Regions, Institutions, and Law of the Sea : Studies in Ocean Governance [1 ed.] 9789004220218, 9789004220201

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Regions, Institutions, and Law of the Sea

Regions, Institutions, and Law of the Sea Studies in Ocean Governance Edited by

Harry N. Scheiber

University of California, Berkeley

Jin-Hyun Paik

Seoul National University and the International Tribunal for the Law of the Sea

A Law of the Sea Institute Publication

LEIDEN • BOSTON 2013

Cover illustrations: By Marina Caron. © 2013. Library of Congress Cataloging-in-Publication Data Regions, institutions, and law of the sea regions, institutions, and law of the sea : studies in ocean governance / edited by Harry N. Scheiber, University of California, Berkeley; Jin-Hyun Paik, Seoul National University, Law of the Sea Institute, University of California, Berkeley.   pages cm  Includes index.  ISBN 978-90-04-22020-1 (hardback : alk. paper) — ISBN 978-90-04-22021-8 (e-book) 1. Law of the sea—Congresses. I. Scheiber, Harry N., editor of compilation. II. Paik, Jin-Hyun, editor of compilation.  KZA1141.R44 2013  341.4’5—dc23

2013001027

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-22020-1 (hardback) ISBN 978-90-04-22021-8 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. 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. Brill has made all reasonable efforts to trace all rights holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyright holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. This book is printed on acid-free paper.

Contents

Preface and Acknowledgments ................................................................................. List of Contributors .......................................................................................................

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Introduction .................................................................................................................... . Harry N. Scheiber and Jin-Hyun Paik

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Part One

Perspectives on the International Tribunal for the Law of the Sea Chapter 1. Law of the Sea Disputes: The Applicable Law in the Jurisprudence of the Tribunal ............................................................................... . José Luis Jesus

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Chapter 2. The “Complementary Role” of ITLOS in the Development of Ocean Law .................................................................................................................. . Vaughan Lowe

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Chapter 3. Ad hoc Chambers .................................................................................... . Rüdiger Wolfrum

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Chapter 4. Separate and Dissenting Opinions and Their Absence: A Window on Decision-Making in the Tribunal ............................................. . Bernard H. Oxman

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Chapter 5. Advisory Opinions and Jurisdiction of the International Tribunal for the Law of the Sea ............................................................................ . Carlos Espósito

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Chapter 6. Two Aspects of ITLOS Proceedings: Non-State Parties and Costs of Bringing Claims ........................................................................................ Philippe Gautier

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contents Part Two

Institutions Governing Ocean Activities Chapter 7. Whither the UNEP Regional Seas Programmes? ........................... . Jon M. Van Dyke

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Chapter 8. FAO, Ocean Governance, and the Law of the Sea ........................ 111 . Jean-François Pulvenis Chapter 9. Implementation of the Common Heritage of Mankind ............. 129 . Michael W. Lodge Chapter 10. The Role of the Authority in Ocean Governance ........................ 145 . Alexander Proelss Chapter 11. The Regime of Straits: Safety, Security and Protection of the Marine Environment ............................................................................................... 161 . Nilufer Oral Chapter 12. The International Legal Regimes Governing Ocean Iron Fertilization ................................................................................................................ 185 . Sherry P. Broder and Marcus Haward Chapter 13. Mechanisms for Prevention of Disputes Concerning Encroachment upon the Area by Excessive Continental Shelf Claims ... 221 . Michael Sheng-ti Gau Part Three

Regional Issues and Ocean Regimes A. The Pacific Area Chapter 14. China and the Law of the Sea ........................................................... 245 . Jerome A. Cohen and Jon M. Van Dyke Chapter 15. Japan’s Anti-Piracy Law and UNCLOS ............................................ 257 . Moritaka Hayashi Chapter 16. The Legal Framework of Maritime Security in East Asia: A Comparative View ................................................................................................ 271 . Suk Kyoon Kim and Seokwoo Lee Chapter 17. The Role of Taiwan in Global Ocean Governance ...................... 293 . Yann-huei Song



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B. Europe and the Mediterranean Regions Introductory Remarks: Law of the Sea in the European Union and in the Mediterranean ............................................................................................... 313 . Tullio Treves Chapter 18. Global and Regional Approaches to Ship Air Emissions Regulation: The International Maritime Organization and the European Union ........................................................................................................ 317 . Doris Koenig Chapter 19. Subregional Marine Governance: The Case of the Adriatic Sea ................................................................................................................. 337 . Davor Vidas C. The Indian Ocean, Latin American, African and Arctic Regions Chapter 20. Current Ocean Law Issues in the Indian Ocean Region .......... 359 . Ximena Hinrichs Oyarce Chapter 21. Latin America and the Law of the Sea ........................................... 383 . Eduardo Ferrero Costa Chapter 22. Regional Issues and Ocean Law: The African Region ............... 411 . Erik Franckx and Koen Van den Bossche Chapter 23. Climate Change and Evolving Regional Ocean Governance in the Arctic ................................................................................................................ 437 . Tavis Potts and Clive Schofield Chapter 24. China’s Emerging Role in the Arctic ............................................... 467 . John K.T. Chao Part Four

Heightened Challenges Chapter 25. Piracy and the Law of the Sea .......................................................... 493 . Helmut Tuerk Chapter 26. Climate Change and the Oceans ..................................................... 515 . David D. Caron List of Abbreviations ..................................................................................................... 539 Index .................................................................................................................................. 543

Preface and Acknowledgments

The quest to adjust the legal ordering of the oceans to changing economic, geopolitical, and technological realities—a quest that has produced the modern Law of the Sea, one of the most dramatic developments in the entire history of international law—has been marked by great achievements in legal design and ­international negotiation, but also by emergent challenges of implementation. Among the new challenges are questions arising from regional needs and responses, from the need to bring into effective operation new judicial and nonjudicial institutions, and from the need to integrate some preexisting organizations and functions involved in ocean governance. These challenges are treated in rich in the present volume. The enterprise of creating a new law for the oceans began in the years just after World War II, but the critical turning point came in 1967. It was in that year that the United Nations General Assembly committed itself to the negotiations that culminated in the historic agreement of 1982, when the final text of the UN Convention on the Law of the Sea (UNCLOS) was opened for signature. The treaty is designed to provide the framework for a universal law for the oceans—global in scope and expressive of general principles for all the uses of marine space and resources in peacetime conditions. During the fifteen years of the UN-sponsored negotiations that produced UNCLOS, the Law of the Sea Institute (LOSI) became the major voice for scholarly analysis and for international debate of the issues that were before the diplomats then fashioning the global agreement. Jurists, government officials, industry representatives, environmental organizations, and international agency staff all participated in the LOSI activities—its workshops, writing of its Occasional Papers, and above all presenting their research and policy views in its magisterial Proceedings volumes. The latter series became recognized as among the most important works in the literature of ocean law and policy; many of them stand today as classics.

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The Institute has been headquartered and administered since 2002 at the Law School of the University of California, Berkeley, co-directed by the authors of this Preface. It was founded at the University of Rhode Island in 1965, where John Knauss, Lewis Alexander, William Herrington and other major figures in ocean policy studies led the organization quickly to a position of prominence internationally. Some years later, it was moved to the University of Hawaii where it flourished under the direction of Jon Van Dyke, and then later, briefly, to the University of Miami where it was guided by Bernard Oxman. The shift to its present base at UC Berkeley was approved in 2002, with the invaluable support of William T. Burke, Bernard Oxman, and other members of the international advisory board that had overseen its prior administration. The Office of the Dean of the School of Law, UC Berkeley, assumed responsibility for the organization’s support, and LOSI became officially a unit of the University. It has remained fully committed, however, to nurturing the international outreach and participation that had been its hallmark from the time of its founding. Thus at Berkeley we have organized and sponsored, both alone and in cooperation with other institutions, a series of international conferences and workshops. Papers from the major conferences, after being revised and comprehensively edited, have appeared in a series of books published by Martinus Nijhoff Publishers (an imprint of Brill Academic Publishers). The books appeared initially in its distinguished series, “Publications in Ocean Development,” and more recently— as with the present volume—as separately issued books. Other LOSI conference papers have appeared in web-based symposia and as traditional journal articles.1 Beginning with the opening of the UNCLOS for signature and ratification thirty years ago, the emphasis of the Institute’s publications focused upon the issues associated with implementation of the Convention—issues, as before, of law, economics, technology and ocean science, and practical diplomacy reaching to every aspect of ocean uses. The present volume carries forward these themes, with a dual focus on, first, the regional dimension of legal ordering and administration; and, second, the institutions of ocean policy and governance (with major attention to the International Tribunal for the Law of the Sea, among other

1 The books from LOSI at Berkeley that have appeared to date include: Bringing New Law to Ocean Waters, David D. Caron and Harry N. Scheiber (eds.) (Leiden/Boston, 2004); Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Seoung-Yong Hong and Jon M. Van Dyke (eds.) (Leiden/Boston, 2009); The Oceans in the Nuclear Age: Legacies and Risks, David D. Caron and Harry N. Scheiber (eds.) (Leiden/Boston, 2009), and a predecessor volume, The Law of the Sea: The Common Heritage and Emerging Challenges, Harry N. Scheiber (ed.) (Leiden/Boston, 2000). Two additional conference volumes are currently being edited for production. The LOSI website at http://www .lawofthesea.org includes the titles of all papers in the older Proceedings series, as a guide to researchers, as well as web site and journal citations for papers that have been published or posted under LOSI-Berkeley sponsorship.



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i­ nstitutions) that are of central importance to the development of ocean law and the large enterprise of ocean governance. It is with special pleasure that we acknowledge the contributions of many organizations and individuals to the work appearing in this volume. Our principal debt, of course, is to the distinguished authors represented here. We were greatly honored that the then-President José Luis Jesus and the other judges of the International Tribunal for the Law of the Sea (ITLOS) invited LOSI to hold the conference on the present themes at the ITLOS facility in Hamburg in October 2010.2 The conference at ITLOS and this book have been sponsored in collaboration with a consortium of Korean institutions led by Inha University-Incheon and the Korean Ocean Research and Development Institute (KORDI), and with Academia Sinica of Taiwan and the Ocean Policy Research Foundation of Japan (OPRF) as principal cooperating institutions. Additional collaborating sponsors include the Office of Dean Christopher Edley, Jr., of the UC Berkeley School of Law; the Sea Lanes of Communication Study Group and the Northeast Asia History Foundation, Seoul, Korea; and the Miller Institute on Global Challenges and the Law, UC Berkeley School of Law. Special thanks are owed to Judge Jin-Hyun Paik, who was principal co-­organizer, with Harry N. Scheiber, of the conference program at Hamburg and who has generously devoted time and effort to the co-editing of the present volume. Professor Seokwoo Lee of Inha University-Incheon was of indispensable support in the conference’s organization and fashioning the arrangements for collaborative financing. Chairman Masahiro Akiyama of OPRF in Japan and Professor Yann-huei Song of Academia Sinica, Taiwan personally provided very important collaborative efforts. Invaluable counsel in project design and commissioning of papers was given by Professor Tullio Treves of the University of Milan and formerly Judge in ITLOS; Dr. Seoung-Yong Hong, former president of Inha University-Incheon; and Professor Davor Vidas of the Nansen Institute, Norway. Local arrangements in Hamburg were managed with perfection, greatly appreciated by all presenters and other participants, by Professor Dr. Doris König of the Bucerius Law School in Hamburg, who was assisted by Bucerius staff and several of her very able students; and by the ITLOS Registrar, Professor Philippe Gautier. Ms. Karen Chin and Ms. Toni Mendicino of the LOSI staff at Berkeley provided excellent support throughout the conference organizing and publication processes.

2 All chapters in this volume except Chapter 9, by Michael Lodge, were presented in original form as papers at the Hamburg meeting. Mr. Lodge’s paper was first presented at a later LOSI meeting, in Seoul, May, 2012, and is published here with his permission and agreement of the Korean Ocean Research and Development Institute, co-sponsor with LOSI of the Seoul meeting.

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preface and acknowledgments

We are especially indebted to Ms. Marie Sheldon and her colleagues in the editorial and production departments of Brill for their talented and insightful contributions to the co-editors’ work on this volume. A special word must be said of the late Jon Van Dyke, professor of law and formerly director of the LOSI at University of Hawaii, who until his death last year was a key adviser to the Institute at Berkeley, a central figure in all of our scholarly efforts, including the present volume, and an exemplar of learning, devotion, and wisdom. His generous friendship and the rare quality of his colleagueship were legendary throughout the international law, human rights, and ocean law communities. Losing him from our ranks, like the earlier loss of Judge Choon-ho Park, who was closely associated with the LOSI from the late 1960s to the time of his death in November 2008, has been deeply saddening. Both of these two distinguished scholars will be specially memorialized in forthcoming volumes in the LOSI series. Harry N. Scheiber and David D. Caron Co-Directors, Law of the Sea Institute—UC Berkeley

List of contributors

Sherry P. Broder, attorney-at-law specializing in international law, environmental law, human rights, and complex civil litigation, and Adjunct Professor, University of Hawai’i at Mānoa William S. Richardson School of Law. David D. Caron, C. William Maxeiner Distinguished Professor of Law and CoDirector, Law of the Sea Institute, University of California, Berkeley. John K.T. Chao, Professor of International Law, Department of Diplomacy, National Chengchi University. Jerome A. Cohen, Professor and Co-director of the US-Asia Law Institute at NYU School of Law and adjunct senior fellow for Asia at the Council on Foreign ­Relations. Carlos Espósito, Professor of International Law at the School of Law, Autonomous University of Madrid. Eduardo Ferrero Costa, Partner, Echecopar Law Firm, Lima; Former Ambassador to the United States, Peru. Erik Franckx, Professor, Vrije Universiteit Brussel, Belguim. Michael Sheng-ti Gau, Professor of International Law at the Institute of the Law of the Sea, National Taiwan Ocean University. Philippe Gautier, Registrar, International Tribunal for the Law of the Sea; Professor, Catholic University of Louvain (Louvain-la-Neuve). Marcus Haward, Professor, Institute for Marine and Antarctic Studies, University of Tasmania, ­Australia.

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Moritaka Hayashi, Professor Emeritus, Waseda University School of Law, Japan. Ximena Hinrichs Oryarce, Legal Officer, International Tribunal for the Law of the Sea. José Luis Jesus, Judge and former President, International Tribunal for the Law of the Sea. Suk Kyoon Kim, Director General, Planning and Coordination Bureau of the Korean Coast Guard, Korea. Doris Koenig, Dean, Bucerius Law School, Hamburg; Chairperson, International Foundation for the Law of the Sea (IFLOS), Germany. Seokwoo Lee, Professor of International Law and Director of the Inha International Ocean Law Centre, Inha University, Incheon, Korea. Michael Lodge, Deputy to the Secretary-General and Legal Counsel, International Seabed Authority. Vaughan Lowe, Chichele Professor of Public International Law and a Fellow of All Souls College, the University of Oxford. Nilufur Oral, Professor of Law, Istanbul Bilgi University, Turkey. Bernard H. Oxman, Richard A. Hausler Professor of Law, University of Miami School of Law. Jin-Hyun Paik, Judge of the International Tribunal for the Law of the Sea and Professor of International Law at Seoul National University. Tavis Potts, Lecturer in Marine Policy, Ecology Department, Scottish Association for Marine Science, Scotland. Jean-François Pulvenis, Senior Policy Advisor, Inter-American Tropical Tuna Commission; formerly, Director, Fisheries and Aquaculture Economics and Policy, FAO. Alexander Proelss, Professor of Public Law, in particular Public International Law and European Law; and Director, Institute of Environmental and Technology Law (IUTR) of the University of Trier, Germany.



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Harry N. Scheiber, Stefan A. Riesenfeld Professor of Law and History, Director, Institute for Legal Research, and Co-Director, Law of the Sea Institute, University of California, Berkeley. Clive Schofield, Director of Research and QEII Research Fellow at ANCORS, University of Wollongong, Australia. Yann-huei Song, Research Fellow, Institute of European and American Studies, Academia Sinica, Nankang, Taipei, Taiwan, R.O.C. Tullio Treves, Professor at the University of Milano and former Judge of the International Tribunal for the Law of the Sea. Helmut Tuerk, Judge of the International Tribunal for the Law of the Sea and a former Vice President of the Tribunal. Koen Van den Bossche, Post-doctoral Researcher, Institute for European Studies (IES) at the Vrije Universiteit Brussel, Belgium. Jon Van Dyke, Late Professor of Law and Carlsmith Ball Faculty Scholar at the William S. Richardson School of Law, University of Hawai’i at Mānoa. Davor Vidas, Research Professor, Director of the Law of the Sea Programme, The Fridtjof Nansen Institute, Norway. Rüdiger Wolfrum, Judge of the International Tribunal for the Law of the Sea, Professor of International Law at the University of Heidelberg and Director of the Max Planck Institute for Comparative Public Law and International Law, ­Germany.

Introduction Harry N. Scheiber and Jin-Hyun Paik

Some three decades have passed since the signing in 1982 of the United Nations Convention on the Law of the Sea (UNCLOS), and nearly twenty years more since the Convention went formally into force. It is of vast historic significance, second only to the UN Charter itself, in having a universal scope for the application of the principles and specific rules that it set forth—and in having won nearly universal formal ratification, albeit with exceptions, among the sovereign nations of the world. Even for the few nations that have not ratified, the United States most notable among these outliers, UNCLOS has been honored as providing the essential legal principles as well as the framework for the further development of international ocean law. Not only has there resulted a further elaboration of rules for ocean uses within the UNCLOS framework, insofar as UNCLOS serves, as is often said, as a “constitution for ocean governance;” the Convention has also inspired development of soft law and, in the largest sense, the emerging definition of aspirational principles for advancing the rule of law, peaceful relations, and sustainable use of global marine resources. The breadth and adequacy of the UNCLOS framework have required constant reappraisal, however, and have impelled some new directions of legal development for ocean law in our contemporary era’s acceleration of complex changes in the technology and scale of ocean uses; in the emergence of new international security threats; and in the resource crises that have threatened marine fisheries and posed devastating challenges to ecosystems of the oceans and coasts ­globally. When the UNCLOS negotiations were going forward in the 1970s, few scientific experts, diplomats, or jurists could have foreseen the dramatic intensification of pressures on ocean environments and resources that we have witnessed in recent decades. Among them may be mentioned especially the extraordinary growth of the “flag of convenience” segment of international shipping; and the wide-ranging impact on the high seas of illegal, unregulated, and unreported (IUU) fishing at

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a volume level that has threatened to undermine management regimes while depleting valuable fish populations and even species. Meanwhile dramatic scientific and technological breakthroughs have made seabed exploitation and genetic resources policies central features in the array of new challenges that we face. Overshadowing even these formidable questions is the recognition, grudgingly achieved and so long in coming, of global climate change; it has become a central element now in the global debate of ocean law as well as in generating new pressures on the policies of sovereign nations for economic and environmental regulation. * * * All the foregoing themes are explored in one or more of the essays on institutions and regions in ocean governance presented in this volume. The approach we have taken in the commissioning and editing of these papers has been constructed on conceptual foundations that were already in place when UNCLOS was signed in 1982: for even at that time, both the possibilities of new international institutions and the viability of regional approaches as an alternative to (or as complementary to) the universalist approach were subjects of intense discussion. Obviously, however, the new forms in oceans regionalism and institutions that prevail at present were not fully anticipated three decades ago. A volume of essays on institutions and regions published in 1982 would have been of far narrower scope and richness than these themes evoke for scholars and jurists today. First we need to say a word about institutions relevant to the legal ordering of ocean activities, as they are represented in the chapters devoted to that main set of issues in Parts I and II of this book. Three institutions of special prominence in global legal ordering were created under terms of the UNCLOS agreement. Each of them—the International Tribunal for the Law of the Sea, the Commission on the Limits of the Continental Shelf, and the International Seabed Authority—is assessed in dedicated chapters. But also considered in Part II are some important institutions that stand outside the UNCLOS formal structure but were recognized as having a global role in 1982; and whose rules today increasingly reflect or specifically embody legal principles expressed in UNCLOS. Vitally important in the shipping sector, and increasingly involved in environmental as well as safety and security issues, is of course the International Maritime Organization (IMO). Moreover, “regimes,” whether still theoretical and in the throes of global debate, or indeed merely aspirational as with regard to the iron fertilization projects and policy debates, are also of relevance. In the realm of fisheries and ecosystem protection, the newly prominent activities in ocean governance of the many regional fisheries management organizations (RFMOs), considered in light of the 1995 Straddling Stocks Agreement that resulted from a UN initiative, also are significant features of ocean governance today.



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Also of importance in the panoply of institutions considered in this book is the long-standing but dramatically altered role of the UN Food and Agricultural Organization, whose founding dated from the end of World War II. The UNEP Regional Seas Programme, organized centrally but conceived and administered regionally, is similarly relevant to both the main themes that are treated in this volume. As to the concerns of this book with the question of regions, as treated in Part III, our purposes have been twofold: The first objective is to provide the reader with inventories and evaluations of the specific issues that constitute elements of commonality and differences among the nations and ocean users of selected major ocean regions of the planet. The second objective, adumbrated further in Part IV, is to identify the specific challenges to ocean law that have arisen in recent years within the various specific regions, and at the same time to provide analysis of the types and effectiveness of responses to these challenges. * * * It is especially appropriate that this volume should open with a set of chapters, in Part I, dedicated to the subject of the International Tribunal for the Law of the Sea (ITLOS). For it was of special significance that the conference from which these essays derive was held at the magnificent ITLOS facility at Hamburg. The work of ITLOS is emblematic of the advances that have marked modern ocean law and the crucial enterprise of dispute resolution and settlement. In Chapter 1, Judge José Luis Jesus, former president of ITLOS, provides a perspective on the Tribunal as an integral part of the international law system. An overview of the ITLOS docket and disposition of its cases is given by Judge Jesus as contextual background to his discussion of the Tribunal’s emergent jurisprudence, with attention to the concerns of some other commentators about alleged dangers of a “fragmentation” of jurisdictional responsibilities. In a similar vein, Professor Vaughan Lowe in Chapter 2 portrays ITLOS as part of a multifaceted system of courts and tribunals that work collectively in ways that preserve rather than threaten the integrity and universality of the UNCLOS regime. The structure and procedures of ITLOS, no less than its substantive jurisprudence, in Lowe’s view, have contributed to enrichment of the much larger spectrum of dispute settlement institutions and options that are available in the cause of peaceful resolution of “confrontations that might otherwise become lethal.” A specialized structural feature of ITLOS, the ad hoc Chamber, is analyzed by Judge Rüdiger Wolfrum, who identifies a set of special procedural features, seen in one perspective as distinct advantages enjoyed by disputants who opt for this forum type for decision. In a related discussion, Professor Bernard Oxman, who served on the ITLOS bench as an ad hoc judge, discusses in Chapter 4 how observers might usefully evaluate the significance of dissenting and separate

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opinions—and their absence—as providing what he suggests is “a window on decision-making in the tribunal.” Of more explicit prominence is the question of advisory opinions and ITLOS jurisdiction, explored in Chapter 5 by Professor Carlos Espósito. The rich ­possibilities of the advisory opinion were illustrated, he shows, by the February 2011 unanimous advisory opinion by the ITLOS Seabed Dispute Chamber. This opinion, rendered on application by the Seabed Authority, was concerned with the responsibilities and obligations of States sponsoring persons and entities with respect to activities in the international seabed area. Professor Espósito also compares the rules and limits of the International Court of Justice on the rendering and status of advisory opinions; and his analysis deals with how advisory opinions by authoritative tribunals—even when the opinions are not binding— have considerable authority as statements of principle, thereby contributing to the development of international law in often-vital aspects. A dramatic case in point, for example, is perhaps to be found in the Seabed Dispute Chamber’s discussion of the precautionary approach in its 2011 opinion. Professor Philippe Gautier, who serves as Registrar for ITLOS, writes in Chapter 6 from his institutional experience and from analysis of relevant texts to discuss specific (and sometimes controverted) aspects of ITLOS procedure, e.g., the rules adopted for participation by non-governmental organizations and the web posting of amicus briefs in the Seabed Authority case. In addition to giving attention to the major question of the role of non-State entities in cases before the Tribunal, Gautier also provides information on important practical questions such as the legal costs and logistics of ITLOS litigation, matters seldom discussed in the scholarly literature. * * * The non-judicial institutions and regimes that are part of the governance apparatus for ocean waters are the subject of Part II. The late Jon Van Dyke offers an historical overview and analysis of the substantive programs—providing assessments in Chapter 7 of their comparative effectiveness—of the UNEP Regional Seas Programme. The author highlights striking differences among the regional efforts, as to agendas of the individual programs, as to organizational structures, and as to the great variation in degree of commitment by States in the various regions, and thus, withal, as to comparative effectiveness. In Chapter 8, Jean-François Pulvenis, a former official of the FAO, traces the organization’s history and provides a provocative commentary on its prospects in the present era of financial constraints. With food shortages and resource depletion at critical levels in the immediate aftermath of World War II, FAO gave priority in its fisheries policy almost exclusively to development of commercial fishing projects; only gradually did sustainability and conservation-oriented objectives emerge as a parallel concern (and, most recently as a major focus). Today, the FAO initiatives for combatting IUU fishing, for reduction of fleet capacity, and



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for sustainability standards in national and RFMO policies have become centrally important in defining global resource-use standards. In Chapter 9, Michael Lodge, a legal counsel in the International Seabed Authority (ISA), offers, first, an important complement to the historical accounts in the two previous chapters, through his review of past phases of organizational change and of policy regarding access to seabed resources. His probing analysis of the several facets of the “common heritage” concept provides the template for assessment of how well the objectives of UNCLOS have been met, and it suggests what can reasonably be expected in the future development of international law in regard to the environmental complex of the undersea area. Further consideration of the twin functions of the ISA—to serve as trustee for the common heritage, and to administer undersea mining development and financing—is provide by Professor Alexander Proelss in Chapter 10. Analyzing closely the range and force of both the specific UNCLOS provisions and the political realities that support a limited view of the Authority’s powers, still the author advances, at least in a speculative vein, an alternative, expansive view of the Authority’s potential operationally, but especially, in the application of the precautionary principle. The precautionary principle, as Proelss shows, is now embedded in the Authority’s regulations; and it was given more palpable legal substance as to the Authority in the 2011 advisory opinion of the ITLOS Seabed Dispute Panel. Of special prominence in ocean law is the International Maritime Organization (IMO), an institution that predates UNCLOS by many years but which has evolved rapidly in recent decades both in scope of its concerns and the reach and effectiveness of its influence. It is the institution principally charged with problems of navigation, regulation of ocean pollution from dumping and other shipping activities, safety at sea, and in recent years also in regard to broadly defined environmental issues and in the framing of a legal order for responses to terrorism and piracy. In Chapter 11, Professor Nilufer Oral provides an overview and analysis of the panoply of international agreements and protocols that have been concluded through the procedural mechanisms of the IMO. She is particularly concerned with those that concern the problem of coastal state jurisdiction and transit passage rules in the major international straits through which tens of thousands of ships pass each year. Attention is given to security and environmental policies, in the context of the navigational issues. (Another aspect of the IMO role in contemporary ordering of ocean law is found in Chapter 18, below.) Oral’s analysis includes discussion of special regimes in straits such as the Turkish Straits, in which navigation rules, the regulation of pollution, and other features of ­governance are regulated under terms of treaties. In course of this discussion, she gives attention to the question of the extent to which these special regimes are consistent with the broad principles for governance of straits as set forth in UNCLOS.

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Despite the profound impact of UNCLOS, there still persist some important residual elements of the pre-1982 “freedom of the seas” legal order. This fact is well illustrated by the very limited evidences of regulatory authority being exercised over iron fertilization of the oceans—the focus of dramatic debates on “geo-engineering” responses to climate change. To a great extent, it is still a laissez-faire regime, as Professors Sherry Broder and Marcus Haward illustrate in Chapter 12. The authors take account of the varied elements of such marginal regulatory authority as they can identify bearing on this activity as embodied in actions and policies of existing institutions and agreements: the UN General Assembly, the Biodiversity Convention and its meetings of the Parties, UNESCO, the IMO, and other international bodies. Again, the precautionary principle is prominently featured in the analysis. The authors propose a “strong” claim that there is an emergent consensus, promising to advance, if not already representing, customary law; as such, they claim, it requires that this aspect of geo­engineering must be regarded as experimental, and it must be closely regulated on lines consistent with the precautionary approach. They also give attention to the practical questions that arise with regard to such activity, derivative from the transcendent potential impact on resources; these practical issues include need for agreement on terms of liability for any damages sustained, and the need for a compensation regime. The Commission on the Limits of the Continental Shelf (CLCS), another of the three new international institutions established under terms of UNCLOS, has become a lightning rod for controversy with regard to the establishment of the national boundaries out to sea beyond the 200 mile zone limit. Such claims, if legitimate, reduce the area of the high seas that is embraced in the “common heritage” concept; if found lacking in legitimacy, they are properly termed “encroachments.” Determination of legitimacy requires in the first instance a recommendation by CLCS, and then the establishment, on its basis, of the outer limits of the continental shelf by a coastal state—binding, however, only upon the coastal state itself. The CLSC recommendation is not determinative of related disputes involving other States. (It is of relevance to note that the members of CLCS serve without salary and without permanent headquarters, though they face the formidable task of coping with a large number of submissions, most of them involving lengthy and complex scientific data and many of them involving controversial legal questions bearing on potentially dangerous conflicts.) In Chapter 13 Professor Michael Sheng-ti Gau provides a closely detailed legal analysis of several scenarios in which procedural and jurisdictional rulings by the CLCS can be determinative, in effect giving the Commission—a non-judicial body—the opportunity to defuse entirely or at minimum to cast in a different light, legally, certain types of conflicts. Gau gives specific attention to the Commission’s actions in the case of Japan’s 2009 submission, which was challenged by China and Korea; and he sets forth the implications of the posture CLCS has assumed procedurally in handling this disputed claim—a claim complicated by



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its involving a continental shelf prolongation claim for a territory asserted by Japan as an island but viewed by opposed parties as being only a rock. * * * In Part III, our authors provide diverse approaches and substantive perspectives on issues prominent historically and at present in the several ocean regions on which they write. As stated above, the objective has been to identify and advance the study of both issues that are common to the regions considered, and those issues—and the responses of varied effectiveness—that constitute in unique or unusual ways the major challenges of ocean governance in each region ­considered. Some of the most dangerous sources of ocean conflict today are considered in Chapter 14, by Professors Jerome Cohen and the late Jon Van Dyke, on the subject of China’s ocean policies and that nation’s position on some of the vital principles of ocean law. The topics to which they give attention include the several controversial claims of ownership of islands, especially as to the manifold contested claims in the South China Sea; the determination of boundaries and application of baseline principles; the content of powers exercised with regard to jurisdiction over ship passage and overhead passage by planes in the offshore exclusive zone; and the posture of the government with respect to the methods it favors for the settlement of maritime disputes. All of these areas of policy have proven volatile, and they are parlous in their implications for achievement of the basic UNCLOS objective of peaceful uses of the oceans under rule of law. (A related set of issues concern China’s ocean policies with regard to the Arctic, a topic that is treated in Chapter 24.) The high degree to which the East Asian nations rely upon ocean shipping to sustain their economic activities has made piracy and terrorism at sea a central policy concern for them. In shaping responses to these threats, the UN Security Council and the IMO have set the basic international legal context, advancing implementation of the highly general provisions of UNCLOS, in a process that complements multilateral anti-terrorism/anti-nuclear proliferation treaties. In Chapter 15, Professor Moritaka Hayashi discusses the Japanese anti-piracy legislation of 2009, marking that nation’s first effort to provide for criminal sanctions in municipal law in the implementation of the UNCLOS provisions. In Chapter 16, by Director-General Suk Kyoon Kim and Professor Seokwoo Lee, the policies of China and Korea, together with those of Japan, are examined in a systematic comparison of both international collaborative measures and the domestic legislation that has been fashioned to deal with these “non-conventional security threats” of the post-Cold War era. The authors call for strengthened international arrangements, also advocating further reform and updating of domestic justice systems to combat terrorism and piracy. The position of Taiwan in the international structure of regimes for ordering of ocean affairs is the subject of the analysis in Chapter 17 by Professor Yann-huei

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Song. Although the country is a significant presence in international shipping, trade, and fisheries, as well as manufacturing, Taiwan’s role within this structure is constrained by its strategic and diplomatic relationship to the PRC, its exclusion from membership in the United Nations, and its consequent ineligibility for full membership in the major international marine organizations. Song sets forth the various dimensions of Taiwan’s unilateral policies and domestic legislation that have been promulgated to promote conformity with both the norms and many key specific rules of marine regulatory organization; and he suggests the possibilities, despite the escalation of conflict in the South China Sea and other pressures, of a “way forward” that may be inhere in the promise of recent crossstrait talks between China and Taiwan governments. * * * Two chapters that follow address ocean issues of the European and Mediterranean ocean areas. This section opens with a brief introductory commentary by Professor Tullio Treves, setting out the varied competences of the EU in ocean affairs, and stressing the distinctiveness of the Mediterranean area, by way of looking ahead to the discussions in the chapters following. Professor Doris Koenig’s analysis of global and regional approaches to ship emissions regulation illustrates in Chapter 18 how differences in the content and direction of regulatory policies of EU as a regional authority versus contrasting specifics of regulations pursued by IMO as global authority have introduced significant obstacles to achieving effective international control of pollution from ship emissions—a key element of the international response to the threat of climate change. Professor Koenig places the IMO-EU differences in the broader context of dialogue and conflict in the serial meetings on greenhouse gas emissions of the Conference of States Parties to the UN Framework Agreement on Climate Change—including the cleavages that have set the industrial nations against the less developed countries on key matters of policy in that forum. Professor Davor Vidas, writing in Chapter 19 on the Mediterranean, stresses the complexities too often hidden within the concept of an “ocean region.” These complexities come into play in profound ways, he demonstrates, when subregional differences in a particular geographic area such as the Mediterranean are fully recognized. Thus the paradox, as he demonstrates, of “disproportions of power” evident among states of the Adriatic that indicate the necessity of recognizing specific sub-regional characteristics—especially when the realities of conflicting interests, varied national regulatory systems, and deeply rooted historic and cultural factors operate in ways that permit politics to prevail over the rule of law regime envisioned in the terms of UNCLOS. * * * The Indian Ocean, third largest in the world, is a case study rich in variety of geographical features, resources, management problems, and international tensions,



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analyzed by Ximena Hinrichs Oyarce in Chapter 20. Offering first an overview of maritime boundary claims and issues of continental shelf delineation, the discussion follows with a focus on security issues (including piracy), fisheries management and roles of the RFMO structures, and dispute settlement. Ms. Hinrichs is particularly concerned with the degree to which the national and regional measures of the region in all these areas contribute to the UNCLOS goals of uniformity and universal rules of ocean ordering. Her discussion of dispute settlement serves to illustrate points regarding the ITLOS procedures and decisions as they contribute to the larger process working for development of an integrated and coherent international law regarding the oceans. An historical perspective provides the basic framework of Ambassador Eduardo Ferrero Costa’s discussion, in Chapter 21, of ocean issues in the Latin American marine regions. He first recalls the formative contributions of governments in that region to the dramatic “enclosure” movement for ocean space, and to advancing the concept of the seas as “common heritage,” as occurred in the postWorld War II years. A review of the legal status of each nation in the region in relation to UNCLOS includes a systematic summarization of the various reservations announced by the ratifying states. The author also examines the structure and operations of the global, regional and sub-regional organizations for sustainable resource use in which the Latin American states participate; and the varying options favored by the region’s states parties with regard to the several forums for dispute settlement available under terms of UNCLOS. Professor Erik Franckx and Dr. Koen Van den Bossche write in Chapter 22 of fisheries management issues in Africa’s offshore economic zones, highlighting the special problems of RFMOs in both the Atlantic and Indian Ocean sub-areas. They treat the evolving relationship of those institutions to the EU through new partnership agreements, and analyze the degree to which the criteria for sustainable management set forth in the Rio conference of 1992 (UNCED) and the 1995 Straddling Stocks Agreement are finding a place in the rules and implementation efforts of the African RFMOs. Recurring in this analysis of the African region we encounter important themes that are pervasive in the varied records of RFMOs globally: IUU fishing, overcapacity of fishing fleets, application of ecosystem concepts, and implementation of the precautionary approach. Climate change, the dramatic advancement of technologies such as in seabed drilling, the area’s rich and varied resource base, and strategic elements of a rapidly changing geopolitical context make the Arctic area an ocean region of special interest. Two contributions to this book are devoted to distinct aspects of the rapid changes in ocean uses, climate change, and international relations in the Arctic area. Thus Professors Clive Schofield and Tavis Potts focus in Chapter 23 on the developments of recent years in the Barents Sea, a sub-region of the Arctic that holds exceptional potential for exploitation of both hydrocarbon and fisheries resources—but that is also an area of distinctive environmental fragility that will require international collaborative measures if irreversible damage is

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to be averted. Hence the authors place their discussion of this ocean area in the large contexts of climate change in the Arctic; they are skeptical of several major premises and predictions concerning the impact of climate change on navigation and concerning new estimates of hydrocarbon potential in the Arctic area more generally. As to the Barents Sea sub-region, they provide close analysis of the evolving Barents Sea integrated management regime recently established by Norway for sustainable development and resource protection. Successful negotiation of boundary issues between Norway and Russia, and cooperation of long standing between the two countries in relation to fisheries further advance strength of regional management in the Barents Sea area at a time when rising world demand for food and energy resources is creating new pressures that will require increased effectiveness of environmental protections in this Arctic subregion area—as is true in the oceans globally. That the Arctic region offers unique opportunities for the pursuit of various nations’ strategic and economic policy objectives is well recognized in the literature on the contemporary oceans. Less well known are the several aspects of the interest being shown by China’s government in the possibilities of the Arctic. In Chapter 24, Professor John K.T. Chao discusses the several recent initiatives taken by the PRC that indicate the depth and range of its interest in having an influence in the geopolitics of the region. The areas of policy in play include naval and military strategic questions, but also the potential for new trade routes and navigational rules, the possibilities of hydrocarbon development, and the organization and direction of programs that will respond to environmental threats and especially the effects of climate change. * * * Each of the two final chapters, constituting Part IV, deals with an issue of great urgency that has forced reconsideration of some of the long-accepted premises and established configurations of ocean law and international relations. Judge Helmet Tuerk provides in Chapter 25 a critical overview of the jurisprudence of piracy law and analyzes the character of both specific regional threats and the global significance of terrorism and piracy in the contemporary ocean economy. The breadth of the subject as treated here offers invaluable context for the more specific discussions of piracy and the national and collaborative responses that have been discussed in earlier sections of this book. The final chapter, by Professor David D. Caron, approaches the challenges of climate change with extensive reference to the relevant science, to assessment of the technologies that can be mobilized, and to the arsenal of legal doctrine available to contend with these challenges. One must recognize, Caron contends, the features of climate change that can be addressed largely in the framework of law as already developed; but differentiated from those features are some new and rapidly growing challenges, such as the rise in sea level, the impact of ocean warming on global fish stocks, and the effects of increased acidity on marine



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life, in regard to which existing law and inherited approaches are not sufficient. “Global and foundational” issues, in sum, are at stake; and what needs to be done in new policy design and in unprecedented approaches to law-making constitutes the overarching issue for human society if ocean systems are to be sustained and preserved. The authors and editors of the present volume earnestly hope that the research and insights of these several papers will serve to advance, however modestly, the quest for the peaceful and productive ordering of the oceans that the UN Convention on the Law of the Sea has envisioned.

part one

Perspectives on the International tribunal for the Law of the Sea

one

Law of the Sea Disputes: The Applicable Law in the Jurisprudence of the Tribunal* José Luis Jesus

The theme of this volume is “institutions and regions in ocean governance.” I have therefore chosen to address the topic of the work of the International Tribunal for the Law of the Sea (ITLOS) as a major institution in ocean governance, bearing in mind its increasingly important role as a key Part XV international judicial body especially tailored to settle law of the sea disputes. The paper will focus on the applicable law in the Tribunal’s jurisprudence. As an introduction, I will provide an overview of our judicial work over the past 14 years, since we embarked on this noble journey of international adjudication, in order to provide an idea of the accomplishments of ITLOS to date and the potential for further growth. Number of Cases Received The Tribunal is a new and growing judicial institution. As a result, it has not received as many cases as we would have liked. Nonetheless, 17 cases have been submitted since we began our work in 1996. Of these, 13 have been resolved, one was discontinued last December at the request of the parties after many years on our log,1 one was also discontinued before the Tribunal could start dealing

* This chapter was presented in earlier form as the keynote address at the Law of the Sea Institute Conference, “Institutions and Regions in Ocean Governance,” held at the International Tribunal for the Law of the Sea in Hamburg on October 5, 2010. I am thankful to the organizers for having invited me to address this important gathering of law of the sea scholars and ITLOS judges. 1 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Order of December 16, 2009 (to be published).

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with it2 and the last two cases, which were instituted in the past 10 months, are under way. These cases involved disputant States from all regions of the world. Most of the cases that have been brought to the Tribunal for resolution3 involved urgent proceedings concerning the prompt release of vessels and crews4 and provisional measures pending the constitution of an Annex VII arbitral ­tribunal.5 Both procedures fall under the compulsory jurisdiction. The Tribunal has entertained 9 cases of prompt release and four cases of Annex VII provisional measures.6, 7 The most recent cases instituted before the Tribunal are Case 16, on maritime delimitation, and Case 17, concerning a request for an advisory opinion from the Seabed Disputes Chamber. Case 16, instituted before the Tribunal on December 14, 2009, relates to the dispute between the People’s Republic of Bangladesh and the Union of Myanmar concerning the delimitation of the maritime boundary in the Bay of Bengal. This is a groundbreaking case for the Tribunal since it is its first one on maritime delimitation. The written proceedings are under way and Bangladesh has already submitted its memorial, as scheduled. In May 2010, the Seabed Disputes Chamber of the Tribunal received a request for an advisory opinion from the International Seabed Authority. This case was entered in the List of Cases as No. 17. This is a very significant development in

2 “Chaisiri Reefer 2” (Panama v. Yemen), Order of July 13, 2001, ITLOS Reports 2001, 82. 3 The cases are: M/V “SAIGA” (Saint Vincent and the Grenadines v. Guinea), Prompt Release, Judgment, ITLOS Reports 1997, 16; M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea) Provisional Measures, Order of March 11, 1998, ITLOS Reports 1998, 24; Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of August 27, 1999, ITLOS Reports 1999, 280; “Camouco” (Panama v. France), Prompt Release, Judgment, ITLOS Reports 2000, 10; “Monte Confurco” (Seychelles v. France), Prompt Release, Judgment, ITLOS Reports 2000, 86; “Grand Prince” (Belize v. France), Prompt Release, Judgment, ITLOS Reports 2001, 17; “Chaisiri Reefer 2” (Panama v. Yemen), Order of July 13, 2001, ITLOS Reports 2001, 82; MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of December 3, 2001, ITLOS Reports 2001, 95; “Volga” (Russian Federation v. Australia), Prompt Release, Judgment, ITLOS Reports 2002, 10; Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of October 8, 2003, ITLOS Reports 2003, 10; the “Juno Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, 17; “Hoshinmaru” ( Japan v. Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 18; and “Tomimaru” ( Japan v. Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 74. 4 See Art. 292 of the United Nations Convention on the Law of the Sea (UNCLOS or “the Convention”). 5 See Art. 290, para. 5, of the Convention. 6 Proceedings relating to the request for provisional measures in the M/V “SAIGA” (No. 2) Case were also instituted on the basis of Art. 290, para. 5, of the Convention. Further to an agreement between the parties to submit the case to the Tribunal, the case was dealt with by that body under Art. 290, para. 1, of the Convention. 7 The Bluefin Tuna Cases, the MOX Plant Case and the Land Reclamation Case.



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our work since it is the first case brought before the Seabed Disputes Chamber, which, as the body with exclusive competence over the bulk of the seabed related disputes and advisory opinions, has enormous potential. Professor Esposito’s chapter in the present volume provides an insightful analysis of this case the unanimous decision of the Seabed Disputes Panel. By comparison with other courts and tribunals, the Tribunal has had a good share of law of the sea cases. A comparative approach shows that over the past 14 years, the International Court of Justice (ICJ) received six or seven law of the sea cases, all related to the delimitation of maritime boundaries, whereas the Tribunal received 17 cases related to a variety of issues such as protection of the marine environment, conservation of marine living resources and prompt release of vessels and crews, delimitation of maritime boundaries and seabed activities, as well as compensation for illegal detention of vessel and crew. The Tribunal’s role in the law of the sea dispute settlement system goes beyond its judicial competence. Under Annex VII, article 3, of the Convention, the President of the Tribunal has the important authority to appoint arbitrators at the request of any of the parties to a dispute submitted to an Annex VII arbitral tribunal, whenever the parties do not agree on the choice of arbitrators. Parties have on occasion sought and benefited from the assistance of the President in this regard. Most recently, the President’s assistance was sought in connection with the appointment of three arbitrators in the Annex VII arbitration between Bangladesh and India. The dispute settlement provisions of the Convention, as is well known, are not easy to understand. Aware of this, the Tribunal has, since its inception, tried to be user-friendly. For this purpose, we have organized a series of regional workshops to disseminate practical knowledge about the dispute settlement provisions of the Convention, as well as about the procedures available at the Tribunal and the practical steps needed for bringing a case to us. We have recently conducted one such workshop in Fiji8 for legal representatives of the Pacific island nations. We have also prepared a practical guide to our procedures to enable States and lawyers to better understand the procedural steps involved in bringing a case before the Tribunal. This guide can be downloaded from our website. In addition, a detailed commentary to the Rules of the Tribunal, written by a number of our judges, makes a useful contribution to the understanding of our procedures. The Tribunal’s judicial work has a justified reputation for being time-effective. The Tribunal has developed a case-management practice that avoids unnecessary delays. The M/V “SAIGA” (No. 2) Case—a case on the merits—took less than two years to resolve and the case between Bangladesh and Myanmar, presently before us, will be resolved within a similar time-frame in accordance with the Orders

8 Eight regional workshops have been organized in West, East, and Southern Africa; the Middle East; Latin America; the Caribbean, and in the Pacific.

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issued on the conduct of the case. On the other hand, all the cases of prompt release and provisional measures entertained by the Tribunal have been resolved within a time-frame of less than a month. The Applicable Law Having summarized the work of the Tribunal, I will turn to the main topic of the paper—the applicable law in the jurisprudence of the Tribunal. I will now attempt to provide a brief account of the different set of rules of international law that the Tribunal has applied in its case-law. Then I will narrow down my observations to highlight the circumstances in which the Tribunal has made use of “the other rules of international law non incompatible with the Convention” as referred to paragraph 1 of article 293 of the Convention. The Convention, as is well known, provides an extensive international regulation of the law of the sea. It includes rules of customary law, as well as several new provisions reflecting the progressive development in this field achieved during negotiations at the Third Conference. By applying the Convention to a concrete case, the Tribunal applies not only the new treaty provisions that it contains, but also the general international law that it codifies, as well as rules and standards found in agreements of a technical nature that have been absorbed by it through references to those agreements in several of its articles.9 These references to rules and standards broaden the Tribunal’s jurisdiction to a certain extent, so as to include technical maritime matters concerning navigation,10 such as collision, safety at sea and traffic separation. In many instances, as shown in its case-law, the Tribunal has been able to solve most legal issues raised in the context of a dispute submitted to it within the framework of the provisions of the Convention. Indeed, in a number of cases entertained by the Tribunal, the provisions of the Convention provided all the legal guidance that was necessary. In the absence of sufficient guidance from the Convention, however, the Tribunal also applies “other rules of international law not incompatible with the Convention,” as mandated by Article 293, paragraph 1.11 It is the actual application of these “other rules of international law” in the Tribunal’s case-law that I will now attempt to summarize.

9 See, inter alia, Arts. 24 (4), 39 (2), 41 (3), 53 (8), 94 (2a), and 95 (5) of the Convention. 10 David Anderson, “The Enforcement of International Maritime Rules and Standards,” Modern Law of the Sea, Selected Essays (Boston, 2008), Vol. 59, 253. 11 See Art. 293, para. 1, and Annex VI, Arts. 23 and 38, of the Convention.



