences, Technology, and the Future International Law of the Sea, in which he laid out with extraordinary prescience the multiple challenges to state practices and to established international ocean law that were posed by a wide range of technological innovations and scientific discoveries.77 Burke’s analysis was keenly insightful and of remarkable scope, based on diverse sources that included newspaper and journal reports of recently declassified security data, articles in the premier behavioral science journal of the day, a large body of government documents, and (as seems implied) some personal interviews with key scientific, military, and agency leaders. The subjects on which he cast a strong light were many: For example, scientific and military surveillance or data installations constructed on sea mounts or floated on a system of buoys over wide ocean space; the exploration and exploitation of the seabed by use of both manned and robotic submersibles; installation of floating or fixed missile launching systems; and “such diverse modalities as radar, infra-red processes, laser beams, underwater acoustics, artificial methods of fish aggregation, fish farming and fertilizing; satellite communications, … improved navigation systems, materials technology, engine and ship design,

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publicizes that it has consulted with Woods Hole and sio scientists on minimization of adverse environmental effects, both independent environmental scientists and the indigenous peoples in the adjoining coastal areas—complaining of secrecy in the company’s operations and the lack of a systematic environmental impact study—have mounted ­opposition to the project. See also Craig Allen’s discussion in Chapter 4, below, of Burke’s writings in the mid-1960s. Another book of Burke’s, mentioned earlier, above, was published in Stockholm in 1968, Towards a Better Use of the Ocean: A Study and Prognosis, consisting of a long essay by Burke together with comments by others; cf. D.S. Cheever’s appreciative assessment, in a book review in The American Journal of International Law, 63 (1969), 667–668.

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nuclear radiation, refrigeration, and, finally, but by no means least, computer technology.”78 In all of his several extraordinary papers on the subject in the 1960s, Burke was deferential as to both u.s. military security needs in general and the Navy’s programs and projects specifically. This feature of his scholarly contributions was similarly evidenced in nearly every panelist’s presentation in the losi conferences of 1966 and 1967, a reminder that an overriding aspect of the ocean law discourse in that day was the Cold War. Strategy analysts, legal scholars, and other academics appeared to have been no more inclined than were ocean scientists (many if not most of whom relied on government funding, much of it coming from defense programs) to propose subordination of military security needs to other objectives that they valued in proposing ocean law reforms. (It must be recalled, too, that the Cold War was in a particularly troubled “hot” phase in the mid-1960s, as the u.s. bombing and ground combat in Vietnam were expanding almost daily in scope and intensity—a situation which, as noted above, received only the slightest passing mention by presenters in the losi proceedings of either 1966 or 1967.) The exception in this regard was the position contended for by the Peace Commission speakers, Eichelberger and Christy, advocating the entire disarmament and demilitarization of the ocean. As noted earlier, they met with dismissive responses, however, at the losi meetings. Burke in particular commented that their “utopian” vision, especially as it would obviously never gain support from the ussr or the United States, was becoming an unwelcome distraction from the more relevant debates of realistic proposals for legal innovation.79 78 Burke, Ocean Sciences, 21. Douglas Johnston addressed parallel and some overlapping themes in an important paper, “Law, Technology, and the Sea,” California Law Review, 55 (1967), 449. Johnston (who, like Burke and Oda, had done a doctoral degree at Yale under McDougal’s mentorship) emphasized somewhat more than Burke had done the future of weather forecasting; the potential roles of advanced electronics in automation of navigation and other aspects of conventional surface navigation; and possible technologies for climate modification to expand cultivable land areas and aquaculture in contribution to future food security in the face of rapidly increasing global population. Again like Burke, Johnston took a largely benign view of military marine technology, stating that it was “bound to produce significant benefits for nonstrategic uses of the sea.” Ibid, 453. 79 The initial losi meeting did include a paper, “Freedom of Navigation,” by Cmdr. Bruce Harlow, usn, providing a brief exposition, in the context of varying views on the territorial sea, archipelagic straits, and other current themes in post-1958 debates, on why freedom of navigation was an overriding fundamental interest of the Navy. In subsequent years, Harlow, who rose to admiral’s rank, was a frequent losi conference participant and occasional panel presenter on military issues.

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Further as to the military uses of the oceans, especially with regard to environmental threats, neither Burke nor others in the losi discussions found it appropriate to comment on, let alone criticize, the u.s. hydrogen bomb tests that had been conducted at Bikini Atoll in the Marshall Islands—operations that had rendered the area uninhabitable for humans and wreaked damage on an unprecedented scale upon the flora, fauna, and seabed structures of a vast swath of the Pacific, with collateral damage in the irradiation of Japanese fishermen within the orbit of the fallout. Famously, in a 1955 Yale Law Journal article, Myres McDougal, Burke’s mentor, had justified the testing program as being a “reasonable” use of the ocean that was legitimate under accepted tenets of the traditional “freedom of the seas” doctrine. McDougal’s argument had rested on a simple premise: Because the purpose of the activity (arms development for national security) was important to the United States, because the other states affected either were passive or else actively had agreed to the tests, and because the u.s. government was taking responsibility (or so it was characterized) for the damages wrought, nothing in the existing law of nations forbade the program.80 Self-preservation, he declared, caustically, was the 80

Myers McDougal and Norbert Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” Yale Law Journal, 64 (1955), 648ff. (Schlie was then a law student at Yale.) Published in the same journal issue was an article by a private attorney, Emanuel Margolis, “The Hydrogen Bomb Experiments and International Law,” ibid., 629–647, setting forth both legal and moral objections to McDougal’s views. Margolis commented on how little attention had been given in the United States, until then, to the human costs that had been incurred, or even to the diplomatic protests (especially of Japan, a country which spoke from its unique experience with atomic bombing), and criticism from an elite coterie of nuclear scientists opposed to the further testing; they included some Nobel laureates. Ibid., 629 n. 1. See, e.g., William Arnold, “Effects of the Recent Bomb Tests on Human Beings,” Bulletin of the Atomic Scientists, 10 (1954), 237. Citations of other ­articles that had expressed legal and moral arguments contrary to McDougal’s views on the ­hydrogen bomb tests are in McDougal and Schlie, ibid., 649 n. 9. During the 1958 Geneva negotiations, Japan had proposed that the High Seas Convention should include a provision banning nuclear testing on the high seas (while Russia and three Soviet satellite states came forward with a similar but separate proposal); the outcome was agreement by a vote of 51 to 1 (14 abstaining) on a statement “refer[ring] this matter to the General Assembly for appropriate action.” Oda, “Japan and the un ­Conference on the Law of the Sea,” Japanese Annual of International Law, 65 (1959), 73–75. In the years that had passed between the time of the first tests and the founding meetings of losi, the u.s. Government had agreed to reparations payments both to Japan and to the residents of the Marshall Islands—though the adequacy of the restitution levels, apart from the justification of conducting the tests at all, is the subject of continuing controversy, on which see, e.g., Philip Okney, “Legacies and Perils from the Perspective of

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value potentially at stake, to be given priority by any defensibly legal means: “Until a reasonably secure world public order can be established, the free half of the world has no alternative but to make certain that it remains a scorpion and does not invite transformation into inanimate radioactive dust.”81 That neither Burke nor others who participated in the 1996 and 1967 losi debates seemed to be interested in a critical examination of this view of prevailing ocean law, regarded as the most extreme of legal rationalizations for nuclear tests on the oceans, can be seen as an indicator of how deeply infused with Cold War apprehensions and values were most prominent mainstream social science, legal, and even scientific oceanographic writings of the period. (A different tone did surface occasionally, however, in Burke’s writings at the time, for example, his assessment of submarine missile-launch systems as carrying the threat of “indescribable devastation” and “global destruction.”82) The 1958 Geneva agreements having been explicitly adopted by the organizers as the framework for debates in the initial losi meeting, it should be noted that the Convention on the High Seas did address in Article 25 the matter of radioactive waste only in relation to dumping of waste at sea, essentially permitting it so long as done “with a reasonable regard to the interests of other states,” and “taking into account only standards and regulations which may be formulated by the competent international organizations.” To be sure, at a few moments during the 1966 and 1967 losi proceeding, panelists voiced some guarded hints that there might be portents of future

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the Republic of the Marshall Islands Nuclear Claims Tribunal,” in The Oceans in the Nuclear Age: Legacies and Risks, edited by David D. Caron and Harry N. Scheiber (expanded ­edition, Boston and Leiden: Brill/Nijhoff, 2014), 49–68. A scholarly article that brought to the forefront of discourse the issue of indigenous peoples’ rights in the small islands of the Pacific that were potentially or actually affected adversely by testing appeared in 1968, just after the second of the initial losi conferences. (A.G. Mercer, “International Law and the French Nuclear Weapons Tests,” New ­Zealand Law Journal, 1968 [1968], 405–421.) Mercer’s study was published against the background of diplomatic exchanges that resulted in the filing in the icj by Australia and New Zealand of a case calling on the Court to order a halt to the French tests. Initially France refused to defend, on grounds its sovereign interests overrode international jurisdiction; later, France announced a halt to its program, and the icj proceeding was terminated. (Nuclear Testing Case, 1974 icj, 253, 457.). McDougal and Schlie, “Hydrogen Bomb Tests,” 709. Ocean Sciences, 33ff., gave at least passing attention to nuclear arms, especially seabedbased launching sites and Polaris missile capabilities, as having potential for “deeply disturbing impact on expectations concerning the use of violence,” warranting consideration of surveillance-technology sharing between the United States and the Soviet Union, to head off possible misunderstandings and armed confrontations. Ibid., 26–27.

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dangers to the environment or human health in technological developments, and especially military projects, that were under discussion. But no one stepped forward to mention, let alone infer future dangers from, even such spectacular recent disasters as the mid-air military plane crash in January 1966 over Palomares, Spain, resulting in the loss of four hydrogen bombs. One of the bombs fell into deep water and was recovered successfully by a massive u.s. Navy effort, involving a complex operation employing a fleet of ships and a wide array of new technologies for searching and raising, including the use of the legendary submersible Alvin.83 Nor was there discussion (at least recorded discussion) at the 1967 losi conference regarding the catastrophic breakup of the Torrey Canyon five months earlier. The tanker had grounded on the Cornwall Coast, resulting in a 700,000-barrel spill and bringing worldwide attention to the issue of oiltransport security, tanker ship design and standards, and cleanup for such an extensive coastal spill.84 In the world outside, beyond the site of the Rhode Island meetings, opinion as to environmental issues highlighted by such disasters was already undergoing a major change among experts; and it was being expressed as well in international diplomacy of the great powers and in regional diplomacy. Most 83

Dr. John P. Craven, then chief scientist of the Navy’s Special Projects Office, pioneered the application of Bayesian search techniques to locate the bomb. Craven was legendary in oceanographic engineering. He was a key figure in development of the Polaris Missile system and in the design and adaptation of military submarines for spying as well as search and rescue missions. (Obituary article on John Craven: “The Silent War, 20,000 Feet Under the Sea,” The Economist, February 28, 2015, p. 82.) When the losi home base moved to the University of Hawai`i, Craven was named director and pursued an active agenda of staging major annual conferences in overseas venues as well as in Honolulu. (See Afterword section of this chapter.) Analysis of central issues in those conferences is provided in Chapter 3 (by Clive Schofield) and Chapter 2 (by Sherry Broder), in this volume. 84 The Guardian, Torrey Canyon Disaster, available at https://www.theguardian.com/ environment/2017/mar/18/torrey-canyon-disaster-uk-worst-ever-oil-spill-50tha-anniv ersary. Ironically the solvents used in the cleanup effort proved to have imposed toxic effects on the environment at as serious a level as had the contents of the spill. (itop, Torrey Canyon, United Kingdom, 1967, available at http://www.itopf.com/in-action/case-studies/ case-study/torrey-canyon-united-kingdom-1967/.) The Torrey Canyon disaster became, of course, a standard point of reference in the negotiations on the Third un Conference’s writing into the unclos treaty an article on environmental responsibilities. There is a linear development, historically, from the Torrey Canyon incident to the formulation of the sensitive areas doctrine as a major issue in oceans shipping and environmental law; cf. Gerard Peet, “Particularly Sensitive Sea Areas: A Documentary History,” International Marine and Coastal Law, 9 (1994), 469ff.

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notably, the negotiation of the Nuclear Non-Proliferation Treaty that would be signed in 1968—the historic breakthrough in multilateral control of weapons development—had nearly concluded when the second losi conference was held in 1967. At the regional level, the Latin American nations were then just preparing to sign the Treaty of Tiatelolco, prohibiting nuclear weapons, which came into force for thirty-three states parties within only a few years; and the international treaty for prohibition of nuclear or other mass-destruction weapons on the ocean floor was opened for signature in February 1967 and was also winning wide ratification. The time lay soon ahead before any academic conference on ocean law would regard it as imperative to have discussion of issues relating to the protection of health and welfare of human populations and the physical environment. Over time, the losi conferences, too, paid increasing attention both to environmental law issues generally, and specifically to the damages incurred by bomb testing at sea, and the dangers associated with possible nuclear ­accidents in ocean transport of radioactive waste, the navigational transit of nuclear powered or nuclear armed naval ships, the toxic release of waste by coastal nuclear power stations in violent storms, and other perils that emerged in the nuclear age.85 The Global Fishing Surge and the 1958 Fishing Convention Of the four 1958 Geneva agreements, the one that had initially raised the highest hopes for success—yet it was the one that produced the smallest impact— was the Convention on Fishing and Conservation of the Living Resources of the Sea (the Fishing Convention). Neither in its visibility in ongoing discourse nor in its provocative effect on global oceans diplomacy did it match the influence of the other three Geneva conventions. Only twenty-four states had become parties to it as of June 1967, and those nations’ combined landings were only 14 percent of the world fish catch. Iceland was the only state party except for the United States, the uk, and South Africa to have large landings by what was regarded as a modernized fishing fleet; the others were either less 85

Caron and Scheiber, Oceans in the Nuclear Age: Legacies and Risks, 514–534 et passim. During later years in the history of losi, Jon Van Dyke, professor of law at the University of Hawai`i and deeply involved in the organization’s work, played a lead role in bringing into losi debates at several meetings in the 1970s and afterward the manifold threats to the environment posed by the uses and transport of nuclear materials. Van Dyke’s many larger contributions to the theory and moral imperatives of international law are analyzed in Harry N. Scheiber, “A Jurisprudence of ‘Pragmatic Altruism’: Jon Van Dyke’s Legacy to Legal Scholarship,” University of Hawai`i Law Review 35 (2013), 385ff., available at: http:// scholarship.law.berkeley.edu/facpubs/2237.

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developed countries with small coastal landings, in some measure only from artisanal operators, or were not commercially engaged. Moreover, the Convention’s provision for compulsory settlement of disputes, which was potentially of enormous impact, had never been invoked by any state party. And so even William Herrington, the uniquely influential member of the u.s. delegation at Geneva on all fisheries issues, had become reconciled to the situation. He admitted so to the losi conferees, expressing his rather lame expectation (or, perhaps more accurately, his earnest hope) that “the principal effect of the Convention” would not be in realization of its specific terms; rather, he asserted, it would lie in “its moral and technical influence,” as it provided “precedents and standards for bilateral and multilateral agreements.”86 Much the same conclusion had been reached by Wilbert Chapman, the ­former Department of State top fisheries policy officer and in that capacity the architect of several important regional fisheries conventions fifteen years earlier. He had welcomed with great optimism the signing of the Fishing ­Convention in 1958. By the time losi met in 1967, however, like Herrington he was confessing to at best modest expectations. The Convention, he now thought, could provide “a suitable framework” for designing strategies to protect fish stocks from overfishing; he saw no merit in seeking to organize a new conference for negotiation of yet another general agreement on a fishing ­regime, thereby risking a “disrupting effect on the entire field of law of the sea.” He preferred, he said, to “just muddle along best we can” in an incremental mode, hopefully resolving problems “one by one, … temporizing and reaching agreement through diplomatic efforts.”87 A third fishing management expert 86

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Herrington, “The Future of the Geneva Convention on Fishing … ,” in Alexander, Future of the Sea’s Resources, 63; and Herrington, “The Convention on Fisheries,” in Alexander, Offshore Boundaries and Zones, 34. Chapman, “Fishery Resources in Offshore Waters,” in Alexander, Offshore Boundaries, 104–105; and Chapman, “Comment,” in Alexander, Future of the Sea’s Resources, 92. His initial enthusiasm for the Fish Convention was based mainly on his hope that there would be effective implementation based on the management principle of Maximum Sustainable Yield or its variant, Optimum Sustainable Yield. His skepticism about the prospect of another general fishing convention of broad scope, such as that of 1958, also reflected his concern that the u.s. negotiators would agree to wider territorial sea and fishery zones, even beyond the twelve-miles fishery zone (six plus six) that had been proposed by the u.s. delegation at the 1960 Geneva Conference but failed to obtain the necessary votes to be adopted. Further extensions of coastal state jurisdiction were anathema to the American tuna industry, whose interests Chapman was then championing; and he felt that the tuna interests had been “sold out” in the 1960 Geneva conference. The Navy, he

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at the losi meetings, the fao scientist Roy Jackson, adopted much the same position, averring that it was more acceptable to go along with the “chaotic and changeable” situation in global fisheries than to opt for a comprehensive regime administered by a un bureaucracy, which many thought was the only practical alternative.88 It was ironic that the Fishing Convention had garnered so few ratifications and that its usefulness was viewed in such dismal terms by many leading experts, at the losi conferences as well as in the global discourse on ­management policy; for it was widely recognized by nearly all informed commentators at the time that overfishing was a problem of rising danger in many of the ocean’s fisheries. Biologists and managers, joined increasingly by policy officials and segments of the general public in the industrial nations, were voicing concern in the face of a doubling of global marine fish landings in the 1950–60 decade. As the assault on the stocks continued to gain momentum, global landings of marine fish in 1969 were 56 million tons, with another doubling in the decade beyond. The sources of this global surge in the harvest of fish stocks included foreign aid programs and industrial governments’ subsidies to their own fishing industries that underwrote the expansion of capacity worldwide, including massive new investments in diesel-powered heavy trawlers and in proliferation of factory ships that had ocean-wide range, with refrigeration and storage facilities on board; and the refinement and spreading use of “finding and harvesting” technologies. Among other leading factors, Japan’s distant-water fleets were expanding their range of operations into the Atlantic and Mediterranean ocean areas, as well as into the Eastern Tropical Pacific and the Western P ­ acific tuna fisheries. Meanwhile, the Soviet Union had also entered into distant-water fishing, presenting new competition for North American and European operators as well as coastal-based marine fishing interests.89 It is not surprising, then, that one of the technical and scientific questions given close attention in the losi conferences concerned the future implications of the global marine fishing surge. Fishery biologists were scarcely agreed on the reliability of existing estimates of the potential volume of annual harvests of food fish and other potential food products from the marine

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complained, was willing to lend support to authorization of unwisely extended fishing zones so long as it was linked to guarantees of transit rights for military vessels in coastal and archipelagic zones. (Chapman, panel comment, in ibid., 170–171.). Jackson, panel comment, in Alexander, Future of the Sea’s Resources, 139. Donald McKernan, “World Fisheries—World Concern,” in Rothschild, World Fisheries Policy, 25–51; Scheiber, “Chapman and the Pacific Fisheries,” passim.

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fauna biomass: differences of expert opinion were of enormous magnitude. Chapman, for example, considered the theoretical annual harvestable limit of ­table food fish to be between 100 and 400 million tons, further speculating that many times that amount was possibly available. In the most extravagant of his ­calculations, he even suggested a maximum of 2 billion tons [sic], on an assumption that this potential for meeting human food needs would take into account fish meal processed from species low in the food chain, even including krill, not yet valued in the 1960s. Contrariwise, Don McKernan regarded the limit of table food fish to be far closer to 50 million tons per year, while still other widely disparate estimates were in play by the late 1960s: Schaefer had very cautiously endorsed estimates of up to 400 million tons per year, expressing strong reservations about some of the assumptions Chapman had brought into his calculations.90 Essentially all specialists, however, were in agreement on a need for more and better research so as to produce the scientific data ­required for effective management. The Problematic of Optimum Sustainable Yield (osy) The 1958 Fishing Convention (by contrast with the High Seas Convention) went well beyond the codification of customary law, instead taking an innovative tack, involving an important set of departures in the specification of new legal rights and obligations of states parties. In regard to coastal states’ fishing regimes both in the waters under their jurisdiction and in adjacent waters of high seas, and also in regard to distant-water nations’ regulation of their fishing fleets, the new obligations—including a generalized “duty to cooperate” that was subject to compulsory adjudication in event of specific disputes, centered on the key provision that imposed the standard of “Optimum ­Sustainable Yield” (osy). It is important to recognize that osy was the linchpin of the treaty’s processes for regulation in the interest of sustainable conservation and harvesting of global fisheries. And yet, as of 1958, there was no discernable scientific consensus on the exact meaning of osy. To be sure, it was well understood that it was a variant of the already-established standard Maximum Sustainable Yield 90

Chapman, “Opening Remarks,” in Alexander, Future of the Sea’s Resources, 121; Schaefer, “The Potential Harvest of the Sea,” Transactions of the American Fisheries Society, 94 (1965) 123–128. Roy Jackson, the fao officer, estimated maximum potential food fish harvest at about 200 million tons. (Ibid., 8.) Discussion of the varying estimates, including ­Chapman’s, in their diverse contexts and hypotheticals, is provided in John A. Gulland, “Fishery Management and the Needs of Developing Countries,” in Rothschild, World F­ isheries Policy, 277ff.; and Scheiber, “Chapman and the Pacific Fisheries,” 492–494.

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(msy), the goal of which was to maximize the output of fish product. The msy concept had been championed as being “a logical, scientific foundation for a type of management which focused on the fish … [and] avoided the myriad problems now labeled ‘social, political and economic.’” The msy concept had gained wide support from biologists and managers in the 1940s and after; and it had proved to have great appeal to the public, with whom it was promoted as the best way to assure conservation of the resource and maximization of food supply. It had also become an attractive concept for the fishing industry as well.91 Beginning in the early 1950s, however, the msy concept began coming under attack from a small coterie of specialized economists who denounced msy as a “socially meaningless” objective because it was exclusively concerned with the fish catch and with conserving the resource. Instead, the economists argued, fishery management programs should have economic efficiency as their objective. This attack was led by Scott Gordon, together with three other economists who carried their message into the initial losi conferences, namely, James Crutchfield, Giulio Pontecorvo, and Francis Christy. These writers built their attack on a foundation of earlier scholarship that had analyzed open-access fisheries in terms of what was then commonly termed “the dilemma of the commons” (later to be popularly rephrased as “the tragedy of the commons”), viz., that if the resource was freely accessed and exploited, there was no economic incentive for the fishing operators to refrain from maximizing their individual shares of the harvest. Moreover, the labor and capital costs involved, critics argued, should be taken into account in any calculation of the larger economic effect of a regulatory system.92 91

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Harry N. Scheiber and Christopher Carr, “From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937–1976,” Berkeley Journal of International Law, 16 (1998), 10–54 (a historical overview and close analysis of evolving theories and practices). For an insightful discussion of msy in relation to the osy concept in the Fishing Convention and the previous discussions in the 1955 Technical Conference, see M. Stuart Kaye, International Fisheries Management (The Hague, London, Boston: Kluwer Law, 2001), 62–75. The seminal article in the 1950s was by H. Scott Gordon, “The Economic Theory of a Common Property Resource: The Fishery,” Journal of Political Economy, 62 (1954), 124–142. Overviews of the literature and the major theoretical arguments in the critique of msy were written by two economists who themselves prominently championed efficiency criteria and were leading figures in the North American and international debate: Anthony Scott, “Development of Economic Theory on Fisheries Regulation,” Journal of the Fisheries Research Board of Canada, 36 (1979), 724–741; and James Crutchfield, “Economic and Political Objectives in Fishery Management,” in Rothschild, World Fisheries Policy, 74–86.

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Reporting to the losi conferees on findings from their research project on one major regulatory program, the regime for Pacific salmon, Crutchfield and Pontecorvo asserted that half or more of the labor and capital represented “sheer waste.”93 The salmon program enforced economically irrational regulations that made inefficiencies mandatory (e.g., a ban on use of motor power that forced reliance on sail in designated areas of regulated waters). At a more fundamental level, the authors argued, it was the underlying policy of unlimited new entry, with resultant overcapitalization, that had sustained an inefficient fishery that fell far short of what more rational use of labor and resources would have produced as net gain for society as a whole. At the 1967 losi conference, Crutchfield laid out the argument for a radically different policy, involving at minimum a system of limitations on entry (freeing excess capital and labor for other areas of economically productive enterprise), with priority given to newly designed regulations that he proposed would maximize efficiency of production instead of concentrating only on the biological standard of maximization of final annual product.94 The case for ­addressing the problem of the commons in fisheries by various means—a ­licensing or taxation system linked to limitations on entry, phasing out of vessels and gear technology deemed inefficient, and other methods—had been fully aired in a series of intensive debates in several Canadian Government and fao conferences prior to losi’s founding. Those earlier conferences had involved biologists, managers, and economists. With losi’s initial conferences, however, the efficiency-oriented proposals, with the accompanying strident denunciations of the msy standard, were presented to an audience of legal scholars and social scientists for many of whom this was, one cannot doubt, a first exposure in any depth (if at all) to the controversy. In a closing essay that summarized the proceedings of the first losi conference, Pontecorvo remarked on the way in which “the running argument between the physical scientists and economists … [was] illustrative of the many real difficulties introduced into the discussion by differences in training and outlook, i.e., which variables are considered important.”95

93 94 95

Quotations in this paragraph are from Larry A. Nielsen, “The Evolution of Fisheries Management Philosophy,” Marine Fisheries Review, Dec. 1976, pp. 15, 19. Crutchfield, “Overcapitalization of Fishing Effort,” in Alexander, Future of the Sea’s R ­ esources, 24. Ibid., 27; cf. Crutchfield and Pontecorvo, The Pacific Salmon Fisheries: A Study of Irrational Conservation (Resources for the Future, Baltimore; Johns Hopkins Press, 1959). Giulio Pontecorvo, “Reflections on the Meeting of the Law of the Sea Institute,” in Alexander, Offshore Boundaries and Zones, 310–311.

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My own impression accords with Pontecorvo’s summary view. The published proceedings leave one with the sense that, on this matter, there were ships passing one another in the night: On the one ship, noisy argumentation was taking place; the sounds carried over the water to the other vessel, on which the lawyers and other “outsiders” to the controversy were straining to make sense of what the commotion was all about. In the very near future, what came to be termed the economists’ advocacy of “net economic yield” would blossom into a confrontation on fisheries regulation with even deeper philosophical foundations, viz., a still more strident enthusiasm for the “privatization” of the resource, with property rights awarded to private fishing entities, whether through the use of itqs (individual transferable quotas) or other legal instrumentalities. For the moment, however, the 1958 Fishing Convention had given central place in the fisheries regulation arena to the concept that the negotiators finally decided to call Optimum Sustainable Yield. Thus the Fishing Convention committed signatory states in Article 1(2) to a “duty to adopt, or cooperate with other states in adopting, such measures for their respective nationals, as may be necessary for the conservation of the ­living resources of the high seas.” The last phrase, regarding “conservation,” was defined as the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption. In giving prime place to “maximum supply” of fish and other marine products, in its silence on the terms of the programs in question, and in its omission of an explicit reference to an “economic efficiency” objective, the Convention thus introduced the osy term without in fact departing from the core concept of Maximum Yield. Nonetheless, in the two initial losi conferences, speakers on both sides of the disciplinary divide went their own way, choosing to debate osy as a concept distinguishable from msy and requiring acknowledgment of distinctions evident in the actual policy debates going on in the world of global fisheries politics. Wilbert Chapman, for one, regarded osy as “a confused term” that attempted to meld (a) the objective of msy, which was to achieve from a fishery its maximum sustainable annual production in weight of food dish landed, with (b) the distinctly different objective of “net economic yield” (defined as “the difference between total effort [capital and labor costs] put into the fishing

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and the total price received for the catch”).96 During the 1966 and 1967 losi meetings, Chapman had forcefully declared that the osy concept was not only “confused” but was also seriously dangerous, in that it would induce fisheries managers to make bad decisions, harmful both to the fish stocks and to the industry. To be sure, one must discount for the fact that Chapman came to the Institute’s debates of osy as a determined and long-time champion of the view that msy was the proper standard for a fisheries regulatory regime. This had been his position since the late 1940s, resisting any criticism of msy as being an unreliable standard. When those critics were fellow biologists who advocated tempering the standard by taking into account specific ecological factors that affected productivity, it was a dispute among intellectual siblings.97 But 96 97

Wilbert McLeod Chapman, “The Theory and Practice of International Fishery Development-Management,” San Diego Law Review, 7 (1970), 412n. Among the few most prominent fishery biologists to give explicit reference to the ­relevance of economic factors in their writings on msy was Chapman’s closest friend and professional associate, Milner Schaefer. Interestingly, Schaefer did not try to formally incorporate economic factors systematically, i.e., functionally, into his theoretical schema for stock management, but he was clearly on record in recognizing that “economic factors” ideally had to be considered in setting catch limits, having stated, simply: “The question of what is most beneficial to man involves both biological and economic considerations.” In some of his writings on management, he pointed out that the economists’ critiques did not provide useful theory incorporating spillover or multiplier effects of a fishery as calculated from evidence in cannery employment and in the distribution ­systems, and other institutional and economic factors. As a research and administrative director charged with the development of management regimes, Schaefer of course fully recognized that regulatory policies imposed by government agencies—as also with the fishing industry’s behavior, in the category of “Other Predators”—must be factored into both msy and economic yield models. (“Biological and Economic Aspects,” 100; see also his paper for the 1955 Rome Technical conference, in which he also presented a long summary list of biological oceanographic data that ideally needed be deployed in a model that would effectively challenge the existing regimes that depended on msy.) He termed this elaborate integration of biological and environmental data a “4th Level” model for fisheries management. It was a major point in his 1955 Technical Conference paper and essentially foreshadowed brilliantly the debate’s later emphasis on “ecosystem management.” Some recent historical/biographical writing on Schaefer has badly missed this key element of his scientific and policy views, by mistakenly representing him as having a narrowly based concept of msy; and so Schaefer is charged with designing a management model that was fatally deficient for a lack of attention to these issues. I have found nothing in Chapman’s published writings or an extensive private correspondence, including personal exchanges with Schaefer (in University of Washington and Scripps Institution libraries’ archives), in which they took issue with each other on

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efforts by a phalanx of theoretical economists to introduce variables measuring “efficiency” that would override the goal of maximizing output was a dispute between committed antagonists.98 Even so, the skepticism of Chapman and others hardly seems misguided in retrospect: for down to the present day, the msy approach has had perdurable influence in the real world of fisheries management.99 Meanwhile, scientists, fishery managers, and statisticians have continued to fall far short of consensus since the 1960s with regard to the terms of the osy standard. One need only consider the huge effort that was required of a group of eminent fishery biologists and biostatisticians in order to reach agreement on the calculations for the different “reference points” as separate targets for “conservation” and for “optimality” incorporated into the Straddling Stocks these questions. Chapman would hardly have denied that economic issues should be considered, but he resisted any effort to discredit the msy concept on a wholesale basis (as Crutchfield and other economists were doing) as the concept was being employed to protect stocks in several management programs of the day, for example, since 1953 by the tripartite International North Pacific Fisheries Commission, which applied the msy standard to uphold the “abstention” by Japan from fishing for salmon and other species in a large designated area of the Northeast Pacific when a trilateral scientific panel certified that additional fishing effort in the protected waters would damage stock levels. Chapman was convinced that if the economists’ assault succeeded in discrediting msy without (as he contended) presenting the industry and the public with a credible plausible alternative model, it would undermine the fragile existing coalitions that had bought into a generalized commitment to sustainability. Indeed, Chapman also once remarked, only half-facetiously, that actually exhausting a fish stock was not going to be a problem for management, since “the fishermen would go broke” and stop operating well before a stock fully collapsed! 98 See, inter alia, Scheiber, “Chapman and Pacific Ocean Resources”; and Scheiber and Carr, “Extended Jurisdiction.” 99 Ellen Hey, “The Persistence of a Concept: Maximum Sustainable Yield,” International Journal of Marine and Coastal Law, 27 (2012), 763–771; see also M.B. Mangel et al., “Requiem for Ricker: Unpacking msy,” Bulletin of Marine Science, 70 (2002), 763–781. The eu Common Fisheries Policy adopted msy as the standard for determining when stocks are at surplus level and may be fished—as other regulatory rules permitted—in European waters or the eezs of other states (including in eezs on the Atlantic coast of Africa, where in actuality several coastal states lack sufficient resources to support the scientific studies necessary to produce credible data on msy levels so that the purposes of the program are undermined). See Katherine Seto, “West Africa and the European Common Fisheries Policy: Impacts and Implications,” in Ocean Law and Policy: Twenty Years under unclos, edited by Carlos Espósito, Harry N. Scheiber, James Kraska, and Moon-Sang Kwon (Leiden and Boston: Brill/Nijhoff, 2016), 68–100.

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Agreement of 1995.100 Previous failures of regulation had forced yet additional reconsideration of the management paradigm, bringing to the fore the concept of comprehensive “ecosystem management” incorporating the “precautionary approach” and then what I have contended is a pretentious and highly problematic new paradigm of “adaptive management.”101 With exceptional candor, the fao experts who struggled with the problem for the 1995 Agreement had to admit flatly: “In practice, … we do not yet know how to manage ecosystems.”102 Professor Ronán Long’s study of eu fisheries policy development, in Chapter 10, below, among his other important writings, provides a vivid illustration of how the complexities of designing management for a sustainable fisheries regime continue to be a challenging endeavor down to the present day. The Question of Marine Scientific Research (msr) The initial effort by Lewis Alexander and colleagues for the founding of losi in 1965 coincided in time, as we have noted, with a rising movement for persuading Congress and President Lyndon Johnson’s administration to commit the United States to an ambitious expansion of its support for oceanographic ­research. Many interests were involved in that movement: a mix of scientists (the most visible leaders and spokesmen) concerned about ­advancing 100 I refer here to the elaborate calculations theory on “reference points” in stocks assessments, made part of the 1995 Agreement, with all the persistent problems of obtaining accurate data on fish stock mass and dynamics that are essential to the calculations. See Moritaka Hayashi, “The 1995 Fish Stocks Agreement and the Law of the Sea,” in Order for the Oceans at the Turn of the Century, edited by Davor Vidas and Willy Østreng (The Hague: Kluwer Law, 1999), 50; and David Balton and Holly Koehler, “Reviewing the United Nations Fish Stocks Treaty,” Sustainable Development Law and Policy, 7(2006), 8 (reporting on a large-scale expert review of the treaty, after ten years, that collection and analysis of “the scientific and fisheries data necessary to support sound management decisions, and to secure the resources necessary to monitor fishing activities,” remained “daunting problems” for the state parties and non-parties alike). Similar perplexities have been grappled with by statisticians and biologists in the more recent quest to produce “bio-economic models” that will calculate macro-benefits to society. See Stephen Mucko, Christine Fantasia, and Guifang Xue, “Potential Global Economic Impacts of Ocean Acidification,” in International Marine Economy, edited by Myron Norquist, John Norton Moore, and Ronán Long (Leiden and Boston: Brill/Nijhoff, 2017), 84–92. 101 Scheiber, “From Science to Law to Politics,” 631–651. 102 un, fao, The Precautionary Approach to Fisheries, with Reference to Straddling Fish Stocks and Highly Migratory Fish Stocks, 26 January 1994 (un Doc. A/CONF.164/INF/8), 12. See also collected papers, some theoretical and general, others regionally or species focused, in Conservation and Management of Transnational Tuna Fisheries, edited by Robin Allen, James Joseph and Dale Squires (Ames, Iowa: Wiley-Blackwell, 2010).

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­knowledge in their respective fields of research; agency administrators, concerned to enhance the size, funding and effectiveness of their units; and prominent politicians, especially those in coastal states with important ­fishing-sector industries, as exemplified by Senators Pell of Rhode Island, Warren Magnuson and Henry Jackson of Washington State, and Leverett Saltonstall of Massachusetts. Whatever parochial motives may have animated various individuals or groups, there was unquestionably an overriding public and scientific interest in getting an accurate reading on the status and potential impacts of rapidly advancing technology.103 Concern about potential obstacles to the conduct of marine scientific ­research (msr) had a prominent place in the 1966 and 1967 losi conferences. Two provisions of the 1958 Geneva agreements regarding msr were of special concern to panelists. The first regarded the ambiguity of the prescribed extent of the Continental Shelf, as set forth in the language in Article 2 stating that the legal outer limit of the shelf was to be at the point where depth was 200 meters, or, alternatively, “beyond that limit to where the superadjacent waters admits of the exploitation of the natural resources.” This troublesome open-ended definition essentially made the shelf’s outer limit potentially as far out to sea as drilling and mining technology would in future permit. Second, losi panelists were concerned that the Convention on the High Seas, Article 2, specified four activities that were basic freedoms of the seas: navigation, fishing, laying of submarine cables and pipelines, and overflight—but did not include freedom of marine scientific research as a fifth “freedom,” even though it had been included explicitly in prior International Law Commission recommendations, and it was a freedom that many scientists and legal experts regarded as being a fundamental precept in the corpus of customary law. The omission of msr as a specified freedom was for many commentators a danger signal that scientific activities were likely going to be forbidden or increasingly hampered by a wave of new regulations proclaimed by coastal states. This concern was redoubled in light of the perceived potential impact of Article 5(8) of the Continental Shelf Convention, requiring consent of the coastal state for the conduct of “purely scientific” msr by “a qualified institution.” Milner Schaefer led in the criticism of these provisions, presenting at the 1967 losi conference a lengthy paper that defined and analyzed the full range of options that had apparently been vested in any coastal state that was 103 Concise contemporary overviews of the gathering movement for government support of ocean studies is found in E.W. Seabrook Hull, “Toward a Public Policy on the Ocean,” Impingement of Man on the Oceans, edited by Donald W. Hood (New York: ­Wiley-Interscience, 1971), 635–666; and Wenk, Politics of the Oceans, passim.

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inclined (for whatever reason, or none at all) to limit investigations on all or part of its continental shelf area. Schaefer made the case for complete freedom of research by bona fide scientists and organizations. He proposed that where an expedition or project was barred from operating, an impartial scientific body be assigned authority to review and pass judgment on the coastal state action.104 As the discussions at the losi meetings expanded to embrace the prospective use of msr for commercial seabed mining, the academics and industry spokespersons joined forces, in effect, in a call for an open research regime— one that would not preclude msr in the industry’s hopeful project of discovering and laying out areas of the global seabed for the assertion of claims and for exploitation, whether by giant corporations and consortia, or, alternatively, by a supranational authority. In a long historical perspective, the mid-1960s discourse did not result in either a working consensus among state actors or success in achieving the ideal of unobstructed scientific investigation. It did, however, define and frame the issues over the course of the next twenty-five years, culminating with the compromises on msr (including restoration as a basic freedom of the seas) that were incorporated into the 1982 unclos. Echoes of the mid-1960s discourse are also evident in the continuing debates since that time on the msr regime and technology of undersea uses, debates expanding in recent years, especially since signing of the Convention on ­Biological ­Diversity, to include genetic materials and general marine biodiversity issues.105 104 Schaefer threw his weight in favor of one outstanding option that was in play at the time of the 1967 losi meeting: It consisted of a proposal issued in November 1958, soon after conclusion of the 1958 conference at Geneva, by the International Council of ­Scientific Unions that urged ratifying States to commit for screening of any msr project in a coastal state zone submitted by a foreign entity or State; the Council would adjudge whether the project had a bona fide scientific purpose, and expedite a rapid response, a procedure to assure scientific merit and to help avoid the customary lengthy delays encountered by researchers seeking to operate in a foreign State’s waters. (Schaefer, “Changing Law of the Sea,” 116–117.). 105 See, inter alia, on the continuing issues during debate of the unclos and under its implementation, two authoritative studies: Albert H.A. Soons, Marine Scientific Research and the Law of the Sea (Deveneter: Kluwer Law, 1982); and Aldo Chircop, “Advances in Ocean Knowledge and Skills: Implications for the msr Regime,” in Law, Science, and Ocean Management, edited by Myron H. Nordquist et al. (Leiden and Boston: Nijhoff, 2007); also, on msr in the specific context of climate engineering schemes, cf. Alexander Proelss, “International Legal Challenges Concerning Marine Scientific Research in the Era of Climate Change,” in Scheiber, Science, Technology, and New Challenges to Ocean Law, 280–295.

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A New “Ocean Space Frontier” “The future for development of manned and unmanned, remotely controlled exploration and instrumented undersea craft seems unlimited, and will be dependent only on the speed with which manpower and resources are made available.”106 This was the judgment of Admiral E.C. Stephen, a former ­Geographer of the u.s. Navy, in a widely noticed newspaper interview in 1962. The admiral’s ebullient forecast was typical of the way in which a rising enthusiasm about future prospects for an “ocean space frontier” was becoming the dominant credo of oceanographers, engineers, and naval leaders in the 1960s decade. In that spirit, to cite another example, an expert report submitted to Congress declared that a controlling element in the “emerging realities” of ocean uses was that the previous limits on depth of potential undersea ­operations of all kinds had been “dissolved.”107 Jens Evensen, the great Norwegian diplomat and oceans law notable, speaking to the 1984 losi conference, offered some retrospective observations on what he presented as a dual transformation of material conditions—and, in addition, the transformation of thought—concerning potentials of the deep sea that occurred during the era that concerns us in this paper: “The overall technological revolution after the Second World War, with the fundamental breakthrough of a new technology opened up the oceans, the ocean floor, and its subsoil to a mode and rate of exploitation hitherto undreamed of.”108 ­Withal, a bold prediction penned by Hersch Lauterpacht, a luminary figure in international law, as early as 1937, thirty years later was becoming a ­commonplace theme at the leading edge of oceans discourse: “As natural resources become more and more exhausted,” Lauterpacht had written, “and as scientific invention and engineering skill advance, it may be expected that mankind will d­ evote increasing attention to the exploitation of the surface and subsoil ­beneath the bed of the open sea.”109

…

106 Interview in data, 7, No. 4 (April 1962), quoted in Burke, Ocean Science, 23. 107 Edward Wenk testimony, 86th Cong, 2d Sess. h.r. Report #2078, 35–36, quoted in Burke, Ocean Science, 11–12. 108 Evensen, “The Effect of the los Conference on the Process of the Formation of International Law,” in The Developing Order of the Oceans [18th Annual losi Conference, October 1984], edited by Robert Krueger and Stefan A. Riesenfeld (Honolulu: losi, University of Hawai’i, 1985), 24. 109 Lauterpacht, in his 1937 revision of Oppenheim’s treatise on international law, as quoted in Alban Weber, “Our Newest Frontier,” Exploiting the Ocean (Marine Technology Society, 1966), 409 ff.

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An animating vision, championed in the American political arena by those who sought to realize the possibilities of a new ocean frontier, was the model of nasa (the u.s. space agency) and its richly funded research and development activities, which were hastily-mounted post-Sputnik responses; they ­involved manned and unmanned “space shots,” all to a constant drumbeat of publicity, the public’s fascination with space reinforced by the sight of satellites in the night sky, tangible evidence of a miraculous step forward into new territory of the imagination. All this, too, came with the unmatched political advantage of ardent public support from Presidents Eisenhower, Kennedy, Johnson and Nixon. Although a project or agency for the oceans on the nasa models was beyond realistic expectations, the champions of the ocean frontier vision coalesced effectively in the mid-1960s, as we have noticed earlier, to call on government and industry for high-magnitude increases of support for oceanography in both the military and scientific spheres.110 The concept that advancing technologies were decimating the onceformidable practical barriers to deepwater and seabed activities was given palpable force by a dramatically cascading set of recent new records. At the second losi conference in 1967, a chart was displayed showing “Landmarks in the Development of Oceanographic Technology.” It featured the deepest dive by man ever accomplished (the record that stood until James Cameron’s solo dive in 2012 in a bathyscaphe heavily equipped with scientific instrumentation), down to the bed of the Mariana Trench, at 35,800 feet, made in the bathyscaphe Trieste in 1960. Also shown on the chart was a clustering of successive new records made in the previous four years alone: sealab ii, in which “hydronauts” worked in mid-1965 from the underwater installation for forty-five days at 205 feet depth; conshelf iii, also in 1965, involving twentytwo days at 328 feet; a successful oil-well head repair, taking 25 minutes at 525 feet; and the spectacular recovery of the lost H-bomb offshore of Palomares, Spain, in April 1966. As part of the background of the new discourse inspired by these records, there was also the enormous popular attention to the undersea “world” that was inspired by the pioneering scientific work (and public relations genius) of Jacques Cousteau and his associates.111 Lending further impetus to the gathering optimism about the new ocean frontier were the impressive range and character of the technologies on which realization of the vision would depend. Keeping interest—and hopes—alive were not only the great breakthroughs in the depth of manned and unmanned vehicle dives and the duration of their operations, but also a series of 110 Seabrook, “Public Policy”; see also above, text at note 9. 111 Alexander, Future of the Sea’s Resources, 111.

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r­ evelations as to the scope and capabilities of new inventions coming out of the u.s. Navy’s programs of advanced oceans engineering (and in particular its Submergence Systems Project, centerpiece of naval R&D focused on undersea and seabed activities). The public, including the community of legal experts, learned how remarkably advanced this effort had become when a trove of new information was released in the aftermath of the hydrogen bomb recovery off the coast of Spain in 1966. In a presentation to the Marine Technology Society meeting that year, John P. Craven described the variety and severity of challenges that his Navy team (and flotilla) had to solve in locating and raising up of the bomb, which was lodged at 2,900 feet depth on the side of a crevice under often-turbulent waters offshore of Palomares.112 In the “search and identification-of-contact” phase of the operation, Craven wrote, 140 individual Navy divers searched in depths of 200 feet or more. Vehicles of varying capacity and deploying a variety of instrumentation, as employed in this initial phase, included: “the Cubmarine, a manned submersible with a 600 foot depth capability; the Deep Jeep, a two-manned submersible with very limited mobility and a 2,000 foot capability; a number of tripod-mounted television cameras; the Aluminaut, a six-man submersible; the Alvin, a two-man submersible; and the television and camera equipment towed [by] the surface ship mizar. Both ­optical and acoustical systems were used in the search, specifically Westinghouse ‘side-looking sonars’ towed by surface ships, the Honeywell Sea Scanner and Bottom Profiler, Westinghouse side-looking sonars mounted on the Aluminaut and on the mizar, and various models of Navy Mine Hunting Sonars, both installed in ocean minesweepers and portable.” Navigational issues were daunting, given the required precision of location for each observation, as wave action affected the stability and relative motion alignments of surface and underwater craft. Hence it required equipping the Aluminaut, as Craven explained, “with a system for bottom navigation employing transponder beacons laid in a grid at two mile centers on the bottom with Doppler sonar dead reckoning between fixes.” At a lesser but still challenging level, technically, were the coordination of communications carried on different systems, the logistics of movement of heavy gear and vehicles (the ­project did not come up to speed until 30 days after its start), and the coordination of surface ship movements, under control of the command center for the ­mission, set up on a Navy cruiser.

112 The information and quotations found in the remainder of this paragraph and the one following are from Craven and William F. Searle, “The Engineering of Sea Systems,” in Marine Technology Society, Exploiting the Ocean (1966), 412–423.

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Optimism about future undersea enterprises also gained credibility from the evidence of rising involvement in R&D in the military, the private sector and in the famous “government-military complex” as pursued under government contracts.113 Thus Westinghouse built the Deepstar; Lytton Industries was builder of the Alvin for the Office of Naval Research; and the Electric Boat ­Company, subcontractor for Reynolds Metal Company, developer of new metallurgical techniques that produced high-strength materials for submersibles that were pressure-resistant in the deepwater environment, built the Aluminaut. As to the Navy efforts, sealab i and ii came out of the onr research program, and the seabed crawler Deep Jeep was being tested at the Naval Ordnance Test ­Station and then had been rushed by sea to be used in the Palomares recovery. It took little reminding for the public to recognize that “the newest frontier is the natural habitat of the Navy.” The level of private sector investment was by no means a minor factor: it was believed to include in excess of $100 million in the expenditures alone for offshore exploration and drilling by 28 companies in u.s. offshore waters, their operations then reaching to a maximum of 300 feet depth.

…

Although the wonders of new technologies were the main focus of the enthusiasm for a new oceans frontier, some commentators also deployed the “frontier vision” as an argument for bringing legal expertise into oceans discourse. This idea was voiced in 1964 by Athelstan Spilhaus, for example, just on the eve of losi’s being organized. He wrote: It’s an interesting thing that groups of distinguished lawyers were speculating and developing space law before the first Sputnik orbited; yet we merely whittle at the antiquated marine law when forced to by an item on the agenda of an international conference or [by] a crisis. People who deal with the sea should sit down with distinguished lawyers with a view to a complete overhaul in light of the imminent occupation and ­exploitation of the oceans.114 113 Alban Weber, “Our Newest Frontier,” 405–411, is the source of data and the quotation for this paragraph. Additional insights on the rising confidence in the new technologies manifested in the oceans community are in Robert S. Abel and Gerard E. Sullivan, “Trends in the Marine Sciences,” in Alexander, Future of the Sea’s Resources, 42–46. 114 “Man in the Sea,” in u.s. Navy Symposium on Military Oceanography (1964), ix–x. Emphasis added. At the time, as we have noted earlier in this Chapter, Spilhaus was also deeply

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Of course, Spilhaus was calling here for exactly the conjoining of legal, scientific, and political expertise in fruitful debate that motivated Alexander and the others who founded losi. Moreover, this concept of fostering multidisciplinary study and exchange of views has remained a robust objective of losi directors and conference organizers throughout the five decades of the ­organization’s activities. Delineating the Continental Shelf The losi founders were not content to leave to legal disputation or to unfettered state discretion the resolution of the uncertainties created by the ambiguity of the 1958 agreement’s terms as to the outer limit of the continental shelf. Hoping to introduce authoritative scientific opinion, they looked to the eminent marine geologist K.O. Emery, who was then conducting at Woods Hole Oceanographic Institute leading-edge studies of the continental shelves and sea floor of the Atlantic. Emery prepared a lucid discourse on how the geologic formations of the shelf and the seabed were in many areas of the globe radically out of conformance with the legal maritime boundaries (both those then proclaimed and those subject to vastly expanded claims in light of the indeterminacy of the continental shelf boundary as defined in the 1958 convention). He recommended specific depth limits for adoption as the legal outer limit of the continental shelf, stressing that he had written only after consultation with other oceanographers, including H. William Menard at sio, a star figure in marine geology whose description of the topographical features of the Pacific Ocean’s seabed, including major fracture zones and the movement of the earth’s crust—a study that did much to establish the basic foundations of plate tectonics theory—had just been published in 1964.115 Emery was especially concerned with the continental rise, as it was considered the seabed area in which oil and gas deposits would be concentrated at depths of 1,500 to 4,500 meters. At the time, however, as he noted, few oil wells were in production at water depths of more than 150 meters, a fraction of the involved as a close partner of John Knauss in a nationwide effort to promote new u.s. government support for oceans research and development. 115 Marine Geology of the Pacific (New York: McGraw Hill, 1964). Menard’s exploration and observations of the seabed topography of the Pacific had begun in the 1950s, and, as mentioned above, are widely recognized as having provided an evidentiary foundation for the theory of plate tectonics. He was also particularly interested in the potential of manganese nodules, and he was acting director (1967–69) of sio’s Institute of Marine Resources. For a summary of Menard’s contributions, see Robert D. Fisher and Edward D. Goldberg, “Henry William Menard,” Biographical Memoirs, Vol. 64 (1994) (Washington, d.c.: National Academy Press), 267–276.

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depths contemplated as feasible targets in the future.116 But in a striking departure from the reserved tone of his systematic rehearsal of known empirics, Emery proclaimed that “the development of new methods of sea-floor mining and of drilling and the discovery of presently unforeseen mineral resources may translate fantasy into reality in a few decades”!117 One cannot conceive, however, that even if they pondered the farthest limits of Emery’s putative “fantasy-become-reality,” the losi conferees could have imagined that “reality” a half century later would have brought about not only geometric expansion of the seabed’s yield of gas and oil, but also a catastrophe on the scale experienced in 2010 with the Deepwater Horizon well’s 5-millionbarrel oil spill in the Gulf of Mexico—an accident that took many lives, the explosion occurring at nearly 5,000 feet depth, where the project’s drills had bored down another 18,000 feet into the rock beneath the seabed.118 In later years, losi conferences would revisit the geologic data that needed to be taken into account in analysis of contested views on the appropriate delineation of the continental shelf boundary. Emery’s proposal served to clarify the agenda of issues that eventually have had to be addressed in a newly ­designed institutional context under terms of Article 76 of unclos and ­administratively by the Seabed Authority and the Commission on the Limits of the Continental Shelf.119

116 K.O. Emery, “Geological Aspects of Sea-Floor Sovereignty,” in Alexander, Offshore Boundaries, 139–159. 117 Ibid., 155. 118 Smithsonian’s Ocean Portal, available at https://www.pinterest.com/OceanPortal/. For a brief summary of the obstacles, both natural and financial, that have slowed the longterm pace of scientific work at seabed depths, see Kathryn Mengerink, “The Deep Ocean: Advancing Stewardship of the Earth’s Largest Living Space,” in Scheiber, Science, Technology and New Challenges, 187–208; B. Erry et al., Seabed Mining: A Technical Review, Greenpeace Research Laboratories, Technical Research Note 24/2000, available at http://www .greenpeace.to/publications/Seabed-mining-technical-note-2000.pdf; and, on current seabed issues seen in the context of the Seabed Authority and recent advances in science and technology, see Mengerink’s related study, in Chapter 16, below. 119 Discussed fully by Clive Schofield in Chapter 2, below; and in Ted McDorman, “The Continental Shelf,” in The Oxford Handbook of the Law of the Sea, 180–202. McDorman takes note (ibid. at p. 193) of the importance of Hollis D. Hedberg’s geological studies, on the general lines set out by Emery; several of Hedberg’s contributions were presented in losi conference proceedings, including his study of “Limits of National Jurisdiction over Natural Resources of the Ocean Bottom,” in The Law of the Sea: National Policy Recommendations, edited by Lewis Alexander (Kingston, ri: University of Rhode Island, 1970).

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The Manganese Nodules Frenzy Whereas Emery had moved cautiously and systematically in proposing the drawing of legal boundaries that would reflect the empirics of geological knowledge of the shelf, from a different quarter there was a drumbeat of claims that the future had already arrived—or, at the least, was certainly imminent. The messenger and prophet of the new era was John Mero, the California marine engineering expert who had burst upon the oceanographic and policy scenes in 1959 with a prediction that the instruments for deep seafloor prospecting and mining that he and other inventors had newly developed would soon make it possible to mine for manganese, copper, nickel, cobalt and rare minerals in quantities which, once extracted, would wreak transformative effects on manufacturing industries globally, forcing radical upward revision of then-current estimates of the world’s mineral reserves.120 Seafloor mineral deposits, he contended, “are for all practical purposes unlimited in volume,” and he regarded it as a certainty that there would be “an explosive growth of mining.” If the continental shelf legal regime were to be extended to the 2,500 meter isobar, he wrote, that would permit establishment of designated areas of 5,000 square miles each on the “open and free, hopefully free, ocean” beyond, where in the Pacific alone he claimed there lay some 1.5 trillion tons [sic] of nodules. Global demand for the minerals recovered from the seabed would be met easily if an ownership regime were to be devised for exploitation.121 Mero was a champion of private enterprise, contending that this scenario of rapid progress could be assured only if a legal regime were established that gave certainty of ownership to the entities making the huge investments required to mine the seabed—a contention seconded, in the losi conference panels, both 120 Mero announced his position, with immediate effect on scientific and public opinion, in an article in a leading national journal in 1960: “Minerals on the Ocean Floor,” Scientific American, 203 no. 6 (December, 1960), 64–72; he followed in 1965 with a full set of his estimates of reserves and predictions of an early start to commercial mining in his book The Mineral Resources of the Sea (Amsterdam and New York: Elsevier, 1965). He patented a hydraulic system for mining nodules in 1957, but he later acknowledged that a Japanese invention using a mechanical bucket system was better, and the two technologies became the means by which a large international consortium (in which Kennecott Copper was a lead firm) and other companies would conduct experiments over several decades, in hopes of commencing operation of a commercial mine. (See John L. Mero, “The Great Nodule Controversy,” in Law of the Sea: Caracas and Beyond [losi Ninth Annual Conference, January 1975], edited by Francis T. Christy, Jr., et al. [Cambridge, Mass.: Ballinger, 1975]). 121 Mero, “Alternatives for Mineral Exploitation,” in Alexander, Future of the Sea’s Resources, 94–98.

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by a u.s. Bureau of Mines official and by the legal scholar L.F. Goldie. For his part, Goldie was already deeply engaged in devising a draft regime for the mining activities that he, too, believed were imminent; interestingly, seven years later, Goldie’s name, as counsel, was on the first application by a private entity to the u.s. Government to claim exclusive mineral rights (including diplomatic protection of its claim) to a specified high-seas seabed area of 60,000 square kilometers in size, for purposes of manganese nodules mining.122 A dissenting opinion with regard to all the commotion over manganese mining was voiced in the 1966 conference by the respected geologist and engineer Willard Bascom, who was then president of a private ocean engineering company in Washington State (and who would continue to be associated in later years with private companies devoted to new projects for deep sea ­mining). Bascom scornfully dismissed Mero’s estimates of the unlimited volume of nodules under the sea. With a broader critical brush, he derided all rhapsodic predictions being promoted by people who lacked practical experience in efforts to establish seabed projects. “As a matter of fact,” he stated, he and “a group of practical mining people” had recently attended a session of the Marine Technology Society, and we made the calculation that if only people who were experienced in the ocean talked at such meetings and they only talked about things they had actually done, instead of about what they propose to do, it would cut a three day meeting down to about an hour and fifteen minutes.123 At least for the moment, however, in 1966–67 Bascom’s cautions were drowned out by Mero’s noisy campaign. Thus even Peace Commission spokesmen Eichelberger and Christy accepted Mero’s roseate predictions both of technical feasibility and of an imminent commencement of commercial seabed mining. But they advocated an entirely different kind of regime than Mero, Goldie, and the u.s. Bureau of Mines were then promoting: Taking a position 122 The application in question was from Deepsea Ventures, Inc., and was designed, in an unsuccessful move, to force the hand of the u.s. Government to act in favor of unilaterally sanctioned private mining ventures in the deep seabed before negotiation of the relevant provisions of the unclos had come to a conclusion. It took the form of a “Notice of ­Discovery and Claim” addressed to the Secretary of State, Nov. 14, 1974 (with Goldie signing as one of three named counsels). Three other companies, two American and one Japanese, that were expected to become joint-venture investors, were named. The document is reproduced in Oceans: Our Continuing Frontier, edited by H. William Menard and Jane L. Scheiber (Del Mar, ca: Publisher’s, Inc., 1975), 231–237. 123 Bascom, “Mining in the Sea,” in Alexander, Offshore Boundaries and Zones, 160.

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consistent with their larger commitment to internationalism, and anticipating the coming campaign for international control under the banner of “the ­Common Heritage of Mankind,” Eichelberger and Christy contended that the entire ownership, regulation, and distribution of profits should be placed ­under control of a un-supported agency. When the Malta delegation presented its famous resolution and Ambassador Pardo’s letter on the Common Heritage to the un General Assembly in 1967, Mero’s data and predictions were cited chapter and verse—though linked to an endorsement of the Peace Commission approach rather than with Mero’s and the mining industry’s insistence on the necessity of vesting property rights in mining enterprises. The international and domestic u.s. debates of policy were made further complicated, meanwhile, as Soviet and American negotiators opened quiet talks in 1967 with the objective of agreement on a twelve-mile territorial sea linked with freedom of navigation through straits. Despite strenuous diplomatic efforts by the Great Powers to head off a further linkage with the seabed regime, the un effort, going forward, defined the objectives of a new oceans law conference as embracing virtually the entire range of major issues left unresolved by the 1958 Conventions. And yet further complexity was lent to the already-cluttered agenda when President Richard Nixon announced in February 1970 a major shift in American policy, declaring support for an international agreement “on a regime for exploitation of deep seabed resources.”124 Lack of progress on either the commercial front or in the diplomacy of the seabed issues was frustrating to Mero, a mercurial personality whose company, Ocean Resources, Inc., had priced out in detail investment opportunities for deployment of his system at a level of $14 million. A venture of this magnitude would be virtually certain to pay off handsomely in profits from nickel and copper alone, he contended; and there was a reasonable chance that some nodules of the highest grade (around 35 percent manganese in content) might be discovered, vastly increasing the return to investors. Mero blamed the extended deadlock in the un talks on revision of the unclos seabed ­provisions—and in particular what he viewed as blackmail tactics by the Group of 77 bloc in demanding international ownership and a wide distribution of revenues to member states. “The so-called controversy which is said to enmesh the deep-sea mineral deposits appears to be of the nature of an issue in a play in the theater of the absurd,” he told the tenth anniversary losi 124 Nixon, “State of the World Message, Feb. 18, 1970,” quoted in Hollick, u.s. Foreign Policy, 234. Hollick provides a detailed analysis (ibid., 234ff.) of the domestic political repercussions, in the context of the broadened agenda of the un talks going forward.

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conference in 1975, driven by “Ambassador Pardo’s selfless gift of the nodules to the world … as ‘the common heritage of mankind.’” He directed his fire particularly at the Gulf states, deriding the idea that “poverty-stricken nations as Kuwait actually [claimed] they own the resources of the deep sea,” a strategy to protect the value of their own oil reserves—“resources discovered, developed, produced, transported, processed, marketed, and used by almost everyone except the ­Kuwaitese and the Saudis (although they seem to derive the bulk of the benefits).” In a milder vein, Mero also condemned “people who are misinformed or misguided,” hence lacked the appropriate enthusiasm for projects his company had readied for investment.125 Meanwhile, the American trade associations for the mining industry hewed to their main theme, which was an intransigent opposition to internationalization of the seabed on the Common Heritage principle, denouncing “socialism” in control of mining and wide distribution of any revenues, at the discretion of a supranational body, as a certain deterrent to any investments. The industry’s opposition would prove controlling, as is well known, when the Reagan Administration, citing as unacceptably “collectivist and redistributionist” features of the seabed provisions in the final text (embodying what the Administration denounced as the “repudiated” ideology of “global central planning”), renounced outright the unclos agreement: Reagan announced that the United States would not sign—and meanwhile he dispatched a special envoy to plead in the capitals of the other industrial nations that they should also ­renounce their own support for unclos.126 The harsh realities of the marketplace, as world commodity-market prices for minerals softened, together with the still-unverified efficacy of the technology, proved even more intractable obstacles to progress of these schemes than even the diplomatic strategies of the “poor nations.” We know by hindsight, of course, that the intensive debate of the mid1960s regarding manganese mining was badly misplaced. Critics of the Mero 125 John L. Mero, “The Great Nodule Controversy,” 345, 347–348. When a Saudi participant offered a comment in defense of the Gulf States, Mero offered a curious qualification of his statement, denying that it was a wholesale indictment but rather was intended as a reference to “a small, few Arabs, … in terms of hundreds of persons, sitting around on their asses and collecting hundreds of billions of dollars.” The panel moderator, John Knauss, quickly stepped in and cut off the political remarks as being “somewhat sterile in this particular setting,” steering discussion back to the problem of technology. (Panel Discussion in Christy et al., Law of the Sea: Caracas and Beyond, 352–353.). 126 Heritage Foundation, “Reagan and the Law of the Sea,” Oct. 9, 2007, http://www.heritage .org/global-politics/commentary/reagan-and-the-law-the-sea.

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c­ ampaign correctly (as was proved) regarded as chimerical the “pie-in-the-sky” prospect of an imminent seabed manganese mining boom. Of greater significance, from an historical perspective, was that there were already portents—neglected in the initial losi meetings and other arenas of ocean law discourse—that an authentically transformative movement for ­exploiting the treasures of the seabed was already under way and fated to ­become one of the most spectacular economic “boom” episodes in modern history. For in 1964, following years of preliminary geological investigations, the British government was beginning to issue licenses for exploration and possible drilling and extraction of oil and gas in the seabed of the uk’s ­contiguous zone and continental shelf of the North Sea; and a year later, the Norwegian government undertook the first legal steps authorizing similar oil and gas projects in its own North Sea continental shelf sector. Although the first offshore platform in uk waters, the Sea Gem, capsized in  1965, with loss of thirteen crew members, and other costly accidents occurred in both the British and Norwegian waters in the years immediately ­following—several of the first structures going to the bottom in heavy storms or owing to structural design and materials failures—the outpouring of new investment and rising production in the North Sea area had an enormous impact on the world energy supply as well as enriching regional economies. By 1976 British production would reach more than a million barrels of oil and gas (equivalent) per day; and by the early 1990s it exceeded 4 million barrels per day, with the total production from 1964 to 2012 to reach 41 billion barrels.127 Similarly spectacular growth marked the history of the Norwegian offshore industry, which reached a million barrels per day in 1980 and peaked at 4 million 127 It should be noted that Norway set the stage, in its international posture, by declaring sovereignty over its continental shelf in 1963. F.J. Larminie, “The History and Future of North Sea Oil and Gas: An Environmental Perspective,” Philosophical Transactions of the Royal Society of London, Series B: Biological Sciences, Vol. 316, No. 1181 (1987), 481–493; “North Sea Oil: Facts and Figures,” in www.bbc.com/news/uk-scotland-scotland-politics-26326117; “The Project: Brief History of the uk North Sea Oil and Gas Industry,” in www.abdn.ac.uk/ oillives/about/nsoghist.shtml; Greig Liddell, “Scottish North Sea Oil and Gas Industry,” SPICe: The Information Center, April 2, 2014. Norwegian production data are available in Norwegian Petroleum Directorate, Reports, found in http://www.norskpetroleum.no/ en/production-and-exports/oil-and-gas-production/. The industry would suffer a huge setback with the Piper Alpha disaster of July 1988, dwarfing previous North Sea accidents in magnitude of losses, as 167 men were killed in the collapse of the gigantic platform, described by an official “as a heliport, on top of a hotel, on top of a power station, on top of a process plant on top of an oil well, in the middle of the North Sea.” (Quoted in ­Liddell, ibid.).

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per day in 1988. (The North Sea industry meanwhile produced royalty revenues for the government that provided the financial foundation for Norway’s great sovereign fund, which provides for the retirement program for its citizens and has made major private sector investments internationally.) The full measure of the transformative impact of offshore oil and gas, while the manganese nodule mining project has languished for fifty years, is taken only when the production from the Gulf of Mexico, African, Brazilian and Middle Eastern offshore industries are included in the reckoning of an oceans industry revolution that had been so remarkably below the radar, absent in expert discourse during losi’s founding period. Nonetheless, the controversy regarding the seabed mining regime was not without influence: for it foreshadowed, both in its general outlines and in many particulars, the historic debates of later years regarding the concept of the Area and the structure, process and powers of the Seabed Authority. These debates began in the Third un Conference, leading to signature of the 1982 unclos agreement, but they then continued in the complex negotiations that led to final agreement in 1994 on the terms of the international seabed regime. This “tug-of-war, which continued for almost twenty-five years,” Said Mahmoudi has written, “reflected States’ perceptions of the terms ‘common,’ ‘heritage’ and ‘mankind.’ Whereas commonness referred to shared ownership for one group, it meant prohibition of sovereignty claims for the other. For some countries ‘mankind’ consisted of States only, where for other countries it meant all peoples and individuals.”128

New Developments in Ocean Law and in losi: Beyond the Founding

In the later history of the Law of the Sea Institute, beginning almost immediately after the initial conferences, the topics of panels and the subject m ­ atter of an increasing proportion of papers were devoted to issues of ­environmental 128 Said Mahmoudi, “Common Heritage of Mankind, Common Concern of Humanity,” in New Technologies and Law of the Marine Environment, edited by Jean-Pierre Beurier, Alexandre Kiss and Said Mahmoudi (The Hague, London, Boston: Kluwer Law International, 2000), 218. In the 1970s, the ldc’s program crystallized around a demand for the un to endorse the New International Economic Order (nieo), with its emphasis on both intra-generational and inter-generational distribution of revenues and benefits from all global ocean industries; the concept was endorsed in a 1974 resolution of the un General Assembly.

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protection, sustainability, and, most recently, the exploitative uses and the protection of entire ecosystems. At the founding, half a decade before the Stockholm Declaration on the Environment and prior to the convening of the Third un Conference, the focus and intellectual boundaries of losi panels remained largely within the context imposed by the 1958 Geneva conventions. In addition, there was a manifest concern, running through the proceedings in the early losi period, to include a fair proportion of presentations explicitly relating to issues then prominent in u.s. Government policy—what the ­eminent Canadian international law scholar Douglas Johnston (1931–2006) once described as a “parochialism” in the founding period’s topical o­ rientation—that losi would consciously cast aside very soon after 1967, pivoting to a focus on the international arena. This shift in general focus was especially evident starting with the commencement of the great global debates in the Third un Conference. The negotiations in the Third Conference essentially left losi no choice, in order to remain relevant to the discourse worldwide—let alone in order to continue to exercise recognized intellectual leadership—but to ­re-focus its conference design on the great questions in ocean law that were thus now thrust so decisively at the forefront of that discourse. Addressing the 1967 losi conference, the respected marine scientist John Kask, then serving as director of the Inter-American Tropical Tuna C ­ ommission, deplored what he termed a grave lack of public attention, together with ineffective leadership in the United States and elsewhere, with regard to the vital issues of ocean affairs of such obvious importance to global human welfare and security. “To my knowledge,” Kask stated, there is no one or no organized body with the exception of this Law of the Sea Institute, holding only its second meeting, and its Directors acting individually, who are engaged in an independent audit and appraisal of past organization and performance, nor is anyone except the personnel of this organization doing any serious thinking or laying plans for the future. This important development should not be left to chance. I must hasten to add, however, that I think this utter neglect has in recent months been showing signs of change.129 Among those “signs of change” (what, it may be recalled, Knauss in 1965 had called the “underground talk” in oceans discourse) was the establishment of the Stratton Commission, and its report gave new impetus, if not to say a 129 Kask, “Present Arrangements for Fishery Exploitation,” in Alexander, Future of the Sea’s Resources, 61 (emphasis added).

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jump-start, to the national commitment to oceans research and to oceans policy debates alike. Knauss himself was named as a member of the commission, and he played a large role, by all insider accounts, in the commission’s deliberations and in the framing of final recommendations. James Crutchfield, the irrepressible critic of msy and the fishery regulation establishment, was appointed to head the committee on fisheries; and its report, unsurprisingly, rehearsed the economists’ case for maximum economic yield. And, appropriately enough—considering his scholarly stature and the vision with which he pursued the founding of losi, and the administrative skill and political acumen with which as its director he shepherded the organization through its first seven years—Lewis Alexander was recruited to serve as the associate director of the Stratton Commission.130 This role in the making of national policy, exercised in so direct a way by these major figures associated with losi, would have its counterpart on a larger scale, as the major themes of the Third un Conference’s negotiations during the 1970s were reflected in the losi conferences and publications, which variously featured all the major programmatic issues being dealt with in the un talks. Thus Douglas Johnston recalled, in his last major publication before his death in 2006, losi’s role in advancing the international discourse on ocean affairs. “Since 1966 June had become the month when the leading scholars and practitioners in the Law of the Sea community descended,” he wrote, “on the sunny campus of the University of Rhode Island,” where the annual conferences consistently manifested “the losi ethos of vigorous and sustained debate.” The panels would “crackle with new ideas about the changes needed in ocean law in order to reflect the new realities of ocean use and to accommodate the new demands for effective ocean management.”131 Moreover, during the years when the un delegates and the Seabed Committee were negotiating the agenda for the Third un Conference, many of the major figures in this unfolding international-law drama became featured speakers in the losi meetings. As Lewis Alexander recalled, “At each annual conference” during those years, 130 The presidential Commission on Marine Science, Engineering, and Resources, chaired by Dr. Julius Stratton (1901–1994), then president of mit, was established by Congress in 1966. The commission’s final report, “Our Nation and the Sea: A Plan for National Action” (Washington, dc: Government Printing Office, 1969) led to the establishment of noaa and the strengthening of federal ocean programs. For a thirty-year retrospect on the Stratton Commission, see Scheiber, “The Stratton Commission: An Historical Perspective on Policy Studies in Ocean Governance, 1969 and 1998,” and other papers published in Knecht, The Stratton Roundtable. 131 Johnston, The Historical Foundations of World Order, 72.

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we had reports on the activities of the Seabed Committee, and over time these were addressed by prominent members of that Committee—­ Andres Aguilar, Paul Engo, Arvid Pardo, Shirley Amerasinghe, Joe ­Warioba, and others. Participants had the opportunity to talk with one ­another informally, to learn (for some of them for the first time) the history of earlier law of the sea negotiations and agreements, and to try out new proposals in front of a critical audience. Some of these proposals eventually found their way into the preliminary [unclos] texts.132 John Knauss described in similar terms, in a 1994 paper, how losi had played a seminal role in the analysis and fresh conceptualization of important issues in ocean law. He stressed the originality and the practical impact of many papers in the early losi debates, though also recalling the novelty of discussion on many topics: “Even the bad papers,” he wrote, were interesting! He reflected that the early conferences addressed from widely varied a­ nalytical ­perspectives a large number of the many unresolved oceans issues of the 1960s and after—and, in that process, they adumbrated the specific problems these issues posed for ocean governance that would soon become prominent in oceans discourse. The presentations at the losi meetings, he wrote, helped to place on the international agenda of debates important reforms—and in some respects they even defined bold new directions for the law. In sum, they presaged in their day many of the major initiatives in the un General Assembly, the Seabed Committee, and the Third un Conference that produced the unclos agreement in 1982.133 Nor was the impact of losi on ocean law development restricted to the formal arena of conference panels or the public sessions at which papers were discussed. As assessed by Tullio Treves, eminent scholar and prominent for his jurisprudential contributions as a judge on itlos, the losi contribution also derived from the fact that at its conferences “the seminal ideas of the new law of the sea … were discussed quietly between scholars and diplomats involved in the [Third un Conference] negotiations. This phase did not attract very much publicity but was important in establishing personal links between protagonists and in making new ideas known and debated in an informal setting.”134 In the same vein, Douglas Johnston recalled the importance 132 Alexander, “Looking Back,” 649–650. 133 Knauss, “Commentary,” in Mensah, Ocean Governance: Strategies and Approaches for the 21st Century, 549–595. 134 “A Message from Tullio Treves to the 50th Anniversary Meeting of the Law of the Sea Institute convened at Berkeley on 8 October 2015,” document distributed at the conference.

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of “back-channel diplomacy” as having “always been a function of losi at the global level.” The conferences and workshops provided “government officials [with opportunities] to meet … with counterpart officials, leading academic specialists, and ngos … to have a frank, off-the–record forum and make more progress in reaching understanding than is imaginable under the constraint of formal diplomacy”—in sum “to provide access and private opportunity for frank discussion that serves governmental interests.”135 Judge Treves also has pointed to the expanded role and influence of losi (then Hawai’i-based) in the 1980s and 1990s, when high-profile, heavily attended conferences were held in foreign venues, including The Hague, Kiel, Cardiff, Tokyo, Oslo, Genoa, Malmö, Seoul, and Moscow. There was a progressively much greater presence of participants from outside North America, both on the panels and on the organizing and executive committees; and, although individuals prominent in the Third un Conference, and subsequently in negotiation of the 1994 Seabed Implementation Agreement and other initiatives and new institutions of ocean governance, continued to appear in key roles as presenters, Treves points out, “younger experts began also to appear at the conferences, so dismissing the accusation that the Institute was a meeting of ‘anciens combatants,’ of old warriors of the Conference.”136 Since 2002, the year when the Institute’s base was moved to the uc Berkeley Law School, there has been an acceleration of the already established trend of internationalization of interests and participation, as well as advancing further the practice of holding co-sponsored conferences abroad (in Seoul, Istanbul, Hamburg, Wollongong (Australia), Oslo, Madrid, London, Singapore and Malmö), and also in other North American locations (Corpus Christi, Texas; Seward, Alaska; and the u.s. Coast Guard Academy, in Connecticut)—in each case, in collaboration with other universities or research institutions. In this uc Berkeley-directed phase of losi history, Judge Treves observes, although losi has been designated as a research unit of the Law School, it preserves “the peculiarity—which I think we all cherish—that it maintains contact with at least some of the persons directly involved with the previous phases and that, although with a new outlook, it is not oblivious of the past.”137 Beginning with the early Hawai’i-based years of losi, Judge Treves has participated personally in nearly every conference and contributed important papers, marked by depth of insight and sparkling originality, on a variety of 135 Johnston, “Commentary,” in Mensah, Ocean Governance: Strategies and Approaches, 599. Note: “losi” is substituted for the original form, “lsi,” in Johnston’s remarks. 136 “A Message from Tullio Treves to the 50th Anniversary Meeting.” 137 Ibid.

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themes.138 But in his characteristically modest way, he has also paid tribute to colleagues: “In my experience with the Institute” (which has spanned more than thirty years), he states, I have had the privilege to meet the best scholarly minds in the law of the sea as well as in the history and policies of the sea; scientists and technical experts from which the lawyers have a lot to learn; diplomats ready, in the special environment of the Institute’s meetings, to reveal their human qualities and their vision—not always coincident with the official policy of their countries.139 In a similarly generous vein, the Swedish scholar and diplomat Marie Jacobsson has written that “the fiftieth anniversary of losi is not only a celebration of an institution, it is a celebration of international intellectual cooperation on law and politics relating to the most important area of the world: the sea.”140

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Despite the great magnitude of innovative changes in every aspect of ocean law and in the material and geopolitical contexts of legal discourse since the 1960s decade of uncertainty, the controlling interdisciplinary vision of losi has remained robustly durable. As Douglas Johnston commented in his 1994 paper, offering his retrospective assessment of losi, numerous labels had been assigned to describe this controlling interdisciplinary vision. It had been variously denominated, he wrote, as “marine affairs,” or “ocean development management,” or “ocean law policy and management.” Regardless of the label applied, Johnston said, “losi created the field of marine affairs…. It did not exist before the inception of losi.” Prior to the Institute’s first conferences, he continued, “lawyers specialized in the law of the sea as a small and rather insignificant compartment of public international law, … and fisheries and marine pollution control and a few other sectors existed, but they were never brought 138 Also remarkable in his consistency of participation over three decades’ time, until his death, was Judge Choon-ho Park of Korea (1930–2008). See Harry N. Scheiber, “Judge Choon-ho Park, the Law of the Sea Institute, and Modern Scholarship in Ocean Law,” in Governing Ocean Resources: New Challenges and Ocean Regimes—A Tribute to Judge Choon-ho Park, edited by Jon Van Dyke, Sherry Broder, Seok-woo Lee, and Jin-Hyun Paik (Leiden and Boston: Brill/Nijhoff, 2013), Chapter 1. 139 “A Message from Tullio Treves to the 50th Anniversary Meeting.” 140 Marie Jacobsson, communication to the losi 50th anniversary conference, document distributed to the conference.

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together in a unified field such we now know it…. So losi was a pioneer in creating the field of ocean affairs in a broadly cross-disciplinary manner…. That has remained the nature of the beast ever since—a cross-disciplined hybrid”!141

…

This “hybrid” character of the Institute, together with the way in which losi has seized the opportunities that have appeared over the years for innovation in advancing ocean law discourse—and, above all, the devotion to losi of so many distinguished participants who have given freely of their time, energy, and thought—has contributed to create the Institute’s records of longevity and productivity. The outcome, measured in achievement and in years, could only dimly have been perceived as a realistic possibility at the founding in 1965, amidst the period of great uncertainty then prevailing in ocean law’s progressive development.

Afterword: A Note on the History of losi since 1965

Reorganization of losi Governance and the Move to Hawai’i One might logically assume that the universally admired record of losi, with regard to its conferences, workshops and publications during the entire ­period (1965–77) of its location at the University of Rhode Island (uri), was accomplished with the advantage of a stable and stress-free administrative base. This stability in fact was maintained for a considerable period of years following the Institute’s founding: Lewis Alexander was at the helm, as director, for the first seven years of the program; and, given his stature as a scholar and his ­record of successful academic and institutional innovations, his continuing role as director to 1972 was likely a key factor in assuring strong continuity in the r­elationship of losi with the university. uri provided some material support, most importantly with regard to Alexander’s professorial salary and his office staff (spoken of in losi publications as consisting of three persons: an “­administrative assistant,” presumably full-time, and three most likely ­part-time ­“support staff”), perhaps some released teaching time for him, and various costs involved in logistics and hosting of the annual conferences held on the campus. 141 Johnston, “Commentary,” in Mensah, Ocean Governance: Strategies and Approaches, ­596–597. Emphases added. N.B.: “losi” has been substituted in quotation above where Johnston used the acronym “lsi.”

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One major change in losi operations occurred in 1972, however, when ­ lexander stepped down as director and the uri political scientist John King A Gamble, Jr., was appointed to succeed him. Gamble served until 1976, when he left to take a faculty position at Pennsylvania State University. Meanwhile, the executive board of losi, its membership now expanded to fifteen and meeting three times a year, was exercising a markedly increased degree of autonomy in decision making—that is, in exercise of powers relating to the selection of conference themes, the naming of conference directors and their organizing committees, and presumably the entire range of issues involved in defining the future direction of losi. One of the latter planning issues, with implications for future conferences and publications, concerned funding sources. ­Until 1976, the annual funding supplementary to uri support came entirely from u.s. Government entities: the Office of Naval Research; the National Sea Grant Program (the program whose establishment by Congress John Knauss had been instrumental in promoting in the mid-1960s and created on the recommendation of the Stratton Commission), as well as the Rhode Island ­office of the Sea Grant program; agencies charged with environmental policy and regulations; and the Office of Coastal Zone Management in the National Oceanographic and Atmospheric Administration (noaa). The Marine Policy and Ocean Management Program at Woods Hole Oceanographic Institution, itself largely funded by u.s. agencies, also supported losi conference activities. The losi executive board initiated a new funding policy in 1976 by obtaining cooperating support for the tenth annual conference (held at uri in that year) from two energy multinationals: the Exxon Corporation and Royal Dutch Shell. One can only speculate that this shift in posture on losi funding had become yet another source, perhaps the principal source, of the soon-to-be announced break between losi and uri. Any stress in the uri-losi relationship that these developments may have been causing, however, was kept effectively out of the public eye. It so remained until John Knauss stood to deliver some closing remarks at the tenth annual losi conference, in 1976. Ever since its founding days, Knauss said, losi “has been sponsored by the University of Rhode Island.” He added, however, that losi was “not exactly a part of the University of Rhode Island.”142 Knauss acknowledged by implication that significant problems—at least of 142 John A. Knauss, remarks at “Concluding Banquet,” in Law of the Sea Conference: Outcomes and Problems of Implementation: Proceedings of the Law of the Sea Institute, Tenth Annual Conference, June 22–25, 1976, University of Rhode Island, edited by Edward Miles and John King Gamble, Jr. (Cambridge, Mass: Ballinger Publishing Co., 1977), 399–400. “losi” is substituted for original “lsi” form in Knauss’s remarks.

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­ omenclature, though almost surely of substance—had begun to surface even n before Alexander had stepped down as director: “About seven years ago,” he stated, we had a knockdown, drag-out fight between the university and the [losi] Board of Directors where we agreed that it was not the Law of the Sea Institute at the University of Rhode Island, but the Law of the Sea Institute sponsored by the University of Rhode Island. As Provost for Marine Affairs one of my tasks is to interpret that particular distinction. … [In] the last few months we and the University of Rhode Island and the Board of Directors of losi have reevaluated our relationship to one another, and it seems reasonable and perhaps possible that it is time to find another sponsor for losi. With a heavy note of irony, as often colored Knauss’s rhetoric at moments of similar drama, he went on to introduce to the audience some individuals whom he termed “those docile and passive” members of the executive board who had long given service to the organization. Then, donning his other hat, as a member of the losi board himself, Knauss went on to say that “we”—the board, that is, and surely not acting in fact in a “docile and passive mode”—had sought and already had received “at least one attractive offer” from a potential alternative sponsoring institution. “I think I can guarantee you at this time that losi is not going to dissolve,” Knauss continued: “I believe losi has played a very useful role in the last eleven years in discussing the problems of the law of the sea, and I am sure it will continue to in the future.”143 And after several months of further deliberations, involving the negotiation of terms for a transfer of the losi base, the board in November 1976 decided to accept the offer extended by the University of Hawai’i to take on the role of institutional base and institutional sponsor. The Hawai’i-based period of losi’s history was marked by a robust expansion of the international profile and substantive range of topics in ocean law and policy that were considered at the annual meetings and the continuing program of occasional workshops. The new office had a close association with the university’s East-West Center, on the Manoa campus. This Center was a major focus of academic activities, scholarly exchanges, and policy studies related to the Pacific Rim region. It also was the recipient of earmarked annual funding from Congress, which assisted in providing what appears to have been very ample office and logistic support that the new director, Dr. John Craven, was given in 143 Ibid.

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pursuing the organization’s expanded program. The Richardson School of Law, also at the Manoa campus, provided substantial institutional support. Probably the high point, in terms of staffing levels, in the entire institutional history of losi was reached in 1989, when Craven’s office included an Associate Director, an Assistant Director, and three editorial, membership and publications assistants. After Thomas A. Mensah—a distinguished Ghanian lawyer and ­diplomat—succeeded Craven as director in 1993, the support staff was reduced to an associate director, an “administrator/editor,” and a “publications specialist.” The executive board’s composition changed dramatically during the Hawai’i years. As late as 1977 only one member was from outside the United States. By contrast, of the board membership total of eighteen in 1988, ten were Americans but the others were Canadian, Japanese, Indian, Fijian, Chilean, Norwegian, German and Italian.144 The expansion of losi’s funding effort was reflected strikingly in the list of sponsors for the 1984 conference (held in San Francisco, after the signing of unclos in 1982), crediting Chevron usa as providing what was termed the “major funding,” and the University of San Francisco, with additional support from other energy firms (Exxon, Mobil Corporation, Petro-Canada, Shell Oil, and Standard Oil of Ohio), several law firms, the Port of San Francisco, and the Asia Foundation. The Ford Foundation sponsored attendance by early-career scholars and officials from less developed countries for this conference, as for others. Also listed among funding sources in 1984 were the government agencies (among them onr, noaa and the Rhode Island Sea Grant Program) that had been important sponsors of earlier conferences.145 144 At the 1991 meeting, held in Malmö, the executive board numbered nineteen members, of whom ten were from outside the u.s. (namely India, the uk, Canada, Singapore, ­Russia, Chile, New Zealand, Indonesia, the Netherlands, and Japan). In 1995 the board, still numbering nineteen, included only six Americans, with others from institutions in Korea, Wales, Indonesia, New Zealand, Norway, Canada, Germany, Japan, Chile, Nigeria, and Russia. 145 John Briscoe, a San Francisco attorney who had litigated in the federal courts major constitutional issues relating to maritime delimitation and ocean resources, and who was a presenter at several conferences—he is also author of the chapter on Lewis Alexander in the present volume—gave freely of time and effort to assist Professor Riesenfeld of Berkeley and Robert Krueger, not only in organizing of the conference and editing of the proceedings (The Developing Order of the Oceans) but also in coordinating the successful solicitation of financial support from San Francisco area corporations and other local sources. Cf. Briscoe, “A Remembrance of Stefan Riesenfeld,” in Scheiber, Science, Technology, and New Challenges, Chap. 17.

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As noted above, losi had also become committed to a policy of overseas meetings, at each of which local sponsors would be recruited, with the ­important result that the program presenters became much more diverse in nationality and in the range of academic and policy-related topics included in the design of panels.146 The apogee of multi-sponsor funding was reached in 1995, at the 29th annual conference, held in Indonesia, for which the program listed over forty corporate and institutional sponsors. Meanwhile, in the midnineties, losi had created a category of paid individual memberships, which included the privilege of paid registrations at the conferences. Sherry Broder and Clive Schofield provide insightful accounts, in Chapters 2 and 3, following here, of the specific major subjects in ocean law that were central to the losi discourse in the Hawai’i period of the organization’s history. Among the most notable features of the losi conferences in that period, which extended to 1997, were the introduction of East Asian area themes (including as full conference topics), led by Choon-ho Park; and, led by Willy Østreng and  Johnston, the integration of Arctic regional issues—largely n ­ eglected in international academic meetings until taken up by losi—into the larger global discourse on naval security, boundary questions, resource uses, and pollution control. Other panels on new themes addressed scientific breakthroughs that were revealing previously unknown resources of the deep sea; analyzed ocean law in relation to genetic resources law; and examined emerging issues such as the place of marine protected areas in ocean governance and environmental regulation. The annual conferences also continued to monitor and comment on the continuous development of new imo programs regarding rules of navigation, health and safety, dumping and other polluting activities. Withal, losi continued to offer a rich feast of studies, while bringing to the host university (as it had done for the University of Rhode Island) an elevated visibility and level of activity in the area of ocean affairs. Hence it came as a surprise, similar to that which Knauss had announced at the 1976 conference ending the uri sponsorship, when the University of Hawai’i similarly decided twenty years later to terminate its role as host and secretariat for losi.

146 The dramatically changed makeup of conference participants and panelists was exemplified by the 10th annual conference, held in 1976, at which there were 154 participants, among whom there were 31 academics, 41 government officials, 12 private lawyers and engineers, and 12 un officers and unclos iii delegates, coming from fifteen countries; and by a workshop event in Moscow, held in 1988, at which 45 participants were from ussr institutions, 18 from the usa, and 15 others from institutions in thirteen countries.

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The board quickly negotiated a transfer of the base to the University of ­ iami School of Law with the eminent scholar in international law, Bernard M Oxman, as director. The organization’s tenure at Miami proved to be for only a brief period, however, with the problem of funding unresolved despite apparently high hopes at the outset. Hence the still further transfer, formalized in 2001–02, to the School of Law in the University of California, Berkeley, where the losi base has been located since then. The losi at Berkeley When John Knauss was asked in his oral history interview whether he could have managed the founding of losi, which he and Alexander accomplished in less than a year at the University of Rhode Island in 1965, with equal speed and effectiveness at his old institution, the Scripps Institution of Oceanography in the University of California (uc), he replied that the complexities of uc’s multi-layered administration and of its famed system of “shared governance,” involving intensive faculty committee review, would have made it a very long process—and perhaps with an uncertain outcome. Ironically, some forty years after the founding at Rhode Island, it was to the very same University of ­California that losi was relocated, albeit to the Berkeley campus. This move to uc was accomplished when a small group of leading figures in losi, notably including Bill Burke of the University of Washington together with Professor Oxman, the losi director at Miami, and Judges Tullio Treves and Choon-ho Park of itlos initiated the transition. They became interested in the idea after attending a major conference on ocean law that was held in 1998 on the uc Berkeley campus. This conference was co-sponsored by the Luso-American Foundation, with cooperation of the Government of Portugal, as a celebration of the 400th anniversary of the Vasco da Gama Voyage to India and its unprecedented European transit of the Cape of Good Hope. I had been approached by the Portuguese officials with a proposal for my organizing and directing the conference because I was then engaged in ocean law research personally but, equally relevant, was also serving as director of a small Law School research unit called the Ocean Law and Policy Program. The conference papers were published in 2000, under my editorship, by Brill/Nijhoff in Law of the Sea: The Common Heritage and Emerging Challenges, which became the first volume in a continuing series of losi books under the Brill imprint that has appeared since then. I was asked by the losi board members, mentioned above, to inquire of our Law School dean, Dr. John Dwyer, as to possible interest in our institution’s becoming the new home base for losi. This resulted in an immediate expression of interest together with the dean’s commitment of financial support

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for secretariat functions. Dwyer expedited the transition by designating losi as a research unit within the School’s Institute for Legal Research (of which I was director), reporting directly to his office. He named Professor David D. Caron, then an already established brilliant scholar in international law, and myself as losi co-directors. The new arrangement, absorbing losi into the School’s organizational structure, rendered obsolete the existing losi governing a­ rrangements; hence, a governance charter that had been adopted sometime in the mid-1970s, under which the losi executive board was exercising its powers, was given up by the board, with the board itself being disestablished. Thenceforth the uc Berkeley School of Law was solely responsible for the ­activities of losi. David Caron and I did rely, however, for ad hoc advice largely on informal consultations with American and foreign experts, including especially Burke, Oxman, Judges Treves and Park, Jon Van Dyke of the University of Hawai’i, John Briscoe of San Francisco, and Richard Buxbaum, who was the senior professor in international law on our Berkeley faculty. Dean Dwyer (who was a recognized scholar in physical chemistry, with his Ph.D. from Caltech, as well as holding the Berkeley degree in law, and had been co-teaching with me in resources law and environmental regulation) provided our enterprise with a solid financial foundation initially. He also was of valuable counsel in the “start-up” phase of organizing our new program of conferences and publications. A major departure from earlier losi policy was embodied in our decision to discontinue paid membership and to hold conferences—by invitation only—on a much smaller scale than had become the modal size of the recent large international losi meetings.147 In addition, we opted for the publication of papers to be done in book form after full vetting for quality and close e­ diting, rather than relying on the format of verbatim transcripts as had ­sometimes been done with some of the losi books.148 147 A notable exception to our new policy was the special conference held, on the invitation of then-President of itlos José Luis Jesus and his colleagues on the Tribunal, at the itlos facility in Hamburg in 2010, with a generally announced availability of paid registrations and consequently a large attendance from many countries. This conference was cosponsored with Inha University (Korea), Academia Sinica (Taiwan), and the Ocean Policy Research Foundation (Japan), with local arrangements under direction of Dr. Doris König of the Bucerius Law School in Hamburg. After editing, the Hamburg papers were published in Scheiber and Paik, Regions, Institutions, and Law of the Sea: Studies in Ocean Governance. 148 Warranting special mention is another activity, beyond conferences and publications. This was a project conceived and directed by Professor Caron, “The Oceans in the Nuclear Age,” involving the construction of an elaborate website, small invitational workshops,

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After publication in 2000 by Brill/Nijhoff of the first losi volume, mentioned earlier, we formed a close relationship with that distinguished house for publication of books from the succeeding conferences, a cordial partnership that continues to the present day (and to the publication of the present book). Marie Sheldon of Brill’s Boston office has been a valued mainstay of editorial guidance and management for us, and Jane L. Scheiber has assisted importantly in the preparation of nearly all the book manuscripts prior to submission to the press. Several of the conferences since 2010 have been collaboratively organized and generously supported financially by, first, Inha University, and more lately by the Korea Institute for Ocean Science and Technology (kiost); other jointly sponsored conferences and publications have been undertaken with the Harte Institute of the Texas A&M University at Corpus Christi; with the u.s. Coast Guard, in Seward, Alaska, and at the uscg Academy in Connecticut; the Fridtjof Nansen Institute in Oslo, Norway; Wollongong University in Australia; the Istanbul Bilgi University; the Dickson Poon School of Law, Kings College, London; the National University of Singapore; and the World Maritime University, Malmö. As had been true at both uri and the University of Hawai’i, the presence of an active losi operational base at Berkeley impelled curricular developments, an important corollary advantage. First David Caron, and in more recent years H. Jordan Diamond (now serving as codirector of losi), co-taught with me a seminar on ocean law and policy that enrolled j.d., ll.m., and j.s.d. students, among whom were a number of u.s. Navy and u.s. Coast Guard officers who have gone on to take major posts in the services and in government offices in Washington. Additional active participants in the seminar included visiting junior and senior scholars from both European and Asian countries, a senior State Department official on sabbatical study leave, and several senior professors of international law who were seeking to broaden their research and teaching portfolios. Professor Holly Doremus, now the faculty codirector of losi, has continued to teach in the areas of coastal and ocean law. Interested alumni donors meanwhile have contributed funding for travel grants, permitting some of our students to attend losi conferences. losi has also sponsored public lectures at Berkeley by judges from itlos and the International Court of Justice, by u.s. State Department and foreign government officials, by u.s. Navy and Coast Guard legal officers, and by other scholars and lawyers with

and commissioned papers, collected and published in the losi volume, The Oceans in the Nuclear Age, edited by Caron and myself, originally published by Brill in 2009 and in an enlarged edition in 2014.

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special expertise in law of the sea. The legacy of ocean law studies at Berkeley, ­established so brilliantly by Stefan Riesenfeld in the late 1930s, has thus merged with the half-century tradition of the Law of the Sea Institute to carry forward to the present the vital project of advancing the international ­discourse on ocean affairs.

chapter 2

The losi in Hawai’i: Ocean Law and Policy Debates, 1977–96 Sherry P. Broder

Introduction

The Law of the Sea Institute (losi) was housed at the University of Hawai’i at Mānoa from 1977 to 1996, a period in which the Institute played a major role in the global discourse on ocean law and policy. The central place of losi in continuing debates of ocean law studies embraced the closing years of the Third un Law of the Sea Conference, which culminated in the signing of the un Convention on the Law of the Sea (unclos) in 1982; the ensuing period of diplomacy and legal debates that preceded the entry-into-force of unclos in 1994; and, after that, the ongoing controversies over terms of a regime for seabed mining, finally resolved with the 1994 “Implementation Agreement” that set in motion the initial phase of implementation under the International Seabed Authority. While losi was based at the University of Hawai’i, its activities were conducted with the close collaboration of the University’s East-West Center; and it enjoyed generous funding from the University of Hawai’i Sea Grant College Program and from various industrial firms, charitable foundations, foreign governments, and agencies of the u.s. Government. losi organized an ambitious program of 23 international conferences and workshops at various sites in North America, Asia, Europe, and the Middle East as well as in the United States. These events brought together a large and increasingly diverse set of international lawyers, academicians, diplomats, jurists, industry executives, and government officials, as well as occasionally ocean scientists and engineers. The conferences, workshops and publications of losi were a treasure house of intensive analysis and debates of contending contemporary positions with * Practicing attorney, arbitrator, and hearings officer in Hawai’i and elsewhere in the Pacific and founding director of Jon Van Dyke Institute of International Law and Justice located in the William S. Richardson School of Law at the University of Hawai’i, where the author also lectures in Ocean Law, Public International Law, and International Human Rights. She offers special thanks to Bianca K. Isaki, j.d., Ph.D. for her invaluable contributions to this study.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_004

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regard to virtually every issue of the era in the fields of ocean law and policy.1 The presentations made at losi conferences and the formal writings in losi publications of the period serve as a lens through which we can capture in retrospect some of the elements of continuity and discontinuity in debates of major ocean-law issues. Employing this approach, the present Chapter seeks to recapture the evolving contours—and contexts—of the debates over time in regard to three major issues: deep seabed mining; offshore jurisdiction by coastal states; and the special problems associated with the Pacific island states. Hawai’i’s geographic position as the most remote archipelago in the world made it a unique location for emphasizing many concerns of Pacific Nations and the Asia-Pacific region. So, too, did its political history: Hawai’i became the fiftieth u.s. state in 1959; it had been a u.s. Territory (1900–1959), and previously had been an independent Pacific Island nation. The Clarion-Clipperton Fracture Zone, whose vast mineral deposits 5,000 meters beneath the sea ­became a fact of special interest in relation to implementation of unclos, is located just 500 miles southeast of Hawai’i. The post-World War ii decline of colonialism and a wave of nation-building in the Pacific region marked Hawai’i as an appropriate headquarter site for losi. Moreover, Japan, Korea, Singapore, Hong Kong, and Taiwan were achieving their extraordinary economic ­transformations and growth during the Hawai’i losi years. China had also begun its rise to the level of a great world power. The Hawai’i losi hosted important discussions regarding the concerns of Asian countries in ocean law 1 In 1977, John Craven became the director of losi. In addition, an international executive board and, for some of the major conferences, special international boards of advisers, were appointed in support of the losi director’s initiatives. Craven had previously served as the Chief Scientist of the Special Projects Office of the u.s. Navy and had established the Natural Energy Laboratory of Hawai’i Authority (nelha) at Keahole Point on Hawai’i Island. See Chapter 5, by John Briscoe, below, for an appreciation of John Craven. From 1993–1995, Thomas Mensah served as losi’s director. Born and raised in Ghana, Mensah began his international legal career with the International Atomic Energy Agency in Vienna. In 1996, after leaving losi, Mensah was elected as the first President of the ­International Tribunal for the Law of the Sea (itlos) and served from 1996 to 2005. Judge ­Mensah then was appointed as President of the Permanent Court of Arbitration (pca), presiding ­recently over the disputes brought by the Philippines against China. University of Hawai’i law professor Jon M. Van Dyke made major contributions to the success of losi in Hawai’i; he continued his strong commitment and central role in losi when it moved to University of Miami School of Law and then to the uc Berkeley School of Law. He was awarded the title Distinguished Fellow of losi at uc Berkeley, in recognition of his important contributions to the program.

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and policy issues. The special interests and problems of newly founded island states, the economic importance globally of the ocean straits of the southwest Pacific-Indian Ocean area, and the manifold interests and ambitions associated with China’s ascendency led to an enhanced attention to the Pacific Rim region in losi’s activities in the years considered here.2

Deep Seabed Mining

Although the conferences and publications of losi during the Hawai’i years reflected the extraordinary range and complexity of contemporary ocean governance issues, a continuous theme was the cluster of issues relating to seabed mining. These issues were already of pre-eminent concern in the early years of the Hawai’i losi. Technological advances and progress catalyzed a sense of ­urgency to create a legal regime for governance. Seabed mining in the deep oceans would be a new undertaking. The technical feasibility of ­accessing deep ocean seabed minerals was in the process of being researched, impelled by a rising optimism that practical obstacles to economically feasible ­extraction would be soon conquered. The developing countries, whose ranks were increased by the newly independent former colonies of the developed countries, sought a more equitable sharing arrangement of the resources. In their view, rights and benefits from seabed mining had not yet vested. Their goal was to establish for the developing countries a “fair share” of the benefits from those activities. At the very first conference sponsored by losi Hawai’i in 1977, Dolliver Nelson, officer in the un N. Law of the Sea Secretariat (and later an International Tribunal for the Law of the Sea [itlos] judge from 1996 to 2014) noted that the development of new states had swelled the ranks of the developing nations and formed part of the Group of 77.3 The Third World countries’ engagement in negotiations, he observed, was an opportunity to narrow the gap between 2 Although many from Hawai’i participated in losi meetings while it was housed at the University of Hawai’i, it was not until the last year of its tenure in Honolulu that Hawa’i’s specific concerns with ocean governance became a focus of losi presentations. Thomas A. ­Mensah, ed., Ocean Governance: Strategies and Approaches for the 21st Century: Proceedings from the 28th Annual Conference of the Law of the Sea Institute, July 11–14, 1994, Honolulu, Hawai’i ­(Honolulu: University of Hawai’i Press, 1996). 3 The “Group of 77” was formed in 1964 as a coalition of developing nations. The coalition is designed to promote its members’ collective economic interests and create an enhanced joint negotiating capacity in the United Nations. There were 77 founding members of the organization, but the organization had since expanded to more than 130 member countries.

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developed and developing nations and eradicate what the latter viewed as the results of colonialism. The unclos Informal Composite Negotiating Text (“icnt”), which requires that assistance be extended to developing nations for scientific research, was important in this regard.4 The effort to establish a new economic order to bridge the gap between powerful industrial nations and the developing nations was the basis of the many disputes over the deep seabed mining regime. Article 140 (1) of the Convention established that “[a]ctivities in the Area be carried out for the benefit of mankind as a whole.” The “common heritage of mankind” was an organizing principle of unclos iii that would later be enshrined in its Article 136. In tension with this principle was the concept of the freedom of the high seas, which is traced back to the sixteenth-century Dutch jurist and scholar, Hugo Grotius. Grotius ­reasoned the seas must be free for navigation and fishing because natural law forbids ownership of things that seem “to have been created by nature for common use.”5 However, he defined “things for common use” as those that “can be used without loss to anyone else[.]”6 The concept of the common heritage of mankind was a major innovation at unclos. The idea was introduced into the un General Assembly debates by Maltese Ambassador Arvid Pardo’s address on November 1, 1967. He also called for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction.” Pardo’s concept of the common heritage of mankind was repeatedly endorsed by various presenters at Hawai’i losi’s several meetings. It would also be frequently challenged, however, by others who declared that those nations and companies with the financial resources and technological capabilities to succeed in such enterprises should have free access to undersea minerals. As he reiterated in numerous writings during the unclos iii period, Pardo was concerned over this very position, since “current international law encourages the appropriation of this vast area by those who have technical competence to exploit it.”7 Such encouragement, Pardo further contended, also created a 4 L.D.M. Nelson, “The Functions of Regionalism in the Emerging Law of the Sea as Reflected in the Informal Composite Negotiation Text,” in Douglas M. Johnston, ed. Regionalization of the Law of the Sea: Proceedings of the Eleventh Annual Conference of the Law of the Sea, (Cambridge: Ballinger Publishing Co., 1977), 17 to 29. Cf. Articles 203 and 276 in the ictn. 5 Jon M. Van Dyke, “International Governance and Stewardship of the High Seas and its ­Resources,” in Jon M. Van Dyke, D. Zaelke, and G. Hewison, eds., Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (Island Press: Washington d.c., Covelo, California, 1993), 14. 6 Ibid. 7 A. Pardo, The Common Heritage–Selected Papers on Oceans and World Order (Vallarta: International Ocean Institute, 1979), 31.

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“very grave” situation that threatened to exacerbate the arms race and magnify the already-dangerous degree of global economic inequalities among nations.8 Given the urgency and complexity of the issue at the unclos iii negotiations, losi in 1978 hosted a Workshop on “Alternatives in Deepsea Mining,” held in Kā‘ū, Hawai’i.9 Its purpose was to engage key protagonists of ­opposing points of view on the issue of international control that would threaten to block final agreement from many developed nations on a comprehensive ­treaty on the law of the sea.10 The workshop was well attended by leading u.s., Canadian, European, and Third World diplomats, representatives of the seabed mining consortia, leading lawyers, and scholars in international and maritime fields.11 While many participants asserted, optimistically, that communication over competing concerns was taking place at an unprecedented level, the ­industry representatives predicted the failure of seabed mining negotiations due to ­fundamental distrust between decision makers and stakeholders.12 Most conspicuous was the participation of the u.s. Department of State, whose positions on the international regulation of seabed mining would shift dramatically during u.s. President Ronald Reagan’s administration ­(1981–1989). Participants included George Aldrich, the u.s. Department of State’s Chief ­Negotiator on its Seabed Committee delegation; and Elliot L. Richardson, Chief of the u.s. Delegation to unclos iii.13 A few months earlier, R ­ ichardson had stated the u.s. position to a Group of 77 plenary meeting, and it was ­repeated at the Workshop: Legal restraints may be imposed on national action beyond the limits of the jurisdiction of any state only by their inclusion in the rules of international law. With respect to seabed mining we are unaware of any such restraints other than those that apply generally to the high seas and the exercise of high seas freedoms, including the prohibition on sovereignty 8 Ibid. 9 The 1978 losi Executive Board members were: Scott Allen, Lewis M. Alexander, John E. Bardach, Thomas A. Clingan, Jr., Paul Fye, John King Gamble, Jr., Michael Hardy, Ann L. Hollick, Judith T. Kildow, H. Gary Knight, Albert W. Koers, Robert B. Krueger, John C. Marr, Edward Miles, Choon-Ho Park, Giulio Pontecorvo, David A. Ross, Anthony D. Scott, Hideo Takabayashi, and Richard Young. 10 Scott Allen and John P. Craven, eds., Alternatives in Deepsea Mining, Proceedings, Law of the Sea Institute, University of Hawai’i, Workshop 11–14 December 1978, Kā’ū, Hawai’i (­Honolulu: Law of the Sea Institute, 1979), vii. 11 Ibid., 1 & 107–110. 12 Ibid., viii. 13 Ibid., 106–108.

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claims, the exclusive jurisdiction of states over their ships and nationals, and the duty to have reasonable regard for other high seas users. States will become subject to additional restraints when they adhere to a treaty that establishes an international authority to manage and oversee seabed mining. They will then have voluntarily accepted the alteration of those freedoms in the broader interest of creating a stable legal regime for the use and management of the world’s oceans and their resources.14 Richardson acknowledged widespread support for the Group of 77’s position that the Declaration of Principles’ affirmation of deep seabed resources as the common heritage of mankind prevented unilateral appropriation of them. However, he asserted, the status of these resources as part of the “common heritage” did not prohibit access to them.15 University of Miami Professor Thomas A. Clingan agreed with Richardson’s assertion, but he qualified this view significantly, contending that high seas mining could continue as a high seas freedom only until other regulation was imposed through the agreement of nations, presumably through the Convention.16 Although the 1978 Kā‘ū Workshop had been intended to address mainly the technological concerns and issues regarding the composition and powers of the proposed international seabed Authority—as they were contributing to the impasse over an international treaty—the presentations by speakers reflected a conviction that there must be a focus upon the political, o­ rganizational, and strategic issues.17 Sri Lanka’s Ambassador M.C.W. Pinto articulated a tension between those who would secure national regimes of ocean floor resource mining and those who understood those resources to be part of the common heritage of mankind. For countries supporting an international ­regime, he declared, the ‘common heritage’ of these resources is not res nullius, to be had for the taking; it is not res communis, simply for enjoyment or use in common; it is more akin to property held in trust—held in trust for ‘mankind 14

Richardson to the Plenary Meeting, September 15, 1978, quoted by Thomas A. Clingan, Jr, “Legal Problems Relating to the Extraction of Resources of the Deep Sea Other than Manganese Nodules,” in John King Gamble, Jr. ed., Law of the Sea: Neglected Issues: Proceedings of the 12th Annual Conference of the Law of the Sea Institute, October 23–26, 1978, University of Hawai’i (Honolulu: Law of the Sea Institute, 1979), 76. 15 Ibid. 16 Ibid., 77. 17 Gamble, Jr., Law of the Sea: Neglected Issues, 3.

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as a whole,’ for the public. It is therefore closest to res publicae, the property of the people, to be administered by the people and for the people.18 University of Bonn Professor C. Rüdiger Wolfrum, a leading authority in international law who would later serve as an itlos judge, provided a nuanced analysis of technology transfer provisions.19 Wolfrum dismissed as “not feasible” a system under which States would be the only entities to engage in deep seabed mining, and he therefore focused on alternative arrangements of joint ventures and technology transfer that might need to be coupled with varying kinds of access.20 Robert B. Krueger, a California attorney who was counsel to major energy firms, offered a pragmatic assessment of the current status of seabed mining. Krueger predicted the development of national systems for seabed mining regulation, asserting that such systems would not obviate the need for an international agreement.21 “There could also be cases,” he warned, “in which a nation might extend its 200-mile Exclusive Economic Zone to cover mining sites in contiguous areas, or there could be other forms of claims…. Such conflicts could become grave if they involved the world’s great powers”; or some nations might initiate a new form of “claim jump[ing]” of island territories in order to procure marine resources and to license deep sea mining sites within individual islands’ 200-mile eezs.22 The annual losi conference in 1978, held in The Hague, was characterized by discussions of issues neglected in the formal unclos negotiations.23 There were presentations on non-nodule resources of the deep seabed by David A. Ross and Thomas A. Clingan, Jr., and commentaries from scientists. Ross, who was on the u.s.-based Woods Hole Oceanographic Institution staff, underscored the breadth of resources other than nodules. Such resources, he stressed, included those of the deep sea water column (sources of freshwater and biological resources such as krill; and areas conducive to energy production, such as ocean thermal energy conversion, wind, or wave energy) as well as of the deep sea bed.24 Even deep seabed resources, exclusive of manganese 18 19 20 21 22 23 24

M.C.W. Pinto, “Statement,” in Allen and Craven, Alternatives in Deepsea Mining, 14–15. Wolfrum, “Transfer of Technology,” in ibid., 35. Ibid., 40. Robert B. Krueger, “A Current View of Deepsea Mining Issues,” in ibid., 80. Ibid., 80. Twelfth Annual losi Conference: “Law of the Sea: Neglected Issues” (October 22–26, 1978), University of Utrecht, The Hague. David A. Ross, “Resources of the Deep Sea Other than Manganese Nodules,” in Gamble, ed., Law of the Sea: Neglected Issues, 54–56. Cf. discussion by Kathryn Mengerink of seabed resources in Chapter 16, infra, this volume.

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nodules, he pointed out, included sediments containing aluminum, iron, copper, nickel, cobalt, titanium, zeolite, lead, silver, gold, and zinc, among others; there were also zones of mineralization and heavy-metal rich muds, mostly basalts containing elements such as chromium, copper, nickel, and plutonium.25 Given this complexity, Clingan insisted, it was unrealistic to develop detailed regulation “for an industry that is yet unproved and basically unknown[.]” Moreover, companies or States interested in exploiting even the minerals less valuable than manganese modules would be discouraged from proceeding if faced with “over-regulation” as was proposed in the icnt. The debate of the proposed international seabed regime, he declared, evinced “the emergence of a system, indeed a philosophy, that is basically unsupportable in the form that is emerging.”26 At the 1980 losi conference, held at the Institute of International Law in Kiel,27 many presenters reacted to developments at the ninth session of the unclos iii negotiations. They believed a final draft was close, since a consensus had been reached by the participants on almost all draft Convention articles.28 A major breakthrough had occurred in regard to the decisionmaking process of the Seabed Authority, including complex arrangements for its ­composition and voting mechanisms.29 At the same time, however, the u.s. Congress had been in the process of enacting its Seabed Mining Act of 1980. In this Act, the u.s. claimed the authority to grant exploration licenses and exploitation ­permits that were valid prior to the authorization dates in 25 Ibid., 59. 26 Ibid. 27 Fourteenth Annual losi Conference: “Law of the Sea in the 1980s” (October 20–23, 1980), Institute of International Law, University of Kiel, Germany. 28 A few major issues remained, including most notably the controversy on how to satisfy the economic interests of deep seabed miners and developing countries’ demands for a highly regulated mining system controlled by the proposed International Seabed Authority. 29 The composition of the membership of The Authority would include investing countries, consuming countries, land-based producers, and regional interests. Different majorities, from a simple majority to three-quarters, and in some cases consensus, would be variously utilized depending on the importance of the matter. During its ninth session, on the ­basis of the deliberations of the Conference (125th to 128th plenary meetings), the Collegium undertook a second revision of the informal composite negotiating text. For more ­information, see the Informal Composite Negotiating Text/ Revision 2, u.n. Report No. A/CONF.62/WP.10/Rev.2. Dated Apr. 11, 1980 http://legal.un.org/diplomaticconferences/ lawofthesea-1982/docs/vol_VIII/a_conf-62_wp-10_rev-2.pdf.

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­ nclos iii.30 The Federated Republic of Germany and the United Kingdom u also passed unilateral legislation concerning seabed mining.31 Mario Manansala, an officer of the Coastal and Geodetic Survey of Manila, Philippines, explained the continuing objections of the Group of 77 to unilateral national legislation purporting to govern mining in the ocean. These unilateralist moves by the United States and other developed states, in their view, had undermined the principle of good faith in negotiations and “jeopardized the progress achieved so far in the convention” as the result of intensive negotiation and compromises on many sides and over many years.32 Taro Takeuchi, a leading figure in the industry, offered a historical overview of the development of deep seabed mining technologies, with which he had been involved for over eight years through his employ with the Mitsubishi Corporation. He estimated that large-scale testing alone would likely cost at least $100,000,000 to $200,000,000, and that exploration would involve another $1.5 to $2 billion.33 Given these magnitudes, he declared, the investor must have ­assurances that the investment was reasonably protected. In any event, Takeuchi asserted, actual production was still years ahead; deep sea mining was “still in infancy” and was “too immature to be called or treated as an industry on its own.”34 Further delays in obtaining agreement over the unclos treaty could contribute to growing doubts about the economic prospects of deep sea ­mining, causing investors to lose interest and confidence, with consequent ­impeding of technological research and development. Takeuchi stated that his ­concern was based not entirely on a “material interest in manganese nodules,” 30 31 32

33 34

Deep Seabed Hard Mineral Resources Act of 1980, 39 u.s.c. §§ 1401–1473 (1980). James C.F. Wang, Handbook on Ocean Politics and Law (Westport, Connecticut: Greenwood Publishing Group, 1992), 286. Mario C. Manansala, “The International Seabed in the Law of the Sea: Some Views from Developing Countries,” in Choon-Ho Park, ed., The Law of the Sea in the 1980s: Proceedings of the 14th Annual Conference of the Law of the Sea Institute, Oct. 20–23, 1980 (Honolulu: Law of the Sea Institute, 1983), 150–163. The then-current compromise proposal on the Authority’s decisions concerning sensitive issues would require super-majorities. And three kinds of decisions could be taken only by consensus: special actions to protect landbased mineral-producing developing countries against adverse economic effects caused by seabed mining; adoption of rules, regulations, and procedures that constitute the basic framework for seabed mining; and adoption of amendments to the seabed part of the convention. Ibid., 154. Taro K. Takeuchi, “Prospect for Deepsea Mining in the 1980s, A Former Industry Member’s View,” in Park, Law of the Sea in the 1980s, 164–169. Ibid., 165.

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but also on a “spiritual interest and strong desire to see the manganese nodules put to practical use for the benefit of all mankind.”35 Uwe Jenisch, of the German State of Schleswig-Holstein’s Ministry of ­Economics, also addressed the prospects of deep seabed mining, focusing on provisions for joint ventures and the work of the unclos Preparatory Commission.36 He appraised the unresolved questions about the Preparatory ­Commission’s procedures, functions, and financing, all of which could become “stumbling block[s]” to ratification of the new convention.37 German attorney Hans-Jochen Martin pointed out that deep seabed mining would not, from an industry perspective, rise or fall exclusively on the legal principle of the freedom of the high seas because of the already-promulgated national legislation for deep seabed mining. In opposition to the Group of 77’s position, he urged that national laws should be implemented and that licensed explorations should go forward as soon as possible.38 Ross D. Eckert, Professor of Economics at Claremont Men’s College in California, presented a cost-efficiency-based view of the new law of the sea and its potential effect on the distribution of ocean wealth. He claimed that regulation could frustrate “efficiencies,” particularly for resource exploitation.39 Eckert proposed creating a separate system, under which individual nations would create propertied ocean “enclosures” of seabed mining regimes whereby property rights in seabed resources would be recognized. Consistent with his position on how the fishing industry should be regulated on market-economy principles, Eckert deplored the intransigence of the nations and commentators who insisted on a global, un-based “command” regime for mining.40 In 1974, the United States began to send the largest delegation to unclos negotiations (and would continue to do so through the end of the Presidency of Jimmy Carter at the beginning of the 1990s). But a basic change in the tenor 35 36 37 38 39 40

Ibid., 164, 167, 169. Uwe Jenisch, “The International Seabed, Prospects for Mining in the 1980s and the State of Negotiations,” in Park, The Law of the Sea in the 1980s, 170–183. Ibid., 178. Hans-Jochen Martin, “Deepsea Mining between Convention and National Legislation,” in Park, ed., The Law of the Sea in the 1980s, 184–195. Ross D. Eckert, “The Wealth Distribution and Economic Efficiency Consequence of the New Law of the Sea,” in Ibid., 244. Ibid., 244. For further discussions of the efficiency-based views for resource regimes, see Doug Bandow, “Developing the Mineral Resources of the Seabed,” Cato Journal 2 (1982): 793–821; and Harry N. Scheiber and Christopher J. Carr, “From Extended Jurisdiction to Privatization: …The Marine Fisheries Debates, 1937–1976,” Berkeley Journal of I­ nternational Law, 16 (1988), 10–54. See also Scheiber, in this volume, supra Chapter 1.

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of u.s. participation had changed when u.s. President Reagan was elected in 1980.41 Reagan refused to submit the Convention for ratification or even to permit the u.s. delegation to participate as an observer at the Preparatory Commission that was tasked with the drafting of rules and regulations to govern deep seabed mining. At the 1978 losi conference, many participants had predicted that unclos regimes under negotiation would not achieve ratification by a majority of industrialized states, but that the treaty would nevertheless enter into force through ratification by numerous smaller states.42 After Reagan’s election, however, there was no path forward that could produce a resolution of differences between the United States and the Group of 77. It was apparent at these losi meetings in the late 1970s and early 1980s that the u.s. Government’s criticisms of the International Seabed Authority were persistent and irreconcilable with the Group of 77 views. Later, the unclos Article xi provisions governing seabed mining would become the major reason the ­United States refused to ratify the Convention. When unclos iii reconvened in March of 1981 for its tenth session, President Reagan, newly elected, announced that the United States would not negotiate further until it had finished a thorough review of the draft Convention. He announced new goals in regard to Convention negotiations, and he sought major revisions to the negotiating text, particularly with regard to deep seabed mining. The u.s. position had dramatically shifted to demand: (1) reducing limitations on deep seabed mining; (2) limiting the “collectivist” approach to seabed mining and ensuring national, particularly u.s., access; (3) altering the decision-making process to one that “fairly reflects and effectively protects the political and economic interests and financial contributions of participating states” (Article 161); (4) preventing amendments from occurring without national ratification (Article 155); (5) preventing mandatory transfer of technology to developing nations (Article 144 ); and (6) preventing revenues from going to national liberation movements. On April 30, 1982, the u.s. Ambassador to a Convention negotiation session insisted that a vote be taken on the entire document, upon which 130 nations voted for the Convention, four voted against (Turkey, Israel, Venezuela, and the United States), and seventeen abstained. Abstaining votes included those of several Western and Eastern European nations that believed too much had been conceded to the United States in the current draft or who were concerned 41

Jon M. Van Dyke, ed., “Consensus and Confrontation: The United States and the Law of the Sea Convention:, Proceedings of a Workshop of the Law of the Sea Institute, January 9–13, 1984, East-West Center, Honolulu, Hawai’i,” (Honolulu: Law of the Sea Institute, 1984), 1. 42 Gamble, Law of the Sea: Neglected Issues, passim.

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that their mining industries were being shackled by the seabed understanding. By December, the unclos document had been approved by the un General Assembly and was formally opened to ratification. Virtually all commentators agree today, in retrospect, that the u.s. Government had been largely successful in its efforts—excluding the seabed mining provision—to influence the basic terms of unclos in the deliberations in the Conference prior to 1982. Nonetheless, President Reagan declined to sign the Final Text, as we have noted; instead he announced in 1983, only weeks after signing of the unclos, a new “United States Ocean Policy.”43 This policy ­purported to parallel the provisions of unclos, treating most of the provisions as “customary law,” yet without a commitment to adopting the treaty ­obligations as a whole. Seven weeks after the historic vote in 1982, losi convened its major annual meeting at the Dalhousie Ocean Studies Program, in Halifax, Nova Scotia.44 ­Germany, the United Kingdom, and the United States, among others, had become firm by then in determining not to sign onto the Convention. A lead speaker on the Dalhousie program, Peking University’s Professor Tie-ya Wang addressed the tension between Western developed nations and the Third World nations. Professor Wang, who was also legal advisor to the Chinese delegations to the un and to unclos iii, recounted China’s historical regard of the sea as a natural barrier against foreign invaders and thus underscored the importance of national defense in the formulation of China’s maritime policies.45 He ­reminded participants of China’s support for claims by Mexico and other Latin American states to a 200-mile nautical eez in the 1940s, and he identified China with other Third World interests. For China, as for the Group of 77 and its adherents, he asserted, unclos represented a significant a­ chievement 43

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See Proclamation No. 5030, 48 Fed. Reg. 10,605 (1983), 3 c.f.r. 5030 (1983) reprinted in 22 i.l.m. 465 (1983); Statement by President on United States Ocean Policy, Weekly Compilation of Presidential Documents 19 (Mar. 10, 1983), 383 (reprinted in 22 i.l.m. 464 [1983]). Sixteenth Annual losi Conference: “Law of the Sea and Ocean Industry: New Opportunities and Restraints” (June 21–24, 1982), Dalhousie Ocean Studies Program, Halifax, Nova Scotia. The members of the 1982 losi Executive Board were John E. Bardach, Gordon L. Becker, Thomas A. Clingan, Jr., Brian Flemming, Paul M. Fye, John King Gamble, Jr., G. Winthrop Haight, John A. Knauss, Albert W. Koers, Robert B. Krueger, Gordon R. Munro, Bernard Oxman, Choon-Ho Park, Renate Patlzoeder, Guillo Pontecorvo, Jan Schneider, Hideo Takabayashi, and Warren S. Wooster. Tie-ya Wang, “China and the Law of the Sea,” in Douglas M. Johnston and Norman G. Letalik, eds., Law of the Sea and Ocean Industry: New Opportunities and Restraints: Proceedings of the 16th Annual Conference of the Law of the Sea Institute, June 21–24, 1982, Halifax, Nova Scotia (Honolulu: Law of the Sea Institute, 1984), 582.

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because it much better reflected their interests than had the traditional, preexisting law of the sea.46 Wang specifically addressed the stakes of failure to win the industrial nations’ assent to an international regulation of deep seabed ­resources: “If it were legally possible to acquire possession of the seabed through effective occupation,” he said, it would be “tantamount to awarding control of seabed resources to the developed states.” Such a “scramble” would constitute a form of neo-colonialism; therefore he deplored the u.s. Government’s last-minute decision to propose new amendments as being “tantamount to renouncing the basic principle … that the international sea-bed and its resources are the common heritage of all mankind.” By contrast, China stood solidly by the precept that “all resources in the area beyond national jurisdiction … are, in principle, jointly owned by the people of all countries.”47 Also addressing the “stumbling block” of u.s. recalcitrance to sign unclos, Jon Van Dyke and the physical oceanographer David L. Teichmann examined the transfer of seabed mining technology.48 Certain developing countries considered technology to be part of the world’s “common heritage” to which all should have access, and accounted for technology gaps through reference to past imperialism and present neocolonial relationships.49 Developed countries argued seabed mining required capital-intensive investment and therefore would not move forward unless governed only by the competitive strength of the market. unclos included mandatory transfer technology provisions, but they were time-limited, had restricted application to third parties, and “technology” did not include processing, marketing, or transportation technologies. Van Dyke and Teichmann observed investment activity was ongoing in the developing world, despite unclos’ mandatory technology transfer provisions. For predicted private economic interests, however, it would actually “make more economic sense to invest in seabed mining within the framework of the International Seabed Authority than to proceed under the uncertain protection of the few western nations that did not join in supporting the Convention.”50 46 47 48

49 50

Ibid., 585. Ibid., 585–586. Jon M. Van Dyke and David L. Teichmann, “Transfer of Seabed Mining Technology: A Stumbling Block to u.s. Ratification of the Convention on the Law of the Sea?” in J­ ohnston and Letalik, Law of the Sea and Ocean Industry, 518. Van Dyke’s position was spelled out more fully in an article he authored with Christopher Yuen, “‘Common ­Heritage’ v. ‘Freedom of the High Seas’: Which Governs the Seabed?” San Diego Law Review 19 (1982): 493. Van Dyke and Teichmann, “Transfer of Seabed Mining Technology,” 519. Ibid., 539.

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George Leger of the Petro-Canada International Corporation (pci) examined alternative arrangements that could more equitably (in his view) allow for marine resources than would a regime of “first-technologically advanced, first-served.”51 pci’s mission was to provide exploration and pre-exploration services on a grant basis in the oil-importing developing countries (oidcs), such as Jamaica, Senegal, and Tanzania, to help them reduce their dependence. pci sought to extract oidcs from their “Catch-22 situation.” “To fuel their economic development and to attempt to reduce disparity with the Western world,” Leger contended, “they have switched massively to oil from more traditional fuels…. But many now find that a hydrocarbon-based economy is hardly possible to maintain, because at the current oil prices their economic infrastructure—exports over imports, industrial output and efficiency—is inadequate.”52 pci’s program gave oidcs access to technological expertise and equipment without requiring them to compromise sovereign rights over resources. The 1984 losi Workshop at the East-West Center (Honolulu), Consensus and Confrontation,53 was organized around the question: What happened? “[N] agging doubts” persisted in regard to the Reagan administration’s rejection of the Convention based primarily on deep seabed mining provisions, in light of the conformity of many other unclos provisions with u.s. policy interests. The Workshop sought “to air these doubts and to look at the benefits and costs of the Convention as a whole[.]”54 Workshop presenters addressed confrontations between the United States and developing nations. On one side, arguing in ­favor of the Convention and representing interests of developing nations, were Satya Nandan of Fiji, then Special Representative to the u.n. Secretary General on the Law of the Sea; Ambassador Hasjim Djalal, I­ndonesian ­diplomat and scholar; Rabbie Namaliu, Papua New Guinea’s Minister for Foreign Affairs and Trade; and Ambassador Koh of Singapore, President of unclos iii. The chief proponents of the u.s. position were two representatives from the u.s. Department of State: Brian Hoyle, director of the Office of Ocean Law, and David Colson, of the Office of Legal Advisor. Hoyle presented the Reagan Administration policy on seabed mining, which disagreed with the assertions of Koh and others that deep seabed mining outside of the Convention would 51

George Leger, “Partnerships in Hydrocarbon Development: The Role of Petro-Canada I­ nternational Assistance Corporation,” ibid., 565. 52 Ibid., 568. 53 Workshop: Consensus and Confrontation: The United States and the Law of the Sea C ­ onvention (January 9–13, 1984), East-West Center, Honolulu, Hawai’i. 54 Van Dyke, Consensus and Confrontation, 2.

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be illegal. Hoyle contended that the regime set out in Part xi of the Convention was “massive overkill.”55 Hoyle also set forth the u.s. position on navigation, under which “[t]he United States will recognize the rights of other states in the waters off their coasts as reflected in the Convention as long as the rights and freedoms of the United States and others under international law are recognized by the coastal states.”56 Ambassador Djalal focused on the prospect that individual States would recognize one another’s unilateral claims to deep seabed resources and rights to mine. He insisted that signatory nations were banned by the Convention terms to “conclude or participate in any ‘mini-treaty’ with other states, particularly with nonparties, whose purpose is clearly to conduct activities outside the scope of the Convention.”57 Professor R.P. Anand of Nehru University, New Delhi, predicted that u.s. companies that sought to engage in mining operations “would have no choice but to proceed under the flag of a country that has adhered to the treaty” rather than undertaking unilateral actions.58 Both Koh and Djalal went further, accusing the u.s. Government of having negotiated in bad faith. Koh proposed that the issue of deep seabed mining outside the terms of the Convention be submitted to the International Court of Justice (icj) for an Advisory Opinion, even threatening that he would seek to have such a case brought.59 Reflecting on Koh’s threat, Paul C. Yuan, of the University of Southern California law faculty, reminded the conferees that ­China generally regarded decisions of international courts “as being the ­result of ­manipulations by major capitalist powers,” so that China has adopted a “pick and choose” attitude toward icj decisions and would do likewise with the Convention itself.60 “[A]s for the validity of the teachings of eminent publicists…, the Chinese view is that these ‘publicists’ were educated by the bourgeoisie and therefore serve their interests.”61 Other major contributions to the Workshop were made by the American ­legal scholars William Burke, John Craven, Anthony D’Amato, Ved Nanda, ­Bernard Oxman, and Jon Van Dyke. Speakers from outside the United States 55 56 57

Brian Hoyle, “The u.s. Position on Deep Seabed Mining,” in ibid., 249–250. Hoyle, “The u.s. Position on Navigational Rights,” in ibid., 292. “Discussion: Was the Convention Negotiated as One ‘Package Deal’? Did the United States Act in Bad Faith? An Analysis of the u.s. eez Proclamation,” in ibid., 54. 58 R.P. Anand, “Odd Man Out: The United States and the un Convention on the Law of the Sea,” in ibid., 103. 59 “Discussion: Part ii” in ibid., 232, 253. 60 Paul C. Yuan, “The New Convention on the Law of the Sea from the Chinese Perspective,” in ibid., 184, 195–196. 61 Ibid.

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­included Elisabeth Mann Borgese, who had been convenor of the international conference on the law of the sea, “Pacem in Maribus,” held in Malta in 1970; and Dean Anand of India. Nipant Chitasombat (Thailand), Abu Bakar Jaafar (­Malaysia), Choon-Ho Park (Korea), and Jorge Vargas (Mexico) also contributed analyses. Anand set the table for debate, presenting the developing countries’ position: “The us cannot expect to be taken seriously in the future,” he warned, “if it just picks up its marbles and walks off because it has not gotten everything it set out to obtain.”62 Anand provided a cautionary note, reviewing the historical path of the principle of the “freedom of the seas,” which he ­described as “imprecise and uncertain.” The principle, he stated, “provides merely that the ʻhigh seas’ are open and cannot be subjected to sovereign control by any state, and that all states must exercise the freedom of the high seas with reasonable regard for the interests of other states.”63 Further, he stated, the freedom of the seas had already given way to a trend toward wider national jurisdiction in the twelve mile territorial seas boundary, a newly legitimized 200-mile eez, and yet other new means of effecting creeping jurisdiction.64 The basic response from the industrialized powers was expressed by Conrad Welling, longtime spokesman of the u.s. ocean mining industry, who reiterated the familiar contention that unclos’ proposed regulatory burdens upon seabed mining would result in a shortage of risk capital available for development in countries that are party to the treaty.65 Anatoly Kolodkin, professor, Soviet Academician, and influential legal expert on ocean policy (who years later would serve as an itlos judge), presented­ a more embracing perspective on the broad-based opportunity for peaceful ordering of the oceans that unclos represented. He endorsed “[the] development of the concept of the common heritage of mankind … [as] a unique historical event that can have a significant influence on the present world and international order. The concept is directly linked to ‘the idea of a new international economic order.’”66 losi’s 1984 Conference, held in San Francisco,67 was a pivotal event both for ocean law debates and for losi itself, as it was convened in the i­ mmediate 62 63 64 65 66 67

R.P. Anand, “Odd Man Out: The United States and the un Convention on the Law of the Sea,” ibid., 123. Anand, Ibid., 75–76. Ibid., 78–79. Other countries continue today to argue for this wider national jurisdiction; they include Iran, which did not ratify unclos. Conrad Welling, “A View from the Industry,” in ibid., 233. Kolodkin, “The Common Heritage of Mankind of the Seabed: The Notion and Substance,” in ibid., 241. Eighteenth Annual losi Conference: “The Developing Order of the Oceans” (October 24–27, 1984), University of San Francisco, California.

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wake of the u.s.’s refusal to sign unclos. (The larger context of the 1984 Conference is analyzed in Chapter 1 of the present volume.) The ramifications of the u.s. refusal to sign, as it affected the seabed mining issues, was a central preoccupation of the presenters. The legal scholar and former diplomat John Norton Moore, professor in the University of Virginia, contended that the United States could utilize the Convention even if it rejected the deep seabed mining provisions. “Outside the seabed area and possibly the dispute settlement chapter,” he stated, “today the unclos test is the best evidence of customary law, absent a pattern of state practice to the contrary.” Moore proceeded to reject criticisms of the United States’ “pick and choose” approach to unclos provisions, urging that even under a Common Heritage of Mankind concept the industrialized nations could legitimately engage in seabed mining activity until such time as a new un seabed regime was established.68 The reiteration of the u.s. policy inspired intense discussions on what right to engage in deep seabed mining exploration and exploitation could be exercised by a country not party to the treaty. Thus Chile’s Ambassador Orrego Vicuña highlighted the question by identifying the confrontation of the day. It was between those who, on the one side, would regard the Convention as ­entailing “nothing else than pure conventional obligations, [so that] those states that do not become party to it are free to pursue their interests by means of other approaches; versus those, on the other side, who regarded the Common Heritage principle as the source of a controlling obligation in the context of customary law, one that could not legitimately be in the pursuit of a selfish interest.”69 Vicuña aligned himself, on this vital question, with the views of the influential Yugoslav legal scholar Budislav Vukas (who would later be a judge on itlos): Vukas, a year earlier, had concluded that third-party states “in no case have the right to establish particular regimes outside the Law of the Sea Convention.”70 David Colson, the u.s. Department of State legal officer, gave fuller voice to the u.s. position concerning deep seabed mining.71 Colson stated, predictably, that mining of the deep seabed beyond the limits of national jurisdiction is a high seas freedom. He emphasized that the United States had consistently 68

69 70 71

John Norton Moore, “Customary International Law after the Convention,” in Robert Krueger and Stefan Riesenfeld, The Developing Order of the Oceans: Proceedings, Law of the Sea Institute Eighteenth Annual Conference, University of San Francisco, October 24–27, 1984 (Honolulu: University of Hawai’i Press, 1985),, 43–44. Orrego Vicuña, “The Law of the Sea Experience and the Corpus of International Law: ­Effects and Interrelationships,” in Krueger and Riesenfeld, Developing Order, 16. Vukas, quoted in ibid., 18. David Colson, “Deep Seabed Mining–The u.s. Position,” in ibid., 226–237.

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held the position that it was not bound to refrain from deep seabed mining and had voted against the 1969 resolution declaring a moratorium on deep seabed mining while the unclos conference was in progress.72 Commentators on Colson’s statements criticized this proposition, with the Soviet position stated most forcefully by one of them, the Academician Vladimir Pisarev, who accused the Reagan Administration position of being outside the consensus of the “world community” on the seabed issue. The United States, he charged, was “leaving behind the principle of the common heritage of mankind, and now treating the oceans as an American heritage.”73 The overall picture of deep seabed mining technologies and their commercial potential meanwhile was shifting. University of Hawai’i oceanographer ­Alexander Malahoff reported the explosion since 1978 of new knowledge ­regarding hydrothermal vents on the ocean floor. The previously unknown presence on the ocean floor of polymetallic sulfides and cobalt crusts, both being of high value, he contended, must henceforth factor into the calculus of the feasibility of deep seabed mining technological development.74 Key extractive technologies such as the submersibles and remotely operated, ­television-controlled electro-hydraulic powered ocean floor “grabs” were key to recovering polymetallic sulfides and cobalt crusts.75 “The United Nations’ law of the sea negotiations,” he pointed out, “are only now taking into account these recent scientific discoveries.”76 Other presenters similarly underlined the destabilizing effects of unforeseen factors in regard to deep seabed mining: An industry spokesman, Conrad G. Welling, referred to the “unknown unknowns” that had come to light—especially in the way discoveries in both basic science and in undersea exploration had accelerated the race for establishing mining projects. A Bank of America executive, Alexander Krem, gave an overview of the byzantine complexities of venture capital projects, arguing for an international regime that would encourage private consortia of the developed countries’ mining companies as the most efficacious method of exploiting seabed resources. And Myron Nordquist, a legal scholar who had served on the u.s. delegation staff for unclos iii and in the Department of State, predicted that despite the stalemate on international regulation, the most likely areas for 72 73 74 75 76

Ibid., 228. Pisarev, “Commentary,” ibid., 254. Alexander Malahoff, “Polymetallic Sulfides and Cobalt Crusts: New Mineral Resources of the Ocean Floor?” in ibid., 271, 303. Ibid., 271–285 Compare the discussion of present-day technologies for deep seabed mining in Chapter 16, infra, by Kathryn Mengerink. Ibid., 294.

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mining actually were within the eezs of developed nations and mining would be undertaken by companies in an international consortium.77 Key to these discussions on mineral resource exploitation was unclos ­Article 194, entitled “Measures to prevent, reduce and control pollution of the marine environment,” which owed much of its development to Professor Louis B. Sohn’s role in the Third conference (unclos iii) and in discourse on u.s. policies. At the 1986 losi Workshop in Honolulu, Sohn criticized the refusal of the United States to ratify the Convention over the mining provisions and expressed concern that the u.s. would not have access to the dispute resolution procedure.78 Moreover, he pointed out, “many conflicts are likely to arise concerning its interpretation and the underlying question of whether it ­accurately reflected the present customary law of the sea.” If the United States continued to refuse to be a party, it would not be able to participate in the judicial ­decision making to develop the law.79 Soon after Mikhail Gorbachev became head of the u.s.s.r. in 1985, and as one of the benefits of the very beginning of the thaw of the Cold War, losi was invited to co-host a conference with the Soviet Maritime Law ­Association and the Soviet Peace Fund in Moscow in 1988. Anatoly Kolodkin, who was ­serving on the losi board at that time, presumably played a key role in the initiative for the joint conference.80 Richard Palmer of the American Maritime ­Association spoke on the issue of non-party nations, which of course involved the critical issue of seabed mining and the Authority. “[I]n the extraordinary development of the field,” he asserted, one is establishing customary international law which is indeed binding itself through another course or precedent…. [O]ther nations, especially those who have not signed, are not bound by virtue of the treaty itself but are bound by virtue of the practical importance of many of the rules of

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Ibid., 267 (Welling); 319ff. (Krem); 315–318 (Norquist). Louis B. Sohn, “International Navigation: Interests Related to National Security,” in Jon M. Van Dyke, Lewis M. Alexander, Joseph R. Morgan, eds., International Navigation: Rocks and Shoals Ahead? Proceedings of a Workshop of the Law of the Sea Institute, January 13–15, 1986, East-West Center, Honolulu, Hawai’i (Honolulu: Law of the Sea Institute, 1988), 307. Ibid., 316. See Statement of Kolodkin in Thomas A. Clingan, Jr. and Anatoly L. Kolodkin, eds., in Moscow Symposium on the Law of the Sea, Proceedings of the Law of the Sea Institute, University of Hawai’i November 28–December 2, 1988 (Honolulu: Law of the Sea Institute, 1991) at Moscow Symposium, 1988, p. 217.

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conduct, which are accepted by many nations because the issue or provision becomes customary international law.81 Thomas Clingan, Jr. also addressed the group on the ways the Convention ­related to non-signatory nations, and on the overarching concern for the rule of law. In his closing remarks, he stated: “While we have taken up three different subjects—navigation, fishing, and marine scientific research—I think there has been a common thread running through and across our discussions on all three topics. That common thread from my perspective is our mutual concern for the stability of the rule of law in the oceans.”82 In 1991, losi held a conference at the World Maritime Institute in Malmö, Sweden, concentrating on sustainable development and the marine environment. The seabed mining issues continued to be a focus of attention.83 In his closing speech, “Looking Back,” Lewis Alexander, who had co-founded losi in 1965, now looked ahead and counseled that “the dreams of a complex ocean mining system, and of a widely-accepted treaty in force” would have to be set aside for some time due to the United States and other nations’ rejection of unclos. He appealed to the world community to “get on with the task of ­implementing the non-seabed portions of the Convention.”84 Protection of marine environments, with a focus on deep seabed marine mining and sustainable development, was a central issue in the conference. During opening ceremonies, Svante Bodin, the Assistant Undersecretary in Sweden’s Ministry of Environment, recalled the conclusions of the influential Brundtland Report, asserting that “the key to development is safeguarding the environment and the natural resources in a sustainable way.”85 Alicia Barcena, 81 82 83

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Ibid., 371. Clingan and. Kolodkin, eds., “Closing Ceremonies,” in Moscow Symposium, 367–68. Twenty-Fifth Annual Conference of the Law of the Sea Institute: “The Marine Environment and Sustainable Development: Law, Policy, and Science” (Aug. 6–9, 1991), Malmö, Sweden. The 1991 losi Executive Board was composed of Lewis M. Alexander, R.P. Anand, Richard B. Bilder, Alastair Couper, Edgar Gold, Jeremy Harrison, Lee A. Kimball, Tommy T.B. Koh, Anatoly Kolodkin, Dale C. Krause, Mochtar Kusuma-Atmadja, Philip J. Major, Edward L. Miles, Satya Nandan, Bernard Oxman, Francisco Orrego Vicuna, Louis B. Sohn, Alfred H.A. Soons, and Kunio Yonezawa. Alexander, “Looking Back,” in A.D. Couper and Edgar Gold, eds., The Marine Environment and Sustainable Development: Law, Policy, and Science, Proceedings of the Law of the Sea Institute Twenty-Fifth Annual Conference, August 6–9 1991, Malmö, Sweden, (Honolulu: Law of the Sea Institute, 1993), 647, 651. Svante Bodin, “Opening Ceremonies,” in ibid., 7. The Brundtland Comission (the un World Commission on Environment and Development) had set out in its Report (1987) the case

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of the staff of the United Nations Conference on Environment and Development (unced), discussed issues on the agenda of the “Earth Summit” conference being convened in Rio the next year. Its ambitious agenda, being circulated by the secretary general of the conference, was premised on two propositions: that “environmental management cannot be secured without addressing the underlying causes in the nature and pattern of development,” and “that the pursuit of development requires systematic attention to the environmental basis on which all production depends.” It was hoped that the ­conference would inspire a major shift from reliance on ocean regimes that were reactive to problems, to, instead, creation of regimes designed to ­anticipate and head off environmental issues.86 Helen Joseph, of Canada’s Department of Energy, Mines and Resources, described guidelines for offshore minerals management, which would permit development only “in those instances where potentially adverse effects can be identified and any unacceptable effects can be avoided.”87 Joseph’s discussion was echoed in a paper coauthored by Hjalmar Thiel and Eric Foell, specifically arguing for application of the precautionary principle to large-scale ocean mining. It would be “reckless and possibly dangerous,” they said, “to initiate large scale mining disturbances in the deep-sea without having a fuller understanding of the potential ramifications of the consequences of such activities.”88 A variety of highly specific proposals for environmentally sensitive protocols for seabed mining and other high seas resources was presented by speakers from several areas of the world.89 Speaking from a more narrowly financial perspective, Philomène A. Verlaan, of the Rockefeller Foundation, argued that nations should be more scrupulous in acknowledging the real economic costs of ­disregarding environmental factors in creating ocean development plans.90 losi Hawai’i had by the early 1990s developed a close relationship with scholars and policy officials from the Republic of Korea. Many early-career researchers and students from Korea had held visiting research appointments

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for sustainability of resources and environmental protection as an essential ­element of economic development, in absence of which the resources heritage and environmental health of the planet would be lost to future generations. Alicia Barcena, “Some Reflections on a New Approach to Ocean and Coastal M ­ anagement,” in Couper and Gold, The Marine Environment, 21. Helen C. Joseph, “Integrated Resource Applications for Offshore Minerals,” in ibid., 219. Hjalmar Thiel and Eric J. Foell, “Environmental Risk Assessment for Manganese Nodule Mining and Application of the Precautionary Principle,” ibid., 227. Among them were Lee A. Kimball, Mchtar Kusuma-Atmadja, and Ziguo Gao. (Ibid., 211–290.). Philomène A. Verlaan, “Commentary,” in Hong et al., Role of the Oceans, 664.

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at the East-West Center of the University of Hawai’i to support their studies of ocean affairs. While based in Hawai’i, losi held three conferences in Seoul, and important professional relationships and scholarly exchanges would be continued to the present. At a 1993 conference in Seoul,91 Seoung-Yong Hong, a scholar in the Korea Ocean Research and Development Institute (kordi), presented on his government’s interest in deep seabed mining, an activity ­important to Korea owing to its poor endowment of mineral resources, and he also spoke on Korea’s commissioning of the Onmuri-Ho, a new research vessel. Since 1983, kordi had been exploring manganese nodule mining potential in the Clarion Clipperton zone and elsewhere in the Western Pacific, partly in conjunction with the u.s. Geological Survey.92 Thus the specific question of seabed mining had led the losi conference organizers to encourage broad analyses of the sustainability/environmental issue, the role of basic marine science and engineering research in ordering the deep-sea enterprise, and the status of non-parties to a un mining regime. All these, together with other themes that came to the forefront of ocean law and policy, though not foreseen or fully understood in 1982, would continue to be featured in the losi meetings and publications after the losi headquarters moved from its Hawai’i base, briefly to Miami, and since 2002 to the University of California, Berkeley.

The 200-Mile Exclusive Economic Zone

By the mid-1970s, the 150 nations of the unclos iii conference had agreed on the establishment of 200-mile zones adjacent to coastal States within which the States would have “sovereign rights” over essentially all resources and economically important uses, with the exception of navigation, overflight, and a few other lesser aspects of traditional high seas freedoms. Between 1976 and 1977, the United States, ussr, Canada, North Korea and Japan, among other States, had all declared 200-mile eezs. Hence agreement in unclos iii on the adoption of the 200-mile eez in the treaty had become a fully expected outcome of the lengthy debates. The first Hawai’i losi conference in 1977 focused on the changes that would occur from having this extended coastal state jurisdiction in the proposed 91 92

Twenty-Seventh Annual Conference of the Law of the Sea Institute: “The Role of the Oceans in the 21st Century” (July 13–16, 1993), Seoul, Korea. Seoung-Yong Hong, “Marine Policy in the Republic of Korea,” in Hong et al., The Role of the Oceans, 37.

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eezs. Discussion centered on the difficulties of governing the management of these areas at the global level, given the uniqueness of local concerns and political relationships.93 Participants therefore looked to opportunities offered by regional arrangements. Yet, the final details of a regime to govern these new areas of coastal state jurisdiction were as yet unknown and in the process of being developed. Choon-Ho Park was a research associate at the East-West Center and became an intellectual leader and driving force in the increasing attention to ocean issues in the East Asia region. (He would serve as an itlos Judge from 1996 to 2008.)94 Park discussed at the 1977 meeting the problems of making the full 200-mile claim for China and Korea, given that there were less than 400 miles between the two countries at many points so that boundary demarcation was an issue to be resolved. He was concerned that the lack of a sense of regionalism would continue to exacerbate the “troubled waters of Northeast Asia.” While recognizing that China had taken the position that the 200-mile exclusive economic zone benefited primarily the major maritime powers, Park nonetheless correctly predicted that China would create an eez. He cited, however, that the difficulties typically encountered in making any agreements between the coastal states of Northeast Asia was a very significant stumbling block to either the development of the ocean resources or making arrangements to handle marine pollution. Park cautioned that the density of sea traffic and an impending increase in seabed activities created circumstances that would not permit North Pacific regional inaction to continue indefinitely. He contended that there was a crucial need for new regional agreements and implementation of marine pollution control provisions in existing agreements, such as the Japan-South Korea joint development agreement on the continental shelf.95 “A patch of spilled oil floating around in the middle of an enclosed sea would not wait for the coastal states to enter into political or ideological

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Douglas A. Johnston, “Regionalization and Its Consequences at unclos iii,” in Douglas A. Johnston, ed., Regionalization of the Law of the Sea, 1: Proceedings of the Eleventh Annual Law of the Sea Conference, November 14–17, 1977, Honolulu, Hawai’i (Cambridge: Ballinger Publishing Co., 1977). See Harry N. Scheiber, “Judge Choon-Ho Park, the Law of the Sea Institute, and Modern Scholarship in Ocean Law,” in Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee, and ­Jin-Hyun Paik, eds., Governing Ocean Resources, New Challenges and Emerging Regimes (Boston and Leiden: Nijhoff/Brill, 2013). Choon-Ho Park, “Recent Developments in Marine Resource Diplomacy in the North ­Pacific Region,” in Johnston, Regionalization of the Law of the Sea, 139–145.

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ping-pong games.” Withal, Park urged more and better planning for environmental protection and management.96 In a presentation entitled “The Consequences of Regionalism in the Treaty and Customary Law of the Sea,” Professor Richard B. Bilder, of the University of Wisconsin law faculty, discussed the need for developing law in response to the impetus toward regional arrangements.97 Bilder raised the singular example of uncertain jurisdiction over territorial seas or economic zones in Antarctica. Under the Antarctic Treaty, no agreement had been made amongst other countries in the region as to claims to Antarctic territorial seas or economic zones.98 Bilder buttressed with legal precedents his argument for speed in fashioning such an agreement, asserting: “The obligation of nations to take the interests of other nations into account in determining their policies in such contexts is reflected in the 1974 decision of the International Court in the Anglo-Icelandic Fisheries Jurisdiction case, in the work proceeding under the auspices of the General Assembly and un Environmental Program on Shared Natural Resources, and in a variety of other agreements, resolutions, and statements.”99 losi’s 1979 conference was held in Mexico City.100 Five years earlier, in 1974, former Mexican President Luis Echeverría Alvarez had addressed the unclos iii’s plenary second session in Caracas, Venezuela, endorsing the concept of the “Patrimonial Sea.” He stated: The Patrimonial Sea is a new, special, legal figure that reflects the complexity of the new realities in the marine realm. This legal figure cannot 96 97

Ibid., 142. Richard B. Bilder, “The Consequences of Regionalism in the Treaty and Customary Law of the Sea,” in Johnston, Regionalization of the Law of the Sea, 31. 98 Ibid., 37. 99 Ibid., 40. By judgment dated July 25, 1974, the International Court of Justice decided Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland). The International Court found: (1) Icelandic Regulations of 1972 constituting a unilateral extension of the exclusive fishing rights of Iceland to 50 nautical miles from the baselines are not opposable to the United Kingdom; (2) Iceland was not entitled unilaterally to exclude United Kingdom fishing vessels from areas between the 12-mile and 50-mile limits, or unilaterally to impose restrictions on their activities in such areas; (3) Iceland and the United Kingdom were mutually obligated to negotiate their differences in good faith; and, (4) certain factors are to be considered in such negotiations, including preferential rights of Iceland, established rights of the United Kingdom, interests of other States, conservation of fishery resources, joint examination of measures required. 100 Thirteenth Annual losi Conference: “State Practices in Zones of Special Jurisdiction” (October 15–19, 1979), Mexico City, Mexico.

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be assimilated to the traditional categories of the law of the sea: it is ­neither a territorial sea, nor a high seas. With the assistance of Colombia and Venezuela, the Mexican delegation had formally introduced the first proposal delineating the legal contours of what the international community would eventually recognize as the eez.101 In 1976, Mexico had been among the first nations to establish a 200-mile eez, but with Echeveria’s and Jorge Vargas’ leadership, the “Patrimonial Sea” became a signature theme in the 1980s for many Latin American commentators and diplomats.102 The Patrimonial Sea concept expressed the principle that marine resources off the coast of any state should be utilized by such a state for the benefit of its inhabitants and for the promotion of its socioeconomic development. Latin American countries’ endorsement of the concept, which appealed to many Group of 77 leaders, became a significant part in the matrix of ideas that culminated in the development of the eez provisions in the 1982 unclos—though the terms of unclos as adopted stressed the obligations, as well as rights, of coastal States to a degree largely absent in the Patrimonial Sea construct. Participants in the Mexico City losi conference discussed the potential impact of unclos on coastal state practices, including especially Mexico’s ­extended eez jurisdiction.103 As part of these discussions, Professor Bernard Oxman analyzed the issue of whether the rights and obligations of coastal states in their eezs, as formulated in the Informal Composite Negotiating Text (icnt) of unclos, represented the norms of customary law.104 Oxman asserted that the eez texts in the icnt were not in fact simply declaratory of customary law, first, because the acceptance and influence of the icnt texts would depend, realistically, upon how widely ratified the Convention would be; and second, because each individual element of the eez as defined in the 101 Mexican President Luis Echeverría Alvarez, “Address Before unclos iii at Caracas, ­Venezuela (July 26, 1974),” reprinted in Jorge A. Vargas, La Zona Económica Exclusiva de México (Mexico City, 1980), 43–63. 102 See Jorge A. Vargas, “Mexico’s Legal Regime Over its Marine Spaces: A Proposal for the ­Delimitation of the Continental Shelf in the Deepest Part of the Gulf of Mexico,” University of Miami Inter-Amer. L. Rev. 26 (1997): 206, n. 96. 103 Douglas M. Johnston and Edgar Gold, “Extended Jurisdiction: The Impact of unclos on Coastal State Practices,” in Thomas A. Clingan, Jr., ed., Law of the Sea: State Practice in Zones of Special Jurisdiction: Proceedings of the Law of the Sea Institute Thirteenth Annual Conference (Honolulu: Law of the Sea Institute, 1982), 4–56. 104 Bernard Oxman, “An Analysis of the Exclusive Economic Zone as Formulated in the ­Informal Composite Negotiating Text,” in Clingan, Law of the Sea: State Practice, 57–78.

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icnt must be analyzed separately, as to whether it was “absorbed into state practice in fact” and whether it would likely be accepted in the event unclos was not “widely ratified.”105 Yet Oxman favored the icnt’s concept of the eez as “refined, complex, and interwoven in its detail,” in contrast with the “blunt regimes” defined by customary international law.106 He compared the choice as one of choosing between a Bach fugue and a round of Frère Jacques, “There may be some who prefer to improvise on Frère Jacques. I do not.” Other discussions of eez issues presaged later concerns that arose over ownership of far-flung islands or rocks (as in the South China Sea) for decades after unclos went into force. For example, Jon Van Dyke presented his disagreement with the 200-mile eez claimed by France around the uninhabited Clipperton Island, a claim to sovereignty supported merely by a Hawai’i newspaper advertisement from 1858.107 France and Mexico had disputed control over Clipperton Island since at least 1933, when France was awarded control over and against Mexico’s claim of sovereignty based on Spanish discovery of the island. Another issue of great concern flowing from the extended eez jurisdiction was how to implement and require sustainable management of global fisheries. At losi’s 1982 conference in Halifax, Professor Brian Rothschild, of the University of Maryland’s Center for Environmental and Estuarine Studies, described the new challenges for global fisheries management, given that the Convention did not address means of controlling access to highly migratory species (hms) that crossed maritime boundaries of the world’s eezs.108 “International and regional organizations will ascend in importance,” Rothschild predicted, because “[t]he lack of exclusive control over many stocks, the need to gain economy of scale and research, the need to exchange data, and the possibility of economic interactions suggest that these organizations can play an exceedingly important role in the extended jurisdiction regime.”109 This discussion about the future of challenges to sustainable management of fisheries, especially with regard to non-signatory states who could be e­ xpected 105 Ibid., 61. 106 Ibid., 78. 107 Jon M. Van Dyke and Robert A. Brooks, “Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources,” Ocean Development and International Law Journal 12 (1983): 265. 108 Brian Rothschild, “Global Fisheries Management: The New Challenge,” in Douglas M. Johnston and Norman G. Letalik, eds., Law of the Sea and Ocean Industry: New Opportunities and Restraints: Proceedings of the 16th Annual Conference of the Law of the Sea Institute, June 21–24, 1982, Halifax, Nova Scotia (Honolulu: Law of the Sea Institute, 1984), 330–334. 109 Ibid., 336.

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to claim an eez nonetheless, was continued at the 1984 losi ­Consensus and Confrontation Workshop. William T. Burke contended that the major p ­ rovisions of the Convention conferring sovereign rights on coastal states “are commonly found in state practice and therefore reflect customary law…. [However,] the accompanying details are not yet customary law.”110 Professor Oxman predicted that although the rights enjoyed by coastal states in their eezs might reflect customary international law, it was misleading to expect that all of the obligations that unclos required as to coastal state jurisdiction would prevail globally, simply because the longer the United States and other major powers declined to sign unclos, thus denying it the force of “universal ratification,” the more likely there would be an ineluctable “drift” in state practice away from the terms of the Convention. Absent compulsory adjudication of disputes, as unclos would require, one needed to anticipate the possibility of “resort to self-help, violent or otherwise,” as the alternative.111 In his closing speech, John Knauss, losi co-founder and later the u.s. noaa Administrator, characterized the issue of customary law versus the language of the treaty as an issue of creeping jurisdiction. “Absent widespread adherence to the 1982 Law of the Sea Convention, including the adherence of the United States,” Knauss stated, “I expect to see creeping jurisdiction continue to drive customary international law for the next 25 years at as fast a rate as it did between 1982 and 1985.”112 Impelling jurisdictional creep was a competition for ocean resources—“fishing, oil, gas, other minerals, ocean thermal energy, ocean aquaculture, waste disposal, and more[.]”113 Knauss held out minimal hope that pollution concerns might drive the United States back to the international treaty table, yet declined to predict the future course of the United States.114 In 1984, the losi Workshop held in Seoul focused on East Asia and its thorny maritime boundary issues. The difficulties presented by China’s potential maritime territorial claims and the impacts on others in the region was already recognized and a matter of great concern.115 Yet the issue of China’s 110 William T. Burke, “The Law of the Sea Convention and Fishing Practices of N ­ onsignatories, with Special Reference to the United States,” in Van Dyke, Consensus and Confrontation, 314. 111 Bernard Oxman, “Balancing the Costs and the Benefits,” in Van Dyke, Consensus and C ­ onfrontation, 508. 112 John A. Knauss, “Creeping Jurisdiction and Customary International Law,” in Krueger and Riesenfeld, The Developing Order of the Oceans, 735. 113 Ibid., 736. 114 Ibid., 739. 115 Choon-Ho Park and Jae Kyu Park, eds., The Law of the Sea: Problems from the East Asian Perspective, Proceedings of Two Workshops of the Law of the Sea Institute, Seoul, Korea, June 30–July 3, 1981 and July 3–6, 1984 (Honolulu: University of Hawai’i Press, 1987).

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9-Dash line claim, which purported to assert control over nearly all the South China Sea, had not been given attention (nor, of course, been recognized) by other States, hence was not then a matter for debate. Choon-Ho Park contended that ­China’s potential claims to even an ordinary eez offshore of the mainland had the potential of creating significant problems since China “did not have a single spot to apply that limit in full because there were countries opposite and adjacent to its own coast within 400 miles.” Despite this impending conflict, Park observed, China had not initiated any negotiations concerning ­potentially conflicting boundary problems.116 Paul C. Yuan, a law professor at the University of Southern California, ­recounted some of China’s sea boundary problems with its coastal neighbors, including Korea, Japan, Vietnam, and the Philippines.117 In the South China Sea, China was involved in territorial disputes with Vietnam over the Paracel Islands, and with Vietnam and the Philippines over the Spratly Islands. He opined that the reason China and its neighbors had not engaged in “long, drawn-out disputes over territorial sovereignty” was that such delays would affect oil development and production off of its shores.118 According to Mario Manansala, the Philippines’ primary interest in unclos was recognition of the archipelagic principles, which derive from the unity of land, water, and people in a single sovereign entity.119 The Philippines’ territorial claims did not go unchallenged. Dr. Rong-Jye Chen of Taiwan University voiced concern about the legality of the Philippines’ Moro Gulf line, which was 140 nautical miles in length, thus exceeding the 125 mile maximum length permissible under unclos Article 47; and Manansala conceded that the Moro Gulf line would need to be amended to conform to unclos.120 Chen also inquired into whether China’s fishermen, who had been fishing in the Mindoro and Balabac straits (which were entrances to the Sulu Sea), had traditional or

116 Choon-Ho Park, “People’s Republic of China and the Law of the Sea,” in ibid., 255–256. 117 Roundtable Discussion, “Problems of Maritime Delimitation,” in Park and Park, The Law of the Sea: Problems from the East Asian Perspective, 90. 118 Ibid. 119 Mario C. Manansala, “The Philippines and the Law of the Sea,” in Park and Park, The Law of the Sea: Problems from the East Asian Perspective, 430–431. 120 “Discussion,” Park and Park, ibid., 436. However, it would not be until 2009 that the Philippines brought its baselines into conformity with unclos. (Republic Act No. 9522, An Act to Amend Certain Provisions of Republic Act No. 3046, As Amended by Republic Act No. 5446, To Define the Archipelagic Baseline of The Philippines and for Other Purposes (10 March 2009)).

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historical fishing rights under Article 51 of unclos.121 Manansala responded that Apo Island lay in the middle of Mindoro strait, with the widest point between the island and the shore being twenty-two miles, so that any claim to traditional fishing rights was questionable.122 He added tersely: “Perhaps it’s not traditional fishing but traditional poaching.”123 In 1985 losi held a major conference in Wales,124 at which presenters wrestled with issues relating to the European Community (ec) as a contracting party and especially with regard to the ec’s control of fisheries, marine environmental protection, and aspects of seabed mining policy. Professor Tullio Treves, of the University of Milan (who would later serve as an itlos Judge), discussed the novel situation created by the European Community’s status as a signatory to the Convention, while two of its members (Britain and the Federal Republic of Germany) were not.125 Although Britain and the frg had not signed, as the Special Representative of the un Secretary General for the Law of the Sea observed, both countries were “to a certain extent, indirectly involved” in the Convention.126 Also problematic would be the position of a State signing unclos before the Community became a signatory. Such a State, Treves pointed out, would be required to fulfill its commitments to the ec, by dint of its prior commitments, and also to comply with obligations under the terms of unclos. Furthermore, as to the future status of European ­participation in the Convention, Treves questioned whether the Community’s signature would legally place all the ec members under the unclos regime— or, instead, would a majority of the Community’s states be required to sign, especially for purposes of maritime jurisdictional claims, before a general obligation would pertain, affecting all ec member States? Further, beyond signing could a member state ratify the Convention before the Community?127 (It is noteworthy that this discussion has new relevance today after the Brexit vote and the threat it poses to the future of the European Union.) 121 “Discussion,” Park and Park, The Law of the Sea: Problems from the East Asian Perspective, 436, 437. 122 Ibid. 123 Ibid. 124 Nineteenth Annual losi Conference “un Convention on The Law of the Sea: Impact and Implementation” (July 24–27, 1985), University of Wales, Cardiff. 125 Tullio Treves, “The eec, the un, and the Law of the Sea,” in Edward D. Brown and Robin R. Churchill, eds., un Convention on The Law of the Sea: Impact and Implementation: Proceedings of the Nineteenth Annual Conference of the Law of the Sea Institute, Cardiff, University of Wales, July 24–27, 1985 (Honolulu: Law of the Sea Institute, 1987), 518. 126 Ibid., 521. 127 Ibid., 522.

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University of Wales Institute of Science and Technology Professor Robin Churchill analyzed this situation with regard to specific geographic features of the European Community as a “coastal state.”128 Although the Community, through its member states, had claimed a 200-mile zone for the management of fisheries, it had not worked out how non-coastal states and foreign states could gain access to eez waters by means of concluding agreements for fisheries or other rights therein.129 Professor Patricia W. Birnie, of the London School of Economics and Political Science, pointed to emerging development of the European Community’s common environmental policy on carbon emissions standards, which presaged a recurrent concern with global warming in future conferences.130 Lewis Alexander focused attention on questions arising from realities of geography. He explored, during a losi workshop in January 1986, the effect of what he termed “creeping uniqueness,” the phenomenon of nations asserting they were not bound to a strict interpretation of the Convention in one or more respects owing to various unique geographic circumstances.131 ­Considerations particular to East Asia were also identified. Thus Choon-ho Park addressed applications of unclos rules to the Korea Strait and the unique resolution of the difficulties that the Convention created. Noting that “geographical proximity between nations breeds more enmity than amity … [and] has often been a scene of clash rather than a channel of friendship…,”132 Park reported on how South Korea and Japan limited to three miles their territorial-sea claims around the land areas adjacent to the Korean Strait, an effort at preventive diplomacy and to ensure unimpeded passage. At losi’s major 1986 conference, held in Miami, presenters resumed the ongoing dialogue with regard to zoning under unclos and its relationship to the heritage of traditional law. Professor Stefan A. Riesenfeld, from the ­University of California, Berkeley, and Hastings College of the Law, contended

128 R.R. Churchill, “The eec’s Contribution to ‘State’ Practice in the Field of Fisheries,” in Brown and Churchill, un Convention on The Law of the Sea: Impact and Implementation. 129 Ibid., 560–566. 130 P.W. Birnie, “The European Community’s Environmental Policy,” in Brown and Churchill, un Convention on the Law of the Sea, 527. 131 Lewis Alexander, “Geographical Perspectives on International Navigation,” in Jon Van Dyke, Lewis Alexander, and Joseph Morgan, eds., International Navigation: Rocks and Shoals Ahead?: Proceedings of a Workshop of the Law of the Sea Institute, January 13–15, 1986, East-West Center, Honolulu, Hawai’i (Honolulu: Law of the Sea Institute, 1988), 173. 132 Choon-Ho Park, “The Korea Strait,” in ibid.; Lewis Alexander, “Geographical Perspectives on International Navigation,” in Ibid., 173–187.

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that “­ although the creation of the exclusive economic zone was an innovation of the un Conference on the Law of the Sea, its general features have become customary international law.”133 Acknowledging the problem of creeping jurisdiction previously observed by Alexander, Riesenfeld found that more than fifty nations had made claims to an exclusive economic zone, “sometimes exceeding the rights accorded by the Convention.” The departure from the “freedom of the seas” regime as previously long understood, he declared, had changed so dramatically, in an evolution capped by unclos, that “the ­freedom of the sea had become the freedom of high seas, and even there the freedom has been dismembered into freedoms and some of them are subject to particular rules.”134 East Asian issues, including Japan’s decision not to ratify unclos and its interest in distant water fishing, a major Japanese fisheries sector, were a major focus of the 1993 losi conference, the third to be held in Seoul.135 Shunji Yanai, of Japan’s Ministry of Foreign Affairs (and later an itlos judge), explained that Japan did sign the Convention on February 7, 1983 because it had anticipated hopefully that the Convention would “bring an end to serious legal disorders that resulted from the unilateral extension of jurisdiction by coastal states,” and provided, instead, for “an integrated legal basis for the use of the sea by the international community.”136 (Japan did not finally ratify the Convention, however, until 1996, accepting then as well the Agreement Relating to the ­Implementation of Part xi.) Already in these losi conferences, it was clear that the declaration of the 200 mile eezs would have a profound effect on the management of ocean resources. But there were strong reservations expressed as to whether the 133 Stefan A. Riesenfeld, “High Seas and Navigational Rights: What Are They and Who May Assert them in u.s. Courts?” in Thomas A. Clingan, Jr., ed., The Law of the Sea: What Lies Ahead?: Proceedings of the 20th Annual Conference of the Law of the Sea Institute, July 21–24, 1986, Miami, Florida (Honolulu: Law of the Sea Institute, 1988), 41. 134 Ibid. 135 Twenty-Seventh Annual Conference of the Law of the Sea Institute: “The Role of the Oceans in the 21st Century” (July 13–16, 1993) Seoul, Korea. The 1993 losi Executive Board members were R.P. Anand, Frank Boas, Alastair Couper, Jeremy Harrison, John Huff, Maria Teresa Infante, Anatoly Kolodkin, Dale Krause, Mochtar Kusuma-Atmadja, Philip J. Major, Thomas A. Mensah, Edward L. Miles, Satya Nandan, Bernard Oxman, Peter H. Pearse, Louis B. Sohn, Alfred H.A. Soons, Judith Swan, and Kunio Yonezawa. 136 Shunji Yanai, “Luncheon Speech,” in Seoung-Yong Hong, Edward L. Miles, and Choon-Ho Park, eds., The Role of the Oceans in the 21st Century: Proceedings of the Twenty-Seventh ­Annual Conference of the Law of the Sea Institute, July 13–16, 1993, Seoul, Korea (Honolulu: Law of the Sea Institute, 1995), 572.

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­establishment of this extended coastal-state jurisdiction would result in a uniformly positive impact on the ocean environment. Lewis Alexander had earlier voiced his opinion—always of great influence in ocean law discourse—that there was reason to be apprehensive on this score. He was convinced that neither coastal state unilateral management nor an alternative approach through international institutions with universal reach could effectively respond to the challenges of pollution control, rational management of commercial fisheries, marine technology transfer, and, not least, deep seabed mining. Confronted with the dilemma that “neither the unilateral nor the global approach appears practical for a number of issues involving ocean management,” Alexander contended that “we are left with the third alternative, regional action—a process that can take place at any one of a number of organizational levels.” His ­position, stated in 1977, proved to be prophetic insight, as regional agreements and institutions for oceans management have proliferated substantially in the half century that has followed.137

The Pacific Islands

After World War ii and until the mid-1960s, the Pacific region had been dominated by the Western powers of France, the Netherlands, Great Britain, and the United States. The process of decolonization and the rise of new nation island states was significant. Independent nation-states established in the Pacific since 1962 include: Fiji (1970), Kiribati (1979), Nauru (1968), Papua New Guinea (1975), the Solomon Islands (1978), Tonga (1970), Tuvalu (1978), Vanuatu (1980), and Samoa (1962). In addition, the Cook Islands and Niue become “freely associated” with New Zealand, while the Federated States of Micronesia, the Marshall Islands, and Palau have become “freely associated” with the United States. However, France continued to maintain sovereignty over its dependencies in the region: French Polynesia (Tahiti), New Caledonia, and Wallis and Futuna. Thus, in the South Pacific, the end of colonialism and the rise of independent states occurred almost simultaneously with the law of the sea negotiations. ­Pacific island nations were well represented at the unclos iii ­meetings and actively participated. During the time that losi was in Hawai’i, losi recognized these important developments by frequently including in its 137 Compare H. Scheiber, Chapter 1, supra, regarding regional programs and agreements for oceans management. Lewis Alexander’s remarks, above, are quoted from his paper “­Regionalism at Sea: Concept and Reality,” in Johnston, ed. Regionalization of The Law of The Sea, 3.

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­programs an emphasis on the views of the Pacific Nations on the unclos iii negotiations. Fiji’s first Prime Minister, Ratu Mara, advocated for what he coined “The ­Pacific Way,” a cultural norm elevated to the political level that promotes shared values, incorporates a desire to promote local, rather than Western, solutions to local problems, and a “unanimous compromise” mode of decision making, “which means some are expected when possible to endure personal sacrifice so that the community as a whole will have harmony.”138 A special forum to discuss the views and actions of the Pacific Nations was held at the first losi Hawai’i Conference in 1977. Jioji Kotobalavu, Foreign ­Minister of Fiji, served as the leader of this forum. He pointed out that the South Pacific Nations “regard[ed] the successful conclusion of a global law of the sea treaty as essential to the future economic well-being” of the region. ­Kotobalavu explained that the 200-mile coastal state jurisdiction was essential to the economy of these new nations with very limited land mass. Another very important concern was how to manage the high seas resources and to protect them from exploitation to the detriment of the South Pacific island nations generally. Kotobalavu announced that the South Pacific Forum had decided that a South Pacific Regional Fisheries Agency should be soon established as a “complement” to unclos, and he discussed the relationship of this agency to decisions being made at unclos.139 This new agency would include regulation of fishing in the high seas pockets between the national zones so that the fish could be managed as they move from zone to zone. The island states’ concern was that the “fish would be taken away from us before they enter our economic zone…. We do not want to end up in a situation where the fishing fleets of country X come and anchor immediately outside our economic zone and take all the tuna before they enter our waters.” Kotobalavu pointed out that the global ocean treaty (later unclos) was needed because it could assure the right of coastal states to control their resources and would advance the formation of regional management organizations.140 As predicted, shortly thereafter, the Forum Fisheries Agency (ffa) was ­established in 1979 by the South Pacific Forum. Recognizing that the South ­Pacific region held probably one-third of the world’s tuna resources, the Forum leaders were anxious to capitalize on the resources and protect fish from 138 Michael Haas, The Pacific Way: Regional Cooperation in the South Pacific Community (New York: Praeger, 1989), 5. 139 Jioji Kotobalavu, “The South Pacific and the Law of the Sea,” in Johnston, Regionalization of The Law of The Sea, 310–311. 140 Ibid., 312–318.

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unregulated exploitation by others. In creating the ffa, the South Pacific nations sought to ensure that nations with foreign fishing fleets operating in the South Pacific paid appropriate fees to the nations in whose fishing zones they were operating. The United States, however, refused to accept coastal state jurisdiction over tuna fisheries. Indeed, in March 1983, u.s. President Reagan had proclaimed u.s. sovereign control over living and non-living natural resources within its 200-mile eez, affecting more than two million square miles, but excepting tuna fisheries from u.s. exclusive jurisdiction.141 In an effort to force the identical “tuna exception” on foreign coastal states that were exercising regulatory power over tuna fishing in their eez waters, the u.s. Congress followed through with a series of measures that forbade the u.s. government from recognizing a right of coastal states to regulate tuna or other highly migratory species within their eezs. Nevertheless, foreign coastal states, defying such u.s. measures, continued to seize u.s. fishing vessels and confiscate their catch; and, in retaliation, the United States embargoed tuna imports from those countries.142 In 1982, Papua New Guinea had seized the u.s. purse seine vessel Danica. In 1984, the Solomon Islands arrested the u.s. vessel Jeanette Diana and, after court proceedings, ordered it sold for illegal fishing. The United States invoked the sanctions authorized by the Magnuson Act and ordered a seven-month embargo on imports of fish products from the Solomon Islands to the United States. The Solomon Islands government then banned u.s. vessels from entering its waters and offered to negotiate with the Russians for fishing rights.143 The United States position on tuna fisheries was criticized at the 1984 ­Consensus and Confrontation Workshop. Rabbie Namaliu of Papua New Guinea noted that Pacific Island nations had interests in keeping their “close 141 George D. Haimbaugh, Jr., “Impact of the Reagan Administration on the Law of the Sea,” Washington and Lee Law Review 46 (1989): 183. Postwar tensions over coastal states’ control of foreign fishing in their eezs, involving u.s. vs. Latin American States’ policies, are analyzed as “pre-history,” or prelude, to the u.s.-ffa conflict over tuna in the Pacific ­islands’ eezs in Harry N. Scheiber, “u.s. Policy, the Pacific Tuna Economy, and Ocean Law Innovation,” in Harry N. Scheiber and David D. Caron, eds., Bringing New Law to Ocean Waters (a Law of the Sea Institute, uc Berkeley, publication) (Leiden and Boston: Martinus Nijhoff, 2004), 29–54. 142 See, inter alia, Christopher J. Carr, “Transformations in the Law Governing Highly Migratory Species, 1970 to the Present,” in ibid., 55–94. 143 See Jon Van Dyke and Carolyn Nicol, “u.s. Tuna Policy: A Reluctant Acceptance of the ­International Norm,” and Parzival Copes, “Tuna Fisheries Management in the Pacific ­Islands Region,” both in David J. Doulman, ed., Tuna Issues and Perspectives in the Pacific Islands Region (Pacific Islands Development Program: 1987).

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friend[ships]” with the United States and in technology transfers, but also needed an answer to the question, “[w]hy does the United States refuse to accept other countries’ jurisdiction over tuna?”144 Many Pacific Island nations’ fisheries were being depleted by distant-water fishing countries, thus harming employment and development in the region. Namaliu concluded that a regional framework, in which distant-water fishing nations would be required to discuss mutual problems with the coastal states, was needed.145 The disputes of the Pacific Island nations with the United States were also central to one of the several presentations at the 1986 losi Conference in ­Miami on migratory tuna fish management.146 Judith Swan, Legal Officer of the South Pacific Forums Fisheries Agency, focused on issues relating to tuna management in the South Pacific. The extension of coastal state jurisdiction to a 200-mile eez gave fourteen Pacific Island states sovereign rights over six million square miles, inclusive of some of the richest tuna fisheries in the world.147 u.s. vessels continued to pursue highly migratory species into coastal state waters, arguing that coastal states lacked jurisdiction over such species. Article 64 of the Law of the Sea Convention requires coastal states and other states whose nationals fish in the region to cooperate “directly or through ­appropriate international organizations with a view to ensuring conservation and promoting the optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone.”148 Swan explained that the United States was arguing that Article 64 constituted customary international law, precluding the coastal states’ exercise of sovereign rights. In practice, Swan noted the u.s.’s incursions into coastal states’ waters were enabled through domestic legislation, such as the u.s. Magnuson Act and the u.s. ­Fishermen’s Protective Act, which permitted compensation to the owner of vessels seized while fishing contrary to the laws of the coastal state and deducting the compensated amounts from u.s. aid to the coastal state. She explained that “[t]he only real dispute in the region arises because the United States government is apparently prevented by its tuna industry from sharing the customary understanding that the rest of the world has in relation to highly migratory species and, consequently Article 64 of the los Convention.” 144 Ibid., 378. 145 Ibid. 146 Twentieth Annual losi Conference, “The Law of the Sea: What Lies Ahead?” (July 21–24, 1986), Miami, Florida. 147 Judith Swan, “Tuna Management in the South Pacific,” in Clingan, Jr., The Law of the Sea: What Lies Ahead?, 184–192. 148 Ibid., 185.

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Swan reported ongoing multilateral fisheries agreements were being negotiated between the ffa member states and the United States. ffa member states sought an agreement that the United States would not invoke the Magnuson Act to embargo fish products from countries that had seized u.s. tuna fishing vessels for illegal fishing. However, she concluded that Article 64 did not require conservation because it provided merely that signatories act “with a view to ensuring conservation.”149 Alberto Szekely, from Mexico’s Ministry of Foreign Affairs,150 strongly ­disagreed with the u.s. position, contending that Article 64 was to be read in tandem with Article 56, which clearly established that coastal states enjoy sovereign rights over all living resources in the eez for purposes of exploration, exploitation, conservation, and management.151 Szekely reported that coastal states of the Eastern Tropical Pacific had been meeting for a decade on the interpretation of Article 64 and in 1985 had adopted the “Fourteen Mexican Principles.” These fourteen principles rejected the u.s. interpretation and r­ evealed “great devotion to conservation prevailing amongst coastal states in the eastern tropical Pacific.” His view was that Article 64 definitely contained a duty for conservation, even for highly migratory species.152 u.s. ocean policy was again at the center of the 1987 losi conference in Honolulu, with specific attention to tensions with South Pacific states.153 In a special panel devoted to extended maritime jurisdiction issues, Christopher D. Beeby, of New Zealand’s Ministry of Foreign Affairs, offered the South P ­ acific perspective. Beeby stated confrontations with the u.s. over tuna “forced the small island countries to make a choice between the surrender of their most valuable economic resource or suffering the very large political and economic consequences flowing from any seizure of any American tuna boat fishing without a license in their zones. If they did nothing, they watched foreign 149 Ibid., 192, n. 8. 150 Alberto Szekely, “Tuna in the Eastern Tropical Pacific,” in Clingan. The Law of the Sea: What Lies Ahead?, 177. 151 Ibid., 180. 152 Ibid., 182–183. 153 Twenty-First Annual Conference of the Law of the Sea Institute. John P. Craven, Jan Schneider, and Carol Stimson, eds., The International Implications of Extended Maritime Jurisdiction in the Pacific: Proceedings of the 21st Annual Conference of the Law of the Sea Institute, August 3–6, 1987, Honolulu, Hawaiʻi (Honolulu: Law of the Sea Institute, 1989). The 1987 losi Executive Board consisted of: Lewis Alexander, Lee Anderson, Richard Bilder, Thomas A. Clingan, Jr., Edgar Gold, Lee Kimball, John Knauss, Tommy T.B. Koh, Tadao Kuribayashi, Edward L. Miles, Max Morris, Myron Nordquist, Francisco Orrego Vicuña, Willy Østreng, Jan Schneider, Tullio Treves, Jon Van Dyke, and Conrad Welling.

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fishing boats harvesting the resource of their zones and received nothing. If they acted to enforce their rights, they risked the sanctions of the Magnuson [-Stevens] Act.”154 In a separate panel, Fiji’s Jioji Kotobalavu further addressed the tremendous benefits of extended jurisdiction for Pacific Nations in ­regard to living and non-living marine resources.155 Kotobalavu suggested that distant-water fishing nations seeking to access the Pacific’s tuna-rich resources could provide support in the form of commercial investment in the development of national or regional capability in fishing, shipment, and processing, technological training, special market access, and conservation management cooperation.156 The tension between the United States and the Pacific Island nations over tuna fisheries was finally resolved in 1988, when a treaty on fisheries between the United States and certain South Pacific states came into force. The South Pacific Regional Fisheries Treaty gave the American tuna fleet access to the island states’ eez waters in return for aid payments and acceptance of coastal state licensing authority.157 The u.s. State Department explained, The treaty will enable u.s. tuna vessels to purchase regional licenses to fish for tuna in some ten million square miles of the South Pacific Ocean. License fees totaling $1.75 million for 35 licenses are expected to be issued within 48 hours. In addition, the u.s. tuna industry has agreed to provide technical assistance to the island nations valued at $250,000 annually. A related five-year, $50 million [u.s. Government-funded] economic ­assistance agreement becomes effective with the treaty’s entry into force. The first annual $10 million cash transfer will also be made today.158 Control over activities in the eezs, however, remained an issue for discussion at the losi meetings. Thomas Mensah, who later would serve as losi ­director 154 Christopher D. Beeby, “Extended Maritime Jurisdiction: A South Pacific Perspective,” in ibid., 20. 155 Jioji Kotobalavu, “Extended Maritime Jurisdiction in the Pacific: Maximizing Benefits from Marine Resources,” in ibid., 131. 156 Ibid., 133. 157 On June 7, President Reagan signed into law the South Pacific Tuna Act of 1988, paving the way for ratification in July1988. The “South Pacific Tuna Treaty” was extended until December 31, 2015 and continues to be renegotiated for amendment and duration. The parties to the treaty include: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, United States, and Vanuatu. 158 u.s. Department of State Press Release No. 110, June 15, 1988, 174.

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from 1993 to 1995, spoke at the 1988 conference on the strong line taken by many Group of 77 countries on this matter. Mensah rejected the “superficial reading” of developing countries as objecting to the principle of “freedom of navigation”; he called instead for a more thoughtful understanding of their objections to unimpeded, unequal exploitation of ocean resources.159 The positive goals of the developing nations were “an increase in the breadth of the territorial sea, the recognition and more liberal definition of archipelagic waters, the extension of the areas within which the coastal state would have jurisdiction for fishing purposes, and greater emphasis on the protection of the  marine environment.”160 Taking up a related theme, Ambassador Satya Nandan of Fiji framed unclos as a response not only to political and economic needs, but also to offshore drilling and to advances in science and ­technology, which called for more considered management of fishing activities and conservation.161 National anxieties around securing maritime boundaries extended beyond developing countries. Brian Hoyle, from the u.s. Department of State, disclosed the u.s.’s consideration of extending its territorial sea boundaries to twelve miles, a step by other countries that the United States had previously opposed. And President Reagan did declare the twelve-mile territorial sea boundary on December 27, 1988.162 Another controversial issue affecting the Pacific Island nations concerned unclos provisions for transit passage through archipelagoes. The promotion of the robust jurisdiction over transit through their waters of the archipelagic states was very hotly defended at the 1984 Consensus and Confrontation Workshop by both the affected Pacific Island nations and their newly independent neighbor, Indonesia. Indonesian Ambassador Hasjim Djalal reported Indonesia would deny non-signatories to the Convention the right of transit passage through its sea lanes. Djalal asserted, “The Convention must be accepted in its totality, as a whole, in a grand package. Nonsignatories have no right to pick and choose from it, especially if their choices interfere with the goals of the Convention.”163 159 Lewis M. Alexander, Scott Allen, and Lynn Carter Hansen, eds., New Developments in ­Marine Science and Technology: Economic, Legal and Political Aspects of Change: Proceedings from the Twenty-Second Annual Conference of the Law of the Sea Institute, ( June 12–16, 1988) Narragansett, Rhode Island (Honolulu: Law of the Sea Institute, 1989), 448. 160 Ibid. 161 Ibid., 10–12. 162 Ibid., 484. 163 Hasjim Djalal, “The Effects of the Law of the Sea Convention on the Norms that Now Govern Ocean Activities,” in Van Dyke, Consensus and Confrontation, 50, 56.

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Two years later, at a losi workshop in Honolulu,164 there was again a focus on the many geographic archipelagoes in the Asia Pacific region. During ­u nclos negotiations, Indonesia and the Philippines had been leaders in writing the terms of Part iv, defining rules of the archipelagic regime.165 Camillus S.N. Narokobi, officer in the Department of Justice, Papua New Guinea, provided background to the development of the concept of archipelagoes and the unclos iii negotiations to establish a definition for archipelago. He adverted to how maritime nations like the United Kingdom, although itself a coastal ­archipelago, and other nations with similar geographic profiles opposed the concept of a special definition and treatment of mid-ocean archipelagoes. These maritime nations were concerned that it would adversely affect their rights, especially in the areas of freedom of navigation and fishing. Naroboki traced the concept of mid-ocean archipelagoes with protection of its internal waters from debates in the 1958 Law of the Sea Conference at Geneva and commentaries in the academic literature. He pointed out that by 1958 the ­International Law Commission had not come to any specific solutions but had developed certain principles relating to archipelagoes. Fiji, Indonesia, the Philippines and Mauritius issued the 1973 statement of principles and renamed the enclosed waters as “archipelagic waters.” Naroboki showed how this 1973 statement was eventually adopted for the most part as the definition in Article 46 (a).166 However, “[w]hen the negotiations began, the archipelagic nations had policies that completely excluded foreign vessels from their international waters. Now, such navigation is not only allowed, but is given new freedoms.” He pointed out that the archipelagic states did not lose the right to restrict warships and submarines in their waters.167 Professor Sohn noted that archipelagic waters differ from internal waters. “This is something special, a different kind of regime, sui generis.”168 Professor Atje Misbach Muhjiddin, of Padjadjaran University, Indonesia, ­expounded on how Indonesia, on gaining its independence, was very concerned that there not be pockets of the high seas regime between some of its islands; national control was essential, he stated, in the interest of “national

164 Workshop, “International Navigation: Rocks and Shoals Ahead?” (January 13–15, 1986) East-West Center, Honolulu, Hawai’i. 165 unclos, Articles 46–54. 166 Camillus S.N. Narokobi, “The Regime of Archipelagoes in International Law,” Van Dyke, International Navigation: Rocks and Shoals Ahead?, 210–232. 167 Ibid., 232. 168 “Discussion,” ibid., 211.

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unity, territorial integrity, and political and economic stability.”169 Indonesia had first declared itself an archipelagic state in 1957, and his country regarded the 1982 unclos as “the culmination of its efforts during 25 years to have the principle of archipelagic states formally accepted as part of the law of the sea by the international community.”170 At the 1993 conference in Seoul, Tatsuo Saito, Special Advisor to Japan’s ­Minister of Agriculture, Forestry, and Fisheries, addressed fisheries management in what he identified as the “central Pacific,” which described an area “neither the eastern, nor northern, nor southern Pacific.”171 The Central Pacific area—in which the Japanese distant-water fishing companies were actively seeking to expand their operations—comprised the ocean region of the “Nauru Group,” whose member countries were the Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Papua New Guinea, the Republic of Palau, the Solomon Islands, and Tuvalu. Saito noted that the dramatic increase in global tuna production was attributable not only to fishing effort in the Philippines and Indonesia, but also to harvests in the central Pacific, where increased catch was almost entirely a result of fishing by the fleets of distant fishing nations.172 Catch volume by Pacific island nations’ own vessels remained barely above subsistence levels, except for in the Solomon Islands, which had allowed a foreign joint venture to conduct operations. The small land mass of these nations meant that marine resources were critical to the survival of Pacific n ­ ations, Saito stated; and so he lamented the “piecemeal” status of fishery agreements between Nauru Group nations and foreign distant-water fishing operators.173 There was persistent distrust of fishing statistics, with inconsistent catch figures coming from different sources, which was frustrating attempts to implement a sound management regime.174 Saito thus recommended a modest first step: “[v]essel registration, collection and dissemination of statistics, etc. are examples of such areas where an interim agreement could be reached at a rather early stage.”175 Unlike other losi conferences, the 1993 conference was focused on ocean governance in Hawai’i specifically. In accord with this theme, Jon M. Van Dyke 169 Atje Misbach Muhjiddin, “Some Aspects that Should be Considered in Designating ­Indonesia’s Sea Lanes,” ibid., 212–218. 170 Ibid., 218. 171 Tatsuo Saito, “Management of Highly Migratory Species in the Central Western Pacific,” in Hong, The Role of the Oceans in the 21st Century, 536. 172 Ibid., 537. 173 Ibid., 544. 174 Ibid., 552. 175 Ibid., 553.

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pointed to the specific impacts of unclos on Hawai’i.176 unclos Article 46(a) defined “archipelagic waters” in ways that had validated the exercise of jurisdiction over navigation to the Bahamas and to Fiji, Indonesia, Papua New Guinea, the Philippines, Samoa, and other Pacific island nations. However, Hawai’i fell outside of this definition because it was part of the United States and therefore could not claim greater control over channel waters under the unclos Article 46 archipelagic definition. Van Dyke proposed that Native Hawaiian Kingdom law and custom were alternative sources as authorities for validating expanded claims for the u.s. State of Hawai’i to control its channels and other marine resources.177 On the same line of argument, Elizabeth Pa Martin (nka Elizabeth Ann Ho‘oipo K. Pa Nakea), a Hawai’i attorney, recounted the Kingdom of Hawai’i’s historic claims to marine governance and jurisdiction.178 In 1846, King Kamehameha iii claimed a traditional marine league around each of Hawai’i’s islands as the exclusive jurisdiction of the Kingdom of Hawai’i, but omitting certain channel areas, which would remain subject to a sovereign prerogative to close those channels “and if the public good shall require it, prohibit their use to other nations[.]”179 The State of Hawai’i’s right to control archipelagic waters, though denied by the u.s. Government itself and not provided for by ­u nclos, was thus supported, she contended, by Hawaiian custom and Kingdom claims—a position also expressed in the Hawai’i State Constitution and supported by Dr. John Craven, Van Dyke and other experts—as well as given special validity by proposed, though disputed, universal doctrines of ­indigenous rights.180 176 Jon M. Van Dyke, “An Overview of the Jurisdictional Issues Affecting Hawai’i’s Ocean Waters,” in Mensah, ed., Ocean Governance: Strategies and Approaches for the 21st Century, 5. 177 Ibid., 14–15. This proposal to rely on Hawai’i indigenous legal sources was dismissed as invalid by the u.s. Government. 178 Elizabeth Pa Martin and John Kekoa Burke, “Ocean Governance Strategies: Governance in Partnership with Na Keiki o Ke Kai, the Children of the Sea,” in Mensah, Ocean Governance: Strategies and Approaches for the 21st Century, 173. 179 Ibid., 180–181. Martin also called attention to the United Nations negotiations and work on the draft Declaration on the Rights of Indigenous Peoples (undrip) and the United Nations Conference on Environment and Development, held in Rio de Janeiro, as requiring greater consideration for the rights of indigenous peoples in the implementation of unclos and the law of the sea more generally. “Hawaiians, like other indigenous peoples,” she pointed out, “were not afforded a role in the approval of the Convention and have not consented to be bound by its provisions.” Ibid.,188. 180 Ibid., 181–182. See also Jon M. Van Dyke, “An Overview of the Jurisdictional Issues Affecting Hawaii’s Ocean Waters,” International Journal of Marine and Coastal Law 11 (1996):

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Conclusion

At these Hawai’i losi conferences, the overriding objective was consistently to advance and enrich the debates, as begun from the organization’s founding, that were ongoing in the search for global acceptance of a rule of law for the ocean regime. Differences were voiced, and in important ways clarified, as we have seen in this Chapter, regarding such large questions as the role of customary law in relation to the unclos regime as well as vital areas of concern with respect to deep seabed mining, the regimes of navigation and fisheries, marine zones and boundary delimitation, and the institutions and terms of dispute settlement. Withal, the enterprise of achieving and establishing a new legal ordering of the oceans was both reflected in, and given impetus by, the participants from every part of the world who joined with such devotion in a common quest at the losi meetings and in publications to define and analyze both the problems and the opportunities of evolving law for the oceans.

351; Hawai’i State Constitution, Article xv, Section 1, “The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial and archipelagic ­waters, included in the Territory of Hawaii on the date of enactment of the Admission Act, ­except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial ­waters; but this State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (offshore from Johnston Island) or Kingman Reef, together with their appurtenant reefs and territorial waters.” See also Hawai’i State Constitution Article xi, Conservation, Control and Development, Section 5, Marine Resources.

chapter 3

Seeking Lines in the Sea: Progress and Challenges in the Delimitation of Maritime Boundaries over the Past 50 Years Clive Schofield

Introduction

An enduring and, indeed, ongoing theme in the course of the development of the international law of the sea over the past five decades has related to the quest to divide up ocean spaces under national jurisdiction through the delimitation of maritime boundaries. This task has become more complex and challenging over time thanks to significant expansions to the claims of coastal States to maritime jurisdiction offshore. A key consequence of the extension of maritime claims further offshore, notably the introduction of exclusive economic zone rights out to 200 nautical miles (M) distant from baselines along the coast, has been a proliferation in overlapping claims to maritime jurisdiction and therefore potential maritime boundaries to be delimited. The objective of the paper is to trace the evolution of maritime claims and ocean boundary-making through the lens of the contributions made to Law of the Sea Institute (losi) conferences held from 1965 to the present—a period that encompasses some of the most significant developments in this regard in the international law of the sea. The cast of contributors to the losi meetings is a distinguished one, including leading international legal scholars responsible for the development and codification of the law of the sea as well as some of the foremost geographers and geotechnical scholars and practitioners. A number of key themes emerging from scholarly contributions to the losi meetings are identified and explored. These include early considerations on the maritime entitlements of the United States and how they might be measured, analysis of extended maritime claims including ongoing concerns over the outer limits to the continental shelf and excessive maritime claims. These contributions led inexorably to discussions on the delimitation of maritime boundaries between coastal States. Regarding maritime boundaries, multiple * Director of Research at the Australian National Centre for Ocean Resource and Security (­a ncors), University of Wollongong (uow), Australia and Leader of the Sustaining Coastal and Marine Zones theme of UOW's Global Challenges interdisciplinary research program. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_005

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contributions have explored key ­factors ­influencing the course of maritime boundary lines as well as practical, geographical and technical aspects of maritime delimitation. It can be observed that coastal geography is a crucial consideration with the presence and weight to be accorded to insular features in particular proving to be a recurring theme in losi scholarship. Perhaps unsurprisingly, attention has also been devoted to specific regional delimitation issues and maritime boundary disputes although frequently the emphasis has been on seeking the peaceful resolution to, or at least management of, such conflicts. Further, such contentious disputes have prompted consideration of differing approaches to maritime delimitation as well as options for dispute resolution looking beyond boundaries, for instance towards cooperative mechanisms of a practical nature such as maritime joint development zones. This review concludes with some reflections on progress made to date and challenges remaining for the future in relation to the scope of maritime claims and the delimitation of maritime boundaries in the future.

Expanding Claims

An underlying theme in scholarship touching on ocean boundary-making e­ vident from the losi papers has been and to an extent remains the extension of claims to maritime jurisdiction offshore. This is, of course, an issue that is fundamentally connected to ocean boundary-making as it is the breadth of maritime zones coupled with the distances between opposing coasts that gives rise to overlapping maritime claims and thus the potential for the delimitation of an international boundary. This was illustrated in the first losi conference held in 1966 which was ­devoted to the theme of Offshore Boundaries and Zones.1 A number of early contributions to the losi papers were devoted narrowly to jurisdictional, ­administrative and technical problems related to the establishment of the coastal and offshore boundaries of the United States,2 and this theme recurred 1 Lewis M. Alexander, ed., The Law of the Sea: Offshore Boundaries and Zones (The Ohio State University Press, 1967). 2 F.J. Hortig, “Jurisdictional, Administrative, and Technical Problems Related to the Establishment of California Coastal and Offshore Boundaries,” in Lewis M. Alexander, ed., The Law of the Sea: Offshore Boundaries and Zones (The Ohio State University Press, 1967), 230.; F.J. Hortig, “Continuing Report on Jurisdictional, Administrative, and Technical Problems ­Related to the Establishment of California Coastal and Offshore Boundaries,” in Lewis M. Alexander, ed., The Law of the Sea: The Future of the Sea’s Resources (Kingston, ri: The University of Rhode Island, 1968), 143; F.J. Hortig, “Report on Jurisdictional, Administrative, and Technical Problems

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over time. For example, David Colson provided an update regarding progress in us ocean boundary making in 1984.3 However, these understandable yet relatively parochial coastal concerns soon gave way to global scale developments. An especially prescient example was provided by Lewis Alexander with his paper Offshore Claims of the World, presented at the losi meeting in 1968.4 In it Professor Alexander identified an “idealized diagram” of three maritime zones, namely the high seas, a narrow territorial sea and internal waters.5 He credited the 1958 Conventions6 (often termed the “Geneva Conventions”) as attempting “to bring order out of chaos” with “a high degree of success.”7 He did, however, sound a warning that national claims “continue to encroach” on the high seas with the extent of such claims becoming “ever greater” such that “the free seas of the world diminishes.”8 Alexander identified as key issues of uncertainty the “imprecision” of the baselines regime, as well as the unresolved status of “archipelagic claims” and ambiguities associated with the definition of historic Related to the Establishment of California and Other State Coastal and Offshore Boundaries,” in Lewis M. Alexander, ed., The Law of the Sea: International Rules and Organization for the Sea (Kingston, ri: The University of Rhode Island, 1969), 294.; F.J. Hortig, “Report on Jurisdictional, Administrative, and Technical Problems Related to the Establishment of California and Other State Coastal and Offshore Boundaries,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode ­Island, 1970), 409; F.J. Hortig, “Report on Jurisdictional, Administrative, and Technical Problems Related to the Establishment of California and Other State Coastal and Offshore Boundaries,” in Lewis M. Alexander, ed., The Law of the Sea: The United Nations and Ocean Management (Kingston, ri: The University of Rhode Island, 1971), 244; William L. Griffin, “Delimitation of Ocean Space Boundaries between Adjacent Coastal States of the United States,” in Lewis M. Alexander,­ ed., The Law of the Sea: International Rules and Organization for the Sea (Kingston, ri: The University of Rhode Island, 1969), 142; and, Hyman Orlin, “A ­Cooperative ­Florida-Coast & Goedetic Survey Boundary Program,” in Lewis M. A ­ lexander, ed., The Law of the Sea: The United Nations and Ocean Management (Kingston, ri: The ­University of Rhode Island, 1971), 233. 3 David A. Colson, “The Maritime Boundaries of the United States: Where Are We Now?,” in Thomas A. Clingan, Jr., ed., The Law of the Sea: What Lies Ahead? (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1988), 464. 4 Lewis M. Alexander, “Breadths of Territorial and Other Offshore Zones,” in Lewis M. ­Alexander, ed., The Law of the Sea: International Rules and Organization for the Sea (Kingston, ri: The University of Rhode Island, 1969), 313. 5 Ibid. 6 The 1958 Geneva Conventions on the Territorial Sea and the Contiguous Zone, 29 Apr. 1958, 516 u.n.t.s. 205; Convention on the High Seas, 29 Apr. 1958, 450 unts. 11; Convention on the Continental Shelf, 29 Apr. 1958, 499 u.n.t.s. 311; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 Apr. 1958, 559 u.n.t.s. 285. 7 Alexander, “Breadths of Territorial and Other Offshore Zones,” 313. 8 Ibid.

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bays.9 In terms of changes in global maritime claims he noted the “growth of the twelve mile bloc from three in 1950 to twenty-six in 1966” and linked this to decolonisation and the rise of newly independent States.10 This trend led this distinguished author to raise concerns over the status of international straits, leading him to advocate that the above-mentioned idealised three-zone model should remain valid only to be modified as “rare exception.”11 Alexander recognised that the law of the sea “cannot remain static.”12 As he put it, Every year sees the creation of new independent states, new technological advances in the use of the seas, new additions to the world’s population and new demands by … that population for a better way of life.13 Such forces would, it was anticipated, inevitably lead to evolutions in the law of the sea. Nonetheless Alexander remained strongly of the view that the international community must “avoid haphazard partitioning of the oceans,” concluding that whilst the sea may represent the world’s last frontier, at the same time frontiers also exist within the sea itself. Alexander’s early contribution to the losi files therefore not only identified emerging maritime jurisdictional issues of the time but highlighted key concerns that have proved to be of ­enduring relevance. Many subsequent papers focussed on extended maritime claims and associated consequences and this was in large part reflective of substantial o­ ngoing evolutions in the international law of the sea. One of the significant issues eventually resolved at the Third United Nations Conference on the Law of the Sea (unclos iii), and which had eluded earlier codification efforts, was the appropriate maximum breadth for the territorial sea. This matter was a­ ddressed by Burke in 1972, just prior to the start of unclos iii.14 ­Proposals towards what ultimately emerged as a consensus on a 12 M territorial sea limit was charted in a historical analysis of us and Japanese positions dating from the early 1970s by  Shigeru Oda.15 Other contributions focussed on the e­ xpanded scope of 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 William T. Burke, “Consequences For Territorial Sea Claims Of Failure To Agree At The Next Law Of The Sea Conference,” in Lewis M. Alexander, ed., The Law of the Sea: A New Geneva Conference (Kingston, ri: The University of Rhode Island, 1972), 37. 15 Shigeru Oda, “Proposals Regarding a Twelve-Mile Limit for the Territorial Sea by the United States in 1970 and Japan in 1971: Implications and Consequences,” in Tadao Kuribayashi

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­ aritime claims with the potential impacts of these developments on access m to marine resources proving to be a persistent concern. In particular, i­ssues such as access and control over fisheries resources and the proper limits and potentially conflicting uses of the continental shelf featuring prominently. Some scholars lamented the “considerable expansion” of maritime claims “at the expense of the high seas … eroding away the extent of the areas which remain free to all nations.”16 Indeed, McDougal was of the view that “it may take a hundred years for the law of the sea to recover” from the international codification conferences of 1958 and 1960.17 Other authors recognised the potency of the often resource-related forces driving the process of “creeping coastal State jurisdiction” and appear to have been more reconciled to the inevitability of this trend. For example, Kanehara considered that many coastal States appeared to favour exclusive 200 mile fishery zones as a means to ­protect their fishery interests.18 In large part, the longstanding preoccupation of losi scholars with the expansion of claims to maritime jurisdiction seawards was resolved through the agreement achieved on the spatial framework for maritime zones provided for through the United Nations Convention on the Law of the Sea (unclos) of 1982.19 unclos provides for a series of national zones of maritime jurisdiction predominantly measured to set distances offshore from baselines along the coast. Namely, a territorial sea where consensus was reached on a ­maximum limit of 12 nautical miles,20 a contiguous zone within which the coastal State may “exercise the control necessary” to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws out to a maximum limit of 24 nautical miles,21 and, in a major development, the exclusive economic zone

16

17 18

19 20 21

and Edward L. Miles, eds., The Law of the Sea in the 1990s: A Framework for Further International Cooperation (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1992), 159. Myres S. McDougal, “International Law and the Law of the Sea,” in Lewis M. Alexander, ed., The Law of the Sea: International Rules and Organization for the Sea (Kingston, ri: The University of Rhode Island, 1967), 4, at 25. Ibid., at 3. Hiroshi Kasahara, “Extension of Fishery Jurisdiction,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode ­Island, 1970), 38. United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 unts 3 (entered into force 16 November 1994) (unclos). unclos, Articles 3 and 4. Ibid., Article 33.

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(eez) out to 200 nautical miles from baselines.22 The eez resulted in an enormous extension of maritime claims offshore and thus a significant proliferation of overlapping maritime claims and potential maritime boundaries as well as maritime disputes. While the above-mentioned zones are based on specific maximum breadth measurements from baselines along the coast, the rules relating to the delineation of outer continental shelf limits proved to be more complex and excited considerable debate.

Continental Shelf Conundrums

Continental shelf issues provoked considerable full discussion in early  losi conferences. Here the context was the so-called “Truman Proclamation,” whereby the United States (u.s.) had unilaterally declared its exclusive right over the resources in the seabed that formed part of the natural prolongation of its land territory.23 While the u.s. was not the first State to assert some sort of jurisdiction over the seabed adjacent to their land territory and beyond territorial sea limits,24 the Truman Proclamation was especially influential given that it was issued by the world’s leading maritime power. Numerous States subsequently asserted rights over maritime spaces far beyond the then n ­ arrow ­spatial confines of the traditional territorial sea. This, in turn, led to efforts towards codification, resulting in the establishment of an International Law Commission (ilc) by the United Nations General Assembly in 1947 which produced 73 draft articles concerning the law of the sea that were circulated to interested States in 1956.25 The ilc’s final report and recommendations, taking into account feedback from States, then provided the basis for discussions at the First United Nations Conference on the Law of the Sea (unclos i) that took place in Geneva in 1958. unclos i yielded the 1958 Convention on the Continental

22 23

24

25

Ibid., Article 57. u.s. Presidential Proclamation No. 2667, Policy of the United States with Respect to the ­Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, (1945) 10 Fed Reg 12,305 (hereinafter, “Truman Proclamation”). See for example, Argentina’s continental shelf Decree of 1944. Decree No.1, 385 Concerning Mineral Reserves, 24 January 1944, Boletin Oficial de la Republica Argentina, Volume.52, no.14, 853 (17 March 1944) in United Nations, Laws and Regulations on the Regime of the High Seas, United Nations Document St/LEG/SER.B/1, (New York: United Nations, 1951). International Law Commission, “Articles concerning the Law of the Sea 1956,” Yearbook of the International Law Commission, 1956, vol. ii, p. 264.

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Shelf.26 The Continental Shelf Convention recognised the continental shelf as an inherent right of coastal States and reaffirmed the doctrine introduced in the Truman Proclamation that coastal States have exclusive sovereign rights to explore and exploit their continental shelf,27 as well as confirming that the body of water above the continental shelf remains as high seas.28 Concerning the outer limits of the continental shelf, however, the relevant provisions of the Convention on the Continental Shelf were problematic. This was in large part because of the open-ended nature of Article 6 of that Convention.29 This article provided for a limit to continental shelf rights based on a depth of 200 meters, which was readily definable and therefore largely unproblematic but also permitted, as an alternative, continental shelf limits to be based on the “depth beyond that limit where exploitation of resources was possible.”30 As the latter option of a continental shelf limit based on exploitability is clearly dependent on the technologies available to enable the exploitation of seabed resources which would inevitably change over time, this led to substantial debate. For example, McDougal acerbically referred to the “200 metres depth or or as far as one can dig” provision as “the highlight in brilliance of the 1958 conventions.”31 Similarly, Wright observed that it is unfortunate that the Continental Shelf Convention qualified the 200 meter depth definition by the uncertain concept of technological capability.32 Moreover, Neblett correctly predicted that it was only a matter of time before technology triumphs over the 200 meter depth limit for exploitation purposes.33 These discussions led to proposals being advanced to resolve the flaws of Article 6 of the Continental Shelf Convention which, in turn, excited considerable comment. For example, a report produced by the United States 26

27 28 29

30 31 32 33

Convention on the Continental Shelf, 29 April 1958, unts 499, 311 (entered into force 10 June 1964) (hereinafter, the “Continental Shelf Convention”), online: . Ibid, Art. 2(1). Ibid, Art. 3. Convention on the Continental Shelf, Article 6. See, for example, William T. Burke, ­Northcutt Ely, Richard Young, Bernard E. Jacob, Bruce A Harlow and Quincy Wright, “A Symposium on Limits and Conflicting Uses of the Continental Shelf,” in Lewis M. Alexander, ed., The Law of the Sea: Offshore Boundaries and Zones (The Ohio State University Press, 1967), 172. Ibid., Article 6. McDougal, “International Law and the Law of the Sea,” at 21. Burke et al., “A Symposium on Limits and Conflicting Uses of the Continental Shelf,” 172. William R. Neblett, The 1958 Conference On The Law Of The Sea: What Was Accomplished, in Lewis M. Alexander, ed., The Law of the Sea: Offshore Boundaries and Zones (The Ohio State University Press, 1967), 36.

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­ ommission on Marine Science, Engineering and Resources in 1969 entitled C Our Nation and the Sea. A Plan for National Action, occasioned vigorous debate in the subsequent losi meeting devoted to its review.34 The Commission Report had recommended a redefinition of the continental shelf into three elements as follows: 1. 2.

3.

The outer limit of the continental shelf to be set at the 200 meter isobath or 50 M from baselines along the coast, whichever gives the greater area. Where the continental shelf so redefined is shared between opposite or adjacent States, boundaries should be determined in line with the ­median line or equidistance rules provided for in Article 6 of the 1958 Convention on the Continental Shelf. Boundaries should be drawn definitively on the basis of best available bathymetric surveys and should not be subject to later change as a ­result of subsequent alterations of the coastline or “revelations of more detailed surveys.”35

The Commission also recommended the establishment of an “intermediate zone” defined as an area lying between the outer limit of the redefined continental shelf and either the 2,500 meter isobath or a line drawn 100 M from baselines along the coast, whichever provided the coastal State with the greatest area.36 The latter were apparently based on the average depth of the base of the world’s geological continental slopes and the average width of ­continental terrace globally.37 The objective of the intermediate zone was to create ­preferential rather than permanent resource exploitation rights for coastal States beyond the outer limits of their continental shelves. During the losi meeting Brown criticised the Commission’s attachment to averages and characterised its recommendations as a whole as “­exceedingly 34

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36 37

See, United States Commission on Marine Science, Engineering and Resources, Our ­ ation and the Sea. A Plan for National Action, (Washington d.c.: u.s. Government PrintN ing Office, 1969) (referred to hereinafter as the “Commission Report”); and, Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970). E.D. Brown, “Our Nation and the Sea: A Comment on the Legal-Political Framework for the Development of Submarine National Resources,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 2, at 3. Commission Report, 151–153. Brown, “Our Nation and the Sea: A Comment on the Legal-Political Framework for the Development of Submarine National Resources,” 5.

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vague.”38 In the view of another prominent contributor, Ian Brownlie, the “family of issues” concerning the continental shelf and outer limit amounted to “one of the central problems of the law of the sea.”39 He went on to give qualified endorsement to aspects of the Commission Report, for instance regarding the interpretation of the exploitability criterion, pointing out that many commentators did not regard it as being “an uncontrolled ambulatory limit” liable to lead to a “free-for-all” beyond the 200m isobath thanks to a requirement for adjacency.40 He further noted that the practice of States “indicates general adherence to the concepts of geological continuity and contiguity” consistent with the above-mentioned Truman Proclamation, observing that “it is important not to be too careless of the existing law, whilst admitting the inadequacies of the present regime.”41 Concerning the Commission’s proposed 200m depth or 50 M from baselines limit to the continental shelf, Brownlie considered this to be “an eminently moderate and practical solution”42 though he did note that in the application of the recommended criteria the Commission did not provide for the situation of a geological continental shelf divided by troughs.43 Brownlie was more critical of the Commission’s suggested creation of an “intermediate zone,” terming this compromise proposal “a source of considerable danger to the stability of any legal regime of which it might become a part” and “nothing more than an extension of the continental shelf regime.”44 In contrast, Hollis Hedberg, for whom the line governed by Article 76(4) is named,45 set out a series of objections to the proposals set out in the Commission Report.46 He suggested that if implemented these proposals “would take away from the coastal State mineral resources which have already been given to it by the Geneva Convention”; would constitute a “hazardous and unnecessary 38 39

40 41 42 43 44 45 46

Ibid., 6. Ian Brownlie, “Recommendations on the Limits of the Continental Shelf and Related Matters,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 133. Ibid., 137–138. Ibid., 136. Ibid., 143. Ibid., 145–146. Ibid., 153. The “Hedberg Line” consists of a line 60 M seaward from the foot of the continental slope in accordance with unclos, Article 76(4) (a) (ii). Hollis D. Hedberg, “Limits of National Jurisdiction over National Resources of the Ocean Bottom,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 159.

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reopening and revision” of that Convention; would deprive States of security and control over resources off their coasts; and would rely on purely arbitrary depth and distance figures to determine limits and boundaries which would be in conflict with existing national claims.47 Hedberg further suggested that the proposed intermediate zone was a complication that would not only lose to coastal States areas already recognised as theirs under the Geneva Convention but require two boundaries to be determined rather than one and based on such unstable and difficult-to-determine features as “bathymetric contours and distances from shore.”48 Instead, Hedberg proposed limits to the continental shelf based on natural criteria, based on the concept of topographic blocks and great ocean basins forming the “natural dividing lines between national and international domains.”49 Contrary to Brownlie’s view of the intermediate zone as an extension of the continental shelf, Hedberg instead viewed it as “an encroachment of the international domain” on areas where the coastal State should have exclusive jurisdiction.50 Hedberg was, however, similarly dismissive of the proposed intermediate zone as an idea he “no sympathy” with given it called for what he termed “a completely unwarranted relinquishment” of coastal State rights.51 These exchanges were supplemented by numerous other losi scholars52 but are highlighted here to provide an indication of the complexity of the issues being addressed at this time of flux in the development of the law of the sea and the nuanced proposals and counter-proposals that were being ­entertained. Here it can be observed that elements of what was ultimately to become Article 76 such, as the use of the 2,500m isobath line, were subject to intense debate and scrutiny at losi meetings.

47 Ibid., 161–162. 48 Ibid., 162. 49 Ibid., 162–163. 50 Ibid.,169. 51 Ibid. 52 See, for example, Louis Henkin, “Comment,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 172; Roger Denorme, “The Seaward Limit of the Continental Shelf,” in Lewis M. ­Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 263; Norman V. Brekcner, “Some Dimensions of ­Defense Interest in the Legal Delimitations of the Continental Shelf,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 188; Robert D. Hodgson, “National Maritime Limits: the Economic Zone and the Seabed,” in Francis T. Christy, Jr., et al, eds., The Law of the Sea: Caracas and Beyond (Cambridge, ma: Ballinger Publishing Company, 1974), 183.

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Following the drafting of unclos and the redefinition of the delineation of outer continental shelf limits through the complex criteria laid down in ­Article 76 of unclos, continental shelf issues continued to attract attention from losi scholars.53 That debates concerning the delineation of the outer limits of the continental shelf have endured despite the achievement of an overarching spatial framework for maritime claims through unclos, represents acknowledgement that determining the outer limits of the continental shelf remains challenging for broad margin coastal States and is far from complete.54 Indeed, at the time of writing this chapter over 100 submissions (96 individual and 9 joint) involving 80 coastal States have been lodged with the Commission on the Limits of the Continental Shelf (clcs)—the scientific and technical body established through the Convention to assist with the delineation of outer continental shelf limits.55 These submissions to the clcs encompass an enormous area, in excess of 30 million km2, of which about 3.2 million km2 is subject to overlapping submissions and therefore constitute large areas of overlapping claims seaward of 200 M eez limits, which will ultimately require the delimitation of extended continental shelf boundaries.56

The Delimitation of Maritime Boundaries

The inevitable consequence of expanded maritime claims has been a proliferation of overlapping maritime claims and potential maritime boundaries. 53

54

55 56

See, for example, Choon-ho Park and Thomas A. Clingan, Jr., “Dispute Settlement Among Non-Parties to the los Convention with Respect to the Outer Limits of the Continental Shelf,” in Thomas A. Clingan, Jr., ed., The Law of the Sea: What Lies Ahead? (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1988), 494; and, Jin-Hyun Paik, “­Entitlement and Delimitation: Implications of Article 76 of the unclos on the Delimitation of the Continental Shelf,” Paper presented at the International Conference Ocean Governance: Structures, Functions and Innovation, 4–5 November 2008, Berkeley, ­California, usa. See, for example, Ron Macnab, “Complications in Delimiting Outer Continental Shelf,” in Myron Nordquist, John Norton Moore and Tomas H. Heidar, eds., Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff Publishers, 2010), 493. For information on the United Nations Commission on the Limits of the Continental Shelf (clcs) see, http://www.un.org/Depts/los/clcs_new/clcs_home.htm. Clive H. Schofield and Robert van de Poll, “Exploring the Outer Continental Shelf,” in ­Michael Lodge and Kenning Zhang, eds., Implementation of Article 82 of the United ­Nations Convention on the Law of the Sea. Report of the International Workshop convened by the International Seabed Authority in collaboration with the China Institute for Marine Affairs in Beijing, the People’s Republic of China, 26–20 November, 2012, isa Technical Study No.12, (Kingston, Jamaica: International Seabed Authority, 2013), 72.

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Under the unclos framework of maritime zones States, up to 24 M apart, share a territorial sea boundary while States, up to 400 M distant from one another, have an eez boundary to delimit between them. Further, regarding outer continental shelf entitlements, States may be 700 M or more distant from one another and still need to delimit a maritime boundary between them. Numerous losi scholars have addressed aspects of maritime boundary ­delimitation. Some contributions have been more theoretical in character, for instance Elizabeth Mann Borgese’s considerations on dealing with the concept of sovereignty in the law of the sea.57 O ­ thers examined the sources and content of law in maritime boundary delimitation,58 or sought to provide an overview of practice and trends in maritime delimitation.59 Papers have been devoted to a particular zone such as the continental shelf60 or the eez,61 or have concentrated on distinguishing between types of practice such as the 57

58

59

60

61

Elisabeth Mann Borgese, “Sovereignty and the Law of the Sea,” in Thomas A. Mensah, ed., Ocean Governance: Strategies and Approaches for the 21st Century (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1996), 35. See, Phillippe Cahier, “The Sources of Law of Maritime Delimitation,” in Lewis M. Alexander, Scott Allen and Lynne Carter Hanson, eds., New Developments in Marine Science and Technology: Economic, Legal and Political Aspects of Change (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1989), 412; and, Jean-Pierre Queneudec, “The C ­ ontent of the Law of Maritime Delimitation,” in Lewis M. Alexander, Scott Allen and Lynne Carter Hanson, eds., New Developments in Marine Science and Technology: Economic, Legal and Political Aspects of Change (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1989), 418. See also, Francisco Orrego Vicuna, “Commentary on the Special Session on the Trends in the law of Maritime Boundary Delimitations,” in Lewis M. Alexander, Scott Allen and Lynne Carter Hanson, eds., New Developments in Marine Science and Technology: Economic, Legal and Political Aspects of Change (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1989), 423; and, Masahiro Miyoshi, “Some Thoughts on Maritime Boundary Delimitation,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff Publishers, 2009), 107. See, Robert D. Hodgson, “The Delimitation of Maritime Boundaries between Opposite and Adjacent States through the Economic Zone and the continental Shelf: Selected State Practice,” in Thomas A. Clingen, Jr., ed., The Law of the Sea: State Practice in Zones of ­Special Jurisdiction (Honolulu, hi: University of Hawai’i, 1982), 280; Guenther Jaenicke, “The Delimitation of the Continental Shelf on the Basis of the ‘Natural Prolongation’ Concept,” in Edward L. Miles and Scott Allen, eds., The Law Of The Sea and Ocean Development Issues in the Pacific Basin (Honolulu, hi: University of Hawai’i, 1983), 547. See, Robert D. Hodgson and Robert W. Smith, “Boundaries of the Economic Zone,” in ­Edward Miles and John King Gable, Jr., eds., The Law of the Sea: Conference Outcomes and Problems of Implementation (Cambridge, ma: Ballinger Publishing Company, 1977), 183.

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delimitation of single maritime boundaries­as opposed to separate lines for different zones.62 A substantial proportion of contributions to losi meetings have, however, been devoted to either evaluating the role particular relevant circumstances in maritime boundary delimitation­or have concerned specific maritime jurisdictional disputes of delimitation issues in regional context or, indeed, a combination of the two. These are outlined in the subsequent sections.

Key Factors in Maritime Delimitation

Coastal Consideration and Issues with Islands As Professor Jonathan Charney observed in 1993 in the introduction to the ­indispensable International Maritime Boundaries series, “[i]n virtually all situations coastal geography is primary.”63 In keeping with the salient role that coastal geography has played in maritime delimitation, losi scholars have devoted considerable attention to what might be termed “geo-legal” issues. In this context issues related to islands proved to be an especially attractive topic. Here contributions have been made on aspects of sovereignty disputes over islands,64 the status of insular features and on the role of islands in maritime delimitation. Regarding the regime of islands and particularly its application to uninhabited islands, Van Dyke and Brooks provided discussion cantering around the famous Clipperton Island Case in 1982, just as the drafting of unclos was concluded and the Convention was opened for signature.65 Yann-huei Song’s subsequent contributions are also notable here.66 62

63 64

65

66

Donald M. McRae, “The Single Maritime Boundary: Problems in Theory and Practice,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 225. Jonathan I. Charney and Lewis M. Alexander, eds., International Maritime Boundaries, Vol. i (Dordrecht: Martinus Nijhoff, 1993), xlvi, at xxxvii. See, for example, Kentaro Serita, “Some Aspects of Territorial Disputes over Islands,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff Publishers, 2009), 137. Jon Van Dyke and Robert A. Brooks, “Uninhabited Islands and the Ocean’s Resources— The Clipperton Island Case,” in Thomas A. Clingen, Jr., ed., The Law of the Sea: State ­Practice in Zones of Special Jurisdiction (Honolulu, hi: University of Hawai’i, 1982), 351. Yann-huei Song, “Okinotorishima: A ‘Rock’ or an ‘Island’? Recent Maritime Boundary Controversy between Japan and Taiwan/China,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (­Martinus

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The influence of islands in the delimitation equation also excited attention. A classic here is a paper provided by Robert Hodgson, Geographer at the us Department of State based on his work towards a Research Study for the State Department, entitled “Islands: Normal and Special Circumstances” dating from 1973.67 A further notable contribution, penned by the then uk Territorial ­Waters Officer, Chris Carleton, in 2006, examined “complex island situations in the Caribbean”—an issue he knew much about having been tasked with providing technical input into negotiations towards the delimitation of maritime boundaries involving the uk’s overseas territories in that region as well as elsewhere around the world.68 Subsequent papers on island issues in the losi files include Van Dyke’s valuable review of island disputes in East Asia and related delimitation issues,69 and Briscoe and Prows’ considerations on the role of islands in the definition of maritime boundaries,70 as well as the present author’s own considerations on the matter.71 Practical and Technical Aspects The relevance of coastal geography to maritime boundary delimitation is fundamentally linked to the popularity in practice of delimitation lines based

67

68

69

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Nijhoff Publishers, 2009), 145; and, Yann-huei Song, “The Application of Article 121 of the Law of the Sea Convention to the Uninhabited Islands in East Asia—A Tribute to Judge Choon-Ho Park,” in Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jin-Hyun Paik, eds., Governing Ocean Resources: New Challenges and Emerging Regimes: A Tribute to Judge Choon-Ho Park (Martinus Nijhoff Publishers, 2013), 61. Robert D. Hodgson, “Islands: Normal and Special Circumstances,” in John King Gamble, Jr. and Giulio Pontecorvo, eds., The Law of the Sea: The Emerging Regime of the Oceans (Cambridge, ma: Ballinger Publishing Company, 1974), 137. See also, Robert D. Hodgson, Islands: Normal and Special Circumstances, (Washington d.c.:u.s. Department of State, Bureau of Intelligence and Research, Research Study, 1973). Chris Carleton, “Maritime Delimitation in Complex Island Situations: A Case Study on the Caribbean Sea,” in Rainer Lagoni and Daniel Vignes, eds., Maritime Delimitation (Martinus Nijhoff Publishers, 2006), 161. Jon M. Van Dyke, “Disputes Over Islands and Maritime Boundaries in East Asia,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff Publishers, 2009), 39. John Briscoe and Peter Prows, “The Role of Islands in the Generation of Boundaries at Sea,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 79. Clive Schofield, “The Trouble with Islands—Definition and Role of Islands and Rocks in Maritime Boundary Delimitation,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff Publishers, 2009), 19.

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on equidistance. This led to considerations of the baselines from which geodetically robust equidistance lines are constructed, as well as concerns over other issues of a technical nature. Here it can be remarked that in addition to eminent legal scholars, the losi meetings also attracted leading international maritime geographers and technical experts. Notable contributions include those from Peter Beazley who preceded Chris Carleton as uk Territorial Waters Officer,72 Robert Hodgson73 and Robert Smith74 of the us Department of State as well as the redoubtable maritime geographers Professor Lewis Alexander75 and Professor J.R.V (Victor) Prescott.76 Among the geographical and technical issues fundamental to maritime claims and the delimitation of maritime boundaries explored in losi papers are vertical datum considerations,77 the choice and proper use of cartographic materials,78 and the types of “straight” line to be used to link turning points in a defined line.79 72

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Peter B. Beazley, “Maritime Boundaries: A Geographical and Technical Perspective,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 319. Robert Hodgson, The Delimitation of Maritime Boundaries between Opposite and Adjacent States: Selected State Practice, 1979. Robert W. Smith, “A Geographical Primer to Maritime Boundary-Making,” in Edward L. Miles and Scott Allen, eds., The Law Of The Sea and Ocean Development Issues in the Pacific Basin (Honolulu, hi: University of Hawai’i, 1983), 526. Lewis M. Alexander, “The Identification of Technical Issues of Maritime Boundary ­Delimitation within the Law of the Sea Convention Context,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (­Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 272. J.R.V Prescott, “Straight Baselines: Theory and Practice,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation ­(Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 288. See, for example, Hyman Orlin, “Vertical Datum for Boundary Delimitation,” in Lewis M. Alexander, ed., The Law of the Sea: National Policy Recommendations (Kingston, ri: The University of Rhode Island, 1970), 416. See, for example, Gian Piero Francalanci, “A Technical Problem in the Negotiations for Maritime Boundaries: The Choice of a Map,” in Edward L. Miles and Tullio Treves, eds., The Law of the Sea: New Worlds, New Discoveries (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1993), 299. For example, the definition of straight lines in maritime delimitation was addressed in regional context by the present author. See, Clive Schofield, “Dividing and Managing ­Increasingly International Waters: Delimiting the Bering Sea, Strait and Beyond,” in James Kraska and Harry Scheiber, eds., Science, Technology and New Challenges in Ocean Law, (Leiden/Boston: Martinus Nijhoff, 2015), 313.

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Diverse Potentially Relevant Circumstances losi papers have also explored a wide variety of factors beyond consideration  coastal geography and relationships that might potentially qualify as relevant circumstances in maritime boundary delimitation. These include facets such as environmental considerations80 and economic factors81 as well as related issues concerning the potential influence of the presence of natural resources on the course of maritime boundaries.82 In the latter context, the presence, or suspected presence, of seabed energy resources has provoked particular attention.83 Other authors turned attention to the question of historic rights, including historic fishing rights, and considered how such claims might influence maritime entitlements and delimitation with neighbouring States.84

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David A. Colson, “Environmental Factors: Are They Relevant to Delimitation?,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 218. Surya P. Sharma, “The Relevance of Economic Factors to the Law of Maritime Delimitation Between Neighboring States,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 248. Irini Papanicolopulu, “The Interplay between Resources and Boundary Lines,” Paper presented at the International Conference Law of the Sea: A Half Century after the Geneva Conventions, 17–18 October 2007, Seoul, Korea. See, Richard J. McLaughlin, “Maritime Boundary Delimitation and Cooperative Managemnet of Transboundary Hydrocarbons in the Ultra-Deepwaters of the Gulf of Mexico,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff Publishers, 2009), 199; John Donaldson, “Oil and Water: Assessing the Link between Maritime Boundary Delimitation and Hydrocarbon Resources,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The ­Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 127; and, Clive Schofield, “The El Dorado Effect: Reappraising the ‘Oil Factor’ in Maritime Boundary Disputes,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 111. See, for example, Andres Aguilar, “The Patrimonial Sea,” in Lewis M. Alexander, ed., The Law of the Sea: Needs and Interests of Developing Countries (Kingston, ri: The University of Rhode Island, 1973), 161; and, Leonardo Bernard, “The Effect of Historic Fishing Rights in Maritime Boundaries Delimitation,” in Harry N. Scheiber and Moon-Sang Kwon, eds., Securing the Ocean for the Next Generation (Law of the Sea Institute, 2013).

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Regional Issues and Maritime Disputes

As noted above, many losi scholars have either addressed specific maritime boundary disputes or have considered maritime jurisdictional issues in regional context. These contributions have been truly global in scope, such that there has scarcely been a corner of global ocean that has not been the subject of a paper at a losi meeting. That said, it is clear that some areas, such as the Polar regions and East Asian waters for instance, have proved to the focus of greater attention than others. The losi files include multiple papers on Arctic Ocean issues85 as well as associated sub-Arctic maritime spaces.86 Maritime boundaries and disputes in  the East China Sea87 and South China Sea88 in particular have also been 85

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Willy Østreng, “Delimitation Arrangements in Arctic seas: Cases of Precedence or Securing of Strategic/Economic Interests?,” in Robert B. Krueger and Stefan A. Riesenfeld, eds., The Developing Order of the Oceans (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1985), 539; David A. Colson, “Political and Boundary Issues Affecting Arctic ­Energy Resources,” in Robert B. Krueger and Stefan A. Riesenfeld, eds., The Developing Order of the Oceans (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1985), 513; Robert W. Smith, “National Claims and the Geography of the Arctic,” in Robert B. Krueger and Stefan A. Riesenfeld, eds., The Developing Order of the Oceans (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1985), 485; Brian J. Van Pay, “National Maritime Claims in the Arctic,” in Myron Nordquist, John Norton Moore and Tomas H. Heidar, eds., Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff Publishers, 2010), 61; and, Potts, T. and Clive Schofield, “Climate Change and Evolving Regional Ocean Governance in the Arctic,” in Harry N. Scheiber and Jin-Hyun Paik, eds. Regions, Institutions, and the Law of the Sea: Studies in Oceans Governance, (Leiden/Boston: Martinus Nijhoff, 2013), 437. See, Robin Churchill and Geir Ulfstein, “The Disputed Maritime Zones Around Svalbard,” in Myron Nordquist, John Norton Moore and Tomas H. Heidar, eds., Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff Publishers, 2010), 551; and, ­Schofield, “When Is a Straight Line Not a Straight Line?–Delimiting the Bering Sea, Strait and Beyond.” See, for example, Seokwoo Lee, “Some Thoughts on Maritime Delimitation among the Northeast Asian States,” Paper presented at the 2007 Law of the Sea Institute Conference: Law of the Sea in the Gulf of Mexico and the Caribbean: Unresolved Issues and Challenges, 22–24 March 2007, Corpus Christi, Texas, usa; Suk-Kyoon Kim, “Perspectives on East China Sea Maritime Disputes: Issues and Context,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 285. See, for example, Sam Bateman, “Sovereignty as an Obstacle to Effective Oceans ­Governance–The Case of the South China Sea,” in Clive Schofield, Seokwoo Lee and

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a preoccupation of losi contributors over the years with papers oriented ­towards a regional perspective,89 devoted to particular bilateral issues90 or examining the practice or claims of specific littoral States in the region, notably China and Korea.91

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Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 201; Guifang (Julia) Xue, “The South China Sea: Competing Claims and Conflict Situations,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 225; Tran Truong Thuy, “Politics, International Law and the Dynamics of Recent Developments in the South China Sea” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 249. See, for example, Akio Suda, Douglas Johnston and Paul C. Yuan, “Problems of Maritime Delimitation–Discussion,” in Choon-ho Park and Jae Kyu Park, eds., The Law of the Sea: Problems from the East Asian Perspective–Workshops (Honolulu, hi: University of Hawai’i, 1987), 81; Van Dyke, “Disputes Over Islands and Maritime Boundaries in East Asia”; YongHwan Kim, “Judge Choon-Ho Park, Maritime Delimitation Issues and Northeast Asia,” Paper presented at the Fourth Inha University–Law of the Sea Institute Conference on the Law of the Sea and Ocean Policy: Law of the Sea and Ocean Policy Issues related to the Pacific Ocean and the Pacific Rim, 26–29 August 2009, Hawai’i, usa; and, Seokwoo Lee and Young Kil Park, “Maritime Delimitation and Joint Resources Development in the East China Sea,” in Harry N. Scheiber and Moon-Sang Kwon, eds., Securing the Ocean for the Next Generation (Law of the Sea Institute, 2013). See, for example, Jon M. Van Dyke, “The Maritime Boundary between North and South Korea in the Yellow (West) Sea,” 38 North, u.s.–Korea Institute Johns Hopkins University School of Advanced International Studies, 29 July 2010, online at: www.38north .org/?p=1232; and, Tara Davenport, “The China-Japan Dispute Over Entitlement in the East China Sea: Legal Issues and Prospects for Resolution,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 297. Choon-ho Park, “China and Maritime Jurisdiction: Some Boundary Issues,” in Choon-ho Park and Jae Kyu Park, eds., The Law of the Sea: Problems from the East Asian Perspective— Workshops (Honolulu, hi: University of Hawai’i, 1987), 281; Wang Liyu, “The 1992 Territorial Sea of China,” in Seoung-Yong Hong, Edward L. Miles and Choon-ho Park, eds., The Role of the Oceans in the 21st Century (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1995), 714; Chang-Wee Lee, “New Fisheries Order in Northeast Asia and Maritime Boundary Delimitation,” Paper presented at the International Conference: Towards a Framework for the New Order of the Sea, 24–25 October 2006, Seoul, Korea; Guoxing Ji, “The Ways to Manage Maritime Delimitation Issues—A Chinese Perspective,” Paper presented at the International Conference: Towards a Framework for the New Order of the Sea, 24–25 October 2006, Seoul, Korea; Guoxing Ji, “North Korea and Its Delimitation of Maritime Jurisdictional Areas with Neighboring Countries,” Paper presented at the International Conference Law of the Sea: A Half Century after the Geneva Conventions, 17–18 October 2007, Seoul, Korea.

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While it is clear that a considerable amount of attention has been devoted to the above-mentioned areas, papers have been presented at losi meetings seemingly spanning the seven seas, including Tullio Treves’ views in relation to Homer’s “wine dark sea,” the Mediterranean92 and that of Davor Vidas on its subsidiary waters, the Adriatic,93 N ­ ilufer Oral on the Aegean94 and Jon Van Dyke on the Black Sea.95 Ocean spaces as disparate as those of the northern Atlantic,96 Caribbean and South America97 and both north and south Pacific98 have also been given close attention. 92

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See, Tullio Treves, “Accommodation of Multiple Uses of the Seas in International Law, with Special Reference to the Mediterranean,” in Douglas M. Johnston and Norman G. Letalik, eds., The Law of the Sea and Ocean Industries: New Opportunities and Restraints (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1984), 51; and, Umberto Leanza, “The Continental Shelf of the Mediterranean Sea and the Delimitation Thereof,” in Edward L. Miles and Tullio Treves, eds., The Law of the Sea: New Worlds, New Discoveries (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1993), 183. See, Davor Vidas, “On Marine Delimitation Disputes and Emerging Issues in the Adriatic Sea,” Paper presented at the International Conference Law of the Sea: A Half Century after the Geneva Conventions, 17–18 October 2007, Seoul, Korea; and, Damir Arnaut, “Delimiting the former Yugoslavia’s Final Frontier,” in Clive Schofield, Seokwoo Lee and ­Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 145. See, Nilufer Oral, “Ratification of the 1982 los Convention: An Aegean Dilemma of Environmental and Global Consequence,” available at, http://bjil.typepad.com/publicist/ 2009/03/publicist01-oral.html. See, Jon M. Van Dyke, “The Romania-Ukraine Decision and Its Effect on East Asian Maritime Delimitations,” in Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jin-Hyun Paik, eds., Governing Ocean Resources: New Challenges and Emerging Regimes: A Tribute to Judge Choon-Ho Park (Martinus Nijhoff Publishers, 2013), 41. See, Clive R. Symmons, “The Outstanding Maritime Boundary Problems Between Ireland and the United Kingdom,” in E.D. Brown and Robin R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1987), 235. See, Chris Carleton, “Maritime Delimitation in Complex Island Situations: A Case Study on the Caribbean Sea,” in Rainer Lagoni and Daniel Vignes, eds., Maritime Delimitation (Martinus Nijhoff Publishers, 2006), 161; Jon M. Van Dyke, “Maritime Boundary Delimitation in the Caribbean,” Paper presented at the 2007 Law of the Sea Institute Conference: Law of the Sea in the Gulf of Mexico and the Caribbean: Unresolved Issues and Challenges, 22–24 March 2007, Corpus Christi, Texas, usa; and, Eduardo Ferrero, “Maritime Boundary Disputes in South America,” Paper presented at the International Conference Law of the Sea: A Half Century after the Geneva Conventions, 17–18 October 2007, Seoul, Korea. J.R. Victor Prescott, “International Maritime Boundaries in the Southwest Pacific Ocean,” in Edward L. Miles and Scott Allen, eds., The Law Of The Sea and Ocean Development

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Dispute Resolution and Looking beyond Boundaries

Against the backdrop off a proliferation of overlapping maritime claims, potential maritime boundaries and, inevitably, maritime jurisdictional disputes, several prominent losi scholars turned their attention to the mechanisms through which the settlement of maritime disputes could be achieved,99 as well as some of the challenges associated with particular modes of dispute resolution such as judicial settlement of boundary issues.100 A number of dispute management approaches, including alternatives to the delimitation of maritime boundary lines in the shape of provisional arrangements of a practical nature such as maritime joint development zones have also been explored by losi ­scholars.101 losi papers have also been devoted to rethinking the interaction between different maritime zones in the context of the multi-jurisdictional, layered s­cenario offered for example by areas of “extended” continental shelf Issues in the Pacific Basin (Honolulu, hi: University of Hawai’i, 1983), 488; Ted L. ­McDorman, “Canada-u.s. International Ocean Law Relations in the North Pacific: Disputes, Agreements and Cooperation,” in Seoung-Yong Hong and Jon M. Van Dyke, eds., Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff Publishers, 2009), 177. 99 Choon-ho Park and Thomas A. Clingan, Jr., “Dispute Settlement Among Non-Parties to the los Convention with Respect to the Outer Limits of the Continental Shelf,” in Thomas A. Clingan, Jr., ed., The Law of the Sea: What Lies Ahead? (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1988), 494; J.R. Victor Prescott, “On the Resolution of Maritime Boundary Conflicts,” in John P. Craven, Jan Schneider and Carol Stimson, eds., The International Implications of Extended Maritime Jurisdiction in the Pacific (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1989), 33; Keith Highet, “Maritime Boundary Disputes and Settlement,” in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman, eds., Sustainable Development and Preservation of the Oceans: The Challenges of unclos and Agenda 21 (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1997), 745. 100 See, Kaiyan H. Kaikobad, “Problems and Prospects in the Judicial Determination of Maritime Delimitation,” Paper presented at the International Conference: Towards a Framework for the New Order of the Sea, 24–25 October 2006, Seoul, Korea. 101 See, Robert W. Smith, “Joint Development Zones: A Review of Past Practice and Thoughts on the Future,” in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman, eds., Sustainable Development and Preservation of the Oceans: The Challenges of unclos and Agenda 21 (Honolulu, hi: The Law of the Sea Institute, University of Hawai’i, 1997), 645; Ian Townsend Gault, Recent Developments in the Cooperative Development of O ­ ffshore Petroleum Resources, 1986; and, Clive Schofield, “Blurring the Lines?: Progress in the ­Cooperative Management of Transboundary Ocean Resources,” Paper presented at the International Conference Law of the Sea: A Half Century after the Geneva Conventions, 17–18 October 2007, Seoul, Korea.

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overlaid by water column areas forming part of the high seas.102 Finally, more recent contributions have sought to address issues that are increasingly arising in how maritime limits and boundaries are represented and employed in an ever more digital world and how the increasing diversity and intensity of ocean activities and uses is driving demand for a greater number and complexity of boundaries of different types in the offshore realm.103

Conclusions

This paper does not pretend to present a fully comprehensive or systematic review of losi papers touching on marine jurisdictional and maritime boundary delimitation issues over the last five decades. Rather it has attempted to offer a flavour of the scope of topics and the character of the debates, at times intense, on key questions that arose in the development of the law of the sea in relations to these areas. A number of pertinent papers have been highlighted which are intended to illustrate the contribution of losi scholars to discourse on the expansion of maritime jurisdictional claims offshore and the consequent requirement for coastal States to delimit maritime boundaries among themselves or, alternatively to achieve an alternative mechanism to manage ocean spaces between them. Reflecting on 50 years of losi scholarship devoted to maritime jurisdictional issues and the delimitation of maritime boundaries in particular, it is abundantly clear that losi authors have made a significant and sustained contribution to law of the sea scholarship on these vitally important marine jurisdictional issues. Moreover, it is plain that while great progress has been made, much still remains to be achieved. Undoubtedly key evolutions in ocean boundary-making have been traced, critically evaluated and, on occasion, heralded through the lens provided by the losi papers. Further a number of enduring issues have been identified and analysed in the losi papers. Concerning the scope of maritime claims, the outer limits of the continental shelf remain largely unsettled although progress is being made with r­ecommendations 102 See, Joanna Mossop, “Beyond Delimitation: Interaction Between the Outer Continental Shelf and High Seas Regimes,” in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdictions (Martinus Nijhoff Publishers, 2014), 753. 103 Clive Schofield, “Ever More Lines in the Sea: Advances in the Spatial Governance of Maine Space,” Carlos Espósito, James Kraska, Harry Scheiber, and Moon-Sang Kwon, eds., Ocean Law and Policy: Twenty Years of ­Development under the unclos Regime, (Leiden/Boston: Martinus Nijhoff, 2016).

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­progressively being delivered by the clcs such that outer continental shelf limits can be finalised. With regard to the delimitation of maritime boundaries, losi papers have lucidly identified and critiqued a range of factors relevant to maritime delimitation. These include consideration of the role of coastal factors in maritime delimitation as well as the definition of baselines and associated technical issues in maritime boundary making. There has also proved to be an abiding concern among losi contributors for insular issues, including the classification of maritime entitlements related to insular features in maritime delimitation. Additional diverse potentially relevant circumstances in the maritime delimitation equation have also been examined. For all the notable contributions of losi scholars and progress in maritime delimitation that has been made, however, the maritime political map of the remains profoundly incomplete. Where each inter-State maritime boundary relationship is treated as one potential maritime boundary, even though it may be composed of multiple distinct segments, the number of potential maritime boundaries within 200 M limits has been calculated to be 366.104 At the time of writing, 196 of these 366 potential maritime boundaries or 54 percent of them had at least one agreement in place relating to their delimitation.105 However, many of these existing delimitation lines are partial in that they either pre-date the introduction of the eez, and therefore relate exclusively to the seabed and subsoil of the continental shelf, rather than the superjacent water or because agreement could be reached on definition of only part of the potential full extent of the boundary line. Consequently, overlapping claims and disputes remain a salient feature of the international political sea-scape. This is exacerbated by overlapping extended continental shelf claims that encompass over 3km2 million of seabed areas subject to submissions at the time of writing—a figure that is likely to grow in the immediate future as further submissions are made. Indeed, while many bilateral and regional boundary problems have been examined in the losi papers, it is evident that many maritime boundary disputes have been subject to multiple examinations in losi contributions but have thus far defied resolution and remain with us today. Nevertheless, there is cause for optimism. It is true that the losi papers on maritime jurisdictional 104 Clive H. Schofield, “The Delimitation of Maritime Boundaries: An Incomplete Mosaic,” in Wastl-Walter D., ed., The Ashgate Research Companion to Border Studies, (Farnham: ­Ashgate, 2011), 665–681, at 670. 105 Schofield, “Ever More Lines in the Sea: Advances in the Spatial Governance of Maine Space.”

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and boundary delimitation issues have served to highlight the complexity and persistent nature of some maritime jurisdiction disputes, with the complex sovereignty and maritime jurisdictional disputes of the East China Sea and South China Sea springing to mind here. Crucially, the losi files also provide a valuable perspective on pathways towards dispute resolution and chart how apparently irreconcilable positions can be brought into accord and how seemingly intractable disputes may ultimately be settled.

chapter 4

A Legacy of Stewardship for the Public Order of the Oceans: A Tribute to William T. Burke Craig H. Allen On the occasion of the fiftieth anniversary of the founding of the Law of the Sea Institute, it is singularly appropriate that the career and scholarly contributions of the late William T. Burke be memorialized. He was of one of the Institute’s founding members, participating in the planning and organizing effort led by Lewis Alexander and colleagues in Rhode Island in 1965, then playing a leading role in the proceedings of the initial losi conference the next year.1 During the half-century that followed, no individual was more consistently or prominently involved than Bill—with a profound influence internationally on the legal and policy discourses in ocean affairs. His death at the age of 87 came on July 4, 2014, ending his brilliant academic career of extraordinary productivity; it was a moment of great sorrow for his colleagues at the University of Washington, where he had served on the faculty since 1968 and was professor emeritus of law, but also for the entire global community of academics, practitioners, and jurists in his field.

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Professor Burke was born in 1926 in Brazil, Indiana, and grew up in nearby Terre Haute, a manufacturing city with a population in the 1930s of ca. 62,000. After service in the u.s. Army during World War ii, he enrolled in Indiana State University, earning his bachelor’s degree there in 1949 (in two and a half years and at the top of his class). He began law studies at the University of Missouri, * Judson Falknor Professor of Law and Professor of Marine and Environmental Affairs, University of Washington. The author was a student and, later, a faculty colleague of Professor Burke’s. 1 The formal founding date of losi was February 1965, and the first conference, a week-long event, was held at the University of Rhode Island in the summer of 1966. Professor Burke was then on the Ohio State University law faculty and associated with that institution’s Mershon Center for Education in National Security, which co-sponsored production of the first conference’s proceedings, published in a book edited by Lewis Alexander, Law of the Sea: Offshore Boundaries and Zones (Columbus, Ohio: Ohio State University Press, 1967).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_006

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but after his first year the Korean War began; and he was recalled to Army service. After being discharged, he went on to earn his juris doctor degree from the Indiana University School of Law in 1953, serving while there as Notes Editor for the Indiana Law Journal. He then embarked on advanced post-graduate study at Yale Law School, where he was awarded his master of laws (ll.m.) and doctor of the science of law (j.s.d.) degrees in 1955 and 1959 respectively.2 Burke was appointed a Research Associate and Lecturer at Yale Law School in 1956, while simultaneously completing his j.s.d. under the supervision and mentorship of Sterling Professor of International Law, Myres S. McDougal.3 Burke joined the Ohio State University School of Law faculty as an Assistant Professor of Law in 1962. In 1964 he was promoted to Professor of Law there, a position he held until 1968. While at Ohio State, Burke helped Lewis Alexander and others found the Law of the Sea Institute in 1965, and, as mentioned above, was a co-organizer of the first losi conference, at the University of Rhode Island, in 1966.4 He was appointed in 1968 to the University of Washington (uw) School of Law faculty, which became his academic home for the remainder of his life. He served as an active member of the uw faculty until 1998, when his faculty colleagues honored him with emeritus status. While at uw, Burke was a principal organizer (along with the oceanographer Warren Wooster, the economist James Crutchfield, and fisheries management expert Dayton Lee Alverson) of the University’s Institute of Marine Studies (ims). The ims was established in 1972, and would later evolve into the School of Marine Affairs (based in the university’s College of Ocean and Fisheries Science) and then the School of Marine and Environmental Affairs (in the university’s College of the Environment), where over 600 students have earned the degree of master of marine affairs. Burke would later remark that recruiting fellow losi member and international relations expert Edward Miles to join the new uw Marine Studies/Affairs faculty in 1974 was one of his most ­consequential achievements.5 In 1975, Burke launched the university’s interdisciplinary Law and Marine Affairs ll.m. program, drawing on the resources 2 His J.S.D. thesis was titled Comprehensive State Authority over Ocean Areas: A Policy Perspective. 3 Professor McDougal passed away at the age of 92 on May 7, 1998. See “Notes and Comments: Myres Smith McDougal (1906–1998),” American Journal of International Law 92 (1998): 729. 4 See Chapter 1, supra, by H. Scheiber, on the founding and early period of losi. 5 Professor Miles was a prominent figure in the losi and, along with Bill Burke, also played a major over the years in leadership of the uw ocean studies programs. He also became in the last phase of his career one of the leading authorities on policy issues regarding climate change. Miles passed away at age 76 in Seattle in 2016. A richly detailed memorial is available at https://smea.uw.edu/about/news/2016/05/09/tribute-to-ed-miles-scholar-humanitarian -teacher-friend-and-mentor-1939-2016/.

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of the Law School and the Institute of Marine Studies, among others. He directed the Law and Marine Affairs ll.m. program until 1996, and proudly counted among his former students Johnson Toribiong, president of the Republic of Palau from 2009 to 2013; Judge Zhiguo Gao of the International Tribunal for the Law of the Sea; and Alfred A.H. Soons, Professor of Public International Law and Dean Emeritus at the Utrecht University School of Law and Director of the Netherlands Institute for the Law of the Sea. Professor Burke was named as an officer of the Law of the Sea Institute at its founding, serving on its executive committee from 1965 to 1978.6 He contributed frequently, on numerous topics, to the Institute’s occasional papers series and conference proceedings. His first losi contribution, Law, Science, and the Ocean, published in 1969 as losi Occasional Paper 3, was an immediate hit and established his reputation for interdisciplinary scholarship. Burke would later develop those concepts in a chapter in The Future of the International L­ egal Order series (volume ii: Wealth and Resources), edited by Richard A. Falk and Cyril L. Black and published in 1970. His second losi contribution, Marine Science Research and International Law (Occasional Paper No. 8), published in 1970 marked his life-long concern for the role of international law in the advancement of marine science, a concern he would share for many years with his University of Washington colleague, the eminent oceanographer Warren Wooster. Burke would later author occasional papers on fisheries and marine transportation issues. He also contributed to the more formal proceedings of the losi as a paper author; panel chair, member or commenter; proceedings editor; and proceedings chair. His many writings are documented in his ­bibliography, which can be consulted on the losi-Berkeley website.7 In addition to his many years of service to losi, Burke held appointments on the board of directors of the Council for Ocean Law and on the International Marine Science Affairs Panel of the National Academy of Sciences’ Committee on Oceanography. He served as an expert to the u.s. Delegation for the United Nations Seabed Committee from 1972 to 1973, as well as the Third Law of the Sea Conference (unclos iii),8 during which he attended unclos iii 6 Members of the original losi executive committee included Lewis M. Alexander (who served as proceedings editor), William T. Burke, Francis T. Christy, John A. Knauss, and Dale C. Krause. 7 “Scholarly Writings of William T. Burke,” edited by Craig Allen, a select bibliography, is ­available on the Law of the Sea Institute website at the University of California, Berkeley, School of Law: https://www.law.berkeley.edu/wp-content/uploads/2016/09/Allen-_-Burke -Bibliography-2016.pdf. 8 Burke also attended unclos i, held in Geneva in 1958. In a conversation with the author, he remarked on the prominent role played by Burdick H. Brittin, a retired u.s. Navy officer who

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sessions in Caracas, Geneva and New York. Burke was also the founding editor of the Ocean Development and International Law Journal and served as its editor-in-chief from 1972 to 1979, when it became firmly established as one of the authoritative venues for publication of oceans-related legal and social science research. Professor Burke was an internationally recognized expert on the law of the sea and remained a scholarship and policy leader on the world scene for many years. His best known publications include The Public Order of the Oceans (­coauthored with his Yale Law School mentor and colleague, Myres McDougal), published in 1962 by Yale University Press and reissued by New Haven Press in 1987; and The New International Law of Fisheries, published by Oxford University Press in 1994 and translated into Japanese in 1996. By the time of his retirement, he had reportedly been published in over 300 law journals, served as an expert and lecturer throughout the world, influenced generations of professionals, and substantially shaped the law, policy, and institutions related to the law of the ocean. Burke also briefly engaged in the practice of law, counting international shipping magnate Aristotle Onassis among his clients, at least indirectly.9 Several themes are evident in Burke’s extensive scholarship. The Preface to the 1962 Public Order of the Oceans made clear Burke’s (and McDougal’s) strong preference for inclusive ocean interests and uses over exclusive interests and uses, reasserting in the modern context the centuries-old doctrine of the iconic Hugo Grotius that “the great bulk of the oceans of the world should be ­maintained as a common resource, freely open to all peoples on the basis of complete equality in the cooperative pursuit of the greatest possible production and sharing of values.”10 In that same Preface, the authors advanced a “strong

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served as a senior Foreign Service Officer with the u.s. Department of State from 1964 to 1974. According to Burke, Brittin served as an expert guide to international conference proceedings for Burke and several others from the United States. Burke assisted Myres McDougal, who served as lead counsel to the Kingdom of Saudi Arabia when the Kingdom’s 30-year oil transport contract with Onassis was challenged by the Arabian American Oil Company (aramco). Oral arguments in the case in Geneva over the summer of 1956 reportedly lasted eight weeks, spanning some 42 sittings by the arbitrators. aramco prevailed. See Award of 23 August 1958 between Saudi Arabia and the Arabian American Oil Company (1958), International Law Reporter 27 (1963) 117–229. Myres S. McDougal & William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (Yale Univ. Press, 1962; reprinted by New Haven Press, 1987), Introduction, at ix. See also ibid. at x (“This book … rejects all claims of special interest and weights every decision most heavily in favor of inclusive, rather than exclusive, interests.”).

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presumption” in favor of inclusive interests, arguing that “exclusive interest is protected only when its protection will clearly contribute most to the common good.”11 Twenty-five years later, however, in the Introduction to his 1987 reissue of the 1962 treatise, Burke conceded that the contrary view—a preference for exclusive uses—had prevailed,12 at least with regard to marine living resources, leading to a “complete dominance” of exclusive interests over those of a more inclusive character such as he and McDougal had championed.13 Throughout his academic career, Professor Burke’s scholarship (and teaching) also highlighted the pervasive influence of science and its application in emerging technologies in the development of the international law of the sea. His pamphlet titled Ocean Sciences, Technology, and the Future International Law of the Sea—written in 1966 (the same year Congress created the Stratton Commission14)—established a theme that would run throughout his writings for the next four decades. He acknowledged the value of expanding our understanding of the sea and recognized that there is “a widespread ­realization that the ocean offers tremendous opportunities for realizing a great variety of important benefits for all peoples.”15 At the same time, however, citing r­ esistance borne of suspicion and mistrust by a number of coastal states, Burke and his long-time colleague at the University of Washington, the late Warren Wooster, lamented the failure of international law to encourage and facilitate the ­marine research needed to obtain those benefits. In the Introduction to his 1987 reissue of Public Order of the Oceans, Burke surveyed significant technological developments in navigation, fishing, oil and gas exploration and production, hard mineral exploitation, marine pollution assessment and prevention, and marine scientific research, and their

11 Ibid. 12 Ibid. at xlvii. 13 Ibid. at lix. 14 Congress established the Commission on Marine Science, Engineering and Resources, chaired by Julius A. Stratton in the Marine Resources and Engineering Development Act of 1966, Pub. L. No. 89-454. In 1969 the commission issued its final report, Our Nation and the Sea: A Plan for National Action (Washington: u.s. Government Printing Office). Edward Wenk, Jr., The Politics of the Ocean (Seattle: University of Washington Press, 1972) provides a detailed history of the commission’s origins and activities. Further analysis is provided in Harry N. Scheiber “The Stratton Commission: An Historical Perspective,” in R.  Knecht, B. Cicin-Sin, and N. Foster (eds.), The Stratton Roundtable: Looking Back, L­ ooking Forward (Washington, dc: noaa, 1998), 31–38. 15 William T. Burke, Ocean Sciences, Technology, and the Future International Law of the Sea (Ohio State University Press, 1966), at 10.

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influence on the law of the sea.16 Yet, despite the critical role research plays in responsible use of ocean space, he once again worried that the prognosis was “poor for a climate favorable to oceanographic research conducted by vessels at sea.”17 Burke’s observations on the ability of international law to keep pace with technological changes continued well past retirement. During a 2008 University of Washington event celebrating Bill’s 81st birthday, he gave a brief interview in which he spoke about, among other things, the opportunities and challenges posed by the discovery of deep sea hydrothermal vent communities based on chemosynthesis and warned: You have to be very careful in how you resolve emerging problems, ­ articularly in the marine environment, about which we know so little … p You have to be cautious, but not a prisoner who doesn’t do anything … The question will be how to deal with these new technological developments when you have a treaty on the law of the sea from 1982, and most of the items in it were agreed to in the 70s, in a different world.18 Burke’s 1987 Introduction to the reissue of the Public Order of the Oceans treatise also reflected his views on the need to closely examine state practice in any assessment of the content of the law of the sea, even after much of that law was codified or further developed in multilateral treaties.19 Reacting to President Reagan’s 1983 Ocean Policy Statement,20 which rejected by name the 1982 Law of the Sea Convention while pledging that the United States would abide by the non-seabed articles of the convention as reflective of customary international law, Burke observed that this stance by the United States cannot “avoid what even adherence to the treaty itself could not avoid, namely the evolution of law by state practice.”21 In a 1989 article in the Yale Journal of

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Public Order of the Oceans, supra note 5, at xxxii–xxxvii (Introduction to the Reissue). Ibid. at xxxviii. See also William T. Burke, A Report on International Legal Problems of ­Scientific Research in the Oceans (Columbus, Ohio: Ohio State University, 1967). University of Washington School of Law, uw Law: On the Waterfront (Spring 2008), at 44. Burke’s emphasis on the defining value of state practice differed from those of another prominent law of the sea scholar, D.P. O’Connell, who lamented the growing reliance on state practice without regard to the legitimating role of opinio juris supporting the practice. See D. P O’Connell, The International Law of the Sea (Brill/Nijhoff, 2014). Statement by the President on United States Oceans Policy, Weekly Compilation of President Documents, 19: 383 (Mar. 10, 1983). Public Order of the Oceans, supra note 5, at lxi (Introduction to the Reissue).

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International Law22 criticizing the law of the sea sections of the recently published Restatement (Third) of the Foreign Relations Law of the United States,23 he chastised the reporters for their failure to cite evidence of actual state practice to support their assertions that the non-seabed articles of the 1982 Convention reflected customary law. At a Law of the Sea Institute conference roughly ten years later he spoke of the importance of state practice in treaty interpretation and ­application when, referring to the 1982 Law of the Sea Convention, he declared that “[o]ver time the practice is what determines the purport of the treaty.”24 Professor Burke was well known—some would say notorious—for his views on whaling. In response to the International Whaling Commission’s 1982 vote to impose a moratorium on commercial whaling and its 1994 vote to establish the Southern Ocean Whale Sanctuary, Bill argued that sustainable whaling was fully consistent with international law and the available science. He took his case for sustainable whaling to the wider public in a 1999 article in The ­Atlantic (co-authored with William Aaron and Milton Freeman).25 Burke here rejected, as being unproved, the popular view that whales were intelligent, and was deeply critical of the anti-whaling movement and the trend of recent ­decisions by the International Whaling Commission.26

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William T. Burke, “Customary Law of the Sea: Advocacy or Disinterested Scholarship?” Yale Journal of International Law, 14 (1989): 508. Restatement (Third) Foreign Relations Law of the United States (American Law Institute, 1987), Part v, §§ 501–523. Professor Louis Henkin was the chief reporter. Professor Louis Sohn served as an associate reporter for the law of the sea sections. William T. Burke, “State Practice, New Ocean Uses, and Ocean Governance under ­u nclos,” in Ocean Governance: Strategies and Approaches for the 21st Century, ed. Thomas Mensah (Law of the Sea Institute, 28th Annual Conference, 1994) (Honolulu: Law of the Sea Institute, 1996) 222 (emphasis added). William Burke, et al., “Flouting the Convention: The ongoing campaign to ban all ­commercial whaling is driven by politics rather than science, and is setting a terrible precedent,” The Atlantic (May 1999). Two years later, presented his views on whaling regulation and especially the iwc moratorium, which he deplored, in a more conventional academic format, in Burke, “A New Whaling Agreement and International Law,” Toward a Sustainable Whaling Regime, ed. Robert L. Friedheim (Seattle, Washington: University of Washington Press, 2001). With the passing of Patricia Birnie on February 7, 2013, the law of the sea community lost yet another of what the ocean law community remembers as its “Greatest Generation” of scholars and jurists. It should be noted that Birnie held vastly different views on whaling from those of Bill Burke.

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Professor Burke’s standing in the law of the sea community has been amply confirmed by the many testaments to his teaching and scholarship expressed over the years. His one-time teacher, mentor and co-author, Myres McDougal, wrote in 1968 that one “can only speak of Bill in superlatives … Preeminently successful in both [scholarship and practical affairs] … If you want the best in every way, you have it in Bill.”27 Shortly after Burke’s passing, his long-time University of Washington colleague and close friend, the late Edward Miles, declared that “Bill Burke has been the brightest star in the firmament of the international law of the sea since the early 1960s, and even in retirement, no one comes close to his achievement.”28 Ted McDorman, Bill’s successor as editorin-chief of Ocean Development and International Law, acknowledged in that journal’s memorial to him Burke’s (and Jon Jacobson’s) “enormous contributions to the scholarly community” and noted that his “loss will be felt by all.”29 Following a memorial and celebration of Professor Burke’s life at the University of Washington shortly after his death, Evelyn Meltzer, a former Law and Marine Affairs student who later served as Chief of Marine Policy for Canada’s Department of Fisheries and Oceans Maritimes Region, wrote in the Ocean Yearbook: Professor Burke was a colossus of a man. He was short in stature but a giant in every other respect—his legendary intellect, his enormous kind heart, his prodigious energy, his superhuman ability to sustain his focus on a task or a problem, his insatiable interest in and knowledge of an i­nordinately wide and diverse range of topics … Amongst the ­international marine law community he was the pre-eminent authority and scholar.30 Another former student, Texas A&M Professor and losi member, Dr. Richard McLaughlin, wrote: It was my honor to be one of Bill’s former students and graduate research assistants. He stepped in and provided me with financial assistance when 27 28 29

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Quoted in “William T. Burke (1926–2014): In Memoriam” Ocean Yearbook (ed. Aldo Chircop, 2015), 29 ix. Quoted in On the Waterfront, supra note 14, at 44. See “William T. Burke (1926–2014) and Jon Jacobson (1939–2014): In Memoriam,” Ocean Development and International Law, 46 (2015). The tribute was extended to both Burke and Jon Jacobson, another long-time contributor to the Law of the Sea Institute, who passed away on August 15, 2014. “William T. Burke (1926–2014): In Memoriam,” supra note 23.

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I desperately needed it and helped me find my first job in the field of marine affairs. Throughout his life he remained available to me whenever I needed guidance, as I know he did for a generation of students who attended his ll.m. program at the University of Washington. I will remember Bill with profound fondness and respect and wish all who loved him my deepest condolences. The Hon. David Attard, Judge of the International Tribunal for the Law of the Sea and Director of the International Maritime Law Institute, wrote in the Times of Malta on August 10, 2014: Professor William T. Burke[’s] sudden death is greatly mourned by the entire international community … Following the publication of his first book The Public Order of the Oceans (co-authored with Myres S. McDougal) in 1962, Prof. Burke was recognized as the outstanding authority on international law of the sea and remained a scholarly and policy leader on the world scene for many years … Prof. Burke was also a supporter of the academic activities of the International Maritime Law Institute. On behalf of the imo International Maritime Law Institute, I wish to express my heartfelt condolences to his family for their sad loss. Past and present directors of the Law of the Sea Institute have shared their memories of Bill’s contributions to the Institute and to the wider law of the sea community. Bernard H. Oxman, the Richard A. Hausler Chair Professor of Law at the University of Miami and the only American to serve as judge ad hoc on both the International Court of Justice and the International Tribunal for the Law of the Sea, long played a major role in losi’s international conferences and then served as Director of losi while it was hosted by the University of Miami from 1996 to 2002. He writes: H.L. Mencken once defined conscience as “the inner voice that warns us somebody may be looking.” Bill Burke was the conscience of the Law of the Sea Institute. Nothing got by him. Nonsense trembled at his presence. Not only Bill’s outstanding scholarly contributions, but his commitment to the highest standards of excellence, imparted a spirit of candor and intellectual integrity to the meetings and work of the Institute that set them apart from other efforts to transcend the divide between scholarship and policy in the law of the sea. We are all in his debt. Harry Scheiber, the Stefan A. Riesenfeld Professor of Law and History, emeritus at the University of California, Director of the Law of the Sea Institute, and

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our host at this conference, writes of Bill in both personal and institutional contexts, as follows: The presence of Bill Burke at losi meetings or in any other legalacademic or policy conclave, almost inevitably guaranteed liveliness of debate involving a respectful but forceful challenge to received wisdom and/or well-intended (but to Bill, misguided) innovative ideas! He was respected in the global ocean affairs community as a uniquely learned, eloquent, and committed scholar. Friends remember Bill for his kindness in personal matters but resolutely unsentimental intellectual approach to the law. It was an honor and a privilege for losi to present Bill with a special award for “exceptionally distinguished contributions to ocean law and policy” in the form of an engraved Tiffany bowl—one of only three that were presented during the Berkeley-losi period (the others being to the late Bob Knecht and to Judge Tullio Treves). Bill’s scholarly contributions to losi publications and conferences were exceeded in number and importance by those of no other participant, over the years, from the first conference (when he served as Lew Alexander’s right hand) to nearly the end of his life, almost half a century later. But little known is the fact that he also had a major part in the organizational history of very recent years, for in 1999, when the Institute was encountering financing problems, he took the central role, generously joined by Bernie Oxman (then director at losi-Miami) in opening discussions with us at Berkeley Law as to the possibility of a transfer of the Institute’s base. He carefully explored the idea with other board ­members, Lew Alexander, and some major figures in the field internationally, both within and beyond the losi governing circle. Bill then laid out the path for a legal shift to the new status for losi as a research unit under ­jurisdiction and housed at the University of California School of Law. We at Berkeley thereby have been thus uniquely beholden to him. Our efforts in losi at Berkeley during the years that followed the change have been devoted to pursuit of scholarly activities in the spirit of excellence and dedication that were exemplified by Bill Burke’s own career. David D. Caron, Co-Director for ten years (with Professor Scheiber) of the Law of the Sea Institute, the C. William Maxeiner Distinguished Professor of Law (Emeritus) at the University of California, former President of the American Society of International Law, and Professor of Law (and, during 2013–16, Law Dean) in the Dickson Poon School of Law in King’s College, London, has commented:

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For me, Bill was marked by a mischievous smile, a charming laugh and a razor sharp mind. He was warm and supportive but ultimately never compromising on intellectual inquiry. If Bill wrote on something, I felt I  needed to understand his view because I was sure he applied his ­immense intellect to the question and it was worth study. Through his writing, teaching and participation in the Law of the Sea Institute, Bill Burke left our generation with a legacy of his students—scholars, teachers, government officials, and legal practitioners, a head of state and an international jurist—all very well equipped to serve as stewards of the Public Order of the Oceans. The Institute and his colleagues globally will surely miss his always insightful and oftentimes spirited contributions. At his death in 2014, Bill was survived by Feliciana Burke, his wife of 55 years; his children William V. Burke of Honolulu, Hawai’i, and Liza E. Burke of Seattle, Washington; his three grandchildren and his great grandson.

chapter 5

Lewis M. Alexander, Modern Master Mariner of the Law of the Sea John Briscoe The programs and publications of the Law of the Sea Institute (losi) have involved a remarkable number of intellectual giants over the course of losi’s half century of activities. But no one in that number was more influential in shaping the contours of ocean studies than the organization’s co-founder, Lewis M. Alexander. Together with his faculty colleagues, John Knauss and Dale Krause, at the University of Rhode Island, Professor Alexander went on from his work in putting together the initial losi meeting in 1966 to provide inspiration and practical direction of the remarkable programs of losi during most of the ensuing dozen years during which its base remained at his university. Lew Alexander was one of the great political geographers in modern history. He was born in Summit, New Jersey, in June 1921. He received his Bachelor of Arts degree at Middlebury College in Vermont in 1942, then enlisted in the u.s. Army, serving for the duration of World War ii in the Army Air Corps. After discharge from the military at the war’s end, he undertook advanced study in the field of geography at Clark University, in Massachusetts, earning his m.a. in 1948 and Ph.D. in 1949. After a year as an instructor in Hunter College, in New York City, he was appointed assistant professor on the faculty of Harpur College of the State University of New York, in Binghamton, rising through the professorial ranks during the years 1950 to 1960. In the latter year, he accepted appointment as full professor in the Department of Geography in the University of Rhode Island, where he would long serve as department chair and was instrumental in developing in an interdisciplinary graduate program in ocean affairs.1 It was at Rhode Island that his passion for the law of the sea bloomed. This was an era of fierce interest, intellectual and political, in what we call the law of the sea—an era not unlike the early 17th century during the age of discovery,­ * Distinguished Senior Visiting Scholar at the Law of the Sea Institute at Berkeley Law, Adjunct Professor of Law at uc Hastings, and senior partner at Briscoe Ivester & Bazel llp in San Francisco. 1 American Men and Women of Science, 13th edition (New York: R.R. Bowker, 1976): Vol. i, p. 46.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_007

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the age of Hugo de Groot, or Grotius, who published his Mare Liberum in 1609, the age of John Selden, whose Mare Clausum appeared in 1635. Consider what was occurring in the law of the sea in the postwar years from 1945 onward. First, only weeks after Japan’s surrender, the u.s. Government administered a shock to foreign ministries everywhere in the international community of nations by the issuance in September 1945 of the so-called Truman ­Proclamations. ­Famously, one of the proclamations declared u.s. “jurisdiction and control” over the seabed resources of the continental shelf, thus challenging the traditional three-mile limit widely (though not universally) adhered to internationally; the other proclamation similarly broke radically with another element in the “freedom of the seas” doctrine by asserting the intention of creating fishery “conservation zones” in which u.s. authority would be exercised (either unilaterally or in joint programs to be negotiated with other powers) over fishing operations in ocean waters far out beyond the three mile line offshore of the United States.2 This ostensibly sweeping renunciation of inherited ocean-law doctrine, announced by the world’s superpower State at a moment of authentic hegemony, served as the trigger to a rapid destabilization of the inherited legal order: E ­ ncouraged by the Truman Proclamations, numerous other coastal states, led by a cluster of South American nations’ initiatives, announced extensions ­beyond three miles of their varied offshore jurisdictions; and the beginning of the modern “ocean enclosure movement” was under way, gathering momentum at a level that assured there was no possibility of wholesale reversal of the trend.3 Secondly, in response to the ongoing destabilization of ocean law doctrine, the International Law Commission was created by the General Assembly in November 1947, and charged with proposing codification of selected aspects of international law. Two years later the Commission announced its first subject for study would be what it termed regimes of the high seas. Thus it engaged during 1952–54 in the drafting of proposed treaty articles on the territorial sea, and proceeded with work on draft articles on the contiguous zone and the continental shelf. In 1956 the commission finally delivered to the un General Assembly its report on the regime of the high seas and on the regime of territorial waters, including a draft convention of 73 articles. The General Assembly

2 See Anne L. Hollick, us Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981): 18–61; Lawrence Juda, International Law and Ocean Use Management: The ­Evolution of Ocean Governance (London and New York: Routledge, 1996): 93–115. 3 Hollick, us Foreign Policy, 62–94.