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I will exclude from my analysis the law applied to cases before the Seabed Disputes Chamber, since the jurisprudence in this area is restricted to the decision in its first case, analyzed elsewhere in this volume.12 The reference to “other rules of international law” in article 293 of the Convention should be understood to include rules of customary international law,13 and rules of a conventional nature. The application of the norms of customary law and general principles of law becomes relevant, as evidenced in the Tribunal’s jurisprudence, in situations where, to use the terminology of the International Law Commission, the provisions of the Convention are “unclear or open textured;” where “the terms or concepts used in the [Convention] have an established meaning in customary law or under general principles of law;” or where the Convention does not provide sufficient guidance.14 How have these different manifestations of recourse to “other rules of international law” been articulated in the cases resolved by the Tribunal? The Tribunal has done so, especially by resorting to relevant pronouncements in the case-law of the Permanent Court of International Justice (1922–1946) PCIJ and the ICJ as a means to identify relevant rules of customary law and general principles of law to support its legal findings and positions. It has also referred to certain treaty sources, though sparingly. To better illustrate the circumstances and the extent of the actual application by the Tribunal of other rules of international law as referred to in paragraph 1 of Article 293 of the Convention, I have chosen to comment on the following excerpt of the Tribunal’s relevant case-law, most of them being related to the M/V “SAIGA” (No. 2) Case, as this has been to date the only merits case resolved: Definition of “dispute” In the Bluefin Tuna Case, the issue whether there was a dispute between the parties became relevant. The Tribunal therefore felt the need to satisfy itself that there was a dispute. To do so, it resorted to “other rules of international law” to establish the meaning of the concept of “dispute.”15 In order to satisfy itself that there was a dispute between the parties, it quoted the famous definition of a dispute in the Mavrommatis Palestine Concessions Case, stating that “. . . . in the view

12 See Espósito, Chapter 5. 13 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd ed. (Huntington 1999). 14 See the draft conclusions of the work of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (A/CN.4/L.682/Add.1), May 2, 2006. 15 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of August 27, 1999, ITLOS Reports 1999, 280, at 293, para. 44.

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of the Tribunal, a dispute is a ‘disagreement on a point of law or fact, a conflict of legal views or of interests’.” It then referred to a pronouncement of the ICJ in the preliminary objections in the Case of South West Africa, stating that “it must be shown that the claim of one party is positively opposed by the other.” Modalities for the Grant of Nationality to Ships In the M/V “SAIGA” (No. 2) Case, the Tribunal also sought clarification of the issue of modalities for granting nationality to ships, since the provisions of the Convention do not provide enough guidance in this regard. The Tribunal had therefore recourse to other rules of international law not incompatible with the Convention and stated that “International law recognizes several modalities for the grant of nationality to different types of ships.”16 It did not, however, indicate, or elaborate on, the source of the rule of international law to back its position. Exhaustion of Local Remedies Another issue solved through the application of other rules of international law concerned the exhaustion of local remedies. Here, Guinea contended that the M/V “SAIGA” (No. 2) Case was inadmissible because the persons concerned had not exhausted local remedies as required by Article 295 of the Convention. In this regard, the Tribunal stated: “It follows that the question whether local remedies must be exhausted is answered by international law. The Tribunal must, therefore, refer to international law in order to ascertain the requirements for the application of this rule and to determine whether or not those requirements are satisfied in the present case.” The Tribunal continued, arguing that [a]s stated in Article 22 of the Draft Articles on State Responsibility adopted on first reading by the International Law Commission, the rule that local remedies must be exhausted is applicable when ‘the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens. . . .’. None of the violations of rights claimed by Saint Vincent and the Grenadines [. . . .] can be described as breaches of obligations concerning the treatment to be accorded to aliens. They are all direct violations of the rights of Saint Vincent and the Grenadines. Damage to the persons involved in the operation of the ship arises from those violations.

The Tribunal then concluded that “[a]ccordingly, the claims in respect of such damage are not subject to the rule that local remedies must be exhausted.”17 16 M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea) Judgement, ITLOS Reports 1999, 10, para. 64. 17 Ibid., paras. 96–98.



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Admittedly, the reference made here by the Tribunal to the International Law Commission (ILC) draft as a source of authority in international law can only be interpreted as providing a material means for the identification of the relevant customary international law in this case. It is obvious that draft articles or draft treaties as such are not to be interpreted as part of the “other rules of international law” referred to in Article 293 of the Convention. Relationship Between National Law and International Law Another issue that prompted the Tribunal to have recourse to article 293 law concerns the relationship between national law and international law. During the M/V “SAIGA” (No. 2) Case, the issue of the relationship between the domestic law of Guinea and international law was raised, prompting the Tribunal to have recourse to international law in defining its position on the issue. The main charge of Guinea against the Saiga was that “it violated article 1 of L/94/007 by importing gas oil into the customs radius. . . . of Guinea.” Guinea justified this action “by maintaining that the prohibition in Article 1 of Law L/94/007 ‘[could] . . . be applied for the purpose of controlling and suppressing the sale of gas oil to fishing vessels in the customs radius according to article 34 of the customs Code of Guinea.’ ” In support of this contention, Guinea declared that it was the consistent practice and the settled view of the courts of Guinea that the term “Guinea,” referred to in Article 1 of the Law L/94/007, included the customs radius “and that, consequently, the prohibition of the import of gas oil into Guinea extend[ed] to the importation of such oil into any part of the customs radius.” Therefore, the view of Guinea was that the decision of the Guinea court could not be questioned in this case because the Tribunal was not competent to consider the question whether the internal legislation of Guinea had been properly applied by the Guinean authorities or its courts.18 The Tribunal did not accept this argument and justified its position by having recourse to customary international law, stating that “there is nothing to prevent it [the Tribunal] from considering the question whether or not, in applying its laws to the Saiga in the present case, Guinea was acting in conformity with its obligations towards Saint Vincent and the Grenadines under the Convention and general international law.”19 Relying on the jurisprudence of the Permanent Court of International Justice, the Tribunal stated that the Permanent Court, in its judgment in the Case Concerning Certain German Interests in Polish Upper Silesia, had asserted that “[f]rom the standpoint of International Law and of the Court which is its organ, ­municipal 18 Ibid., para. 116. 19 Ibid., para. 120.

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laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.”20 Thus, the Tribunal concluded by asserting its competence to determine the compatibility of the Guinea laws and regulations with the Convention.21 Reparation for Damage In the M/V “SAIGA” (No. 2) Case, the Tribunal had to determine the basis for reparation as requested by Saint Vincent and the Grenadines. While the Convention includes provisions on responsibility and liability for damage, its article 304 stipulates that they are “without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law.” The Tribunal therefore had recourse to the law of State responsibility to establish the elements on which responsibility for reparation could be ascertained. In that regard, the Tribunal stated: “It is a well-established rule of international law that a State which suffers damage as a result of an internationally wrongful act by another State is entitled to obtain reparation for the damage suffered from the State which committed the wrongful act.” The Tribunal then relied on the jurisprudence of international courts, quoting the judgment on the merits of the PCIJ in the Factory at Chorzow Case, in which the Court stated that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”22 Legal Value of the Minutes of Negotiations The Tribunal has also had the opportunity to contribute to the clarification of international law on the legal value of the minutes of negotiations. In the “Hoshinmaru” Case, the Tribunal felt the need to pass judgment on the status of the minutes of meetings of a Russian-Japanese Fisheries Commission as a source of obligations. In so doing, it relied on and endorsed the findings and conclusion of the ICJ in the Maritime Delimitation and Territorial Questions between Qatar and

20 Ibid., para. 120. 21 Ibid., para. 121. 22 Ibid., para. 170.



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Bahrain Case, in which the Court considered that “the Minutes are not a simple record of a meeting. . . . ; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the parties.”23 Clarification of the Concepts of “public interest” and “state of necessity” Another interesting instance of the application of general principles of law relates to the position held by the Tribunal in clarifying its understanding of the concepts of “public interest” and “state of necessity.” In the M/V “SAIGA” (No. 2) Case, Guinea argued that the legal basis of its law prohibiting the supply of gas oil to fishing vessels in the customs radius was to be found in Article 58 of the Convention. It relied on the reference, contained in paragraph 3 of that article, to the “other rules of international law” to justify the application and enforcement of its customs and contrabands laws to the customs radius. These “other rules of international law” were described by Guinea as “the inherent right to protect itself against unwarranted economic activities in its exclusive economic zone that considerably affect its public interest,” or as the “doctrine of necessity,” or as “the customary principle of self-protection in case of grave and imminent perils which endanger essential aspects of its public interest.”24 On the concept of “public interest,” the Tribunal stated that [a]ccording to Article 58, paragraph 3, of the Convention, the ‘other rules of international law’ which a coastal State is entitled to apply in the exclusive economic zone are those which are not incompatible with Part V of the Convention. In the view of the Tribunal, recourse to the principle of ‘public interest,’ as invoked by Guinea, would entitle a coastal State to prohibit any activities in the exclusive economic zone which it decides to characterize as activities which affect its economic ‘public interest’ or entail ‘fiscal losses’ for it. This would curtail the rights of other States in the exclusive economic zone.

The Tribunal concluded by stating that it was “satisfied that this would be incompatible with the provisions of Articles 56 and 58 of the Convention regarding the rights of the coastal State in the exclusive economic zone.”25 Here again, the Tribunal found support for its clarification of this concept in customary international law, as evidenced in the Case Concerning the Gabčíkovo-Nagymaros Project.

23 Judgment, ICJ Reports 1994, 112 at 121, para. 25. 24 M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea) Judgement, ITLOS Reports 1999, 10, para. 128. 25 Ibid., para. 131.

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It is to be noted that this is the only instance in the case-law of the Tribunal where it rejected the application of international law on the argument of noncompatibility with the Convention. On the argument of “state of necessity” put forward by Guinea, the Tribunal articulated its position as follows: “It remains for the Tribunal to consider whether the otherwise wrongful application by Guinea of its customs laws to the exclusive economic zone can be justified under general international law by Guinea’s appeal to ‘state of necessity.’ ”26 In answering this query, the Tribunal stated that in the Case Concerning the Gabčíkovo-Nagymaros Project, “the International Court of Justice noted with approval two conditions for the defense based on ‘state of necessity’ which in general international law justifies an otherwise wrongful act.” The Tribunal then added that “[t]hese conditions [are] set out in article 33, paragraph 1 of the International Law Commission’s Draft Articles on State Responsibility.”27 The Tribunal observed that “[i]n endorsing these conditions, the Court stated that they ‘must be cumulatively satisfied’ and that they ‘reflect customary international law.’ ”28 The Tribunal then concluded that no evidence had been produced by Guinea to show “that its essential interests were in grave and imminent peril.”29 Recourse to Decisions of Arbitral Tribunals In assessing the other rules of international law under Article 293, the Tribunal has also had recourse to pronouncements made by arbitral tribunals as a source of identification of general international law. The Tribunal did so when assessing the reasonableness of the use of force in the process of hot pursuit, in the M/V “SAIGA” (No. 2) Case. In this regard it referred to pronouncements made by two cases, the S.S. “I’m Alone” Case (Canada/United States, 1935) and the Red Crusader Case (Commission of Inquiry, Denmark—United Kingdom, 1962). Inspired by these two cases the Tribunal stated that “[i]n considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take into account the circumstances of the arrest in the context of the applicable rules of international law. Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is

26 Ibid., para. 132. 27 Ibid., para. 133. 28 Ibid., para. 134. 29 Ibid., para. 135.



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reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.”30 The Tribunal continued, stating that “[t]hese principles have been followed over the years in law enforcement operations at sea. The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered.”31 Application of Treaty Rules Other Than the Convention In addition to the rules of customary law and general principles of law, the reference to other rules of international law in Article 293 should be understood as including also rules of treaty law other than the provisions of the Convention. These rules of treaty law may assume particular relevance in situations where parties to the Convention are also parties to the concerned treaty or, as stated by some scholars, where “the treaty rule has passed into or expresses customary international law or where they provide evidence of the common understanding of the parties as to the object and purpose of the treaty under interpretation or as to the meaning of a particular term.”32 The Tribunal does not seem to have made use of rules of treaty law in force for the parties to the dispute. In some instances, however, it sought support for certain of its conclusions by referring to treaties without ascertaining whether the said treaties were binding on the disputant parties and without referring to the relevance of such treaties to the parties to the dispute. It did so in the M/V “SAIGA” (No. 2) Case when, in paragraph 83, after saying that “[t]he conclusion of the Tribunal is that the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.” It finished by stating (in paragraph 84) that “[t]his conclusion is not put into question by the United Nations Convention on Conditions for Registration of Ships of February 7, 1986 invoked by Guinea.”

30 Ibid., para. 155. 31  Ibid., para. 15. 32 See the draft conclusions of the work of the Study Group of the International Law Commission, Fragmentation of International Law.

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The Tribunal pursued this argument by referring to another treaty without expressly establishing its relevance to the parties in the dispute. In paragraph 85, it stated that “[t]he conclusion is further strengthened by the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 Relating to Conservation and Managements of Straddling Fish Stocks. . . . . and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. . . . .” The references made by the Tribunal’s decision to these two treaties would have gained more clarity and probably more authority as an applicable treaty under Article 293, if the Tribunal were to demonstrate that either the parties to the dispute had become parties to such treaties, or that these treaties included a relevant rule that had passed into or expressed customary international law or provided evidence of common understanding of the parties as to the object and purpose of such treaties. To summarize, I have examined these lengthy excerpts of our case-law to exemplify the Tribunal’s application of “other rules of international law,” as set out in paragraph 1 of Article 293 of the Convention. In so doing, my intention has been to give as clear an idea as possible of the involvement of the work of the Tribunal with international law in general and its contribution to international adjudication. The pronouncements of the Tribunal as exemplified by these excerpts have certainly contributed to the clarification of international law. As we have seen, in its short existence the Tribunal has frequently applied the “other rules of international law” referred to in Article 293, whenever the Convention did not provide sufficient guidance to resolve a particular legal issue raised in the context of a case before it. In a sense, this provision purports to achieve the same goal as Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties by providing a channel through which the Convention can be seen as part and parcel of international law through a systemic interpretation, that requires the interpreter of the Convention to take into account “any relevant rules of international law applicable in relations between the parties.”33 Difference Between Jurisdiction and Applicable Law Finally, I would like to touch upon the relationship between jurisdiction and the applicable law. There seems to exist a difference between the law conferring jurisdiction to the Tribunal and the law that the Tribunal may apply under Article 293. Some writers are of the view that “the reference to [international] law other 33 See the draft conclusions of the work of the Study Group of the International Law Commission, Fragmentation of International Law, 8.



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than the Convention in Article 293, paragraph 1, cannot be used to extend the jurisdiction conferred on the court or tribunal by the Convention.”34 In the same vein, the Annex VII arbitral tribunal in the MOX Plant Case made it clear in its decision that “there is a cardinal distinction between the scope of its jurisdiction under Article 288, paragraph 1, of the Convention, on the one hand, and the law to be applied by the Tribunal under Article 293 of the Convention, on the other hand.”35 This therefore raises the issue of how far, beyond the Convention, the Tribunal, while entertaining a case, can venture into other rules of international law as referred to in Article 293.36 The Tribunal seemed to have been attentive to this issue, as can be accessed from its case-law, although in the MOX Plant Case (Provisional Measures), the Tribunal may have been seen by some as having applied international law under Article 293 in excess of its jurisdiction. In the separate opinion filed by a judge of the Tribunal on the MOX Plant Case (Provisional Measures), between Ireland and the United Kingdom, it was stated that the type of broad consultations prescribed in point 1 (a) of the operative provisions [of the Order on Provisional Measures] “. . . . went beyond the scope of Articles 123 and 197 of the Convention, being based also on the duty to cooperate under general international law. . . . .” This judge seemed to indicate in his separate opinion the belief that the Tribunal, in applying international law to the issue of consultations between the two parties in this case, may have gone beyond what its jurisdictional limits should have been. Likewise, in a reference to possible Tribunal action in excess of jurisdiction in the M/V “SAIGA” (No. 2) Case, one writer has stated that “[g]iven the limited jurisdiction of the Tribunal under the Convention, it is curious to see that, in relation to the naming of Saint Vincent in connection with criminal proceedings, the Tribunal concluded by saying that it did not find ‘that this action by itself constitutes a violation of any right of Saint Vincent and the Grenadines under international law.’ ”37 Conclusion The Tribunal’s application not only of the provisions of the Convention, but also of other rules of international law as referred to in its Article 293, shows that the law of the sea is part and parcel of the international law system.

34 Michael Wood, “The International Tribunal for the Law of the Sea and General International Law,” International Journal of Marine and Coastal Law, 22 (2007): 357. 35 The MOX Plant Case (Ireland v. UK), PCA, Order no. 3 of June 24, 2003, para. 19. 36 Wood, “The International Tribunal for the Law of the Sea and General International Law,” 358. 37 Ibid., 358.

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On the other hand, the Tribunal has in its judicial decisions supported its findings and conclusions by making generous use of the case-law of the PCIJ and ICJ, as a source for the identification of customary law and general principles of law, applying them whenever the Convention did not provide sufficient ­guidance. This shows an unequivocal reliance on the jurisprudence of other international courts and tribunals, a clear proof that, at least in the Tribunal’s case, the concerns about fragmentation of the jurisprudence of international courts and tribunals are not warranted.

two

The “Complementary Role” of ITLOS in the Development of Ocean Law Vaughan Lowe

Introduction In this paper I consider the manner in which the International Tribunal for the Law of the Sea (ITLOS) can and does operate as a component in the “Part XV regime” in the United Nations Convention on the Law of the Sea (UNCLOS), and emphasize its potential role as a contributor to dispute settlement in a role other than that of a judicial tribunal deciding upon substantive disputes. The Roles of Dispute Settlement Procedures and Institutions The “Part XV regime” is, of course, about more than the settlement of particular disputes between States. Its provisions are an integral part of the Convention, regarded as essential for the preservation of the balance struck by the Convention’s “package deal” approach. That is why—unusually in international law— they are not in an optional protocol to the Convention but are included in the body of the Convention itself. It is in that light that we should, I think, see the continuing engagement with the Convention of what we might call the “UNCLOS organs.” The meetings of States Parties, the ITLOS, the Commission on the Limits of the Continental Shelf, the UN’s Department for Ocean Affairs and the Law of the Sea: all play their roles in emphasizing that the application and evolution of the Convention regime is a multilateral matter, where States must consider their actions in the context of the balance of rights and duties to which they committed themselves by ratifying the Convention. In the context of the ITLOS or of an arbitral tribunal acting under Part XV of the Convention, that role is reflected in the duality of their functions. They have an important role as interpreters and developers of the basic Convention law, through the formal or informal precedential affect that they have in relation to

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future actions governed by the Convention, as well as their role in making present settlements of disputes that arose in the past. My focus is on that second, dispute settlement function; and my first point is that I think it is a mistake to evaluate the importance of the ITLOS by looking only at its judgments. We sometimes tend to look at the facts of a reported case and at the decision of the tribunal and to consider that the decision has settled the dispute that has arisen from the facts, and done so according to the law. But as anyone who has been involved—as applicant, respondent or lawyer—in dispute settlement proceedings will know, matters are by no means so straightforward. A decision of an international tribunal may remain unimplemented—both the Corfu Channel case1 and the Argentina-Chile dispute over the Beagle Channel2 produced judgments which initially failed to resolve the dispute. On the other hand, it is possible that a dispute that the applicant intended to pursue and settle through the courts may be resolved without the need for the court to go all the way to the rendering of a final judgment—the Great Belt case3 in the ICJ, the Swordfish case4 in the ITLOS, and the Malaysia-Singapore Land Reclamation case5 and the Ireland-UK Mox Plant case6 in UNCLOS Annex VII tribunals are all examples. Despite the lack of final judgments of the tribunals in these cases, there is no doubt that the initiation of the dispute settlement process was in itself a major factor in the creation of circumstances in which an agreed settlement became possible. A decision on the merits does not necessarily settle the dispute; and a decision on the merits is not always necessary to settle the dispute. The latter point implies that final decisions—merits decisions—are only one element in a dispute settlement procedure, functioning alongside others. The ITLOS exemplifies this. Its role as dispute settler is, it seems to me, essentially complementary, in the sense that the ITLOS has played a crucial role in bringing about the conditions for the settlement of disputes by processes that have also involved other dispute settlement bodies and procedures. The ITLOS has not acted single-handedly and in isolation; and that is its great strength. ­Consideration of this point necessarily takes the primary focus away from cases in which the ITLOS essentially “completes” the procedure. 1  Corfu Channel case, (UK v. Albania), ICJ Reports 1949, p. 4. 2 Dispute between Argentina and Chile concerning the Beagle Channel (February 18, 1977), XXI UNRIAA 53. 3 Passage through the Great Belt (Finland v. Denmark), ICJ Reports 1992, p. 348. 4 Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union), ITLOS case No. 7. 5 Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS case No. 12. 6 The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS case No. 10.



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In the “prompt release” cases7 it has decided disputes with exemplary speed and efficiency. While the settlement of the dispute requires the cooperation of the parties in implementing its decisions, the record in this respect appears to have been good. The handling of this category of case must be counted as a great success for the ITLOS. The ITLOS is also empowered to give advisory opinions: first, under Article 191, on international seabed area matters (of the kind currently before the Seabed Disputes chamber, on an application from the International Seabed Authority);8 and second, under Article 188, it has the power to give what in EU Law we would call “preliminary rulings”: that is, a ruling on a question of law referred to it by another tribunal (Article 188 contemplated a reference by a commercial arbitration tribunal acting in relation to a deep seabed dispute) which requires an answer in order that the other tribunal can reach its decision. But it is not these well-defined aspects of the specialised jurisdiction of the ITLOS with which I am concerned, but rather the broad category of cases that fall within the general Part XV procedures. That is, with all disputes concerning the interpretation or application of the Convention with the exception of the disputes excluded by Article 297 and of any optional exclusions effected under Article 298. My main point is that the ITLOS has a significant role to play in these disputes even though its role may not be obvious in the calendar of cases before the Tribunal—and certainly not in the list of ITLOS decisions on the merits. That role complements and supports that of other steps in the dispute settlement process; and it may take a variety of forms. The ITLOS is, of course, only one among the Part XV tribunals: but there are two reasons why it has a special position. The first is that, as a permanent and highly specialised tribunal served by expert jurists, it has a particular authority within its field. Other Part XV tribunals are, I think, likely to be conscious of the desirability of consistency across all Part XV procedures and to have a special regard for the position of the ITLOS within the system. Similarly, and crucially, litigants are likely to frame their pleadings with this in mind. The second reason is that among possible Part XV fora, Annex VIII tribunals are a very specialised innovation; and many litigants are put off by what they see (rightly or wrongly) as the inflexibility and prospect of the delays in the ICJ. It is

7 Under Article 292 of the Convention. 8 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), ITLOS case No. 17. See Carlos Espósito, Chapter 5, infra, on the textual bases in the LOS Convention for ITLOS advisory opinions, and discussion of the Seabed case in particular.

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therefore likely that most UNCLOS Part XV disputes will go either to an Annex VII tribunal, appointed ad hoc by the Parties to the dispute, or to the ITLOS. But whether the ITLOS itself or an Annex VII tribunal is chosen, the ITLOS will be the only functioning institution in the field at a critical stage in the proceedings. Under Article 290(5), until such time as an arbitral tribunal (in fact, either an Annex VII or an Annex VIII tribunal) is constituted, the ITLOS has jurisdiction to prescribe, modify and revoke provisional measures. That is a provision of very considerable importance. The constitution of an arbitral tribunal can be a lengthy business. After the initiation of an arbitration under Annex VII, there may well be a three-month period within which the ITLOS alone is competent to act. The possibility of a provisional measures application is something that will be much in the mind of both applicant and respondent States. For both of these reasons, the ITLOS has a latent presence in the background to practically all Part XV cases. The Modalities of Influence: The Audience for Drafting At its simplest and most elusive, the mere existence of the ITLOS gives it an influence on the framing of a dispute. First, the very act of drafting pleadings—the Request for Arbitration, Statement of Claim, Memorial, Request for Provisional Measures and so on—focuses the attention of each Party, at several distinct stages, on what are and what are not defensible, winnable positions. No State likes to lose in litigation; and it is almost always preferable not to put forward a claim or argument that is very likely to be explicitly rejected by the Tribunal. Assuming that the winnable case will be close to the balance between the rights and duties of the two Parties that would eventually be established by the tribunal ruling on the merits, this consideration tends to push both Parties towards the central “balanced” area where they expect the Tribunal’s decision to be located and to give up extreme and untenable positions. Thus, litigation pushes the Parties to define their respective positions in terms that may be closer to a compromise than they have hitherto reached. Second, the process of drafting imposes a common language and framework for analysis, which may render irrelevant some of the reasons for a State taking its initial position. There is little point in answering a claim based on specific articles of the UNCLOS by saying that the action was taken in pursuit of a national policy, for instance. This, by increasing the convergence between the approaches to the two parties, again increases the possibility of an agreed settlement. Third, all drafting occurs against the background of the twin possibilities of victory and defeat in the final hearing, both in relation to particular issues and in terms of the case as a whole. One can never be certain what the outcome will be; and this focuses attention on what the best and worst possible outcomes of the litigation might be, and of the scope for an advantageous negotiated settlement.



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All of these mechanisms are passive, and operate because it is possible for a State Party to the Convention unilaterally to force a dispute with another State Party into the legal framework established by Part XV. Once a dispute is put within that framework, these mechanisms automatically take effect. The value of this passive influence must not be underestimated. Though the details tend to be confidential, many will know of episodes where preparations for a Part XV application, by drafting the relevant pleadings, have been enough to trigger movement towards an agreed settlement of a dispute. The Modalities of Influence: Crafting Provisional Measures A second, and more powerful, source of ITLOS influence lies in the manner in which it crafts provisional measures. Applications for provisional measures were made to the ITLOS in the Southern Bluefin Tuna,9 Mox Plant,10 and Land Reclamation11 cases, all of which had been referred to Annex VII tribunals. In none of these cases did the Annex VII tribunal render an award on the merits. In Southern Bluefin Tuna the tribunal decided that it lacked jurisdiction; in the Mox Plant case the tribunal was told by the European Court of Justice that it lacked jurisdiction; and in Land Reclamation the Parties came to an amicable arrangement which removed the need for an award on the merits. In Southern Bluefin Tuna the ITLOS began unremarkably, with an order to the litigants not to aggravate or extend the disputes or prejudice the carrying out of any final decision on the merits. But it then became much more focused, ordering all three parties—Australia, Japan and New Zealand (and the ITLOS even­handedly placed them in alphabetical order, rather than applicant/respondent order)—to restrict their annual catches to certain specified levels. It also directed the Registrar to notify all UNCLOS States Parties to the Convention participating in the fishery for southern bluefin tuna of the provisional measures Order. That last provision is interesting. There is no such provision in the Mox Plant and Land Reclamation Orders, perhaps because those cases were seen as bilateral, rather than “high-seas multilateral.” If that is the reason, it may imply a consciousness on the part of ITLOS of a responsibility to oversee and support the aims of the Convention, even when that concern might extend beyond the strict limits of the nexus of rights and duties that bind the litigants to each other.

 9 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, ITLOS cases Nos. 3 and 4. 10 The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS case No. 10. 11 Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS case No. 12.

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In the Mox Plant case, the ITLOS again tended towards a dirigiste approach, ordering Ireland and the United Kingdom to exchange further information on the possible consequences for the Irish Sea of the commissioning of the MOX nuclear plant, and to monitor the risks and effects of the MOX. Most creatively, in the Land Reclamation case the ITLOS ordered the establishment, on terms of reference to be agreed by Malaysia and Singapore, of a group of independent experts to spend a year studying the effects of Singapore’s land reclamation and to propose appropriate measures to deal with any adverse effects. If one compares those Orders with provisional measures orders issued by the ICJ, the ITLOS appears much more creative and willing to engage with the substance of the dispute that is, of course, even at that early stage, “before” the Tribunal. By guiding the parties towards a modus vivendi that might endure at least until a decision is made on the merits, the ITLOS may well be guiding them towards a modus vivendi that can form the basis of—or clear the ground for—a wider or more lasting settlement. I was involved in all three cases, and must emphasize that I am not drawing upon any unpublished information or even commenting upon any of these cases in particular. But it is clear from the literature and from the subsequent actions of the Parties that the very process of submitting the dispute to the UNCLOS Part XV procedures and to the ITLOS had a beneficial effect on the handling of the dispute between the Parties, despite the absence of a final award. This is, I think, an excellent approach to the management of disputes, preferable to a disengaged and aloof approach that focuses entirely upon a ruling on the rights and duties of the Parties. Could the ITLOS Do More? Could the ITLOS do more? That is perhaps the wrong question. The parties to a dispute have the right to insist that any tribunal stay within the bounds of its statute and its jurisdiction. The question rather should be, could the ITLOS offer to do more? I raise this question without regard to the legalities­—it might be necessary for the Conference of States Parties to amend the ITLOS Statute or to agree upon an ITLOS “Additional Facility” such as that which supplements the jurisdiction of the International Center for Settlement of Investment Disputes (ICSID).12 The ITLOS jurisdiction is, of course, already wide. It extends, under Article 21 of the Statute, to all inter-State disputes that the Parties agree to submit to it. Accordingly it could, for example, function as a tribunal effecting a mixed land

12 See http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionV al=AdditionalFacilityRules.



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and maritime delimitation, if the Parties so agreed; and under Article 15 the Tribunal can form chambers of, say, three or five judges for such purposes. Article 20 of the Statute does not require the States concerned in litigation to be UNCLOS States Parties.13 Indeed, under Article 20 the Tribunal could even be open to non-State entities, providing that all disputing parties agree. It is not entirely clear how wide this possibility is.14 That would extend the range of cases that the ITLOS might take. It is also possible that it might extend the range of measures that the ITLOS could adopt. I have mentioned the Article 188 “preliminary reference” procedure. On a wide reading of the ITLOS Statute, the parties to a dispute before another international tribunal, or even before a national court, could request a ruling on the interpretation of the Convention. Indeed, it is hard to see why it should be limited to the interpretation of the UNCLOS, given that the ITLOS may well have to interpret other Conventions and customary international law relating to the Law of the Sea in the exercise of its jurisdiction under UNCLOS. Such a procedure would have at least two advantages. First, it would reserve to an UNCLOS institution the right to make determinations that lie at the heart of the delicate balance struck in the Convention; and second, it would go a long way towards assuring a uniformity of approach to questions of interpretation. References would not always be necessary—even the European Court has an acte clair doctrine;15 and it might be thought that Annex VII tribunals are likely to have a degree of expertise that makes any general duty to seek an interpretation inappropriate, even if it were possible to revise the UNCLOS to provide for it. But the lesser step, which is at least arguably already possible under the Convention, of permitting such applications, particularly from national courts, is perhaps worth considering. Another role already possible under the Convention is the use of the ITLOS to provide from its bench the President and perhaps other judges to sit on Annex VII tribunals (as is already happening in the context of Bangladesh’s maritime boundary case with India), and perhaps even to provide administrative services and hearing facilities from the ITLOS registry. But it is the particular possibility of active ITLOS involvement in the management of a dispute that strikes me as having the greatest potential. Tribunals can be strongly interventionist—indicating to parties point of law and fact on which they wish to focus particular attention; asking probing questions during a ­hearing,

13 See M.H. Nordquist, S. Rosenne and L.B. Sohn, eds., United Nations Convention on the Law of the Sea 1982. A Commentary, Vol. V (Dordrecht, 1989), 374–375. 14 See, e.g., the views expressed in Judge Eiriksson’s book, The International Tribunal for the Law of the Sea (The Hague/London/Boston, 2000), 114–115, and in the text edited by Former President Chandrasekhara Rao and Registrar Gautier, The Rules of the International Tribunal for the Law of the Sea: A Commentary (Leiden, 2006), 280–281. 15 See ECJ Case 283/81 CILFIT [1982] ECR 3415.

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including questions as to why this or that solution might not be possible; breaking cases into different stages with flexible schedules and filing requirements. Such adaptability can be appropriate, efficient, and highly effective; and it can be conducive to an agreed settlement of the dispute. Tribunals have a role and authority as independent arbiters that is rightly accorded deference and respect by counsel and parties. That must be so. But it is also the case that judges and counsel have a common calling and responsibility as lawyers to make the Law work as fairly and efficiently as possible; and I close by expressing the hope that the ITLOS’ imaginative approach to its provisional measures orders might develop into a broader role supporting the handing and resolution of disputes, but without necessarily deciding them.

three

Ad hoc Chambers Rüdiger Wolfrum1

Introduction International courts and tribunals are in competition with arbitral tribunals, the latter having, from the point of view of potential parties several advantages. One of the perceived advantages is that that the parties can influence the bench— although this “advantage” may be more psychological than real. Another perceived advantage of arbitral tribunals is the smaller number of judges involved. To accommodate such considerations international courts and tribunals have opened the possibility of establishing ad hoc chambers to deal with a particular case. Account has to be taken of the fact, though, that the parties have made less use of this procedural option than expected. This may be due to the fact that such ad hoc chambers still are too closely linked to the international court or tribunal to which they belong or, in other words, do not offer the parties the influence concerning the composition of the bench as desired. The International Tribunal for the Law of the Sea has followed the trend of providing for the option to establish ad hoc chambers. Although the Statute2 and the Rules of the International Tribunal for the Law of the Sea concerning the 1 This contribution is for an old friend and colleague, the late Judge Choon-Ho Park, and in memory of a longstanding relationship. I cherish the memory of our last meeting in Seoul. This essay also appears in Jon Van Dyke et al. (eds.), Governing Ocean Resources— New Challenges and Emerging Regimes: A Tribute to Judge Choon-Ho Park, (Leiden/ Boston, forthcoming). [Editors’ Note: The essay was written for publication in the aforementioned volume and is printed in the present volume as well, at the request of the LOSI directors, by generous permission of Judge Wolfrum.] 2 United Nations Convention on the Law of the Sea, Art. 15, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter “UNCLOS”]; see generally Gudmundur Eiriksson, “The Special Chambers of the International Tribunal for the Law of the Sea,” in P. Chandrasekhara Rao and Rahmatullah Khan (eds.), The International Tribunal for the Law of the Sea (The Hague, 2001), 93.

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establishment of ad hoc chambers build upon the Statute as well as the Rules of the International Court of Justice3 and its established practice, they introduced some important innovations. The rules concerning the establishment of chambers by the International Court of Justice have undergone some evolutionary changes. The original Statute of the Permanent Court of International Justice provided for chambers to be formed to review cases on labour law, transit and communications; it also provided for a Chamber of Summary Procedure. This system was modified for the International Court of Justice. Its Statute opened the possibility for the establishment of chambers to deal with particular categories of cases (special chambers) and—and this was the innovation—to deal with a particular case (ad hoc chambers). As far as ad hoc chambers are concerned Article 26, paragraph 2, of the ICJ Statute provides that the number of judges to constitute an ad hoc chamber will be determined by the Court with approval of the parties to the dispute. The Statute does not address, though, how the judges are to be selected. This is left to the Rules of the Court although it was disputed which discretion the Court actually had in this respect. The approach of the ICJ in respect of Chambers was taken over in principle for ITLOS. It should be noted that, so far, chambers to deal with particular categories of cases have not been used. The idea that judges—particularly qualified for particular cases—are members of such chambers does not reflect the reality of their composition. Very often judges of the international court or tribunal in question serve in such chambers on a rotating basis and not for a long enough time to give them the opportunity to become experts. Under policy considerations it is also doubtful whether this would be desirable. Too much specialization may result in losing sight of international law in general and may ultimately foster fragmentation of international law. In 1970, preceding the Gulf of Maine case,4 voices representing politics and the academic world advocated that greater use should be made of chambers of the International Court of Justice.5 The reasons given to justify such proposals were twofold and interrelated. It was considered that parties to a dispute were more 3 Statute of the International Court of Justice Arts. 26, 27 and 29, June 26, 1945, 33 U.N.T.S. 993 [hereinafter “ICJ Statute”]. On this, see Paolo Palchetti, “Article 26,” in Andreas Zimmermann et al., (eds.), The Statute of the International Court of Justice: A Commentary (Oxford, 2006), 439; on ITLOS, see generally P. Chandrasekhara Rao, “ITLOS: The First Six Years,” Max Planck Yearbook of United Nations Law, 6 (2002): 183, 189. 4 Delimitation of the Maritime Boundary in the Gulf of Maine (Can. v. U.S.), 1982 I.C.J. 246 [hereinafter Gulf of Maine case]. 5 See e.g., James Hyde, “A Special Chamber of the International Court of Justice—An Alternative to Ad hoc Arbitration,” American Journal of International Law, 62 (1968): 439; on Chambers of International Courts and Tribunals, see Ruth Mackenzie, “International Courts and Tribunals, Chambers,” in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2011), online edition, available at http://www.mpepil.com/.



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likely to have recourse to institutional international dispute settlement if they were not required to face a body composed of too many judges, some of them coming from States pursuing different political objectives and having a different legal culture than the parties to the dispute. Apart from that, it was felt to be desirable if the parties to the dispute could have some influence on the composition of the dispute settlement body. Reacting to such recommendations, the ICJ changed its Rules in 1972 to facilitate the formation of chambers and to encourage States to use this procedure.6 In 1978, the Rules of the International Court of Justice were changed again. These changes were discussed controversially. In 1981 Canada and the United States agreed to the establishment of the first ad hoc chamber of the International Court of Justice. The Treaty to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area7 made it quite clear that the parties to the dispute wanted to control the composition of the chamber. By majority vote the Court acceded to this request. The practice was criticized by dissenting opinions of the Judges Morozov and El-Khani to the Order constituting the Chamber.8 In a declaration appended to that Order Judge Oda critically observed: “it should in my view have been made known that the Court, for reasons best known for itself, has approved the composition of the Chamber entirely in accordance with the latest wishes of the parties as ascertained pursuant to Article 26, paragraph 2, of the Statute and Article 17, paragraph 2, of the Rules of the Court.” Despite the changes of its Rules in 1972 and 1978 and despite the fact that several cases9 have been decided by ad hoc chambers of the ICJ, it is still a matter of controversy what degree of control the parties to a dispute may exercise over the composition of an ad hoc chamber of the ICJ. This is due to the wording of article 17, paragraphs 1 to 3, and article 18 of the ICJ Rules.10 These constitute 6 See Eduardo Jiménez de Arechaga, “The Amendments to the Rules of Procedure of the International Court of Justice,” American Journal of International Law 67 (1973): 1. 7 Reprinted in International Legal Materials 20 (1981): 1373. 8 Gulf of Maine case, supra note 3, available at http://www.icj-cij.org/docket/index.php?p 1=3andp2=3andk=6fandcase=67andcode=cigmandp3=3. 9 Six cases have, so far, been decided in ad hoc Chambers: Gulf of Maine case; Frontier Dispute (Burk. Faso v. Mali); Land, Island and Maritime Frontier Dispute (El Sal. v. Hond., Nicar. Intervening); Elettronica Sicula SPA (ELSI) (U.S. v. Italy); Frontier Dispute (Benin v. Niger); and the Application for Revision of the Judgment of 11 September 1992 in the case Concerning the Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.). 10 (1) At the request for the formation of a Chamber to deal with a particular case, as provided for in Article 26, paragraph 2, of the Statute may be filed at any time until the closure of the written proceedings. Upon the request made by one party the President shall ascertain whether the other party assents.  (2) When the parties have agreed, the President shall ascertain their views regarding the composition of the Chamber, and shall report to the Court accordingly. He shall also take such steps as may be necessary to give effect to the provisions of Article 31, paragraph 4, of the Statute.

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a compromise among those who wanted to accept the parties’ having a decisive influence on the composition of ad hoc chambers and those who insisted on preserving the dominant influence of the International Court of Justice in this respect. Taken literally these Rules provide that both of the parties to a conflict have to agree to the establishment of an ad hoc chamber. If they agree the Court has to accede to their request. The parties of the dispute also have to agree upon the number of judges who shall form a chamber. These two provisions make it very clear that the establishment of an ad hoc chamber serves the interest of the parties rather than the interest of the Court in dealing more efficiently with its caseload. However, the members of the ad hoc chamber are elected by the Court;11 the President is only obliged “to ascertain their [the parties’] views regarding the composition of the chamber.”12 Legally their views do not bind the Court when electing the members of a chamber. In fact, the rules provide that the parties to a conflict control the first two stages of establishing an ad hoc chamber whereas the last stage is ultimately under the control of the Court. Nevertheless, E. Jiménez de Aréchaga has stated that “[F]rom a practical point of view, it is difficult to conceive that in normal circumstances those members who have been suggested by the parties would not be elected.”13 This is certainly a correct statement; however it is doubtful whether parties to a dispute would consider the good will expressed therein to be sufficient. Formally, the judges of the ICJ when selecting the members of an ad hoc chamber must consider Article 26, paragraph 1, of the ICJ Statute (special knowledge or experience shall be taken into consideration). However, Article 9 of the ICJ Statute requiring that the principle legal systems of the world be represented does not apply. It is important to note that the parties have a further option to influence the composition of an ad hoc chamber. The rules concerning ad hoc judges (Article 31 of the ICJ Statute) applies to ad hoc chambers. Parties have the right to appoint  (3) When the Court has determined, with the approval of the parties, the number of its Members who are to constitute the Chamber, it shall proceed to their election, in accordance with the provisions of Article 18, paragraph 1, of these Rules. The same procedure shall be followed as regards the filing of any vacancy that may occur on the Chamber.  See Shabtai Rosenne, The Law and Practice of the International Court 1920–1996, 3rd edition (Boston, 1997), at 1121. 11 See Rules of Court of the ICJ Art. 18, para. 1 [hereinafter “ICJ Rules”]. On the question who is entitled to pArticipate in the vote, see Palchetti, supra note 2, at para. 12. 12 ICJ Rules Art. 17, para. 2. 13 Jiménez de Arechaga, supra note 5, at 3; see also Stephen Schwebel, “Ad Hoc Chambers of the International Court of Justice,” American Journal of International Law 81 (1987): 831; Manfred Lachs, “Some Comments on Ad Hoc Chambers of the International Court of Justice,” Pedone 16 (1991): 203–210; Eduardo V. Ospina, “The Use of Chambers of the International Court of Justice,” in Vaughan Lowe and Malgosia Fitzmaurice (eds.), Fifty Years of the International Court of Justice, Essays in Honor of Sir Robert Jennings (Cambridge, 1996), 503.



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ad hoc judges where there is no judge of their nationality on the Court. In the Gulf of Maine case, for example, Judge Ruda was elected to the Chamber, but was under Article 31, paragraph 4, ICJ Statute requested to give up his place for a judge chosen by the government of Canada.14 Finally, it should be mentioned that once elected as a member to an ad hoc chamber a judge continues to sit in all phases of the case before the chamber even if his/her term of office has expired.15 The rules of the ICJ on ad hoc chambers have influenced the ITLOS Rules on the establishment of ad hoc chambers positively as well as negatively. ITLOS provides for the possibility to establish ad hoc chambers, as already indicated, but it has taken the deliberate decision to strengthen the position of the parties as far as the selection of the judges of the chamber are concerned. Ad hoc Chambers under the Statute and the Rules of ITLOS According to Article 15, paragraph 2, of its Statute, ITLOS is empowered to form an ad hoc chamber for dealing with “a particular dispute” submitted to it, if the parties so request. This rule of the Statute is supplemented by Articles 30 and 31 of the ITLOS Rules.16 They deal with the time limit in which an ad hoc chamber is to be established after a request has been filed and its composition. The only ad hoc chamber formed by the Tribunal so far was in a case between Chile and the European Community. Since the parties agreed to settle the case amongst them, the Chamber decided to remove the case from the list of cases.17 14 See Mackenzie, supra note 4, at para. 15. 15 ICJ Rules Art. 17, para. 4. 16 Article 30 (1) A request for the formation of a special chamber to deal with a particular dispute, as provided for in Article 15, paragraph 2, of the Statute, shall be made within two months from the date of the institution of proceedings. Upon receipt of a request made by one party, the President of the Tribunal shall ascertain whether the other party assents.  (2) When the parties have agreed, the President of the Tribunal shall ascertain their views regarding the composition of the chamber and shall report to the Tribunal accordingly.  (3) The Tribunal shall determine, with the approval of the parties, the Members who are to constitute the chamber. The same procedure shall be followed in filling any vacancy. The Tribunal shall also determine the quorum for meetings of the chamber.  (4) Members of a chamber formed under this Article who have been replaced, in accordance with Article 5 of the Statute, following the expiration of their terms of office, shall continue to sit in all phases of the case, whatever the stage it has then reached. 17 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (No. 7) (Chile v. E.C.) [hereinafter Swordfish Stocks], Order of December 16, 2009, available at http://www.itlos.org/cgi-bin/cases/case_detail.pl?id=6andlang=en.

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Article 30 of the ITLOS Rules corresponds to Article 17 of the Rules of the ICJ, with modifications in relation to the time-limit within which a request for the formation of an ad hoc chamber is required to be made, the manner of determining the members who are to constitute the chamber and the quorum required for meetings of the chamber. The Statute empowers the Tribunal to form an ad hoc chamber whenever the parties so request.18 Article 30, paragraph 1, of the Rules prescribes a time limit within which a request for the formation of a special chamber ought to be made: such a request has to be made within two months from the date of the institution of proceedings,19 in order to enable the Tribunal to deal with a case as quickly as possible. Upon receipt of such a request, the President is required to ascertain whether the other party assents. Further steps may follow only if the other party assents to the formation of an ad hoc chamber. No specific time limit is fixed for the other party to convey its assent, although it is presumed that this will be done at the earliest possible time and, in any event, before the Tribunal fixes time limits for the completion of further steps in the proceedings. When the parties have agreed to the formation of an ad hoc chamber, Article 15, paragraph 2, of the Statute requires the Tribunal to determine the composition of such a chamber with the approval of the parties. Article 30, paragraph 2, of the Rules imposes a duty on the President to ascertain first the views of the parties regarding the composition of the chamber and then to report to the Tribunal accordingly. Under Article 30, paragraph 3, of the Rules the Tribunal determines, with the approval of the parties, the Members of the Tribunal who are to constitute the chamber. Whereas Article 30, paragraph 2, of the Rules refers to the ascertainment of the views of the parties regarding “the composition of the chamber” in general, paragraph 3 refers to the determination, with the approval of the parties, of “the Members who are to constitute the chamber.” This wording makes it quite clear that the Tribunal may only select those persons as members of an ad hoc chamber agreed upon by the parties. The word “determine” used in paragraph 2 of Article 30 ITLOS Rules, however, formally preserves the powers of the Tribunal to constitute the chamber. First and foremost, the system of ad hoc chambers is designed to enable the parties to choose, from among judges of the Tribunal, those whom they want to sit in their case.20 De facto the members of the Tribunal constitute a list of person from which the parties may choose those to decide their case. Accordingly one may appropriately speak of a system of arbitration within the Tribunal. However, the parties are not restricted to choosing from the judges of ITLOS. As indicated

18 See ITLOS Statute Art. 15, para. 2. 19 On institution of proceedings, see ITLOS Statute Art. 24 and ITLOS Rules Art. 107. 20 See also ICJ Statute Art. 26, para. 2, read in conjunction with ICJ Rules Art. 17, para. 2.