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then voted to convene a Conference on the Law of the Sea, which was held in Geneva in 1958.4 A state of intensifying ferment arose in the academy and in diplomatic offices globally, as preparations were made for the Conference. For no convening of the nations of the world to consider a comprehensive treaty on the law of the sea had occurred since the unsuccessful Hague Conference for the Codification of International Law, called by the League of Nations in 1930. In the United States Department of State, the Legal Adviser’s Office, led by brilliant lawyers such as Raymund T. Yingling, produced more than a thousand pages of deeply researched and richly documented memoranda on every facet of the law of the sea, from the notion of a juridical continental shelf, of a “­marginal” or what we today call “territorial” sea, to the question of what constitutes a bay, in the legal sense and, of course, the maximum permitted breadth of a ­territorial sea.5 That first Geneva conference in 1958, unlike the 1930 League of Nations Conference for the Codification of International Law, produced four conventions as we know: on the high seas, the continental shelf, on fishing and conservation of the living resources of the high seas, and on the territorial sea and the contiguous zone. Producing these four conventions, though the number of States ratifying them remained small for many years, was a triumph for those who, ­after the collapse of the League of Nations, still sought an international order to try to prevent another world war.6 The Senate of the United States gave its “advice and consent” to the four conventions on May 26, 1960, and in short order all four went into force. But these four conventions did not provide rules for all matters that had been on the table. The brightest, most blaring omission was an agreement on the breadth of the territorial sea.7 And so, in 4 Ibid., 129–153; D.H.N. Johnaaon, “The Preparation of the 1958 Geneva Conference on the Law of the Sea,” International and Comparative Law Quarterly 8 (1959). 5 This rich trove of State Department scholarship has never been published, to my knowledge. Snippets from the memoranda, though, can be found in the pages of Volume 4 of Marjorie Whiteman’s Digest of International Law (Washington, d.c.: u.s. Dept. of State, 1963) that ­pertain to the law of the sea. 6 A prominent advocate of a comprehensive order for the oceans, at that time, was the American scholar Philip C. Jessup, professor of law at Columbia University and the rapporteur for the Geneva Conference. His monumental work on ocean law, The Law of Territorial Waters and Maritime Jurisdiction (New York: Jennings, 1927) was a landmark in the emerging literature of the field. He would be appointed as judge on the International Court of Justice in 1961, serving until 1970. 7 The principal dispute was between the United States, which (in parallel with the United Kingdom) wanted the nations of the world to hew to a narrow three-mile belt of territorial waters, and other nations, including the Soviet Union, which wanted a greater distance,

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1960 the United Nations convened a second conference on the law of the sea to consider the question of the maximum permissible breadth of the territorial sea, as well as a subsidiary question, fishery limits. As is well known, that conference failed to achieve agreement on the questions; the six-plus-six compromise proposed by Canada and the United States failed by one vote on April 26, 1960.8 This was the state of affairs in the global ocean law debates at the time when Lew Alexander—still young in his remarkable academic career—took up his professorial post at Rhode Island. He soon became deeply attracted to an immense question in ocean studies and law that remained unresolved in the spring of 1960, a question that would long fester: University of California, Berkeley, professor John L. Mero roiled the international waters late that year with his publication in Scientific American of a paper describing the riches ­lying on the deep seabed in the form of what we call manganese nodules, first discovered during the historic scientific voyage of the h.m.s. Challenger between 1873–76.9 To whom did such resources, lying on the floor of the high seas, belong? Were they res communis under international law, or res nullius, the property of no one but the taker? Neither Selden nor Grotius had addressed the question. Nor did any of the four Geneva conventions of 1958. Seven years later the Maltese ambassador to the United Nations, Arvid Pardo, gave his famous address to the First Committee of the General Assembly on November 1, 1967, in which he urged that the area “underlying the seas beyond the limits of present national jurisdiction” be declared “the common heritage of mankind,” and that an international institution be established to regulate exploration and exploitation of the seabed.10 Pardo’s speech has become ­customarily cited as marking the beginning of the period leading to the convening of The Third United Nations Conference on the Law of the

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in some instances 12 miles. Article 6 of the Territorial Sea Convention concerns the “outer limit of the territorial sea.” It describes the methodology to be used in delimiting the outer limit of the territorial sea (an envelope line, as opposed to a parallel line or “trace”) but it does not specify an outer limit of any distance. Arthur Dean, “The Second Geneva Conference on the Law of the Sea: The Fight for ­Freedom of the Seas,” American Journal of International Law 54 (1960): 772, 776–777; ­Aaron Shalowitz, Shore and Sea Boundaries i (u.s. Dept. of Commerce 1962), pp. 270–275. Mero, “Minerals on the Ocean Floor,” Scientific American. 203 (December 1960): 64. Mero later published a book, The Mineral Resources of the Sea (Elsevier Oceanography Series, Vol. i) (1964). John Briscoe and JoLynn Lambert, “Seabed Mineral Discoveries within National Jurisdiction and the Future of the Law of the Sea,” University of San Francisco Law Review 18 (Spring 1984), 433, 452, fn. 70.

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Sea.11 Anticipating that event, President Richard Nixon of the United States on February 18, 1970, delivered his first Annual Message on Foreign Policy to the Congress, in which he declared, “The most pressing issue regarding the law of the sea is the need to achieve agreement on the breadth of the territorial sea … We also b­ elieve it important to [establish] an internationally agreed boundary between the continental shelf and the deep seabed, and on a regime for exploitation of deep seabed resources.”12 On May 23, 1970, Nixon proposed a 12-mile territorial sea, a 200-meter depth limit on continental-shelf claims, and an international regime for the exploitation of seabed resources beyond the 200-meter limit.13 In that year the General Assembly called for the convening of a Third Conference on the Law of the Sea, and its first substantive session was held in ­Caracas between June 20 through August 29, 1974. Meanwhile, the Soviet s­ ubmarine K129 mysteriously disappeared in the Pacific, and John Craven, a u.s. Navy marine scientist of legendary reputation (who would later became director of the losi while it was based in the University of Hawai`i), was o­ rdered to find it—which he did, employing ingeniously and in deep secrecy, Halibut, the nuclear spy submarine he had himself developed. The cia then commissioned the building of a special ship, the Glomar Explorer, to pluck the Soviet submarine from the bottom of the ocean. To cover the true mission of the ­Explorer, a magnificent hoax was constructed: The vessel was mining manganese nodules. The hoax no doubt fooled the Soviets not one whit, but all other nations at the Third United Nations Conference on the Law of the Sea were most likely fooled, because the debate over rights to deep-seabed ­resources became the most fiercely argued area of dispute at the eight-year-long Conference. In fact, the geographic area in question (the area beyond national jurisdiction), ­became known in Orwellian fashion as “The Area,” as embodied in Part xi of the Convention that emerged.14 11

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On predecessor statements and historical moments when “common heritage” arguments or phrases were invoked, see H. Scheiber, Chapter 1, supra. For close analysis of the negotiating processes that culminated in the signing of the 1982 unclos, see infra Chapter 7, by Willy Østreng. U.S. President, Report to the Congress, u.s. Foreign Policy for the 1970s, February 18, 1970; also Department of State Bulletin (March 29, 1970) p. 62. u.s. President, Oceans Policy Statement, May 23, 1970, available at: www.state.gov/ documents/organization/180010.pdf; R. Krueger, “The Background of the Doctrine of the Continental Shelf and the Outer Continental Shelf Lands Act,” Natural Resources Journal 10 (July 1970), 442, 485–494. Obituary for John Craven: “The Silent War, 20,000 feet under the sea,” The Economist, February 28, 2015, p. 82. For the activities of losi during the years when it was based in Hawai`i, see Chapter 2 by Sherry Broder, in this volume.

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Eight years and eleven sessions later (the days of the sessions were in total equivalent to 93 weeks), the Convention on the Law of the Sea was done and opened for signature on December 10, 1982. Fiji filed its articles of ratification first, on that same day. Exactly three months later, on March 10, 1983, President Ronald Reagan declared he would not sign the Convention on behalf of the United States of America. The United States, of course, has yet to ratify the Convention.

Lewis Alexander’s Corpus of Scholarship and His Public Service

It was into this swirling maelstrom of the developing order of the oceans, the Law of the Sea, that Lew Alexander aimed his career in the years after World War ii. At the University of Rhode Island, he revised and published an updated edition of World Political Patterns,15 a major book he had written in 1957, which already had become a standard textbook in political geography; and he played the key role in establishing his university’s Masters of Marine Affairs program. In 1965, he and John Knauss, dean of the university’s School of Oceanography, and their colleague Dale Krause founded the Law of the Sea Institute and ­began holding annual conferences. In 1968 his great article “Geography and the Law of the Sea” was published in the Annals of the American Association of ­Geographers.16 He plunged into new research areas in ocean studies, ­publishing widely influential works on marine ecosystems and on regional ­approaches to marine management well before those concepts were in vogue among the world’s scientists. In 1967 Alexander edited The Law of the Sea: Offshore Boundaries and Zones, a book of the proceedings of the initial losi conference.17 Also in 1967, f­ ollowing a term as visiting research fellow at Ohio State University, he was a­ ppointed deputy director of the Commission on Marine Sciences, Engineering and Resources, commonly called the “Stratton Commission,” recently created by Congress. The commission’s mandate was to assess the interests of the United States in both the coastal zone and offshore areas. Its report, Our Nation and the Sea, released in January 1969, set forth 120 recommendations on policy and bureaucratic structural reforms; and it formed the framework for u.s. oceans

15 16 17

2nd ed., Chicago: Rand McNally, 1967. Vol. 18 (1968): 177–197. Columbus, Ohio: Ohio State University Press, 1967.

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policy for decades to come. One direct result of the Commission’s work was the creation of the National Oceanic and Atmospheric Administration.18 In the late 1960s and early 1970s the annual Law of the Sea Institute conferences, held in Rhode Island and at other sites globally, attracted the foremost law of the sea experts from around the world. Following a day of presentations at the Rhode Island meetings, Lew would host the attendees in his home for an evening of drink, food, drink, camaraderie, and drink. These losi conferences served in an informal way as preparatory meetings for the Third United Nations Conference on the Law of the Sea, which convened in 1974. Those whom fate has sentenced to edit large collections of academic papers, such as the present book, will feel a particular pang of empathy here: few have experienced editing papers and proceedings on the scale that Lew did—comprising the first seven of the annual conferences of the Law of the Sea Institute, those held in the years 1965 through 1972. The Office of the Geographer in the Department of State has been held by four of the world’s foremost maritime political geographers. The first was S.  Whittemore Boggs, the second G. Etzel Pearcy, the third Robert D. Hodgson, and the fourth Lew Alexander, who was appointed to the position in 1979 when Bob Hodgson died unexpectedly. Lew served in that position for four years, assisting in the preparation of the American case in the u.s.–Canada Gulf of Maine litigation in the International Court of Justice, and participating in the u.s.–Soviet maritime boundary negotiations regarding the Bering Strait ocean area. He left to return to Rhode Island in 1983, the year President Reagan ­announced he would not sign the Convention, when a wry joke made its rounds in the corridors of the State Department: “Law of the sea? What law of the sea?” In the early 1990s Lew collaborated with Jonathan I. Charney in editing— and writing substantial portions of—a monumental multi-volume work, International Maritime Boundaries, co-published by the American Society of International Law and Brill/Nijhoff.19 Contributors to this work included J.R. Victor Prescott, Choon-ho Park, Erik Franckx, and Bernard H. Oxman, all of whom contributed importantly to the Law of the Sea Institute publications over the years since the founding. Besides the books, papers and monographs he wrote, 18

Harry N. Scheiber, “The Stratton Commission: An Historical Perspective on Policy Studies in Ocean Governance, 1969 and 1998,” in Robert W. Knecht, Biliana Cicin-Sain and Nancy Foster, eds., The Stratton Roundtable: Looking Back, Looking Forward (Washington, d.c.: National Ocean Service, noaa, 1998): 31–38; Edward Wenk, Jr., The Politics of the Ocean (Seattle: University of Washington Press,1972). 19 Vols. i and ii (1993).

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there is the prodigious body of scholarship in the law of the sea that he edited. Most notable for the losi organization are the aforementioned collected proceedings of the early annual conferences, along with specialized workshops, and other occasional meetings of the Institute in those early years.

Some Personal Recollections

Particularly for readers who did not know Lew Alexander, this remembrance, if it were confined to a recitation of his academic life and times, would leave a too-incomplete picture of the man. He was warm-hearted to all, enjoyed good times over drinks, and was possessed of an impish sense of humor. I’ll relate just two personal anecdotes, and then let the words of others who knew him well convey a fuller sense of the man Lew was. In 1982 I had occasion to take Lew’s deposition. He was to be an expert witness for the United States in a trial of a case brought by the Federal Government against my client, the State of Alaska. At this time the United States adhered to a three-mile territorial sea, and the u.s. Government took the position that in areas like the Alexander ­Archipelago of southeast Alaska, where the islands are closely spaced—some of them just under six miles apart—the territorial sea was to be strictly delimited around each island. The result in some cases was a long blind alley or “cul-de-sac” of high seas penetrating walls of surrounding territorial waters. In other cases, an isolated “doughnut hole,” or “enclave” of high seas, was left surrounded by territorial waters. Alaska thought this position absurd, and not legally justified. During his deposition, I asked Alexander how a mariner could exercise his high-seas freedoms, one freedom at time, in such cul-de-sacs and and enclaves. When I got to the exercise of high-seas freedom to lay cable, I asked how one could do that in an enclave of high seas. He thought for a minute or two, then grinned and answered, “In a coil.” Another time, in the latter 1980s, Myron Nordquist was to chair a panel at one of those large, multi-disciplinary oceans conferences, the kind with many concurrent sessions, this one to be held in San Diego. On Myron’s panel was a Soviet speaker, who five days before the conference was forbidden by the State Department to travel to San Diego. Myron was desperate to replace his missing panelist, and asked me to pitch in. I protested that I couldn’t just read the fellow’s paper, and Myron assured me I could speak on any subject I wanted to, and then urged me to address America’s yet-unresolved ­maritime-boundary issues (among others, three with Canada and one with the Soviet Union), I ­further protested that I’d need some substantial time to prepare well for such a topic, but he assured me I could “wing it,” and in any event that very few

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people at the conference would choose to attend our session over the far more sexy other choices. Reluctantly, I agreed. The morning I was to fly down for the conference, I became miserably ill. But I couldn’t let my friend Myron down, and so I made the agonizing voyage to San Diego, composed myself as well as I could, and took my seat at the dais in preparation for the session. As it neared the start time, the room filled to standing-room-only, and I grew restive. I grew more apprehensive when I saw who had seated himself in the front row, eight feet from me—Lew Alexander. So there was the world’s foremost authority on the subject that I, so poorly qualified, was to pontificate on. Fortunately, Lew’s great grace and humor were well known to me. When it was my turn to speak I introduced Lew to the audience, explained that he was the true authority on the topic of my paper, and instead of delivering that paper I turned my didactic drivel into an interview of the eminent Dr. Alexander. Many friends and former students of Lew have shared their own recollections of him. Three in particular stand out, those of Admiral Thomas Marnane, graduate of the United States Naval Academy, who obtained a graduate degree from Alexander’s Department of Marine Affairs; Robert W. Smith, a colleague of Lew’s in the State Department and in academia for many years; and losi Director Harry Scheiber. Paraphrasing their words would deprive the reader of something essential about Lew. And so I quote them. Admiral Marnane writes as follows: Lew recruited, and interviewed me face to face as a part of filling the first Marine Affairs program at uri. Six of that first class was u.s. Naval ­Officers then attending the Naval War College at Newport. All already had graduate degrees. We had an aviator, two submariners (one also a naval architect—me), a civil engineer, a surface ship driver and a cartographer. The mix of the rest of the class of about 15 included a fish and wildlife expert, a maritime magazine editor (Seabrook Hull by name (yes ­really)), an oceanographer, a Defense Department executive, etc. An eclectic group—we had great discussions. Lew and Dean Knauss (Oceanography) selected our courses and they along with three other Department heads and three or four regular professors taught our classes. We mostly wrote papers and participated in seminars and read and read and read some more. Lew was one of those people that you could listen to forever and never hear the same thing twice. His seminars were like drinking from a fire hose and many were ahead of their time…. He was messianic in his approach to e­ stablishing a workable, common sense approach to the Law of the Sea and a­ nything

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else that preserved, organized rationally, applied common sense to or whatever words you want to use gave order to our oceans and seas. His overriding philosophy has contributed to most of mine and those of many others later thinking about taking care of, defending and preserving things in our world to make it a better place … [Lew was] a very inspirational guy who was so comfortable to be with and work with that you didn’t fully realize at the time how hard you were working. The comments offered by Robert W. Smith reflect a similar admiration and affection for Lew: I was in the final stage of my Ph.D. studies at the University of North Carolina, Chapel Hill, in the fall of 1974 when Bob Hodgson called me to offer me a job in the Office of the Geographer. One nanosecond later, I accepted the offer … [but] there was one little snag. Hodgson wanted me to start by mid-January 1975, to “hold down the fort” as he was scheduled to head to Geneva for about eight weeks of los negotiations. Well, I still had about two courses to complete and then my oral exams; and of course, if one leaves a Ph.D. program prior to completing the orals—that is not good. Well, when I explained my dilemma to Lew Alexander (who was thrilled at my employment opportunity) he quickly said that he had a sabbatical for the spring semester of 1975 and that he would be happy to “sit in my chair” at State to cover me. Given that he already had the needed security clearances it took about three days of phone calls among Lew, me, and Bob Hodgson to make this happen. I stayed in Chapel Hill, got through my oral exams, got my new dissertation topic approved (on the North Sea continental shelf cases), and then Mr. Smith went off to Washington to start May 1975 (the day the first los negotiating text was published)—and Lew happily headed back to uri. Professor Scheiber, director of losi at Berkeley, has provided a third recollection that is of special interest in the context of this memorial. Harry recalls the disappointment that was felt by the participants when Lew could not be present as the uc Berkeley Law School held its first meeting as the new base institution for losi: the conference schedule coincided with bad weather on the Atlantic Coast, so that Lew had no choice but to cancel his plans to attend: Lew was genuinely disappointed, as became evident in a brief phone conversation with me; and soon afterward he wrote to the Berkeley ­organizers in the gracious letter-writing style for which he was known,

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explaining that at his age, then past 80, he had already begun to find longdistance travel difficult in the best of circumstances. The prospect of flight delays, transfers, and the chaos that usually bedeviled storm-struck airports, meant that he had decided, with encouragement of his family, that he needed to stay safely at home in Rhode Island. In the ensuing decade, however, Lew closely followed the activities of the losi; and at every one of our conferences there was recognition faithfully expressed as to his earlier leadership role (and John Knauss’s as well). There was also always a widely held sense that the Institute’s ongoing work was in considerable measure a tribute to Lew’s intellectual contributions and organizing genius. Lewis Alexander died at the age of 91 on May 9, 2013. He was survived by his wife Jacqueline, two children and four grandchildren—and, of course, by thousands of the former students, colleagues, and friends who hold dear their memories of his intellect, warm wit, and easy collegiality.

Part 2 Perspectives on unclos

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chapter 6

The Strategic Foundation of the Law of the Sea James Kraska Introduction Policymakers and scholars occasionally have searched for the overarching historical source or central purpose of the international law of the sea. The quest to identify the foundation of the law of the sea is, like all models, a shortcut to decipher and explain complex phenonomena by discerning their essential or theoretical underpinning. This chapter reviews the the strategic foundation of superpower maritime interests in shaping the 1982 United Nations Convention on the Law of the Sea (unclos),1 especially for passage through straits used for international navigation—an aspect of navigational rules of crucial importance in light of the role of nuclear submarines in the superpower strategic postures and interests. International law continues to reflect the balance of interests in the law of the sea to protect strategic issues of maritime mobility proclaimed by the Soviet Union and the United States. In particular, the strategic foundation of the law of the sea emerged from a shared Soviet-American strategic nuclear imperative to protect intercontinental ballistic missile submarine operations and thereby maintain the nuclear balance. The “balance of terror” required that the populations of both sides held the other hostage.2 For the system to be stable, neither superpower could possess an effective first strike capability.3 The strategic nuclear balance was the cornerstone of world politics for nearly fifty years. * Chairman and Howard S. Levie Professor in the Stockton Center for the Study of International Law at the u.s. Naval War College, Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization, Distinguished Fellow at the Law of the Sea Institute, University of California Berkeley School of Law, and Senior Fellow, Center for Oceans Law and Policy at University of Virginia School of Law. 1 United Nations Convention on the Law of the Sea, Montego Bay Dec. 10, 1982, entered into force Nov. 10, 1994, un Doc. A/CONF.62/122, 21 i.l.m. 1621–1354 (1982), 1833 u.n.t.s. 397. 2 Thomas C. Schelling, “The Strategy of Conflict Prospectus for a Reorientation of Game Theory,” The Journal of Conflict Resolution 2 (Sept., 1958), 203–264, at 231. 3 Kenneth N. Waltz, “Nuclear Myths and Political Realities,” American Political Science Review 84 (Sept. 1990): 731–745 and Robert Jervis, “Cooperation under the Security Dilemma,” World Politics 30 (Jan., 1978), 167–214, at 180.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_008

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The grand bargain during the Third United Nations Conference on the Law of the Sea to expand the territorial sea to 12 nautical miles (nm), while creating the new regime of transit passage through straits used for international navigation overlapped by the territorial sea assured unimpeded transoceanic mobility. The superpowers were satisfied that their strategic nuclear submarines could safely and secretly move from sea to sea.4 As submarines were (and are) the most survivable leg of the nuclear triad of both states, ensuring underwater transit through straits was key to nuclear parity and the maintenance of the bipolar system.5 The thesis that transit passage through straits used for international navigation is the foundation of the contemporary law of the sea may be seen as a corollary of the long-standing principle of freedom of the seas more generally.6 The paramount importance of the strategic nuclear passage was the tail wagging the dog of freedom of the seas. In other words, because of the nuclear balance, ensuring underwater mobility for ballistic missile submarines became not only the greatest element of freedom of navigation for the superpowers, but was their key stragetic goal during the negotiations for the law of the sea. This foundation of the law of the sea, however, has been largely overlooked as the stature and memory of the Cold War fades in the rear view mirror. This chapter proceeds in five parts. Part i provides a short orientation on the efforts by scholars and policymakers to divine the essence or foundation of the international law of the sea. First, two prevailing approaches are introduced—the “common heritage” thesis, which suggests that the principle tenet of unclos was enshrined in Part xi on seabed mining, and the “economic efficiency” thesis that springs from the “law and economics” movement. Part ii turns toward the strategic thesis or foundation of the law of the sea, and advances the argument that oceans governance has rested on a strategic rationale or foundation. Examples are provided from three distinct epochs in the development of the legal regimes in the oceans based on the experiences of imperial Rome and mare clausum, the European colonial age of discovery and mare liberum, and the United States. Part iii explores the development of the legal regime of transit passage through straits used for international navigation. Transit passage is the crown jewel of navigational rights, and was the critical interest of both ­superpowers 4 John Norton Moore, “The Regime of Straits and the Third United Nations Conference on the Law of the Sea,” American Journal of International Law 74 (Jan. 1980), 77, 88. 5 Dep’t of Defense, Nuclear Posture Review Report (Apr. 2010), 22. 6 Ann L. Hollick, u.s. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981): 186, 271–273.

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during the negotiations for unclos because of the requirement to ensure the secrecy, safety, and security of ballistic missile submarines. Part iv turns toward the bipolar Soviet-American diplomacy during the Third un Conference on the Law of the Sea and charts how the two adversaries came together to champion their common interest in transit passage. Part v concludes that without accommodation by coastal states of the right of transit passage for ballistic missile submarines, unclos would not have been adopted by the Conference. 1

Contending Approaches to the Law of the Sea

The Law of the Sea Covention reflects the principle of freedom of the seas, but it also contains a mutlitude of complementary and sometimes competing interests, including marine resource conservation, marine environmental protection, marine scientific research, a framework for compulrosy dispute resolution, and many others. Because unclos serves so many purposes, divining the central or fundamental character or objective of the agreement is reasonably open to debate. Finding the essential element of so complex and nuanced a treaty may even be said to be faulty methodology, as each part of the multifaceted framework was needed to attact a specific consitutency—individual states or a collection of states—that combined into a quantum of support during the conference that was needed to adopt the Convention. As a “package deal,” unclos is not amenable to a focus on a single aspect or dimension of the treaty. unclos fashions a range of flag, coastal, and port state interests into a coherent regime of maritime governance. The treaty balances and promotes numerous maritime interests, while also being deeply concerned with environmental issues and the founding of a process for dispute settlement; however, this chapter focuses on the grand strategy of the superpowers to maintain freedom of navigation in straits used for international navigation. While many competing interests were at the table, it was clear from the outset that the superpower’s interest in freedom of navigation would have to be accommodated if negotiations were to succeed in producing the treaty, and this interest was a central feature of the bipolar nuclear balance at the time. 1.1 The Common Heritage Thesis My approach is not universally accepted, and other theories of the foundation of the law of the sea periodically appear. The most popular thesis of foundation of the law of the sea is the doctrine of freedom of the seas, from which my theory is derivative. From the rise of Dutch and British maritime power in

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the late-sixteenth century until the Cold War era, oceans law was a product of the doctrine of freedom of the seas.7 In recent deades, however, new and contending narratives of the key organizing principles for the law of the sea have emerged. For example, a strong case has been made that the principle of the common heritage of mankind and a fairer distribution of offshore resources that accommodates developing countries is the key principle of the law of the sea.8 This social justice approach to international organization was launched by the Asian-African conference in Bandung, Indonesia in 1955, where the non-aligned movement and the concept of the “Third World” took root.9 During the 1970s and 1980s, the study of unclos often was reduced to a narrative of a North-South covenant of economic development. Indeed many credit Maltese ambassador Arvid Pardo’s ringing call to action in November 1967 as the beginning of the negotiations of unclos.10 Pardo called for international rules to ensure peace at sea and prevent marine pollution.11 Most significantly and famously, however, he charged the United Nations with claiming­ the wealth of the seabed as the “common heritage of mankind,” thereby becoming the godfather for Part xi of unclos on seabed mining.12 The “common heritage of mankind” addressed the imperative for economic development of newly-independent states during the period of decolonization and non-alignment. The final outcome of seabed mining at the Third un Conference on the Law of the Sea, however, included in Part xi of the treaty an overwrought framework designed along a socialist model complete with mandatory transfers of marine deep sea technology from the developed to developing states. The framework also permitted royalties produced by deep sea bed mining to be funneled to leftist national liberation movements.13 In short, 7 8 9

10 11 12 13

Douglas M. Johnston, The Historical Foundations of World Order: The Tower and the Arena (2008): 51–52. Bradley Larschan and Bonnie C. Brennan, “The Common Heritage of Mankind Principle in International Law,” 21 Columbia Transnational Law Journal (1982–83), 305, 320–326. Peggy Durdin, “Behind the Facade of Asian Unity: For the First Time, Leaders of Most of the Independent Nations of Asia as well as Africa are to Meet,” Neew York Times, Apr. 17, 1955, p. SM9. This effort is now promoted by the Asian-African Legal Consultative Organization (aalco) with headquarters in New Delhi. UN General Assembly Official Records, Twenty-second Session, First Committee, 1515th Meeting, Nov. 1, 1967 and Larschan and Brennan, “Common Heritage,” 305–306 n.1. The common heritage framework is set forth in Part xi, unclos, and specifically identified in article 136, unclos. See also, Larschan and Brennan, “Common Heritage,” 318 n.46. Larschan and Brennan, “Common Heritage,” 327–328 n.80. The original text of unclos permits sharing of financial and economic benefits derived from the seabed mining activities in the Area, “taking into particular consideration the

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the anti-imperialist political overtones of the 1960s left an indelible imprint on the treaty. Consequently, the United States and other Western nations declined to sign the treaty, and it languished from 1982 to 1994 without achieving the required 60 signatures to enter into force. The excesses of Part xi, however, were revised in the 1994 Implementing Agreement. The Implementing Agreement made the treaty compatible with market principles and produced a wave of signatures that brought the treaty into force. The 1994 amendments to Part xi are virtually universally accepted, and have produced a subsequent boom in state accessions. In recent years, the social justice approach has gained new life through the call for an access and ­benefit-sharing regime of marine genetic resources.14 It is no wonder, then, that Pardo’s call for equitable sharing of the common heritage of mankind has been viewed as the central bargain of unclos. 1.2 The “Law and Economics” Efficiency Thesis More recently, scholars Eric Posner and Alan Sykes applied a “law and economics” lens to the law of the sea to suggest that the treaty was designed to maximize efficiency in a quest for global pareto utility. Posner and Sykes champion the Convention as a vehicle tied to economic rationale and focused on market efficiency, as though a single decision maker apportioned rights and duties to maximize global optimality.15 More accurately, Posner and Sykes view unclos as a massive success in management of collective action challenges to maintain dwindling stocks of common pool resources, such as depleted ­fisheries. The tragedy of common pool resources being depleted,16 they argue,

14

15 16

interests and needs of the developing states and people who have not attained full independence or other self-governing status….” Article 162(2)(o)(i). This provision, however, is balanced by the requirement of consensus within the decision-making Council under article 161(8)(d), which suggests that any nation holding a seat on the Council may veto distribution of funds. Para 15(a) of Section 3 of the Annex to the 1994 Agreement relating to the Implementation of Part xi of unclos provides that the nation with the largest economy in terms of gross domestic product on the date of entry into force of the Convention—November 16, 1994—has a seat on the Council. Were it to join unclos the United States would have a guaranteed seat on the Council in perpetuity. Article 5, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2011). Eric A. Posner and Alan O. Sykes, “Economic Foundations of the Law of the Sea,” American Journal of International Law 104 (2010): 569, 570–571. Garrett Hardin, “The Tragedy of the Commons,” Science 162 (Dec. 13, 1968): 1243, 1244.

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c­ ompelled states to agree to cordon off areas within prescribed coastal zones (e.g., the eez) in order to manage the resource more efficiently.17 The economic approach assumes that all nations cobbled together a sense of global community to address a collective problem, a proposition at odds with how unclos was negotiated and an aspirational model of global governance that has yet to be achieved. Substantively, the problem with the Posner-Sykes hypothesis, of course, is that most coastal states lacked even minimal ability to manage their offshore zones, even if unclos granted them the authority to do so. Moreover, while most fisheries are located within 200 nm18 from shore, unclos does not effectively—Posner and Sykes might say “efficiently”— mandate the management of straddling stocks. Fisheries are in much worse shape now than they were when unclos entered into force just two decades ago. Finally, the entire framework for management of the sea bed beyond areas of national jurisdiction (“the Area”) was established to control hard mineral and oil and gas extraction.19 Even now, however, these activities are not economically feasible. Indeed economics underpins creation of the continental shelf regime, but that regime solidified long before unclos with the Truman Proclamation in 1945.20 While the exclusive economic zone (eez) has an economic rationale, and the concept was championed by the States of the developing world in the wake of decolonization, it is not based in Pareto optimality to promote the global good by preserving declining fish stocks, but more on mercantilist coastal State control of those resources.21 In one respect the economic efficiency approach has been incorporated into unclos, and indeed into maritime law more generally. Although Posner and Sykes do not address the idea, economic efficiency is the essential rationale for mandating “internationally accepted standards” that runs throughout the text of unclos, the entire program of work and ensuring treaties, guidelines and codes of the International Maritime Organization. In these cases, maximum efficiency really is a collective motivation for development of the rules because everyone benefits if ships adopt uniform construction, design, equipment and manning standards. 17 18

Posner and Sykes, “Economic Foundations,” 574. A nautical mile (nm) is equivalent to one minute of latitude at the equator and is 1,852 meters or 6,076 feet in length. A statute mile on land is 5,280 feet in length. 19 Posner and Sykes, “Economic Foundations,” 587. 20 1945 us Presidential Proclamation No 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf (1945) 10 Federal Register 12,305. 21 Posner and Sykes, “Economic Foundations,” 584–585.

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Regulation of the global marine transportation system, for example, r­ equires accommodation of only those international rules that are widely accepted in order to promote shipping efficiency.22 Posner and Sykes provide thoughtful analysis, introducing a useful method for understanding unclos, but ­freedom of shipping though common standards, not offshore resource zones, best fits their economic efficiency model. The economic rationale, however, like all economics, is merely one image buried within the broader ­political milieu. U ­ ltimately, the economic issues, much as the other interests reflected in ­u nclos, are merely sideshows to the main feature—securing ­strategic nuclear stability throughout the oceans, and therefore the world. 2

The Strategic Thesis

Oceans law balances exclusive or restricted claims with inclusive or shared uses of the sea. Through a process of authoritative decision among states and other stakeholders the exclusive and inclusive interests at sea form the “public order of the oceans.”23 As described in the classic analysis by D.P. O’Connell, this “competition between the exercise of governmental authority over the sea” and the opposing concept of “freedom of the seas” is the “central and persistent theme” in the history of the international law of the sea.24 The strategic implications of this binary formula shaped the earliest manifestations of oceans law, and were a decisive influence on the terms contained in unclos. Historically, extension of coastal State authority over the oceans was typically co-terminus with the military reach of the coastal state. Indeed, the entire history of oceans law from the ancient period into the contemporary era is marked by the expansion and consolidation of coastal State physical control over the littoral seas, followed in turn by acquisition of legal rights over those areas.25 2.1 The Roman Experience The process of authoritative decision in the law of the sea emerged from the ancient world of Greece and Rome. Emperor Antoninus Pius, for example, is quoted in the Justinian Digest stating: “I am indeed lord of the world, but the 22 Ibid. 23 Myres S. McDougal, and William T. Burke, The Public Order of the Oceans (New Haven: Yale University Press 1962): 51–55. 24 D.P. O’Connell, The International Law of the Sea, Vol. i (Oxford University Press 1984): 1. 25 See generally Stefan A. Riesenfeld, Protection of Coastal Fisheries Under International Law (1942, reprinted, William S Hein & Co., 2000).

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law is the lord of the sea.”26 The Emperor was responding to a high-placed ­patrician who sought the intervention of Caesar in an ongoing admiralty case. Early polities of the Mediterranean set aside exclusive state authority over only miniscule fisheries offshore. For the most part, however, the seas were regarded as under the ownership of no nation. The law of general average rather than political edict governed admiralty cases. This restricted view of state legal power at sea was a function of the limits of state naval power. Greek and ­Roman galleys rarely sailed beyond the horizon nor remained at sea for more  than a  few days. Nights were spent on the beach, and endurance was ­limited to only a few days journey from port due to the requirement for fresh water for the rowers. While Seapower was a rather clumsy tool of national power, it did spread the reaches of the empire throughout the shores of the Mediterranean Sea. The Roman Empire became dominant on the territory of three continents—Europe, Africa, and Asia Minor—by controlling the Mediterranean sea lines of communication that connected them into a coherent network. 2.2 The European Experience The greatest influences on contemporary law of the sea, however, arose much later, at the height of the Renaissance period in Europe. With the fall of Rome, the beginning of a common market emerged from cooperation among the cities and territories of the Hanseatic League. Founded along the Baltic Sea in the Thirteenth Century, the Hanseatic League was composed of German lands, the Low Countries, and Italian city republics that provided impetus for the ­development of international diplomacy. The rules governing trade in the oceans were a precursor to the 1648 Peace of Westphalia and subsequent development of jus gentium or the modern law of nations. Frederick iii who ruled from 1440–1483 was the last emperor crowned in Rome by the Pope. The weakening of the ecclesiastical order, which was accelerated by the Protestant Reformation, encouraged the development of a new source of authority to govern states that was based in law rather than papal decree.27 In the eastern Mediterranean Sea, the Ottoman Empire controlled the land routes to the East, and it never evolved successfully from rowed galleys to wind-driven warships. Portuguese and Spanish explorers sidestepped the Ottoman Empire by rounding the Cape of Good Hope and opened the riches 26 27

Justinian Inst II.1.1 and II.1.5, The Institutes of Justinian (J.T. Abdy & Bryan Walker, eds. & trans., Cambridge, 1876): 78. Lori F. Damrosch et al., International Law: Cases and Materials (4th ed. 2001): xxviii.

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of India and the Far East to Iberian trade. Abandoning the coastal route to beyond the Gulf of Guinea and sailing west to catch the winds to propel them through the south Atlantic, Portuguese seafarers discovered the New World and a new path to the Ancient East.28 The new continents opened the Columbian ­Exchange, the most epochal event in modern history. Spain and Portugal became ­fabulously wealthy, and the Ottoman Empire fell farther behind the West. In the late Fifteenth Century, the Portuguese and Spanish Castilian empires claimed sovereignty over the vast and unexplored oceans of the Americas and Asia. The voyage of Christopher Columbus ignited a controversy over ownership of the newly discovered continents. The division of the world ocean into two spheres—one controlled by Castile (Spain) the other by Portugal—was memorialized by Pope Alexander vi in the Papal Bull Inter Caetera (“Among other [works]”) on May 4, 1493, and adjusted slightly in favor of Portugal in the Treaty of Tordesillas the following year.29 Using a meridian located 370 leagues west of the Cape Verde Islands, which were owned by Portugal, the two powers laid claim to all of the New World. The agreement was extended to the East with the Treaty of Saragossa in 1529, which recognized Portuguese ownership of the Moluccan Islands, the modern day Straits of Malacca and Indonesia. Castile Spain and Portugal proved unable to obtain international acceptance for their claims over the sea. As the Iberian powers extracted vast hordes of gold and silver from the New World and began establishing agricultural colonies, French, Dutch and British sea raiders disregarded the Papal Bull and began targeting Spanish and Portuguese treasure fleets carrying specie back to Europe.30 Flouting the Treaty of Tordesillas, France, the nascent Dutch Republics, and eventually England, began to enter “Spanish” and “Portuguese” waters in the Americas and Asia, disrupting the carrying trade and developing their own colonies in the New World. Excluded from the original Iberian bargain, the emerging maritime states of The Netherlands and England adhered to a 28

29 30

Roger Crowley, The Conquerors: How Portugal Forged the First Global Empire (New York: Random House, 2015): 6–12. See also J.H. Elliott, The Old World and the New: 1492–1650 (Cambridge University Press, rev. ed. 1992), 9; and Benedict Kingsbury, “Gentili, Grotius, and the Extra-European World,” in Harry N. Scheiber, ed., The Law of the Sea: The Common Heritage and Emerging Challenges, (Leiden and Boston: Brill/Kluwer Law International, 2000). Ibid., at 27–28. Stephen J. Hornsby, British Atlantic, American Frontier: Spaces of Power in Early Modern British America (Hanover, n.h.: University Press of New England, 2005), 16–19.

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liberal view of the oceans based on freedom of the seas, a perspective that ignored the exclusive claims of Spain and Portugal. The Bourbon and Hapsburg rivalry engulfed central Europe in the Thirty Years’ War, which constituted the first “world war.” The devastation wrought by the conflict inspired Italian theologian Alberico Gentili and Dutch jurist Hugo Grotius to develop a law of war. The treatises these early masters produced reflected the accepted rules applicable in the global commons. In the early seventeenth century, Grotius penned the classic text animating the tradition of freedom of the seas, a doctrine that repudiated Portugal’s claim of entitlement to the waters of Southeast Asia.31 Regarded as the father of modern international law, Grotius was a rationalist who derived law from evidence in nature as well as universal reason. The Treaty of Westphalia, ending the Thirty Years War in 1648, codified the notion of the inviolability of state borders on land. A pivotal document, the treaty also recognized sovereignty over land areas under individual autonomous rulers, ushering in the era of the modern nation state. Whereas the complex treaty recognized that states exercise complete authority over and are responsible for maintaining security inside their borders, it was manifest that no nation could exercise sovereignty over the oceans. Grotius’ writing during the Dutch War of Independence or Eighty Years’ War (1568–1648) championed access to the oceans for the United Provinces, and his work marks the rise of the first maritime power outside of Latin Europe. Although the concept of freedom of the seas was inherited from Rome and already was part of the lexicon, Grotius and Gentili added a veneer of natural law theology, arguing that the sea was by nature open to all men and its use common to all.32 During the colonial era, the European countries were dominant because they could wield intercontinental power. The relatively open or liberal legal order of the oceans derived from the policy preferences of rather liberally minded maritime states and their geopolitical position as an offshore balancing force in European politics. In particular, the maritime dominance of the Dutch Republic and England had a dispositive effect on the creation and ­maintenance of oceans governance.

31 32

Hugo Grotius, The Freedom of the Seas, ed. James Brown Scott (Oxford University Press, 1916), vii-x. Alberico Gentili, De Iure Belli Libri Tres (James Brown ed., John C. Rolfe trans., Oceana Publications 1964), 90.; see also Theodor Meron, “Common Rights of Mankind in Gentili, Grotius and Suárez,” American Journal of International Law 85 (1991), 110, 113–114.

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2.3 The American Experience From the outset, the United States had two major planks of foreign policy. In the West, beyond the Atlantic seaboard region and then the Mississippi River basin, the country was motivated to fulfill a popular claim to what was termed its “manifest destiny” and settle (after taking by purchase and conquest) the vast regions held by the indigenous peoples and then Spain, France, and ­Mexico.33 In the continental East, freedom of the seas in the Atlantic Oceans and Mediterranean Sea was essential for American trade. Distinguished American historian Samuel Flagg Bemis thus called the doctrine of freedom of the seas the “ancient birthright” of the American Republic.34 Lacking the resources to pay tribute to the North African Barbary principalities to ensure its ­merchant ships were not attacked, for example, the United States fought two conflicts—one from 1802–04 and one in 1815—to ensure freedom of the seas.35 Similarly, the issue of freedom of the seas was at the center of the Quasi-War with France from 1798–1800 and the War of 1812 with England. Writing in the late-nineteenth century, Alfred Thayer Mahan suggested that maritime forces, which freely transit the seas, are an especially flexible instrument of national power, able to assert influence “where the national armies cannot go.”36 During the early- and mid-nineteenth century, the United States did not ­develop a large naval force, with the exception of the Civil War. During the Civil War the Union conducted a strangling blockade against the Confederacy. The Northern blockade was initiated only seven days after the war with the South began. The Confederate guns that bombarded Fort Sumter in Charleston

33

34

35

36

The doctrine of “manifest destiny” was the American idea that the expansion of the ­ nited States from the Atlantic Ocean to the Pacific Ocean was both ideal and inevitable. U Neil Baldwin, The American Revelation: Ten Ideals that Shaped Our Country from the Puritans to the Cold War (New York St. Martin’s Griffin, 2006): 79–98; Frederick Merk and John Faragher, Manifest Destiny and Mission in American History (Cambridge, Mass.: Harvard University Press, 1995). Samuel Flagg Bemis, A Diplomatic History of the United States 4th ed. (New York: Henry Holt, 1955), 875 and Walter LaFeber, The American Age: United States Foreign Policy at Home and Abroad 1750 to the Present, 2nd edition (New York: W.W. Norton; 1994): 277–279, 285, 297, and 303. See Robert Goldston, The Battles of the Constitution: Old Ironsides and Freedom of the Seas (New York: Macmillan Co., 1969) (tracing the 170-year history of the famous ship, concentrating on the Barbary Wars and the War of 1812). Philip A. Crowl, Alfred Thayer Mahan: The Naval Historian, in Peter Paret and Gordon A. Craig, eds., Makers of Modern Strategy: From Machiavelli to the Nuclear Age (Princeton: Princeton University Press, 1986): 444, 462.

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Harbor on April 12, 1861, thrust America into its bloodiest war. President Lincoln declared a blockade against Confederate ports on week later.37 Union naval forces boarded and captured Southern privateers and in international waters—operations that posed a legal paradox. The Confederacy and some European states stated that Union action impaired the right of all n ­ ations to exercise freedom of the seas during peacetime. British Law Officers stated: For the United States to demand the exercise of these belligerent rights [of blockade], and at the same time to refuse a belligerent status to [the Confederacy] was plainly contradictory. In truth the position is as novel and unsound in international law and clearly propounded for the first time for the obvious purpose of giving the United States the advantage….38 Yet neutral European states nonetheless largely complied with the blockade out of practical reasons. In the 1863 Prize Cases, the u.s. Supreme Court upheld the blockade, finding that a state of armed conflict existed between the North and the South, even though the Confederacy was not a sovereign state.39 After the interlude of the Civil War, the Americans, like the British, viewed freedom of the seas as an international public good. The transition from coal to oil increased the range of naval ships, and obviated the need to maintain a worldwide system of coaling stations. Alfred Thayer Mahan offered a theoretical underpinning for u.s. maritime strategy, suggesting the Navy was an especially flexible instrument of national power, able to assert influence “where the national armies cannot go.”40 During the waning years of the Victorian age, the United States was keenly aware of the connection between security and freedom of the seas. In 1895, a Spanish gunboat fired on the American steamer Allianaça bound from C ­ olon to New York, and transiting outside the three-nm limit. The Spanish commanding officer was removed from command and Madrid apologized, leading John Bassett Moore to recount that the incident showed that, [T]he principle of freedom of the seas has lost neither its vitality nor its importance. It may indeed be said that the exemption of vessels from visit and search on the high seas in time of peace is a principle that ­rather 37

Proclamation of President Abraham Lincoln, 19 April 1861, Official Records of the Union and Confederate Navies in the War of Rebellion Vol. v (Rush, et al. eds. Ser. i, 1903): 620. 38 Foreign Office 83,2225, reprinted in Herbert Arthur Smith, Great Britain and the Law of Nations (London: P.S. King & Son, 1932): 309–310. 39 The Prize Cases, (1862), 2 Black 635, 17 L 459, 477. 40 Crowl, Alfred Thayer Mahan, 444.

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grows than diminishes in the estimation of mankind; in the light of ­history its establishment is seen to mark the progress of commerce from a semi-barbarous condition in which it was exposed to constant violence, to its present state of freedom and security.41 Moore, who would go on to serve as the first American judge for the Permanent Court of International Justice, would proclaim no page in American diplomacy more glorious than the great principle of freedom of the seas.42 Writing in 1905, Moore explained, “When viewed in their wider relations, the early efforts of the United States to establish the rights of neutrals and freedom of the seas are seen to form a part of the great struggle for the liberation of commerce from the restrictions with which the spirit of national monopoly had fettered and confined it.”43 The rise of the American Navy in the late-19th century was dramatic. In 1883, the u.s. Navy ranked 12th among the world’s fleets; by 1906 it was second in size only to the British Royal Navy.44 By 1907, when President Theodore Roosevelt sent two squadrons comprised of 16 battleships to circumnavigate the globe, the United States had realized Mahan’s dream. This “Great White Fleet” demonstrated u.s. naval power and the salience of freedom of navigation, coupled with America’s global interests. The German U-boat threat to freedom of the seas during World War i produced a flurry of books.45 As in earlier times, the United States protested British interference with neutral American shipping. President Wilson objected to the Royal Navy blockade of the North Sea and the Atlantic Ocean, and tensions ran high when Britain seized u.s. merchant ships suspected of carrying contraband.46 With the advent of German unrestricted U-boat warfare, however, the focus shifted from London to Berlin.47 41

John Bassett Moore, American Diplomacy: Its Spirits and Achievements (New York: Harper & Bros., 1905): 81. 42 Ibid. 43 Ibid., at 105. 44 Robert Work, Thinking About Seabasing: All Ahead, Slow (Center for Security and Budgetary Assessments, 2006): 25. 45 See, e.g., William Wood, Flag and Fleet: How the British Navy Won Freedom of the Seas (MacMillan, Co. Canada, Ltd., 1919); J.M. Kenworthy & George Young, Freedom of the Seas (Horace Liveright, 1928); W.G. MacKendrick, God’s Plan for Freedom of the Seas (Commonwealth Pub., 1929). 46 Thomas J. Knock, To End All Wars, (rev. edn., Princeton: Princeton University Press, 1995): 34. 47 See, e.g., Bernhard R. Wise, The Freedom of the Seas (Darling & Son., Ltd., 1915); Ramsay Muir, Mare Liberum: The Freedom of the Seas (Hodder & Stoughton, 1917): 2, and Charles Stewart Davison, The Freedom of the Seas (Moffat, Yard, 1918).

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Writing during the war, British historian and Liberal Party politician Ramsay Muir stated, “In times of peace the freedom of the seas has been so long enjoyed by the whole world that men are apt to take it for granted; they do not consider how it came to be established, or what are the conditions necessary for its maintenance.”48 As freedom of the seas was essential for Allied strategy and maintenance of the Atlantic “bridge” for supplies and troops flowing from North America to Western Europe, the doctrine of freedom of the seas became etched in the essential norms or mores of global governance. President Woodrow Wilson, for example, included the concept of free seas as one of the non-negotiable elements of his famous Fourteen Points, delivered to Congress on January 8, 1918.49 Point number two issued by President Wilson stated that the political and commercial provisions of the Versailles Peace Treaty must include “[a]bsolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.”50 One year ­before the address to Congress, while the nation was still neutral in the conflict, President Wilson stated in his “peace without victory” speech: And the paths of the sea must alike in law and in fact be free. The freedom of the seas is the sine qua non of peace, equality and cooperation. No doubt a somewhat radical reconsideration of many of the rules of international practice hitherto thought to be established may be necessary in order to make the seas indeed free and common in practically all circumstances for the use of mankind, but the motive for such changes is convincing and compelling. There can be no trust or intimacy between the peoples of the world without them. The free, constant, unthreatened intercourse of nations is an essential part of the process of peace and of development. It need not be difficult either to define or to secure the freedom of the seas if the governments of the world sincerely desire to come to an agreement concerning it.51 48 Muir, Mare Liberum. 49 Woodrow Wilson, (1917–1924) The Public Papers of Woodrow Wilson: War and Peace: Presidential Messages, Addresses, and Public Papers. 1927–1924 (New York: Harper & Bros., 1927 photo. reprint 1967): 155. 50 Ibid., 159. 51 “Address of the President to the Senate of the United States, 22 Jan. 1917,” American Journal of International Law: Supplement, Vol. 11 (1917): 318, 322.

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The concept of freedom of the seas quickly was integrated into the progressive and liberal political narrative of the United States. The Women’s Peace Party, for example, met on January 10, 1915 and put forth the first u.s. statement on liberal internationalism.52 The group promoted a liberal agenda that included limitation of armaments, creation of a new “Concert of Nations” to replace the balance of power system, mechanisms for international arbitration and dispute resolution, and freedom of the seas.53 Likewise, in 1917, Pope Benedict xv (1914–22) wrote in a peace message that once moral force was substituted for the force of arms “the true liberty and community of the seas” would bring an end to international conflict and “would also open to all, new sources of prosperity and progress.”54 Freedom of the seas was championed by the Allied powers during World War ii as well. The sense that freedom of the sea lines of communication was both practically essential and morally right resonated strongly with the United States. Months before the Japanese attack on Pearl Harbor, President Franklin D. Roosevelt proclaimed: The Hitler Government, in defiance of the laws of the sea and of the recognized rights of all other nations, has presumed to declare, on paper, that great areas of the seas—even including a vast expanse lying in the Western Hemisphere—are to be closed, and that no ships may enter them for any purpose, except at peril of being sunk. Actually they are sinking ships at will and without warning in widely separated areas both within and far outside of these far flung pretended zones.55 At the same time, on October 3, 1939, the United States and a group of 21 Latin American republics proclaimed a vast security zone in the Atlantic Ocean to prevent spillover from the war in Europe reaching the Americas.56 The “Panama Declaration” denominated a “zone of security” which encircled North America, South America and Central America, and extended 300 miles into the water in order to protect “all the normal maritime routes of communication 52 Knock, To End All Wars, 51. 53 Ibid. 54 Theodore Salisbury Woolsey, “Freedom of the Land and Freedom of the Seas,” Yale Law Journal, 28 (1918–19), 151, 151–152. 55 President Franklin D. Roosevelt, “Radio Address Delivered by President Roosevelt from Washington,” in Department of State Bulletin Vol. 5 (Sept. 11, 1941), 193, 194. 56 Philip Marshall Brown, “Protective Jurisdiction Over Marginal Waters,” American Journal of International Law 34 (1940), 112, 112–113.

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and trade between the countries of America.”57 The Declaration was among the first coastal state claims of the twentieth century that limited freedom of the seas beyond the territorial sea, but may be distinguished from excessive maritime claims more generally because it was a wartime measure that prohibited only belligerent naval operations, rather than commercial ships. Roosevelt’s insistence on freedom of navigation during peacetime as well as the right of neutral shipping during armed conflict underscores the way in which the two strands became intertwined into a broadly asserted right of freedom of the seas. Later the concept of unimpeded use of the oceans formed a plank in the Atlantic Charter on war aims of the Allied powers fashioned by President Roosevelt and Prime Minister Winston Churchill in Canada.58 The seventh tenet of the Atlantic Charter called for a peace that “should enable all men to traverse the high seas and oceans without hindrance” in peacetime and war.59 3

The Territorial Sea and Straits

The quest to secure the freedom of the seas turned on the most vexing issues concerning the breadth of the territorial sea, and its implications for straits used for international navigation. In 1894, the Institut de Droit International met in Paris and determined straits “which serve as a passage from one free sea to another can never be closed.”60 The idea persisted after World War ii. In his treatise on international straits, Erik Brüel concluded “the right of merchant vessels to pass through international straits in time of peace is … definitely recognized as a principle of existing law.”61 Indeed customary international law has recognized the unimpeded right of passage by all nations through international straits as a principle of natural 57 58

59 60 61

Green Haywood Hackworth, Digest of International Law. Vol. vii (Washington, dc: ­ overnment Printing Office, 1943): 702–709. G “Declaration of Principles, Joint Statement by President Franklin D. Roosevelt and Prime Minister Winston Churchill, Aug. 14, 1941, H. Doc. 358/77C1/1941,” reprinted in R.B. Russell, A History of the United Nations Charter: The Role of the United States 1940–1945 (Washington d.c.: Brookings, 1958): App. B, 975. Clarence Wunderlin, Jr., ed., The Papers of Robert A. Taft: 1939–1944 (Kent, Ohio: Kent State University Press, 2001): 285–286. Institut de Droit International, Annuaire xiii 330–331 (1894–95), cited in John Bassett Moore, A Digest of International Law Vol. 1 (Government Printing Office, 1906): 699. Erik Brüel, International Straits: The General Legal Position of International Straits Vol. 1 (Nyt nordisk Forlag, 1947): 216.

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law. In his landmark volume in the law of nations, Swiss diplomat Emmerich de Vattel (1714–1767) wrote that states that sit astride international straits may not refuse passage of foreign ships since the “right of such passage is a remainder of the primitive liberty enjoyed in common.”62 The breadth of the territorial sea, however, had a confounding influence on passage through international straits. States could not agree on the breadth of territorial waters, although the “cannon shot rule” emerged as the most persuasive metric. The distance of a cannon shot was about three nm, and many states accepted the idea that it marked the outer limit of a zone subject to the constabulary force of the coastal State.63 The simple formula is captured by the dictum by Cornelius Bynkershoek in 1703 that “[t]he power of the land properly ends where the force of arms ends.”64 For lack of another widely accepted standard, by the late nineteenth and early-twentieth century, the three mile standard for territorial waters remained the most popular, but by no means the sole, measure of the extent of territorial waters.65 Custom and state practice began to reflect the cannon shot rule, which entered into early American legal doctrine.66 At the turn of twentieth century, John Bassett Moore, who served a quasiofficial capacity in penning his eight volume restatement of international law for the Department of State, had accepted the extent of the “littoral” or “marginal” sea as derived from Bynkershoek and also fixed the distance at a marine 62

Emer de Vattel, The Law of Nations, or, Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns: A Work Tending to Display the True Interest of Powers (Northampton, Mass. T.M. Pomroy for S. & E. Butler, 1805): § 290, at 192. 63 R.R. Churchill & A.V. Lowe, Law of the Sea (3rd edition, Manchester University bynkePress, and Juris Pub., 1999): 72. 64 Cornelius van Bynkershoek, De Dominio Maris Dissertatio, i (1744) (Ralph Van Deman Magoffin, trans., Oxford University Press, 1923): 44. 65 Lassa Oppenheim, International Law (London: Longmans, Green, 1912): i: 27. 66 The u.s. view is reflected in numerous cases and diplomatic correspondence. See, e.g., The Ann (1812), 1 Federal Cases, pp. 926–927 (Story, Circuit Judge): “As The Ann arrived off Newburyport, and within three miles of the shore, it is clear that she was within the acknowledged jurisdiction of the United States. All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or a marine league, over the waters adjacent to its shores…. Indeed, such waters are considered as a part of the territory of the sovereign…. Indeed such waters within a marine league are considered as part of the territory of the sovereign.” See also, Church v. Hubbart (1804) 2 Cranch 186, 234: “The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within range of its cannon [the measure used by him to delimit territorial waters] … is an invasion of that territory.” (Chief Justice Marshall).

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league, “that is to say three marine miles or a twentieth of a degree of latitude,” formerly the range of a cannon shot.67 Following World War i, the League of Nations set out to codify significant areas of international law, and the breadth of the territorial sea and the rules that attach to it were ripe for collation by a major international conference, which met in The Hague in 1930. 3.1 Hague Conference 1930 In 1926, a draft convention prepared by a Committee of Experts of the League of Nations contained a “coastal sea” of three nm from the “low-water mark along the whole of the coast.”68 That same instrument also confirmed the right of passage by foreign warships, although such vessels “must observe the local laws and regulations, particularly those relating to navigation, anchoring, and health control.”69 Similarly, another draft convention developed by the ­International Law Association that same year recognized a three nm ­territorial sea.70 These instruments helped to inform the preparatory work and negotiation on territorial waters for the 1930 Hague Conference. The Commission on ­Territorial Waters at the 1930 Conference for the Codification of International Law explored the feasibility of a maritime treaty. The Conference was the first ­attempt to codify a systematic and multilateral body of rules for oceans

67 68

69

70

John Bassett Moore, A Digest of International Law, Vol. 1 (Government Printing Office, 1906): 699. Appendix No. 1, Amended Draft Convention communicated to various Governments by the League of Nations Committee of Experts for the Progressive Codification of International Law, with Questionnaire No. 2, January 29, 1926, reprinted in “The Law of Territorial Waters” (Reporter, George Grafton Wilson), American Journal of International Law, 1 (Apr. 1929), 366. Article 12, Appendix No. 1, Amended Draft Convention communicated to various Governments by the League of Nations Committee of Experts for the Progressive Codification of International Law, with Questionnaire No. 2, January 29, 1926, reprinted in “The Law of Territorial Waters,” American Journal of International Law (Apr. 1929), 366. The article also specified that, “If serious and continued offence is committed [by a foreign warship in the territorial sea], the commander of the vessel shall receive a semi-official warning in courteous terms and, if this is without effect, he may be requested, and, if necessary, compelled, to put to sea.” Ibid. Art. 5, App. No. 6, Draft Convention on Law of Maritime Jurisdiction in Time of Peace (Report of the Thirty-Fourth Conference, 1926, p. 101), reprinted in “The Law of Territorial Waters” American Journal of International Law (April 1929): 373, 374.

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­governance.71 A majority of states suggested that territorial waters extend to a distance of three marine leagues or nm, measured from the low water mark.72 Several states presented a claim in excess of three nm, and proposals for four, six or even 18 nm were offered.73 The Hague conference failed to reach agreement on the breadth of the territorial sea, let alone the rights and duties that applied to the coastal State and foreign flagged vessels in the zone.74 States were unable to balance their “double common interest in freedom of navigation on the high seas and in the maintenance of [their] authority over the adjacent waters.”75 A treaty was not adopted, but the conference was not without some success. Most delegations at the 1930 Hague Conference reasoned that all the waters of a strait are territorial waters of the coastal State if the strait is not wider than twice the breadth of territorial waters. In straits shared by two coastal States and that measure less than twice the breadth of the territorial waters, the territorial waters are determined by an equidistant line drawn down the middle of the strait.76 The conference determined coastal States “should recognize the right of innocent passage through its territorial waters of foreign warships, including 71

“First Report Submitted to the Council by the Preparatory Committee for the Codification Conference,” American Journal of International Law Supplement Vol. 24 (Jan. 1930): 1,3; and “Second Report Submitted to the Council by the Preparatory Committee for the Codification Conference,” ibid. (Jan. 1930): 3. See also “Territorial Waters,” ibid., 25 (bases for discussion for the issue of territorial waters); and Jesse S. Reeves, “The Hague C ­ onference on the Codification of International Law,” ibid., 52–57. 72 S. Whittemore Boggs, “Delimitation of the Territorial Sea: The Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the ­Codification of International Law,” American Journal of International Law, 24 (July 1930), 541. The marine or nautical mile was defined as the equivalent of one minute of latitude at the particular latitude concerned, which varied about 19 meters between the equator and the poles. The distance of 1852 meters was regarded as a standard marine mile by the United States and adopted as the definition of a nautical mile by the International Hydrographic Conference at Monaco in April, 1929. The Technical Subcommittee of the Commission on Territorial Waters defined the baseline as the low-water mark along the entire coast, as indicated on the charts officially used by the coastal State, “provide the line does not appreciably depart from the line of mean low-water spring tides.” Ibid., 542. 73 “2. Territorial Waters,” American Journal of International Law Supplement 24 (Jan. 1930), 25, 27–28. 74 Jesse S. Reeves, “The Codification of the Law of Territorial Waters,” American Journal of International Law 24 (July 1930), 486. 75 Ibid., at 487. 76 “Point vii, 2. Territorial Waters” American Journal of International Law: Supplement 24 (Jan. 1930): 25, 36.

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submarines navigating on the surface.”77 Although coastal States were entitled to make rules regulating the conditions of innocent passage, they could not require prior authorization. Likewise, foreign flagged warships had a duty to respect local laws and regulations.78 If a warship fails to comply with local laws and regulations after notice is given to the captain of the vessel, the only remedy available to the coastal State is to require the ship to depart the territorial sea. The transit of foreign warships in territorial waters was not recognized as a right, but rather passage was accepted as a “general rule a coastal State will not forbid.”79 This comity determination reflected the general consensus ­during the first half of the twentieth century, albeit tempered by recognition of a greater right to transit the territorial sea overlapped by a strait used for international navigation. Analysis in the Columbia Law Review in 1950, for ­example, concluded that although warships “do not as yet have a complete right of p ­ assage through ordinary territorial waters,” they do enjoy a “qualified right of passage through littoral straits” during time of peace.80 This position was vindicated in the Corfu Channel Case following World War ii. 3.2 Corfu Channel Case Affirms Innocent Passage The United Kingdom was party to the earliest and most authoritative international court opinion on rules applicable to straits used for international navigation.81 The 1949 International Court of Justice (icj) Corfu Channel Case opinion arose out of a dispute over British naval transits through the Corfu strait in the Adriatic Sea. In the few years following World War ii, the Royal Navy used the Corfu Channel to provide aid to the beleaguered Greeks, who were engaged in a struggle against a large communist insurgency. The People’s Republic of Albania occupied the eastern side of the Corfu Channel. The Greek island of Corfu lies on the western side of the channel. The Royal Navy swept the Channel clear of mines in 1944 and 1945 and ­declared the waterway safe. At its narrowest point, the Channel closes to only three nm, and Albania and Greece claim a territorial sea out to the median

77 78 79 80 81

“Basis of Discussion No. 20, 2. Territorial Waters,” ibid., 25, 40. “Observations, Basis of Discussion No. 20,” ibid., 40. Jesse S. Reeves, “The Codification of the Law of Territorial Waters” ibid., 486, 496. Note, “Peacetime Passage by Warships through Territorial Straits,” Columbia Law Review 50 (1950), 220, 225. Corfu Channel Case (United Kingdom of Northern Ireland and Great Britain v. Albania), Merits, Apr. 19, 1949, icj Rep. 1, 35.

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line. Although the Corfu Channel was a strait used for international passage, a large part of the shipping channel also constituted Albanian territorial seas. On May 15, 1946, two Royal Navy ships transited the Corfu Channel and came under fire from Albanian shore batteries. The warships suffered no casualties. The British protested the attack, but Albania charged the warships with violation of Albanian sovereignty over the territorial sea. On October 22, 1946, another British Navy flotilla composed of the cruisers hms Mauritius and Leander and the destroyers hms Saumarez and hms Volage, proceeded through the Medri channel. The narrow passage previously had been swept for mines. The Saumarez struck a mine at 14:53, however, and the blast caused severe damage to the ship and produced dozens of casualties. Volage closed on Saumarez and took her into tow stern first. At 16:06 a mine exploded near the Volage, severing the towline. While working damage control in the forward spaces, which were struck by the mine, Volage reconnected the tow to Saumarez. Both ships proceeded stern first, arriving at Corfu Roads at 03:10 the next morning. The Royal Navy suffered 44 dead and 42 injured in the mine strikes. Determined that it would re-sweep the Channel for mines in order to make the waterway safe, and to obtain evidence of state responsibility for the mine strike, the Royal Navy launched Operation Retail to clear mines from the strait. The United Kingdom also filed a case against Albania in the icj. Albania threw up numerous procedural maneuvers to delay the hearing, but ultimately the Court rendered a decision in 1949. The icj found that the laying of the minefield was the proximate cause of the explosions on October 22, 1946, and they “could not have been accomplished without the knowledge of the ­Albanian Government.” The Court ordered Albania to pay £844,000 in compensation to Great Britain, or the equivalent of more than £20 million in present currency. The Court ruled that ships enjoy the customary right of innocent ­passage in international straits, which coastal states may not impede.82 4

Superpower Condominium

Following Corfu Channel Case, in 1953 the u.s. Department of State circulated a memorandum to the Secretaries of Defense, Treasury, Interior, and Commerce, and to the Attorney General, concerning excessive maritime claims of other

82

Ibid., at 28.

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nations.83 The memorandum stated that the “immediate objective” of the United States was to counter the trend toward expansion of coastal state claims over their adjacent seas. As newly independent states began to populate the un General Assembly, the United States worried that they would not respect historic navigational norms. The United States maintained that States g­ enerally accepted the notion that the “free world” was “bound together in a loose oceanic confederation,” based on “unimpeded sea lines of communication.”84 After World War ii, however, the United States saw a “progressive erosion of the universally accepted doctrine that the high seas were res communis.”85 By 1960, more states situated along international straits began to challenge the right of foreign flagged warships to freely pass through them. Indonesia was one of the strongest advocates for greater coastal State competence over international straits. Just two years after the 1958 Geneva Conference on the Law of the Sea failed to determine the width of the territorial sea, Indonesia attempted to close off straits through the archipelago to foreign warships, or at a minimum require prior notification of warship transits.86 The width of the territorial seas and the right of (mostly Western) warships to transit them was caught up in the post-colonial politics. Extension of the territorial sea from three to 12 nm was, in many respects, an act of self-actualization and an opportunity for newly independent states to strike back at a legal system that they neither crafted nor felt protected their interests. Indonesia was one of the strongest advocates for greater coastal state competence over international straits. Jakarta’s actions in this regard would resonate during the Third un Conference on the Law of the Sea the following decade. 4.1 Indonesian Straits On February 18, 1960, Indonesia adopted into law Regulation No. 4, which abrogated its three nm territorial sea claim and instituted a 12 nm claim. The new law effectively enclosed the Sunda Strait inside Indonesia’s territorial sea. The strait, which is only 16 nm wide at its narrowest point, included a high seas corridor for shipping traffic when the territorial sea was only three nm in width. 83

Memorandum by the Legal Adviser (Phleger, Position of the United States Concerning National Claims in Adjacent Seas) (March 19, 1953), in Department of State, Foreign Relations of the United States 1952–1954, i, Part 2 (General: Economic and Political Matters), Document 279. 84 Ibid. 85 Ibid. 86 See Section 4.1 and accompanying text, infra.

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With the expansion of the width of the territorial sea, however, the high seas corridor disappeared, and with it the high seas freedom of transit enjoyed by naval forces since the era of Dutch colonization. Indonesia began to challenge the right of foreign-flagged ships to transit through the archipelago. On August 27, 1964, for example, a British aircraft carrier task force steamed through the Sunda Strait, travelling toward Singapore. Indonesia and Malaysia were engaged in low-level hostilities at the time, as Sukarno sought to break up Malaysia and oust the British from their military bases.87 The conflict threatened to draw Britain, and perhaps even America, into the conflict. The British had three aircraft carriers in the Far East at the time. Indonesia threatened “retaliatory action” if the u.k. flotilla re-transited the strait on the return journey from Singapore. To avoid provocation, however, the British issued a notification to Indonesia of the return transit and the fleet conducted passage through the Lombok Strait rather than the Sunda Strait.88 The political fallout and forced diversion of British warships worried u.s. admirals in Hawai’i because of the precedent it would set for other strategic straits. The four-star Commander-in-Chief, u.s. Pacific Command (cincpac) was the most active element of the Department of Defense in defense of freedom of navigation in the oceans. In 1964, cincpac sent a secret message under the subject, “Implications [of] Indonesian Mare Nostrum,” to the Joint Chiefs of Staff, with copies to the Chief of Naval Operations and the combatant ­commanders throughout the world, to explain the pressing need for both diplomacy and action to preserve navigational rights through Indonesia. American policy was designed to “uphold the fundamental principle of freedom of the seas, which is for the general benefit and commerce of all nations, large and small.”89 No nation had a right to “convert into internal or territorial waters large areas of the high seas” that traditionally were used as high seas. The United States “expected to move around international waters of the world as it wished.”90 With the adoption of unclos in 1982, however, precise and 87

Short-Term Prospects in the Malaysia/Indonesia, u.s. Special Intelligence Estimate, Sept. 16, 1964, snie 54/55-64, u.s. Department of State, Foreign Relations of the United States 1964–1968, Vol. 26: Indonesia; Malaysia-Singapore; Philippines, Doc. No. 75, pp. 158–160. See also, Note from Robert W. Komer of the National Security Council Staff to the President’s Special Assistant for National Security Affairs (Bundy), Sept. 4, 1964, ibid, Doc. No. 71, at p. 153. 88 Department of Defense, Commander in Chief, u.s. Pacific Commander, Implications [of] Indonesia’s Mare Nostrum, cincpac msg 102244Z OCT 64 Parts i and ii, Oct. 10, 1964 (Secret; declassified). 89 Ibid. 90 Ibid.

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universal rules regarding passage through international straits were codified the regime of transit passage, and included in a multilateral treaty—a treaty the United States still has not joined. Ironically, it would be only with the help of its Cold War rival that the United States would fashion a workable legal regime for straits used for international navigation. The Soviet Union did not formally adopt a 12 nm territorial sea until 1960, although it routinely exercised jurisdiction throughout such a zone as early as 1927.91 At the height of the Cold War, both the Soviet Union, leading the communist bloc, and China, which also had influence among newly ­independent states in the developing world, championed expansion of the territorial sea from three to 12 nm in width. Moscow initially thought a larger territorial sea would disproportionately hamper deployment of Western ­naval forces and maritime commerce, and therefore introduced greater military risk for the West.92 It slowly dawned on the Soviet Union, however, that it suffered even more from closure of international straits than did its adversaries in the West. 4.2 The “Disappearing” Straits As states began to abandon the three nm territorial sea for a 12 nm territorial sea many strategic straits that were greater than six nm in width, but less than 24 nm in width, suddenly came under coastal State sovereignty. A handful of straits used for international navigation are less than six miles in width, including the Strait of Messina between the “boot” of Italy and the eastern tip of ­Sicily to connect the Tyrrhenian Sea with the Ionian Sea.93 In comparison 91

92 93

Statute on the Protection of the State Border of the Union of Soviet Socialist Republics, Aug.5, 1960, Vedomosti sssr (1960), No. 34, item 324, trans. 6 Soviet Stat. & Dec. 45 and 207 (1969) and Statute on the Protection of the State Frontier of the Union of Soviet Socialist Republics, June 15, 1927, reprinted in un Doc. ST/LEG/SER.B/1, Jan. 11, 1951, un Sales No.: 1951 Vol. 2, and United Nations Legislative Series: Laws and Regulations on the High Seas, Vol. i (1951): 116, 116–117 (“For the defense of the State frontier of the ussr, the following zones shall be established … Along coastal frontiers: a maritime zone extending seaward from the line of lowest ebb-tide on the mainland and on islands to a distance of twelve miles….”). See also, Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation (Leiden and Boston: Brill, 1994): 142–142; William ­Elliott Butler, The Soviet Union and the Law of the Sea (Baltimore, md: Johns Hopkins Press, 1971); 23–40; and William Elliott Butler, The Law of Soviet Territorial Waters (New York: Praeger, 1967): 31. Arthur H. Dean, “The Geneva Conference on the Law of the Sea: What was Accomplished,” American Journal of International Law 52 (Oct. 1958), 607, 612. Lewis M. Alexander, Navigational Restrictions within the New los Context: Geographical Implications for the United States (Offshore Consultants, Inc., Final Report under Contract MDA-903-84-C-0276, Defense Supply Service—Washington, December 1986), 202–203.

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to the 52 quite narrow straits of less than six nm in width there are some 153 straits used for international navigation that are between 6 and 24 nm wide.94 The Geographer in the Bureau of Intelligence and Research issued a report in 1969 that determined that among the 140 straits regularly used by international shipping, 116 of them became subsumed within the expanded territorial sea.95 These straits, which are along the periphery of the oceans where shipping lanes converge into narrow bottlenecks, include most of the world’s principal passages, and they are essential for military mobility and global trade.96 Once the territorial sea was expanded to 12 nm, preexisting high seas corridors were swallowed up by the coastal casting into doubt worldwide access to seas and oceans connected by international straits. In the nuclear age, uncertainty over free passage through straits had special strategic consequences. Submarine-launched ballistic missiles, by virtue of their mobility and relative invulnerability, are more stabilizing than landbased nuclear missiles.97 Land-based missiles, and to a lesser degree, nuclear payloads on board aircraft, are easily targeted and destroyed. Their vulnerability makes them inherently attractive targets of preemption or first strike by one power trying to decapitate the nuclear forces of an adversary. The utility of sea-based missiles is most apparent in deterring or preventing war.98 The United States and the Soviet Union shared enduring, long-term interest in a legal regime for straits that does not diminish deterrence capabilities for the other, because to do so is destabilizing and could prompt the other state to consider a first strike. The state at a disadvantage might calculate that it is better to strike first at a time of its choosing in order to destroy the o­ pponent’s arsenal than to risk being overwhelmed later.99 The effectiveness of the strategic nuclear order depends on the credibility of each party’s nuclear deterrent systems. For ballistic submarines to be credible second-strike ­platform ­requires 94

95 96

97 98 99

Ibid. D.P. O’Connell suggests there are “over 130” such straits. See, D.P. O’Connell, International Law of the Sea (rev. edn., ed. I.A. Shearer)(Oxford: Clarendon, 1982): 317. W. Michael Reisman put that figure at 116. W. Michael Reisman, “The Regime of Straits and National Security: An Appraisal of International Law Making,” American Journal of International Law Supplement 74 (1980), 48, 59. u.s. Department of State, Sovereignty of the Sea (Geographic Bull. No. 3, rev. ed. Oct. 1969): 22–27. Kennedy, “A Brief Geographical and Hydrographical Study of Straits which Constitute Routes for International Traffic,” u.n. Doc. A/CONF.13/6/Add.1 (1958), Official Records of the United Nations Conference on the Law of the Sea, Volume i (Preparatory Documents), Vol. 1, at 114–115, 134. Reisman, “Regime of Straits,” 50. Ibid., 51. Ibid., 52.

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unrestricted access to large parts of the oceans.100 In ­deterrence theory, the ability to detect ballistic missile submarines is as systematically dangerous as an anti-ballistic missile system.101 Consequently, W. Michael Reisman ­concludes that a “public order of the oceans, as it pertains to security should provide for a wide surface and aerial access and rights of submerged passage as unconditionally as possible.”102 4.3 Superpower Condominium on Straits Even as the United States was the dominant sea power, the Soviet Union also relied on maritime mobility to maintain its position in the world. During the Korean War, Moscow aided North Korea with shipments by sea of weapons and material, and the Kremlin later ferried and sustained 30,000 Cuban troops in a proxy war in Angola.103 The u.s.s.r. reached the zenith of its standing on the global stage through the use of naval power to expand its geographic reach and enhance its nuclear posture. As the Soviet fleet approached parity with the United States in the 1970s, the Soviet Union challenged the American position in virtually every corner of the world.104 Although the United States needed to preserve navigational rights through straits in order to maintain worldwide security commitments, the Soviet Union realized its own position was even more desperate. Once the territorial seas were extended from three to 12 nm in width, the Soviet Fleet could be closed off from the high seas by the whim of its neighbors. Soviet naval bases were tightly zone-locked, and warships and submarines had to transit one or more straits of neighboring countries in order to reach the high seas. The Soviet Navy was located in four fleet concentrations: Severomorsk-Murmansk on the Kola Peninsula in the European Arctic near the border with Finland, the Baltic Fleet at ­Baltiysk, the Black Sea Fleet at Sevastopol, and the Pacific Fleet at Vladivostok. The ships and submarines of each base were zone-locked by the territorial sea of its neighbors, and could be subject to suspension of innocent passage, albeit temporary. The Black Sea Fleet had to navigate the Turkish Straits to enter the Mediterranean Sea, which in any event were tightly regulated by the Montreux

100 Ibid. 101 Ibid. 102 Ibid. 103 James Brooke, “Cuba’s Strange Mission in Angola,” New York Times, February 1, 1987. 104 Sergei Chernyavskii, “The Era of Gorshkov: Triumph and Contradictions,” Journal of Strategic Studies 28 (2005): 281, 282–284.

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Convention105 and unaffected by the specific terms of unclos.106 Once in the Mediterranean Sea, Soviet ships and submarines had to transit through the Strait of Gibraltar to enter the high seas. Similarly, the Baltic Fleet had to ­navigate one of the three straits intersecting Denmark—the Great Belt, the Little Belt, and the Øresund—in order to enter the North Sea and the North Atlantic Ocean. The Russian Far East Fleet in Vladivostok and on the Kamchatka Peninsula was similarly disadvantaged. From these bases, Russian ships and submarines must traverse a gauntlet of straits to reach the open ocean. Ships and submarines underway from Vladivostok were hemmed in by the Sea of Japan and could reach the high seas only through one of the narrow passages guarded by u.s. naval forces and their allies, including the Tsushima Strait between South Korea and Japan, the Kanmon Strait separating Kyushu and Honshu in Japan, the Tsugaru Strait between Honshu and Hokkaido, the Le Perouse Strait between Hokkaido, Japan and Sakhalin Island, Russia, and the Strait of Tartary that connects the Sea of Japan to the Sea of Okhotsk (which itself is hemmed in by the Kuril Islands that extend northeast from Hokkaido to the Kamchatka Peninsula). Finally, the fourth Russian Fleet lay at Murmansk, the largest city north of the A ­ rctic Circle. Murmansk is ice-free due to the warm influence of the Gulf Stream, but in order to escape the Arctic Ocean (which, of course, was bounded by ice), vessels had to run the Greenland-Iceland-United Kingdom gauntlet guarded by nato aviation, surface, and submarine naval forces. The remote Petropavlovsk-Kamchatsky naval complex in Avacha Bay and the submarine base at Vilyuchinsk are the only installations with unfettered access to the sea. Moscow awoke to these geo-strategic realities as the debate for the territorial sea and international straits unfolded. The United States had long ­maintained that a regime of “freedom of navigation and overflight, for the purpose of transit” through straits was essential for any treaty on the oceans.107 In 1973 the u.s.s.r. shifted to the American position, and proposed a similar construct.108 105 Montreux Convention Regarding the Regime of the Straits, adopted on 20 July 1936, ­entered into force on 9 November 1936, 173 League of Nations Treaty Series 215 (1936). See also, Nilufer Oral, “Black Sea Security Under the 1936 Montreux Convention,” in Carlos Espósito, James Kraska, Harry N. Scheiber and Moon Sang-Kwon, eds., Ocean Law and Policy, 20 Years under unclos (Leiden, Boston, Brill/Nijhoff, 2016), Chapter 10. 106 Art. 35(c), unclos, supra, note 1. 107 Department of State Bulletin Vol. 65 (1971): 266. 108 un Doc. A/CONF.62/C.2/L.10 (1973), Official Records of the Third United Nations Conference on the Law of the Sea, Volume iii (Documents of the Conference, First and Second Sessions), at 189–190, Art. 2(e).

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The Soviet Union realized that the expansion of the territorial sea  contemplated in unclos would drastically constrain its ambition for ­global power ­projection, so Moscow joined with the United States, Japan, France, and the United Kingdom, to ensure that the regime of transit passage replaced innocent ­passage in straits used for international navigation.109 The Soviet Union had made a sharp break from its coastal orientation during the First and ­Second un Conferences on the Law of the Sea in 1958 and 1960.110 This realignment of maritime interests was essential to avoid failure at the Third un ­Conference on the Law of the Sea. The resulting navigational regimes addressed straits based upon their geographic characteristics. The default provision was transit passage, which is set forth in Section 2 of Part ii of unclos. Article 37 states that “all ships and ­aircraft enjoy the right of transit passage, which shall not be impeded….” 2. Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.111 Ships and aircraft in transit passage shall proceed without delay, refrain from the threat or use of force, and refrain from activities “other than those incidental to their normal modes of continuous and expeditious transit…”112 The term “normal mode” reflected a consolidation of several concepts by a group of states, including the Soviet Union and Malta, included in a proposal by the United Kingdom in 1974.113 This text subsequently was revised by the informal Private Group of states, and incorporated in the draft of Part ii of the ­Integrated 109 Bernard H. Oxman, From Cooperation to Conflict: The Soviet Union and the United States at the Third un Conference on the Law of the Sea (Seattle, Washington: Washington Sea Grant, May 15, 1984): 7. 110 Ibid. 111 Article 38(2), unclos, supra, note 1. 112 Ibid., Article 39(1)(c). 113 un Doc. A/CONF.62/C.2/L.3 (1974), Official Records of the Third United Nations Conference on the Law of the Sea, Volume iii (Documents of the Conference, First and Second Sessions): 183–186.

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Single Negotiating Text (inst) as Article 39.114 The requirement that ships and aircraft refrain from activities that are not in the normal mode suggests that they are permitted activities incidental to normal mode.115 For submarines, the “normal mode” of transit includes submerged passage, as explained by the u.s. delegate to the Third un Conference in July 1974: 64. Mr. STEVENSON (United States of America) in exercise of his right of reply, explained to the Egyptian representative, who had asked what assurance there would be that a submerged submarine in transit through a strait would respect the obligation not to threaten the security of that State, that the United States fully expected to comply with any treaty which it signed and ratified. Clearly, there was always a risk of States not complying with their legal duties, whether they related to a surface or submarine vessel; but his country’s record in that respect had been a very good one. Indeed, the fact that it was seeking a right of submerged transit indicated its intention to abide by its obligations. 65. A strait was an area of confined waters in which no captain of a surface ship, much less of a submarine, would choose to take action threatening the security of a strait State. Moreover, since submarines were equipped to travel submerged, that was the safest way for them to pass through an international strait.116 While they preferred the default application of transit passage in all straits, the major maritime powers compromised on adoption of more limited navigational rights in straits with specific characteristics. For example, “long-standing international conventions in force” rather than the provisions of unclos, apply to straits subject to preexisting legal regimes.117 These waterways include the Turkish Straits118 (the Bosporus, the Sea of Marmara, and the Dardanelles)

114 un Doc. A/CONF.62/WP.8/Part ii (isnt, 1975), Official Records of the Third United ­Nations Conference on the Law of the Sea, Volume iv (Summary Records, Plenary, ­General Committee, First, Second and Third Committees, as well as Documents of the Conference, Third Session). 115 Myron H. Nordquist, et al., eds., United Nations Convention on the Law of the Sea: A Commentary Vol. 2 ( Leiden: Martinus Nijhoff, 1993): 343, para. 39.10(d). 116 Ibid. at para. 39.10(e). See also un Doc. A/CONF.62/C.2/SR.13, Official Records of the Third United Nations Conference on the Law of the Sea, Volume ii (Summary Records of Meetings of the First, Second and Third Committees, Second Session). 117 Art. 35 (c), ibid.; Oxman, From Cooperation to Conflict. 118 Convention Relating to the Regime of the Straits, supra note 105.

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the Danish Straits,119 the Åaland Strait,120 and the Strait of Magellan.121 Each strait under Article 35(c) of these straits is regarded as sui generis, with the ­applicable rules contained in a separate and pre-existing treaty. Article 36 of unclos provides that the right of nonsuspendable innocent passage applies in straits that have a route through the high seas or eez that is of similar convenience as the strait, so long as the alternative route meets the test with respect to navigational and hydrographical characteristics. The same navigational regime applies in straits that are formed by an island of the state bordering the strait and its mainland and where there exists seaward of the island a route through the high seas or eez of similar convenience with respect to navigational and hydrographical characteristics.122 The Strait of Messina, bordered by Sicily and Calabria, Italy, is the classic example of this type of strait regime. Article 38(1) of unclos states that “transit passage shall not apply if there exists seaward of the island a route through the high seas or through the exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.”123 International straits that are located within archipelagic waters are subject to the navigational regime of archipelagic sea lanes passage (aslp).124 The definition nearly replicates the regime of transit passage through international straits. Finally, “dead end straits” are those passages that connect the high seas to a cul de sac that ends in the territorial sea of a state by means of a strait bordered by one or more states.125 Ships entering the state located at the cul de sac end of 119 Treaty between Great Britain, Austria, Belgium, France, Hanover, Mecklenburg-Schwerin, Oldenburg, the Netherlands, Prussia, Russia, Sweden, and Norway and the Hanse Towns, on the One Part and Denmark on the Other Part, for the Redemption of the Sound Dues, Copenhagen, Mar. 14, 1857, 116 Consolidated Treaty Series 357. 120 Convention on the Non-Fortification and Neutralization of the Åaland Islands of October 21, 1921, 9 l.n.t.s. 211, entered into force, Apr. 6, 1922. 121 Boundary Treaty between the Argentine Republic and Chile, done at Buenos Aires on July 23, 1881, 159 Consolidated Treaty Series 45 (Agreement between Argentina and Chile to neutralize the Straits of Magellan, place no fortifications along its shores, and open the Strait to shipping of all nations). The terms of the treaty were reaffirmed in ­Article 10 of the 1984 Treaty of Peace and Friendship between Argentina and Chile, resolving the B ­ eagle Channel dispute. Hugo Caminos, The Legal Regime of Straits in the 1982 United N ­ ations Convention on the Law of the Sea (Cambridge: Cambridge University Press, 1987): 131. 122 unclos, Art. 38(1), supra, note 1. 123 Ibid. 124 Ibid., Arts. 46–47 and 53. 125 Ibid., Art. 38(1) and 45(1)(b).

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the strait are entitled to nonsuspendable innocent passage in order to ensure that the port State is not landlocked, with a territorial sea leading nowhere.126 While the historic rule of innocent passage was preserved in some types of straits, such as dead end straits, unclos adopted the general rule of transit passage for most straits. A normal strait connects one area of the high seas or exclusive economic zone (eez) to another area of the high seas or eez, and is used for international navigation.127 The broadly permissive navigational ­regime is just one step removed from complete high seas freedoms; in exchange, the coastal State still exercises sovereignty over the area of the strait overlapped by territorial seas. For the maritime powers, the achievement of transit passage had an almost poetic symmetry.128 The treaty contains a variety of navigational regimes that apply to different areas of the ocean. High seas freedoms apply in areas beyond the territorial sea of coastal States, that is, not just on the high seas, but also in exclusive economic zones and above continental shelves beyond the territorial sea. Innocent passage applies in the territorial sea; nonsuspendable innocent passage applies in archipelagic waters that are not part of a designated archipelagic sea lane or a route normally used for international navigation. Pursuant to Article 36 of unclos, for example, ships and aircraft transiting through or above straits used for international navigation that have a high seas or eez corridor suitable for navigation, such as the Taiwan Strait, enjoy high seas freedoms of navigation and overflight and other lawful uses of the seas relating to such freedoms while operating in and over the high seas corridor. In adjacent areas constituting territorial seas, however, ships and aircraft enjoy only the right of innocent passage. 5

Conclusion: Assured Access

Since 1945 the un Charter has been the essential treaty framework for world order. After the un Charter, the most comprehensive agreement in existence 126 William L. Schachte, Jr. & J. Peter A. Bernhardt, “International Straits and Navigational Freedoms,” Virginia Journal of International Law 33 (1992–93), 534–535; also, Rear Admiral William L. Schachte, Jr., International Straits and Navigational Freedoms, Remarks prepared for presentation at the 26th Law of the Sea Institute Annual Conference, Genoa, Italy, June 22–26, 1992, at 12–13 and 18 (unpublished manuscript). 127 Art. 37, unclos, supra, note 1. 128 Satya N. Nandan & D.H. Anderson, “Straits Used for International Navigation: A Commentary on Part iii of the United Nations Convention on the Law of the Sea,” British Yearbook of International Law 60 (1989): 159.

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is unclos. The Convention is a momentous treaty that organizes governance over more than 70 percent of the globe, and should be considered a success on the order of the Peace of Westphalia.129 Viewed in this light, it is not surprising that unclos emerged from great power politics and reflected the realities of the strategic nuclear balance. The major maritime powers, and principally­ the United States and Russia, led the Third un Conference on the Law of the Sea to accept the regime of transit passage. Without transit passage there would have been no superpower acceptance of the treaty. It was clear from the beginning of the negotiations that if the superpowers were unwilling to join the final agreement most other nations would abandon the effort since any treaty produced would be impractical and unworkable. While states advocated other interests in unclos, these additional elements were placed on the foundation of superpower condominium that made the treaty possible in the first place. To be sure, the superpowers competed to curry favor with developing countries during the negotiations even while they desired—and indeed needed— cooperation from the other to resist demands by coastal states.130 This is not to say that the superpowers dictated terms of unclos, but rather that the conference­recognized and accommodated the collective will of Moscow and Washington on strategic deterrence as part of the give-and-take to pocket other benefits, such as the eez and Part xi on seabed mining. With the passage of more than thirty years since its adoption, unclos has become nearly universally accepted. The superpower nuclear balance that was at the center of the bargain in unclos no longer dominates international ­relations. Furthermore, the secondary interests reflected in the Convention have emerged as powerful and vibrant epistemological communities that operate completely unmoored from the strategic foundations that underpin unclos. Fisheries managers, environmental nongovernmental organizations, and the international shipping industry each have built upon unclos to f­ urther develop distinct areas and growing areas of international oceans law and policy. These areas of oceans law and policy are experiencing the most growth. Similarly, issues of national security at sea have shifted from strategic ­nuclear stability to lower order maritime security concerns, such as piracy and 129 Treaty of Westphalia, The Avalon Project, Yale Law School (2008), http://avalon.law.yale .edu/17th_century/westphal.asp. See also Richard Falk and Hilal Elver, “Comparing Global Perspectives: The 1982 unclos and unced,” in Davor Vidas and Willy Østreng, eds., ­Order for the Oceans at the Turn of the Century (Leiden: Martinus Nijhoff, 1999), 145, 150. 130 Oxman, From Cooperation to Conflict, 21.

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maritime terrorism. Maritime security in many respects means maritime law enforcement rather than strategic security. The historical roots of the treaty, however, are not entirely irrelevant to today. Strategic nuclear deterrence is still dependent upon submarines. Submarine mobility is no longer an issue because unclos successfully created a stable navigational regime, not because it is unimportant. As “a constitution for the [world’s] oceans,”131 the Convention’s 320 articles and nine annexes, “…provide a framework for the allocation of jurisdiction, rights and duties among states that carefully balances the interests of States in controlling activities off their own coasts and the interests of all states in protecting the freedom to use the ocean spaces without undue interference.”132 While the bargain was sweetened by detours to accommodate the economic issues of the North-South dialogue and innumerable other facets of ocean usage, the essential foundation is grounded in the strategic nuclear deterrence of the Cold War, and held together by the “glue” of superpower condominium. The principal interest of the superpowers was a law of the sea that formed a minimum basis for world public order.133 131 “Remarks by Tommy T.B. Koh, ‘A Constitution for the Oceans,’” in Myron Nordquist, ed., United Nations Convention on the Law of the Sea: A Commentary, Vol 1: 11–17. 132 See “Commentary, The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part xi,” u.s. Department of State Dispatch, 34 i.l.m. 1400–1447 (1995). 133 Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order (New Haven: Yale University Press, 1961, 2d ed. New Haven Press, 1967): 216, 297.

chapter 7

Small States in the Decision-Making Process of unclos iii Willy Østreng The Third un Conference on the Law of the Sea (unclos iii, or “the Conference”) was the largest, most complex and most difficult global negotiations ever hosted by the United Nations. It lasted for close to nine years, from 1973 to 1982 and covered 11 sessions in which the delegates met for 93 weeks, or close to two “effective” years of negotiations.1 They opted to make a new written “Global Constitution for the Oceans,” its terms covering some 71 percent, or 360 000 million square kilometers of the surface of Planet Earth. The political and legal ambitions were staggering—close to overwhelming. Despite this, the demanding mission was brought to a successful conclusion in December 10, 1982, when 131 states signed the United Nations Convention on the Law of the Sea (unclos) in Montego Bay, Jamaica. Some commentators portray the negotiating process in the Third losc as a gigantic, global law-making process of unprecedented reach and consequence.2 Others depicts it to be: “… as much a daring venture in international politics and international relations as an exercise in international law.”3 These two statements are not contradictive. Rather they are closely intertwined. The intrinsic meaning, or core objective, of politics is to allocate goods and burdens between people, institutions and nations; by contrast, the core of international law-making is to add legal regulation to the process of allocation. At the Third * This chapter owes a great deal to the critical and constructive comments of my long-time friend and colleague, Professor Harry Scheiber, Director of the Law of the Sea Institute, ­University of California, Berkeley—senior co-editor of this book. Apart from needed editorial comments, the chapter has benefitted from his structural way of thinking and organizing complex matters into readable texts. I also owe my wife, Sonja, thanks for patiently reading through the drafts at different stages of the writing process and for offering editorial comments and posing highly relevant questions to the way of presentation. Any inconsistencies and shortcomings still remaining is therefore the sole responsibility of the author. 1 Steinar Andresen, Makt og rett på hav og havbunn (Oslo: Universitetsforlaget, 1987), 26. 2 Carl August Fleischer, “Significance of the Convention: Second Committee,” in Albert Koers and Bernard H. Oxman eds., The 1982 Convention on the Law of the Sea (Honolulu, Hawai’i, Law of the Sea Institute, 1984), 69. 3 Jens Evensen, “Key Note Address,” in Koers and Oxman eds., The 1982 Convention, 23. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_009

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Conference, this came to expression in three interacting and interrelated versions of politics: • the politics of codification, recodification and expansion of the law of the sea (concerning most portions of unclos iii, except the deep sea bed, viz., concepts like transit passage, the exclusive economic zone (eez) etc.) • the politics of progressive law-making and development (concerning the deep sea bed regime, parts of the chapter on dispute settlements, and ­formulations of new principles of international law etc.) • the politics of issue linkages—tactical, substantive and interconnected. To get a grasp of what had been achieved in the Third losc, the us delegate, Elliot Richardson in 1982 stated that …[We} may need to stretch the definition of politics beyond the conventional one as the “art of the possible.” At the 1958 and 1960 un Conferences it proved impossible for gifted negotiators …to reach agreement on one key issue: a maximum breadth for the territorial sea. How then could nearly twice as many states, with a vastly expanded mandate to legislate new international law for the seabed as well as (to) recodify and expand the traditional law for the territorial sea, the high seas, and the continental shelf, and with no time limits except the patience of the participants, be expected to register real progress?4 The focus of this chapter is on Richardson’s astonishment; the focus will be on the relationship between the size and extreme negotiating complexity of the unclos iii and the role of small states and power in shaping the dynamics of this Conference. Three aspects will be discussed: • the ability of the working structure—the formal and informal—of unclos iii to further the policy process towards a consensual result; • the ability of Norway—as a small state—to influence the negotiations safeguarding national interests within the context of the broad international agreement, and; • the general ability of small states to apply power as a means to influence the outcome of unclos iii.

4 Elliot Richardson, “The Politics of the Law of the Sea,” Ocean Development and International Law: Journal of Marine Affairs, Special Issue on the Politics of the Law of the Sea, edited by Guest Editor David L. Larson (1982), 11.

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To do this, we will a combine empirical data and scientific assessments from high quality secondary sources with a theoretical typology of power as ­exercised by different categories of states in multilateral negotiations (see ­Figure 7.1). Within this context, four partly interactive and interdependent concepts are in need of some analytical clarification: complexity, power, and big and small states.

Conceptual Clarifications

Complexity The complexity of unclos iii may be measured by the large number of players (137 states at the beginning in 1974; 155 states at the end of 1982); the large number of issues; and the separate sub-issues (more than 400 in all) into which the major issues were subdivided.5 The problem of managing this c­ omplexity was in turn compounded by the technical components of many of the issues, which were linked both to deliberate negotiating tactics and to the fact that the interests of individual states were not necessarily consistently aligned across sub-issues. In addition, complexity relates to the heterogeneousness of participation in terms of the cultural and political diversity involving democratic, totalitarian and authoritarian governments as well as members with capitalist, socialist and mixed economies. An understanding of how an issue area is perceived by opposite parties tends to be reduced commensurately with increasing cultural, economic and political distance.6 This complexity increased the uncertainty about one’s own and others’ moves, which in turn created inertia and delays to the processes, posing “… an almost insuperable barrier to success.”7 For this reason, the late Edward Miles has written, the 5 Edward B. Miles, Global Ocean Politics: The Decision Process at the Third United Nations Conference of the Law of the Sea 1973–82 (London: Martinus Nijhoff Publishers, 1998), 4. This book, a classic in the literature, provides a most valuable and uniquely detailed chronicle (based heavily on scores of interviews with delegates and staff participating in the Conference) and interpretive commentary on the process and substantive outcomes of the u ­ nclos iii. The present chapter, with its focus on small states and the sources and dynamics of their influence on outcome, offers a different perspective on the negotiations than Miles’s valuable study has provided. Nonetheless, as will be demonstrated, this chapter leans heavily on the empirical findings and substantive evaluations provided in Miles’ in-depth study of the decision-making process of unclos iii. 6 Arild Underdal, ”Internasjonale forhandlinger,” in Jon Hovi and Raino Malnes (eds.) Normer og Makt. Innføring i internasjonal politikk, (Oslo: Abstrakt forlag A/S, 2001), 302. 7 Miles, Global Ocean Politics, 5.

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Conference moved like a large snake, “slowly through time, though not in a straight line. There were many twists and turns, and phases within phases, the conference stalling at times and moving forward (or sideways) again only after the leadership saw potential failure looming large.”8 Power Power is a key word in politics in general and in international politics in particular. Still, it is to a certain extent unclear what it means, which is reflected in the disagreement about its character and significance in political relations. In our context we define power as the ability to impose one’s own preferences on allies and antagonists. Power is actor-based—in individuals and/or in collectives—but also structural in hosting barriers to progress existing in the environment in which the actors are supposed to act (for instance, within the formal structure of the Conference).9 Power comes in more expressions than one. Joseph S. Nye makes a distinction between “Power over others” and “Power over outcome.”10 Both forms aim at the same objective: to secure and guard national interests in situations of tug-and-war and conflict. As has been pointed out, “success is the only scale or measurement of power.”11 It concerns the ability to make things happen—to change conflict situations or to move processes forward.12 Since the dawn of Man, “power over others,” also called “hard power,” has shaped world history. It resorts to sanctions—positive and negative—in which the stronger party projects its military and economic superiority on a weaker party to get an outcome favorable to one’s own preferences. It is linked with the capacity to overcome the resistance of others and emphasizes the controlling and potentially coercive aspects of power, viewing it both as a mechanism for maintaining order, efficiency and authority, and, when abused, a problem to be contained.13 In international relations, it depicts a win-lose situation in 8 9

10

11 12 13

Ibid., 5–6. Øyvind Østerud, “Makt og maktbruk i internasjonal politikk,” in Jon Hovi and Raino Malnes  eds., Normer og Makt. Innføring i internasjonal politikk (Oslo: Abstrakt forlag, 2001), 157. Joseph S. Nye, “Political Lessons of the New Law of the Sea Regime,” in Bernard H. Oxman, D.D. Caron and C.L.O. Buderi eds., Law of the Sea: us Policy Dilemma (San Francisco, ics Press, 1983), 121. Trond Berg Eriksen, Hva kan vi lære av Machiavelli, Fyrsten (Oslo: Kagge Forlag, 2007), 17. Translation by author. Cited from Peter T. Coleman and Robert Ferguson, Making Conflict Work: Harnessing the Power of Disagreement (Boston, New York, Mariners Books, 2015), 7. Coleman and Ferguson, Making Conflict Work, 10.

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which the dominant party uses—apart from raw physical power—tactics of coercion, threat or deception; it tactically employs poor communication or generates suspicious and hostile attitudes; and ultimately it increase the importance, rigidity, and size of the issues in conflict.14 This version of power reflects the inequalities in material strength of the international system. It is the property of the stronger party in any relationship, and it is relative in that it can be applied not only by larger states but also by small states in situations where they are the stronger party. History is witness, and so is the Middle East today. The only states owning it on a permanent basis and in most (or all) relationships are the superpowers—that is, those residing at the top of the international power hierarchy. This is not to say that power over others can be projected equally effectively in all areas, or situations, or on all states. This form is most potent in bilateral relations and in situations involving a limited number of states. Threats of power projections against “the rest of the world,” or against a sizeable group of states, carry little credibility; they can also severely hurt the global, hemispheric and regional interests of big powers. Thus, power resources applied in one area and/or situation may have little or no effect in areas and/or ­situations that are different. The efficiency of power over others varies with shifting circumstances and can materialize in two ways, either directly or indirectly. The former is expressed when physical means are being projected (more or less coercively) on a weaker party; whereas the latter is expressed when the weaker party yields to the preferences of the stronger party simply to avoid the possibility of being subjected to his physical superiority. This being said, all states are not equally susceptible to being penetrated economically, culturally, and politically by their stronger neighbors.15 The capacity to resist sanctions— whether those sanctions are positive or negative in character—differs among states. Power over outcome does not involve the resort to sanctions and coercion. Rather, it reflects the ability to sway others in a preferred direction and to have them choose positions and/or actions they would not otherwise have done. It is “soft power,” also called “parliamentary diplomacy,”16 based on arguments and persuasion—that is, on the ability to resolve conflicts and to master negotiating processes by peaceful means—by diplomatic finesse and subtlety. It 14 15 16

Coleman and Ferguson, Making Conflict Work, 47. Ernst B. Haas, When Knowledge is Power: Three Models of Change in International Organizations, (Berkeley, Los Angeles, London, University of California Press, Berkeley, 1990), 57. Robert L. Friedheim, Negotiating the New Ocean Regime (Columbia, South Carolina: ­University of South Carolina Press, 1993), 44–69.

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reflects the ability to cut across political and ideological cleavages, seek compromises, provide consensual knowledge, create convergence, offer openness in communications, show sensitivity to common interests, indicate readiness to be helpful, to apply win-win approaches to negotiations; it involves an ability to define the negotiating agenda, influence coalition building, establish atmospheres of collaboration, and to move the parties beyond their national positions, etc.17 These abilities do not primarily depend on the military and economic potential of the parties, but on the skills to forge non-zero-sum or positive sum agreements between differing interests.18 Power over others is an expandable resource that can bring about constructive and satisfying outcome for all. “It tends to motivate people to search out one another’s abilities and competencies and to encourage and appreciate their contributions, and to exchange resources that will help (all) parties to be more productive.”19 This variant of power is aimed at attracting and co-opting other parties, drawing on cultural, moral, inspirational, knowledge and social sources. In principle, it is a method to get others to want the same outcome as oneself.20 In trying to achieve the best shared result, the solution should have the property of not having a competitor which is better for at least one party, and at the same time not worse for at least one other. Solutions satisfying this requirement is what is called Pareto-optimal, and—under ideal conditions— power over others is a means searching for such an outcome. In principle, then, power over outcome is the more “democratic” and ­legitimate in that it, in principle, is available to all categories of states on terms somewhat equal to all—big and small, poor and rich, developed and developing, weak and strong. As such, this category can be paraphrased variously as “cooperative power,” “diplomatic power,” “process power” and/or “consilience power,” in which compromises and issue linkages are the results of the projection of might. The assumption is that this form of power is more effective than deployment of coercive power in multilateral negotiations. The two forms of power are not mutually exclusive. They can also be combined to achieve desired outcomes. One such combination is what Coleman 17

This definition is also being applied to concepts like “influence;” the two terms are ­being used interchangeably. However, there are distinctions between them. In our perspective influence is a situation created by power, whereas power is created by acquisition of means—be they negotiating skills as in power over outcome, or weaponry and economic means as in power over others. For this reason we stick to the concept of power over ­outcome in this Chapter. 18 Friedheim, Negotiating the New Ocean Regime, 45. 19 Coleman and Ferguson, Making Conflict Work, 11. 20 Coleman and Ferguson, Making Conflict Work, 13.

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and Ferguson call smart power involving strategic use of diplomacy, persuasion, capacity building and the projection of hard power in ways that are ­cost-effective and have social and political legitimacy.21 Big and Small States Categories of states are being defined in many ways and by multiple criteria. As a consequence there is no general agreement on how to make up a useful categorization.22 Here, we will define states in relation to how they connect to the two versions of power. Big states are defined as national entities able to project both forms of power in (most, or) all, contexts and relationships, i.e., the superpowers. In light of such a definition all other states are smaller, which implies that they may project power over outcome in international negotiations on an equal footing with the superpowers—but can project power over others only in relative terms and under specific circumstances. However, this categorization (i.e., “small states”) is too broad to capture important features in state behavior and has clear drawbacks in a structured analysis. As a definition, it embraces every manifestation of states ranging from those with vast military and economic muscles in regional and hemispheric contexts to those being deprived of physical means of power. To compensate for this, we will break down the concept of small states into three categories: (1) Big regional states, such as Great Britain, France, Australia; (2) Small states, such as Norway, New Zealand, Kenya; and (3) Micro states, such as Fiji, Cook Islands, or Singapore. This breakdown is essential to the present analytic framework because it also provides insight as to how states behave in exercising both versions of power as defined in this chapter. To reduce the likelihood of being subjected to negative and unpleasant sanctions, small states and micro states are, under certain specific conditions, known to be inclined to adjust their foreign policy to that of more powerful states—be they regional, hemispheric or global.23 When they do, the indirect version or threats of power over others are at play. These states also share the objective to reduce the likelihood of using power over others as the prime source of state behavior by increasing the role of international law. For this to happen, they will have to exercise their power over others in law-making efforts. Big regional states on their part are as smaller states inferior to the ­superpowers in terms of power over others. To compensate for this, they may either choose policy options similar to those of smaller states, or they may pool 21 22 23

Ibid., 14. Hans Branner: Småstatens udenrigspolitikk (Copenhagen: Gyldendal, 1982), 8–15. Hans Branner, Småstatens udenrigspolitikk, 12–15.

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Small States in the Decision-Making Process of unclos iii State categories

Powerbase

Foreign policy options

Superpowers

Supremacy p.o.others potential p.o.outcome

Secure control and supremacy

Big reg. states

Strong p.o. others Potential p.o.outcome

Adjustment policy some law-making

Small states

Restricted p.o. others Potential p.o.outcome

Law-making and adjustment policy

Micro states

None p.o. others Potential p.o.outcome

Law-making and adjustment policy

unclos iii

Decisionmaking process to combat size and complexity

unclos

Figure 7.1 The design of analysis.

resources with other big states, including superpowers to secure their regional and hemispheric interests and influence. unclos iii stood out as an arena displaying a variety of policy postures both between and within the different categories of states.

The Law of the Sea and the Third un Conference

The law of the sea was for centuries a body of law derived from state practice, i.e. the practice mainly of great seafaring nations. It was customary law par excellence, reflecting an international order based on power over others. It was the law protecting the national interests of the mighty few. ­Consequently, complexity was not an issue. In Geneva in 1958 a major codification effort ­occurred which, in the result, converted customary rules into treaty texts. Thus, the old order of the sea was put on paper in a somewhat modified and modernized version. Complexity had increased, but the power of law-making still rested with the interests and power of the rich and developed countries.24 u ­ nclos iii changed the history of international law-making in many respects. Among other things, the mighty met with the rest of the world at the n ­ egotiating table; 24

Willy Østreng, “Makt og avmakt i utviklingen av havretten,” in Valter Angell and Karin Lindgren (eds.), Globalt samarbeid: Krise eller renessanse? (Stockholm: Nordsam, 1988), 51–63.

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the participation became global, and for that reason the negotiating complexity became extreme, and the old power projections were challenged by fresh and complicating circumstances. In a historic perspective, the results stemming from the decision-making process of unclos iii caused outcomes of surprise (as stated by Richardson above). On the question of adoption of the un Convention on the Law of the Sea (unclos) in Jamaica in 1982, the agreement was adopted on a vote of 131 in favor, 4 opposed and 17 abstentions. The usa voted against, whereas the ­Soviet Bloc abstained along with several us allies. Seemingly, and contrary to historic traditions, the small and “powerless” had won the day whereas the most ­powerful states in international politics seemed to have lost out, or at least were reluctant to accept the outcome. History had taken a new course—had been turned around. How is this to be explained? Or, more precisely within the typology applied in this chapter: How did the negotiators overcome complexity, and what role did the two forms of power and different categories of states play in producing the 1982 Convention (see Figure 7.1)? It is hard, even for experts, to get a firm and consistent grip and overlook on all the labyrinths and informal constellations related to the multifaceted organizational complexity and dynamics of the unclos iii process. To help out, the call is for a road map—a skeleton of the chronology—to keep track of the details of the different committees and their charges, their modus ­operandi, their leadership, their interconnections, their rivalries etc. As a step in that ­direction, we have made, in broad strokes, a chronology of the various negotiating sessions—eleven altogether—starting out with the deliberations of the un Seabed Committee which was organized prior to the Third losc (see ­Figure 7.2). Let us start by addressing the working structure of the Conference and its inherent ability and/or restrictions to further the policy process towards a ­result acceptable to the majority of world states. Due to restrictions on the number of pages, we are bound to limit our discussion only to the more important structural entities of relevance in our context. The Working Structure of unclos iii In his most important book, The Power of Knowledge, Ernst B. Haas argues that collective problem solving among 160-odd states of widely different cultural commitments and with divergent historical memories would seem to depend on the ability to transcend cultural and historic boundaries, to establish transcultural and trans-ideological shared meaning. Since the building of shared meaning is a long-term and continuous activity, the members change the way

Small States in the Decision-Making Process of unclos iii Sessions

Place and Date

225

Important Actions

UN Seabed Committee

Dec. 1967-Dec. 1973

Preparatory organ for Com. i

First

New York, 3-15/12.73

Discusses organizational set up.

Second

Caracas, 20/6-29/8.74

Adaption of Rules of Procedure.

Third

Geneva, 26/3-10/5.75

Fragmentation out of hand. Informal Single Negotiating Text (isnt).

Fourth

New York, 14/3-7/5.76

Revision in Committee i texts.

Fifth

New York, 2/8-10/9.76

Rev.Single Negotiating Text (rsnt)

Sixth

New York, 23/5-15/9.77

Informal Composite Negotiating text (icnt), Dispute settlement.

Seventh

(1) Geneva, 28/3-19/5.78

Confrontation over Amarasinghe’s Presidency.

(2) New York, 21/8-15/9.78

Negotiating groups reporting texts.

(1) Geneva, 19/3-27/4.79

Work on pollution issues, Com. iii concluded.

(2) New York, 16/7-24/8.79

Work in Com. iii completed. Com. iii shut down.

(1) New Nork, 27/2-4/4.80

Revision two of icnt. Completion of Package 1 (Com. ii and iii).

(2) Geneva, 28/7-29/8.80

Draft Convention on los (informal).

(1) New York, 27/2-29/8.81

us policy review. Reagan el. President

(2) Geneva, 3/8-28/8.81

Draft Convention on los

(1) New York, 8/3-30/4.82

Final Changes, los Draft Convention

(2) Montego Bay, 6/12-10/12.82

los Convention opened for signature on 10.12.82

Eighth

Ninth

Tenth

Eleventh

Figure 7.2 The chronology of some important unclos iii events related to formal sessions. Source: The Figure is composed of data and setup from two sources: Edward L. Miles, Global Ocean Politics, pp. 507–513, and from Dupuy/Vignes, A Handbook in the New Law of the Sea, pp. 176–177.

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they attempt to solve problems through adoption and/or learning.25 To achieve shared meaning in negotiations, time is also essential to modify and change ­national positions and priorities (unclos iii lasted for 9 years). Equally important is the ability of the formal decision-making apparatus to provide flexibility when confronted with problems that cannot be resolved through e­ stablished procedures. At unclos iii, the organizational machinery was made up of a mixture of formal committees and informal groups all of which were guided by three Rules of Procedure. The overarching challenge of unclos iii was to ­reduce complexity and make the conference more manageable and to stimulate the establishment and maintenance of winning coalitions—to overcome the negative structural power inherent in the organizational set up. The Formal Structure On the formal side, three Committees were established to deal with different parts of the law of the sea, based on a division of labor: Committee i was involved in building a brand new regime for the deep sea-bed and the subsoil beyond the limits of national jurisdiction. As such, the Committee, which was chaired by Mr. Paul Bamela Engo of Cameroon, was dealing with the politics of progressive law development. Committee ii addressed the extension and content to be applied to the territorial water, exclusive economic zones, the continental shelf etc. The Committee, which was chaired by Ambassador Andres Aguilar of Venezuela, thus addressed to a large extent the politics of codification, recodification and expansion of the law of the sea. Committee iii took up the issues bearing on the protection and preservation of the marine environment, on marine scientific research, and on development and transfer of m ­ arine technology. It was headed by Ambassador Alexander Yankov of Bulgaria; in fact, it shared in discussion and development of both the politics of codification as well as that of progressive law-making (for these policies see introduction to the present Chapter). All committees ultimately reported to the plenary, which had final authority to take definite action in the name of the Conference. The plenary sessions, which supervised and reviewed the texts submitted by the committees, was chaired by an elected President. Ambassador Hamilton S. Amarasinghe of Sri Lanka acted in this capacity for close to eight years. Following his death of 4 December 1980, he was replaced by Ambassador Thomas T. Koh of S­ ingapore on 13 March 1981. The choice of conference leadership proved to be critical to the effective working of the conference. It was the leaders who became responsible for 25 Haas, The Power of Knowledge, 17.

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forcing movement on an unwilling assembly in the face of great inertia, and it was they who had to orchestrate the development of a treaty. This took courage, diplomatic skill, knowledge and understanding of the substance, reliability, and geopolitical acceptability of specific proposals,26 which are all skills of relevance in exercising power over outcome. On this account, the committee chairmen were crucial in providing progress in the negotiations, and where they were unequal to the task, stalemate quickly ensued. When inertia developed, the role of the president turned out to be significant in helping committee chairmen out in untangling stalemated situations.27 The four leaders also assumed the role of ultimate arbitrators. One feature that contributed to the successful outcome of the negotiations was the initiative of the President to prepare comprehensive working papers together with the committee chairs. These working papers, which ultimately took the form of articles, grew from Single Negotiating Texts (snt, 1975), and ­Revised Negotiating Texts (rnt, 1976) which served as a basis for the negotiations on, and formulation of, compromises in the Convention. Based on the work of the three main Committees and formal and informal negotiating groups (see below) these preliminary texts grew into a Composite Negotiating Texts (cnt, 1977) and an Informal Draft Convention (idn, 1979) as the discussions and compromises became more and more authoritative through the workings of the Conference (For the chronology of these texts, see Figure 7.2).28 In this process, the chairs of the committees and the President were called upon to play an essential role in developing successive compromise formulae between the opposing interest groups and coalitions and in amending the texts so as to come close to the desired final package deal. That task was all the more delicate because most of the discussions remained informal (see below). The use of verbatim or summary records would have entailed the risk that the various parties would start politically outbidding one another.29 President Koh took charge of this in that he and “the other presiding officers (Committee chairs) miniaturized the size of the negotiating groups … to transform a large, unwieldy conference of approximately 140 delegations (extreme ­complexity) into small, representative, and efficient negotiating groups. A ­ lthough the ­efforts to miniaturize the official negotiating forums inevitably encountered resistance, they were essential and ultimately successful.”30 But, Koh was not 26 Miles, Global Ocean Politics, 503–504. 27 Ibid., 107–108. 28 Jens Evensen, “A Key Note Address,” xxviii. 29 Dupuy and Vignes, A Handbook on the New Law of the Sea, 9. 30 Koh, “Negotiating a New World Order for the Sea,” 104.

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alone in taking charge. In retrospect, Jens Evensen, believed that the president, Ambassador Amarasinghe, also at crucial stages saved the Law of the Sea Conference from foundering.31 Among other things, Amarasinghe played a decisive role in convincing and guiding the delegates to adopt the Rules of ­Procedures— the important foundation of behavioral principles of the ­decision-making process of the conference (see Figure 7.2). In this respect, Miles claims Amarasinghe to be “the outstanding player,” orchestrating “a ­concerted attempt to get agreement without resorting to a vote, producing effective compromise formulations every time the conference bogged down.”32 Robert L. Friedheim summed it up nicely, writing: “On the whole unclos iii] was blessed with fair minded, competent and continuous formal leadership from the days of the Ad Hoc Committee to the end of the Conference. The two Conference presidents [Amerasinghe and Koh] have received almost ­universal praise for their contribution to the outcome of the Conference.”33 This being said, by contrast the necessary positive and creative leadership by the committee chairs and the president(s), to move the process forward, was not ­consistently exercised. According to Miles, the idiosyncratic way in which Paul Engo saw his role as Chairman of Committee i, more than once fueled conflicts both between groups of states and stimulated interpersonal conflicts between himself and others, including Evensen and Amarasinghe in 1977 and Njenga particularly in 1978.34 These conflicts to a large extent concerned procedural matters, but they were fueled by prestige, a bit of jealousy and even human vanity. One example that illustrates the point, among several such events, took place during the three first weeks of the Sixth Session (23 May-10 June 1977) in New York, which was devoted to Committee i issues. The Head of the Norwegian Delegation, Jens Evensen, who had successfully chaired an informal intersessional meeting between the fifth and the sixth sessions on some of the issues to be dealt with in Session six, enjoyed widespread support to continue to chair the formal meeting in Committee i. This was strongly opposed by the elected Chairman of the Committee, Paul Engo, who rightly felt this to be his responsibility. Multiple delegations, in particular the African Group, indicated their support of Evensen to continue his chairmanship for a limited duration of the session, but not to a point of open confrontation with and rejection of Engo. After intense negotiations a compromise was therefore arrived at to form the Chairman’s Negotiating Group (within Committee i) headed by Evensen. However, this 31 Evensen, “A Key Note Address,” xxvi. 32 Miles, Global Ocean Politics, 121. The italics added by the author. 33 Friedheim, Negotiating the New Ocean Regime, 343–344. 34 Miles, Global Ocean Politics, 499.

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compromise turned out to be only partly effective. Engo insisted that Evensen should report directly to him on a daily basis and that drafts to Committee imembers should be distributed by the Committee Chair and not by the chairman’s negotiating group (read Evensen). This procedure involved significant delays since Engo held on to the drafts submitted by Evensen for several days before circulating them. This was done even when no changes were made in the drafts. “As a result, the relationship between Engo and Evensen and Engo and Amarasinghe were extremely tense … [and after] the conclusion of the session, when the consolidated text of the treaty (the icnt) was produced, delegates learned that once again Engo had significantly changed the results of the negotiations on his own authority.”35 Engo was not alone in his failure to consult with others. Also President ­Amerasinghe, who had contributed so much positive leadership to the conference, on two occasions made major unilateral changes in reports from Committee Chairs without prior consultations; and these changes posed huge problems, with the potential of undermining the conference. What we are dealing with here is the human factor in negotiations; some moves produce consensus, but some will create conflicts stimulated either by bad judgements and/or vanity based rivalry between strong personalities holding different positions. To this came negative effects of structural power related to the organizational setup. One example to illustrate: Between the sixth and seventh formal sessions (15/7.77–28/3.78) an intersessional meeting was held indicating that major progress might be achieved during the seventh session (23/3–15/9. 78). However, all of this progress was initially put in jeopardy as a result of the intense confrontation that had developed over the issue of the continued presidency of Ambassador Amarasinghe, who the new government of Sri Lanka had replaced as its official representative to unclos iii. As stated by Miles, This fight brought the conference close to disintegration and the G77 to open rupture. Thereafter, relations between the Asians and Africans on the one hand, and the Latin Americans on the other, were at minimum very strained. While the issue had been fought on the principle of whether someone who was not a representative of a sovereign state could serve as president of an intergovernmental conference, the real, underlying issue was whether committee chairmen could retain a veto over revisions of their parts of the icnt.36 35 36

Ibid., 278–279. Ibid., 321–322.

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Here, a debate about formalities related to the decision-making structure served as a semi-cover for a wish in certain quarters to enhance the influence of the committee chairs. Thus, to make a clear-cut distinction between moves related to structural power and questions related to “who shall have what positions,” was never an easy task. The two elements often blended together in an on-going struggle to increase one’s own influence on the expense of others. In this particular discussion, however, Amarasinghe survived the fight as president, but even so it caused long-lasting ruptures in alliances and consequently severe delays in the effectiveness of the negotiations. Overall, the episodes of negative leadership counteracted—or balanced out—some of the progress produced by the positive leadership of the President(s) and the Committee Chairs. Actually, it was early on acknowledged that the formal structure lacked the flexibility necessary to get around barriers to progress, i.e. those factors related to the size, complexity and structural power of the conference. For this reason, the formal structure was supplemented with an informal structure designed to improve the conditions to exercise more effective use of power over outcome. The Informal Structure Supplementary to the formal structure was the establishment of two types of informal groups: Common Interests Groups, established to coordinate positions among delegations sharing the same interests, and Compromise Groups,37 ­established by delegates on their own private initiative to facilitate c­ onvergence of conflicting views.

Some Important Common Interest Groups

The largest of the Common Interests groups was the Group of 77, formed to coordinate and harmonize positions among developing countries, in particular with respect to procedural matters and First Committee issues. The Coastal State Group was a large coalition of big and small states working to promote coastal state interests, whereas The Group of Land-Locked and Geographical Disadvantaged States acted to protect the interests of States that would get ­relatively little or nothing from broad extensions of coastal state jurisdiction. The Margineers Group worked to promote the interests of states with continental shelf margins wider than 200 miles off their coasts, whereas the 37

These two concepts are taken from Barry Buzan, “United We Stand. Informal Negotiating Groups at unclos iii,” Marine Policy, July, 1980, 185.

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­ aritime States sought to protect the freedom of navigation in the context of M the negotiations of pollution in Committee Three. One of the smaller groups but most formidable ones was the Group of Five (also labelled the Gang of Five) which was composed of the industrialized states of Great Britain, Japan, France, the United States and the Soviet Union; here, the East/West conflict did not ­overshadow common interests in ocean affairs. Last but not least, the Territorialist Group, consisted of states that claimed or preferred a 200-mile territorial sea, whereas the Rival Delimitation Group, supporting and/or opposing emphasis on equidistance in delimitation between neighboring states.38 There was also a superpower coalition which spanned the un Seabed Committee (1968–73) and the conference until 1976. This ­coalition seemed to have had a somewhat different purpose than the other common interest groups in that it existed more for exchanging information and c­ oordinating positions than for presenting jointly sponsored proposals to the conference.39 By joining forces and pooling resources the countries belonging to the ­common Interests groups acquired a bargaining leverage that they would not have had if they had operated alone. As stated by T.T.B. Koh, who has been accredited with skillful leadership in the drive to closure of the negotiations, and, who, according to Miles, stood out as the single most “dominant personality” of the conference after he replaced Amarasinghe as president in 1980:40 “It proved to be impossible to conduct serious negotiations at unclos iii until these special-interest groups were able to formulate their positions in concrete texts and to appoint representatives to engage in negotiations.”41 By operating together, the common interests groups reduced complexity by promoting ­political aggregation of interests and positions. At the same time the aggregation caused and strengthened fragmentation, in that once a group had ­adopted a common position, it was often difficult for the group to modify it (see ­Figure 7.2). This often meant that the negotiators were given a mandate and had little or no flexibility to give and take in negotiations. Thus, in certain instances the fragmentation created inertia making progress more challenging. 38

Rene-Jean Dupuy, Daniel Vignes, A Handbook of the Law of the Sea, Vol. 1 (Hague, ­ ordrecht, Boston, Lancaster: Academy of International Law, Martinus Nijhoff PublishD ers, 1991), 170–171. 39 Miles, Global Ocean Politics, 27. 40 Ibid., 24. 41 Koh, “Negotiating a New World Order for the Sea,” In Fridtjof Nansen Institute (ed.), ­Challenges of a Changing World: Festschrift to Willy Østreng. (Lysaker, The Fridtjof Nansen Institute, 1991), 103.

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These groups were not formed on a basis of complete agreement among themselves. In brief strokes, their positions converged, but they also had their differences. To sort out these differences and to strengthen their internal cohesion and external negotiating position, some of these groups were bound to formulate compromise texts among themselves; these texts were submitted later on to plenary sessions for further elaboration. In particular, the Group of 77 contributed such texts for plenary consumption. Sometimes, it even happened that an informal negotiating group was formed on the initiative of two competing ones. This happened when the Group of Coastal States and the Group of Landlocked and Geographically Disadvantaged States agreed to establish a negotiating body comprising ten representatives from each group and approached Ambassador Satya Nandan of Fiji to be its chairman.42 In this way, these groups also produced compromise texts, contributing to the overall objective of the conference to reach middle ground and compromises. Miles points out that moving from fragmentation to compromise requires leadership at several levels. First the conference leadership must find a structure (apart from the formal one) which can move the conference forward. The choice of structure, i.e. compromise groups (see below), requires leaders who are knowledgeable on the subject matter and diplomatically skillful and ­sensitive. But the choice of leadership is always constrained by both geographic and substantive interest criteria. Balancing these is never easy, “but one can assume that unless such compromise groups emerge and work effectively, there will be no agreement on a global convention.”43 In this perspective, compromise groups are to serve as mandatory supplements to the formal decision-making structure providing, flexibility, effectiveness and creativity to the process. The ultimate challenge of these mediating groups was to produce joint gains for all to share, and at the same time secure individual national interests and values in areas of conflict between the parties.

Some Important Compromise Groups

One unique feature in the negotiation process was the role that the Compromise Groups (either self-appointed or established by the Conference) played in preparing draft articles. In terms of substantive attempts to break out of deadlock, the most important groups were these groups, which were set

42 Ibid., 104. 43 Miles, Global Ocean Politics, 98.

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up ad hoc from time to time throughout the whole of the conference. One such group was the Group of Jurors also known as the Evensen Group, which spanned both the un Seabed Committee and the Conference, and was chaired by Jens Evensen, then Norwegian Minister of Ocean Affairs. Both during and between the formal conference sessions, this Group worked on the basics of the exclusive economic zone and fisheries provisions, and later also on pollution and marine scientific research. As most of these groups did, the Evensen Group worked as an entirely informal entity of persons acting in their “private and personal” capacity, although the group consisted of heads of delegations. The Evensen Group, as it turned out, produced preliminary drafts on several of the main topics of the Conference. Other groups worked in a similar fashion. The results obtained by these groups were frequently channeled into the Conference as anonymous papers issued by “friends of the President,” or with similar vague wordings. These inputs were extensively used by the President to further the process through the formal system (more on this below). Another group was the Castaneda-Vindenes Group, which was established in 1977 by Ambassadors Jorge Castaneda of Mexico and Helge Vindenes of Norway to deal with the status of the exclusive economic zones and residual rights therein, marine scientific research, and the settlement of fisheries disputes. This was a follow-up on and extension of the work of the Evensen Group. Meanwhile the uk-Fiji Group, consisting of certain strait states and user states, concentrated on drafting the straits articles and got them incorporated into the Informal Single Negotiating Text. Last but not least was the important Dispute Settlement Group chaired by Mr. A.O. Ade of Kenya, Ambassadors Reynaldo Galindo-Pohl of El Salvador and Ralph Harry of Australia, with Professor Louis B. Sohn of the usa as Rapporteur.44 For these and other compromise groups, to fill their informal role (which was to reach compromise through shared meaning) they had to be manned by people able to offer apparently superior solutions and explanations to the problems of negotiation—that is, by experts “… bound together by claim to a particular body of knowledge and the commitment to make politicians listen to them.”45 They were crucial agents in forcing the reexamination of ends and programs that had long gone unchallenged. Without such reexamination there could not be any trans-ideological sharing of meaning. Dupuy and Vignes ­contend that the presence of these representatives acting intuitu personae was sometime decisive to consolidate partial rapproachement and help the

44 Dupuy and Vignes, A Handbook of the New Law of the Sea, 169–170. 45 Haas, The Power of Knowledge, 48.

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negotiations go forward. In their mind, this was especially the case with the Evensen Group.46 The last President of the Conference, Thomas T.B. Koh adds to this reasoning: “A lesson I have learned is that a conference needs the full range of formal, informal, and even privately convened negotiating groups. As a general rule, the more informal the nature of the group the easier it is to resolve the ­problem. However, secrecy must be scrupulously avoided. In addition, if the results of the negotiating group are to have a chance of winning support of the conference, then the group must include all those who have a real interest at stake, as well as the acknowledged leaders.”47 By focusing on the individual qualities of the mediators, Edward Miles delves even deeper into the challenge: Since mediator chairmen of compromise groups were so important for conflict resolution within the conference, the personality types of good mediator chairmen loomed much larger than the author ever expected. The traits which underlie these personality types seem to include: integrity, diplomatic and legal skill, the ability to see problems as a whole, to understand the problems which underlie these problems, and the ability to be obviously evenhanded in suggesting compromise formulations.”48 The skills summarized in this statement are those of power over outcome. Political behavior at the Conference seems to have been determined by eight factors49 (identified by Miles), of which personality and personality conflicts is one. As has already been discussed, this factor acted simultaneously as a source of strength and conflict. When the leading players trusted and got along with each other, it could work wonders. “At the same time, an inordinate amount of time and effort also had to be invested in getting around

46 Dupuy and Vignes, A Handbook of the New Law of the Sea, 9. 47 Koh, “Negotiating a New World Order,” 104. 48 Miles, Global Ocean Politics, 499. 49 The eight factors mentioned by Miles are: 1. Differences in capabilities of ocean use and therefore in the distribution of income and other values generated by such use, 2. ­Differences in biogeophysical conditions of states, 3. Differences in national objectives vis-à-vis ocean use, 4. The extent to which the substantive issues are “pure,” i.e., pertains to the activities of ocean use, or “contaminated,” i.e., penetrated by external, non-oceanrelated issues, 5. The organizational demands of conducting negotiations in institutionalized ­settings at the global level including, a. group structure, b. issues, and c. rules of ­procedure, 6. Internal bureaucratic conflict, especially in advanced maritime countries, 7. Personality and personality conflicts, and 8. Time. See Miles, Global Ocean Politics, 82–85.

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the personality conflicts[s]…..”50 Thus, real and successful mediation required both the application of the necessary skills and a positive atmosphere of getting along. What is characteristic about these personality types operating in a conflict-prone professional environment is that they have a wide array of ­conflict-management strategies and tactics, and they are able to use them artfully and effectively. This is what is called conflict intelligence.51 The sum of these elements – compromise and linkage techniques on the one hand and conflict intelligence on the other – is what constitutes real power over outcome. It also stems from this that power over outcome is person-dependent. Miles stresses this last point in particular, stating that over time the Conference learned rather well to play the game of compromise groups with mediator chairmen; and the more it did so, the more a “stable” [i.e., cohort] of effective mediators was built up; these were ­continually called into service, e.g. Castaneda, Nandan, Evensen, Koh, Aguilar, Njenga, Brennan, etc. It would seem that in this respect large size almost assured an adequate supply of effective mediators.52 As observed by Friedheim, these individuals “played significant roles principally because of their personal attributes. They were known as talented mediators, and they could be trusted.”53 Thomas Koh exemplified this dynamic in the last stages of the conference, when he as President, serving effectively in each case as a mediator, “made extensive use of a constantly shifting series of ad hoc compromise groups as the outstanding issues dwindled.”54 The ­Compromise groups acted as “mini-conferences,” searching for mutual understanding through learning and adaptation. In this process the formal and ­informal groups were guided by three formal rules of procedure.

The Formal Rules of Procedure

Within the framework of the formal and informal physical structures, three closely interrelated Rules of Procedure served to give direction to the working and progress of the Conference: 50 Miles, Global Ocean Politics, 84–85. 51 Coleman and Ferguson, Making Conflict Work, xv. 52 Miles, Global Ocean Politics, 495. 53 Friedheim, Negotiating the New Ocean Regime, 344. 54 Miles, Global Ocean Politics, 33.

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• The consensus principle, • The Gentlemen’s Agreement adopted by the General Assembly in November 16, 1973, and • The concept of the package deal. The consensus principle laid down that the articles and the text of the Convention as a whole should be adopted by general agreement (or understanding) without resorting to vote, i.e. without requiring unanimous decision. According to Jens Evensen, this principle was the cornerstone of the decision-making process of the Conference, not least because “it provided some sort of flexibility and an atmosphere of understanding among the negotiators.”55 Koh adds to this, that the principle promoted progress because “it put a premium on skillful and scrupulously fair chairmanship, leaving the delegates to tacitly consent by waiving their right of disagreement.”56 The Gentlemen’s Agreement was a necessary corollary to the consensus ­principle in that apprehension had been voiced that if the process of consensus bogged down and the conference at some final stage could not resort to voting, the conference could in certain instances disintegrate. For this reason a voting system was added on the clear premise that before voting should take place, all possible efforts towards arriving at consensus should have been exhausted. Closely connected to the consensus principle was the concept of a p­ ackage deal, which entailed the notion that all the main parts of the Convention should be looked upon as an entity—as a single negotiated package. The ­feeling was that the package deal seemed a precondition for adopting the Convention by consensus. The package deal approach could, however, create complications, if efforts were made to change articles or chapters that had already been agreed upon later on in the Conference. These three partly integrated principles created an atmosphere of give and take, striking a reasonable balance between the interests of the parties considered as a whole. Barry Buzan claims that where the negotiating process is long and protracted, and where the issues do not fit the standard r­ egional and political groups of the un General Assembly, the attempt to construct a ­massive  package deal without resort to voting encourages the resort to groups as the generally preferred way of establishing influence within the proceedings.57 55 56 57

Evensen, “Key Note Address,” xxviii. Koh, “Negotiating a New World Order,” 101. Buzan, “United We Stand,” 183.

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The interaction of the various elements of the decision-making apparatus slowly but effectively produced consensus in most issue areas of the law of the sea apart from the deep sea bed regime. Miles puts it this way: A serial treatment of the conference show that internal common i­ nterest groups … were the most effective first line of interest aggregation. However, no convention [i.e., treaty] would have been produced on this basis alone. The compromise groups proved to be the most effective second line of aggregation, along with the emergence of a limited number of very skillful mediators on particular issues like Amarasinghe, Aguilar, Castaneda, Evensen, Koh, Nandan, and a few others.58 … Committee chairmen and the president are the most effective third line of interest aggregation, and they can also assume the role of ultimate arbiters.59 The fact of the matter is that most of the creative problem solving occurred mainly in informal contexts; in informal committee working groups led by people like Pinto, Vallarta, Njenga, and Koh; or by committee chairmen acting informally (Aguilare, Engo, and Yankov) and by the presidents extending the flexibility of the formal structure (Amarasinghe and Koh).60 Informal compromises on different levels and in different settings seem to have driven the Conference towards a consensus treaty. Actually, the informality feature of the process stood out to create effective power, i.e. the ability to make the things one wants to happen, happen.61 The effective power as practiced by a handful of individual mediators is an intrinsic core of power over outcome. In this perspective, the process is as important as the outcome,62 because the latter depends on the quality and effectiveness of the former. A serial treatment of the Conference, Miles asserts, “vividly demonstrates the immense procedural difficulties of managing such a large conference over time. Inertia at all times was almost overwhelming.” In face of the tremendous inertia, Miles points to two procedural devices as being especially useful: “First, the Evensen Group in Committee ii as a model for the work of a compromise group outside formal channels from 1975; and Second, the snt and it s­ uccessive revisions as a way of moving the conference to conclusion and

58 Miles, Ocean Global Politics, 247. 59 Ibid., 501–502. 60 Ibid., 261. 61 Colman and Ferguson, Making Conflict Work, 15. 62 Miles, Global Ocean Politics, 85.