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by Article 17, paragraph 4, of the Statute of the International Tribunal for the Law of the Sea [hereinafter “ITLOS Statute”], the rules for ad hoc judges apply in respect of ad hoc chambers,21 albeit with some modification. If an ad hoc chamber does not have a member of the nationality of one of the parties that party may choose a person not being a member of the full Tribunal. This is even the case if the full Tribunal (as distinct from the ad hoc chamber) has on the bench a member of the nationality of that party. These judges not selected from among the members of the Tribunal are referred to as judges ad hoc. In a dispute among two parties two judges may be ad hoc judges. Therefore, a five member ad hoc chamber under Article 15, paragraph 2, ITLOS Statute may be constituted of three members of the Tribunal and two members from outside. The option to select an ad hoc judge was made use of in the case of the one ad hoc chamber established by ITLOS. Since the European Community had chosen a judge of the Tribunal who was of the nationality of a member State of that international organization to participate as a member of the ad hoc Chamber, Chile chose a judge ad hoc to participate as a member of the Chamber.22 Once an ad hoc chamber is established, its composition is independent from the one of the full Tribunal. According to Article 30, paragraph 4, of the ITLOS Rules Members of the Tribunal whose term of office expires and who are also member of an ad hoc chamber continue to sit in the chamber in all phases of the case “whatever the stage it has then reached.” The composition of ad hoc chambers deviates from one of the structural principles on which the ITLOS Statute is based upon. It requires that the Tribunal as a whole should represent the principal legal systems of the world and that an equitable geographical distribution is assured.23 A similar requirement is provided for in the selection of the members of the Seabed Disputes Chamber.24 While there is no equivalent requirement in relation to the composition of the special chamber, the ad hoc chamber or the chamber on summary procedure, the Tribunal adheres to the principle underlying such requirement as far as possible. Even the ad hoc chamber dealing with the swordfish case reflected—to a certain extent—the principle of equal geographical distribution being composed by two members from Latin America, and one from Western Europe, Eastern Europe and Asia each. However, this composition was neither required under the Statute or the Rules of ITLOS nor does this composition constitute a precedent on which one may rely on in the future. It is not even to be excluded and may reflect the wishes of the parties to a conflict that in future the members of an ad hoc chamber might all come from the same geographical region. 21 Rao, supra note 2, at 193–94. 22 See Swordfish Stocks, supra note 16, Order of December 20, 2000. See also ITLOS Rules Art. 22, para. 3. 23 See ITLOS Statute Art. 2, para. 2. 24 Id., at Art. 35, para. 2.

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Since the approval of the parties is crucial in respect of all aspects of the composition of an ad hoc chamber, it is a matter of consequence that vacancies that may occur in an ad hoc chamber may be filled only with the approval of the parties. Also the Tribunal is empowered to determine the quorum for meetings of an ad hoc chamber only with the approval of the parties to the formation of such a chamber.25 According to Article 31 of the Rules the President of ITLOS or, if he is not a member of the ad hoc chamber, the Vice-President, will be presiding over the ad hoc chamber. If neither of them is member of the ad hoc Chamber the chamber will elect a president. The Chamber’s president has the same functions as far as the dealing with the case is concerned as the President of ITLOS. The jurisdiction of the special chambers provided for in Article 15 of the Statute is consensual.26 States may also confer jurisdiction on the Tribunal, including ad hoc chambers, through international agreements. Such a provision conferring jurisdiction on the Tribunal could also be included in bilateral agreements. This may add another element of flexibility to the settlement of disputes through ad hoc chambers. Finally, parties may even propose particular modifications or additions to the Rules which an ad hoc chamber may apply.27 Judgments rendered by ad hoc chambers are considered judgments of the Tribunal and are not subject to review by the full Tribunal. By virtue of Article 19 of the Statute, the expenses of the Tribunal are borne by the States Parties and by the International Seabed Authority on such terms and in such a manner as shall be decided at meetings of the States Parties. Article 19 further provides that when an entity other than a State Party or the International Seabed Authority is a party to a case submitted to it, the Tribunal shall fix the amount which that party is to contribute towards the expenses of the Tribunal. The Tribunal is engaged currently in the task of evolving general criteria which could help in fixing the amount payable by an entity other than a State Party towards the expenses of the Tribunal when a case to which it is a party is submitted to the Tribunal. Conclusions In its recent resolution on ocean affairs the UN General Assembly has encouraged States to make use of ad hoc chambers of the International Tribunal for the Law of the Sea and of the International Court of Justice. The consideration motivating

25 See ITLOS Rules Art. 30, para. 3. 26 See ITLOS Statute Art. 15, para. 4. 27 See ITLOS Rules Art. 48; in the Swordfish Stocks, supra note 21, at 148, the Tribunal made modifications to its Rules as proposed by the parties.



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the General Assembly was to highlight this flexible mechanism for the settlement of international disputes. An ad hoc chamber under article 15, paragraph 2, of the ITLOS Statute should be of particular interest to parties who are considering arbitration. As in arbitration, in respect of an ad hoc chamber the parties are given substantial freedom to choose the judges of the Tribunal who are to sit in such a chamber. If the establishment of an ad hoc chamber is agreed upon in an international agreement the parties have the possibility to tailor the jurisdiction of that chamber to their needs. In the ad hoc chamber system, the parties can enjoy all the benefits of ordinary arbitration, without having to bear the expenses of the chamber. There is also the added advantage that a judgment given by an ad hoc chamber, like the one given by any other special chamber, is considered to have been rendered by the full Tribunal.

Four

Separate and Dissenting Opinions and their Absence: A Window on Decision-Making in the Tribunal Bernard H. Oxman

The law’s approach to public access to the judicial process is schizophrenic. The public is informed of the input and the output, but not what happens in between. This is generally true of both municipal and international standing courts.1 Judicial hearings are ordinarily public. The Statute of the International Tribunal on the Law of the Sea (ITLOS) and the Rules of the Tribunal expressly provide for public hearings.2 The Rules also provide that the minutes of public hearings shall be printed and published by the Tribunal.3 At least by the time of the hearings, the written pleadings of the parties are also ordinarily publicly available; the Tribunal’s Rules require this unless otherwise determined by the Tribunal or the President.4 In addition, in advisory proceedings before the Tribunal’s Seabed Disputes Chamber, such as just occurred,5 the Rules require that written statements and annexed documents submitted by governments and others shall be made accessible to the public as soon as possible after they have been presented to the Chamber.6

1 The situation with respect to public access to information about arbitration proceedings is more equivocal. 2 Statute of the International Tribunal for the Law of the Sea, United Nations Convention on the Law of the Sea, Ann. VI, Art. 26, U.N. Pub. Sales No.E.97.V.10 (1997) (hereinafter ITLOS Statute); International Tribunal for the Law of the Sea, Rules of the Tribunal, Art. 74, ITLOS/8, Mar. 17, 2009, http://www.itlos.org/fileadmin/itlos/documents/basic_texts/ Itlos_8_E_17_03_09.pdf (hereinafter ITLOS Rules). 3  ITLOS Rules, supra note 2, Art. 86, para. 6. 4 ITLOS Rules, supra note 2, Art. 67, paras. 2, 3. 5 The advisory opinion was rendered subsequent to the preparation of this paper and is not included in the analysis. See Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Adv. Op., Feb. 1, 2011, http:// www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf. 6 ITLOS Rules, supra note 2, Art. 134.

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At one time this public access had limited impact. Printed volumes were not available for years, and then at considerable expense with limited distribution. The opportunity to attend a hearing in person was constrained both by the cost of travel and by the size of the courtroom. Only a few cases attracted much popular press attention, and the specialized press itself had limited distribution for its reports. These days, public access has come to have a much broader meaning. Students, lawyers, and others in most—and soon, one hopes, in all—parts of the world have access both to pleadings and verbatim records on the Tribunal’s web site7 and similar sites maintained by the International Court of Justice8 and other international tribunals.9 This is an extraordinary change. A great debt of gratitude is owed the registry and staff of these tribunals for making these materials available in a timely and accessible manner. To the extent that the parties agree to public access, similar gratitude is owed to arbitration forums such as the Permanent Court of Arbitration10 and the International Centre for Settlement of Investment Disputes.11 Still, there can be some gaps on some web sites. Not all annexes to the memorials of the parties may be published on line or otherwise. While at one time doing so might have entailed costly diversion of staff to make copies of the annexes and substantial additional printing costs, these days most parties are likely to have electronic copies of their annexes and the documents therein at the time that their pleadings are submitted. The parties can supply the annexes easily (for example on a small USB storage device or CD ROM) for public dissemination in electronic form, together with the memorials, at minimal additional cost to the parties and the registry.12 Moreover, during oral proceedings, counsel may identify maps, charts, or documents by reference to the daily books prepared for the judges for that day’s hearing and materials shown on the screens. These books and materials may be helpful to the bench but, unless they too are publicized, the verbatim records may be less meaningful to those reading them from afar. Once again, the cost of making them available on line together with the verbatim records would not seem to be great. 7 See http://www.itlos.org. Tribunal documents and decisions referred to infra can be found easily at this well-organized website. 8 See http://www.icj-cij.org. 9 See e.g., http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm#disputes (WTO Dispute Settlement Body), http://www.icc-cpi.int/ (International Criminal Court). 10 See http://www.pca-cpa.org. 11  See http://icsid.worldbank.org/ICSID/Index.jsp. 12 In addition to the submission of hard copies, the Tribunal’s guidelines expressly provide for submission of copies of written pleadings, including maps, in electronic form. Guidelines Concerning the Preparation and Presentation of Cases before the Tribunal, paras. 1, 13, ITLOS/9, Nov. 14, 2006, http://www.itlos.org/fileadmin/itlos/documents/ basic_texts/Itlos.9.E.14.11.06.pdf.



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In addition to the input into the judicial process, we are also allowed to know the output. This typically includes both the formal disposition of the case and an opinion articulating the reasons therefor. This too is generally true of both municipal and international standing courts. The Statute and the Rules of ITLOS require a reasoned judgment read at a public sitting of the Tribunal.13 Also, the judgments of collegial courts often, but not always, indicate the vote on the formal disposition of the issues posed. The difficulty of course is that a reasoned judicial opinion is not a summary record of what happened between the end of the hearings and the delivery of the judgment. Quite to the contrary, both municipal and international practice reflects a firm conviction that judicial deliberations on questions of law and fact are not to be made public. Whatever one’s views regarding the appropriate content of a reasoned judicial opinion, it is rarely if ever argued that “transparency” in the sense of revealing the deliberative process itself is the purpose of the ­opinion.14 The Florida Constitution contains perhaps the broadest requirements in the United States today of what is widely called transparency, but aptly known in Florida as “government in the sunshine.” These provisions ensure public access to government records. They also include sweeping requirements that, with very limited exceptions, all meetings and business be conducted in public. A significant difference is that the first of these requirements, access to public records, applies to all three branches of the state government, including the judiciary, but the second requirement, that the public’s business be conducted in public, applies to the deliberations of the legislative and executive branches, but not to deliberations of collegial courts and juries.15

13 ITLOS Statute, supra note 2, Art. 30; ITLOS Rules, supra note 2, Arts. 124, 125. 14 Judge Rüdiger Wolfrum has decried the lack of transparency in the reasoning found in opinions of both the Tribunal and a municipal court. See The M/V “Saiga” (No. 2) (St. Vincent v. Guinea) (ITLOS July 1, 1999), Sep. Op. Wolfrum, V.P., para. 2, http:// www.un.org/Depts/los/ITLOS/SO-Saiga_Wolfrum.htm; The “Camouco” Case (Pan. v. Fr.) (ITLOS, Prompt Release, Feb. 7, 2000), Diss. Op. Wolfrum, J., para. 16, http://www. itlos.org/fileadmin/itlos/documents/cases/case_no_5/Dissenting.Wolfrum.E.pdf. “It might be noted in this regard that a reasoned judicial opinion is not necessarily the same thing as a transparent one. Consider, for example, the classically concise style of French decisions. Some courts, such as the European Court of Justice, give no indication of dissent and do not publish separate or dissenting opinions. Even courts that write voluminous majority and dissenting opinions are not immune to suspicions of a lack of candor. The rarity of complaints about the confidentiality of judicial deliberations following public proceedings suggests that transparency in the reasoning process itself is not necessarily regarded as desirable.” Bernard H. Oxman and Vincent P. Bantz, “The ‘Camouco’ Case,” American Journal of International Law 94 (2000): 713, 721 n.54. 15 See Florida Const., Art. 1, Sec. 24, Art. 3, Sec. 4, http://www.leg.state.fl.us/Statutes/index .cfm?Mode=Constitution&Submenu=3&Tab=statutes#A4.

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The ITLOS Rules reflect the same position regarding judicial deliberations. They state: “The deliberations of the Tribunal shall take place in private and remain secret.”16 They also contain limitations on who may be in the room during deliberations, and generally restrict the content of the records of the Tribunal’s judicial deliberations to the title or nature of the subjects or matters discussed and the results of any vote taken.17 This requirement of secrecy is reinforced by the Tribunal’s staff regulations and rules, which provide that staff members “shall not communicate to any person any information coming to their knowledge by reason of their official position which has not been made public, except in the course of their duties or by authorization of the Registrar,” and which restrict statements to the press, speaking engagements, and the submission of articles, books or other material for publication.18 Let us assume that most of us agree with this dichotomy in principle: public access to the input and output, but not to what happens between the two. We’d still like to know more about how and why the decision was reached. Curiosity is a common human trait, indeed one that is lauded in its manifestation as intellectual curiosity. But there are widely different views evident in the practice of municipal and international courts about what constitutes a reasoned judicial opinion. Even if this were not so, there are obvious problems in assembling a majority on a collegial court. One solution to that problem, evidenced at times by the United Kingdom’s venerable House of Lords (now restyled a supreme court), is for judges to write separately. But if, as in most collegial courts, the goal is either just one opinion or at least one majority opinion, then it is evident that the opinion will need to attract support from different judges with different styles and approaches. This can and does affect the clarity and coherence of the opinion. The problem is partially ameliorated by the fact that, on the Law of the Sea Tribunal, like many but not all other courts, judges who disagree in whole or in part with the majority are free to append their own opinions or declarations.19 Separate and dissenting opinions and declarations may elaborate on the writers’ own reasoning and, not infrequently, on their perception of the majority’s reasoning. Moreover, the option of writing a separate opinion or declaration may facilitate the process of arriving at a majority or even a unanimous judgment.

16 ITLOS Rules, supra note 2, Art. 42. 17 Id. 18 International Tribunal for the Law of the Sea, Staff Regulations of the Tribunal, Nov. 1, 2010, Reg. 1.5, http://www.itlos.org/fileadmin/itlos/documents/basic_texts/Staff_Regs_ E_Consolidated_1_November_2010.pdf; Staff Rules, Apr.11, 2011, Rule 1.2(r), http://www .itlos.org/fileadmin/itlos/documents/basic_texts/staff_rules_eng.pdf. 19 ITLOS Rules, supra note 2, Art. 125, para. 2, Art. 135, para. 3.



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However, the greater the number of opinions, the more difficult it may be to maximize the impact of a decision either on the behavior of the parties20 or on the development of the law, or indeed even to assess that impact. Our desire to know more about how and why a decision was reached may be in tension with our desire for optimum impact. While one hesitates to invoke the name of the great physicist Werner Heisenberg in this context, it does appear that insofar as judicial deliberations are concerned, the process of observation may alter what we are observing, and that in law, unlike physics, the consequences may be ­normative. There are at least three aspects of the formal rules of ITLOS that merit specific notice in this regard. All point in the direction of a single opinion. – First, the individual written notes by each judge provided for in the practice of the International Court of Justice near the start of the deliberations following the hearing are permitted but not required in the work of the Law of the Sea Tribunal absent a specific decision to that effect.21 – Second, the Resolution on the Internal Judicial Practice of the Tribunal provides that “The Drafting Committee should prepare a draft judgment which not only states the opinion of the majority as it appears then to exist but which may also attract wider support within the Tribunal.”22 – Third, in a similar vein, the Resolution provides, “Separate or dissenting opinions . . . should concentrate on the remaining points of difference with the judgment.”23 This tells us many things. One is that an essential part of the story is to be found not only in the presence of separate and dissenting opinions and declarations and what they say, but in their absence and what they do not say. It is against this background that we might take a look at the actual results in the cases decided by the Tribunal. The Tribunal’s Rules provide: “Any judge may attach a separate or dissenting opinion to the judgment; a judge may record concurrence or dissent without stating reasons in the form of a declaration.”24 But since even reasoned separate and 20 The parties are best assured that their arguments were heard and considered if the points they raise are addressed in the opinion of the court with care. 21 Compare International Court of Justice, Resolution Concerning the Internal Judicial Practice of the Court, Apr. 12, 1976, Art. 4, http://www.icj-cij.org/documents/index. php?p1=4&p2=5&p3=2, with International Tribunal for the Law of the Sea, Resolution on the Internal Judicial Practice of the Tribunal, ITLOS/10, Apr. 27, 2005, Art. 5, paras. 1, 7 (hereinafter ITLOS Internal Judicial Practice Resolution). 22 ITLOS Internal Judicial Practice Resolution, supra note 21, Art. 7, para. 2. 23 Id., Art. 8, para. 6. 24 ITLOS Rules, supra note 2, Art. 125.

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dissenting opinions are supposed to concentrate on points of difference with the judgment, how do we distinguish concurrence from dissent? We can of course look at the votes, but in many cases, judges may cast different votes on different portions of the dispositif. In the case of opinions, we also have at least a hint: the judge tells us whether it is a separate or dissenting opinion, and we can consult the reasoning to further inform our own appreciation of the situation. But in the case of declarations, the judge typically doesn’t tell us, and there may be little reasoning to elucidate the matter. Thus, the table appended to this paper does not to attempt to determine which declarations are dissents and which are not. For reasons of simplicity, all the declarations are placed in the same category as separate opinions; those, of course, also may be (and often are) dissents on at least some aspects of the opinion. Not surprisingly, the table demonstrates that, notwithstanding the cited provisions regarding the Tribunal’s procedure that would seem to encourage broadbased majorities and discourage lengthy separate opinions, some judges believe that writing separate opinions is an ordinary part of their duties. It is nevertheless interesting to see how many do not. This is particularly notable given the sharp divisions in the Tribunal’s very first decision, although even there, a tendency toward collective opinions is already evident.25 The table lists 13 decisions of the Tribunal. Six of them, including five of the last six, were unanimous. The table lists 31 elected judges and five judges ad hoc who participated in one or more of those 13 decisions.26 The number of opinions in which the judges participated varies greatly, depending largely on length of service on the Tribunal. The range is from participation in only one decision (one elected judge and four judges ad hoc) to participation in all 13 decisions (11 elected judges). Some of the following statistics are notable: •  Six judges have never written or joined a separate or dissenting opinion or ­declaration.27 •  Five elected judges have participated in joint separate or dissenting opinions or declarations, but have never filed individual ones. Four of them have sat in every

25 See The M/V “Saiga” Case (No. 1) (Saint Vincent v. Guinea) (ITLOS, Prompt Release, Dec. 4, 1997), http://www.itlos.org/index.php?id=59&L=0#c566. 26 Judge Jean-Pierre Cot, who was elected as a member of the Tribunal subsequent to his service as judge ad hoc, is listed separately in each category. 27 Judges Bamela Engo, Ballah, Hoffman, Kateka, Pawlak, and Xu. It should however be borne in mind that Judge Ballah sat in only one case, and that Judges Hoffman, Kateka, and Pawlak have thus far sat in only two cases, both of which were brought by the same applicant against the same respondent on the same day and were decided unanimously on the same day, albeit with different outcomes.



separate and dissenting opinions and their absence

53

case listed,28 and one in all but three of those cases.29 To this one might add two judges ad hoc who filed a joint declaration.30 •  Only two elected judges have written separate or dissenting opinions in every case in which they participated. One has thus far served in only two cases, and previously served as vice-minister for foreign affairs of the applicant in those two cases.31 The other has served in four cases and previously served as a member of the judiciary of a common law jurisdiction.32 To these two elected judges one might add the remaining three judges ad hoc,33 one of whom served in two ­cases.34

What might one conclude from this data? First, there may not be enough data to support any general conclusions. This is particularly true because all but one35 of the decisions listed concerned requests for provisional measures or applications for prompt release of detained vessels and crew that were rendered in a relatively short time following the relevant request or application.36 Second, predicting the future on the basis of the existing data would be perilous. Each case presents new circumstances, and the composition of the Tribunal changes over time. In this regard it should be noted that the docket of the ­Tribunal is no longer dominated by applications for prompt release and requests for provisional measures.37

28 Judges Akl, Caminos, Marotta Rangel, and Yankov. 29 Judge Yamamoto. 30 Judges Hossain and Oxman. The joint declaration supported a unanimous provisional measures order and referred to a point relevant only to the two judges as members of the arbitral tribunal to which the merits of the same dispute were submitted. See http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_12/C12.decl.HossainOxman.E.pdf. 31 Judge Yanai. These were two different prompt release cases that were brought by Japan against Russia on the same day and decided unanimously on the same day with different outcomes. 32 Judge Lucky. Two of the four cases were the same two cases referred to in notes 27 and 31, supra. 33 Judges Cot, Shearer, and Szekeley. 34 Judge Shearer. 35 The M/V “Saiga” (No. 2), supra note 14. 36 “The . . . tribunal shall deal without delay with the application for [prompt] release.” United Nations Convention on the Law of the Sea, Art. 292, para, 3, U.N. Pub. Sales No.E.97.V.10 (1997). “Subject to article 112, paragraph 1, a request for the prescription of provisional measures has priority over all other proceedings before the Tribunal.” ITLOS Rules, supra note 2, Art. 90, para. 1. “The Tribunal shall give priority to applications for release of vessels or crews over all other proceedings before the Tribunal. However, if the Tribunal is seized of an application for release of a vessel or its crew and of a request for the prescription of provisional measures, it shall take the necessary measures to ensure that both the application and the request are dealt with without delay.” ITLOS Rules, supra note 2, Art. 112, para. 1. 37 See supra, note 5. The current docket of the Tribunal can be found at http://www.itlos .org/index.php?id=34&L=0.

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Third, that said, there is certainly evidence that the encouragement of broadly supported decisions apparent in the procedure and practice provisions adopted by the Tribunal is having an effect, especially in more recent decisions. This may suggest that a significant number of judges agree with that approach. And last, to the extent that there is a discernible trend, there might be reason for those who think this trend is a useful one, and for those who do not, to articulate what they perceive to be the advantages and disadvantages. Table 1. Separate and Dissenting Opinions and their Absence: A Window on Decision-Making in the Tribunal

1. Saiga (r)

2. Saiga (2) (pm)

2. Saiga (2)

3.–4. Southern Bluefin Tuna (pm)

5. Camouco (r)

6. Mone Confuco (r)

8. Grand Prince (r)

10. MOX Plant (pm)

11. Volga (r)

12. Land Reclamation (pm)

13. Juno Trader (r)

14. Hoshinmaru (r)

15. Tomimaru (r)

KEY: pm provisional measures r  prompt release m  majority with no separate opinion or declaration S   separate opinion or declaration SJ  joint or collective separate opinion or declaration D  dissenting opinion DJ  joint dissenting opinion

Akl

m

m

SJ

m

m

m

DJ

SJ

m

m

m

m

m

Anderson

D

m

S, SJ

SJ

D

D

S

S

D

S

SJ

Bamela Engo

m

m

m

m

m

m

m

m

m

m

m

Ballah

m

m

Chandrasekhara  Rao

DJ

m

S

m

m

m

m

m

m

S

S

m

m

Caminos

m

m

SJ

SJ

m

m

DJ

SJ

m

m

m

m

m



separate and dissenting opinions and their absence

55

Eiriksson

m

m

SJ

D, SJ

m

m

DJ

12. Land Reclamation (pm)

13. Juno Trader (r)

14. Hoshinmaru (r)

15. Tomimaru (r)

Cot

11. Volga (r)

10. MOX Plant (pm)

8. Grand Prince (r)

6. Mone Confuco (r)

5. Camouco (r)

3.–4. Southern Bluefin Tuna (pm)

2. Saiga (2)

2. Saiga (2) (pm)

1. Saiga (r)

Table 1 (cont.)

S

S

SJ

m

m

SJ

Hoffmann Jesus

m

D

DJ

S, SJ

m

S

m

Kateka Kolodkln

m

m

m

m

m

m

m

Laing

m

S

S

S

S

D

S

m

m

Lucky

m

m

m

S

m

m

m

S, SJ

S

m

S

S

S

S

m

m

Marotta Rangel

m

m

m

SJ

m

m

DJ

m

m

m

m

Marsit

m

m

m

m

m

m

DJ

SJ

S

m

m

Mensah

D

m

S

m

S

S

m

S

m

m

SJ

Ndiaye

DJ

m

D

m

S

S

m

m

m

S

S

m

m

Nelson

DJ

m

S

m

S

S

S

S

m

S

m

m

S

Park

DJ

m

m

SJ

m

m

m

SJ

m

m

S

m

m

m

m

S

m

S

m

m

m

Pawlak Treves

m

m

SJ

S

D

m

S

S

m

m

S

Tuerk Vukas

DJ

S

SJ

D

Warioba

m

S

D

S

Wolfrum

DJ

m

S

SJ

Xu

D

S

DJ

m

S

m

m

D

m

S

S

m

m

SJ

m

m

m

DJ m

Ad Hoc Shearer

Ad Hoc Szekely

Source: Bernard Oxman 6. Mone Confuco (r) 8. Grand Prince (r) 10. MOX Plant (pm) 11. Volga (r) 12. Land Reclamation (pm) 13. Juno Trader (r)

m m DJ SJ m m m

Yanai

Yankov m m SJ SJ m m

Zhao m m S m m m

Ad Hoc Cot DJ m

S S

m

D

m

S

Ad Hoc Hossain SJ

Ad Hoc Oxman SJ

m

15. Tomimaru (r)

5. Camouco (r)

SJ

14. Hoshinmaru (r)

3.–4. Southern Bluefin Tuna (pm)

2. Saiga (2)

2. Saiga (2) (pm)

Yamamoto

1. Saiga (r)

56 bernard h. oxman

Table 1 (cont.)

S S

m m

five

Advisory Opinions and Jurisdiction of the International Tribunal for the Law of the Sea Carlos Espósito

Introduction For the first time in its history, in 1990 the Seabed Disputes Chamber (SDC) of the International Tribunal for the Law of the Sea (ITLOS) was requested by the Council of the International Seabed Authority to give an advisory opinion in accordance with Article 191 of the United Nations Convention on the Law of the Sea (UNCLOS).1 The initiative came from the Republic of Nauru, which had sponsored an entity2 for a plan of work in prospecting and exploration for polymetallic nodules in the Area, but declared at the Seabed Council that “it is extremely difficult for a developing State to confidently sponsor activities in the Area” without clarity on the issues of responsibility and liability.3 Nauru was concerned with the ways in which it “could mitigate (with a high degree of certainty) the potential liabilities or costs arising from its sponsorship [of Nauru Ocean Resources Incorporated].”4 The proposal of Nauru was discussed at the Council, which adopted the decision to request an advisory opinion of the Seabed Disputes Chamber on three rather general questions, instead of the more specific questions proposed by Nauru. The decision5 of the Council was taken at its 161st meeting held on 1  International Seabed Chamber, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area (Advisory Opinion), Case No. 17 of the International Tribunal for the Law of the Sea List of Cases, February 1, 2011, available at http://www.itlos.org/. 2 Nauru Ocean Resources Incorporated, a Nauru incorporated subsidiary of Nautilus ­Minerals. 3 ISA press Release, SB/16/12, May 3, 2010. 4 Proposal to seek an advisory opinion from the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on matters regarding sponsoring State responsibility and liability, Submitted by the delegation of Nauru, ISBA/16/C/6. 5 ISBA/16/C/13.

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May 6, 2010. The Council of the International Seabed Authority, in accordance with Article 191 of UNCLOS, requested the Seabed Disputes Chamber of the ITLOS, pursuant to Article 131 of the Rules of the Tribunal, to render an advisory opinion on three questions concerning the legal responsibilities and obligations of States Parties to UNCLOS with respect to (a) the sponsorship of activities in the Area, (b) the extent of liability of a State Party for any failure to comply with the provisions of UNCLOS, and (c) the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under UNCLOS. The request of an advisory opinion submitted to the Seabed Disputes Chamber represented a momentous occasion for the development of the law and practice of the Tribunal. The Seabed Disputes Chamber delivered one of those decisions that belong to the moment but significantly speak to the future. Indeed, on February 1, 2011, the Seabed Disputes Chamber gave a robust, unanimous advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area.6 In its advisory opinion, the Seabed Disputes Chamber made clear what it regarded as its role in the system: to assist the Authority, acting as “an independent and impartial judicial body,” to exercise its functions properly in accordance with UNCLOS.7 Furthermore, the Chamber said that it was “mindful of the fact that by answering the questions it will assist the Council in the performance of its activities and contribute to the implementation of the Convention.”8 The purpose of this chapter is the analysis of crucial aspects of the advisory function of the Seabed Disputes Chamber. It will consider its jurisdiction to give an advisory opinion and the issues of admissibility related to the request concerning the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, but it will not examine the substantive questions posed to the Chamber. In other words, the aim of this chapter is the discussion of the key issues of jurisdiction and admissibility, together with some questions of procedure, that should be taken into account in order to arrive at an authoritative advisory opinion of the Chamber and, eventually, of the ITLOS. I will start with a general description of the scope of the advisory jurisdiction of the ITLOS, and then proceed with a consideration of questions of jurisdiction and judicial propriety in the exercise of advisory function of the Seabed Disputes Chamber.

6 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1. 7 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1, para. 26. 8 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1, para. 30.



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The Scope of the Advisory Jurisdiction of the Seabed Disputes Chamber and the ITLOS The scope of the advisory jurisdiction of the International Tribunal for the Law of the Sea is very limited. Only the Seabed Disputes Chamber has jurisdiction to give advisory opinions expressly provided for in UNCLOS. There are, in fact, two situations in which the Seabed Disputes Chamber shall give these opinions. First, in Article 191 UNCLOS establishes the advisory jurisdiction of the Chamber: The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council [of the Seabed Authority] on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency.

Secondly, in accordance with Article 159(10) of UNCLOS, the Seabed Disputes Chamber is given a sort of quasi-constitutional interpretation function. Indeed, this provision enables the Chamber to answer a request of the Assembly to give an advisory opinion “on the conformity with th[e] Convention of a proposal before the Assembly on any matter. . . . ” The ITLOS does not have general advisory jurisdiction provided by UNCLOS. I have not found information about the reasons for this absence of a general advisory function of the Tribunal. As regards this lacuna, one must agree enthusiastically with Judge Tullio Treves as he asserted in 1995: One may express regret that the power to request advisory opinions has not been given to other organizations which are entrusted with particular functions under the Convention. It seems questionable, for instance, that a United Nations Specialized Agency such as the International Maritime Organization, should be entitled to request the International Court of Justice of an advisory opinion on whether it is the “competent international organization” mentioned in various provisions of the Law of the Sea Convention, while, on such a question arising within the scope of its activities, and so intimately connected with the interpretation of the Convention, it cannot request the opinion of the International Tribunal of the Law of the Sea.9

The ITLOS, however, has decided to provide for a potential advisory jurisdiction arising from international agreements related to the purposes of UNCLOS that provide for the possibility of requesting advisory opinions from the Tribunal. This possibility is regulated in Article 138 of the Rules of the Tribunal in the following terms: 1. The Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.

9 Tullio Treves, “The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994,” ZaöRV 55 (1995): 421–451, at 427.

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2. A request for an advisory opinion shall be transmitted to the Tribunal by whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal. 3. The Tribunal shall apply mutatis mutandis Articles 130 to 137. Is the Tribunal creating a source of jurisdiction by itself ? Is this a valid method to expand its jurisdiction without the proper amendment of the articles of UNCLOS and the Statute? I believe that Article 138 should have been provided for in UNCLOS itself.10 As does Judge Treves, I regret that a general clause providing for the advisory jurisdiction of the Tribunal was not included in the provisions of UNCLOS.11 However, the provision on the expansion of the Tribunal’s advisory jurisdiction has been adopted, and the State Parties have not (as yet) protested its content, so I propose a thin, rather than a thick, interpretation of the article. This interpretation would suggest that the article is not really creating a new ground of jurisdiction (the thick variant), but just accepting that the jurisdiction of the Tribunal may be established pursuant to international agreements other than UNCLOS (the thin variant), when these agreements specifically provide for the capacity to request advisory opinions from the Tribunal.12 In that case, the Tribunal “may give an advisory opinion” according to Article 138 of the Rules. The possibility of this kind of consensual (advisory) jurisdiction is in harmony with the general freedom to choose a means of dispute settlement provided for in Article 280 of UNCLOS, and more specifically with Article 288(2) which refers to international agreements related to the purposes of UNCLOS as valid grounds for the jurisdiction of the Tribunal.13 That article also provides that the Kompetenz-Kompetenz rule applies, i.e., that “in the event of a dispute as to whether a. . . . tribunal has jurisdiction, the matter shall be settled by decision of

10 Article 65 of the Statute of the International Court of Justice adds the wording “may give,” which does not appear in Article 92 of the Charter of the United Nations, but this is not a problem because the latter does not establish a clear limit to the scope of the Court’s advisory jurisdiction, and, above all, because the Statute is an integral part of the Charter. See the commentary by J. Abr Frowein and K. Oellers-Frahm in Andreas Zimmerman, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (New York, 2006), 1411, para. 30. 11  See also T. Eitel, “The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994—Comment,” ZaöRV 55 (1995): 452–456 at 454 (suggesting that inside UNCLOS the Commission on the Limits of the Continental Shelf should have been given the capacity to request advisory opinions). 12 G. Eiriksson, The International Tribunal for the Law of the Sea (The Hague, 2000), 143–144. 13 Article 288(2) establishes that: “A court or tribunal referred to in Article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.”



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that. . . . tribunal.”14 Therefore, a tribunal is itself sovereign to decide whether it has jurisdiction or not in a specific case, and this authority would include, of course, the advisory jurisdiction of the ITLOS if an agreement related to the purposes of UNCLOS provides for such a jurisdiction. Nevertheless, if State parties complain about this mechanism and its legal foundations, issues of jurisdiction and most certainly issues of admissibility and judicial propriety may arise in a much more contentious manner.15 According to some interpretations,16 Article 188 of UNCLOS also establishes a sort of advisory jurisdiction, with the characteristic of having a binding effect. Let us recall that Article 188, among other things, provides for the submission, at the request of any party to the dispute, to binding commercial arbitration of disputes concerning the interpretation or application of a contract referred to in Article 187(c)(i). Such a commercial arbitral tribunal, however, “shall have no jurisdiction to decide any question of interpretation of th[e] Convention.” According to Article 188(2)(a), these kind of questions of interpretation shall be referred by the commercial arbitral tribunal “to the Seabed Disputes Chamber for a ruling.” Also, under Article 188(2)(b): If, at the commencement of or in the course of such arbitration, the arbitral tribunal determines, either at the request of any party to the dispute or proprio motu, that its decision depends upon a ruling of the Seabed Disputes Chamber, the arbitral tribunal shall refer such question to the Seabed Disputes Chamber for such ruling. The arbitral tribunal shall then proceed to render its award in conformity with the ruling of the Seabed Disputes Chamber.17

With all due respect to other views, it is my opinion that this provision resembles more a procedure of preliminary rulings, such as the one provided for in Article 267 of the Treaty of Functioning of the European Union,18 than it does a mere advisory procedure.19 Indeed, Article 188 (2)(a) and (b) establishes an exclusive right on the interpretation of UNCLOS and a means to secure the ruling of the Seabed Disputes Chamber deemed necessary for the decision of the

14 Article 288 (4) of UNCLOS. A similar power is provided for in Article 36(6) of the ICJ Statute. See commentary by C. Tomuschat in Andreas Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (New York, 2006), pp. 643–656. 15 See infra Part III. Let us think, for instance, of an international agreement of very few parties, with a specific provision providing for the capacity to request advisory opinions from the ITLOS. 16 I thank Judge Rüdiger Wolfrum for this suggestion, which he reaffirmed in a Guest Editorial of the ESIL Newsletter of February 2011, available at http://www.esil-sedi.eu/ english/February%202011%20Newsletter.pdf. 17 Article 123(1) of the Rules governs the proceedings of these kinds of rulings. 18 See, for example, D.W. Anderson and M. Demetriou, References to the European Court (London, 2002). 19 See G. Eiriksson, supra note 12, 202–203.

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c­ ommercial arbitral tribunal. In both cases the commercial arbitral tribunal is under the obligation to decide according to the interpretation or ruling of the Seabed Disputes Chamber. I will now turn to the analysis of the main issues of jurisdiction, admissibility and procedure in the context of the advisory function of the Seabed Disputes Chamber. Issues of Advisory Jurisdiction and Admissibility Capacity to Request Advisory Opinions of the Seabed Disputes Chamber and Its Validity UNCLOS vests authority to request advisory opinions of the Seabed Disputes Chamber in the Council and the Assembly of the International Seabed Authority in two different circumstances. Article 159 of UNCLOS, which concerns the composition, procedure and voting of the Assembly, gives such authorization to the Assembly in a very specific situation. Indeed, Article 159(10) gives the Assembly the capacity to request an advisory opinion of the Court “on the conformity with th[e] Convention of a proposal before the Assembly on any matter.” In order to ask for such advisory opinion, a written request must be addressed to the President of the Assembly and should have the support of at least one fourth of the members of the Assembly. As the Virginia Commentary underscores, “it is clear. . . . that there must be a proposal before the Assembly prior to the making of a request to the President for an advisory opinion.”20 The intervention of the Seabed Disputes Chamber defers a vote on the proposal that is the object of the legal question posed to the Chamber pending the receipt of the advisory opinion. For Churchill and Lowe “the intention here is to offer a means of testing the constitutionality of proposed action, rather than challenging an exercise of the Authority’s powers after the fact, by which time the challenge may be too late to be effective.”21 This is a constitutional interpretation22 function of the Seabed Disputes Chambers exercised through its advisory function and openly accepted by UNCLOS. Unlike Article 159(10), which is “limited to one specific instance,”23 Article 191 contains a general authorization to the Assembly and the Council to request

20 M.H. Nordquist, S.N. Nandan, S. Rosenne and M.W. Lodge (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary Vol. VI (Dordrecht/Boston, 2002), 386. 21  R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edition (Huntington, NY, 1999), 246. 22 See infra Part V, Conclusions. 23 United Nations Convention on the Law of the Sea 1982: A Commentary, supra note 20, 644.



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advisory opinions of the Seabed Disputes Chamber. This permission does not need further commentary, except perhaps to make clear the position of States in these circumstances. As signalled by some States in their interventions in the oral proceedings of the case concerning the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, “Article 191 of the Convention was never meant to provide a mechanism for individual States Parties to seek a legal opinion.”24 Of course, States are formally but not substantively excluded from the requesting process, as States participate in the decision making of the Assembly and the Council, and they may express their views before the Seabed Disputes Chamber; they are also the end users of the opinion. One may recall here the idea that, when requesting advisory opinions, international organizations carry out an instrumental role25 for their benefit, but also for the benefit of States and of other international ­organizations. The validity of the requests for advisory opinions of the Seabed Dispute Chambers depends on the correctness of the decision-making, which has to be performed in accordance with the constitutional procedures. For example, if the general rule that governs the decision-making in the organs of the Authority is respected, that is, if the decisions are taken by consensus,26 the Seabed Dispute Chamber will normally have an easy task to decide whether a request for an advisory opinion is valid. This was clearly the case of the request for an advisory opinion in the case concerning the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, which was requested by the Council by a decision adopted by consensus,27 as the Seabed Disputes Chamber recognised in its advisory opinion.28 The issue could be a bit more complicated if there are formal objections to the adoption of a decision and consensus is impossible to achieve; the decision

24 Oral statement of the representative of the United Kingdom, September 16, 2010, verbatim records, ITLOS/PV.2010/3/Rev.1, available at http://www.itlos.org (citing words of a Canadian delegate to the Council). The issue was very controversial in the advisory opinion of the International Court of Justice concerning the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Reports 2010, available at http://www.icj-cij.org; see my “El Discreto Ejercicio de la Función Consultiva de la Corte Internacional de Justicia en el asunto Kosovo,” Revista Española de Derecho Internacional 1 (2011), 125–147. 25 Benvenuti, L’accertamento del Diritto Mediante i Parere Consultivi della Corte Internazionale di Giustizia (1985), 113 ff. 26 Section 3, paragraph 2, of the 1994 Agreement (Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea of December 10, 1982. 27 Press Release SB/16/19. 28 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1, para. 36 (“The Chamber thus concludes that there is a valid request by the Council”).

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may have to be taken by majority action under the rules of UNCLOS, and then the Seabed Dispute Chamber may need to investigate the validity of the method of decision-making employed by the requesting organ. In any case, at the stage of considering its jurisdiction to give an advisory opinion, the Seabed Disputes Chamber will only have to check the formal correctness of the decision-making process, and not the origin or motivation behind the decision-issues that may affect the admissibility of the case. Substantive Limits to the Capacity to Request Advisory Opinions The Scope of the Activities of the Assembly or the Council The authorization given by UNCLOS under Article 191 to the Assembly and the Council to request advisory opinions of the Seabed Disputes Chamber is not unlimited. The matter of the questions posed to the Chamber should arise “within the scope of their activities.” The Chamber will have to determine case by case if this requirement is complied with by the Assembly and the Council. For example, in the request of the Council of May 6, 2010 this requirement was fulfilled as the substance of the questions that the Chamber had to deal with fell within the scope of the general powers and functions of the Council as defined in UNCLOS and the 1994 Agreement. Indeed, the Seabed Disputes Chamber, after a brief examination of the provisions of UNCLOS and of the 1994 Agreement defining the powers of the Council, concluded that “that the legal questions before it fall within the scope of the activities of the Council, since they relate to the exercise of its powers and functions, including its power to approve plans of work.”29 The advisory jurisprudence of the International Court of Justice has an interesting example of this kind of scrutiny. Although the Court has historically had a very broad interpretation of the scope of activities requirement,30 the Court did not answer the request of the World Health Organization concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict 31 on the basis that only the General Assembly and the Security Council can ask for opinions with respect to general legal questions.32 In this case, however, the General Assembly intervened independently, requesting an advisory opinion from the Court on

29 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1, para. 44. 30 See Application for Review of Judgment Number 158, ICJ Reports 1973, 175, para. 23. 31 The request was presented to the Secretary of the Court on September 3, 1993, and was based on the Assembly Resolution of the World Health Organization approved on May 14, 1993. 32 See S. Oda, “The International Court of Justice Viewed from the Bench (1976–1993),” 244 Rec. des Cours 9 (1993–VII), at 98.



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this very issue,33 such that the denial of the request from the WHO based on the mentioned restriction did not, in the end, have a major effect on the Court’s participation.34 Legal Questions Article 191 authorizes the Assembly and the Council of the International Seabed Authority to request advisory opinions from the Seabed Disputes Chamber on “legal questions.” The wording is similar to that of Article 65 of the ICJ Statute, which uses the expression “any legal question,” therefore, I will use the case-law of the ICJ to make a few points about this issue. The ICJ has openly accepted that the legal nature of the question is a limit to its advisory jurisdiction. For instance, in the Certain Expenses of the United Nations case, the Court stated that “[i]f a question is not a legal one, the Court has no discretion in the matter.”35 Of course, this begs the question of what is the meaning of “legal question.” In theory, one may choose from several restrictive and expansive options to define this expression. The broadest alternative may be the definition given by Charles de Visscher: “Il s’agit de toute question susceptible de recevoir une réponse fondée en droit.”36 This is the generous definition adopted by the Court itself. Indeed, the Court has affirmed that the expression “any legal issue” should not be interpreted restrictively,37 and has gone as far in the Western Sahara case as adopting the words (translated to English) of de ­Visscher’s definition, in which it said that legal issues for the Court are those which “by their very nature are susceptible to a response based in Law.”38 The Seabed Disputes Chamber referred to this decision by the International Court of Justice, and quoted the Court’s most recent advisory opinion on Kosovo: “­questions ‘framed

33 Resolution AGNU 49/699, December 15, 1994. On this subject, see N. Rostow, “The World Health Organization, the International Court of Justice, and Nuclear Weapons,” Yale Journal of International Law 20 (1995): 151. 34 Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 66. 35 ICJ Reports 1962, 155. This line was quoted by Judge Gros in his Declaration annexed to the Western Sahara case, ICJ Reports 1975, 77, and was also quoted by Judge De Castro in his separate opinion in the same advisory opinion, ibid., 138. 36 Charles De Visscher, Théories et réalités en droit international public, 4th edition (Paris, 1970), 401. 37 In the Western Sahara case, after citing various statements in different contexts, the Court said that they indicated that the references to “any legal question” in the Charter and the Statute should not be interpreted restrictively (ICJ Reports 1975, 20). But see the Declaration of Judge Gros in the same case, p 69 et. seq., and his dissenting opinion in ICJ Reports 1973, pp. 256–57, especially paragraph 14. 38 Western Sahara case, ICJ Reports 1975, 18.

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in terms of law and rais[ing] problems of international law. . . . are by their very nature susceptible of a reply based on law.’ ”39 This broad definition provides a sort of presumption that all kinds of questions may be deemed as having a legal character. Therefore, the objections based on the argument that the questions are factual, political or abstract have always been rejected by the Court. Not even the existence of pending controversies related to a question submitted to the Court’s advisory jurisdiction has been an obstacle to the Court’s jurisdiction, as shown in several cases such as Interpretation of the Peace Treaties with Bulgaria, Hungary, and Romania;40 Reservations to the Convention for the Prevention and Repression of Genocide;41 and Western Sahara.42 The determination that the question is related to disputes actually pending between states trigger the application of more strict rules of procedure. This is the policy adopted also by Article 130(2) of the Rules of the ITLOS: The Chamber shall consider whether the request for an advisory opinion relates to a legal question pending between two or more parties. When the Chamber so determines, Article 17 of the Statute (judges ad hoc) applies, as well as the provisions of these Rules concerning the application of that article.

The three questions posed by the Council in the request for the advisory opinion decided by the Seabed Disputes Chamber were clearly legal questions, and that was indeed the view of the Chamber.43 They might well be described as abstract questions. In a study of the advisory jurisdiction of the International Court of Justice, I have said that the Court faces a sort of crossroads in presence of the dichotomy between abstract and concrete issues. Indeed, “if the Court adheres to a certain position of a specific nature, by responding to the question presented for its opinion, the Court will most likely concurrently be resolving a controversy; whereas if an opinion were very detached from the factual reality, it would be, very possibly, useless.”44 In any case, there were no major objections from the participant States and Organizations to the way in which the questions submitted to the Seabed Disputes Chamber in the case concerning the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area were framed by the Council. We will have to wait until the next requests to learn more about the exact position of the Chamber about the limits of its definition of the expression “legal question.” 39 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, supra note 24, para. 25. 40 ICJ Reports 1950, 65. 41  ICJ Reports 1951, 15. 42 ICJ Reports 1975, 12. 43 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1, para. 40. 44 C. Espósito, La jurisdicción consultiva de la Corte Internacional de Justicia (Madrid, 1996), 89.