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forcing choices on an unwilling assembly which always preferred to reiterate national positions.”63 In balancing the interests of opposing factions, the compromise groups, as a rule, offered “mini packages” as their major conflict-resolution technique. Thus the inescapable inference stemming from this is that packaging of issues (both grand and mini) as a negotiating technique induced all players to resort immediately to tactical issue-linkages or “horse trading.”64 An example by way of illustration: Although deep sea bed mining could be regulated without ­worrying about the right of passage through straits, these issues were linked by the Group of 77 because this weaker group had no other way to force the stronger ones to internationalize deep-sea bed mining. Tactical linkages of this sort are commonly used by the weaker parties in bargaining.65 However, tactical issue linkage can of course facilitate agreement by adding side payments, but they can also serve to widen conflict and delay agreement, sometime substantially. Substantive issue linkages, on the other hand “almost by definition facilitated agreement by exploiting actual dependencies among separate issue.”66 In terms of different techniques, the Third losc process produced two cooperative results, compromise texts and issue linkages of various kinds, which, Edgar Gold suggests, ended up as “a carefully negotiated package of compromises.”67 This outcome was in several respects due to the learning process of the conference—a process that educated the participants as to just how profound that shared interest was and what adjustments would be required in order to achieve a satisfactory draft convention.68 As stated above, one cannot overemphasize the importance in unclos iii of the critical role played by compromise groups and individual mediators.69 The compromise groups dominated the decision-making process with Castaneda, Evensen, Aguilar, Yankov, Vallarta, Njenga, Koh, Engo and Nandan “playing the principal parts.” To ­establish compromise groups as a mechanism to move the ­negotiations

63 Miles, Global Ocean Politics, 255. 64 Ibid., 490. 65 Haas, The Power of Knowledge, 77. 66 Miles, Global Ocean Politics, 491. 67 Edgar Gold, “The Control of Marine Pollution from Ships: Responsibilities and Rights,” in Thomas A. Clingan Jr., ed., The Law of the Sea: What Lies Ahead? (Honolulu: Law of the Sea Institute, 1986), 285. 68 William E. Butler, “Reflections on State Practice in Socialist Nations,” in M.H. Nordquist, ed., State Practice and the 1982 Law of the Sea Convention (Charlottesville, Virginia: University of Virginia, 1990), 244. 69 Miles, Global Ocean Politics, 274.

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forward and out of deadlock is a most unusual method of international negotiations.70 Friedheim concurs: Some “important delegates, well trusted by opposing sides on a particular issue,” he writes, “… were known as talented mediators. Evensen and Pinto were among that elite group.”71 We could add: These individuals were the single most important source of success in unclos iii. By relying on compromise groups and mediator chairmen , the conference got “around the size and complexity problem.”72 Thus, one cannot overemphasize the role of informality on all levels and in all structures in unclos iii to produce effective power by applying the skills characteristic of power over outcome by a restricted number of mediators. In this way the conference was “the source of important procedural innovations for global lawmaking conferences: vide the notion of the Single Negotiating Text, the prominence of compromise groups with mediator chairmen, and the extraordinary latitude given to the President and committee chairmen in the face of inertia that large size and complexity entrain.”73 This is not to say that the mediators were neutral and non-biased in all their bridge-building efforts. “Despite the willingness of others to trust the mediators, they too were representatives of their respective sovereign states; they too had national as well as personal goals.”74 How does these overarching conclusions resonate with the negotiating behavior of Norway?, and to what extent did Norway—as a small state—influence the negotiations to safeguard its national interests and at the same time contribute to the broad international agreement put down in the 1982 los Convention? Norway in the Decision-Making Process of unclos iii In the early 1970s, Norwegian ocean policy for the upcoming Third losc was guided by four paramount objectives: • to secure a legal system of proper management and protection of the ­resources of the sea, living as well as mineral;

70

Budislav Vukas, “Possible Role of the International Tribunal for the Law of the Sea in ­Interpretation and Progressive Development of the Law of the Sea,” in Davor Vidas and Willy Østreng, eds., Order for the Oceans at the Turn of the Century (Hague, London, ­Boston: Kluwer Law International, 1999), 99. 71 Friedheim, Negotiating the New Ocean Regime, 344. 72 Miles, Global Ocean Politics, 493. 73 Miles, Global Ocean Politics, 489. 74 Friedheim, Negotiating the New Ocean Regime, 344.

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• to contribute to detente and a policy of appeasement in order to reach a new global agreement on a new law of the sea; • to mediate whenever there seemed to be a deadlocked situation in the negotiations, both in the un Seabed Committee (1968–73) and the Third losc plenary sessions (Eleven sessions altogether, spanning the period from 3/12 1973 to 10/12 1982. For details see Figure 7.2).75 • to contribute to the establishment of a deep-sea bed mining regime as a  common heritage of mankind. This objective was added to the list of ­Norway’s objectives in 1978 and was defined as a foreign policy matter of utmost importance.76 To provide mediation, peace, order and justice in international relations are typical small state objectives: State behavior should be ruled by law, and conflicts resolved by mediation and dialog, not by might. A useful means of achieving this is to build political bridges between or among opposing forces. For Norway, bridge building has been an integral element in its foreign ­policy ever since the end of World War ii: it has been an objective shared across party lines and resting in the “political bloodstream” of the Norwegian executive branch. The manifestations are many. During the Cold War, Norway belonged robustly and solidly to the Western bloc, but it was at the same time preoccupied with building bridges eastward with the objective of reducing the intensity of conflict. As an affluent country in the North, Norway has long been a stern advocate to reach out for the needs and wishes of poor countries in the South – and thereby to reduce the global inequalities of wealth and poverty. Norwegian bridge building efforts came to expression also in the context of unclos iii, but not without exceptions to the rule. In the 1970s Norway was faced with a challenging dilemma in its ocean policy: How to resolve the potential conflict between coastal state and ­maritime interests? As a major shipping nation with an extended coastal sea line, ­Norway had substantial interests in both regards. The challenge was apparent: As a coastal state, Norway would benefit from strong national offshore j­urisdiction, which in turn might severely hurt the freedom of navigation of the shipping industry worldwide. To get an output securing optimal benefits in both spheres, Norway was in need of a consensual compromise at unclos iii that most likely would split the Group of 77.

75 76

Willy Østreng, “Norway’s Law of the Sea Policy in the 1970s,” in Ocean Development and International Law (Special Issue on the Law of the Sea), Vol. 11, No. 2 (1982), 71. Stortingsmelding No. 75: (Oslo: The Long-Term Program for Ocean Affairs, 1978–81), 90–92.

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Norway as a Coastal State and Shipping Nation In the 1950s, the shipping interests had priority in Norwegian politics. As such, it was of paramount importance to secure the freedom of the seas, and especially with respect to the right of free passage through straits. Since 90 percent of Norwegian shipping tonnage at that time was contracted for foreign waters, Norway in this respect shared the interests of the big maritime powers. During the un law of the sea conferences in Geneva in 1958 and 1960 Norway therefore was reluctant to accept increased coastal state jurisdiction because 116 of the straits of the world had breadths between six and twenty-four miles. With the extension of the territorial sea from three to twelve miles, these straits would become territorial waters, and they might be lost to international shipping as high sea corridors. In the course of the late 1960s and 1970s, the discovery of commercial ­petroleum resources on the Norwegian shelf, together with pressing demands from rural fishing communities in North Norway to strengthen the country’s jurisdiction in Norwegian waters, pushed the coastal state interests more to the fore in the government’s policy priorities. To resolve a pressing dilemma, the government formulated a take-it-all policy to safeguard its comprehensive, potentially conflicting national interests.77 In preparation for the upcoming un conference in New York in 1973, ­Norwegian authorities established an Ocean Law Secretariat to be chaired by a Minister of the Cabinet who at the same time was appointed head of the Norwegian delegation. The establishment of the Secretariat and the ministerial position was to prepare and to signal “loud and clear” that the outcome of ­u nclos iii was deemed to be vital to Norwegian national interests. The ­Foreign Minister, Knut Frydenlund, was determined that the government should have a Minister to concentrate exclusively on just one issue area (the law of the sea) where so much happened so quickly, sometimes unpredictably, and with such an impact on Norwegian interests.78 Time and again, he pointed out that a small state like Norway must try to compensate for its weak power base with cleverness and hard work, i.e., in our context, by seeking to achieve power over outcome. The need was for a forceful, dynamic and highly competent negotiator to protect and promote Norwegian interests in the upcoming efforts to forge a new global “constitution for the oceans.” The person appointed to the Cabinet for this role was Jens Evensen—a noted expert in international ocean law who among other things had served as Vice-chairman of the un Seabed Committee from December 1967 to 1973. 77 78

Stortingsmelding, No. 40 (Oslo, White Paper, No. 40, 1973–74: unclos). Knut Frydenlund, Lille Land- Hva nå? (Oslo: Tiden Forlag, 1982), 54.

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Evensen’s legal competence in ocean matters was undisputed, and it had been built up over many years of practice in the Foreign Ministry. In 1951 he had been part of the Norwegian delegation that moved the International Court of Justice in The Hague to declare straight baselines to be part of international ocean law (see below). Ten years later, in 1961, he stood firm behind the unilateral decision—to declare Norwegian jurisdiction over the continental shelf.79 Most importantly, he was the key person hammering out the content of the Norwegian oil model.80 The significance of unclos iii to Norway was also reflected in the size and composition of the Norwegian delegation. At the most, the delegation counted 28 members, recruited from six different Ministries (Foreign, Trade, Fisheries, Industry, Environmental and the Defense Ministry) and five societal sector organizations that would today be termed major “stakeholders” (among others, The Norwegian Fishery Association and the Norwegian Shipowners Association).81 The policy planning process and formulation took account of broad societal interests in Norway. Norway in the Negotiations of Committees ii and iii At the opening session of unclos in New York in 1974, Norway submitted a compromise proposal to resolve the potential conflict between maritime and coastal state interests, containing six interrelated items: • The territorial waters should be limited to a maximum extension of 12. nm; • The right to innocent passage should be guaranteed in territorial waters; • It should be established a special regime for unimpeded passage in international straits; • An exclusive economic zone of 200 n.m. should be established; • A regime for the High Seas to secure the freedom of the seas should be established;. • The outer limit of the continental shelf should coincide with the continental margin.82

79

Knut Einar Eriksen and Helg Øystein Pharo, Kald Krig og internasjonalisering, 1949–1965, Norsk Utenrikspolitikks historie, bind 5, (Oslo: Universitetsforlaget, 1997), 353–371. 80 Rolf Tamnes, Oljealder 1965–1995. Norsk utenrikspolitikks historie, (Oslo: Universitetsforlaget, 1997), 185–195. 81 Steinar Andresen, Makt og rett på hav og havbunn, 110–111. 82 Andresen, Makt og rett på hav og havbunn, 115–116, and Willy Østreng, “Norway’s Law of the Sea Policy…,” 72–73.

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If one compares this package proposal with the 1982 unclos, the similarities are striking.83 Let us look into the challenge of achieving such a favorable ­results in some detail. In order to protect, link and package all Norwegian interests into one coherent solution Norway had no choice but to take part in all relevant ­common-interests groups (Coastal State Group, the Margineers and, and the Shipping Group) and in several of the mixed compromise groups. This shaped the ­negotiating tactics in which Norway opted to build a bridge between the “maximalists” (coastal states in the Group of 77) and the “minimalists” (the superpowers) when it came to the extension of coastal state jurisdiction. This was a demanding challenge. Out of the 120 national positions articulated at the Caracas session, 79 states advocated a comprehensive 200 miles economic zone that would include sovereignty over living and non-living resources and exclusive jurisdiction over scientific research and marine pollution. Another group, consisting of 41 states adopted a position that either would erode or clearly oppose the concept of an economic zone.84 Some even wanted the 200 miles zone to be designated in entirety as territorial waters—a nightmare as seen from the point of view of maritime states, Norway included. The obligation to find a compromise rested formally with Committee ii and informally with the Evensen Group. As seen from a Norwegian point of view time was a restricted good. Among other things, it was perceived as imperative to act quickly to avoid a situation where coastal states, in pure frustration of lack of progress in the negotiations, acted unilaterally curbing the freedom of the high seas. Such moves could severely hurt the Norwegian endeavors to bring coastal state and maritime interests into one package solution. To avoid such a development, mediation became a national interest in its own right. Norwegian interests should be rescued with proficiency, cleverness and hard work—by application of power over outcome. Early on, the negotiations in Committee ii achieved momentum, and according to Miles, “… [T]he Evensen Group became the single most important crucible for arriving at a solution. Most of the snt, Part ii dealing with the eez was in fact written … in the Evensen Group. In this, Minister Jens Evensen and the Norwegian delegation had effectively realized their potential as the most important mediating force in the conference.”85 In 1975, much of the output from the Evensen Group on the eez had already been incorporated into the

83 Andresen, Makt og rett på hav og havbunn, 116. 84 Miles, Global Ocean Politics, 411–412. 85 Miles, Global Ocean Politics, 69.

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Single Negotiating Text,86 and in 1976—six years before the conclusion of the Convention and 18 year before it went into force in 1994, Jens Evensen claimed victory: “[T]he principle of 200 miles economic zones will in a secure way protect the shipping interests, ours as well as the international ones. This is so, because shipping and other traffic in the economic zones shall be free …With this new creation we will hopefully succeed in preventing the development ­toward a 200 mile territorial sea which the countries of Latin America and ­Africa ­promoted not too long ago.”87 Evensen was not alone in expressing confidence that this would be the new coastal regime. Starting in the early 1970s, several states anticipated this ­outcome from unclos iii and made the new emerging coastal regime of extended jurisdiction a part of their national legislation.88 By 1976, the main principles of Package One (consisting of issues from Committees ii and iii) were resolved, leaving only the following issues for further negotiations: • To decide on the access to eezs for the Group of Land Locked and ­Geographical Disadvantaged States, • To decide on the scope over coastal state jurisdiction on marine scientific research in the eez, • To decide on the outer limit of the continental margin beyond 200 miles, and • To decide on delimitation principles.89 The remaining questions of Package One came to completion at the Ninth session in New York in April 1980 (see Figure 7.2). The fingerprints of Norway on what had already been achieved in Committee ii and iii were strong. This attracted attention, and possibly also some frustration in certain quarters. As an example and what looks like a heart sigh, Julio Scovazzi rather wishfully claims the straight baselines suggested by the Committee were tailored to Norway: “The wording of Article 7 of the Los Convention and Article 4 of the Geneva Convention is virtually a description of 86 87

Ibid., 27. Jens Evensen,”Fiskerigrense- og havrettspolitikk” in Aktuelle Økonomiske og Handelspolitiske spørsmål” (Oslo: The Royal Norwegian Ministry of Foreign Affairs, 1976), 1. Translation by author. 88 Satya Nandan, “The United Nations Perspective on State Practice in the 1982 Convention on the Law of the Sea,” in ” in M.H. Nordquist, ed., State Practice and the 1982 Law of the Sea Convention, (Charlottesville, va: Center for Ocean Law and Policy, University of Virginia, 1990), 58. 89 Miles, Global Ocean Politics, 485.

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the Norwegian coastline! The codified provisions were so much influenced by the judgement rendered on 18 December 1951 by the International Court of Justice in the Fisheries case (United Kingdom vs. Norway) that they literally reproduced some passages of the text of the decision.”90 And Scovazzi continues: “While drafted in general terms, Article 4 of the Geneva Convention and Article 7 of the los Convention in effect say that Norway, as well as the very few countries with portions of their coastline similar to that of Norway, may establish straight baselines. But what about the rest of the world?”91 As an informed and noted international lawyer, Scovazzi knew very well that Jens Evensen had been part of the legal team pleading the case for Norway before the Court of Justice in the Hague in 1951.92 Evensen had achieved a reputation as an international authority on the baseline issue. Scovazzi’s imagination suggested that the premises applied by the ruling of the Court in favor of Norway probably had been copied lock, stock and barrel and put into the negotiation texts and later on into the 1982 unclos Convention without any further delay and consideration. Scovazzi was not alone in reacting in this way to the ­Norwegian influence. In certain quarters of the Conference, small-group negotiations were perceived as a kind of “elitism” that ought to be substituted for by negotiations in the formal committees, each as a whole. Although this concern was expressed in general terms, it was, according to Miles, aimed at the Evensen Group, which met in private and therefore at Committee ii.93 This critique was not only articulated by the Group of Land Locked and Geographically Disadvantaged countries, but also by some of the delegations within the Group of 77, who were angry of not having been invited to participate in the Evensen Group. Since the Evensen Group by many was seen as a mini-conference aiming to produce a total packaged agreement on all the major issues before the Conference, it was important, and of course prestigious, to be part of it.94 While it is true that the Evensen Group consisted of participants from all geographical regions and groups, its representation was grossly weighted in favor of Coastal

90

Julio Scovazzi, “The Establishment of Straight Baseline Systems: The Rules and the Practice,” in Davor Vidas and Willy Østreng, eds., Order of the Oceans at the Turn of the Century (The Hague, London, Boston: Kluwer Law, 1999), 451–452. 91 Scovazzi, “The Establishment of Straight Baseline System,” 453. 92 Knut Einar Eriksen and Helge Øystein Pharo, Kald krig og internasjonalisering, 1949–1965, Norsk utenrikspolitikks historie, bind 5,” (Oslo: Universitetsforlaget, 1997), 353–359. 93 Miles, Global Ocean Politics, 208. 94 Ibid., 27 and 162, footnote 2.

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states and States with broad shelves. The Group of Landlocked and Geographically Disadvantaged States was clearly underrepresented.95 As already stated, most conflicts on Package One had been resolved by 1976. This shows that even in the face of large size and complexity, complex ­negotiating packages can enjoy fairly rapid agreement. This was partly due to the efficient use of power over outcome as practiced by the Evensen-Group and partly due to the “overwhelming force” of the coalition of the superpowers and the Coastal States Group (with the latter substantially overlapping the Archipelagic, Territorialist, and Large-Margin Groups as well).96 In shepherding Package One to a successful conclusion between 1977 and 1980, the ­following mediators, according to Miles played the dominant role: Amarasinghe (1977–79), Castaneda, Nandan, Evensen, Koh, Richardson, Kozyrev, Aguilar, Yankov and Stavropoulos (1977–78).97 Thus, the coastal states had won the day, but whether “… nationhood in the oceans (was) good or bad (was) no ­longer the question. Extensions of national jurisdiction (would) occur in proportion to the value of minerals, feeding ground, fish, and other valuables found offshore.”98 This anticipated expansion implied a dramatic reallocation of the control of the ocean resources of the world. With the establishment of the eezs, 35% of the ocean space and close to 90% of the global oceans’ living resources were brought under coastal state ­jurisdiction. Ten countries controlled more than 50% of the world’s coastal zone areas (eez), and Norway was among the most favored countries. When Norway in January 1977 established a 200 nm. exclusive economic zone offshore its mainland, 875,000 square kilometers of ocean space was added to the size of the country’s jurisdiction. Six months later Norway established a Fishery P ­ rotection Zone around the archipelago of Svalbard in the Arctic, adding another 836,000 square km to its eez area. This action was followed in May 1980 by Norway’s establishment of a Fishery Zone around the island of Jan Mayen in the Norwegian Sea, which increased the ocean space of Norway’s eez by another 292,600 square km. That is to say, more than 2 million square km, or five times the size of the Norwegian Kingdom, was allocated to Norway early on in the negotiations.99 Only 11 countries in the world have a larger eez than Norway. If one considers the relationship between the size of the land territory and the economic zone, only 3 of 11 countries in the world 95 96 97 98 99

Ibid., 176. Ibid., 485. Ibid., 409. Courtland L. Smith, “What are the Metes and Bounds of a Wave?” in Ocean Development and International Law, Vol. 4, (1977), 369. Word in brackets is added by the author. Stortingstidende, (Oslo, Stortinget, 1967–68), 4469.

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have benefitted more than Norway from the los Convention.100 Applying the margin criteria to delimit the continental shelf from the abyssal plain, Norway acquired some 1,5 million square km of seabed, which is four times the size of the nation’s mainland, and making up around 33 percent of the European continental shelf. Numbers like these do not necessarily say much about the actual material advantages gained. The important thing here is the amount of resources that are contained and harvested from within the zone and the shelf. At the conclusion of unclos iii, Norway ranked fifth among the world’s biggest offshore producers in barrels of oil per day, and in natural gas produced it ranked ­number three after only the usa and the United Kingdom.101 Among the biggest fishing nations of the world, Norway ranked seventh in million tons of catch. Shipping in terms of tonnage gave the same ranking to Norway as did the fisheries.102 Against this backdrop it is hard to argue against the conclusion that: “Norway is a giant in oceans affairs. Of all the nations of the world, it is only the usa and Norway that is on the ‘top-ten list’ of all four ocean based industries—oil, gas, fish and shipping.”103 Undoubtedly, the successful efforts at compromises effected by the Evensen Group and the Norwegian delegation left Norway with a generous chunk of ocean resources and jurisdictional responsibility and at the same time safeguarded the interests of its maritime industry. Norway has benefitted to an ­extreme degree; as a coastal state, from the general acceptance of the 200 miles economic zone principle; as a shelf state, from the extension of the continental shelf in places where it stretches beyond the eez; as a small state, from furthering the progressive development of international law; as a fishing nation, from a new management system for living resources; as a mediating state, from its role in contributing to resolution of the potential conflicts between coastal state and maritime interests; and as a negotiating state, from developing ­further the skills applied to achieve power over outcome. Considering all this, one can understand why the Norwegian government quite early on maintained that the objectives of its law and the sea policy ­formulated in 1974 had been fulfilled.104 One could add: it was indeed so to an unprecedented extent. A small state usually cannot expect such a big gain 100 Renate Platzoeder, “Maritime Anspruche 1979,” in un Seerecht-Konferenz und Deutsche Meersinteressen (Kiel: Protokoll des Meeres-Symposium, 1979), 82–87. 101 Ocean Yearbook 1985 (Chicago: University of Chicago Press, 1985), 493. 102 Ibid., 485 and 502. 103 Steinar Andersen, Makt og rett på hav og havbunn, 122. Translation by author. 104 Finn Fostervoll, “Teknologi og kappløpet om nye ressurser.” Havretts- og Fiskerispørsmål (Oslo: Royal Norwegian Ministry of Foreign Affairs, 1983), 8.

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when acting in international politics. In global negotiating contexts, however, the clever projection of power over outcome, can make small states gain as much as big states by leaning on a consensual majority of world states, and in the case of Norway, even more than some of the big states in the world politics. According to Friedheim, “All stakeholders paid a prize in the process of crafting a world ocean regime. Middle developed states [in terms of the present analysis, small developed states like the Scandinavian states, Canada etc.] paid the lowest price. In many respects, given the leadership role many of their ­representatives played in the negotiations, unclos iii is their treaty.”105 Norway in the Negotiations of Committee i In the fall of 1976, after the basic challenges of Package One had been resolved, Jens Evensen moved on to intensify his mediation between the Group of 77 and the Group of Five in Committee i on the content of the deep sea bed regime. Norway had no pressing economic interests related to the abyssal plain, but Evensen took upon himself to continue the successful mediation started in the un Seabed Committee in the period 1968–73. In a survey undertaken on delegate perceptions as to which country had been the most constructive mediator in the Seabed Committee, Norway ranked at the top, followed at a considerable distance by Belgium, India, Malta, Ceylon and Kuwait.106 Thus, even before the start of unclos iii, Norway had acquired a reputation of being a constructive mediator in deep sea bed mining matters to be continued at unclos iii. Against this successful backdrop it came as a complete surprise to many— even to representatives of the Norwegian delegation—that Evensen in the opening phase of unclos iii, on 16 August 1974, launched a fairly harsh attack on two proposals on deep seabed mining submitted by respectively the us and the eec. Evensen contended that those proposals reflected an o­ ld-fashioned understanding of contract relations: The us proposal in particular, he ­declared, contained rules on mining and petroleum concessions that were ­inappropriate to current day realities and dated back to the early decades of the twentieth century. This outburst was received with acclaim and satisfaction by the Group of 77 but caused public and private reverberations within the us and eec delegations, not only as a result of what was said, but also perhaps, as a result of who said it. Evensen was seen by most delegations to be one of the very 105 Friedheim, Negotiating the New Ocean Regime, 307. Text in brackets and the italics are added by the author. 106 Johan Ludvik Løvald, “In Search of an Ocean Regime: The Negotiations in the General Assembly’s Seabed Committee 1968–1979,” in International Organization, Vol. 39 (1975), 704.

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influential participants at the Conference, especially in his acclaimed role of mediator. At the same time, he had earned a considerable reputation during the Seabed Committee’s deliberations as an effective negotiator of mining and offshore petroleum concessions;  “and both dimensions came into play in delivering this blast.”107 In diplomatic terms, the attack was unusually provocative in that it was delivered by a Minister of the Norwegian Cabinet against countries of which Norway had traditionally enjoyed very close political, economic and friendly relations. How is this incident to be comprehended? Evensen was empathetically clear: “An effective resource preservation ­regime on economic goods that the whole world depends on, has to contain a fair and just allocation scheme to meet the needs of all states, the developing countries included. The concept of the ‘common heritage of mankind’ is the inspirational guarantor of this interpretation”108 Usually, material national interests are the guiding star for state behavior in international negotiations. This is not to say, however, that normative principles may not be integral parts of national interests, nor, for that matter, that such principles may be national interests on their own merits. Human rights, freedom of speech, and the like, all are values that democratic states have proven willing to stand up for and defend. From historic experience we know, however, that normative arguments have also been used to provide a respectable façade to cover up brutality, greed and violations of normative rights. For a normative argument to be accepted as genuine and trustworthy, and not used as a concealment of something that do not stand the light of day, it has to be ingrained in the working of the national fabric of society and to be widely accepted. In unclos iii, the Group of 77—comprising the majority of world states—supported Evensen’s move as legitimate and justified. To a large extent, this response was also forthcoming from large segments of the Norwegian political system and population. As a true social-democrat representing a Labor party government, Evensen was here articulating the Norwegian values associated with equal distribution of wealth and concern for the poor and developing states. To him, justice, solidarity and care for the unfortunate were core values; they were implanted in him from his upbringing as one of three siblings in a family working their way up from relative poverty to wealth within the meat industry in the capital of ­Norway, Kristiannia/Oslo in the early twentieth century.109 Although he had 107 Miles, 149. 108 Cited from Berit Ruud Retzer, Makten, myten og mennesket Jens Evensen, En uautorisert biografi (Gjøvik, bbg Forlag,1999), 203. Translated by the author. 109 Willy Østreng “Jens Evensen—Biografi,” Norwegian Bibliographical Lexicon, Vol. 2 (­Kunnskapsforlaget, Oslo), 2000.

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become a wealthy man, a millionaire, Evensen never lost touch with these values, neither as a civil servant nor as a politician, and never as a human being. One of many evidences of this was his membership in the Norwegian Labor party, located slightly to the left in Norwegian politics, and indeed his sympathy with the leftist faction of the same party. As has been noted, in unclos iii Jens Evensen operated with two faces: The first—the idealistic one—advocated that economic goods should be allocated in a fair and equal way between all nations of the world (as Evensen sought to achieve in Committee One), whereas the second—the nationalistic one—operated on the basic criterion that resources should be distributed to a specific group of states, Norway included, based on geographical features such as the length of coasts and the extent of continental shelves (as Evensen succeeded in achieving in Committees Two and Three). This duality in approach, or lack of policy coherence, made some representatives even of the Norwegian delegation concerned. In their mind, Evensen should stop this “nonsense about the common heritage of mankind” and concentrate on not jeopardizing Norwegian material interests.110 What had been achieved in Package One (not least due to Evensen’s good office and innovative diplomacy) had in fact been more than Norway could have realistically hoped for. The critics’ feeling was that Evensen should not rock the boat, but instead should keep a low profile in ideological matters to preserve what had already been achieved in Package One by an extraordinary successful application of power over outcome. Against this backdrop, it seems plausible that Evensen’s move stressing the common heritage principle was undertaken largely on a semi-private basis, without previous consultations with neither his own delegation nor with the Norwegian government. He may have acted on a political impulse based on his own perceptions of right and wrong, albeit indirectly supported by the fact that the Norwegian government for long had been sympathetically inclined towards and explicitly supportive of the claim of the developing countries for a new international economic order (nieo). The international forging of a brand new deep-sea bed regime was perceived as an important test of the credibility of that position and, furthermore, perceived as being in perfect alignment with social democratic thinking. In 1974, Evensen suspended his deployment of the practice of power over outcome in deep seabed mining deliberations. In his mind, mediation was at the time neither appropriate nor even called for. In light of what had been achieved in Package One he felt that: “In economic and power political terms, we [i.e., Norway] are no longer a thin country and negligible voice in 110 Berit Ruud Retzer, Makten, myten og mennesket Jens Evensen, 202–205.

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the ­international choir. We can no longer leave decisions to other countries, whether we traditionally have enjoyed close connections with them, or they are further apart in foreign policy.”111 Here he claimed that the practice of ­power over outcome had paid off and changed the status of Norway in international relations, implying further that, as a consequence, his criticism of the us and eec proposals in Committee i was a legitimate move. Miles, in his analysis, is inclined to stress that the work of Committee i was swallowed up by an excess of “symbolic politics,” having an adverse effect on the possibility of achieving universal acceptance of the Convention. This demonstrates that the work invested to reach agreement on Package Two, and to overcome the barriers of large size and complexity combined with “sustained ideological conflict will either produce no agreement or an agreement that is so tenuous that it will not survive challenge.”112 In what looks like a sigh of exasperation, Miles concludes that “without the conflagration of the seabed regime issue, the Convention could have been completed by the end of 1978, a period of only four years from the beginning of substantive work in Caracas in 1974.”113 As stated above, Evensen’s move on August 16, 1974 was not conducive to a positive and quick resolution, but he was not in any way solely responsibility for the sustained duration and the continued ideological “contamination” of the conflict. That responsibility rested mainly with the principal protagonists in the conflict, specifically the us delegation and the Group of 77. (See further discussion of this matter below). Evensen’s reputation as a gifted mediator endured, and, in the fall of 1976, he was once again called upon to address Committee i-issues. He accepted the offer on the grounds that to achieve a comprehensive los package, all aspects of the Law of the Sea had to be successfully negotiated and accepted by the conference; Committee i- related issues were in dire need of creative diplomacy to overcome the barriers of ideology. This time Evensen moved away from ideological politics and instead applied afresh the mediator tradition he had used in the Seabed Committee and still deployed in the Evensen Group, Committee ii and iii. What is more: as discussed above, he now enjoyed widespread support as mediator from multiple delegations and groups of countries on the basis of the results he had achieved in the intersessional meeting prior to the Sixth Session (in 1977). Evensen was back in the mediation business, and

111 Interview with Jens Evensen in the Norwegian Daily, Arbeiderbladet, 03.07.1975. ­Translated by the author, and words in brackets are those of the author. 112 Miles, Global Ocean Politics, 493. Text in brackets is added by the author. 113 Ibid., 97.

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seemingly he had regained some of the trust of the more decisive actors, both the us delegation and important delegations within the Group of 77. The technique Evensen adopted to move negotiations forward was indeed bold: He started out by formulating “a draft compromise which, in successive iterations, would approach consensus.” Then, at the beginning of the sixth session he proceeded to submit a revised version of the draft formulations “deliberately tilted toward the Group of 77. This tilt elicited the anticipated barrage from the Group of Five. A second revision would give him the opportunity to begin to redress the balance so that, by the third revision, a consensus text could be arrived at.”114 To intensify the work, Evensen arranged in early 1977 for another intersessional meeting on the unresolved deep-seabed mining issues. In so doing, he “succeeded in completely redefining the negotiation situation, and had once again to put the conference on the road to potentially fruitful negotiations.”115 For some time, it had been widely felt that his texts proposals represented a possible basis for further negotiations.116 He reported directly to the chairman of Committee i, but it turned out that the text proposals submitted were subject to substantial objections and reservations from the industrialized as well as the developing countries. In the last stages of the Conference it became evident that no compromise group or mediator could bridge the gulf between the us Delegation and the Group of 77. Although the “Friends of the President,” consisting mainly of some of the allies of the us, did make a valiant attempt to turn things around, they too were unsuccessful. The effectiveness of “power” is relative to the specific situation. One can have less power in one situation (as in deep seabed matters) and more in another (the eez).117 As pointed out by Coleman and Ferguson, many practical techniques of conflict management offer recommendations such as “If you become emotional during conflict, wait until it passes before you act,” or, “Rise above your emotions and try to get a rational perspective on the situation.”118 Power over outcome is no exception. As a compromise and as an issue-linkage provider, it seems to lose out in effectiveness if mediators take sides in value conflicts or “become political.” Power over others is based on strict personal competence, an orientation toward pragmatic solutions, and a disregard of emotions related to ideology. Seemingly, Evensen, in light of the 1974 i­ncident, thus lost out in prominence as a mediator in the perception of his fellow delegates. 114 115 116 117 118

Ibid., 418–419. Ibid., 418. Dupuy and Vignes, A Handbook of the New Law of the Sea, 214–215. Coleman and Ferguson, Making Conflict Work, 27. Ibid., 18.

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Small States in the Decision-Making Process of unclos iii Table 7.1

States actors

Miles’ ratings of influential delegations and individuals at unclos iii, 1976

Superpowers Regional big powers

Delegations usa, ussr

Australia, Brazil, Canada, France, India, japan, United Kingdom

In percent

28%

8%

Individuals Ratiner (usa)

Beesley (Canada), Harry (Australia), Jagota (India), Lapointe (Canada), Lautherpacht (Australia), Legault (Canada), Thompson- Lores (Brazil)

In percent

18%

3%

Small states

Micro states

Austria, Chile, Iceland, Indonesia,Kenya,Mexico, New Zealand, Peru, ­Philippines, Sri Lanka, Tanzania 44%

Fiji, Bahamas, Jamaica, Singapore, Trinidad-Tobago

Vindenes (Norway), Adede, (Kenya), Aguilar (Venezuela), Amarssinghe (Sri Lanka), Aries-Scheiber (Peru), Castaned (Mexico), Cisse (Senegal), Djalal (Senegal), de Soto (Peru), Engo (Camerun), Evensen (Norway), Mbote Kenya), Kusumatomadja (Indonesia), Njenga (Kenya), Pinto (Sri Lanka),Vallerta (Mexico), Warioba (Tanzania), Yango (Philippines), Yankov (Bulgaria), Zegers (Chile) 53%

Adderley (Bahamas), Ballah (Trinidad-Tobago), Koh (Singapore), Mcloughlin (Fiji), Rattrey (Jamaica), Thomas (Trinidad-Tobago)

20%

16%

Source: The table is a Composite of empirical data from Edward L. Miles, Global Ocean Politics to fit in with the typology applied in this study.

In the period 1976 to 1982, neither Norway nor the Norwegian delegation was rated as belonging to the most influential actors at the Conference, i.e., actors having an impact on output (see Table 7.2).119 This was in contrast to the ­ratings 119 Miles, Global Ocean Politics, 72.

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that both Evensen and Vindenes had achieved in 1976, when they were regarded as belonging to the group of the most influential mediators (see ­Table 7.1).120 Although there are methodological reasons for not paying too much attention to these changes (Tables 7.1 and 7.2), the drop in ratings for Norwegian mediators coincided with a reduction in Norway’s negotiating capacity and preparedness. From 1976 and onwards the size of the Norwegian delegation was gradually reduced, and in 1979 the Ocean Law Secretariat was closed down. With the closure of the Secretariat, the Norwegian government also did away with its Minister of Ocean Law and transferred that policy area back to the Ministry of Foreign Affairs.121 These changes, along with Evensen’s lack of success in Committee i, may partly explain why the visibility and prominence of Norway as a mediator was reduced. What is more, at the time Norway had secured its prime national interests in Committee ii, thanks to the Evensen Group. The Norwegian fight for securing material interests had already been crowned with success. Norway gained much from the unclos iii process, more than most countries, indeed even more than most big countries did. In this respect, it is unwise to generalize from the result it achieved for Norway, as will be explained in the Section below.

The Ability of Small States in General to Apply Power over Outcome in unclos iii It stems from the above analysis that small states’ influence in the conference relates to their positions in the group structure and in the quality of their mediating skills. That is to say, in their ability to move the negotiating processes forward, both within and between the formal and informal structures. In this respect, the assessments of qualified observers as reflected in Tables 7.1 and 7.2 will be used as our main database. Let us start with their significance in the formal structure. As already concluded, the choice of conference leadership (President, Committee Chairs, etc.) was absolute critical to the effective working of the conference, not least in overcoming the great inertia created by an unwilling conference. It took courage, diplomatic skills, knowledge and understanding of the substance, reliability, and impartiality to orchestrate the development of the convention. Thus, the staffing of the highest ranking formal positions was important both to the progress of the negotiations and to the objective of reaching finish line with a consensual result.

120 Ibid., 73–74. 121 Steinar Andresen, Makt og rett på hav og havbunn, 111.

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Small States in the Decision-Making Process of unclos iii Table 7.2 Miles’ ratings of influential compromise groups, delegations and individuals at unclos iii, 1976–1982 States actors

Superpowers

Regional big powers

Small states

Delegations (22)

ussr, usa

In percent

9%

Australia, Brazil, Canada, France, India, Japan, United Kingdom 32%

Austria, Iceland, Indonesia, Jamaica, Kenya, Mexico, New Zealand, Singapore Nigeria, Peru, Phillipines, Sri Lanka, Tanzania 50% 9%

Individuals (28) Aldrich (usa), Clingan (usa) Oxman (usa), Ratiner (usa), Richardson (usa), Sohn (usa)

Beesley (Canada), Brennan (Australia), Jagota (India), Thompson-Flores (Brazil)

In percent

14%

Aguilar (Venezuela), Engo (Camerun), Amarasinghe (Sri Lanka), Arias-Scheiber (Peru), Castaneda (Mexico), de Soto (Peru), Manner (Finland), Njenga (Kenya), Pinto /Sri Lanka Rozenthal (Mexico), Vallerta (Mexico), Stavropoulos (Greece), Warioba (Tanzania), Yankov (Bulgaria), Zuleta (Columbia) 54%

21%

Compromise groups (10)

In percent

Brennan group

0%

10%

Micro states

Koh (Singapore), Nandan (Fiji), Rattray (Jamaica)

11%

Evensen group, Castaneda- Nandan group Vindenes group, Rozenthal group, Vallerta group, Head of delegation group (chaired by Yankov), Group of 21 (chaired by Engo), Working group of 21 (chaired by Njenga) 80% 10%

Source: The table is a composite of empirical data from Edward L. Miles, global ocean politics and fitted to the typology of states applied in this study.

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The two Conference presidents, Hamilton Amarasinghe and Thomas Koh, represented two micro states, respectively Sri Lanka and Singapore, whereas the chair of the committees came from small developing countries; The Chair of Committee i, Paul Engo came from Cameroon, and the Chair of Committee ii, Andres Aguilar came from Venezuela, whereas the Chair of Committee iii, Alexander Yankov came from Bulgaria. Thus, only small and micro states staffed the top positions of the formal structure. In the overall work within the three committees, the delegations of the small and developing countries were most active. In Committee i, the dominant players were two common interest groups, the Group of 77, in which the delegations from Peru, Brazil, Algeria, Chile, Trinidad-Tobago, Singapore, Ghana and, intermittently, India and Mexico kept a high profile; and the Group of Five, in which Leigh Ratiner of the us delegation stood out in taking an active part. As mediators Jamaica, Canada and Norway played important roles, as did Ambassador Pinto of Sri Lanka and Paul Engo of Cameroon. As Friedman has commented, “mediation was not only connected to individuals and personal attributes, but also to delegations that had history of mediating between, for example, rich and poor, large and small. Canada prided itself on playing such a role.”122 When it came to Package One of Committees ii and iii, the basic outlines of the solution were to a noticeable degree determined by the Latin American and African Groups, representatives of which later mobilized the Group of 77. In so doing, the Territorialists, particularly Peru and Brazil played a crucial role in pushing the ‘moderates.’ i.e. Kenya, Tanzania, Senegal, Mexico and Venezuela, “further than they might have gone on the nature of the eez.”123 As already stated above, the importance of the informal groups to a successful outcome of the conference “cannot be overemphasized.”124 In these groups the representation of small states was, however, somewhat more mixed than in the formal structure. If we use Miles’s influence ratings as our basis of substantiation, the picture is still in favor of small states. Tables 7.1 and 7.2 summarize Miles’s ratings of influential delegations, individuals and compromise groups. Influential in this respect means successful application of power over outcome. In reading Tables 7.1 and 7.2, a note of methodological caution is necessary. To make percentages of small universes (i.e., of the numbers in brackets) is neither statistically significant nor satisfactory. For this reason the percentages should only be read as quantified indications summarizing the  written 122 Friedheim, Negotiating the New Ocean Regime, 344. 123 Miles, Global Ocean Politics, 69. 124 Ibid., 247.

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texts in the tables. It should also be noted that the ratings are subjective and that other informed and qualified observers might have come up with different ratings. Since this author has not come across alternative s­ ources125 that contradict Miles’ data, for the purpose of our analysis we use them as sufficiently valid and reliable sources here. First and foremost, the tables show that all four categories of states—the superpowers, big regional powers, small states and micro states—are rated as influential, both in 1976 and in the ensuing period. This is indicative that power over outcome is highly distributional or “democratic.” It stands out to be the property of all categories of states on terms equal to all. In this perspective, small states can be big and the big states can be small in power relations. Size is not a decisive factor in telling who has power or not. However, since small and micro states are in majority in the world, it comes as no surprise that they were well represented among the most influential delegations and individuals at the conference. As shown in Table 7.1, in a universe of 25 influential delegations 44% is assessed to belong to small states, and for the whole period 1976–1982 this percentage increased to 50% (see Table 7.2). When it comes to mediators or influential individuals small states made up for more than 50% in 1976, a percentage that was repeated for the ensuing six-year period. Most of the influential delegations and individuals came from developing countries both in 1976 and in the period 1976–82. Table 7.2 shows that out of a tiny little universe of 10 influential Compromise groups, 8 of the chairmen came from small countries, whereas one came from a big regional state and one from a micro state. Since compromise groups to a large extent were established on private initiatives to sort out pressing challenges, small states also in this respect stood out with a visible and active profile. In brief strokes, both tables show that the representation of micro states among influential delegations and individuals is comparable to that of big regional powers. As cited above, the compromise groups dominated the decision-making process with Castaneda, Evensen, Aguilar, Yankov, Vallarta, Njenga, Koh, Engo and Nandan 125 As this author reads the late Robert L. Friedheim’s excellent book on unclos iii, Negotiating the New Ocean Regime, there is nothing in his analysis that directly contradicts Miles’ data. There are however, some uncertainties to this conclusion. Friedheim’s book is more of a theoretical and conceptual analysis in which the empirical data may be concealed in the generalizations made, whereas Miles’s book, as noted earlier in this chapter, has a more historical and empirical orientation, based in large measure on his detailed interviews of great numbers of delegates over the full period of the unclos iii deliberations, and providing information of a more detailed and varied character. In this difference, there may of course be some disagreements between the two authors that do not come to the fore.

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“playing the principal parts.” All these are representatives of small states, and only one represents a developed country. Friedheim asserts that “major developed and industrial states were among the most vocal participants at unclos iii. Not many of their spokesmen were considered among the most influential Conference leaders …”126 In the context of unclos iii, Bismarck’s nineteenthcentury aphorism comes to mind: “We live in a wondrous world, in which the strong is weak because of his scruples and the weak grows strong because of his audacity.”127 From these tables, seven conclusions stand out: First, small states and their representatives, in particular developing countries, figure prominently among influential states. When it comes to influential delegations and mediators, the Norwegian profile fits in with this conclusion at least for the period 1974–1976. Second, micro-states—Fiji, Singapore, Jamaica, etc. —and their representatives are rated as being among the most influential, both when it comes to delegations and individuals, underscoring the distributional aspect of power over outcome, Third, regional big powers and their representatives are rated as ­belonging to a group of influential actors. The more visible of these are developed countries like Canada and Australia. Among developing countries, Brazil and India and their representatives have made an impact on the outcome. Fourth, both superpowers are rated as being influential when it comes to delegations (more on this below). At the individual level, it is striking that only the us representatives are assessed as standing out for having had an impact on output both in 1976 and in particular in the period 1976–82 (see Tables 7.1 and 7.2). Fifth, out of the compromise groups identified and represented in ­Table 7.2 the majority were chaired by representatives from small states, and the bulk came from developing countries. None of the groups was chaired by representatives from the superpowers, whereas one micro state chaired one of the groups. Sixth, of the 155 states that took part in the conclusion of the Conference only around 35% achieved the rating of being influential. It stems from this that not all small states can lean on the skills associated with 126 Friedheim, Negotiating a New Ocean Regime, 295. 127 Cited from Henry Kissinger, World Order (New York: Penguin Press, 2014), 230. Text in brackets added by the author.

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effective power over outcome. This is a person-dependent skill acquired through education, learning and experience, and restricted only by the availability of individual talent. The investments are in people, not in costly armory. Thus, the skills are within reach even to countries with limited economic resources, the micro states included. Seventh, the person-dependence of power over outcome is clear and visible from Tables 7.1 and 7.2. It is also characteristic that only a handful (between 28 and 38 persons) played effective mediating roles in the last six years of the conference. Out of these again only 8 to 9 persons seems to have played that role more or less effectively from start to finish, and all of them came from small countries with the majority coming from the developing world. At unclos iii, the skills of power over outcome, exerted to such a visible extent by smaller states, came to expression in a multifaceted combination of properties related to power over outcome. It showed in the ability to cut across political and ideological cleavages, to seek compromises, provide consensual knowledge, create convergence, define the negotiating agenda, influence coalition building, establish an atmosphere of cooperation, to move parties beyond their national positions, integrity, diplomatic and legal skill, to see problems as wholes, to understand the problems which underlie challenges, to be evenhanded in suggesting compromise formulations, courage, knowledge and understanding of the substance, to establish shared meaning, reliability, and geopolitical acceptability. The dominant position of power over outcome at the conference does not mean that power over others was totally missing or inadequate. It came to expression at least in an indirect way, as both small and big regional states encountered the dilemma of adjusting their policy to that of the superpowers (see Figure 7.1). Although many of the spokesmen of the major industrial countries were not considered among the most influential conference leaders, Friedheim asserts, “… there was an awareness that if the wealthiest developed states were substantially dissatisfied a convention might not emerge, or if it did, it would not be easily enforceable. Cooperation from the developed states was essential.”128 There seems to be no doubt that the East European states felt compelled to follow the Soviet example of abstaining from signing the ­Convention in 1982. The same was most likely the case when the deputy chairman of the Japanese delegation in 1981 stated: “Japan would be confronted with one of her most difficult decisions in the post-World War ii period if the usa 128 Friedheim, Negotiating the New Ocean Regime, 295.

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d­ ecided not to ratify the Convention.”129 Many of the United States’ close and small allies felt the same way when abstaining from signing the Convention at the conclusion of the conference in Montego Bay. But not all states abstained. France and Great Britain, on their part chose to join in and pool resources with the superpowers, for instance in the Group of Five, whereas big regional states like Australia and Canada seemed determined to follow a typical small-state policy to develop and strengthen international law and therefore save the Convention from foundering. But no policy position is forever. The dramatic changes of the international system—the breakdown of the Soviet Union and the cessation of the Cold War in the early 1990s—slowly but gradually moved States, both small and big, including even some of the States that previously had embarked on an adjustment policy, towards signing and ratifying the ­Convention. In this regard, Lord Palmerston’s old maxim seems to have prevailed: “In international politics nations do not have long term friends or allies, only long term interests.”130 When it comes to battling complexity, the experience on Package One through 1982 shows that even in the phase of large size and complexity, a comprehensive negotiated package can enjoy a fairly rapid agreement of an overall formula if the underlying interest of the parties can be met. The agreement on Package One was achieved in a relative short time as a robust achievement, “withstanding all challenges and even intense conflict,”131 whereas Package Two demonstrated that large size and complexity combined with sustained ideological conflict produced a contentious result lacking both in robustness and support. As stated by Thomas Koh: “Personal leadership at unclos iii did not always coincide with the size of the country of the individual who offered it, or was asked to give it. Sometimes it did, however, as in the noteworthy case of Elliot Richardson, the effective chairman of the u.s. delegation.”132 Undoubtedly, in certain issue areas, Richardson belonged to a select group of influential mediators, but he never succeeded in bridging the gulf between the us delegation and the Group of 77 on deep seabed mining. In any event, this was made impossible with the change of the us Administration in 1981, when the Reagan Administration soon after having taken office announced that its delegation leadership had been fired and that the delegation was instructed 129 Steinar Andresen, Makt og rett over hav og havbunn, 69. 130 Cited from Hans Olav Lahlum and Øivind Bratberg, Britiske statsministre 1900–2015. Fra Lord Salisbury til David Cameron (Oslo: Cappelen Damm, 2015), 18. Translation by the author. 131 Miles, Global Ocean Politics, 493. 132 Koh, “Negotiating a New World Order,” 104.

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to seek a delay in the conclusion of the conference while the administration conducted a review of what had been done so far and how it accorded with us interests as the new administration saw them. At the end, the new administration declined to sign the Convention. This is a reminder that political philosophy and visions define frames and premises on which power over outcome is based, namely willingness to reach agreement by means of compromise and mediation. This change in political ­visions was imminently shown at the Seventeenth Annual Conference of the Law of the Sea Institute in Oslo in July, 1983 of which this author had the ­privilege to serve as General Chairman. At that occasion a Representative in the u.s. Congress, Republican John Breaux, made a speech on The Case Against the Convention, in which he ended by rejecting “… the idea that in order to protect the rights of other nations, my nation should somehow be called upon to make basic compromises—and compromises in areas that are of fundamental importance to the United States as a sovereign nation.”133 In response to this conclusion, Elliot Richardson, who previously had delivered a speech on the Case for the Convention, stated: “As to the Convention being fundamentally flawed: I think you (Congressman Breaux) gave your position away at the end of your very closing words, when you said that the United States should not be called upon to make basic compromises. Frankly, I do not see how the United States or anyone else can ever undertake to engage in any serious international negotiations unless it is prepared to make basic compromises.”134 Here Congressman Breaux, seems to resort to a political philosophy underscoring power over others as a prime means of securing national interests, whereas Elliot Richardson underscored the need, even for a superpower, to use power over outcome as a supplementary means of securing national interests. What we see in the disagreement between Richardson and Breaux is that chance events, particularly in the form of changes of governments, “are major potential dangers facing lawmaking conferences which experience extended negotiating time.”135 The application of power over outcome was suspended by fresh politics, and no agreement could be achieved on Part xi of the Convention. According to observers, this exogenous intervention effectively stopped the on-going progress of the negotiations in Committee One. On the issues of Part xi, two ideologies stood up against each other: the ­ideology of the nieo as represented by the Group of 77, and the ideology of the 133 John Breaux, “The Case Against the Convention,” in Albert Koers and Berhard H. Oxman, eds., The 1982 Convention on the Law of the Sea, 14. 134 Elliot Richardson, “Discussion Input,” in ibid., 15. 135 Miles, Global Ocean Politics, 496.

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free-market as represented by the Reagan Administration extolling the private sector as the only legitimate basis of economic life. Friedheim claims that Elliot Richardson and Leigh Ratiner, head and deputy head at various times of the u.s. delegation, believed that success on Part xi was close to achievement at the time of the Reagan intervention. This belief was rooted in the emerging result of their tactics to apply incremental concessions, to overcome the passions of ideology by careful step-by-step work; “that the commitment by the other side is merely rhetorical; and that the principle can be circumscribed with precise language.”136 At the time of the intervention, provisions were negotiated on a number of Part xi issues that could be characterized as positive sum: the parallel system, financial terms, reasonable rates under production control, and even representation and decision-making in the isa Council. Friedheim concludes that Richardson and Ratiner “might well have succeeded if not sabotaged by their masters.”137 Thus, the failure to reach universal agreement­on Part xi was not indicative of power over outcome lacking in effectiveness in conflict resolution, but rather that power over others was used to terminate the continued application of power over outcome to avoid ideological results regarded as unacceptable. Two years after the closure of unclos iii, in 1984, Jorge Castaneda, former Foreign Minister of Mexico declared that the ideological foundation of the old order of the law of the Sea had changed: “Custom—that is, the practice mainly of great powers, particularly in the law of the sea—is not considered anymore the dominant factor in the creation of law; it has almost become factotum … [T]he preferred method for the creation of international law is the universal conference in which all states, old and new, big or small, participate in a plane of equality.”138 This reasoning also gained resonance among representatives of superpowers. Deputy Chairman Ratiner of the u.s. delegation, among others, acknowledged this change immediately following the conclusion of unclos iii.: “In short, the guardians of pure conservative ideology may have won a battle when the United States stood alone at the Law of the Sea Conference, but the United States may lose a very important war …. Our senior foreign policy makers should understand that once leadership is abdicated and the world finds that it can proceed without us, it will not be easy for the United States to reclaim its influence.”139 In Ratiner’s mind, the United States now might 136 Friedheim, Negotiating the New Ocean Regime, 351. 137 Ibid. 138 Jorge Castañeda, “The Law of the Sea Convention and the Future of Multilateral Diplomacy,” in Koers and Oxman, eds., The 1982 Convention, 559. 139 Leigh Ratiner, “The Law of the Sea: A Crossroad for American Foreign Policy,” in Foreign Policy, Summer 1982, 10.

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experience a strongly modified and weakened version of President Ronald Reagan’s “… apparent desire to return the United States to a period of power and influence in world affairs in which its policies would simply be enunciated rather than sold to others through a process of diplomacy and negotiation.”140 Leigh Ratiner’s worries, stated in 1982, had already begun to apply to a broader set of policy areas: Eight years later, Professor Haas would write: “T]he United States [has] been signally unsuccessful in translating its superpower status into consistent influence over the content of [un] programs, having lost many programmatic battles for almost two decades except in organizations in which greater power is recognized in the form of weighted voting.”141 Robert Friedheim, writing in 1998, concurred: “The us record in recent years of willingness to be part of collective solutions is not good: witness the Land Mine Convention and the World Criminal Court. Whether the world community can function on ‘soft power’ and do away with the necessity of compromising with ‘hard power’ remains an open question.”142 Friedheim’s open question is highly relevant and valid, not only in general, but also in the continued endeavors to regulate the exploitation of world oceans. As is well known, numerous ocean-related issues were not anticipated in the deliberations at the time of unclos iii. Issues like genetic ocean resources, for which the relevant technology had not yet matured and on which full and adequate regulation is still pending. Among other important questions are the special character and challenges of the ice-infested polar regions— the Arctic Ocean and the Southern Oceans—and the degree to which climate change and other external factors (including continental shelf claims) might later need to be addressed by the global community.143 Questions of this kind, all of which are ocean related, are in need of concerted global actions in which the us and big regional states (Russia, China, India, etc.) need to take an active part to be effective. Some fresh signs of us commitment to the results of global diplomacy seems promising: the Obama Administration’s active contributions 140 Ratiner, “The Law of the Sea,” 1020–1021. 141 Haas, The Power of Knowledge, 58. 142 Robert Friedheim, “A Proper Order for the Oceans. An Agenda for the New Century,” in Davor Vidas and Willy Østreng, eds., Order for the Oceans, 557. 143 See Sherry Broder’s chapter in this volume for how the Law of the Sea Institute conferences over the years contributed to identifying the neglected issues of the unclos iii. For this question see also the conference report dedicated to the themes in question: John King Gamble, Jr. (ed.) Law of the Sea: Neglected Issues, Proceedings, Law of the Sea ­Institute, Twelfth Annual Conference (University of Hawai’i, October 23–26, 1978); Douglas M. Johnston (ed.), Arctic Ocean Issues in the 1980’s, Proceedings of the Law of the Sea Institute and Dalhousie Ocean Studies Programme (Honolulu: University of Hawai’i, June 10–12, 1981).

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to the successful conclusion of the Convention on Climate Change in Paris in late 2015, and its stated willingness to take effective measures to have that Convention implemented. During his time in office, President Obama has time and again reiterated his wish “for all of us to take our share of responsibility for a global response to global challenges.”144 At the same time, he acknowledges that different situations require different means of power applications. As a consequence, the concept of “smart power”—merging the means of “power over outcome” with those of “power over others”—has become central in what has been termed “the Obama doctrine;”145 This is another occasion when such sharing of global responsibility through power over outcome is indispensable, and it seems as if big regional powers are inclined to follow the us example. But the signs are not unequivocally promising: The skepticism voiced in the u.s. Republican Party damaged the potential for the us ratification of the Climate Convention to be achieved when the 2016 presidential election brought a new political philosophy to the White House. That happened in regard to ratification of unclos; it now has happened again. Thus, the battle between the proponents of power over others and the proponents of power over outcome is still a signature element in us politics. As stated in the introduction to the present chapter, in 1983 Elliot Richardson suggested that in order to appreciate the massive achievement of unclos iii, there may be a need to stretch the definition of politics beyond the conventional one as the “art of the possible.” In his response to Congressman Breaux, Richardson did not stretch the definition of politics, but identified compromise as the explanatory factor, or in our analytical framework, “power over outcome,” as the way to understand the success of unclos iii. Richardson’s second question from 1983, in need of an answer, was this: At the 1958 and 1960 un Conferences it proved impossible for gifted negotiators … to reach agreement on one key issue: a maximum breadth for the territorial sea. How then could nearly twice as many states, with a vastly expanded mandate to legislate new international law for the 144 Geir Lundestad, Fredens sekretær. 25 år med Nobelprisen, (Kagge Forlag, Oslo, 2015), 239. 145 See introduction to this chapter and Friedman’s statement, above, at n. 143. The phrase “Obama Doctrine” which has gained some currency in recent years, is the title of an article reporting an interview with the President in which Obama stressed that his professed reliance upon “cautious pragmatism” and the selective deployment of soft power, is a preferred alternative in appropriate situations to a consistent overreaching and reliance on military force or coercive threats. Jeffrey Goldberg, “The Obama Doctrine,” The Atlantic, April 2016.

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s­ eabed as well as [to] recodify and expand the traditional law for the territorial sea, the high seas, and the continental shelf, and with no time limits except the patience of the participants, be expected to register real progress? Alexander Yankov—the thoughtful chairman of Committee iii—provides the concise answer: “The provisions of the 1982 Convention reflect a compromise solution on a significant number of critical issues which the previous United Nation Conferences on the Law of the Sea in 1958 and 1960 failed to resolve or avoided altogether.”146

146 Alexander Yankov, “The Significance of the 1982 Convention on the Law of the Sea for the Protection of the Marine Environment and the Promotion of Marine Science and Technology—A Paper on the Third Committee,” in Koers and Oxman, eds., The 1982 Convention on the Law of the Sea, 71.

chapter 8

Special Address: iuu Fishing and the International Tribunal for the Law of the Sea Jin-Hyun Paik It is my great pleasure and honour to attend and speak in the conference to commemorate the half century of the losi. I am grateful to the losi and its Director, Professor Harry Scheiber, for this kind invitation. Before I start, allow me first to congratulate the remarkable achievement of the losi over the past five decades. Of course those decades have been, as you may say, the “Sturm und Drang” period of the law of the sea. During this time, the Third un Conference on the Law of the Sea was convened, the unclos was signed and entered into force, and numerous legal instruments on every conceivable aspect of the ocean use and protection have been adopted. All this progress would not have been possible without the intellectual contribution of the academia, think tanks and research community. The losi deserves a particular credit in this regard. Found in the eve of the Third un Conference on the Law of the Sea, this Institute has been an epicentre of research and scholarship in the field of ocean law and policy, thus making possible the codification and progressive development of the international law of the sea that have followed in the subsequent decades. On a personal note, I consider myself to have grown up professionally together with the losi. The first international conference on the law of the sea I had ever attended was the annual conference of the losi held in Honolulu some thirty years ago. I was lucky enough to be invited to present a paper on North Korea’s maritime jurisdictions. I still vividly remember how nervous I was to speak before such a large audience and at the same time how excited to see and meet with many distinguished scholars and practitioners whom I had known only by their books or articles. Since then, I have steadily attended the losi meetings held at different places around the world. Its meetings and publications have been invaluable to enhancing and enriching my understanding of ocean affairs.

* President of the International Tribunal for the Law of the Sea (itlos) and Professor of International Law in Seoul National University. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_010

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Background

The topic I want to address this morning concerns the latest advisory opinion given by the International Tribunal for the Law of the Sea (hereinafter, “the Tribunal”) on the obligation and liability of the flag State in respect of illegal, unreported and unregulated (iuu) fishing. It is undisputed that global fish stocks have been and continue to be in serious decline and that one of the major causes for such decline is the high incidence of iuu fishing around the world oceans. It is estimated that iuu fishing accounts for almost one third of the total catch in some important fisheries and the resulting cost to developing countries amounts to tens of billions of us dollar per year. iuu fishing was thus considered as, to quote the Report of the un Secretary-General, “one of the most severe problems currently affecting world fisheries” and the “main obstacle in achieving sustainable fisheries in both areas under national jurisdiction and the high seas.”1 On 2 April 2015, the Tribunal gave its first advisory opinion on this problem upon the request made by the Sub-Regional Fisheries Commission (srfc), an inter-governmental organization for fisheries cooperation among seven States in West Africa, which has reputation of one of the highest levels of iuu fishing in the world. The srfc posed to the Tribunal four questions,2 three of which concern the obligation and liability of the flag State (and of an international agency) in respect of iuu fishing activities conducted by vessels flying its flag (or the flag of the member states of the international agency) in the eez of srfc Member States.

Jurisdiction and Applicable Law

Before answering those questions, however, the Tribunal first had to determine whether it had competence to entertain the request for an advisory opinion. In fact, about thirty States and intergovernmental organizations which participated in the proceedings were almost evenly divided on this question. This is not entirely surprising given the fact that while the jurisdiction of international court or tribunal must be conferred upon it by the constitutional instrument creating it, there is no clear provision that confers such jurisdiction on the Tribunal in the Convention or the Statute of the Tribunal. 1 Report of the United Nations Secretary-General, Kofi Annan, to the United Nations General Assembly on Oceans and the Law of the Sea (A/55/61), 20 March 2000, para. 120. 2 For the text of the four questions, see Request for an Advisory Opinion Submitted by the SubRegional Fisheries Commission (srfc), Advisory Opinion of 2 April 2015, para. 2.

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The main argument against the advisory jurisdiction of the Tribunal was that the Convention made no reference, express or implied, to advisory opinions by the full Tribunal, while it expressly conferred such advisory jurisdiction on its Seabed Disputes Chamber in article 191 of the Convention. Had the drafters of the Convention intended to confer advisory jurisdiction on the Tribunal, according to this view, they would have included an express provision in the Convention as they did for the Seabed Disputes Chamber, but they did not do so. It was also contended that the Tribunal has no implied power to serve as an independent source of authority to confer upon itself an advisory jurisdiction as it apparently did in article 138 of the Rules of the Tribunal. Article 138, p ­ aragraph 1, of the Rules provides that “[t]he Tribunal may give an advisory opinion on a legal question if an international agreement related to the ­purpose of the ­Convention specifically provides for the submission to the Tribunal of a request for such an opinion.” According to the opponents of the advisory jurisdiction, article 138 cannot serve as a basis for advisory ­jurisdiction since this provision, being procedural in nature, cannot override the ­provisions of the Convention, or rather the lack of the provision on jurisdiction in the Convention. On the other hand, those participants in favour of the advisory jurisdiction of the Tribunal argued that article 21 of the Statute serves as a sufficient ­legal basis for the competence of the full Tribunal to entertain a request for an advisory opinion. Article 21 of the Statute provides that “[t]he jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal” (emphasis added). According to the proponents, the expression “matters” can include the request for advisory opinion and there is no reason that it must be read to mean only “disputes.” They argued that the purpose of article 21 of the Statute is to shape the Tribunal as a living institution and to expressly provide room for States to enter into agreements conferring jurisdiction, both contentious and advisory, on the Tribunal. Faced with these opposing arguments, the Tribunal first acknowledged that neither the Convention nor the Statute made explicit reference to the advisory jurisdiction of the Tribunal.3 However, it does not follow that the Tribunal therefore has no advisory jurisdiction. According to the Tribunal, the crux of matter comes down to the interpretation of article 21 of the Statute, in particular how the term “matters” in that article should be interpreted. The Tribunal pointed out that the word “matters” should not be interpreted as covering only “disputes,” for if that were to be the case, article 21 would simply have used that 3 Ibid., para. 53.

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word (“disputes”) instead of “matters.” Consequently, the Tribunal reasoned, this expression must mean something more than “disputes” and that something more must include advisory opinion if specifically provided for in any other agreement which confers jurisdiction on the Tribunal.4 The Tribunal further clarified that article 21 does not by itself establish the advisory jurisdiction of the Tribunal. Rather it is the “other agreement,” in terms of article 21 of the Statute, which confers such jurisdiction on the Tribunal. When the other agreement confers advisory jurisdiction on the Tribunal, the Tribunal is then rendered competent to exercise such jurisdiction. Thus article 21 and the “other agreement” conferring jurisdiction on the Tribunal are interconnected and constitute the substantive legal basis of the advisory jurisdiction of the Tribunal.5 On the other hand, article 138 of the Rules cannot be the basis for the advisory jurisdiction of the Tribunal but rather furnishes the prerequisites that need to be satisfied before the Tribunal exercises its jurisdiction. Those prerequisites include: (a) there must be an international agreement related to the purpose of the Convention which specifically provides for the submission to the Tribunal of a request; (b) the request must be transmitted by an authorized body; and (c) the request concerns “a legal question.”6 The Tribunal found that in this case those prerequisites have been met. Another question the Tribunal had to address was whether the questions posed by the srfc fall within the scope of the “agreement which confers jurisdiction on the Tribunal,” since the advisory jurisdiction of the Tribunal is based on that agreement, together with article 21 of the Statute. In this case, the agreement which confers jurisdiction is the Convention on the Minimum Condition of Access (mca Convention) of 1993 as revised in 2012, an agreement concluded by seven member States of the srfc to harmonize the minimal conditions of access to their maritime jurisdictions. The Tribunal found that the questions have sufficient connection with the purposes and subject matters of the mca Convention and therefore fall within the framework of that Convention.7 Thus the Tribunal concluded that it had jurisdiction to entertain the request submitted to it by the srfc. Regarding the applicable law for answering the questions, the Tribunal found that the Convention, mca Convention and other relevant rules of international law not incompatible with the Convention should apply in this case.8 4 5 6 7 8

Ibid., para. 56. Ibid., para. 58. Ibid., para. 60. Ibid., para. 68. Ibid., para. 84.

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Merits

Now let me turn to the merits of the request. The first question submitted to the Tribunal is: “What are the obligations of the flag State in cases where ­illegal, unreported and unregulated fishing activities are conducted within the eez of third party States?” Question 1 was drafted somewhat ambiguously, but the Tribunal interpreted it as one concerning the obligations of the flag State in respect of iuu fishing by its vessel within the eezs of the srfc Member States. International law, in general, does not impose an obligation on the State to control the conduct abroad of its nationals, natural or juridical. Likewise, the conduct of private persons or entities is not attributable to the State under international law. The situation may be different, however, when it comes to vessels, which are highly mobile and transnational. Thus the Convention, for example article 94, imposes on the State duties of effective exercise of jurisdiction and control in “administrative, technical and social matters” over ships flying its flag. However, the scope and nature of such duties have by no means been clear. In answering Question 1, the Tribunal started with the observation that in the eez the primary responsibility to prevent, deter and eliminate iuu fishing rests with the coastal State.9 However, the primary responsibility of the coastal State does not release other States from their obligations in this regard. For the obligations of the flag Sates in the eezs of the srfc Member States in relation to their living resources, the Tribunal noted that while this issue is not directly addressed in the Convention, it can be examined in light of the general and specific obligations of the flag States under the Convention for the conservation and management of marine living resources.10 For general obligations, the Tribunal referred to those obligations set out in articles 91 (Nationality of ships), 92 (Status of ships) and 94 (Duties of the flag State) as well as articles 192 (General obligations) and 193 (Sovereign right of State to exploit their natural resources) of the Convention as relevant to the present case.11 Those provisions require the flag State to take certain measures with respect to vessels flying its flag. They also impose on the flag State an obligation to protect and preserve the marine environment, which includes obligation to conserve marine living resources.

9 10 11

Ibid., para. 106. Ibid., para. 110. Ibid., paras. 115–120.

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For specific obligations applicable to the flag State in the eez, the Tribunal referred to article 58, paragraph 3, and article 62, paragraph 4, of the Convention as relevant to the present case.12 Article 58, paragraph 3, requires States to comply with the laws and regulations adopted by the coastal State, including of course those on the conservation and management of living resources (in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part). Article 62, paragraph 4, further requires “nationals of other States fishing in the exclusive economic zone” to comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. The Tribunal observed that general and specific obligations of the flag States set out in the Convention are further specified in fisheries access agreements concluded between coastal States and flag States concerned. The Tribunal further noted in this regard that the mca Convention and the bilateral fisheries access agreements concluded between srfc member States and the flag States provide, in details, for obligations of the flag State.13 The Tribunal found that the above provisions, in particular article 58, paragraph 3, and article 62, paragraph 4, as well as article 192, of the Convention, impose upon the flag State an obligation to take the necessary measures to ensure that its nationals and vessels flying its flag are not engaged in iuu fishing activities in the eezs of the srfc Member States.14 In accordance with the mca Convention and the national legislation of the srfc Member States, such activities also constitute an infringement of the conservation and management measures adopted by these States within their eezs. Having found the flag State obligation to ensure that vessels flying its flag do not conduct iuu fishing activities, the Tribunal proceeded to clarify the nature of such obligation. Relying heavily on the jurisprudence of the Seabed Disputes Chamber in its Advisory Opinion on the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, the Tribunal clarified that the obligation of the flag State is that “of conduct” but not “of result.” In other words, the obligation of the flag State is “to deploy adequate means, to exercise best possible efforts, to do the utmost” to prevent iuu fishing by ships flying its flag, rather than to achieve compliance by such fishing vessels in each and every case with the requirement not to engage in iuu fishing.15 12 13 14 15

Ibid., paras. 121–123. Ibid, para. 112. Ibid., para. 124. Ibid., para. 129.

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The Tribunal further noted that this obligation is also that of “due diligence.” Referring to the clarification provided by the icj in the Pulp Mills on the River Uruguay case, the Tribunal noted that “it is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party…”16 Then what would be the content of due diligence obligation of the flag State to prevent iuu fishing by its vessels in the eezs of the srfc Member States? To this question, the Tribunal stated that while the content of due diligence obligation is not easily described in precise terms, the Convention is the key instrument which provides guidance regarding the content of the measures to be taken by the flag State.17 Based on several provisions of the Convention, the Tribunal indicated as such obligation or measures, among others,: the obligation to adopt the necessary measure prohibiting its vessels from fishing in the eezs of the srfc Member State, unless so authorized by them; the obligation that its vessels are properly marked; the obligation to adopt the necessary measures, including those of enforcement, to ensure that its fishing vessels are not involved in iuu fishing in the eezs of the srfc Member States; the obligation to have a mechanism to monitor and secure the compliance with the laws and regulations adopted by the flag State; and in case where it receives a report from an srfc Member State alleging that its vessels have been involved in iuu fishing, the obligation to take any action necessary to remedy the situation, and to inform the srfc Member State of that action. The Tribunal also noted that the flag State and srfc Member States are under obligation to cooperate in this regard.18 Regarding Question 2 on the liability of the flag State, the Tribunal found that such liability does not arise from a mere fact that vessels flying its flag failed to comply with the laws and regulations of the srfc Member States, as the violation of such laws and regulations by vessels is not per se attributable to the flag State. However, the liability of the flag State arises from its failure to comply with its own “due diligence” obligations concerning iuu fishing activities. Therefore, the flag State is not liable if it has taken all necessary and appropriate measures to meet its due diligence obligations.19 In this regard, the 16 17 18 19

Ibid., para. 131. Ibid., para. 133. Ibid., paras. 134–140. Ibid., para. 148.

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Tribunal pointed out that the frequency of iuu fishing was not relevant to the question whether there was a breach of due diligence obligations. Even isolated iuu fishing activity can entail a liability of the flag State (if the flag State failed its due diligence obligation), while the repeated activities may not entail such liability if the flag State has fulfilled its own obligation.20 Question 3 concerns the liability of the flag State or of an international agency where a fishing licence is issued to a vessel within the framework of an international agreement with the flag State or with such an agency. The Tribunal’s answer focused mainly on the liability of an international agency, which the Tribunal considered synonymous with international organization, because the liability of the flag State has been already answered in Question 2. The Tribunal first clarified that the question only relates to those international organizations, referred to in article 305, paragraph 1(f), and 306 of the Convention, and Annex ix to the Convention, to which their member States have transferred competence over matters governed by the Convention (fisheries in this case). At present, the only such international organization is the European Union to which the member States, all parties to the Convention, have transferred competence with regard to the “conservation and management of sea fishing resources.”21 In cases where an international organization, in the exercise of its exclusive competence in fisheries matters, concludes a fisheries access agreement with an srfc Member State, which provides for access by vessels flying the flag of its member States to fish in the exclusive economic zone of that State, the international organization takes over the obligations of the flag State. Then the international organization, as the only contracting party to the fisheries access agreement with the srfc Member State, must ensure that vessels flying the flag of a member State of the organization comply with the fisheries laws and regulations of the srfc Member State and do not conduct iuu fishing activities within the eez of that State.22 Accordingly, only the international organization may be held liable for any breach of its obligations and not its member State. Therefore, if the international organization does not meet its due diligence obligations, the srfc Member States may hold the international organization liable for the violation of their fisheries laws and regulations by a vessel flying the flag of a member State of that organization.23 20 21 22 23

Ibid., para. 150. Ibid., paras. 157–159. Ibid., para. 172. Ibid., para. 173.

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With the above pronouncements and findings, the Tribunal has clarified the obligation and liability of the flag State (and the international organization) in respect of iuu fishing activities conducted by vessels flying its flag (or the flag of its Member States) in the eezs of the srfc Member States. The flag State has an obligation to ensure that its vessels do not engage in iuu fishing and it is liable if it fails to meet this obligation.

Observation and Conclusion

I voted in favour of the Tribunal’s conclusions on all four questions. However, as is often the case, I was not in agreement with certain aspects of its legal reasoning. This is no place for me to dwell on where and why I had reservations with the Opinion of the Tribunal. I just want to point out one such aspect, though.24 The questions posed to the Tribunal raised a difficult legal challenge because there is no provision in the Convention that specifically addresses flag State obligations concerning iuu fishing yet there have been significant legal developments related to this issue since the adoption of the Convention. ­ Especially in the 1990s and onwards, a steady stream of treaties and other legal instruments have been adopted in response to growing international concern over iuu fishing. They include several global and regional fisheries treaties, a number of bilateral fisheries access agreements, a series of soft law ­instruments mostly adopted under the auspices of Food and Agriculture Organization, and a range of fisheries-related resolutions adopted by international ­organizations including the General Assembly of the United Nations. Indeed, strengthening of flag State responsibility in respect of iuu fishing represents one of the most significant developments of international fisheries law during the past two decades. Regrettably the Tribunal paid scant attention to those legal developments. Of course I understand that some of those instruments are voluntary in nature and not legally binding. Moreover, many provisions of those instruments are not exactly tailored to address the question before the Tribunal, as they concern flag State responsibility in respect of iuu fishing on the high seas rather than in the foreign eezs. Nevertheless the post-unclos normative developments as a whole are relevant to the present case as they could give useful guidance as to the state and direction of international fisheries law on this question. In my view, they should have received fuller and more balanced treatment in the 24

See ibid., Separate Opinion of Judge Paik, paras. 2–29.

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opinion of the Tribunal, especially in determining the content of the obligations of the flag State. Had the Tribunal done this, its opinion would have been able to give more clear guidance as to what the flag State must do to fulfil its obligation of due diligence. Simply to state that the flag State has an obligation to ensure its vessels do not engage in iuu fishing without specifying what measures it must take would result in leaving a large measure of discretion to the flag State. It is not hard to predict what will happen in that case. It would be rather difficult, if not impossible, to hold the flag State with such discretion liable for the failure of its obligations. In coping with ever worsening problems of iuu fishing, such an approach would turn out to be far less than sufficient. Now let me come to the end of my speech. Of course the advisory opinion is not legally binding. It does not bind either the requesting entity, srfc, or any other body or State to take any specific action pursuant to the opinion. However, the advisory opinion of the Tribunal, as a judicial opinion, has legal effect, guiding the srfc or flag States to regulate their conduct or affairs in ­accordance with the legal views expressed in the opinion. Furthermore, the advisory opinion will have broader implications for the rules of international law governing flag State obligation and liability in respect of iuu fishing in general. The fight against iuu fishing requires the concerted efforts of all States ­concerned—coastal, flag, port, market and also State of ship owner or operator. It also requires the implementation of a comprehensive range of measures— legal, administrative, regulatory, and market-based—that must be effectively taken by those States. Clarifying and strengthening the obligation and liability of the flag State alone, of course, will not resolve this difficult problem. However, I believe that the advisory opinion of the Tribunal would be an important milestone in the long-running fight against iuu fishing and it thus would be a significant contribution to sustainable management of fisheries worldwide. Now that the possibility of holding the flag State liable for iuu fishing by its vessels is opened, I hope that flag States examine if they fulfil their due diligence obligation and take more responsibility for their vessels. I further hope that coastal States which suffer from such fishing in their eezs consider making the best of the legal option now available to them.

chapter 9

Special Address: On the Challenges to Stability and to the Rule of Law in Implementation of unclos Bernard H. Oxman I am grateful to Professor Scheiber and the Law of the Sea Institute for affording me the opportunity to return to Berkeley and to see so many friends and colleagues. I am also honored by the invitation to speak at the banquet celebrating the 50th anniversary of the founding of the Institute. It is perhaps not coincidental that there will also be another anniversary next month. On November 16, the United Nations Convention on the Law of the Sea will come of age as formal positive law, having reached the 21st anniversary of its entry into force. It would be a stretch to say that the oceanographers, geographers, and fisheries management experts who founded the Law of the Sea Institute set out in 1965 to promote a new universal comprehensive convention on the law of the sea. Yet within a couple of years two events occurred that would shift the focus of the Institute’s attention in that direction and greatly enlarge the substantive and geographic breadth of participation in its work. One of those events was the influential un speech by Ambassador Arvid Pardo of Malta advocating the establishment of a new international regime for the seabed and subsoil beyond the limits of national jurisdiction. The other event was the arrival in Washington and other capitals of a diplomatic communication from the Soviet Union raising the possibility of a new conference on the law of the sea to agree on 12 miles as the maximum breadth of the territorial sea. In response, the United States undertook consultations with the Soviet Union and other countries on that question as well as the related issues of transit of straits within the proposed 12-mile limit and coastal state rights with respect to fisheries seaward of that limit. By the end of 1970, the two initiatives were subsumed within a broader ­decision of the un General Assembly to begin preparations for a new

* Richard A. Hausler Professor of Law at the University of Miami School of Law, where he directs the Master of Laws Program in Ocean and Coastal Law.

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comprehensive conference on the law of the sea. That conference, which lasted until 1982, and the Convention, institutions, and Implementing Agreements that it yielded, have been a principal focus of attention at the Law of the Sea Institute ever since. Participation in the negotiation of the Convention was widespread. Government delegations included not only personnel from foreign ministries but representatives of other government agencies and interested parliamentarians as well. ngo’s sent observers to the conference in their own right. The u.s. delegation, among others, also included public members representing interested industries, academic institutions, and ngo’s. When a Wall Street Journal reporter questioned me about the ample size of the us delegation at the first substantive session in Caracas in 1974, I replied that in the spirit of participatory democracy we brought our country with us. Academic institutions, and the Law of the Sea Institute in particular, played a critical role in promoting useful research and bringing together a wide variety of participants, including experts and stakeholders from many parts of the world. It is difficult to say whether the outcome to date reflects the expectations of so many, and such varied, participants. In this connection it is important to bear in mind that, apart from specific substantive objectives, a fair number of participants were interested in strengthening the rule of law in the oceans and creating long-term stability compatible with long-term interests. Stability in the law of the sea of course requires universal, or at least nearuniversal, participation. This has largely been attained. Formal participation in the Convention is now all but universal. The few nonparties are all but de jure participants. A variety of international organizations implement the Convention with the active participation of parties and nonparties alike. Countless international instruments refer to the Convention. Nonparties routinely inform the International Court of Justice that they ­respect the substantive rules set forth in the Convention. The largest nonparty, the United States, actively contests foreign claims and actions that it considers to be contrary to the Convention; it insists that other instruments it negotiates be consistent with the Convention; and it has submitted observations to Convention organs. Stability also requires compliance. Here, as in all law, the fact that there is a legal obligation to comply does not ensure perfect compliance. This of course is one reason why compulsory arbitration or adjudication constitutes an integral element of the Law of the Sea Convention. That said, people, and especially governments, ordinarily do not resort to litigation lightly. We thus confront a situation, as in all law, where there will be varying appreciations of the legality

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of certain acts and varying appreciations of the seriousness of the breach, if breach there be. The basic question is whether the underlying system continues to ensure reasonable stability. For the moment at least I think it does. But we should not take that for granted. There are significant challenges out there. A less obvious threat to underlying stability is indiscriminate resort to an amendment process in form or in fact. The 1994 and 1995 Implementation Agreements are too casually invoked as precedents. They were negotiated under un auspices in carefully controlled settings with significant participation by those familiar with and committed to the underlying objectives of the Law of the Sea Convention itself. Their goal was not only to resolve particular issues but thereby to render the Convention more widely acceptable.1 They succeeded. The Convention is now very widely accepted. Governments are negotiating all the time on ways to implement it, be it directly or in international and regional organizations. But the negotiation of an amendment or amending agreement is different. It proceeds on the assumption that there is a serious problem in the Convention that cannot otherwise be remedied. The fact of the negotiation itself ­creates expectations of appropriate repair. Those expectations will be frustrated if agreement cannot be reached or is not widely accepted. And that frustration can impair the uniformity of obligation at best and the legitimacy of the Convention at worst. One of the ironies of the quest for long-term stability in the law is that its achievement requires change. It must adapt to new realities and to new priorities, perceptions, and penchants. Perfect predictability would yield a rigid tree that would snap in the first strong wind. One cannot help but be amused by the persistence of studies that breathlessly discover perceived realities and priorities that are different from those of the 1970’s and 1980’s. Indeed they are! Who would have expected otherwise? The question of course is not whether particular developments were foreseen. The question is whether the Convention and the structure it creates can accommodate those developments in a manner that continues to ensure uniformity and universality. There are instruments and institutions that stand the test of time. And there are those that don’t. The adaptations may entail some surprises. Indeed, it would be truly surprising if we were not at times surprised by particular outcomes on particular 1 This point was stressed, for example, by former itlos judge (1996–2005) David Anderson, in his book, Modern Law of the Sea: Selected Essays (Leiden and Boston: Brill/Nijhoff, 2008), Chap. 29, esp. at 320.

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issues. Whether or not we like those outcomes, their occurrence tells us that we are dealing with a system that is alive and growing on its own. This should be a source of satisfaction for those who sought to build a stable system and who now hope to sustain it. One might expect fewer surprises in the early years when the participants in the various national, regional and international organs that implement the Convention included a substantial number of individuals who participated in its negotiation. It is not clear however that this is the case. It is worth taking a closer look at a few surprises. Annex 2 of the Convention provides, “Where a coastal State intends to ­establish … the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission [on the Limits of the Continental Shelf] along with supporting scientific and technical data … within 10 years of the entry into force of this Convention for that State.” In practice, the 10-year time limit turned out to be overly optimistic. The number of discreet places in which coastal states were interested in establishing continental shelf limits beyond 200 miles was significantly greater than anticipated. Governments encountered difficulties completing the necessary research and evaluation with respect to one or more areas of interest off their coast. Commission review of each submission with respect to each area requires time and care, so that the Commission accumulated a growing backlog of submissions stretching into the foreseeable future. In addition, the 10-year submission requirement threatened to prompt renewed disputes regarding Antarctic territorial claims on which a submission might be based—the very types of disputes that Article 4 of the Antarctic Treaty was designed to put to one side. The Convention text confers no explicit authority on any organ to soften the impact of the 10-year time limit. Yet it was clear that this had to be done. Attempting to amend the Convention was regarded as impractical and unwise. There are three important elements of the solution devised. — Annex i of the Rules of Procedure adopted by the Commission authorizes a state to make a partial submission that satisfies the 10-year time limit. If it does so, that state’s remaining submissions in respect of other areas may be made later notwithstanding the 10-year time limit. About half the 77 submissions received so far have been partial submissions. — The Meeting of States Parties decided in 2001 to postpone the starting date for computing the 10-year limit. For states that had previously become party to the Convention, the starting date was May 13, 1999, the date on which the Commission’s scientific and technical guidelines for the preparation of submissions were first adopted.

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— But even the foregoing steps turned out to be insufficient. So in 2008 the Meeting of States Parties decided that a coastal state could satisfy the 1­ 0-year time limit by submitting “preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission.” This option has since been used extensively. Another surprise concerns the delimitation of the exclusive economic zone and the continental shelf between states with opposite or adjacent coasts. Article 6 of the 1958 Convention on the Continental Shelf provided that, unless another boundary line is justified by special circumstances, the boundary is a line that is equidistant from the nearest points on the respective coastal baselines. In 1969, in the North Sea Continental Shelf cases, the International Court of Justice decided that the equidistance/special circumstances rule of Article 6 was not binding on states that were not party to the Convention on the Continental Shelf, and reverted to the less determinate “equitable principles” language of the 1945 Truman Proclamation. The effect at the Third un Conference on the Law of the Sea was that coastal states separated into two camps, a so-called “equidistance group” that preferred the approach of the Convention on the Continental Shelf and a ­so-called “equitable principles group” that preferred the approach of the North Sea decision. Consensus could not be reached on either approach. The result is that Articles 74 and 83 provide that delimitation of the eez and the continental shelf “shall be effected by agreement on the basis of international law … in order to achieve an equitable solution.” No rule or methodology is mentioned. Just before the final substantive session of the Conference in 1982, the International Court of Justice rendered judgment in the Tunisia/Libya continental shelf delimitation case in which it noted the foregoing language in the draft convention. The approach to delimitation taken by the Court in that judgment is sometimes regarded as the high water mark of indeterminacy in maritime boundary adjudication, far removed from the relative discipline of the equidistance/special circumstances rule of the Convention on the Continental Shelf. It might therefore come as something of a surprise to at least some of the participants in the negotiations that in subsequent delimitation cases, including those between parties to the Law of the Sea Convention, the International Court of Justice has gradually moved back in the direction of the more determinate formulation in the Convention on the Continental Shelf that was rejected in the North Sea cases and that was not accepted at the Law of the Sea

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Conference. This position was crystallized by the Court in 2009 in its ­unanimous judgment in the Black Sea case between Romania and Ukraine, both parties to the Law of the Sea Convention. The Court outlined a three-step approach that begins with the drawing of a provisional equidistance line; that line may thereafter be adjusted to take account of relevant circumstances. This approach was presaged by the arbitral award in the Barbados/Trinidad & Tobago maritime delimitation case. When asked to write an introduction to the official publication of that award, I began by co-opting the title “Back to the Future.” Some other surprises concern certain dispute settlement issues. Article 96 of the un Charter authorizes the Security Council, the General Assembly, or any un organ or specialized agency authorized by the General Assembly, to request an advisory opinion from the International Court of Justice. Neither the Charter nor the Court's Statute nor its Rules of Court authorize states to seek advisory opinions by agreement or otherwise. Following a similar pattern, Article 191 of the Law of the Sea Convention authorizes the Seabed Disputes Chamber of itlos to give advisory opinions at the request of the Assembly or the Council of the Seabed Authority. There is no other reference to advisory opinions. However, Article 138 of the Rules adopted by itlos also permits requests for advisory opinions if specifically authorized by an international agreement related to the purposes of the Convention. The Tribunal recently rendered an advisory opinion upholding Article 138 of its Rules. It should be borne in mind however that the request for that opinion was made by a regional fisheries ­organization whose conference of ministers specifically authorized the request, and that the express purpose of the organization is to implement the provisions of the Convention. The setting in relation to the Law of the Sea Convention in this particular situation is therefore comparable, albeit not identical, to that envisaged by the un Charter for un specialized agencies that are essentially autonomous. Other surprises occurred in connection with two issues addressed by the award in the recent arbitration between Mauritius and the United Kingdom. The first issue is whether the compulsory jurisdiction of a court or tribunal to render a legally binding decision under Section 2 of Part xv includes questions of disputed sovereignty over islands or other land territory that are implicated by a dispute concerning the interpretation or application of the Convention. The Convention expressly excludes this possibility in the context of conciliation of maritime boundary disputes. .

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The issue is not expressly addressed, however, in the context of compulsory arbitration or adjudication. It would seem that if states negotiating the compulsory jurisdiction provisions of the Convention thought that those provisions covered land sovereignty disputes, either they would have said so or they should have said so. A search of the records and the contemporaneous literature reveals virtually no consideration of the issue during the negotiation of the Convention. One of the few things one would find from that time is a footnote in one of the annual contemporaneous articles on the law of the sea negotiations published by the American Journal of International Law (v.75, p.233, n.109 (1981)). That footnote dismisses the possibility of compulsory jurisdiction over land sovereignty disputes. Accordingly, statements made some years ago, in reports to the un General Assembly on the work of itlos, to the effect that there might in fact be a basis for compulsory jurisdiction over so-called “mixed disputes” came as something of a surprise.2 Be that as it may, the arbitral award in the Mauritius/uk case prudently concluded that there was no jurisdiction over the question of sovereignty over the Chagos Islands. It nevertheless might have come as something of a surprise to participants in the Law of the Sea Conference that the vote on that point was 3–2. The outcome of another issue addressed in the arbitration is also surprising. Section 2 of Part xv establishes compulsory jurisdiction over disputes concerning the interpretation or application of the Convention. The first article of that section begins with the words “Subject to Section 3.” The title of ­Section 3 is “Limitations and Exceptions to Applicability of Section 2.” The title of the first article of Section 3, Article 297, is “Limitations on applicability of ­Section 2.” Paragraph 1 of Article 297 lists three cases in which the compulsory procedures of Section 2 apply to the exercise by the coastal state of its sovereign rights or jurisdiction. Why enumerate those three cases if no limitation is otherwise implied? At least most of those involved in the negotiation of these provisions would have thought that paragraph 1 sets forth what the structure and the titles say it is, namely a limitation on compulsory arbitration or adjudication. The arbitral award in the Mauritius/uk case says exactly the opposite. In paragraph 308, the award explains, “Article 297(1) does not state that disputes concerning the exercise of sovereign rights and jurisdiction are only subject to ­compulsory 2 Statement by Mr. Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea on Agenda Item 77(a) at the Plenary of the 62nd Session of the United Nations General Assembly, 10 December 2007 (itlos, 2007): 3.

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settlement in the enumerated cases. And, as a matter of textual construction, the Tribunal does not consider that such a limitation can be implied.” In ­paragraph 316 of the award, the “Tribunal also notes that, in certain respects, Article 297(1) expands the jurisdiction of a Tribunal over the enumerated cases beyond that which would follow from the application of Section 2.” To be sure, the word “only” was omitted. It was omitted as a technical correction to avoid any possible inconsistency with or prejudice to continuing negotiations on the remaining paragraphs of Article 297. But because of the textual confusion occasioned by the omission, what most of those involved in the negotiation had all along considered a limitation on compulsory jurisdiction emerges from the award’s literal reading of the text as an affirmative grant of jurisdiction, and an expansive one at that. This does not however mean that the sky is falling. Many coastal states were principally interested in excluding compulsory jurisdiction over questions of foreign access to fisheries in the eez; this is done explicitly in another paragraph of Article 297. Oceanographers may welcome the award’s close textual reading of the paragraph limiting compulsory jurisdiction over marine scientific research disputes. The real question concerns the scope of jurisdiction over environmental duties of the coastal state. Here the effect of the award, in the event that its reasoning is followed in future cases, might be to shift the question from issues of jurisdiction to the underlying issue of the appropriate role for courts and tribunals in environmental disputes. It is one thing to make clear that coastal states should adhere to procedural requirements and approach their substantive regulatory duties seriously with due regard to international standards. It is quite another for judges and arbitrators to substitute themselves for the regulators, in form or in fact. It is possible to infer from existing international environmental decisions, including the award in question here, that this distinction is appreciated. Perhaps the most vexing change since the negotiation of the Convention is our growing appreciation of the magnitude of the long-term problem posed by global warming. To be sure, much of the cause and much of the effect are on land. The demand for offshore hydrocarbons is largely for use on land. Most of the release of gases into the atmosphere occurs on land. Serious effects of rising temperatures are likely to be felt on land both directly and as rising sea levels encroach on ­coastal areas. But we are also experiencing serious effects of global warming on the marine environment. These are likely to increase. The duty to protect and preserve the marine environment set forth in the Law of the Sea Convention is

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unquestionably implicated. It nevertheless seems reasonably clear that the major efforts to control global warming will continue to focus on the broader problem as such. Let us hope that the climate change negotiations will make significant progress. There are of course rules in the Law of the Sea Convention that are pertinent to the effects of rising sea levels on coastal state jurisdiction. The baselines for measuring the breadth of maritime zones either follow the low-water line or connect points on that line. The low-water line is not stable in many areas, and will recede with rising sea levels. But this does not necessarily change the seaward limits of the continental shelf. Quite apart from the fact that the basic geomorphology of the seabed may not be affected by changes in ambient temperature and sea level, it is certainly arguable—and I have argued—that the use of the words “final and binding” and “permanently” in paragraphs 8 and 9 of Article 76 of the Convention means that the limits of the continental shelf, once established in accordance with the Convention and officially deposited by the coastal state with the un Secretary General, do not change in response to changes in the baseline. That said, it remains to be seen how the application of international law, including the Law of the Sea Convention, will adapt to melting ice and receding coasts on a global level. There are ample legal principles and tools available to support a variety of solutions. The challenge in this, as in many other contexts, is to ensure that we have legal institutions that are equal to the task. We cannot take this for granted and focus only on how to use international law to promote particular agendas, however worthy those agendas may be. We also must, as we did during the ­negotiation of the Law of the Sea Convention, focus on preserving and strengthening the rule of law itself.

Part 3 The European Union’s Record in Sustainable Management of Marine Resources

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chapter 10

Regulating and Managing Fisheries Resources: Five Decades of Triumph and Failure in the European Union Ronán Long

Introduction1

This volume commemorates fifty years of scholarly contribution of the Law of the Sea Institute (losi) to the development of oceans law. For much of the illustrious history of the losi, there have been dramatic changes in the way States and international organizations have sought to manage marine living resources. In particular, we have witnessed the progressive evolution of international law from the application of the catastrophic laissez-faire freedom of fishing for much of the 20th century to the adoption of a more sophisticated approach to resource management and conservation in more recent times, with power passing, albeit slowly, from the flag State to the coastal State, port State and more recently to the consumer or the market State of fishery products.2 At the same time, there has been a shift in emphasis from a regime largely aimed at maximizing the exploitation of the resource to the a­ pplication of the * Professor Ronán Long holds the Nippon Foundation Professorial Chair of Ocean Governance and the Law of the Sea at the World Maritime Institute. 1 This paper is a companion piece to my two earlier contributions to Law of the Sea Institute volumes, the first a paper on the role of science and technology in European law pertaining to the oceans, and more recently a study of the intractable issue of improving stakeholder engagement with the common fisheries policy (cfp) of the eu: “A European Law Perspective,” in Harry N. Scheiber, James Kraska, and Moon-Sang Kwon, eds., Science, Technology, and New Challenges to Ocean Law (Boston and Leiden: Brill/Nijhoff, 2015); and “Stakeholder Participation in the European Common Fisheries Policy,” in Carlos Espósito, James Kraska, Harry N. Scheiber, and Moon-Sang Kwon, eds., Ocean Law and Policy: Twenty Years of Development Under the unclos Regime (Boston and Leiden: Brill/Nijhoff, 2016), 13–67. 2 On trade measures see, inter alia: Darren S. Calley, Market Denial and International Fisheries Regulation: The Targeted and Effective Use of Trade Measures Against Flag of Convenience F­ ishing Industry (Boston/Leiden: Nijhoff, 2012); Margaret A. Young, Trading Fish, Saving Fish: The Interaction Between Regimes in International Law (Cambridge: Cambridge University Press, 2011).

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concept of sustainability,3 which is fast becoming a leitmotiv of international fisheries law as is evident from the adoption of the Sustainability Development Goals by the United Nations in 2015, as defined in Transforming Our World— the 2030 Agenda for Sustainable Development.4 Despite such initiatives, however, the status of fisheries in general remains in a sorry state with the Food and Agriculture Organization (fao) estimating that over 30 percent of fish stocks worldwide are harvested beyond sustainable limits, with a further 61 percent deemed fully fished.5 Like the incoming tide, the response has been a veritable tsunami of legislation, which has become the hallmark of modern fisheries law with micro-regulation governing all facets of the industry including fishing operations at sea, the marketing and processing of products, as well as pertaining to the governance of fisheries both within and beyond national jurisdiction.6 Indeed, as is evident from Craig Allen’s thought-provoking tribute in this volume,7 the legendary Professor William (“Bill”) Burke, through a lifetime of erudite and empirical scholarship was one of the first, to chart the incremental changes in the law. He did so initially as coauthor with his Yale colleague Myres S. McDougal in their classic study, The Public Order of the Oceans: A Contemporary International Law of the Sea, first published in 1962 and revised in 1987.8 There followed subsequently Burke’s 3 Nele Matz-Lück and Johannes Fuchs, “Marine Living Resources” in Oxford Handbook on The Law of the Sea, ed. Donald R Rothwell et al (Oxford: Oxford University Press, 2015), 491–515 (and especially at 492). 4 United Nations General Assembly Resolution, A/RES/70/1, 21 October 2015. Goal 14 concern fisheries and are aimed at the conservation and sustainably use of the oceans, seas and marine resources. Target 14. 4 aims to “regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices and implement science-based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics” by 2020. 5 Food and Agriculture Organization of the United Nations (fao), Report on the State of World Fisheries and Aquaculture: Opportunities and Challenges (Rome, 2014), 7, infra. 6 See inter alia: Marion Markowski, The International Law of eez Fisheries: Principles and Implementation (Groningen: Europa Law Publishing, 2010); Organisation for Economic Cooperation and Development, Strengthening Regional Fisheries Management Organisations (Paris, 2009); and for an earlier assessment, Harry N. Scheiber, “Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation—and Frustration,” Virginia Environmental Law Journal, 20 (2001), 119–137. 7 Craig Allen, “A Legacy of Stewardship for the Public Order of the Oceans: A Tribute to William T. Burke” in this volume. 8 Myers S. McDougal and William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven: Yale University Press, 1962) (revised, New Haven: New Haven Press, 1987) (Dordrecht: Martinus Nijhoff, 1987), passim.

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pioneering opus The New International Law of Fisheries: unclos 1982 and Beyond, published in 1994 and in Japanese in 1998.9 Both monographs shaped the work of an entire generation of scholars and remain standard treatises on the argument for the application of policy-oriented study into the formulation and implementation of the law of the sea. The latter attribute is also a defining feature of much of the scholarship in the publications of the Law of the Sea Institute (losi) conference volumes over the past fifty years, as is evident from Sherry Broder’s chapter on the Hawai’i years and numerous other chapters in the present volume.10 This leads directly to the second point, less controversial perhaps from the perspectives of the demos and the epistemic community, which is the simple contention that there appears to be no shortage of law governing the regulation and management of commercial sea-fisheries in contemporary times. Indeed, in light of the abundance of prescriptive instruments that now pervade all aspects of the legal landscape, it is tempting to recall the ironic observation made by the great Attic Orator, Isocrates (436–338 bc), who in his deliberative speech “Areopagiticus” noted that: Where there are a number of laws drawn up with great exactitude, it is proof that the city is badly administered: for the habitants are compelled to frame laws in great numbers as a barrier against offences.11 Similarly, when one now looks back at the history of fisheries management over the lifetime of the losi, it is evident that regulatory measures have proven to be largely ineffective in curbing the insatiable desire of large-sections of the industry to exploit the resource; indeed, this exploitation has gone forward with blatant disregard for either long-term food security considerations or the wider ecological consequences of unsustainable fisheries practices.12 In short, many fisheries worldwide have been incredibly poorly managed, as is evident from the many excellent losi conference papers on fisheries ­regulation ­published since the late 1960s.13 Moreover, a quick trawl through 9

William T. Burke, The New International Law of Fisheries: unclos 1982 and Beyond (­Oxford: Clarendon Press, 1994). 10 S. Broder, “losi in Hawai’i,” Chapter 2 in this volume. 11 Isocrates, Areopagiticus. Translated by George Norlin. Cambridge: Harvard University Press, 1929. 12 R. Hillborn, Overfishing: What Everyone Needs to Know (Oxford: Oxford University Press, 2012) passim. 13 See inter alia: Scheiber, et al., eds. Science, Technology, 63–123; Esposito et al, eds,, Ocean Law, 13–67; Clive Schofield, Seokwoo Lee and Moon-Sang Kwon, eds., The Limits of Maritime Jurisdiction (Leiden/Boston: Brill/Martinus Nijhoff Publishers, 2014), 405–503; David

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the ­comprehensive archive of past conference proceedings in the Boalt Hall library reveals that many losi experts foresaw with some precision the impending doom besetting fisheries worldwide.14 Instructively, one only needs to point to the seminal paper delivered by Dr. Kline Swygard at the second losi conference in 1967, when he presciently drew attention to the following: Growing concern for conservation of resources to feed increasing millions of people has been manifest … The long range pattern of distribution may well be determined by the balance which are struck between greed and restraint.15 This is precisely what happened subsequently in Europe, where the regulation and management of fisheries became increasingly problematic with the expansion of coastal State jurisdiction out to 200 nautical mile fishery zones in the North-East Atlantic in 1976 and the adoption of a common European policy for fisheries in 1983.16 Again there is no absence of international commitment with the eu as a party in its own right to the United Nations Convention on the Law of the Sea,17 the 1995 United Nations Fish Stocks Agreement

D. Caron and Harry N. Scheiber, eds. Bringing New Law to Ocean Waters (Boston/Leiden: Martinus/Nijhoff, 2004), Chapters 2–7; Harry N. Scheiber, ed., Law of the Sea: The Common Heritage and Emerging Challenges (Boston/Leiden: Bril/Nijhoff, 2000), Chapters 7–11 (­predecessor volume to the Berkeley losi series, published by Brill for the ­then-separate uc Berkeley Law School research program on ocean law and policy, directed by H. Scheiber in the Center for the Study of Law and Society, uc Berkeley Law School). 14 For the publications between 1965 and 1999, see: https://www.law.berkeley.edu/research/ institute-for-legal-research/law-of-the-sea-institute/publications/publications-1965/. In particular, for the analysis of the fisheries issues as debated in the initial period of losi studies, see H. Scheiber, Chapter 1 in this volume. 15 Kline Swygard, “Implications for the Future Distribution of the Sea’s Resources If Present Regimes Continue in Force” in The Law of the Sea: The Future of the Sea’s Resources:, ­Proceedings of the Second Annual Conference of the Law of the Sea Institute, 26–29 June 2­ 6–29, 1967, ed. Lewis M. Alexander (Kingston, ri: University of Rhode Island, 1969), ­65–69, (cited as L. Sea Proc. 1969), 65–69. 16 See inter alia: Ronán J. Long and Peter A. Curran, Enforcing the Common Fisheries Policy (Oxford: Blackwell Science, 2000) reprint John Wiley & Son Ltd., April 2008. Available at: http://onlinelibrary.wiley.com/doi/10.1002/9780470698815.ch1/summary. Also, Robin Churchill and Daniel Owen, The ec Common Fisheries Policy (Oxford: Oxford University Press, 2010), 3–28. 17 Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea

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(unfsa),18 the fao Compliance Agreement,19 as well as several dozen regional and bilateral fisheries agreements and arrangements with third countries.20 With this in mind, the chapter reviews the strengths and weaknesses in the eu approach to the regulation and management of fisheries. Attention is drawn to some of the catastrophic failures but also to the all-too-infrequent triumphs that have characterised the European approach to fisheries management over the past three decades—including especially the role of the European institutions in discharging conservation obligations under unclos and related agreements. In this context, it is pertinent to recall that the losi proceedings contain unique insights into the development of European fisheries law and policy over the past thirty years. Indeed, a whole session was given over to exploring the architecture of the nascent Common Fisheries Policy (cfp) at the losi Conference in Hawai’i in 1986 with incisive contributions from Albert Koers, Ed Brown, Robin Churchill, Patricia Bernie and Budislav Vukas.21 Intuitively as is his nature, Professor Tullio Treves cautioned that the eec would have to show “imaginative leadership” if it was to manage fisheries successfully in the longer-term.22 Regrettably, in the intervening years, the absence of political leadership in the Member States has undermined many of the conservation objectives and the long-term sustainability of eu fisheries.23 In addition, the broader marine environment is facing many other stresses including landbased pollution with over 40 percent of the European population living in

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and the Agreement of 28 July 1994 relating to the implementation of Part xi thereof, oj L 179, 23.6.1998, 1. Council Decision 98/414/EC of 8 June 1998 on the ratification by the European Community of the Agreement for the implementing of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory fish stocks, oj L 189, 3.7.1998, 14. Council Decision 96/428/EC of 25 June 1996 on acceptance by the Community of the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, oj L 177, 16.7.1996, 24. European Court of Auditors, Special Report No 11/2015: Are the Fisheries Partnership Agreements well managed by the Commission? (Luxembourg, 2015). Available at: http:// www.eca.europa.eu/Lists/ECADocuments/SR15_11/SR_FISHERIES_EN.pdf. E.D. Brown, R.R. Churchill, eds., The un Convention on the Law of the Sea: Impact and Implementation (Honolulu: University of Hawai’i, 1987). 518–586. T. Treves, “The eec, the un and the Law of the Sea,” in ibid., 525, 580. R. Long, “Stakeholder Participation in the European Common Fisheries Policy: Shifting the Legal Paradigm Towards Rights and Responsibilities” in Espósito et al., eds, Ocean Law, op. cit. supra note 2, at 13–67,14.

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coastal regions and with ever increasing offshore economic activities such as wind energy development.24

Greed and Restraint: The Status of Global Fisheries

European fisheries must be viewed in the light of the status of global fisheries and the environmental status of the ocean in general. In his eloquent introduction to the Food and Agriculture Organization (fao) Report on the State of World Fisheries and Aquaculture 2014,25 the fao Director-General José Graziano da Silva states a well documented axiom, which is that the “health of our planet as well as our own health and future food security all hinge on how we treat the blue world.”26 Sadly, the treatment of the blue planet has all the hallmarks of avarice and capriciousness foreseen by the losi participants in the late 1960s, with the proportion of assessed marine fish stocks fished within biologically sustainable levels declined from 90 percent in 1974 to 71.2 percent in 2011.27 At the same time, the rate of growth of marine capture fisheries over the past fifty years tells its own story, with an eightfold increase from 20 million metric tonnes to nearly 160 by 2012.28 According to the fao, there is significant variation in this growth with most of it occurring in the eastern Indian Ocean, the eastern central Atlantic and the northwest, western central and eastern central Pacific.29 The number of vessels has also increased exponentially to close to 4 million vessels with 68 percent of these operating from Asia in contrast to 16 percent from Africa.30 The regional breakdown of the number of vessels shows that Asia accounts for 68 percent (3.2 million vessels), Latin America 8 percent, followed by North America 2.5 percent and Europe at 2.3 percent. These figures are a poor indicator of fishing effort in so far as many of the vessels in Africa and Oceania are non-motorized vessels and cannot therefore be compared with the modern Asian, us and European fleets. 24

R. Long, “Offshore Wind Energy and Ecosystem-Based Management: Are the eu Regulatory Answers Really Blowing in the Wind?” in The Regulation of Continental Shelf Development: Rethinking international Standards, ed. Myron H. Nordquist et al., (Leiden/Boston: Martinus Nijhoff, 2013), 15–52. 25 fao, Report on the State of World Fisheries, supra n. 5. 26 Ibid., iii. 27 Ibid., 7. 28 Ibid., 1. 29 Ibid. 30 Ibid.

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There are many other indicators of the increase in the intensity in fishing effort. For instance, global fish consumption increased from 10 kilogram (kg) per capita in the 1960s to more than 19 kg by 2012.31 As a result, the fao estimates that close to one third of fish stocks worldwide are overfished and this presents a risk to food security in many coastal developing States, such as Sierra Leone, where fish constitute the primary and sometimes the only source of protein.32 Apart from the catastrophe of resource over-exploitation, among the many other problems besetting fisheries, the absence of scientific information, along with the presence of high levels of bycatch and discards, are notable because they frequently undermine management measures.33 This is compounded by the global scourge of illegal, unregulated and unreported fishing (iuu fishing), which is estimated by one study to account for the loss of 11–26 million tonnes of fish each year at a value of $10 to $23 billion.34 The latter figure is extraordinary and iuu fishing is the most daunting challenge to the long-term ­sustainability of offshore resources. Moreover, as noted in the United Nations First Global Marine Assessment 2016 (“Assessment”), the economic damage done by iuu fishing to the global economy is equivalent to the combined cost of overfishing and the rebuilding of fish stocks worldwide.35 Surprisingly, the 2016 Assessment classifies the major commercially exploited fish stocks in Europe, North America and Oceania as “stable.”36 In the rest of the world, fish biomass is declining due to absence of appropriate management measures to arrest declining stocks.37 With appropriate interventions, nonetheless, the fao believes that progress can be made towards sustainability by the rebuilding of overfished stocks, which could increase production by

31 32 33

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Ibid., 3. Ibid., 7. Ibid., 7. See Arthur E. Neiland et al., “Assessing the Potential Contribution of Fisheries to Economic Development—The Case of Post-Ebola Sierra Leone,” Natural Resources 7 (2016): 356–376. Published online June 2016 in SciRes. http://www.scirp.org/journal/nr. http://dx.doi.org/10.4236/nr.2016.76031. See also chapter Katy Seto, “West Africa and the New ec Fisheries Policy: Impacts and Implications,” in Espósito et al., eds, Ocean Law and Policy, 68–100. D. Agnew, J. Pearce, G. Pramod, T. Peatman, R. Watson, J. Beddington, T. Pitcher, Estimating the worldwide extent of illegal fishing PLoS ONE 4(2)(2009) http://journals.plos.org/ plosone/article?id=10.1371/journal.pone.0004570. United Nations, First Global Integrated Marine Assessment (New York, 2016), 16. Available at: http://www.un.org/depts/los/global_reporting/WOA_RPROC/WOACompilation.pdf. Ibid., 17. Boris Worm et al., “Rebuilding Global Fisheries,” Science 325 (2009): 578–584.

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16.5 million tonnes and annual rent by us$32 billion.38 In short, this will require a high degree of political restraint and commitment, along with greater engagement with the fishing industry and civil society more generally.39 Moreover, there are many other factors such the effects of climate change that are impinging adversely and unpredictably upon the productivity and distribution of fish stocks, as well as the resilience of marine habitats and ecosystems.40 Overall the general picture is pretty grim and bears testament to the worst fears of the losi scholars in the 1960s and early 1970s who foresaw the collapse of world fisheries unless appropriate management measures were implemented rigorously by States and international bodies.41 The prospects for the future are not much better with the First Global Integrated Marine Assessment stating that “the amount of fish that can be extracted from historically exploited wild stocks is unlikely to increase substantially.”42 In this regard, the Assessment notes that the transfer of fishing effort by foreign fleets from developed to developing countries is having detrimental implications for food security and the conservation of biodiversity in the developing world.43 The transfer of fishing effort from the eu is a case in point and is highlighted below.44

Trends in the eu

In comparative terms, the eu fleet, that is to say vessels flying the flags of eu Member States, is relatively small in that it makes-up less than 3 percent of the global fleet.45 Furthermore, the eu fleet has declined in size steadily since the 1990s, as reflected in the tonnage and engine power profile, to about 85,000 vessels in 2014.46 This amounts to a 20 percent decline over the past two ­decades.47 There is great national variation in the breakdown of these figures with 18 percent of the vessels registered in Greece, followed by Italy with 11.6 percent and Spain at 14.6 percent.48 Considerable care of course should be taken with 38 fao, Report on the State of World Fisheries, 7. 39 Ibid., 41. 40 United Nations, First Global Integrated Marine Assessment (New York, 2016), 16. 41 See , e.g., Swygard, “Implications for the Future,” cited n. 15, supra. 42 United Nations, First Global Integrated Marine Assessment, 17. 43 Ibid., 17–18. 44 See discussion of Principle 10, infra. 45 fao, Report on the State of World Fisheries. 46 European Commission, Facts and Figures cfp 2016 (Luxembourg: eu, 2016) at 12. 47 Ibid. 48 Ibid., 13.

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the statistics in so far as many of the larger pelagic vessels are registered in the Netherlands and Denmark. In terms of volume and productivity, vessels from five Member States make-up more than half of the combined eu catch, namely Spain, Denmark, the United Kingdom and France.49 In tandem with the decline in the fleet size and partly as a result of the fiscal crises in Europe, employment in the sector is also shrinking, with the sector employing about 123,000 people in 2012.50 The eu account for just over 5 percent of total fisheries production worldwide, thereby ranking behind China (17 percent), Indonesia (6.5 percent), Peru (6.2 percent) and the United States (5.6 percent).51 Moreover, many European fisheries are unsustainable and in crises with catches decreasing from 6.9 metric tonnes to 3.5 during the ten year period from 2001 through to 2011.52 In 2016, a scientific committee advising the European Commission estimated that 40 percent of fish stocks in the North-East Atlantic and adjacent waters and for which an indicator can be computed are fished beyond sustainable limits.53 Again, there is great regional variation with the available assessments revealing that 93 percent of fish stocks were overfished in the Mediterranean Sea in 2015.54 There are some improvements in relation to the management of ­specific stocks with the Commission reporting most notably that of 13 out of 16 tuna stocks that are managed by regional fisheries management organizations (rfmos) were fished sustainably in 2014.55 At the time of writing, a recent ­scientific publication suggests that the status of some fish stocks in the Atlantic has improved and that the management plans under the cfp has ­contributed to the recovery.56 49 50

51 52 53 54 55 56

Ibid., 20. Ibid., 17–20. Also, Scientific, Technical and Economic Committee for Fisheries (stecf), The 2015 Annual Economic Report on the eu Fishing Fleet (Luxembourg, European Union, 2015). European Commission, Facts and Figures, supra note 46, at 20. Science, Technical, and Economic Committee for Fisheries (stecf), The 2013 Annual ­Economic Report on the eu Fishing Fleet (stecf 13–15), (Luxembourg, 2015). stecf, Monitoring the Performance of the Common Fisheries Policy (STECF-16-03), (­Luxembourg, 2016). European Commission, Facts and Figures, supra note 46, at 5. Ibid, 6. R.P. Prabath K Jayasinghea, Upali S. Amarasinghe and Alice Newton, “Evaluation of Status of Commercial Fish Stocks in European Marine Subareas using Mean Trophic Levels of Fish Landings and Spawning Stock Biomass,” Ocean and Coastal Management, corrected proofs available online 15 July 2016 at http://www.sciencedirect.com/science/article/pii/ S0964569116301326.

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From a trade in fishery and aquaculture products perspective, the eu is a global fishing power with the industry valued at €45.9 billion to the European economy in 2014.57 The principal trading partners for the eu are Norway, China, Ecuador, Morocco and the United States. As is well known, Europeans are big consumers of fish with an average intake of 24.9 kg per annum.58 Again, there is significant regional variation, as consumption is much greater in Mediterranean and Iberian countries, e.g., with the annual consumption recorded at 56.8 kg per capita in Portugal, which can be contrasted with Ireland at 22.3 kg per capita.59 There is a major trade imbalance with 65 percent of the products consumed in Europe coming from imports; this is a major consideration in the context of the global footprint of the European market for fishery products.60 From a production perspective, the eu is a long-way from self-sufficiency in so far as the fleet and the aquaculture industry in the Member States produces less than half of what is consumed in Europe.61 For the purpose of this chapter, the final point that must be made about the European industry is that it is highly subsidised at national and eu l­evels. In particular, the European Maritime and Fisheries Fund with a budget of eur 6.4 billion provides fiscal support for a whole range of measures including technical assistance to the industry, financing the cost of control and enforcement, the marketing and processing of fishery products, making fisheries and aquaculture more sustainable, as well as the costs associated with the implementation of the cfp.62 In summary, the European fishing industry will need to rapidly undergo further reform and adaptation if the eu is to restore the volume of fish stocks so that they can produce maximum sustainable yield (msy) and permit eu to eliminate subsidies by 2020 in line with the Targets 14.4 and 14.6 of the World Sustainable Development Goals.63 We turn next to a brief description of how the eu manages and regulates fisheries within the framework of the cfp. 57 European Commission, op. cit., note 46, at 38–44. 58 Ibid., 6. 59 Ibid, 45. 60 Ibid. 61 R. Long, “Aquaculture Law and Policy of the European Union: Prescriptive, diffuse and requiring further reform.” In Aquaculture Law and Policy: Global, Regional and National Perspectives, ed. By N. Banks and David L VanderZwaag (Cheltenham: Edward Elgar ­Publishing, 2016), 130–158. 62 European Commission, Facts and Figures, supra. note 46, at 52–55. 63 fao, State of World Fisheries, 2014.

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eu Law and the Long Road to Sustainability

The story of the progressive evolution of the European fisheries law and the long and winding roads towards sustainability is well known. The 1957 Treaty of Rome establishing the European Economic Community (eec) did not deal specifically with fisheries outside of the domain of agriculture.64 In line with state practice elsewhere in the world, the freedom of fishing principle was applied on the high seas, which included all of the ocean seaward of the territorial sea limits of the eec coastal states. At that particular time, the management of fisheries in the North-East Atlantic was undertaken by regional fisheries organisations, which were largely ineffective in ensuring sustainable fisheries.65 The first significant date in the evolution of a distinctive European regime on fisheries was the “black letter day” of the 20th October 1970 when the Council of Ministers adopted two regulation that subsequently became the cornerstone for the development of the policy.66 This date is significant because the eec was able to avoid consultation with the applicant States (Ireland, the United Kingdom, Denmark and Norway) regarding the content of these regulations, which laid the foundation for the cfp. In a somewhat Machiavellian slight of hand perhaps, negotiations on the new regime were concluded prior to the accession of the applicant States, whose interest were substantially different from the eec Member States as the applicants possessed significant coastal waters with fishery resources.67 64 See, inter alia: Ernesto Penas Lado, The Common Fisheries Policy: The Quest for Sustainability (Oxford: Wiley Blackwell, 2016); Jill Wakefield, Reforming the Common Fisheries Policy (Cheltenham: Edgar Elgar, 2016); Churchill and Owen, ec Common Fisheries Policy; R.  Long, P. Curran, Enforcing the Common Fisheries Policy, passim. On fisheries law ­enforcement more specifically, see European Court of Auditors’ Special Report n°7/2007 on the control, inspection and sanction systems relating to the rules on conservation of Community fisheries resources together with the Commission’s replies. oj C317/1 of 28.12.2007; Astrid Berg, Implementing and Enforcing European Fishery Law: The Implementation and Enforcement of the Common Fisheries Policy in the Netherlands and the United Kingdom (The Hague: Kluwer Law, 1999); Constance Johnson, “Fisheries Enforcement in European Community Waters Since 2002—Developments in Non-Flag Enforcement,” ­International Journal of Marine and Coastal Law 23, no. 2 (2008): 249–270. 65 Churchill and Owen, The ec Common Fisheries Policy, 4–5. 66 Council Regulation (eec) 2141/70 of 20 October 1970 laying down a common structural  policy for the fishing industry, oj S Ed 1970 (iii) 703; and Council Regulation (eec) No  2142/70 of 20 October 1970 on the common organization of the market in fishery ­products, oj S Ed 1970 (iii) 707. 67 The author has published on this topic in Gaelic: R. O’Lúbhaing, An Combheartas ­Iascaireacht A Athchóiriú (Baile Átha Cliatha: An Gúm, 2002).

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One of the regulations agreed in 1970 laid down the principle of equal a­ ccess, which became the bête noire of the policy subsequently, as it allows fishers from one Member State to access the fishing ground of another Member State.68 Back in 1970 the significance of the principle was underestimated, because it was not until 1976 that Member States extended their jurisdiction to 200 nautical miles in response to state practice worldwide. Despite this latter development, it took seven years of intensive negotiations in Europe before the policy was agreed in 1983. Essentially, the policy has a number of limbs and is made up of rules which regulate the quantities of fish caught by fishing ­vessels, the number of vessels which may have access to a fishery, the marketing of fishery products, the structural aspects of the industry including State aid to the fishing industry, rules on control and enforcement.69 In 1983 it was also agreed that there would be a number of exceptions to the free access principle including the 12-mile coastal zone band and in an area around the Shetland Islands (referred to as the Shetland Box) where access was regulated by licenses. Some vessels were allowed historic fishing rights in the 6–12 nautical mile band in the coastal zone. The next most significant event in the development of the policy was marked by the accession of Spain and Portugal to the European Community in 1986. Both States had large fishing fleets and had interest in gaining access to the common pool of fishery resources. In 1994, the regime was renegotiated and Spain was granted restricted access for a number of its vessels to an area to the west and south of Ireland, but not to the Irish Sea or the North Sea.70 The policy was subject to detailed review and reform in 1992, 2002 and again in 2012–2013. During the course of these reviews, it became apparent that the policy had not delivered on many of its principal objectives including most crucially sustainable fisheries and healthy ecosystems.71 That said, the policy remains firmly rooted in the architecture adopted in 1983 and subsequently articulated in form of a large corpus of secondary legislation, which has extensive geographical, material and personal scope.72 In particular, one of the key distinguishing features of the cfp stems from the division of powers between the eu and the Member States under which the conservation and management of marine biological resources, including fisheries, is an exclusive Union

68 Council Regulation 2141/70703. 69 Churchill and Owen, The ec Common Fisheries Policy, passim. 70 Ibid. 71 See discussion on sustainability infra this Chapter. 72 Article 1, Regulation No. 1380/2013, oj L 354/22 20 December 2013.

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competence.73 Accordingly, as your author has noted elsewhere,74 eu fisheries are managed as a common resource and all Union fishing vessels (that is to say, vessels flying the flag of a Member State) enjoy, in principle, equal access to the waters under the sovereignty and jurisdiction of other Member States.75 In practice, however, access is curtailed by the principle of relative stability, which stipulates that the allocation of fishing opportunities is based upon a predictable share of the stocks for each Member State, as well as the protection of the entitlements of local populations dependent upon fisheries.76 Moreover, as seen above, access arrangements to the coastal waters are restricted to local vessels and to vessels from other Member States that enjoy historic fishing rights.77 Since its inception, the policy has lurched from one crisis to another.78 ­According to a detailed analysis undertaken by the European Commission in 2009, the main defects are the following: unsustainable fisheries, fleet overcapacity, non-compliance by the industry with their conservation obligations, short-term management practices, government subsidies, environmentally destructive fishing practices and the failure to adhere to scientific advice.79 In many ways, this finding is no different from other fisheries worldwide, which United Nations General Assembly resolutions have characterised by many of the same shortcomings evident in the eu, namely: inadequate flag State control; the absence of effective monitoring, control and surveillance systems; harmful fishing subsidies; overcapacity in fishing fleets; iuu fishing; as well as uncertainties regarding their long-term environmental and economic sustainability.80 The cfp was subject to major reform in 2014 and the focus moved to specific sea-basins, namely: the North Sea, the Celtic Seas, the Bay of Biscay and the wider Atlantic, the Baltic Sea, the Mediterranean and the Black Seas, with the overall objective of achieving greater sustainability, together with enhanced economic, social and employment benefits for the sector.81 Some of the other 73 74 75 76 77 78 79 80 81

Treaty on the Functioning of the European Union (tfeu), Article 3(1)(d). R. Long, “Law of the Sea; The North East Atlantic,” in Rothwell , ed., Oxford Handbook, 647–671. Article 5, Regulation 1380/2013. Article 16, Regulation 1380/2013. Article 5(2) and Annex 1, Regulation 1380/2013. J. Raakjaer, A Fisheries Management System in Crisis: The eu Common Fisheries Policy (­Aalborg: Aalborg University Press, 2009). European Commission com (2009) 163. unga Resolution 63/112 A/RES/63/112. Regulation 1380/2013.

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changes included: a prohibition on the wasteful practice of discarding fish back into the marine environment; the introduction of multi-annual plans for the management of selected fisheries, as well as a more comprehensive ­application of the ecosystem and precautionary approaches to the various tasks undertaken in fisheries management.82 Regrettably, the largely advisory role of regional stakeholder consultative bodies was not enhanced to any great degree.83 As will be seen further on below, the reformed policy sets down ­specific requirements in relation to achievement of msy.84 Apart from introducing the goal of better governance and management of the policy at an internal level, the reform has also sought to improve the ­external dimension of eu fisheries. The Union has concluded 19 sustainable fisheries partnership agreements with third countries and as an international actor, the eu aims to give full effect to the management and enforcement measures adopted by Regional Fisheries Management Organisations (rfmos).85 In addition, the eu has adopted a comprehensive scheme of regulations ­addressing illegal, unreported and unregulated (iuu) fishing.86 These rules ­allow for the blacklist of countries that do not combat iuu fishing and require the validation of fish by the competent flag state or exporting country before products can be exported/imported to the Union. Operators of fishing vessels who fish illegally anywhere in the world, under any flag, face substantial penalties under Union law with a view to depriving them of their illicit gains.87 This approach of course accords fully with the 2009 fao Agreement on Port State Measures to Prevent, Deter and Eliminate iuu Fishing,88 as well as the International Plan of Action on the same subject. Finally, as noted above, eu competence in relation to fisheries and the conservation and management of marine living resources has a solid legal plinth in eu Treaties.89 The term “competence” describes the legal powers of the 82 Articles 2, 9, 10, 14, Regulation (eu) No 1380/2013. 83 Annex iii, Regulation (eu) No. 1380/2013. 84 See discussion of the principle “sustainable use,” infra. 85 Ibid. 86 Articles 36–39, Regulation (eu) No1380/2013; Regulation (eu) No 1005/2008 oj L 286/1 29 October 2008. 87 Regulation (eu) No 1005/2008; Commission Regulation 1010/2009. 88 Not yet in force. Comes into effect after the deposit of twenty-fifth instrument of ratification with the Director-General of the fao. 89 The Treaty on European Union (teu), and the Treaty on the Functioning of the European Union (tfeu). Both treaties have equal status under eu law with the former setting down the constitutional and legal framework for the eu and the latter providing much of the detail on how European integration is to be achieved in practice. A copy of the

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­ uropean institutions to adopt laws or to take a decision in a particular policy E area.90 The Treaty on the Functioning of the European Union (tfeu) identifies three types of legal competence: exclusive competence of the eu; shared competence between the eu and Member States; and supporting competence where the eu can carry out supporting and coordinating actions.91 In accordance with the Treaties and the settled case law of the European Court of Justice, the eu has exclusive competence in the conservation of marine biological resources under the cfp.92 Slightly confusingly, apart from the conservation of biological resources, it has shared competence in other areas of fisheries and in relation to environmental matters.93 In light of the referendum vote in the United Kingdom in June 2016, the policy will have to be renegotiated in relation to the activities of British vessels in eu waters, as well as other Member State vessels operating in waters under the sovereignty and jurisdiction of the United Kingdom.

Measuring Triumph and Failure

Assessing the successes and failures of the cfp presents several challenges and must be viewed in light of the status and future prospects of global fisheries. From a purely economic perspective, a widely cited analysis by the World Bank and fao estimates that the difference between the potential and actual net economic benefits to the global economy from well and poorly managed marine fisheries is about $50 billion per year, or $2 trillion over three decades.94 Furthermore, although there has been an improvement in the management of fisheries between 2004 and 2012, on the current rate of adjustment, the World Bank and fao estimate that it will take 60 to 70 years for the resource to reach

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­Consolidated Treaties is published in the Official Journal of the European Union at oj C 306/50, 17.12.2007. An electronic copy is available at: htpp://europa.eu/lisbon_treaty/ full_text/index_en.htm. See Theodore Konstadinides, Division of Powers in European Union Law: The Delimitation of Internal Competences between the eu and the Member States (London: Wolters Kluwer, 2009). Articles 2–6, tfeu. Article 3(1)(d), tfeu. Article 4(2)(d)-(e), tfeu. World Bank/fao, The Sunken Billions Revisited Progress and Challenges in Global Marine Fisheries (Washington dc, 2009), 20 xvii. Available at: https://openknowledge.worldbank .org/handle/10986/24056 License: cc BY 3.0 igo.

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optimal sustainability levels if the current approach to management and regulation is successful in the longer-term.95 Similar economic estimates on sustainability have yet to be published in the eu. In this context, it can be contended that the move towards sustainable fisheries requires an evaluation of how well the eu has addressed the various law and policy challenges associated with the implementation of the principles of good ocean governance, as first enunciated by Professor David Freestone in 2008.96 Indeed, many of these normative standards are set out in the unclos and related law of the sea instruments.97 Moreover, they have since been a­ dopted by the International Union for Conservation of Nature (iucn). They also are featured in many documents and reports of international ­bodies, ­including the report of the 2012 United Nations Conference on Sustainable ­Development, The Future We Want, which records a commitment by the ­international community to protect, and restore, the health, productivity and resilience of oceans and marine ecosystems, and to maintain their biodiversity, enabling their conservation and sustainable use for present and future generations, and to effectively apply an ecosystem approach and the precautionary approach in the management, in accordance with international law, of activities having an impact on the marine environment, to deliver on all three dimensions of sustainable development.98 Similar commitments are reflected in eu law including most notably the eu’s Basic Fisheries Management Regulation and the Marine Strategy Framework

95 Ibid. 96 David Freestone, “Principles Applicable to Modern Oceans Governance,” International Journal of Coastal and Marine Law 23, No. 3(2008): 385–391; David Freestone, “Modern Principles of Ocean Governance,” Environmental Policy and Law 39, no. 1 (2009): 44–49. Also see: A. Oude Elferink, “Governance principles for areas beyond national jurisdiction—­Report for the symposium Biological Diversity and Governance of Areas beyond National Jurisdiction” (Utrecht: Netherlands Institute for the Law of the Sea, 2011). 97 See, for example, Article 5, United Nations Agreement for the Implementation of the ­Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 unts 88 (entered into force December 11, 2001). Implemented into eu law by Council Decision 98/414/EC, op. cit., note 19. 98 United Nations, Report of the United Nations Conference on Sustainable Development, Rio de Janeiro, Brazil, 20–22 June 2012, 30. un Doc. A/CONF.216/16.

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Directive (msfd).99 In particular, the former instrument lists the principles of good governance as follows: (a) the clear definition of responsibilities at the Union, regional, national and local levels; (b) regionalization; (c) best available scientific advice; (d) a long-term perspective; (e) administrative efficiency; (f) stakeholder engagement; (g) flag State responsibility; (h) consistency with other Union policies; (i) use of impact assessments; (j) policy coherence; and (k) transparency.100 What of the utility of the principles? According to Professor Freestone, as normative principles, they express “certain underlying legal norms in a declaratory form and constitute the basis for all the obligations and rights.”101 On occasion, they are applied as interpretative tools by courts in order to enunciate substantive rights and obligations in complex cases concerning ­marine resource management.102 From a practical perspective, they also provide guidance on the underlying rational, as well as the approach that ought to be adopted, in applying legal rules for the purpose of resource management or to protect and preserve the marine environment, particularly in instances of scientific uncertainty.103 Furthermore, normative principles aimed at ensuring sustainable fishing practices are gaining increasing currency in international and eu law. Ultimately, however, their efficacy is largely dependent on how well States, international bodies and civil society, can agree on the balancing of the various interests that are at play in natural resource management, including, most notably, conservation and sustainability objectives vis–à–vis economic and social entitlements. 99

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Regulation (eu) No 1380/2013 of the European Parliament and of the Council of 11 ­ ecember 2013 on the Common Fisheries Policy, amending Council Regulations (ec) No D 1954/2003 and (ec) No 1224/2009 and repealing Council Regulations (ec) No 2371/2002 and (ec) No 639/2004 and Council Decision 2004/585/EC, oj L 354, 28.12.2013, 22–61; ­Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 ­establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), oj L 164/19, 5.6.2008. See R. Long, “Principles and Normative Trends in European Union Ocean Governance,” in Schofield, Lee and Kwon, eds., Limits of Maritime Jurisdiction, 699–726. Article 3, Regulation (eu) No 1380/2013. Freestone, “Modern Principles,” 45. See, for example, the interpretation of the principle as a rule of customary international law in Case 21, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber) [2011] itlos Rep 10. Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd edition), (Cambridge: Cambridge University Press, 2012), 187–189.

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In view of their importance, a brief evaluation of the cfp objectives is undertaken here through the prism of the normative standards applicable to good ocean governance. Conditional Freedom of Activity The first principle is well established: It relates to the freedom of the seas and freedom of fishing on the high seas in particular, which are subject to important qualifications under international and eu law.104 Pursuant to unclos, the qualifications extend to respecting treaty obligations, the rights and duties of coastal States, including the requirements to protect and preserve the marine environment and the resources that it supports.105 In this regard, the cfp appears to measure up well in so far as it sets out a comprehensive code of prescriptive regulations governing all aspects of fisheries conservation and management both within and beyond national jurisdiction.106 Although in an abstract sense, the policy is underpinned by the principle of equal access of all Member State vessels to resources in all Union waters,107 the scheme of regulation under the cfp is highly prescriptive and applies to fishing related activities that take place on the territory of Member States or in sea areas under the sovereignty and jurisdiction of the Member States, including fishing activity by third country vessels.108 Furthermore, the policy aims to give effect to international conservation obligations, including obligations to take conservation and management measures designed to maintain or restore to sustainable levels the marine resources in Union waters and on the high seas.109 eu management measures include all or many of the following: (a) multiannual management plans for specific stocks; (b) the setting of conservation targets and related measures to minimise the impact of fishing on the marine environment; (c) measures to adapt the capacity of vessels and fleets in the Member States to the opportunities for sustainable fishing; (d) economic and fiscal incentives promoting selective fishing practices including those with low impact on the marine ecosystem and fishery resources; (e) quota management measures; (f) technical conservation measures including minimum 104 Freestone, “Modern Principles,” 45. 105 Articles 87.1 and 2, 88, 116, 117, 192–194, United Nations Convention on the Law of the Sea (unclos). 106 See inter alia Churchill and Owen, ec Common Fisheries Policy. 107 Article 5(1), Regulation (eu) No 1380/2013. 108 Article 1(2)(2), Regulation (eu) No 1380/2013. 109 See discussion on sustainable use, infra.

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sizes for fish species, and landing and fishing gear restrictions; (g) rules governing the adoption of emergency conservation measures, as well as an elaborate code governing enforcement, compliance and monitoring.110 Importantly, in ­accordance with Basic Fishery Management Regulation, the eu is committed to adopting “specific measures to minimise the negative impact of fishing activities on marine biodiversity and marine ecosystems, including measures to avoid and reduce, as far as possible, unwanted catches.”111 In parallel with the obligations that arise under the fisheries policy, where circumstances require, the msfd foresees the full closure of fisheries to improve the integrity, structure and functioning of ecosystems and to safeguard spawning, nursery and feeding grounds.112 Accordingly, it is easy to conclude that eu law reflects the conditional freedom of the sea in so far as it aims to regulate the rights and duties of the Member States, third countries, and corporate and private persons in their conduct of fishing activities. Protection and Preservation of the Marine Environment A fundamental aim of unclos and related agreements is the protection and preservation of the marine environment.113 Likewise, the eu’s environmental policies and the reformed cfp are aimed at ensuring long-term environmental, economic and social sustainability.114 In particular, the fisheries policy aims to ensure the sustainable management of all commercially exploited fish species and the attainment of good environmental status of the broader marine environment by 2020 under the scheme established by the msfd.115 Crucially, one of the qualitative descriptors of good environmental status under the latter instrument is that “populations of all commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock.”116 110 111 112 113 114 115

Article 7, Regulation (eu) No 1380/2013. Article 7(2)(e), Regulation (eu) No 1380/2013. Recital 39, Directive 2008/56/EC. Articles 192–194, unclos. Recital 4 and Article 2(1), Regulation (eu) No 1380/2013. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), oj L 164/19, 5.6.2008. See, R. Long, “The eu Marine Strategy Framework Directive: A new European approach to the regulation of the marine environment, marine natural resources and marine ecological services,” Journal of Energy and Natural Resources Law 29, No.1 (2011): 1–45. 116 Articles 3(5), 9(1), 9(3) and 24, Annex i (3), Directive 2008/56/EC.

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In relation to the actions of States, the cfp is explicit in so far as Member States are encouraged under the fisheries policy to “promote responsible fishing by providing incentives to those operators who fish in the least environmentally damaging way and who provide the greatest benefits for society.”117 In areas that are protected by environmental law such as the Water Framework Directive,118 and the eu’s Habitats and Wild Birds Directives,119 the Member States are required to adopt appropriate conservation and management ­measures protecting the marine environment. In practice, however, progress in implementing the normative principle to protect and preserve the marine environment has been largely unsatisfactory. The problems are acute in some of Europe’s regional seas and the cumulative impacts of human activities were highlighted by the European Environment Agency (eea) in their report entitled, State and Outlook 2015, which noted that the quality of the European marine environment is seriously at risk due to overfishing, sea floor damage, pollution by nutrient enrichment and contaminants, the introduction of 320 new non-indigenous species since 2000, the widespread pollution from hazardous substances, along with increases in marine litter and underwater noise.120 Allied to this, the environmental quality of coastal waters is particularly problematic due to pollution from nutrients, pesticides, industrial and household chemicals.121 The initial assessment of Member State performance in improving the ­quality of the marine environment in accordance with the scheme set down by the msfd is unequivocal and focuses on the prescribed scientific qualitative descriptors of the marine environment set out in great technical detail in the Directive including biodiversity, non-indigenous species, fish, health of food webs, contaminants, litter and underwater noise. The initial assessment of the success of this approach is not encouraging and leaves a lot to be ­desired in terms of Member State performance. In 2014, for example, the European Commission reported to the Council and the European Parliament as follows: 117 Recital 33, Regulation (eu) No 1380/2013. 118 Article 13(4), Directive 2008/56/EC. 119 Article 6, Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, oj L 206, 22.7.1992, p. 7; Article 4, Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, oj L 20, 26.1.2010, 7. 120 European Environment Agency (eea), The European Environment—State and Outlook 2015: Synthesis Report, (Copenhagen: 2015), 72. 121 Ibid., 122.