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On Admissibility, Discretion and Judicial Propriety The wording of Article 191 of UNCLOS differs from that of article 65 of the Statute of the International Court of Justice in one particularly important modal verb. Indeed, while the Court “may” give an advisory opinion in accordance with Article 65 of the Statute, the Seabed Disputes Chamber “shall” give an advisory opinion in line with Article 191 of UNCLOS. For the authoritative Virginia Commentary, this article provides for an absolute duty to render an advisory opinion once the Chamber has established its jurisdiction on a case.45 The Court has established a prima facie obligation, given its status, as a principal organ of the United Nations, of responding to the requests for advisory ­opinions.46 This principle has an exception: the Court will not be willing to collaborate when compelling reasons require otherwise. The concept of compelling reasons permits, however, broad interpretations as well as restrictive ones. The case-law of the International Court of Justice (ICJ) offers a unitary approach47 that rejects the arguments against the convenience of responding to requests for advisory opinions. Thus, one can legitimately deduce the existence of a strong principle of institutional cooperation from this practice of the ICJ. Consequently, the ICJ may abstain from issuing an advisory opinion based on reasons of propriety and the need for an adequate legal procedure, and that explains the endorsement by the Court throughout its history of the well-founded, famous sentence written by the Permanent Court of International Justice in the Eastern Carelia advisory opinion: “[t]he Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a court.”48 This point of view is depicted precisely in the following words of George Abi-Saab: [T]he “discretionary power” of the Court thus comes down to no more than a wider margin of appreciation of the general considerations of admissibility. . . . of requests for advisory opinions, considerations whose default would mean that answering the question would be incompatible with the judicial function and not merely “inopportune” or “inconvenient” for the Court or for any other instance, and would thus constitute one of those “compelling reasons” which alone “should lead [the Court] to refuse to give the requested opinion.”49

45 United Nations Convention on the Law of the Sea 1982: A Commentary, supra note 20, 644 (“in the case of the International Court of Justice, the power to give advisory opinions is discretionary, whereas in the case of the Chamber, the duty is absolute”). 46 See Espósito, supra note 44, Chapter 4, Part 5. 47 In my view, the Eastern Carelia case [PCIJ, Ser. B, no. 5 (1923)] is not really an exception. 48 PCIJ, Ser. B, no. 5 (1923), 29. This statement has been cited with approval in numerous advisory opinions, including the last opinion of the International Court of Justice on the Accordance with International Law of the Declaration of Independence in Respect of Kosovo, supra note 24, para. 29. 49 G. Abi-Saab, “On Discretion: Reflections on the Nature of the Consultative Function of the International Court of Justice,” in L. Boisson de Chazournes and Sands (eds.),

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In its advisory opinion in 2010 on Kosovo, the ICJ reaffirmed its discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met.50 The Seabed Dispute Chamber did not find necessary to pronounce itself on whether it has a discretionary power to decline to give advisory opinions under Article 191 of UNCLOS. The Chamber stated: While noting the difference between the wording of Article 191 of the Convention and Article 65 of the Statute of the ICJ, the Chamber does not consider it necessary to pronounce on the consequences of that difference with respect to admissibility in the present case.51

The Seabed Dispute Chamber might need to decide in the future whether there is space to exercise a margin of discretion in advisory cases where judicial propriety is at stake. I believe that the modal verb “shall” in Article 191 of UNCLOS should not be seen as an absolute barrier to taking seriously the presence of compelling reasons that could affect the judicial integrity of the Chamber—and, therefore, force it to depart from the essential rules guiding its activity as a court of justice when deciding whether to render an advisory opinion. IV. Basic Rules and Principles of the Advisory Procedure The advisory procedure of the Seabed Disputes Chamber is governed by the rules established in Articles 130 to 137 of the Rules. The Chamber should also “be guided, to the extent to which it recognizes them to be applicable, by the provisions of the Statute and of these Rules applicable in contentious cases.”52 Of course, the Resolution on the Internal Judicial Practice of the Tribunal applies also to the advisory proceedings.53 International Law, the International Court of Justice and Nuclear Weapons (Cambridge, 1999), 45. See also R. Kolb, “De la Prétendue Discretion de la Cour International de Justice de Refuser de Donner un Avis Consultatif,” in The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab, (The Hague, 2001), 609–627. 50 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, supra note 24, para. 29. But see the separate opinion of Judge Cançado Trindade, suggesting that the Court should take a procedural approach to this issue, and give up this “alleged” discretionary power, which in his view is not compatible with the function of the Court as a judicial organ (paras. 13–34). For a discussion of these thesis see Espósito, “El Discreto Ejercicio de la Función Consultiva de la Corte Internacional de Justicia en el asunto Kosovo,” supra note 24. 51 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, supra note 1, para. 48. 52 Article 130(1) of the Rules. See also article 40(2) of the ITLOS Statute. 53 Article 12 of the Resolution on the Internal Judicial Practice of the Tribunal: “The foregoing provisions apply whether the proceedings before the Tribunal are contentious or advisory.”



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If the Chamber considers that the request for an advisory opinion relates to a legal question pending between two or more parties, judges ad hoc should be appointed in accordance with Article 17 of the Statute as well as the provisions of the Rules concerning the application of that article.54 The advisory procedure begins when a duly authorized organ under Article 191 or 159(10) of UNCLOS presents a request for an advisory opinion from the Seabed Disputes Chamber. The request shall be in writing and “shall contain a precise statement of the question.”55 Along with the request, “all documents likely to throw light upon the question”56 should be included. Urgency is provided for in Article 191 of UNCLOS. However, article 132 of the Rules also provides that the requesting organ can inform the Chamber that its request for an advisory opinion requires an urgent answer. If this is the case, the Chamber “shall take all appropriate steps to accelerate the procedure.” Once the request has reached the Tribunal, the Registrar should include the question in the General List of cases and notify the receipt of the request to all States parties57 of UNCLOS. International organizations which are likely to be able to furnish information on the question shall also be notified by the ­Registrar.58 In the case concerning the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, the President of the Chamber decided that “the Authority and the organizations invited as intergovernmental organizations to participate as observers in the Assembly of the Authority were considered likely to be able to furnish information on the questions submitted to the Chamber for an advisory opinion.”59 An interesting decision in this case was taken by the Chamber regarding the petition of two well-known non-governmental organizations, Greenpeace International and World Wide Fund for Nature, which asked permission to present written statements and intervene as amici curia. The Chamber decided not to grant the request, but did publish the documents although not as part of the case.60 Normally, the procedure is divided into a written phase61 and an oral phase.62 The periods in which to present written arguments and the date of hearings are

54 Article 130(2) of the Rules. 55 Article 131(1) of the Rules. 56 Article 131(2) of the Rules. 57 Article 133(1) of the Rules. 58 Article 133(2) of the Rules. 59 Order of the President of the Chamber, dated May 18, 2010, adopted pursuant to Article 133, paragraph 2 of the Rules, referred to in the advisory opinion of the Seabed Disputes Chamber, supra note 1, para. 7. Written statements were received by twelve State Parties, the Authority, the United Nations Environment Programme, the Interoceanmetal Joint Organization and the International Union for Conservation of Nature and Natural Resources. 60 This decision of the Chamber was clearly guided by Practice Direction XII of the ICJ. 61  Article 133(3) of the Rules. 62 Article 133(4) of the Rules.

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established by the President of the Chamber. The States and international organizations which have presented written or oral statements will have a right to argue with respect to those made by other States or international organizations; for these purposes, notice of the statements shall be given to States parties and international organizations.63 The advisory opinion, which should meet the requirements established in Article 135 of the Rules, is read at a public sitting of the Court. According to Article 137, the Registrar “shall inform the Secretary-General of the Authority as to the date and the time fixed for the public sitting to be held for the reading of the opinion.” The Registrar is also under the obligation to “inform the States Parties and the intergovernmental organizations immediately concerned.” The Seabed Disputes Chamber is a judicial organ, and as such it should respect certain fundamental legal principles of judicial procedure.64 Although there are doubts as the exact content of a “judicial procedure,” one can say that the expression “has the character of a legal concept independent of particular rules of law applicable to it.”65 With regard to what the concept entails, it is necessary to point out that the respect for certain general principles of procedural law is inseparable from its definition: the principle of equality of the parties, assuring the existence of guarantees so that the deciding organ will have the adequate and sufficient information to reach a just solution; the principle of contradiction; the impartial nature of the court; the principle of publicity; and the right to obtain a reasoned decision.66 These principles constitute the unavoidable bases of the structure of the judicial procedure. Therefore, without ignoring that the full effect and sense of these principles takes place in the context of a contentious procedure, the advisory procedure must adopt as many guarantees as possible to avoid any injustice that may arise within the advisory jurisdiction.67 The result of the absorption of guarantees will be the assimilation, to a greater or lesser degree, of the contentious and advisory procedures; this process will be more intense when a pending dispute between States is behind the legal question presented to the Court. The effects of this assimilation not only are beneficial in certain cases, but also at times become necessary for the proper exercise of justice.

63 Article 133(3) of the Rules. 64 See, e.g., V. Coussirat-Coustere and P-M. Eisemann, “La procédure devant les jurisdictions internationales permanentes,” in Sociéte Française de Droit International, Colloque de Lyon, La Jurisdiction Internationale Permanente (Paris, 1987), 106. 65 B. Cheng, General Principles of Law as applied by International Courts and Tribunals (Cambridge, 1953; reprinting 1987), 258. 66 See Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, ICJ Reports 1982, 325, at para. 92 (where the Court gives a list of principles concerning the due process of law). 67 Benvenuti, supra note 25, 244.



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Conclusions Judge Fitzmaurice, referring to the advisory jurisdiction of the International Court of Justice, famously asserted in 1952 that “advisory opinions, though not binding, nevertheless have authority as statements of law.”68 The assertion is certainly valid for the advisory opinions of the Seabed Disputes Chamber. Indeed, the advisory function is a judicial function that allows the Chamber to render authoritative advisory opinions. The authoritative character of advisory opinions arises both from the respectability of the organ from which they originate and from the manner in which the opinions are made. The advisory function of the Chamber, which has started with a robust unanimous advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, will certainly be valued as an important contribution both to the prevention of conflicts and to the determination and development of international law. It may also serve to help with the resolution of institutional international conflicts and, to a lesser but important degree, resolution of quasi-contentious conflicts.

68 G. Fitzmaurice, “The Law and Procedure of the ICJ,” British Yearbook of International Law 29 (1952): 54.

Six

Two Aspects of ITLOS Proceedings: Non-State Parties and Costs of Bringing Claims Philippe Gautier

This paper addresses two questions regarding proceedings before the International Tribunal for the Law of the Sea (ITLOS or the “Tribunal”): the status of non-State entities in proceedings before the Tribunal, and the costs incurred by parties in cases before the Tribunal. Non-State Entities in Proceedings before the Tribunal In considering the role of non-State entities in proceedings before the Tribunal, a distinction should be drawn between two situations: participation by non-State entities as parties to cases before the Tribunal, and other forms of participation by non-State entities in legal proceedings. Non-State Entities as Parties to Cases Before the Tribunal States Parties to the United Nations Convention on the Law of the Sea (UNCLOS) The Convention was adopted in 1982, at a time when participation in the international community was no longer limited to States. In addition to States, non-State entities may become parties to UNCLOS and, to that extent, the expression “States Parties” refers to them. Indeed, pursuant to Article 305,1 UNCLOS is open not

1 See Article 1, paragraph 2, of UNCLOS: 2.(1)‘States Parties’ means States which have consented to be bound by this Convention and for which this Convention is in force. (2)This Convention applies mutatis mutandis to the entities referred to in Article 305, paragraph l(b), (c), (d), (e) and (f ), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent ‘States Parties’ refers to those entities.

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only to States but also to some territories2 and self- governing associated States,3 as well as to international organizations exercising competences—including the competence to enter into treaties—in matters governed by UNCLOS. Thus far, the only international organization to have acceded to UNCLOS and thereby become a “State Party” to it is the European Union (EU) and in this respect it may be observed that the EU was party in one case submitted to an ad hoc chamber of the Tribunal (Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean [Chile/European Union]). With respect to the procedure applicable to international organizations in proceedings before the Tribunal, two features bear mentioning: • Pursuant to Article 57, paragraph 2, of the Rules of the Tribunal, in a dispute involving an international organization, the international organization may be requested by the Tribunal to provide clarification as to which entity or entities (the international organization or its member States) is competent with respect to any specific question arising within the context of the dispute. The proceedings before the Tribunal may be suspended until such information is received.4 • Article 22 of the Rules relates to the designation of a judge ad hoc in contentious cases involving non-State entities before the Tribunal. As regards international organizations, under this provision a judge having the nationality of a member State of the international organization is deemed to possess the “nationality” of the international organization. In the case of the EU, the operation of this rule might result in more than one judge having the nationality of this international organization. This situation is specifically addressed in Article 22, paragraph 4, of the Rules, which provides that “[w]here two or more judges on the bench are nationals of member States of the international organization concerned or of the sponsoring States of a party, the President may, after consulting the parties, request one or more of such judges to withdraw from the bench.”

2 Examples include: Palau (before its admission to the United Nations in 1994 and its accession to UNCLOS as a State in 2008), Marshall Islands (before its admission to the United Nations in 1991 and its accession to UNCLOS as a State in 1991) and the Federated State of Micronesia (before its admission to the United Nations in 1991 and its accession to UNCLOS as a State in 1991). 3 See the situation of the Cook Islands—State associated with New Zealand—which ratified the Convention in 1995. 4 “In a dispute to which an international organization is a party, the Tribunal may, at the request of any other party or proprio motu, request the international organization to provide, within a reasonable time, information as to which, as between the organization and its member States, has competence in respect of any specific question which has arisen. If the Tribunal considers it necessary, it may suspend the proceedings until it receives such information.”



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Non States Parties (Article 20, (2)) Article 20, paragraph 2,5 of the Statute of the Tribunal clearly establishes the possibility for entities other than States Parties to have access to the Tribunal in the two situations described: “in any case expressly provided for in Part XI” and “in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case.” (i) “. . . . in any case expressly provided for in Part XI” Activities relating to the exploration and exploitation of the Area, regulated by Part XI of UNCLOS, may be conducted by entities other than States and to that extent those entities may, in case of disputes, have access to the Seabed Disputes Chamber of the Tribunal. Article 187 of UNCLOS enumerates the different categories of disputes, and entities, which may be submitted to, and appear before, the Chamber. In addition to “States Parties” to UNCLOS, the Chamber is thus available to the International Seabed Authority, the Enterprise,6 state enterprises and natural or juridical persons which are parties to a contract. One entity is probably appropriately termed as missing from the list in Article 187. Indeed, the provision does not refer to the possibility for an international organization which is not party to UNCLOS—other than the Authority—to conduct activities in the Area. The case is not hypothetical since one of the contractors which have been granted contracts of exploration by the Authority is Interoceanmetal Joint Organization, an entity set up by five countries.7 5 “Article 20—Access to the Tribunal 1.  The Tribunal shall be open to States Parties. 2. The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case.” Incidentally, it may be noted that this provision differs from the one included in the Statute of the International Court of Justice (ICJ). See in this respect Article 35 of the ICJ Statute: 1.  The Court shall be open to the states parties to the present Statute. 2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court. 3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court. 6 The provisions of UNCLOS relating to the role of the Enterprise have to be read together with the provisions of the 1994 implementation Agreement and in particular section 2 (entitled “The Enterprise”) of its Annex. 7 Bulgaria, Cuba, the Czech Republic, Poland, the Russian Federation and Slovakia. In this respect, see information contained in documents ISBA/4/1/Rev.2 of 3 September

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In the case of Interoceanmetal Joint Organization, however, another view could be taken viz. that this entity should not be characterized as an international organization but rather as a state enterprise jointly established by several States. Alternatively, it could also be maintained that, pursuant to Article 187, a legal action in a dispute involving an international organization—other than an organization party to UNCLOS or the Authority—would be left to the member States of the organization concerned. The Rules of the Tribunal also contain specific provisions applicable to disputes involving natural and juridical persons before the Seabed Disputes Chamber of the Tribunal. Pursuant to Article 22 of the Rules, such an entity is entitled to designate a judge ad hoc and, in this case, the determination of the “nationality” of the entity concerned is based on the “nationality of the sponsoring State of such natural or juridical person or state enterprise” (Rules, Article 22, paragraph 2). Another procedural feature of interest is the right of the sponsoring State of an entity conducting activities in the Area to participate in proceedings involving that sponsored entity.8 In some instances, the sponsoring State is under an obligation to appear in proceedings instituted by the sponsored entity. This is so when the respondent is a State Party and requests that the sponsoring State “appear in the proceedings on behalf of the applicant.”9 (ii) “. . . . any other agreement conferring jurisdiction on the Tribunal. . . . ” In addition to cases provided for in Part XI of UNCLOS, Article 20, paragraph 2, of the Statute specifies that the Tribunal is open to entities other than States Parties in cases “submitted pursuant to any other agreement conferring jurisdiction on the Tribunal. . . . ” It may first be observed that the provision refers to “any other agreements,” not to “international agreements,” as Article 288 of UNCLOS does. Article 288 of UNCLOS deals in general with the competence granted to any court or tribunal referred to in Article 287 (the Tribunal, the ICJ and arbitral tribunals), while Article 20 has been drafted specifically to cover the situation of the Tribunal. Therefore it may be asked whether the terms contained in Article 20, paragraph 2, could encompass agreements involving subjects of municipal law: for example, an agreement between a State and a private entity—a classification society or an NGO—or even an agreement between two private entities. The question has 1998 and ISBA/T/C/A of 22 June 2001 (items No. 28 and No. 27 in the dossier submitted by the Authority to the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea in the context of Case No. 17 (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]); dossier available on the website of the Tribunal. 8 See Article 190 of UNCLOS, further elaborated by Article 119 of the Rules of the ­Tribunal. 9 See Article 119, paragraph 2, of the Rules of the Tribunal.



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been raised in the legal literature10 but the Tribunal has not yet been requested to decide the point. That said, the expression “any other agreement conferring jurisdiction on the Tribunal” may certainly include international agreements—bilateral or multilateral—concluded by subjects of international law. Such agreements, which should include a dispute-settlement clause conferring jurisdiction on the Tribunal, may be binding upon States or international organizations which are not parties to UNCLOS. In this connection, a non-State entity could have access to the Tribunal. Here, however, the non-State entity—with the exception of the Authority or an international organization which is party to UNCLOS—would have to contribute towards the expenses of the Tribunal, in accordance with Article 19 of the Statute. In light of Article 21 of the Statute, it may be added that an agreement conferring jurisdiction on the Tribunal—for example, an agreement between an international organization and a State—need not necessarily be limited to conferring jurisdiction on the Tribunal in contentious cases but could also provide for the submission to the Tribunal of a request for an advisory opinion. Article 2111 states that the jurisdiction of the Tribunal comprises inter alia “. . . . all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.’’ The use in this provision of the term “all matters,” in particular when compared with the terms “all disputes” and “all applications” also found in the same provision, indicates that the Tribunal is not only competent to deal with disputes (“contentious proceedings”), but may also handle other “matters” submitted to it on the basis of an agreement, including a request for an advisory opinion. Pursuant to Article 138 of the Rules, this requires, however, that the agreement clearly provide “for the submission to the Tribunal of a request for such an opinion.”12 The importance of advisory proceedings available before the Tribunal should not be underestimated. For example, by means of such a mechanism, entities that are not parties to UNCLOS may be able to gain access to the Tribunal in order to bring before it legal questions arising within the scope of their activities. Reference could be made in this respect to the Commission on the Limits of the Continental Shelf (CLCS). The CLCS could then suggest that a request for an advisory opinion on a particular legal question be submitted to the Tribunal by the States Parties. This would require an agreement among the States Parties, which

10 See e.g. T. Mensah, “The Jurisdiction of the International Tribunal for the Law of the Sea,” RabelsZ Bd 63 (1999): 330–341; “International Tribunal for the Law of the Sea and the Private Maritime Sector,” International Business Lawyer 27 (1999): 319 and ff. 11  “The 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.” 12 Article 138, paragraph 1, of the Rules of the Tribunal.

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could be reached during a Meeting of the States Parties, the joint consent of the States Parties being recorded in a decision of the Meeting of States Parties. An additional comment pertains to the right of intervention. Pursuant to Article 32, paragraphs 2 and 3, of the Statute,13 whenever a dispute involves the interpretation or application of an agreement conferring jurisdiction on the Tribunal, all parties to this agreement have the right to intervene in these proceedings. This right of intervention does not appear to be limited to the States Parties to UNCLOS. If a non-State Party—and this may include a non-State entity—avails itself of this right of intervention, it will be bound by the interpretation given by the Tribunal. In other words, as regards the binding force of the decision, it will be in a position similar to that of a party to the dispute, with respect to the subject matter of its intervention. Other Forms of Participation in Proceedings Before the Tribunal The fact that non-State entities are not parties to cases submitted to the Tribunal does not prevent them from participating in other ways in proceedings before the Tribunal. Both in contentious proceedings (Rules, Article 84) and in advisory proceedings (Rules, Article 133), the Rules of the Tribunal contemplate the possibility for an international organization to participate in proceedings. In contentious proceedings, the Tribunal may “request an appropriate intergovernmental organization to furnish information relevant to a case before it” (Rules, Article 84, paragraph 1) and the intergovernmental organization concerned may also take the initiative of submitting information relevant to the case (Rules, Article 84, paragraph 2). In addition, “[w]henever the construction of the constituent instrument of such an intergovernmental organization or of an international convention adopted thereunder is in question in a case before the Tribunal,” the organization is informed by the Registrar and may submit observations on the matter (Rules, Article 84, paragraph 3). In advisory proceedings before the Seabed Disputes Chamber,14 Article 133, paragraph 2, of the Rules prescribes that the Chamber “shall identify the 13 “Article 32—Right to intervene in cases of interpretation or application  1.  Whenever the interpretation or application of this Convention is in question, the Registrar shall notify all States Parties forthwith.  2. Whenever pursuant to Article 21 or 22 of this Annex the interpretation or application of an international agreement is in question, the Registrar shall notify all the parties to the agreement.  3. Every party referred to in paragraphs 1 and 2 has the right to intervene in the proceedings; if it uses this right, the interpretation given by the judgment will be equally binding upon it.” 14 The same rules apply mutatis mutandis to advisory proceedings before the Tribunal pursuant to Article 138, paragraph 3, of the Rules of the Tribunal: “The Tribunal shall apply mutatis mutandis Articles 130 to 137.”



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i­ ntergovernmental organizations which are likely to be able to furnish information on the question [and] [t]he Registrar shall give notice of the request to such organizations.” These organizations will “be invited to present written statements on the question within a time-limit fixed by the Chamber” (paragraph 3) and such “statements shall be communicated to States Parties and organizations which have made written statements” (paragraph 3). A second round of written statements may take place if so decided by the Chamber. Article 133, paragraph 3, of the Rules specifies that “the Chamber may fix a further time-limit within which such States Parties and organizations may present written statements on the statements made.”15 In addition, whenever the Chamber decides to hold oral proceedings, States Parties and the organizations identified by the Chamber under Article 133, paragraph 2, “shall be invited to make oral statements at the proceedings.” The provisions of Article 133 of the Rules were applied for the first time in Case No. 17 brought before the Seabed Disputes Chamber by the Authority (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)). In his Order of May 18, 2010, pursuant to Article 133 of the Rules, the President of the Chamber decided that the Authority “and the organizations invited as intergovernmental organizations to participate as observers in the Assembly of the Authority are considered likely to be able to furnish information on the questions submitted to the Seabed Disputes Chamber for an advisory opinion.” Accordingly, 29 organizations were invited to participate in the written and oral proceedings. In addition to the Authority, the following organizations took part: (a) Interoceanmetal Joint Organization (in the written proceedings) (b) International Union for Conservation of Nature and Natural Resources (in the written and oral proceedings) (c) Intergovernmental Oceanographic Commission (IOC) of UNESCO (in the oral proceedings) (d) United Nations Environment Programme (UNEP).16

15 It may be pointed out that, in the advisory proceedings before the Seabed Disputes Chamber, the Chamber did not avail itself of the possibility, under Article 133 of the Rules, of conducting a second round of written pleadings. The need to give the advisory opinion “as a matter of urgency,” as required by Article 191 of UNCLOS, may be one reason for the Chamber’s policy decision on this procedural matter. 16 UNEP’s written statement was submitted after the expiry of the time-limit for the submission of written statements. It was nevertheless decided to include the statement in the case file (See paragraph 16 of the Advisory Opinion of 1 February 2011 [available on the Tribunal’s website]).

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As stated above, the invitation to participate in the proceedings was extended to those organizations which have been invited, as intergovernmental organizations, to participate as observers in the Assembly of the Authority. The status of “international organization”17—or “intergovernmental organization” as referred to in Article 133 of the Rules—is probably open to discussion as regards two of these institutions: UNEP and IUCN. While UNEP possesses some degree of autonomy and is sometimes described as a “quasi-autonomous body,”18 it remains a programme of the United Nations and, strictly speaking, does not have an international personality distinct from the United Nations. The IUCN on the other hand may be endowed to some extent with international legal personality in light of its observer status in the United Nations General Assembly, but it is an entity that is made up not only of subjects of international law but also includes as members, in addition to States, national public administrations and non-governmental organizations (NGOs). There are no provisions in the Rules which address the possibility for NGOs to participate in proceedings as amici curiae. That said, some options are available under the Rules as they now stand and it may be useful to enumerate them briefly: • It is possible for a party to proceedings to refer in its statement to information or documentation communicated by an NGO.19 Likewise, representatives of NGOs may be called as experts or witnesses by parties or by the Tribunal (Rules, Articles 72 and 77). For example, crew members of a ship conducting activities on behalf of an NGO may have witnessed incidents relevant to a case before the Tribunal; • In advisory proceedings, the question of participation by NGOs as amici curiae first arose in the context of cases before the ICJ. In this respect, it is worth

17 See the ILC’s Draft articles on the responsibility of international organizations (YILC, 2009, II, p. 20):  Article 2—Use of terms  For the purposes of the present draft articles,  (a) ‘International organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities. 18 See P. Szasz, “The Complexification of the United Nations System,” Max Planck Yearbook of United Nations Law 3 (1999): 3–16. 19 In the “Volga” Case, Australia submitted as an annex to its written pleadings the transcript of a radio interview entitled “The Toothfish Pirates,” in which a representative of an NGO took part (See Annex 5, pp. 77 and ff., to the Statement in Response of Australia, in ITLOS Pleadings, Minutes and Documents 2002, Vol. 10, “Volga” (Russian Federation v. Australia), Prompt Release, Nijhoff, 2009).



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noting that the Court issued Practice Direction XII20 in order to monitor the flow of information submitted to it by NGOs. According to this Direction, documents presented by NGOs are not part of the case file but are “treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements.” They are to be “placed in a designated location in the Peace Palace” where they may be consulted by States and intergovernmental organizations presenting written or oral statements in the case. • Before the Tribunal, the question of participation by NGOs in advisory proceedings arose in the context of case No. 17. On 17 August 2010, Greenpeace International and the World Wide Fund for Nature (WWF) submitted a statement together with a petition requesting permission to participate in the proceedings as amici curiae.21 The Chamber considered the petition on 10 September 2010 and decided not to grant the request.22 The statement of the two NGOs was not included in the case file since it had not been submitted under Article 133 of the Rules. It was, however, transmitted to the States Parties, the Authority and the intergovernmental organizations that had submitted written statements, and was posted in a separate section of the Tribunal’s website.23 In other words, the Chamber followed an approach similar to the ICJ’s while developing its own practice. The Chamber considered that a statement by NGOs did not form part of the case documentation. At the same time, it took the view that the document could be considered as a publication available in the public domain. Therefore those States and organizations which participated in the proceedings were informed of the filing of the statement and received a copy of it.

20 “Practice Direction XII   1.  Where an international non‑governmental organization submits a written statement and/or document in an advisory opinion case on its own initiative, such statement and/or document is not to be considered as part of the case file.   2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publications in the public domain.   3. Written statements and/or documents submitted by international non‑governmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute will be informed as to the location where statements and/or documents submitted by international non‑governmental organizations may be consulted.” 21  See 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), Advisory Opinion, 1 February 2011, paragraph 13. 22 Ibid., paragraph 14. 23 Ibid., paragraph 13.

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In addition, given the public character of the statement, it was posted on the Tribunal’s website. Costs of Proceedings before the Tribunal Expenses incurred with respect to the remuneration of Judges, to registry staff and to the functioning of the Tribunal are covered by the contributions of the States Parties to the budget of the Tribunal, in accordance with Article 19, paragraph 1, of the Statute. In addition, no administrative fee is charged by the Tribunal for the filing of a case or the use of its services and facilities. Therefore, whenever a State Party is party to a case before the Tribunal, the only expenses it has to bear are those for its counsel and advocates, together with the accommodation expenses in connection with their stay in Hamburg for the hearing. Expenses Incurred by Entities other than States Parties Accessibility to the Tribunal is not limited to States Parties. Entities other than States Parties may also submit cases to the Tribunal, as indicated by Article 20, paragraph 2, of its Statute. In this situation, Article 19, paragraph 2, of the Statute, however, stipulates: “When an entity other than a State Party or the Authority is a party to a case submitted to it, the Tribunal shall fix the amount which that party is to contribute towards the expenses of the Tribunal.” As regards the Authority, its contribution to the budget of the Tribunal is fixed by the Meeting of States Parties, pursuant to Article 19, paragraph 1, of the Statute. No contribution has yet been fixed and it is to be expected that this will remain the case until such time as revenue is derived from the exploitation of the Area. As for other entities, the Tribunal will have to determine “the amount which that party is to contribute towards the expenses of the Tribunal.” At this stage, it is difficult to predict the decision the Tribunal would take on this matter. Nevertheless, the range of possible approaches is fairly limited. Two basic options are foreseeable. The first would be to look to the annual contribution which would be payable were the State concerned to be party to UNCLOS. By way of illustration, on the basis of the current level of budgetary appropriations and scale of assessment, the annual contribution to the budget amounts to approximately to EUR 1000 for several developing States. Another option would be to calculate the amount of contribution to be paid by a non State Party on the basis of an estimate of the additional expenses incurred by the Tribunal in handling the case. Additional costs could then cover part of some administrative expenses (e.g. to cover the remuneration of temporary staff, such as translators and interpreters specifically recruited for the case) as well as the remuneration of a judge ad hoc24 chosen by the non State Party. It may be 24 The remuneration of a judge of the Tribunal is based on the remuneration of a judge of the ICJ. It is calculated on the basis of the number of days of meetings of the ­Tribunal,



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added that this second approach, based on the additional costs incurred in the case, is probably the only method available where the dispute involves a nonState entity. Costs of States Parties As noted above. States Parties are not required to pay any fee to have recourse to the Tribunal. They will nevertheless incur expenses in preparing the case, e.g. for lawyers’ fees and remuneration of experts, and in covering the cost of accommodation for their team’s stay in Hamburg during the hearings. One party to a dispute might perhaps consider that the other party should bear the costs of the proceedings, for example when the other party brought the case and failed to prevail on its claim. However, as regards costs, the principle set out in the Statute of the Tribunal is rather simple. Pursuant to Article 34 of the Statute, “[u]nless otherwise decided by the Tribunal, each party shall bear its own costs.” In this context, it is worth noting that Article 125 of the Rules, which lists the different elements that a judgment must contain, includes “the decision, if any, in regard to costs.”25 In the past, it has happened that one party has requested the Tribunal to decide that the other party should reimburse the costs it incurred on account of the case,26 but in these instances the Tribunal has seen no reason to depart from the principle set out in its Statute.

on the understanding that the maximum annual remuneration of a judge of the Tribunal cannot exceed the remuneration of a judge of the ICJ. In 2010, the annual remuneration of a judge of the ICJ amounted to US$166,596. 25 Article 125, paragraph 1(k). 26 See e.g. paragraphs 181 and 182 of the Judgment of 1 July 1999 in The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea): 181.  . . . . In the written pleadings and final submissions, each party has requested the Tribunal to award legal and other costs to it. In addition, in its final submissions in the proceedings on the Request for provisional measures, Guinea requested the Tribunal to award costs to it in respect of those proceedings. 182. The rule in respect of costs in proceedings before the Tribunal, as set out in Article 34 of its Statute, is that each party shall bear its own costs, unless the Tribunal decides otherwise. In the present case, the Tribunal sees no need to depart from the general rule that each party shall bear its own costs. Accordingly, with respect to both phases of the present proceedings, it decides that each party shall bear its own costs.” See also paragraphs 88 and 89 of the Order of December 3, 2001 in The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures; paragraphs 103 and 104 of the judgment of December 18, 2004 in The “Juno Trader” Case (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt Release; paragraphs 105 and 106 of the Order of 8 October 2003 in the Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures. In its Order of December 23, 2010, in The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), the

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Assessment of Costs In considering the overall cost of legal proceedings before a standing court such as the Tribunal, parties will undoubtedly compare it with costs incurred in arbitration. Definitive information is not readily available on this matter but useful guidance on the subject may be found in a paper published by the late Sir Arthur Watts.27 The author states: “. . . . no hard and fast figures can be given, although it is safe to say that pursuing a case to international litigation is likely to cost in the region of 5–10 million US dollars.”28 He explains that the total cost will depend on the complexity of the case (e.g. whether the case will involve preliminary ­objections to jurisdiction or admissibility, or incidental proceedings) and adds that the “major elements in the total financial bill” will usually include “the costs of the tribunal and its registry (principally the fees and expenses of the persons concerned, and the tribunal’s accommodation and support costs)” as well as “the fees of Counsel and of any specialist advisers. . . ., the charges of a law firm if it is decided to engage one. . . ., and the general overheads involved in the running of what is a substantial enterprise over a number of years.”29 It should also be noted however that institutions providing services for arbitral tribunals usually levy a registration fee30 and an administrative fee31 for the cases they handle. As is evident, the absence of any fee for the use of the Tribunal and the fact that the budget of the Tribunal covers expenses relating to the remuneration of judges and members of the Registry are elements which should contribute in the eyes of those advising States in international litigation to the attractiveness of the Tribunal as a forum for dispute settlement. In fact, the issue of cost is frequently addressed in contacts between the Registry and representatives of States. This shows that this factor is given careful consideration—and rightly so—when a State is contemplating the institution of international proceedings.

Tribunal did not take a decision on the matter but has reserved it for consideration in its final decision on the merits (see paragraphs 81, 82 and 83 of the Order). 27 Sir Arthur Watts, “Preparation for International Litigation,” in Tafsir Malick Ndiaye and Rüdiger Wolfrum, (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Leiden and Boston, 2007), 327–340. 28 Ibid., p. 338. 29 Ibid., pp. 338–339. 30 For example, in the case of ICSID, according to the “Schedule of Fees” (January 1, 2008) issued by the Centre and available on its website, a non-refundable fee of US$25,000 “is payable to the Centre by the party requesting the institution of conciliation or arbitration proceedings under the Convention.” 31 In ICSID’s case, an administrative charge of US$20,000 is made by the Centre following the constitution of the Conciliation Commission, Arbitral Tribunal or ad hoc Committee concerned and on an annual basis thereafter (see ibid.).



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ITLOS Trust Fund Pursuant to General Assembly resolution 55/7 (2000), a voluntary trust fund has been established by the Secretary-General to assist States Parties to UNCLOS, in particular developing States, which are parties to a case before the Tribunal. The fund is maintained by the Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs of the United Nations (DOALOS). According to information provided by DOALOS, contributions to the trust fund were made by the Governments of the United Kingdom and Finland, and financial statements of the trust fund showed a balance of approximately $150,000 at the end of 2010. So far one request has been submitted to the fund, by Guinea Bissau in respect of expenses incurred in connection with the “Juno Trader” Case. The terms of reference of the fund, as contained in Annex I to United Nations General Assembly Resolution 55/7, specify that the fund may be used to reimburse expenditures “incurred in connection with cases submitted, or to be submitted, to the Tribunal, including its Seabed Disputes Chamber and any other Chamber” (paragraph 4). Assistance will be provided principally with respect to “proceeding to the merits where jurisdiction is not an issue, but in exceptional circumstances may be provided for any phase of the proceedings” (paragraph 5). It is worth mentioning that payments by the fund are made on the basis of “receipts showing expenditures” and that the costs for which reimbursement may be obtained include: (a) Preparing the application and the written pleadings; (b) Professional fees of counsel and advocates for written and oral pleadings; (c) Travel and expenses of legal representation in Hamburg during the various phases of a case; (d) Execution of an Order of Judgment of the Tribunal, such as marking a boundary in the territorial sea” (paragraph 9). Note should also be taken that the assistance is not restricted to financial assistance. The terms of reference of the fund contemplate the possibility for DOALOS to maintain “a list of offers of professional assistance which may be made on a reduced fee basis by suitably qualified persons or bodies” (paragraph 13). The list is made available upon request by an applicant for assistance.

Part two

Institutions Governing Ocean Activities

seven

Whither the UNEP Regional Seas Programmes? Jon M. Van Dyke† 1

Introduction In 1974, the United Nations Environment Programme (UNEP)2 launched the Regional Seas Programmes3 with much fanfare, to address the pollution challenges faced by shared marine environments. This effort was led by Stefan Keskes, who traveled the world to coordinate the drafting of regional conventions and action plans. By 1982, the individual regional programmes were described as the “jewel in UNEP’s crown.”4 Some of them have thrived and continue to serve their regions well, but others have stumbled or become completely dysfunctional as a result of disinterest, political discord, and insufficient funding. The difficulties faced by many of these programmes raises the question whether they have a continuing useful role or have, in fact, been superseded by other organizations and institutions, and by new approaches toward addressing environmental challenges? The regional seas programmes have been considered to be “brown” organizations because of their focus on pollution, in contrast to the modern “green” approach that examines all aspects of ocean areas through integrated ecosystem management. Should it be recognized that a new approach is needed for the regional seas programmes, and that organizations with a more holistic and

1 The author gratefully acknowledges the research assistance provided by Lora L. Nordtvedt Reeve, Class of 2012, William S. Richardson School of Law, University of Hawaii at Manoa. 2 United Nations Environment Programme, http://www.unep.org/; see general Mark J. Valencia (ed.), Maritime Regime Building (The Hague, 2001). 3 UNEP Regional Seas Programme, http://www.unep.org/regionalseas/default.asp. 4 Lorne Clark, Statement to UNEP Governing Council, quoted in Peter Hulm, “The Regional Seas Programme: What Fate for UNEP’s Crown Jewels?” Ambio, 12 (1983), at 3, available at http://www.maximedia.org/publications/jewels.htm.

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integrated approach, and that address resource as well as pollution issues, should be developed to provide proper governance of ocean and coastal areas? Thirteen regional programmes are now functioning under the UNEP umbrella,5 six of which are administered directly by UNEP,6 and five other “partner” regional environmental bodies are affiliated with UNEP.7 These programmes emerged from the recognition that ocean regions differ dramatically and that unique ecosystems require focused conservation methods, but it has also been understood that many sources of marine pollution are global in nature and that uniform global standards and approaches are frequently needed.8 Fourteen of these 18 programmes have legally binding conventions,9 and 15 have action plans.10 Many of the conventions are similar because the standard language that was offered to the regions was frequently adopted with little local variation. The Arctic, East Asian Seas, North-West Pacific, and South Asian Seas programmes have never adopted binding conventions, and two other regions have also lagged in this area—Panama is the sole country to have ratified the convention for the North-East Pacific, and the Abidjan Convention for West Africa has been ratified by only 14 of the 22 nations in the region. Only the Black Sea, the Mediterranean Sea, the Persian/Arab Gulf-ROPME Sea Area, and Southeast Pacific regions have protocols on land-based pollution, while the Wider Caribbean’s protocol is not yet in force. The 1974 Paris Convention also addresses land-based pollution of the marine environment.11

5 Black Sea, Wider Caribbean, East Asian Seas-COBSEA, Eastern Africa, South Asian Seas, Persian/Arab Gulf-ROPME Sea Area, Mediterranean, Northeast Pacific, Northwest Pacific-NOWPAP, Red Sea and Gulf of Aden, Southeast Pacific, Pacific-SPREP, and Western Africa. 6 Wider Caribbean, East Asian Seas, Eastern Africa, Mediterranean, Northwest PacificNOWPAP, and Western Africa. 7 Antarctic, Arctic, Baltic Sea, Caspian Sea, and Northeast Atlantic-OSPAR. 8 See e.g., J.G.B. Derraik, “The Pollution of the Marine Environment by Plastic Debris: A Review,” Marine Pollution Bulletin 44 (Sept. 2002): 842; M.S. Islam and M. Tanaka, “Impacts of Pollution on Coastal and Marine Ecosystems including Coastal and Marine Fisheries and Approach for Management: A Review and Synthesis,” Marine Pollution Bulletin 48 (April 2004): 624; and D.A. Holdway, “The Acute and Chronic Effects of Wastes Associated with Offshore Oil and Gas Production on Temperate and Tropical Marine Ecological Processes,” Marine Pollution Bulletin 44 (March 2002): 185. 9 Antarctic, Baltic, Black Sea, Caspian, Eastern Africa, Mediterranean, North-East Atlantic, North-East Pacific, Pacific, Red Sea and Gulf of Aden, ROPME Sea Area, South-East Pacific, Western Africa, and Wider Caribbean. 10 Baltic, Black Sea, Caspian, Eastern Africa, East Asia Seas, Mediterranean, North-East Atlantic, North-East Pacific, North-West Pacific, Pacific, Red Sea and Gulf of Aden, South Asia Seas, South-East Pacific, Western Africa, and Wider Caribbean. 11  Convention for the Prevention of Marine Pollution from Land-Based Sources, May 6, 1978, 1546 U.N.T.S. 119, 13 I.L.M. 352 (1974), U.K.T.S. 1978, No. 64 [Paris Convention]; superseded by the OSPAR Convention—Convention for the Protection of the Marine



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The original impetus for establishment of the individual programmes was to manage marine pollution. This single-sector model has been superseded by the multi-sector integrated ecosystem-based approach that has dominated emerging modern environmental management strategies.12 Today, most officials and academics favor the ecosystem-based-management model, which examines and balances social, economic, environmental, political, and other anthropocentric interests to ensure sustainable use of natural resources.13 Funds to support this broader approach have been directed to the Large Marine Ecosystems (LMEs) programs around the globe,14 which have received substantial aid from the Global Environment Facility (GEF).15 Between 1991 and 2011, the GEF allocated US$9.5 billion to address global environment issues, with more than US$42 billion in cofinancing, for more than 2,700 projects in 165 developing countries and countries with economies in transition,16 giving particular emphasis to projects related to climate change mitigation and adaptation. A number of regional fisheries management organizations (RFMOs)17 have also been established during the past several decades, some with a single- or several-species focus and some looking more generally at a range of species and ecosystems. The complex overlap of resource management and environmental protection raises the question whether the management of resources should be combined with pollution-control efforts to promote a more integrated and holistic approach. Veerle Vandeweerd, who provided leadership for the regional seas programmes for a number of years,18 gave a speech at Portoroz, Slovenia in 2005 in which she

Environment of the North-East Atlantic, March 25, 1998, 2354 U.N.T.S. 67, 32 I.L.M. 1069 (1998). 12 See e.g., Biliana Cicin-Sain and Robert Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington, D.C., 1998). 13 See e.g., L.B. Crowder, et al., “Resolving Mismatches in U.S. Ocean Governance,” 313 Science (Aug. 4, 2006), 617, 618; and K. McLeod and H. Leslie (eds.), Ecosystem-Based Management for the Oceans (Washington, D.C., 2009). 14 UNEP Large Marine Ecosystems (LMEs), http://www.unep.org/regionalseas/issues/eco systems/LMEs/default.asp. 15 The Global Environmental Facility (GEF) was established in 1991 to protect the global environment and promote sustainable development, including LMEs. See http://www .thegef.org/gef/search/node/Large%20marine%20ecosystems. 16 GEF, http://www.thegef.org/gef/whatisgef. 17 Regional Fisheries Management Organizations, http://www.fao.org/fishery/rfb/search/ en. See Jon M. Van Dyke, “The Straddling and Migratory Stocks Agreement and the Pacific,” International Journal of Marine and Coastal Law 11 (1996): 406. 18 Dr. Vandeweerd is currently UN Development Programme (UNDP) Director of the Environment and Energy Group; she has also been Acting Director and Deputy Director of the Division of Environmental Policy Implementation (DEP), Coordinator of the Global Programme of Action for the Protection of the Marine Environment from Land-Based

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acknowledged that the regional seas programmes needed to become refocused in order to play a proper role for the future: That is the cross road we are at now: how to bring the Regional Seas into the 21st century, move it beyond the strictly environmental field into the sustainable development arena, without aiming at being all encompassing, and, by the very nature of being all encompassing, be so dispersed and diluted that no real impacts are achieved.19

Many observers characterize the Mediterranean, the Red Sea and Gulf of Aden, and the North-East Pacific Programmes as successful, along with OSPAR in the North-East Atlantic. The Mediterranean is remarkable for several reasons, not least because it provides a forum where Israel has been able to work cooperatively with its neighbors.20 The members have also negotiated and supported several significant agreements: the Barcelona Convention,21 the Mediterranean Protocol on Dumping,22 the Protocol on Pollution from Ships,23 the Protocol on Land-Based Pollution,24 the Protocol on Specially Protected Areas and

Activities (UNEP-GPA), and Head of the UNEP’s Regional Seas, Coral Reefs and Small Island Developing States Programme until 2007. 19  14th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and it Protocols, Portoroz, Slovenia, 8–11 Nov. 2005, Report of 14th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and it Protocols, Annex VII, p. 13: Speech of Dr. Veerle Vanderweerd, Head of UNEP Regional Seas Programme and UNEP/GPA Coordinator, on behalf of Dr. Klaus Toepfer, Executive Director of UNEP, 9 Nov. 2005, Portoroz, UNEP(DEPI)/MED IG.16/13 (Nov. 30, 2005) (emphasis added), available at http://www.pap-thecoastcentre.org/COP14-final%20report.pdf. 20 The members of the Mediterranean Action Plan for the Barcelona Convention are Albania, Algeria, Bosnia and Herzegovina, Croatia, Cyprus, Egypt, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Morocco, Slovenia, Spain, Syria, Tunisia, Turkey, and the European Union, http://www.unepmap.org/. See generally Aldo Chircop, “The Mediterranean: Lessons Learned,” in Maritime Regime Building, supra note 2, at 27–50. 21 The Convention for the Protection of the Mediterranean Sea against Pollution, Feb. 16, 1976, 1102 U.N.T.S. 27 (Barcelona Convention). 22 Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea, Feb. 16, 1976, revised June 10, 1995, available at http://www.unep.ch/regionalseas/main/med/mdumpii.html. 23 Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, Aug. 6, 2004, Official Journal of the European Union L 261/41, available at http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2004:261:0041:0046:EN:PDF. 24 Protocol for the Protection of the Mediterranean Sea against Pollution from LandBased Sources and Activities, May 17, 1980, available at http://www.unep.ch/regional seas/main/med/mlbspii.html.



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Biological Diversity,25 the Protocol against Pollution from Continental Shelf Exploration,26 the Protocol on Movement of Hazardous Wastes,27 and the Protocol on Integrated Coastal Management.28 The Hazardous Waste Protocol is significant because it requires notification and consultation before hazardous wastes can be transported through the territorial sea of another country.29 The Red Sea and Gulf of Aden Regional Seas Programme developed an Action Plan, which entered into force in 1985 and was last revised in 2004.30 Its parties also adopted the Jeddah Convention31 in 1985 and established a regional secretariat, known as PERSGA (Programme for the Environment of the Red Sea and Gulf of Aden), in 1995. The focus of PERSGA is land-based pollution, navigation and port improvements, and the monitoring of pollution. The OSPAR Convention32 for the North-East Atlantic Ocean came into force in 1998 and now contains annexes addressing land-based pollution,33 dumping and incineration,34 pollution from offshore sources,35 and requirements for assessments on the quality of the marine environment.36 The OSPAR Commission, created pursuant to the Convention, has been active in addressing climate change mitigation and adaptation, but it does not deal with fishing or shipping issues.

25 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, Dec. 12, 1999, http://ec.europa.eu/world/agreements/downloadFile.do?fullText =yesandtreatyTransId=1412. 26 The Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil, adopted Oct. 14, 1994, not yet in force, available at http://www.unep.ch/regionalseas/main/med/medoffsh.html. 27 Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal, Oct. 1, 1996, not yet in force, available at http://www.unep.ch/regionalseas/main/med/medhaz.html. 28 Protocol on Integrated Coastal Zone Management in the Mediterranean, adopted Jan. 21, 2008, not yet in force, available at http://www.pap-thecoastcentre.org/razno/ PROTOCOL%20ENG%20IN%20FINAL%20FORMAT.pdf. Only France and Slovenia have ratified this Protocol. 29 Hazardous Wastes Protocol, supra note 27, art. 6. 30 The Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden (PERSGA), Integrated Strategy and Business Plan (2004–2014) (2004), available at http://www.persga.org/Files//Common/Activities_and_Programs/Business_ Plan.pdf. 31 Regional Convention for the Conservation of the Red Sea and Gulf of Aden (Jeddah Convention), Aug. 20, 1985, available at http://www.unep.ch/regionalseas/main/persga/ convtext.html. 32 Convention for the Protection of the Marine Environment of the North-East Atlantic, March 25, 1998, 2354 U.N.T.S. 67, 32 I.L.M. 1069 [OSPAR Convention]. 33 Id., Annex I. 34 Id., Annex II. 35 Id., Annex III. 36 Id., Annex IV.