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…Member States’ definition of good environmental status and the path they set out to achieve it shows overall limited ambition, often fails to take into account existing obligations and standards and lacks coherence across the Union, even between neighbouring countries within the same marine region.122 In several Member States, there also appears to be an absence of political commitment to implement eu law in a timely and effective manner. Markedly, the poor performance resulted in the European Commission opening infringement proceedings against Poland under the eu treaty and seeking a penalty of €59,834 for every day it was non-complaint with its obligations arising under the msfd.123 The suggested penalties took into account the seriousness and duration of the infringements. Similarly, the slow transposition of the Directive into national law by Estonia, Greece, Finland Cyprus, France and Ireland, also resulted in the threat of legal proceedings in 2011, before the Member States stepped up to the mark by enacting the requisite legislation to give effect to their eu obligations.124 At both global and regional levels, the continued loss of biodiversity is very significant because of the goods and services it provides humanity.125 According to the eea, scientific observation shows that “many marine species across all European seas continue to experience a decrease in population size as well as a loss of distribution range and habitat due to impacts from human pressures.”126 Ominously, the eea records that 80 percent of the species and habitats assessments under the msfd are categorised as “unknown” and a miniscule 4 percent have achieved the target of “good” environmental status.127 A similar finding shows that only 7 percent of marine species assessments achieved favorable conservation status under the Habitats Directive, while 66 percent were recorded as “unknown,” with a further 26 percent considered “bad or inadequate.”128 Following on from this, the eea concluded that the management of Europe’s marine protected areas is not yet effective 122 com(2014) 97, Brussels, 20.2.2014 at 10. 123 Article 258, Treaty on the Functioning of the European Union. European Commission Press Release, IP/11/1434, 22.10.2015. Available at: http://ec.europa.eu/environment/legal/ law/press_en.htm. 124 European Commission Press Release, IP/11/303 and IP/11/436, 6.04.2011; IP/11/90, 27.01.2011. 125 See, Bradley J Cardinale et al., “Biodiversity Loss and its Impact on Humanity,” Nature 486 (2012), 59–67. 126 Ibid., 72. 127 eea Briefing, 18 February 2015, last modified 29 September 2015. 128 Ibid.

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or safeguarding marine biodiversity.129 ospar has come to the same conclusion regarding its network of 403 mpas situated within national jurisdiction and 10 High Seas mpas, due to incomplete information from Contracting Parties on conservation objectives, management plans, as well as on regulatory measures.130 The status of European fish stocks must be viewed in light of international commitments regarding the sustainable and equitable use of marine resources and the obligations placed on States and international organizations to ensure optimum utilization pursuant to unclos.131 The reform of cfp in 2013 was aimed at ensuring that the exploitation of marine biological resources in eu waters with a view to ensuring that could produce the msy by 2015.132 The regulatory requirements are unambiguous in so far as where this target was not achieved, they stipulate that the msy should be attained for all stocks managed under the cfp “as soon as possible thereafter and in any event no later than 2020.”133 The results are disappointing and despite signs of improvement in the North-East Atlantic Ocean and Baltic Sea, the evidence adduced by the eea is pretty unequivocal in so far as it concluded that more than half of the assessed commercial stocks did not attain good environmental status by 2015.134 As highlighted previously,135 fishing beyond msy in contravention of Article 61 of unclos remains a major problem in Europe with some indications of a slow improvement over the past decade, with 94 percent of the eu managed stocks in the Atlantic and Baltic Sea fished beyond msy in 2007, 39 percent in 2013 and 41 percent in 2014.136 The status of fishing in the Mediterranean Sea is more dismal with 91 percent of stocks not achieving msy in 2014, and 5 out of 7 stocks in the Black Sea failing to meet the same objective standard.137 ­Unsustainable fishing practices have wider environmental consequence, e.g., 129 Ibid. 130 Convention for the Protection of the Marine Environment of the North-East Atlantic (ospar Convention) Commission, 2014 Status Report on the ospar Network of Marine Protected Areas (London, 2015), 41. 131 Articles 61–62, unclos. 132 Article 2(2), Regulation (eu) No 1380/2013. msy is defined under Article 4(7) to mean: “the highest theoretical equilibrium yield that can be continuously taken on average from a stock under existing average environmental conditions without significantly affecting the reproduction process.” 133 Ibid. 134 eea Briefing, 18 February 2015, last modified 29 September 2015. 135 See discussion supra. 136 eea Briefing, 03 March 2015 Last modified 04 September 2015. 137 Ibid.

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as noted by eea, fishing effort in the eu is by large vessels (74 percent of the fleet) with mobile gears, of which the majority (61 percent) disturbs the seafloor.138 All in all, these findings have impelled the eea to conclude that “the use of commercial fish and shellfish stocks in Europe, therefore, remains largely unsustainable, either because a large proportion of stocks are not assessed or because, for those assessed, only a small proportion is in good environmental status for both criteria of fishing mortality and spawning stock biomass.”139 The deplorable status of European fisheries is slowly improving; but there are many other pressures on the marine environment that are increasing including oxygen depletion and eutrophication, which is particularly problematic in the Baltic and Black seas.140 Marine litter is also pervasive in the marine environment, with the Commission reporting that over 90 percent of Fulmar sea birds in the North Sea have plastic in their stomachs and 712 items of litter were found on average on every 100 miles of the Atlantic Coast.141 The findings of the eea, the Commission and the regional seas bodies, ­indicate that the eu is not meeting its own empirical standards regarding environmental protection and conservation.

International Cooperation

The effective functioning of international law is very much contingent upon the efficacy of cooperative relations between States, as well as upon relations between international organizations. As far back as 1974, the International Court of Justice held that the rules of international maritime law are the product of “accommodation, reasonableness and cooperation. So it was in past and so it is necessarily today.”142 Indeed, the duty to cooperate is mentioned thirty-seven times in the unclos. Moreover, the Convention sets down specific requirements regarding cooperation in relation to the management and u ­ tilisation of marine living resources, both within and beyond national jurisdiction, as well as with respect to the protection of the marine environment.143 For such purposes, the duty on States extends to cooperating with 138 Ibid. 139 Ibid. 140 com(2014) 97, Brussels, 20 February 2014, 3. 141 Ibid. 142 Fisheries Jurisdiction Case (United Kingdom v Iceland), judgment 25 July 1974, para. 53. 143 Articles 43, 61(2), 64(1), 65, 66(3)(b), 69(4), 70(4), 94(7), 117, 118, 123, 197, 199, 200, 235(3), 243, unclos.

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global, ­regional and sub-regional organizations.144 A similar duty to cooperate arises under the 1995 Fish Stocks Agreement and pursuant to the fao Compliance Agreement.145 Moreover, as pointed out by Judge Wolfrum in the Mox Plant Case, international cooperation is very much the Grundnorm of Part xii of the 1982 Convention.146 In contrast to the somewhat anodyne and open-textured nature of cooperation under international law, the principle of sincere cooperation is the sina qua non of eu integration in so far as the eu and the Member States are compelled by eu primary law to assist each other in carrying out the tasks that flow from the European treaties.147 Likewise a similar duty, which is elevated to a treaty principle, arises in the context of relations between eu institutions.148 The special relationship between the eu and neighboring countries such as Norway and Turkey is based upon the principle of cooperation, which is crucial to achieving good environmental status of Europe’s regional seas in accordance with the scheme established by the msfd.149 Clearly, the eu could not function without strong cooperative structures and procedures for implementing its international commitments to manage marine resources sustainably. One of the principal mechanisms by which the eu discharges its duty of cooperation is through its membership in regional fisheries management organizations and through its conclusion of bilateral agreements with third countries under the chapeau of sustainable fisheries partnership agreements. The eu has twenty-four such agreements, fifteen with a protocol in force,150 and several others that are inactive at the time of writing.151 The importance of the agreements should not be underestimated as the total catch by M ­ ember 144 Ibid. 145 Article 5, 7, 8, 10, 13, 14, 15, 17, 20, 22, 24, 25, 26, 28, Annex 1, unfsa, op. cit., note 101. Article v, vii, viii, ix, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993) 2221 unts 91. 146 Separate Opinion of Judge Wolfrum, The mox Plant Case (Ireland v United Kingdom) ­i tlos Order 2001/5 of 13 November 2001. 147 Article 4(3), teu. 148 The principle of “sincere cooperation” stems from Article 13 of the teu in the context of relations between the eu institutions. 149 Article 8, teu. 150 Faroe Islands and Norway. Mixed species agreements: Greenland, Morocco, Mauritania, Guinea-Bissau. Tuna agreements: Cape Verde, Senegal, Liberia, Côte d’Ivoire, São Tomé and Príncipe, Gabon, Cook Islands, Comoros, Madagascar, Mauritius, Seychelles. 151 Gambia, Equatorial Guinea, Mozambique, Micronesia, Solomon Islands, Kiribati, and Iceland.

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State vessels in Union waters covers less than 40 percent of consumer demand on the European fish market.152 In addition, there are some estimates by the European Commission that suggest that fishing activity of the eu fleet in areas outside of Union waters accounts for 20 percent of the total eu catch, which is made-up of two components, namely: 13 percent from the High Seas and 8 percent from catches taken pursuant to bilateral agreements with third countries.153 The importance of external fisheries varies with species, so for instance, 90 percent of the tuna catch is taken outside of the eu.154 This explains why many of the sustainable fisheries partnership agreements relate to tuna stocks and operate in parallel to regional agreements.155 As of July 2016, the eu is party to six tuna regional agreements and is an ­active particpant in nine non-tuna rfmos.156 In addition, the eu is also a member of two organizations that have a purely advisory role: the Western Central Atlantic Fishery Commission and the Fishery Committee for the ­Eastern ­Central Atlantic.157 The cooperative aspects of the fisheries partnership agreements are aimed at providing a transparent legal framework governing the activities of the eu fleet in third country waters. Notably, the terms of the agreements are in the public domain and debated in both the Council and European Parliament prior to their approval by the European institutions. The eu has actively sought to improve governance and the scientific basis for the agreements, which under the Basic Fishery Management Regulation are restricted to facilitating access 152 European Commission, sec(2011) 891, Brussels, 13 July 2011. 153 European Commission, op. cit., note 48. Also see, European Commission, Sustainable Fisheries Partnership Agreements, available at: http://ec.europa.eu/fisheries/documentation/ publications/2015-sfpa_en.pdf. 154 Ibid. 155 Ibid. 156 International Commission for the Conservation of Atlantic Tunas (iccat); Indian Ocean Tuna Commission (iotc); Western and Central Pacific Fisheries Commission (wcpfc); Inter-American Tropical Tuna Commission (iattc);Agreement on the International Dolphin Conservation Programme (aidcp), the latter is a sister organisation to (iattc); Commission for the Conservation of Southern Bluefin Tuna (ccsbt); North-East Atlantic Fisheries Commission (neafc); Northwest Atlantic Fisheries Organization (nafo); North Atlantic Salmon Conservation Organisation (nasco); South-East Atlantic Fisheries Organisation (seafo); South Indian Ocean Fisheries Agreement (siofa); South Pacific Regional Fisheries Management Organisation (sprfmo); Convention on Conservation of Antarctic Marine Living Resources (ccamlr); General Fisheries Commission for the Mediterranean (gfcm); Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (ccbsp). 157 European Commission, op. cit., note 48 at 6.

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to the surplus of marine biological resources in accordance with Article 62(3) of unclos.158 That said, the agreements remain controversial and it ought to be noted that the generous regime of subsidies, amounting to €135 million in 2014, available to the eu fleet has been the subject of the criticism from the ­European Court of Auditors in particular.159 Furthermore, the application of the surplus principle is sometimes undermined by the absence of up-todate stock assessments in third country waters, as well as concerns about the ­adverse environmental impacts of the agreements, along with the negative ­social impacts on local fishermen and communities.160 The principal weaknesses afflicting rfmos are well documented in the specialist literature and were the subject of extensive debate at the un Fish Stocks Agreement Review Conferences in 2010 and 2016.161 The report of the 2016 conference concluded that the agreement does “not appear to have contributed significantly to an improvement in the overall status of straddling fish stocks and highly migratory fish stocks, which has witnessed a decline.”162 The review conference called for enhanced flag State control, the implementaion of measures to combat iuu fishing including the Agreement on Port State Measures, as well as the elimination of subsidies.163 From the perspective of the eu’s external policy, the problems include overcapacity in fishing fleets, iuu fishing, poor compliance and inadequate enforcement, the absence of political-will in adopting appropriate management measures to ensure the sustainability of fisheries, as well as the habitual problem of the failure of Contracting Parties in following scientific advice on conservation measures.164 Professor Rosemary Rayfuse has pointed out that rfmos are “hamstrung by the limits of cooperation inherent in the structure of international law.”165 As well as the eu being very active in addressing ­concerns about the phenomenon of free-riders, or States not being bound by 158 Article 29(4), Regulation (eu) No 1380/2013. 159 European Court of Auditors Special Report No 11 of 2015, Are the Fisheries Partnership Agreements well managed by the Commission? (Luxembourg: eu, 2015). Available at: http://www.eca.europa.eu/Lists/ECADocuments/SR15_11/SR_FISHERIES_EN.pdf. 160 European Commission, sec(2011) 891, Brussels, 13 July 2011, at 22. 161 un Doc. A/CONF.210/2016/1, 1.03.2016. Also see, S. Cullis-Suzuki S, D. Pauly, “Failing the High Seas: A global evaluation of regional fisheries management organizations,” Marine Policy 34 no.5 (2010): 1036–1042. 162 un Doc. A/CONF.210/2016/1, 1.03.2016, at 68. 163 Ibid., 68. 164 European Commission, sec(2011) 891, Brussels, 13 July 2011. 165 R. Rayfuse, “Regional Fisheries Management Organizations” in Rothwell et al., eds., O ­ xford Handbook, at 439–462 and 462.

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international treaty commitments pertaining to high seas fisheries, the eu has used its considerable political clout to resolve disputes concerning resource ­allocation such as the one that arose with Faroe Islands in relation to the ­allocation of Atlantic-Scandic herring in the North-East Atlantic.166 After exhaustive negotiations on both sides and a real commitment towards regional cooperation, the dispute was settled without resorting to a full hearing under the compulsory dispute settlement under unclos. On broader environmental issues, the msfd requires considerable coordination between Member States at a regional seas level and the eu has established a Common Implementation Strategy for this purpose.167 In accordance with the strategy, Member States also have to work with other relevant actors including most notably the regional seas bodies under the Convention for the Protection of the Marine Environment of the North-East Atlantic (ospar), ­Baltic Marine Environment Protection Commission (also known as the Helsinki Commission or helcom), Barcelona and Bucharest Conventions, with a view to implementing the monitoring and management requirements of the Directive and to report on the state of the marine environment, as well as to develop regional indicators for this purpose.168 As noted by the European Commission, this moves the eu one step closer to the concrete implementation of the ecosystem approach with regard to the management of human ­activities impacting upon the marine environment.169 The success of the common approach under the msfd is not yet fully apparent. Nonetheless, the Commission reported in 2014 that the Member States in the North East Atlantic were working coherently with ospar and this could be contrasted with the ineffective regional arrangements in the Mediterranean and Black Seas.170 Instructively, in their first initial assessment of the Directive the Commission concluded as follows: Last but not least, regional cooperation must be at the very heart of msfd implementation, and influence national implementation processes, 166 See, inter alia: R. Long, “The European Union and Law of the Sea Dispute Settlement” in unclos—A Living Treaty, eds. J. Barrett and Richard Barnes (London: British Institute of International and Comparative Law, 2016), 417–455; Bjørn Kunoy, “Asserting Entitlements to Shared Fish Stocks” in Challenges of The Changing Arctic: Continental Shelf, Navigation, And Fisheries, eds. M. Nordquist, J. Norton Moore and R. Long, (Leiden/Boston: Brill/­ Nijhoff, 2016), 464–507. 167 R. Long, “The European Union and Law of the Sea Dispute Settlement,” 417–455. 168 com(2014) 97, Brussels, 20.2.2014, 3. 169 Ibid. 170 Ibid at 7.

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rather than the other way around. At the regional level, the Commission and the Member States should cooperate with other Contracting Parties in the context of the Regional Seas Conventions (rscs), to stimulate further coordination at regional or sub-regional level, bearing in mind that each rsc has its specificities. Member States should then use the results systematically in national implementation processes. The Commission and the Member States should continue discussion on how best to foster regional cooperation and further strengthen cooperation with the rscs, in particular to further align work programs.171 Following this analysis and the general thrust of eu policy, international cooperation remains at the very soul of the eu approach to marine environmental protection and fisheries management. In this context, it is very evident that enhanced regional cooperation, together with a more systematic discharge of their respective obligations by all parties, will facilitate more effective protection of the marine environment in the longer term. Overall, it is easy to ­conclude that the eu appears to be an excellent international actor from the perspective of fostering regional and multilateral cooperation, namely through adopting legislation that falls within its field of competence, as well as by ­entering agreements with third countries and international bodies.172 Science-Based Approach to Management The foundation of all management strategies to ensure the long-term sustainability of marine living resources is evidence-based scientific advice. Indeed, the whole process of marine living resource management and utilisation ought to be driven by scientific considerations. Instructively, unclos provides that coastal States must take into account the scientific evidence that is available to them to ensure that the conservation and management of marine living resources in the eez is not endangered by over-exploitation.173 To this end, States Parties to the Convention must also ensure that scientific information is shared through competent international organizations in relation to resources both within and beyond national jurisdiction.174 Likewise, similar cooperation duties arise for States bordering enclosed or semi-enclosed seas, such as the Mediterranean, Baltic and North seas.175 States must also use the best available 171 Ibid. 172 R. Long in D. Rothwell et al., eds., Oxford Handbook, 661–662. 173 Article 61(2), unclos. 174 Article 61(5) and 119(2), unclos. 175 Article 123(c), unclos.

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scientific evidence to restore harvested high seas species at levels that produce msy.176 Elsewhere the Convention provides that the monitoring of the risks or effects of pollution to the marine environment requires the use of recognised scientific methods and the provision of technical reports to competent international organizations.177 Laws and regulations applicable to ice-covered areas and aimed at the prevention of vessel source pollution must also be predicated on the best available scientific evidence.178 Ostensibly, the eu is committed to implementing a science-based approach to the conservation and management of marine living resources in line with its international and eu law obligations. Thus, for example, the designation of special areas of conservation and protected areas under the Habitats and Birds Directives is contingent upon scientific advice.179 Similarly, the msfd is a science-based instrument and the programmes of measures for the protection and management of the marine environment thereunder must take account of scientific and technological developments.180 Scientific advisory bodies play a major part in the implementation of the msfd, and they have contributed enormously to the design of monitoring and management programs.181 Implementing scientific advice in eu fisheries management decisions is challenging to say the least. A cursory review reveals that in 2011, for example, the Commission reported “the average percentage deviation of Council total-allowable catches (tacs) decisions from scientific advice for the years 2003–2010 was 47 percent.”182 That is to say, one out of every two decisions contravened the advice of the International Council for the Exploration of the Seas (ices) and the European Commission’s own scientific committee.183 Moreover, the Commission also reported that since 2008 this deviation had been reduced to 34 percent by 2010 but concluded that the tacs were still set well above what scientist’s recommended during the said period.184 Other indictors of the non-application of pertinent scientific advice during the period 2003–2010 related to the number of stocks for which scientific advice was set at a zero tac, and for which the Council adopted a positive tac, was 17 on 176 177 178 179

Article 119(1), unclos. Article 204, unclos. Article 234, unclos. Article 13(4) of Directive 2008/56/EC, Article 4 of Directive 2009/147/EC or Article 6 of Directive 92/43/EEC. 180 Recital 47 and Article 19, Directive 2008/56/EC. 181 Article 24, Directive 2008/56/EC. 182 European Commission, sec(2011) 891, Brussels, 13 July 2011, 10–11. 183 Ibid. 184 Ibid.

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average per annum. This had the dreadful consequences of fishing down the biomass towards extinction. Once more during the period 2007–2010, it rose to 20 stocks in 2007 before dropping to 14 in 2010.185 In order to address this fatal weakness in the cfp, the reforms introduced in 2013 seek to ensure that policy-oriented fisheries science informs all future management and conservation decisions, as well as the precautionary ­approach and ecosystem-based management.186 Moreover, Member States and fishers are compelled to collect biological data on catches, including information on the discard of fish back into the marine environment, as well as survey information on fish stocks and on the potential environmental impact of fishing activities on the marine ecosystem.187 Member States should manage and make the collected data available to end-users and to other interested parties and the public.188 Scientific advice under the cfp extends to biological, economic, environmental, social and technical matters. Moreover, although there is a requirement for the Commission to consult the Scientific, Technical and Economic Committee for Fisheries (stecf) on matters pertaining to the conservation and management of marine biological resources,189 crucially there is no obligation on the Commission to heed such advice in ­decision-making. The latter is undoubtedly a fatal flaw in the policy. Although the principles of good governance require the adoption of fishery management measures in accordance with the best available scientific advice, again there is no mandatory duty placed on the Council, Parliament and the Commission to discharge this principle in practice.190 This approach demonstrates scant regard for the principle of sustainable use.191 Accordingly, the eu approach to science-based decision making is good in theory but appears poor in practice, largely due to the absence of political will in the Member States. Precautionary Principle / Approach The Basic Fisheries Management Regulation provides that the eu must apply the precautionary approach to fisheries management, as referred to in Article 5 of the un Fish Stocks Agreement.192 This means “the absence of adequate 185 Ibid. 186 See discussion infra. 187 Article 26, Regulation (eu) No 1380/2013. 188 Article 25(2), Regulation (eu) No 1380/2013. 189 Article 26, Regulation (eu) No 1380/2013. 190 Article 3, Regulation (eu) No 1380/2013. 191 See discussion infra. 192 Article 4(8), Regulation (eu) No 1380/2013.

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scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment.”193 Indeed, any reading of the Basic Regulation is unequivocal in so far as the precautionary approach must be applied widely to the conservation, management and exploitation of fish stocks under the cfp with a view to restoring and maintaining “populations of harvested species above levels which can produce the msy.”194 If one reads this provision in light of the relevant provision of the unfsa,195 then caution must be exercised “when information is uncertain, unreliable or inadequate.” Likewise, although not mentioned expressly in the substantive provisions of the msfd, this instrument provides nonetheless that the programme of management measures to achieve good environmental status of the ­European marine environment “should be devised on the basis of the precautionary principle and the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay.”196 The Commission has concluded that “de facto, the principle could amount to giving environmental sustainability some degree of precedence” and guidance has been published by the eu institutions on its application in practice.197 Regrettably, the precautionary principle/approach is seldom used in setting safe scientific thresholds for catches. Thus, for example, the Commission reported that in most situations, the general trend by the Council is to ­carry-over total allowable catch levels from year to year irrespective of the scientific advice.198 For this reason, academic arguments have been advanced that by ignoring the application of the precautionary principle, the actions of the Council undermines the rule of law and should therefore be challenged in the Court of Justice of the European Union.199 Furthermore, in light of the crossreference to Article 5 of the unfsa in the Basic Fisheries Management Regulation there is little doubt that the eu decision-making process in relation to the application of the precautionary approach fails to meet the international legal standard for its application. 193 Ibid. 194 Article 2(2), Regulation (eu) No 1380/2013. 195 Article 6 and Annex ii, unfsa. 196 Recital 27, Directive 2008/56/EC. 197 Long in Schofield, Lee and Kwon, eds., Limits of Maritime Jurisdiction, 629–726. 198 Source: sec(2011) 891, Brussels, 13 July 2011, 10–11. 199 Alexander Proelss, Katherine Houghton, “The eu Common Fisheries Policy in Light of the Precautionary Principle,” Ocean & Coastal Management 70 (2012): 22–30.

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Ecosystem Approach The application of an ecosystem-based approach to the management of human activities that impinge upon the marine environment is a central feature of eu marine environmental and fisheries management law.200 Specifically, the Basic Fisheries Management Regulation aims to ensure that the negative impacts of fishing activities on the marine ecosystem are kept to a minimum and defines the ecosystem-based approach to fisheries management in a ­comprehensive and expansive manner to mean: …an integrated approach to managing fisheries within ecologically meaningful boundaries which seeks to manage the use of natural resources, taking account of fishing and other human activities, while preserving both the biological wealth and the biological processes necessary to safeguard the composition, structure and functioning of the habitats of the ecosystem affected, by taking into account the knowledge and uncertainties regarding biotic, abiotic and human components of ecosystems.201 eu law allows for the adoption of emergency conservation measures, as well as the establishment of fish stock recovery areas, where fishing activities may be restricted or prohibited in order to contribute to the conservation of living aquatic resources and marine ecosystems.202 Likewise the msfd aims to conserve marine ecosystems and the attainment of good environmental status under the Directive entails applying an ecosystem-based approach to the management of human activities while enabling a sustainable use of marine goods and services.203 In protecting and preserving the marine environment, the ­approach also entails preventing “its deterioration or, where practicable, ­restore marine ecosystems in areas where they have been adversely affected.”204 Restoration is thus an objective of the ecosystem-based approach under the msfd and can be particularly slow for complex marine ecosystems.205 The initial results on the application of the approach under the msfd leaves a lot to be desired with the eea reporting a major scientific knowledge deficit 200 R. Long, “Legal Aspects of Ecosystem-Based Marine Management in Europe,” in Aldo Chircop, Moira L. McConnell and Scott Coffen-Smout, eds., Ocean Yearbook Vol. 26, (­Boston/Leiden: Brill Academic Publishers, 2012), 417–484. 201 Article 4(9), Regulation (eu) No 1380/2013. 202 Articles 8, 12, Regulation (eu) No /2013. 203 Recital 8, Directive 2008/56/EC. 204 Article 1(2)(a), Directive 2008/56/EC. 205 H.K. Lotze, et al., “Recovery of Marine Animal Populations and Ecosystems,” Trends in Ecology and Evolution 26 no.11 (2011): 595–605.

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with 80 percent of species and habitats classified as “unknown” and as little as minuscule 4 percent achieving the requisite “good status” under the paradigm advanced by the Directive.206 Accordingly, the eea noted that “Europe’s seas can be considered ‘productive’ but they cannot be considered ‘healthy’ or ‘clean.’”207 The monitoring programmes implemented by the regional sea bodies, the ospar and helcom Commissions, are also finding that marine ecosystems, biodiversity and ecosystem services are under pressure with the ospar Commission scheduled to deliver assessments in 2017 based upon the application of 19 biodiversity indicators.208 The Commission concluded on a similar note that marine ecosystems are facing increasing pressures from human activities and that the eu is a long way from enjoying healthy ocean and seas, as well as achieving the objective of good environmental status by 2020.209 This is exacerbated by the deplorable status of many fish stocks in eu waters as there is considerable evidence in the scientific literature that ­unsustainable fishing practices and overfishing in particular fundamentally alter coastal and marine ecosystems.210 That said, the ecosystem approach lies at the heart of the msfd and the overall picture regarding its application is relatively positive in so far as the European Commission concluded in 2014 that the Directive has brought the eu “one step closer” to the concrete implementation of the principle with regard to the management of human activities impacting on seas.211 Furthermore, they believe that valuable lessons have been learnt regarding the application of the approach in practice by the eu, the Member States, as well as by regional seas and fisheries management bodies.212 However, it should also be borne in mind that the effects of climate change are not assessed in a systematic fashion under the Directive. On the whole, despite the unsatisfactory level of implementation of the msfd and the poor initial results, an ecosystem-based approach appears to be the only effective way to achieve the desired level of integration between eu policies and laws applicable to the marine environment.213 As such, it ­requires fundamental changes to the traditional law and policy approaches 206 State of Europe’s Seas eea Report No 2/2015, June 2015. 207 Ibid. 208 ospar Commission, ospar Annual Report 2014–2015 (London, 2015), 4. 209 com(2014) 97, Brussels, 20.2.2014, 10. 210 Jeremy B.C. Jackson, et al. “Historical Overfishing and the Recent Collapse of Coastal ­Ecosystems,” Science 293 no. 5530: 629–637. 211 com(2014) 97, Brussels, 20.2.2014, 5. 212 Ibid. 213 eea, “State of Europe’s Seas” (eea Report No 2/2015, June 2015, 123).

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and ­management procedures that are applied by the eu and the Member Sates to regulate and control offshore activities. Sustainable and Equitable Use The normative construct of sustainable and equitable use of resources can be traced back to some of the first instruments that advance the concept of sustainable development in modern environmental law including Principle 4 of the Rio Declaration and unep’s Agenda 21.214 The principle is codified in multilateral and regional instruments concerned with marine resource management including the unfsa, the High Seas Compliance Agreement, the fao Code of Conduct for Responsible Fisheries, many General Assembly resolutions, along with fao international plans of action and technical guidelines, among many others.215 The Johannesburg Plan of Implementation set down an express requirement to maintain or restore fish stocks to levels that can produce msy by 2015.216 More recently, Goal 14 of the World Sustainable Development Goals requires the international community to sustainably manage and protect marine and coastal ecosystems in order to achieve healthy and productive oceans by 2020.217 To this end, Goal 14 also requires the effective implementation of international law as reflected in unclos, which “provides the legal framework for the conservation and sustainable use of oceans and their resources.”218 The principal aim of the cfp is to ensure that fishing and aquaculture ­activities contribute to the threefold objective of long-term environmental, economic and social sustainability.219 Sustainability is also a leitmotiv in the msfd, which aims to promote the sustainable use of the seas and the ­conservation of marine ecosystems.220 In particular, the Directive aims to advance the sustainable use of marine goods, services and marine biodiversity, along with the improvement of environmental quality in accordance with the ­principle of sustainable development, which is codified in the Treaty on the

214 N. Matz-Lück and J. Fuchs, “Marine Living Resources,” in Rothwell et al., eds, Oxford H ­ andbook, 491–515 and 495–496. 215 As summarized in ibid. 216 un Doc. A/CONF.199/20. Report of the World Summit on Sustainable Development Johannesburg, South Africa, 26 August–4 September 2002 (New York, 2002), 31(a). 217 Op cit note 5. 218 Ibid. 219 Recital 4, Regulation No 1380/2013. 220 Directive 2008/56/EC.

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Functioning of the European Union and the Charter of Fundamental Rights of the European Union.221 In the context of the msfd, “good environmental status” means “the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations.”222 Sustainability is therefore linked with intergenerational equity and the provision of ecological goods and services. ­Crucially, the msfd provides a blueprint for putting sustainable use into practice and envisages the curtailment of human activities for this purpose.223 Achieving the laudable objective of sustainable use is inherently difficult in light of the poor status of the marine environment and the resources that it supports, as well as scientific uncertainty. In 2014, for instance, the European Commission reported that few eu Member States are committed to ensuring that all fish stocks should be exploited at or below msy levels.224 As seen previously, this lamentable finding is supported by the first implementation report on the msfd, which records that 39 percent of stocks in the Northeast Atlantic and 85 percent in the Mediterranean and Black Seas are overfished and recovering very slowly, despite recent legislative efforts to reform the cfp and to put the eu fisheries regime on the road to a sustainable future.225 On the other hand, it should also be noted that the eu has advocated strongly for the adoption of a new international instrument for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (abnj).226 They have also remained firmly committed to ensuring that the ­preparatory negotiation process at the un is a success.227 In this context and according to its statements at the first session of the United Nations Preparatory Committee, the eu is opposed to a “first come, first served” approach to the 221 Article 191, tfeu. 222 Article 3(5), Directive 2008/56/EC. 223 Long, op. cit., note 119. 224 com(2014) 97 at 3. 225 com(2013) 319; fao 2016 report, “The State of Mediterranean and Black Sea Fisheries,” available at http://www.fao.org/3/a-i5496e.pdf. 226 R. Long. Mariamalia Rodríguez Chaves, “Anatomy of a New International Instrument for Biodiversity beyond National Jurisdiction: First Impressions of the Preparatory Process,” Environment Liability: Law, Policy and Practice 6 (2015): 214–229. 227 Ibid. See also K. Gjerde's chapter in the present book, infra. Also see “Statement by the European Union at the First Meeting of the Preparatory Committee,” Monday, March 28, 2016. Available at: http://statements.unmeetings.org/media2/7656889/european-union.pdf.

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use of biodiversity in abnj on the basis that this undermines sustainability.228 The eu is proactive regarding the establishment and management of a global network of ecologically representative and effectively managed mpas in abnj, as well as the establishment of rules governing environmental impact assessment, capacity-building and the transfer of marine technology.229 The eu approach to the protection of biodiversity in abnj accords fully with Goal 14 of the 2030 Agenda for Sustainable Development, which aims to improve the sustainable management, protection and restoration of marine ecosystems, as well as calling for the conservation of at least 10 percent of marine areas by 2020.230 The conservation and sustainable use of ocean resources for present and future generations is a key objective of the rio+20 United Nations Conference on Sustainable Development.231 Furthermore, it is foursquare with the aforementioned United Nations General Assembly Resolution 69/292 on the development of an international legally binding instrument under unclos on the conservation and sustainable use of marine biodiversity.232 In summary, sustainable and equitable use of the marine environment and marine living resources have a solid legal plinth in eu law and are contingent upon Member States overcoming short-term economic and social considerations at the expense of environmental sustainability. As such, legal obligations in isolation will not overcome the practical challenges faced by the eu in putting the principle into practice, without the requisite political will, robust compliance and enforcement systems, as well as greater coherence with the other normative principles described elsewhere in this chapter including the precautionary principle and ecosystem-based management.

Public Information

One aspect of eu law and policy that should accord fully with the iucn Principles of Ocean Governance is the requirement of making environmental ­information available to the public in a timely manner.233 This is primarily because the eu and the Member States are party to the United Nations ­Economic 228 “Statement by the European Union.” 229 Ibid. 230 unga Res. 70/1, A/RES/70/1, 21 October 2015. Goal 14.2 and 14.5. 231 United Nations Conference on Sustainable Development, entitled “The Future We Want” annexed to unga Resolution 66/288, A/RES/66/288, 11 September 2012, para. 162. 232 unga Res. 69/292 (2015), A/RES/69/292, para. 1. 233 Freestone, “Modern Principles,” 46.

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Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters,234 referred to as the 1998 Aarhus Convention, which is given effect in eu law by a number of directives and regulations.235 Although the failure of the eu and the Member States to ensure the effective implementation of the Aarhus Convention is subject to legal proceedings,236 it has nevertheless had a major bearing on the shape and substantive obligations that arise under eu marine environmental instruments. Thus, for example, the msfd makes provision for the sharing of public information in accordance with the requirements of eu legislation giving effect to the 1998 Aarhus Convention in order to ensure the active involvement of the general public in the establishment, implementation and updating of marine strategies.237…One of the substantive obligations of conduct on Member States is the requirement to make available to the public their national programs of management measures that are aimed at achieving good environmental status, including information on spatial protection measures, marine protected areas, special areas of conservation under the Habitats Directive, as well as special protection areas pursuant to the Birds Directive.238 Furthermore, the msfd spells out in considerable detail how the sharing of information and consultation are to be undertaken in practice.239 As a result, this approach has engendered a broad public debate on the protection of the marine environment in Europe with the European Commission receiving information on public and stakeholder consultation in 19 Member 234 2161 unts 447; 38 ilm 517 (1999). 235 These instruments include, inter alia: Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC; Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/ EEC and 96/61/EC; Regulation (ec) No 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, oj L 264, 25.9.2006, p. 13. 236 See Jonas Ebbesson, “The eu and the Aarhus Convention: Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters” (Brussels: European Parliament, June 2016). Available at: http://www.europarl.europa.eu/ RegData/etudes/BRIE/2016/571357/IPOL_BRI(2016)571357_EN.pdf. 237 Recital 36, Directive 2008/56/EC. 238 Article 13(4)(5)(6), Directive 2008/56/EC. 239 Article 19, Directive 2008/56/EC.

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States.240 Furthermore, the European Marine Observation and Data Network, which is a network of more than 100 marine organizations, provide a single entry point for free and open-access retrieval of marine data throughout the eu.241 This in turn has greatly facilitated private and public access to marine environmental information and enhances transparency in decision-making regarding conservation and management measures. Likewise the obligations on making information public under the cfp are relatively robust since the reform of the policy in 2013. In particular, the eu has formal structures for stakeholder engagement and the sharing of information on fisheries management measures in the form of the Advisory Councils that operate under the cfp.242 Moreover, the Basic Fisheries Management regulation requires Member States to make public reports on fishing capacity, that is to say the alignment of the number of fishing vessels with the available resources under the fishery policy, as well as information on data and fisheries partnership agreements, along with allowing public access to the Union ­fishing fleet register in Brussels.243 The eu therefore appears to satisfy the requirements of making marine environmental information to the public, despite the broader difficulties encountered in several Member States in discharging their obligations pertaining to the Aarhus Convention. Transparency in Decision-Making Transparency in decision-making and public accountability is particularly important in relation to fisheries and environmental management because there is a general perception that many decisions are made out of public view and scrutiny.244 In this context, the principles of public access to information discussed above and transparency in decision-making are inextricably linked. The international and eu obligations in this regard are very clear under the Fish Stocks Agreement, which requires transparency in decision-making and 240 Commission Staff Working Document: “First steps in the implementation of the Marine Strategy Framework Directive—Assessment in accordance with Article 12 of Directive 2008/56/EC.” Also com(2014) 97, Brussels, 20 February 2014, 5. 241 http://www.emodnet.eu. 242 R. Long, “The Role of Regional Advisory Councils in the European Common Fisheries Policy: Legal Constrains and Future Options,” International Journal of Marine and Coastal Law 25, No. 3 (2010): 289–346. 243 Article 19, 22, 24, 26, 31, Regulation (eu) No 1380/2013. 244 On the wider environmental issues and public perceptions, see Camille Adelle, Sirini Withana, eu and us Public Perceptions of Environmental, Climate Change and Energy I­ ssues (Brussels, Institute for Environmental Policy, 2008).

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provides for access by representatives of non-governmental organizations to the records of regional fisheries management organizations.245 The requirements in eu law go much further in so far as the preamble to the Basic Fishery Management Regulation provides that access to a fishery should be based on transparent and objective criteria including those of an environmental, social and economic nature.246 Similarly, as mentioned previously, it also significant that the regulation requires transparency in relation to the determination of the surplus of the resources under the terms of sustainable fishery partnership agreements concluded by the eu with third countries.247 ­Furthermore, the regulations on the functioning of the Advisory Councils aimed at enhancing stakeholder consultation under the cfp provide that they must “adopt the measures necessary to ensure transparency and the respect of all opinions expressed” at their meetings.248 On the other hand, it should also be noted that the eea have pointed out that the Advisory Councils are weak and, as noted by your author, they lack an effective legal mandate that goes beyond consultation and that facilitates active participation in eu lawmaking.249 ­Perhaps the greatest weakness that detracts from accountability and transparency is that the Council of Fisheries Ministers has the sole power under the eu treaties to determine the quantitative limits on the fixing and allocation of fishing opportunities under the cfp.250 This effectively excludes the European Parliament, the democratically elected body that represents public interests within the eu institutions, from the most important aspect of decision-making in eu fisheries management. Thus removing a vital layer of oversight that the policy desperately needs on an annual basis. This in turn has had an adverse impact on decisions concerning the long-term sustainability of the resource.

Responsibility of States to Control the Actions of Their Nationals and Consequences for Breach of International Legal Obligations The final principle concerns the assertion of State responsibility in relation to the activities of their nationals, which is an obligation that is ­increasingly 245 246 247 248 249

Article 12, United Nations Fish Stocks Agreement, op. cit., note 101. Recital 33, Regulation (eu) No 1380/2013. Recital 51, Regulation (eu) No 1380/2013. Para 2(e), Annex iii, Regulation (eu) No 1380/2013. “State of Europe’s Seas,” eea Report No 2/2015, June 2015. Also see, R. Long, “Stakeholder Participation in the European Common Fisheries Policy: Shifting the Legal Paradigm ­towards Rights and Responsibilities,” Espósito et al., eds., Ocean Law and Policy, 13–67. 250 Article 43(3), tfeu.

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reflected in regional and international agreements pertaining to fisheries and marine environmental protection.251 In the itlos Advisory Opinion in the Sub-Regional Fisheries Commission case, the Tribunal advised that in the ­situation when the international organization has exclusive competence over fisheries, “only the international organization may be held liable for any breach of its obligations arising from the fisheries access agreement, and not its Member States.”252 Accordingly, the eu has obligations to ensure that the terms and conditions of international agreements are upheld. In this regard, the rules underpinning the cfp are mainly in the form of regulations, which are of general application and directly applicable in all eu Member States.253 They thus can apply to States as well as to public, corporate and private parties in the M ­ ember States. In practice, although primary responsibility rests with the flag State in relation to many conservation and management obligations,254 the regulatory regime giving effect to the policy applies to a broad swathe of economic operators, vessels and the nationals of the Member States.255 A case in point is that the Court of Justice of the European Union has ruled that ­authorisation is ­required from the European Commission for European flagged vessels to fish in third country waters.256 As seen above, the extensive personal scope of eu law extends to the activities of nationals of eu Member States engaged in iuu fishing on board vessels flagged in a third country, or on board stateless vessels.257

Conclusions

The proceedings of the losi annual conference have charted many of the ­ itfalls and infrequent accomplishments that have characterized the formulap tion and implementation of world and eu fisheries law over five decades. The modern principles of ocean governance provide guidance on the ­underlying 251 Freestone, “Modern Principles,” 47. 252 itlos Case 21, Advisory Opinion, Sub-Regional Fisheries Commission, 2 April 2015, reply to question 3, at 63. Case C-73/14, Council v Commission, Judgment of Court (Grand ­Chamber), 6 October 2015. 253 Article 288, tfeu. 254 Article 3(g), Regulation (eu) No 1380/2013. 255 Article 1(d), Regulation (eu) No 1380/2013. 256 Case C-565/13, Ahlström and Others, 9 October 2014. 257 Council Regulation No 1005/2008, oj L 286, 29.10.2008, as amended by Commission Regulations 1010/2009, 86/2010, 202/2011. See also, Churchill and Owen, ec Common Fisheries Policy, 65–71.

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rational, as well as the approach that ought to be adopted, in applying legal rules for the purpose of successful resource management. According to the brief and relatively cursory assessment undertaken in this chapter, as shown in Table 10.1 below, the eu appears to have demonstrated a degree of ­commitment in implementing all of the principles with some notable success in relation to three, namely: conditional freedom of activity; international cooperation, and a commitment to enhance the control of fishing activities of nationals by the Member States. Much remains to be done in relation to the remaining principles. Furthermore, despite the various legislative and policy interventions that have been made by the eu institutions over the past three decades under the rubric of the cfp and the Marine Strategy Framework Directive most specifically, it is pertinent to recall that the European Commission has expressed the view that the European approach to marine environmental protection is “insufficient, inefficient, piecemeal and unnecessarily costly.”258 The greatest cause for concern is that the eu is still very far from ensuring that its laws and policies safeguard healthy oceans and seas.259 In order to address this failure, Table 10.1 Applying legal principles for the purpose of successful resource management

Principles of modern ocean governance

Triumph

Conditional freedom of activity Protection and preservation of the marine environment Conservation of living marine resources and biodiversity Sustainable and equitable use International cooperation Precautionary Approach Ecosystem Approach Use of best available science Transparency Responsibility of states to control the actions of their nationals and consequences for breach of international legal obligations

X

258 com(2014) 97, Brussels, 20.2.2014, at 8. 259 com(2014) 97, Brussels, 20.2.2014, at 10.

Failure X X

X

X

X X X X X

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the Commission has called for “renewed efforts” and fundamental changes in the way the Member States, the European institutions, the regional seas bodies and the rfmos, work together in order to achieve good environmental status by 2020.260 With an eye to the future, the management task ahead can be reduced down to one over-riding question: can the eu successfully regulate human ­exploitation of offshore resources within the ecological limits set by the natural ­environment? In order to do so, the implementation of the principles on good ocean governance highlighted in this chapter need to be placed firmly at the epicentre of eu law and policy with a strong and unwavering focus on the sustainable use of the oceans’ natural capital in line with Target 14 of the World’s Sustainability Goals. In conclusion, what matters now, is how well the eu, Member States, as well as public and private entities comply with the ­implementation of the underlying law in practice. 260 Ibid.

Part 4 Debates on a Regime for Biodiversity in the Area beyond National Jurisdiction (abnj)

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chapter 11

Freedom of the High Seas or Protection of the Marine Environment? A False Dichotomy Nilufer Oral 1 Introduction After a decade of meetings and debates, the General Assembly of the United Nations, on 15 June 2015, decided “…to develop an international legally binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” under the 1982 United Nations Convention for the Law of the Sea [unclos].1 Such an international legally binding instrument, if adopted, would be the third implementing agreement to unclos, following the Implementing Agreement to Part xi2 and the 1995 United Nations Fish Stocks Agreement.3 This decision fulfilled a commitment made by governments at the Rio+20 Summit in June 2012 to “address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under unclos.”4 The legally binding instrument, if successfully adopted and ­implemented, will fill an important legal gap for the conservation of marine biological ­diversity in areas beyond national jurisdiction.5 A central legal issue is the * Faculty of Law at Istanbul Bilgi University and Member, International Law Commission of the United Nations. 1 Doc. resolution A/69/242 [2015], Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Here­ after, abnj will refer to areas beyond national jurisdiction. 2 Agreement Relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted 28 July 1994, un Doc. A/RES.48/263 / [1994]. 3 Adopted 4 December 1995, 2167 unts 3 / [2001]. 4 un res. A/66/288—The Future We Want Outcome Document (adopted 27 July 2012), para. 162. Available on-line at http://www.un.org/ga/search/view_doc.asp?symbol=A /RES/66/288&Lang=E. 5 Kristina M. Gjerde, Chapter 12 in this volume.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_013

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question of the legal rights and obligations of states in the high seas, where for centuries the rule of freedom of the high seas, including free access to marine resources, prevailed. Nonetheless, over time, as human capacity to exploit natural resources in the oceans increased so did the need to address the problems and adverse consequences of overexploitation of marine resources in the high seas, as well as other human activities adversely impacting the health of the oceans. In particular, the goal of achieving more effective conservation of the high seas was highlighted in the General Assembly resolution, which stressed “…the need for the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.” For decades, scientists alarmed over the lack of protection of the oceans and its marine living resources had raised concerns for the need to protect these large areas of ocean space that lay beyond the regulatory reach of the coastal States under international law and thus were under the regime of freedom of the high seas. The scientists specifically called for the creation of marine protected areas in the high seas.6 However, gaps in the international institutional and legal framework, in particular in unclos, were the weak links in the regulatory system.7 The principal competence to regulate activities in the high seas fell to the exclusive jurisdiction of the flag State, and in many cases this meant minimal regulatory control in areas beyond coastal State regulatory and enforcement jurisdiction. Further, although unclos was a remarkable achievement for many reasons, it was negotiated and adopted before the historic 1992 United Nations Conference on the Environment and Development (unced)8 and adoption of the Rio Declaration and Principles9 and Agenda 21.10 For this reason, unclos lacks express reference to many key concepts and principles 6

7

8 9 10

Nilufer Oral, “Protection of Vulnerable Marine Ecosystems in Areas Beyond National J­urisidiction: Can International Law Meet the Challenge?” in Anastasia Strati, Maria ­Gavouneli and Nikolaos Skourtos, eds., Unresolved Issues and New Challenges to the Law of the Sea (Leiden: Martinus Nijhoff Publishers, 2006), 85–108, 86–87. Kristina Gjerde, “Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National ­Jurisdiction” (Gland: iucn Marine Series No. 1, 2008). Available on-line at https://­cmsdata .iucn.org/downloads/iucn_marine_paper_1_2.pdf. unced was held in Rio de Janeiro 2–14 June 1992; United Nations Conference on Environment and Development, Report, Doc. A/CONF.151.26/Rev. 1, Vol. 1, 1993. un Doc. A/CONF.151/26 (vol. i); 31 International Legal Materials (1992): 874. Agenda 21 un Doc. A/CONF.156/26, Ibid. See Edward L. Miles, “Approaches of unclos iii & Agenda 21—A Synthesis,” in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman, eds., Sustainable Development and Preservation of the Oceans: The

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emerging from unced, in particular biological diversity,11 protected areas, the polluter pays principle,12 the precautionary approach,13 and integrated coastal and marine management.14 In this regard unclos did not appear to provide the necessary tools and mechanisms to develop an effective system of area-based management (e.g. marine protected areas) in areas beyond national jurisdiction (abnj), which was a priority for those advocating protection of marine resources of the high seas. There had been discussions whether the 1992 Convention on Biological Diversity (cbd),15 which specifically calls for and provides the framework for the establishment of protected areas as a measure to protect biological diversity, would provide the appropriate legal vehicle. Ultimately, however, it was agreed that despite its gaps unclos was the proper instrument for the oceans. One important gap in unclos is its lack of specific provisions for marine protected areas.16 This raised the question of the need for a more detailed implementing instrument that would address such key issues as: the definition and criteria for identification of marine protected areas (mpas) in the high seas; the process for selection of specific areas that met those criteria and would be given mpa status; requirements for environmental impact assessments and cumulative impact assessments; the role of existing international and regional institutions and organizations; the role of coastal States; monitoring and enforcement; and developing/identifying a management body (vested with powers of advising, reviewing, approving/rejecting activities).17 Other gaps in the legal regime for the high seas that were identified included the lack of clarity for a bio-prospecting regime applicable to marine genetic Challenges of unclos and Agenda 21—Proceedings of the Law of the Sea Institute TwentyNinth Annual Conference (Honolulu: Law of the Sea Institute, 1997), 16–42. 11 The Convention on Biological Diversity was adopted at unced. Convention on Biodiversity, 5 June 1992, 31 International Legal Materials (1992): 841. 12 Principle 16 of the Rio Declaration. 13 Principle 15 of the Rio Declaration. 14 Para. 17.5, Chapter 17 on Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas and coastal areas and the protection rational use and development of their living resources. Agenda 21 un Doc. A/CONF.156/26, supra, note 10. 15 Ibid. 16 Article 211(6) of unclos does provide for the establishment of areas in the eez of a coastal State for the implementation of special mandatory measures if existing international rules and standards are inadequate to address special circumstances in the area against vessel-sources of pollution. 17 Workshop on High Seas Governance for the 21st Century (Gland: iucn, 2007), available at https://cmsdata.iucn.org/downloads/iucn_workshop_co_chairs_summary_new_iucn _format.pdf.

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resources in abnj; the lack of clarity on the interaction between the regime of the high seas and the regime of the outer continental shelf; the lack of regulations for marine scientific research in the high seas under unclos that would also include bio-prospecting; the legal relationship to military activities and to the laying of cables and pipelines; the lack of a regulatory regime for emerging and new activities, including CO2 sequestration, floating installations, and deep sea tourism18 and the lack of environmental impact assessment provisions and international standards regulating activities in the high seas.19 There are, of course, several challenges in developing a new legally binding instrument. The overriding challenge is to reconcile the long-standing principle of freedom of the high seas with a new regime that allows for the creation of large areal zones that would restrict activities in the high seas. On the one hand, there are questions concerning how the implementing agreement will address the existing international law as codified in unclos respecting the various freedoms, including freedom of navigation and fishing and the exclusive jurisdiction of the flag State on the high seas. On the other hand, unclos, under article 192, clearly imposes an obligation on all states to protect the marine environment, including the high seas. Is there then a conflict between these rights and obligations? Or can they be reconciled under a new implementing agreement to unclos? This chapter will examine the relationship between the obligation to protect the marine environment and the right of flag States to freedom of the high seas under international law, including unclos, with a focus on the evolution of freedom of the high seas in international law and its exceptions. 2

Protection of the Marine Environment

As a framework convention, the 1982 unclos provides the basic legal foundation for rights and obligations relating to the high seas. Additionally, the provisions in Part xii for protection and preservation of the marine environment are especially important. Article 192 establishes an unqualified general obligation for all States to protect the marine environment.20 Article 194, also relevant for the high seas, provides that states are under the obligation to prevent, reduce 18 Ibid. 19 Ibid. 20 Moira L. McConnell and Edgar Gold, “The Modern Law of the Sea: Framework for the Protection and Preservation of the Marine Environment,” Case Western Reserve Journal of International Law 23 (1991): 83.

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and control all sources of pollution; and to ensure that pollution from activities undertaken within their national jurisdiction does not spread beyond, which would include the high seas; and the duty for states to protect and preserve rare or fragile ecosystems and the habitats of depleted, threatened or endangered species or other forms of marine life against pollution. There are also provisions in Part xi for the Area and Part xiii for marine scientific research requiring states to take the necessary measures for protection of the marine environment. Additionally, the compulsory dispute provisions in Part xv apply to activities in the high seas, including protection of marine living resources. However, parallel to the obligation of states to protect and preserve the marine environment, including areas beyond national jurisdiction, are the freedoms of the high seas, as enumerated in article 87 of unclos. 3

Freedom of the High Seas

3.1 Evolution of the Freedoms R.P. Anand describes the history of the law of the sea as being “to a large extent the story of the development of the ‘freedom of the seas’ doctrine and the vicissitudes through which it has passed over the years.”21 While modern international law traces the origins of the law of the sea and the doctrine of freedom of the seas to Hugo Grotius and his classic 1609 treatise Mare Liberum, Anand points out that the Rhodian maritime code dating back to the 2nd or 3rd Century bc, deemed to be the first such known code, recognized the principle of the freedom of the high seas centuries earlier.22 Later, Roman law adopted the rule of res communis omnium, that the seas were open to navigation to Roman and foreign vessels—a common heritage of all humankind, not subject to the appropriation by or exercise of sovereignty by any State.23 The concept of open seas was formally challenged with the publication of the famous Papal Bull in 1493 and the Treaty of Tordesillas in 1494, by which Spain and Portugal agreed upon division of their respective monopolistic claims in the Atlantic. In the early part of the seventeenth century, the British 21

22 23

R.P. Anand, “Changing Concepts of Freedom of the Seas: A Historical Perspective,” in Jon Van Dyke, Durwood Zaelke and Grant Jewison, eds., Freedom of the Seas in the 21st Century: Ocean Governance and Environmental Harmony (Washington, d.c.: Island Press, 1993), Chap. 6. See also René Jean Dupuy and Daniel Vignes, eds., A Handbook on the New Law of the Sea (Dordrecht: Martinus Nijhoff, 1991): Chap. 7, 386–388. Anand, “Changing Concepts of Freedom of the Seas: A Historical Perspective,” 73. Ibid., 72.

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asserted exclusive claims over fishing in their surrounding offshore seas, thus targeting the Dutch. King Francis i of France was the first to challenge this territorial claim over the oceans on the principle of freedom of the seas. Queen Elizabeth i of England was to later protest, asserting that “[t]he use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man.”24 The most well-known challenge, however, came from the Dutch, who retaliated with the now famous Dutch classic treatise Mare Liberum (1609), penned by Hugo Grotius, which laid out the legal arguments in defense of the freedom of the high seas. Grotius contended that no state could appropriate ownership through the exercise of sovereignty over the high seas and that all states should be able to use the high seas freely for trade and commerce. This now classic legal work is seen as the foundation of modern international law and the principle of freedom of the seas.25 According to Dupuy and Vignes, while the doctrine of the freedom of the high seas may have begun as “of essentially a prohibitive nature,” including various prohibitions against circumventing free access, such as prohibiting passage tolls, it eventually developed into a positive doctrine of establishing entitlements of states to “equal rights” of navigation and uses of the seas—liberté des mers, égalité des droits pour toutes les nations.26 The essence of freedom of the high seas was to prevent the dominium or “exercise of sovereignty” of any one state or group of states to the exclusion of others over the high seas and its resources. The different freedoms of the high seas and their respective exceptions have evolved over the years. Specifically, during the nineteenth century the two principal freedoms were those of navigation and fishing.27 The first modern codification efforts for the law of the sea began with the 1930 Hague Conference for the Codification of International Law. Although an agreement on the breadth of the territorial sea could not be reached, the work of the Conference provided a foundation for future codification efforts, which were taken up by the International Law Commission (ilc) under the auspices of the United ­Nations beginning in 1947. One of the first items on the ilc agenda was the codification of the regime of the high seas and territorial sea. J.P.A. François 24

25 26 27

“Freedom of the Seas—Origins of the Concept of the Freedom of the High Seas,” Encyclopedia of the New American Nation, available at http://www.americanforeignre lations.com/E-N/Freedom-of-the-Seas-Origins-of-the-concept-of-freedom-of-the-seas .html#ixzz4Visrb9dx. Dupuy and Vignes, A Handbook on the New Law of the Sea, 386–387. Ibid., 384–385. Ibid., 390.

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was appointed as the Special Rapporteur.28 The work of the ilc laid the foundation for the four 1958 Geneva Conventions29 that included the Convention on the High Seas (High Seas Convention) and the Convention on the Territorial Sea and Contiguous Zone. The regime of the high seas has evolved over the years, as is reflected in the progressive expansion of activities protected under the freedom of the high seas regime. In addition to the classic freedoms of navigation and fishing in the high seas dating from the period of Grotius, the 1958 High Seas Convention added the freedom to lay submarine cables and pipelines as well as the freedom of overflight, in each case reflecting developments in technology. The evolution of the list of activities coming within the protection of freedom of the high seas continued with the 1982 unclos, which added freedom of scientific research and the freedom to construct artificial islands and installations. These freedoms were not, however, without qualifications. 3.2 The Limits of Freedoms The 1956 ilc Commentaries concerning the Law of the Sea, which eventually became the basis for the 1958 High Seas Convention, stated that the freedom of the high seas had to be regulated in order to safeguard the international community interest in it. Specifically, Article 27 (5) of the Commentaries provided that “[a]ny freedom that is to be exercised in the interests of all entitled to enjoy it, must be regulated. Hence, the law of the high seas contains certain rules, most of them already recognized in positive international law, which are designed, not to limit or restrict the freedom of the high seas, but to safeguard its exercise in the interests of the entire international community.” The ilc Articles proceeded to provide a non-exhaustive list of such rules, which included “[t]he rights of States relative to the conservation of the living resources of the high seas.”  30 The development of the law of the sea also had to respond to innovations in technology. The twentieth century was marked by rapid technological advancements, including those allowing for intensifying exploitation of marine resources and diversified uses of the sea. These technological advances 28 29

30

Tullio Treves, Introductory note, 1958 Geneva Convention on the Law of the Sea (United Nations Audiovisual Library), available at http://legal.un.org/avl/ha/gclos/gclos.html. The 1958 Geneva Conventions on the Territorial Sea and the Contiguous Zone, 29 Apr. 1958, 516 unts 205; Convention on the High Seas, 29 Apr. 1958, 450 unts. 11; Convention on the Continental Shelf, 29 Apr. 1958, 499 unts 311; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 Apr. 1958, 559 unts 285. Article 27(5)(iii) available on-line at http://legal.un.org/ilc/texts/instruments/english /commentaries/8_1_8_2_1956.pdf. Emphasis added in each quotation.

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increased the competition among nations for access to and control of marine resources. In addition, the u.s. promulgation in September 1945 of the Truman Proclamation, asserting control of the natural resources of the subsoil and seabed of the Continental Shelf, represented a dramatic departure from customary law. It extended offshore jurisdiction and control by the United States over oil and gas or other resources potentially hundreds of miles beyond the limits of the territorial sea, until then, for most nations, three to no more than twelve nautical miles.31 This u.s. declaration was issued on the same day as the Truman Fisheries Proclamation, by which the United States announced its intention to create zones far out to unspecified offshore distances in which fishing activities, including by foreign flag fishing vessels, would be made subject to a conservationist regulatory regime.32 The two proclamations triggered a race by other States to assert control over marine space reminiscent of the time of Grotius. For example, Chile, Ecuador and Peru each claimed a 200-nautical mile territorial sea to protect their tuna stocks, whale fisheries and other marine resources, citing the two Truman Proclamations as precedential authority for their actions.33 The conflicting interests of States over the breadth of the territorial seas and fisheries limits—with implications for the high seas—remained unresolved after the Second United Nations Conference on the Law of the Sea held in 1960, following the adoption of the four 1958 Geneva Conventions. The growing competition over marine natural resources in the high seas inspired Malta’s Ambassador to the United Nations, Arvid Pardo, to present his historic speech in 1967 before the United Nations General Assembly in which he invoked the doctrine of the “common heritage of mankind” (chm) over the natural resources in the sea-bed and ocean floor beyond national jurisdiction. This in turn led the General Assembly to establish the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction34 and eventually to the un resolution for convening the Third United Nations Conference on the Law of the Sea (unclos iii).35 While 31

32

33 34 35

Proclamation 2667, 28 September 1945: Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf. The Proclamation made clear that the super adjacent waters were to remain as high seas. Proclamation 2668, 28 September 1945: Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas. The right to free and unimpeded navigation in these waters remained unaffected. See Lawrence Juda, International Law and Ocean Use Management (London and New York: Routledge, 1996), 109–116. Arthur H. Dean, “Freedom of the Seas,” Foreign Affairs 37 (1958–1959): 83, 87. un Doc. Resolution 2340 (xxii), 18 December 1967. un Doc. Resolution 2340 (xxv), 17 December 1970, the General Assembly decided to convene a third conference on the law of the sea in 1973.

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the breadth of the territorial sea was one of the key matters to be resolved by the unclos iii, the Conference would also have important implications for the high seas and its resources. unclos—often termed the “Constitution for the Oceans”—created a new division of ocean space that significantly reduced the traditional domain of the high seas. This diminution of the high seas included: the expansion of the territorial sea of coastal States from 3 nautical miles (nm) up to 12 nm; the creation of archipelagic waters and sea lanes that transformed high seas into a new category of maritime space; the authorization of an exclusive economic zone (eez) in which coastal States could exercise sovereign rights to explore, exploit, manage and conserve living resources up to 200 nm; and the adoption of the chm doctrine, which modified the principle of high seas freedoms over natural resources in the Area, an area beyond national jurisdiction, by restricting access by States to minerals in the seabed, ocean floor and its sub-soil, subjecting seabed mining to supervision and regulation by a new entity, “The Authority,” and providing for the sharing of revenue.36 With the extension of the territorial sea up to 12 nm under unclos, ships that once enjoyed freedom of navigation and the exclusive jurisdiction of the flag State on the high seas, were now subject to the more limited right of innocent passage and the rules and regulations of the coastal State. This alteration in navigational rights was to some degree moderated with a newly created transit passage right of ships and aircraft in straits used for international navigation under Part iii of unclos. In addition to the extension of the territorial sea, in response to growing jurisdictional claims over fisheries and environmental concerns by certain countries, unclos created the eez, a new maritime area that could be declared up to 200-nm and over which the coastal State could exercise sovereignty rights over natural resources. However, for the most part, high seas navigational rights were maintained in the eez in accordance with article 87 of unclos.37 The greatest expansion and diminution of high freedoms resulted from the new regime of the common heritage of mankind in the Area under Part xi of unclos, which negated the rights of all States to freely access its solid, liquid, gaseous or gaseous mineral resources, including polymetallic nodules. 36 37

See text infra at n. 62. It should be noted that article 220 (6) of unclos allows for the coastal State to institute proceedings against a vessel for violations of international rules and standards for the prevention, reduction and control of vessel-source pollution or national laws and regulations giving effect to such standards and rules if resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any of its resources subject to certain evidentiary requirements.

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Dupuy and Vignes observed that while the 1982 unclos confirmed the trend of diminishing areas of high seas freedoms, which the authors described as its “decomposition,” unclos also provided a balance for the benefit of the international community as well. Parallel to this decomposition, and in order to lessen the effects of the shortcomings of the regime of the high seas … regulations on human activity in this area, which had long been rudimentary and imprecise, were to be drawn up, and the rights progressively offset by obligations. The regime of the high seas, essentially individualistic, was to evolve thus, founded on solidarity between the States, with a more universalist end in view. The new provisions hinge more than ever before on two fundamental concepts: the opening of the high seas to all States, and making them subject to law.38 It is clear, therefore, that the regime of the high seas, as described by Dupuy and Vignes, has not been static, but rather it has evolved and continues to evolve together with obligations offsetting rights. Further, nowhere is the interest of the international community more evident than in the protection and preservation of the living resources of the high seas. The underlying legal question, however, concerns the scope of the regulatory and enforcement jurisdiction in a legal zone that is in principle subject to the exclusive jurisdiction of the flag State, save where provided for otherwise under unclos or other international treaties. 4

High Seas Freedoms under unclos

The high seas, as res communis, is an area where no state may subject any part of it to its sovereignty. This customary rule of international law has been ­codified in article 89 of unclos and article 2 of the Geneva C ­ onvention on the High Seas.39 However, such freedom is not to be misinterpreted as ­condoning a state of lawlessness. As observed by Dupuy and Vignes, “The absence of s­ overeignty on the high seas certainly does not mean that there is no a­ uthority over this area,” and they go on to cite Fauchille: “Free from all territorial s­ overeignty,

38 39

Dupuy and Vignes, A Handbook on the New Law of the Sea, 384. Adopted 29 April 1958, entered into force on 30 September 1962. 450 unts 11.

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the sea cannot be free from all juridical sovereignty.”40 This point is reflected in article 87 of unclos, which stipulates that “[f]reedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law.” (Emphasis added.) Additionally, Article 87(2) mandates that the exercise of the various freedoms of the high seas “shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under the Convention with respect to the activities in the Area.” Article 87(1) provides a nonexhaustive list of freedoms of the high seas that include navigation, overflight, the laying of submarine cables and pipelines and other installations permitted under international law, fishing, and scientific research. 4.1 Freedom of Fishing Before unclos, the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas provided an international regulatory framework for high seas fisheries. And while the High Seas Convention recognized traditional rights of freedom of fishing on the high seas for the nationals of all states, it subjected this freedom to a number of qualifications that included the interests and rights of coastal States under the High Seas Convention,41 and those provisions related to conservation and management.42 The High Seas Convention further provided that all states had the duty to adopt or to co-operate in the adoption of measures applicable to their nationals for the conservation of living resources on the high seas.43 Indeed, the Convention put some teeth into the duty to cooperate by subjecting it to a compulsory and binding dispute settlement process by a special commission established under Article 9 of the Convention for cases involving the failure of States to reach an agreement within twelve months for the purposes of adopting conservation measure, in an area of the high seas to fish the same fish stock(s).44 The freedom to fish in the high seas thus was significantly limited by a general duty to cooperate that essentially required the States to reach an agreement. If no such agreement could be reached any of the states could subject the matter to the compulsory dispute settlement procedure. A similar duty to cooperate and 40

41 42 43 44

Dupuy and Vignes, A Handbook on the New Law of the Sea, 400. Paul Fauchille (1858–1926) was French international law scholar and founder of the Institut des Hautes Etudes Internationales. Article 1(b). (Emphasis added.). E.g., Articles 3 and 4. Article 6. Article 4. Article 11 provided that the decisions of the special commission were binding upon the States concerned. This procedure was never invoked, and so remained effectively dormant until superseded by unclos.

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reach agreement was imposed on states whose nationals fished in an area of the high seas adjacent to the territorial sea of a coastal State upon the request of the latter to enter into an agreement for the adoption of conservation measures.45 Failure to reach an agreement would also lead to the binding compulsory dispute settlement procedure under articles 9 and 11. The 1982 unclos likewise recognized freedom of fishing on the high seas, and like its 1958 predecessor, it placed limits on these freedoms. For example, freedom of fishing on the high seas is subject to the conditions laid down in Part vii, Section 2 on the conservation and management of the living resources of the high seas. Part vii, Section 2 lays out the framework for the conditions for the exercise of the freedom of fishing on the high seas, which includes the duty to cooperate with other states in taking measures for their respective nationals necessary for the conservation of the living resources of the high seas including establishing regional fisheries organizations.46 States whose nationals exploit identical living resources in the high seas, or different living resources in the same area of the high seas, are required to enter into negotiations for the adoption of conservation measures, and as appropriate establish regional or subregional fisheries organizations. A parallel duty exists for the conservation and management of marine mammals in the high seas.47 In other words, the interests of the international community require cooperative relations when exploiting and conserving finite marine living resources. The 1995 Fish Stocks Agreement, which implemented unclos provisions relating to straddling fish stocks and highly migratory fish stocks, including areas of the high seas, has provisions that impose restrictions on the freedom of fishing on the high seas. Notably, Article 18 enumerates a litany of measures the flag State is required to adopt when fishing on the high seas. Furthermore, in an area of the high seas that is under the regulation of a regional fisheries management organization (rfmo), the Fish Stocks Agreement allows qualified inspectors who are not from the flag State to board a vessel that is not in compliance with the conservation and management rules of the regional fisheries organization, even if not a member of the rfmo, in the high sea area it covers.48 Moreover, the compulsory dispute provisions of Part xv of unclos apply mutis mutandis to the Fish Stocks Agreement.49 45 46 47 48 49

Article 6. Articles 117 and 118. Article 120. Article 21. Article 30. On rfmos, see Rosemary Refuse, “Regional Fisheries Management Organisations,” in Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott, and Tim Stephens,

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4.2 Freedom of Navigation Even the freedom of navigation on the high seas, perhaps the most sacrosanct of high seas freedoms, is not absolute. The exclusive competence of the flag State in the high seas is codified in Article 6 of the 1958 Geneva Convention on the High Seas and Article 92 of unclos. Both instruments recognized that this exclusive competence could be restricted in exceptional cases expressly provided for in international treaties or under the Convention. Guilfoyle observes that “[t]he phrase ‘exclusive jurisdiction’ may be misleading.” He points to practice where states regulate the conduct of their nationals even onboard foreign flagged vessels such as provided for in Article 117 of unclos, which imposes an obligation on “All States … to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.” (Emphasis added.) This would apply to those nationals that are not necessarily nationals of the flag State. Indeed, as Guilfoyle notes, the key aspect of the exclusive flag State concept lies in the limitations on enforcement by foreign government vessels while on the high seas. He concludes that the “high seas are a commons into which all States can, theoretically, project their authority to varying extents. There may thus be concurrent prescriptive jurisdiction over activities in the high seas.”50 unclos provides a number of exceptions to the rule of the exclusive ­jurisdiction of the flag State. As observed by Dupuy and Vignes, “policing rules” were long ago placed on high seas freedoms to “prevent the high seas from becoming a place of refuge for the commission of unlawful acts.”51 Under ­u nclos, a warship has a right of visit of a foreign flagged ship it encounters on the high seas upon reasonable grounds that such ship is without nationality, is engaged in the slave trade, piracy, or unauthorized broadcasting, or is refusing to show its flag or flying a foreign flag when having the same nationality as the warship.52 With the exception of unauthorized broadcasting from the high seas, these exceptions were also recognized under the 1958 High Seas Convention.

50 51

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eds., The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015), 439–462. Douglas Guilfoyle, “The High Seas,” in ibid., 203–225, 209. Slave Trade and Importation into Africa of Firearms, Ammunition, and Spirituous Liquors (General Act of Brussels), adopted July 2, 1890 (Brussels). Available on-line at https:// www.loc.gov/law/help/us-treaties/bevans/m-ust000001-0134.pdf (unofficial). Article 110. In general, see Efthymios Papastavridis, The Interception of Vessels on the High Seas, Contemporary Challenges to the Legal Order of the Oceans (Oxford: Hart, 2013); Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge ­University Press, 2009).

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The “transport of slaves” exception is rooted in numerous treaties in the nineteenth century banning the transport of slaves, in particular the Brussels Anti-Slavery Act of 1890, which established the requirement that every State take effective measures to prevent the transport of slaves in ships authorized to fly its flag.53 Article 99 of unclos prohibits the transport of slaves, requiring each State Party to take “effective measures to prevent and punish” such acts. Article 110 of unclos provides the legal grounds for only warships to board ships suspected of transporting slaves; and Article 100 imposes an obligation on all states to cooperate to repress piracy. Examples of such cooperation can be found in the Convention for the Suppression of Unlawful Acts and its 2005 Protocol,54 adopted under the auspices of the International Maritime Organization (imo). unclos grants warships the right of visit on ships suspected of engaging in acts of piracy. Notably, this is the only exception to exclusive flagship jurisdiction that has roots in common law practice and not in a written agreement.55 Another exception to the exclusive jurisdiction of the flag State is for the suppression of unauthorized broadcasting (often termed “­pirate” broadcasting) from the high seas under Article 109 of unclos. This exception is not found in the 1958 hsc. Broadcasting activities from ­vessels or fixed platforms in the high seas, which enabled the broadcasters to avoid national regulations, did not emerge until the late 1950s and were growing in numbers by the mid1960s.56 In 1959 the International Telecommunications Union (itu) adopted a rule prohibiting radio broadcasting from outside ­national jurisdiction;57 ­however, as the itu lacked enforcement powers, the prohibition against unauthorized broadcasting from the high seas fell upon the individual States, and eventually it was codified in unclos.58 Article 109(4) expressly permits the

53 Article xxv of the Act. 54 The Convention for the Suppression of Unlawful Acts against the Safety of Maritime ­Navigation, adopted 10 March 1988, entered into force 1 March 1992; Protocol for the ­Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, adopted 4 October 2005, entered into force 28 July 2010, 1678 unts 201. 55 Dupuy and Vignes, A Handbook on the New Law of the Sea, 417. 56 Horace B. Robertson Jr., “The Suppression of Pirate Radio Broadcasting: A Test Case of the International System for the Control of Activities Outside National Territory,” Law and Contemporary Problems 45 (Winter 1982) 71–101, available at http://scholarship.law.duke .edu/cgi/viewcontent.cgi?article=3647&context=lcp. 57 Ibid., 74. 58 Unlike provisions on piracy and slavery, Article 109 provides details on the competent jurisdiction for prosecution of unauthorized broadcasting from the high seas, specifically, the courts of the flag State of the ship, State of registry of the installation, state of which

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a­ rrest of any person or ship and broadcasting equipment in addition to the right of visit granted under Article 110. unclos provisions on the illicit trafficking in narcotic drugs or psychotropic substances on the high seas under Article 108, by contrast, do not provide an e­ xception to the exclusive jurisdiction of the flag State and such trafficking is not an exception enumerated in Article 110. A careful reading of Article  108  ­reveals an implicit conditionality of the consent of the flag State. ­Article 108 specifically requires States to cooperate in the suppression of ­illicit traffic in illegal narcotics and psychotropic substances engaged in by ships on the high seas contrary to international conventions. (Emphasis added.) The principal applicable convention today is the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.59 ­Article 17(3) of the Convention explicitly requires Parties to obtain the consent of the flag State of a ship suspected of illicit trafficking in the high seas: A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and f­lying the flag or displaying marks of registry of another Party is engaged in ­illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take ­appropriate measures in regard to that vessel. 5

Protection and Preservation of the Marine Environment beyond National Jurisdiction: An Exception to the Exclusive Jurisdiction of the Flag State on the High Seas

5.1 Obligation Erga Omnes The high seas constitute one of the four global commons, meaning it is an area that lies beyond the legal reach of any state to assert sovereignty rights and is not capable of appropriation.60 But what does this mean in practice? If no state has sovereign rights over the high seas, then who is responsible for the high seas? What are the rights and obligations that attach to the protection

59

60

the person is a national, State which can receive the transmissions or any State where authorized radio communication suffers interference. Entered into effect 11 Nov. 1990. 1282 unts 165, Current status 189 Parties. Previous conventions include the Convention of 1936 for the Suppression of the Illicit Traffic in Dangerous Drugs, entered into effect 26 Oct. 1939, 198 lnts 300, as amended 11 Dec. 1946. The global commons are: Outer space, High seas, Antarctica, and the Atmosphere.

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of the high seas and its resources?61 In the case of the “Area,”62 which formed part of the high seas before the adoption of Part xi of unclos, this question was answered with the establishment of the regime of the common heritage of mankind applicable to the mineral resources of the Area. All rights to the ­resources in the Area, which are defined as “all solid, liquid or gaseous mineral resources in situ … at or beneath the seabed, including polymetallic nodules,”63 are vested in mankind, and only the Authority (International Seabed Authority) is authorized to act on behalf of mankind.64 Thus, unclos subjected a large part of the global commons in the high seas to the regime of the chm and thereby created another significant exception to the freedom of the high seas. Although the water column of the high seas and its living resources are not formally under the chm regime, the high seas are more generally protected under unclos and international customary law. As part of the global commons, an area where the international community shares a common interest, the high seas environment is protected by two complementary obligations: the obligation to do no harm and the obligation to protect the marine environment. The former is rooted in the well-known customary international law rule sic utere tuo ut alienum non laedas (duty to not use one’s property in a manner to cause harm to that of another), identified in the famous 1941 Trail Smelter arbitral award between the United States and Canada,65 and later in the seminal Corfu Channel Case brought by the United Kingdom against Albania.66 The no harm principle was subsequently adopted in both the 1972 Stockholm

61

62 63 64 65 66

See Hanqin Xue, James Crawford, and John Bell, Transboundary Damage in International Law (Cambridge: Cambridge Univerity Press, 2003), 189–266. The authors discuss in detail the legal regimes for the different global commons, including State liability for environmental damage to the global commons under international law. The “Area” is defined as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction, excluding the superjacent waters and marine living resources. Article 133. Emphasis added. Article 137. Trail Smelter Arbitration (United States of America/Canada), Final Award, 11 March 1941, Reports of International Arbitral Awards, Vol. ııı, 65. Corfu Channel (uk v Albania), Merits, Judgment of 9 April 1949, ı.c.j. Reports 1949, 22. Albania was held responsible under international law for failing to warn the United Kingdom of mines in the Corfu Channel resulting in damage to British warships and loss of life. The icj declared that every State has the obligation “…not to allow knowingly its territory to be used for activities contrary to the rights of other States.”

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­ eclaration (Principle 21)67 and the 1992 Rio Declaration (Principle 2),68 and D also in Article 3 of the Convention on Biological Diversity.69 Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration extend this principle to areas beyond national jurisdiction. unclos has several provisions articulating the no harm principle. Article 194 establishes the general duty of States to take all measures, consistent with the Convention, to prevent, reduce and control pollution of the marine ­environment from any source. There is no geographic limit to the scope of pollution-prevention obligation of States; thus it implicitly extends to the high seas. This is further clarified by Article 194 (2), which obligates States to take all necessary measures to ensure that activities under their jurisdiction do not cause pollution damage to other States and their environment. In this case, there is a territorial limit that implicitly excludes the high seas. In contrast, ­Article 195, which contains no territorial restrictions, prohibits States, when taking measures to prevent, reduce and control pollution, from transferring, directly or indirectly, damage or hazards from measures taken to reduce, prevent and control pollution from one area to another (or one type of pollution to another). The lack of any territorial restriction in Article 195 thus implicitly ­applies to the high seas—as “another area.” To be sure, Article 195 is limited to the specific act of taking measures and is not protective in the more general sense. Nonetheless, actions taken by States within their territory cannot create harm to other areas, including the high seas. This would imply the ­application of the doctrine of obligation erga onmes, as will be discussed below. It should be further noted that the International Court of Justice has affirmed the ­customary international rule status of the no harm principle, including its ­application to areas beyond national jurisdiction.70 67

Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), un Doc. A/CONF/48/14/REV1. 68 Declaration of the un Conference on Environment and Development (Rio Declaration), un Doc. A/CONF.151/26/Rev.1. 69 Article 3 of the Convention on Biological Diversity. 70 The icj in its advisory opinion on the threat or use of nuclear weapons stated that “[t]he existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.” ­Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, i.c.j. Reports 1996, para.29. Similar pronouncements were made by the icj in the Case concerning the Gabcikovo-­ Nagymaros Project (Hungary v. Slovakia), Judgment, i.c.j. Reports 1997, para.53, and most recently in the Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, 2010 i.c.j. Reports 1, para. 101.

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unclos articulates a broad and generalized obligation for states to protect and preserve the marine environment under Article 192, which is also recognized as a rule of customary international law.71 The obligation extends to all areas of the marine environment, including the high seas, part of the global commons. There are two aspects to this obligation: the individual and collective obligation of states to take measures to protect and preserve the marine environment, and the right to hold states responsible for failure to meet this obligation. Article 192 creates two types of obligations: obligations erga omnes partes, obligations owed to all Parties of a treaty which can be invoked by a non-injured party; and obligation erga omnes, an obligation owed not only to other contracting States but to all States.72 It is the latter that will be discussed in relation to the high seas. Mention should also be made of the closely related doctrine of actio popularis, rooted in Roman law, which recognized the citizen’s right to bring a case in the name of the public interest.73 However, action popularis can be best ­described as a procedural rule of standing, the status of which under international law remains unclear, and obligation erga omnes a substantive rule which has been recognized especially in human rights law, and increasingly for ­protection of the environment.74 The communal nature of the high seas, including the collective interest of the international community, renders the obligation to protect the marine ­environment of the high seas as a collective obligation owed by all states to the international community, i.e., to all states. It is an obligation characterized 71 Available (with commentaries) at http://legal.un.org/ilc/texts/instruments/english /­commentaries/9_6_2001.pdf. 72 Barcelona Traction, Light and Power Company Limited Case (Belgium v Spain), 1970 i.c.j. Reports 1970. See also Nuclear Tests (New Zealand v. France), Judgment, i.c.j. Reports 1974, p. 457 at paras 51–53. Obligations erga omnes has been recognized in other cases for the principle of self-determination in the Case Concerning East Timor (Portugal v. Australia) i.c.j. Reports 1995, p. 90, in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, i.c.j. Reports, 2003, paras. 88, 155, 156; and in the prohibition on the use of torture in the International Criminal Tribunal for Yugoslavia in the Furundzija Case. Prosecutor v. Anto Furundzija, Decision of December 1998, para. 151. 73 For discussion on the doctrine of actio popularis application to environmental law, see Philippe Sands, Principles of International Environmental Law, Second ed. (Cambridge: Cambridge University Press, 2003), 188–191. Sands expresses the view that the doctrine of actio popularis could be applied to significant damage, such as massive pollution, to the environment, and in particular to the global commons. 74 Ibid., 187–191.

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by its universal and non-reciprocal nature.75 The 2001 Articles on State Responsibility for International Wrongful Acts,76 generally agreed to reflect customary international law, provides that a state other than the injured state is entitled to invoke the responsibility of another state if: (a) The obligation breached is owed to a group of states including that state, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole. The Articles on State Responsibility did not explicitly employ the term obligation erga omnes but made reference to it in its commentaries.77 The doctrine of an obligation erga omnes means that a state need not show ­actual direct harm in order to hold another State responsible for a breach of an ­international obligation.78 This is a critical point for the high seas, where the general rule of international law, as codified in article 87 of unclos, gives the flag State exclusive jurisdiction to the exclusion of the coastal State, subject to the exceptions discussed above. The erga omnes obligation to protect the environment is general in its ­character.79 However, it has been applied expressly to the marine environment of the high seas by the Seabed Disputes Chamber of itlos in its ­Advisory Opinion, Responsibilities and obligations of States sponsoring persons and ­entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber) (Case #17).80 In the request for the ­Advisory Opinion, several questions were posed to the Chamber concerning the ­responsibility of states sponsoring persons and entities in conducting ­activities in the deep seabed. One of the questions involved what rights the ­International Seabed Authority (isa) had to make a claim for damage to the 75

Jiefang Huang, “Aviation Safety, ıcao and Obligation Erga Onmes,” Chinese Journal of I­ nternational Law 8 (2009): 63, 72. 76 United Nations, International Law Commission, Report on the work of its fifty-third ­session (23 April-1 June and 2 July-10 August 2001), General Assembly, Official Records, Fifty-fifth Session, Supplement No. 10 (A/56/10). 77 Ibid. See Commentary to Article 48. 78 Ibid. 79 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, p. 226 para. 29. 80 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), 1 February 2011, para. 180.

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marine ­environment in the Area. The Seabed Disputes Chamber’s opinion noted the lack of any express provision in the Convention allowing the isa to bring a claim for compensation for damage to the marine environment of the Area. However, the Chamber noted that arguably such entitlement to claim damages was implicit in Article 137 (2) of unclos which stipulated that the “[a]ll rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.” Significantly, however, the Chamber went further: referring to Article 48 of the ilc Articles on State Responsibility it stated that “Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area.”81 The Chamber could have simply limited the scope of the o­ bligation erga omnes to the Area, defined as the seabed and ocean floor and subsoil thereof beyond limits of national jurisdiction,82 excluding the ­superjacent water column—the high seas, the legal status of which is preserved under Article 135—but it did not, recognizing the over-riding interest of the international community to protect the global marine commons in ­areas beyond national jurisdiction. The simple and unqualified language of Article 192 of unclos is an expression of an erga omnes obligation for the high seas. Consequently, States individually and collectively have an obligation to take all the necessary measures for the protection and preservation of the marine ­environment in areas beyond national jurisdiction. The principle of the freedom of the high seas must accordingly be contextualized within this legal framework. Protection of the Marine Environment: An Exception to the Freedom of the High Seas The principle of the freedom of the high seas, widely considered to mark the foundation of modern international law, has evolved, as we have discussed, from an absolute doctrine to one that has been nuanced based on societal needs and technological developments. Beginning with what was and continues to be the scourge of the sea—piracy—the exceptions to the exclusive jurisdiction of the flag State have slowly evolved over time. More recent examples of exceptions to high seas freedoms can be found in the 1995 United Nations

5.2

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82

Ibid. Tim Stephens, “Principle 26, International Environmental Dispute Settlement,” in Jorge E. Viñuales (ed.), Rio Declaration on Environment and Development: A Commentary (Oxford: Oxford University Press, 2015), 599–616. Stephens notes that the Seabed Disputes Chamber was the first judicial body to endorse the ılc Articles. Article 1(1), unclos.

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Fish Stocks Agreement,83 including Article 21, discussed earlier, that allows State Parties that are members of a regional fisheries management organization to have duly authorized inspectors board fishing vessels in the area of the high seas covered by the rfmo to ensure compliance with its conservation and management measures even if the vessel does not belong to a flag State that is a member of the rfmo or a participant, but must be a party to the Fish Stocks Agreement.84 Of course, this is a treaty-based exception but, nonetheless, it represents another step in the evolution of the international law of freedom of the high seas. However, in more loosely phrased language, unclos Article 20 (7) allows State Parties that are members of a subregional or regional fisheries management organization or participants to take action in accordance with international law, including through recourse to subregional or regional procedures ­established for this purpose, to deter vessels which have engaged in activities which undermine the effectiveness of or otherwise violate the conservation and management measures of the rfmo until the flag State takes action. This provision applies to “vessels” in general and is not limited to the vessels of State Parties. This implicitly leaves open the possibility to bring some sort of ­enforcement action against non-State Parties to the Agreement. The erga omnes nature of the language in article 192 of unclos that i­ mposes a general obligation on all states to protect the marine environment without jurisdictional limitations has been complemented by the same general obligation and language in article 235(1) of unclos, which states that “States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment” and “[t]hat they shall be liable in accordance with international law.” In a more limited fashion, Article X of the 1972 London Dumping Convention85 also supports the erga omnes nature of state responsibility in the high seas. It requires the Contracting Parties “in accordance with principles of international law regarding State responsibility for damage to the environment of other States or to any other

83

84 85

1995 United Nations Agreement for the Implementation of the Provisions of the ­ nited Nations Convention on the Law of the Sea of 10 December 1982 Relating to U the ­ Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 4 Dec. 1995, 2167 unts 3, reprinted in International Legal Materials 34 (1995): 1542. Article 21(91). Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other ­Matter (London, November 13, 1972), 1046 unts 120.

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area of the environment … to develop procedures for the assessment of liability and the settlement of disputes regarding dumping.”86 There is no plausible legal or other argument that can be made that would include within the meaning of freedom of the high seas a right to harm the ­marine environment and its living resources, even though it is not listed ­expressly as an exception to the freedom of the high seas under article 87 of unclos. Indeed, quite to the contrary, it is evident that there is an obligation for all States to protect and preserve the marine environment of the high seas, and, further, such obligation is owed to all states, an obligation erga omnes. 6

Conclusion: The Implementing Agreement and Its Implications for Freedom of the High Seas

In sum, this chapter has sought to demonstrate the qualified and evolutionary nature of the freedom of the high seas, taking into account the interests of the international community. Exceptions to the freedom of the high seas have developed in line with international normative principles such as for the ­prevention of piracy, transport of slaves, navigation by rogue vessels sailing without nationalities, and unauthorized broadcasting; and for the conservation of fish stocks and, today, for the conservation and sustainable use of ­marine biodiversity. The proposed legally binding instrument for the conservation and sustainable use of biodiversity beyond national jurisdiction, the elements of which are being negotiated at the United Nations, will create an instrument that will p ­ rotect an important part of the global commons and the common interest of the international community, and thereby fulfill part of the obligation erga omnes to protect and preserve the marine environment. The instrument should not be seen as a curtailment of freedoms of the high seas, but one that balances the individual interests of states with that of the collective interests of the international community as a whole, in order to preserve the finite ­natural resources of the oceans. In truth, the question posed at the beginning of this Chapter, as to whether the freedom of the high seas rights and obligations are in opposition or reconcilable in fact invokes a false dichotomy. As recognized by the ilc in its work on the high seas, “Any freedom that is to be exercised in the interests of all entitled to enjoy it, must be regulated,” expressly including conservation of 86

Article X cited in Xue, Transboundary Damage in International Law, 214. Emphasis added by Xue.

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marine living resources of the high seas.87 The regime of the high seas is not a regime of laissez-faire but a regime that must carefully balance the interests of all States. This is most eloquently stated in the preamble of unclos, which explicitly proclaimed …the desirability of establishing through this Convention, with due r­egard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment. 87

Supra fn. 26 Article 27(5)(iii) available on-line at http://legal.un.org/ilc/texts/instru ments/english/commentaries/8_1_8_2_1956.pdf.

chapter 12

Perspectives on a Developing Regime for Marine Biodiversity Conservation and Sustainable Use beyond National Jurisdiction Kristina M. Gjerde

Introduction

Marine areas beyond national jurisdiction (abnj), the high seas and the international seabed Area1 comprise nearly two-thirds of the global ocean. Marine biodiversity in these areas, including marine species, habitats and ecosystems, are under mounting pressures.2 As confirmed in the First United Nations Global Integrated Marine Assessment (First World Ocean Assessment) released in December 2015,3 the impacts of decades of overfishing, destructive fishing practices, pollution, expanding shipping activities and now seabed mining, ­together with ocean warming, acidification and deoxygenation, threaten to

* Senior High Seas Advisor, iucn Global Marine and Polar Programme, Adjunct Professor, Middlebury Institute of International Studies at Monterey, California. 1 As defined in the un Convention on the Law of the Sea, 1982 (unclos), Article 86, the “high seas” are “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” The “Area,” in unclos Article 1 is defined as “The seabed and ocean floor, and subsoil thereof, beyond the limits of national jurisdiction.” 2 un Co-Chairs of the Working Group of the Whole, “Summary of the First Global Integrated Marine Assessment,” (First World Ocean Assessment), United Nations General Assembly Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socio-economic Aspects (Regular Process), UN/70/112 (2015), available ­online at . 3 un Co-Chairs of the Working Group of the Whole, “Summary of the First World Ocean ­Assessment” at para 32–62. See also Andrew Merrie, Daniel C. Dunn, Marc Metian, Andre M. Boustany, Yoshinobu Takei, Alex Oude Elferink, Yoshitaka Ota, Villy Christensen, Patrick N. Halpin, Henrik Österblom, “An Ocean of Surprises—Trends in Human Use, Unexpected Dynamics and Governance Challenges in Areas Beyond National Jurisdiction,” Global Environmental Change 27 (2014): 19–31.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_014

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further undermine marine biodiversity including essential ecosystem functions, processes and services upon which all nations depend.4 The high seas and international seabed Area belong to no single State; ­instead, under the framework of the 1982 un Convention on the Law of the Sea (unclos)5 they are managed through a suite of activity-specific agreements and global and regional bodies, each with their own mandates and priorities.6 This in turn has resulted in a fragmented governance structure with major gaps undermining the possibilities for cooperation, coherence and effective conservation in abnj. Examples include: (1) absence of an overarching set of governance principles; (2) a fragmented institutional framework; (3) lack of a global framework to establish comprehensively protected marine areas in abnj; (4) lack of global rules of environmental impact assessments and ­strategic ­environmental assessments; (5) limited capacity building and technology transfer; (6) legal uncertainty surrounding the status of marine genetic resources in abnj; and (7) lack of integration of biodiversity considerations into management and decision-making of sectoral organizations.7 4 un Co-Chairs of the Working Group of the Whole, “Summary of the First World Ocean ­Assessment,” paras. 32–62. If the problems are not addressed, the report cautions: “There is a major risk that they will combine to produce a destructive cycle of degradation in which the ocean can no longer provide many of the benefits that humans currently enjoy from it.” Para. 38. 5 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 3. 6 See David Freestone, “The Final Frontier: The Law of the Sea Convention and Areas beyond National Jurisdiction,” in Harry N. Scheiber and Director Moon-Sang Kwon eds., losi Conference Papers, 2012 Securing the Ocean for the Next Generation, Papers from the Law of the Sea Institute, uc Berkeley–Korea Institute of Ocean Science and Technology Conference, held in Seoul, Korea, May 2012; and, inter alia, Kristina M. Gjerde, Harm Dotinga, Sharelle Hart, Erik Jaap Molenaar, Rosemary Rayfuse and Robin Warner, Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, (iucn, Gland, Switzerland, 2008). 7 Gjerde et al., Regulatory and Governance Gaps; for a comprehensive overview of the existing framework for abnj, key gaps, history of the international discussions, government positions and key issues to January 2016, see Glen Wright, Julien Rochette, Elisabeth Druel and Kristina Gjerde, The long and winding road continues: Towards a new agreement on high seas governance, Study N°01/16, (iddri, Paris, France, 2015) 50; See also, Robin Mahon, Lucia ­Fanning, Kristina M. Gjerde, Oran Young, Michael Reid and Selicia Douglas, Transboundary Waters ­Assessment Programme (twap) Assessment of Governance Arrangements for the Ocean, Volume 2: Areas Beyond National Jurisdiction, (unesco-ioc, Paris. ioc Technical ­Series 119, 2015) 91, available online at .

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In June 2015, after nearly a decade of deliberation by a special unga ­Working Group8 on the best way to respond to accelerating threats to marine biodiversity in abnj, the United Nations General Assembly (unga) adopted by consensus Resolution A/RES/69/292 to develop an international legally binding instrument (ilbi) under unclos for the conservation and sustainable use of marine biological diversity in abnj.9 This historic unga resolution presents an important opportunity to build on and implement more fully existing obligations under unclos to protect and preserve the marine environment, conserve its living marine resources, build capacity and transfer marine technology, as well as to foster global and regional cooperation in light of expanding pressures on biodiversity in abnj.10 The new ilbi further provides a vehicle to update the 30+ year- old unclos regime by incorporating and operationalizing modern principles of environmental law, such as precaution, ecosystem-and science-based management, equity, environmental stewardship and good governance; and, no less important, by establishing the institutional infrastructure essential for coherent and coordinated policy-making across sectors and regions.11 Whether the ilbi will achieve the bold ambitions envisaged by its proponents depends in many ­respects on the outcome of a preparatory process now underway at the un. The 2015 unga resolution established a Preparatory Committee (PrepCom) of which the primary focus over the next two years will be to develop 8

9

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Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (bbnj Working Group). Reports of the bbnj Working Group available online at: . unga Resolution, A/RES/69/29 of 19 June 2015. “Development of an international legallybinding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,” available online at . See Kristina Gjerde, “Challenges to Protecting the Marine Environment beyond National Jurisdiction,” International Journal of Marine and Coastal Law (Special theme issue for the 30th anniversary of the Law of the Sea Convention) 27(4) (2012): 839–847. iucn, Suggestions for elements of a draft text of an international legally binding instrument under unclos for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction: A Tool for Negotiators (Bonn, Germany, iucn ­Environmental Law Centre, 2015); Elisabeth Druel and Kristina Gjerde, “Sustaining marine life beyond boundaries: the need for and potential content of an unclos Implementing Agreement for marine biodiversity beyond national jurisdiction,” Marine Policy 49 (2014): 90–97; and, inter alia, Kristina M. Gjerde et al., Options for Addressing Regulatory and Governance Gaps.

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­substantive recommendations on how the ilbi should address four issues: (1) marine genetic resources, including questions on the sharing of benefits, (2)  measures such as area-based management tools including marine protected areas, (3) environmental impact assessments and (4) capacity building and the transfer of marine technology.12 These four issues are to be considered “together and as a whole,” reminiscent of the package deal for negotiating ­u nclos, which means that nothing is agreed until everything is agreed.13 As the author has been involved in these un discussions and debates on behalf of iucn (the International Union for Conservation of Nature) since their commencement in 2001, this paper provides an historical perspective on how the issue of marine conservation in the remote areas beyond the limits of national jurisdiction appeared on the international agenda. Part ii takes the reader back in time to the first expert workshop held on the topic in 2001. Part iii traces how the issue gained prominence through the leadership of key governments at the 2002 World Summit on Sustainable Development followed by the early meetings of the un Informal Consultative Process on Oceans and Law of the Sea (unicpolos or icp) through 2006; Part iv fasts forwards ten years to 2016 to outline the subsequent stages in the process taking place in the PrepCom established by the United Nations, and highlight the key issues and concerns raised at its first meeting held between 28 March and 8 April 2016 at the New York headquarters of the United Nations. The paper concludes with 12

13

unga Resolution, A/RES/69/292 of 19 June 2015. In 2011, within the bbnj Working Group, a “deal” was brokered primarily between the eu and the G77+China that any process going forward to develop a new instrument would include these four elements (as outlined in the main text) and be considered “together and as a whole.” Together these elements are referred to as “the package” and form the basis for the negotiation of a legally-binding instrument under unclos for the conservation and sustainable use of marine biological diversity in abnj. See Kristina M. Gjerde, Lora L. Nordtvedt Reeve, Harriet Harden-­Davies, Jeff Ardron, Ryan Dolan, Carole Durussel, Sylvia Earle, Jorge A. Jimenez, Peggy Kalas, Dan Laffoley, Nilufer Oral, Richard Page, Marta Chantal Ribeiro, Julien Rochette, A ­ urelie ­Spadone, Torsten Thiele, Hannah L. Thomas, Daniel Wagner, Robin Warner, ­`Aulani ­Wilhelm and Glen Wright, “Protecting Earth’s last conservation frontier: scientific, management and legal priorities for mpas beyond national boundaries,” Aquatic Conservation: Marine and Freshwater Ecosystems 26 (Suppl. 2): (2016); doi: 10.1002/aqc.2646. Structuring negotiations around a package of issues derives from the history of the ­u nclos negotiations, during which such a process was used. The decision to adopt a package deal approach for the negotiations of unclos was taken “because different States displayed extremely divergent attitudes to issues under consideration” and “­successful negotiations on all major problems required the adoption of a “package deal” approach as a special technique of tradeoffs between different areas of bargaining.” Wright et al., Long and Winding Road, 28.

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an assessment of the challenges that must be overcome in order to achieve a robust agreement, one that serves the common interests of present and future generations.

Rolling in the Deep: Vilm Workshop 2001

The first international meeting to capture widespread attention regarding ­marine life in areas beyond national jurisdiction was a workshop organized on the remote Baltic Sea island of Vilm, Germany in 2001. Two renowned deep sea scientists, Tony Koslow (then with Australia’s csiro) and Hjalmar Thiel (­University of Hamburg), convened the workshop to explore ways that marine protected areas and other tools could be adapted to protect vulnerable species, habitats and long-term research sites from expanding human uses in the deep and open ocean beyond national boundaries. With support from the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, the workshop gathered thirty-three experts, including eighteen lawyers,14 from thirteen countries.15 Importantly, among the participants was Alan Simcock, then co-chair of the un Informal Consultative Process on Oceans and Law of the Sea (unicpolos), who advised the scientists on how to frame the workshop proceedings to more effectively elicit international attention. The workshop originally focused on high seas marine protected areas (mpas) and then broadened its remit to “managing risks to marine biodiversity in areas beyond national jurisdiction.”16 Together with the support of Alan Simcock and the leadership of Australia and Germany, the topic of “Protecting Vulnerable Marine Ecosystems” was placed on the unicpolos agenda for 2003, which was followed the next year by the more general topic of “New ­Sustainable 14 15

16

The author attended the workshop on behalf of the iucn Commission on Environmental Law. Hjalmar Thiel and J Anthony Koslow, eds., Managing Risks to Biodiversity and the ­Environment on the High Sea, Including Tools such as Marine Protected Areas—Scientific ­Requirements and Legal Aspects, Proceedings of the Expert Workshop held at the International Academy for Nature Conservation, Isle of Vilm Germany, 27 February–4 March 2001, (BfN—Skripten 43, 2001)), available online at . The workshop included government officials from Australia, the United States, the United Kingdom, the Russian Federation and Germany and international institutions such as the International Whaling Convention, the Convention on Biological Diversity and ospar Secretariat. The imo and fao were invited but unable to come. Hjalmar Thiel and J. Anthony Koslow, “Introduction,” in Thiel and Koslow, Managing Risks, 9.

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Uses of the Oceans, including the Conservation and Management of the Biological Diversity of the Seabed in Areas beyond National Jurisdiction.” Why Care about the Deep Sea? The Scientists’ Perspectives Why was this particular workshop on a wintry Baltic island in Germany so ­compelling? The author believes it was because recent scientific and technological advances had combined to enable scientists to reveal the startling ­complexity and fragility of the deep sea. For the first time video and photographic images were shown of vessels dragging heavy metal chains, steel bobbins and several-ton trawl doors across fragile cold water coral reefs and colonies atop seamounts off Australia, in the icy fjords off Norway, and in the depths of the Northeast Atlantic Ocean. The participating international ­lawyers, government representatives and secretariats of key intergovernmental organizations were shown visual evidence of crushed moon-like landscapes left behind,17 learned that seamounts could host endemic species found nowhere else and that ancient coral structures could be thousands of years old. Cold-water ­corals, sponges and other three-dimensional structures were thought to provide important habitat for a wide array of species, including commercially important fish stocks, but there was much left for science to learn.18 The w ­ orkshop thus revealed a significant gap in the high seas legal regime, a gap that allowed a highly destructive activity to emerge unchecked and ignored, despite a wide array of international agreements, institutions, principles and customary law that should have operated to control destructive trawling activities.19 The information provided about the target fish stocks was equally disturbing: though deep sea fisheries had started in the 1960s, it was not until the 1990s that fisheries scientists discovered that seamount-aggregating species, such as orange roughy, could live to be well over 100 years and that they reproduced sporadically only after becoming sexually mature at age 25 or beyond.20 These unexpected life-history traits meant that industrial-scale deep sea fisheries 17

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Kristina M. Gjerde, “Participant’s Report on the Expert Workshop on Managing Risks to Biodiversity and the Environment on the High Seas, including Tools such as Marine Protected Areas: Scientific and Legal Aspects, Isle of Vilm, Germany 27 February–4 March, 2001,” International Journal of Marine and Coastal Law 16(3) (2001): 515–528. Anthony J. Grehan, “Deep-Water Coral Conservation” in Thiel and Koslow, Managing Risks, 67–74. See, inter alia, Unfinished Business: Deep-Sea Fisheries, Special Issue of the International Journal of Marine and Coastal Law 19 (3) (2004): 209–368. J. Anthony Koslow, “Fish Stocks and Benthos of Seamounts,” in Thiel and Koslow, ­Managing Risks, 43–54.

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could be—and were—rapidly depleted in only five to ten years.21 By the late 1990s, scientific experts at ices (the International Council for Exploration of the Seas) and elsewhere had started sounding alarms as to the lack of information about the population biology of deep sea fish stocks and the impacts of fishing activities on seabed; this information was essential if responsible fisheries management was to be achieved.22 By 2000, ices was urging rapid action to curb expansion of commercial fishing into new areas and to institute bans on trawling, accompanied by drastic cuts in fishing effort.23 The deep sea ­ecologists at the Vilm workshop were additionally urging the use of mpas to permanently protect these fragile habitats and their interconnected webs of life. At the Vilm Workshop, scientists also provided grim news about risks to seabirds, whales and other marine species that spend a significant portion of their life cycle in, on or above the high seas. Threats were not just from fishing, however, but also from ship strikes, oil spills and deliberate discharges into the marine environment. Addressing these issues would require a mix of gear ­restrictions, pollution controls and habitat protection.24 Though the science was still in its infancy the experts explained that places requiring priority in protection, such as feeding, breeding and migratory corridors, could be predicted or identified based on currents, upwellings and other oceanographic features.25 A tuna expert proposed large marine reserves closed to tuna fisheries as a useful tool to protect and sustain tuna stocks and their wider pelagic 21

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23 24

25

Ibid., see also Elliott Norse, Sandra Brooke, William W.L. Cheung, C.W Clark., Malcolm R. Clark, I. Ekeland, Rainer Froese, Kristina M. Gjerde, Richard L. Haedrich, S.S. ­Heppell, Telmo Morato, Lance E. Morgan, Daniel Pauly, Rashid Sumaila and, Reg Watson, “­Sustainability of Deep-Sea Fisheries,” Marine Policy 36 (2011): 307–320. John D.M. Gordon, “Deep-water Fish and Fisheries,” in Thiel and Koslow, Managing Risks, 31–38; Cornelius Hammer, “Response by the International Council for the Exploration of the Seas (ices) to the Request for Advice on Deep Water Fisheries Management by the European Community (ec)” in Thiel and Koslow, Managing Risks, 39–42. Hammer, “Response by ices,” 39–42. Charlotte Johnson, “Conservation Status and Needs of High Sea Birds: Consideration from a uk Perspective,” in Thiel and Koslow, Managing Risks, 75–82; Hjalmar Thiel and Eric L. Gilman, “Protection for Birds on the High Seas,” in Thiel and Koslow, Managing Risks, 83–88. See K. David Hyrenbach, Karen A. Forney and Paul K. Dayton, “Marine Protected Areas and Ocean Basin Management,” Aquatic Conservation: Marine and Freshwater Ecosystems 10 (2000): 437–458. For an overview of what modern technologies can do, see Lisa M. ­Wedding, Sara M. Maxwell, David Hyrenbach, Daniel Dunn, Jason J. Roberts, Dana Briscoe, Ellen Hines, and Patrick N. Halpin, “Geospatial approaches to support pelagic conservation planning and adaptive management,” Endangered Species Research 30 (2016): 1–9.

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ecosystems.26 Though tuna generally were considered highly migratory, it was noted that many tuna species actually did not roam very widely and hence were susceptible to local depletion. It was recommended that the ­then-relatively good shape of most tuna stocks could be preserved by closing at least 10 to 20% of their area of distribution, and that these should encompass spawning zones, where tunas tend to be highly vulnerable, and nursery areas, where large numbers of juvenile tunas are often taken. The closed areas could also protect more sensitive species of bycatch species such as billfishes, sharks, sea birds and turtles, even if the precise negative effects were still poorly known, due largely to a lack of observer data and research.27 The scientists at Vilm also contended for the protection of unique scientific reference areas.28 Long-term monitoring sites were increasingly threatened as trawl nets extended deeper and deeper into the ocean, as cables proliferated across ocean basins, oil and gas production penetrated further offshore, and as potential grew for mineral mining or dumping of carbon dioxide and other waste products. Thus scientists were calling for these sites to be put off limits to further activities immediately in order to preserve their unique scientific contributions as reference areas for future generations.29 Seamounts were not the only deep sea ecosystem at risk: scientists also related that hydrothermal vents and seeps—highly unusual chemosynthetic ecosystems only discovered in 1977—were subject to increasing and potentially conflicting activities.30 Some vent sites had already been impacted by the scientists who study and sample them, and faced an even greater threat from future mining for polymetallic sulphide deposits formed by the mineral rich fluids ejected from the Earth’s crust.31 The need to coordinate scientific research in areas of concentrated sampling, observation and instrumentation was clear, as was the need to better manage other potentially conflicting uses such as deep sea tourism and bioprospecting. Successful mpas for hydrothermal vents in national waters already existed but there was no avenue to obtain similar protection in abnj under the existing international law framework. 26 27 28 29 30 31

Alain Fonteneau, “Potential Use of Marine Protected Areas Applied to Tuna Fisheries and Offshore Pelagic Ecosystems,” in Thiel and Koslow, Managing Risks, 55–66. Fonteneau, “Potential Use of mpas,” 62. Hjalmar Thiel, “Unique Science and Reference Areas on the High Seas,” in Thiel and ­Koslow, Managing Risks, 97–102. Thiel, “Unique Science and Reference Areas,” 100. S. Kim Juniper, “Background Paper on Deep Sea Hydrothermal Vents,” in Thiel and Koslow, Managing Risks, 89–95. Ibid., 94.

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In short, the scientists were calling on the global community for help. They were calling for nations to collaborate in an exciting venture to protect special places beyond national boundaries in the interest of all humankind. Just as the first images of the Earth from space in the 1960s gave rise to a new sense of shared vulnerability and responsibility for managing spaceship Earth, scientists were hoping that the new images of the deep sea could inspire a renewed sense of common concern and action for planet Ocean. Professor Bernard ­Oxman, a long-time advisor to the us State Department on law of the sea issues and member of the us Delegation at the Third Law of the Sea Conference, counseled the gathered lawyers that their responsibility was to help their ­client, the scientists, find a way to achieve their aims, consistent of course with international law.32 Minding the Gaps: The Lawyers’ Perspectives It was thus the lawyers’ turn to advise on options for action. They began by surveying the most relevant legal instruments and bodies to address the p ­ roblem of deep sea trawling on seamounts. These included unclos, the overarching framework agreement governing activities in oceans and seas; the un Fish Stocks Agreement on straddling and highly migratory fish stocks33—an implementing agreement to unclos to elaborate and update its provisions on shared fish stocks; and regional fisheries management organizations (rfmos), the regional bodies charged with managing and conserving fish stocks primarily on the high seas. The potential role of biodiversity-related agreements such as the Convention on Biological Diversity (cbd)34 and Convention on Migratory Species (cms)35 were also explored together with global institutions such as the un General Assembly, the un Food and Agriculture Organization (fao), the International Seabed Authority (isa), the International Maritime Organization (imo), the Intergovernmental Oceanographic Commission (ioc) and regional seas organizations.36 32 33

34 35 36

Personal recollection of the author. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (unfsa); entered into force 2001. Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 unts 79 (cbd). Convention on Migratory Species (adopted 23 June 1979, entered into force 1 November 1983) 1459 unts 362 (cms). Robin Warner, “Marine Protected Areas beyond National Jurisdiction—Existing Legal Principles and Future Legal Frameworks,” in Thiel and Koslow, Managing Risks, 149–168. See also: Wright et al., Long and Winding Road; Jeff Ardron, Rosemary Rayfuse, K ­ ristina

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Conclusions drawn at the meeting were that: 1.

2.

3. 4.

5.

unclos contained a clear obligation to protect and preserve the marine environment, including rare or fragile ecosystems, to conserve high seas living marine resources, and to cooperate for these purposes,37 but these obligations were in need of further elaboration and implementation. While the un Fish Stocks Agreement called for rfmos to ensure the long term sustainability of shared fish stocks and to protect biodiversity in the marine environment,38 it did not directly apply to discrete deep sea fish stocks on high seas seamounts as it dealt solely with highly migratory or straddling fish stocks that move between coastal States and the high seas; its principles, however, should apply. In many ocean regions, deep sea bottom fisheries on the high seas were not subject to management as no relevant rfmo existed that could manage non-tuna fish stocks;39 Even where there was a competent rfmo such as the North–East Atlantic Fisheries Commission (neafc), deep sea bottom fisheries had frequently been fished down to critical levels and biodiversity impacts ignored.40 The Jakarta Mandate on Marine and Coastal Biological Diversity, adopted under the cbd, encourages the establishment of mpas as part of an ecosystem approach to conserving marine biodiversity.41 However, the cbd does not apply to components of biological diversity in areas that are outside the limits of national jurisdiction. Nevertheless, it does apply to processes and activities carried out under national jurisdiction and control regardless of where the effects occur. In respect of areas beyond national jurisdiction, the cbd calls on its contracting Parties to cooperate directly or, where appropriate, through competent international organizations.42

Gjerde and Robin Warner, “The Sustainable Use and Conservation of Biodiversity in abnj: What Can Be Achieved using Existing International Agreements?” Marine Policy 49 (2014): 98–108; Gjerde et al., Regulatory and Governance Gaps. 37 unclos articles, 117–119, 192, 194.5, 197. 38 unfsa articles 2 & 5(g). 39 Koslow, “Fish Stocks and Benthos,” 50. 40 Ibid. 41 Marjo Vierros, Sam Johnston and Dan Ogalla, “The Convention on Biological Diversity (cbd) and Marine Protected Areas on the High Seas,” in Thiel and Koslow, Managing Risk, 169–174. 42 cbd Articles 3 & 4; See Vierros, Johnston and Ogalla, “The Convention on Biological ­Diversity”; and Warner, “Marine Protected Areas,” 158.

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Other environmentally oriented agreements and institutions lacked regulatory authority and were more mechanisms for cooperation amongst their members without any real leverage over the management of ­sectoral activities.43

The absence of a legal regime for bioprospecting for marine genetic resources at vents beyond national jurisdiction was also highlighted, and it was noted that the Convention on Biological Diversity only applied to the components of biodiversity within areas of national jurisdiction. Concern about this gap dated back to 1995 when the Parties to the cbd requested a study on the relationship between the cbd and unclos regarding marine genetic resources in areas beyond national jurisdiction.44 In 1998 the Independent World Commission on the Oceans had highlighted the need for an appropriate international regulatory regime to allow for rational and orderly development of activities related to the utilization of genetic resources derived from the deep seabed a­ reas beyond national jurisdiction.45 Questions surrounding the applicable ­legal regime for seabed genetic resources in abnj—whether the unclos ­regime for seabed minerals of “common heritage of mankind” applied or not—and its implications for a benefit sharing regime were thus to become inextricably linked with the topic of biodiversity conservation and sustainable use in abnj. Options explored at the Vilm workshop regarding specific threats to seamounts included working through rfmos to seek a proactive response; a resolution of the un General Assembly calling for a moratorium on destructive deep sea fishing on the model of the High Seas Driftnet Resolution;46 a un General Assembly resolution adopting Guidelines for the designation of mpas; or an initiative to amend or apply an existing international agreement or to establish a new international agreement to cover all problems related 43 44

45

46

Gjerde, “Participant’s Report,” 515–528. Lyle Glowka, “Testing the Waters: Establishing the Legal Basis is to Conserve and Sustainable Use Hydrothermal Vents and their Biological Communities,” in Thiel and Koslow, Managing Risks, 195–204, 203. See also Chapter 15, by Su Jin Park, below. See Independent World Commission on the Oceans, The Ocean Our Future, (Cambridge University Press, u.k., 1998). “The potentials of the genetic resources of the seabed should become the subject of urgent study, focusing on their legal, environmental and economic implications, and negotiation leading to their inclusion within an appropriate international regulatory regime.” Ibid. unga Resolution 46/215 of 20 December 1991 calling upon all members of the international community to, inter alia, “ensure that a global moratorium on all large-scale ­pelagic driftnet fishing is fully implemented on the high seas of the world’s ocean and seas … by 31 December 1992.”

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to ­seamount ecosystems.47 It became clear that simply approaching the same sectoral organizations that had created the problem was unlikely to be successful in the short run. Instead, a global approach would be preferable as it could help create the political will for more targeted regional action. While not all issues were addressed relating to the wider risks to b­ iodiversity in abnj, the Vilm Workshop helped pave the way for future international ­discussions on how to better manage risks to marine biodiversity beyond ­national jurisdiction.48 At the same time it inspired many of the participants to join in the call for an immediate end to the most destructive methods of deep sea bottom fishing on the high seas—bottom trawling.

High Seas and Deep Seas Rising on the International Agenda: 2002–2006

From 2002 to 2006, the need for urgent action to protect seamounts and other vulnerable deep sea ecosystems as well as broader measures to conserve ­marine biodiversity beyond national jurisdiction gained increasing traction internationally. Scientists, supported by Australia and Germany, as well as the iucn, and an increasing number of non-governmental organizations, carried the message of urgency to act to an ever-wider array of international meetings. In 2002, the World Summit on Sustainable Development (wssd) adopted language, proposed by Australia, explicitly mentioning for the first time biodiversity in abnj: The Summit’s report called on the international c­ ommunity to “maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction.”49 This was complemented by an additional call for action at all levels to: Develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, 47

48 49

Thiel and Koslow, “Conclusions and Summary Record of the Expert Workshop on ­ anaging Risks to Biodiversity and the Environment on the High Seas, including Tools M such as Marine Protected Areas” in Thiel and Koslow, Managing Risks, 15–30. Gjerde, “Participant’s Report,” 528. United Nations, “Report of the World Summit on Sustainable Development, Resolution 2, Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002,” (United Nations, New York, 2002), 26, para. 32(a). A/Conf.199/20, available online at .

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the establishment of marine protected areas consistent with international law and based on scientific information, including r­ epresentative ­networks by 2012, time/area closures for the protection of nursery grounds and spawning periods and the integration of marine areas ­management into key sectors.50 The following year, the fourth meeting of unicpolos (2–6 June, 2003) on “Protection of vulnerable marine ecosystems” saw a lively discussion on managing risks to deep sea biodiversity from high seas bottom fishing as well as other vulnerable and threatened marine ecosystems and biodiversity beyond national jurisdiction, and invited the relevant international bodies to consider urgently how to better address these risks.51 As follow-up to the wssd commitment to maintaining biodiversity in abnj and following close on the heels of the fourth meeting of unicpolos, the Government of Australia organized the first major international workshop on the “Governance of High Seas Biodiversity Conservation” in Cairns, Australia from 16–19 June 2003.52 Experts from around the world presented papers on threats as well as legal and institutional gaps and weaknesses, and they discussed ways to accelerate practical action.53 Participants identified an increasingly urgent need for cooperative action to improve conservation and management in 50 51

52

53

Ibid., para. 32(c). Co-Chairpersons of the Consultative Process, “Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, Letter ­dated 9 June 2003” (A/58/95, paras 13–23, 80, 98–104). The recommendations of the 4th icp included a urgent request to: “…(c) Invite the relevant international bodies at all levels, in accordance with their mandate, to consider urgently how to better address, on a scientific and precautionary basis, the threats and risks to vulnerable and threatened marine ecosystems and biodiversity beyond national jurisdiction; how existing treaties and other relevant instruments can be used in this process consistent with international law, in particular with the United Nations Convention on the Law of the Sea (unclos), and consistent with the principles of an integrated ecosystem-based approach to management, including the identification of those marine ecosystem types that warrant priority attention; and to explore a range of potential approaches and tools for their protection and management.” Australian National Oceans Office, Summary Record of Discussion and Suggestions for a Way Forward Workshop on the Governance of High Seas Biodiversity ­Conservation Cairns, Australia June 16–19 2003; available at . Australia National Oceans Office, Meeting Record of the Workshop on the Governance of High Seas Biodiversity Conservation Cairns, Australia June 16–19 2003, available online at: . The author participated to provide an overview of the Vilm workshop discussions for the iucn. Australia National Oceans Office, Summary Record, 2. “While fishing currently has the major impact on the biodiversity of the deep oceans, the workshop acknowledged and discussed a range of other activities that may have potentially damaging impacts, including the laying and operation of submarine cables and pipelines, marine scientific research and bio-prospecting, whaling, military activities, ocean dumping and disposal, the spread of marine debris, introduced marine pests and mineral exploration.” Australian National Oceans Office, Summary Record, 3–4. Australian National Oceans Office, Summary Record, 3. Australian National Oceans Office, Summary Record, 3. The draft report specifically called for implementing agreements for high seas biodiversity and high seas fish stocks.

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a 10 Year Strategy for High Seas mpas,58 adopt a corresponding Recommendation 5.23,59 and establish the iucn wcpa Task Force on High Seas Marine Protected Areas.60 The aim of the wcpa High Seas mpa Task Force was: to facilitate the creation of a global representative system of high seas mpa networks consistent with international law, to ensure its effective management and enforcement, and coordinate and harmonize applicable international agreements, mechanisms and authorities in accordance with modern principles of precautionary, ecosystem-based and integrated management and sound governance as defined in the un principles.61 The 10-Year Strategy inspired action by its key partners on multiple fronts, ranging from the pursuit of immediate protection for vulnerable deep sea ­ecosystems and highly migratory pelagic species to longer-term efforts to ­establish pilot mpas in the North-East Atlantic, the Southern Ocean and later 58

59

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61

iucn, Ten-Year High Seas Marine Protected Area Strategy: A ten-year strategy to promote the development of a global representative system of high seas marine protected area networks (Summary Version), as agreed by Marine Theme Participants at the Vth iucn World Parks Congress, Durban, South Africa (8–17 September 2003) (iucn, Gland, Switzerland, 2003), 20 pages, Available online at: . wpc Recommendation V.23 Protecting Marine Biodiversity and Ecosystem Processes through Marine Protected Areas beyond National Jurisdiction. “Participants in the CrossCutting Theme on Marine Issues at the Vth iucn World Parks Congress in Durban, South Africa” (8–17 September 2003): “strongly recommend the international community as a whole to, inter alia.... 6. COOPERATE to develop and promote a global framework or approach, building on unclos, the cbd, the un Fish Stocks Agreement, cms and other relevant agreements, to facilitate the creation of a global representative system of hsmpa networks, consistent with international law, to ensure their effective management and enforcement, and to coordinate and harmonise applicable international agreements, mechanisms and authorities in accordance with modern principles of precautionary, ecosystem-based and integrated management and sound governance as defined in the un principles.” available at . Originally led by Graeme Kelleher, former Chair of the Great Barrier Reef Marine Park ­Authority, with the author as deputy. Key early members included wwf International, BirdLife International, Conservation International, Tethys Research Institute and the ­Marine Conservation Biology Institute (now the Marine Conservation Institute). See ­Kristina M. Gjerde and Graeme Kelleher, eds., High Seas Marine Protected Areas, special issue of Parks Magazine, (iucn/wcpa, Gland, Switzerland, 2005), 15/3, 1–65, available ­online at . iucn, Ten-Year High Seas Marine Protected Area Strategy, para. vi.

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in the Sargasso Sea.62 A key focus was to build the scientific knowledge base for identifying priority biodiversity hotspots and designing a representative network of mpas in abnj, a topic later taken to the 6th Conference of Parties to the cbd in 2004.63 The 6th Conference of the Parties (cop) of the cbd gave its first Ad-hoc Open-ended Working Group on Protected Areas a mandate to explore options for cooperation for the establishment of mpas in marine areas beyond the limits of national jurisdiction.64 The year 2004 also saw the founding of the Deep Sea Conservation Coalition, an alliance of non-governmental organizations, scientists and iucn, focused exclusively on securing protection for deep sea biodiversity from destructive high seas bottom fishing activities.65 In 2004, the fifth meeting of unicpolos specifically focused on “New Sustainable Uses of the Oceans, including the Conservation and Management of the Biological Diversity of the Seabed in Areas beyond National Jurisdiction.”  66 These discussions generated two important outcomes: First, with respect to 62

63

64

65

66

See Lora L. Nordtvedt Reeve, Anna Rulska-Domino and Kristina. M. Gjerde “The Future of High Seas mpas,” 26 Ocean Yearbook (2012): 265–290, 283. See generally Kristina M. Gjerde and Anna Rulska-Domino, “Marine Protected Areas Beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead,” International Journal of Marine and Coastal Law 27 (2012): 351–273. See Daniel C. Dunn, Jeff Ardron, Nic Bax, Patricio Bernal, Jesse Cleary, Ian Cresswell, Ben Donnelly, Piers Dunstan, Kristina Gjerde, David Johnson, Kirsten Kaschner, Ben Lascelles, Jake Rice, Henning von Nordheim, Louisa Wood, and Patrick N. Halpin, “The Convention on Biological Diversity’s Ecologically or Biologically Significant Areas: Origins, Development, and Current Status,” Marine Policy 49 (2014): 137–145. iucn’s international law expert Lee Kimball was commissioned to provide the background legal report with contributions from members of the wcpa High Seas mpa Task Force. See Lee A. Kimball, The International Legal Regime of the High Seas and the Seabed beyond the Limits of National Jurisdiction and Options for Cooperation for the Establishment of Marine Protected Areas (mpas) in Marine Areas Beyond the Limits of National Jurisdiction, (Secretariat of the Convention on Biological Diversity, Montreal, Technical Series no. 19, 2005). 64 pages, available online at . Under the leadership of Matthew Gianni, then political advisor with Greenpeace ­International, and a former fisherman. Founding members of the Deep Sea Conservation Coalition (dscc) included Greenpeace International, wwf International, nrdc (Natural Resources Defense Council). Marine Conservation Biology Institute, iucn and ­individual scientists. See dscc, Timeline-Celebrating 10 Years of the dscc, available online at . United Nations, 2004. Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its fifth meeting, Letter dated 29 June 2004 from the Co-Chairpersons of the Consultative Process A/59/122,

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deep sea bottom fishing, the unga called upon States and rfmos “to take action urgently … and consider on a case by case basis … the interim prohibition of destructive fishing practices, including bottom trawling that has adverse effects on vulnerable marine ecosystem, including seamounts, hydrothermal vents and cold water corals located beyond national jurisdiction.”67 Second, to explore wider issues related to marine biodiversity in abnj, the unga established the Ad hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond the limits of national jurisdiction (bbnj Working Group).68 The tasks of the bbnj Working Group included: • To survey the past and present activities of the United Nations and other relevant international organizations with regard to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction; • To examine the scientific, technical, economic, legal, environmental, socioeconomic and other aspects of these issues; • To identify key issues and questions where more detailed background studies would facilitate consideration by States of these issues; • To indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.69 The first meeting of the cbd Ad-hoc Open-ended Working Group on Protected Areas held in Montecatini, Italy in 2005 recognized the central role of the new bbnj Working Group with respect to marine areas beyond national jurisdiction. At the same time, with help from the eu, Canada, Mexico and iucn, the Montecatini meeting paved the way for the development by the cbd of scientific criteria for the description of “ecologically or biologically significant

67

68 69

a­vailable online at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N04/412/21/ PDF/N0441221.pdf?OpenElement. unga Resolution, A/Res/59/25 adopted on 17 November 2004. Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, Para 66. Available at: https://documents-dds-ny.un.org/ doc/UNDOC/GEN/N04/477/70/PDF/N0447770.pdf?OpenElement. Ibid., para. 73. Ibid., para. 66.

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marine areas” (ebsas), as well as a biogeographic classification system for the global open ocean and deep seabed, a prerequisite for the establishment of representative mpa networks.70 At its first meeting in February 2006, the bbnj Working Group outlined the key parameters of concern and options for future progress.71 Participants agreed that unclos served as the basis for cooperation and action, and that there was a need for improved implementation, cooperation and coordination. The bbnj Working Group also recognized that area-based management measures such as mpas could be a key conservation tool. The European Union introduced its proposal, first raised at the cbd Montecatini meeting, for an unclos implementing agreement to address gaps in international law regarding biodiversity conservation. While the idea of an unclos implementing agreement was not universally accepted, most States noted it as a possible option. By this time, it was apparent that views on the legal regime applicable to the exploitation of marine genetic resources in abnj were taking multiple directions.72 Some delegations considered marine genetic resources of the deep seabed as constituting part of the “common heritage of mankind,” to be dealt with under the regime for the international seabed Area in Part xi of the Convention. Under the common heritage of mankind principle as applied to seabed minerals, commercially oriented activities in the Area should be conducted for the benefit of humankind and subject to equitable sharing of the financial and other economic benefits, taking into consideration the interests and needs of developing States. Others stressed that marine scientific research was a high seas freedom whereby the resource and economic benefits belong to those who first capture it.73 These latter delegations further argued that no 70

71

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cbd, 2005, “Report of the First Meeting of the Ad Hoc Open-ended Working Group On Protected Areas,” Montecatini, Italy, 13–17, 2005. UNEP/CBD/WG PA/1/6, available online at https://www.cbd.int/doc/meetings/pa/pawg-01/official/pawg-01-06-en.doc See also Dunn et al., “The Convention on Biological Diversity’s Ecologically or Biologically Significant Areas.” United Nations, 2006. “Report of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction,” A/61/65, available online at . Ibid., 9. For further information on the early history of the bbnj process through 2012, see Elisabeth Druel, Julien Rochette, Raphael Billé and Claudio Chiarolla, A long and winding road. International discussions on the governance of marine biodiversity in areas beyond national jurisdiction, (Studies N°07/13, iddri, Paris, France, 2012), 42, available online at: . Ibid., 9.

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organization should have the authority to regulate marine scientific research on the high seas. Still others indicated a third path, highlighting the legal lacuna in the regime with respect to deep sea biodiversity and bioprospecting that would need to be addressed.74 Though discussions on marine genetic resources remained contentious,75 by late 2006 the discussions on deep sea bottom fisheries on the high seas finally began to bear fruit. The 2006 unga resolution 61/105 on sustainable fisheries called for urgent international action to protect seamounts and other vulnerable marine ecosystems from the impacts of high seas bottom trawling.76 unga resolution 61/105 specifically called on States and rfmos to adopt measures to protect vulnerable marine ecosystems and ensure sustainable fisheries. States and rfmos were called upon to “not authorise” high seas bottom 74 75

76

Ibid., 9. Indeed, due to the debate on the applicable legal regime for marine genetic resources in abnj, government representatives discussing this topic at eighth meeting of the un Informal Consultative Process on Oceans and Law of the Sea were unable to agree to consensual elements to recommend to the unga for adoption. See: unga, 2007. “Report on the Work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its eighth meeting,” A/62/169, available online at https://documents -dds-ny.un.org/doc/UNDOC/GEN/N07/443/75/PDF/N0744375.pdf?OpenElement. unga Resolution A/RES/61/105 adopted on 8 December 2006, paragraphs 80–91 on Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments. In pertinent part Resolution 61/105 provides: “80. Calls upon States to take action immediately, individually and through regional fisheries management organizations and arrangements, and consistent with the precautionary approach and ecosystem approaches, to sustainably manage fish stocks and protect vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals, from destructive fishing practices, recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain;… 83. Calls upon regional fisheries management organizations or arrangements with the competence to regulate bottom fisheries to adopt and implement measures, in accordance with the precautionary approach, ecosystem approaches and international law, for their respective regulatory areas as a matter of priority, but not later than 31 December 2008; … (c) In respect of areas where vulnerable marine ecosystems, including seamounts, ­hydrothermal vents and cold water corals, are known to occur or are likely to occur based on the best available scientific information, to close such areas to bottom fishing and ensure that such activities do not proceed unless conservation and management measures have been established to prevent significant adverse impacts on vulnerable marine ecosystems.”

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fisheries which cannot be managed to prevent “significant adverse impacts” to vulnerable ecosystems. The process was to be implemented within rfmos by 31 December 2008 and emerging rfmos were to adopt interim measures no later than 31 December 2007. The requirement in unga 61/105 for reporting on progress by States and rfmos set the table for continued unga monitoring of implementation.77 The resolution—essentially committing all countries to protect the biodiversity of deep sea ecosystems and prevent significant adverse impacts from high seas bottom fishing or else not authorize the bottom fishing—was seen by many as a useful approach for governing other activities in abnj.

Towards a New International Legally Binding Instrument under unclos

Setting the Stage It took nine long years and nine intensive meetings of the bbnj Working Group and several inter-sessional workshops to achieve consensus on the need to develop a new legally binding instrument under unclos for the conservation and sustainable use of marine biodiversity beyond national jurisdiction. In addition to rising concern for the health of the marine environment, one of the key factors contributing to this consensus was a meeting of the minds amongst the leading proponents for a strong conservation agreement and the leading proponents for a “common heritage of mankind”-based benefit-sharing regime for deep seabed genetic resources. Together they agreed that a single implementing agreement under unclos was the best way forward. This resulted in the “2011 Package Deal,” whereby the bbnj Working Group agreed to formally consider “the possible development of a multilateral agreement” under ­u nclos as part of a new process focused on identifying gaps and finding ways forward.78 The new unga process was charged with addressing a formal package of issues, including “in particular, together and as a whole, marine g­ enetic 77 Ibid. 78 unga, 2011, A/66/119, Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc ­Open-ended Informal Working Group to the President of the General Assembly regarding Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs’ summary of discussions. Annex, available ­ online at: .

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resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology.”79 Thus, after nearly a decade of debating whether the problems of high seas governance could be addressed through improved implementation of existing instruments, on 19 June 2015, the unga adopted Resolution 69/292 taking the historic step of launching preparations for what will most likely be the third implementing agreement to unclos.80 Content of the PrepCom Resolution unga Resolution 69/292 reflects the recommendations of the ninth bbnj Working Group that met from 20 to 23 January 2015, or more accurately until 2:00 am on Saturday 24 January, amidst a raging blizzard, to come up with compromise text to lead towards a new international legally binding i­nstrument under unclos. Although many were disappointed that the recommendation did not designate a date for convening an intergovernmental conference, the meeting did succeed in charting the way forward for negotiations and, for the first time, reached consensus on the legally binding nature of a future agreement on the conservation and sustainable use of marine biodiversity in abnj.81 What does the unga Resolution 69/292 provide? It reflects a series of compromises: First, the preamble of the resolution stresses the need for “the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,” reflecting the persistent view of a small number of States that the existing regime was already comprehensive and just in need of a bit of adjustment. Second, the initial phrase: “Decides to develop an international legally binding instrument” under unclos was the most important for setting 79 Ibid. 80 unga Resolution A/RES/69/292 adopted on 19 June 2015 on Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, available online at: . 81 Earth Negotiations Bulletin, “Summary of the Ninth Meeting of the Working Group on Marine Biodiversity Beyond Areas of National Jurisdiction: 20–23 January 2015,” available online at .

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the scene for the future negotiations. This very clear decision to develop a legally binding instrument allows the Chair of the PrepCom to assume all States share this common goal, allowing the discussions to focus on substantive issues, such as how to achieve the objective(s), not whether and why there is a need for such an agreement (para 1). Third, the PrepCom is tasked with making “substantive recommendations” to the unga on the “elements of a draft text of an international legally binding instrument” (para 1(a)). This reflects the desire of some States to see more details on the content of the ilbi before commencing an intergovernmental negotiating conference. Fourth, the PrepCom is to report to the unga on its progress by the end of 2017. It is on the basis of this report that the unga is to decide, before the end of its 72nd session (September 2018), on the convening and start date for an intergovernmental conference for elaborating the text of an ilbi under the Convention (para 1 (b) and (k)). These two target dates may help to spur progress on the ilbi despite the lack of a specific start date for the negotiating conference. Fifth, the PrepCom is charged to “exhaust every effort to reach agreement on substantive matters by consensus” (para 1 (g) (h)) in order to secure the widest possible acceptance of the ilbi. As some States were concerned that consensus-based negotiations gave the few reluctant States an opportunity to stall progress, the recommendations included a provision that allowed for the recording of those elements where consensus had not been attained “even after exhausting every effort” (para 1(i)). Sixth, the negotiations are to address the topics identified in the “package” agreed by the bbnj Working Group in 2011, namely the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, “in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology” (para. 2). And seventh, in an example of constructive ambiguity that will likely end up being one of the more contentious parameters for the new ilbi, the resolution provides that the process described above “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies” (para. 3). What “undermine” means in the context of the new agreement is clearly fated to be one of the most enduring subjects of debate, as there are clearly multiple interpretations on what “undermine” means with respect to existing instruments and bodies.

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The work of the PrepCom commenced in March 2016 and is to carry on through the end of 2017 in a series of four 10-day meetings.

Unpacking the Package: Key Issues and Concerns Raised at the First PrepCom The first meeting of the PrepCom (28 March to 8 April 2016) proved to be both more productive and more disputatious (regarding the scope of the agreement and the legal basis for a regime for access and benefit sharing of marine genetic resources) than expected. Despite the consensus to develop a new ibli on the conservation and sustainable use of marine biodiversity in abnj, there is clearly much more work to be done to build understanding and consolidate support for a robust new instrument.82 On the positive side, there was increasing recognition of the need to overcome the fragmented nature of governance in abnj by implementing and strengthening unclos, by enhancing cooperation and coordination, and by addressing regulatory gaps.83 There was broad agreement on the need to build on the duty to cooperate in unclos and to ground the new ibli in modern environmental and governance principles such as the ecosystem approach, precautionary approach, polluter pays principle, open and transparent processes, and use of the best available science.84 There was near universal support for more detailed standards for the conduct of environmental impact assessments (eias), including cumulative impact assessments, and even for a process for strategic environmental assessments.85 States recognized the primary role of national governments in ensuring that eias were conducted based on agreed thresholds and standards, but also the need for wide international consultation and review as well as capacity building for developing countries.86 82

83 84 85 86

Chair’s overview of the first session of the Preparatory Committee, Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, available online at: . Earth Negotiations Bulletin, “Summary of the First Session of the Preparatory Committee on Marine Biodiversity of Areas beyond National Jurisdiction 28 March–8 April 2016, PrepCom1 Final,” available online at . Earth Negotiations Bulletin, “Summary of the First Session of the Preparatory C ­ om­ mittee,” 3. Ibid., 5. Ibid., 11–14. Ibid., 11–13.

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Where there was less agreement was on whether decisions to allow a project or activity to proceed should be taken at the national level, or whether it should be subject to determination by a global decision-making process, with input from an expert advisory committee.87 There was also appreciation of the role of cbd’s work on describing e­ bsas and rfmo efforts to protect “vulnerable marine ecosystems” (vmes) from the impacts of deep sea bottom fishing could play in the selection of areabased management tools, including mpas. A few States, such as Australia and New Zealand, supported the need for mpas to ensure representativity as well as address specific threats. iucn recalled that the development of representative networks of mpas was a goal set forth in the 2002 wssd Joint Plan of ­Implementation. In terms of objectives for mpas, some stressed the importance of also protecting ecosystem services, ensuring connectivity and building ­resilience to climate change as well as the need to recognize that there may be special regional objectives.88 Regarding capacity building, States agreed on the need for robust provisions to enable developing countries to implement and to reap the benefits of the new agreement. Many were in favor of ­increased scientific training programs and joint scientific research as well as institution building for policy implementation for all aspects of the agreement. Technology transfer was similarly seen as an essential tool, especially in light of the poor record of implementation of Part xiv of unclos. Some developing States posited that technology transfer should be made mandatory, as its voluntary nature had hampered implementation of unclos provisions on technology transfer. The United States, however, supported provisions on technology transfer provided that transfer is voluntary, on mutually agreed terms and conditions, and consistent with the ioc Criteria and Guidelines for Transfer of Marine Technology (cgtmt). The European Union underscored that technology transfer did not have to limit itself to technical equipment, but could build on the existing ioc cgtmt to include information on marine science, manuals, guidelines, standards, sampling and laboratory equipment, analysis, computer hardware, expertise, knowledge, analytical methods, recognition of provide and public actors and multi-stakeholder partnerships. Other states called for technology transfer to go beyond existing unclos provisions, based on fair and equitable terms.89 87 88 89

Ibid., 11–13. Ibid., 8–13. Earth Negotiations Bulletin, Summary of the First Session, 14–16. See also, unesco, 2005, Criteria and Guidelines on Transfer of Marine Technology (cgtmt) (ioc Information

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With respect to the relationship of the ilbi to existing agreements and institutions, most States recognized the importance of the opportunity to complement existing global, regional and sectoral regimes by putting in place a system to enhance cooperation and coordination at the global and regional level. The eu suggested that organizations could consider explicitly committing themselves to the objectives of the ilbi (in so far as mandates allow) in order to ensure that all institutions shared the same objectives.90 Nevertheless, a few States continued to contend that the ilbi should not address fisheries, on the grounds that the un Fish Stocks Agreement provides a comprehensive regime already that should not be touched.91 Others variously countered that fishing is the major impact on marine biodiversity; that the un Fish Stocks Agreement lacks universal participation and only covers certain stocks; that many rfmos have limited membership and most rfmos have been slow to place priority on proactive biodiversity conservation, despite the general principles of the un Fish Stocks Agreement which includes “protect biodiversity in the marine environment.”92 The iucn further added that global rules and standards for the protection of marine biodiversity in abnj would be consistent with and could elaborate upon this unfsa guiding principle.93 Divergent views persisted on the applicable legal status of marine genetic resources (mgrs) of the seabed. The G77+China asserted that mgrs were subject to the common heritage of mankind regime, others saying they were subject to freedom of the high seas regime.94 This long-standing debate risks to potentially block progress on more in-depth discussion on what a fair and equitable system of access to and benefit sharing of mgrs might look like, despite the growing number of constructive suggestions from States and observers on ways it might do so, regardless of the legal basis.95

90 91 92 93 94 95

document-1203) in 2003 by ioc Resolution XXII-12, available online at:. Author’s personal notes. Earth Negotiations Bulletin, 4–5. Ibid., 4 based on unfsa Article 5(g). Ibid., 4–5, Author’s personal notes. Ibid., 19. Ibid., 6–8. iucn also co-sponsored a one day workshop during the PrepCom with an eufunded PharmaSea project to share perspectives on current practices, challenges and possible ways forward on the fair and equitable sharing of the benefits derived from marine genetic resources from abnj.

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Future Outlook

As the gavel dropped in Paris in December 2015 signalling approval by consensus of the landmark climate agreement, Ban Ki-moon, United Nations Secretary General, said, “The time has come to acknowledge that national interests are best served by acting in the global interest.”96 If we can achieve the same hard-fought understanding that acting collectively to safeguard the global ocean beyond national boundaries is in the common interest of all nations, then we may hope for a positive outcome of the New York PrepCom process to develop a third implementing agreement under unclos. Even for those few States still driven solely by individual national interests, a robust agreement could bring many advantages. It could enhance the capacity of all States to participate in the sustainable development and management of abnj. It could also operate to strengthen national institutions by providing financial assistance and increasing access to technology.97 Developed and ­developing countries alike could benefit from improved international cooperation in marine scientific research and open access to data, materials and samples. An institutional framework such as an annual conference of parties could lower the cost of cooperation by enabling States to address issues in a purposive, rational manner, rather than an ad hoc patchwork and often crisis-driven approach. It could further promote reciprocal implementation by allowing States to delineate precisely what each party is expected to do, provide clarity on applicable norms and encourage all countries to cooperate so efforts by one country are not undermined by another.98 Together these could serve to build trust, improve knowledge, reduce misperceptions, and increase the legitimacy of existing institutions and agreements. And finally, an ambitious agreement under unclos could help to solidify the status of unclos as the “constitution for the ocean” by enabling it to evolve to meet changing ­circumstances while building on its strong framework that recognizes the rights and responsibilities of States. 96

97 98

Secretary-General Ban Ki-moon, “Secretary-General’s Remarks to COP21 Presentation of Draft Outcome Document, Paris, France, 12 December 2015,” available online at . Secretary-General Ban Ki-Moon continued: “Nature is sending urgent signals. People and countries are threatened as never before. We have to do as science dictates. We must protect the planet that sustains us. For that, we need all hands on deck.” Ibid., para. 132. Inspiration for this analysis comes from Daniel Bodansky, The Art and Craft of International Environmental Law, (Cambridge, ma: Harvard University Press, 2010), 136–153.

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The past 15 years, since 2001, have already witnessed a long process of building a shared scientific and political understanding of what is at stake. As the results of the First Global Integrated Marine Assessment99 underscore, the problems affecting the health of marine species, habitats and ecosystems have only worsened in the interim, compounded by the accelerating impacts of ocean warming, acidification and deoxygenation.100 The Summary of the First Global Integrated Marine Assessment cautions: “The sustainable use of the ocean cannot be achieved unless the management of all sectors of human activities affecting the ocean is coherent…. This requires taking into account the effects on ecosystems of each of the many pressures, what is being done in other sectors and the way that they interact.”101 It is fervently hoped that all of humanity will soon recognize the need for a more comprehensive, integrated and coherent approach to managing our rapidly changing ocean, and will offer their support for a robust agreement that can best serve our common interest in a healthy and productive Planet Ocean. December 2017 update: The international community took a major step towards a new agreement when on December 22, 2017, the un General Assembly adopted a resolution to launch formal negotiations for a new legally binding instrument under unclos, with a view to developing the instrument as soon as possible. The Intergovernmental Conference is charged with considering the recommendations of the PrepCom contained in A/AC.287/2017/PC.4/2. This historic step highlights a recognition that collective action to safeguard the global ocean is in the common interest of all nations. 99

un Co-Chairs of the Working Group of the Whole, “Summary of the First Global Integrated Marine Assessment,” available online at . 100 Ibid. paras. 32–64 and 155. 101 Ibid., para 40.

chapter 13

Promoting a New Convergence: Developing New Regulatory Paradigms for Marine Areas beyond National Jurisdiction in the Pacific Ocean Robin Warner

Introduction

The Pacific is the largest ocean basin in the world covering a vast area estimated to be around sixty-four million square miles. Studded with small island developing states and rimmed with some of the world’s largest economies, it is unimaginably diverse, in geographic, economic, social and environmental terms. The region is characterised by vast tracts of ocean space dotted with land masses which range from sizeable island nations such as Australia and New Zealand to tiny dependencies such as the Pitcairn Islands.1 The majority of small islands in the South Pacific region have land areas under 700 square ­kilometres and are heavily dependent on a healthy marine environment for their survival.2 The region has one of the highest quotients of biodiversity in the world with a large population of rare and endangered species such as ­dugongs, sea turtles and whales.3 This cornucopia of biodiversity is subject to multiple stress factors including population growth, natural disasters, unsustainable fisheries practices and alien species invasion.4 There has always been a strong sense of the Pacific as a holistic region particularly among the inhabitants of the Pacific Islands. Many of the nation States * Australian National Centre for Ocean Resources Security (ancors), University of Wollongong, Australia. 1 Richard Herr, “Environmental Protection in the South Pacific: The Effectiveness of sprep and its Conventions,” in Olav S. Stokke and O.B. Thommessen (eds.), Yearbook of International Cooperation on Environment and Development 2002/3 (Earthscan Publications Ltd., London, 2002) 41–43; South Pacific Regional Environmental Programme (sprep), Nature Conservation. http://www.sprep.org/topic/NatCons.htm. 2 Tamari’I Tutangata and Mary Power, “The Regional Scale of Ocean Governance: Regional ­Cooperation in the Pacific Islands,” Ocean and Coastal Management 45 (2002): 873. 3 sprep, Biodiversity in the Pacific Islands, http://www.sprep.org/topic/Biodiv.htm. 4 Ibid.; Tutangata and Power, “The Regional Scale of Ocean Governance: Regional Cooperation in the Pacific Islands,” 875.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_015

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in the Pacific are small island developing States with limited financial and human resources. Their key sources of revenue stem from fish stocks such as tuna, tourism and overseas remittances with some subsistence agriculture. For some Pacific islands deep seabed mining is being viewed as a potential source of revenue. They rely heavily on overseas aid from larger economies in the Pacific and elsewhere for social and technological development. The inhabitants of the Pacific islands have consistently manifested a profound cultural and spiritual connection with the oceans and seek to manage ocean resources through empowerment of their people. While they appreciate the need for conservation and sustainable development of marine biodiversity, they also recognise the logistic challenges and cost implications of implementing conservation measures over such a vast ocean basin with the limited resources at their disposal. In the South Pacific, much of the ocean space comes under national jurisdiction with the small island groups and archipelagos generating huge areas of clustered and overlapping exclusive economic zones (eezs) with high seas pockets among them. Further north and in the Western and Central Pacific there are broad swathes of ocean areas beyond national jurisdiction including, on the sea floor, the Clarion Clipperton Zone, which is part of the Area and comes under the control of the International Seabed Authority for the purpose of deep seabed mineral exploration and exploitation. This paper explores the development of new governance paradigms in marine areas beyond national jurisdiction (abnj) with a focus on implementing new regulatory frameworks for conservation and sustainable use of marine biodiversity in Pacific Ocean abnj. It discusses the options which have been considered in the un Ad Hoc Informal Open-ended Working Group to study issues related to the conservation and sustainable use of marine biodiversity in areas beyond national ­jurisdiction (bbnj Working Group) and now endorsed by the un General ­Assembly to evolve the legal and institutional framework for conservation and sustainable use of marine biodiversity in abnj. It examines key features of the existing maritime regulatory framework for Pacific abnj and its applicability to the conservation and sustainable use of marine biodiversity, gaps in that framework and ongoing global efforts to develop more effective regulatory systems for abnj including the vast Pacific Ocean. In the face of growing threats and pressures on the marine environment abnj and its biodiversity, it argues that it is timely to promote a new convergence of the modern conservation principles, measures and tools developed under international environmental law with the law of the sea. A more integrated regulatory and enforcement framework involving elements such as area based management measures and global standards for environmental impact assessment of activities in abnj will benefit Pacific Island States in moving toward this objective.

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Global Initiatives to Evolve the International Law Framework for Conservation and Sustainable Use of Marine Biodiversity in abnj

Over the past decade, nations meeting at the United Nations in New York have discussed a broad range of issues related to the conservation and s­ ustainable use of marine biodiversity in areas beyond national jurisdiction and the potential for an international agreement. A recommendation to support the ­initiation of a process to develop an implementation agreement under the 1982 United Nations Convention on the Law of the Sea (losc)5 which would ­address the conservation and sustainable use of marine biodiversity in abnj was endorsed by the un Conference on Sustainable Development (Rio + 20) in June 2012.6 This commitment was recalled by the United Nations General ­Assembly (unga) in its 67th session,7 and reaffirmed in the recommendations to the unga developed at the sixth meeting of the bbnj Working Group in 2013.8 The same meeting also agreed to establish a process to make recommendations to the unga “on the scope, parameters and feasibility of an inter­national instrument under the Convention” in order to prepare for the decision to be taken at the 69th session of the unga in 2015, whether to start the n ­ egotiation of an international instrument on the conservation and sustainable use of biodiversity in abnj.9 That process involved three meetings to ­discuss the “scope, parameters and feasibility of an international instrument” in April 2014, June 2014 and January 2015. In these meetings, member States of the un endorsed the principle that any new agreement must be consistent with and complementary to the losc.10 They also identified the key elements to be included in any new agreement. The agreement should establish a framework for area based management tools such as marine protected areas in abnj; 5

United Nations Convention on the Law of the Sea, Montego Bay, opened for signature 10 December 1982 (entered into force 16 November 1994) (losc) 1833 unts 3. 6 unga Resolution 66/288, un Doc. A/RES/66/288 (2012), para 162. 7 unga Resolution on Oceans and the Law of the Sea, un Doc. A/RES/67/78, 11 December 2012, para 181. 8 Report of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs’ summary of discussions. un Doc. A/68/399, 23 September 2013, Annex. 9 Ibid. 10 unga Resolution, “Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction,” un Doc A/69/L.65, 22 June 2015.

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a system for prior environmental impact assessment and cumulative impact assessment over time of activities in abnj that pose threats to marine biodiversity; and it should also address the status of marine genetic resources beyond national jurisdiction, particularly aspects related to access and distribution of benefits from these resources. Finally, it should facilitate transfer of technology and capacity building between States on all these issues. On 19 June 2015, the unga approved the recommendations of the January 2015 bbnj Working group meeting to develop an international legally-binding instrument under the losc on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction and to establish, prior to holding an intergovernmental conference, a preparatory committee to make substantive recommendations to the unga on the elements of a draft text of an international legally-binding instrument under the Convention.11 The preparatory committee will start its work in 2016 and by the end of 2017 report to the unga on its progress by the end of 2017.12

Existing Initiatives to Conserve and Sustainably Use Marine Biodiversity

There are a range of initiatives at the global and regional levels which contribute to the conservation and sustainable use of marine biodiversity in the Pacific. Some of these have arisen from binding legal instruments, while ­others are non-treaty based arrangements which have been implemented by international organizations in consultation with Pacific Island States. The f­ollowing subsections discuss the content of these instruments and non-binding arrangements.

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea Convention) A comprehensive environmental protection plan for the South Pacific r­ egion began with the establishment of the South Pacific Regional Environment Programme (sprep) in 1978.13 The framework Convention for the Protection of 11

12 13

unga Resolution, “Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction,” un Doc A/69/L.65, 22 June 2015. Ibid., paragraph 1(a). Ben Boer, Ross Ramsay and Donald R, Rothwell, International Environmental Law in the Asia Pacific (Kluwer Law International, London, 1998), 41.

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the N ­ atural Resources and Environment of the South Pacific Region (Noumea ­Convention), which was negotiated in 1986, commits its Parties to prevent, ­reduce and control pollution of the Convention Area from any source and to ensure sound environmental management of natural resources.14 The Convention area is defined as the 200 nautical mile zones established off the coasts of its 21 regional Parties as well as those areas of the high seas which are enclosed from all sides by these 200 nautical mile zones.15 Many of the small island ­nations in the region are still in dependent associations with other States or have only attained independence in recent decades.16 Their capacity to manage environmental protection programmes is severely limited and much of the funding and technical expertise for sprep projects is provided by the developed countries in the region and other sources of international aid.17 While the extent of ocean space under sprep’s environmental domain far outweighs the terrestrial component of its responsibilities, the underdeveloped status of many of the region’s economies has directed environmental priorities towards land based projects.18 Herr notes that the impetus for economic development which characterises the region has generated a variety of environmental problems on land. These include the clear felling of forests for timber and firewood, the mining of beaches for concrete sand and the degradation of lagoons and freshwater sources by improper waste disposal.19 The region also faces the ­externally imposed threat of sea level rise associated with global warming.20 The exclusive economic zones and high seas areas of the region host some of the world’s largest stocks of tuna which have been subject to exploitation by distant water fishing States.21 The region’s high seas areas have also been used for nuclear testing and toxic waste disposal in the past although these ­activities have diminished in recent years.22 The South Pacific also contains a 14

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Noumea, opened for signature 24 November 1986 (entered into force 22 August 1990) (1987) 26 ilm 41 (Noumea Convention), Art. 5(1). 15 Ibid., Art. 2(a)(i) and (ii). 16 Herr, “Environmental Protection in the South Pacific: The Effectiveness of sprep and its Conventions,” 43. 17 Ibid., 43–44; Tutangata and Power, “The Regional Scale of Ocean Governance: Regional Cooperation in the Pacific Islands,” 879–880. 18 gpa, South Pacific Region, http://www.gpa.unep.org/seas/workshop/southpac.htm at 14 April 2008. 19 Herr, “Environmental Protection in the South Pacific: The Effectiveness of sprep and its Conventions,” 43. 20 Ibid.; Tutangata and Power, 880. 21 Ibid. 22 Ibid.

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variety of vulnerable marine habitats such as hydrothermal vents, some of the world’s deepest ocean trenches and seamount environments rich in biodiversity many of which are in waters beyond national jurisdiction.23 The Noumea Convention anticipates the collaboration of its Parties in ­protecting the marine environment of the whole Convention Area, including its high seas enclaves. Article 4 of the Convention provides that the Parties shall endeavour to conclude bilateral or multilateral agreements for the protection, development and management of the marine and coastal environment of the Convention Area. Other articles provide guidance on the range of environmental protection measures which might be included in such agreements. The majority of the Convention’s articles address the prevention, reduction and control of pollution from a variety of sources and waste management.24 Of particular relevance to the high seas areas within the Convention’s geographic scope, are the articles urging the Parties to take all appropriate measures to prevent reduce and control pollution from vessels, seabed activities and the testing of nuclear devices.25 Although the Noumea Convention pre-dates the 1992 Convention on Biological Diversity (cbd)26 cbd and its codification of biodiversity protection, Article 14 reflects some of the key concepts associated with an integrated and ecosystem based approach to oceans management in providing that Parties shall take all appropriate measures to protect and preserve rare and fragile ecosystems and depleted, threatened or endangered flora and fauna as well as their habitat in the Convention Area. Article 14 also recommends that Parties establish protected areas and prohibit or regulate any activities likely to have adverse effects on the species, ecosystems or biological processes of such areas. A limitation of Article 14 is that the establishment of protected areas is not to affect the rights of other Parties to the Noumea Convention or third States under international law. In the policy arena, 13 Noumea Convention Parties took further steps to ­protect waters within and beyond national jurisdiction in the Convention Area with the conclusion of a Strategic Action Programme (sap) for the inter­national waters of the Pacific Islands in 1997.27 The term “international waters” in this 23 Ibid.; sprep, above note 3. 24 Noumea Convention, Arts. 7–9, 10 and 11. 25 Ibid., Arts. 6, 8 and 12. 26 Convention on Biological Diversity, Nairobi, opened for signature 22 May 1992 (entered into force 29 December 1993) (cbd) (1992) 31 ilm 822. 27 Philomene A. Verlaan and Gerard Miles, “South Pacific: New Developments in Marine ­Resource Management for Pacific Islands,” The International Journal of Marine and Coastal Law 13 (1998): 237.

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context was intended to apply to all the waters encompassed within the Pacific Island region rather than just the high seas areas which are beyond national jurisdiction.28 The sap was designed to provide a blueprint for the ­integrated management of all the waters within the sprep region and to achieve cooperation towards that objective between sprep and sectorally based management regimes.29 Verlaan and Miles note that the sprep sap was the first example of such a plan for any oceanic region in the world although cognate programmes for the Black Sea, Red Sea and Danube River Basin were in place at the time it was concluded.30 The sprep and its sap for inter­national waters provided a potential institutional basis and an expression of political will for further integrated environmental protection across the South Pacific region including its marine areas beyond national jurisdiction. The sap has been followed by ­other region wide policies and initiatives for integrated protection of the ­Pacific marine environment and sustainable use of its resources including Pacific Oceanscape and the Pacific Islands Regional Ocean Policy (pirop), however the region continues to face substantial resource and capacity challenges in implementing these policies and initiatives. Tutangata and Power note the absence of implementing legislation at the national level to enforce oceans related agreements and the lack of expertise on many oceans issues within the Pacific Island States.31 To advance their objectives under regional environmental policies, the Pacific Island countries depend almost entirely on funding and technical support from outside the region.32 Tutangata and Power suggest that regional coordination to improve marine environmental protection outcomes could be strengthened by encouraging greater interaction between sectoral representatives responsible for areas such as fisheries, environment, trade and development.33 They also emphasise the need for building long term conservation capacity at the national level and for innovative financing schemes such as marine investment bonds and fees for environmental services which secure greater and sustainable returns from regional ocean resources and move the region away from donor dependence.34

28 29 30 31

Ibid., 237 n.4. Ibid., 241. Ibid., 239. Tutangata and Power, “The Regional Scale of Ocean Governance: Regional Cooperation in the Pacific Islands,” 87–879. 32 Ibid., 879. 33 Ibid., 881. 34 Ibid.

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Convention for the Protection of the Marine Environment and Coastal Areas of the South–East Pacific (Lima Convention) The South East Pacific region extends the full length of the Pacific coast of South America from Panama to Cape Horn off the coasts of Chile, Peru, ­Ecuador, Colombia and Panama.35 The region supports one of the world’s most productive fisheries with the potential sustainable fisheries yield ­estimated to be 12.6 million tons annually.36 In addition to its high fisheries quotient, the ­region also hosts multiple species of shellfish, birds, marine mammals, algae and ­reptiles.37 There are two deep sea trenches, off the coast of Peru, Chile and Central ­America and off the coasts of Ecuador and Colombia, which host some of the world’s most unique flora and fauna.38 The South–East P ­ acific ­Action Plan (cpps) together with the Lima Convention and the Agreement on R ­ egional ­Cooperation in Combating Pollution of the South East Pacific by ­Hydrocarbons or other Harmful Substances in Cases of Emergency were ­adopted by Chile, Ecuador, Colombia and Peru in 1981 to provide a legal and ­institutional framework for the marine environmental protection of the ­region.39 These instruments were augmented in 1989 with the adoption of the Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South–East Pacific (Paipa Protocol) which recognises the need to protect and ­preserve rare and fragile ecosystems and threatened flora and fauna through the establishment of marine protected areas.40 The Paipa Protocol applies to the maritime area of the South–East Pacific within the 200 nautical mile zones over which the Contracting Parties exercise jurisdiction as well as the entire continental shelf, including areas of the shelf where 35 36 37 38 39

40

unep, Regional Seas, South East Pacific Region, Regional Profile, para 1.1, http://www .unep.ch/regionalseas/pubs/profiles/sep.doc. Ibid., para 1.3.4.3. Ibid., paras. 1.3.4.1, 1.3.4.2. 1.3.4.4, 1.3.4.5, 1.3.4.6 and 1.3.4.7. Ibid., paras. 1.3.3.3 and 1.3.3.7. 1981 Convention of the Protection of the Marine Environment and Coastal Area of the South East Pacific (1982) 33 International Digest of Health Legislation 96 (Lima Convention); 1981 Agreement on Regional Co-operation in Combating Pollution of the South– East Pacific by Hydrocarbons and other Harmful Substances in Cases of Emergency, International Environmental Legal Materials and Treaties (i.e.l.m.t.) 981:85 (South East Pacific Emergency Response Convention); unep, Regional Seas, South East ­Pacific ­Region, A Brief History of the South East Pacific, http://www.unep.ch/regionalseas /regions/sep/sephist.htm. 1989 Protocol for the Conservation and Management of Protected Marine and Coastal ­Areas of the South–East Pacific, text reproduced at Internet Guide to International Fisheries Law, http://www.intfish.net/treaties/sepac.1989.htm (Paipa Protocol), Preamble.

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Contracting Parties claim an extended continental shelf beyond 200 n ­ autical miles.41 This leaves open the possibility that the Contracting Parties could ­establish protected areas on parts of their extended continental shelf where the superjacent water column area is high seas. The Paipa Protocol anticipated the concept of and processes associated with biodiversity protection by specifying that the Contracting Parties should study and inventory the resources in areas under their protection and implement integrated environmental management in such protected areas to ensure the sustainable development of their resources.42 The criteria to be taken into account in establishing protected areas and the protection measures that can be implemented in such areas are similar to those provided for in the other unep regional seas protected areas protocols such as the 1990 Protocol concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (spaw Protocol).43 For instance under Article 5 of the spaw Protocol, such measures can include: (a) the regulation or prohibition of the dumping or discharge of wastes and other substances that may endanger protected areas; (b) the regulation or prohibition of coastal disposal or discharges causing pollution, emanating from coastal establishments and developments, outfall structures or any other sources within the parties’ territories; (c) the regulation of the passage of ships, of any stopping or anchoring, and of other ship activities, that would have significant adverse environmental effects on the protected area without prejudice to the rights of innocent passage, transit passage, archipelagic sea lanes passage and freedom of navigation, in accordance with international law; (d) the regulation or prohibition of fishing, hunting, taking or harvesting of endangered or threatened species of fauna and flora and their parts or products; (e) the prohibition of activities that result in the destruction of endangered or threatened species of fauna or flora and their parts and products, and the regulation of any other activity likely to harm or disturb such species, their habitats or associated ecosystems; 41 42 43

Ibid., Art. i. Ibid., Art. ii. Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean, Kingston, adopted 18 January 1990 (entered into force 14 January 1998) (spaw Protocol) text at www.cep.unep.org/pubs/legislation/spaw.htm.

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(f) the regulation or prohibition of the introduction of non-indigenous species; (g) the regulation or prohibition of any activity involving the exploration or exploitation of the sea-bed or its subsoil or a modification of the sea-bed profile; (h) the regulation or prohibition of any activity involving a modification of the profile of the soil that could affect watersheds, denudation and other forms of degradation of watersheds, or the exploration or exploitation of the subsoil of the land part of a marine protected area; (i) the regulation of any archaeological activity and of the removal or damage of any object which may be considered as an archaeological object; (j) the regulation or prohibition of trade in, and import and export of threatened or endangered species of fauna or their parts, products, or eggs, and of threatened or endangered species of flora or their parts or products, and archaeological objects that originate in protected areas; (k) the regulation or prohibition of industrial activities and of other activities which are not compatible with the uses that have been envisaged for the area by national measures and/or environmental impact assessments pursuant to Article 13; (l) the regulation of tourist and recreational activities that might endanger the ecosystems of protected areas or the survival of threatened or endangered species of flora and fauna; and (m) any other measure aimed at conserving, protecting or restoring natural processes, ecosystems or populations for which the protected areas were established. The establishment of buffer zones is permitted under the paipa Protocol but there is no requirement that protection measures in such zones be any less stringent than those within the protected areas themselves.44 As with ­other regional seas protocols containing provision for buffer zones, there is no ­particular radius prescribed for such zones. Unlike some of the other regional seas protected areas protocols, the Paipa Protocol does not explicitly provide that the establishment of protected areas should be in conformity with international law. Under Articles iv and x of the Paipa Protocol, the Contracting Parties must develop common criteria for the establishment of protected areas and cooperate in their management and conservation but, unlike the spaw 44

Ibid., Art. vi.

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Protocol, the Paipa Protocol does not make explicit provision for cooperation between the Contracting Parties and non-parties where protected areas are contiguous to the limits of another State’s jurisdiction. A regional network of marine and coastal areas was approved by the Lima Convention Contracting Parties in 1992 and an Ad Hoc Group of Experts on Marine and Coastal Protected Areas has met periodically since 1995 to discuss progress in implementing the Paipa Protocol particularly as it relates to the Jakarta Mandate on Marine and Coastal Biodiversity under the cbd.45 The ­marine protected areas established under the Paipa Protocol have all been within national jurisdiction.46 The South–East Pacific Action Plan (cpps) has forged strong links with other global and regional organisations dealing with marine environmental protection in its own region and beyond. In 2001, members of the cpps signed a memorandum of understanding with sprep to ­cooperate in the protection of a more extensive area of the Pacific.47 cpps and sprep agreed to cooperate in multiple areas including the research and monitoring of marine pollution, integrated coastal zone management, c­ oastal and marine protected areas, climate change and biodiversity and natural r­ esource conservation.48 cpps has also signed a memorandum of understanding with the cbd Secretariat to promote and facilitate the regional implementation of the Jakarta Mandate on Marine and Coastal Biodiversity within the South– East Pacific region.49 cpps has links with sectoral organisations in the region including the Inter American Tropical Tuna Commission (iattc) and the Eastern Pacific Ocean Tuna Fishing Agreement.50 This network of extra regional, global and cross-sectoral connections places the cpps and Lima Convention Parties in a strong position for future collaboration on the protection of marine areas beyond national jurisdiction.

45

The Jakarta Mandate on Marine and Coastal Biodiversity (https://www.cbd.int/doc /publications/jm-brochure-en.pdf) is a global consensus on the importance of marine and coastal biological diversity. It is part of the Ministerial Statement at the Conference of the Parties (cop) meeting in Jakarta in 1995 on the implementation of the Convention of Biological Diversity. The work programme was adopted at the cop meeting in ­Bratislava in 1998; unep, South East Pacific Region, Regional Profile, www.unep.ch /regionalseas/pubs/profiles/sep.docpara 2.5.3. 46 unep above note 45 para 2.5.3. 47 Ibid., para 1.5. 48 Ibid. 49 Ibid. 50 Ibid.

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Western and Central Pacific Ocean Fisheries Commission (wcpfc) The first comprehensive conservation and management regime for highly ­migratory fish stocks, such as tuna, in waters beyond national jurisdiction in the Pacific Ocean came into being with the entry into force of the 2000 ­Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (wcpfc Convention) on 19  June 2004.51 The  region covered by the wcpfc Convention is estimated to contain 60% of the world’s tuna stocks.52 The objective in Article 2 of the Convention is to ensure, through effective management, the long term conservation and sustainable use of highly migratory fish stocks in the Western and Central Pacific Ocean in accordance with the losc and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (un Fish Stocks Agreement).53 The area of competence of the wcpfc includes a large area of high seas lying outside and between the 200 nautical mile exclusive economic zones of its Parties and its regulatory competence extends to all fish stocks of the species listed in Annex i of the losc.54 The wcpfc is empowered to adopt principles and measures for conservation and management of the highly migratory fish stocks in its area of competence which reflect the key environmental protection principles in the un Fish Stocks Agreement. These include adoption of measures based on the best scientific evidence available to ensure the long term sustainability of the ­highly migratory fish stocks in the Convention Area and the promotion of their optimum utilisation.55 The wcpfc must apply the precautionary principle in accordance with Annex ii of the un Fish Stocks Agreement, determine 51 52

53

54 55

2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 40(2) ilm 277 (wcpfc Convention). Transform Aqorau, “Tuna Fisheries Management in the Western and Central Pacific Ocean: A Critical Analysis of the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean and its Implications for the Pacific Island States,” The International Journal of Marine and Coastal Law 16 (2001): 382. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, opened for signature 4 August 1995 (entered into force 11 December 2001) (un Fish Stocks Agreement) 2167 unts 3. wcpfc Convention, Art.3. Ibid., Art. 5(a) and (b).

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the impact of fishing activities on non-target and associated or d­ ependent ­species and their environment and adopt plans, where necessary, to ensure the ­conservation of species and protect habitats of special concern.56 The conservation measures to be taken by the Commission also i­nclude those which protect biodiversity in the marine environment and which assess the impact of fishing activities on other species belonging to the same ecosystem.57 ­Decisions on conservation and management measures are to be taken by consensus but if consensus fails, decisions on matters of substance are to be taken by a three quarters majority of the members present.58 Decisions ­become binding on parties 60 days after their notification but members voting against the decision or absent may within 30 days of their adoption seek a review of the decision.59 Aqorau comments that the idea of a review process is new to regional fisheries management organisations (rfmos) and is designed to overcome the opting out clauses which are common in many rfmo conventions and which have the potential to sabotage their conservation and management efforts.60 Under Article 24 of the wcpfc Convention, flag States must ensure that their fishing vessels do not engage in unauthorised fishing for highly migratory fish stocks beyond national jurisdiction and that as flag States they are able to effectively exercise their responsibilities for fishing vessels operating under their flag.61 Flag States must maintain a record of fishing vessels authorised to fish beyond national jurisdiction and require such flag vessels to use real time satellite position fixing transmitters so that they can participate in the vessel monitoring system established by the Commission.62 The Commission has established measures for Contracting Parties to board and inspect each other’s fishing vessels on the high seas in accordance with the un Fish Stocks Agreement model.63 There is also provision for Contracting Parties to exchange ­information on non-contracting parties’ activities in the Convention Area and for taking action to deter non-contracting parties from fishing in the Convention Area.64 56 Ibid., Arts. 5(c) and 6. 57 Ibid., Art. 5(f) and (d). 58 Ibid., Art.10(4). 59 Ibid. 60 Aqorau, “Tuna Fisheries Management in the Western and Central Pacific Ocean,” 391. 61 wcpfc Convention, Art. 24(1) and (2). 62 Ibid., Art. 24(4) and (8). 63 Ibid., Art. 26. 64 Ibid., Art. 4(10) and (11).

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South Pacific Regional Fisheries Management Organization The Convention on the Conservation and Management of High Seas ­Fisheries Resources in the South Pacific Ocean (sprfmo Convention) entered into force on 24 August 2012 and applies to the high seas of the South Pacific, covering about a fourth of the Earth’s high seas areas.65 It has 14 States Parties including the European Union.66 The objective of the Convention is, through the application of the precautionary approach and an ecosystem approach to fisheries management, to ensure the long-term conservation and sustainable use of fishery resources and, in so doing, to safeguard the marine ecosystems in which these resources occur.67 The main commercial resources managed by the sprfmo are Jack mackerel and jumbo flying squid in the South-West ­Pacific and, to a lesser extent, deep-sea species associated with seamounts in the South–East Pacific. sprfmo is empowered to adopt principles and measures for conservation and management of all marine living resources in its area of competence apart from highly migratory species, sedentary species, marine mammals, reptiles, birds, anadromous and catadromous species.68 In developing its conservation and management measures, it must apply key environmental protection principles including the precautionary approach and the ecosystem approach. Although marine biodiversity is not specifically mentioned other than in the preamble of the sprfmo Convention, the Convention specifies in Article 3(1)(a)(vii ) that marine ecosystems shall be protected, in particular those ecosystems which have long recovery times following disturbance.69

65 2009 Convention on the Conservation of High Seas Fisheries Resources in the South ­Pacific Ocean opened for signature 14 November 2009 (entered into force 24 August 2012) (­s prfmo Convention) https://www.sprfmo.int/assets/Basic-Documents/Convention -web.pdf. 66 The sprfmo Convention has 14 States Parties—Australia, Peoples Republic of China, ­Republic of Cuba, European Union, Republic of Korea, Republic of Peru, Chinese Taipei, Republic of Chile, Cook Islands, Republic of Ecuador, Kingdom of Denmark in respect of the Faroe Islands, New Zealand, Russian Federation, Republic of Vanuatu. Cooperating non-Contracting Parties are Republic of Colombia, Republic of Liberia, Republic of Panama, and United States of America. 67 sprfmo Convention, Art. 2. 68 sprfmo Convention, Art 3. 69 Yoshinobu Takei, Filling Regulatory Gaps in High Seas Fisheries. Discrete High Seas Fish Stocks, Deep Sea Fisheries and Vulnerable Marine Ecosystems (Leiden: Martinus Nijhoff Publishers, 2013) 221.

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unga, cbd and fao Resolutions in the Pacific Another impetus for conservation and sustainable use of marine ­biodiversity in the Pacific has been resolutions and decisions of global bodies such as the United Nations General Assembly (unga), the Convention on Biological ­Diversity (cbd) and the Food and Agricultural Organization (fao). On the basis of growing concern about the adverse impacts of high seas bottom fishing on vulnerable marine ecosystems, the unga in its 2006 Resolution 61/105 called upon States… “…to take action immediately, individually and through regional fisheries organizations and arrangements, and consistent with the precautionary approach and ecosystem approaches, to sustainably manage fish stocks and protect vulnerable marine ecosystems (vmes), including seamounts, hydrothermal vents and cold water corals, from destructive fishing practices, recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain.”70 Under the resolution, Member States and rfmos were required to manage fisheries to prevent significant adverse impacts to vmes. To assist States in implementing the resolution, the fao produced a set of International Guidelines for the Management of Deep Sea Fisheries in the High Seas (The Deep Sea Fisheries Guidelines).71 The principal objective of the Guidelines is to ensure the long term conservation and sustainable use of deep sea resources and to prevent significant adverse impacts to vmes from activities related to such ­exploitation.72 This is achieved through a requirement to conduct assessments to establish if deep sea fishing activities are likely to cause significant adverse impacts in a given area;73 and to adopt management measures to prevent such impacts74 via measures such as fisheries closures in areas around vmes. As a last resort, encounter protocols require fishing vessels to move a minimum distance from a location where species indicating the presence of a vme are captured by their gear.75 70 71 72 73 74 75

unga, un Doc A/RES/61/105, 6 March 2007, . fao, International Guidelines for the Management of Deep Sea Fisheries in the High Seas, http://www.fao.org/docrep/011/i0816t/i0816t00.htm. Ibid., para 11. Ibid., paras 47–53. Ibid., paras 42–46. Ibid., paras 63 and 67–68.

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The cbd has also been active in aligning and harmonizing fisheries and biodiversity conservation objectives at the regional level through the provision of expert advice on describing marine areas of ecological or biological significance (ebsas) and in addressing biodiversity concerns in sustainable fisheries. In 2008, the Ninth Meeting of the Conference of Parties (cop 9) of the cbd adopted the following scientific criteria for identifying “ecologically or biological significant areas in need of protection in open ocean waters and deep sea habitats”: • Uniqueness/rarity; • Special importance for life history stages of species; • Importance for threatened, endangered or declining species and/or habitats; • Vulnerability, fragility, sensitivity or slow recovery; • Biological productivity; • Biological diversity; and • Naturalness76 This decision also provided scientific guidance for selecting areas to establish a representative network of marine protected areas including in open ocean waters and deep sea habitats.77 The 10th cbd cop in 2010 agreed on a process of regional workshops for the description of ebsas.78 The workshop ­outcomes are meant to inform relevant regional and global organizations. The work is premised on recognition that the application of the ebsa criteria is a scientific and technical exercise, that areas found to meet the criteria may require enhanced conservation and management measures, and that this can be achieved through a variety of means, including marine protected areas and impact assessments, and that the identification of ebsas and the selection of conservation and management measures is a matter for States and competent intergovernmental organizations, in accordance with international law, ­including unclos.79 Regional workshops on describing ebsas have been held for the Eastern Tropical and Temperate Pacific, the Western South Pacific and the North Pacific. In all 68 ebsas have been described for the Pacific.80 76 77 78 79 80

cbd, cop Decision IX/20, UNEP/CBD/COP/DEC/IX/20, 9 October 2008, Annex i, http:// www.cbd.int/doc/decisions/cop-09/cop-09-dec-20-en.pdf. Ibid., Annex ii. cbd, cop Decision X/29, UNEP/CBD/COP?DEC/X/29, 29 October 2010, para 36, 2010, http://www.cbd.int/doc/decisions/cop-10/cop-10-dec-29-en.pdf. Ibid., para 26. cbd, Ecologically and Biologically Significant Areas, https://www.cbd.int/ebsa/ebsas.

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At the cbd cop 11 in Hyderabad in October 2012, it was agreed that the ­areas ­described as ebsas by these workshops and processes, after review and ­endorsement by cbd sbstta, should be sent to the un and relevant international organizations. In this manner the information on ebsas can provide valuable information to rfmos and their scientific commissions in the setting of priorities for conservation and management measures for biodiversity conservation purposes.

Initial Pacific Views on Potential Elements of a New International Agreement to Conserve and Sustainably Use Biodiversity in abnj

The Pacific Ocean Alliance was established at the Third International Conference on Small Island Developing States in Samoa in September 2014, with its own charter, to bring about strengthened coordination and collaboration across and between stakeholders with an interest in how the Pacific Ocean is conserved and managed.81 Its first meeting held in Suva from 25 to 27 May 2015 focused on marine biodiversity in areas beyond national jurisdiction. This meeting disclosed a general desire for the Pacific to take a leading role in the development of the new bbnj agreement with some provisos. Significance was attached to ensuring a holistic approach to ocean issues in the ­Pacific and ­ensuring that the outcomes of negotiations for the new agreement accommodate the specific needs of Pacific. Views were also expressed that the agreement should be compatible with existing conservation and management ­initiatives in the Pacific such as Pacific Oceanscape and that it should empower Pacific people. In a meeting of the Pacific Ocean Alliance Technical Working Group, following the Pacific Ocean Alliance meeting on 28 May 2015, participants ­expressed more detailed views on the proposed elements of a new agreement to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction.82 Area Based Management Participants in the Pacific Ocean Alliance Technical Working Group expressed a range of views on area based management tools in abnj in particular the designation of marine protected areas. It was felt that the new agreement 81 82

un Conference on Small Island Developing States, “Pacific Ocean Alliance” http://www .sids2014.org/index.php?page=view&type=1006&nr=2582&menu=1507. High Seas Alliance, “Pacific Ocean Alliance Meeting” http://highseasalliance.org/content /pacific-ocean-alliance-meeting-suva-fiji.

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should specify clear guidelines and procedures for the establishment of high seas mpas. The principles for design and management of mpas should reflect comprehensiveness, adequacy, representativeness, inclusiveness and precaution. It was important that there be inclusion of relevant stakeholders in the designation and implementation processes for mpas and genuine and durable partnerships be established allowing multiple uses in mpas and an ecosystem based approach to management. Indigenous peoples should be part of the ­designation and management process for high seas mpas and local communities should benefit. The link between high seas mpas and cbd ebsas should be clarified and a specific approach for high seas enclaves or pockets surrounded by eezs should be defined. The significant challenges involved in monitoring and enforcing conservation and management measures over large areas of abnj were noted.83 Environmental Impact Assessment Participants in the Pacific Ocean Alliance Technical Working Group favoured subjecting all activities in abnj to environmental impact assessments (eias). They noted the need for capacity building in the Pacific for both eias and strategic environmental assessments (seas). The importance of standardising data used in eias and making scientific data available for eias was highlighted. It was also considered to be vital to find ways to identify cumulative impacts between sectors and to increase transparency around eias and seas.84 Marine Genetic Resources The participants in the Working Group emphasized that the benefits to be derived from the development of marine genetic resources (mgrs) are both monetary and non-monetary. It was considered that this factor is not well ­understood in the debate on access and distribution of the benefits from mgrs in abnj. Tracing the place of origin and tracking the use of mgrs are important in realising the benefits from mgrs. It is critical to bring the marine ­scientific community as key actors into the debate on access to and distribution of the benefits of mgrs in abnj. Queries were expressed on the likely mechanisms for regulating access to mgrs. Would access be regulated through permits, who would issue the permits, what criteria would be used to grant ­access and what type of access would be granted—in situ, ex situ or in silico? 83

84

High Seas Alliance, “Biodiversity Beyond National Jurisdiction. Technical Report for the Pacific Islands Region,” available at , para 4.2.2. Ibid., para 4.2.3.

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The participants recognised the very real challenges to developing the scientific research capacity and technology crucial to realising the non-monetary benefits from mgrs in abnj. It was considered critical to make use of existing tools and draw lessons from existing regimes applicable within national jurisdiction such as the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the cbd. A key challenge will be to achieve an access and benefit sharing regime for mgrs that facilitates research and development and that enables monetary benefits to be realised in developing countries.85 Capacity Building and Technology Transfer The Workshop participants viewed capacity building, scientific research and information as critical foundations for effective conservation and sustainable use of marine biodiversity in abnj. Financial and technical support would be essential for the national needs and priorities of Pacific states in building ­capacity to conserve and sustainably use biodiversity in abnj. It was suggested that efforts at local, national and regional levels could be scaled up through regional centres of excellence on abnj. Through such centres, education and training opportunities in abnj topics including area based management, eias and mgrs could be created. Making capacity sustainable over the long term rather than through ad hoc programmes was considered to be an important element. Practical experience and equitable participation were critical factors in capacity development programmes. abnj capacity development and technology transfer initiatives could draw on or be grafted onto existing capacity building programmes in relevant areas.86 Next Steps for the Pacific Approach to bbnj The Pacific Ocean Alliance will serve as a vehicle for providing expert advice on bbnj to Pacific negotiators and decision makers. Various initiatives have been discussed to support the negotiation and implementation of a new agreement on conservation and sustainable use of marine biodiversity in abnj. These include: • A matrix of options for the package deal • A map of regional activities in Pacific abnj for feature such as deep sea ­mining, fishing ebsas and vmes

85 86

Ibid., para 4.2.1. Ibid., para 4.2.4.

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• Development of a regional conservation and management framework for Pacific abnj as an interim measure • Establishing mechanisms to coordinate and share information on abnj ­issues and activities • An options paper for circulation to Pacific Ocean Alliance participants87

Conclusion

As the largest oceanic region in the world, the Pacific and its constituent States and inhabitants have an enormous stake in any new agreement to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction. The Pacific as a region has been at the forefront of adopting and implementing holistic and integrated approaches to the conservation and management of ocean resources and marine biodiversity. At first glance, the mix of multilateral treaties, policy initiatives and the regional institutions of the Pacific are ideally suited to implement a new agreement to conserve and sustainably use ­marine biodiversity in areas beyond national jurisdiction. However, the human and financial resources to achieve conservation and sustainable use of marine ­biodiversity both within and beyond national jurisdiction are quite limited. Successful implementation of a new agreement will depend to a large extent on a significant injection of financial and human resources and the capacity building efforts of extra regional States. The commitment of future States ­Parties to the objectives of a new bbnj agreement will face one of its most difficult challenges in the vast ocean tracts of the Pacific. 87

Ibid., para 5.

chapter 14

Governance of the Arctic Ocean beyond National Jurisdiction: Cooperative Currents, Restless Sea David L. VanderZwaag

Introduction

The media has tended to focus public attention towards extended continental shelf claims in the Arctic.1 The planting of a Russian flag on the North Pole in August 2007 sparked a perception that the five Arctic Ocean coastal states— Canada, Denmark/Greenland, Norway, the Russian Federation and usa— would be in a mad scramble to claim and perhaps eventually exploit mineral resources beyond their 200 nautical mile zones in the Arctic.2 The media and scholarly hype was further fostered by Canada’s decision in December 2013 to not make a full Canadian submission on Arctic claims to the Commission on the Limits of the Continental Shelf in order to allow additional surveying work to be carried out for a possible Canadian North Pole claim.3 This chapter, through a two-part format, focuses on a lesser emphasized challenge, that is, governance of the large high seas “donut hole” in the central Arctic Ocean (cao) beyond the 200 nautical mile zones of the five coastal states. Global and regional cooperative agreements and initiatives relevant to the cao are first examined. Global cooperative currents include: the law of the * Professor of Law and the Canada Research Chair (Tier 1) in Ocean Law and Governance at the Marine and Environmental Law Institute, Dalhousie University, Halifax, Canada. This chapter seeks to be accurate as of January 15, 2016. The research support of the Social Sciences and Humanities Research Council of Canada is gratefully acknowledged. 1 For reviews of the claims, see Øystein Jensen, “The Seaward Limits of the Continental Shelf beyond 200 Nautical Miles in the Arctic Ocean: Legal Framework and State Practice,” in Leif Christian Jensen and Geir Hønneland, eds., Handbook of the Politics of the Arctic (Cheltenham, uk: Edward Elgar, 2015), Chap. 11; and Ted L. McDorman, “The International Legal Regime of the Continental Shelf with Special Reference to the Polar Regions,” in Natalia Loukacheva, ed., Polar Law Textbook ii (Copenhagen: Nordic Council of Ministers, 2013), Chap. 5. 2 See e.g., Scott G. Borgerson, “Arctic Meltdown,” Foreign Affairs 87(2) (2008): 63. 3 See Ted L. McDorman and Clive Schofield, “Maritime Limits and Boundaries in the Arctic Ocean: Agreements and Disputes” in Jensen and Hønneland, “Handbook of the Politics,” 207–226, 219.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_016

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sea as the overarching framework; various multilateral environmental agreements (meas); conclusion of a new Polar Shipping Code in 2015; and application of the World-Wide Navigational Warning Service to areas of the cao. The three regional cooperative eddies include: Arctic Council efforts related to cao governance; initiatives by the five Arctic coastal states (Arctic 5) to address possible future commercial fisheries in the cao; and regional agreements for the North–East Atlantic covering a section of the Arctic Ocean beyond national jurisdiction. The second part of the chapter highlights the “restless sea” realities with four main uncertainties hovering over future governance arrangements for the cao. Those uncertainties include: questions surrounding Arctic 5 led efforts to impose interim measures to prevent illegal fishing in the cao; unclear future steps within the International Maritime Organization (imo) to address shipping in the cao; the unsettled future for Arctic marine cooperation; and foggy horizons under the un Law of the Sea Convention4 for a legally binding instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.

Cooperative Currents

Global Streams Law of the Sea as the Mainstream While the idea that the five Arctic coastal states might seek to develop a sui generis legal framework for the region has been raised on the academic front,5 representatives from the Arctic 5 at a meeting in Ilulissat, Greenland in May 2008 indicated that the law of the sea provides a solid foundation for responsible management by the Arctic 5 and other users of the Arctic Ocean.6 Under a law of the sea approach, various freedoms are open to all states including the freedoms of navigation and fishing on the high seas.7 Flag state jurisdiction prevails as the principal jurisdiction for controlling activities in the cao.8 4 December 10, 1982, 1833 u.n.t.s. 3 [hereinafter losc]. 5 For the idea that the five Arctic Ocean littoral states might divide the cao into national sectors based on “Arctic exceptionalism,” see Douglas M. Johnston, “The Future of the Arctic Ocean: Competing Domains in International Public Policy,” Ocean Yearbook 17 (2003): 596. 6 Ilulissat Declaration, May 28, 2008, available at (accessed January 1, 2016). 7 losc, Art. 87. 8 losc, Art. 92.

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Various responsibilities would fall upon states to control operations of their vessels and nationals on the high seas, such as the duty to conserve fish stocks,9 to cooperate with other states in seeking to manage jointly exploited fish stocks,10 and to protect and preserve the marine environment.11 Mineral exploration and exploitation of the deep seabed would come under the jurisdiction of the International Seabed Authority.12 The 1995 un Agreement on Straddling and Highly Migratory Fish Stocks13 establishes further obligations potentially relevant to Arctic high seas fisheries. The Agreement calls for application of precautionary and ecosystem approaches.14 The Agreement also urges the establishment of a sub-regional or regional fisheries management organization or arrangement where no such organization/arrangement exists for a particular straddling or highly migratory fish stock.15 Multilateral Environmental Agreements Various meas are also relevant to the cao.16 For example, the Stockholm Convention on Persistent Organic Pollutants (pops)17 seeks to control the long range transport of pops into the Arctic and has facilitated the listing of 28 chemicals for elimination or restriction.18 The Minamata Convention on Mercury,19 adopted in 2013, provides a framework for addressing the long-range transport of mercury into the Arctic through various measures. They include: the phase-out of mercury mining; the phase-out of manufacturing and trading 9 10 11 12 13

14 15 16

17 18

19

losc, Art. 117. losc, Art. 118. losc, Art. 192. losc, Art. 156. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, August 4, 1995, 2167 u.n.t.s. 3. Ibid., Art. 5. Ibid., Art. 8(5). For a general review, see Timo Koivurova, “Environmental Protection in the Arctic and Antarctic,” in Natalie Loukacheva ed., Polar Law Textbook (Copenhagen: Nordic Council of Ministers, 2010), Chap. 2. May 22, 2001, 2256 u.n.t.s. 119. For a further review, see Emily Mason and David L. VanderZwaag, “Controlling the Longrange Transport of Persistent Organic Pollutants (pops) into the Arctic: Progressions and Political Pairings,” in Jensen and Hønneland, “Handbook of the Politics,” Chap. 17. October 10, 2013, available at (accessed January 1, 2018).

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of many mercury containing products by 2020; and the control and reduction of mercury air emissions from key point sources.20 The Convention on Biological Diversity (cbd)21 is also relevant in various ways. For example, the cbd’s Strategic Plan for Biodiversity 2011–202022 as one its 20 Aichi Biodiversity Targets, calls for the conservation by 2020 of 10 per cent of coastal and marine areas through “effectively and equitably managed, ecologically representative and well-connected systems of protected areas.”23 In 2012, the cbd Secretariat issued revised guidelines for consideration of biodiversity in environmental impact assessments and strategic environmental impact assessments with the guidelines also applying to marine areas beyond natural jurisdiction.24 In 2014, the cbd Secretariat, in collaboration with the Arctic Council Working Group on the Conservation of Arctic Flora and Fauna (caff) and with financial support from the Government of Finland, convened the Arctic Regional Workshop to Facilitate Description of Ecologically or Biologically Significant Marine Areas (ebsas).25 The Workshop identified two ebsas in the central Arctic Ocean where future conservation and management measures might be considered. The two areas are the dynamic marginal ice zone having seasonal open water periods26 and the multi-year ice and associated marine habitats of the cao.27 The Convention on International Trade in Endangered Species (cites)28 may also be relevant by providing a legal umbrella for controlling trade of listed wildlife species29 taken not only within but also beyond areas of national jurisdiction. cites could serve as a control mechanism should listed species, 20

21 22 23 24

25 26 27 28 29

For a detailed review, see Henrik Hallgrim Eriksen and Franz Xaver Perrez, “The Minamata Convention: A Comprehensive Response to a Global Problem,” Review of European Community & International Environmental Law 23(2) (2014): 195. June 5, 1992, 1760 u.n.t.s. 79. CoP 10 Decision X/2, Strategic Plan for Biodiversity 2011–2020. Ibid., Target 11. cbd, Marine and Coastal Biodiversity: Revised Voluntary Guidelines for the Consideration of Biodiversity in Environmental Impact Assessments and Strategic Environmental Assessments in Marine and Coastal Areas, UNEP/CBD/COP/11/23 (21 August 2012). cbd, Report of the Arctic Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine Areas, UNEP/CBD/EBSA/WS/2014/1/5 (20 May 2014). Ibid., 52–67. Ibid., 68–78. March 3, 1973, 993 u.n.t.s. 72. See Nigel Bankes and Elizabeth Whitsitt, “Arctic Marine Mammals in International Environmental Law and Trade Law,” in Jensen and Hønneland, “Handbook of the Politics,” 185–206.

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such as the polar bear,30 be taken from the Arctic high seas. For any specimen of a species listed on either Appendix i or ii that is introduced from the high seas, the Convention requires the prior grant of a certificate from the Management Authority of the state of introduction. The Scientific Authority of the state of introduction must advise that the introduction will not be detrimental to the survival of the species.31 A cites resolution has clarified the term “state of introduction.”32 Whenever a species included in Appendix i or ii is taken in a marine area beyond national jurisdiction by a vessel registered in one state and is transported into that same state, the vessel registering state is considered the state of introduction and would be responsible for granting an introduction-from-the-sea certificate. If the vessel harvesting specimens delivers them to a country other than the country to which it is flagged, the transaction will be treated as an export and require the issuance of an export permit by the country to which the harvesting vessel is flagged.33 Polar Shipping Code Concluded in 2015, the Polar Shipping Code34 after its entry into force January 1, 2017 will be applicable not only to some national waters in the Arctic but also the entire central Arctic Ocean.35 The Code will establish global standards for ship design, construction, equipment and operational requirements in support of maritime safety in the Arctic.36 The Code will also raise the level of global pollution discharge standards for Arctic shipping.37 Any discharge into 30 31 32 33

34

35 36

37

The polar bear is listed on cites Appendix ii. cites, Appendices, available at (accessed January 1, 2016). cites, Arts. iii (5), iv(6). cites Resolution Conf. 14.6 (Rev. CoP 16), Introduction from the Sea (2007). u.s. Fish & Wildlife Service, cites: Introduction from the Sea Factsheet, available at

(accessed 12 January 2016). International Code for Ships Operating in Polar Waters, adopted by the Marine Environment Protection Committee on May 15, 2015, Res. mepc. 264(68). mepc, Report of the Marine Environment Protection Committee on its Sixty-Eighth Session, mepc 68/21/Add. 1 (5 June 2015), Annex 10 [hereinafter Polar Code]. Figure 2 of the Code depicts the extent of Arctic waters application. For a detailed review, see David Leary, “The imo Mandatory International Code of Safety for Ships: Charting a Sustainable Course for Shipping in the Polar Regions?” The Yearbook of Polar Law 7 (2015): 426. For a review of global pollution standards, see David L. VanderZwaag, “Law of the Sea and Governance of Shipping in the Arctic and Antarctic,” in Loukacheva, “Polar Law Textbook,” Chap. 3.

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the sea of oil or oily mixtures will be prohibited38 along with the discharge of noxious liquid substances.39 Garbage discharges will be limited to comminuted or ground food wastes and cargo residues not classified as harmful to the marine environment, and permitted discharges must not be less than 12 nautical miles from the nearest land, ice-shelf or fast ice.40 New sewage discharge standards will also apply including a sewage treatment system requirement for newly constructed passenger ships and those ships designed to operate in at least medium or thin first-year ice.41 World-Wide Navigational Warning Service The World-Wide Navigational Warning Service, jointly established by the International Hydrographic Organization and the imo, provides for the giving of navigational and meteorological warnings to ships around the globe.42 To organize the collecting and giving of warnings, the Service has divided the globe in 21 geographical regions called navareas, each denoted with a ­Roman numeral and each having a responsible national coordinator.43 In 2007, five new ­n avareas were created to cover the Arctic including areas of the central A ­ rctic Ocean.44 The three national coordinators in the Arctic—Canada, ­Norway and the Russian Federation—have put in place their own high frequency (hf) systems for navigational warnings above 76oN to supplement the geospatial satellite transmissions available for more southerly waters in the Arctic.45 Regional Cooperative Eddies Arctic Council Efforts Two of the regional agreements negotiated by Arctic Council task forces apply not only to national zones but also to the cao. The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic,46 adopted in 38 39 40 41 42

Polar Code, Part II-A, para. 1.1.1. Ibid., para. 2.1.1. Ibid., para. 5.2.1. Ibid., para. 4.2.2. imo, Expansion of World-Wide Navigational Warning System into Arctic Waters Marked by imo, wmo and iho Chiefs, Press Briefing (March 8, 2011). 43 See Fisheries and Oceans Canada, Evaluation of the navarea Initiative, Final Report (January 23, 2015), Figure 1: The World navareas. 44 Using navarea Warnings and imo Circulars to Alert Mariners to Drifting Ice in the Arctic, Submission by the usa to the Arctic Council’s pame Workshop (2015), PAME(I)/15/4.6/a/3rd bullet/AMSA II(D)/ submission by usa. 45 Ibid., 2–3. 46 May 12, 2011, available at (accessed January 7, 2016).

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May 2011 at the Nuuk Ministerial meeting, delineates areas of national search and rescue (sar) responsibilities in the Arctic, including areas encompassing the high seas. The Agreement calls for further cooperation in joint exercises and training and provides a framework for expedited national responses to sar incidents.47 The Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic,48 adopted in May 2013, pledges Parties to maintain effective national oil pollution preparedness and response systems, calls for cooperation in response operations and promotes joint exercise and training. The Agreement includes responsibilities applicable to the high seas. Each Party pledges to undertake appropriate monitoring activities to identify pollution incidents in areas under its jurisdiction and to the extent feasible, in areas beyond the jurisdiction of any state.49 When a Party receives information on an oil pollution incident in the high seas, there is a duty to notify other interested states.50 Requests for assistance from other states in response operations may also apply to areas beyond national jurisdiction.51 The Arctic Council’s Arctic Marine Shipping Assessment 2009 Report (amsa)52 set the stage for further considering the need for international measures to address shipping in the cao. Recommendation ii(C) of the Report called on Arctic states to identify areas of heightened ecological and cultural significance which might justify protective measures from Arctic shipping impacts.53 In 2013, three of the Council’s working groups collaborated in publishing a report identifying Arctic marine areas of heightened significance and the report identified the central Arctic Ocean Large Marine Ecosystem as one of the areas of heightened ecological significance.54 In response to Recommendation ii(D) of amsa, which called on Arctic states to explore the need for internationally designated areas of the Arctic Ocean

47

48 49 50 51 52 53 54

For critiques, see Anton Vasiliev, “The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic—A New Chapter in Polar Law,” in Loukacheva, “Polar Law Textbook ii,” Chap. 3; Corine Wood-Donnelly, “The Arctic Search and Rescue Agreement: Text, Framing and Logics” The Yearbook of Polar Law 5 (2013): 299. May 15, 2013, available at (accessed January 7, 2016). Ibid., Art. 7(1). Ibid., Art. 6. Ibid., Art. 3(2), Art. 8. Arctic Council, Arctic Marine Shipping Assessment 2009 Report (April 2009, second printing) [hereinafter amsa]. Ibid., 7. AMAP/CAFF/SDWG, Identification of Arctic Marine Areas of Heightened Ecological and Cultural Significance: Arctic Marine Shipping Assessment (amsa) IIc.

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for special environmental protection,55 the Protection of the Arctic Marine Environment (pame) Working Group undertook a project, led by Norway, to study possible future options to protect the Arctic high seas from international shipping. The project report, issued in 2014, identified three major options that could be pursued at the imo.56 Arctic states could pursue: a particularly sensitive sea area (pssa) designation57 for the entire high seas area with a vessel traffic system (vts),58 a ship reporting system (srs)59 and a dynamic area to be avoided (atba);60 a pssa for the entire high seas area with just a vts and srs; or a pssa for one or more core ice sea areas within the cao as areas to be avoided. Arctic 5 Initiatives Since 2010 representatives of the Arctic 5 have met periodically to discuss scientific and policy issues requiring possible future commercial fisheries in the cao.61 At a meeting in Washington, d.c., April 29-May 1, 2013, participants made clear that the five coastal states wished to take the lead in setting the future management agenda.62 While agreeing that commercial fishing on the high seas in the cao is unlikely to occur in the near future and that there is no need to establish any additional regional fisheries management organization 55 56 57

58 59

60 61

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amsa, 7. Det Norske Veritas, Specially Designated Marine Areas in the Arctic High Seas (2014), 56–58. imo Res. A.720(17) Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas (1991); imo Res. A.885(21) on “Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures” as amended by imo Res. A.720(17) “Amendments to the Guidelines” as amended by imo Res. A.982(24) on Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (2005), revoking Annex ii of Res. A.720(17). See The International Convention for the Safety of Life at Sea, 1974 (solas), Chapter v, Regulation 12, 1. 11. 1974, entry into force 25 May 1980, 1184 unts 18961. Regulation 11, solas, Id., and Guidelines and Criteria for Ship Reporting Systems, adopted Dec. 9 1994, imo resolution MSC.43(64), as amended by resolutions MSC.111(73) and MSC.189(79). General Provisions on Ships’ Routeing, adopted Nov. 20, 1985, imo Resolution A.572(14), as amended. For further reviews, see Njord Wegge, “The Emerging Politics of the Arctic Ocean: Future Management of Living Marine Resources,” Marine Policy 51 (2015): 331; Min Pan and Henry P. Huntington, “A Precautionary Approach to Fisheries in the Central Arctic Ocean: Policy, Science, and China,” Marine Policy 63 (2016): 153. Chairman’s Statement at Meeting on Future Arctic Fisheries (May 1, 2013), available at (accessed January 12, 2016).

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(rfmo) or rfmos for the area, representatives indicated it would be desirable to develop interim measures. Such interim measures should ensure commercial fishing on the high seas does not occur until one or more regional or subregional fisheries management organizations / arrangements are in place to minimize fishing in accord with modern international standards. The need to cooperatively strive in improving scientific undertaking of the cao was noted. The meeting recognized the need to engage Arctic residents and indigenous peoples in particular in future discussions and acknowledged that other states may have interests in future Arctic fisheries and, therefore, should be included in talks at some point in the future. At a further meeting in Nuuk, Greenland, February 24–26, 2014, representatives largely reconfirmed their previous observations and suggested further ways forward.63 Proposals included: holding a third scientific meeting no later than the end of 2015; developing a Ministerial Declaration on interim measures for signature or adoption by the Arctic 5 preferably in June 2014; and forging a broader process to involve other states in developing a set of interim measures with such a process to begin before the end of 2014. The Nuuk meeting indicated that a binding international agreement might be the final outcome. However, the Russian Federation’s annexation of Crimea and involvements in eastern Ukraine delayed the suggested timelines. A third scientific meeting on fish stocks in the cao was not held until April 2015 in Seattle, Washington.64 A Declaration concerning the Prevention of Unregulated High Seas Fishing in the cao was finally adopted in Oslo, Norway on July 16, 2015.65 Through the Declaration, the Arctic 5 agreed to various interim measures to address potential commercial fishing in the high seas of the cao. States agreed not to authorize fishing vessels to conduct fishing in the high seas until one or more regional or subregional fisheries management organizations/arrangements have established management measures. States also agreed to establish a joint scientific research program to promote ecosystem understandings and they further pledged to coordinate their monitoring, control and surveillance activities. 63 Chairman’s Statement, available at (accessed January 2, 2016). 64 See Final Report: Third Meeting of Scientific Experts on Fish Stocks in the Central Arctic Ocean (July 2015). 65 Available at (accessed January 12, 2016). For a further review, see Erik J. Molenaar, “The Oslo Declaration on High Seas Fishing in the Central Arctic Ocean,” Arctic Yearbook 2015 (2015): 426.

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The engagement of other states did not have to wait long. At the Global Leadership in the Arctic Conference (glacier), hosted by the u.s. State Department in Anchorage, Alaska in late August 2015, David Balton, Deputy Assistant Secretary for Oceans and Fisheries, announced u.s. plans to convene an initial meeting of the Arctic 5 and representatives from China, Japan, ­Iceland, Republic of Korea and the eu in Washington, d.c. in early December 2015.66 Delegations from the “Arctic 5 + 5” subsequently met December 1–3 to discuss their common interest in preventing unregulated commercial fishing in the high seas area of the cao.67 The meeting recognized the need for a precautionary approach and expressed an interest in strengthening international scientific collaboration regarding fish stocks in the Arctic high seas.68 The meeting discussed a number of possible approaches to prevent unregulated commercial fishing in the high seas of the cao. Those approaches included: the adoption of a broader non-binding Declaration; negotiation in the foreseeable future of an agreement or agreements to establish one or more additional regional fisheries management organizations or arrangements for the area; and negotiation of a binding international agreement of the kind proposed by the United States.69 The latter option would commit parties to: • Authorize their vessels to conduct commercial fishing in the high seas area only pursuant to one or more regional or subregional fisheries management organizations or arrangements that may be established; • Establish a joint program of scientific research; and • Ensure that any non-commercial fishing in the high seas area follows scientific advice and is well monitored.70 The meeting agreed on further ways forward. Norway’s offered to host a ­follow-up scientific meeting, and the United States proposed hosting a followup policy meeting.71 Further meetings subsequently followed. Policy discussions continued at meetings in April 19–21, 2016 (Washington, d.c.), July 6–8, 2016 (Iqaluit) and 66 67 68 69 70

71

Personal Communication with David Balton (September 29, 2015). Chairman’s Statement (December 3, 2015), available at (accessed January 1, 2016). Ibid., 1. Ibid., 1–2. Ibid., 2. Whether an actual rfmo should be established remains a key issue. See Andrew J. Norris and Patrick McKinley, “The Central Arctic-Ocean-Preventing Another Tragedy of the Commons”, Polar Record (2016), doi:10.1017/S003224741600067X. Chairman’s Statement (December 3, 2015), 2.

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November 29–December 1, 2016 (Torshavn, The Faroe Islands). Norway hosted a Fourth Meeting of Scientific Experts on Fish Stocks in the cao in Tromsø on September 26–28, 2016. Iceland agreed to host a further policy meeting in March 2017. Regional Agreements for the North–East Atlantic Two regional agreements for the North–East Atlantic extend their coverage to a sector of the cao high seas. The Convention for the Protection of the Marine Environment of the North–East Atlantic (ospar Convention)72 extends to a cao sector north of Greenland and Svalbard73 as does the Convention on Future Multilateral Cooperation in North–East Atlantic Fisheries.74 The North–East Atlantic Fisheries Commission (neafc) has adopted a number of recommendations applicable to the cao sector. A recommendation on vulnerable marine ecosystems (vmes) subjects future exploratory bottom fisheries to a notification and scientific assessment process.75 A recommendation on deep-sea sharks prohibits directed fishing for deep sea sharks effective January 1, 2013 to December 31, 2016.76 neafc has closed various vmes to bottom fishing but not in the cao sector.77

Restless Sea

Questions Surrounding the Interim Measures Process Various uncertainties hover over the Arctic 5 led process to develop further measures to prevent unregulated commercial fishing in the high seas portion 72

Convention for the Protection of the Marine Environment of the North-East Atlantic (the “ospar Convention”), September 22, 1992, 2354 u.n.t.s. 67, available at (accessed January 1, 2016). 73 ospar, The North-East Atlantic, available at (accessed January 7, 2016). 74 November 18, 1980, available at (accessed January 1, 2016). 75 Recommendation on the Protection of Vulnerable Marine Ecosystems in the neafc Regulatory Area, Rec. 19: 2014 as amended by Rec. 09: 2015, Art. 6. 76 Recommendation on Deep-Sea Sharks, Rec. 67: 2013. Through Rec. 10:2017, the prohibition has been extended to December 31, 2019. 77 See neafc, vmes and Closures Maps and Coordinates, available at (accessed January 1, 2016). For a further review of neafc’s role in managing cao fisheries, see Erik J. Molenaar, “International Regulation of Arctic Ocean Fisheries” in Myron H. Nordquist, John Norton Moore and Ronán Long, eds., Challenges of the Changing Arctic: Continental Shelf, Navigation and Fisheries (Leiden: Brill/Nijhoff, 2016), Chap. 19.

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of the cao. While the statement from the December 2015 meeting recognized the interests of Arctic residents, particularly Arctic indigenous peoples, in potential cao commercial fishing and expressed the intention to engage with them,78 the timing and means of engagements have not been fully clarified. How cooperation on maritime monitoring, control and surveillance will be put into practice remains unsettled. Issues such as decision-making rules and exploratory fishing measures have yet to be worked out. Whether a commercialization future should be considered at all is a further question. If a commercialization future is pursued, other looming issues are the criteria for determining whether a fishery should be opened and the principles for access.79 The development of a cooperative scientific research program for the cao has yet to fully fleshed out. The Third Meeting of Scientific Experts on Fish Stocks in the cao in April 2015 was successful in pulling together a Report on the Status and Gaps of Arctic Research and Monitoring,80 an Inventory of Research and Monitoring Programs81 and a Draft Framework for a Joint Program of Scientific Research and Monitoring for the cao.82 The Draft Framework proposed geographically focusing future research to the cao Large Marine Ecosystem and portions of adjacent Arctic lmes in international waters.83 The Framework raised key questions which should be answered by a future joint scientific program, such as: • Are there harvestable fish resources in the cao? • If so, can the resources be harvested sustainably with respect to both target fish stocks and dependent parts of the ecosystem? • What are the key ecological linkages between fish stocks of the cao and adjacent shelf systems?

78 79

80 81 82 83

“Chairman’s Statement (December 3, 2015)” 1. For a discussion of allocation principles and challenges, see Maria Cecilia Engler-Palma, “Allocation of Fishing Opportunities in Regional Fisheries Management Organizations: From Power to Law?” in Dawn A. Russell and David L. VanderZwaag, eds., Recasting Transboundary Fisheries Management Arrangements in Light of Sustainability Principles: Canadian and International Perspectives (Leiden: Martinus Nijhoff, 2010), Chap. 17. Available at (accessed January 1, 2016). Ibid. Ibid. Ibid., 1–2.

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• Over the next 20–30 years, what changes in fish populations, dependent species and the supporting ecosystems may occur in the cao and adjacent shelf ecosystems?84 In September 2016, the Fourth Meeting of Scientific Experts on Fish Stocks in the cao focused on finalizing a Joint Scientific Research and Monitoring Plan.85 The original draft framework for a joint scientific program was expanded upon and it was agreed the next main task will be to develop an implementation strategy for the Plan at a fifth scientific meeting in 2017.86 A major key challenge that has yet to be sorted out is how best to coordinate international scientific cooperation. A fragmented array of national, bilateral and regional scientific programs and initiatives exist relevant to Arctic fisheries.87 In addition, an Arctic Council task force has been mandated to negotiate a new regional agreement on scientific cooperation by the Council’s 2017 Ministerial meeting,88 and the implications of the agreement for CAO-related scientific research will have to be considered. Future Steps within the imo Arctic states have been clearly hesitant to take further action within the imo to protect the cao marine environmental from potential shipping impacts. The pame Working Group might be described as “stalled” in the wake of the 2014 Specially Designated Marine Areas in the Arctic High Seas Report.89 At the pame meeting in Whitehorse, Yukon in September 2014, pame member governments described further steps would be necessary before deciding to pursue further actions within the imo. Those steps included: • Developing a paper explaining the possibility for imo to designate a pssa located entirely on the seas; • Developing a paper investigating whether imo could establish dynamic areas to be avoided; 84 85

86 87 88 89

Ibid., 2. Chairman’s Statement on the Fourth Meeting of Scientific Experts on Fish Stocks in the Central Arctic Ocean, available at (accessed December 21, 2016). Ibid. See “Final Report: Third Meeting of Scientific Experts on Fish Stocks,” 10–11. Arctic Council, Iqaluit Declaration 2015, para. 44. Det Norske Veritas, “Specially Designated Marine Areas.”

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• Developing a paper on other ideas for making mariners aware of the ecological significance and hazards posed by drifting multi-year pack ice, such as navarea warnings and imo circulars; and • Continuing to seek current ship traffic data from the high seas area of the cao.90 Only the latter two steps have occurred. At the February 2015 pame meeting in Akureyri, Iceland, Norway submitted an update on the status of ship traffic in the cao high seas area for the year 2014.91 The United States submitted a paper discussing the possibility of using navarea warnings and imo circulars to alert mariners.92 The February 2015 pame meeting added a further step in the consideration process. pame invited the amap and caff working groups to denote areas within the high seas of the cao particularly vulnerable to international shipping activities,93 but that denotation did not occur. At the September 2016 pame meeting, pame decided to suspend its project on environmental protection of the cao high seas. Moving forward from the suspension would depend on the receipt of information from caff and/or the ICES/PICES/PAME Working Group on Integrated Ecosystem Assessment for the cao on areas that are considered to be particularly vulnerable to international shipping activities.94 Other steps within the imo might also be considered. For example, an Emission Control Area (eca) might be established under the marpol Convention95 for the Arctic high seas where more stringent than normal air pollution controls for S0x, NOx and particulate matter might be imposed.96 The general

90 91

pame, Record of Decisions and Follow-Up Actions, pame II-2014 (16–18 September 2014), 3. Update on the Status of Current Ship Traffic in the High Seas Area of the Central Arctic Ocean—Submission by Norway (January 29, 2015). 92 “Using navarea Warnings and imo Circulars to Alert Mariners to Drifting Ice in the Arctic.” 93 pame, Record of Decisions and Follow Up Actions, pame I-2015 (3–5 February 2015), 3. 94 pame, Record of Decisions and Follow-up Actions, pame II-2016 (19–21 September 2016), Portland, Maine, 5. 95 International Convention for the Prevention of Pollution by Ships (marpol), 2 November 1973, i.l.m. 1319 (1973); Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 2 November 1973 12 i.l.m. 1319; amended in 17 February 1978, in force 2 October 1983 1340 u.n.t.s. 61 (“marpol 73/78”). 96 Pursuant to Annex vi of marpol. See amsa, 60.

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sulphur content of fuel used on board ships is not to exceed 3.5% m/m on and after 1 January 2012 and 0.50% on and after January 1, 2020.97 For emission control areas the sulphur content limit is 0.10% m/m on and after January 1, 2015.98 An eca has already been established for the sea areas off the Atlantic and Pacific coasts of Canada and the United States.99 The United States has expressed support for further analysis regarding the establishment of one or more ecas in the Arctic.100 Whether the use and carriage of heavy fuel oil (hfo) in the cao should be prohibited is another issue that might be further discussed.101 Future for Arctic Marine Cooperation A further unsettled dimension to governance of the cao was added by Arctic Council Ministers at their April 2015 meeting in Iqaluit. Ministers agreed to establish a Task Force on Arctic Marine Cooperation with a broad mandate. The Task Force is to assess future needs for a regional seas program or other mechanism for increasing cooperation in Arctic marine areas.102 The terms of reference for the Task Force include a mandate to consider whether a cooperative mechanism should have a defined geographical scope, such as the high seas areas of the cao and/or seabed areas beyond national jurisdiction.103 Other issues to be considered include the relationship of a new cooperative mechanism to existing institutions and the legal form (binding or nonbinding).104 The Task Force is expected to submit a final report to the 2017 Arctic Council Ministerial meeting and it remains to be seen how cao issues will be dealt with.

97 marpol, Annex vi, Reg. 14(1). 98 Ibid., Reg. 14(4). 99 See mepc 1/Circ. 723 (2010). 100 See usa Views on Recommendations in dnv Report on “Specially Designated Marine Areas in the Arctic High Seas,” pame (II)/14/4.6/a/USA submission. 101 For a review of previous hfo discussions within the imo and Arctic Council, see David L. VanderZwaag, “Climate Change and the Shifting International Law and Policy Seascape for Arctic Shipping,” in Randall S. Abate, ed., Climate Change Impacts on Ocean and Coastal Law: u.s. and International Perspectives (Oxford: Oxford University Press, 2015), Chap. 14, 312–313. 102 Arctic Council, “Iqaluit Declaration,” para. 43. 103 See Senior Arctic Officials’ Report to Ministers, Iqaluit, Canada (24 April 2015), 78. 104 Ibid. For a review of possible approaches to a cooperative mechanism, see William M. Eichbaum, “The Whys and Hows of a Cooperative Mechanism for the Arctic Marine Environment,” Polar Record 52 (2016): 680.

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Implications of an International Instrument on Marine Biological Diversity beyond Areas of National Jurisdiction In June 2015, the un General Assembly (unga) adopted a resolution authorizing the development of an international legally binding instrument under the Law of the Sea Convention on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction.105 The unga decided to establish a preparatory committee process to make recommendations to the General Assembly on the elements of a draft text.106 The preparatory committee is required to meet for no less than two sessions each in 2016 and 2017107 and two sessions were held in 2016 (March 28–April 8 and August 26– September 9).108 The prospect for a new implementing agreement on marine biodiversity beyond national jurisdiction adds another layer of uncertainty regarding the future of cao governance. Negotiations are to address a number of issues of potential relevance to the cao including access to and sharing of marine genetic resources, area-based management tools including marine protected areas, and environmental impact assessments.109 If an implementing agreement is eventually adopted with provisions for establishing mpas on the high seas, the cao or parts thereof might be promoted for priority consideration in light of ecological and biological uniqueness and importance.

Conclusion

In the wake of decreasing sea ice in the Arctic and the corresponding prospects for increased access to the marine resources and transportation routes, the world has begun to pay attention to a rather forgotten part of the globe, the central Arctic Ocean. The eight Arctic states through the Arctic Council have forged two agreements applicable to the cao, one on search and rescue, the other on marine oil spill preparedness and response. They continue to consider under the auspices of pame the need for further protective measures 105 unga, Res. 69/292, Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction, para. 1. 106 Ibid., para. 1(a). 107 Ibid., para. 1(b). 108 Documentation for the sessions is available at (accessed December 21, 2016). 109 unga Res. 69/292, para. 2.

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through the imo to address future high seas shipping in the Arctic. The five Arctic coastal states have already agreed on interim measures to prevent unregulated commercial fishing in the cao, and they are now pushing other key interested states to join the cooperative initiative. At the global level, a new Polar Shipping Code, concluded in 2015, will add specialized maritime safety and environmental standards tailored to Arctic conditions. While governance progressions to date should be lauded, the quest for an integrated, ecosystem-based approach110 to protection of the Arctic marine environment beyond national jurisdiction remains elusive and subject to many uncertainties. A legally binding agreement on the prevention of unregulated fishing on the cao has yet to be finalized. Arctic states continue to debate the need for further protective shipping measures through the imo for the cao. Little thought has been given yet to the future regulation of seabed activities in the cao.111 Prospects look hopeful for a new agreement on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, but the implications for the Arctic Ocean have yet to be clarified. The possibility of negotiating a regional agreement for the protection of marine biodiversity in the cao has even been raised.112 The suggestion by one author to establish a new regional ocean management organization (romo) has not been followed.113 Whether the restless sea reality discussed in this chapter might also turn out to be “rough seas” should also be considered. The special characteristics of the cao—not being subject to traditional commercial exploitations and offering a potential refuge for ice dependent species—could make a strong case for designating the entire area as a nature preserve subject to limited human 110 Ecosystem Based Management has been embraced as a cornerstone of the Arctic Council and a key principle to the Arctic States. See Arctic Council Marine Strategic Plan 2015–2025 (April 2015), 10; Alf Hákon Hoel, “Integrated Oceans Management in the Arctic: Norway and Beyond,” Arctic Review on Law and Politics 1(2) (2010): 186; Alf Hákon Hoel, “Oceans Governance, the Arctic Council and Ecosystem-based Management,” in Jensen and Hønneland, Chap. 13. 111 Until extended continental shelves in the Arctic are finally determined, uncertainty surrounds the number of deep seabed areas in the cao with authors suggesting two and four donut holes in the region. See Alexander Proelss and Till Müller, “The Legal Regime of the Arctic Ocean,” Heidelburg Journal of International Law 68: 651. 112 Kamral Hossain, “‘Arctic Marine Biodiversity in Areas Beyond National Jurisdiction’: Framing a Legally Binding mpa Regime?,” asil Insights 20(14) (2016): 1. 113 See Rosemary Rayfuse, “Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction,” Review of European Community & International Environmental Law 17(1) (2008): 3.

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uses such as scientific research and eco-tourism. Meanwhile, the Arctic 5 and other interested states seem intent on establishing a legal framework for possibly opening commercial fisheries in the future. The extent of future political frictions over the appropriate designations for the cao and its resources is still another looming uncertainty. Reaching the appropriate balance among economic, social and environmental interests will likely make for some difficult decisions.114 cao governance voyaging has hardly begun!

Postscript

Various developments subsequent to the writing of this chapter should be noted. At an Arctic 5+5 meeting in Washington, d.c., 28–30 November 2017, delegations successfully concluded negotiations on the draft Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. A fifth scientific meeting was held in Ottawa, 24–26 October 2017. The Task Force on Arctic Marine Cooperation in its report to the Arctic Council’s Ministerial meeting in May 2017 did not make recommendations specific to the cao. The Task Force was given a revised mandate to explore the possibility for a new subsidiary body within the Arctic Council and to develop recommendations for complementary enhancements to existing Council mechanisms with a final report expected by the Ministerial meeting in 2019. 114 See Lilly Weidemann, International Governance for the Artic Marine Environment with Particular Emphasis on High Seas Fisheries (Heidelberg: Springer, 2014), 203, 225.

chapter 15

Changes in the Law of Marine Genetic Resources in the abnj and under unclos Su Jin Park I

Introduction

As a new bio-economy in the 21st century evolves, biological resources, and especially genetic resources, have become the center of much attention. Genetic resources are fundamental not only for the biotechnology industry and other high value-added industries, but also to life science research and its applications. Genetic resources also play an essential role in supporting human life and well-being as well as global biodiversity.1 The rapid development of the biotechnology industry has given rise to fierce competition among countries that are looking to the oceans, and especially to the areas beyond national jurisdiction (abnj), to secure genetic resources in order to develop new medicines, foods, and materials. The value of such marine genetic resources (mgrs) is already in the billions of dollars and is growing rapidly.2 At present, however, none of the existing ocean governance regimes adequately addresses the issues of access to and benefit-sharing of mgrs in abnj.3

* Research Fellow, Ph.D., Korea Maritime Institute, Republic of Korea; past Visiting Scholar, Law of the Sea Institute, University of California, Berkeley School of Law, usa. 1 Catherine Rhodes, Governance of Genetic Resources: A Guide to Navigating the Complex ­Global Landscape (Northampton, ma: Edward Elgar Publishing, 2013), 1–11. 2 See below, page 5. 3 David Freestone, “The Final Frontier: The Law of the Sea Convention and Areas beyond ­National Jurisdiction,” in Harry N. Scheiber and Moon Sang Kwon, eds., Securing the Ocean for the Next Generation, (Berkeley losi Conference Papers, 2013), 69 (available at https://www .law.berkeley.edu/research/institute-for-legal-research/law-of-the-sea-institute/publica tions/securing-the-ocean-for-the-next-generation/). See also Byung-Il Kim and Seokwoo Lee, “Existing Legal Frameworks Relevant to Marine Genetic Resources,” in John M. Van Dyke et al., Governing Oceans Resources: New Challenges and Emerging Regimes (Leiden and Boston: Martinus Nijhoff Publishers, 2013), 503–519.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_017

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With the adoption of the United Nations Convention on the Law of the Sea (unclos)4 in 1982, followed by the adoption of the Convention on Biological Diversity (cbd)5 in 1992 and the Nagoya Protocol on Access to Genetic ­Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol)6 in 2010, the international community has reaffirmed the national jurisdiction of each state over its natural resources. unclos, which entered into force on November 16, 1994, sets forth the rights and obligations of states regarding the use of the oceans, their resources, and the protection of the marine and coastal environments. The regime for oceans and seas established by unclos deals with a wide range of issues on ocean affairs and recognizes that the problems of ocean space are closely interrelated and need to be considered as a whole.7 However, unclos does not specifically refer to marine genetic resources (mgrs) as in the 1980s there was a lack of information on marine genetic resources and the international community did not fully consider their value from the perspective of intellectual property rights (iprs). The cbd and the Nagoya Protocol both deal with genetic resources. In principle, the geographic scope of these instruments applies to the components of biological diversity only in areas within the limits of national jurisdiction and not beyond. In addition, existing regimes, such as unclos, the cbd, various fisheries agreements of the Food and Agriculture Organization (fao) and regional fisheries management organizations (rfmos), also provide for principles and regulations on the protection of the marine environment and the conservation and sustainable use of biological diversity. However, these legal documents do not have specific provisions on mgrs or provisions for the conservation and sustainable use of biological diversity in abnj.8 4 United Nations Convention on the Law of the Sea, United Nations, Treaty Series, Vol. 1833, 397–581. 5 Convention on Biological Diversity, United Nations, Treaty Series, Vol. 1760, 143–169. 6 Conference of the Parties to the Convention on Biological Biodiversity, Tenth Meeting, ­Nagoya, Japan, Oct. 18–29, 2010, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, u.n. Doc. UNEP/CBD/COP/DEC/X/1, Annex 1, (Oct. 29, 2010). 7 United Nations, un at 30, New York, 2012.11. Accessed on September 29, 2016, (http://www .un.org/depts/los/convention_agreements/pamphlet_unclos_at_30.pdf). 8 abnj, which covers more than 60 percent of the surface of the world’s oceans, is a significant habitat and source for all cellular life and valuable mgrs. Thomas Greiber, “Common pools for marine genetic resources: A possible instrument for a future multilateral agreement addressing marine biodiversity in areas beyond national jurisdiction,” in Evanson Chege

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The international community has recently begun to address the serious lacunae and deficiencies in the governance regime for mgrs in abnj. The United Nations decided in June 2015 to develop a legally binding international instrument under unclos that includes mgrs in abnj,9 and in March 2016, a un Preparatory Committee started discussions toward this end.10 This chapter will analyze recent developments concerning the ­international regime of mgrs in abnj and will suggest possible future directions for  instruments regulating mgrs in abnj. It will compare the international legal ­instruments for mgrs in areas within the limits of national jurisdiction and those of abnj. The possibilities and limits of the application of existing international regimes are also considered. II

Paradigm Shift for mgrs

1 mgrs and Jurisdiction Marine biological resources, including genetic resources, have unique structures and contain unusual compounds with abundant antimicrobial activity, various metabolic pathways, reproductive systems, and defense mechanisms. They are also highly diverse and have complex physical structures, such as reefs, kelp forests and seamounts. Marine microbial diversity is estimated to comprise one billion species, but currently only about 250,000 marine species have been recorded.11 Marine genetic resources, such as the genetic material of, for example, deep-sea marine sponges, krill, corals, seaweeds, and bacteria in the oceans are attracting increasing scientific and commercial attention as they are likely to possess unique characteristics that may lead to innovations in the pharmaceutical and food industries, among others.12 The actual and ­Kamau and Gerd Winter, eds., Common Pools of Genetic Resources: Equity and Innovation in International Biodiversity Law (New York: Routledge, 2013), 399–400. 9 un resolution A/RES/69/292 agreed to develop an international legally binding instrument under unclos for the conservation and sustainable use of marine biological diversity in abnj. 10 The Preparatory Committee (PrepCom) was established pursuant to un resolution A/RES/69/292, and its first and second meetings were held respectively from 28 March to 8 April 2016 and from 26 August to 9 September 2016 at the United Nations in New York. 11 Bevis Fedder, Marine Genetic Resources, Access and Benefit Sharing: Legal and Biological Perspectives (New York: Routledge, 2013), 3. 12 Elisa Morgera posted, “Benefit sharing in marine areas beyond national jurisdiction: where are we at?” May 23, 2014, http://www.benelexblog.law.ed.ac.uk/2014/05/23/benefit sharing-in-marine-areas-beyond-national-jurisdiction-where-are-we-at-part-i/.

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­ otential value of new materials and commercial products using mgrs is very p high: anti-cancer pharmaceuticals derived from marine organisms a decade ago were worth $US 2 billion (2005), and the painkiller Prialt, produced from the Indo-Pacific cone snail Conus magus, was worth $US 6.1 million in 2010.13 The number of patents on mgrs, including resources from abnj, is growing at an estimated yearly growth rate of 12 percent.14 In addressing issues of mgrs, jurisdiction becomes a fundamental factor since it can determine the scope and limits of states’ exercise of jurisdiction and authority to regulate activities related to mgrs. With regard to maritime jurisdiction, the history of expanding coastal state jurisdiction is noteworthy:15 In the past, the freedoms of the high seas were dominant, but gradually the international regime for the law of the sea created new zones and expanded existing ones, such as the territorial sea, contiguous zone, and the Exclusive Economic Zone (eez).16 Under unclos, national jurisdiction is in general exercised as follows: coastal states have comprehensive sovereignty to regulate activities, including marine scientific research within their territorial seas, so long as innocent passage rights of foreign flagged ships are not hampered; and coastal states exercise sovereign rights within their eez with some limitations in scope and functions. Thus, the exercise of jurisdiction over mgrs is closely related to maritime zones and jurisdictional regulations under unclos. 2 From Free Access to Sovereign Rights over mgrs With the rapid growth of biotechnology and related industries, the international community has actively discussed ways to reduce the gaps regarding access to and benefit- sharing of genetic resources and to introduce an international regulatory regime. Prior to the adoption of the cbd and the Nagoya 13 Bevis Fedder, Marine Genetic Resources, 18–19. 14 Greiber, “Common pools for marine genetic resources,” 401. 15 Part ii, v and vi of unclos have been considered to “resolve previous uncertainties over the breadths and legal nature of coastal States’ maritime zones and have put an end, at least for the foreseeable future, to the phenomenon of ‘creeping jurisdiction,’ thereby achieving one of the main aims of unclos iii.” R. Churchill, “The 1982 United Nations Convention on the Law of the Sea,” The Oxford Handbook of the Law of the Sea (Oxford and New York: Oxford University Press, 2015), 28. 16 See Ian Townsend-Gault, “The ‘Territorialisation’ of the Exclusive Economic Zone: A requiem for the remnants of the Freedom of the Sea?” in Clive Schofield, Seokwoo Lee, Moon-Sang Kwon, eds., The Limits of Maritime Jurisdiction (Leiden and Boston: Martinus Nijhoff Publishers, 2014), 65–73.

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Protocol, there were no clear regulations for genetic resources, including mgrs; thus, states that possessed the necessary resources and technology had free and open access to genetic resources. However, with the entry into force of the cbd, the international community recognized the sovereign rights of states over their biological resources within their national jurisdiction, and the right of states to grant access to such resources, subject to the national legislation of each state.17 This is a clearly different perspective from the free and open access approach, as access to genetic resources is conditioned upon the consent of individual states. The adoption of the cbd in 1992 was thus a milestone in bringing about fundamental changes in the access and benefit-sharing of ­genetic resources. As the representative environmental regime with a universal membership of 193 countries, the cbd has played a leading, fundamental role in drawing attention to the value of genetic resources and in developing international rules for their governance. This trend—moving away from open access—has been further strengthened by the Nagoya Protocol, which was adopted in 2010 and became effective in 2014.18 The Nagoya Protocol created a new regime for access and benefitsharing of states over genetic resources that included the requirement of prior informed consent. III

Limits of Application of the Existing International Regimes

Current Regimes on Marine Genetic Resources (mgrs) within National Jurisdiction When it comes to mgrs within national jurisdiction, the existing international regimes are the cbd, the Nagoya Protocol and unclos,19 all of which are 1

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Article 15 of cbd. Adopted 29 October 2010 and entered into force on 12 October 2014. The international community started policy discussions on the international management and status of plant genetic resources in the 1970s. After the cbd and its national sovereignty principle was adopted in 1992, and the un fao was adopted by the Conference in 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture (itpgrfa) came into force in June 2004. itpgrfa has a Multilateral System (mls) to facilitate access to plant genetic resources for food and agriculture, and to share benefits in a fair and equitable manner. The mls only covers 64 genera of plant genetic resources, so itpgrfa does not apply to mgrs. Arinna Broggiato et al., “Introduction. Access B ­ enefit— Sharing and the Nagoya Protocol: The Confluence of Abiding Legal Doctrine” in Brendan

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closely related with one another in regard to the regulation of the c­ ollection and utilization of mgrs for research and the development of new products.20 1.1 The Convention on Biological Diversity (cbd) State sovereignty over its natural resources is an established principle of ­international law21 and was formally enshrined in article 3 of the cbd.22 In accordance with general principles and provisions of the cbd, states can exercise their sovereign rights over genetic resources, which can be extended to marine genetic resources, within their national jurisdiction. These principles and rules are clearly reflected in the preamble of the cbd, which affirms that the conservation of biological diversity is the common concern of humankind and reaffirm[s] that States have sovereign rights over their own biological resources. Based on such sovereign rights, each State needs to conserve its biological ­diversity and to use such resources in a sustainable manner, further to share benefits derived from the utilization of genetic resources in a fair and equitable way, through proper access and transfer of related technology as well as the provision of proper financial resources. More specifically, Article 15 of the cbd provides the framework for access to genetic resources: that states have sovereign rights over their natural resources, the authority to grant access rests with national governments, and access to genetic resources is subject to domestic legislation of relevant states; that genetic resources provided by a Contracting Party in accordance with ­Articles 15, 16 and 19 are deemed to be genetic resources provided by Contracting ­Parties that either are the original source of such resources or that acquire such resources in accordance with the cbd.23 Where granted, access to genetic ­resources should be subject to mutually agreed terms (mat) and the provisions of ­Article 15. In addition, access to genetic resources requires prior informed consent (pic), unless Parties providing those resources decide otherwise. Thus, considering that the rules and provisions of the cbd apply in general to genetic resources within national jurisdiction, it is logical and reasonable for such rules and principles to apply to marine genetic resources within national jurisdiction. Coolsaet et al., eds, Implementing the Nagoya Protocol (Leiden and Boston: Brill/Nijhoff Publishers, 2015), 7–12. 20 Bevis Fedder, Marine Genetic Resources, 21–26. 21 Charles Lawson, Regulating Genetic Resources: Access and Benefit Sharing in International Law (Northampton, Massachusetts: Edward Elgar Publishing, 2012), 2. 22 Lawson, Regulating Genetic Resources, 16. 23 Article 15.3 of cbd.

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1.2 The Nagoya Protocol The Nagoya Protocol, which was adopted at the 10th Conference of the Parties (cop) to the cbd in October 2010,24 is the international regime designed to regulate access to and benefit-sharing of genetic resources as well as ­traditional knowledge associated with genetic resources. It was adopted following more than ten working group meetings, experts meetings and four cop meetings.25 Comprised of a preamble, 36 provisions, and one Annex, the ­Nagoya Protocol stipulates specific principles and procedures regarding objectives, scope, ­access and benefit-sharing of genetic resources, as well as rules of compliance.26 The objective of the Nagoya Protocol is to further advance the implementation of the third objective of the cbd, the fair and equitable sharing of benefits arising out of the utilization of genetic resources.27 Compared to the cbd, the Nagoya Protocol provides more specific and focused provisions on access and benefit-sharing of genetic resources, thus enhancing legal certainty and transparency. Moreover, as in the case of the cbd, relevant principles and ­provisions 24

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The sixth cop decided to reconvene the Ad Hoc Open-ended Working Group on Access and Benefit Sharing to advise the cop, and the seventh cop decided to begin “to elaborate and negotiate an international regime on access to genetic resources and benefit sharing for achieving the objectives of the cbd.” See UNEP/CBD/COP/6/20, [342], UNEP/CBD/ COP/7/21, [347] and Annex; Lawson, Regulating Genetic Resources, 137–138. After the adoption of the Bonn guidelines on access to genetic resources and the fair and equitable sharing of the benefits arising from their utilization in 2002, there were active discussions by the cbd cops and abs working group meetings through 2010. Specifically, from the 6th abs working group meeting, the drafting negotiation of a new international abs regime was discussed, including the objective, scope, nature of abs regime as well as access procedures such as Prior Informed Consent (pic), Mutually Agreed Terms (mat), compliance, and capacity building measures. The Nagoya Protocol is an outcome of compromise between developed countries and developing countries, as well as between user countries of genetic resources and provider countries of genetic resources. Thus, it is necessary to elaborate individual provisions through discussions among Parties for interpretation and application of the Protocol. The international community has struggled to resolve the ambiguity of the Protocol through the Open-ended Ad Hoc Intergovernmental Committee on the Nagoya Protocol (icnp), which met twice in 2012, but the ambiguity and the uncertainty still remained due to different interpretations of the Protocol. The three objectives are: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from utilization of genetic resources. The basic assumption and principles of the Nagoya Protocol are shared with those of the cbd: reaffirming the sovereign rights of States over their natural resources according to the provisions of the cbd; recalling further Article 15 of the cbd; the application of the terms defined in Article 2 of the cbd to the Nagoya Protocol.

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under the Nagoya Protocol, which apply to genetic resources within national jurisdiction, can likewise apply to marine genetic resources within national jurisdiction. 1.3 unclos Adopted in 1982, unclos, as the constitution of the ocean, provides the legal framework for each state’s rights over its marine resources: Basically, unclos recognizes the desirability of establishing a legal order over the seas with due regard for state sovereignty. The sovereignty of a coastal State extends beyond its land territory and internal waters into the air space over the territorial sea and to its seabed and subsoil. unclos clearly articulates that states have the sovereign right to exploit their natural resources.28 unclos applies to natural resources within national jurisdiction, although the extent and exclusivity of rights differ depending on the type of activities and maritime zones. Overall, in terms of basic principles, the cbd and the Nagoya Protocol together with unclos create a strong case in favor of their applicability to mgrs within national jurisdiction. However, there may be limits in applying these principles to mgrs even within national jurisdiction. The cbd and the Nagoya Protocol are important in setting the legal rules and regulations on access and benefit-sharing of genetic resources. However, they only provide a broad and vague definition of biological resources and genetic resources29 without providing for specific geographical scope, thus opening room for disagreement on their interpretation and application to mgrs. The cbd mentions marine factors in two places: (1) the definition of biological diversity, which means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes; and (2) Article 22, the relationship with other international conventions, which stipulates that contracting Parties shall implement the cbd with respect to the marine environment consistently with the rights and obligations of states under the law of the sea.30 Based on those ­sections, the following major point can be deduced: At the time of ­negotiations 28 29

30

Article 193 of unclos. Article 2(Use of Terms) of cbd: “Biological resources” includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. “Genetic material” means any material of plant, animal, microbial or other origin containing functional units of heredity. “Genetic resources” means genetic material of actual or potential value. Article 22 of cbd.

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of the cbd, the international community already recognized the primary role of unclos in dealing with marine affairs. If this is the case, the conclusion could be made that marine issues regarding biological diversity should be deferred to unclos, and the implementation and application of the cbd should be mutually supportive and coordinated with principles under unclos. However, Article 22 on the relationship with other conventions seems insufficient to deal with marine genetic resources as its terms are too general. In order to address this issue, the interrelationship between the marine environment and genetic resources needs to be spelled out. The situation under unclos is more complex. With the exception of “­resources” in Part xi on the Area,31 references in unclos to the terms “natural resources,” “living resources” and “mineral resources,” provide no definition, creating the possibility for uncertainty and disagreement. For example, what is the relationship between “living resources” under unclos and “biological resources” under the cbd? In addition, unclos provides no mention of genetic resources at all, in part because in 1982 when unclos was adopted, the international community lacked sufficient information on genetic resources to include them in the scope of application of unclos.32 Application of the Current Regimes on Marine Genetic Resources in abnj The central question is whether the current regime on mgrs, regardless of its imperfections and lacunae, is applicable to mgrs in abnj. While the current international regime has relevance to mgrs, it has, however, fundamental limits when addressing the issue of mgrs in abnj. 2

2.1 Convention on Biological Diversity The scope of application of the cbd concerning components of biological diversity is clearly limited to areas within the limits of national jurisdiction under Article 4(a). However, several provisions related to abnj can be found 31 32

Article 133 (a) defines resources as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed….” The terms “marine biodiversity” and “marine genetic resources” are not defined in ­u nclos, and therefore a certain reliance on the Nagoya Protocol will be inevitable in the context of negotiations under the authority of the un General Assembly. However, the Nagoya Protocol is mainly premised on genetic resources within national jurisdiction and focuses on a bilateral approach to abs. Elisa Morgera, Elsa Tsioumani, and Matthias Buck, Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit Sharing to the Convention on Biological Diversity (Boston: Brill/Nijhoff, 2014), 106–107.

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in the cbd. According to Article 3, States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or in areas beyond the limits of national jurisdiction. ­Article 4(b) provides that the scope of application of the provisions of the cbd applies to processes and activities regardless of where their effects occur, carried out under the jurisdiction or control of the state both within the area of its national jurisdiction or beyond. Article 14 on impact assessment and minimizing adverse impacts provides that “each Contracting Party shall promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate” and “in the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimize such danger or damage” respectively.33 Even though cbd has several provisions that might apply to Contracting Parties’ activities relating to abnj, the extent of those provisions is limited to incidental or consequential results of activities of states within their national jurisdiction. This is because the fundamental assumption of the cbd is to recognize the sovereign rights of states over genetic resources and the scope of object of such jurisdiction is basically within national boundaries. 2.2 Nagoya Protocol The Nagoya Protocol was developed to supplement the cbd. While the scope of application of the cbd is primarily within national jurisdiction, the Nagoya Protocol has greater potential than the cbd in applying to mgrs in abnj. ­Article 10 of the Nagoya Protocol mentions the possible creation of a Global Multilateral Benefit sharing Mechanism (gmbsm) for two situations: transboundary situations and situations in which it is not possible to grant or obtain prior informed consent (pic).34 Since this article deals with the situations 33 34

Article 14.1 (c) and (d) of cbd. Nagoya Protocol Article 10 (Global Multilateral Benefit sharing Mechanism): “Parties shall consider the need for and modalities of a global multilateral benefit sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations or for which it is not possible to grant

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where jurisdiction is undecided and abnj is the area where there is no coastal State jurisdiction, it is worthwhile to explore how this provision of the Nagoya Protocol might be applied to mgrs in abnj.35 The question is to identify situations that are trans-boundary36 and those in which pic cannot be granted or obtained. Considering the current status of abnj, which in general includes the high seas and the Area of unclos,37 it seems impossible to decide who has the authority to grant pic as there is no coastal State and Part xi of unclos does not include mgrs in its definition of resources.38 In such a situation, questions of ownership or jurisdictional rights for mgrs in abnj are problematic. Since the current access to and benefit sharing (abs) system is based on ownership or jurisdictional rights, in the absence of clear ownership or jurisdiction, abs of mgrs in abnj cannot be further discussed. Considering the fundamental context of the Nagoya Protocol as being based on a bilateral abs system, Article 10 of the Nagoya Protocol, which deals with the multilateral mechanism, was developed for exceptional situations.39

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or obtain prior informed consent. The benefits shared by users of genetic resources and traditional knowledge associated with genetic resources through this mechanism shall be used to support the conservation of biological diversity and the sustainable use of its components globally. ” It has been noted that the explicit reference of the Nagoya Protocol to cbd Article 15 rather than to its Article 4 on the scope, which was an option under discussion by the Ad Hoc Open-ended Working Group on Access and Benefit sharing, indicates that Parties did not wish to link the geographical scope of the Nagoya Protocol to cbd Article 4.b, as this could have raised the question of whether the Nagoya Protocol would apply to the use of marine genetic resources beyond national jurisdiction. Charlotte Salpin, “The Law of the Sea: A before and an after Nagoya?” in Elisa Morgera, Matthias Buck, and Elsa Tsioumani, eds., The 2010 Nagoya Protocol on Access and Benefit Sharing in Perspective (Boston: Nijhoff Publishers, 2013), 177. Areas where marine delimitation has not been concluded can also fall under the scope of Article 10 of the Nagoya Protocol. Accordingly, it is generally considered that two regimes concerning abnj already exist: the regime of the Area of unclos and the regime concerning straddling and highly migratory fish stocks in the Fish Stocks Agreement (High Seas). Tullio Treves, “Principles and objectives of the legal regime governing areas beyond national jurisdiction,” The international legal regime of areas beyond national jurisdiction: current and future developments (Leiden and Boston: Brill/Nijhoff Publishers, 2010), 13. Supra n. 31. Access to genetic resources shall be subject to prior informed consent of the country providing the resources, if this is required by its legislation, and should be granted on mutually agreed terms between the provider and the user. Therefore the abs concept is based

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However, Article 10 is not intended to replace the bilateral abs system, but to supplement it.40 In this regard, it is noteworthy that the interpretation and application of this provision could pose a challenge to the Nagoya Protocol itself by overturning the fundamental and essential assumptions of the cbd and the Nagoya Protocol—sovereign rights over genetic resources within national jurisdiction, and exclusive rights over such resources. Because gmbsm assumes both benefit sharing at the global level rather than at the individual states’ sovereign rights level and a multilateral approach rather than bilateral contracts, the scope of the Protocol itself can be influenced by the interpretation and application of this provision in the future.41 2.3 unclos Provisions in the unclos system related to abnj are: the Area;42 the high seas; fisheries in the high seas;43 the marine environment; and marine scientific research. Questions remain, however, as to whether the provisions and principles regulating the Area and its mineral resources should apply to mgrs in abnj. Specifically, the question is whether the regime of the Common Heritage of Mankind (chm) that applies to the Area or the high seas regime should govern mgrs in abnj. In relation to these questions, unclos clearly imposes limits. The Area is defined as “the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.”44 Further, resources—solid, ­liquid

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on a bilateral relationship between a provider of a genetic resource and a user of this resource. Coolsaet et al., Implementing the Nagoya Protocol, 4. ıucn, An Explanatory Guide to the Nagoya Protocol on Access and Beneift-Sharing, ıucn Enviornmetnal Policy and Law Paper No 83, 127. The current wording of Article 10 was not negotiated but proposed by the Presidency of the 10th meeting of the Conference of the Parties to the cbd as part of its compromise proposal, and was accepted as such by all Parties. The Protocol only established a procedural obligation to consider the need for, and modalities of, a global mechanism. Salpin, “The Law of the Sea: A before and an after Nagoya?” 180. 1994 Agreement relating to the Implementation of Part xı of the United Nations Convention on the Law of the Sea of 10 December 1982, United Nations, Treaty Series, vol.1836, pp. 42–66. 1995 Agreement for the Implementation of the Provisions of the un Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, United Nations, Treaty Series, Vol. 2167, 88–137. Unlike the legal definition, scientists consider waters and seabed below 200 meters in depth as part of the deep ocean. The deep ocean ignores jurisdictional boundaries since the deep ocean is found in territorial seas, exclusive economic zones, continental shelves, and areas beyond national jurisdiction. See Kathryn J. Mengerink, “The Deep Ocean: ­Advancing Stewardship of the Earth’s Largest Living Space,” in Harry N. Scheiber et al.,

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or ­gaseous—when recovered from the Area are referred to as minerals;45 moreover, all rights in the resources of the Area are vested in the International Seabed Authority (isa).46 There is no mention of mgrs in unclos. Thus, under a strict, literal reading of unclos, there seems to be no possibility for the current chm regime in the Area to extend to mgrs in abnj unless unclos is amended to include mgrs within the scope of the chm and the mandate of isa. IV

Discussion of mgrs in abnj

1 The History of Discussion on mgrs in abnj As analyzed above, regulatory gaps and legal uncertainties exist in the current international regime on genetic resources for mgrs in abnj. The international community has made a series of efforts to address these challenges. With the increase of various human activities in abnj, opportunities for the exploration and exploitation of mgrs in abnj have increased. As a result, states have begun to recognize the necessity of developing international regulations for these emerging activities. Since the World Summit on Sustainable Development (wssd), held in September 2002 in Johannesburg, South Africa, the international community has paid more attention to the conservation of fragile and vulnerable biological diversity in oceans and coastal areas including abnj, the designation of marine protected areas in the high seas, and the eradication of illegal fisheries destructive to ecosystems. These efforts resulted in 2004 in unga resolution 59/24, which decided to establish an “Ad Hoc Openended Informal Working Group to study issues relating to the c­ onservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (un bbnj Meeting).”47

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eds., Science, Technology, and New Challenges to Ocean Law (Leiden and Boston: Brill/­ Nijhoff Publishers, 2013) 187. Supra n. 31. isa is established by article 156 of the 1982 United Nations Convention on the Law of the Sea (the Convention). In accordance with article 157 of the Convention and Section 1, paragraph 1, of the annex to the Agreement relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982 (the Agreement), the Authority is the organization through which States Parties to the Convention shall, in accordance with the regime for the International Seabed Area established in Part xi of the Convention and the Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. International Seabed Authority Handbook 2013, 1. un General Assembly, “Oceans and the Law of the Sea,”(17 November 2004) un Doc A/ RES/59/24.

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The bbnj Working Group met nine times between 2006 and 2015 and consistently discussed the mgr issue.48 During the first meeting, held in 2006, mgrs were discussed among many other issues, including illegal fishing in the high seas, designation of marine protected areas, environmental impact assessments and marine scientific research. The key discussion focused on the regulatory or implementing gap of the current international regimes, including unclos. At the meeting held in 2008, the discussions included access to mgrs in abnj, the nature and scope of benefit-sharing, and the necessity for a new international regime for mgrs in abnj. At the following three meetings (held respectively in 2010, 2011 and 2012), there was disagreement between developed countries and developing countries regarding whether mgrs constitute the chm in accordance with Article 136 of unclos, and whether the ­formation of an international regime for mgrs in abnj was necessary and feasible.49 Since the fourth Working Group meeting, mgrs have been included as one of the four main topics discussed. In over nine years of discussions, however, the only agreed outcome among states appears to be that unclos provides the legal framework for all activities in the oceans and seas, including with respect to mgrs in abnj.50 The thorniest issue regarding mgrs in abnj is the legal status of mgrs in the Area. Developing States have emphasized that mgrs in abnj constitute the chm, and mgrs found in the Area are part of the resources in the Area. As such, Part xi of unclos applies to mgrs in abnj. Further, they argue that the transfer of technology and sharing of benefits should be considered as indispensable elements of the international regime. By contrast, some developed States have emphasized that the concept of chm in Article 136 of unclos is restricted to non-living resources and mineral resources in the Area, and therefore mgrs are not part of the resources in the Area. Thus, mgrs in the Area should be accessed and utilized in accordance with freedom of the high seas principles. Finally, in 2015 the United Nations General Assembly (unga) adopted Resolution A/RES/69/29 to develop an international legally binding instrument (ilbi) under unclos for the conservation and sustainable use of marine 48 49

50

For a detailed overview of the bbnj Working Group meetings see Chapter 12 in this v­ olume by Kristina M. Gjerde. In particular, eu and the developing states argue the unclos implementation agreement on mgrs in abnj is needed, whereas some states, including the u.s., Japan and Canada, emphasize that the better implementation of existing regimes including unclos is necessary. A/66/119, para 42 and 43 (2011.6.30). A/66/119, para 10(2011.6.30); A/67/95, para 11(2012.6.13).

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­biological diversity in abnj and to establish a Preparatory Committee (PrepCom) to make substantive recommendations to the General Assembly on the elements of a draft text of an internationally legally binding instrument under unclos.51 The work of the PrepCom is discussed below. 2 Legal Issues on mgrs in abnj during bbnj Working Group 2.1 Scope of abnj In general, abnj refers to the Area stipulated in Article 1.1(1) of the unclos,52 and the high seas refers to the area beyond the eez, contiguous zone, and territorial seas, as stipulated in Article 86 of unclos. abnj also includes the sea area adjacent to the Antarctic Continent located higher than the 60th parallel south regulated by the Antarctic Treaty System (ats). However, the international community did not agree on the scope of abnj during the bbnj wg discussions and this remains an issue to be agreed upon for the implementing agreement being negotiated.53 2.2 Definition and Scope of mgrs It is noteworthy that although the definition and scope of mgrs should be essential factors for the discussion on mgrs in abnj, actual discussions during the bbnj wg sessions did not focus on these; rather, states looked at the legal status of mgrs in abnj. This is partly because unclos does not mention genetic resources at all and states do not agree on the applicable principles. In general, discussions on the definition of mgrs in abnj have frequently included such issues as whether bio-prospecting constitutes exploitation and utilization of mgrs in abnj; distinguishing bio-prospecting from marine scientific research (msr),54 and the relationship of mgrs to bio-prospecting and living resources under unclos. There is no internationally agreed upon definition of bio-prospecting, but it is generally understood as scientific research on organisms with commercial value and for genetic and bio-chemical resources.55 Similarly, there is no 51 52

unga resolution A/RES/69/29. The “Area” is defined to mean the sea bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction. 53 See un resolution A/69/82. 54 unclos Article 238 (Right to conduct marine scientific research) stipulates: “All States, irrespective of their geographical location, and competent international organizations have the right to conduct marine scientific research subject to the rights and duties of other States as provided for in this Convention.” 55 The cbd Secretariat defines bioprospecting as “the exploration of biodiversity for commercially valuable genetic and biochemical resources.” UNEP/CBD/COP/5/INF/7.

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internationally agreed upon definition of msr,56 but generally speaking, msr is any study and experimental work designed to understand the physical environment, marine biological diversity, and the marine ecosystem and its functions.57 Thus, the distinction between bio-prospecting and msr can be made at the stage of deciding whether relevant organisms have commercial value through processing in the laboratory.58 Even though unclos does not mention mgrs, research activities for mgrs in abnj could still qualify as marine scientific research. The one distinctive feature of bio-prospecting activities is the purpose for commercial utilization. However, it is not always clear whether the purpose of any activity is related to a search for commercially valuable compounds or for scientific research. As unclos does not provide for a definition of msr, this issue will need clarification in the new implementing agreement. Freedom to conduct scientific research is one of the freedom of the high seas activities under Article 87 of unclos, subject to Part vi (continental shelf) and xiii (msr). Article 257 in Part xiii expressly affirms the right of freedom of msr in the water column beyond the limits of the eez. However, as unclos does not include bio-prospecting or mgrs, in order to fill such loopholes, it will be necessary to further define biological genetic resources and their relationship with msr in the process of establishing a new international

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The term “marine scientific research” is not defined in the Convention, despite the number of proposals that were made for a definition during the negotiations for the ­Convention, particularly during the Third United Nations Convention on the Law of the Sea. This is mainly due to fact that the discussions at the negotiation for the unclos were extremely complicated and did not lead to a satisfactory result. United Nations, Marine Scientific Research—A Revised Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (United Nations, Division for Ocean Affairs and the Law of the Sea, New York, 2010), 4; Alfred H.A. Soons, Marine Scientific Research and the Law of the Sea (Deventer, Netherlands: Kluwer, 1982), 119. Florian H. Th. Wegelein, Marine Scientific Research (Leiden: Martinus Nijhoff Publishers, 2005), 12; See also the Intergovernmental Oceanographic Commission of unesco, Ocean Science for the Year 2000, Twelfth Session of the Assembly, Paris, November 3–20 1982, reprinted in Ocean Yearbook (1983); Yoshifumi Tanaka, “Obligation to Co-operate in Marine Scientific Research and the Conservation of Marine Living Resources,” ZaoRV 65, 2005, 938–939, http://www.zaoerv.de/65_2005/65_2005_4_b_937_966.pdf. Bio-prospecting is not conducted in order to increase the general scientific knowledge, but to commercial ends. But the distinction between marine scientific research and bio-prospecting remains unclear. Paul Gragl, “Marine Scientific Research,” in D. Attard, M. Fitzmaurice, and N. Martinez, eds., imli Manual on International Maritime Law, Vol. 1, (Oxford and New York: Oxford University Press, 2014), 13.

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instrument and whether new msr regulations for these activities should be developed specifically for abnj.59 2.3 Legal Status of mgrs in abnj In the discussions on the international regime for mgrs in abnj, the central issue is the legal status of mgrs in abnj: whether the chm regime or the freedom of the high seas regime governs. This issue is also closely related to the meaning of “under the Convention” in the recommendation of the 9th bbnj wg meeting, which stated that there was a need to “decide to develop an international legally binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond ­national jurisdiction.”60 Accordingly, the legal status of mgrs in abnj will decide whether Part xi (Area) of the unclos or Part vii (High Seas) will apply to mgrs in abnj within the meaning of “under the Convention.” Furthermore, based on the applicable principles61 to mgrs in abnj, the scope and methods of benefit-sharing can vary widely, and this issue is also closely related to benefit-sharing from utilization of mgrs in abnj. In particular, the focus during the wg process was mgrs in the Area. As noted earlier, unclos does not have a specific provision on mgrs in the Area. Nor does the Convention on Biological Diversity provide an alternative option for mgrs in the Area because the cbd principally applies to the genetic resources within the national jurisdiction, with limited application to abnj. 59

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Bio-prospecting in Antarctica was discussed during the Antarctic Treaty Consultative Meeting (atcm), and in 2009 atcm adopted Resolution 9, including three recommendations on bio-prospecting. Su Jin Park, “Current Developments and Challenges on the International Regime on the Law of the Sea in the Areas beyond National Jurisdiction: Focusing on Developments regarding the International Regime for Marine Genetic Resources,” Journal of Kyunghee Law 47:4 (2012), 139–140. Recommendation 1(e), Annex (Outcome of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chair’s summary of discussions) A/69/780. Some delegations express the view that a new agreement under the Convention should also include modern governance principles, such as an ecosystem approach, the precautionary principle, transparency and participation in decision-making processes. It was also suggested that an agreement would have to provide for mechanisms for the establishment of marine protected areas and their monitoring and management. It was also considered important to ensure coherence with the Convention on Biological Diversity and its Nagoya Protocol, as well as with the work of fao, the World Trade Organization and World Health Organization, in the proposed work on, and with respect to the scope of, an implementing agreement. A/68/399, para 49 (2013.9.23).

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Thus, ­currently the exploration and exploitation of mgrs in the Area is based on free access in keeping with the principle of freedom of the high seas—­ subject to the obligation to protect and preserve the marine environment under ­u nclos. Unfortunately, during the bbnj wg process, states could not reach an agreement on the legal status of mgrs in the Area in abnj.62 2.3.1 The Freedom of the High Seas Article 86 of unclos defines the area beyond the eez as high seas, and Part vii of unclos specifically stipulates the principles and regulations for the high seas. The freedom of the high seas as defined in Article 87 should not be interpreted to mean that states can do whatever they want; rather, it means that coastal States and land-locked States have the freedom to conduct legitimate activities in the high seas, including navigation, overflight, fishing, laying of pipeline and cables, construction of artificial islands and other facilities, and conducting marine scientific research. However, this freedom is conditioned upon certain obligations, notably the protection and conservation of the marine environment and due regard for the rights of other states.63 Further, freedom of fisheries in the high seas also includes limitations as regulated through regional fisheries management organizations (rfmos). 2.3.2 Common Heritage of Mankind The concept of the Common Heritage of Mankind (chm) emerged in 1967 when Ambassador Pardo of Malta, in his historic speech at the United ­Nations General Assembly, proposed that the seabed and ocean floor be recognized as part of the chm, not belonging to any state; and moreover that the ocean and its resources be used only for peaceful purposes and for the benefit of

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Developing states have emphasized that mgrs in abnj are subject to chm based on unga 2749 (xxv); thus Part xi (the Area) should apply to mgrs in abnj, in particular to benefit sharing. Developed states, on the other hand, have stressed that Part xi of the unclos applies only to the mineral resources in the Area; Part vii of the unclos, the high seas, should apply to mgrs in abnj including mgrs in the Area; and the authority of isa relating to marine biological diversity is limited to the protection of the marine environment from the activities in the Area stipulated in Article 145. It is noteworthy that some delegations argued that the regulatory system applicable to resources in the Area depends not on the nature of resources, i.e., whether they are mineral resources or living resources, but rather on the legal status of the maritime zone where such resources are found. Douglas Guilfoyle, “The High Seas,” in Donald Rothwell et al., The Oxford Handbook of the Law of the Sea (New York: Oxford University Press, 2015) 204.

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­mankind.64 However, the chm regime also required an international body with a mandate to manage the resources on behalf of humankind as a whole, including the protection and preservation of the marine environment. The chm was adopted in Part xi of unclos as the regime for the Area, which vested all rights in its resources in all of mankind and established an international body—the International Seabed Authority—to act on its behalf.65 If mgrs belongs to the chm, it can be argued that the exploration and exploitation of mgrs are subject to the same regulatory authority of the International Seabed Authority (isa) as are mineral resources in the Area. However, if the provisions of unclos are to be interpreted literally, resources in the Area include only solid, liquid or gaseous mineral resources, including polymetallic nodules, in situ in the Area at or beneath the seabed, with no reference to living resources.66 Thus, mgrs found on the seabed, ocean floor or in the subsoil do not fall under the chm regime but belong to natural living resources.67 In this case, it would be necessary to amend unclos in order to include mgrs as a “resource” in the Area. 2.4 Intellectual Property Rights During the bbnj wg process, a number of delegations underlined the need to address gaps in the legal framework concerning abnj and to also include consideration of intellectual property aspects of mgrs in abnj.68 At the third meeting of the wg, delegations recognized the need to focus on improving implementation of the existing regulatory framework, in particular, regarding intellectual property rights, the relationship between intellectual property rights and unclos, and the modalities of cooperation between those carrying out marine scientific research and the marine biotechnology industry. Several delegations noted the need to take into account the work under other relevant forums, such as the cbd,69 the fao, the International Treaty on Plant 64

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Tullio Scovazzi, “The Seabed Beyond the Limits of National Jurisdiction: General and Institutional Aspects,” The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (Leiden: Nijhoff Publishers, 2010), 43–44. Article 137 of unclos. Supra n. 31. Bevis Fedder, Marine Genetic Resources, 60–61. For a discussion of earlier efforts to resolve intellectual property rights, see Kim and Lee, “Existing Legal Frameworks Relevant to Marine Genetic Resources,” 509ff. cbd has a few provisions on iprs: in the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. (Article 16 [access to and transfer of technology].2); the Contracting

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Genetic Resources for Food and Agriculture (itpgrfa) and the World Intellectual Property Organization (wipo), upon considering practical measures.70 3 Legal Issues at the Preparatory Committee Meetings The legal issues surrounding mgrs in abnj were taken up by the Preparatory Committee that was established by the General Assembly in 2015. At the first PrepCom meeting, held from March 28 to April 8, 2016, discussions included the definition, scope, and benefit-sharing of mgrs in abnj; the possible application of the concept of the chm; the necessity to separate fisheries and fisheries resources; the need for a distinction between marine scientific research (msr) and bio-prospecting; the importance of msr; whether water columns of the high seas should be included in the geographical scope of mgrs in abnj; consideration of the continental shelf beyond 200 nautical miles; access to genetic resources in silico;71 and the necessity of disclosure of the origin of mgrs. The second PrepCom meeting, held from August 26 to September 9, 2016, again considered marine genetic resources, including questions on benefit sharing; the definition of mgrs, including the possible inclusion of derivatives, data (in silico),72 and fish; approaches; access; and intellectual property rights (iprs).

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­Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objective (Article 16.5); The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. (Article 22 [Relationship with Other International Conventions].1); Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea (Article 22.2). A/65/68, para 43,73 and 77(2010.3.17.). Genetic resources in silico means the database relating to genetic resources. In silico, Latin for “in silicon,” is an expression used to mean “performed on computer or via computer simulation,” alluding to the mass use of silicon for semiconductor computer chips. https://en.wikipedia.org/wiki/In_silico; UNEP/CBD/COP/12/INF/11, 24. September. 2014. The conduct of msr activities is regulated in Part xiii, 1982 unclos and other rules of international law. However, the current international regime for msr ­under unclos does not deal with proprietary title over msr data, samples and results. Montserrat ­Gorina-Ysern, “Legal Issues Raised by Profitable Biotechnology ­Development Through Marine Scientific Research,” Insights, Vol. 7, American Society of International Law, Sept.19,  2003, https://www.asil.org/insights/volume/7/issue/22/legal-issues-raised-profitable -biotechnology-development-through-marine.

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3.1 Scope of abnj Prior to PrepCom meetings, states in previous bbnj wg meetings had a common opinion as to the scope of abnj—the Area and the high sea. However, the specific scope of abnj has not been agreed upon. During the first PrepCom meeting, states presented opinions on the scope of abnj more specifically than in previous bbnj wg meetings: for example, that the geographical scope of mgrs in abnj should include the sea bed, ocean floor and its water column; and the necessity to exclude the continental shelf beyond 200 nautical-miles (the outer continental shelf) from the geographical scope of mgrs.73 However, no further action with the aim of reaching consensus on the geographical scope of abnj was undertaken at the first PrepCom meeting. At the second PrepCom meeting, there was no further discussion on the geographical scope of abnj; rather States focused on the scope of the international instrument—universal participation including unclos non-parties.74 3.2 Definition and Scope of mgrs In the PrepCom discussions States expressed a common view that Article 2 of the cbd provided the most useful basis to define mgrs in an international instrument. Article 2 stipulates that genetic material refers to any material of plant, animal, microbial or other origin containing functional units of heredity; genetic resources refers to genetic material of actual or potential value; ­biological resources includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or ­potential use or value for humanity. A similar definition could be adopted for marine living resources. Furthermore, there were several suggestions on the scope of the mgrs in abnj: Some states argued that fisheries should be included in the scope of mgrs in abnj, whereas other major fishing states emphasized the need to ­separate fisheries and fishing resources from mgrs. Some states argued that commodities should be excluded from the scope of mgrs, whereas others emphasized the scope of mgrs should include commodities and be deliberative.75 At the second PrepCom meeting, further discussions took place on fish: several 73 74 75

Earth Negotiations Bulletin, Vol. 25, No. 100, 2 (http://www.iisd.ca/oceans/bbnj/prepcom1). Earth Negotiations Bulletin, Vol. 25, No. 118, 16 (http://www.iisd.ca/oceans/bbnj/ prepcom2). Cameroon called for a holistic approach and drew attention to derivatives from mgrs, while Japan opposed including commodities in the definition of mgrs. Earth Negotiations Bulletin, Vol. 25, No. 99, 1 and Vol. 25, No. 100, 2 (http://www.iisd.ca/oceans/bbnj/ prepcom1).

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states stressed that fish used for their genetic properties should be treated as any other organism used for the same purpose, but fish used as a commodity is addressed by other legal frameworks.76 It is interesting to observe that during the discussion on the definition and scope of mgrs, developing States were in favor of extending the scope of mgrs by including in silico, which is far beyond the concept of ex situ under the cbd or the Nagoya Protocol. The rationale of this position is to broaden the scope of obligation of benefit-sharing under the new international instrument by including just data on mgrs in abnj, let alone the physical substances of mgrs in abnj in the university and laboratory. Such discussion needs further attention, since it can open up the possibility of expanding the scope of mgrs as well as the scope of objects to be regulated within the framework of the international instrument of bbnj. 3.3 Applicable Principles The international community continues to discuss the nature and legal status of mgrs. The discussions from the first PrepCom were quite similar to previous bbnj wg meetings. While some delegations have insisted that mgrs should belong to the chm,77 other delegations have emphasized that mgrs in abnj should not be subject to Part xi under unclos. Some raised concerns that the application of the chm means to re-open the negotiation of unclos, whereas other states refuted that suggestion, and emphasized instead that the current legal uncertainty could impede the useful and beneficial activities, including msr.78 Unfortunately, delegations had different views on the legal concept of both the chm and freedom of the high seas, and they could not reach a consensus on whether these principles apply to mgrs or to a new international instrument. At the second PrepCom meeting, similar discussions continued.79 Against this background, what is important now is to analyze in-depth some remaining issues: What other options can be introduced if the concept of the chm cannot apply? And how can such options be incorporated into the process of a binding international instrument? Also, how can it be ensured that such options conform with the purpose of an international instrument?

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Earth Negotiations Bulletin, Vol. 25, No. 118, 4 (http://www.iisd.ca/oceans/bbnj/prepcom2). Specifically, some delegations stated that based on Article 311.6 the concept of the chm is a non-derogatory norm and the freedom of the high seas is conditional. Earth Negotiations Bulletin, Vol. 25, No. 101, 1 (http://www.iisd.ca/oceans/bbnj/prepcom1). Earth Negotiations Bulletin, Vol. 25, No. 118, 41 (http://www.iisd.ca/oceans/bbnj/prepcom2).

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3.4 Intellectual Property Rights An outstanding point regarding intellectual property rights raised at the first PrepCom meeting was the disclosure of origins of mgrs. Some states proposed that for the sake of fair and equitable benefit-sharing, patents should include mandatory disclosure of the origins of genetic resources, while other states emphasized that the issue of intellectual property rights would be better discussed in an existing and specialized forum such as the World Intellectual Property Organization (wipo). There is no need for any provisions on iprs in the international instrument and no need to discuss this issue further during the PrepCom since the basic condition of inventions where a patent is granted—new, non-obvious, industrially useful—should not be influenced by the approaches to mgrs in abnj, whether the principle of the chm applies or not. Furthermore, a patent that provides exclusive rights of use has nothing to do with ownership, and genetic resources fall within the scope of discovery, not invention. In this regard, it is enough to leave ipr issues to the regulations of existing regimes: the World Intellectual Protection Organization (wipo) and the World Trade Organization (wto).80 V

Conclusion: Perspectives and Challenges

As analyzed above, mgrs have potential and actual commercial and scientific value. Existing regimes, notably the cbd and the Nagoya Protocol, provide regulations in dealing with mgrs, but they are applicable primarily to resources within national jurisdiction and do not cover abnj. There are still lacunae and unfinished agendas for unclos as a “Constitution for the Oceans,” especially in the regime covering areas beyond national jurisdiction.81 unclos makes no reference to mgrs, leaving an important gap in a growing area of activity with potentially great commercial and scientific value. In short, the lack of relevant definitions and the uncertainty of provisions of unclos are the fundamental reasons for the difficulties in addressing the appropriate regime of mgrs in abnj.82 80

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Eve Heafey, “Access and Benefit Sharing of Marine Genetic Resources from Areas beyond National Jurisdiction: Intellectual Property-Friend, Not Foe,” Chicago Journal of International Law 14 (2014): 510. David Freestone, “The Final Frontier,” 70–71; Lawson, Regulating Genetic Resources, 103. Petra Drankier et al., “Marine Genetic Resources in Areas beyond National Jurisdiction: Access and Benefit Sharing,” The International Journal of Marine and Coastal Law 27 (2012), 431–432.

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Nonetheless, the international community is making efforts to provide legal certainty through the development of a new international instrument under unclos. At the first PrepCom meeting the international community made progress—moving from the question of whether a new international instrument was needed to discussing how to formulate such an international instrument for the purpose of achieving conservation and sustainable use of marine biological diversity in abnj, including access and benefit-sharing of mgrs.83 The second PrepCom meeting continued to meet the expectations raised by such constructive dialogue at the first meeting; delegations put forward more detailed submissions and made efforts to achieve possible areas of convergence. However, a difference of opinions still exists regarding the extent to which unclos can apply to mgrs in abnj. Even though the international community was able to address various issues, such as the definition, scope and benefit-sharing of mgrs, in greater depth at the PrepCom than in previous bbnj wg meetings, there is still a long way to go to resolve divergent views. The actual negotiation to achieve conformity with unclos and to resolve possible conflicts with other existing regimes is expected to be difficult. In closing, the following points are suggested for consideration in future discussions of an international instrument on mgrs in abnj, in particular, an international legally binding instrument under the unclos:84 to coordinate a new instrument with existing regimes related to genetic resources; to keep the balance between sustainable use and conservation; and to strike a balance between access and benefit-sharing85 and between the interests of developing states and developed countries. 83 See the detailed information at http://www.un.org/Depts/los/biodiversity/prepcom .htm; Earth Negotiations Bulletin, Vol. 25, No. 106, 18–20 (http://www.iisd.ca/oceans/bbnj/ prepcom1/). 84 The reason why attention should be drawn to the bbnj instrument is that current crosscutting discussions on mgrs within the framework of bbnj, such as scope, principles and approaches, are the most advanced and comprehensive developments, so it can establish standards for the international regime for mgrs in abnj. 85 It is important to strike a balance between access to and benefit sharing of mgrs in abnj. There are differences of opinion regarding how benefits could be shared fairly and equitably. Developing states are of the view that experience from current legal regimes such as the Nagoya Protocol and itpgrfa can be usefully considered. In the meantime developed states express concerns over a new legal instrument that might impede the research and development activities of mgrs in abnj. In this regard, any future discussion on mgrs in abnj should be in the context of bbnj, and not just as a separate discussion. Considering the mgrs in abnj as an integral part of a packaged item as a whole and together with three other issues—mpas, eias, capacity building and transfer of marine

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The international community has faced very important but difficult challenges in developing an international instrument under unclos in the 30-plus years since adoption of unclos in 1982. Formulating a new, viable international regime will be a challenge, given the salient differences of interests between developed and developing States. Considering that the legal status of mgrs in abnj is the core issue and the starting point of discussion, in order to avoid deadlock and to make progress in setting the regulatory mechanism for mgrs in abnj, it is most prudent to come up with a practical solution and to put the arguments on the legal status and the principles aside for the time-being.86 In this regard, the best possible solution to the issues of mgrs in abnj should be an international instrument that would complement unclos and fill its gaps but not undermine the existing relevant regimes and other instruments. Such progressive development of the law of the sea will promote the economic and social advancement of all people of the world.

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technology—a more comprehensive and integral approach is needed to create viable and sustainable regulations on mgrs in abnj. Concerns were expressed that introducing the chm concept to mgrs in abnj could result in reopening the negotiation of unclos. However, there is a need to at least touch upon and deal with the relevant current regimes on mgrs including unclos. To make progress in negotiating the actual international instrument, simply a more practical and pragmatic approach is necessary.