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The Pacific Regional Environment Programme in the Pacific Islands region, known as SPREP,37 was established in 1982 and has its headquarters in Apia, Samoa. Although SPREP receives little funding from its member countries, it uses donor resources to address environmental challenges. The SPREP Convention anticipated by ten years the amendments to the 1972 London Convention, by prohibiting the dumping of all radioactive waste. In recent years, SPREP has focused on climate change and sea-level rise, which present major threats to the Pacific Island nations: The region is taking action because of the recognition of the dangers of climate change. It could be said that the basic rationale is to avoid the unmanageable and manage the unavoidable. However, there is only so much that the region can do in isolation, given the enormity of the impacts faced and the lack of wherewithal to finance adaptation . . . .38

In contrast to these relatively successful programmes, those in East Asia have floundered, as explained below.39 UNEP’s Governance of the Regional Seas Programmes The Regional Seas Programme is based at UNEP Headquarters in Nairobi, Kenya and is under the leadership of Dr. Jacqueline Alder, who has previously worked on environmental issues in Canada and Australia.40 The Program Officer and Coordinator with direct responsibility for the Regional Seas Programme (also

37 The acronym SPREP is a holdover from when the name was the South Pacific Regional Environment Program rather than simply the Pacific Regional Environment Program, as it is currently titled. See generally Jon M. Van Dyke, “The South Pacific: Lessons Learned,” in Maritime Regime Building, supra note 2, at 93, 96–98; Jon M. Van Dyke, “Regionalism, Fisheries, and Environmental Challenges in the Pacific,” San Diego International Law Journal 6 (2004–05): 143, 149–53. 38 19th SPREP Meeting and Environment Ministers’ Meeting, Sept. 12, 2008, Agenda Item 7: Theme Issue: Taking Action on Climate Change in the Pacific—Regional Action Plan to Implement the Pacific Framework for Action on Climate Change 2006–2015, ¶ 4, 19SM/ Ministerial/WP.7 (Sept. 12, 2008) (emphasis added), available at http://www.sprep .org/2008SM19/pdfs/eng/Ministerial/Agenda%20Item%207_%20Theme%20paper .pdf. 39 See infra text at notes. 40 Dr. Alder is the Coordinator of the Marine and Coastal Ecosystem Branch under the UNEP Division of Environmental Policy Implementation. She has been with UNEP since 2010, and her role is to develop and strengthen UNEPs Marine and Coastal Program. Before joining UNEP, Dr. Alder was a Marine and Fisheries Policy Analyst and Researcher at the Fisheries Centre at the University of British Columbia in Vancouver, Canada from 2001 to 2008 and at Edith Cowan University in Perth, Australia from 1995 to 2001.



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based in Nairobi) is Alberto Pacheco Capella from Venezuela.41 Dr. Alder is also responsible for the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA), which “includes an action plan for curbing and controlling pollution, habitat destruction and other land-based activities affecting coastal and marine ecosystems,”42 and she is also in charge of the freshwater ecosystem programme. GPA interfaces with the Regional Seas Programme on projects to protect marine mammal migratory corridors, and to assist with meeting biodiversity and marine spatial planning objectives.43 UNEP helps member states of the regional programmes meet regularly to discuss their regional concerns, and to adopt and implement appropriate management measures for their marine environments.44 Each regional programme is individualized to address the specific priorities of the member states, leading to significant differences, for example, in methodologies for environmental status assessments.45 Pursuant to UNGA Resolution 30/60, an effort is currently underway to create a framework, known as the “Regular Process,” which all the programmes will implement for assessment of their marine resources.46 In 2009, the group of experts on the project reported that “the Regular Process will keep oceans under permanent review and promote and support integrated, ecosystembased assessments.”47 UNEP is also assisting the member states of the regional seas programmes with capacity building and technological support to prepare for the standardized assessment process.48 The various regional programmes have significant disparities regarding their available operating funds (and it is difficult to compare budgets directly, because some programmes have more in-kind services provided than others). The total budget for all activities under the Mediterranean Action Plan exceeds US$5 million for the 2010–11 biennium,49 and the 2010–11 budget for the Wider Caribbean Programme is more than US$3.5 million.50 Both of these progammes have member 41 Mr. Pacheco Capella previously worked at the UNEP Finance Initiative in Geneva and as project manager for UNEP activities on water and finance. 42 See http://www.unep.org/regionalseas/partners/uneppartners/GPA/default.asp. 43 Email from Jacqueline Alder, Sept. 16, 2011. 44 Telephone interview with Alberto Pacheco Capella (Aug. 30, 2011). 45 Id. 46 G.A. Res. 60/30, ¶ 89–96 (Mar. 8, 2006). 47 Fifth Meeting of the Group of Experts for the Assessment of the Regular Process for Global Reporting and Assessment of the Marine Environment, including SocioEconomic Aspects, Mar. 19–21, 2009, at 4, GRAME/GOE/5/1 (Mar. 21, 2009). 48 Pacheco Capella Interview, supra note 44. 49 Meeting of Mediterranean Action Plan Focal Points, July 7–10, 2009, Programme of Work and Budget for the 2010–2011 Biennium, UNEP(DEPI)/MED WG.337/17 (July 1, 2009). 50 Fourteenth Intergovernmental Meeting on the Action Plan for the Caribbean Environment Programme and Eleventh Meeting of the Contracting Parties to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean

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states that guarantee financial support to ensure the success of the programmes, as well as receiving in-kind and cash funds from external donors. Sweden has been giving substantial funding to the Caribbean Programme, but now channels its funding through UNEP headquarters.51 In contrast, the member states in the Asian programmes have not been as interested in their organizations, and the budgets reflect that lack of involvement. COBSEA members agreed on a budget of only US$435,000 for 2010 and US$480,000 for 2011,52 while the NOWPAP budget (for direct expenditures) is US$770,000 for the biennium.53 The absence of reliable sufficient funding has limited the ability of the Asian programmes to fulfill their missions.54 The overall UNEP budget for the 2010–11 biennium is US$180 million,55 some of which supports the objectives of the Regional Seas Programme and the individual programmes. Six thematic areas govern how UNEP resources are allocated: climate change, disaster and conflicts, ecosystem management, environmental governance, harmful substances and hazardous waste, and resource efficiency.56 The support for UNEP programme activities is US$156 million.57 The total Regional Seas Programme budget is US$10 million,58 and the funds are allocated according to four overarching objectives: strategies for understanding the connections between land and ocean and applying integrated management measures; identifying, assessing, and valuing ecosystem services that benefit humans; reconciling use and conservation of recourses; and strengthening “the economic and social resilience of vulnerable communities and places.”59 A meeting bringing together all the regional seas programmes is held periodically, and the 12th such Global Meeting was held in Bergen, Norway in September 2010. At that meeting, the UNEP Marine and Coastal Strategy was circulated

Region, Draft Report, Oct. 6–9, 2010, ¶ 129, UNEP(DEPI)/CAR IG.30/6 (Oct. 13, 2010), Oct. 6–9, 2010, y eradication ell as external donor in-kind and cash 51 Email from Albert Pacheco Capella, Sept. 6, 2011. 52 Twentieth Intergovernmental Meeting of the Coordinating Body on the Seas of East Asia (COBSEA), Rep., Nov. 2–5, 2009, ¶ 85, UNEP/DEPI/COBSEA IGM 20/15 (Nov. 5, 2009). 53 Fourteenth Intergovernmental Meeting of the Northwest Pacific Action Plan, Rep., Dec. 8–10, 2009, Annex I, ¶ 7, UNEP/NOWPAP IG.14/11 (Jan. 12, 2010). 54 Skype Interview with Ellik Adler, Coordinator, COBSEA (Aug. 15, 2011). 55 UNEP Governing Council Decision 25/13, Proceedings of the Governing Council/Global Ministerial Environment Forum at its twenty-fifth session, Feb. 16–20, 2009, ¶ 2, UNEP/ GC.25/17 (Feb. 26, 2009). 56 Id. 57 Id. 58 Twelfth Global Meeting of the Regional Seas Conventions and Action Plans, Sept. 20–22, 2010, The other 70%: UNEP Marine and Coastal Strategy, Draft Rep., p. 27, UNEP(DEPI)/RS.12/2 (2010). 59 Id., p. 4.



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to provide guidance to the regional programmes.60 This document states that the vision of UNEP for oceans and coasts is “[p]rosperous and healthy oceans and coasts where conservation, productivity and resource use are sustainable,”61 which is to be achieved through the four “overarching objectives” listed in the previous paragraph. Marine and Coastal Management refers regularly to “integrated management” and “ecosystem based management,”62 and it recommends greater “cooperation between regional fisheries bodies and regional seas conventions”63 and a focus on “sustainable development,”64 but it does not recommend any dramatic structural changes to create organizations that would have authority over both resources and environmental integrity. In preparation for the Rio+20 UN Conference on Sustainable Development in 2012, UNEP undertook an extensive study of “the challenges and opportunities of a potential transition towards a green economy in key sectors heavily linked to the marine and coastal environment.”65 The concept for the project is “Green Economy in a Blue World,”66 with a focus on small-scale fisheries, shipping, coastal tourism, energy, marine mineral resources, and livelihoods and poverty eradication.67 Policy and institutional changes that may be necessary are also being explored. This analysis is designed to raise awareness of the potential for the green economy to mitigate marine environmental degradation and influence national development policies toward decisions that support sustainable practices.68 COBSEA The Coordinating Body on the Seas of East Asia (COBSEA) was established pursuant to an Action Plan adopted in 1981 and revised in 1994.69 Its website states

60 12th Global Meeting of the Regional Seas Conventions and Action Plans, Bergen, Norway, 20th–22nd September 2010, United Nations Environment Programme Marine and Coastal Strategy, UNEP (DEPI)/RS.12/2. 61 Id. at 4. 62 Id. at 6 and Appendix 1. 63 Id., Appendix I at 4. 64 Id., Appendix I at 5. 65 Pacheco Interview, supra note 44. 66 Rio+20 Sub-regional Preparatory Meetings, Small Islands Developing States (SIDS) Newsletter, http://www.sidsnet.org/provisional/docs/newsletter/SIDS_Unit_Newslet ter-August_2011.pdf. 67 Pacheco Interview, supra note 44. 68 Id. 69 UNEP, New Strategic Direction for COBSEA (2008–2012), UNEP EAS/RCU, Coordinating Body for the Seas of E. Asia Secretariat [COBSEA] (Jan. 23, 2008), available at http:// www.cobsea.org/documents/Meeting_Documents/19COBSEA/New%20Strategic%20 Direction%20for%20COBSEA%202008-2012.pdf.

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optimistically that “[t]here is no regional convention, but instead the programme promotes compliance with existing environmental treaties and is based on member country goodwill.”70 The participating states are Australia, Cambodia, China, Indonesia, Malaysia, the Philippines, Singapore, South Korea, Thailand, and ­Vietnam.71 From 2001 to 2006, COBSEA examined, among other things, the impact of sewage on the marine environment, in preparation for the 2001 “Regional Workshop on Protecting Coastal and Marine Ecosystems from Land-based Activities in the Asia-Pacific Region” in Toyama, Japan. This project was designed to raise awareness of the needs for regional guidelines and standards, innovative solutions, and state partnerships for sewage management.72 At the 2001 Regional Workshop on Identification of Pollution Hot Spots in the East Asian Seas Region in Hua Hin, Thailand, catchments and major pollution sources were nominated as hot spots by the member countries. The participants at this meeting also confirmed the need for further regional cooperation for data and information sharing to identify major pollution sources, their management, and the use of modeling to predict pollution effects. This recognition resulted in the development of a project called “Determination of Pollution Loading Using Modeling and GIS,” which focused on the collection of data from selected catchments in the member countries, modeling pollution-loading from the major pollution sources, the establishment of a geographic information systems database of land-based nutrient pollution, and capacity-building. Through this activity, member countries were to be provided with a quantitative modeling tool for the estimation of nutrient pollution loading in catchment areas with no or limited data availability.73 The COBSEA Action Plan was superseded in 2008 by the New Strategic Direction for COBSEA (2008–2012), which was adopted at the 19th meeting of the

70 UNEP Regional Seas Programme, http://www.unep.org/regionalseas/programmes/ unpro/eastasian/default.asp. 71  The island of Taiwan is included in the map on the cover of the most recent governance document showing the member states, but the Republic of China (Taiwan) is not listed as a member, and Taiwan has not been able to participate directly in regional environmental programmes. 72  UNEP, Regional Workshop on Protecting Coastal and Marine Ecosystems from LandBased Activities in the Asia-Pacific Region, September 24–28, 2001, UNEP(DEC)/EAS/ GPA-Toyama (Sept. 2001), available at http://www.cobsea.org/documents/report_landbased/Protecting_Coastal_and_Marine_Ecosystems_from_Land-based_Act.pdf. 73  S. Jarayabhand, The Regional Programme of Action for the Protection of the Marine Environment of the East Asian Seas from the Effects of Land-based Activities and Related Actions, in Report of The East Asian Seas IGR-2 Preparatory Workshop, Partnership Opportunities for Enhanced GPA Implementation 177, Sept. 4–5, 2006, UNEP(DEC)/EAS .IGR2.WS.3 (Aug. 31, 2006), available at http://www.cobsea.org/documents/Meeting_Doc uments/EAS%20IGR2%20Prep/Final%20Report%20of%20the%20EAS%20IGR2%20 Prep%20Workshop.pdf.



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members in Siem Reap, Cambodia. That document includes an assessment of challenges, as well as objectives and strategies to: 1.  Establish a knowledge base to provide information on programmes and projects, and the state of the coastal and marine environment in the East Asian Seas region, with information synthesis and reporting activities under the COBSEA Coordinating Centre; 2. Strengthen member capacity in responding to the growing pressures exerted on the coastal and marine environment, and the increasing need for sustainable management of their natural resources; 3. Assist members in identifying and addressing upcoming issues of priority to the East Asian Seas region; and 4. Implement a new strategic direction in collaboration with member countries and regional partners, and work to prevent duplication of efforts.74 COBSEA has been relatively inactive since the adoption of the New Strategic Direction document in 2008, apparently because of a combination of insufficient funding, competition for professional expertise, member state inertia, and other factors. Current activity categories are listed as Information Management, Strategic and Emerging Issues, Regional Cooperation, and National Capacity Building. As of August 2011, the most recent event documented on the COBSEA website was the “COBSEA Forum on Marine Pollution-Related Multilateral Environmental Agreements (MEAs),” which took place in Guangzhou, China in June 2008.75 China was slated to take the lead on the resulting project, called “Understanding the Status of Implementation of These MEAs,”76 designed to enable COBSEA to identify capacity building needs and propose solutions that will lead to more effective MEA implementation in member countries.”77 COBSEA Coordinator Dr. Ellik Adler explained at a workshop held during the East Asian Seas Congress in 2009 in Manila, Philippines that his organization has “been actively implementing the [marine litter] programs covering the organization of workshops, 74 New Strategic Direction for COBSEA (2008–2012), supra note 69, at 5. 75 COBSEA Forum on Marine Pollution-Related Multilateral Environmental Agreements (MEAs), June 10–11, 2008, Report of COBSEA Forum on Marine Pollution Related Multilateral Environmental Agreements (MEAs), UNEP(DEPI)/MEAs1 WS.1 (July 25, 2008). 76 The MEAs are: the Global Programme of Action on the Protection of the Marine Environment from Land-based Activities [(GPA); the International Convention for the Control and Management of Ship’s Ballast Water and Sediments; the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC); the 1972 London Convention: Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LDC); the MARPOL Convention: International Convention for the Prevention of Pollution from Ships; and the United Nations Convention on the Law of the Sea. 77 COBSEA website, http://www.cobsea.org/activities/activities_national%20capacity%20 building.html.

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meetings and International Coastal Cleanup campaigns, establishing data bases, developing monitoring guidelines and producing publications such as regional overviews on [marine litter], posters and brochures.”78 Over the last 15 years, COBSEA has been faced with major financial challenges.79 The organization operates and carries out activities and programs from contributions by member countries into a trust fund. Each member was originally required to contribute a set amount, based on the economic status of that country, toward a total of US$170,000 per year. Even if that goal had been met completely, it would fall far short of the amount required to sustain the secretariat and carry out regional activities.80 UNEP assisted with funding until 2006, when the UNEP Secretariat “decided that members should carry the financial burden if they wanted a viable organization.”81 This UNEP decision was based on the growing economies of member states such as China, Singapore, and South Korea, which increased their abilities to contribute higher sums to the organization’s trust fund.82 COBSEA Coordinator Dr. Ellik Adler reported at the November 2009 meeting of COBSEA that “if no substantial change will occur in the support given to the Trust Fund either by UNEP or by increased contributions from the member countries, the Trust Fund will become completely depleted at the beginning of 2011.”83 In addition to funding shortfalls, other significant challenges for COBSEA include the diminishing interest among member countries for the organization, territorial disputes between the members,84 competition with other marine environmental organizations for funding and donor attention, and difficulties with the focal ministries in some of the member governments.85 Little progress has been made toward fulfilling the objectives of the New Strategic Direction docu-

78 East Asian Seas Congress, Nov. 23–26, 2009, Addressing the Transboundary Challenge in East Asia by Two UNEP Regional Seas Programs, in Proceedings of the International Conference on Sustainable Coastal and Ocean Development, Workshop 4, at 5, EAS Congress/WP/2010/01 (2010). 79 Adler Interview, supra note 54. 80 Id. 81  Id. 82 Id. 83 UNEP, Report of the Twentieth Intergovernmental Meeting of the Coordinating Body on the Seas of East Asia (COBSEA), UNEP/DEPI/COBSEA IGM 20/15 (Nov. 5, 2009), at 3, ¶12. 84 China, Vietnam, Malaysia, and the Philippines have, for instance, a major dispute over the sovereignty of the Spratly Islands in the South China Sea and over the governance of the waters of the South China Sea. See, e.g., Mark J. Valencia, Jon M. Van Dyke, and Noel Ludwig, Sharing the Resources of the South China Sea (The Hague, 1997; reprinted in paperback form in 1999 by the University of Hawaii Press). 85 Adler Interview, supra note 54. Countries are members of COBSEA through their respective foreign ministries, but other interested ministries with power over marine issues can confuse or dilute authority.



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ment under these circumstances.86 The Southeast Asian shared ocean areas have limited regional governance regarding resources. The Southeast Asian Fishery Development Center (SEAFDEC) has limited scientific competence,87 and illegal, unreported, and unregulated (IUU) fishing is a major problem in the South China Sea.88 Another challenge facing COBSEA is that it appears to be in direct competition with another East Asian marine conservation organization, the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA),89 which was established in 1993 with funding from the Global Environment Facility (GEF) to promote coastal conservation: PEMSEA is a partnership arrangement involving various stakeholders of the Seas of East Asia, including national and local governments, civil society, the private sector, research and education institutions, communities, international agencies, regional programmes, financial institutions and donors. It is also the regional coordinating mechanism for the implementation of the Sustainable Development Strategy for the Seas of East Asia.90

PEMSEA’s members are Cambodia, China, Indonesia, Japan, Laos, North Korea, Philippines, South Korea, Singapore, Timor-Leste, and Vietnam. Seven countries are thus in both COBSEA and PEMSEA, and each organization has several members that do not belong to the other. The mission of PEMSEA overlaps with the goals of COBSEA, particularly relating to regional capacity building and partnership formation.91 In 2010, PEMSEA moved from the UN Development Program (UNDP) to become an international organization with legal and financial status separate from the UNDP.92 There appears to be competition for funding and professional expertise between the two organizations, as they both receive support from GEF.93

86 Id. 87 See Southeast Asian Fisheries Development Center, http://www.seafdec.org/cms/index .php. 88 M. Coll, S. Libralato, S. Tudela, I. Palomera, and F. Pranovi, “Ecosystem Overfishing in the Ocean,” 3:12 PLoS one e3881 (Dec. 2008), available at http://www.plosone.org/ article/info%3Adoi%2F10.1371%2Fjournal.pone.0003881; for a discussion of global IUU fishing see, D.J. Agnew, HJ. Pearce, G. Pramod, T. Peatman, R. Watson, J.R Beddlington, T.J. Pitcher, “Estimating the Worldwide Extent of Illegal Fishing,” 4:2 3:12 PLoS one e4570 (Feb. 2009), available at http://www.plosone.org/article/info%3Adoi%2F10.1371%2 Fjournal.pone.0004570. 89 Partnerships in Environmental Management for the Seas of East Asia (PEMSEA), http:// beta.pemsea.org/; see also PEMSEA Accomplishment Report 2008–2010 (A GEF/UNDP Regional Programme, 2010). 90 PEMSEA, http://beta.pemsea.org/about-pemsea. 91 Id. 92 Adler Interview, supra note 54. 93 Id.

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COBSEA has engaged an external consultant to investigate the organization’s condition and make recommendations to the members regarding its ­sustainability.94 At the next Intergovernmental Meeting of the member states, to take place in late 2011 or early 2012, the members will consider the recommendations and decide on a course of action.95 One of the options for the future could be to merge COBSEA with PEMSEA, giving the combined organization a platform under international law that PEMSEA no longer enjoys since its break with UNDP. Among the challenges to that solution are differences in the membership of the two organizations, and the unanimous agreement of all countries that would be required for such a merger.96 NOWPAP The North-West Pacific Regional Seas Programme, frequently called the NorthWest Pacific Northwest Pacific Action Plan (NOWPAP),97 was established in 1994 by China, Japan, South Korea, and the Russian Federation, identifying five priority actions: • Establishment of a comprehensive database and information management system; • Survey of national environmental legislation, objectives, strategy, and policies; • Establishment of a collaborative, regional monitoring programme; • Development of effective measure for regional cooperation in marine pollution preparedness and response; and • Establishment of regional activity centers and their networks.98 Each member state hosts a Regional Activity Centre responsible for a different activity: the Special Monitoring and Coastal Environment Assessment Regional Activity Centre in Japan, the Data and Information Network Regional Activity Centre in China, the Marine Environmental Emergency Preparedness and Response Regional Activity Centre in South Korea, and the Pollution Monitoring Regional Activity Centre in the Russian Federation. Regional Coordinating Units (RCUs) have been established in Toyama, Japan, and Busan, Korea. A Regional Oil Spill contingency Plan was adopted in 2003. A Memorandum of Understanding on 94 Id. 95 Id. 96 Id. 97 First Intergovernmental Meeting on the Northwest Pacific Action Plan, 14 Sept. 1994, Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region, UNEP(OCA)/NOWPAP IF.1/5, Annex IV (Sept. 14, 1994), available at http://www.nowpap.org/data/ACTION%20PLAN.pdf. 98 NOWPAP, http://www.nowpap.org/ (follow “Projects” hyperlink).



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Regional Cooperation Regarding Preparedness and Response to Oil Spills in the Marine Environment of the North-West Pacific Region was signed in 2004–05. A Regional Action Plan on Marine Litter was adopted in 2007. The current projects at the Centre in Japan are the investigation and monitoring of harmful algal blooms in the region; remote sensing with a focus on eutrophication and oil spills; and the prevention of, monitoring of, and removal of marine litter from the environment.99 Harmful algal blooms and remote sensing are handled in expert working groups, which publish reports and guidelines, and maintain databases and websites. The marine litter project involves some research but has a strong emphasis on public outreach and education.100 The objectives of the Data and Information Network Regional Activity Centre in China “are to develop a region-wide data and information exchange network, to promote regional cooperation and exchange of information on the marine and coastal environment in the NOWPAP region and eventually to serve as a NOWPAP Clearinghouse.”101 The Centre website includes searchable databases on contaminants and nutrients, marine protected areas, hazardous and noxious substances incidents, atmospheric contaminants, river contaminant input, coastal and river basin management, regional environmental institutions, marine environmental experts, and the environmental protection laws of each NOWPAP member.102 The Marine Environmental Emergency Preparedness and Response Regional Activity Centre in Korea is tasked with developing “effective regional cooperative measures in response to marine pollution incidents including oil and hazardous and noxious substance spills.”103 Several recent publications and reports on the website indicate that this Centre is more active than the one in Japan. In 2011, this Centre published the Training Manual for Hazardous and Noxious Substances as part of its responsibility to develop responses to marine spills and other pollution incidents.104 The Centre in the Russian Federation is responsible for “measures related to atmospheric deposition of contaminants and river and direct inputs of contaminants to the marine and coastal environment.” Its most recent publication is the Regional Overview Report on Integrated Coastal and River Basin Management in the

99 CEARAC, http://cearac.nowpap.org. 100 See e.g., UNEP NOWPAP, Marine Litter Guidelines for Tourists and Tour Operators in Marine and Coastal Areas (Oct. 2007), available at http://www.cearac-project.org/ MALITA/Tourism%20Guidelines.pdf. 101 NOWPAP, http://www.nowpap.org/ (follow “Regional Activities Centres” hyperlink). 102 Id., (follow “http://dinrac.nowpap.org” hyperlink; then follow “Databases” hyperlink). 103 MERRAC, http://www.nowpap.org/ (follow “Regional Activities Centres” hyperlink; then follow http://merrac.nowpap.org hyperlink). 104 MERRAC Technical Report No. 8. Manual for HNS Training, NOWPAP MERRAC (2011), available at http://dinrac.nowpap.org/documents/NOWPAP_MERRAC_HNS_Training_ Manual.pdf.

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NOWPAP Region,105 completed in 2010. This report discusses limited capabilities, inadequate and inconsistent policies, and weak institutional partnerships,106 and concludes with a call for “more explicit collaborative actions among the member countries in establishing appropriate regional strategies and action plans to jointly manage the critical environmental and socio-economic issues.”107 It has been observed that the NOWPAP parties “cannot agree on such basics as financial burden sharing, institution building and leadership.”108 One commentator has said that NOWPAP “has delivered less than it originally promised,” because of “NOWPAP’s fundamental organizational flaws in addition to waning financial support and enthusiasm for this organization.”109 It competes to some extent for funding with the UNDP/GEF Yellow Sea Large Marine Ecosystem Project,110 which also suffers from some institutional difficulties,111 and “synergies between the two institutions remain limited.”112 Historically, NOWPAP’s activities have been limited by inadequate financial support and disagreements regarding how funding should be provided for the organization. One country in the region—the Democratic People’s Republic of Korea (North Korea)—has not been participating at all in this Programme. The Republic of Korea (South Korea) has not formally adopted the 1994 Action Plan. Unlike most of the other regional seas programmes, no binding convention has been drafted to reflect real commitments by the countries of Northeast Asia to make this Programme work. Financial allocations remain a major topic for concern, and the members have disagreed on how much each should pay. Some countries favor equal contributions by each country, but China has argued that contributions should be based on “the principle of common but differentiated responsibilities.”113 NOWPAP is supported by a trust fund to which the member states make contributions, and the current coordinator, Dr. Alexander Tkalin, is cautiously optimistic because

105 Regional Overview Report on Integrated Coastal and River Basin Management in the NOWPAP Region (2010), available at ftp://pomrac.dvo.ru/Publ/POMRAC_ICARM_2010 .pdf. 106 Id. at 5. 107 Id. 108 Mark J. Valencia, “Relevance of Lessons Learned to Northeast Asia,” in Maritime Regime Building, supra note 2, at 131, 143. 109 Suh-Yong Chung, “Strengthening Regional Governance to Protect the Marine Environment in Northeast Asia: From a Fragmented to an Integrated Approach,” Marine Policy 34 (2010): 549, 551. 110 Yellow Sea Large Marine Ecosystem Project, http://www.yslme.org/. 111 Chung, supra note 109, at 550–51. 112 Id. at 549. 113 Fifteenth Intergovernmental Meeting of the Northwest Pacific Action Plan Moscow, Russian Federation, 16–18 November 2010, Report of the Meeting, UNEP/NOWPAP IG. 15/12 at 13, ¶74 (Jan. 5, 2011).



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after having made no contribution whatsoever to the fund since 2001, the Russian Federation provided US$125,000 in August 2011.114 A similar amount is anticipated from Japan, with Korea expected to deliver US$100,000, and China US$40,000.115 At the November 2010 NOWPAP meeting, the Korean delegate said that Korea was considering increasing its contributions, and “specifically mentioned that Chinese economy is progressing steadily and perhaps it is a right time for the People’s Republic of China to re-consider their contributions.”116 The Korean delegate also noted that South Korea supports the RCU office in Busan, providing more than US$300,000 in support, but observed that the staff might have to be reduced if the contributions from other countries were not adequate.117 The participating countries have also disagreed on priorities, with Japan arguing that the effort on Persistent Toxic Substance Hotspots was unnecessary compared to the problem of marine litter, and stated at the October 2008 meeting of NOWPAP in Jeju, South Korea, that the financial contributions of Japan and Korea are “unrealistic and unfeasible.” The Russian delegate at this meeting, apparently in an effort to explain the failure of Russia to pay its pledged dues, stated that the 1994 Action Plan had been accepted by the Russian delegate “without any credentials confirming the right for such adoption.” The absence of a binding convention to govern the NOWPAP region is a significant cause for concern. The other regions have treaties, and such a document would be important in Northeast Asia, for instance, to regulate ocean dumping, regulate pollution for land-based sources, require environmental impact assessments for significant ocean activities, promote the development of marine protected areas, and establish mechanisms for resolving disputes peacefully. An emergency plan to sustain NOWPAP into the future was proposed at the 2010 Intergovernmental Meeting and included options for reducing expenses to sustain NOWPAP into the future, such as reducing the number of Regional Activity Centres.118 One question that could be addressed is whether there is a need for offices in both Korea and Japan, which each require u to US$500,000 per year in support from their host countries. Despite the increase in donations from the Russian Federation and other countries this year, NOWPAP continues to have major funding issues.119 Other concerns 114 Skype Interview with Alexander Tkalin, Coordinator, NOWPAP (Aug. 17, 2011); letter from Alexander Makarenko (Russian Federation Ambassador to International Organizations in Nairobi) to UN Under-Secretary-General and UNEP Executive Director Achim Steiner, June 22, 2011. 115 Id.; email from Xiaodong Zhong, Deputy Coordinator, NOWPAP (Sept. 21, 2011). 116 Fifteenth Intergovernmental Meeting of the Northwest Pacific Action Plan Moscow, Russian Federation, 16–18 November 2010, Report of the Meeting, UNEP/NOWPAP IG. 15/12 at 12, ¶64 (Jan. 5, 2011). 117 Id. at 12, ¶67. 118 Tkalin Interview, supra note 114. 119 Id.

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include conflicts in the ministerial authorities in some countries and whether NOWPAP should merge with either COBSEA or PEMSEA.120 Member states also disagree with UNEP on prioritization of activities. UNEP would like to focus on global issues, while the NOWPAP members prefer to concentrate on regional problems, such as transboundary pollutants, harmful algal blooms, marine litter, and oil spills.121 Some regional pollution challenges have a global component, linked for instance with climate change and biodiversity challenges, so some coordination between regional and global challenges is necessary.122 Although NOWPAP’s Oil Spill Contingency Plan123 and its campaign against marine litter124 have been identified as successes, some observers have questioned the efficacy of even these two programs.125 The marine areas of North-West Pacific region have serious environmental problems that require attention. Between 1973 and 1979, Russia dumped four nuclear ship reactors in the East Sea (off of North Korea), and they continued dumping nuclear wastes in the years that followed, culminating in a dump of 900 tons of low-level waste generated by nuclear submarines of the Russian navy directly into East Sea in October 1993.126 Oil spills have occurred in the region, most dramatically the spill caused by the break-up of the Russian tanker Nakhodka in January 1997 and the spill on the Korean coast in December 2007 caused by the Hebei Spirit. The Nakhodka, going from Shanghai to Petropavlovsk, Russia, broke up in stormy weather on January 2, 1997, in the East Sea (off the Oki Islands of Shimane Prefecture), with a cargo of about 19,000 tons of heavy oil, which caused heavy damage to Japan’s coast. Thirty-one crewmembers were rescued from life boats, but the master drowned. After the Hebei Spirit collided with a Samsung crane barge in December 2007, 11,000 tons of oil leaked into the sea and onto the Korean coast. In June 2008, the International Oil Pollution Compensation Fund estimated the damage from this spill to reach up to 573.5 billion Korean won because of the decrease in tourists and the damage to the fishing industry through destruction of oyster beds, wildlife habitats, and scenic beaches. The problem of overfishing in Northeast Asia is also increasingly serious. A report in the Kyodo News on October 20, 2009 stated that tuna caught in the East Sea now weigh less than half of what they used to, because advanced technology allows fishers to target schools of tuna, including young fish during their spawning season. Changes to the marine environment caused by global warm-

120 Id. 121 Id. 122 Id. 123 See MERRAC, Technical Report No. 8, supra note 104. 124 See UNEP NOWPAP, Marine Litter Guidelines, supra note 100. 125 Chung, supra note 109, at 552. 126 Valencia, supra note 108, at 134.



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ing require immediate attention. Vast quantities of the giant Nomura’s jellyfish have been swarming into the East Sea in recent years, killing other fish with their venom, lowering the quality and quantity of catches, increasing the risk of capsizing trawlers, and stinging fishers.127 The marine debris problem remains an important challenge in Northeast Asia, as elsewhere, and bold action is needed to control the problem by requiring all fishing operations to use identifiable fishing gear—with an identifiable net mesh or coded wire tags (developed for biological research) put into netting at close intervals. The Arctic Council The Arctic Council is one of the “partner” organizations that serve some of the same purposes as the 13 regional seas programmes. The Arctic Council has eight members—Canada, Denmark (Greenland, Faroe Islands), Finland, Iceland, Norway, Russian Federation, Sweden, and the United States, and indigenous groups participate in the Council as “Permanent Participants.”128 It also allows other countries and organizations to participate as “observers,”129 but some of the countries in this category have chafed at being kept outside and have argued that the Arctic should be managed globally. The Arctic Council has six working groups—Arctic Contaminants Action Program (ACAP), Arctic Monitoring and

127 For a discussion of problems that can be created by jellyfish, see E. Purcell, S. Uye, and W. Lo, “Anthropogenic Causes of Jellyfish Blooms and Their Direct Consequences for Humans: A Review,” Marine Ecology Progress Series 350 (Nov. 22, 2007): 153. 128 The 1996 Ottawa Declaration, which established the Arctic Council, says in ¶2 that “[t]he number of Permanent Participants should at any time be less than the number of members.” The Permanent Participants at present are Aleut International Association (AIA), Arctic Athabaskan Council (AAC), Gwich’in Council International (GCI), Inuit Circumpolar Council (ICC), Saami Council, and Russian Arctic Indigenous Peoples of the North (RAIPON). 129 Observers now include six countries (France, Germany, The Netherlands, Poland, Spain, and United Kingdom), nine Intergovernmental and Inter-Parliamentary Organizations (International Federation of Red Cross and Red Crescent Societies (IFRC), International Union for the Conservation of Nature (IUCN), Nordic Council, Nordic Environment Finance Corporation (NEFCO), North Atlantic Marine Mammal Commission (NAMMCO), Standing Committee of the Parliamentarians of the Arctic Region (SCPAR), United Nations Economic Commission for Europe (UN-ECE), United Nations Development Program (UNDP), and United Nations Environment Program (UNEP)), and 11 Non-Government Organizations (Advisory Committee on Protection of the Seas (ACOPS), Arctic Circumpolar Gateway, Association of World Reindeer Herders (AWRH), Circumpolar Conservation Union (CCU), International Arctic Science Committee (IASC), International Arctic Social Sciences Association (IASSA), International Union for Circumpolar Health (IUCH), International Work Group for Indigenous Affairs (IWGIA), Northern Forum (NF), University of the Arctic (UArctic), and World Wide Fund for Nature-Global Arctic Program (WWF)).

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Assessment Programme Working Group (AMAP), Conservation of Arctic Flora and Fauna (CAFF), Sustainable Development Working Group (SDWG), Emergency Prevention, Preparedness, Response Working Group (EPPR), and Protection of the Arctic Marine Environment Working Group (PAME). Among the recent accomplishments of the PAME group has been preparation of a 190-page Arctic Marine Shipping Assessment 2009 Report,130 which provides a comprehensive study and evaluation of Arctic marine activity today and in the future, focusing on marine safety, environmental protection, and infrastructure needs of ships and their impact on the Arctic. It includes among its recommendation the goals of establishing Marine Protected Areas and Particularly Sensitive Sea Areas to protect ecologically vulnerable regions, ratification of the IMO Convention for the Control & Management of Ships Ballast Water and Sediments to reduce risks of introducing invasive species, and the reduction of emissions of green house gases and black carbon. What Would a Robust Regional Seas Arrangement Look Like? As Veerle Vandeweerd explained in 2005,131 it is necessary to rethink the role of and the goals for the regional seas programmes. It is inefficient to put funds and energy into programmes that focus solely on pollution issues without examining the marine ecosystem as a whole, including resource exploitation and other uses of the sea. It is time to reinvigorate these programmes, to utilize modern thinking and management approaches to address the challenges facing our oceans. The East Asian regional seas programmes have been particularly underfunded and lackluster in their projects and activities. They are limping along, while the shared oceans and marine resources of East Asia continue to face a significant range of environmental challenges requiring cooperation and careful management. Successful cooperative regional arrangements emerge in areas with “preexisting habits of cooperation and institutional development . . .; national and regional leadership; clearly defined benefits to be gained through regional cooperation . . .; [and] public awareness and concern with a given issue or range of issues.”132 The relative success of the Mediterranean and OSPAR Programmes, and to a somewhat lesser extent, the Western Caribbean Programme, are attributable in large part to the involvement of nongovernmental/civil-society organizations which bring ideas and information to these programmes and help set

130 Arctic Council, Arctic Marine Shipping Assessment 2009 Report (Arctic Council Protection of the Arctic Marine Environment, 2009). 131 See supra text at note 19. 132 Mark J. Valencia, “Conclusions and Lessons Learned,” in Maritime Regime Building, supra note 2, at 149, 160.



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their agendas, and thereby put pressure on the members to provide proper funding for needed activities. The Arctic Council formalizes this nongovernmental input by having a category of “Permanent Participants” consisting of Arctic indigenous groups and a larger group of “Observers” that play a role in the Council’s activities, and the Council has begun the process of examining the whole range of issues that will require governance in the Arctic. The Mediterranean countries have negotiated a series of important protocols to address the range of pollution sources, and they have moved toward integrated ecosystem management. The focus on shared environmental concerns in the Mediterranean has enabled the countries to set aside their political disputes in order to protect their ocean resources for present and future generations. In East Asia, by contrast, sharp political and historical disputes continue to stand in the way of regional cooperation, and nongovernmental organizations have not stepped up to promote a regional identity that could overcome contentious national passions. Although the countries of Asia have generally reached short-term pragmatic solutions to resource disputes,133 they have failed to build robust regional ocean organizations. Because the East Asian countries have not developed either strong regional fishery management or effective pollution-control organizations, it might make most sense for them to develop an organization that would have authority over both resources and pollution. Although the creation of such a combined organization might seem daunting, especially in light of the failure to create an effective organization of any sort thus far, it could prove to be easier to create a strong organization with resource-allocation responsibilities, because the practical gains from such an organization might be easier to recognize. Ideally, such an organization should be governed by a binding convention, ratified by all countries in the region; should be staffed by a well-funded secretariat; should have responsibility over resource exploitation (especially fishing), over landbased pollution, and pollution from ships; should govern coasts, estuaries, wetlands, rivers, and open ocean areas through integrated multi-sector ecosystem management techniques; should promote the establishment of marine protected areas; and should undertake active research projects to monitor and understand climate change. Although the countries and citizens of each region must ultimately take responsibilities for such regional organizations and ensure their success, it will also be useful for UNEP to provide strong international leadership, to promote a more integrated approach that combines resource ­management with

133 See Jon M. Van Dyke, “Northeast Asian Seas—Conflicts, Accomplishments, and the Role of the United States,” International Journal of Marine and Coastal Law 17 (2002): 397.

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environmental protection, and thus to reconfirm the common shared goals of the Regional Seas Programmes. Our shared ocean spaces are too valuable to let political squabbles among neighbors stand in the way of the vigorous cooperative management required to ensure that they remain viable for future generations. The UNEP Regional Seas Programmes were visionary in their time, but now it is necessary to reconceive them as multi-sector bodies, to fund them properly, and to give them the political support they need to address the challenges of the present and the future.

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FAO, Ocean Governance, and the Law of the Sea Jean-François Pulvenis1

The purpose of this paper is to offer a concise presentation of the role and contribution of the Food and Agriculture Organization (FAO), a specialized agency of the United Nations, with regards to ocean governance, including from the perspective of the law of the sea, its implementation, and its further development. The year 2010 marks the 15th anniversary of the adoption of the FAO Code of Conduct for Responsible Fisheries, and more, it is a time when the FAO is undergoing a deep structural and substantial reform. In a broader context, it is also important to recall that in September 2010 the world community has been invited to reflect upon the theme of “reaffirming the central role of the United Nations in global governance.”2 The world’s circumstances have evolved considerably since the establishment of the United Nations and its specialized agencies. In particular, in more recent years other actors have been emerging on the international scene, creating a danger perceived by some that the United Nations could be marginalized.3 Even without going so far as marginalization, there is undoubtedly a situation of increasing competition between the United Nations and its specialized agencies and programmes on the one hand and, on the other, younger and more agile entities including international non-governmental institutions and organizations. Instead of a threat, this situation might represent an opportunity when considering

1 The views expressed in this paper are personal to the author and do not reflect a formal position of the Organization. 2 See the opening statement at the general debate of the sixty-fifth session of the United Nations General Assembly by H.E. Mr. Joseph Deiss, President of the General Assembly (September 23, 2010), available at http://www.un.org/en/ga/president/65/statements/ gadebate230910.shtml. 3 “However, there is a danger that the United Nations could be marginalized as other actors emerge on the international scene,” ibid.

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and rethinking the role of the United Nations and its specialized agencies as well as reassessing and redefining their task. FAO was established in the shadow of the Second World War. Unquestionably the primary concerns were to address the food shortages deriving from that war. But the founders of the Organization always looked beyond these contingencies and defined loftier and broader goals: “ensuring humanity’s freedom from hunger”4 but also “raising levels of nutrition and standards of living,”5 as stated in the Preamble of the FAO Constitution that entered into force on October 16, 1945. Sixty-five years later, these goals have still not been reached and remain valid and current. Because mankind is still not free from hunger, malnutrition, and food insecurity, it is not surprising that freedom from hunger has been chosen as one of the tenets of the United Nations Millennium Declaration that was adopted ten years ago, on September 8, 2000. With the commitment to “halve, by the year 2015 . . . the proportion of people who suffer from hunger,”6 eradication of extreme poverty and hunger has become the first of the eight so-called Millennium Development Goals (MDGs). The seventh MDG, “ensuring environmental sustainability,” must also be referred to because of its link with the first and, in the context of the present paper, because of its relevance and importance for ocean governance and the related work of FAO. Likewise, in July 2009, the Heads of State and Government of twenty-seven countries, including the members of the G8, as well as a number of heads of international organizations, including FAO, endorsed the “L’Aquila Joint Statement on Global Food Security”7 in which they stressed the “urgent need for decisive action to free humankind from hunger and poverty”8 and agreed “to act with the scale and urgency needed to achieve sustainable global food security.”9 A few months later, in November 2009, a World Sumsmit on Food Security was convened at the invitation of the FAO Director-General who referred to the “silent hunger crisis— affecting one sixth of all humanity.” The Summit adopted a Declaration which reiterated the commitment to take urgent action in order to eradicate hunger

4 Echoing the words “freedom from want of food” contained in the final declaration previously adopted by the United Nations Conference on Food and Agriculture that met in Hot Springs (USA) in May–June 1943. 5 See the objectives expressed in the preamble of the UN Charter, “to promote social progress and standards of life” and “to employ international machinery for the promotion of the economic and social advancement of all people.” 6 United Nations Millennium Declaration, para. 19; text available at http://www.un.org/ millennium/declaration/ares552e.htm. 7 Text available at http://www.g8italia2009.it/static/G8_Allegato/LAquila_Joint_Statement_on_Global_Food_Security[1],0.pdf. 8 Loc. cit., para. 2. 9 Ibid., para. 3.



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from the world and to face the need to feed a world population that will grow by 50% and is “expected to surpass 9 billion in 2050.”10 From the point of view of the governance of the seas and oceans, their relevance and importance in relation to the fight against hunger and poverty lies mainly in their living resources exploited through capture fisheries or aquaculture, along with the increasing development of mariculture and sea-ranching. The utilization of maritime spaces (both within and beyond the areas under national jurisdiction) for the production of food derived from aquatic organisms is therefore the aspect of ocean governance that FAO is competent to address. Fish does not represent an important percentage of the total caloric intake in human consumption. It is however an essential food in terms of nutrition and health value, as an affordable source of high-quality animal protein and essential micronutrients, including various vitamins and minerals, while being usually low in saturated fats, carbohydrates and cholesterol.11 Hence the recognition that fisheries, either marine or inland, and aquaculture will continue to play a “significant role . . . in providing food security for the world,” as stated in the 1995 Kyoto Declaration and Plan of Action on the Sustainable Contribution of Fisheries to Food Security.12 In addition, fisheries and aquaculture are an important source of income and employment, thus contributing to rising standards of living as well as to the fight against poverty. It may be expected that the demand for fish will continue to grow substantially in the coming years, but will it lead to a corresponding increase in production? The trends are clear as overall, 142 million tons of fish were produced in 200813 compared to 107 million tons in 2005. Can the fisheries and aquaculture sector

10 Declaration of the World Summit on Food Security, para. 4. Text available at http:// www.fao.org/fileadmin/templates/wsfs/Summit/Docs/Final_Declaration/WSFS09_Dec laration.pdf. 11 Food and Agriculture Organization of the United Nations (FAO), The State of World Fisheries and Aquaculture—2010 (SOFIA 2010) (Rome, 2010), 64. The contribution of fish to animal protein supply varies considerably from region to region and between countries (see the summarized analysis ibidem 64–69). An Expert Consultation on the Risks and Benefits of Fish Consumption (Rome, 25–29 January 2010) noted that in some populations there may be no alternative and affordable food sources for the nutrients provided by fish and fishery products. Ibid., p. 103. 12 The Kyoto Declaration was adopted by the International Conference on the Sustainable Contribution of Fisheries to Food Security, held in Kyoto, Japan from December 4–9, 1995. The 1996 FAO World Food Summit referred to it expressly in the Plan of Action that it adopted, which included the following commitment: “Implement sustainable fisheries management and practices, in particular the Code of Conduct for Responsible Fisheries, to address a responsible and sustainable utilization and conservation of fisheries resources in order to optimize the long-term sustainable contribution of fisheries resources to food security” (Objective 3.2, para. 33 (d)—text available at http://www.fao .org/docrep/003/w3613e/w3613e00.HTM). 13 FAO, SOFIA 2010, p. 3.

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be expected to meet this constantly increasing demand? The response is different according to whether we speak of fisheries and of aquaculture. In the case of capture fisheries, especially marine fisheries, everything indicates that overall they are stagnating or, if we put it in a more constructive light, they have stabilized at around roughly 90 million tons per year.14 It would not be realistic to expect that a further sustainable increase could occur; the only reasonable hope is that this level be sustained. Moreover, the condition of the stocks is a source of great concern. On the positive side, it is interesting to note that the percentage of stocks that are “fully exploited” (which is the optimum goal) has remained stable at 52% during the last years. However this means that there is no room for further expansion in the exploitation of these stocks, which, in addition, are susceptible to potential decline if they are not properly managed. Mismanagement is a threat internal to the sector, along with overfishing, overcapacity of the fishing fleets as well as illegal, unregulated and unreported fishing, the so-called “IUU fishing,” which may be considered as an imminent and ominous threat to 80% of the stocks. There are also a number of significant threats external to the fisheries and aquaculture sector, including marine pollution (inter alia from land-based sources) and climate change. The situation is made worse by the declining percentage of moderately exploited or underexploited stocks: 15% in 2008 compared to 20% in 2006. Correspondingly, the percentage of over­ exploited or depleted stocks continues to increase: 33% in 2008 compared to 28% in 2006. In the case of aquaculture, the circumstances are quite different. Aquaculture has responded quite dynamically and efficiently to the challenge of an everincreasing demand for fish and fish products. Aquaculture production has been described as booming15 and is now on the verge of providing more than half of human consumption of fish and fish products.16 Mariculture, or more exactly

14 The latest update of the FAO capture database indicates that in 2009 the global total catch was about 88.9 million tonnes. FAO statisticians stressed the stability of the global total catch during the four year period 2006–2009, ranging between 88.9 and 90.1 million tonnes. The updated database is available at http://www.fao.org/fishery/ statistics/software/fishstat/en. 15 Significantly, in the 1995 FAO Code of Conduct for Responsible Fisheries, at least at the level of the titles of the articles, the term “development” is used in association with the reference to “aquaculture” whilst, in relation to fisheries, the preferred term is “management.” 16 In 1970, aquaculture represented only 3.9% of total fish production for human consumption; in 2006–2008, it represented almost half of total production. From less than one million tons in 1950 it has reached 52.5 million tons in 2008. However, it is expected that the growth rate of the aquaculture sector will slow down. Aquaculture is also facing its own threats, some of which are specific to the sector whilst other are shared with capture fisheries.



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aquaculture in sea water, represented in 2008 about 32.3% of aquaculture production in terms of quantity and 30.7% in terms of value.17 Such is the basis upon which FAO and its Fisheries and Aquaculture Department have developed the following “vision”: a world in which responsible and sustainable use of fisheries and aquaculture resources make an appreciable contribution to human well-being and poverty alleviation, where these resources contribute to food security and improved nutrition and where the fisheries and aquaculture sector, by operating responsibly, can respond to the increasing demand for fish and fish products of an ever-growing world population. In addition to this guiding reference and goal, FAO has adopted in 2009 a new strategic framework which includes, as Strategic Objective C, the “sustainable management and use of fisheries and aquaculture resources.”18 FAO activities in the field of fisheries and aquaculture are subject to the expectation of FAO members that the Organization must define priorities on the basis of its comparative advantages. These priorities can be grouped in two broad categories: first, to improve and strengthen governance and management in general and in relation to specific areas and issues that need particular attention (such as small-scale fisheries, offshore aquaculture and the promotion of an ecosystem approach for fisheries and aquaculture management); and second, to combat the threats to good governance and management, both external to the sector (e.g. climate change) and internal to it, more particularly, illegal, unreported and unregulated (IUU) fishing. FAO provides to its members individually or at the sub-regional and regional level the necessary assistance and capacity building to enable them to exercise fully and efficiently their rights and comply with their obligations under international law. This paper will focus on the two other categories of actions and activities undertaken by the Organization which have a direct bearing on ocean governance. First, the development of a growing body of soft law and hard law through the negotiation and adoption of rules, norms, standards, and principles contained in a range of international instruments within the overall framework of the 1995 FAO Code of Conduct for Responsible Fisheries. Second, the provision of an institutional framework through which these rules and standards, but also concrete measures, may be negotiated and adopted, both at the global and regional levels.

17 SOFIA 2010, op. cit. p. 22. 18 FAO Conference, Thirty-sixth Session, Rome, November 18–23, 2009, Document C 2009/15, “Medium Term Plan 2010–13 and Programme of Work and Budget 2010–11,” pp. 87–93; text available at http://www.fao.org/unfao/bodies/conf/c2009/Index_en.HTM.

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FAO and the Progressive Development of a Body of Law, Both Soft and Hard, Applicable to Ocean Governance: A paradigm shift: the concept of responsible fisheries and the FAO Code of Conduct for Responsible Fisheries Half a century ago, when FAO had been recently established, countries could freely focus on unabashed growth and expansion of the exploitation of the marine living resources through the use of more efficient gear and the access to hitherto unexploited areas and resources. Since then, there has been since a paradigm shift, with the generalized awareness that development cannot be limitless but must be sustainable and respectful of the environment. In the field of marine fisheries and aquaculture, this shift occurred through the convergence of two different currents. The first current is that of the international law of the sea, as embodied and developed in the 1982 UN Convention on the Law of the Sea (UNCLOS). With regards to fisheries, the Convention contains the basic rules on the rights and obligations of States in relation to the conservation and utilization of the marine living resources. It defines, in general terms, how States should behave, individually as well as through compliance with their duty to cooperate.19 Since these rules are recognized as part of customary international law, they are binding upon all States, whether or not they are Parties to the Convention. The legal framework thus established constitutes a complex and delicate package and any further evolution (for instance in relation to the areas beyond national jurisdiction) can be expected to take place within it and without unsettling its balance. The second current is that of the international law of the environment, expressed above all in the Rio Declaration and Agenda 21, adopted by the 1992 UN Conference on Environment and Development (UNCED). In addition to the concept of “sustainable development”, these instruments have introduced a number of new concepts and approaches which are very relevant to fisheries and aquaculture such as the “precautionary approach” and the “ecosystem-based approach.” Another significant development was the recognition of the “special situation and needs of developing countries” (Rio Declaration, Principle 6) and their “differentiated responsibilities” (Rio Declaration, Principle 7). The convergence between these two currents (which we might call the “greening of the international law of the sea”)20 has stimulated within FAO the devel-

19 See Harry N. Scheiber, “Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation—and Frustration,” Virginia Environmental Law Journal 20 (2001): 119– 130, and Harry N. Scheiber and Chris Carr, “Dealing with a Resource Crisis: Globalization and the Management of the Marine Fisheries,” Stanford Environmental Law Journal 21 (2002): 45–79. 20 To use in a narrower context the appropriately striking expression used by Edmonds 1994 and Sands 1994 in two articles that describe this phenomenon at the level of inter-



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opment of a coherent, comprehensive and growing body of rules, principles and standards applicable to fisheries and aquaculture. The negotiation and adoption in October 1995 by the FAO Conference of the Code of Conduct for Responsible Fisheries has constituted an essential step in this process, which is still ongoing. The Code of Conduct contains 12 articles, which are more similar to chapters or sections than “articles” as usually understood. It has two essential characteristics which must be highlighted: the first, the fact that it is a non-binding instrument whose implementation is therefore voluntary,21 but which carries very important weight, because of its substantive contents and as a consequence of its political legitimacy and authority. The Code is the result of an exhaustive process of negotiation which was open to all FAO members. It was adopted through consensus by the FAO Conference, in which all members of the Organization are represented. Another element that bolsters the political legitimacy and authority of the Code is that, following the model of the Rio Declaration and Agenda 21, it has expressly recognized the special situation and needs of developing countries, to which a full article is dedicated (Article 5 “Special requirements of developing countries”). The second characteristic of the Code that must be highlighted is its allencompassing nature, throughout its nineteen “general principles” contained in Article 6 as well as the detailed provisions that may be found in the other articles. This comprehensiveness of the Code is illustrated by four important and significant traits. The first is that the Code addresses all fisheries, both marine and inland, as well as aquaculture.22 The second is that the Code addresses all stages in fisheries, from the fish in the water to the fish on the plate: from fisheries research (Article 12) to fisheries management (Article 7), fisheries operations (Article 8) and finally, post-harvest practices and trade (Article 11). The third is that the Code is directed towards not only States but all stakeholders, which are comprehensively referred to and listed in Article 1.2.23 The fourth is that the Code promotes a holistic approach, whereby fisheries are considered within the ecosystem and the fisheries sector is approached in an integrated manner, within a broader policy, legal and institutional framework.24 national law in general (see Paul P. Edmonds, “The Greening of International Law,” McGill Law Journal 1 [1994]: 742–769; Philippe Sands, “The ‘Greening’ of International Law: Emerging Principles and Rules,” Global Legal Studies Journal 1 [1994]: 293–383). 21  Article 1—Nature and Scope of the Code: “1.1 This Code is voluntary. [. . .]”. 22 Article 9—Aquaculture Development. 23 Article 1—Nature and Scope of the Code, “1.2 The Code is global in scope, and is directed towards members and non-members of FAO, fishing entities, subregional, regional and global organizations, whether governmental or non-governmental, and all persons concerned with the conservation of fisheries resources and management and development of fisheries, such as fishers, those engaged in processing and marketing of fish and fishery products and other users of the aquatic environment in relation to fisheries.” 24 See for instance Article 10—Integration of Fisheries into Coastal Area Management.

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During the years that followed its adoption, the Code of Conduct has been used as an overarching reference for States, intergovernmental organizations such as FAO and all relevant stakeholders. However, 15 years from its inception, it must be recognized that overall compliance globally with the Code may still be considered as poor. The situation of developing countries in particular is difficult because of the great challenges that they are facing in terms of the human and financial resources needed for such compliance. Not long after the adoption of the Code, it also became evident that it was necessary to develop and complement its principles and standards through the global negotiation of new international instruments. Beyond the Code of Conduct but Within its Framework: The Negotiation and Adoption of New International Instruments Within the overarching framework of the Code of Conduct a great variety of additional and complementary international instruments have been developed, comprising plans of action, strategies, international guidelines, and agreements. It is not possible in the limited space of this paper to provide a detailed analysis of these instruments. However, it may be useful to refer to the areas and issues that they cover and which can be categorized as follows: – the quest for an improved governance of the high seas, with the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (“Compliance Agreement”) and the 2009 FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas; – the fight against fleet overcapacity, with the 1999 FAO International Plan of Action for the Management of Fishing Capacity; – protecting certain species and the ecosystems, with the 1999 FAO Plan of Action for reducing the incidental catch of seabirds in longline fisheries, the 1999 FAO Plan of Action for the conservation and management of sharks; the 2009 FAO Guidelines to reduce sea turtle mortality in fishing operations and the 2010 International Guidelines for bycatch management and reduction of discards; – ensuring responsible fisheries and aquaculture and the sustainability of fishing and of the fishing resources through ecolabelling and the certification of fish and fish products, with the FAO Guidelines for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries (revised in 2009), the Guidelines for the Ecolabelling of Fish and Fishery Products from Inland Fisheries and Technical Guidelines on Aquaculture Certification. These last two instruments have been endorsed by the FAO Committee on Fisheries (COFI) during its 29th session in January-February 2011. In addition, a process to develop an evaluation framework to assess the conformity of public and private ecolabelling schemes with the FAO Guidelines for the Ecolabelling of Marine Capture Fisheries was initiated with an Expert Consultation held in October 2010;



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– finally, combating illegal, unreported and unregulated (IUU) fishing which warrants special attention in this paper. Combating IUU Fishing through the Development of Rules, Standards and Tools After the adoption of the Code of Conduct for Responsible Fisheries, FAO undertook the development of a comprehensive set of instruments and tools to combat IUU fishing through a process that it is important to summarize as follows.25 During a first phase, roughly from 1999 to 2001, FAO members consolidated their awareness of IUU fishing as a threat and recognized the need to address it collectively at a global level. The first step was the adoption by COFI in February 1999 of the expression “illegal, unreported and unregulated fishing,” which was borrowed from the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), and its subsequent insertion in the Ministerial Rome Declaration on the Code of Conduct for Responsible Fisheries in March 1999.26 The Declaration called for the development of an International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. This “IPOA-IUU” was adopted in 2001.27 The second phase started in March 2005 with the adoption by a FAO ministerial meeting on fisheries of the Rome Declaration on Illegal, Unreported and Unregulated Fishing,28 which sought a new approach characterized by the wish of the ministers “to move from words to action for full implementation of various international instruments on sustainable fisheries adopted or enacted in the past decades.” The Declaration also reaffirmed “the need for FAO to play a leading role in supporting the efforts of States to implement these instruments.” The Declaration identified a series of specific commitments as well as a number of areas and issues for which further action was needed. It is on this basis that most, if not all subsequent activities undertaken within FAO to combat IUU fishing, have been defined, programmed and executed. These endeavours can be grouped into two categories. The first comprises those activities aimed at designing and utilizing more efficient tools for a better monitoring of IUU fishing. One of these “key tools” (as they were referred to in 25 See Moritaka Hayashi, “Illegal, Unreported and Unregulated (IUU) Fishing: Global and Regional Responses,” in David D. Caron and Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (Leiden, 2004), 95–124, and Harry N. Scheiber, Kathryn J. 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): 97–165. 26 Text available at http://www.fao.org/DOCREP/005/X2220e/X2220e00.HTM. 27 Text available at http://www.fao.org/DOCREP/003/y1224E/Y1224E00.HTM. 28 Text available at ftp://ftp.fao.org/fi/document/ministerial/2005/iuu/declaration.pdf.

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the Declaration) is the “integrated fisheries monitoring, control and surveillance (MCS), including vessel monitoring systems (EMS).” The other key tool is the establishment of a comprehensive and global record of fishing vessels, including “refrigerated transport vessels and supply vessels.” In this record, each vessel would be assigned a permanent and unique individual identifier in order to facilitate its identification and tracking. The record would also “incorporate available information on beneficial ownership.” Establishing such a record poses considerable challenges, including in terms of costs and of the human resources that would be needed for its maintenance. A first feasibility study was carried out by FAO in March 2007, followed by an Expert Consultation in February 2008. On this basis, and consistent with the agreement reached by COFI in March 2009, a Technical Consultation was convened in November 2010 to further discuss the ways and means for establishing the global record. The report of the Technical Consultation was submitted to the next session of COFI in January–February 2011. The Committee reiterated its support for the Global Record and recognized that it should be developed as a voluntary and long-term initiative under FAO’s supervision with a need for flexibility and a phased approach. This development should be done in a cost-effective manner, taking advantage of existing systems and information technology (IT) platforms, where possible. The second category of activities comprises those aimed at further defining the duties and responsibilities of two categories of States—the port States and the flag States—which play a preeminent role in relation to IUU fishing. First, port States. Ports are the bottleneck of fishing operations: all sizeable landings of fish must be made in ports and fuel and supplies necessary to engage in, or support fishing operations can only be provided through ports. The negotiators of the 1982 UN Convention on the Law of the Sea did not however take into account this situation and the Convention does not contain any reference to port States in its provisions related to marine living resources and fishing, but only in its Part XII on the protection and preservation of the marine environment. During the years that followed the adoption of the Convention, the international community became aware, slowly at first, of the key role that port States play to hinder or, on the contrary, to facilitate IUU fishing. In particular, attention was drawn to the threat posed by port States “of convenience” which hamper bona fide efforts by flag States to control the activities of fishing vessels flying their flags or by coastal states with regards to foreign fishing vessels operating in areas under their national jurisdiction. Nonetheless, it took more than a decade after the adoption of UNCLOS to build up a level of awareness and political commitment sufficient to be translated into action. A first concrete step was taken in 1993 with the introduction of a rather timid and limited reference to port States in the FAO Compliance Agreement. This was the start of a difficult and complex process characterized by the successive insertion in the international instruments that were adopted of increasingly developed references to port States. This process may be considered to have culminated with the adoption in 2009 of the FAO



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Agreement on Port State Measures to combat illegal, unreported and unregulated fishing.29 This unique legally binding instrument constitutes, without any doubt, a significant contribution to the progressive development of the law of the sea and, for this reason, merits some brief comments in order to highlight at least its most significant traits. First, it is important to stress that the focus of this Agreement is not on the rights of port States—ports are part of the territory of States and are thus subject to their full sovereignty. The focus instead is on the obligations and duties of the port States. New obligations and duties had to be developed and established to compel port States to behave in a way consistent with and conducive to the prevention, deterrence and elimination of IUU fishing. One of the main challenges of the negotiation was to define how far the Agreement should go in this respect. It was finally decided that the Agreement should contain only “minimum standards” (Preamble, para. 8) with the understanding that in the exercise of their sovereignty, port States might eventually adopt more stringent measures.30 What prevailed therefore was the clear sense of the need to find a right and pragmatic balance between an instrument with “teeth” and an instrument which could be accepted, ratified and implemented by most countries. Second, one of the most innovative and bold traits of the Agreement is that it encompasses not only all fishing operations but also a whole range of situations and activities that are directly related to these operations. This is made clear in the definitions contained in Article 1 of the Agreement concerning the terms “fishing,” “fishing related activities,” and “vessel.”31 Third, the Agreement describes with clarity and precision, almost chronologically, all the steps that must be taken in relation to the entry into port of fishing vessels or its denial, as well as the actions that must be taken by the port States to inspect vessels and, following this inspection, the eventual denial of “the use of the port for landing, transshipping, packaging and processing of fish that have not been previously landed and for other port services, including, inter alia, refuelling and resupplying, maintenance and drydocking” (Article 11, “Use of ports,” para. 1). 29 Text available at http://www.fao.org/Legal/treaties/list1-e.htm. 30 “(. . .) in the exercise of their sovereignty over ports located in their territory, States may adopt more stringent measures, in accordance with international law” (Preamble, para. 9). 31 Article 1—Use of terms: “For the purposes of this agreement: . . . (b) “fish” means all species of living marine resources, whether processed or not; (c) “fishing” means searching for, attracting, locating, catching, taking or harvesting fish or any activity which can reasonably be expected to result in the attracting, locating, catching, taking or harvesting of fish; . . . ( j)  “Vessel” means any vessel, ship of another type or boat used for, equipped to be used for, or intended to be used for, fishing or fishing related activities.”

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Notwithstanding all the efforts that were made to agree upon a text that might be acceptable and applicable by most countries, which were successful since the Convention was adopted by consensus, there was a substantial lack of follow-up and support: by the end of January 2011, only twenty-three signatures had been registered32 and two accessions.33 No ratification has yet been received of the twenty-five that are required for the entry into force of the Agreement. The second category of States upon which the activities of FAO related to IUU fishing are focussed is that of the flag States. Recognition of the preeminent responsibility of the flag States could not be eclipsed by the attention given to the role of the port States. A few years ago, the UN Interagency Consultation on Flag State Implementation had already reached that conclusion when it stated that: “The exercise of port State control as a remedy, however useful, cannot effectively counteract the failure of flag States to meet their obligations under international law.”34 As noted above, with the adoption of the 1993 compliance Agreement, FAO had first approached the question of the duties of the flag States from the angle of high seas governance rather than that of IUU fishing. Later, in the succession of instruments aimed at IUU fishing, including the 2001 IPOA-IUU, Flag States were expressly targeted. It is impossible in the limited frame of this paper to present even a summary analysis of the relevant provisions of these instruments. Attention may be drawn instead on the significant evolution of the typology that has been used to qualify those flag States whose behaviour was deemed to be blameworthy and in need to be corrected or sanctioned. This evolution is an interesting manifestation of the dynamics of the approach that was followed in relation to the substantive aspects of the issue. Initially, within FAO, a high degree of reluctance to use the expression “flags of convenience” could be observed: this expression seemed either too simplistic or unnecessarily discriminatory or simply not broad enough: many nations which are responsible for IUU fishing would never be considered as belonging to that category. In spite of this reluctance, the 2005 Ministerial Declaration on IUU fishing used the expression “flags of convenience” and also referred to the question of the so-called “genuine link,” most probably under the influence of the language then used in various UNGA resolutions. This attempt was not followed by effects and, subsequently, in the discussions within FAO, preferential emphasis was put on the more precise and more encompassing notion of “flags of non-compliance,” which has the merit of encompassing all flag states that fail to effectively discharge their duties under international law to effectively control the operations of the fishing vessels authorized to fly their 32 Angola, Australia, Benin, Brazil, Canada, Chile, European Union (Member Organization), France, Gabon, Ghana, Iceland, Indonesia, Kenya, Mozambique, New Zealand, Norway, Peru, Russian Federation, Samoa, Sierra Leone, Turkey, USA, Uruguay. 33 Myanmar, Sri Lanka. 34 Report of the Secretary-General, March 5, 2004, Doc. A/59/63, paragraph 221.



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flag. The next and most recent stage in this terminological evolution was the forging and adoption of the expression “irresponsible flag States” when, in 2007, COFI called for the identification of criteria allowing for the evaluation of the performance of the flag State as well as for the adoption of sanctions against “irresponsible flag States.” Such is the work that is presently undergoing within FAO. Based upon the request made by COFI an Expert Workshop on “Flag State Responsibilities: Assessing Performance and Taking Action” was held in March 2008 at the initiative of the Canadian government, with the technical cooperation of FAO. It was followed by a FAO Expert Consultation on Flag State Performance, which was held in June 2009.35 The next step involved a Technical Consultation scheduled for May 201136 which was expected to develop a new instrument the nature of which has not yet been defined, containing a set of criteria, both regulatory and behavioural. These criteria will constitute a kind of checklist to allow, first and foremost, the flag State concerned to take bona fide corrective actions. The other States would be authorized to adopt sanctions only in the case of persisting failure by the flag State to take these actions. FAO and the Provision of an International Institutional Framework for the Conservation and Management of the Marine Living Resources: The second sphere of action of FAO for consideration in this paper is linked to its own nature and existence as an international institution, which combines a series of deliberating organs and bodies where the sovereign members of the Organization are represented and a permanent secretariat headed by a director general. From the point of view of ocean governance and from the specialized angle of the conservation and management of the living resources, FAO provides, both at the global and regional levels, an institutional framework within which, as described above, rules and standards may be negotiated but also political commitments adopted as well as concrete measures. This, in addition to a broad span of activities including information gathering and dissemination, assistance and capacity building.

35 The text of the report of this Expert Consultation is available at ftp://ftp.fao.org/docrep/ fao/012/i1249e/i1249e00.pdf. 36 This Technical Consultation was initially programmed to take place during 2010 but it had to be postponed due to the lack of the funds needed for its convening. Because of the heavy limitations of the FAO regular program budgetary resources, these funds must generally come from extrabudgetary sources, which requires the cooperation and generosity of donor countries.

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Once again, it is not possible to describe and analyze all the relevant aspects and elements in the short space of this paper. Focus will therefore be on the efforts that are underway in the Organization in order to rationalize the use of the available resources necessary to fulfil its mandate and the challenges of this endeavour. This ongoing process of internal deliberation, self-scrutiny and reform necessarily has consequences for the way in which the Organization deals with the issues related to the conservation and management of marine living resources. At the global level, the core components of the Organization that are directly concerned with ocean governance are, on the one hand, the Fisheries and Aquaculture Department, as part of the Secretariat and, on the other, the Committee on Fisheries (COFI), which is one of the deliberating bodies representing the sovereign members of the Organization. What may be interesting and important to highlight in relation to the Fisheries and Aquaculture Department is that it has organically evolved in a way that it reflects the whole range of topics and issues addressed in the Code of Conduct for Responsible Fisheries, from the fish in the water to the fish on the plate. As a consequence of the reform of the Organization as a whole, the Department has been restructured recently. Since the beginning of 2010, in addition to the loss, through mandatory “delayering,” of several senior managerial positions, the number of the “divisions” of the Department has been reduced from three to two. This has not substantially affected however the number and mandate of the specialized units organized at the level of “services” within the divisions. Within FAO, the Fisheries and Aquaculture Department interacts as appropriate with the other FAO departments and units—including enjoying a strong working relationship with the Legal Office. It also maintains work relations with the various FAO decentralized offices, at the regional, subregional and national levels, as well as with the FAO regional fishery bodies (RFBs). As indicated by its name, the Committee on Fisheries (COFI) is the deliberating body of the Organization that is specifically competent to address all issues related to fisheries and aquaculture. It must report to two governing bodies, the FAO Council, on financial and administrative matters, and the Conference, for global policy and regulatory matters. The singular importance of COFI resides in the fact that, beyond FAO itself, it is the only global inter-governmental forum which is dedicated exclusively to the consideration of all issues related to fisheries and aquaculture. In this respect, attention must also be drawn to the existence of two COFI subcommittees which cover respectively the areas of post-harvest and trade and aquaculture: the Sub-Committee on Fish Trade and the Sub-Committee on Aquaculture. In addition to its function of providing guidance to the Fisheries and Aquaculture Department and the Organization in relation to their work, COFI is therefore a unique mechanism to craft and formulate collective commitments at the global level, as well as for adopting new international instruments. In this regard, rather than being considered only as an FAO body, COFI should



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be regarded as an important component of a broader international institutional ensemble—which includes, among others, the UNGA and its debate of the recurrently adopted resolution on sustainable fisheries. For these reasons, it is not surprising to note that, over the recent years, the level of participation in COFI has increased considerably and continuously. Strikingly, this increase does not result only from more participation by FAO members. It is the consequence of the presence and participation of an increased number of other stakeholders, mainly international nongovernmental organizations (INGOs), which are represented as observers.37 COFI is also affected by the broader process of renewal and reform of the Organization, which has meant only, until now, a modification in the timing of its sessions. COFI will review its practices including its rules of procedure during its 30th session in July 2012 and probably revise them on that occasion. At the regional level, in addition to its decentralized offices, FAO has eleven regional fisheries management organizations (RFMOs), roughly a fourth of all existing RFMOs. In general terms, RFMOs are small international institutions in themselves, combining deliberating bodies (the plenary meeting of members and subsidiary organs) and a permanent secretariat.38 They constitute a fundamental component of the international institutional framework for ocean governance. They play a most important role in ensuring compliance with the responsibilities and duties of States under international law, in particular with regards to their cooperation for the conservation and utilization of marine living resources, as well in promoting and facilitating the implementation of the Code of Conduct for Responsible Fisheries and related instruments. RFMOs are numerous (about 40 worldwide excepting the fisheries bilateral commissions) with a great variety of scopes, mandates and competences, which reflect and are adapted to the different kinds of marine living resources and the different legal regimes applicable to them as a consequence of their characteristics or location.39 FAO RFMOs are present in all regions of the world and cover a wide variety of species and stocks. Five of these bodies40 have been established under Article

37 For instance, during the 29th session of COFI in January–February 2011, in addition to the participating 115 members of the Committee, two other FAO Member Nations, one Associated Member and the Holy See as well as five specialized UN agencies, there were delegations from 64 intergovernmental organizations (IGOs) and INGOs. 38 Contrastingly, the so-called “arrangements” do not necessarily have a secretariat. 39 For instance, highly migratory species versus discrete high seas stocks or stocks under the national jurisdiction of specific coastal States, etc. 40 1. Central Asian and Caucasus Regional Fisheries and Aquaculture Commission (CACFAC); 2. General Fisheries Commission for the Mediterranean (GFCM); 3. Indian Ocean

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XIV of the FAO Constitution, which provides them with a considerable degree of functional autonomy. With the exception of one of them (APFIC), they are all regional fisheries management organizations (RFMOs), endowed with management functions and powers as well as an autonomous budget. Six41 are advisory bodies established under Article VI of the FAO Constitution, half of them dealing exclusively with inland fisheries and aquaculture. They are fully dependent upon FAO for their functioning. Nonetheless, the Organization shares responsibility for the effective operation of all these bodies, proportionate to the degree of functional autonomy that they enjoy. This is a costly challenge and, not surprisingly, within the framework of the ongoing FAO reform, an internal reflection is underway to analyze and define what should be done in terms of supporting these bodies and servicing them in a cost-effective manner. In the long run, the unavoidable trend seems to be an ever-greater level of autonomy of these bodies including a higher degree of reliance upon the contributions of their members,42 in spite of the past experience which has demonstrated the reluctance of many members of these bodies to go in that direction, for a number of reasons, not only financial but sometimes political.43 The special relationship existing between FAO and its RFMOs is without prejudice to the general goal of the Organization to cooperate with and provide support to, as appropriate, the other RFMOs established outside the framework of FAO,44 as well as other relevant entities including, for instance, the new bodies

Tuna Commission (IOTC); 4. Regional Commission for Fisheries (RECOFI) (for the region of “the Gulf ”); 5. Asia-Pacific Fishery Commission (APFIC). 41 1. Fishery Committee for the Eastern Central Atlantic (CECAF); 2. Committee for Inland Fisheries and Aquaculture of Africa (CIFAA); 3. Commission for Inland Fisheries of Latin America (COPESCAL); 4. European Inland Fisheries and Aquaculture Advisory Commission (EIFAAC); 5. Southwest Indian Ocean Fisheries Commission (SWIOFC); 6. Western Central Atlantic Fishery Commission (WECAFC). 42 One of the solutions, for instance, would be to convert Article VI bodies into Article XIV ones. 43 In some cases for instance, there is clearly a wish from members to maintain a body within the framework of the United Nations, through FAO, for political reasons. In other instances, members are simply reluctant to provide additional funding because of their own financial difficulties. 44 An example of such support is the provision by the Fisheries and Aquaculture Department of the Secretary and related secretariat services to the Regional Fishery Body Secretariats Network (RSN) which was chaired until recently by Mr. K. Hoydal, Secretary of the North East Atlantic Fisheries Commission (NEAFC) who has been replaced in February 2011 by Mr. A. Wright of CCAMLR. Another example is the coordination and support roles played by the Department in relation to the Fishery Resources Monitoring System (FIRMS) to which seven non-FAO RFMOs are presently associated (CCAMLR; CCSBT; IATTC; ICCAT; NAFO; NEAFC; SEAFO).



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that are being established for the integrated management of large marine ecosystems.45 In addition, ocean governance in this respect is best served by promoting and encouraging active cooperation between these bodies, including the more or less formalized creation of networks and arrangements,46 which may be extended to other relevant stakeholders, such as environmental INGOs or associations of fishers. This flexible approach will make possible the attainment of a stage in the future when not one area of the world seas and oceans and not one single stock will remain without being covered by at least one of these bodies or networks, rather than through their subsuming or subordination to a new, centralized institution responsible for the consideration of management of marine living resources. In this respect, it is interesting to draw attention to a remarkable example, the present situation of the Indian Ocean where the dynamic interaction between the existing bodies, both governmental and nongovernmental,47 ensures complete coverage of the area and resources. Finally, there are three elements that must be briefly touched upon in this paper because of their potential impact on the nature and scope of the work and activities of FAO relevant to ocean governance, both at a global and regional level, as well on the capacity of the Organization for effective delivery in the field of fisheries and aquaculture.48 The first is the increased role played by extrabudgetary funding of the activities of the Organization even in relation to activities that might be expected to be supported by its regular budget.49 A great step forward was made towards full transparency of this process with the recent decision to integrate of extrabudgetary funds (EBFs) in the overall budget of the Organization as submitted for approval by its governing bodies. COFI also agreed that these EBFs should be 45 For instance, the current FAO participation in the process of consultations towards the eventual establishment of the Guinea Current Large Marine Ecosystem Commission. 46 For instance, the January 2007 Kobe joint meeting of tuna RFMOs and subsequent joint meetings of these bodies. 47 For the areas under national jurisdiction, the Southwest Indian Ocean Fisheries Commission (SWIOFC) (FAO Article VI RFB); for the high seas and their straddling and discrete stocks, the Southern Indian Ocean Fisheries Agreement (SIOFA) (FAO as a depositary); for tuna and tuna-like species, the Indian Ocean Tuna Commission (IOTC) (FAO Article XIV RFMO); and, lastly, the Southern Indian Ocean Deepsea Fishers’ Association (SIODFA). 48 These three elements were mentioned in the oral presentation made during the Hamburg Conference in October 2010 and on the occasion of the subsequent round of questions and comments. They are referred to more extensively in the document on “Priorities and Results under the Medium-term Plan and Programme of Work and Budget” (COFI/2011/9, December 2010) that was submitted to the 29th session of COFI which overall endorsed it; see paras. 2.6 to 2.9 of that document. 49 For instance, the convening of expert or technical consultations for the development of new international instruments.

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assigned to activities previously defined as having priority. But great care must still be given to strike an appropriate balance between the two kinds of funding and avoid if possible reliance on extrabudgetary funding for those activities that correspond to core functions of the Organization50 and should not be subject to the uncertainty deriving from the inherent voluntary and fluctuating nature of this type of funding. The second element is related to the on-going process of decentralization of the Organization which has been enthusiastically endorsed by its members. There are many advantages in providing more strength and autonomy to the FAO decentralized components, in particular to the Regional Conferences that are mutatis mutandis the equivalent of the FAO Conference at the level of the region. However, some caution is called for: for instance, recent experience has shown a degree of marginalization of fisheries and aquaculture in the Regional Conferences and, because of their respectively limited scopes and mandates, the RFBs cannot be expected to compensate or correct this situation or play a role similar to that of the Regional Forestry Commissions. While it is imperative to take into account the specificities of each region and their particular needs, it is vital to ensure the right balance and overall coherence, particularly in areas such as ocean governance and fisheries and aquaculture. The third element is related to the need to avoid unnecessary and counterproductive duplication and confusion between actions and activities of different entities competent to address specific aspects of ocean governance. The challenge is to identify the comparative advantages of each involved entity, including FAO, and promote the development of arrangements and partnerships that ensure an optimization of the specialized input to be provided by each partner. In the field of the conservation and utilization of marine living resources, it is hoped that such arrangements and partnerships would be open and flexible and include not only IGOs (such as FAO) but also States, NGOs, universities and research institutes and the private sector, as appropriate. In conclusion, it should be borne in mind that, however important the role and contribution of FAO might be with regards to ocean governance and the conservation and management of marine living resources, in the end it must remain essentially that of a catalyst. Only States and the stakeholders involved in the activities of the fisheries and aquaculture sector can ensure, through their commitment and practical action, the success of the strategies and policies that are defined within the Organization and compliance with the rules and standards established in the relevant FAO international instruments.

50 For instance, fisheries and aquaculture statistics.

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Implementation of the Common Heritage of Mankind Michael W. Lodge1

Almost exactly 30 years after the adoption of the United Nations Convention on the Law of the Sea (UNCLOS), which took place in New York on April 30, 1982, it seems appropriate to reflect on the question of the “common heritage of mankind,” one of the most controversial principles embodied in UNCLOS. The common heritage principle is found in Part XI of UNCLOS, which is the Part of UNCLOS which establishes a regime for mining of the deep seabed beyond national jurisdiction. This paper focuses on the implementation of the common heritage principle in relation to the mineral resources of the deep seabed. It begins with a brief review of what is meant by the common heritage principle in the context of Part XI of UNCLOS. Secondly, it examines how successful, or not, the international community has been in implementing the common heritage principle through the mechanism of the International Seabed Authority and what steps may be necessary to improve implementation. Third, some general comments are made relating to the possible future development of the common heritage principle. Background to the Common Heritage Principal It is often said that the desire to give content to the principle of the common heritage of mankind was the main driving force behind the decision to convene a third UNCLOS. In fact, the idea that one or more parts of the global commons should be considered the common heritage of mankind was not new even in 1967, which is when Ambassador Pardo of Malta made his famous proposal to the First Committee of the General Assembly that the time had come to declare “the seabed and the ocean floor a common heritage of mankind,” not subject to 1 The views expressed in this paper are those of the author and do not necessarily reflect the position of the International Seabed Authority.

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national appropriation and reserved exclusively for peaceful purposes, with their resources to be used in the interests of mankind.2 Whilst this is often identified as the defining moment that was to lead to the decision to convene UNCLOS III, Pardo was in many ways merely reflecting the spirit of the times in an era where there was intense interest in the materialization of common interests in common resources through global regimes.3 Indeed, in broad terms, the idea of a common interest of mankind can be identified in the development of international agreements across multiple sectors in the second half of the twentieth century, including human rights, cultural heritage, labour, public health, telecommunications, outer space, Antarctica and the environment.4 The basic content of what would become the common heritage of mankind principle as embodied in UNCLOS was largely contained in the operative paragraphs of the Declaration of Principles Governing the Sea-bed and Ocean Floor and the Subsoil Thereof, beyond the Limits of National Jurisdiction, adopted by the General Assembly on December 17, 1970.5 The Declaration stated, inter alia, that the seabed and ocean floor beyond the limits of national jurisdiction are the common heritage of mankind; that they shall not be subject to national appropriation; that no rights shall be exercised or claimed with respect to the resources of the seabed that may be incompatible with an international regime to be established; and that the seabed is to be reserved exclusively for peaceful purposes. By

2 The issue was in fact already before the United Nations since 1966, when the Economic and Social Council had requested the Secretary-General to prepare a report identifying the mineral and food resources of the sea beyond the continental shelf, other than fish, which may be available for economic exploitation for the benefit of developing countries. In the same year that Pardo addressed the General Assembly, the World Peace through Law Conference adopted a resolution (Resolution No. 15) calling on the United Nations to declare the high seas the common heritage of mankind and issue a proclamation declaring the non-fishery resources of the high seas and the seabed to be made subject to the jurisdiction and control of the United Nations on behalf of mankind as a whole. This resolution was quoted by Ambassador Pardo in his presentation of the Maltese proposal to the First Committee (A/C.1/PV 1515, November 1, 1967, para. 104). 3 R. Wolfrum, “The Principle of the Common Heritage of Mankind,” Zeitschrift für ausländisches öffentliches Recht under Völkerrecht 43 (1983): 312–337. The idea that there could be a part of the global commons—an “indivisible common patrimony”—which should be set apart in common for the use of all people, which were not capable of being subject to claims of State sovereignty or ownership, but which were subject to certain defined rights of common use, had been expressed as early as 1830 by the LatinAmerican jurist Andrés Bello. For a discussion of the history of the common heritage principle see H. Tuerk, “The Principle of the Common Heritage of Mankind,” Chapter 3 in Reflections on the Contemporary Law of the Sea (Leiden, 2012); Satya N. Nandan, Michael Lodge and Shabtai Rosenne, The Development of the Regime for Seabed Mining (Kingston, Jamaica, 2002), 3–23. 4 A. Kiss, “The Common Heritage of Mankind: Utopia or Reality,” International Journal 40 (1984–1985): 423–441. 5 Resolution 2749 (XXV), December 17, 1970.



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and large, these principles were retained throughout UNCLOS III, during which discussions focused mainly on the nature of the international machinery to be established for the purposes of managing the common heritage. What Is the Meaning of the Common Heritage Principal? It is notoriously difficult to attach precise legal meaning to statements of broad principle and the common heritage of mankind is no exception. Many different views and legal interpretations have been assigned to precisely defining the scope and content of the obligations and responsibilities that the phrase may encompass and many writers have speculated on the customary international law status of the concept. Some clue as to Pardo’s objective may be gleaned from a statement made before the Parliamentary Assembly of the Council of Europe in 1970: In ocean space, however, the time has come to recognize as a basic principle of international law, the overriding common interest of mankind in the preservation of the quality of the marine environment and in the rational and equitable development of its resources lying beyond national jurisdiction. This does not imply disregard of the interests of individual states, but rather recognition of the fact that in the long term these interests can be protected only within the framework of a stable international regime of close cooperation between States.6

This statement emphasizes that the common heritage implies something more than res communis. A simple regime of non-appropriation and common use of resources is not enough to safeguard the interests of future generations and to ensure that benefits from resources held in common are shared on an equitable basis. Notwithstanding what may have been intended, and notwithstanding the many interpretations put forward during and since UNCLOS III, as far as the regime for the Area is concerned the common heritage principle finds its expression as a legal concept exclusively in Part XI of UNCLOS, specifically in Articles 136 to 141. Article 136 provides that the Area (defined as the seabed beyond national jurisdiction and the subsoil thereof) and its resources are the common heritage of mankind. It is worth noting that this is regarded as such a fundamental principle that Article 311(6) prohibits States Parties to UNCLOS from making any amendments to the basic principle relating to the common heritage or from becoming party to any agreement in derogation thereof.7 It is worth noting further that,

6 A. Pardo, The Common Heritage: Selected Papers on Oceans and World Order, 1967–1974 (Valletta, 1975), 176. 7 Wolfrum, “Principle of Common Heritage.” Some States actually favoured declaring the common heritage part of the jus cogens and in fact an informal proposal to this effect was made by Chile. UN Doc. A/CONF.62, GP.9, August 5, 1980.

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as in the case of the continental shelf regime, the legal status of the superjacent waters and the airspace above remains unaffected by the status conferred on the seabed. Articles 137, 140 and 141 elaborate upon Article 136 and in so doing bring some degree of legal clarity to the concept of the common heritage. Article 137(1) provides that no State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. By itself, this is not a wholly new concept. The rule relating to prohibition of sovereignty over the high seas was already stated in Article 2 of the 1958 Geneva Convention on the High Seas, as well as in paragraph 2 of the Declaration of Principles. What is novel, however, is Article 137(2) which vests all the rights in the resources of the Area in mankind as a whole and provides that these rights are to be exercised through the Authority, on behalf of mankind as a whole.8 Article 137(2) also prohibits the alienation of the resources of the seabed other than in accordance with the provisions of UNCLOS. Article 137(3) underlines the fact that no claim, acquisition or exercise of rights with respect to minerals recovered from the seabed by any State (not just States Parties) or any natural or juridical person shall be recognized other than in accordance with Part XI. In effect therefore, by placing the seabed under the jurisdiction of the international community as a whole, to be exercised through an international organization established for that purpose, and by establishing a special regime for the utilization of the Area and its resources, Articles 136 and 137 alter irrevocably the legal character of the seabed beyond national jurisdiction.9 One further aspect of the new regime that should also be recalled is the special status given to the continental margin beyond 200 nautical miles—the so-called “outer continental shelf.” Through Article 76 of UNCLOS, coastal States with broad continental margins were able to gain recognition for their claims to vast areas of the seabed beyond the EEZ, thus dramatically reducing the geographical extent of the Area and, correspondingly, the scope of activities of the Authority. As a quid pro quo for this, Article 82 of UNCLOS provides for a system of revenuesharing between coastal States and the international community in respect of the exploitation of non-living resources of the outer continental shelf. Although some commentators have suggested that the effect of this compromise was to defeat the objectives of the common heritage principle, a more optimistic view may be 8 As a counterpoint to this, Article 157(1) emphasizes that the Authority is “the organization through which States Parties shall organize and control activities in the Area,” suggesting that the participants with respect to the utilization of the common heritage are intended to be States, and not mankind itself as a subject of international law (see Wolfrum, “Common Heritage” at 319). 9 Wolfrum, ibid.



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that the revenue-sharing regime established by Article 82 should be considered a direct consequence of the special regime that has been created to implement the common heritage principle.10 The second essential element of the common heritage principle is elaborated in Article 140. This provides that activities in the Area (essentially a term of art for deep seabed mining)11 shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States, whether coastal or landlocked, and taking into particular consideration the interests and needs of developing States and of peoples who have not yet attained full independence or other selfgoverning status. To give effect to this aspiration, the Authority is tasked with the development of a mechanism to provide for the equitable sharing, on a nondiscriminatory basis, of financial and other economic benefits derived from deep seabed mining. It has been suggested that the use of the term “mankind as a whole” in this formulation instead of “all States” implies the optimum use of resources in a spirit of conservation for future generations, both in terms of environmental protection and rational resource management by avoiding undue waste in deep seabed mining activities.12 The other key elements inherent in Article 141 are the concepts of equal participation in seabed activities, through a combination of affirmative and restrictive measures, and equitable sharing of financial and economic benefits. The third essential element of the common heritage principle is expressed in Article 141, which provides that the Area shall be open to use exclusively for peaceful purposes, by all States. Initially, the demilitarization of the seabed formed one of the key elements of the Maltese initiative of 1967. At the behest of the United States and the Soviet Union, however, the matter was referred to the Disarmament Conference, which resulted in the Sea-Bed Arms Control Treaty of 1971.13 Whilst this treaty prohibits the use of specified weapons in a specified environment, Article 141 of UNCLOS, as read with Article 301, is generally understood as prohibiting the use of the seabed for aggressive activities in the sense of Article 2 of the UN Charter rather than a complete prohibition on all military activities.14

10 Tuerk, op. cit. at 41 cites a statement by the delegate of Austria at one of the sessions of UNCLOS III that the idea of the common heritage of mankind had been given “a first class burial.” 11 “Activities in the Area” is defined in Article 1(3) of UNCLOS as “all activities of exploration for, and exploitation of, the resources of the Area.” 12 Kiss, “Common Heritage of Mankind.” 13 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and Ocean Floor and the Subsoil thereof. 955 United Nations Treaty Series, 115, entered into force May 18, 1972. 14 Wolfrum op. cit. at 320.

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How Has the Common Heritage Principle Been Implemented in Practice? UNCLOS took a long time to enter into force, although that did not prevent a large number of States from applying some of its provisions immediately, especially those allowing an extension of national jurisdiction. One of the main obstacles to its timely entry into force was objection on the part of most of the industrialized States to the deep seabed mining provisions contained in Part XI. In large measure these objections stemmed from radically different interpretations of the common heritage principle.15 The prolonged delay of entry into force of UNCLOS had two primary consequences. First, there was a need to create an interim regime to protect existing investments in deep seabed mining and to enable those States and entities that wished to carry out seabed mining to do so in a way that conformed to the norms set out in UNCLOS. This was done through two hurriedly-drafted resolutions adopted simultaneously with UNCLOS. Resolution I established a Preparatory Commission to prepare for the entry into force of UNCLOS, and resolution II established the so-called pioneer regime under which States and entities wishing to carry out deep seabed mining could be registered as pioneer investors, with exclusive rights over defined areas, but on significantly more advantageous terms and conditions than those set out in Annex III of UNCLOS. The second factor, in view of the uncertainty surrounding the entry into force of UNCLOS and the position of some States with regard to the status of the common heritage principle as customary international law, was the decision by a group of seven States to establish unilateral legislation governing seabed mining pending subsequent ratification of UNCLOS.16 15 See, for example, L.F.E. Goldie, “A Note on Some Diverse Meanings of ‘The Common Heritage of Mankind,’ ” 10 Syracuse Journal of International Law and Commerce (1983): 69–112. 16 By 1985 unilateral legislation on seabed mining had been enacted by the following seven States: France (1981), Germany (1980), Italy (1985), Japan (1982), the United Kingdom (1981), the United States (1980), and the former Union of the Soviet Socialist Republic (1982). Except in the case of the former Soviet Union, the aim of this legislation was to establish an interim programme to regulate the exploration for and commercial recovery of hard mineral resources of the deep seabed by the Governments of these so-called “reciprocating States,” pending their ratification of UNCLOS. All these States indicated that their legislation was interim in nature, that it did not involve any claim to sovereignty or sovereign rights over the deep seabed or its mineral resources; that they remained committed to the entry into force of UNCLOS embodying the principle of common heritage of mankind (if acceptable text could be agreed upon); that they were not bound by the UN General Assembly Resolution on the subject; and that deepsea mining conducted with due regard to the interests of other States in the freedom of high seas was, under the current law, a legitimate exercise of a high seas freedom. Most of the legislation made provision for its repeal upon entry into force for the States



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As is also well known, the problems with Part XI were resolved through informal consultations initiated by the Secretary-General of the United Nations. These consultations resulted in the adoption by the General Assembly in 1994 of the Implementation Agreement on Part XI.17 The Agreement enabled UNCLOS to enter into force in November 1994, which also marked the formal inauguration of the International Seabed Authority as an autonomous international organization. Since 1994, the number of States Parties to UNCLOS, and thus members of the Authority, has almost trebled to 162, including the European Union. This is a tremendous achievement by any standards and represents near-universal acceptance of UNCLOS and the principles contained therein. The Authority is now in its eighteenth year of existence, although it did not begin to function independently as an autonomous institution until 1997. The first years of the Authority’s existence were mainly devoted to resolving the institutional issues necessary to ensure its independent functioning as an autonomous organization. It is not necessary to touch on these issues here as they have already been amply covered elsewhere.18 What is of central importance is to evaluate the extent to which the Authority has succeeded in giving effect to the principle of the common heritage of mankind. In this regard, the first major milestone in the work of the Authority was the conversion of all the claims to exploration sites registered under the pioneer regime into legally binding contracts of limited duration in accordance with UNCLOS.19 This was done through the adoption of regulations governing exploration for polymetallic nodules, which also included standard clauses for contracts. The significance of this act as far as the common heritage principle is concerned cannot be overstated. It not only brought the pioneer regime to a definitive end, but also brought all existing seabed-mining interests into the single legal regime established by UNCLOS and the 1994 Agreement. Since the adoption of the first set of exploration regulations in 2000, dealing with polymetallic nodules, the Council of the Authority has also adopted regulations governing prospecting and exploration for polymetallic sulphides. This was the second major milestone in the life of the Authority, because it opened the door for claims to be made in respect of resources other than polymetallic nodules, which had been the only subject of discussion during UNCLOS III. Regulations for

c­ oncerned of UNCLOS. See E.D. Brown, The International Law of the Sea, Vol. I (Sudbury, MA, 1994), 456–458. 17 Agreement for the Implementation of Part XI of UNCLOS of December 10, 1982, annexed to General Assembly resolution A/48/263. 18 M.C. Wood, “The International Seabed Authority: The First Four Years,” Max Planck Yearbook of United Nations Law, Vol. 3 (Heidelberg, 1999), 173–241. 19 The conversion of pioneer registrations into contracts was done through a special expedited procedure set out in paragraph 6(a)(ii) of section 1 of the annex to the 1994 Agreement. Full details are set out in document ISBA/4/A/1/Rev.2.