Part 5 New Developments (and Challenges) in the Arena of Ocean Law

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chapter 16

Defining “Serious Harm” and “Harmful Effects” for Deep Seabed Mining in the Area Kathryn Mengerink I

Introduction

The issue of deep seabed mining, how to manage it, and who benefits from it was a topic of intense debate during the lengthy period of negotiations to develop the United Nations Convention on the Law of the Sea (unclos) in the 1970s and 1980s.1 Famously, it was so contentious, in fact, that the treaty terms were not agreed upon until extended negotiations were undertaken, after the bulk of the instrument had been put together, in order to set the terms of a framework for international controls over deep seabed mining; and not until 1994, when substantial revision of that framework was accomplished, designed to meet the objections to the original treaty terms put forth by the United States and other developed nations, did unclos enter to into force.2 While the new framework was incorporated into the unclos “package” (as the “­Agreement * Executive Director at the Waitt Institute; from 2006–2016, Director of the Ocean Program at the Environmental Law Institute. This paper, presented at the 2015 losi conference at uc Berkeley, and subsequently revised for present publication, builds from the work of a 2014 workshop co-hosted by the author, Lisa Levin (Scripps Institution of Oceanography), and Ashley Rowden (National Institute of Water and Atmospheric Research, New Zealand) and funded by the Total Foundation. The workshop brought together scientists, lawyers, ­regulators, and industry experts to discuss how to define significant impacts for deep seabed mining. The writing of this paper was funded by a grant to the author from the Waitt Foundation. The author thanks Nate Boesch who provided background research on the national laws, regulations and assessments related to defining significant impacts. 1 United Nations Law of the Sea Treaty, (Montego Bay), 10 Dec.1982, 1833 u.n.t.s. 3 (hereafter unclos). 2 1994 Agreement Relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982, Doc. A/RES.48/263 (1994) (hereafter unclos Implementing Agreement). See, inter alia, John R. Stevenson and Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea: the 1974 Caracas Session,” American Journal of International Law 69 (1975):1 (discussing major themes negotiated during the 1974 conference, including the development of a mining regime in accordance with the “­common

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_018

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relating to the Implementation of Part xi of unclos,” adopted in 1994), and while there was a widely held belief at the time as to the promise of wealth contained within the seabed, the cost and difficulty of operating in the abyss has long held seabed mining at bay.3 In the decades following the adoption of unclos, the topic of the international seabed drifted into relative obscurity with few commentators beyond the halls of academia giving it s­ ignificant attention. Today, however, the wheels of international seabed enterprises have begun to turn, and a growing number of prospectors are obtaining exploration leases with the goal of achieving commercial-scale exploitation of areas as large as medium-sized nations.4 To keep pace with commercial and State interests in seabed exploitation, the International Seabed Authority (the Authority)—the institution tasked with regulating the international seabed beyond national jurisdiction, known as the Area—is now under pressure to develop an appropriate Mining Code5 for the seabed underlying almost half of the world’s surface. Already the Authority has issued regulations for exploration,6 as well as exploration

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heritage of mankind” principle); and Stevenson and Oxman, “The Future of the United Nations Convention on the Law of the Sea,” American Journal of International Law, 88 (1994): 48. S.D. Scott, “Deep Ocean Mining,” Geoscience Canada 87 (2001): 87. The Agreement Relating to the Implementation of Part xi of the Convention requires the Authority to adopt rules, regulations and procedures when a request is made by a State or when the Authority determines commercial exploitation is imminent. unclos Implementing Agreement, Art 1(15). The Authority was asked to develop rules and regulations in 1998, and it began drafting regulations for prospecting and exploration in 2004. United Nations Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Marine Mineral Resources: Scientific Advances and Economic Perspectives, 9–10 (2004), available at https:// www.isa.org.jm/sites/default/files/files/documents/isa-daolos.pdf. International Seabed Authority (hereafter Authority), The Mining Code, at https://www.isa .org.jm/mining-code (last visited 20 Dec. 2017). Authority, Regulations on prospecting and exploration for polymetallic sulphides in the Area (2010) (approved by Decision of the Assembly of the International Seabed Authority relating to the regulations on prospecting and exploration for polymetallic sulphides in the Area, ISBA/16/A/12/Rev.1, 7 May 2010); Authority, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (2012) (approved by the Decision of the Assembly of the International Seabed Authority relating to the Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 27 July 2012); Authority, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (2013) (approved by Decision of the Council of the International Seabed Authority relating to amendments to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and related matters, ISBA/19/C/17, 22 July 2013).

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­ ermits for huge swaths of the deep seabed. It now faces the daunting task p of ­developing ­regulations for exploitation.7 Under existing exploration regulations, the A ­ uthority requires operators to minimize or eliminate adverse environmental impacts. Included and essential to the exploitation regulations is the creation of an appropriate environmental management system. At the crux of the matter is determining what type and amount of harm is acceptable, and when harm is expected to reach unacceptable levels, thereby ­triggering actions such as mitigation or prohibition of action as determined by the International Seabed Authority. Mining will certainly cause a substantial impact to the marine environment. What is necessary is to determine the point at which such impacts are significant enough to warrant action: the range of possible actions includes avoidance, minimization of impact, and, potentially, restoration. Both individual mining site impacts and cumulative impacts must be taken into account. This paper will explore the legal regime for seabed mining, focusing specifically on the Authority’s requirements to avoid and minimize serious harm, based on the requirements of unclos. Part ii of the paper will describe existing mineral resources and proposed approaches to exploit those resources on the deep seabed, providing the reader with an overview of the types of harm anticipated. Part iii will describe the legal requirements for ­protecting the marine environment and addressing serious harm and harmful effects in ­accordance with unclos. Part iv will discuss national approaches to defining harm with the aim of building from national practices to design the international framework. Part v will consider the unique attributes of the deep sea that are e­ ssential to consider when interpreting harm. Part vi will explore the unique ­properties of the deep ocean along with expected mining impacts and  discuss what predicted impacts should trigger a management response. Contending that commercial-scale seabed mining will necessarily cause ­significant impacts to some ecosystems, the paper concludes with ­recommendations for how the A ­ uthority can meet its obligations to ensure ­effective protection against ­harmful effects that arise from activities in the Area.

7 For information on the development of the exploitation regulations, see Authority, Seabed Authority Issues Draft Framework for the Regulation of Exploitation Activities, at https:// www.isa.org.jm/news/seabed-authority-issues-draft-framework-regulation-exploitation -activities (last visited 15 September 2016).

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Mining in the Area8

The Area is defined in article 1 (1) of unclos as the seabed and ocean floor and subsoil that lies beyond the limits of national jurisdiction; that area ­beyond States’ continental shelf claims that extend 200 miles from shore (or ­potentially further if a State has an extended continental shelf).9 It ­encompasses ­approximately 60% of the world’s seabed. Deep seabed mining in the Area is currently focused on three main resources—(1) polymetallic nodules (also known as manganese nodules) that are scattered across large swaths of the abyssal plains, (2) cobalt-rich ferromanganese crusts (cobalt crusts) covering seamounts, and (3) polymetallic sulfides found at active and inactive ­hydrothermal vents.10 Mining may occur in national and international jurisdictions and exist along with a suite of other human activities that take place in and/or impact deep sea ecosystems (Figure 16.1).11 As with mining on land, all three types of mining activities involve h ­ arvesting large quantities of material, extracting target minerals, and discarding unwanted materials. Seabed mining will require mining equipment operating on the seafloor to grind and/or gather seabed materials, pipe the mineral slurry to the surface for initial separation and processing on a mining ship or platform, and then pipe unwanted materials back to the seafloor or into the water column. A Polymetallic Nodules Containing nickel, copper, cobalt, and manganese, polymetallic nodules vary in size from microscopic to 20 or more centimeters in diameter.12 They are found at the surface of the sediments of the abyssal plains typically in w ­ aters 4,000– 6,000 meters deep and take millions of years to form.13 While ­polymetallic 8

For an in-depth discussion of potential significant impacts caused by deep seabed mining, see Lisa A. Levin, Kathryn J. Mengerink, Kristina M. Gjerde et al., “Defining ‘Serious Harm’ to the Marine Environment in the Context of Deep Seabed Mining,” Marine Policy 74 (2016): 245–259. 9 unclos, Art 1(1) (defining the “Area” as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”); unclos Art 76 (defining the continental shelf for purposes of State jurisdiction). 10 For an overview, see International Seabed Authority, Deep Seabed Mineral Resources, at https://www.isa.org.jm/mineral-resources/55. 11 Kathryn J. Mengerink, Cindy L. Van Dover, Jeff Ardron et al., “A Call for Deep Ocean Stewardship,” Science 344 (2014): 696. 12 International Seabed Authority, Polymetallic Nodules (not dated), available at https:// www.isa.org.jm/files/documents/EN/Brochures/ENG7.pdf. 13 Ibid.

451

Defining “Serious Harm” and “Harmful Effects” Potential phosphate mining Oil & gas drilling

.2 km

Pelagic fisheries

trawl f isheries climate change, pollution, & marine debris

Potential cobalt crust & sulf ide mining

seamount f isheries

1 km

2 km

Mean seamount depth & hydrothermal vent depth (2.2 km) 3 km

4 km

CONTINENTAL CONTINENTAL SHELF MARGIN Largely national jurisdiction

Largely national jurisdiction

TRENCH

Avg ocean depth SEAMOUNTS & MID- (4.3 km) OCEAN RIDGES 5 km Potential manganese nodule mining

National & international jurisdiction

ABYSSAL PLAIN

6 km

National & international jurisdiction

Largely national jurisdiction

Figure 16.1

Existing and potential uses and impacts to the deep ocean. Source: mengerink et al., 2014.

­ odules are found in all the world’s oceans, they vary in abundance and in n some places can cover up to 70% of the bottom.14 One such ­location of high abundance is the Clarion-Clipperton Zone in the Pacific Ocean where 14 ­companies have already obtained contracts for exploration—each with the potential to obtain an initial exploration lease of a 150,000 km2 area (an area roughly the size of the u.s. State of Montana).15 Because polymetallic nodules exist at the water-sediment interface, their collection involves removal of the surface layer of the sediment. According to Lockheed Martin, one of the early proponents of deep seabed mining and a contractor with an active exploration lease today, the mining will utilize largescale collectors to gather nodules.16 The collected slurry with the nodules will be transferred from the collectors through a riser pipe to a ship and ­transferred 14 Ibid. 15 International Seabed Authority. “Overview.” https://www.isa.org.jm/deep-seabed-minerals -contractors/overview. 16 LockheedMartinVideos, “Polymetallic Nodules.” https://www.youtube.com/watch?v=71J8 Yqykgs0.

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onshore for processing. Initial waste disposal will occur in the ocean at the mining site before materials are moved to the carriers for onshore transport and further processing.17 The initial waste will include water, sand and other unwanted slurry materials. It is anticipated that these materials will be ­released directly into the water column through a waste disposal pipe that either ­releases into the water column or returns the waste to the seafloor. Environmental impacts caused by polymetallic nodule mining will be both onsite and offsite. Impacts include direct impact to the mining site by r­ emoval of hard substrate (nodules) and surrounding sediment; sediment plume caused by mining equipment in waters adjacent to the seabed where mining is occurring; noise and possibly light pollution caused by mining operation; and sediment plume and pollution caused by release of waste back into ocean as well as benthic disruption where the waste materials settle. Due to the fine sediment of the abyssal plains and the slow-moving currents at these depths, the sediment plumes are expected to be extensive and potentially long-­lasting. In addition, accidental discharge, loss of equipment, and other accidents could cause additional impacts. B Cobalt-rich Ferromanganese Crusts Cobalt-rich ferromanganese crusts, or cobalt crusts, are pavements that accrete on hard substrates. They range from a few to a few hundred millimeters in width18 and form on seamounts, knolls and ridges in 800 to 2,500 meters water depth.19 Similar to polymetallic nodules, cobalt crusts develop slowly at rates of one to five millimeters per million years making them non-­renewable resources.20 Cobalt crusts are located throughout the world both within and beyond national jurisdictions. They contain rare earth metals like cobalt as well as trace metals that are used for technologies such as cell phones and photovoltaics. To date, only three contracts have been issued for cobalt-crust exploration in the Area, all occurring in the Western Pacific Ocean.21 17

International Seabed Authority, Polymetallic Nodules (not dated), available at https:// www.isa.org.jm/files/documents/EN/Brochures/ENG7.pdf. 18 Geoffrey P. Glasby, “Chapter 11: Manganese: Predominant Role of Nodules and Crusts,” in Marine Geochemistry, 2nd Edition, Horst D. Schulz & Matthias Zabel eds., (Berlin: ­Springer-Verlag, 2006), 390–393. 19 Elaine Baker & Yannick Beaudoin, eds., Deep Sea Minerals: Cobalt-Rich Ferromanganese Crusts: A Physical, Biological, Environmental & Technical Review (Secretariat of the ­Pacific, 2013) http://www.sopac.org/dsm/public/files/meetings/TrainingWorkshop4/UNEP_vol1C .pdf. 20 Ibid. 21 International Seabed Authority, “Deep Seabed Minerals Contractors: Overview,” https:// www.isa.org.jm/deep-seabed-minerals-contractors.

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Unlike polymetallic nodules, mining cobalt-crusts will require intensive cutting and scraping to remove the crust from the underlying hard substrate.22 Once the crusts are removed, a similar process to that described for polymetallic nodules is expected—piping the slurry to the surface to be sorted and discharge of waste back into the marine environment. Sources of impacts are the same as polymetallic nodules. However, given the lack of soft sediments in cobalt crust environments in comparison to polymetallic nodules systems, the extent of the plume at the mining site and the discharge pipe may be substantially less. C Polymetallic Sulfides Polymetallic massive sulfides are mineral deposits that are found at both active and inactive hydrothermal vent sites. They form when the low pH and high temperature hydrothermal fluid that is ejected from an active vent rapidly cools as it makes contact with the surrounding seawater. This cooling causes the ­metals to precipitate, settling on the surrounding seafloor. The mineral ­deposits include economically important metals such as copper, zinc, gold and silver.23 Unlike the expansive spatial scale of polymetallic nodule mining, polymetallic sulfide mining is expected to occur in small areas, and the primary approach to mining will be the removal of the surface of the benthic ­substrate.24 The types of mining impacts should be similar to cobalt-crust mining, with sediment plumes much smaller than those expected to occur with ­polymetallic nodule mining.25 There are two possible types of mining sites: (1) active h ­ ydrothermal vents; and (2) inactive hydrothermal vent sites. While active sites, because of their thermal signature, may be easier to identify than inactive sites, mining the active sites might be much more difficult due the extreme temperatures at the vents. It may be more feasible for mining companies to focus on inactive vents that contain the same mineral resources in less hazardous conditions. The difference from a biological perspective is an important one, as hydrothermal vent communities contain highly specialized and unique species that are found in few other places on the planet.26 22 23

24 25 26

Scott, “Deep Ocean Mining, ” 89. International Seabed Authority, Polymetallic Massive Sulphides and Cobalt-Rich Ferromanganese Crusts: Status and Prospects (2002), available at https://www.isa.org.jm/sites/ default/files/files/documents/techstudy2.pdf. Ibid., 24. Cindy Lee Van Dover, “Impacts of Anthropogenic Disturbance at Deep-Sea Hydrothermal Vent Ecosystems: A Review,” Marine Environmental Research 102 (2014): 59. See, e.g., Lisa W. Drew, “The Promise and Perils of Seafloor Mining,” Oceanus Magazine 47 (2009).

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The biotic c­ ommunities in active sites often grow rapidly and could potentially be restored or be relatively quick to recover following mining activities.27 In contrast, inactive vents have communities that depend on hard substrate and often include slow-growing communities that might not recover for decades to hundreds of years.28 III

Legal Requirements for Addressing Serious Harm

A Requirement to Protect and Preserve the Marine Environment Broad marine protection objectives of unclos serve as a starting point for evaluating how to define serious harm and harmful effects associated with deep seabed mining. Part xii imposes the general obligation on States to “­protect and preserve the marine environment.”29 Also, States must prevent, reduce and control pollution,30 including a specific requirement to minimize pollution in the exploration or exploitation of the seabed and subsoil.31 Such measures should include both individual as well as joint actions as appropriate using the best practicable means and by endeavoring to harmonize ­policies among States.32 Pollution of the marine environment focuses on pollution that results in “deleterious effects” including, inter alia, “harm to living marine resources and marine life.”33 unclos recognizes that some habitats and ­species are more sensitive or rarer than others and calls upon States to include ­measures necessary to protect and preserve these habitats and species.34 27

Cindy Lee Van Dover, “Impacts of Anthropogenic Disturbance at Deep-Sea Hydrothermal Vent Ecosystems: A Review.” 28 Cindy Lee Van Dover, “Mining Seafloor Massive Sulphides and Biodiversity: What is At Risk?” ices Journal of Marine Science 68(2011): 341, 345. 29 unclos, Art 192. See, inter alia, Alexander Proelss, “The Role of the Authority in Ocean Governance,” in Harry N. Scheiber and Jin-Hyun Paik, Regions, Institutions and Law of the Sea: Studies in Ocean Governance (Leiden and Boston: Nijhoff/Brill, 2013), 145–160. 30 unclos, Art 194. “Pollution of the marine environment” is defined as “introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.” unclos, Art 1(4). 31 unclos, Art 194(3)(c). 32 unclos, Art 194(1). 33 Ibid. 34 unclos, Art 194(5).

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In addition to the general provisions, Part xii of unclos specifically addresses monitoring and environmental assessment. In accordance with ­u nclos, States must monitor the risks and effects of pollution,35 publish the results of these monitoring efforts,36 and “[w]hen States have reasonable grounds for believing planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the ­marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments…” (emphasis added)37 Applying this requirement to seabed mining, when a State undertakes or authorizes seabed mining in national waters (under State jurisdiction) or in a State’s lease in the Area, the State has an obligation to assess and communicate potential effects of activities where there is a reasonable belief that the activities will cause “significant and harmful changes” to the marine environment. Regarding activities within national jurisdiction, of particular note is Article 208, which calls upon coastal States to adopt rules and regulations to ­address pollution that are “no less effective than international rules, standards and recommended practices and procedures.”38 In addition, States are to act through competent international organizations to establish global rules, standards, practices and procedures to prevent, reduce and control pollution.39 For deep seabed mining in areas beyond national jurisdiction, the competent ­international organization is the International Seabed Authority. Therefore, the Authority’s development of the international mining regime should form the foundation for pollution regulation of seabed mining in national waters as well as international waters. B Protecting and Addressing Harm in the Area Section xi of unclos delineates the international framework for management of the Area and its resources.40 As mentioned above, specifically unclos calls for the establishment of the International Seabed Authority,41 an organization through which State Parties manage the Area.42 The Authority is comprised 35 36 37 38 39 40 41 42

unclos, Art 204. unclos, Art 205. unclos, Art 206 (emphasis added). unclos, Art 208. unclos, Art 208(5). unclos, Part xi. unclos, Art 157. unclos, Art 158.

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of the Assembly, Council and Secretariat.43 The Council is a 36-member body made up of a subset of the members of the Assembly. One subsidiary body of the Council that is particularly relevant for legal development is the Legal and Technical Commission (ltc).44 The ltc is a 15-member body made up of State Party nominees with appropriate expertise, including exploration and exploitation of minerals, oceanography, marine protection, economics or law related to mining. The ltc is tasked with, among other things: • “[P]repar[ing] assessments of the environmental implications of activities in the Area,” • Making recommendations regarding marine protection, • Formulating and submitting rules, regulations and procedures to the Council for approval, • Making recommendations regarding a monitoring program to evaluate risks or effects of marine pollution resulting from activities in the Area and ensure compliance with management requirements, • Making recommendations regarding the issuance of emergency orders, including suspension of operations to “prevent serious harm to the marine environment,” and • Making recommendations to disapprove areas for exploitation by contractors or the Enterprise “where substantial evidence indicates the risk of serious harm to the marine environment.”45 The ltc provides its recommendations and drafted rules, regulations and procedures to the Council.46 The Council is tasked with using these recommendations to adopt regulations subject to the approval of the Assembly, which is composed of all State parties to unclos.47 In sum, the ltc has a critical role to play in the design, development and implementation of seabed ­mining ­regulations as it relates to the design and implementation of an effective ­program to protect the marine environment and address mining impacts that cause serious harm to the marine environment. In designing the Mining Code48 and in determining how best to evaluate, characterize and respond to harm to the marine environment, the Authority 43 44 45 46 47 48

unclos, Art 158. unclos, Art 163. unclos, Art 165 (emphasis added). unclos, Art 165(2)(f). unclos, Art 162(2)(o)(ii). International Seabed Authority (hereafter Authority), The Mining Code, at https://www .isa.org.jm/mining-code (last visited 15 Sept 2016); See fn [x] and accompanying text for discussion.

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must look to both the general provisions of unclos and the specific provisions regulating the Area. Part xi of unclos addresses the management of the Area. Fundamental is Article 136 stating that “[t]he Area and its resources are the common heritage of mankind”49—that the seabed is not subject to appropriation by any one nation, that it is reserved for peaceful purposes, and that the resources are to benefit mankind as a whole.50 One of the core ­principles governing the Area is Article 145, which calls for measures “to ensure effective protection for the marine environment from harmful effects” that arise from activities in the Area.51 Article 145 goes on to state that the Authority shall adopt rules, regulations and procedures for: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other ­devices related to such activities; (b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment.52 It is relevant to note that this provision calls for special attention to the issue of protecting the marine environment from the “harmful effects” caused by all types of mining activities, ranging from drilling and dredging to waste disposal, and to maintenance of installations and pipelines. In accordance with Annex iii of unclos, which identifies requirements for prospecting, exploration and exploitation of the Area, the Authority is tasked with adopting and applying rules, regulations and procedures on a variety of matters, including, among others, mining standards and practices related to

49 50

51 52

unclos, Art 136. For in-depth discussions of this principle, see Christopher C. Joyner, “Legal Implications of the Concept of the Common Heritage of Mankind,” International and Comparative Law Quarterly, 35(1986): 190–199; Michael Lodge, “The Common Heritage of Mankind,” ­International Journal of Marine and Coastal Law 27(2012): 733–742; and Lodge, “Implementation of the Common Heritage of Mankind,” in Scheiber and Paik, Regions, ­Institutions and Law of the Sea, 129–144. unclos, Art 145 (emphasis added). Ibid. (unclos Art 145) (emphasis added).

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protection of the marine environment.53 When the Authority adopts rules, regulations and procedures for marine protection, they must be written so as “to secure effective protection of the marine environment from harmful effects directly resulting from activities in the Area or from shipboard processing immediately above a mine site of minerals derived from that mine site, taking into account the extent to which such harmful effects may directly result from drilling, dredging, coring, and excavation and from disposal, dumping and discharge into the marine environment of sediment, waste or other effluents.”54 Combining the principles governing the Area with the requirements for prospecting, exploration and exploitation laid out in Annex iii of unclos, it is clear that what constitutes “harmful effects” will be critical to the design of appropriate environmental management systems for seabed mining. Altogether unclos includes strong requirements to take action to protect the marine environment and assess and prevent harm caused by deep seabed mining in the Area. General provisions create a positive duty for States to ­protect and preserve the marine environment.55 States also must prevent, control, and reduce pollution through individual and joint action.56 unclos further requires States to assess and communicate “significant and harmful changes” expected from planned activities in the marine environment.57 Therefore, States must protect the environment and assess and prevent harm. These State requirements should inform international action and the development of the mining code under the Authority. Turning to the Area, unclos provides similarly strong language requiring the Authority protect the marine environment from “harmful effects” resulting from deep seabed mining activities.58 In addition, it tasks the ltc with making recommendations regarding the issuance of emergency orders, including suspension of operations to “prevent serious harm to the marine environment.”59 It further calls for the ltc to make recommendations to disapprove areas for exploitation by contractors or the Enterprise “where substantial evidence ­indicates the risk of serious harm to the marine environment.”60

53 unclos, Annex iii, Art 17. Emphasis added. 54 unclos, Annex iii, Art 17(2)(f). 55 unclos, Art 192. 56 unclos, Art 194. 57 unclos, Art 206. 58 unclos, Art 145. 59 unclos, Art 165. 60 Ibid.

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It should be noted that Article 192 of unclos first creates a positive duty on States to protect and preserve the marine environment. This duty to protect and preserve is a broad one and occurs outside the context of a particular exploitation activity. Second, unclos requires action to address harm and impact caused by specific types of activities, including deep seabed mining. The text of unclos characterizes harm and impacts in several ways, using the phrases “significant and harmful changes,” “harmful effects,” and “serious harm to the marine environment.” All of these terms describe unacceptable impacts to the marine environment that should trigger actions by States individually or collectively through the Authority to prevent, minimize or respond to such impacts. The following sections explore the use of these terms and how they could be interpreted to inform the Authority’s decisions regarding mining activities in the Area. C Initial Consideration of the Terms Serious, Significant and Harmful The Authority is required to protect the marine environment from “harmful effects” of seabed mining activities, whereas an organ of the Authority, the ltc, in contrast, is called upon to make recommendations to take action when there is a substantial risk of “serious harm.” Therefore, there is a question of how to interpret “harmful effects” and “serious harm.” As a starting point, this analysis considers the International Law ­Commission (ilc) Draft Articles on Prevention of Transboundary Harm from Hazardous ­Activities with Commentaries (Draft Articles) focused on preventing transboundary harm.61 The scope of the Draft Articles centers on activities “which involve a risk of causing significant transboundary harm.”62 Setting aside the issue of “transboundary” for purposes of this paper, it is useful to understand how the Commission defines “significant” and “harm.” The Commission defines “harm” as “harm caused to persons, property or the environment.”63 The Commission does not specifically define the terms “significant” or “serious” in the Draft Articles but instead discusses them in the commentary following 61

62 63

International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries: Report of the International Law Commission on the Work of Its Fifty-Third Session (2001) (hereafter Draft Articles). The International Law Commission, established by the United Nations General Assembly in 1947, serves the function of promoting “progressive development of international law and its codification.” Statute of the International Law Commission (1947), Art. 1. Thus, the Draft Articles and accompanying commentary can provide insight into how best to interpret terminology related to environmental impact. Ibid., Art 1. Ibid., Art. 2(b).

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­ rticle 2 and notes that determination of the significance of a particular harm A is more of a factual determination than a legal one.64 The Commission further provides that “‘significant’ is something more than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial.’”65 Based on the ilc Draft Articles and commentary, this paper considers “significant harm” as encompassing “­serious harm” but also including harm that is less than that rising to the level of “serious.” The Draft Articles commentary recognizes that all human activities have impacts, and as long as such impacts are not significant ones, they are considered tolerable.66 The issue, therefore, as to when management action is mandatory in response to an impact, is an issue that turns of the application of the term “significant harm.” The level at which harm is deemed significant constitutes the threshold at which action should be taken to address the harm, including avoiding, minimizing, or prohibiting it. Serious harm is something more. In the context of unclos, this paper argues that serious harm should be defined as the level of harm that is unacceptable. Turning to unclos, one can apply the approach taken by the International Law Commission: if “harmful effects” under unclos is something less than “significant harmful effects,” a question arises as to whether the Authority would have the duty to protect the marine environment from all harms imaginable, as the ilc definition of harm would seem to indicate. Alternatively, “harmful effects” under unclos could be viewed as something more akin to “significant” harm. Assuming that the drafters of unclos did not mean to imply that all harm, even de minimus harm, should trigger management action, one could argue that “harmful effects” in the context of deep seabed mining in the Area should be more narrowly construed as to include only those effects which cause harm that requires management response. Furthermore, the ilc notes other conventions and domestic laws use different terms, including “significant,” “serious,” or “substantial,” to identify the threshold at which action should be taken.67 Therefore, the distinction between significant harm and serious harm is not necessarily a clear one. Applying the ilc hierarchy to unclos, “serious harm” presumably would be deemed something greater than “harmful effects.” As stated previously a core principle for managing activities in the Area is to “ensure effective 64 Ibid., Art. 2 commentary, para 4. 65 Ibid. 66 Ibid., Art. 2 commentary, para 5. 67 Ibid., Art. 2, commentary, para 6.

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­ rotection for the marine environment from harmful effects.”68 This principle p of prevention from harmful effects applies to the management of all activities in the Area. The heightened standard of “serious harm” applies more narrowly under unclos Article 162(2)(w, x) and Article 165(2)(k, l) in cases of issuing emergency orders to e.g. halt operations and in cases of disapproving areas for exploitation.69 To be sure, an obvious element of subjective judgment is involved in designating a particular harm from mining as being unacceptable. Yet there are important instances in which major international agreements have sought to provide a more objective standard. And so it is useful to look to treaties, softlaw documents and legal opinions to understand what types of harm have specifically been identified as unacceptable. While the following list is far from exhaustive, examples include: • Helsinki Convention that protects the marine environment of the Baltic Sea area which defines harmful substances as those that cause pollution. The Helsinki Convention creates a legal framework to control them.70 • Convention on the Regulation of Antarctic Mineral Resource Activities ­ defining damage to the environment to include “harm to atmospheric, marine or terrestrial life, beyond that which is negligible or which has been assessed and judged to be acceptable pursuant to this Convention.”71 • spaw Protocol to the Cartagena Convention, focused on protected areas and wildlife of the Caribbean marine environment, calls for actions to p ­ rohibit harm to endangered and threatened species and their habitats.72

68 69

70

71

72

unclos, Art 145 (emphasis added). Ibid., Arts. 162(2)(w), (x) & 165(2)(k), (l). However, the exploration regulations and environmental assessment guidelines blur the usage of these terms as will be discussed. See infra at notes 74–108 and accompanying text. Convention on the Protection of the Marine Environment of the Baltic Sea Area, adopted 4 June 1974, entered into force 3 May 1980 (Helsinki Convention) (as amended through Dec 1993), 13 i.l.m. 546 (1974). Convention on the Regulation of Antarctic Mineral Resources Activities, 2 June 1988. 27 i.l.m. 868. This treaty calls upon Sponsoring States to describe measures that it has in place to “avoid harmful environmental consequences” when notifying the Commission about plans for prospecting. Ibid. at § 37(7)(e). Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (spaw Protocol), adopted 18 Jan 1990, entered into force 18 June 2000.

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In conclusion, the International Law Commission provides a starting point upon which to evaluate how terms such as “significant,” “serious,” and “­harmful effects” could be interpreted. Furthermore, existing international law texts provide additional insight into how serious harm and harmful effects may be interpreted. D Prospecting, Exploration and Exploitation With the development of rules, regulations and procedures, the Authority has initiated its development of the “Mining Code,” which includes all such requirements related to prospecting, exploration, and exploitation of m ­ arine minerals in the Area.73 In particular, the Authority divides its code into (1) mandatory regulations and (2) recommendations by the ltc. To date, the Authority has developed regulations for prospecting and exploration for (1) polymetallic nodules, (2) ferromanganese crusts, and (3) polymetallic sulfides. Exploitation regulations are under development. In addition to the legal and regulatory text, the Authority has produced a technical study focused on environmental management needs for deep seabed mining.74 Also, the ltc has produced recommendations for the guidance to contractors on assessment of environmental impacts.75 Turning first to the regulations, the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Nodule Regulations) provide an example of the requirements to address harm caused by deep seabed m ­ ining.76 The Authority is not required to follow this same approach when designing regulations for exploitation of seabed minerals. However, it is likely that the exploitation regulations will build upon the prospecting and exploration ­regulations, and therefore these regulations provide an opportunity to more fully understand the Authority’s interpretation of unclos requirements to protect and preserve the marine environment in the face of mining activities. 73 74

75

76

The Mining Code, https://www.isa.org.jm/mining-code (last visited 15 Sept 2016). International Seabed Authority, Environmental Management Needs for Exploration and Exploitation of Deep Sea Minerals, isa Technical Study No. 10 (2012), http://www.isa.org.jm/ files/documents/EN/Pubs/TS10/TS10-Final.pdf. Legal and Technical Commission, Recommendations for the Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Marine Minerals in the Area, Doc no: ISBA/19/LTC/8 (2013). International Seabed Authority, Regulations on the Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/16/A/12 /Rev.1 (approved on 13 July 2000 and amended on 25 July 2013) (hereafter Nodule Regulations). In addition to these prospect and exploration regulations, the Authority has produced such regulations for seabed massive sulfides and cobalt crusts resources.

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At the outset, it is important to note that the Nodule Regulations use a ­variety of terms that convey unacceptable human impact with different r­ equirements that flow from these terms. These terms include “serious harm to the marine environment,”77 “adverse environmental impact,”78 “environmental impact,”79 “impact,”80 and “harmful effects.”81 The Nodule Regulations include broad requirements related to protection and preservation of the marine environment.82 The regulations specifically call upon the Authority and sponsoring States to apply the precautionary approach and best environmental practices to ensure effective protection to the marine environment against harmful effects caused by activities in the Area.83 Furthermore the ltc is tasked with developing and implementing procedures for determining whether proposed exploration activities will have “serious harmful effects on vulnerable marine ecosystems,” and if that is the case that the activities are managed to prevent such effects or are prohibited.84 In order to monitor and evaluate impacts, the Council has the authority to require areas to be set aside as impact reference zones and preservation reference zones.85 The impact reference zones are areas to be used to assess the effect of ­activities. Preservation reference zones, in contrast, serve as a baseline outside of the mining impact areas upon which to measure change caused by mining activities. The Nodule Regulations consider both prospecting and exploration, with exploration being a more intensive and potentially impactful activity designed to determine whether mining is commercially viable, among other things.86 Regarding prospecting, the Nodule Regulations specifically state that prospecting shall not occur if “substantial evidence indicates the risk of serious harm to the marine environment.”87 Nodule Regulations further state that prospecting is prohibited in areas in which the Council has disapproved exploitation

77 78 79 80 81 82 83 84 85 86 87

Ibid., Regulation 1(3)(f) and addressed in Regulations 2, 5, 12, 21, 33, 34 and Annex iv § 6 (2013). Nodule Regulations, supra note 80, Regulation 5(1)(a). Ibid., Regulation 18(b); Annex ii §iv(24). Ibid., Regulations 18, 21(4)(b), 31(b); Annex iv § 5. Ibid., Regulations 31, 32. Ibid., Regulation 31. Ibid., Regulation 31(2). Ibid., Regulation 31(4). Ibid., Regulation 31(6). Ibid., Regulation 1(3)(a), 1(3)(e). Ibid., Regulation 2(2).

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b­ ecause of the risk of serious harm to the marine environment.88 This provision clearly anticipates the potential for the Authority to set aside areas to be protected from mining, because any mining activities would be at substantial risk of causing serious harm. The Nodule Regulations also set out specific requirements to prevent, reduce and control pollution and other hazards while prospecting and to apply the precautionary approach.89 Furthermore, the ­Nodule Regulations require prospectors to “minimize or eliminate … adverse environmental impacts…”90 When inadvertent impacts that pose a threat of ­serious harm to the marine environment do occur, the Nodule Regulations provide for mechanisms to take emergency actions to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment.91 Before exploration can occur, an applicant must submit and obtain approval of an exploration plan.92 The plan must include a description of baseline conditions to enable the Authority to evaluate potential environmental ­impact including biodiversity impacts.93 The plan also must provide a preliminary assessment of possible impact to the marine environment and describe measures to prevent, reduce, and control such impact.94 The ltc uses the plan to evaluate whether to applicants will provide for effective protection and ­preservation of the marine environment, including protecting and preserving biodiversity.95 The ltc may recommend approval of a plan only if it meets these requirements, among other.96 If an area has already been designated as disapproved for exploitation due to risk of serious harm to the marine environment, the ltc cannot recommend approval of that area for exploration.97 The Nodule Regulations define “serious harm to the marine environment” as meaning “any effect from Activities in the Area on the marine environment which represents a significant adverse change in the marine environment determined according to the rules, regulations and procedures adopted by the

88 89 90 91 92 93 94 95 96 97

Ibid., Regulation 2(3). Ibid., Regulation 5(1). Ibid. (emphasis added). Ibid., Regulation 33. Ibid., Regulation 18. Ibid., Regulation 18(b). Ibid., Regulation 18(d). Ibid., Regulation 19(4)(b). Ibid., Regulation 19(4)(d). Ibid., Regulation 19(6)(b).

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Authority on the basis of internationally recognized standards and practices.”98 This language—“significant adverse change”—is similar to that of environmental impact assessment regimes, where environmental impact assessments are required when proposed actions are expected to cause “significant impacts” or “significant effects.” Despite this similarity, as described ­previously, finding of serious harm triggers high-level and substantial management action. Such actions include halting ongoing activities or prohibiting prospecting or exploration in a particular area altogether should there be substantial evidence of the risk of serious harm to the marine environment. In contrast, the sections of the Nodule Regulation using the terms “adverse environmental impact,” “environmental impact,” “impact,” and “harmful effects” create the type of requirements often affiliated with a finding of significant impact under many national laws. For example: • Prospectors must minimize or eliminate adverse impacts;99 • Applicants must describe a program to enable assessment of environmental impacts100 and must include a preliminary assessment of potential impacts;101 and • The Authority must develop rules, regulations and procedures to protect the marine environment from harmful effects using recommendations from the Legal and Technical Committee.102 Based on these regulations, this paper considers “harmful effects” to mean an effect caused by human impact that is significant and requires management action ranging from assessment to mitigation to prohibiting such human impacts. Under this construct, “serious harm” is a type of harmful effect that is substantial enough to require action to prohibit such impacts.

98

Regulations on the Prospecting and Exploration for Polymetallic Nodules in the Area (hereafter Nodule Regulations), Regulation 1(3)(f). 99 Ibid., Regulation 5(1)(a). 100 Ibid., Regulation 18(b). Annex ii provides the requirements for exploration plan of work in more detail. It requires applicants to include the description of the program for baseline studies that would enable assessment of “potential environmental impact including, but not restricted to, the impact on biodiversity” (Sec iv(24)(b); a preliminary assessment of the “possible impact of the proposed exploration activities on the marine environment” (Sec iv(24(c)); and a description of proposed measures to prevent, reduce, and control “possible impacts” (Sec iv(24)(d)). 101 Ibid., Regulation 18(c). 102 Ibid., Regulation 31.

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Turning next to the ltc guidance to contractors related to environmental assessment,103 the use of the term “serious harm” and “harmful effects” blurs. In Paragraph 8, the ltc states that a contractor must submit to the Authority “[a]n impact assessment of the potential effects on the marine environment of all proposed activities, excluding those activities considered by the Legal and Technical Commission to have no potential for causing harmful effects on the marine environment.”104 While the Nodule Regulations require prospectors to minimize or eliminate adverse impacts105 and exploration permit applicants must include a preliminary assessment of potential impacts,106 Paragraph 18 of the ltc guidance identifies “[a]ctivities not requiring environmental impact assessment” stating no assessment is required because such activities “have no potential for provoking serious harm to the marine environment.”107 This section goes on to identify several activities that would cause de minimus harm, including for example taking small amounts of water and sediment samples for analysis. As the Authority moves forward with exploitation regulations and environmental impact assessment requirements under such regulations, it would be useful for the Authority to provide clarity on the use of these various term, and the possibility of a tiered system of decision-making utilizing such terms as “harmful effects” and “serious harm” to describe levels of significance and the actions that such predicted harm should trigger. A Note on Precaution, Contractor Responsibility and State Responsibility There are three relevant actors when it comes to deep seabed mining: (1) the international governing body, the Authority; (2) the States obtaining leases from the Authority that have a suite of duties to protect and preserve the marine environment and assess and address harmful effects; and (3) the contractors who are sponsored by a State to undertake prospecting, exploration and exploitation activities in the Area. The question of the role and responsibilities of a sponsoring States is one that has received some attention. Through an unclos-approved mechanism, the Council can submit questions to the International Tribunal for the Law of the Sea’s Seabed Disputes Chamber to obtain advisory opinions. The Council did just this in 2010, requesting the Chamber to E

103 104 105 106 107

Legal and Technical Commission, supra note 76. Ibid., Paragraph 8(a) (emphasis added). Ibid., Regulation 5(1)(a). Ibid., Regulation 18(c). Ibid., Paragraph 18 (emphasis added).

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issue an advisory opinion on the responsibility and obligations of State sponsors with respect to activities of contractors in the Area.108 Issuing an Advisory Opinion in 2011, the Chamber focused, in part, on the sponsoring State obligation to apply the precautionary approach. Citing Principle 15 of the Rio Declaration,109 the Advisory Opinion highlighted that the application of the precautionary approach is limited to instances when there are “threats of ‘serious or irreversible damage.’”110 Citing the Nodule Regulations, the Advisory Opinion further stated that the deep seabed mining regulations call upon States to apply the precautionary approach “in order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area.”111 This approach requires States to take cost-effective measures to prevent environmental degradation.112 According to the Advisory Opinion, the precautionary approach applies when the scientific evidence regarding the potential negative effect of seabed mining activities are in question but there are “plausible indications of potential risks.”113 This Opinion by the Seabed Disputes Chamber provides additional context in which to consider how to define, understand and respond to harmful effects of mining and the risk of serious harm to the marine environment caused by deep seabed mining. Evaluating the legal framework in this context, the precautionary approach is triggered when there are threats of serious or ­irreversible damage and when science is in question but there are plausible risks of potential risks. If “serious harm” under unclos is equivalent to “serious or irreversible damage” under the Rio Declaration, it may be most useful to consider “serious harm” and “harmful effects” as equivalent

108 Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Advisory Opinion: Responsibilities and Obligations of State Sponsoring Persons and Entities with Respect to Activities in the Area (2011) (hereafter Advisory Opinion). 109 Principle 15 states “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 1992 Rio Declaration on Environment and Development. 110 Advisory Opinion, supra note 109, ¶ 128. 111 Ibid., ¶ ¶125–135. In addition, the Advisory Opinion points out that “the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States, which is applicable even outside the scope of the Regulations.” Ibid., ¶ 131. 112 Ibid., ¶ 128. 113 Ibid.

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terms, especially because of the enormity of the unknowns in the deep-sea environment. In addition, the Advisory Opinion examines the obligations of contractors to conduct environmental impact assessments, requirements that are in addition to requirements to take a precautionary approach.114 It notes the obligations are found in the Mining Code as well as being effective under customary international law. However, the Advisory Opinion points out that “general international law does not specify the scope and content of an environmental impact assessment,”115 which is the focus of Part iv of this chapter. F Summary of unclos and isa Requirements Pulling all of the requirements together, unclos provisions, deep seabed mining regulations, and the Advisory Opinion provide strong language ­ ­indicating that deep seabed mining activities cannot proceed without addressing ­harmful effects, including serious harm, caused by deep seabed ­mining activities. u ­ nclos and seabed regulations allow for mining applicants to design mitigation measures to address harm. Also, the regulations enable the ­Authority to take actions to protect certain areas when any exploitation would risk serious harm to the marine environment. These regulations require ­monitoring and evaluation of harm, and they enable emergency action if the risk of serious harm becomes apparent. All of these specific requirements fall under the unclos umbrella concept that recognizes the Area as the common ­heritage of mankind and therefore should be used in a way to serve the benefit of mankind as a whole. This provision, combined with the broad obligation to protect and ­preserve the marine environment and the requirement to take the precautionary approach when undertaking activities, provides a strong basis for substantial action to minimize harm to the marine environment caused by deep seabed mining. Despite the strong language in the text of the Convention and the existing Mining Code, and despite the definitions incorporated in other international instruments (summarized above), a comprehensive definition and understanding of what qualifies as a “harmful effect” or “serious harm to the marine environment” remains elusive. In addition, if serious harm is expected, the Authority, States, and contractors must respond with actions to protect and preserve the marine environment, assess risk and potential harm, and address harmful effects and serious harm.

114 Ibid., ¶ 141–150. 115 Ibid., ¶ 149.

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469

International and National Approaches to Evaluating Harm

To put flesh on the bones of the concept and definition of harm, one can look to international and national standards and practice. These standards of practice are particularly relevant given that they represent a well-developed system of practice across many States. An evaluation of existing approaches finds a suite of common elements used to determine if the effects of an activity reach a level of significance that should trigger management response. In the international context, three international standards are worth ­noting. First, the Convention on Biological Diversity (cbd) calls upon State parties to minimize adverse impacts and in particular to “initiate action to prevent or minimize” danger or damage to biological diversity when imminent or grave danger is expected.116 This requirement applies both within and beyond areas of national jurisdiction. The cbd Conference of the Parties developed ­guidelines that build from case-studies submitted by the Parties. The Guidelines note the need for initial screening to determine if a proposed activity is expected to have harmful environmental impacts. It includes a list of ­characteristics that can be used to determine what categories of activities will affect biological diversity, including: “type or nature of activity, magnitude, extent/location, timing, duration, reversibility/irreversibility, likelihood, and significance; [sic] possibility of interaction with other activities or impacts.”117 Furthermore it goes on to state that the assessment usually includes a detailed analysis of ­impacts, including “their nature, magnitude, extent and effect,” as well as a significance determination.118 Second, the Espoo Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)119 considers significance: For a­ ctivities that are not pre-determined to be significant, parties use the ­following criteria to determine the significance of the impacts:

116 Convention on Biological Diversity, adopted 5 June 1992, 31 i.l.m. 841(1992), entered into force 29 Dec. 1993. Art. 14(1)(d). 117 cbd, Conference of the Parties, cop 6 Decision VI/7 Annex: Guidelines for Incorporating Biodiversity-Related Issues into Environmental Impact Assessment Legislation and/ or Process and in Strategic Environmental Assessment ¶ 2(a)14(a). 118 Ibid., ¶ 2(c)24. 119 Espoo Convention on Environmental Impact Assessment in a Transboundary Context, 1989 unts 309 (1991), adopted 25 Feb. 1991, entry in force 10 Sept 1997, available at http:// www.unece.org/fileadmin/DAM/env/eia/documents/legaltexts/Espoo_Convention _authentic_ENG.pdf (hereafter Espoo Convention).

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• Size120 wherein proposed activities are large for the type of activity; • Location of proposed activities. considering environmental sensitivity or importance as well as effects on human populations; and • Effects of activities, considering particularly complex and potentially adverse effects, such as those that have serious effects on humans or valued species, those that threaten existing or potential use of an area, and those that cause loading which cannot be sustained by the environment.121 Third, the United Nations Food and Agriculture Organization (fao) has considered the issue of significant adverse impacts in its guidelines for deep sea ­bottom fishing.122 It defines significant adverse impacts as “those that ­compromise ecosystem integrity (i.e. ecosystem structure or function) in a manner that: (i) impairs the ability of affected populations to replace themselves; (ii) degrades the long-term natural productivity of habitats; or (iii) causes, on more than a temporary basis, significant loss of species richness, habitat or community types. Impacts should be evaluated individually, in ­combination and cumulatively.”123 It provides a list of six factors to use to determine whether an impact is significant, including (1) intensity or severity of the impact, (2) spatial extent, (3) sensitivity or vulnerability of the ecosystem, (4) resilience of the ecosystem, (5) expected alteration of ecosystem function, and (6) duration of impact as related to life history of species affected.124 National frameworks provide additional context. One example is Australia’s environmental impact assessment related to seabed mining. In evaluating ­potential impacts of seabed mining in the Northern Territory of Australia, the Australian Environmental Protection Authority identifies five areas of consideration: (1) what will be affected and how; (2) the extent of impact, ranging in scale from site-specific to international; (3) the expected duration of the impact effects; (4) impact intensity or magnitude (from low, medium to high); and (5) cumulative impacts, considering both space and time.125 The Environmental Protection Authority integrates and evaluates the significance of each impact given these considerations and classifies each impact as low, medium or high. 120 The Espoo Convention does not indicate whether size refers to the footprint of the p ­ roject or the size of the effects more broadly. 121 Espoo Convention, Appendix iii. 122 United Nations Food and Agriculture Organization, Guidelines on Deep Sea Bottom ­Fishing on the High Seas. 123 Ibid., para. 17. 124 Ibid., para. 18. 125 Australia Environmental Protection Authority, Interim Report: Seabed Mining in the Northern Territory, 32 (Nov. 2012), http://www.ntepa.nt.gov.au/__data/assets/pdf_file/ 0003/144039/Seabed-Mining-Report.pdf.

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The report describes low impacts as those that are local in scale, of temporary duration, having negligible effects on the environment and not requiring ­mitigation. Medium impacts are those that are short-term, are moderate in severity or magnitude, and that require mitigation measures. High impacts may be local. but if they last longer than a month or are or high magnitude in spatial scope, these impacts require substantial mitigation measures.126 South Africa is another nation considering deep seabed mining in its national waters. It defines “significant impact” as “an impact that by its m ­ agnitude, duration, intensity or probability of occurrence may have a notable effect on one or more aspects of the environment.”127 The regulations require the environmental impact assessment report’s significance determination to include consideration of “—(i) cumulative impacts; (ii) the nature of the impact; (iii) the extent and duration of the impact; (iv) the probability of the impact ­occurring; (v) the degree to which the impact can be reversed; (vi) the degree to which the impact can cause irreplaceable loss of resources; and (vii) the degree to which the impact can be mitigated.”128 In the United States, the National Oceanic and Atmospheric Administration (noaa) manages offshore fisheries. It defines “significant” as “a ­function of the short-term, long-term, and cumulative impacts, both positive and ­negative, of the action on that environment.”129 It includes consideration of context and intensity.130 Adhering to the Council on Environmental Quality’s (ceq’s) regulations,131 noaa explains that “[c]ontext means that significance of an ­action must be analyzed with respect to society as a whole, the affected region and interests, and the locality. Both short- and long-term effects are relevant.”132 noaa also follows ceq regulations in defining intensity, stating that it “refers to the severity of the impact.”133 noaa provides a list of eleven 126 Ibid., 33. 127 National Environmental Management Act: Environmental Impact Assessment Regulations, (G 33306—GoN 543) (2010), available at https://www.environment.gov.za/sites/ default/files/legislations/nema_impactassessment_g33306rg9393gon543.pdf. 128 Ibid., 38–41. 129 noaa, nao 216-6: Environmental Review Procedures for Implementing the National ­Environmental Policy Act § 4(x) (1999). 130 Ibid., §6(b). 131 cfr 1508.27. The Council on Environmental Quality (ceq) is the u.s. government body responsible for developing overarching regulations for environmental impact statements in accordance with the National Environmental Policy Act (nepa). Other agencies, in satisfying their nepa requirements develop additional regulations and policies that conform to and build from the ceq regulations. 132 Ibid. 133 Ibid.

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factors to evaluate the intensity of an action, including inter alia, unique geological characteristics, controversial nature of the effects, extent of uncertainty and unknown risk, the extent it sets precedent for future actions, and the ­cumulative effects of the action.134 Based on examination of these international and national approaches, this paper proposes that the following elements be identified as the core elements of environmental impact assessment, which should be used to determine if and how deep seabed mining will cause harm to the marine environment warranting actions to prevent or mitigate such harm: • • • • • • •

Extent of impact Duration and frequency of impact Intensity and magnitude of impact Probability of impact Sensitivity and vulnerability of ecosystem Cumulative effects of impacts Scientific uncertainty related to impact.

Some of these factors, such as extent and intensity, are included in all of the international and national frameworks examined, while others are found in only a limited number of frameworks. See Table 16.1. Table 16.1 Significance-determination factors identified from international and national environmental impact assessment frameworks

Factor

Espoo cbd fao Australia South United convention Africa States

Extent (x)a Duration/frequency Intensity/magnitude (x) Probability Sensitivity/vulnerability X Cumulative effects Scientific Uncertainty

X X X X X

X X X

X X X

X X

X X (x) X

X

X

X X X X X X

a Similar to “extent,” the Espoo Convention considers size of proposed activities that are large for the type of activity as an indicator of significance.

134 Ibid.

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Serious Harm in the Deep Sea135

Table 16.2 demonstrates how the identified factors can be used to understand the significance of predicted benthic impacts caused by deep seabed mining in polymetallic nodules environments. This table only considers those impacts that are expected in the benthic environment that is being mined and does not consider the substantial additional impacts that are expected to occur in the water column and benthic environment outside of the direct mining site. Table 16.2 focuses specifically on predicted impacts to the benthic environment at the mining site itself and excludes the even more difficult to predict impacts to the surrounding water column or the benthic environment that is downstream of the mined areas. This table demonstrates the enormous extent of seabed mining impacts predicted in polymetallic nodule environments, the long recovery times, and the immense scientific uncertainty involved, given that very little of the global deep seabed has been sampled. This rest of this section considers a subset of the factors that are included in the list of factors to determine significance, highlighting the challenges that the Authority will face in transforming the concept of harm to decisions ­regarding regulation of the deep seabed. In addition, this section provides ideas for consideration in the design of an environmental management system that minimizes harm in the face of deep seabed mining. A Scientific Uncertainty Scientific uncertainty is a crucial challenge to understanding the significance of impacts and whether mining will cause harmful effects or serious harm. The special nature of the deep ocean severely constrains scientific discovery, research, monitoring and assessment, creating significant challenges for ­science-based decision-making.136 These constraints should guide the ­determination of when an impact is deemed to cause harmful effects or serious harm. Perhaps more than anything else, it is the immense scientific uncertainty about the b­ iodiversity and function of deep sea ecosystems that influence a d­ etermination of harmful effects or serious harm when it comes to deep seabed mining a­ ctivities. A finding of harmful effects because of scientific uncertainty does not necessarily mean that activities cannot proceed. However, it should lead to ­actions to avoid and minimize impacts. 135 This section of the paper complements a broader collaborative effort among the working group members in attendance at the 2014 meeting focused on significant impacts (supra note * on this chapter’s title page.) to determine the scientific rationale for a significance finding. 136 Mengerink et al., “A Call for Deep Ocean Stewardship.”

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Table 16.2 Significance-determination factors used to consider manganese nodule mining impacts

Factors

Mn Nodule Mining—Benthica

Extent Duration/ frequency Intensity/ magnitude Probability Sensitivity/ vulnerability

300–600 km2 per year 20–25 years per mine site with mining occurring once per site Complete removal of surface sediment, hard substrate & benthic fauna High probability of predicted impacts to mining site • Soft sediment fauna: decades to recover • Mn nodule fauna: thousands to millions of years to recover • Dispersal < 100 km Will depend on the extent of additional mining activities permitted. In addition, climate change impacts are predicted in the deep ocean. ~1.4363 × 10−9% abyssal floor area sampled for biodiversity worldwide (0.0000000014%)b

Cumulative Impact Scientific uncertainty

a Sources for data for the table include, L.M. Wedding et al., “From Principles to Practice: A Spatial Approach to Systematic Conservation Planning in the Deep Sea,” Proceedings of the Royal Society 280(2013) doi: 10.1098/rspb.2013.1684; isa overview https://www.isa.org.jm/ files/documents/EN/Brochures/ENG7.pdf; Census of the Diversity of Abyssal Marine Life (www.cedamar.org). b Census of the Diversity of Abyssal Marine Life, Abyssal Benthic Biological Sampling, at http:// www.cedamar.org/en/biogeografie/abyssal-benthic-biological-sampling.html.

Under unclos seabed mining regulations and in accordance with the ­Seabed Dispute Chamber Advisory Opinion, the Authority, States and ­contractors are required to adopt the precautionary approach when undertaking deep seabed mining.137 The slow growth and slow reproduction of many deep sea ­species, as well as the inability to restore many deep ocean habitats and species along 137 Rio Declaration on the Environment, Principle 15 (June 1992). As defined by the Rio Declaration, the precautionary approach states that “[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

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with the immense unknowns of the deep sea, makes the precautionary approach particularly important for deep sea decision-making. M ­ inimizing the risk caused by scientific uncertainty will require investment in research and monitoring, as well as designing robust systems of emergency r­ esponse as required by the existing prospecting and exploration regulations as well as an adaptive management system to account for changing information and deep seabed mining develops. B Extent The extent of mining at a given site will vary substantially by mining type. With polymetallic sulfides, vent fields are small in size—tens of kilometers—with single mining sites that may be substantially smaller. In contrast, polymetallic nodule mining is expected to require mining of thousands of square k­ ilometers of area to make an operation economically feasible. While these numbers vary drastically, they do not convey the full story. The extent of mining should not simply be a function of size of a given project. It should also consider the size of the project in relation to the extent of the ecosystem or habitat. While a single vent mining operation may be small in size, because there are ­relatively few vent sites worldwide—one report estimating 300 sites discovered as of 2006138—even the loss of a single site could be substantial. Furthermore, the footprint of the project is only one consideration when considering extent. For deep seabed mining, a major impact will come from the sediment plumes created by the mining activity and the discharge of waste. These plumes could extend the breadth of the impact by orders of magnitude—both horizontally across greater areas and vertically throughout the water column. C Sensitivity and Vulnerability of Ecosystem As discussed previously many deep-sea ecosystems are sensitive to disturbance and vulnerable to permanent and long-term effects. In particular, polymetallic nodules offer some of the only hard substrate on the abyssal plains, and their removal may also permanently remove those species associated with them. In addition, for those benthic species found in and on the mined sediments, they may take decades to recover from disturbance caused by mining. Similarly, cobalt crusts serve as hard substrate for a variety of slow growing species, 138 Mark Hannington & Thomas Monecke, Global Exploration Models for Polymetallic Sulphide Deposits in the Area: Possible Criterion for Lease Block Selection under the Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides (presentation prepared for the International Seabed Authority) (2006), http://www.isa.org.jm/files/documents/ EN/Workshops/Jul06/Hannington-Monecke.pdf.

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including cold water corals and sponges. Many cold-water corals grow only a couple of millimeters a year, meaning that recovery will take decades. That said, it should be noted that existing scientific research indicates that cobalt crust communities are not constrained to cobalt crust surfaces. Instead, these communities are the same types of species found on hard bottom habitats on seamounts elsewhere. Therefore, cobalt crust-associated species are likely sensitive and vulnerable to mining activities, but the species or ecosystem types as a whole may not be threatened by mining activities. At the other end of the spectrum are active hydrothermal vent communities, which are considered ­resilient ecosystems that face substantial natural impact.139 D Cumulative Effects Cumulative effects will vary given the type of mining proposed. For ­polymetallic nodules, millions of square kilometers of seafloor serve as p ­ otential mining sites and alternatively provide an ecosystem for deep sea organisms. It may be that hundreds of thousands of square kilometers can be mined before ­cumulative effects create large-scale effects. In contrast, hydrothermal vent fields where polymetallic sulfide mining is proposed are found on a scale of tens of kilometers in size and only a few hundred such sites are known.140 However, in light of the vast unknowns, in addition to existing science that indicates substantial heterogeneity among polymetallic nodule sites, the Authority should design a system that builds permanent protection as mining sites are released and creates a tiered system to determine when and if to allow mining to occur in a given area. The Authority could release a small number of sites for exploitation, allow monitoring and evaluation to occur, and on the basis of experience in these demonstration sites allow additional mining only if certain conditions are met. In addition, the Authority should develop p ­ redetermined end points beyond which no mining will occur. In other words, if all the world’s cobalt crusts, hydrothermal vents, and polymetallic nodule plains are destroyed altogether, certainly the impacts will be profound. It is also true, however, that a small amount of impacts to these vast resources is unlikely to have substantial global or even regional impacts. The challenge is to determine whether there is a certain amount of mining that can occur given the need for substantial precaution. 139 Van Dover, “Impacts of Anthropogenic Disturbance at Deep-Sea Hydrothermal Vent ­Ecosystems: A Review.” 140 Mark Hannington & Thomas Monecke, Global Exploration Models for Polymetallic ­Sulphide Deposits in the Area: Possible Criterion for Lease Block Selection under the Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides.

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E Conclusion The existing international legal framework demonstrates the strong commitment by States to design a seabed mining system that appropriately protects and preserves the marine environment, and one that while allowing mining to occur also requires States and contractors to avoid and minimize harmful effects and prevent serious harm to the marine environment. National p ­ ractice provides additional context in which to understand how to evaluate when harmful effects and/or serious harm occur, and existing science provides a strong indication that commercial-scale exploitation will indeed cause harmful effects and likely serious harm. However, determining what constitutes harmful effects or serious harm is ultimately a value judgment that the nations of the world must determine. Given the substantial lack of knowledge about the deep ocean, the fact that what existing science indicates is that many ­systems may be vulnerable to disturbance, the legal obligation to protect and preserve and proceed with precaution, and the recognition that the deep seabed is the common heritage of mankind, the Authority should design a robust system of management that slowly over time, if at all, allows deep seabed ­mining to proceed.

chapter 17

Regulating Greenhouse Gas Emissions from Ships: The Role of the International Maritime Organization Daniel Bodansky I

Introduction

The causes and effects of climate change are extremely broad, so climate change, not surprisingly, has many implications for the world’s oceans—and, by extension, for oceans law. With respect to the causes of climate change, the oceans play a key role in the carbon cycle, so changes to their chemistry or biota could increase or decrease transfers of carbon to and from the atmosphere, exacerbating or mitigating the climate change problem. Activities on the oceans emit carbon dioxide and thereby contribute to climate change. But if it proves possible to fertilize the ocean to increase its uptake of carbon dioxide from the atmosphere, then the oceans could conceivably play a role in limiting climate change.1 Just as the oceans play a major role in the causes of climate change, they will also be affected by climate change through changes in temperature, chemistry, and sea level. The latest report of the Intergovernmental Panel on Climate Change (ipcc) found with “high confidence” that “ocean warming dominates the increase in energy stored in the climate system, accounting for more than 90% of the energy accumulated between 1971 and 2010.”2 Moreover, the absorption of CO2 by the oceans has increased ocean acidity. These increases in ocean * Regents’ Professor, Sandra Day O’Connor College of Law, and Distinguished Sustainability Scholar, Julie Ann Wrigley Global Institute of Sustainability, Arizona State University. This paper draws on Daniel Bodansky, Multilateral Climate Efforts Beyond the unfccc (Center for Climate and Energy Solutions, November 2011). Many thanks to Oliver Lewis for his many helpful comments, and to Elizabeth Christie for her research assistance. 1 Karen Scott, “Regulating Ocean Fertilization under International Law: The Risks,” Carbon and Climate Law 2 (2013): 108. 2 Intergovernmental Panel on Climate Change (ipcc), “2013: Summary for Policymakers,” in T.F. Stocker et al., eds., Climate Change 2013: The Physical Science Basis: Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2013), 8.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_019

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temperature and acidity will have major impacts on the marine environment, including the degradation and destruction of coral reefs, the loss of Arctic sea ice, and the geographical range of marine species.3 In addition, sea-level rise will change coastlines, submerge low-lying atolls and other land features, and thereby raise issues about maritime baselines and boundaries.4 An important paper presented by David Caron at the 2010 Law of the Sea Institute conference in Hamburg surveyed the broad array of issues raised by climate change for oceans law.5 The present paper will focus on only one of these issues: the regulation of greenhouse gas emissions from maritime transport. II

The Contribution of Maritime Shipping to Global Warming

The International Maritime Organization (imo) has completed three studies of greenhouse gas (ghg) emissions from ships, in 2000,6 2009,7 and 2014.8 The latest of these reports concluded that maritime shipping contributes about one billion metric tons of carbon dioxide per year, about 900 million tons of which comes from international (as opposed to domestic) shipping.9 Shipping 3 ipcc, “2014: Summary for Policymakers,” in C.B. Field et al., eds., Climate Change 2014: Impacts, Adaptation, and Vulnerability: Contribution of Working Group ii to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2014), 17. 4 Davor Vidas, “Sea Level Rise and International Law: At the Convergence of Two Epochs,” Climate Law 4 (2014): 70–84. Currently, an International Law Association committee, chaired by David Freestone, is studying the implications of sea-level rise for international law. It is expected to complete its report in 2018. 5 David D. Caron, “Climate Change and the Oceans,” in Harry N. Scheiber and Jin-Hyun Park, eds., Regions, Institutions, and the Law of the Sea (Leiden: Martinus Nijhoff, 2013), chap. 26; see also Randall S. Abate, ed., Climate Change Impacts on Ocean and Coastal Law (Oxford: Oxford University Press, 2015). 6 International Maritime Organization (imo), Study of Greenhouse Gas Emissions from Ships (London: imo, 2000). 7 imo, Second imo Greenhouse Gas Study 2009 (London: imo, 2009). 8 imo, Third imo Greenhouse Gas Study: Executive Summary and Final Report (London: imo, 2015), http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Do cuments/Third%20Greenhouse%20Gas%20Study/GHG3%20Executive%20Summary .pdf. 9 Ibid., Table 1. The figures cited are the average annual emissions from 2007–2012, and were calculated using a bottom-up methodology that uses activity data for each ship. Figures calculated using a top-down methodology that multiplies bunker fuel sales by an emissions factor are generally considered less reliable. Ibid., 3.

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contributes slightly more if we take into account other ghgs, but carbon dioxide accounts for the vast majority of shipping emissions—roughly 97%. Most of these emissions come from three types of ships: container ships, bulk carriers, and oil tankers, in descending order.10 Initially, three general points are worth noting about maritime emissions. First, emissions from shipping are a relatively small part of the climate change problem, accounting for less than 3% of overall global emissions.11 Nevertheless, shipping emissions are bigger than the emissions of all but six countries. They are roughly the same as Germany’s emissions and higher than those of the United Kingdom.12 So they are still significant. Second, shipping emissions have been increasing much faster than emissions from other sources,13 and will continue to increase substantially in coming decades, despite improvements to efficiency through changes in ship design and operations. The exact level of future emissions depends on many factors, including, in particular, economic and energy developments. imo scenarios range widely, from 50–250% growth by 2050 relative to 2012 levels.14 ­Increasing demand for maritime transport is the key driver, resulting from population growth and economic development. The International Energy Agency projects a doubling of shipping tonne-kilometers between 2005 and 2050 in its baseline scenario, and a tripling in its high scenario.15 Third, maritime shipping is quite clean compared to other modes of transport, emitting less than half as much CO2 per tonne-mile as rail transport, onethird that of road transport, and less than 1% that of air transport.16 This has two implications. On the one hand, it would be counter-productive to single out shipping emissions and regulate them more stringently than emissions from other transportation options, since this would simply result in what economists call emissions “leakage.” As controls on maritime shipping became more stringent and costs increased as a result, shippers would switch, where possible, to air, rail or road transport, which have much higher emissions per 10 11 12 13

14 15 16

Ibid., Figures 1–3. imo, Second imo Greenhouse Gas Study, Figure 1.1. House of Commons Environmental Audit Committee, Reducing CO2 and Other Emissions from Shipping: Fourth Report of Session 2008–2009 (2009), 5. Between 1990 and 2010, shipping emissions increased by about 80%, compared to global emissions growth of 40%. Alice Bows-Larkin, “All Adrift: Aviation, Shipping, and Climate Change Policy,” Climate Policy 15 (2014): 681, 682. imo, Third imo Greenhouse Gas Study, 34. International Energy Agency, Transport Emissions and CO2: Moving Towards Sustainability (2009), 339. Ibid., Figure 1.6; see also imo, Second imo Greenhouse Gas Study, 9, Figure 1.3.

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tonne-mile. Conversely, shipping would do quite well in a regulatory system in which all sources of greenhouse gas emissions were controlled similarly. There are many options, using known technologies, for reducing emissions from shipping, involving changes in ship design or operational practices.17 The imo’s Second Greenhouse Gas Report report estimated that these design and operational changes might reduce emissions per tonne-mile by 25–75%,18 and a recent study concluded that adoption of “industry-leading practices” could cut emissions from shipping in half relative to business as usual.19 Many of these design and operational practices are “no regrets” measures, meaning that they have negative costs,20 and could be adopted without harming the competitiveness of the shipping industry, even if no one else were doing anything to control their emissions. III

The Regime Complex Addressing Emissions from Ships

Three international regimes are relevant to the regulation of emissions from ships: (1) the un climate change regime; (2) the International Maritime ­Organization; and (3) the United Nations Law of the Sea Convention (­u nclos). These form what political scientists refer to as a “regime complex”21 relating to maritime shipping emissions.22 United Nations Climate Change Regime The overarching regime addressing climate change is that established by the un Framework Convention on Climate Change (unfccc),23 which has evolved over the last twenty-five years in three acts.24 17 The imo’s Second Greenhouse Gas Study reviewed the various technical options. 18 imo, Second imo Greenhouse Gas Study, 54, Table 5.2. 19 Haifeng Wang and Nic Lutsey, Long-Term Potential for Increased Shipping Efficiency through the Adoption of Industry-Leading Practices (International Council on Clean Transportation, July 2013). 20 Svere Alvik et al., Pathways to Low Carbon Shipping: Abatement Potential Towards 2030 (dnv, 2009). 21 Kal Raustiala and David G. Victor, “The Regime Complex for Plant Genetic Resources,” International Organization 58 (2004): 277. 22 Cf. Bernd Hackmann, “Analysis of the Governance Architecture to Regulate ghg Emissions from International Shipping,” International Environmental Agreements 12 (2012): 85. 23 un Framework Convention on Climate Change (unfccc), May 9, 1992, 1771 u.n.t.s. 107. 24 For a history of the unfccc regime, see Daniel Bodansky and Lavanya Rajamani, “The Evolution and Governance Architecture of the Climate Change Regime,” in Detlef Sprinz

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The first act, running from 1991 to 1994, was the constitutional phase, which involved the negotiation, adoption, and entry into force of the unfccc. Much like a domestic constitution, the unfccc established the basic governance structure of the climate change regime, including its fundamental objective (i.e., to stabilize greenhouse gas concentrations at levels that would prevent dangerous anthropogenic interference in the climate system), norms (including the principle of common but differentiated responsibilities and respective capabilities, or cbdr-rc), and institutions (most importantly, the conference of the parties (cop), which meets annually and is the supreme body within the regime). The second act was a regulatory phase, involving the negotiation of the 1997 Kyoto Protocol25 and its elaboration in the 2001 Marrakesh Accords.26 The Kyoto Protocol had four important features. First, in contrast to the ­u nfccc, which did not set legally binding limits on countries’ greenhouse gas emissions, the Kyoto Protocol prescribed internationally-negotiated, quantitative emissions targets. Second, these emissions targets were legally binding. Third, they applied only to so-called developed countries, listed in Annex i of the Convention. Fourth, the Protocol established several market-based mechanisms for countries to achieve their targets, including emissions trading and the Clean Development Mechanism. Because of the focus on developed country emission targets, the main axis in the negotiations was between the European Union, which wanted strong targets, and the United States, which wanted weaker targets and pushed for a market-oriented approach. The third act involved an effort to broaden the regime, in order to encompass the emissions of emerging economies such as China, India and Brazil. This act has run from 2007 to the present, and culminated in the adoption in December 2015 of the Paris Agreement,27 which builds on the 2009 Copenhagen Accord28 and the 2010 Cancun Agreements.29 In contrast to the Kyoto

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and Urs Luterbacher, eds., International Relations and Global Climate Change: New Perspectives (Cambridge, ma: mit Press, 2nd ed., forthcoming). Kyoto Protocol, December 10, 1997, 2303 u.n.t.s. 148. Marrakesh Accords, Dec. 2/CP.7–Dec. 19/CP.7, November 10, 2001, u.n. Doc. FCCC/CP/ 2001/13/Add.1 and Add.2. Paris Agreement, December 12, 2015, http://unfccc.int/files/essential_background/ convention/application/pdf/english_paris_agreement.pdf. Copenhagen Accord, Dec. 2/CP.15, December 18, 2009, u.n. Doc. FCCC/CP/2009/11/ Add.1, 5. Cancun Agreements: Outcome of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Dec. 1/CP.16, December 11, 2010, u.n. Doc. FCCC/CP/2010/7/ Add.1.

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­ rotocol’s internationally-negotiated, legally-binding emissions targets, the P Paris architecture involves a bottom-up process in which countries make “nationally determined contributions” (ndcs) specifying what they plan to do to limit their emissions.30 In this third act, the main axis in the negotiations has been between developed and developing countries. As this brief history suggests, the un climate change regime has undergone considerable change. But a number of distinctive features have remained relatively constant: • First, the un regime has focused on greenhouse gas emissions on a national rather than sectoral basis. It has formulated the mitigation problematique in terms of the responsibility of each state to reduce its ghg emissions, rather than in terms of technical options to reduce emissions, or specific policies and measures such as efficiency standards or carbon taxes. • Second, national emissions have been calculated based on where greenhouse gases are emitted rather than in terms of where the goods responsible for emissions are used. In other words, the regime calculates national emissions based on the place of production rather than consumption.31 The result is a picture of the world like that in Figure 17.1, where the goal is for each country to shrink its respective circle. • Third, an important element of the un climate change regime has been the principle of common but differentiated responsibilities and respective capabilities—or cbdr-rc.32 This principle was reflected in the unfccc by the acknowledgment that developed countries should take the lead in combating climate change,33 and by establishing three categories of parties: (1) Annex ii parties, comprising the oecd member states at the time the Convention was adopted, which have obligations relating to finance and technology transfer; (2) Annex i parties, which include Annex ii countries as well as the former Soviet bloc; and (3) non-Annex i parties, which include everyone else. Annex i parties are often referred to as “developed” countries and non-Annex i parties as “developing” countries, but the unfccc 30 31

32 33

Daniel Bodansky, “The Paris Climate Change Agreement: A New Hope?,” American Journal of International Law 110 (2016): 288–319. For a discussion of consumption-based accounting, see Steven J. Davies and Ken Caldeira, “Consumption-Based Accounting of CO2 Emissions,” Proceedings of the National Academy of Sciences 107 (2010): 5687. Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford: Oxford University Press, 2006). unfccc, art. 3.1.

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Figure 17.1

National emissions of CO2. Source: Guardian ( Jan. 31, 2011).

itself does not specify that these categories are co-extensive,34 and the nonAnnex i category includes many of the richest states in the world, such as Singapore, Qatar, and Saudi Arabia. The division between Annex i and non-Annex i parties reached its apogee in the Kyoto Protocol, which established legally-binding, quantitative emission reduction targets for Annex i parties, while establishing no new commitments for non-Annex i parties. Since Kyoto, the division between Annex i and nonAnnex i countries has eroded, to the point where the Paris Agreement makes no mention of these categories at all. This does not mean that the principle of cbdr-rc is no longer part of the un climate change regime. It simply means that the Paris Agreement operationalizes the principle in a more f­lexible

34

Article 4.2’s reference to the “developed country Parties and other Parties included in Annex i” leaves open two questions: first, is every state listed in Annex i “developed,” and second, are some states not listed in Annex i “developed”? While the list in Annex i is fixed, unless amended, the categories “developed” and “developing” are more open-ended and could allow for changes in membership, as countries develop (or retrogress) economically, socially, and/or politically. So the countries that, today, are developed or developing may not be the same as those listed or not listed, respectively, in Annex i.

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­manner, by allowing each country to nationally determine its own mitigation contribution, rather than by dividing the world into rigid categories of countries. Although a few provisions of the Paris Agreement apply specifically to “developed” or “developing” countries, most apply to all parties, and the ­developed/developing categorization is, in any event, more flexible than the Annex i/non-Annex i approach.35 A fourth feature worth noting about the un climate change regime is that it requires consensus or near-consensus decision-making.36 Exactly what consensus means continues to be debated.37 But one thing is clear: the consensus/ near-consensus requirement within the unfccc makes it impossible to adopt decisions if more than a handful of states object. Because the unfccc approach focuses on national emissions based on where emissions occur, it does not translate well to the problem of emissions from international maritime shipping. One reason is that emissions from maritime shipping generally take place outside the territory of any state. Moreover, because shipping is perhaps the most international of all industries, it is not clear which state should be deemed responsible for emissions, even when maritime emissions take place within the territory of a state. Consider, for example, a ship flying the Panamanian flag, owned by a company incorporated in Greece, operated from Singapore, carrying goods from China to Japan and the United States. To which state should the emissions occurring during the ship’s voyage be allocated? The flag state? The state where the bunker fuel was sold? The state of the ship owner or operator? The port of origin or destination? The country producing or consuming the cargo?38 The question has 35 36

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Bodansky, “The Paris Climate Change Agreement.” At COP-16 in Cancun, at least two theories were advanced to justify the adoption of decisions over the objections of Bolivia. The Mexican chair suggested that, within the ­u nfccc process, the consensus rule does not give individual countries a veto; therefore, decisions can be adopted when only a single country objects. The United States, in contrast, took the view that since the cop has never adopted rules of procedure, the governing voting rule is not consensus; rather, it needs to be determined by looking to past practice, which has allowed decisions to be taken by “general agreement.” Lavanya Rajamani, “The Cancun Climate Agreements: Reading the Text, Subtext, and Tea Leaves,” International and Comparative Law Quarterly 60 (2011): 499, 516. Dapo Akande, “What Is the Meaning of ‘Consensus’ in International Decision Making,” ejil Talk!, April 8, 2013, http://www.ejiltalk.org/negotiations-on-arms-trade-treaty-fail -to-adopt-treaty-by-consensus-what-is-the-meaning-of-consensus-in-international -decision-making/. Nadine Heitmann and Setareh Khalilian, “Accounting for Carbon Dioxide Emissions from International Shipping: Burden Sharing under Different unfccc Allocation Options and Regime Scenarios,” Marine Policy 35 (2011): 682.

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no ­obvious ­answer. A study of the various options concluded that “there is no single allocation option that can be regarded as environmentally effective, legally effective, and allowing for fair burden sharing.”39 The choice of allocation method has big implications, because the states that have the biggest registries or own the most ships are not necessarily the big economic players, which are responsible for the bulk of international trade. If we look to the state of registry, then Panama would be responsible for the largest share of maritime emissions, followed by Liberia. But if we look to ship ownership, then Greece and Japan would be the biggest players. And if we look to bunker fuel sales, then Singapore and the United States would have the greatest responsibility.40 Strikingly, the fifteen biggest trading countries ­account for only about 20% of the world fleet, and for only about half of ship ownership.41 According to data submitted by the United Kingdom’s Department of Transportation, the uk’s share of responsibility for maritime emissions differs by a factor of four, depending on the choice of allocation method used.42 If shipping emissions are allocated based on bunker fuel sales, then the uk’s share of maritime emissions is less than 10 million tons. If shipping emissions are allocated based on the vessel’s flag, then the uk is responsible for about 12 million tons, and if they are allocated based on the country of departure/destination, then the figure is almost 24 million tons.43 When the parties to the unfccc adopted the Kyoto Protocol in 1997, they could not agree on how to allocate emissions from international bunker ­fuels. So they included a provision in the Protocol that handed the issue off to ­other international institutions, the International Civil Aviation Organization (icao) in the case of emissions from airplanes, and the imo in the case of emissions from maritime shipping.44 In part, this was a way of disposing of a contentious issue, by punting it to other organizations. In part it reflected 39 40 41 42 43

44

Ibid., 689. Ibid., 683. imo, Second Greenhouse Gas Study, 18, Table 2.5. House of Commons Environmental Audit Committee, Reducing CO2, 17. Ibid., EV67–EV68. Another study found a range of 7–42 Mt CO2 for uk shipping emissions, the low-end representing bunker fuel sales and the high-end the value of uk imports. Paul Gilbert, Alice Bows, and Richard Starkey, Shipping and Climate Change: Scope for Unilateral Action (Manchester: University of Manchester, 2010). Kyoto Protocol Article 2.2 provides: “The Parties included in Annex i shall pursue limitation or reduction of emissions … from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.” For a discussion of the Kyoto Protocol provision, see Saiful Karim and

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the view that, given the international nature of shipping and civil aviation and the problems with all of the different allocation methods mentioned above, emissions from international transport would be better addressed through an international sectoral approach, rather than through the national target-based approach of the Kyoto Protocol.45 International Maritime Organization Let us now turn to the imo, to whom the Kyoto Protocol gave the issue of maritime emissions. The imo was created in 1948 and is the un specialized agency in the area of international shipping. It has 170 member states, and has adopted 53 conventions, as well as numerous guidelines and codes. Although the imo’s initial mandate was to promote international shipping and ensure maritime safety, it began to focus on marine pollution from vessels in the 1960s and, in 1973, established the Marine Environment Protection Committee (mepc).46 Somewhat surprisingly, only a few papers from previous losi conferences focus on the imo, including Bernie Oxman’s paper from the 1995 conference at the University of Hawai’i47 and Doris Koenig’s paper in 2010 from the Hamburg Conference.48 If we compare the imo with the unfccc, a number of differences stand out: • First, rather than regulate shipping pollution based on national discharge totals (that is, by setting limits on the combined discharges of the ships in a state’s registry), the imo regulates through vessel-based standards,

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Shawkat Alam, “Climate Change and Reduction of Emissions from Ships: An Appraisal,” Asian Journal of International Law 1 (2011): 131, 134. Sebastian Oberthür, “Institutional Interaction to Address Greenhouse Gas Emissions from International Transport: icao, imo, and the Kyoto Protocol,” Climate Policy 3 (2003): 191, 193. For an excellent history of imo’s work on vessel-source pollution, see R. Michael McGonigle and Mark W. Zacher, Pollution, Politics, and International Law: Tankers at Sea (Berkeley: University of California Press, 1981). Bernard H. Oxman, “The Role of the International Maritime Organization,” in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman, eds., Sustainable Development and the Preservation of the Oceans: The Challenges of unclos and Agenda 21 (Law of the Sea Institute, 1997), 266. Doris Koenig, “Global and Regional Approaches to Ship Emissions Regulation: The ­International Maritime Organization and the European Union,” in Harry N. Scheiber and Jin-Hyun Park, eds., Regions, Institutions, and the Law of the Sea (Leiden: Brill, 2013), Chap. 18.

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a­ ddressing how vessels are designed and constructed, how much each vessel may permissibly discharge, how they are operated, and so forth. Generally, these standards are fairly technical in nature. • Second, imo’s vessel-based standards apply on a non-discriminatory basis to vessels of different flags, both developed and developing,49 and many imo conventions contain a “no more favorable” treatment principle, which is intended to make its standards applicable to all vessels, of parties and non-parties alike. According to imo, “there is no precedent in any of the …. imo international treaties currently in existence where measures are ­applied selectively to ships according to their flag.”50 • Third, implementation and enforcement of imo standards is generally the responsibility of the flag state, but many other actors, both public and private, also play important roles, including port states, ship yards, ship owners and operators, insurance companies, banks, and classification societies. • Finally, although there is a strong culture and tradition within the imo to adopt decisions by consensus, decisions can be made, as a last resort, by qualified majority vote.51 The main instrument regulating ship-based pollution is the International Convention for the Prevention of Pollution of Ships, or marpol, which was originally adopted in 1973, but did not come into effect until after the adoption of a protocol in 1978.52 Originally, marpol had five regulatory annexes, addressing oil pollution, noxious liquid substances carried in bulk, harmful substances in packaged form, sewage, and garbage. In 1997, the parties to marpol adopted 49

Convention on the International Maritime Organization, March 6, 1948, 289 u.n.t.s. 48, at art. 1(b). 50 imo, Submission to the 33rd Session of sbsta, u.n. Doc FCCC/SBSTA/2010/MISC.14, paper no. 2, 21, para. 36 (Nov. 4, 2010). Uniform treatment is justified, according to the imo, because of the global character of the shipping industry. “As shipping is a global industry and ships are competing in a single global market, it must be regulated at the global level for any control regime to be effective and to maintain a level playing field for all ships irrespective of flag (nationality) or ownership. In other words, the global character of shipping requires global regulation that applies universally to all ships.” imo, Submission to the 34th Session of sbsta, u.n. Doc. FCCC/SBSTA/2011/MISC.5, paper no. 2, 15, para. 2 (April 20, 2011). 51 For example, the International Convention for the Prevention of Pollution of Ships (­m arpol) allows annexes to be amended by a 2/3 majority vote of parties to the relevant annex. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 34 u.s.t. 3407, at art. 16(2)(f)(ii), amended by Protocol of 1978, 1340 u.n.t.s. 61. 52 Ibid.

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a sixth annex, addressing air pollution from ships, which took effect in May 2005, and entered into force for the United States in 2009. Although Annex vi still has many fewer parties than marpol (72 as of November 2012, compared to 153 for marpol), they include most of the big states and account for almost 95% of global tonnage. Under marpol, flag states have the primary obligation to implement and enforce marpol’s regulatory requirements. Although this creates the possibility that vessels will register in countries that are not parties to marpol, the very high level of ratification of marpol by maritime states has made ­m arpol applicable to virtually all of the world’s merchant fleet.53 Moreover, marpol parties can apply regulations to ships, even of non-parties, as a condition of entering their ports or internal waters under the principle of “no more favorable treatment,” and may inspect foreign ships in port to ensure that they meet marpol’s requirements. One measure of imo’s success in addressing marine pollution problems is that oil spills were reduced by 85% from 1985 to 2006, even as seaborne trade increased by about 135%.54 When Annex vi was adopted in 1997, climate change was already a ­major issue. Nevertheless, Annex vi did not originally address it, in part out of ­deference to the Kyoto Protocol negotiations, which were going on at the same time. Instead, Annex vi focused on the problems of acid rain and ozone depletion, establishing regulatory requirements to limit emissions of the main contributors to acid rain, SO2 and NOx, and prohibiting emissions of ozonedepleting substances.55 It was not until 2011 that the parties extended marpol Annex vi to address climate change, as discussed in Section iv below. United Nations Convention on the Law of the Sea The final regime relevant to emissions of ghgs from maritime shipping is ­u nclos, which includes comprehensive provisions relating to the protection of the marine environment. Although the air space above the oceans does not appear to be part of the “marine environment” and thus is not directly protected by unclos, emissions from maritime shipping clearly constitute “pollution of the marine environment,” within the meaning of Article 1.1(4) of the Convention, because they introduce energy and carbon dioxide into ocean 53

marpol Annexes i and ii have been ratified by 149 states representing 99% of the world’s maritime tonnage, and marpol Annex vi, which entered into force only 6 years ago, already covers nearly 84% of the world merchant fleet. 54 IMO, Submission to the 33rd Session of SBSTA, at p. 20, para. 30. 55 Annex vi includes engine-based limits on NOx emissions and limits on the sulfur content of fuels.

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waters, which result in harm to marine living resources and contribute to sea level rise.56 Because ghg emissions from maritime shipping constitute marine pollution, they fall within the ambit of Part xii of unclos, addressing the protection of the marine environment. The question is: Which provisions of Part xii apply to these emissions? Articles 212 and 222 address pollution of the marine environment from or through the atmosphere, so they clearly apply.57 But do Articles 211, 217, 218, and 220, addressing pollution from vessels, also apply? Do greenhouse gas emissions from ships constitute “discharges”? The question is important because the provisions of unclos ­addressing vessel-source pollution are considerably stronger than those addressing ­atmospheric pollution. Article 212 requires flag states to adopt laws and regulations to prevent, reduce and control atmospheric pollution from their vessels, but these laws and regulations merely need to “take into account” ­internationally agreed rules and standards. Moreover, Articles 212 and 222 on atmospheric pollution do not give any special prescriptive or enforcement powers to coastal states. In contrast, Articles 211 and 217 require flag states to adopt and enforce laws and regulations with respect to vessel-source pollution that “at least have the same effect” as generally accepted international rules and standards; A ­ rticles 211 and 218 recognizes that port states can impose and enforce requirements to control marine pollution as a condition of port entry, so long as they give “due publicity” to these requirements (Article 211.3);58 and articles 211 and 220 gives coastal states jurisdiction (1) to adopt laws and regulations to control marine pollution from vessels in their territorial sea, so long 56

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See Meinhard Doelle, “Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention,” Ocean Development and International Law 37 (2006): 319, 322. unclos art. 1.1(4) defines “pollution of the marine environment” as “the introduction by man, directly or indirectly, of substances or energy into the marine environment, … which results or is likely to result in such deleterious effect as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use as sea water and reduction of amenities.” Meinhard Doelle argues that Article 212 creates a more general obligation on states to limit ghg emissions from all sources in order to prevent marine pollution through the atmosphere. This is bolstered by the general obligation in Article 194 to protect the marine environment, as well as Article 207 addressing pollution of the marine environment from land-based sources. Doelle, “Climate Change,” 323–324. The European Union’s recently-adopted regulation on monitoring, reporting and verification of CO2 emissions from maritime shipping is premised on port state control, and will apply to all ships coming into or departing from eu ports.

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as these laws and regulations do not hamper innocent passage (Article 211.4), and (2) to adopt laws and regulations to control marine pollution from vessels in their eez that “conform and give effect” to “generally accepted international rules and standards established through the competent international organization” (­Article 211.5). Since one commentator estimates that 70–80% of ghg emissions from ships occur within 250 miles of shore,59 the extent of port and coastal state jurisdiction over these emissions is potentially crucial. The parties to marpol sought to address these questions, at least as between parties to Annex vi, through the inclusion in Annex vi of Regulation 10.6, which provides that “the international law concerning the prevention, reduction, and control of pollution from ships, … applies mutatis mutandis, to the rules and standards set forth in [Annex vi].” This suggests an intent to make Article 211 applicable to air pollution from ships. If so, the remaining question is whether the Annex vi amendments governing CO2 emissions from vessels represent “generally accepted international rules and standards,”60 which coastal states can apply to ships in their eez, given their rejection by several important states, as discussed below. Regime Interactions and Conflict As the International Law Commission has observed, regimes typically comes with their own “principles, … form of expertise, and … ‘ethos.’”61 So whenever multiple regimes address the same issue, as is the case with ghg emissions from ships, this raises concerns of fragmentation and conflict. But regime overlap does not necessarily lead to this result. Regimes can ­interact in many ways, ranging from conflict at one end of the spectrum to synergistic relationships at the other.62 In general, the relationship between

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Richard Hildreth and Alison Torbitt, “International Treaties and u.s. Laws as Tools to Regulate the Greenhouse Gas Emissions from Ships and Ports,” International Journal of Marine and Coastal Law 25 (2010): 347, 350. For a discussion of what constitutes a “generally accepted international standard,” see Bernard H. Oxman, “The Duty to Respect Generally Accepted International Standards,” n.y.u. Journal of International Law and Politics 24 (1991): 109. Sophia Kopela, “Climate Change, Regime Interaction, and the Principle of Common But Differentiated Responsibility: The Experience of the International Maritime Organization,” Yearbook of International Environmental Law 24 (2014): 70, 73. Sebastian Oberthür and Thomas Gehring, Institutional Interaction in Global Environmental Governance (Cambridge: mit Press, 2006); Frank Biermann et al., “The Fragmentation of Global Governance Architectures: A Framework for Analysis,” Global Environmental Politics 9 (2009): 14, 19.

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the unfccc and imo is more cooperative than conflictive.63 Each regime has its own treaty basis, and neither is hierarchically superior or subordinate to the other.64 And each regime could potentially regulate the issue of ghg emissions from ships, the unfccc because of its general competence to address climate change, and the imo because of its competence to address marine pollution from vessels.65 So this regulatory overlap between the two regimes creates the potential for conflict. Nevertheless, by and large, the unfccc and imo have been able to work constructively with one another. In Article 2.2 of the Kyoto Protocol, the unfccc parties agreed that the issue should be addressed in imo, so there is not a competitive relationship between the two regimes. In a very real sense, the imo, in addressing maritime emissions, is acting in pursuit of the ultimate objective of unfccc, rather than undermining it.66 This cooperative relationship is perhaps due in part to the fact that the two organizations have essentially the same membership. Indeed, all 170 imo member states are parties to the unfccc. Concerns about regime conflict do not pertain to the regimes as a whole, but rather to one particular issue, namely, the relationship between the unfccc’s principle of cbdr-rc and the imo’s principle of non-discrimination—an issue considered in the next section. IV

imo Action Relating to Climate Change

Since the imo began to address climate change in the 1990s, it has basically played three roles: First, as noted earlier, it has undertaken technical studies of the issue. These have drawn on a wide variety of contributors, and have taken advantage of one of the imo’s key comparative advantages over the unfccc, 63

64 65

66

Oberthür, “Institutional Interaction;” cf. Hackmann, “Analysis of the Governance Architecture,” 95–96 (characterizing the relationship of imo and the unfccc as cooperative in terms of their institutional nesting, but conflictive in terms of norms). Hackmann, “Analysis of the Governance Architecture,” 95. In this regard, the imo’s competence over shipping emissions does not depend on Article 2.2 of the Kyoto Protocol. Rather, it derives from the imo’s own convention, which in 1975 was amended to expressly give the imo competence over the control of marine pollution from ships, Amendments to the Convention on the International Maritime Organization, Nov. 14, 1975, 1276 unts 468, at art. 1(a), 15(j), and from imo Assembly Resolution A.963(23), adopted in December 2003, which urged the mepc to “identify and develop the mechanism or mechanisms needed to achieve the limitation or reduction of ghg emissions from international shipping.” See Kopela, “Climate Change, Regime Interaction, and the Principle of Common But Differentiated Responsibility,” 76–77. Oberthür, “Institutional Interaction,” 200.

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namely, its greater technical expertise. Second, the imo has served as a forum for the negotiation of international technical standards, culminating so far in the adoption in 2011 of amendments to marpol Annex vi. Third, the imo has provided technical assistance—in particular, to developing countries.67 Importantly, however, the imo has not played a major role in verification or enforcement of its vessel-source pollution standards;68 instead, this has been the responsibility of flag states, supplemented by regional systems of port state control. Prior to 1997, the imo was largely deferential to the unfccc—the global body addressing the climate change issue—and took a wait-and-see approach. This deference was reflected in the 1992 decision by marpol parties not to address CO2 emissions from ships in Annex vi, because these emissions were within the province of the unfccc.69 In 1997, however, this attitude began to change. In anticipation of the Kyoto Protocol’s hand-off of the issue to imo, the same marpol conference that adopted Annex vi also adopted a resolution on “CO2 Emissions from Ships.”70 The resolution invited the imo to undertake a study of emissions from maritime shipping (which led to the first of imo’s three ghg reports) and to consider what CO2 reduction strategies might be feasible. In 2003, the imo Assembly adopted Resolution A.963(23), which urged the mepc to identify and develop mechanisms to limit or reduce ghg emissions from international shipping.71 Then, in 2006, mepc approved a work plan with three building blocks, focusing on (1) technical design measures, 67

Sabine Campe, “The Secretariat of the International Maritime Organization: A Tanker for Tankers,” in Frank Biermann and Bernd Siebenhüner, eds., Managers of Global Change: The Influence of International Environmental Bureaucracies (Cambridge, ma: mit Press, 2009). 68 The imo does play a modest role in the verification process through its mandatory audit scheme, which provides member states with an assessment of how effectively they are implementing imo instruments. In 2014, mepc amended marpol to make the audit scheme mandatory for marpol parties. For a description of the imo audit scheme, see “imo Member State Audit Scheme,” imo, http://www.imo .org/en/OurWork/MSAS/Pages/AuditScheme.aspx. 69 Aaron Strong, “Tackling Maritime Bunker Fuel Emissions: The Evolution of Global Climate Change Policy at the International Maritime Organization” (unpublished thesis, Tufts, 2011), 36. 70 imo, Conference of Parties to marpol, Res. 8, “CO2 Emissions from Ships,” imo Doc. MP/ CONF.3/35 (1997). 71 imo, Assembly Res. A.963(23), “imo Policies and Practices Related to the Reduction of Greenhouse Gas Emissions from Ships,” Dec. 5, 2003, imo Doc. A 23/Res.963.

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(2) ­operational measures, and (3) market-based mechanisms.72 The first two parts of this work program led to the adoption of voluntary measures in 2009. These, in turn, became the basis for amendments to marpol Annex vi in 2011, which added a new chapter on energy efficiency.73 The 2011 marol Annex vi amendments entered into force in 2013 and apply to ships above 400 gross tonnage. They have two main components: • First, a mandatory energy efficiency design index (eedi), which establishes minimum efficiency levels for new ships, calculated in terms of grams of CO2 emissions per tonne-mile.74 The eedi is a performance-based standard that allows ship designers and builders to choose whatever technology is most cost-effective. It will gradually escalate, starting with emissions reductions of 10% per tonne mile between 2015 and 2020, rising to 30% from 2025 onwards. • Second, a requirement that all ships maintain a ship-specific energy efficiency management plan (seemp), setting forth operational measures to reduce emissions, which address issues such as ship routing, hull maintenance, and ship handling.75 Since adopting these amendments, the parties to marpol Annex vi have also adopted more detailed guidelines relating to the eedi and seemp, as well as guidelines for voluntary use of the Energy Efficiency Operational Indicator (eeoi), which measures the fuel efficiency of ships and serves as a standardized monitoring tool and a benchmark to evaluate operational efficiency.76 A big question in the development of the Annex vi amendments was whether and how the principle of cbdr-rc should apply?77 Essentially, 72

73

74

75 76 77

imo, Marine Environment Protection Committee, Work Plan to Identify and Develop the Mechanisms Needed to Achieve the Limitation or Reduction of CO2 Emissions from International Shipping, imo Doc. mepc 55/23, Annex 9 (Oct. 16, 2006). imo, Marine Environment Protection Committee, Resolution MEPC.203(62), “Amendments to marpol Annex iv on Regulations for the Prevention of Air Pollution from Ships by Inclusion of New Regulations on Energy Efficiency from Ships,” imo Doc. mepc 62/24/ Add.1, Annex 19 (July 26, 2011). Ibid, regulations 20 and 21. The 30% reduction in emissions per tonne-mile is calculated relative to a baseline of the average efficiency of ships constructed between 2000 and 2010. Ibid, regulation 22. imo, Update on imo’s Work to Address Emissions from Fuel Used for International Shipping, u.n. Doc. FCCC/SBSTA/2014/Misc.9 (Nov. 25, 2014). Kopela, “Climate Change, Regime Interaction, and the Principle of Common But Differentiated Responsibility;” Per Kågeson, “Applying the Principle of Common But

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states took three positions. At one end of the spectrum, some states, including the United States, argued that the principle of cbdr-rc does not apply to the imo’s work on greenhouse gas emissions, especially in light of the imo’s non-­discrimination and no-more-favorable-treatment principles. At the other ­extreme, big developing countries such as China argued that cbdr-rc applies, and requires that the obligations of developed and developing countries to limit maritime emissions be differentiated along the lines of the Kyoto Protocol, trumping the imo’s non-discrimination principle.78 In the middle, the imo Secretariat argued that even if cbdr-rc is relevant to the imo’s work on ghg emissions, it does not conflict with the imo’s principle of non-­ discrimination, since non-discrimination applies to ships, whereas cbdr-rc applies to countries.79 In my view, the imo Secretariat is clearly correct that there is no conflict between the unfccc’s principle of cbdr-rc and the imo’s principle of non-discrimination. One can apply the same standards to all ships, on a non-­discriminatory basis, while still differentiating between countries, for example, through the provision of financial and technical assistance to developing countries.80 Indeed, this approach to cbdr-rc is reflected in unclos Article 203, which requires that international organizations grant “preference” to ­developing countries “in the allocation of appropriate funds and technical assistance.” If cbdr-rc required that the Annex vi requirements regarding ship efficiency apply only to vessels flagged or built in developed countries, then these requirements would have quite limited coverage, since most vessels are flagged in countries such as Panama, Liberia, and the Marshall Islands, and built in China and Korea.81 Consequently, to achieve meaningful levels of emission reductions, limits on vessels flagged in developed states would need to be extremely stringent. To achieve a 10% reduction in overall emissions from

78 79

80 81

­Differentiated Responsibility to the Mitigation of Greenhouse Gases from International Shipping” (working paper, Centre for Transport Studies, Swedish National Road and Transport Research Institute, 2011), 5. Kopela, “Climate Change, Regime Interaction, and the Principle of Common But Differentiated Responsibility,” 78–79. imo, Prevention of Air Pollution from Ships: Legal Aspects of the Organization’s Work on Greenhouse Gas Emissions in the Context of the Kyoto Protocol, imo Doc. mepc 58/4/20 (London, August 1, 2008). Kopela, “Climate Change, Regime Interaction, and the Principle of Common But Differentiated Responsibility,” 92, 98; Kågeson, “Applying the Principle,” 18–23. According to Lloyd’s Register, about two-thirds of vessels are flagged in developing countries, representing about three-quarters of deadweight tonnage.

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i­nternational shipping, for example, developed country vessels would have to reduce their emissions by 35%, and to achieve an overall reduction of 20%, developed country vessels would have to reduce their emissions by 70%.82 Since vessels currently flagged in developed countries could easily evade these requirements by reflagging in a developing country, the requirements would likely prove ineffective in reducing maritime emissions. The issue of cbdr-rc was first raised in the imo by China in 2002, but disagreement on the issue did not prevent the mepc from proceeding with its technical work program over the next several years to elaborate the eedi.83 Ultimately, developed countries were successful in imo in preserving the “no more favorable treatment” principle. The Annex vi amendments adopted by mepc in 2011 do not differentiate between vessels flagged, owned, or operated in developed versus developing countries; instead, they apply equally to all vessels. The only concession to developing countries was to include a proposal by Singapore that allows countries to waive the new requirements for their flag vessels for four years.84 How was a non-differentiated result achieved? A key factor was that amendments to marpol annexes do not require consensus in order to be approved; they can be adopted by a two-thirds majority vote, representing 50% of the world’s gross tonnage. Since only a core group of developing countries, consisting of China, Brazil, and Saudi Arabia, pushed for differentiated commitments in the Annex vi amendments, the other Annex vi parties were able to outvote them, and the amendments were adopted by a vote of 49 in favor (representing 79% of gross tonnage), 5 against, and 2 abstentions.85 Despite the contested vote, the Annex vi amendments are likely to be applied on a very broad basis. The states accepting the amendment represent almost 80% of gross tonnage, and account for a comparable share of maritime emissions. Moreover, although the countries voting against the amendment are not legally bound, their ship owners, operators, and builders will 82

Elvind S. Vagslid, “imo Activities on Control of ghg Emissions from Ships,” imo (presentation, COP-16, 2010), http://www.imo.org/en/OurWork/Environment/Pollution Prevention/AirPollution/Documents/COP%2016%20Presentations/IMO%20activities %20on%20control%20of%20GHG%20emissions%20from%20ships.pdf. 83 Strong, Tackling Maritime Bunker Fuel Emissions, 52. 84 marpol Annex vi, regulation 19, paras. 4 and 5 (permitting parties to waive the requirements of Chapter 4 for ships for which the building contract was placed before 1 January 2017). 85 The five states voting no were Brazil, China, Chile, Kuwait, and Saudi Arabia. Ninety-eight marpol parties, including India, were ineligible to vote on the amendments, because they are not party to Annex vi.

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­nevertheless have an incentive to meet the new standards if they wish to operate globally. Ironically, if the dissenting countries had been willing to compromise, they might have been more successful in promoting differentiation. In the Annex vi amendment negotiations, the mepc chair proposed a compromise that included a resolution on capacity building and technical assistance to balance the undifferentiated commitments in the annex amendments. Developed countries might have been willing to go along with this compromise, but Brazil overplayed its hand and called for a vote on the amendments. When developed countries prevailed in this vote and the amendments were successfully adopted, there was little time left to consider the resolution and developed countries had less incentive to accept it. The adoption of the Annex vi amendments in 2011 did not put the issue of cbdr-rc to bed, however, and it continued to fester. A solution was finally reached two years later, in 2013, through the adoption of a resolution with preambular language that recognized in a symmetrical manner both the imo principles of non-discrimination and no-more-favorable treatment, and the unfccc principle of cbdr-rc, without specifying their applicability to ­m arpol.86 Importantly, the resolution stated the expectation that marpol parties would give “full and complete effect” to the Annex vi amendments, without any differentiation. The resolution also established an Ad Hoc Expert Working Group on Facilitation of Transfer of Technology for Ships, which is to identify developing country technology needs as well as barriers to technology transfer. How much difference will the Annex vi amendments make? The amendments do not cap overall emissions from maritime shipping. Instead, the eedi is a performance standard for individual ships. Because it applies only to new ships (defined as ships for which the building contract was placed on or after 1 January 201387), its coverage will be limited, at least initially.88 A study commissioned by the imo estimates that the amendments, if fully implemented, 86

87 88

imo, Marine Environment Protection Committee, Resolution MEPC.229(65), “Promotion of Technical Cooperation and Transfer of Technology—Relating to the Improvement of Energy Efficiency of Ships,” imo Doc. mepc 65/22, Annex 4 (May 17, 2013). Two preambular paragraphs took “cognizance” of the principles enshrined respectively in the imo conventions (the principles of non-discrimination and no more favorable treatment) and in the unfccc (the principle of cbdr-rc). marpol Annex vi, regulation 2, para. 23.1. Paul Gilbert and Alice Bows, “Exploring the Scope for Complementary Sub-Global Policy to Mitigate CO2 Emissions from Shipping,” Energy Policy 50 (2012): 613, 615.

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would reduce emissions from business-as-usual levels by only about 13% in 2020 and 39% in 2050.89 These reductions would not be sufficient to reverse the overall trend of increasing emissions from international shipping. As a ­result, there is broad agreement that the imo’s actions to date are not enough. V

Next Steps

What additional measures might be appropriate? One possibility is to adopt a global target (or set of targets) to limit emissions from international shipping, as the icao has done for civil aviation.90 The targets could be rate-based, like the targets proposed by the International Chamber of Shipping of reducing emissions per tonne/mile by 20% by 2020 and 50% by 2050.91 Or the targets could be defined in absolute terms, like the 20% by 2020 and 50% by 2050 reduction targets proposed by the eu. What is the appropriate target? Assuming that we want a 50% chance of limiting climate change to less than 2° C and that shipping emissions should be reduced at the same rate as emissions from other sources, this would imply emissions reductions of about 70–80% relative to 1990 levels by 2050.92 Of the various policy options to achieve such a goal, market-based ­approaches score best in terms of environmental and cost-effectiveness, although technology standards might bring about technological change more quickly.93 A market-based mechanism (mbm) could take many forms, including an emissions trading scheme (ets) for shipping, a trading scheme for energy efficiency credits, or a levy on bunker fuel sales, which could be collected by fuel oil suppliers or port states.94 If emissions allowances were auctioned or 89 90

91 92 93 94

Zabi Bazari and Tore Longva, “Assessment of imo Mandated Energy Efficiency Measures for International Shipping,” imo Doc. mepc 63/INF.2/Annex (Oct. 31, 2011). In 2010, icao adopted aspirational goals of improving average fuel efficiency by 2% per year and of stabilizing global emissions from civil aviation starting in 2020. International Civil Aviation Orgnization, “Consolidated Statement of Continuing icao Policies and Practices Related to Environmental Protection—Climate Change,” icao Assembly Res. A37–19. International Chamber of Shipping, Shipping, World Trade, and the Reduction of CO2 Emissions, Paper for COP-20, Lima (2014). Bows-Larkin, “All Adrift,” 687; Bows-Larkin et al., High Seas, High Stakes (Manchester: Tyndall Centre for Climate Change Research, 2014), 6. imo, Second imo Greenhouse Gas Study, Table 6.6. For a survey of the various market-based approaches, see imo, Marine Environment Protection Committee, “Reduction of ghg Emissions from Ships: Full Report of the Work

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a bunker fuel tax adopted, a market-based mechanisms would have the added benefit of providing a potential source of finance for emission reduction or adaptation projects, although this would raise questions about who would administer the funds. In designing an ets, many issues would need to be decided, including: • To which ships the mbm would apply—all vessels or only vessels that do not meet some efficiency standard? • Who would be responsible for compliance—the ship owner, ship charterer, ship operator, or some other entity? • How would allowances be allocated, and who would perform verification and enforcement functions—flag states, port states, or some combination of the two? • Whether to allow entities to buy and use carbon credits for compliance purposes?95 • Whether to cap total shipping emissions, given the relative cleanliness of shipping as compared to other modes of transportation? Compared to an ets, a bunker fuel tax would raise fewer issues, since it could be levied directly on ships by the port state where the fuel was sold, although it too would face enforcement issues, since shippers could try to evade the levy through bunkering offshore or in countries with lax controls.96 At the moment, it does not appear that the imo will adopt an mbm anytime soon, so the issues relating to mbms remain theoretical. Instead, many countries, including the United States, support continuing along the lines of the Annex vi amendments, through the strengthening of technical measures to increase efficiency. In 2015, MEPC-68 adopted a three-track approach going forward, focusing on: (1) data collection on fuel consumption, distance traveled, and cargo carried; (2) data analysis; and (3) consideration of further measures.97 The following year, MEPC-69 took a step down the first of these tracks, by provisionally approving mandatory requirements for collecting data on fuel consumption

95 96 97

Undertaken by the Expert Group on Feasibility Studies and Impact Assessment of Possible Market-Based Measures,” imo Doc. mepc 61/INF.2 (Aug. 13, 2010). Michael Bloor, Susan Baker, Helen Sampson and Katrin Dahlgren, “Enforcement Issues in the Governance of Ships’ Carbon Emissions,” Laws 4 (2015): 335, 340–342. Ibid., 344–345. imo, Marine Environment Protection Committee, Report of the mepc on Its Sixty-Eight Session, para. 4.8, imo Doc. mepc 68/21, (May 29, 2015).

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by ships.98 Under the new regulation, ships larger than 5000 gross tonnage, which account for about 85% of CO2 emissions from international shipping, will be required to report data of fuel consumption to their flag states. Flag states will then report aggregated data to the imo for inclusion in the imo Fuel Consumption Database. The new requirements were adopted by MEPC-70 in October 2016 through an amendment to marpol Annex vi, which is anticipated to enter into force in 2018. Although these data reporting requirements represent a step forward, they are considerably weaker than a parallel eu regulation on the monitoring, reporting, and verification (mrv) of CO2 emissions from ships entering and departing from eu ports, which will require reporting of individual ship data and verification by independent entities.99 MEPC70 also adopted a roadmap for developing a “comprehensive imo strategy on reduction of ghg emissions from ships,” which anticipates adoption of the strategy in 2018. VI

Conclusion

How successful has the imo been in addressing vessel-source emissions? Although progress has been modest, the imo has done better than other forums. Indeed, the marpol Annex vi amendment is the only sectoral agreement adopted to date to limit greenhouse gases. To the extent imo has been successful, three institutional features have played important roles: first, the technical expertise of the imo, which has allowed the climate change issue to be addressed in a more technical, less political manner than in the unfccc; second, the general institutional culture of imo, which again has tended to make the issue less political; and, finally, the ability in imo to make decisions by a qualified majority vote, which allowed the Annex vi amendments to be adopted over the objections of a small but important group of countries. Nevertheless, the imo initiatives to address shipping emissions fall far short of what is needed to combat climate change, and it is unclear whether and when the imo might adopt additional measures, such as a market-based 98

99

imo, “Press Briefing: imo Takes Further Action on Climate Change: Organization Agrees Mandatory System for Collecting Ships’ Fuel Consumption Data,” (April 22, 2016), http://www.imo.org/en/MediaCentre/PressBriefings/Pages/11-data-collection-.aspx. Regulation (eu) 2015/757, April 29, 2015, Official Journal of the European Union 58 (2015): 55, L 123. For a discussion of the eu mrv regulation, see Henning Jessen, “Commentary on Regulation (eu) 2015/757,” in Henning Jessen and Michael Jurgen Werner, eds., eu Maritime Transport Law (Baden-Baden: Nomos, 2016), 1060.

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mechanism. Therefore, it will be important to also explore the potential role of regional and national measures to address shipping emissions, applied for example by port states.100 But that is a subject for another day.

100 Gilbert and Bows, “Exploring the Scope for Complementary Sub-Global Policy;” Hildreth and Torbitt, “International Treaties and u.s. Laws.”

chapter 18

Perspectives on the International Court of Justice Ruling in the “Whaling in the Antarctic” Case Anastasia Telesetsky, Seokwoo Lee and Hee Eun Lee

Introduction

The Whaling in the Antarctic case decided by the International Court of Justice (icj) had the potential to be a pivotal moment in the multi-decade drama that has been defined by passionate performances by both pro-whaling and pro-whale preservation States. In 2014, the icj decided that the Japan Whale Research Program under Special Permit in the Antarctic (jarpa ii)1 was “for purposes of scientific research” as required by Article viii of the International Convention for the Regulation of Whaling (icrw),2 but that the design of the actual program was not “reasonable.”3 While the icj fulfilled its responsibilities to adjudicate the dispute, the decision did not, and perhaps could not, resolve the underlying tensions between the parties. In particular, the icj did not decide whether the jarpa ii activities constituted thinly veiled “commercial whaling” nor did they define “scientific research” for purposes of the treaty.4 The drama between pro-whaling and pro-whale States continues to unfold. This chapter provides historical context for the disintegrating relationship between Australia as a pro-whale preservation State and Japan as a pro-­whaling State to explain why the decision in Whaling in the Antarctic was a missed opportunity for the icj to interpret the textual boundaries of Article viii and to * Anastasia Telesetsky is Professor of International Law, University of Idaho College of Law, usa; Seokwoo Lee is Professor of Law at Inha University Law School, Incheon, Korea; Hee Eun Lee is Associate Dean and Professor of Law at Handong International Law School, ­Pohang, Korea. 1 International Court of Justice, Press Release, Australia Institutes Proceedings against Japan for Alleged Breach of International Obligations Concerning Whales, at 1 (June 1, 2010), available at http://www.icj-cij.org/docket/files/148/15953.pdf. 2 International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 u.n.t.s. 72 [hereinafter icrw]. 3 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment (Mar. 31, 2014), available at http://www.icj-cij.org/docket/files/148/18136.pdf [hereinafter Judgment]. 4 Ibid., 66, ¶229.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_020

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address the growing rift in the International Whaling Commission. Post Whaling in the Antarctic, icrw States still do not have clarity over the meaning of key treaty terms or provisions in the treaty. In fact, recent events including the deployment of the Japanese whaling fleets under the New Scientific Whale Research Program in the Antarctic (newrep-a) indicate that the decision in Whaling in the Antarctic has become just another episode in the ongoing feud over what whales represent in the world. Are whales an abundant and potentially sustainable food resource? Or do whales represent something more important about our human existence and the intrinsic value of nature?

A History of the Irreconcilable Differences of Australia and Japan over Whales and Antarctic Whaling

Whaling has a long cultural history as a supplier of oil, meat, bones, baleen, and blubber to markets for a variety of manufactured products ranging from pesticides to lamp oil to margarine.5 In the 19th century, whaling, like fishing, had transformed into a global industry with pelagic whaling fleets operating abroad.6 Modern methods of whaling using steam and diesel boats, cannonfired harpoons, exploding grenades, and on-board factory processing were efficient and “proved more than stocks of whales could stand.”7 At the start of the 20th century, whaling was approached like mining for ore—a race to quickly find whales in order to lay a claim to a harvest before some other whaling fleet did. As whale populations were rapidly depleted, whalers deployed to increasingly remote locations. The first whalers to operate whaling enterprises in ­Antarctic waters, including those waters at issue in Whaling in the Antarctic, were Norwegians. By 1930, the Norwegians had twenty-three companies ­using 30 factory ships and 145 whale chasers.8 In June 1934, the J­ apanese company Nihon Hogei Kabushiki Kaisha (Nihon Whaling) purchased a ­Norwegian ­factory 5 Toshio Kasuya, “Japanese Whaling,” in Encyclopedia of Marine Mammals, (Cambridge, ma: Academic Press, 2009), 643. 6 Ibid., observing that American and European whalers began operating off the Japanese coast in 1820 and Japan began industrial whaling operations around 1898 after observing the economic success of the Russian Pacific Whaling Company that was exporting whale meat to Japan. 7 Johan Tønnessen and Ame Johnsen, The History of Modern Whaling, (Canberra: Australian National University Press, 1982), 18. 8 Max Colwell, Whaling Around Australia, (Rigby Limited, 1969), 111 and 140 (noting that the Norwegians extracted 3,608,348 barrels weighing 375 pounds each from whales during their 1930 whaling season).

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ship capable of operating in the Antarctic and five catcher boats.9 These boats were deployed in the 1934–1935 season, and during that season the ­Germans, English, Japanese, and Norwegians collectively killed and processed 40,000 whales.10 In 1935, the Japanese whaling sector was poised to grow larger when the company Taiyo Hogei, in competition with Nihon Whaling began to build factory whaling ships in Japanese shipyards.11 Meanwhile, unregulated over-production within the whaling industry led to a temporary downturn in the industry.12 In spite of States agreeing in an industry-organized agreement to outlaw the killing of calves and females with calves, Japan did not join early multilateral whale agreements because the Japanese industry had ambitions of increasing its market share in whale products.13 By the 1938–1939 whaling season, Japan had six factory ships and fortynine catcher boats.14 Given the Japanese refusal to join agreements designed to protect resources for all, the Japanese government was deemed “irresponsible” and Japanese fishermen were distrusted by fishermen from other Pacific States.15 In particular, during the 1930s Japan was regarded by other States as having no “concern for either international comity or resource conservation.”16 Whaling was interrupted during World War ii as Japan conscripted its ­factory ships into military service. After World War ii, States reassessed the overexploitation of whale populations in the first half of the 20th century and negotiated a new framework for international cooperation to rationalize the whaling industry. In 1946, States adopted the icrw to address “the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.”17 Focusing simultaneously on conservation and utilization of whales, the icrw extended protection to certain species that had been protected under previous agreements, created whale sanctuaries, and

9

Hiroyuki Watanabe, Japan’s Whaling: The Politics of Culture in Historical Perspective (­Australia: Trans Pacific Press, 2009), 42. 10 Colwell, Whaling Around Australia, 112. 11 Watanabe, Japan’s Whaling: The Politics of Culture in Historical Perspective, 43. 12 Tønnessen and Johnsen, The History of Modern Whaling, 385. 13 Andrew Darby, Harpoon: Into the Heart of Whaling (Boston, ma: Merloyd Lawrence Book, 2008), 51. 14 Colwell, Whaling Around Australia, 114. 15 Harry N. Scheiber, Inter-Allied Conflicts and Ocean Law, 1945–1953: The Occupation Command’s Revival of Japanese Whaling and Marine Fisheries, (Institute of European and American Studies, Academia Science, 2001): 93. 16 Ibid., 103. 17 icrw, Preamble.

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­established catch limits for whaling as provided for in the Schedule to the Convention (“Schedule”).18 The International Whaling Commission (iwc) was established as the regulatory body of the icrw in order to establish quotas for whale harvesting.19 When the icrw was being negotiated some delegations argued for the creation of an iwc that would be capable of independently adopting decisions that would bind its members.20 Ultimately, the parties agreed to an opting-out procedure to preserve State sovereignty that would have long-term implications for implementing conservation measures.21 Although the Convention went into force in 1948, Japan and Germany were excluded from becoming parties due to concerns from the Allied powers.22 At the end of the war, Japan resumed Antarctic whaling as part of a food security strategy focused on capturing the largest species that would feed the most people.23 In 1946, u.s. General MacArthur exercising power in his role as Supreme Commander, the Allied Powers authorized the first Japanese post-war whaling expedition to operate between December 1946 to March 1947.24 The revival of Japanese whaling between 1946 and 1952 marked an important turning point in both diplomacy among Allied Nations and ocean law development.25 The decision to reinstate Japanese whaling in the Antarctic sparked fierce disagreements between the United States and its allies including ­Australia who were concerned of being left “without effective recourse in international law or diplomacy against the threat of a newly energized competition from a liberated Japanese fishery and whaling industry.”26 While the first post-war ­Japanese Antarctic whale hunt included Americans on board the whaling vessel to supervise the Japanese crew as well as one Australian and United Kingdom observer,27 the British and Australians would remain unhappy with the u.s. 18 Ibid., art. v(1). 19 Howard Schiffman, “The International Whaling Commission: Challenges from Within and Without,” 10 ilsa Journal of International and Comparative Law 367 (2004): 368. 20 Malgosia Fitzmaurice, Whaling and International Law (Cambridge: Cambridge University Press, 2015), 30. 21 icrw, Art. v(3). 22 Scheiber, Inter-Allied Conficts and Ocean Law, 1945–1953, 108. 23 Watanabe, Japanese Whaling 125 (46% of the meat supply in Japan in 1947 was whale meat compared to 10% in the 1930s). 24 Ibid., 123. 25 Scheiber, Inter-Allied Conflicts and Ocean Law, 1945–1953, 3–6. 26 Ibid., 7. 27 Ibid., 135. (Japan was required to sell the oil from the captured whales to an international authority while fats and meat would be designated for domestic consumption).

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policies taken in the name of the Allies to restore Japanese economic activity without requiring greater reparations.28 Australia had hoped to have Japan’s whaling fleet capacity turned over to Australia as a war reparation.29 In addition, given the violence orchestrated by the Japanese fleet during the war, Pacific States were nervous that the existence of large-scale factory ships in an Antarctic whaling fleet might eventually morph into the return of the Japanese navy.30 States expressed deep concerns that Japan would empty the oceans. Reflecting on Japan’s pre-war wastefulness, New Zealand argued that Japan should not be allowed to whale for at least twenty years and had planned at the icrw conference to formally seek a declaration to prevent Japan’s re-entry into whaling.31 Australia argued that Japan should be required to abstain from ­Antarctic whaling “to make some recompense to the rest of the world for their past conduct in reducing the total number of whales to its present figure.”32 States ­including United Kingdom, Australia, New Zealand, and Norway protested u.s. support of Japanese whaling not only because of harm to the resource but also harm to European economic interests.33 America’s allies, however, eventually gave up protesting American support of the revival of Japanese whaling in the Antarctic.34 Japan joined the icrw in April 1951 before it signed its Peace Treaty (­Treaty of San Francisco) on September 8, 1951 and while the Allied Forces were still in occupation. Between 1946 and 1951 with the approval of the Supreme Commander for the Allied Powers, Japan had taken 5600 humpback whales, 5000 fin whales and 3000 blue whales.35 When Japan joined the icrw, this was 28 Ibid., 40. (Quoting the Australian Secretary for External Affairs voicing his concerns that “It seems impossible to eliminate future Japanese claims [to participate in Antarctic whaling] … because the Americans are opposed to anything punitive.”). 29 Ibid., 62, fn. 98. 30 Ibid., 41 and 122. 31 Ibid., 104 and 109. 32 Ibid., 133 (quoting from Australia Government Statement to the Far East Commission). 33 Ibid., 116. (The United Kingdom and Norway suggested that if Japan was permitted to whale that any oil and fat harvested should be allocated so that it would alleviate oil and fat shortages in Europe). 34 Ibid., 47. (Noting that New Zealand was unhappy with the Commander’s decisions but “realized that nothing could be achieved…by protesting against scap’s (Supreme Commander Allied Powers) unilateral action on such questions…”) and 162 (Noting that the British characterized the Japanese whaling issue as “not one of any great consequence and that is would just as well if the three Governments [u.k., Australia, and New Zealand] dropped their dispute with the United States Government over the issue.”). 35 Ibid., 164.

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considered by the Supreme Commander’s office a great achievement of the Occupation.36 Both before and after the war, Australia played only the most limited role in commercial whaling. In 1928, trying to extract revenue from the Norwegians who were operating a small whaling operation in Australian waters, the Western Australian government debated imposing a one pound royalty on any whales captured in or brought into Western Australian waters.37 Australian whaling operations never flourished as industries. Australian whalers contemplated entering adjacent Antarctic waters to whale but the fledgling industry was never able to position itself as a viable contender.38 Meanwhile, Japanese fishing companies continued to expand their factory ship based whaling fleets. Kyokuyo Whaling purchased a factory ship from Panama in 1956 and a factory ship from Britain in 1960; Taiyo Fisheries bought a factory ship from South Africa in 1957. By 1962, Japan had national allocations of 41% of the available quota.39 While the iwc had begun as a club of whalers, the intergovernmental institution protecting the interests of the whaling industry gradually shifted its focus around 1963 to serve broader cetacean conservation interests.40 Even though the mandated purpose of the iwc is to investigate whaling practices and to disseminate information on methods of maintaining and increasing whale populations,41 the iwc began to shift its attention from global resource development to global conservation. This move was facilitated in part because industry had the capacity to substitute synthetic petroleum-based chemicals for goods that had previously been sourced from whales such as degreasers, oils, and pesticides. While the whaling industry was still very active throughout the 1960s and 1970s in certain regions such as the former Soviet Union, Japan, Iceland, and Norway, fewer States were registering whaling fleets. Whaling operations were slowly being retired by formerly very active whaling States, leading for example to the shuttering of a major whaling station in Monterey Bay, California in 1972.42 36 Ibid., 163 (Quoting from an American policymaker working in Japan that with the signing of the treaty the Japanese “displayed a clear understanding of the spirit and aims of international whaling regulation.”). 37 Colwell, Whaling Around Australia, 138, (describing how the whaling tax proposal was ultimately defeated.). 38 Ibid., 167–168. 39 Watanabe, Japan’s Whaling: The Politics of Culture in Historical Perspective, 130–131. 40 Ibid. 41 icrw, op cit., Arts. iv, v and vi. 42 Darby, Harpoon: Into the Heart of Whaling, 120.

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In 1972, States that were no longer pelagic whaling, led by the United States, passed a resolution at the Stockholm Conference on the Human Environment calling for a 10-year moratorium on commercial whaling. With States not yet prepared to accept a moratorium, the iwc in 1974 introduced a “new ­management procedure” on the basis of “maximum sustainable yield.”43 The management procedure was “unworkable.”44 Meanwhile, States such as ­Australia were in 1977 still conducting smaller-scale coastal whaling at places such as the Albany Station near Perth. Political times, however, were changing in Australia. In the 1970s with attention from non-governmental organizations focused on whaling activities, the Australian prime minister, influenced in part by his daughter, launched a political inquiry to determine how to “preserve and conserve” whales and whether Australian coastal whaling should “continue or cease.”45 The inquiry determined that “upon all the evidence it cannot now be said that whaling can be justified as only means of satisfying important human needs.”46 The late 1970s and early 1980s were an epiphany for the A ­ ustralian government leaders who became staunch opponents to government-­sponsored whaling. In 1982, with the support of many new members to the icrw who did not participate in commercial whaling and valued whales for reasons beyond resource exploitation, the iwc amended the catch limits in the Schedule to zero, resulting in a worldwide moratorium on commercial whaling. Specifically, the iwc added two paragraphs that were objected to by pro-whaling countries such as Japan. Paragraph 10(e) to the Schedule provides that “catch limits for the killing for commercial purposes … from all stocks for the 1986 coastal and 1985/86 pelagic seasons and thereafter shall be zero.”47 In addition, paragraphs 7(a) and (b) of the Schedule prohibits all commercial whaling in the Indian Ocean Sanctuary and the Southern Ocean Sanctuary.48 The vote on 43

Robert Friedheim, “Moderation in the Pursuit of Justice Explaining Japan’s Failure in the International Whaling Negotiations,” 27 Ocean Development and International Law 349– 378 (1996): 355–356. 44 Ibid., 356. 45 Darby, Harpoon: Into the Heart of Whaling, 114. 46 “Whales and Whaling: Report of the Independent Inquiry” (Canberra: agps, 1978), 9. 47 icrw, Schedule ¶10(e). 48 International Whaling Commission, “Chairman’s Report of the Thirty-First Annual Meeting,” Report of the International Whaling Commission 30 (1980): 25–41 (noting decision to establish Indian Ocean Sanctuary); International Whaling Commission, “Chairman’s ­Report of the Forty-Fourth Meeting,” Appendix 4; “Resolution on a Sanctuary in the Southern Hemisphere,” Report of the International Whaling Commission 43 (1993): 41–48 (providing decision to establish Southern Ocean Sanctuary).

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the ­adoption of the Southern Ocean Sanctuary was politically humiliating for ­Japan, which was the only opposing vote. Japan objected to the moratorium and continued fishing with the three largest whaling operators merging into the single company of Nippon Kyodo.49 While Japan objected to the moratorium before the iwc, it eventually accepted the moratorium when it came into effect because the United States had threatened to eliminate Japanese access to the one million tonne pollock commercial fishery located within in u.s. exclusive economic zone waters.50 Japan felt used by the United States when the u.s. ultimately phased out fish allocations to foreign vessels in the u.s. eez, and “Japan lost both whaling and fishing.”51 “Preservationist” States and “pro-whaling industry” States have never agreed over the temporal nature of the moratorium with “preservationist” States having seemingly no intention of removing the moratorium. In June 2006 at an iwc meeting, thirty-three States, however, voted in favor and thirty-two States voted against a declaration stating that the moratorium is no longer necessary for conservation purposes in light of abundance of certain whale stocks such as the minke whale.52 “Pro-whaling industry” States such as Japan continue to take political steps to end the moratorium by reaching out diplomatically to States that may not otherwise have strong interests in whaling.53 Even though a commercial whaling moratorium is in place for most States,54 Article viii of the icrw allows individual member States to issue special permits authorizing the taking of whales by its nationals for the purpose

49 Darby, Harpoon: Into the Heart of Whaling, 145. 50 For a detailed explanation on the Japanese inaction against the commercial moratorium, see Atsushi Ishii and Ayako Okubo, “An Alternative Explanation of Japan’s Whaling ­Diplomacy in the Post-Moratorium Era,” Journal of International Wildlife Law and Policy 55 (2007): 58–61. 51 M. Komatsu and S. Misaki, “Whales and the Japanese” (Tokyo: Institute of Cetacean ­Research, 2003), 90. 52 St. Kitts and Nevis Declaration, International Whaling Commission/58/16, Agenda Item 19 (June 2006) available at http://www.unesco.org/csi/smis/siv/Forum/SKNdeclaration06 .pdf. 53 See e.g. 捕 鯨 支 持 国 拡 大 へ 注 力 IWC 総 会 に ら み , January 9, 2017 http://mainichi .jp/articles/20170110/k00/00m/020/107000c (providing a table of 39 countries likely to support an effort by J­ apan to end the commercial whaling moratorium as opposed to 49 countries likely to support the moratorium). 54 Norway objected to the imposition of the commercial moratorium and continues to hunt minke whales.

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of ­scientific research.55 This Article was first proposed based on existing laws within the United States.56 Article viii provides that Any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.57 The plain language of this “scientific research” exemption appears to give the authorizing government wide discretion to issue, restrict, or add conditions to scientific whaling permits.58 The phrase “for purposes of scientific research” became the core of the dispute between Australia and Japan in the icj case, as described below. Since the inception of the icrw, States including Australia, Great Britain and the u.s. have issued Article viii permits. In the 1950s, Australia issued ­Article viii permits to kill humpback lactating cows and calves in order to study post-partum ovulation to determine how quickly humpbacks could mate again. In 1962 and 1963, Australia issued permits for 25 undersized Bryde’s whales, 13 undersized Blue whales, and 104 undersized Sperm whales. Other States used similar permits to protect commercial whalers hauling in animals below regulation length.59 When the moratorium came into effect, the Japanese Fisheries Minister Moriyoshi Sato commented that “The government will do its utmost to find ways to maintain the nation’s whaling in the form of research or other forms.”60 Since the inception of the moratorium, Japan has been intent on maintaining whaling efforts using a variety of means in keeping with Minister Sato’s comment. In 1987, Japan argued that it has the right to whale as “subsistence whaling.”61 While Japan has not specifically classified its activities as “­aboriginal 55 icrw, op cit., Art. viii(1). 56 Fitzmaurice, op cit., 30. 57 Ibid., (emphasis added). 58 Natalie Klein, “Whales and Tuna: The Past and Future of Litigation between Australia and Japan,” Georgetown International Environmental Law Review 21 (2009): 143, 194. 59 Darby, Harpoon: Into the Heart of Whaling, 146–147. 60 Ibid., 147. 61 Government of Japan, “Japan’s Small-Type Subsistence Whaling,” IWC/39/25 (1987).

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subsistence whaling” and therefore not subject to the icrw’s moratorium, it has compared its coastal whaling in four communities to Greenland’s aboriginal whaling practices. While the Japanese arguments for coastal whaling do not at this point impact Japan’s harvests in the Antarctic, the process could be used to veil commercial whaling. If the communities do not qualify under the existing exception for “aboriginal subsistence whaling” category, why else would Japan introduce the category of “subsistence whaling”?62 After the moratorium came into effect, four States have taken whales on the basis of Article viii scientific permits.63 Operating under Article viii, Japan commenced the 12-year Japanese Whale Research Program under Special Permit in the Antarctic (jarpa i) in the 1987/88 season which annually harvested 825 minke and 50 sperm whales (half of the previous commercial take).64 In 1992, during the operation of jarpa i, the Japanese whaling fleet entered and whaled within Prydz Bay which lay within the 200 nautical mile claimed eez of the Australian Antarctic territory.65 This action enraged members of the Australian government who demanded prosecutions under the Australian Whale Protection Act. The Department of Foreign Affairs ended up requesting a meeting with the Japanese ambassador but did not press charges under the Whale Protection Act because the act was limited to Australians.66 Japan subsequently commenced the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (jarpa ii) during the 2005/6 season.67 The stated objectives of jarpa ii were similar to that of j­arpa  i and included monitoring the Antarctic ecosystem, modeling 62

Government of Japan, “Japan’s Proposal and Background for Schedule Amendment to Permit the Catching of Minke Whales from the Okhotsk Sea-West Pacific Stock by SmallType Coastal Whaling,” IWC/65/09 (Presenting Japan’s case under “subsistence whaling” for the taking of 17 minke whales for use by coastal communities.); This proposal was defeated with 39 votes against, 19 votes for, and 2 abstentions. 63 Kristina Alexander, The International Whaling Convention and Legal Issues Related to Aboriginal Rights,” Congressional Research Service Report (2013): 2. (Between 1986 and 2011 South Korea took 69 whales; Norway took 289 whales; Iceland took 562 whales; and Japan took 14,203 whales.). 64 Government of Japan, “The Program for Research on the Southern Hemisphere Minke Whale and for Preliminary Research on the Marine Ecosystem in the Antarctic,” iwc Doc. SC/39/04 (March 1987). 65 Ibid., 153. 66 Ibid., 154. 67 Government of Japan, “Plan for the Second Phase of the Japanese Whale Research Program Under Special Permit in the Antarctic (jarpa ii)—Monitoring Of The Antarctic Ecosystem And Development Of New Management Objectives For Whale Resources” (2005), available at http://www.icrwhale.org/eng/SC57O1.pdf [hereinafter jarpa ii Plan].

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c­ ompetition among whale species, clarifying changes in stock structure, and improving the management of minke whale stocks.68 Under jarpa i and ii, large-scale legal takes of minke whales were authorized by the Japanese government for the purposes of “scientific research.” At the conclusion of the whaling season, meat from harvested whales was sold for consumption and profits were used to support the Institute for Cetacean Research.69 jarpa ii had a quota of 850 minke whales, 50 humpback whales and 50 fin whales each year.70 After Japan commenced jarpa ii in 2005, many iwc countries, particularly Australia, the United States and New Zealand, filed repeated resolutions stating that jarpa ii was either outside the scope of Article viii or a bad faith use of the exception.71 Australian scientists writing at the time observed that while ear plugs of whales could provide information about natural mortality rates for whales, the research protocol provided was not properly designed to protect whales because thousands of whales would need to be harvested to conduct the proposed studies.72 Upset by its perceived unfair treatment by other States, Japan in 2007 announced that it might withdraw from the icrw.73 Relationships outside of the context of whaling were already unsettled ­between Japan and Australia in light of Japan’s engagement in high seas drift netting, limited supervision of Japan’s distant water fleet for iuu fishing activities, failure of Japanese to scrap vessels that were contributing to o­ ver-capacity, re-flagging by Japanese owners of tuna vessels to flags of convenience, and ­Japan’s blatant disregard for its obligations under the southern bluefin tuna legal regime.74 In the eyes of Australia and Japan, the recent southern bluefin tuna fishing dispute has notable parallels with the whaling situation—Japan 68 Ibid., 10–11. 69 Maya Park, “Japanese Scientific Whaling in Antarctica: Is Australia Attempting the Impossible?” New Zealand Journal of Public and International Law 9 (2011): 196. 70 jarpa ii Plan, 18–19. 71 See, e.g., International Whaling Commission [iwc], Resolution on jarpa ii, Res. 2005–1 (July 4, 2005), and iwc, Resolution on jarpa, Res. 2007–1 (June 4, 2007), available at http:// iwc.int/resolutions. 72 Darby, Harpoon: Into the Heart of Whaling, 149 (Describing research by Bill de la Mare). 73 Harry Scheiber, Kathryn Mengerink, and Yann-huei Song, “Ocean Tuna Fisheries, East Asian Rivalries, and International Regulation: Japanese Policies and the Overcapacity/iuu Fishing Conundrum,” University of Hawai’i Law Review 30 (2007–2008), 158 n. 305. 74 Ibid.; Timothy Egan, “New Evidence of Ecological Damage Brings a Call to Ban Drift-Net Fishing,” The New York Times (November 14, 1989) (Noting that in 1989 Japan had 700 vessels on the high seas operating 30 mile long nets).