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cobalt-rich crusts have also been elaborated and it is anticipated that they will be adopted in 2012. As well as ending the interim regime, the adoption of a comprehensive framework for exploration has allowed additional claims to be made for exploration sites for polymetallic nodules and polymetallic sulphides, on the basis of the system set out in UNCLOS, the 1994 Agreement and the Authority’s regulations. The situation now is that the Authority has issued a total of eleven contracts for exploration in the international seabed area.20 These contracts cover a total area of 770,000 square kilometres—that is an area nearly eight times the size of the Republic of Korea. Although this pales in comparison to the estimated size of the Area itself,21 it nevertheless represents a considerable portion of the seabed. The licensed entities include States (Republic of Korea and India), state enterprises (Yuzhmorgeologiya, COMRA of China, DORD of Japan, Interoceanmetal Joint Organization, Ifremer of France and BGR of Germany) and more recently private sector entities (Nauru Ocean Resources, Inc. and Tonga Offshore Mining, Ltd.). The conclusion that may be drawn from these developments is that the implementation of the first element of the common heritage principle, as set out in Articles 136 and 137 of UNCLOS, has been an unqualified success. Contrary to initial fears, there are no current claims to seabed mining sites outside UNCLOS regime. All pre-existing claims have been brought within the single regime created by UNCLOS and the 1994 Agreement and furthermore, a number of fresh claims have been made by new investors under that single regime. This not only underlines the near-universal acceptance of UNCLOS regime, but also indicates a degree of confidence in the system as it has been developed through the Authority. As to the third essential element of the common heritage principle, there is little to be said. Since the end of the Cold War, and subsequent political and economic changes around the globe, the question of the reservation of the seabed for peaceful purposes no longer appears to be controversial.

20 At the time of writing [June 2012], eleven contracts had been issued. One further application (by the Russian Federation) has been approved, but the contract had not yet been signed. 21   Since the Area is defined by reference to national jurisdiction, the actual size of the Area cannot be known until the full extent of national jurisdiction is known. Based on the current status of submissions to the Commission for the Limits of the Continental Shelf, which cover a total area slightly in excess of 23 million square kilometres, the best estimate of the size of the Area is 260 million sq. km. In comparison, the area of the world’s EEZs is approximately 85 million square kilometres. Source: NonLiving Resources of the Continental Shelf Beyond 200 Nautical Miles: Speculations on the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, ISA Technical Study No. 5, (Kingston, Jamaica, 2010).



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It is in relation to the second element of the common heritage principle that the achievements of the Authority need to be considered more critically. It will be recalled that the second element—which may loosely be termed the “benefit of mankind” element involves a number of closely related factors, including equal participation, rational use of resources, environmental stewardship and equitable sharing of financial and economic benefits. In terms of overall benefits from the regime for the Area, it is hard to avoid the conclusion that developing countries have precious little to show for more than fifteen years of effort. No commercial mining has yet taken place and no financial benefits have accrued from the Area. The very developing countries that were supposed to benefit from Part XI have in fact been expected to share in financing the Authority. Eighteen years after its establishment, the budget of the Authority is still funded through assessed contributions of member States, using the same scale of assessments as the United Nations, even though UNCLOS only ever envisaged this to be an interim arrangement, applicable until such time as the Authority was able to generate revenue of its own from activities in the Area.22 It may also be recalled that, in the process of achieving the first element of the common heritage principle, major concessions were made in the context of the 1994 Agreement in order to provide an incentive for industrialized countries to accept UNCLOS. These concessions included, for example, abandonment of the fixed fee of $1 million per year for mining contracts provided for in Annex III of UNCLOS,23 as well as a reduction of 50 percent in the fees payable by applicants for exploration contracts.24 The fact is that, apart from the more recent applicants, most of the existing contractors have been occupying areas of the seabed for periods in excess of 25 years. Furthermore, with few exceptions, they show very little urgency in terms of developing these areas for mining. At the same time, they pay nothing to the international community for their exclusive occupation of the global commons. It is of course true that, until recently, economic conditions have not been favourable for seabed mining and it should also be recognized that even in the best of circumstances seabed mining is likely to be a high-risk commercial venture. But at the same time, surely one of the consequences of applying free market principles, as emphasized in the 1994 Agreement, is that operations that are not profitable, or have no prospect of commercial success, should be allowed to fall by the wayside. It is not conducive to optimum use of resources to place them offlimits indefinitely and in this regard one of the great successes of the Authority’s regulatory framework has been to introduce contracts with a limited duration of 15 years, which may be extended only in the most exceptional circumstances.

22 Convention, Article 160, paragraph 2(e). 23 Convention, Annex III, article 13(3). 24 1994 Agreement, annex, section 8, paragraph 3.

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On the positive side of the equation, the approval of exploration contracts in 2011 for private sector entities sponsored by developing States appears, at first blush, to provide an avenue for equal participation by these States in deep seabed mining that is fully in accordance with the principles set out in the 1994 Agreement. The contracts in question were awarded to Nauru Ocean Resources, Inc. (NORI), a commercial entity sponsored by Nauru, and Tonga Offshore Mining, Ltd. (TOML), a company sponsored by Tonga. Both contracts are for exploration in reserved areas, which are those areas designated by contractors sponsored by developed States and held in a “site bank” by the Authority for future use by the Enterprise or by developing States, either by themselves or in a joint venture with the Enterprise.25 Since the Enterprise does not yet exist as an independent entity, and the circumstances that would allow it to function as an independent entity are so tightly conditioned by the 1994 Agreement26 that it is hard to see how it could do so, it could be said that this form of commercial venture represents a rational use of areas of the seabed that have been specifically set aside for this purpose. It could also be said, with justification, that there is no other way for Nauru and Tonga, and no doubt very many other of the developing countries, to engage in seabed mining other than through joint ventures with commercial entities with access to technology and capital. On the other hand, during the review of the applications by NORI and TOML in the Council of the Authority, a number of concerns were expressed as to the real benefits to the sponsoring States, and to the regime as a whole, of this type of commercial venture.27 Whilst many of these concerns were ameliorated by the

25 Each application for an exploration contract for polymetallic nodules must contain two areas of equal estimated commercial value. One of these areas is awarded to the contractor; the other is “reserved” for use by the Enterprise or by a developing State member of the Authority or a natural or juridical person sponsored by a developing State. The idea behind this system is that developing countries are thereby relieved of the burden of carrying out costly and technologically-challenging survey and prospecting work. Convention, Annex III, Articles 8 and 9; 1994 Agreement, Annex, section 2, paragraph 5. 26 Under the 1994 Agreement, annex, section 2, the Secretariat of the Authority is to perform the functions of the Enterprise until it begins to operate independently. However, the Enterprise is required by the same provision to conduct its initial operations through joint ventures, and the Council may only take up the issue of the independent functioning of the Enterprise and issue a directive under Article 170 of UNCLOS upon the approval of the first plan of work for exploitation in the Area (by an entity other than the Enterprise) or upon receipt by the Council of an application for a joint venture operation with the Enterprise. 27 During the discussion in the Council, States expressed different views as to what is meant by the term “effective control” in Article 153, paragraph 2(b) of UNCLOS and Regulation 11 of the Nodules Regulations in the context of a multinational corporation establishing a subsidiary company in a developing country. Whilst some States, including Germany and Netherlands, expressed the view that “control” must refer



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Advisory Opinion rendered by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea,28 the best conclusion may be that it is too early to say whether this type of arrangement provides a viable precedent for the future participation of developing countries in deep seabed mining. Much will depend on whether these ventures are successful in producing long-term economic benefits for the sponsoring States and for the Authority. As far as financial benefits to the Authority and its member States are concerned, the major problem is that the Authority has so far done nothing to develop a regulatory system for exploitation. UNCLOS itself contained a detailed, highly prescriptive model covering the financial terms for exploitation (although, interestingly, few of the other aspects that would need to be regulated and managed during the exploitation phase), but these were eliminated by the 1994 Agreement as it was realized that they were outdated, impractical and largely unworkable. Instead, the 1994 Agreement contains a set of general principles to guide the financial terms of seabed mining. These require, for example, that the system of payments to the Authority should be fair both to contractors and to the Authority and that the rates of payment shall be within the range of those prevailing in respect of land-based mining of the same or similar minerals in order to avoid giving seabed miners a competitive advantage or disadvantage.29 The difficulty the Authority faces is that no serious commercial miner is likely to be willing to make the substantial investments required unless and until they understand the financial risks involved, which includes the fiscal regime. At the same time, since there is no experience of commercial seabed mining to draw on, the Authority is likely to have great difficulty in optimizing the fiscal regime to be fair both to seabed miners and developing countries. The only way to make progress is to hope for cooperation on all sides although experience in other sectors, for example fisheries, does not necessarily augur well for this. For the good of the common heritage, it is essential that the Authority makes a decision to proceed to develop an exploitation code at the earliest opportunity. Multilateral negotiations take time, especially when they involve complex technical issues, and there is now an urgency to embark upon this process. A proposal

to economic control as well as regulatory control, others considered that regulatory control, as evidenced by a certificate of sponsorship from the developing country concerned, was sufficient. As a result of this discussion, the Council requested the Legal and Technical Commission to further analyse the relevant provision of the Regulations and report back to the Council (ISBA/17/C/20). 28 Seabed Disputes Chamber of International Tribunal for the Law of the Sea. Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion, (February 1, 2011), http://www.itlos.org/fileadmin/itlos/ documents/cases/case_no_17/adv_op_010211.pdf. 29 1994 Agreement, Annex, section 8.

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is before the Council of the Authority30 to this effect in 2012 and it is to be hoped that the Council will act decisively and allocate time and resources to the timely development of a comprehensive code for exploitation. Whilst attention will inevitably focus on the financial and economic benefits of seabed mining31 it must not be overlooked that sharing of increased scientific knowledge of the deep seabed as well as better environmental stewardship are also benefits accruing to mankind as a whole.32 In these areas, the Authority has achieved a great deal—and certainly more than was originally anticipated in 1994. The international workshops convened by the Authority on scientific matters, as well as technical studies on various issues provide a growing body of rigorous scientific study, drawing upon many of the best scientists in the world and with the full participation of scientists from developing countries. The Authority has also sponsored a number of major international scientific initiatives, such as a geological model of the Clarion-Clipperton Zone33 and the Kaplan Project to study species range and biodiversity in the same region. The Authority’s Legal and Technical Commission34 has also established state of the art guidelines for the conduct of environmental baseline studies in the Area and, in collaboration with exploration contractors, the Authority is working on protocols for standardizing environmental data using advanced methods such as using molecular identification techniques for taxonomy.35 This represents hugely important scientific research that will contribute to a much better understanding of the deep ocean environment for the benefit of future generations. The same scientific research has also formed the basis for the formulation of a comprehensive environmental management plan for the Clarion-Clipperton Zone which includes a proposal to establish a representative network of areas 30 The Council consists of 36 States, elected by the Assembly of the Authority, and acts as the executive organ of the Authority. 31 UNCLOS appears to make a clear distinction between financial benefits on the one hand and economic benefits on the other hand. Financial benefits would presumably include such things as royalties on minerals and fees. Economic benefits could be wider and may include, for example, participation in production-sharing systems, but also the general benefit to mankind of greater availability of key strategic metals such as copper, cobalt, nickel, manganese and rare earth elements, as well as generating employment. 32 Kiss op. cit. at 438. 33 The Clarion-Clipperton Zone is an area of the seabed of the Pacific Ocean between Baja California and Hawaii approximately 4.5 million sq.km. in size and containing abundant deposits of polymetallic nodules. A Geological Model of the Polymetallic Nodule Deposits in the Clarion-Clipperton Fracture Zone, ISA Technical Study No. 6, (Kingston, Jamaica, 2010). 34 The Legal and Technical Commission is an expert advisory body established under Article 165 of UNCLOS. 35 See for example, Marine Benthic Nematode Molecular Protocol Handbook, ISA Technical Study No. 7, (Kingston, Jamaica, 2011).



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of “particular environmental interest” as one of a suite of measures designed to ensure effective protection for the marine environment from harmful effects arising from deep seabed mining.36 The Authority has also established an endowment fund aimed at promoting the participation of scientists from developing countries in marine scientific research in the Area in accordance with the aspirations expressed in Article 143 of UNCLOS. Although the fund became operational only in 2007 and is still relatively small, it has nevertheless provided training opportunities to marine scientists from more than 18 developing countries. Overall, therefore, a mixed verdict may be called for as far as the realization of benefits to mankind is concerned—positive scores, so far at least, for environmental stewardship and sharing of scientific knowledge—but little progress with respect to securing financial and economic benefits from the deep seabed. Future of the Common Heritage Principle In recent years, the nature and extent of the common heritage principle has once again become a subject for discussion in the context of the management of marine biodiversity, and specifically marine genetic resources, in areas beyond national jurisdiction. In response to concerns about the increasing rate of loss of marine biodiversity, as well as issues surrounding equal access to and sharing of benefits from marine genetic resources, the General Assembly established in 2004 an ad hoc open-ended informal working group to study issues relating to the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (commonly referred to as “BBNJ”).37 As of May 2012 the working group has held five meetings. Its mandate was strengthened in 2011 when the General Assembly, acting on a recommendation from the fourth meeting of the working group, decided to initiate a process, within the existing working group, on the legal framework for the conservation and sustainable use of biodiversity, by identifying gaps and ways forward, including through the implementation of existing agreements and the possible development of a multilateral agreement under UNCLOS.38 The decision of the General Assembly also lists a package of issues to be addressed in the process, including access to and benefitsharing from, marine genetic resources, environmental impact assessments, areabased management tools, including marine protected areas, capacity-building and transfer of marine technology.

36 M.W. Lodge, “Current Legal Developments: International Seabed Authority,” International Journal of Marine and Coastal Law 26 (2011): 463–480. 37 A/RES/59/24. 38 A/RES/66/231, para. 167 and Annex.

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As these discussions have progressed clear differences in the positions taken by States have emerged. Whilst it is generally agreed that UNCLOS provides the overarching legal framework for conservation and management of marine resources, views are deeply divided on the adequacy of that framework and the means of implementation. On the one hand, some States argue that marine genetic resources should be considered part of the common heritage of mankind, in the same way as the mineral resources of the deep seabed, even though the regime in Part XI of UNCLOS specifically excludes from its ambit anything other than mineral resources. That is, they should not be subject to appropriation, but should be administered through an international regime which also provides for the equitable sharing of financial and other economic benefits from such resources. Others, such as the United States, argue that marine genetic resources are essentially open access resources, like high seas fisheries, and that the list of high seas freedoms set out in Article 87 of UNCLOS is not intended to be exhaustive. In many ways these differences echo the discussions of the 1960s in relation to the deep seabed and are likely to be equally difficult to resolve. As Tuerk points out, as far as benefit-sharing is concerned, developing countries should probably not set their expectations too high given the experience with the deep seabed regime. An additional consideration is that, unlike minerals, genetic resources themselves are not valuable—rather it is the product of extensive research and development that may be valuable.39 In this regard, Beurier, amongst others, has suggested that the Authority may have a role to play in ensuring that marine scientific research for genetic resources is carried out for the benefit of mankind as a whole in accordance with Article 143 of UNCLOS, and so as to ensure effective protection of the marine environment, including rate and fragile ecosystems (Articles 192 and 194).40 As far as the implementation of the common heritage principle by the Authority is concerned, it is suggested that there is cause for modest optimism. The international community has succeeded in establishing a comprehensive legal regime for the Area, under which the Area is reserved exclusively for peaceful purposes, and which is linked to a coherent management regime through international machinery (the Authority) established for that purpose. Despite initial problems, and an overdue gestation, the international machinery is functioning well. The legal regime has been almost universally-accepted by States and there can no longer be any doubt as to the validity of claims made to areas of the seabed outside the single legal regime established by UNCLOS and the 1994 Agreement. The Authority has made good progress, on the basis of the evolutionary

39 Tuerk, “Principle of Common Heritage.” at 48. 40 Jean-Pierre Beurier and Gwenaëlle Proutière-Maulion, “Should the international regime on access and benefit-sharing of high seas resources be redefined?” 35 Océanis, (2009): 135–154.



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approach set out in the 1994 Agreement, in elaborating a regulatory regime for access to the resources of the Area that emphasizes the precautionary approach and the need for ecosystem-based management of the resources of the Area. In this regard, the prolonged delay in the commercialization of seabed mining has had an inadvertent but nevertheless beneficial effect. Much more work remains to be done. In particular, if the economic benefits of the common heritage are to be realized, it is essential that the Authority moves expeditiously to begin to develop a coherent and commercially-viable code for exploitation of marine mineral resources. Such a code must also encompass a system for the effective implementation of Article 82 of UNCLOS, which is a critical quid pro quo for the vast expansion of the continental shelf permitted by Article 76. The regime must be viable, in the sense that it must offer appropriate commercial incentives to investors to begin to exploit the mineral resources of the Area, but it must also be fair and equitable and in particular it should not facilitate those who have to take more. Concluding Remarks It should be recalled that the Part XI regime for the common heritage actually represents only the imperfect and incomplete realization of a much grander concept. Pardo’s vision was to develop a system for the proper management and development of ocean space as a whole through the rule of law. As early as 1971 he proposed a draft ocean space treaty that would deal not only with the establishment of an international regime for the deep seabed, but would also govern all the other related issues specified in the Declaration of Principles, including a comprehensive system for the settlement of disputes.41 This proposal was based on the premise that in modern circumstances, unregulated freedom in ocean space beyond national jurisdiction is neither in the interests of the international community as a whole nor in the interests of coastal States. The evidence of the past thirty years would appear to amply justify Pardo’s hypothesis. Notwithstanding almost universal acceptance of UNCLOS as the legal framework within all activities in the ocean must be carried out, it is evident that this delicate balance is under increasing pressure from a number of directions. Of particular concern is growing evidence of a trend towards “territorialization” of the global commons, whether through excessive maritime claims and ­generous

41 Draft Ocean Space Treaty: Working Paper Submitted by Malta, UN Doc. A/AC.138/153 (1971), reprinted in Report of the Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor Beyond the Limits of National Jurisdiction, 26 GAOR., at 105–93, Supp. No. 21, UN Doc. A/8421 (1971). See also, Louis B. Sohn, “Managing the Law of the Sea: Ambassador Pardo’s Forgotten Second Idea,” Columbia Journal of Transnational Law 36 (1998): 285.

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interpretations of some of the provisions of UNCLOS or attempts to exercise control in the EEZ over non-resource related activities, including restrictions on navigational freedoms. The resurgence of piracy and terrorism at sea also present serious threats to international trade, security and the freedom of navigation. At the same time, serious and multiple threats to living resources and biodiversity from activities such as illegal fishing and pollution have led to justified limitations on the exercise of high seas freedoms, especially in the field of fisheries. There is an urgent case for further development of the legal regime for the ocean in order to cope with these new and emerging challenges. Thirty years ago, the international community sought to respond to such challenges through reliance on theories of international governance and cooperation based on the common heritage of mankind. The question for the future is whether any further development of the legal regime will result in an expansion or diminution of the common heritage principle.

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The Role of the Authority in Ocean Governance Alexander Proelss

Introduction If we continue our journey through the institutions and regions of ocean governance and take a stopover at the International Seabed Authority (ISA), one might think that we are facing an autonomous international organisation, whose mandate and competences are clearly determined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).1 While the Authority has not yet had the opportunity to fully develop its jurisdictional potential for a multitude of technical, economic and environmental reasons,2 one would expect that the 59 articles gathered in UNCLOS Part XI, the 35 articles contained in Annexes III and IV to the Convention, the provisions laid down in the 1994 Implementation Agreement,3 and the regulations contained in the so-called Mining Code, i.e., the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area adopted in July 2000 as well as those on Prospecting and Exploration for Polymetallic Sulphides adopted in May 2010,4 which altogether constitute the regime of the Area, would sufficiently substantiate the legal basis on which the Authority shall act. This seems to be particularly true with regard to UNCLOS Art. 137 (2), which describes the key responsibilities of the Authority. According to this provision, “all rights in the resources of the Area are vested in mankind as a whole,

1 1833 U.N.T.S. 397. The LOS Convention was adopted on December 10, 1982 and entered into force on November 16, 1994. 2 See, e.g., Wolfgang Graf Vitzthum, “International Sea-bed Area,” Max Planck Encyclopedia of Public International Law, online edition (last visited February 20, 2011), para. 5. 3 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982 (UNCLOS) of July 28, 1994 (1836 U.N.T.S. 42.) The Agreement entered into force on July 28, 1996. 4 The regulations of the Mining Code which have so far been adopted are available at http://www.isa.org.jm/en/documents/mcode (last visited February 27, 2011).

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on whose behalf the Authority shall act.” Thus, the mineral resources of the deep seabed may only be alienated in accordance with UNCLOS Part XI and the rules, regulations and procedures adopted by the Authority. Concerning the resources of the Area, i.e., the seabed and oceanfloor and subsoil thereof beyond the limits of national jurisdiction (cf. UNCLOS Art. 1 [1] No. 1), the Authority, in principle, represents mankind.5 However, on closer inspection there is still a considerable degree of uncertainty, inter alia, on the scope of the mandate of the Authority, in particular visà-vis marine scientific research and the conservation of the living resources of the deep seabed, both of which may be considered as future cornerstones of ocean governance.6 In this respect, the Authority, “a unique international organization representing interests covering nearly three-fourths of the Earth’s surface”,7 is considered by some as “the international organisation which bears the main responsibility to realize a just and equitable economic order of the oceans and seas.”8 Others interpret its competences in a much more restricted manner and regard it as a mere mining agency.9 The diversity of opinions and approaches towards the role and competences of the ISA becomes most manifest in the particular context of the hotly debated issue of marine genetic resources located beyond the limits of national jurisdiction.10 This issue has received considerable attention within the Ad Hoc Openended Informal Working Group to Study Issues Related to the Conservation and Sustainable Use of Marine Biodiversity beyond Areas of National Jurisdiction, which was established with General Assembly (GA) Resolution 59/24 in 2005.11 Some delegations participating in that group emphasized that the common heritage of mankind principle, in particular the fair and equitable sharing of benefits,

5 Erik Franckx, “The International Seabed Authority and the Common Heritage of Mankind: The Need for States to Establish the Outer Limits of their Continental Shelves,” International Journal of Marine and Coastal Law, 25 (2010): 543–567, at 557. 6 Gwénaëlle Le Gurun, “EIA and the International Seabed Authority,” in: Kees Bastmeijer and Timo Koivurova (eds.), Theory and Practice of Transboundary Environmental Impact Assessment (The Hague et al., 2008): 221–63, at 235. 7 Ikechi Mgbeoji, “(Under)Mining the Seabed? Between the International Seabed Authority’s Mining Code and Sustainable Bioprospecting of Hydrothermal Vent Ecosystems in the Seabed Area: Taking Precaution Seriously,” Ocean Yearbook, 18 (2004): 413–52, at 435. 8 Tullio Scovazzi, “Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority,” International Journal of Marine and Coastal Law, 19 (2004): 383–409, at 391. 9 Mgbeoji, “(Under)Mining the Seabed,” 435. 10 See Tullio Treves, “Principles and Objectives of the Legal Regime Governing Areas Beyond National Jurisdiction,” in Erik J. Molenaar and Alex G. Oude Elferink (eds.), The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (Leiden et al., 2010): 7–25, at 16–20. 11  GA Res. 59/24 of 4 February 2005, para. 73.



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should be applied to the biological resources of the Area, and noted the competence of the Authority in that regard. Others observed that the mandate of the ISA in relation to marine biological diversity was limited to the protection of the marine environment with regard to activities in the Area.12 If one compares the outcome of the pertinent discussions held within that working group as summarized in the recently submitted third report together with that of the two former reports of 200613 and 2008,14 one must conclude that little if any progress has been achieved. Notwithstanding this, both the issue of marine genetic resources and the recent advisory opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) on “responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area”15 constitute suitable points of origin for resuming the more general debate on the Authority’s mandate. This debate is of utmost importance in the present context, as the scope of competences of the ISA as well as the structural particularities of this organization will ultimately determine the role which it may play in the future governance of the oceans.16 Scope of the Mandate of the Authority Negotiating History When focusing on the scope of the mandate and competences of the Authority, it is important to take a brief look at the negotiating history of what is today UNCLOS Part XI. The idea of declaring the Area and its resources the common heritage of mankind, which was the essence of the UN’s General Assembly’s 1970 Declaration of Principles Governing the Seabed and Ocean Floor and the Subsoil Thereof, beyond the Limits of National Jurisdiction,17 was initially to be substantiated in the Seabed Committees of the GA (until 1973), and then at the Third UN Conference on the Law of the Sea (UNCLOS III). At a very early stage of negotiations, in 1971, Malta presented a draft ocean space treaty. This draft envisioned that all natural resources beyond the 200–mile limit, whether living or non-living, and 12 UN Doc. A/65/68 of 17 March 2010, para. 71 et seq. 13 UN Doc. A/61/65 of 20 March 2006, para. 71 et seq. 14 UN Doc. A/63/79 of 16 May 2008, para. 37. 15 ITLOS, Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion of February 1, 2011, available at http://www.itlos.org/start2_en.html (last visited February 4, 2011). 16 Judge Treves recently stated that “[t]he idea of ‘governance’ does not belong to common legal parlance, even though lawyers, under pressure of political scientists, have started using it” (Treves, “Principles and Objectives,” 7). In the present paper, the term “governance” is used as encompassing any comprehensive regulation of activities relevant to the oceans. 17 GA Res. 2749 (XXV) of December 17, 1970.

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whether located on or under the seabed or in the water column, should be put under the trusteeship of and administered by the International Ocean Space Institutions proposed to be established.18 However, this comprehensive approach lacked support and was not retained in the UNCLOS. In the light of this historic fact, it is somewhat astonishing that those commentators who advocate that the mandate of the Authority is already broader than commonly believed refer to the original Maltese proposal to support their position.19 An examination of the official records of the UNCLOS reveals just the contrary, namely that the drafting history of Part XI does not include references to both living and mineral resources.20 In the course of UNCLOS III, the regime of the Area was the subject of negotiations in the First Committee, which had as a base the aforementioned Declaration of Principles,21 and which considered itself bound by the concept of common heritage of mankind with respect to the Area and its resources.22 Any reference to the inclusion of the living resources of the Area in that concept, and any debate on respective competences of the ISA, would have evolved in the context of that Committee. Thus, it is not decisive whether attempts were made in the negotiations between the adoptions of Resolution 2749 (XXV) and of UNCLOS to assimilate the sedentary species of the seabed to the high seas regime,23 but rather whether the living resources of the seabed were assimilated to the regime of the Area. In this respect, in a note of 26 July 1974 the Chairman of the First Committee, Mr. P.B. Engo, observed that two different approaches concerning

18 Cf. Art. 66 et seq. of the Draft Ocean Space Treaty, reprinted in: Arvid Pardo, The Common Heritage—Selected Papers on Oceans and World Order (Malta, 1975), 381. Note also that under a draft Art. 3 adopted by the International Law Commission (ILC) at its 210th meeting in 1953 (Yearbook of the ILC, 1953/II, 218), “States shall be under a duty to accept, as binding upon their nationals, any system of regulation of fisheries in any area of the high seas which an international authority, to be created within the framework of the United Nations, shall prescribe as being essential for the purpose of protecting the fishing resources of that area against waste or extermination. Such international authority shall act at the request of any interested State.” As is well known, the proposal was not further pursued. 19 Tullio Scovazzi, “The Seabed Beyond the Limits of National Jurisdiction: General and Institutional Aspects,” in: Erik J. Molenaar/Alex G. Oude Elferink (eds.), The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (Leiden et al., 2010): 43–59, at 45; id., “International Sea-Bed Authority,” 396. 20 But see Alex G. Oude Elferink, “The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas,” International Journal of Marine and Coastal Law, 22 (2007): 143–76, at 152. 21 Supra note 17. 22 See UN Doc. A/CONF.62/C.1/L.1 of 10 July 1974, Off. Rec. III: 149–51. 23 But see Oude Elferink, “The Regime of the Area,” 152; Frida M. Armas Pfirter, “The Management of Seabed Living Resources in “The Area” under UNCLOS,” Revista Electrónica de Estudios Internationales, 11 (2006), available at http://www.reei.org/reei%2011/F .Armas%28reei11%29.pdf (last visited February 4, 2011), 8, 26.



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the resources of the deep seabed came into consideration for balancing the objectives of efficiency and equity. These were the compensatory approach, whereby the nodule industry would be allowed to operate with little or no explicit regulation, but some forms of compensation would be paid to developing countries if they experienced a loss in export revenues; and the preventive approach, which would involve some form of direct regulation of the nodule industry by an International Authority.24

Thus, the issue of equity, which ultimately became embodied in the access and benefit sharing regime established in UNCLOS Part XI, was inseparably connected with deep seabed mining from the very beginning. After it had turned out in the negotiations that the compensatory approach did not have any chance to be accepted by the majority of States, three basic elements were identified in the course of the deliberations of the First Committee with regard to which it was deemed mandatory to reach an agreement. These elements were (i) the issues of exploitation, notably the modalities of the system…, basic conditions for exploration and exploitation, the viability of the Enterprise and the resource policies of the Authority; (ii) the institutional questions; and (iii) the dispute settlement system.25

In order to deal with these issues, the First Committee divided itself into three corresponding negotiating groups, which later, following a decree of the Plenary,26 were adjusted as to encompass (i) the system of exploration and exploitation and the resource policy of the ISA; (ii) financial arrangements; and (iii) the organs of the Authority, their composition, powers and functions. Contrary to the issue of participation of developing countries in the activities in the Area,27 the protection of the marine environment of the deep seabed as well as the conservation of the living resources of the Area hardly received any attention in the deliberations of the First Committee. This remained virtually unchanged until the adoption of the UNCLOS in December 1982. It is particularly noteworthy in this context that the provision contained in UNCLOS Art. 145, which deals with the protection of the marine environment from harmful effects which may arise from activities in the Area, was directly derived from Paragraph 11 of the Declaration of Principles,28 and was not subject to far-reaching substantive changes in the course of UNCLOS III.29 Thus, the negotiating history clearly militates in favour of a limited mandate of the ISA.

24 UN Doc. A/CONF.62/C.1/L.2 of 26 July 1974, Off. Rec. III: 151–57, at 153 (para. 19). 25 UN Doc. A/CONF.62/C.1/L.20 of 26 May 1977, Off. Rec. VII: 74–8, at 74. 26 UN Doc. A/CONF.62/62 of 13 April 1978, Off. Rec. X: 6–10, at 7 et seq. (para. 5). 27 Cf. UN Doc. A/CONF.62/RCNG.1 of 19 May 1978, Off. Rec. X: 13–125, at 16. 28 Supra note 17. 29 See Myron H. Norquist (ed.), United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. VI (The Hague et al., 2002), 190–9.

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Textual and Systematic Approach From a textual and systematic perspective, UNCLOS Art. 157 (2) clarifies that “[t]he powers and functions of the Authority shall be those expressly conferred upon it by this Convention.” The present author has argued elsewhere that a careful examination of the pertinent legal rules supports the conclusion that the mandate of the Authority is restricted to measures in relation to the exploration and exploitation of the mineral resources of the Area.30 The main reason to be identified in this respect is that the term “resources”, when used in the context of the Area, is specifically defined as “all solid, liquid or gaseous mineral resources” (UNCLOS Article 133 [a]). The same result may be deduced from the use of the term “activities in the Area” (see, e.g., UNCLOS Article 140 [1]), which is defined in UNCLOS Article 1 (1) No. 3 as “all activities of exploration for, and exploitation of, the resources of the Area” and which, thus, incorporates the meaning of “resources” under UNCLOS Article 133 (a).31 There is a good case to be made that the UNLCOS is, as far as the areas beyond the limits of national jurisdiction are concerned, based on the assumption that the regime of the high seas covers all human activities, irrespective of whether they are conducted in the water column or on the seabed, as long as the Convention itself does not contain any special rule to the contrary.32 From a historical perspective, it should not be forgotten in this respect that prior to UNCLOS III, all resources of the areas beyond the limits of national jurisdiction, whether living or non-living, were commonly regarded as being subject to the freedom of the high seas.33 But also the UNCLOS itself supports the view advocated here. UNCLOS Art. 112 states that “[a]ll States are entitled to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf”. While this provision

30 Alexander Proelss, “Marine Genetic Resources under UNCLOS and the CBD,” German Yearbook of International Law, 51 (2009): 417–46; see also Michael Wood, “International Seabed Authority (ISA),” Max Planck Encyclopedia of Public International Law, online edition (last visited February 20, 2011), paras. 9, 33. 31  For a detailed examination of the meaning of “activities in the area” see ITLOS, Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion of February 1, 2011, available at http://www.itlos.org/start2_en.html (last visited February 4, 2011), paras. 82 et seq. Nothing in the Advisory Opinion of the ITLOS suggests that the regime of the Area, in general, and the term “activities in the Area”, in particular, would also cover resources other than mineral or the protection of the marine environment of the Area irrespective of the potential impacts of mining activities. 32 Proelss, “Marine Genetic Resources,” 430–2. Similar to the high seas, the regime of the EEZ in principle comprises the seabed and its subsoil (cf. Art. 56 [1] [a] UNCLOS). 33 Robin R. Churchill and Vaughan Lowe, The Law of the Sea, 3rd edition (Manchester, 1999), 225. But see Harry N. Scheiber, “The Biodiversity Convention and Access to Genetic Materials in Ocean Law,” in Davor Vidas and Willy Østreng (eds.), Order for the Oceans at the Turn of the Century (The Hague, 1999), 187–201.



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has been incorporated into the regime of the high seas, it exclusively deals with activities relevant to the deep seabed and not the water column. Finally, the relevance of the high seas regime to living organisms of the deep seabed becomes manifest in the provisions on the conservation and management of the living resources (UNCLOS Arts. 116–120). There are mainly three potential objections to this view. The first one is that UNCLOS Art. 136, which states that “[t]he Area and its resources are the common heritage of mankind,” “makes the common heritage principle not only applicable to the mineral resources of the Area, but also to the Area as such.”34 In this respect, it could be argued that the living resources of the Area, while not covered by the concept of “resources” in terms of UNCLOS Part XI, are nonetheless included in the term “Area.” However, UNCLOS Art. 1 (1) No. 1 defines “Area” as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” It does not contain any reference to the resources of that space. With a view to the regime of the high seas with its strong focus on freedom of fisheries, it would seem difficult to accept that UNCLOS Part XI includes all resources of the deep seabed without referring once to resources other than minerals. Even if one would accept for the sake of argument the applicability of the “common heritage” principle to the marine genetic resources, the legal consequences deriving therefrom would remain unclear. In particular, while the access and benefit sharing regime administered by the Authority is certainly one of the core features of the common heritage principle, UNCLOS Art. 140 (2) explicitly restricts its applicability to “activities in the Area” as defined in UNCLOS Article 1 (1) No. 3, and thus, incorporates the restrictive meaning of the term “resources” under UNCLOS Article 133 (a). The second potential objection concerns marine scientific research in the Area. According to UNCLOS Art. 143 (1), “[m]arine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole, in accordance with Part XIII.” While it is true that this provision does not use the limiting term “resources”,35 it should not be ignored that by incorporating the notion of “benefit of mankind as a whole,” UNCLOS Art. 143 (1), again, refers to UNCLOS Art. 140 which, as already stated, only applies to “activities in the Area.”36 Arguing that the “benefit of mankind as a whole” formula has a

34 Oude Elferink, “Delineating the Scope of Application,” 150; see also Yoshifumi Tanaka, “Reflections on the Conservation and Sustainable Use of Genetic Resources in the Deep Seabed beyond the Limits of National Jurisdiction,” Ocean Development & International Law, 39 (2008): 129–49, at 140. 35 Nele Matz, “Marine Biological Resources: Some Reflections on Concepts for the Protection and Sustainable Use of Biological Resources in the Deep Sea,” Non-State Actors and International Law, 2 (2002): 279–300, at 294; Scovazzi, “International Sea-Bed Authority,” 397. 36 Different Scovazzi, “International Sea-Bed Authority,” 397.

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different meaning under UNCLOS Art. 143 (1) than under UNCLOS Art. 140 does not seem to be persuasive, as the UNCLOS would then not contain any indication whatsoever as to the individual content of that provision. The view advocated here is also supported by UNCLOS Article 137 (2) which, indeed, mentions the “mankind as a whole” formula, but refers to the “rights in the resources of the Area.”37 Therefore, UNCLOS Art. 143 does not, at least not definitely, clarify whether marine scientific research in the Area is subject to the comprehensive jurisdiction of the Authority.38 As regards the protection of the marine environment in the Area, UNCLOS Art. 145 (b) assigns to the Authority the power to adopt rules, regulations and procedures for “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.” In light of this provision, it has been argued that the Authority has both prescriptive and enforcement jurisdiction relating to the protection of the marine environment of the Area.39 It is submitted that this view is not completely correct. By referring to the term “activities in the Area” as defined in UNCLOS Art. 1 (1) No. 3, UNCLOS Art. 145 absorbs the restrictive meaning of the term “resource” under UNCLOS Art. 133.40 From a systematic viewpoint, it seems difficult to argue that UNCLOS Art. 145 (b), which points to “the protection and conservation of the natural resources of the Area and the prevention of damage to flora and fauna of the marine environment” in comparatively broad terms, would substantiate the scope of competences of the Authority in a way as to cover the protection of the flora and fauna of the Area in general.41 This would ignore that UNCLOS Art. 145 (b) (and UNCLOS Art. 145 [a]) define the subject of rules, regulations and procedures to be adopted by the ISA only in order “to ensure effective protection for the marine environment from harmful effects 37 Proelss, “Marine Genetic Resources,” 425; see also Margaret F. Hayes, “Charismatic Microfauna: Marine Genetic Resources and the Law of the Sea,” in: Myron H. Nordquist, Ronan Long, Thomas H. Heidar and John Norton Moore (eds.), Law, Science & Ocean Management (Leiden et al., 2007): 683–700, at 690–1. 38 Negative Mgbeoji, “(Under)Mining the Seabed,” 446; Le Gurun, “EIA and the International Seabed Authority,” 260. 39 See Yoshifumi Tanaka, A Dual Approach to Ocean Governance (Farnham, 2008), 138–40; see also Mgbeoji, “(Under)Mining the Seabed,” 437: “[T]he ISA would be on good footing if it construed the provisions of Article 145 of UNCLOS in such a manner as to enable it to regulate any activity in the Area that causes or has the potential to pollute or harm hydrothermal vent ecosystems, bioprospecting included.” 40 Proelss, “Marine Genetic Resources,” 429; Julia Christine Friedland, Der Schutz der biologischen Vielfalt der Tiefseehydrothermalquellen (Baden-Baden, 2007), 231–2; see also Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, ISBA/14/A/2 of April 14, 2008, para. 70. 41 But see Tanaka, Dual Approach to Ocean Governance, 138; Mgbeoji, “(Under)Mining the Seabed,” 440.



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which may arise from such activities” (first sentence of UNCLOS Art. 145), i.e., from activities in the Area.42 Hence, the Authority is not legally entitled to adopt measures for the preservation of the marine environment (such as, e.g., the establishment of marine protected areas around hydrothermal vent sites), if and to the extent that these measures are not directly linked to the intention of a party (or the Enterprise) to exploit the mineral resources of the respective seabed area.43 Arguing that the Authority should be encouraged to extend its jurisdiction under UNCLOS Art. 145 to protect seabed flora and fauna from pollution in general, i.e., irrespective of activities in the area, amounts in essence to a plea for acting ultra vires. For the same reason, stating that “the environmental protection of the Area is supervised by the Council of the Authority”44 is at least capable of being misunderstood. UNCLOS Art. 162 (2) (a) assigns to the Council of the ISA the jurisdiction to “supervise and co-ordinate the implementation of the provisions of this Part on all questions and matters within the competence of the Authority . . .” and thereby links the enforcement jurisdiction of the ISA with the scope of its prescriptive jurisdiction (which is, as stated, of a limited nature). Further evidence of the limited competences of the Authority can be provided by referring to UNCLOS Art. 149. Under this provision, “[a]ll objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.” While the wording of this article too mentions the “benefit of mankind as a whole” formula, it does not clarify, in contrast to UNCLOS Art. 140 (2), which actor represents mankind as a whole in this context.45 Art. 12 of the 2001 Convention on the Protection of the Underwater Cultural Heritage,46 which was intended to elaborate on UNCLOS Art. 149,47

42 See also Art. 17 (2) (f) of Annex III UNCLOS: “Protection of the marine environment: Rules, regulations and procedures shall be drawn up in order 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, wastes or other effluents.” 43 Cf. ISBA/14/LTC/2 of March 28, 2008, which contains scientific recommendations as to the establishment of a set of representative preservation reference areas to safeguard biodiversity and ecosystem function in the abyssal Pacific region targeted for nodule mining (“Clarion-Clipperton Zone”). 44 Tanaka, Dual Approach to Ocean Governance, 140. 45 Oude Elferink, “Delineating the Scope of Application,” 161. 46 ILM 41 (2002), 37. The Convention entered into force on January 2, 2009. 47 Oude Elferink, “Delineating the Scope of Application,” 161.

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states in its para. 2 that the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) shall also invite the Authority to participate on consultations on how best to protect the underwater cultural heritage, but at the same time assigns to the coordinating state the mandate to act for the benefit of humanity as a whole, on behalf of all States Parties, “in coordinating consultations, taking measures, conducting preliminary research, and/or issuing authorizations pursuant to this Article” to the Coordinating State (cf. para. 6). Finally, although the ISA is charged to act on behalf of mankind as a whole, it was not furnished with the competence to protect the Area and its resources as constituting the “common heritage of mankind” vis-à-vis coastal States.48 UNCLOS Art. 1 (1) No. 1 defines the Area as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” Under this construction, the scope of the Area clearly depends on the extension of the continental shelves of coastal States. The continental shelf is not a part of State territory, but a maritime zone over which the coastal State exercises sovereign rights for the purpose of exploring and exploiting its natural resources (cf. UNCLOS Art. 77 [1]), i.e., an area within the limits of national jurisdiction. Under UNCLOS Art. 76 (1), it comprises “the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” This provision, which refers to a multitude of non-legal, namely geological and/or hydrographical, and difficult-to-interpret criteria, belongs among the most complicated legal norms within the realm of the law of the sea.49 Notwithstanding the establishment of the Commission on the Limits of the Continental Shelf (CLCS), which shall make recommendations on matters related to the establishment of the outer limits of the continental shelf (cf. UNCLOS Art. 76 [8]), the determination of the outer limit of the continental shelf remains an unilateral act of the coastal State.50 Consequently, while any act of delineation in contradiction to a CLCS recommendation constitutes a violation of Art. 76 (8), this does not impinge on the substantial legality of the delineation act but only covers the internal (“procedural”) relationship between the coastal State in question and the CLCS. Thus, even in case of a breach of a recommendation of the CLCS does the act of delineation (which influences the territorial scope of the Area)

48 Franckx, “International Seabed Authority,” 553–4, 557–8, 560–1. 49 For an analysis of the situation in the Arctic Ocean see Alexander Proelss and Till Müller, “The Legal Regime of the Arctic Ocean,” Heidelberg Journal of International Law, 68 (2008): 651–87. See Gau, Chapter 13, on the continental shelf claims. 50 See Proelss and Müller, “Legal Regime of the Arctic Ocean,” 675–6, with further references.



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remain valid.51 As Professor Franckx correctly noted, the Authority was neither awarded any right to participate in the determination of the outer limits of the continental shelf, nor has it a role to play in the deliberations of the CLCS.52 The sole task authorized to the ISA in this context is the distribution of revenues from the outer continental shelf under UNCLOS Art. 82 (4).53 It also remains highly doubtful whether the ISA has been provided with the competence to submit a dispute concerning the outer limit of a coastal State’s continental shelf to a court or tribunal under UNCLOS Part XV.54 In light of the aforementioned, one must conclude that a gap exists between the original ideal of an international body whose task it is to act on behalf of mankind and the real powers which were transferred to it by the UNCLOS. The limited mandate of the Authority a priori restricts its potential to develop into a major institution for holistic regulation of deep seabed governance. Environmental Jurisdiction Having said all that, and aside from the individual field of deep seabed mining, the scope of the Authority’s jurisdiction is still considerable broad in one sector, namely that of environmental protection. At first sight, this conclusion appears to be in contradiction to what has been stated above. On closer consideration, however, it is justified in light of the expected significant negative impacts of deep seabed mining on the marine environment, and taking into account the oftentimes close interrelationship between biological communities and mineral resources.55 As regards the protection of the marine environment in areas beyond the limits of national jurisdiction the role of the Authority in ocean governance will thus increase proportionally with the relevance and development of deep seabed mining. The potential to develop a progressive governance scheme in this respect is embodied in UNCLOS Art. 145 as well as in the Authority’s competence to set minimum standards for the adoption of pertinent rules and regulations of the 51  Ibid., 676–7. 52 Franckx, “International Seabed Authority,” 557. 53 It has been suggested that it is up to the Authority to determine the equitable sharing criteria mentioned in that provision. See Aldo Chircop, “Operationalizing Article 82 of the United Nations Convention on the Law of the Sea: A New Role for the International Seabed Authority?”, Ocean Yearbook, 18 (2004): 395–412, at 406–7. 54 Rüdiger Wolfrum, “The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf,” in Rainer Lagoni and Daniel Vignes (eds.), Maritime Delimitation (Leiden, 2006), 19–31, at 25, 28; L. Dolliver M. Nelson, “The Continental Shelf: Interplay of Law and Science,” in Nisuke Ando, Edward McWhinney and Rüdiger Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, Vol. 2 (The Hague et al., 2002), 1235–53, at 1251–2; Proelss and Müller, “Legal Regime of the Arctic Ocean,” 679; see also Franckx, “International Seabed Authority,” 560–1, 563. 55 See also Michael W. Lodge, “Improving International Governance in the Deep Sea,” International Journal of Marine and Coastal Law, 19 (2004): 299–316, at 311–2.

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States parties under UNCLOS Art. 209.56 Furthermore, Section 1 (7) of the Annex to the 1994 Implementation Agreement states that “[a]n application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities and by a description of a programme for oceanographic and baseline environmental studies in accordance with the rules, regulations and procedures adopted by the Authority.” In its recent advisory opinion of February 1, 2011, the Seabed Disputes Chamber of the ITLOS recognized the strong link between the precautionary approach as reflected in the Mining Code as well as the duty to undertake an environmental impact assessment (EIA) under UNCLOS Art. 206 and the Annex to the Implementation Agreement on the one hand and the general obligation of States parties to exercise due diligence on the other.57 The power to prescribe the details of the EIA procedure to be undertaken by the applicants thus furnishes the ISA with the mandate to develop a precautionary administration of deep seabed mining.58 This is even more compelling a view in light of the fact that no State has yet initiated deep seabed exploitation activities. Given that a considerable lack of scientific knowledge of deep seabed ecosystems exists to date, the exploration and exploitation of the mineral resources of the Area can be regarded a test case for a proper implementation of the precautionary principle, which may be seen as a tool to ensure the objectives contained in UNCLOS Art. 145.59 Notwithstanding the fact that the precautionary principle is nowhere expressly mentioned in the UNCLOS, the possibility of adopting measures before potential harmful activities actually take place points to the central role that the Authority might play in the future governance of the oceans. Acceptance already of this role is manifested in the Nodules and Sulphides Regulations, which place in Regulation 31 (2) and Regulation 33 (2) respectively an explicit obligation on the Authority to apply the precautionary approach in the context of prospecting and exploration of deep seabed minerals.60 As requested by Regulation 31 (2) of the Nodules

56 See Scovazzi, “International Sea-Bed Authority,” 394; Le Gurun, “EIA and the International Seabed Authority,” 257. 57 ITLOS, Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion of February 1, 2011, available at http://www.itlos.org/start2_en.html (last visited February 4, 2011), paras. 131, 141; see also ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of April 20, 2010, available at http://www.icj-cij.org/docket/files/135/15877. pdf (last visited February 20, 2011), para. 204. 58 Le Gurun, “EIA and the International Seabed Authority,” 225. 59 See also Tanaka, “Conservation and Sustainable Use of Genetic Resources,” 134–5; Le Gurun, “EIA and the International Seabed Authority,” 232. 60 Cf. ITLOS, Seabed Disputes Chamber, Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion of February 1, 2011, available at http://www.itlos.org/start2_en.html (last visited February 4, 2011), para. 130: “It is to be expected that the Authority will either repeat or further



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Regulations, the Legal and Technical Commission of the Authority issued its 2001 recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area.61 These non-binding rules, which acknowledge the need for their possible revision in regular intervals, are aimed at assisting the contractors to carry out their obligation in terms of Regulation 31 (4) of the Nodules Regulations to establish environmental baselines against which to assess likely impacts arising from future mining activities. They are thus targeted at effectively implementing the precautionary principle. Additionally, under Regulation 31 (7), if a Contractor applies for exploitation rights, “it shall propose areas to be set aside and used exclusively as impact reference zones and preservation reference zones.” Indirectly, this places the Authority in a position to take a leading role in the establishment of marine protected areas in areas beyond the limits of national jurisdiction.62 These aspects place the Authority not only in a preferential role concerning the protection of the environment in respect of activities in the Area, but allocate to it the task to make a leading contribution to the implementation of the precautionary principle in ocean and environmental governance. In this respect, the right of the Authority to request advisory opinions under UNCLOS Art. 191 can be regarded as a potential procedural supplement of this mandate. The Structure of the Authority Against this background, the question arises whether the Authority was equipped by the UNCLOS and the 1994 Implementation Agreement with a structure suitable and legitimate to perform the aforementioned tasks. While the concept of the ISA as acting on behalf of mankind as a whole implies the necessity to implement procedures based on a high level of democratic representation and transparency,63 deep seabed mining, once an activity has entered the exploration phase, may, depending on the circumstances, require speedy and effective decision-making due to the technical challenges and environmental risks attached to it. In light of the common heritage principle, the founders of UNCLOS Part XI decided to put the main emphasis on representation and legitimacy. develop this approach when it regulates exploitation activities and activities concerning other types of minerals.” 61 ISBA/7/LTC/1/Rev.1 of February 13, 2002. 62 Oude Elferink, “Delineating the Scope of Application,” 170; see also Le Gurun, “EIA and the International Seabed Authority,” 251–2. 63 Nele Matz-Lück, “The Concept of the Common Heritage of Mankind: Its Viability as a Management Tool for Deep-Sea Genetic Resources,” in Erik J. Molenaar and Alex G. Oude Elferink (eds.), The International Legal Regime of Areas Beyond National Jurisdiction: Current and Future Developments (Leiden et al., 2010), 61–75, at 70.