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was acting in bad faith under a treaty regime by exploiting resources that it was not entitled to exploit. In response to collapsing stocks of southern b­ luefin tuna, Australia, New Zealand, and Japan in the 1980s had designated a total allowable catch that was intended to restore abundance. These three States adopted formal conservation measures in the Convention for the Conservation of Southern Bluefin Tuna (ccsbt). Japan disagreed with the original catch limits and wanted to increase the total allowable catch by 6000 tons and its own allotment by 3000 tons.75 Australia and New Zealand rejected this ­request. Meanwhile, Japan proposed a 6000 ton “experimental fishing program” (efp) to gather data in areas where target fishing for southern Bluefin tuna was no longer taking place. The States could not agree on how much should be collected under any efp. Japan meanwhile conducted its own efp capturing 1464 metric tons of fish.76 The parties met again and were unable to reach an agreement because Australia and New Zealand found that Japan’s “design and analysis were fundamentally flawed” and posed a “significant increased risk to the sbt stock.”77 Japan refused to end its unilateral efp and the parties ended up before the International Tribunal for the Law of the Sea with ­Australia and New Zealand seeking and receiving provisional measures.78 ­Japan’s position throughout the dispute resolution hearings was that Australia and New ­Zealand were undermining the functions of the ccsbt by not reaching agreement about the efp under the treaty.79 While an ad hoc arbitral tribunal concluded that itlos did not have jurisdiction over the dispute and there were no final agreements about the efp, the Southern Bluefin Tuna decision highlights some of the unresolved tensions between Australia, New Zealand, and Japan that were already simmering before the filing of the Whaling in the Antarctic case. In large part because of the southern bluefin tuna saga and questions regarding whether Japan was operating in good faith, Australia and New Zealand had little patience for Japan’s claims of a “good faith” implementation of a “scientific whaling” program. Australia and New Zealand had already had to sacrifice economically valuable 75

Southern Bluefin Tuna Case (Austl. & n.z. v. Japan), Award on Jurisdiction and Admissibility, Aug. 4, 2000, Arbitral Tribunal Constituted under Annex vii of the United ­Nations Convention for the Law of the Sea, available at http://www.worldbank.org/icsid/ bluefmtuna/award080400.pdf, ¶4. 76 Ibid., ¶25. 77 Ibid., ¶26. 78 Southern Bluefin Tuna Cases (Austl. & n.z. v. Japan) Requests for Provisional Measures, Order, International Tribunal for the Law of the Sea, Aug. 27. 1999: 15–18. 79 Southern Bluefin Tuna Case (Austl. & n.z. v. Japan), ¶34.

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bluefin tuna quota under the Convention on the Conservation of Southern Bluefin Tuna because of Japan’s poaching with no compensation.80 Australia and New Zealand were not willing to give Japan the benefit of the doubt that Japan was not attempting to short circuit the icrw through Article viii. From their perspective, Japan’s “scientific whaling” efforts looked uncannily similar to the unilateral efp under the ccbst where Japan pursued its own program in spite of an absence of consensus regarding management. In 2008, the Australian Federal Court ordered a Japanese whaling company to stop killing, injuring, or taking any Antarctic whales in the Australian Whale Sanctuary.81 The judgment, however, was not enforced in large part because Australia’s claim to the Exclusive Economic Zone (eez) in the Southern Ocean was contested. In addition, there was concern that enforcement would strain diplomatic relations82 and possibly violate the Antarctic Treaty System.83 In 2010, Australian Prime Minister Kevin Rudd warned Japan to end whaling or face legal action.84 At the 62nd meeting of the iwc, the Proposed Consensus Decision was presented which sought a compromise by allowing Japan to harvest a small number of whales while ending the scientific purpose exception and bringing all whaling under the iwc’s regulatory authority.85 Ultimately

80 Scheiber et al., “Ocean Tuna Fisheries, East Asian Rivalries, and International Regulation: Japanese Policies and the Overcapacity/iuu Fishing Conundrum,” 154–156 (pointing out that Japan had taken 100,000 tons over its quota thereby reducing surviving stock by 80% of its original stock and causing $2 billion of economic loss). 81 Humane Soc’y Int’l Inc. v. Kyodo Senpaku Kaisha Ltd. (2008) fcr 3, ¶55 (Austl.). 82 Prior to the 2008 order, the Federal Court of Australia originally denied the Plaintiff’s application for leave to serve process in Japan against the Defendant due to diplomatic considerations. See Humane Soc’y Int’l Inc. v. Kyodo Senpaku Kaisha Ltd. (2005) fca 664, ¶13 (Austl.) (“Japan would regard any attempt by Australia to enforce Australian law against Japanese vessels and its nationals in the Antarctic eez to be a breach of international law on Australia’s part and would give rise to an international disagreement with Japan”). 83 See The Antarctic Treaty, arts. 1–2, 4, 8, 11, Dec. 1, 1958, 402 u.n.t.s. 71. Among other things, the treaty does not recognize territorial claims and limits a state’s jurisdiction to its own citizens. See also Donald K. Anton, “False Sanctuary: The Australian Antarctic Whale Sanctuary and Long-term Stability in Antarctica,” Sustainable Development Law and P­ olicy 8 (2008): 17, 20 (stating that sovereignty issues arise when exercising jurisdiction over non-nationals in the Treaty Area). 84 Justin McCurry, “Australia Threatens Legal Action over Japanese Whaling,” Guardian, Feb. 19, 2010, 27. 85 iwc, Proposed Consensus Decision to Improve the Conservation of Whales from The Chair and Vice-Chair of The Commission, IWC/62/7rev (Apr. 28, 2010), available at http://opc .ca.gov/webmaster/ftp/pdf/agenda_items/20100616/IWC%20Proposal%20(2).pdf.

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no agreement was reached.86 In the context of Japan’s repeated issuance of ­Article  viii permits for “scientific whaling” and fraying diplomatic relationships, Australia instituted proceedings against Japan on May 31, 2010.87 For Australia and New Zealand, Whaling in the Antarctic was to be the legitimate legal battleground for settling a long-simmering dispute. Having turned from being “whalers in the wings” who never really invested heavily in the commercial whaling business to whale rescuers in just a few decades, A ­ ustralia looked to the Court to apply traditional treaty interpretation to expose the Japanese as treaty violators. For Japan, the case was one more inconvenience to a return to re-establishing “sustainable whaling” under the treaty. The next section offers analysis and commentary on two matters that the icj discussed but never decided: the meaning of “scientific research” in the context of Article viii and whether Japan acted in good faith. The final section describes how post-judgment, parties remain entrenched in their original positions with little likelihood of finding a truce.

The icj’s Missed Opportunities for Interpretation and Guidance

When it filed proceedings, Australia claimed that Japan’s jarpa ii program was a thinly disguised effort to commercially whale that did not qualify under the Article viii scientific research exception.88 As such, Australia urged the icj to view the jarpa ii program as a breach of Japan’s obligation of good faith performance of treaties under Article 26 of the Vienna Convention on the Law of Treaties (vclt) and customary international law.89 Australia sought both a declaration from the icj that Japan was violating international law by implementing jarpa ii and a declaration that jarpa ii was not a “­scientific research” program for Article viii purposes. In response, Japan countered that jarpa ii falls squarely within the “scientific whaling” exception provided 86

87 88

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Flexibility Needed on Whaling Issue, Japan Times, July 8, 2010, available at http://www .japantimes.co.jp/opinion/2010/07/08/editorials/flexibility-needed-on-whaling-issue/# .UjPnUsbIZOw. Application Instituting Proceedings, Whaling in the Antarctic (Austrl. v. Japan), (May 31, 2010), available at http://www.icj-cij.org/docket/files/148/15951.pdf. This is not the first time that a State has challenged another State regarding a violation of the spirit of the law. In 1957, Norway argued that the Soviet Union was in violation of Article viii when it used scientific research as a front to harvest more whales. Tønnessen and Johnsen, The History of Modern Whaling, 579. Memorial of Australia, Whaling in the Antarctic (Austrl. v. Japan: n.z. intervening), 2010 i.c.j. 148 (May 9, 2011): ¶ 7.6, available at http://www.icj-cij.org/docket/files/148/17382.pdf.

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­under Article viii and that Japan had implemented jarpa ii in “good faith” as a scientific whaling program. The Whaling in the Antarctic case presented a legal dispute that on the one hand was novel but could have been decided, as the Australians requested, in light of basic treaty interpretation practices as articulated in the Vienna Convention on the Law of the Treaties (vclt). Inexplicably, the icj departed from this approach to focus most of it analytical energies on determining the “reasonableness” of the jarpa ii program rather than on whether the jarpa ii program was or was not “for purposes of scientific research.” Keeping in mind that both Australia and Japan interpret “scientific whaling” in a binary fashion, this section will provide a brief analysis addressing the Court’s minimal interpretation of the language “for the purposes of scientific research” the Court’s understanding of “good faith” in relation to Article viii obligations and the Court’s reluctance to use supplementary sources for treaty interpretation. The last section of the chapter will suggest that the icj did not, and perhaps could not, resolve the polarization between “pro-whaling states” and “pro-whale preservation States” that has been unfolding over at least the last 40 years, ­because the contending positions are simply too entrenched.

Treaty Interpretation: Ordinary Meaning of the Phrase “For the Purposes of Scientific Research” in Article viii and the “Object and Purpose” of the icrw At the heart of the dispute between Australia and Japan is whether jarpa ii is “for purposes of scientific research.” Generally, one would expect the icj to rely upon the interpretive principles articulated by the vclt to assist it in interpretation. Under Article 31(1) of the vclt, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”90 Australia hoped that the icj would take the approach of defining key terms in the treaty to determine Japanese compliance with Article viii. Australia’s Memorial requested the court to look at the ordinary meaning of the phrase “for the purposes of scientific research” in light of the Convention’s object and purpose. Australia argued that the phrase is not a subjective concept open to interpretation by each member State but can be objectively determined. Specifically, Australia argues for four criteria that define “scientific research” for ­Article viii purposes: (1) a project with defined and achievable objectives; (2) the use of appropriate methods that are likely to achieve the stated 90

Vienna Convention on the Law of the Treaties, United Nations, Treaty Series, Vol. 1155, 331 (1969) (Entered into force January 27, 1980).

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­objectives; (3) the periodic review of research proposals and results with adjustments made in response to such review; and (4) projects that are, if possible, designed to avoid adverse effects on the subject of the research (e.g. whale stocks).91 For Australia, one means of defining the ordinary meaning of the term “scientific research” would have been to rely on the “iwc Guidelines” that reflect agreed upon characteristics of a “scientific research” program for Article viii purposes, even though the term “scientific research” has not been defined under the icrw.92 Relying on the iwc Guidelines, Australia took the position that jarpa ii did not serve a plausible scientific research purpose because (1) it did not have clear, realistic, scientific objectives or appropriate scientific methods, (2) it lacked a proper peer review process; and (3) it was not designed to avoid adverse effects on the targeted whale stocks.93 Japan argued for a broad interpretation of the phrase that gives governments broad discretion in granting scientific whaling permits. Specifically, Japan argued that Article viii “leaves each state free to decide for itself what should be included within its program of scientific research.”94 In the case of jarpa ii, Japan advanced the position that jarpa ii “merely requires scientific purpose” in order to qualify as an effort being undertaken “for purposes of scientific research.”95 At the outset, the icj understood that it had been asked to interpret the meaning of “for the purposes of scientific research.” It disagreed with Japan that it depends on a State’s individual perception whether a program is “for purposes of scientific research.”96 While the icj understood that the term “scientific research” was an undefined term in the treaty and therefore open to interpretation of its ordinary meaning, the icj refrained from offering any ordinary meaning for the term “scientific research” in spite of the ordinary meaning that has been ascribed to the phrase by scientific practitioners.97 The 91 92

Memorial of Australia, ¶5.29. The “iwc Guidelines” are a series of guidelines adopted by the Commission that set forth detailed criteria against which special permit proposals under Article viii should be assessed. See Memorial of Australia, op cit., note 95, Annexes 42–49 at 392–393. 93 Memorial of Australia, ¶5.105. 94 Oral Proceedings cr 2013/21, Whaling in the Antarctic (Austl. v. Japan: n.z. intervening), 2010 i.c.j. 148, at 17, ¶8 (July 15, 2013). See also, Counter-Memorial of Japan, Whaling in the Antarctic (Austl. v. Japan) 2010 i.c.j. 148 ¶7.45. 95 Oral Proceedings cr 2013/21, 22, ¶17 (emphasis added). 96 Judgment, ¶61. 97 Ibid., 86. (“[T]he Court is not persuaded that activities must satisfy the four criteria advanced by Australia in order to constitute ‘scientific research’ in the context of Article

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­reluctance of the Court to provide a definition was somewhat surprising because the Court had been called upon to resolve a dispute regarding the meaning of Article viii, in part, because the Convention did not define significant terms such as “scientific research.” Ultimately, the icj concluded its section on interpretation without offering any specific definition of “scientific research” based on ordinary meaning or ordinary usage. The failure to provide a definition for key words in the disputed text was curious in light of the 40 paragraphs dedicated in the opinion to issues of interpretation. In spite of the impression that the decision did not require the Court to define the ordinary meaning of “scientific research” in Article viii because it is a complex task involving a potentially contested term, the Court ultimately failed to provide States with the guidance they needed for interpreting whether a proposed program is “for purposes of scientific research” under Article viii. Without defining “scientific research,” the Court decided that jarpa ii could be characterized as “scientific research” because jarpa’s stated objectives were the types of questions investigated by scientists. This approach reflected a gap in the Court’s written analysis. In spite of apparent misgivings about using legal interpretive tools to define science, the Court ultimately needed to set aside its misgivings and define “scientific research” so that States could understand the legality of a given “scientific research” program. The icj has historically defined difficult and complex treaty terms. For example, in Costa Rica v. Nicaragua, the icj defined “commerce” to include both the transport of people and goods.98 The Costa Rica case is particularly interesting because the icj concluded that treaty terms can evolve over the decades.99 This observation is highly relevant to the Whaling in the Antarctic case because the term “scientific research” in relation to whale research has equally evolved over the decades in terms of methodology. viii. As formulated by Australia, these criteria appear largely to reflect what one of the ­experts that it called regards as well-conceived scientific research, rather than serving as an interpretation of the term as used in the Convention. Nor does the Court consider it necessary to devise alternative criteria or to offer a general definition of ‘scientific research.’”). 98 Dispute Regarding Navigational and Other Rights, Judgment (Costa Rica v. Nicaragua), ¶70. (13 July 2009), available at http://www.icj-cij.org/docket/files/133/15321.pdf. 99 Ibid., ¶66 (“[W]here the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration,’ the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.”).

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At least one icj judge did express misgivings regarding the absence of an effort to ascertain the ordinary meaning of “scientific research.” Judge Bennouna commented that “the Court seeks to determine the purpose of a given activity without having first clarified what this activity consists of.”100 He concluded that “this is a perilous exercise” because the Court short-circuits its interpretation by instead focusing exclusively on “whether the design and implementation of a programme ‘are reasonable in relation to its stated scientific objectives.’” This latter exercise is separate from an evaluation of Article viii’s questions of whether jarpa ii is a programme “for purposes of scientific research” or instead is a commercial whaling venture. Some domestic courts for purposes of evaluating expert testimony have defined for themselves and potential litigants the term “scientific methodology.” For example, in the United States, in a case where plaintiffs alleged that a drug caused birth defects, the U.S. Supreme Court was faced with difficult questions regarding the value of a variety of “scientific” studies.101 The Court needed to decide what constituted “scientific knowledge.” Recognizing the complexity of this task, the Court found that “scientific knowledge” is usually produced by “scientific methodology.”102 The concept of “scientific methodology” requires the process of formulating hypotheses, the conducting of experiments to prove or falsify the hypothesis, at least some general acceptance of the experimental methods by the scientific community, and some vetting of the results through peer review or other similarly rigorous reviews by the scientific community.103 In addition to interpreting the meaning of “scientific research”, the icj should have also elucidated the Court’s understanding of the “object and ­purpose” of the treaty. When a court is unable to ascertain meaning from the disputed text or the context within which the text appears, it may turn its attention to understanding the role of the particular language within the treaty in achieving the overall “object and purpose” of the treaty. The icj never specifically answered what “for the purposes of scientific research” means in light of the “object and purpose” of the treaty. Japan argued that the primary object and purpose of the icrw is the development of the commercial whaling industry, and that conservation efforts under the treaty are a means to ensure the sustainable future of the industry.104 100 Judge Mohammed Bennouna, diss., Whaling in the Antarctic (Australia v. Japan), (Mar. 31, 2014), available at www.icj-cij.org/docket/files/148/18144. 101 Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 u.s. 579. 102 Ibid., 589. 103 Ibid., 593. 104 Counter-Memorial of Japan, 2.59, 6.1, 6.35, 8.13.

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This argument was supported in part by language quoted by the icj from the preamble indicating that “it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress.”105 Australia, in contrast, argued that the primary object and purpose of the Convention is the conservation and recovery of whale populations, and further claimed that the Convention allows for the object and purpose to evolve and respond to changing conditions and scientific advice.106 To support its position, Australia argued that the preamble of the icrw actually evidences not one, but two ends: (1) the conservation and recovery of whale populations, and (2) the orderly development of the whaling industry.107 Australia further emphasized that the icrw Schedules allow for these objectives to be achieved in an evolving and responsive manner—which occurred, for example, when an amendment to the Schedule resulted in the current moratorium on commercial whaling. By contrast, Japan characterized the preamble as supporting primarily one objective—the development of the industry—with the conservation efforts serving only as the means to achieve this end. There was only a brief three-paragraph discussion of the relation between Article viii and “the object and purpose” of the Convention where the Court concluded that the purpose of the icrw is “ensuring the conservation of all species of whales while allowing for their sustainable exploitation.”108 The icj did not then apply this evaluation of “the object and purpose” of the treaty to elucidate the meaning of “for the purposes of scientific research.” Judge Owada noted this in his dissent when he reminded his fellow judges that because the Convention was negotiated in a particular historical time and without further amendments that its text should be interpreted to support dual conservation and economic development goals. From his perspective, jarpa ii was “for purposes of scientific research” because it was designed to further both of these goals. Ultimately, the icj decided that “neither a restrictive nor an expansive ­interpretation of Article viii is justified” on the basis of the dual objects and purposes of the treaty.109 The icj then took a curious step by asserting that “programmes for purposes of scientific research … may pursue an aim other 105 Judgment, 26, ¶56. 106 Memorial of Australia, ¶2.20. 107 Ibid., ¶4.51, 2.15–2.20. 108 Judgment, 26, ¶56. 109 Ibid., 27, ¶58.

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than either conservation or sustainable exploitation of whale stocks” such as the protection of other living resources besides whales or hypotheses “not directly related to the management of living species.”110 While this conclusion might be true as a general proposition, it was unclear why the Court made this assertion when it was tasked with interpreting Article viii in light of the treaty’s object and purpose. The objectives of a scientific program that do not directly involve conservation or sustainable exploitation of whale stocks should be irrelevant under Article viii and seem to reflect an expansive interpretation of “scientific research” in the context of Article viii. Good Faith Australia’s argument over the meaning of “for the purposes of scientific research” required Japan to act in good faith when issuing permits.111 Australia’s main substantive argument was that Japan, in pursuing an alleged commercial whaling venture, violated the Article viii scientific research exception because Japan did not operate under good faith as required by Article 26 of the vclt (pacta sunt servanda) and customary international law.112 Japan argued that it had been acting in good faith because jarpa ii was a scientific research program that falls under the icrw’s Article viii “scientific research” exemption.113 Japan supported this argument first by claiming that the information collected by jarpa ii is contributing to the future sustainable management of commercial whale fisheries.114 Pointing out that jarpa ii had actually produced scientific results, Japan also claimed that its research methods are scientifically necessary because non-lethal methods cannot completely replace lethal sampling.115 Ultimately, the icj in this case was unwilling to engage the topic of whether Japan had acted in good faith on the object and purpose of the convention. The icj, as explained in the section above, could have made a determination regarding “good faith” if it had provided some standard for how to interpret “for purposes of scientific research.” To answer this query, the icj needed to undertake an explicit vclt Article 31(1) analysis that would have included defining the ordinary meaning of “scientific research” in the context of Article viii and evaluating jarpa ii in light of the “object and purpose” of the icrw. 110 Ibid. 111 Judgment, ¶4.122. 112 Memorial of Australia, Chapter 4. 113 Counter-Memorial of Japan, Chapter 5. 114 Ibid. 115 Ibid., ¶5.141.

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Subsequent Practice Having failed in the eyes of Australia to have applied traditional interpretation methodology to the dispute at hand, the Court further frustrated Australia and other like-minded States concerned with the case, when it refused to consider subsequent practice of the iwc over matters involving the subject of the dispute. When treaty text remains vague after ascertaining its ordinary meaning, a court may, if it is following the approach of the vclt, seek additional information regarding subsequent practice after the adoption of ­Article viii. Article 31(3) of the vclt provides that “any subsequent practice in the application of the treaty” shall be taken into account when interpreting the treaty in good faith. Australia relied heavily upon this section of the vclt for its interpretive value and argued that the resolutions and guidelines by the iwc passed after the creation of Article viii reflect the subsequent practice by the State Parties to the icrw; as a result, these must be taken into consideration when interpreting Article viii.116 More specifically, Australia argued that these iwc resolutions and guidelines provide “authoritative”—or “at a minimum highly ­persuasive”—guidance on interpreting Article viii and in particular the meaning of “scientific research.”117 Having already arrived at a conclusion that jarpa ii’s program would quality “for purposes of scientific research,” the Court refused to rely upon the iwc resolutions and guidelines as subsequent practice modifying the language in Article viii. The Court observed that iwc resolutions did not reflect subsequent practice because the resolutions were often “adopted without the support of all State parties to the Convention” including the defending party of Japan.118 The Court further concluded that the resolutions and guidelines never established strict requirements to use non-lethal methods in lieu of lethal methods under Article viii special permits.119 While the Court rejected the use of subsequent practice documents as interpretive tools in this case, it is interesting that the Court indicated that the rejection of the iwc resolutions “without the support of all State parties” was relevant. Subsequent practice of an intergovernmental organization such as the iwc even when adopted through institutional ­procedures (e.g., majority votes) does not have

116 Ibid., ¶4.69. 117 Oral Proceedings cr 2013/23, Whaling in the Antarctic (Austl. v. Japan: n.z. intervening), 2010 i.c.j. 148, 31, ¶28. 118 Judgment, 35, ¶83. 119 Ibid.

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i­ nterpretive weight unless supported by all parties to the dispute—in this case Australia and Japan.120

Implications of the Decision

Even though Australia and other whale-preservation States had anticipated that the Whaling in the Antarctic would resolve some of the tensions that has been mounting for decades, the decision ultimately failed to dissipate the feelings of anger and injustice on the part of both pro-whaling and propreservation States. In fact, entrenchment for both groups has continued to play out, and the icj has been eliminated as a future dispute resolution option. The icj’s decision not to articulate a clearer standard of what “scientific research” means that the implementation of Article viii by States will continue to affect the viability of the iwc as an institution. In September 2014, icrw parties attended the 65th meeting of the iwc and considered a draft Resolution submitted by New Zealand related to special permits.121 Drawing on specific language and concepts articulated by the icj plus its own perspectives, New Zealand called for the Scientific Committee to ensure that future proposed Scientific Permits are reviewed more carefully for their “reasonableness.” Specifically, the Scientific Committee is called upon to examine (1) whether “the design and implementation” of a scientific research is “reasonable in relation to achieving the programmes’ stated research objectives” (2) whether the programme is “likely to lead to improvements in the conservation and management of whales” if lethal methods are used (3) whether non-lethal methods can be used in lieu of lethal methods and (4) whether the scale of lethal take is reasonable in relation to the programmes’ stated research objectives.122 New Zealand requested that parties instruct the Scientific Committee to incorporate these elements of review into its review process of Scientific Permits and not issue any new special permits until (1) the Scientific Committee has ­received and reviewed research proposals that enable it to provide advice to the Commission on the basis of the proposed elements of review; and (2) the Commission has had an opportunity to make recommendations on the basis of the Committee’s reports. 120 For additional analysis of the Whaling in the Antarctic case, see Malgosia Fitzmaurice and Dai Tamada, eds., Whaling in the Antarctic (Leiden: Brill 2016). 121 New Zealand, Proposed Draft of Whaling Under Special Permit IWC/65/14, available at https://archive.iwc.int. 122 Ibid.

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Parties adopted a resolution on whaling under special permit that tracked closely to New Zealand’s proposal, including the request for States to issue no further permits until the Scientific Committee has had an opportunity to provide advice on “reasonableness” and the Commission has reviewed the report and made such recommendations “as it sees fit.”123 The resolution cited the icj opinion and noted that the opinion presented an authoritative interpretation of Article viii. Specifically, the resolution recalled that the Court established “several parameters for a programme for purposes of scientific research” that the Commission should consider when issuing special permits.124 The Commission made note of certain elements that it might review including “the scale of the programme’s use of lethal sampling, the methodology used to select sample sizes, a comparison of the target sample sizes and the actual take, the timeframe associated with a programme, the programme’s scientific output, and the degree to which a programme coordinates its activities with related research projects.”125 Significantly, the vote on the resolution was a split vote with 30 parties in favor, 25 against, and 5 abstentions.126 The lines were simply being re-drawn in the sand. Additional reform of the iwc process and particularly the work of the Scientific Committee, beyond the proposed Resolution 2014–5, seems essential to ensure that Special Permits issued by member States do not create unintended pressures on the recovery of whale populations. While the Scientific Committee reviews information that has been submitted to it by States under ­Article viii and comments on the proposed special permits, it may be time for the membership of the Committee to be scrutinized and for the Committee to assume a more independent review role. If the Committee were to be empowered and funded to conduct its own environmental impact studies for a given proposed Special Permit, the Committee findings could then be presumed to determine whether a given program design or program implementation is reasonable “for purposes of scientific research.” While the introduction of this new responsibility would require additional support from the 123 Summary of 65th Annual Meeting of the International Whaling Commission, Resolution on Whaling Under Special Permits, Resolution 2014–5, 19–20, Sec. 3, http://iwc.int/ private/downloads/192hiqnljnoksok0oswsks4oc/IWC65%20Summary%20of%20 Outcomes.pdf. 124 Ibid. 125 Ibid. 126 Deutsche Welle, Nations Vote against Japanese Whaling, Agree to Tighten Scrutiny, September 18, 2014, available at http://www.dw.de/nations-vote-against-japanese -whaling-agree-to-tighten-scrutiny/a-17932701.

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iwc members, it might be achieved by an amendment to the Schedule. The window of ­opportunity to achieve this type of institutional reform appears to be closing, as reflected by the vote on the New Zealand resolution. The tide has already turned in terms of designating protected areas with a proposal for a South A ­ tlantic whale sanctuary failing again in 2016 when 24 out of 64 iwc countries rejected the proposal.127 In the meantime, Australia introduced a resolution on Special Permits in 2016 requiring additional reforms to the review process for special permits.128 Specifically, the Contracting Governments to the icrw should play a more prominent review role in examining Article viii permits. The resolution passed with support from 34 States. 17 States including Japan voted against the resolution while 10 abstained. Australia, New Zealand, and the United States formed a Standing Working group to pursue implementation of the resolution. Japan rejected the resolution because it argued that only Article viii and Paragraph 30 of the Schedule apply to Special Permits and that neither of these legal sources requires consultation with the International Whaling Commission. Due to the Whaling in the Antarctic decision, there is greater uncertainty for the iwc. When Japan’s legal representative, Deputy Minister for Foreign Affairs Koji Tsuruoka, stated during oral argument that, “the only way out is to leave” if Japan could not continue its whaling program,”129 Japan seemed to be contemplating defecting from the iwc if the icj decision and the iwc response to the decision did not protect Japan’s sovereign interests. This was not the first time that Japan has threatened to defect from the icrw.130 In the years following the decision, Japan has not withdrawn from the iwc, but there are some indications that Japan may be flaunting both the icj decision and the iwc recommendation with the implementation of its

127 Avaneesh Pandey, “South Atlantic Whale Sanctuary Creation Bid Falls Through After Whaling Nations Scuttle the Proposal,” International Business Times, October 25 2016, available at http://www.ibtimes.com/south-atlantic-whale-sanctuary-creation-bid-falls-through -after-whaling-nations-2436483?utm_source=internal&utm_campaign=incontent&utm _medium=related1. 128 Resolution on Improving the Review Process for Whaling under Special Permit (IWC/66/11), see Chair’s Report of 66th Annual International Whaling Commission (December 2016). 129 Oral Proceedings cr 2013/23, Whaling in the Antarctic, 32, ¶12. 130 Friedheim, “Moderation in the Pursuit of Justice Explaining Japan’s Failure in the International Whaling Negotiations,” 356 (indicating that Japan had considered defecting from the icrw when the moratorium on commercial whaling was adopted but did not do so because of “negative incentives.”).

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New ­Scientific Whale Research Program in the Antarctic (newrep-a).131 On ­December 1, 2015, Japan’s whaling ships sailed again for the Antarctic for the 2015–2016 season, ultimately killing 333 minke whales including 200 pregnant whales.132 Thirty-four countries protested this decision.133 On January 12, 2016, The United States, New Zealand, Australia, and the Netherlands issued a joint statement protesting the Japanese activities in the Antarctic because they did not “believe that Japan has sufficiently demonstrated that it has given due regard to the guidance found in the 2014 International Court of Justice judgment.” These countries expressed concern that the “final newrep-a research plan, circulated to the Scientific Committee members on 27 November 2015, had not proceeded through the International Whaling Commission’s processes set out in Resolution 2014–5, which requests that proponents allow the iwc to consider the Scientific Committee’s review of special permit proposals” prior to commencing scientific whaling programs.134 In fall 2016, the Japanese whaling fleets left again for the Southern Ocean for the 2016–2017 and harvested whales inside the Australian Whale Sanctuary.135 History has repeated itself. All of these recent developments suggest that the iwc remains in a certain limbo, and moving forward institutionally may prove tricky if Japan perceives 131 In May 2015, the Scientific Committee requested Japan to submit additional evidence of the reasonableness of newrep-a. See Main items pointed out by the iwc’s Scientific Committee (sc) in relation to Resolution 2014–5 and Japan’s planed responses, available at http://www.mofa.go.jp/files/000117419.pdf; Additional evidence was submitted on November 27, 2015 to the Scientific Committee. According to the Government of Japan’s Ministry of Foreign Affairs’ website, “[a]s a result of additional work and analyses by Japanese scientists, the Government of Japan assessed that all of the items pointed out by the Scientific Committee that needed to be conducted prior to the start of newrep-a had been completed.” Implementation of the New Scientific Whale Research Program in the Antarctic Ocean (newrep-a) (December 11, 2015), available at http://www.mofa.go.jp/ ecm/fsh/page4e_000357.html. 132 Mindy Weisberger, “Amid Controversy, Japanese Whaling Ships Return to Antarctic Ocean,” LiveScience, available at http://www.livescience.com/52949-japan-resumes -antarctic-whaling.html; Rachel Bale, Japan Kills 200 Pregnant Minke Whales, National Geographic, (March 16 2016) http://news.nationalgeographic.com/2016/03/160325-Japan -whaling-minke-whales-Antarctica/. 133 Joint Statement on Whaling and Safety at Sea (January 12, 2016), a­ vailable at https:// www.government.nl/documents/media-articles/2016/01/12/joint-statement-on-whaling -and-safety-at-sea. 134 Ibid. 135 Vishaka Sonawane, “Japan Whaling 2017,” International Business Times, (January 15, 2017), http://www.ibtimes.com/japan-whaling-2017-slaughtered-minke-whale-found-ship -antarctic-crew-attempted-cover-2475740.

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itself as being stymied by divisions in scientific opinion within the Scientific Committee. Given the continuing rifts in the icrw between pro-preservationist States and pro-whaling States, it may just be a matter of time before Japan and other countries such as Iceland, which are frustrated by outcomes within the iwc, withdraw from the Convention.136 This threat had been made often in earlier years. It is important to note that while the u.n. Convention on the Law of the Sea (unclos) requires states to cooperate “through the appropriate international organizations” for the conservation, management and study of cetaceans,137 it does not recognize any exclusive competence in this regard. As a result, prowhaling states can still satisfy this obligation under unclos via alternative organizations. Countries eager to revive commercial whaling may ultimately opt to join other whaling organizations such as North Atlantic Marine Mammal Commission (nammco) and pursue commercial whaling under their jurisdiction.138 If Japan leaves the iwc and other countries follow, then the reputation and credibility of the iwc as the predominant international whaling organization will suffer a serious blow and potentially weaken the existing international cooperation focused on conserving whales.139 The current outcome of the icj case, which failed to clarify the meaning of “for purposes of scientific research” is that the iwc continues to face a legitimacy crisis. Even though Australia contemplated returning to the icj in 2015 after the disagreements over newrep-a, the icj is unlikely to revisit any ­similar “scientific whaling” cases in the years to come as Japan has r­ evised its ICJ declaration of compulsory jurisdiction so that cases like Whaling in the

136 eu, us blasts Iceland for Stepping up Whaling, September 15, 2014, http://af.reuters.com/ article/commoditiesNews/idAFL6N0RG4RD20140915. 137 u.n. Convention on the Law of the Sea, Dec. 10, 1982, 1833 u.n.t.s. 3, arts. 65 and 120. 138 Park, “Japanese Scientific Whaling in Antarctica: Is Australia Attempting the Impossible?” 220; Friedheim, “Moderation in the Pursuit of Justice Explaining Japan’s Failure in the International Whaling Negotiations,” 362 (“Japan might drop out of the iwc and resume whaling unilaterally, or form or join a rival organization. Iceland dropped out, as did Canada much earlier. The North Atlantic Marine Mammal Commission, formed in 1992 by the Faroe Islands, Greenland, Iceland, and Norway, might act not as a supplemental, but as a rival, organization to the iwc and control the take of marine mammals in its region.”). 139 As discussed more than 20 years ago by David D. Caron in “The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures,” American Journal of Comparative Law 89 (1995): 154.

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A ­ ntarctic are less likely to survive a jurisdictional challenge.140 What will the future bring for whalers and whales? It is, of course, possible that the Japanese public, which largely has no interest in commercial whaling, will rally around the icj decision as an opportunity to end an expensive program with little benefit to the average Japanese citizen. But until then, Australia will remain frustrated at J­apan’s recalcitrance while Japan will chart a relatively lonely political course in its continued pursuit of Antarctic whaling activities under ­Article viii permits. The saga continues.141

140 Japan Declaration Recognizing the Jurisdiction of the Court as Compulsory (October 6, 2016), available at http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=JP (Providing that Japan’s recognition of compulsory jurisdiction does not apply to “any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.”). 141 The latest development in June 2017 was the passage of the "Act on the Implementation of Cetacean Scientific Research for the Implementation of Commercial Whaling” (Law No. 76 of 2017) indicating continued Japanese political will in support of both research whaling and an eventual return to sustainable commercial whaling.

chapter 19

Conservation or Claim? The Motivations for Recent Marine Protected Areas David D. Caron and Stephen Minas I

Introduction

The creation of marine protected areas (“mpas”), vague and varied as the c­ oncept may be, has for decades been an important mechanism for the conservation of offshore habitats and biodiversity. In recent years, huge swathes of ocean have been designated for protection as states announced successively larger mpas—a trend that may continue.1 For the most part, states proclaim mpas unilaterally over areas of the sea which they claim as falling within their territorial seas or exclusive economic

* David D. Caron is a Member of the Iran-United States Claims Tribunal in The Hague and Professor of International Law at King's College London. Stephen Minas is Assistant Professor at the School of Transnational Law, Peking University and Senior Research Fellow at the Transnational Law Institute, King’s College London. 1 In 2006, the Bush Administration created the Northwestern Hawaiian Islands (later renamed Papahānaumokuākea) Marine National Monument. James Owen, “Hawai’i Islands Named World’s Largest Marine Sanctuary,” National Geographic, June 15, 2006, available at http://news.nationalgeographic.com/news/2006/06/060615-bush-hawaiian.html. In August 2016, the Obama Administration proclaimed the expansion of the Papahānaumokuākea ­monument to 582,578 square miles, more than quadrupling its original size. Presidential Proclamation—Papahanaumokuakea Marine National Monument Expansion, 26 August 2016, https://www.whitehouse.gov/the-press-office/2016/08/26/presidential-proclamation -papahanaumokuakea-marine-national-monument. The Obama Administration’s 2014 expansion of the Pacific Remote Islands Marine National Monument set another record. Brian Clarke Howard, “u.s. Creates Largest Protected Area in the World, 3X Larger Than California,” National Geographic, September 26, 2014. http://news.nationalgeographic.com/ news/2014/09/140924-pacific-remote-islands-marine-monument-expansion-conservation/. In 2015, the United Kingdom announced the creation of the largest mpa in world around the Pitcairn Islands. Adam Vaughan, “Pitcairn Islands to Get World’s Largest Single Marine Reserve.” The Guardian, March 18, 2015. http://www.theguardian.com/environment/2015/ mar/18/pitcairn-islands-marine-reserve-budget-2015. A table of ecosystem-scale marine reserves is provided at Alison Rieser, “The Papahanaumokuakea Precedent: Ecosystem-Scale Marine Protected Areas in the eez.” Asian-Pacific Law & Policy Journal 13 (2012 2011): 213. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004343146_021

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zones.2 However, where maritime territory is disputed, the unilateral declaration of mpas can arouse suspicions that states have harnessed conservation as a continuation of geopolitics by other means. The combustible interplay between conservation and territorial and strategic competition is particularly apparent in the Indo-Pacific region, although it seems to arise more generally where there are competing territorial claims. Building on the research of others, this Chapter explicitly identifies the ­dynamics at play in recent large-scale mpa practice and thereby provides a fresh perspective on the complexity of the game involved. First, the Chapter discusses what happens when states are accused of creating mpas to serve a hidden agenda. The relationship of marine conservation with territorial ­competition emerges as a complex one, in which power differentials and ­geopolitical conditions are important determinants of state behavior. It is difficult, for example, to envisage the peaceful litigation of Mauritius’ dispute with the United Kingdom (uk) over the Chagos Archipelago mpa replicated for the contested waters of the South China Sea.3 Moreover, the hard choices inherent in this area of policy will be exacerbated by climate change and rising ­sea-levels. Second, the Chapter illuminates that question with recent examples. In Part 2, we present an overview of current practice and challenges regarding mpas. Part 3 discusses the confluence between marine conservation and maritime territorial disputes and the significance of the United Nations Convention on the Law of the Sea. Part 4 examines one particular case in which an improper motive was alleged for the creation of an mpa, in the context of a territorial dispute: the uk’s Chagos Archipelago mpa. Part 5 broadens the scope to consider the politicization of conservation in the Indo-Pacific, a region where territorial and geopolitical competition is increasingly fraught. Part 6 offers our conclusions. 2 The ongoing connection between mpas and sovereignty is unsurprising, not least given the difficulty of establishing mpas in the high seas, for which see below, Part ii. 3 Where, for example, China refused to accept or participate in an arbitration concerning maritime jurisdiction initiated by the Philippines. Arbitration between the Republic of the Philippines and the People’s Republic of China, Press Release, Permanent Court of Arbitration, Award, ¶ 14 (April 22, 2015) available at http://www.pca-cpa.org/showpage.asp?pag_id=1529 Following the publication of the substantive Award in July 2016, China’s deputy foreign minister, Liu Zhenmin, asserted that “[t]his tribunal is totally rigged by” Judge Shunji Yanai, who as President of the International Tribunal for the Law of the Sea in 2013 nominated four of the five panel members. Liu also complained of the panel members: “Do they understand the complex regional politics in Asia? Do they realize the history of the South China Sea? How on earth could they deliver a just award.” Jane Perlez, “Beijing Protests South China Sea Ruling With Modest Show of Strength,” International New York Times, July 13, 2016. http://www .nytimes.com/2016/07/14/world/asia/beijing-south-china-sea-ruling-hague.html.

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Marine Protected Areas

The iucn defines an mpa as “any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.”4 mpas have been used for a number of purposes, including to protect vulnerable ecosystems and to address shipping, overfishing and climate change challenges.5 As attempts to protect whole ­areas of a given ecosystem, mpas can be distinguished from speciesspecific conservation approaches.6 The generally greater complexity and variability of marine ecosystems, compared to land-based ecosystems, make mpa ­governance ­particularly challenging.7 Multiple terms are utilized to designate areas functionally serving as an mpa.8 Yoshifumi Tanaka has identified9 at least five types of mpas provided for by international instruments which concern the protection of marine environments: the “clearly defined area” within an eez, under the terms of unclos;10 “ice-covered areas” within an eez;11 “­special

4

Guidelines for Marine Protected Areas, iucn, xi (1998), available at . There are various other definitions of an mpa. Within the United States, Executive Order No. 13158 defines an mpa as “any area of the marine environment that has been reserved by Federal, State, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein.” Exec. Order No. 13158, 3 c.f.r. 273, 274, 65 Fed. Reg. 34909, 34909 (May 26, 2000), reprinted in 16 u.s.c. §1431, cited at Jason Patlis, Donald Bauer, Tom Lindley, Alan Murphy, and Priscilla Hampton, “The National Marine Sanctuary System: The Once and Future Promise of Comprehensive Ocean Governance,” Environmental Law Reporter 44 (2014): 10934. 5 Karen N. Scott, “Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas,” The International Journal of Marine and Coastal Law 27 (2012): 850. 6 Yoshifumi Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and ­Integrated Management in International Law of the Sea (Farnham: Ashgate, 2008), 162. 7 Peter J.S. Jones, Wanfei Qiu, and Elizabeth De Santo, “Governing Marine Protected Areas: Getting the Balance Right, unep Technical Report,” unep, 2011, 6–7. 8 Wen-chen Shih, “A Comparative Study on Marine Protected Area Legislation in Taiwan and China,” Vermont Journal of Environmental Law 14 (2012): 233. 9 Tanaka, A Dual Approach, 169. 10 United Nations Convention on the Law of the Sea, December 10, 1982, Art. 211(6)(a) [hereinafter unclos]. Prior to the Convention there was little capacity in international law to prevent fishery overexploitation or damage to the marine environment. David D. Caron, “International Sanctions, Ocean Management, and the Law of the Sea: A Study of Denial of Access to Fisheries,” Ecology Law Quarterly 16 (1989): 313. 11 unclos, Art. 234.

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areas” ­under marpol 73/78; “particularly sensitive sea areas;”12 and “specially protected areas.”13 These mpas are created against the backdrop of the legal regime governing ocean space. Under the Convention, a coastal state has sovereignty over its territorial sea,14 which extends up to twelve nautical miles (“nm”) into the sea adjacent to that state.15 In the contiguous zone, beyond the territorial sea, the state may enforce its customs, fiscal, immigration and sanitary laws.16 The c­ ontiguous zone may extend 24 nm beyond the baseline from which the ­territorial sea is calculated.17 In addition, a coastal state is entitled to an exclusive economic zone (“eez”)18 extending up to 200 nm from the baseline of its territorial sea.19 In its eez, a coastal state has “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources,” as well as jurisdiction over, inter alia, “the protection and preservation of the marine environment,” but must have “due regard” to the rights of other states in the eez.20 Other states have rights including navigation and overflight in the eez.21 A coastal state also has rights regarding waters over and the seabed a continental shelf extending not more than 350 nm from the baseline.22 Islands may generate the same territorial seas, eezs and continental shelves as coasts.23 However, “[r]ocks which cannot sustain human habitation or economic life” may not generate either an eez or continental shelf.24 The agreement at the Third un Conference on the Law of the Sea to provide for 200 nm eezs represented a compromise between developing states that had wanted large territorial seas

12

13 14 15 16 17 18 19 20 21 22 23 24

Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, International Maritime Organization, Resolution A.982(24), A 24/Res.982, December 1, 2005. Montreal Guidelines for the Protection of Marine Environment Against Pollution from LandBased Sources, Decision 13/18/II of the Governing Council of unep, May 24, 1985. unclos, Art. 2. Ibid., Art. 3. Ibid., Art. 33(1). Ibid., Art. 33(2). Ibid., Art. 55. Ibid., Art. 57. Ibid., Art. 56. Ibid., Art. 58(1). Ibid., Art. 76(6), 77. Ibid., Art. 121(2). Ibid. Art. 121(3).

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and developed, ­seafaring states that favored freedom of navigation.25 Beyond the eez, the oceans are governed by the high seas regime where no state may subject such waters to their exclusive jurisdiction.26 This legal regime leads to two types of mpas and two different means of creating them. One type may be called State based and reflects the action of a State to create an mpa over waters it possess the requisite jurisdictional rights. The other type is community based and reflects most often the action of a group of States to create an mpa over an area of the high seas. International agreements in some cases authorize or even encourage a State based mpa. The 2002 World Summit on Sustainable Development outcomes required states to “develop and facilitate the use of diverse approaches and tools, including … the establishment of marine protected areas.”27 The establishment of mpas is also provided for by a variety of other international and regional treaties.28 In other instances an international agreement is necessary because a proposed mpa is in the high seas and community-based (e.g. the ospar Convention discussed below). mpas in the High Seas Largely confined to territorial seas until the 1970s, mpas expanded outward to eezs in the 1980s.29 Beyond the eez lies the High Seas where all states enjoy freedom of use with due regard for the use of others and where, correspondingly, no State may subject such waters to exclusive jurisdiction.30 Indeed, Tanaka has argued that a necessary consequence of the fact that an mpa ­beyond the eez would “close a part of the marine spaces of the high seas” is that such an mpa cannot be unilaterally declared.31 In 2015, the un General Assembly decided to “develop an international legally binding instrument” under unclos on the “conservation and s­ ustainable 25

Budislav Vukas, “State Practice in the Aftermath of the un Convention on the Law of the Sea: The Exclusive Economic Zone and the Mediterranean Sea,” in Anastasia Strati, Maria Gavouneli, and Nikolaos Skourtos, eds., Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (Leiden: Martinus Nijhoff Publishers, 2006), 251–252. 26 unclos, Part vii. 27 Plan of Implementation of the World Summit on Sustainable Development, ¶ 32(c) (2002), available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD _PlanImpl.pdf. 28 Tanaka, A Dual Approach, 166–167. 29 Ibid., 168. 30 Scott, “Conservation on the High Seas,” 851. 31 Tanaka, A Dual Approach, 203.

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use of marine biological diversity of areas beyond national jurisdiction.”32 Resolution 69/292 established a preparatory committee and tasked it with reporting to the General Assembly on its progress by the end of 2017.33 A number of mpas in the high seas have been established, including some under the Convention for the Protection of the Marine Environment of the North-East Atlantic (“ospar Convention”)34 and others under the Commission for the Conservation of Antarctic Marine Living Resources (“ccamlr”)35 and the Convention for the Protection of the Mediterranean Sea Against Pollution (Barcelona Convention).36 However, it has been estimated that only 0.25% of the high seas are covered by protected areas.37 Moreover, significant questions regarding how such mpas can be implemented—and made effective as against non-parties—persist.38 Current Challenges in the Propagation and Governance of mpas The Convention on Biodiversity’s (“cbd”)39 Aichi Target 11 calls for at least 10 per cent of the world’s coastal and marine areas to be conserved through protected areas and other “area-based conservation measures” by 2020.40 cbd parties had previously aimed to reach the 10 percent target by 2012, but a 2014 32

Resolution adopted by the General Assembly on 19 June 2015, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/69/292, paragraph 1 (6 July 2015). 33 Ibid., par. 2. 34 ospar Network of Marine Protected Areas, ospar Commission, available at . 35 The ccamlr claims that the South Orkney Islands Southern Shelf mpa is the “world’s first high seas mpa.” Achievements and Challenges, Commission for the Conservation of Antarctic Marine Living Resources, April 2, 2014, available at ; Cassandra M. Brooks, “Competing Values on the Antarctic High Seas: ccamlr and the Challenge of Marine-Protected Areas,” The Polar Journal 3 (2013): 277–300. 36 Convention for the Protection of the Mediterranean Sea Against Pollution (Barcelona Convention), unts 1102 (1976). 37 Protected Planet Report 2014, United Nations Environment Programme, 56 (2014), available at . 38 Yoshifumi Tanaka, “Reflections on High Seas Marine Protected Areas: A Comparative Analysis of the Mediterranean and the North-East Atlantic Models,” Nordic Journal of International Law 81 (2012): 299. 39 1760 unts 79; 31 ilm 818 (1992). 40 The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, UNEP/ CBD/COP/10/27, Decision X/2, Annex, p 119.

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study found that only 3.41 percent of the oceans was covered by mpas.41 In addition to other goals and proposals,42 the Sustainable Development Goals (“sdgs”) call on states to “[c]onserve and sustainably use the oceans, seas and marine resources for sustainable development.”43 The creation of “bigger is better” and “no-take is best” mpas have however attracted criticism, as has the creation of “paper parks” by states with weak governance capabilities.44 III

Marine Conservation and Territorial Disputes

This Chapter fundamentally is concerned with the situation where an mpa is established unilaterally by a single State in areas beyond its jurisdictional competence (e.g. beyond the eez) ostensibly for conservation purposes but ­arguably in support of territorial goals. It is our proposition that this mix of communal and state interests in such extraterritorial acts is present in practice. First, examples of such practice arguably can be seen in territorial disputes where claimants continually seek to strengthen their legal position through displays of sovereignty. According to a longstanding principle in territorial disputes, only acts to display sovereignty up until the date at which the dispute “crystalizes” can be considered by a tribunal.45 However, Hitoshi Nasu and Donald Rothwell have argued that the “ambiguity” in the practice 41

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Hannah L. Thomas, “Evaluating Official Marine Protected Area Coverage for Aichi Target 11: Appraising the Data and Methods That Define Our Progress,” Aquatic Conservation: Marine and Freshwater Ecosystems 24 (Suppl. 2) (2014): 8. For example, the 6th iucn World Parks Congress called for mpas and other conservation measures to be extended to “at least 30% of each marine habitat,” and for the creation of a new “international instrument” under the un Convention on the Law of the Sea to protect biodiversity in the high seas. A strategy of innovative approaches and recommendations to enhance implementation of marine conservation in the next decade,” Submitted on December 22, 2014, following the deliberations of the iucn World Parks Congress 2014, iucn, 2 (2014), available at . un General Assembly Resolution 70/1, Transforming our world: the 2030 Agenda for Sustainable Development, Sustainable Development Goals and targets, Goal 14, A/RES/70/1 (21 October 2015). E.M. De Santo, P.J.S. Jones, and A.M.M. Miller, “Fortress Conservation at Sea: A Commentary on the Chagos Marine Protected Area,” Marine Policy 35 (2011): 258–260. L.F.E. Goldie, “The Critical Date,” International and Comparative Law Quarterly 12 (1963), 1264–1267; Sir Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951–1954: Points of Substantive Law Part ii,” British Yearbook of International Law 32 (1955–56), 20–44, cited at Hitoshi Nasu and Donald R. Rothwell. “Re-Evaluating the

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of ­dete­rmining a dispute’s critical date creates a “strong incentive” for territorial claimants to continually strengthen their legal position through displays of sovereignty.46 As will be seen below, such displays can come in the form of conservation measures. Second, examples of such practice are present a­ rguably in the State based creation of mpas around “rocks.” To explore this proposition, we turn to examples where states have for many employed conservation measures, such as the declaration of mpas, where simultaneously the motivations of ­territorial acquisition, the preservation of territory or other strategic advantage are arguably present.47 IV

The Chagos Litigation

The possibility of a motivation for the creation of an mpa by a State other than conservation can be found in the recent Permanent Court of Arbitration award in which the Tribunal found that the uk breached obligations under the Convention in declaring the Chagos Archipelago mpa. Understanding this proceeding requires a familiarity with the history of British decolonization in Mauritius. The Detachment of the Chagos Archipelago from Mauritius The Chagos archipelago lies in the center of the Indian Ocean and was, until 1965, part of the British colony of Mauritius. In 1966, the uk concluded negotiations with the United States for the establishment of a us military base on the island of Diego Garcia, within the Chagos archipelago.48 The Diego Garcia

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Role of International Law in Territorial and Maritime Disputes in East Asia,” Asian Journal of International Law 4, no. 1 (2014): 67. Nasu and Rothwell, “Re-Evaluating the Role of International Law,” 67–68. See, for example, Nitish Monebhurrun, “Creating Marine Protected Areas to Assert Territorial Jurisdiction against the Right of Abode of Native Populations: The Case of the Chagos Archipelago,” in Eva M. Vázquez Gómez and Claudia Cinelli, eds., Regional Strategies to Maritime Security: A Comparative Perspective (Valencia: Tirant Lo Blanch, 2015), 79–99; Pierre Leenhardt, et al., “The Rise of Large-Scale Marine Protected Areas: Conservation or Geopolitics,” Ocean and Coastal Management 85 (2013): 112. Exchange of Notes Constituting an Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America concerning the Availability for Defence Purposes of the British Indian Ocean Territory, London, 30 December 1966, 603 unts 273 (Annex MM-46), cited at The Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), Permanent Court

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base proved a significant strategic asset for the United States during the Cold War49 and subsequently.50 On September 23, 1965, the uk government, in seeking the agreement of a delegation of Mauritian ministers to the detachment of Chagos archipelago from the boundaries of the Mauritius colony, undertook, inter alia, to use its “good offices” with the us government to ensure that “fishing rights” in Chagos remained available “as far as practicable” to Mauritius. The uk also undertook that “if the need for the facilities on the islands disappeared the islands should be returned to Mauritius.”51 In 1965, in order to “provide the land, and security of tenure” for the us base,52 the uk detached Chagos from Mauritius through the establishment of the British Indian Ocean Territory (“biot”).53 In 1965, some 1,360 people resided on the islands of the Chagos Archipelago.54 By 1972, the residents had been deported from Diego Garcia and surrounding islands, predominantly to Mauritius.55 The removal of the Chagossians has been the subject of a long series of lawsuits, brought by former residents of the Chagos Archipelago, in the British and European courts.56 Mauritius became independent in 1968. The government of Mauritius claims the territory of Chagos as its own and in 1984 declared an eez around the Chagos archipelago.57 The uk claimed a 200 nm

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of ­Arbitration, Award, ¶ 89 (March 18, 2015) [hereinafter “Chagos”], available at . Barry Buzan, “Naval Power, the Law of the Sea, and the Indian Ocean as a Zone of Peace,” Marine Policy 5, no. 3 (1981): 198; Michael McGwire, Military Objectives in Soviet Foreign Policy, 1987, 210. Security Studies 2, no. 2 (1992): 214–215; Andrew S. Erickson, Walter C. Ladwig iii, and Justin D. Mikolay. “Diego Garcia and the United States’ Emerging Indian Ocean Strategy.” Asian Security 6, no. 3 (2010): 214–237. Record of a Meeting held in Lancaster House at 2.30 p.m. on Thursday 23rd September [1965], Mauritius Defence Matters, co 1036/1253 at paras. 22–23 (Annex MM-19), cited at Chagos, Award, ¶ 77. Peter H. Sand, “R (on the Application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] ukhl 61, 4 All e.r. 1055 (2008),” American Journal of International Law 103 (2009): 322. Chagos, Award, ¶ 70. Chagos, Award, ¶ 81. Chagos, Award, ¶ 88. Sand, “R (Bancoult),” 317. These cases are summarized at Chagos, Award, ¶ 92–99. In 2006, a claim under the u.s. Alien Tort Claims Act in the Court of Appeals for the District of Columbia Circuit also failed on the basis of non-justiciability. Sand, “R (Bancoult),” 318. Sand, “R (Bancoult),” 322. The removal of the Chagossians was characterized by senior Foreign Office official Dennis Greenhill in these terms: “Unfortunately along with the

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“fisheries conservation and management zone” around the biot in 1991 and an “environment (protection and preservation) zone” in 2004.58 The exclusion of Diego Garcia from the environmental management of the biot has prompted claims that the us base dwells in a “legal black hole.”59 The Declaration of the Chagos Archipelago Marine Protected Area On April 1, 2010, the United Kingdom’s then foreign secretary David Miliband, announced the creation of a “no-take” mpa covering some 210,000 square miles, banning commercial fishing within the biot.60 In December 2010, the website WikiLeaks published a State Department cable (“the WikiLeaks cable”) which recorded a May 2009 discussion with uk officials concerning the proposed Chagos mpa.61 The cable records Colin Roberts, Director, Overseas Territories at the uk Foreign & Commonwealth Office, telling a us official that “according to [Her Majesty’s Government’s] current thinking on a reserve, there would be ‘no human footprints’ or ‘Man Fridays’ on the biot’s uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the archipelago’s former residents.” Roberts asserted that “the biot’s former inhabitants would find it difficult, if not impossible, to pursue their claim for resettlement on the islands if the entire Chagos Archipelago were a marine reserve.” Roberts added that “creating a park would help restrict access for non-scientific purposes.” Roberts also “stressed that hmg’s ‘timeline’ for establishing the park was before the next general elections.” Following the account of discussions with uk officials, the author of the cable commented: “Establishing a marine reserve might, indeed, as the fco’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islands’ former

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Birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished onto Mauritius etc.” “British Indian Ocean Territory,” Foreign Office diplomatic cable, August 24, 1966, available at . Sand, “R (Bancoult),” 323. Peter H. Sand, “Diego Garcia: British-American Legal Black Hole in the Indian Ocean?” Journal of Environmental Law 21, no. 1 (2009): 117. Paul Rincon, “uk Sets up Chagos Islands Marine Reserve.” bbc, April 1, 2010. http://news .bbc.co.uk/1/hi/sci/tech/8599125.stm. The announcement was made in the shadow of the May 6, 2010 uk general election, at which the ruling Labour Party lost office. Viewing Cable 09LONDON1156, hmg Floats Proposal for Marine Reserve Covering, WikiLeaks, available at .

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inhabitants or their descendants from resettling in the biot.”62 In response to the publication of the WikiLeaks cable, the government of Mauritius accused the uk of a “policy of deceit” in setting up the mpa to prevent the return of the Chagossians.63 The Permanent Court of Arbitration Proceedings In December 2010 Mauritius initiated arbitration proceedings against the uk under the Convention.64 In March 2012 the Permanent Court of Arbitration was appointed as the Registry for the arbitration.65 Three years later, in March 2015 the Tribunal issued its award. Mauritius made four submissions.66 Mauritius’ fourth submission is relevant to the question of mpas being created for improper motives: 62

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Following the publication of the WikiLeaks cable, former Chagos resident Olivier Bancoult challenged the decision to establish the mpa in the High Court. Among other grounds, Bancoult claimed that the decision was unlawful because it was taken for an improper motive: “an intention to create an effective long-term way to prevent Chagossians and their descendants from resettling in the biot.” Bancoult, R (on the application of ) v Secretary of State for Foreign & Commonwealth Affairs [2013] ewhc 1502 (Admin) (11 June 2013) ¶ 21 (per Richards LJ and Mitting J) [hereinafter Bancoult 2013]. The High Court ruled that the WikiLeaks cable was inadmissible, owing to a “settled principle of public international and municipal law” that courts should “exclude illicitly obtained diplomatic documents and correspondence from judicial proceedings.” Bancoult 2013, ¶ 51 (per Richards LJ and Mitting J). The High Court dismissed Bancoult’s claim on all grounds. On appeal, the Court of Appeal found that the WikiLeaks cable “should have been admitted in evidence,” but concluded that “the admission of the cable in evidence would have made no difference.” The appeal was dismissed. Bancoult, R (on the application of ) v Secretary of State for Foreign & Commonwealth Affairs [2014] ewca Civ 708 (23 May 2014) ¶ 74, 89 (per Lord Dyson MR and Gloster and Vos LJJ). Richard Norton-Taylor and Rob Evans. “WikiLeaks Cables: Mauritius Sues uk for Control of Chagos Islands.” The Guardian, December 21, 2010. http://www.theguardian.com/ world/2010/dec/21/mauritius-uk-chagos-islands. Chagos, Award, ¶ 14. Ibid., ¶ 18. The first submission was that the uk is not entitled to declare the mpa because it is not the “coastal State” of the Chagos Archipelago. The second submission was that the uk is not entitled to unilaterally declare the mpa because Mauritius has rights as a “coastal State.” The third submission was that the uk may not take steps that “may prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius” regarding any submission made by Mauritius regarding Chagos. The Tribunal found that it lacked jurisdiction to consider the first two submissions and was not required to rule on either jurisdiction or merits concerning the third. Ibid., ¶ 158, 221, 230, 350.

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The United Kingdom’s purported “mpa” is incompatible with the substantive and procedural obligations of the United Kingdom under the Convention, including inter alia Articles 2, 55, 56, 63, 64, 194 and 300, as well as Article 7 of the Agreement for the Implementation of the ­Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995.67 Article 300 of the Convention provides: “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Mauritius submitted that the mpa “was not actually declared in pursuit of the environmental objectives that were used to justify it and that its declaration constitutes an abuse of rights” under Article 300.68 In alleging abuse of rights, Mauritius claimed that the mpa was “established for political purposes unrelated to environmental protection.”69 Mauritius relied on the WikiLeaks cable that recorded Roberts, the Foreign Office official, explaining that an mpa would prevent the return of the Chagossians, and on Roberts’ testimony in the English High Court case that “we … were dealing with a series of allegations relating to rendition and we were looking to see what we could do to try and improve the reputation of the government in relation to the [biot] specifically but also other territories.”70 Mauritius also claimed that the mpa’s design and implementation were not reasonable in relation to its stated objectives.71 In response, the uk noted that the High Court had accepted ­Roberts’ denial that he had said the words attributed to him in the WikiLeaks cable.72 The uk also submitted that there was “ample evidence … to demonstrate the real purpose for creating the mpa and for concluding that it was reasonable to proceed as proposed.”73 The Tribunal unanimously found that in creating the mpa without due regard to Mauritius’ fishing rights and right to the return of the Chagos Archipelago when no longer needed for defense purposes, the uk breached its 67 68 69 70 71 72 73

Ibid., ¶ 158. Ibid., ¶ 457. Chagos, Final Transcript, 378: 15–16. Cited at Ibid., 380-14-18. Ibid., 381:11–390:20. Ibid., 1165:13–19. Ibid., 903:1–2.

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obligations under Articles 2(3), 56(2), and 194(4) of the Convention.74 The Tribunal further concluded that, having already found the mpa’s declaration to be contrary to Articles 2(3), 56(2) and 194(4) of the Convention, there was no need to rule on Article 300.75 The Award affirmed that mpas have to be created correctly and that the uk’s conduct had fallen short of Convention obligations. Relying on other grounds to find against the creation of the mpa, the majority of the Tribunal declined to rule on the question of motive. The Tribunal did note that Mauritius’ Article 300 claims were “based primarily” on the WikiLeaks cable and that the Tribunal “sees no basis to question the conclusion reached [in the English litigation] following the examination of the relevant individuals, that the content of that meeting was not as recorded in the leaked cable. Nor does the Tribunal consider it appropriate to place weight on a record of such provenance.”76 However, Judges Kateka and Wolfrum dissented from the majority’s position on, among other things, the Article 300 claims. In their dissenting opinion, Judges Kateka and Wolfrum found that the uk “did violate the standard of good faith,” contrary to Article 300.77 This conclusion was based on the fact that the uk allowed Mauritius to learn of the proposed mpa from a newspaper, proceeded with the public consultation despite Mauritius’ objections, and thereafter “hastily went ahead and declared the mpa,” contrary to advice from senior uk officials. Additionally, they stated that they “do not completely share” the majority’s view that uk documents do not suggest any “ulterior motive” behind the mpa.78 Finally, Judges Kateka and Wolfrum noted “disturbing similarities” between the excision of Chagos from Mauritius, in which “British and American defence interests were put above Mauritius’ rights,” and the declaration of the mpa, through which the uk demonstrated “a similar disregard of Mauritius’ rights, such as the total ban on fishing.”79 In response to the award, the uk Foreign Office stated: “We are pleased that the tribunal found there was no improper motive in the creation of the mpa.”80 The United States’ current fifty-year lease of Diego Garcia is to expire at the end 74 75 76 77 78 79 80

Chagos, Award, ¶ 499–541. Ibid., ¶ 543. Ibid., ¶ 542. Chagos, Dissenting and Concurring Opinion, ¶ 91. Ibid., ¶ 90. Ibid., ¶ 91. Owen Bowcott and Sam Jones. “un Ruling Raises Hope of Return for Exiled Chagos Islanders.” The Guardian, March 19, 2015. http://www.theguardian.com/world/2015/mar/19/ un-ruling-raises-hope-of-return-for-exiled-chagos-islanders.

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of 2016.81 The pca’s finding that the lack of consultation regarding the mpa is incompatible with the Convention has prompted concerns that an extension by the uk of the us military’s tenure in Diego Garcia, without consulting Mauritius, could be similarly vulnerable to challenge.82 The Chagos dispute is one instance in which ulterior motives for the creation of an mpa were alleged. In the context of the significant power imbalances between the uk, on the one side, and both the Chagossians and Mauritius on the other, the dispute has been litigated peacefully. However, the imperatives of conservation and territorial assertion meet in far more volatile circumstances, in which peaceful dispute resolution may not be possible. V

Conservation and Territorial Disputes in the Indo-Pacific Region

At a time of significant maritime territorial disputation, the “new wave of unilaterally established ‘green’ protection areas outside national territorial waters” merits attention.83 Peter H. Sand has characterized the “territorialization” of marine areas “in the name of environmental conservation (from creeping ‘green jurisdiction’ to downright appropriation)” as the latest chapter in a “scramble for ‘enclosure’ of the ocean commons.”84 Examples suggested in the literature include France’s 2003 declaration of a Mediterranean “Ecological Protection Zone” extending 60 nm beyond territorial waters, followed by similar initiatives by Croatia, Slovenia and Italy, amid mutual acrimony;85 the United States’ 2006 creation of a “Northwest Hawaiian Islands Marine National

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Jamie Doward, “Chagos Islanders ‘betrayed’ by uk Failure to Decide on Their Return.” The Guardian, April 4, 2015. http://www.theguardian.com/world/2015/apr/04/ chagos-island-exiles-decision-betrayal-uk. “For if Britain acted illegally by creating a relatively benign marine protection zone in Chagos, would it not also be illegal to act unilaterally to take much more portentous decisions regarding the future of the u.s. military in the archipelago?” Peter Harris, “u.s. Naval Base Is Under Threat... And It’s Britain’s Fault,” The National Interest, March 24, 2015. http://na tionalinterest.org/blog/the-buzz/us-naval-base-under-threatand-its-britains-fault-12473. Peter H. Sand, “Public Trusteeship for the Oceans,” in Tafsir Malick Ndiaye and Rudiger Wolfrum, eds., Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden: Martinus Nijhoff Publishers, 2007), 533. Ibid., 529–530. This during a period when European states abstained from declaring eezs in the Mediterranean—a posture attributed to both concerns over freedom of navigation and desires to avoid limiting the freedom of a given state’s fishing fleet. Vukas, “State Practice,” 254–255.

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Monument” extending 50 nm into the claimed us eez;86 and the Chagos Archipelago mpa.87 The United States’ Pacific Remote Islands Marine National Monument, proclaimed by the George W. Bush administration in 2009 (the “Monument Proclamation”),88 is an example of an mpa that claims maritime zones that are arguably larger than that available under the Convention, even if such a claim us perhaps in keeping with us practice. As originally established, the Monument Proclamation included the waters within 50 nm of certain features and covered a total area of approximately 86,888 square miles.89 Earlier, a broader 1977 notice in the Federal Register indicated that the claimed 200 nm fishery zones around all us insular possessions, included uninhabited features.90 In the late 1980s, Jon Van Dyke and colleagues summarized the us position as “any insular features that can generate a territorial sea can also generate an eez. Under this view, there are no ‘rocks.’”91 The Monument Proclamation, inter alia, provides that the Monument includes the waters within 50 nm of the mean low water lines of both Baker Island and Kingman Reef.92 However, Baker Island has “no natural fresh water resources and no economic activity.” Given that Article 121(3) of the Convention provides that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf,” the mentioned characteristics of Baker Island suggest that it is a rock.93 Kingman Reef is likewise uninhabited. Indeed, 86

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In their study of the Northwestern Hawaiian Islands, Van Dyke and colleagues found that many of the features were uninhabitable rocks and concluded that “[b]ased on present international law, … preservation concerns alone do not appear to justify a claim by the United States to the exclusive right to exploit the resources out to 200 nautical miles from these uninhabited spots of land areas.” Jon M. Van Dyke, Joseph R. Morgan, and Jonathan Gurish, “The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an eez?” San Diego Law Review 25 (1988): 483. Sand, “Public Trusteeship,” 530–533. Proclamation 8336 of January 6, 2009, Establishment of the Pacific Remote Islands Marine National Monument By the President of the United States of America, Federal Register Vol. 74, No. 7, Monday, January 12, 2009, p 1565. Ibid., 1567. Van Dyke, Morgan and Gurish, “The Exclusive Economic Zone of the Northwestern ­Hawaiian Islands,” 428. Ibid., 432. Proclamation 8336—Establishment of the Pacific Remote Islands Marine National Monument, gpo, January 6, 2009, 16, available at . Yann-huei Song, “The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean,” Chinese Journal of I­ nternational Law 9 (2010): 690.

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Kingman Reef may actually be a low-tide elevation, defined in the Convention as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.”94 A recent us Fish & Wildlife Service survey found that the “two small rubble islands that comprise the only land masses at Kingman Reef” are “frequently awash by waves.”95 If Kingman Reef is, in fact, a low-tide elevation, it would be ineligible to generate even the 12 nm territorial sea that a rock may generate.96 The Pacific Remote Islands Monument and the concurrently proclaimed Marianas Trench and Rose Atoll monuments follow the United States’ “eez claim around its uninhabited rocks, islands, and coral atolls in the Pacific, even though some may not meet the criteria for generating an eez.”97 Yann-huei Song, who also observes that the us has not challenged Japan’s Okinotorishima eez (based on two “rocks … no larger than king-size beds”), has concluded that “the United States is taking a position that all islands, including rocks, that cannot sustain human habitation or economic life or their own, can claim a 200-nautical-mile eez”98—which, if a correct conclusion, would be contrary to Article 121(3) of the Convention.99 In 2004, the un Secretary-General warned that the proclaiming of “de facto exclusive economic zone[s] under various other denominations” was a “disturbing element of State practice”:

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unclos, Art. 13(1). Frequently Asked Questions: Palmyra Atoll and Kingman Reef Restoration/Shipwreck Removal, u.s. Fish and Wildlife Service, available at . unclos, Art. 13(2). Alison Rieser and Jon M. Van Dyke, “New Marine National Monuments Settle Issues,” Natural Resources & Environment 24, no. 2 (2009): 50. Yann-huei Song, “Sovereignty and Maritime Disputes in the South China Sea: Potential Conflicts between China and the United States,” China Oceans Law Review, no. 2 (2012): 142–143. According to a recent u.s. policy statement, “the United States operates consistent with— eventhough the u.s. Senate has yet to provide its advice and consent—the United Nations Convention on the Law of the Sea…, which reflects customary international law with respect to traditional uses of the ocean.” The Asia-Pacific Maritime Security Strategy: Achieving u.s. National Security Objectives in a Changing Environment, u.s. Department of Defense, 2015, 2. http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-P _Maritime_SecuritY_Strategy-08142015-1300-FINALFORMAT.PDF.

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Although the legal regime of these zones may well be identical to the regime of an exclusive economic zone or at least not in contravention of it, the introduction of new denominations is bound to create c­ onfusion and uncertainty, especially as to the rights and obligations of other States … As the entities primarily responsible for the orderly implementation of the law of the sea regime, States parties should make sure that there is no further erosion of rights and obligations, that their actions in unclos implementation are sufficiently transparent and that all their bilateral problems are dealt with on the basis of unclos, through means provided by it.100 “A Tinderbox on Water” Ongoing developments in the Indo-Pacific illustrate how high the stakes of these “bilateral problems” can be. The “immense strategic and economic value” of the Pacific and the challenge of promoting a rules-based order in this context have long been apparent.101 In recent years, the contest for territory, resources and strategic advantage has intensified.102 Much of this competition is focused on the South China Sea (“scs”), described by Robert D. Kaplan as “an armed camp”103 and by Kevin Rudd as a “region [that] increasingly resembles a 21st-century maritime redux of the Balkans a century ago—a tinderbox on water.”104 Between 2009 and 2011 alone, for example, “at least” nineteen separate defense agreements were concluded in East Asia.105 In the scs, Vietnam, China, Taiwan, Malaysia, the Philippines and Brunei all lay claim to disputed sections, with most of the scs falling within the 100 Oceans and the Law of the Sea: Report of the Secretary-General, un General Assembly, A/59/62, March 4, 2004, ¶ 42, available online at http://daccess-dds-ny.un.org/doc/­ UNDOC/GEN/N04/261/40/PDF/N0426140.pdf?OpenElement. 101 Caron, “International Sanctions,” 353. 102 See, generally, Bill Hayton, The South China Sea: The Struggle for Power in Asia (New ­Haven: Yale University Press, 2014); Robert D. Kaplan, Asia’s Cauldron: The South China Sea and the End of a Stable Pacific (New York: Random House, 2014); Elizabeth C. Economy and Michael Levi. By All Means Necessary: How China’s Resource Quest Is Changing the World. Oxford: Oxford University Press, 2014; and Kishore Mahbubani, The Great Convergence: Asia, the West, and the Logic of One World (New York: Public Affairs, 2013), 130–131, 150–152. 103 Kaplan, Asia’s Cauldron, 12. 104 Kevin Rudd, “A Maritime Balkans of the 21st Century?” Foreign Policy, January 30, 2013. http://www.foreignpolicy.com/articles/2013/01/30/a_maritime_balkans_of_the_21st_cen tury_east_asia. 105 Kaplan, Asia’s Cauldron, 175.

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“­nine-dash line” claimed by China.106 In the East China Sea, China and Japan dispute ownership of the Senkaku (Diaoyu in Chinese) Islands. The scs disputes have sharpened following a series of claims made by littoral states in response to a 2009 deadline for submissions to the un Commission on the Limits of the Continental Shelf.107 These disputes of course have direct consequences for not only security, but also marine conservation. In disputed areas, littoral states are “constrained from fully exercising the environmental jurisdiction” under the Convention.108 An example may be found in the arbitration under unclos initiated by the Philippines against China which found in favor of the Claimant in virtually all respects. The Philippines claimed that China has barred Philippine vessels from areas of the Philippines’ eez and that Chinese vessels have, within the Philippines’ eez, “have harvested, inter alia, endangered species such as sea turtles, sharks and giant claims which are protected by both international and Philippine law.”109 Moreover, satellite imagery has confirmed that China is constructing artificial landmasses at and near disputed features, including at least one airstrip.110 As well as exacerbating tensions;111 this reclamation program has prompted fears of an “ecological catastrophe.”112 Other scs claimants are also engaged in land reclamation and garrisoning.113 106 For different perspectives on China’s claims, see Zhiguo Gao and Bing Bing Jia. “The NineDash Line in the South China Sea: History, Status, and Implications,” American Journal of International Law 107 (2013): 98–124; Florian Dupuy and Pierre-Marie Dupuy. “A Legal Analysis of China’s Historic Rights Claim in the South China Sea,” American Journal of International Law 107 (2013): 124–141. 107 Song, “Sovereignty and Maritime Disputes,” 117ff. 108 Aldo Chircop, “Regional Cooperation in Marine Environmental Protection in the South China Sea: A Reflection on New Directions for Marine Conservation,” Ocean Development and International Law 41 (2010): 338. 109 Notification and Statement of Claim, Republic of the Philippines, ¶ 21 (January 22, 2013). The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award (July 12, 2016). 110 In August 2015, the u.s. Department of Defense reported that China is “completing ­construction of an airstrip at Fiery Cross Reef … and may be building additional ones.” The Asia-Pacific Maritime Security Strategy: Achieving u.s. National Security Objectives in a Changing Environment, Department of Defense, 2015, 17. 111 Chairman’s Statement of the 26th asean Summit: “Our People, Our Community, Our V ­ ision,” asean, April 27, 2015, ¶ 59. 112 “The South China Sea: Sea of Troubles,” The Economist, May 2, 2015. http://www.economist .com/news/leaders/21650122-disputed-sea-growing-security-nightmareand-increasingly -ecological-one-sea-troubles. 113 Andrew S. Erickson and Austin Strange. “Pandora’s Sandbox: China’s Island-Building Strategy in the South China Sea,” Foreign Affairs, July 13, 2014. https://www.foreignaffairs .com/articles/china/2014-07-13/pandoras-sandbox.

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Conservation as a Pretext for Control An additional consequence of these disputes has been the employment of conservation measures, including mpas, as a means to demonstrate sovereignty or to legitimate territorial control.114 In the Indo-Pacific, examples suggest that conservation has previously been used as a pretext for territorial jockeying and has led to conflict. In 1987, China used a general unesco call to establish a “marine observatory station” on Fiery Cross (Yongshu in Chinese) Reef in the contested Spratly Islands.115 More recently, since 1999 China has unilaterally announced an annual ban on fishing in the contested zone north of the Spratly Islands between May and August, an action protested by competing territorial claimant Vietnam. ­Chinese authorities in recent years have seized Vietnamese fishing vessels operating in China’s claimed eez.116 However, the ban does not apply to Chinese vessels that are licensed to fish, and it has been reported that Chinese officials provide subsidies and encouragement for Chinese fishermen to fish near the Spratlys.117 In addition, James Kraska has identified an increased reliance by China on “resource- and environmental-based arguments” in its efforts to “dislodge” the u.s. Navy from operating in the Chinese eez.118

114 On the related issue of conservation zones as a pretext for control of resources, see Van Dyke, Morgan and Gurish, “The Exclusive Economic Zone of the Northwestern Hawaiian Islands,” 442–443. 115 1987, China establishes first Nansha reef station (1987, 奠 定 中 国 进 驻 南 沙 第 一 礁 ), China Ocean News, June 25, 2014, http://epaper.oceanol.com/shtml/zghyb/20140625/ 40905.shtml This act is reported to have triggered a chain of events culminating in a confrontation the following year between Chinese and Vietnamese forces, during which 64 ­Vietnamese personnel were killed. Following a call by unesco for nations to set up monitoring stations in order to survey the oceans in March 1987, both a Chinese scientific team and People’s Liberation Army Navy ships were dispatched to Fiery Cross Reef in the Spratlys, which are claimed by China, Vietnam and other littoral states. In January 1988, China began construction of an ‘observation post’ on Fiery Cross Reef that would include a two-story barracks and a helicopter landing pad. In late January, Vietnam made an abortive attempt to land personnel on Fiery Cross Reef. In February, China occupied nearby Cuarteron Reef. In March, Vietnam responded by sending ships to Johnson South, Collins and Lansdowne reefs and successfully secured the latter two features. At Johnson South Reef, a confrontation between Vietnamese and Chinese forces ensued and 64 Vietnamese troops were killed. Hayton, The South China Sea, 81–84. 116 Song, “Sovereignty and Maritime Disputes in the South China Sea,” 122. 117 Hayton, The South China Sea, 242. 118 James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics (Oxford: Oxford University Press, 2011), 9.

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President George W. Bush’s order establishing the Pacific Remote Islands National Marine Monument stated: “Nothing in this proclamation or any ­regulation implementing it shall limit or otherwise affect the Armed Forces’ discretion to use, maintain, improve, manage, or control any property under the administrative control of a military department or otherwise limit the availability of such property for military mission purposes, including, but not limited to, defensive areas and airspace reservations.”119 President Barack Obama’s 2014 order expanding the Monument to almost six times its original size included identical language.120 Conservation as a Confidence-Building Measure In 2010, Aldo Chircop found that marine conservation in the scs continued to be “insufficient in basic research, volume of activity, and effectiveness of results.”121 There have been several proposals for cooperation on conservation in areas where disputes are explicitly acknowledged, both as a provisional measure prior to the resolution of territorial disputes and as a confidence-building measure,122 sometimes based on the experience in other regions. For example, Zou Keyuan has nominated the joint Argentine-UK fishery conservation zone 119 Office of the Press Secretary, President George W. Bush, “Establishment of the Pacific ­Remote Islands Marine National Monument,” 6 January 2009, http://georgewbush-whitehouse .archives.gov/news/releases/2009/01/20090106-6.html (accessed 1 August 2016), cited at Peter Harris, “Environmental Protection as International Security: Conserving the Pentagon’s Island Bases in the Asia-Pacific,” International Journal 69, no. 3 (2014): 388. 120 Office of the Press Secretary, President Barack Obama, “Presidential Proclamation—Pacific Remote Islands Marine National Monument Expansion,” September 25, 2014, available at . Peter Harris has argued that there is an “increasingly common practice of using environmental protection initiatives to secure the Pentagon’s hold on … prized assets” in the Asia-Pacific. Harris contends that “military environmentalism” has been employed to counter both declining domestic support for overseas bases and local demands for the return of territory used by the us military. Examples include: the creation of the Guam National Wildlife Refuge in 1993, with the land remaining under the authority of the Department of Defense; the creation in the 2000s of national marine monuments in the Pacific, covering Guam and other, “mostly inactive” bases; and the Chagos mpa. According to Harris, these conservation zones “give political cover to the island fortresses that they envelop by overlaying a public relationsfriendly narrative.” Harris, “Environmental Protection as International Security,” 377–378, 386–387, 392–393. 121 Chircop, “Regional Cooperation,” 337. 122 On the concept of environmental cooperation as a confidence-building measure, see James Kraska, “Sustainable Development Is Security: The Role of Transboundary River

Conservation or Claim?

549

around the Falklands/Malvinas Islands as a potential model.123 More broadly, in 2007 unep identified 227 transboundary protected areas, including both terrestrial and marine areas.124 In 2002, China and the members of asean signed the “Declaration on the Conduct of Parties in the South China Sea.” The document states that, “[p]ending a comprehensive and durable settlement of the [territorial] disputes, the Parties concerned may explore or undertake cooperative activities. These may include … marine environmental protection.”125 However, the Declaration has never been operationalized and has been dismissed as “toothless,”126 while a binding code of conduct remains a distant prospect.127 In 2011, the Philippines proposed the creation of a “Zone of Peace, Freedom, Friendship and Cooperation” (“zopff/C”). The zopff/C envisaged disputed areas of the scs becoming “Joint Cooperation Areas,” where collaborative activities including the designation of mpas would be pursued.128 Other proposals have been for the creation of a bilateral, Sino-Vietnamese network of mpas in areas of the scs disputed by those states.129 Additionally, a number

123 124

125

126 127

128 129

Agreements as a Confidence Building Measure (cbm) in South Asia.” Yale Journal of International Law 28 (2003): 465–503. Keyuan Zou, Law of the Sea in East Asia: Issues and Prospects (London: Routledge, 2005), 62. “Transboundary Protected Areas Inventory 2007,” unep-wcmc, available at http://www .tbpa.net/page.php?ndx=21 (accessed 18 July 2016), cited at John W. McManus, KwangTsao Shao, and Szu-Yin Lin. “Toward Establishing a Spratly Islands International Marine Peace Park: Ecological Importance and Supportive Collaborative Activities with an Emphasis on the Role of Taiwan,” Ocean Development and International Law 41 (2010): 273. Declaration on the Conduct of Parties in the South China Sea, Article 6 (November 4, 2002), available at . Ian Storey, “Slipping Away? A South China Sea Code of Conduct Eludes Diplomatic Efforts,” Center for a New American Security, March 20, 2013. Richard Javad Heydarian and Truong-Minh Vu, “The Tragedy of Small ­Power Politics,” The National Interest, May 4, 2015. http://nationalinterest.org/feature/the-tragedy -small-power-politics-12796; Manirajan Ramasamy and Pooi Koon Chong. “Asean to Keep Non-Confrontational Approach on South China Sea,” Bloomberg, April 27, 2015. http:// www.bloomberg.com/news/articles/2015-04-27/look-to-global-law-for-south-china -sea-engagement-najib-says. Carlyle A. Thayer, “Chinese Assertiveness in the South China Sea and Southeast Asian Responses.” Journal of Current Southeast Asian Affairs 2 (2011): 84. Hai Dang Vu, “A Bilateral Network of Marine Protected Areas Between Vietnam and ­China: An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea?” Ocean Development and International Law 44 (2013): 145–169.

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of proposals have been made to establish a marine “peace park”130 centered on the disputed Spratly Islands.131 Notwithstanding the limited returns from these bilateral and regional proposals, the process initiated by Resolution 69/292 to develop an instrument for conservation in areas beyond national jurisdiction would do well to explore the potential for high seas mpas and other conservation measures to serve as confidence building measures between rival ­territorial claimants. VI

Conclusions: mpas, Territorial Disputes and a Changing Climate

In a world running up against planetary boundaries,132 mpas have become a prominent device for safeguarding marine ecosystems and biodiversity. The recent creation of ever larger unilateral mpas can be set against a backdrop of unmet global targets for marine protection and unanswered challenges— conceptual and practical—confronting the establishment of high seas mpas. Territorial disputes and geopolitical competition add a further layer of ­complexity to marine conservation. The uk’s Chagos Archipelago mpa was successfully challenged by rival territorial claimant Mauritius, although it must be recognized that a majority of Tribunal members did not find that ­Britain had an improper motive for creating it. In the Indo-Pacific, a practice of ­conservation in the service of geopolitics risks undermining legitimate mpas and the heightening regional suspicions. There may be examples elsewhere. Of course, not all such allegations may be well founded, but where tensions are already high, the perception may be damaging enough. Climate change will exacerbate these tensions. There is evidence that the effects of climate change, including sea level increases,133 will cause profound 130 iucn defines “parks for peace” as “[t]ransboundary protected areas that are formally dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and to the promotion of peace and cooperation.” Trevor Sandwith, Clare Shine, Lawrence Hamilton and David Sheppard, Transboundary Protected Areas for Peace and Co-operation (Gland, Switzerland and Cambridge, u.k.: iucn, 2001), 3. 131 McManus, Shao and Lin, “Toward Establishing a Spratly Islands International Marine Peace Park,” 270–280. 132 Will Steffen, Katherine Richardson, Johan Rockström, and Sarah E. Cornell. “Planetary Boundaries: Guiding Human Development on a Changing Planet,” Science 347, no. 6223 (2015): 1259855. 133 J.A. Church, et al., “2013: Sea Level Change,” in Climate Change 2013: The Physical Science Basis. Contribution of Working Group i to the Fifth Assessment Report of the ­Intergovernmental

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challenges for many countries, including the devastation—and even the disappearance—of low-lying island states, the displacement of many millions of people, the destruction of freshwater supplies and increased severity of natural disasters.134 A further impact of rising sea levels will be to change the baselines from which states’ territorial seas, and therefore eezs, are ­calculated.135 This consequence will cast further doubt over the control of maritime r­esources and territory, goading territorial claimants into actions to change—or preserve—facts on the ground.136 Under these conditions, policymakers and diplomats face questions broader than simply whether any particular mpa has been established for an ulterior purpose. The question of whether relying upon unilateral, “­enclose now, negotiate later”137 mpas is the most effective means of protecting the marine environment looms larger. As Bernard Oxman has observed, “that ­environmentalists in particular would embrace the territorial temptation is curious since their essential goal, especially with respect to the oceans, is to achieve global protection.”138 One conclusion that may be drawn from the practices considered in this paper is that unilateral mpas which are implemented following an open and transparent process, involving all stakeholders,139 are less likely to be seen as pretexts for territorial, strategic or economic advantage. In areas where ­opposing claims exist, an additional step would be to address the possible charges of hidden motive by announcing that the unilateral mpa has been ­established as an mpa without prejudice to the claims of other states.

134 135 136

137 138 139

Panel on Climate Change (T.F. Stocker, et al., eds.) (2013), available at . Andrew T. Guzman, Overheated: The Human Cost of Climate Change (Oxford: Oxford University Press, 2013), 54–96. David D. Caron, “When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level,” Ecology Law Quarterly 17 (1990): 621–653. To an extent, this is already happening. For example, it has been reported that Japan has spent “huge sums” to preserve the features of Okinotorishima atoll (located between Taiwan and Guam) from erosion, in order to maintain Japan’s claim to an eez. Hayton, The South China Sea, 262. Peter H. Sand, “‘Green’ Enclosure of Ocean Space—Deja Vu?” Marine Pollution Bulletin 54 (2007): 375. Bernard H. Oxman, “The Territorial Temptation: A Siren Song at Sea,” American Journal of International Law 100 (2006): 844. Such involvement of stakeholders contrasts, for example, with the arbitration finding, discussed above, that the uk established the Chagos mpa without adequate consultation with Mauritius concerning its rights in the area.

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The primary way forward, however, would be to encourage states to create mpas through multilateral processes. The un General Assembly process, already set in motion, to create a conservation instrument for areas beyond national jurisdiction is a logical focus for this agenda, as an opportunity to regularize and propagate high seas mpas on the basis of multilateral agreement (i.e., community-based mpas) rather than claims of exclusive jurisdiction (i.e., State-based mpas). This agenda would perhaps build on existing efforts and proposals to create inter-linkages between national mpas.140 The object would be to reduce the incentives for states to play geopolitics at the expense of the objectives of marine resources conservation. Like water, established practice and principle exert their own “stopping power.”141 Nevertheless, regarding marine protection, if the prospect of a “noanalog ecological future” has as its corollary a “no-analog legal future,”142 then these broader questions will have to be confronted. In June 2017 the General Assembly adopted a resolution requesting the International Court of Justice to give an advisory opinion on the legality of the uk’s separation of Chagos from Mauritius and continued administration of Chagos.143 140 Tanaka, A Dual Approach, 191. 141 John J. Mearsheimer, The Tragedy of Great Power Politics, 2001, 252–261. 142 Anastasia Telesetsky, “Conclusion,” in The International Law of Disaster Relief, David D. Caron, Michael J. Kelly, and Anastasia Telesetsky, eds. (Cambridge: Cambridge University Press, 2014), 361. 143 un General Assembly, Resolution A/RES/71/292, 22 June 2017.

Index Page references in bold indicate a table; page references in italics indicate a figure. 200-mile. See also Exclusive Economic Zone access to highly migratory species 118 China’s claim for 115–116 establishment of 114 impact on management of ocean resources 123 Mexican claim for 117 ownership of islands or rocks in 118 rights and obligations of coastal states 117–118 sustainable management of fisheries in 118–119 tuna fishing regulation 126 abstention doctrine 24 actio popularis, doctrine of 348 Ade, A.O. 233 Age of Discovery, The 190–191 Aguilar, Andres 226, 238, 246, 256 Aldrich, George 97 Alexander, Lewis M. academic career 3, 15, 27n31, 169, 172, 174 on activities of Seabed Committee 80–81 on danger of partitioning the ocean 138 death of 179 legacy of 169 on management of ocean resources 124 personal recollections about 176–179 on problem of creeping jurisdiction 122 public service 20, 80, 84, 175, 176 scholarly publications 1, 21, 137–138, 174, 175 on seabed mining issues 112 Allen, Craig 2 Allen, Edward 24, 34 Allianaça steamer incident 194–195 Amarasinghe, Hamilton 228, 229–230, 231, 246, 256 Anand, Dean 108 Anand, R.P. 107, 335 Antarctic Treaty 116, 279 Aqorau, Transform 393

archipelagic sea lanes passage (ASLP), regime of 212 archipelagoes, concept of 131 Arctic coastal states (Arctic 5) engagement of non-Arctic states 410 initiatives to address commercial fishing 402, 408–409, 410 policy discussions 410–411 scientific meetings 409, 410–411 Arctic Council 406–408, 416. See also Protection of the Arctic Marine Environment (PAME) Working Group Arctic Council Working Group on the Conservation of Arctic Flora and Fauna (CAFF) 404 Arctic region. See also central Arctic Ocean (CAO) control of trade of wildlife species 404–405 developing of legal framework for 402–403 Emission Control Area (ECA) 414–415 environmental protection in 407–408 extended continental shelf claims in 401 international agreements on cooperation in 406–407 media attention to 401 navigational warning service 406 Arctic Regional Workshop to Facilitate Description of Ecologically or Biologically Significant Marine Areas (EBSAs) 404 areas beyond national jurisdiction (ABNJ) exploration of resources in 49 governance of 355, 382 international cooperation in management of 379–380 in Pacific Ocean 382 protection of marine environment in 4, 333–334, 354–355 scope of 433, 439 territories covered by 420n8 Argentina-Chile boundary treaty 212n121

554 Atlantic Charter 198 Attard, David 166 Australia argument on meaning of “scientific research” 521 concern over Japan’s whaling 506, 515–516 environmental impact of seabed mining 470–471, 472 Southern Bluefin Tuna dispute 512–514 whaling policies 507, 508, 510, 516– 517, 520 Baltic Marine Environment Protection Commission. See Helsinki Commission Balton, David 410 Ban, Ki-moon 379 Bancoult, Olivier 539n62 Barcena, Alicia 112 Bartlett Act (1966) 44, 44n66 Bascom, Willard 74 Baxter, Richard 27 Beazley, Peter 149 Beeby, Christopher D. 128 Bemis, Samuel Flagg 193 Benedict XV, Pope 197 Bernie, Patricia 291 Bilder, Richard B. 116 Bingham, Joseph Walter 25–26n28 bio-prospecting activities 434, 434n58, 435n59 Birnie, Patricia 36, 122 Black, Cyril L. 160 Bodansky, Daniel 6 Bodin, Svante 112 Boggs, S. Whittemore 175 Borgese, Elisabeth Mann 108 Breaux, John 261, 262, 264 Briscoe, John 3, 87n145, 90 Broder, Sherry 2, 88 Brooks, Robert A. 147 Brown, E.D. 142 Brownlie, Ian 143 Brüel, Erik 198 Brussels Anti-Slavery Act (1890) 344 Burke, William T. on 1958 Geneva agreements 38 background 158–159

Index career 26–27, 27n31, 158–161, 160–161n8 on commercial whaling 164 contribution to scholarship 50–51, 107, 161–162 legacy 166 publications 2–3, 17n10, 25, 26–27n30, 50–51, 160, 161, 164 reputation 20, 161, 165–168 on scientific organizations in ocean research 47 on sovereign rights of coastal states 119 on technology and international law 162–163 Bush, George W. 548 Buxbaum, Richard 90 Bynkershoek, Cornelius 199 Cairns Workshop (2003) 366–367, 367n54 California and the World Ocean (conference proceedings) 29, 35 California Current, studies of 14, 14n3 Cameron, James 68 carbon dioxide emissions. 484, 484–485, 484n34. See also greenhouse gas emission from ships Carleton, Chris 148 Cartagena Convention 461 Castaneda, Jorge 233, 238, 246, 262 central Arctic Ocean (CAO). See also Arctic region coastal states agreements 401–402, 416 commercial fishing regulations 409, 411–412, 417, 418 cooperation on marine oil pollution  407 emission control 414–415 future for marine cooperation in 415 governance of 402, 416 measures to protect marine environment  403–405, 413–415, 417–418 regional cooperation in 406–411 scientific cooperation in 412–413 search and rescue agreement 406–407 shipping regulations 405–406, 417 Chagos archipelago deportation of residents from  538, 539n62 detachment from Mauritius 536–538

Index marine protected area regime 6–7, 536, 538–539 sovereignty dispute over 530, 539–542 Chapman, Wilbert academic career 23, 24n24 as architect of fisheries conventions 56, 56–57n87 estimate of table food fish limit 58 on Maximum Sustainable Yield ­standard 62–63, 62–63n97 on Optimum Sustainable Yield concept 61–62 Charney, Jonathan I. 147, 175 chemosynthetic ecosystems 361 Chen, Rong-Jye 120 Chile-Argentina boundary treaty 212n121 China arbitration between Philippines and 530n3 ban on fishing north of Spratly Islands 547 maritime territorial claims 44, 119–121 observatory station on Fiery Cross 547, 547n115 Chircop, Aldo 548 Chitasombat, Nipant 108 Christy, Francis, Jr. 20, 30, 40, 41, 51, 59, 74–75 Churchill, Robin 122, 291 Churchill, Winston 198 Clarion-Clipperton Fracture Zone 94, 382 Clean Development Mechanism 482 climate change. See also Global warming causes and effects of 478–479 international convention on 263–264 maritime emissions and 480 Clingan, Thomas A., Jr. 98, 99, 100, 112 Clipperton Island case 118, 147 cobalt-rich ferromanganese crusts 452–453 Coleman, Peter T. 221, 252 Colson, David 106, 109, 137 Columbus, Christopher 191 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) 534 Commission on the Limits of the Continental Shelf (CLCS) 145 Commission to Study the Organization of Peace (Peace Commission) 40, 40n57, 74–75

555 common heritage of mankind (CHM), doctrine of 96, 98–99, 108, 338, 339, 436 continental shelf delimitation of 65, 141, 142, 143, 279, 280, 284 delineation of 71–72, 145 extension of 532 intermediate zone 142, 143, 144 legal cases related to 280–281 legal regime 73 oil and gas deposits 71, 72 redefinition of elements of 142 scholarly debates on 71–72, 145 Stratton Commission proposals on 142–143 US claims on 140 Continental Shelf Commission 47 Continental Shelf Convention (1958) 43, 43n63, 65, 140–141 Convention for the Conservation of Southern Bluefin Tuna (CCSBT) 513 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (SWAP Protocol) 389–390 Convention for the Protection of the Marine Environment and Coastal Areas of the South–East Pacific (Lima Convention) 388–391 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) 313, 411, 534 Convention for the Protection of the Mediterranean Sea Against Pollution (Barcelona Convention) 534 Convention for the Suppression of Unlawful Acts 344 Convention on Biological Diversity (CBD) approach to harmful environmental impacts 469 Conferences of the Parties 369, 396, 397, 469 discussions on legal effect of 333 on expansion of marine protected areas 534–535 on intellectual property rights 437–438n69 on marine genetic resources 364, 420, 424 no harm principle in 347

556 Convention on Biological Diversity (cont.) provisions on areas beyond national jurisdiction 427–428 relevance to Arctic region 404 Convention on Fishing and Conservation of the Living Resources of the High Seas (1958) 337, 341 Convention on International Trade in Endangered Species (CITES) 404–405 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC Convention) 392–393 Convention on the Conservation and Management of High Seas Fisheries Resources in the South Pacific Ocean (SPRFMO Convention) 394, 394n66 Convention on the High Seas 53, 65 Convention on the Minimum Condition of Access (MCA Convention) 269 Convention on the Regulation of Antarctic Mineral Resource Activities 461 Corfu Channel Case 202–203, 346, 346n66 Costa Rica v. Nicaragua 518 Cousteau, Jacques 68 Craven, John P. 54n83, 69, 86–87, 94n1, 107, 173 Criteria and Guidelines for Transfer of Marine Technology (CGTMT) 377 Crutchfield, James 30, 59, 60, 80, 159 David D. Caron 6, 90, 91, 167–168, 479 D’Amato, Anthony 107 Dean, Arthur 22, 46 deep seabed mining 200-mile Exclusive Economic Zone 99 actors of 466 China’s position on 105 of cobalt-rich ferromanganese crusts 452–453 contractor and state responsibility 466–468 cost of 101 cumulative effects of 476 debates on international regime of 78, 93, 100, 102 economic prospects of 101 environmental impact of 113, 449, 452–454, 470–471

Index extent of 475 freedom of the high seas and 102 governance of 101 Group 77 approach to 103 harmful effects of 449, 457–459, 477 investments in 105 legal issues related to 18, 97–98, 449 main resources of 450 overview 447–449 of polymetallic nodules 450–452, 462–465, 466, 473, 474 of polymetallic sulfides 453–454 precautionary approach to 474 private ventures 74n122, 75 rules and regulations 99, 103 scientific uncertainty of impact of 473–475 of seafloor minerals 73–74, 76–77 significance determination factors of 472, 472 Soviet position on 110 studies of 30n36, 95 technology and 101, 105, 110, 450 UNCLOS Convention and 75, 103–104, 108–109 unforeseen factors of 110 use of marine scientific research for 66 U.S. position on 103, 104, 109–110 deep sea bottom fisheries 373–374, 373n76 deep sea / deep ocean existing and potential use of 451 fisheries guidelines 395 on international agenda 365–373 scientific definition of 430n44 sensitivity and vulnerability of ecosystems 475–476 serious harm in 473–477 Deepwater Horizon disaster 72 Diamond, H. Jordan 91 Djalal, Hasjim 106, 107, 130 Doelle, Meinhard 490n57 Doremus, Holly 91 Draft Articles on State Responsibility for ­International Wrongful Acts (2001) 349 Dupuy, René Jean 233, 336, 340, 343 Dwyer, John 89–90

557

Index Earth Summit conference 113 East China Sea territorial disputes in 151–152 Echeverría Álvarez, Luis 116, 117 Eckert, Ross D. 102 ecological or biological significance areas (EBSAs) 396–397 Eichelberger, Clark 40, 41, 41n58, 51, 74–75 Elizabeth i, Queen of England 336 Ely, Northcutt 27 Emery, K.O. 71, 73 Energy Efficiency Operational Indicator (EEOI) 494 Engo, Paul 226, 228, 229, 238, 256 environmental impact assessments (EIAS) 376 Espoo Convention 469–470 European Commission’s scientific committee 315 European Economic Community (EEC) as “coastal state” 122 creation of 297 fisheries policy 44 as UNCLOS signatory 121 European Environment Agency (EEA) 306 European Union (EU) Aarhus Convention 323 approach to freedom of the seas 304 aquaculture products, consumption of 296 commercial fish stocks 308–309 equal access to the waters 299 evolution of fishery laws and policies 291, 297–300, 306, 308 fishing industry 294–295, 296, 310–311, 313–314 good ocean governance 303, 327 greenhouse gas emission regulations 490n58 marine ecosystem assessment 306–307, 309, 319 marine environment protection 304, 305–309, 314, 327–328 Marine Strategy Framework Directive (MSFD) 302–303, 305, 313, 315, 319 protection of biodiversity 307–308, 321–322 Shetland Islands regulations 298

trading partners 296 treaties of 300–301, 300n89 European Union’s fisheries management ecosystem-based approach to 318–320 ineffectiveness of 289 international cooperation on 309–314 overview of 326–328 partnership agreements 311–312 precautionary approach to 316–317 public information about 322–324, 323n325 regional organizations 300 regulations 290–291, 302, 303, 305 responsibilities of states 325–326 science-based approach to 314–316 sustainable and equitable use of resources 320–322 total-allowable catches 315 transparency in decision-making about 324–325 tuna regional agreements 311, 311n156 Evensen, Jens as influential mediator 252, 254 international reputation 245 speaker at LOSI conference 67 at UNCLOSS III negotiations 228, 229, 233, 236, 238, 239, 248–252 vice-chairman of the UN Seabed Committee 241–242 exclusive economic zone (EEZ). See also 200mile exclusive economic zone delimitation of 280 entitlement of coastal states to 532 establishment of 246, 339 extension of 139–140 foreign access to fisheries in 283 illegal fishing in 267, 275 navigational regime in 213 sovereign rights of coastal states in  188, 532 studies of 2 Falk, Richard A. 160 Falklands/Malvinas Islands fishery ­conservation zone 548–549 Fauchille, Paul 340 Ferguson, Robert 222, 252 Finley, Mary Carmel 28–29n33

558 First United Nations Global Integrated ­Marine Assessment 354, 380 fisheries. See also illegal, unreported and unregulated (IUU) fishing; and European Union fisheries management 12-mile zone rule 44 ecological impact of deep sea 359– 360, 395 expansion of capacity of 57 international regulation of 341–342 limitations of 60 open-access to 59–60 in South Pacific 127–128 status of global 292–294 fisheries resources. See also highly migratory fish stocks concern of preservation of 290 estimate of limit of 58 evolution of management of 287–288 over-exploitation of 293 studies of 288–289 Fishing Convention (1958) 55–56, 57, 58, 61–62 Foell, Eric 113 Food and Agriculture Organization (FAO) of the United Nations 291, 292, 395, 470 Forum Fisheries Agency (FFA) 125 Francis i, King of France 336 François, J. P. A. 336 Frederick III, Holy Roman Emperor 190 freedom of the high seas evolution of doctrine of 335–337, 350–352, 436–437 exceptions to 352 legal regime vs. 334 limits of 337–340 under UNCLOS 340–341 freedom of the seas, principle of 108, 186, 192, 195–196, 197–198 free-market ideology 261–262 Freestone, David 48, 302, 303 Friedheim, Robert L. academic career 31, 32n40 research interests 31–32 on UNCLOS III negotiations 228, 235, 239, 257n125, 258, 259, 262 on U.S. influence on global politics 263 Galindo-Pohl, Reynaldo 233 Gamble, John King, Jr. 85 Gao, Zhiguo 160

Index Geneva Conference (1958) 171–172, 223 Geneva Conference (1960) 13, 46 Geneva conventions of 1958 17, 23, 31–32, 36, 37–38 Gentili, Alberico 192 “Geography and the Law of the Sea” (Alexander) 174 Gianni, Matthew 369n65 Gjerde, Kristen 4 Global Leadership in the Arctic Conference (GLACIER) 410 global warming. See also Climate change  283–284, 479–481 Gold, Edgar 238 Goldie, L.F.E. 27, 74 Gorbachev, Mikhail 111 Gordon, Scott 59 Graziano da Silva, José 292 greenhouse gas emission from ships vs. emission from other modes of transport 480 energy efficiency design index (EEDI) 494, 496, 497 energy efficiency management plan (SEEMP) 494 increase of 480n13 market-based mechanisms for 498–499 multiple regimes interactions 491–492 national shares 485–486 regulation mechanisms 481–492, 493–498, 500 studies of 479–480 targets to reduce 481, 498 three-track approach to 499–500 UN climate change regime on 481–487 Grotius, Hugo 96, 161, 170, 192, 335, 336 Group of 77 42, 46, 95, 95n3, 101 Group of Jurors 233 Guilfoyle, Douglas 343 Haas, Ernst B. 224, 263 Hague Conference (1930). See League of Nations Conference for the Codification of International Law Hanseatic League 190 Harlow, Bruce 51n79 harm and harmful effects to marine environment 459–462, 464–465, 469–472. See also Marine environment Harry, Ralph 233 Harry N. Scheiber 2, 166–167, 178–179

Index Hawai’i geographical position 94 impacts of UNCLOS on 133 islands 134n180 ocean governance problem 132–133 Hedberg, Hollis 72n119, 143, 144 Helsinki Commission (HELCOM) 313 Helsinki Convention 461 Henkin, Lewis 42n62 Herrington, William C. 23, 23n22, 24, 24n26, 33, 42, 56 highly migratory fish stocks 392–393 high seas. See also freedom of the high seas definition of 354n1 evolution of regime of 337 on international agenda 365–373 jurisdiction of the flag state 343–344 marine environment protection 345– 350, 348–349 pollution-prevention obligations 347 regulations of 352–353 restriction on broadcasting from 344–345 state responsibilities in 351–352 UNCLOS provisions on 339–340 unique scientific reference areas 361 High Seas Convention. See Convention on Fishing and Conservation of the Living Resources of the High Seas high seas freedoms 340–342, 343–345, 349–350 Hodgson, Robert 148, 175 Holt, Sidney 28–29n33 Hoyle, Brian 106, 107, 130 Humphrey, Hubert 16 hydrogen bomb recovery operation 54, 173 illegal, unreported and unregulated (IUU) fishing economic damage 293 flag States liability 272–273 flag States obligations to prevent 270– 272, 274–275 liability of international organizations 273 measures against 275 overview 266–267 Independent World Commission on the Oceans 364, 364n45

559 Indonesia as archipelagic state 131–132 right of transit challenge 204–205 Indonesian Straits 204–206 Indo-Pacific region conservation as confidence-building measure 548–550 conservation as pretext for territorial control 547–548 proposed marine protected areas in 549–550 territorial disputes in 542–550 Zone of Peace, Freedom, Friendship and Cooperation proposal 549 Institute of Marine Studies (IMS) 159, 160 Inter-American Tropical Tuna Commission (IATTC) 23, 28 Inter Caetera (Papal Bull) 191 International Chamber of Shipping 498 International Civil Aviation Organization (ICAO) 486, 498, 498n90 International Convention for the Prevention of Pollution of Ships (MARPOL) 488–489, 491, 493–495, 496–497, 500 International Convention for the Regulation of Whaling (ISRW) 502, 504, 505, 506, 509, 516, 519–520 International Court of Justice (ICJ). See also Whaling in the Antarctic case advisory opinion on threat of nuclear weapons 347n70 Anglo-Icelandic Fisheries Jurisdiction case 116, 116n99 continental shelf delimitation cases 280–281 Corfu Channel Case 202–203 Costa Rica v. Nicaragua 518, 518n99 dispute settlement issues 281 interpretation of meaning of “scientific research” 518–519 on role of maritime law 309 International Law Commission (ILC) 140, 170, 336–337, 459–462 International Maritime Boundaries (series) 175–176 International Maritime Organization (IMO) actions relating to climate change 492–498 audit scheme 493n68

560 International Maritime Organization (cont.) foundation of 487 institutional features of 500 maritime emission evaluation 479–480, 481, 487–488 protection of marine environment 413–415 regime-building initiatives 6 shipping emissions initiatives and regulations 488n50, 492, 492n65, 493–495, 500–501 International North Pacific Fisheries ­Convention (INPFC) 23, 29n33, 33 international seabed area, jurisdiction over 355 International Seabed Authority (ISA) creation of 47, 431n46 criticism of 103 decision-making process 100 development of mining code 448–449, 456–457, 462 jurisdiction over exploitation of deep seabed 403 Legal and Technical Commission, tasks of 456 organizational structure 100n29, 455–456 International Telecommunications Union (ITU) 344 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) 423 International Tribunal for the Law of the Sea (ITLOS) advisory jurisdiction of 267–268, 269, 283 opinion on illegal, unreported and unregulated fishing 267 opinion on liability of international organizations 273 opinion on obligations and liability of flag states 270–275 opinion on obligations of contractors 468 opinion on obligations of states 466–467 opinion on protection of marine environment 349–350 requests for advisory opinion from 281 Sub-Regional Fisheries Commission’s requests to 269, 270, 274–275

Index International Union for Conservation of Nature (IUCN) 302, 369, 377, 378 International Whaling Commission (IWC) Australia’s resolution on special permits 525 creation of 505 Japan’s threat to withdraw from 525, 527, 527n138 legitimacy crisis 527 moratorium on commercial whaling 164, 508–509 New Zealand’s resolution on special permits 523–524 Scientific Committee 524 “Islands: Normal and Special Circumstances” (Hodgson) 148 Isocrates 289 Jaafar, Abu Bakar 108 Jackson, Henry 65 Jackson, Roy 30, 57, 58n90 Jacobsson, Marie 83 Jakarta Mandate on Marine and Coastal Biodiversity 363, 391, 391n45 Japan defense of right to whale 509, 510–511 experimental fishing program 513 high seas drift netting 512 International Whaling Commission membership 525 revision of declaration of compulsory jurisdiction 527–528 Southern Bluefin tuna dispute  512–514 whaling industry 23n22, 504–505, 506–507, 521, 526 Japan’s New Scientific Whale Research Program in the Antarctic (NEWREP-A)  526, 526n131 Japan’s Whale Research Program under Special Permit in the Antarctic (JARpA II) 502, 511–512, 515–516, 518, 520, 521 Japan’s Whale Research Program under Special Permit in the Antarctic (JARPA I) 511–512 Jenisch, Uwe 102 Jessup, Philip 46, 171n6 Jesus, José Luis 90, 90n147

Index Johnston, Douglas 51n78, 79, 80, 81–82, 83 Joseph, Helen 113 Kamehameha III, King of the Hawaiian Islands 133 Kaplan, Robert D. 545 Kasahara, Hiroshi 31 Kask, John 79 Kateka, James 541 Kimball, Lee 369n64 Kingman Reef 543–544 Knauss, John academic career 14, 20n17 involvement with LOSI projects 19–20, 19n15, 20n17, 81, 174, 177 on issue of creeping jurisdiction 119 on LOSI governance 85–86, 88, 89 member of Stratton Commission 79–80 promotion of Sea Grant Program 15– 16, 19 security concerns in ocean law research 17–18 Koenig, Doris 487 Koers, Albert 291 Koh, Tommy 106–107, 226, 231, 234–236, 238, 246, 256, 260 Kolodkin, Anatoly 108, 111 Korea Strait 122 Koslow, Tony 358 Kotobalavu, Jioji 125, 129 Kraska, James 3, 547 Krause, Dale 15, 20 Krem, Alexander 110 Krueger, Robert B. 34, 99 Kyoto Protocol 482, 484, 486–487, 486n44, 489 Lauterpacht, Hersch 67 Law, Science, and the Ocean (Burke) 160 law of the sea. See ocean law Law of the Sea Institute (LOSI) directors of 20, 89, 94n1 environmental debates 54 Executive Board members 87, 87n144, 123n135, 128n153, 160n6 foundation of 1–2, 11–12, 13, 19, 158n1, 169 funding of 22, 85, 87 governance of 84–85, 86–87, 90 marine boundaries studies 135–136

561 ocean law discourse and 20, 20n19, 22–36, 33, 80–82, 266 organizational structure 19, 83–84, 90 overseas meetings 88 partners of 91, 93 publications of 1, 29, 32, 90–91 scholars and policy officials’ relations with 113–114 since 1965, history of 84–92 at UC Berkeley 89–92 at University of Hawai’i 86, 93–95 at University of Miami School of Law 89 at University of Rhode Island 84–86, 89 Law of the Sea Institute’s conferences Arctic regional theme 88 Consensus and Confrontation Workshop (1984) 119 debates on continental shelf 140, 143–145 debates on environmental issues 55, 78–79, 112–113 debates on fishery policies 23–24, 27–28, 30–31, 32, 38, 291 debates on global security 32, 41, 45n67, 46–47 debates on marine scientific research 65–66 debates on maritime boundaries  136–137, 146–149, 155–157 discussion of mineral resource exploitation 111 discussion of ocean governance 26, 39, 40–43, 44 discussion of regional issues 151–153 East Asian area themes 88 feedback about 266 focus on ocean law 31–32, 37–38, 93–94 in Hawai’i (1977) 125 at Institute of International Law in Kiel 100–101 Kā‘ū Workshop 98–106 in Malmö (1991) 112 in Mexico City (1979) 116–117 in Miami (1986) 122 nuclear testing issue 52–53, 52–53n80 organization of 93–94 in Oslo (1983) 261 participants of 22–33, 82, 88n146 in San Francisco (1984) 108–111

562 Law of the Sea Institute’s (cont.) seabed mining theme 29–30, 40, 95–114 in Seoul (1993) 132 at UC Berkeley (2015) 447 in Wales (1985) 121–122 Workshop at the East-West Center  93, 106 Workshop in Honolulu (1986) 111–112 Workshop in Seoul (1984) 119–120 Workshop on “Alternatives in Deepsea Mining” 97 Law of the Sea: Offshore Boundaries and Zones, The (Alexander) 1, 174 Law of the Sea: The Common Heritage and Emerging Challenges (Scheiber) 89 League of Nations Conference for the Codification of International Law 171, 200–202, 336 Lee, Hee Eun 6 Lee, Seokwoo 6 Leger, George 106 London Dumping Convention (1972) 351 Long, Ronán 4, 64, 287 Lyndon B. Johnson 16, 41, 64 Magnuson, Warren 65 Mahan, Alfred Thayer 193, 194 Mahmoudi, Said 78 Malahoff, Alexander 110 Manansala, Mario 101, 120, 121 Mara, Ratu 125 Mare Liberum (Grotius) 335, 336 Margolis, Emanuel 52n80 marine biodiversity action for conservation of 378 international agreements on 362–363 legal gap in protection of 331–332 threats to 354–355 UN resolution on 356 marine biodiversity regime beyond national jurisdiction area based management 397–398 Cairns Workshop recommendations on 367 conservation and sustainable use initiatives 384–397 deep sea ecosystems at risk 359, 361 environmental impact assessments 398 on international agenda 365–366

Index international legally binding instrument for 373–374 lawyers’ perspectives on 361–365 Pacific approach to 399–400 protection mechanism 356–357, 357n12 risks to seabirds and marine species 360–361 scientists’ perspectives on 359–362 threats to deep sea fisheries 359–360 threats to seamounts 364–365 UNICPOLOS discussions on 369–370 UN recommendations on 366n51 marine environment obligation erga omnes 345–350 pollution control 454–455, 454n30, 490–491 protection from harmful effects 457, 458 serious harm to 459, 464–465, 469–472 states’ obligations to protect 347–348, 349–350 studies of 5–6 UNCLOS provisions on protection of 334–335, 346–347 Marine Environment Protection Committee (MEPC) 487, 493, 499 marine genetic resources (MGR). See also Nagoya Protocol characteristics of 421–422 debates on legal status of 378 international regime of 421 within national jurisdiction, regime on 423–427 open access approach to 422–423 policy discussion on 423n19 problem of access to and sharing of 429n39 in silico 438, 438n71 UNCLOS provisions related to 420 value of 419, 421–422 marine genetic resources beyond national jurisdiction access to and benefit sharing of 398, 435, 442, 442n85 applicable principles 440 current regimes on 364, 427–431 definition and scope of 433–435, 439–440 development of new international instrument on 442

Index discussion on legal regime 371–373, 372n75 governance principles 435n61 history of discussion on 431–433 intellectual property aspects of 437– 438, 441 legal status of 432, 433, 435–437, 440 Preparatory Committee meetings on 438–441, 442 as subject to common heritage of mankind 436n62, 437, 443 marine protected areas (MPAs). See also Chagos archipelago; Indo-Pacific region calls for extension of 534–535, 535n42 climate change and 550–551 creation of 529–530, 540, 542, 552 definition of 529, 531, 531n4 development of representative networks of 377 in high seas 332, 333, 533–534 international strategy for 367–369 legal regime of 533 outside national territories 542–543, 543n86 propagation and governance 534–535 state and community based 533 studies of 6–7 territorial disputes and 535–536, 550 as tools for protection of environment 551 types of 531–532 Marine Science Research and International Law (Burke) 160 marine scientific research (MSR) 64, 65, 66, 69–70 maritime boundaries claims on 136–140, 145–146 continental shelf issues 140–145 definition of straight lines 149n79 delimitation of 135, 145–150, 156 disputes over 154–155, 281–282 regional issues 151–153 scholarly studies of 135–136, 155–157 maritime emissions 480–481. See also greenhouse gas emission from ships maritime security 214–215 Marnane, Thomas 177–178 Marrakesh Accords 482

563 Martin, Elizabeth Pa 133, 133n179 Martin, Hans-Jochen 102 Mauritius arbitration proceedings against UK  539–542, 539n66 claims of Chagos archipelago 537 Maximum Sustainable Yield (MSY), concept of 23, 28–29n33, 30, 58–59, 59n92, 61 McDorman, Ted 165 McDougal, Myres S. on Burke 165 conference presentations 37, 38 on continental shelf limits 141 as counsel to Kingdom of Saudi Arabia 161n9 on evolution of the law of the sea 139 on jurisdictional claim of coastal states 43 justification of hydrogen bomb tests 52–53 position on territorial sea 39 publications of 25, 161–163, 162–163, 166 McKernan, Don 27, 42, 58 McLaughlin, Richard 165–166 Meltzer, Evelyn 165 Menard, Henry William 71, 71n115 Mengerink, Kathryn 5 Mensah, Thomas 87, 94n1, 129–130 Mero, John L. 29, 30, 73–74, 73n120, 75–76, 76n125, 172 Messina, Strait of 206, 212 Miles, Edward academic career 32–33, 159, 159n5 on Burke 165 Global Ocean Politics 32 publications of 257n125 ratings compiled by 253, 255, 256, 257 on T. T. B. Koh 231 on UNCLOS III negotiations 218, 229, 232, 234–235, 237, 243, 245–246, 251 Miles, Gerard 387 Miliband, David 538 Minamata Convention on Mercury 403 Minas, Stephen 6 Montreux Convention 208–209 Moore, John Bassett 194–195, 199 Moore, John Norton 109 Muhjiddin, Atje Misbach 131 Muir, Ramsay 196

564 Nagoya Protocol on Access to Genetic Resources access and benefit sharing system  429–430, 429n35 adoption of 420, 422–423, 425, 425n26 development of 428–429, 428n34 provisions on genetic resources  425–426, 425n27, 427n32, 441 Namaliu, Rabbie 106 Nanda, Ved 107 Nandan, Satya 106, 130, 232, 238, 246 Narokobi, Camillus S.N. 131 Nasu, Hitoshi 535 Natural Resources Lawyer 30 Nauru Group nations 132 nautical mile, definition of 201n72 Neblett, William R. 141 Nelson, Dolliver 95 new international economic order (NIEO) 250, 261 New International Law of Fisheries, The (Burke) 161, 289 Nixon, Richard 75, 173 Njenga, Frank 238 no harm principle 346–347 Nordquist, Myron 110, 176–177 North Atlantic Marine Mammal Commission (NAMMCO) 527 North–East Atlantic Fisheries Commission (NEAFC) 411 Norway as coastal state 241–242 during Cold War 240 exclusive economic zone 246–247 Fishery Protection Zone 246 great sovereign fund 78 ocean policy 239–242, 247–248 ocean resources 247 oil and gas industry 77–78, 77n127, 247 in UNCLOS III negotiations 239–240, 242–254 whaling industry 503, 509n54 Noumea Convention (Convention for the Protection of the Natural Resources and Environment of the South Pacific Region) 384–387 Nuclear Non-Proliferation Treaty (1958) 55 nuclear testing 52–53, 53n82 Nye, Joseph S. 219

Index Obama, Barack 264, 548 Obama doctrine 264, 264n145 obligation erga onmes, doctrine of 347 ocean (general) access to resources 48–49 deepest dive in 68 emergence of new frontier 67–68, 70 environmental threats to 52 principles of modern governance 327 zoning of 21 Ocean Development and International Law Journal 161 ocean law American impact on 193–198 Cold War and 51, 53 common heritage of mankind principle 96, 185–187 concern of stability of 112 contending approaches to 185–189 conventions on 171–172 debates over 13, 22–33, 33–36, 48–49 destabilization of 170 in early modern Europe 190–192 economic efficiency approach to 187–189 geopolitics and 45 global security issues and 45n67 Grotius on 38, 96 industrial nations and 46 institutional dimension of 47–48 international negotiations on 33–34, 33n44 legal realist approach to 25–26n28 less developed nations and 42, 46–47 major challenges of 36–37 military issues 17n10 in post-1945 era, development of 170–171 in Roman Empire 189–190 strategic foundation of 183–184, 189–198 studies of 2–7, 11, 184–185 supranational global regime 40, 41–42 technological development and 47, 138, 162–163, 337–338 theoretical analysis of 26n28 oceanography 13, 13n2, 16, 16n9 Ocean Sciences, Technology, and the Future International Law of the Sea (Burke)  50, 162 O’Connell, D.P. 163, 189

Index Oda, Shigeru 25n27, 31, 31n38, 39, 43, 138 oil and gas exploration 77–78 open seas, concept of 335–336 Optimum Sustainable Yield (OSY) 61–62 Oral, Nilufer 4 Østreng, Willy 3, 88 Our Nation and the Sea (Stratton Commission report) 142, 143, 174 Outer Space Treaty (1967) 41 Oxman, Bernard 3, 89, 90, 107, 117–118, 166, 362, 487, 551 Pacific Islands Regional Ocean Policy (PIROP) 387 Pacific nations benefits of extended jurisdiction for 129 characteristics of 124, 381–382 conflict over distant-water fishing 126–127 “Fourteen Mexican Principles” 128 tension with the U.S. 126, 128–129 transit passage through archipelagoes 130 Pacific Ocean Alliance 397, 399 Pacific Ocean Alliance Technical Working Group 397–399 Pacific Oceanscape 387, 397 Pacific region. See also South East Pacific region areas of ecological significance 396–397 environmental protection 387 exclusive economic zones 382 exploration of polymetallic nodules 451 international agreements on marine biodiversity in 381, 395–400 islands 381–382 Lima Convention 388–391 migratory fish stocks management 392–393 mining contracts in 451, 452 Noumea Convention 384–387 observations of the seabed topography in 71n115 Strategic Action Programme (SAP)  386–387 Pacific Remote Islands Marine National Monument 543–544 Paik, Jin-Hyun 3 Palmer, Richard 111

565 Palomares hydrogen bomb incident  54, 54n83 Panama Declaration 197–198 Papal Bull 191 Pardo, Arvid 96, 172, 186, 276, 338, 436 Paris Agreement 482–483, 484–485 Park, Choon-ho 88, 89, 108, 115, 120, 122 Park, Su Jin 5 Patrimonial Sea, concept of 116–117 Peace Commission. See Commission to Study the Organization of Peace Pearcy, G. Etzel 175 Pell, Claiborne 15, 15n5, 37, 38n54, 65 Pinto, M.C.W. (Christopher) 98, 238–239 Piper Alpha disaster 77n127 Pisarev, Vladimir 110 Polar Shipping Code 405–406 polymetallic nodules 450–452 polymetallic sulfides 453–454 Pontecorvo, Giulio 30, 59, 60, 61 Posner, Eric 187–189 power (concepts) forms of 219 international politics and 219–222 over others 219–220, 221 over outcome 220–222, 252, 254 smart 222 Power, Mary 387 Power of Knowledge, The (Haas) 224 Prescott, J.R.V. (Victor) 149 Protection of the Arctic Marine Environment (PAME) Working Group 408, 413–414, 413–415 Public Order of the Oceans, The (MacDougal and Burke) 25, 25n27, 161, 162–163, 166, 288 Ratiner, Leigh 262–263 Rayfuse, Rosemary 312 Reagan, Ronald 76, 103, 104, 126, 130, 163 regional fisheries management organizations (RFMOs) 48, 362, 363 Reisman, W. Michael 208 Restatement (Third) of the Foreign Relations Law of the United States 164 Revelle, Roger 14 Rhodian maritime code 335 Richardson, Elliot 97, 98, 217, 246, 260, 261, 262, 264–265

566 Riesenfeld, Stefan 25n28, 92, 122, 123 Rio Declaration (1992) 347, 474n137 Roberts, Colin 538 Rome, Treaty of 297 Roosevelt, Franklin D. 197–198 Roosevelt, Theodore 195 Ross, David A. 99 Rothschild, Brian 118 Rothwell, Donald 535 Rudd, Kevin 514, 545 Saito, Tatsuo 132 Saltonstall, Leverett 65 Sand, Peter H. 542 San Francisco, Treaty of 506 Saragossa, Treaty of 191 Sato, Moriyoshi 510 Schaefer, Milner B. career 27–28, 29, 35–36 debates on marine scientific research 65–66, 66n104 “equilibrium yield” fishery population model of 28n33 estimate of table food fish 58 reputation 35 view of fishery management 62n97 Scheiber, Jane L. 91 Schofield, Clive 2, 88 Scovazzi, Julio 245 Scripps Institution of Oceanography (SIO) 13–14, 28–29 Seabed Implementation Agreement (1994) 82 seabed mining. See deep seabed mining Sea Gem offshore rig disaster 77 Selden, John 170 Sheldon, Marie 91 Simcock, Alan 358 Smith, Robert W. 178 soft law 48 Sohn, Louis B. 111, 233 Song, Yann-huei 147, 544 Soons, Alfred A.H. 160 South Africa seabed mining 471, 472 whaling activity 55 South China Sea boundary problems 120 Chinese claim on 44

Index Declaration on the Conduct of Parties in 549 marine conservation in 548 regional issues in 151–152 territorial disputes over 44–45, 545–546 South-East Pacific Action Plan (CPPS)  388, 391 South East Pacific region biodiversity protection 389, 391 characteristics of 388 fisheries management 125, 127, 129, 394 Paipa Protocol 388–389, 390–391 protection of marine environment 388 Southern Ocean Whale Sanctuary 164 South Pacific Regional Environment Programme (SPREP) 384 South Pacific Regional Fisheries Management Organization (SPRFMO) 394 South Pacific Regional Fisheries Treaty 129 Soviet Union dissolution of 260 distant-water fishing 57 jurisdiction over territorial sea 206, 276 naval bases 208–209 position on straits regime 210 whaling fleet 507 Spilhaus, Athelstan 70–71, 70n114 Stavropoulos, Constantine 246 Stephen, E.C. 67 Stockholm Conference on the Human Environment 508 Stockholm Convention on Persistent Organic Pollutants (POPs) 403 Stockholm Declaration (1972) 346–347 Straddling Stocks Agreement (UN Agreement on Straddling and Highly Migratary Fish Stocks), (1995) 63–64, 64n100, 290–291, 310, 331, 342, 351, 362–363, 378, 392 straits. See transit passage through straits Stratton, Julius 80n130 Stratton Commission 79–80, 80n130, 141–143, 162n14, 174 Sub-Regional Fisheries Commission (SRFC) 267 Sunda Strait 204, 205 Swan, Judith 127, 128 Swygard, Kline 290 Sykes, Alan 187–189 Szekely, Alberto 128

Index Takeuchi, Taro 101 Tanaka, Yoshifumi 531, 533 Task Force on Arctic Marine Cooperation  415, 418 Task Force on High Seas Marine Protected Areas 368, 368n60 Teichmann, David L. 105 Telesetsky, Anastasia 6 territorial sea cannon shot rule 199 debates on breadth of 171–173, 198, 201n72, 276 expansion of 206 legal definition of 200–201 Soviet adoption of legal regime of 206 states’ control over 338 Territorial Sea Convention 171–172n7 three-mile rule and 44n65 Thiel, Hjalmar 113, 358 Thirty Years’ War 192 Tiatelolco, Treaty of 55 Tordesillas, Treaty of 191, 335 Toribiong, Johnson 160 Torrey Canyon disaster 54, 54n84 Trail Smelter dispute 346 transit passage through straits within archipelagic waters 212 coastal state sovereignty and 206–207 international regime of 183–185, 201–202, 210–212 as principle of natural law 198–199 of submerged submarines 208, 211 uncertainty over free 207 UNCLOS provisions on 210–213 Treves, Tullio 81, 82–83, 89, 90, 121 Tsuruoka, Koji 525 Turkish Straits 208, 211–212 Tutangata, Tamari’I 387 UNCLOS I (First United Nations Law of the Sea Conference) 23, 140–141, 170–171 UNCLOS III (Third United Nations Law of the Sea Conference) agenda 3 Coastal States Group 246 committees 226, 237, 239, 248, 256 common heritage of mankind principle 96

567 Common Interests Groups 230–232, 237 compromise groups 230, 232–234, 257–258 conflicts between groups and individuals 228, 229 continental shelf debates 280 contribution to international law-making 223–224 debate on 200 miles economic zone 243 decision-making process  225, 228–230, 237–239 deep-seabed mining debates 248–249, 252 Evensen Group 243–244, 245, 246 formal structure of 226–230 Group of 77 232, 256 Group of Five 256, 260 ideological disagreements 261–262 implications for the high seas 338–339 important actions of 225 influential groups, organizations and individuals at 253, 254, 255, 256, 257–259 informal structure of 230 Japanese delegation 259–260 marine technology framework 186–187, 186–187n13 maritime boundaries issue 138–139 negotiation process 216–219, 234–235, 234n49, 237–238, 264–265 Norwegian delegation at 239–240, 242–254 outcome of 11–12, 258–259 Package One negotiation 244, 246, 248, 250, 256, 260 Part XI issues 261–262 politics of law-making 217, 226 preparation of working papers 227 preparatory meetings for 175 publications about 218n5 representatives of micro states 256 Rules of Procedure 235–236 sessions 103, 173–174, 225 small-group negotiations 245 small states in decision-making process  222–223, 223, 254, 258–259 superpower coalition 231 United States position at 260–263 working structure of 224–226

568 undersea world, exploration of 68–69 United Kingdom arbitration between Mauritius and  281–283, 530 Corfu Channel case 202–203 detachment of Chagos archipelago 537 maritime emissions 486 United Nations Ad Hoc Informal Open-ended Working Group (BBNJ Working Group) 370–371, 373, 374, 382, 384, 432 climate change regime 483–484, 485, 485n36 First Global Marine Assessment 293–294 New International Economic Order (NIEO) 78n128 Preparatory Committee (PrepCom) of the 374–378, 375 Sustainability Development Goals 288, 288n4 United Nations Agreement on Straddling and Highly Migratory Fish Stocks (1995). See Straddling Stocks Agreement United Nations Conference on Sustainable Development (2012) 302, 322, 383 United Nations Conference on the Environment and Development (UNCED) 332 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) 345 United Nations Convention on the Law of the Sea (UNCLOS) amending agreements to 49, 278, 279–280 characteristics of 2, 3, 185, 426 China’s interests 104–105 on deep seabed mining 75, 102, 447– 448, 468 definition of high seas 354n1 definition of marine pollution 490n56 definition of the Area 450 development of 81, 145, 331 economic efficiency approach 188–189 on freedom of navigation 343–345 impact on Hawai’i 132–133 implementation of Part XI 186–187, 331, 448n4 Informal Composite Negotiating Text (ICNT) 96, 117

Index Japan’s ratification of 123 on jurisdiction in exclusive economic zones 339, 422 legal gaps in 333 on limits of territorial sea 184, 339 long-term stability problem of 278–279 marine genetic resources and 441, 442, 443 on marine scientific research 433n54, 434, 434n56 on maritime boundaries 139 no harm principle in 347 Philippines’ interests 120–121 on pollution of marine environment  454n30, 489–490, 490n57 preamble of 353 Preparatory Committee meetings 442 prohibition of slave transportation 344 on protection of marine environment 283–284, 345–348, 351, 454–455, 458–459, 460 provisions on compulsory jurisdiction 281–283 provisions on technology transfer 377 provisions on trafficking of drugs 345 provisions on vessel-source pollution 490–491 provisions related to areas beyond national jurisdiction 430–431, 447–448, 455, 457–458 pro-whaling states obligations under 527 ratification of 260, 277, 278 regulations for the high seas 339–345, 339n37, 341–342, 436 relevance to biological resources 426–427 signing of 93, 121, 216, 224 superpowers’ interests 183, 214–215 transit passage articles 184–185, 210–213 U.S. position on 106–107, 108, 109 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 133n179 United Nations Environmental Program on Shared Natural Resources 116 United Nations Fish Stocks Agreement. See Straddling Stocks Agreement United Nations Framework Convention on Climate Change (UNFCCC) 481–482, 483–484, 484n34, 492, 494–496

Index United Nations General Assembly resolutions on Ad Hoc Open-ended Informal Working Group 369, 370, 431 on fish stocks management 395 on high seas driftnet fishing 364 on international legally binding instrument under UNCLOS 374–375, 432 on protection of marine biodiversity  356, 356n9, 357n12 on protection of seamounts 372 United Nations Informal Consultative Process on Oceans and Law of the Sea (­U NICPOLOS) 357, 358, 366, 369 United States Civil War 193–194 claims on continental shelf 140–142 control over living and non-living natural resources 126 Convention on the Law of the Sea and 106–107, 108, 109 Council on Environmental Quality (CEQ) 471, 471n131 declaration of twelve-mile territorial sea boundary 130 doctrine of “manifest destiny” 193n33 embargo against Solomon Islands 126 expansion of coastal state claims and 203–204 foreign policy 193–195 global influence of 263–264 Monument Proclamation 543–544, 548, 548n120 National Oceanic and Atmospheric Administration (NOAA) 472–473 ocean policy 104, 128–129, 163–164, 174–175, 193–194, 195, 196–197, 205– 206, 338 Pacific nations’ conflict with 126–127 practice of cannon shot rule 199n66 seabed mining impact, assessment of 471–472, 472 seabed mining policy 76, 100, 477 support of freedom of navigation 209 Truman Proclamation (1945) 140, 141, 170, 188, 280, 338 tuna fisheries policy 126–127, 129n157 at UNCLOS III conference, position of  260–263

569 United States Navy development of 193–194, 195 hydrogen bomb recovery operation ocean research support 16n9, 17, 69 submersibles 69, 70 University of Rhode Island (URI) 13, 15, 20, 20n17, 22, 80, 84–86 University of Washington (UW) 27n32, 158–159 U.S.-Canada Gulf of Maine litigation 175 Vallarta, Jose Luis 238 VanderZwaag, David 5 Van Dyke, Jon 48, 55n85, 90, 94n1, 105, 107, 118, 132–133, 147–148, 543 Vargas, Jorge 108, 117 Vattel, Emmerich de 199 Verlaan, Philomène A. 113, 387 Versailles Peace Treaty 196 Vicuña, Orrego 109 Vienna Convention on the Law of the Treaties (VCLT) 516, 521, 522 Vignes, Daniel 233, 336, 340, 343 Vilm Workshop (2001) 358–362, 364, 365 Vindenes, Helge 233, 254 Vukas, Budislav 109, 291 vulnerable marine ecosystems (VMEs)  377, 395 Waldock, Humphrey 46 Wang, Tie-ya 104 Warner, Robin 4, 5 Welling, Conrad 108, 110 Western and Central Pacific Ocean Fisheries Commission (WCPFC) 392–393 Westphalia, Treaty of (1648) 190, 192, 214 whaling in Antarctic waters 503–506, 511 fleets 507 future of 527–528 as global industry 503 in interwar period 503–504 in Japan 23n22, 504–505, 506 methods of 503 moratorium on commercial 23n22, 164, 164n25, 508–509 “scientific research” exemption for 510, 511, 516–517

570 whaling (cont.) special permits of individual states 509–510 Whaling in the Antarctic case Australian reaction on decision in 522 dispute on purpose and object of  519–520 implications of decision in 523–528 International Court of Justice’s ruling on 502, 522–523 International Whaling Commission’s resolution on 514–515 interpretation of “scientific research” 516–518, 517n97, 520–522 overview 502–503 states involved in 513, 515 Wilson, Woodrow 196 Wolfrum, C. Rüdiger 99, 310, 541

Index Wooster, Warren 32, 159, 160 World Intellectual Property Organization (WIPO) 438, 441 World Political Patterns (Alexander) 174 World Summit on Sustainable Development (WSSD) 357, 365, 431 World-Wide Navigational Warning Service (WWNWS) 406 Wright, Quincy 27, 141 Yanai, Shunji 123 Yankov, Alexander 226, 237, 238, 246, 256, 257, 265 Yingling, Raymund T. 171 Young, Richard 27 Yuan, Paul C. 107, 120 Zou, Keyuan 548