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In this respect, the Assembly consists of all members of the Authority (UNCLOS Art. 159 [1]), of which, again, all States parties to the UNCLOS are members ipso facto (UNCLOS Art. 156 [2]). Reference can also be made to the complicated scheme for the election of the members of the Council (UNCLOS Art. 161), which takes into account interests groups as well as the objective to ensure equitable geographical distribution. Viewed from that perspective, and taking into account its particular task to look after a common interest of mankind as a whole, the Authority was originally designed as a singular case within the realm of international organizations, which makes it necessary to evaluate its work in a different manner to that of “traditional” international organizations.64 One might even go so far as to say that the solitary character of the ISA and the existence of certain supranational features (approval of plans of work and relationship with contractors, cf. UNCLOS Art. 162) turns it in one way or the other into a model for the case of the European Union. Having said that, critical voices have repeatedly referred to the “ultimate compromise formula”65 on which UNCLOS Arts. 156 to 170 were based as well as the radical change which UNCLOS Part XI (including the assignment and distribution of individual competences to the organs of the Authority) was subjected to by the provisions of the 1994 Implementation Agreement.66 As concerns the issue of effectiveness, suffices it to refer to the comparably poor involvement of State Parties to UNCLOS in the work of the Authority (which has regularly come to the fore, inter alia, in difficulties in securing the necessary participation relevant to the quorum according to UNCLOS Article 159 [5]).67 In light of these observations, it seems justified to conclude that the Authority, concerning its structure, may be qualified as an “in-between”, a product of the time and an expression of the clash of ideologies which came to the fore in the deliberations of the First Committee of UNCLOS III. It remains to be seen how the structural particularities of the ISA influence the role it will play in ocean governance once deep seabed activities enter their commercial stage. Future Prospects It is submitted that the preceding considerations militate against broadening the mandate of the ISA and raise scepticism concerning efforts to transform it into the International Ocean Space Institution originally envisaged by Arvid Pardo.68

64 See also Henry G. Schermers, “We the People of the United Nations,” Max Planck Yearbook of United Nations Law, 1 (1999): 111–128, at 114–5. 65 Franckx, “International Seabed Authority,” 557. 66 See Churchill and Lowe, Law of the Sea, 236–8, 240, 244–53. 67 Wood, “International Seabed Authority,” para. 17. 68 Supra note 18.



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Apart from the fact that it is highly unlikely that the appropriate amendments to the UNCLOS or the 1994 Implementation Agreement would meet with approval of a sufficient majority of parties to the Convention, any transformation of the Authority in the aforementioned sense would require an expansion of both its mandate and structure as well as a change of its entire impetus.69 The difficulties associated with this requirement and the quality of the changes needed can easily be demonstrated by reference to the issue of marine genetic resources. As regards the mandate of the Authority, it should be born in mind that, differently from mineral resources, marine genetic resources cannot be considered as a finite resource. Existing interests in the utilization of these microbes are not connected with the organisms themselves, but refer to the genetic information contained therein. Marine genetic resources are not exploited but rather “sampled for subsequent study in small discrete quantities of sediment or water.”70 The issue is thus not one of equitable sharing of benefits stricto sensu but rather one of distribution of and access to information (which is not or at least not primarily governed by UNCLOS).71 Due to a lack of comparability with mineral resources, it is submitted that an expansion of the access and benefit sharing regime under the supervision of the Authority is moot from the outset. A broadening of the Authority’s mandate to the living resources of the seabed would also require considerable changes in the institutional framework established by UNCLOS Part XI.72 In particular, the composition of the Council in its present-day form is based on interest groups vis-à-vis the exploitation of mineral resources, such as investors in the industry, consumers of the resources and terrestrial producers (cf. UNCLOS Art. 161 [1]).73 Due to the different interests involved, it is difficult to see how this scheme could be effectively implemented with regard to the protection of the marine environment in general. These sceptical remarks should not be mistaken. The protection of the marine environment of the Area as well as the distribution of revenues from the outer continental shelf in accordance with UNCLOS Art. 82 (4) will stand as important challenges to be met by the Authority, and it cannot be doubted that the mandate of that organisation is considerably broad in these respects. As demonstrated, the ISA, notwithstanding its primary nature as a mining agency, has the potential

69 Matz-Lück, “Concept of the Common Heritage of Mankind,” 71–2. 70 Lyle Glowka, “The Deepest of Ironies: Genetic Resources, Marine Scientific Research, and the Area,” Ocean Yearbook, 12 (1996): 154–78, at 169. 71 Proelss, “Marine Genetic Resources,” 439. Cf. also UN Docs. A/62/66 of 12 March 2007, paras. 219–228, and A/62/66/Add.2 of September 10, 2007, para. 232: “The dual character of marine genetic resources as tangible and information resources, requires the application of measures for their conservation and sustainable use as well as for the flow and management of the information they contain.” 72 Treves, “Principles and Objectives,” 17. 73 Id.; Matz-Lück, “Concept of the Common Heritage of Mankind,” 70.

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to decisively influence the development of international environmental law, in general, and sustainable ocean governance, in particular, by making a leading contribution to the implementation of the precautionary principle. Acceptance of its future work in international relations will largely depend on a proper, effective and transparent implementation of the competences awarded to it by the organs of the ISA. The more important it is that the Authority exercises its powers in accordance with the existing legal rules in order not to endanger the carefully negotiated compromise which led to its establishment.74

74 See also Wood, “International Seabed Authority (ISA),” para. 50.

eleven

The Regime of Straits: Safety, Security and Protection of the Marine Environment Nilufer Oral

Introduction The regime of passage for straits used in international navigation was one of the important issues debated and negotiated at the Third United Nations Law of the Sea Conference (UNCLOS III). The debate involved a handful of strait States who vigorously fought to preserve coastal State rights to regulate against the encroaching menace of tankers transporting dangerous and hazardous cargo and the two Super Powers at the time, the United States and the former USSR, who remained steadfast in their position for the preservation of the Grotian freedoms of navigation. The compromise resulted in the adoption of the new regime of transit passage, which offered greater prescriptive competence to the littoral State than would be available over the high seas but less than what had been until then the customary right of innocent passage in the territorial sea. Since the adoption of the 1982 United Nations Law of the Sea Convention (UNCLOS) the challenges faced from global shipping for both coastal and shipping interests have not diminished but to the contrary have increased. Vulnerable marine ecosystems have been threatened by massive oil spills from tanker accidents and from the insidious but equally harmful operational vessel source discharges. Moreover, there has been an alarming increase in security risks from terror and piracy attacks in some of the major straits. This paper will engage in a broad review of examining how the international community has responded to the challenges of safety, security and protection of the marine environment of straits under the regime created in Part III of the UNCLOS. The Third United Nations Conference for the Law of the Sea The nature of the legal regime of passage of straits used in international navigation was addressed in the landmark Corfu Channel case in which the ICJ confirmed the

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customary international law rule of innocent passage rights of foreign warships in straits used in international navigation,1 which was subsequently codified in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone as the right of non-suspendable innocent passage.2 The question of the nature of the legal rights of passage through straits used in international navigation was not raised again until the Third United Nations Conference on the Law of the Sea (“UNCLOS III”) held between 1973 and 1982.3 The legal regime of passage through “international” straits became a subject of international debate and contention with the proposed extension of the territorial sea to 12-nautical miles (nm) under the new Convention, which would transform the legal status of the waters of many straits from high seas, where the regime of freedom of passage applied, to part of the coastal State’s territorial sea, subject to the extensive coastal State rights of innocent passage. The United States, in particular, objected making it a sine qua non of accepting the extension of the breadth of the territorial sea up to 12 nm on the preservation of high seas freedoms in such straits.4 The United States’ demand included rights of overflight and submerged transit for submarines. The former Union of the Socialist Soviet Republic (USSR), having become a world naval power, joined the United States in seeking to maintain freedom of passage rights through straits used in international navigation.5 However, an equally staunch group of eight strait States countered the United States-Soviet Union position with proposals to maintain the customary law of 1 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Merits) I.C.J. Rep. 1949, p. 244. The ICJ judgment confirmed the right of innocent passage for warships through straits used in international navigation which the coastal State could not prohibit in times of peace. 2 Article 16(4) provided that “There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State” April 29, 1958. Entered into force on September 10, 1964. United Nations, Treaty Series, Vol. 516, p. 205. 3 In general see, B. Bing Jia, The Regime of Straits in International Law (Oxford, 1998); J.A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (Boston, 1990); Satya N. Nandan and David H. Anderson, “Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982,” British Yearbook of International Law, 60 (1989), 159–204; Robin R. Churchill and A. Vaughn Lowe, The Law of the Sea, 3rd edition (Manchester, 1999), 13–22. 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 (1980): 77–121; Jonathan I. Charney, “Comment: The United States and the Law of the Sea after UNCLOS III: The Impact of General International Law,” Law & Contemporary Problems (1983): 37–54, 44–48; W.L. Schachte, Jr., and J.P.A. Bernhardt, “International Straits and Navigational Freedoms,” Virginia Journal of International Law, 33 (1993): 503, 544–45. 5 Jose A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective (Dordrecht/Boston/London, 1991), 44–46; W.E. Butler, “Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy,” American Journal of International Law, 81 (1987): 331.



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innocent passage rights and preserve coastal State competence over environment threats of vessel source pollution, especially from accidental oil spills.6 Thus the line was drawn between the “freedom of navigation” and the “protection of the environment” camps. The final compromise reached was the creation of the entirely new regime of “transit passage,” codified in Part III (Straits used for international navigation), Articles 37–42. More than 30 years have passed since these debates took place and the passage of time has not diminished the valid concerns of the strait States. Meanwhile, the hegemonic structure of world power once based on the bi-polar force of the cold war has altered dramatically following the dissolution in 1991 of the former USSR. In 1994, when the UNCLOS7 went into effect, a different world order was in its initial stages of evolution. New threats of international terror and weapons of mass destruction have now come to dominate modern security concerns. At this same, this period has been marked with a significant increase in overall international commercial shipping and, in particular, the maritime transport of dangerous and hazardous cargoes. New oil and gas resources have been discovered in different parts of the world, from the Caspian to the Caribbean, depending on seabourne transport in tankers of increasing volume and tonnage. Not surprisingly, this increase in oil transport has brought with it numerous serious tankers accidents resulting in oil spills in sensitive sea areas such as the Turkish Straits and the Torres Straits. In addition to the threat of pollution that dominated the concerns of the strait States during UNCLOS III there has been a progressive increase in piracy attacks in sensitive strait areas as well as increase in the threat of terror attacks, especially targeted against oil tankers navigating in major “chokepoint” straits.8 The 1982 UNCLOS attempted to address the concerns of strait States while balancing the navigational rights defended by maritime interests.9 Concessions 6 Spain, Malaysia, Indonesia, Philippines, Cyprus, Egypt, Morocco and Yemen formed what became known as the strait States group. For an excellent history of the negotiations over straits at UNCLOS III, see Jose A. de Yturriaga, Straits Used for International Navigation: A Spanish Perspective, 73. 7 Adopted in Montego Bay on December 10, 1982, entered into force on November 16, 1994, 1833 UNTS 3. 8 The International Energy Agency describes a “chokepoint has been described as a narrow waterway with heavy maritime traffic susceptible to being blocked due to accidents or pirate or terror attacks.” J.P. Rodrigue, “Straits, Passages and Chokepoints: A Maritime Geostrategy of Petroleum Circulation,” Les Cahiers de Geographie du Quebec, 48, 135 (2004): 357–374. The author lists three criteria: (1) limited physical capacity to handle maritime transportation, (2) limited usage of it, and (3) control over the chokepoint as a resource. 9 Some authors questioned the adequacy of the transit passage regime to meet national security interests of the United States as a maritime power with strong interests on safeguarding freedom of high seas passage. W. Michael Reisman, “The Regime of Straits and National Security: An Appraisal of International Lawmaking,” American Journal of International Law, 74 (1980): 48–76, 67–71.

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were offered to the strait States such as traffic separation schemes and a cooperation mechanism. The 1982 Law of the Sea Convention: A Comparison of “Transit” and “Innocent” Passage The UNCLOS has been ratified or acceded to by 161 States including the European Union.10 Under the UNCLOS the transit passage regime provides the general rule of passage for straits used in international navigation connecting one part of the high seas or the EEZ to another part of the high seas or EEZ.11 Article 38(1) and (2) provides for the unimpeded right of transit passage that is ‘continuous and expeditious.’ There are, however, a number of notable exceptions where instead of transit passage the rule of nonsupendable innocent passage applies. These are: (1) if there exists a similar route of convenience through the high seas or EEZ;12 (2) in straits between an island and the mainland if a route of similar convenience exists between the high seas or EEZ;13 (3) in straits between the territorial sea of a coastal State and the high seas or EEZ14 and (4) and in straits governed in whole or in part by a long-standing international convention.15 The practical implications of this differentiation between transit and nonsuspendable innocent passage have a direct bearing on the level of competence of the coastal State in relation to the prescriptive and enforcement powers over the strait waters. The transit passage regime, while granting the coastal State greater legal competence to regulate shipping activities than would be permissible over the high seas, nonetheless, falls significantly short of those allowed under the innocent passage regime. Meaning of “transit” versus “innocent” Passage The difference between transit and nonsuspendable passage lies in the details.16 Both require that passage be “continuous and expeditious.” And while the Convention lists activities that would render passage “non-innocent,”17 in regard to 10 See http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm. 11 Article 37. 12 Article 36. 13 Article 38(1). 14 Article 45(1)(b). 15 Article 35(c). 16 See Moore, supra note 4, at 102–104. For an in-depth examination of the coastal state prescriptive and enforcement jurisdiction over vessel-source pollution, see Erik J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague/Boston/London, 1998). 17 The views are divided as to whether the list of activities under Article 19 that would render passage non-innocent is exhaustive or illustrative. In 1989 the United States and the



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transit passage Article 38(3) simply provides that “any activity which is not an exercise of the right of transit passage through a strait remains subject to other applicable provisions of this Convention.” This general catchall clause fails to offer any guidance as what the “other applicable provisions” would be. More important, there is no enumeration of activities parallel to those listed for noninnocent activities in Article 19. Instead, the limitations on passage are provided for as the duties of ships and aircraft engaged in transit passage. Ships engaged in transit passage must proceed without delay in their “normal mode of operation”, and refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations. Prescriptive Competence Both the transit and nonsuspendable passage regimes bestow prescriptive competence on States bordering straits to adopt laws and regulations for safety of navigation and pollution prevention, prevention of fishing activities, the contravention of the customs, fiscal, immigration or sanitary laws and regulations. Marine research is also restricted to obtaining the consent and adhering to the regulations of the coastal State in both cases. The differences, once again, lie in the details. In relation to pollution prevention, the coastal State bordering a strait can only regulate the discharge of oil, oily wastes and other noxious substances from vessels in transit in the strait. This implicitly refers to the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the Protocol of 1978, (73/78 MARPOL) and its Annex I on oil.18 By contrast, under the regime of innocent passage the coastal State is accorded much broader prescriptive competence, including, inter alia, competence to adopt laws for safety of navigation and regulation of maritime traffic, conservation of marine living resources, prevention of violation of fisheries laws, preservation of the environment of the coastal State and the prevention, reduction and control of pollution preservation of the environment of the coastal State and pollution prevention.19 Areas where the two regimes run parallel, under the terms of UNCLOS include the establishment of traffic separation schemes and sea-lanes in both the territorial sea and in straits. However, for straits falling under the transit passage regime

former-USSR signed a Uniform Interpretation of Norms of International Law Governing Innocent Passage that the list of activities in paragraph 2 of Article 19 were exhaustive. See Churchill and Lowe, The Law of the Sea, 85–86. 18 November 2, 1973, reprinted in International Legal Materials 12 (1973), 1319; Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, February 16, 1978, reprinted in International Legal Materials 17 (1978), 546. 19 1982 UN Convention on the Law of the Sea (UNCLOS), Article 21(1).

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such traffic separations schemes must be submitted to and obtained the approval of the IMO.20 In the case of innocent passage, the coastal State when designating sea-lanes or traffic separation schemes is only required to take into account the recommendations of the IMO.21 On the other hand, unlike in the innocent passage regime for the territorial sea, the transit passage regime does not require that foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances carry documents and observe special precautionary measures in accordance with international agreements.22 By contrast, the only requirement imposed on ships engaged in transit passage is to comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for the Prevention of Collisions at Sea, 1972 (COLREG),23 and for the prevention, reduction and control of pollution.24 Enforcement Competence The scope of the enforcement competence of the coastal State against a foreign vessel engaged in innocent passage in the territorial sea is not clearly defined nor enumerated in the Convention. The enforcement power of the coastal State is balanced against the right of passage of foreign vessels. Specifically, according to Article 24, the coastal State is duty-bound not to “hamper the innocent passage of foreign ships through the territorial sea in accordance with the Convention.” The provision specifically notes that the coastal State shall not “impose requirements that have the practical effect of denying or impairing the right of innocent passage,”25 or discriminate against ships.26 Article 25 clarifies that the coastal State does have the right to prevent non-innocent passage, which for purposes of the protection of the environment, would apply only to cases of willful and serious pollution or fishing activities.27 The question whether the detention or arrest of a vessel engaged in innocent passage in the territorial sea for violations of coastal State laws and regulations that do not constitute acts of willful and serious pollution would amount to an act of “hampering” innocent passage rights requires further examination. Article 28 on civil jurisdiction in relation to foreign ships, if applying inverse analysis, allows the coastal State to arrest a foreign ship “only in respect of obligations or liabilities assumed or incurred by the ships in the course of or for the ­purpose of 20 Article 41(4). 21 Article 22(2) . 22 Article 23. 23 Article 39(2)(a). 24 Article 39(2)(b). 25 Article 24(1)(a). 26 Article 24(1)(b). 27 Article 21.



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its voyage . . .” This would include liabilities related to navigational aid services, such as tug or pilotage, or other navigational related services rendered. But, would it also include liabilities incurred for the violation of the coastal State laws for protection of the marine environment and marine living resources. Likewise, the coastal State can exercise criminal jurisdiction over a foreign vessel if the consequences extend to the coastal State.28 However, the only express enforcement competence recognized to the strait State is under Article 233, which allows the state to take enforcement measures against a foreign ship engaged in transit passage which violates the straits States laws for safety of navigation and maritime traffic regulation, and laws for the prevention, reduction and control of pollution giving effect to the applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances. These would be limited thus to the IMO instruments that are in force, notably the MARPOL Convention and Annex I. Safety, Security and Protection of the Marine Environment in Straits Safety of Navigation Straits by definition are narrow belts of sea connecting larger bodies of water such as oceans and seas. The question of the rights of passage for foreign ships and the corresponding regulatory rights of the coastal State is especially important because of the critical role played by certain straits in facilitating seaborne commercial activities and military passage. In the case of commercial activities, given that over eighty percent of world trade is transported by sea, the importance of straits as global connectors and highways is vital. One of the consequences of the reliance on maritime transportation is a resulting high density of maritime traffic and the potential for increased risk of accidents that carries with it. There is, too, the correlating risk of pollution of the marine environment of the coastal State. Recognizing the legitimate concerns of the strait States at UNCLOS III, a compromise was reached and codified in Article 41 of the Convention that allowed strait States to establish traffic separation schemes and sea-lanes that conform with generally accepted international regulations, after submitting these proposals to the “competent international organization,” widely recognized to be the IMO, for approval. In practice, a many of the strait States have established mandatory traffic separation schemes in straits. In addition to traffic separation schemes, mandatory ship reporting systems (SRS) have also been adopted with

28 Article 27.

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Nonsuspendable IP regime Coastal State rights

Transit passage regime Coastal State rights

Adopt laws and regulations for:

Designate sea lanes and prescribe traffic separation schemes that shall conform to generally accepted international regulations

the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids . . . (c) the protection of cables and pipelines;

Adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following:

(d) the conservation of the living resources of the sea;

(a) the safety of navigation and the regulation of maritime traffic

(e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;

(b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;

(g) marine scientific research and hydrographic surveys;

(c) the prevention of fishing, including the stowage of fishing gear;

(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

(d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations

the approval of the IMO, even though no specific reference to SRSs was included in Part III of UNCLOS.29 Technological advancements have created sophisticated communications systems used in shipping. For example, automated information services (AIS), Longrange tracking information (LRITs) and Vessel Data Recording Systems (VDRs) are part of the standard arsenal of navigational aid devices adopted by the IMO. The centralizing system of these devices is the Vessel Traffic Information Monitoring System (VTMIS) or Vessel Traffic Services (VTS). The effectiveness of these devices and the role of the VTS or VTMIS for improving safety of navigation are widely accepted. And, in this regard, the IMO has played an important role. 29 In general, see Glen Plant, “The Relationship between International Navigation Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic Systems,” in H. Ringbom, Competing Norms in the Law of Marine Environmental Protection (London/Boston, 1997); Glen Plant “International Legal Aspects of Vessel Traffic Services,” Marine Policy, 14 (1990): 71–81.



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Strait of Dover The Strait of Dover, which handles approximately 400 vessels daily, is considered as one of the busiest straits in the world.30 In past years it was the location of many maritime accidents. Because of increasing accidents and in particular following a tragic case where many lives were lost, IMCO31 (now IMO) approved the establishment of the first traffic separation scheme under radar surveillance. The United Kingdom and France jointly administer the traffic separation scheme. In 1999, the ship reporting system was made mandatory in accordance with SOLAS Reg. 8–1, Chapter V, for all vessels over 300 gross tons (CALDOVREP). The system relies heavily on communications and electronic infrastructure. Accident results have shown the effectiveness with an average of four accidents per year between 1980 and 2000.32 Turkish Straits The Turkish Straits consist of the Strait of Istanbul, part of the Sea of Marmara and the Çanakkale Strait. In 2010 over 50,000 vessels navigated through the Turkish Straits.33 Over the years the Turkish Straits have been the scene of serious maritime accidents and oil spills. One of the most serious tanker accidents took place in the Strait of Istanbul in 1979. The collision of the M/T Independenta and the M/V Evriali in the Strait of Istanbul resulted in both loss of lives and the release of some 95,000 tonnes of crude oil. In 1994 a similar collision took place in the Strait of Istanbul with the tragic loss of lives and the release of approximately 20,000 tonnes of oil in the marine environment.34 The Turkish Straits, recognized as one of busiest and riskiest waterways instituted a comprehensive set of new

30 On January 11, 1971, the MV Paracas and the MT Texaco Caribbean collided in the Strait of Dover. The tanker exploded, broke in half and sunk, killing eight crewmembers. However, the next day another vessel struck the submerged wreck of Texaco Caribbean and capsized resulting in the death of 21 crewmembers. The following day, disaster struck again, when another vessel also struck the submerged wreck and sank taking 22 more lives. See Nilufer Oral, “Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea,” Ocean Yearbook, 20 (2006): 561–594, fn., 59. 31 The original name of the IMO was the Inter-Governmental Maritime Consultative Organisation (IMCO). However, in 1975 the name was changed to the current International Maritime Organisation. See G.P. Pamborides, International Shipping Law: Legislation and Enforcement (Athens, 1999), 80–81. 32 Oral, “Straits Used in International Navigation,” 573. 33 See Turkish Under Secretariat for Maritime Affairs statistics at http://www.denizcilik. gov.tr/dm/istatistikler/ResmiIstatistikler/. 34 Nilufer Oral, “Oil and Water: Caspian Oil and Transportation Challenges Facing the Turkish Straits,” in Myron H. Nordquist and John Norton Moore (eds.), Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (Hague/ London/New York, 2001), 329–364, 334.

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traffic regulations in 1994, later amended in 199835 that included establishing a new traffic separation scheme based on Rule 10 of COLREG and a mandatory SRS called TÜBRAP. In 2004 the Turkish authorities also established a satellite based VTS system.36 The VTS is able to provide real time surveillance and communication with ships in passage through the straits, an important contribution to the control and reduction of shipping accidents. Turkey is not a Party to UNCLOS. However, if it were a Party, the transit passage regime would not be applicable. Article 35 [c] of the UNCLOS, which protects the existing regime of straits that are governed in whole or in part by long-standing conventions, recognizes that certain straits are governed by a lex specialis. The 1936 Convention on the Regime of the Straits (“Montreux Convention”)37 is case par excellence for the application of Article 35. However, the regime of the passage of merchant vessels through the Turkish Straits did provoke controversy at the IMO during the 1990s. Specifically, the adoption by Turkey of the 1994 Turkish Straits Maritime Traffic Regulations, as amended in 1998 (Turkish Straits Regulations) caused a lively debate at the IMO, especially the rules pertaining to the traffic separation scheme and the possibility for temporary suspension of one-way or two-way passage for vessels carrying dangerous cargo that are over a specified length.38 Ultimately the IMO recognized the importance of safety and environmental concerns in the Turkish Straits and in 1998 confirmed the need for suspension of one-way and two-way traffic for specified vessels.39 Danish Straits The Danish Straits consist of three different bodies of waters: the Sound, the Great Belt and the Little Belt.40 The Straits are a link between the Baltic Sea and the North Sea, serving as the only connection to other seas of the world for some of 35 1998 Türk Boğazları Deniz Trafik Düzeni Tüzüğü, Resmî Gazete November 6, 1998, Official Gazette No. 23515, Law no. 618. [The Turkish Straits Maritime Traffic Scheme Regulations]. 36 Salih Orakci, “General Directorate of Coastal Safety and Salvage Administration,” in Nilufer Oral and Bayram Ozturk, (eds.), The Turkish Straits Maritime Safety Legal and Environmental Aspects (Istanbul, 2006), 52–65, 58–64. 37 Concluded in Montreux, July 20, 1936. Great Britain Treaty Series no. 30 (1937). 38 See Nihan Unlü, The Legal Regime of the Turkish Straits (The Hague/New York, 2002); Oral, “Oil and Water,” 343–350; Glen Plant, “Navigation Regime in the Turkish Straits for Merchant Ships in Peacetime: Safety, Environmental Protection and High Politics,” Marine Policy 20 (1996): 15–27. 39 The Rules and Recommendations on Navigation through the Strait of Istanbul, the Strait of Çanakkale and the Marmara Sea IMO Doc. Resolution A.827(19), November 24, 1998. 40 G. Alexandersson, The Baltic Straits (The Hague, 1982); K. Bangert, “Denmark and the Law of the Sea,” in Laura Pineschi and Tullio Treves (eds.), The Law of the Sea, the European Union and Its Members (The Hague, 1997): 97–126, 106; Alex G. Oude Elferink, “The Regime of Passage through the Danish Straits,” International Journal of Marine and Coastal Law, 15 (2000): 555–66, 563.



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the coastal States. The legal regime of the Danish regime, regulated by two treaties, is another special regime coming under Article 35 [c] of the 1982 UNCLOS.41 The Great Belt and Sound handle the heaviest volume of maritime traffic. The volume of oil transported in the Danish Straits has increased to 3.3 million bbl/d42 in 2009 to from 2.4 million bbl/d in 2005.43 In order to provide safety of navigation and protection of the marine environment, Denmark, through the IMO, adopted a traffic management measure known as a “T route.” It includes a traffic separation scheme and a deep-water route. In 2002, because of an increase in traffic in the Straits, the IMO amended the existing traffic separation scheme to include a recommendation for the use of pilotage when transiting the Sound and Great Belt.44 Furthermore, in 1991, a VTS system was established for the Great Belt that was made mandatory in some parts, and voluntary in others. However, as a result of accidents and numerous violations of the TSS by foreign ships, in 1996 a mandatory ship reporting system was established in system was established in the Great Belt in accordance with SOLAS Regulation 8, Chapter V. Malacca and Singapore Straits Another key strait of tremendous importance to international trade but also vulnerable to accidents are the Malacca and Singapore Straits.45 In 1977, as a measure to control the increase in shipping traffic, a traffic separation scheme was established and adopted for the Strait of Malacca. It was later amended in 1981 and 1998. Further, in 1998 a mandatory ship reporting system, known as STRAITREP, was adopted by the IMO in accordance with SOLAS Regulation 8–1, Chapter V.46 The IMO also adopted the first marine electronic highway (MEH) for the ­Malacca

41 Treaty for the Redemption of the Sound Dues between Austria, Belgium, France, Great Britain, Hanover, the Hansa Towns, Mecklenburg-Schwerin, the Netherlands, Oldenburg, Prussia, Russia, Sweden-Norway and Denmark of March 14, 1857; and the Convention for the Discontinuance of the Sound Dues between Denmark and the United States of April 11, 1857 (Consolidated Treaty Series Vol. 116, p. 357). 42 Bbl/d means barrels per day. 43 Energy Information Administration (EIA), World Analysis Briefs, World Oil Transit Chokepoints, at http://www.eia.doe.gov/cabs/World_Oil_Transit_Chokepoints/Full. html (Last visited February 28, 2011). 44 IMO Doc. Resolution A.579 (14) and A.620 (15) adopted in 1985 and 1987 respectively. 45 Robert Beckman, “Singapore Strives to Enhance Safety, Security, and Environmental Protection in Its Port and in the Straits of Malacca and Singapore,” Oceans & Coastal Law Journal, 14 (2009), 176. 46 STRAITREP was adopted by IMO under Resolution MSC.73(69) on May 19, 1998 and entered into force at midnight UTC on December 1, 1998. See Mark Heah Eng Siang, “Implementation of Mandatory Ship Reporting in the Malacca and Singapore Straits,” Singapore Journal of International & Comparative Law, 3 (1999): 345–352.

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and Singapore Straits.47 It aims at integrating or linking up electronic based information obtained from AIS and VTS through strategically placed information centers in the straits area. The objectives are to enhance monitoring of maritime traffic and thereby increase safety of navigation as well as protection of the marine environment from accidental sources of ship-based pollution. These measures to enhance safety of passage through straits require a significant outlay of finance, the burden of which falls on the coastal State. During UNCLOS III negotiations on straits, in recognition of the legitimate concerns of strait States regarding vessel-source pollution and maritime accidents, an innovative provision for cooperation was adopted. This provision aimed to provide straits subject to the transit passage regime with international support, primarily financial, by encouraging cooperative agreement arrangements between the “strait” States and the “user” States that were deriving an important benefit from the use of the strait. Article 43 provides that “User States and States bordering a strait should by agreement cooperate: (a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b) for the prevention, reduction and control of pollution from ships. The first mechanism under Article 43 was created for the Malacca and Singapore Straits.48 The Co-operative Mechanism, a tripartite agreement between Malaysia, Singapore and Japan was established in 2006.49 The objective of the Co-operative Mechanism is to improve safety and protection of the marine environment and provide for burden sharing in maintenance and navigation aids between the coastal States and users of the straits. The Mechanism has three components: a Cooperation Forum (CF), a Project Coordination Committee (PCC) and Aids to Navigation Fund (ANF).50 Several States have committed to various projects

47 Peter M. Marlow and Bernard M. Gardner, “The Marine Electronic Highway in the Straits of Malacca and Singapore—An Assessment of Costs and Key Benefits,” Maritime Political Management, 33 (2006): 187–202; C. Thia-Eng and S.A. Ross, “Marine Electronic Highway: Concepts and Challenges, The Part III: Framework for Cooperation in Preventing and Managing Marine Pollution,” Singapore Journal of International and Comparative Law, 3 (1999): 388–401. 48 B.H. Oxman, “Observations on the Interpretation and Application of Article 43 of the United Nations Convention of the Law of the Sea with Particular Reference to the Straits of Malacca and Singapore,” Singapore Yearbook of International Law 3 (1999): 408–26. 49 See Beckman, “Singapore Strives to Enhance Safety,” 187–96. 50 The Aids to Navigation Fund Committee was formally established in 2008. Its members include Indonesia, Malaysia, Singapore, Republic of Korea, United Arab Emirates, the Nippon Foundation, Saudi Arabia, the IMO and the Middle East Navigation Aids Ser-



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under the Mechanism as shown in the table below. Between 2008 and October 2010 the ANF received total contributions in the amount of US$ 7.86 million.51 Table 252 2008 (Total of US$1.451 million) a. The Nippon Foundation—US$1.351 million to conduct assessment survey of 51 aids to navigation in the Straits A.E—US$100,000 2009 (Total of US$4.985 million) U.A.E—US$100,000 Republic of Korea—US$83,531.70 MSC—US$500,000 Nippon Foundation—US$2.5 million MENAS—US$1.0 million IMO—US$50,000 2010 (Total of US$2.325 million) U.A.E—US$100,000 Republic of Korea—US$88,234.79 Arab Saudi—US$100,000 MSC—US$500,000 Nippon Foundation—US$1.39 million

vice (MENAS). Observer members are China, Greece, Japan and International Maritime Organization. 51 Report of the 4th Aids to Navigation by Malaysia Update on the Aids to Navigation Fund Under the Cooperative Mechanism Between the Littoral States and User States on Safety of Navigation and Environmental Protection in the Straits of Malacca and Singapore (October 3, 2010), available at http://www.tteg-indonesia.com/download/tteg/TTEG35ANNEXGReportof4thAidtoNavigationFundbyMalaysia.pdf. 52 Id.

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Protection of the Marine Environment in Straits and PSSAs The protection of the marine environment is an unequivocal duty under Article 192 of UNCLOS. However, this unequivocal duty is curtailed by the restricted competence of the coastal State to adopt laws and regulations, and more importantly, to enforce them in straits that are subject to the transit passage regime under UNCLOS. Notably, the competence of the coastal State to protect the marine environment and living marine resources in straits that fall under the transit passage regime is significantly limited, especially in comparison to the coastal state rights in the territorial sea and EEZ. For example, the Convention requires that States adopt measures, consistent with the Convention, necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species.53 States are further under a duty to cooperate at the global and regional basis either directly or through competent international organizations, consistent with the Convention, for the protection and preservation of the marine environment.54 The qualifier in these latter provisions is in the language consistent with the Convention, which in practical terms would elevate transit passage rights to a dominant position over the duty to protect rare or fragile ecosystems or the duty to cooperate for the protection of the marine environment. Nonetheless, the clear language of Article 192 lacks such qualification, thus creating lack of clarity as to how this duty of protection, which operates for both the vessel and the coastal state, is to be interpreted and applies in straits subject to the transit passage regime. Torres Strait The particularly sensitive sea area (PSSA), as developed by the IMO, is one of the important tools provided to coastal States to protect sensitive areas of the marine environment with unique natural characteristic from the adverse impacts of shipping activities.55 Through the unique international forum provided at the IMO to bring about international consensus the PSSA provides a legal mechanism to restrict shipping activities in areas that are shown to have negative environmental impacts. It allows a coastal State to adopt restrictive measures that it would

53 Article 194 (5). 54 Article 197. 55 IMO Assembly Resolution A.982(24), of December 1, 2005, “Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas” (IMO doc. A 24/ Res.982, of February 6, 2006). Kristina Gjerde and David Freestone (eds.), “Particularly Sensitive Sea Areas: an Important Environmental Concept at a Turning Point,” International Journal of Marine and Coastal Law (Special Issue), 9 (1994): 431–578; Julian Roberts, “Protecting Sensitive Marine Environments: The Role and Applications of Ships’ Routeing Measurers,” International Journal of Marine and Coastal Law, 20 (2005): 135–159.



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not be entitled to adopt on a unilateral basis, or even if unilateral competence is possible approval by the consensus process at the IMO ensures international compliance. The extent of the PSSA to adopt measures of an “exceptional” nature was put to the test in the Torres Strait on the issue of mandatory pilotage.56 The existing PSSA in the Great Barrier Reef (GBR) had been originally established in 1990.57 In 2003 Australia and Papua New Guinea jointly submitted an application to the IMO Marine Environmental Protection Committee (MEPC) to have the Torres Strait be designed as a PSSA. In July of 2005 the Torres Strait became the first strait used in international navigation designated as a PSSA.58 However, the tangle came with the requested Associated Protective Measure (APM) for mandatory pilotage to apply to certain vessels.59 The IMO Sub-Committee on Navigation (NAV 50) found the Australian request for mandatory pilotage suitable and proportionate to the environmental needs of the area that would be covered in Strait. The IMO membership, however, was split between those who supported the measure as consistent with international law and those who objected on the grounds that mandatory pilotage was in violation of the transit passage provisions in Article 38.60 In response Australia made a compromise proposal to adopt a new resolution that would extend the existing PSSA in the GBR with its provisions on mandatory pilotage. The MEPC resolution adopted included language that recommended that vessels should abide by Australia’s system of pilotage.61 This proposal was accepted, but the delegation of the United States made an express declaration that the Resolution only recommended pilotage and did not constitute a legal basis for mandatory pilotage.62 Following the adoption of the Resolution MEPC.133(53) Australia enacted a law in 2006 that made pilotage mandatory in the Torres Strait. Not surprisingly this system of mandatory pilotage has been disputed as not being accordance with the IMO resolution. The Australian position, however, is that the resolution does not restrict mandatory pilotage. According

56 Sam Batemen and Michael White, “Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment,” Ocean Development & International Law, 40 (2009): 184–203; Robert Beckman, “PSSA’s and Transit Passage— Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS,” Ocean Development & International Law, 38 (2007): 325–357; Julian Roberts, “Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal,” Ocean Development & International Law, 37 (2006): 93–112. 57 IMO Doc. Resolution MEPC. 45(30), adopted November 16, 1990. 58 MEPC Resolution 133(53), Designation of the Torres Strait as an Extension to the Great Barrier Reef Particularly Sensitive Sea Area, adopted July 22, 2005. 59 IMO had already adopted a resolution recommending the voluntary system of pilotage was already since 1987. IMO Resolution A.619(15) adopted on November 16, 1987. 60 Roberts, “Compulsory Pilotage in International Straits,” 103–104. 61 Bateman and White, “Compulsory Pilotage in the Torres Strait,” 196. 62 Beckman, “PSSAs and Transit Passage,” 325–357, 335–336.

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to the Australian regulations that went into effect as of 6 October 2006, pilotage was made mandatory for all vessels over 70 meters in length and for all loaded oil, gas or chemical tankers through the Torres Strait.63 Violations are subject to a fine of 100,000 Aus$.64 Strait of Bonifacio The question of mandatory pilotage in straits came up again for the Strait of Bonifacio, which lies between the coast of Corsica and Sardinia.65 It is also part of the Pelagos Sanctuary for cetaceans.66 Renowned for its rich marine biodiversity the Strait of Bonifacio has also experienced oil pollution. Following a tanker accident in 1993, the passage through the Strait of Bonifacio has been prohibited for French and Italian flagged ships carrying dangerous cargo. In 2007 a pilotage service was established for the Strait. However, it is not mandatory. France and Italy made a joint submission to the IMO to have the Strait of Bonifacio designated as a PSSA that included mandatory pilotage. [MEPC 61/9]. In 2011 the IMO approved the designation of the Strait of Bonifacio as a PSSA that included recommended use of pilotage, not mandatory pilotage. [MEPC 62/24/Add.1, Annex 4]. Arctic Climate change and accelerated melting ice is expected to open shipping routes in the Arctic area previously unavailable due to ice.67 The Northwest Passage, the Northern Sea Route and the Bering Strait are the three main potential shipping routes.68 However, the prospects on enhanced shipping activities, especially for oil and gas transport, raises legitimate environmental concerns. An increase

63 Marine Notice 8/2006 Revised Pilotage Requirements for Torres Straits, available at http://www.amsa.gov.au/shipping_safety/marine_notices/2006/documents/0806.pdf. 64 Id. 65 Claudiane Chevalier, “The project of International Marine Park in the Mouths of the Bonifacio in International Law: Towards and Improved Conservation Regime of the Marine Environment in the Mediterranean” (Unpublished paper; on file with the IUCN Centre for Mediterranean Cooperation, Malaga, 2004). 66 The Pelagos Sanctuary for Mediterranean Marine Mammals is a large marine protected area covering some 87,500 sq. km of sea surface in parts of the northwestern Mediterranean Sea between south-eastern France, Monaco, north-western Italy and northern Sardinia, and encompassing Corsica and the Tuscan Archipelago. The Sanctuary waters include the Ligurian Sea and parts of the Corsican and Tyrrhenian Seas, and contain the internal maritime (15%) and territorial waters (32%) of France, Monaco and Italy, as well as the adjacent high seas (53%). 67 Michael Byers and Suzanne Lalonde, “Who Controls the Northwest Passage?” Vanderbilt Journal of Transnational Law, 42 (2009): 1133–1210. 68 For a detailed examination of shipping related issues in the Arctic see, Arctic Council Arctic Marine Shipping Assessment 2009 Report, available at http://www.pame.is/ images/stories/PDF_Files/AMSA_2009_Report_2nd_print.pdf. See also Erik J. Molenaar



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in maritime traffic creates an inevitable increase in the risk of operational and accidental ship source pollution.69 The question of which legal regime for straits under the UNCLOS will be applicable will have an important impact on the potential measures that can be implemented, such as a PSSA, to protect the marine environment. According to the United States the Northwest Passage and parts of the Northern Route are international straits subject to the transit passage regime whereas Canada and the Russian Federation asserts contrary views. Canada claims the Northwest Passage as part of Canadian internal waters subject to Canadian national laws and regulations.70 The practical difference is significant. If the Northwest Passage or Northern Sea Route are treated as straits used in international navigation subject to the transit passage regime, measures critical to ensuring safe passage that protects the fragile marine environment such as mandatory pilotage will not be available in the risky waters. Thus these routes will be laid open to the damaging consequences of an oil spill that history has proven to be inevitable. One issue specific to straits in the Arctic area is the relationships between Article 234 of UNCLOS on ice covered areas and its relationship with the transit passage regime. This provision grants the coastal State competence to adopt and enforce non-discriminatory laws for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone. As a lex specialis for the Arctic area this provision may arguably supersede the transit regime under Part IX.71 The Torres Strait PSSA provided the international maritime community an important opportunity to balance the interests of shipping and protection of the environment. Unfortunately, the resulting conflicting understanding as to the legal ability of a strait State to adopt compulsory measures, such as mandatory pilotage, that have been shown to significantly enhance safety of navigation and thereby protection of the marine environment raises a question of conflicting priorities between the unqualified duty to protect the marine environment under the Article 192 of the Convention as well as customary international law, and the right of transit passage. Given the strict criteria for the establishment of a PSSA, measures such as mandatory pilotage should be deemed consistent with UNCLOS. Otherwise, the delicate balance sought to be achieved between the maritime interests and the coastal strait interest will be lost to the detriment of the marine environment.

and Robert Correl, “Background Paper: Arctic Shipping,” (2009) available at http:// arctic-transform.org/download/ShipBP.pdf. 69 Hannah E. King, “Protecting the Northwest Passage: Assessing the Threat of Year-Round Shipping to the Marine Ecosystem and the Adequacy of the Current Environmental Regimes,” Ocean and Coastal Law Journal, 14 (2009): 269–306. 70 King, “Protecting the Northwest Passage,” 278–280. 71  See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 102–103.

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Maritime Security The legal question of the relationship between the “security” interest of the coastal State and passage rights of foreign flagged vessels through straits was left somewhat unclear under the UNCLOS.72 Clearly, in the territorial sea where the rules of innocent passage apply, the coastal State has the right to prevent the passage of any foreign vessel that poses a threat to the peace, good order or security of the coastal State. Whereas, the provisions on transit passage in Article 39(1)(b) recognizes the duty of the ship to not engage in hostile activities against the littoral State that would be in violation of the United Nation Charter. The implicit difference thus between innocent passage and transit passage would be in the level of degree of the threat to the security of the State. In the case of straits the threat would have to rise to the level of a violation of the United Nations Charter, whereas, in the case of passage through the territorial sea, a lower threshold would apply. Yet, in reality, it is difficult to identify any real difference between the interests of a coastal State in a territorial sea as recognized in the regime of innocent passage against that of a coastal State in its strait that would otherwise qualify as part of its territorial sea. SOLAS, the ISPS Code and the 2005 SUA Paradoxically, the competence of strait States to prevent passage of vessels for security purposes is far more restrictive than for the territorial sea under the innocent passage regime. The coastal State rights over vessels engaged in innocent passage for the territorial sea under the UNCLOS specifically stipulates that a coastal State may, “without discrimination in form or in fact among foreign ships, suspend temporarily, in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises.”73 However, as to straits—especially choke points that are inherently more susceptible to security risks—the coastal State is prohibited from suspending passage in transit passage straits and in straits that would fall under the nonsupendable passage regime, even for security reasons. This important limitation is based on the Corfu Channel Judgment, which involved traditional security issues of inter-State conflict. Modern security challenges have evolved since 1982, however, to include serious risks from terrorism, perpetuated by many groups that possess the arms arsenal and the know-how of States. One year before the September 11, 2001 terrorist attacks in the United States, an explosives-loaded zodiac boat rammed into the French-flagged, 332 meter VLCC Limburg in Yemeni waters demonstrating both the vulnerability of tankers 72 For a discussion on the different views of interpretation of the provisions on transit passage see Moore, “The Regime of Straits and the Third United Nations Conference on the Law of the Sea,” 87–90. 73 Article 25(3).



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to such attacks and what relatively easy targets they could be.74 The vulnerability of tankers was also demonstrated in a lesser-known incident that took place in the Turkish Straits in 2003, when as a result of a grounding incident, officials discovered that a foreign-flagged vessel was carrying 16 tonnes of unreported explosives. The issue of security, especially related to terror attacks against shipping was immediately addressed in the IMO following the attack against the US on September 11, 2001. SOLAS 73/76 was amended with Chapter XI-2 (Special measures to enhance maritime security),75 and the International Ship and Port Security (ISPS) Code in Chapter XI-2/2. The ISPS Code applies to ships and ports. One of its important functions is to detect security threats and take preventative measures . . .76 Under the mandatory provisions all ships that come within the scope of application of the ISPS Code, inter alia, must be installed with, an Automatic Identification System (AIS),77 a Continuous Synopsis Record (CSR),78 an IMO Identification number,79 a Ship Security Alert System (SSAS),80 and long range ship identification tracking (LRIT). Furthermore, each ship must have a company security officer (CSO) designated by the Company responsible for the implementation of the security measures on board the ship81 and a Ship Security Officer (SSO). The ship must carry an International Ship Security Certificate (ISSC) indicating that it complies with the Code. Contracting Governments set the appropriate security level for their ships and ports. Security Level 1, normal; Security Level 2, lasting for the period of time when there is a heightened risk of a security incident; and Security Level 3, lasting for the period of time when there is the probable or imminent risk of a security incident. 74 The attack took place on October 6, 2002, killing one crew member and resulting in the spill of 90,000 tonnes of oil. 75 The chapter applies to passenger ships and cargo ships of 500 gross tonnage and upwards, including high speed craft, mobile offshore drilling units and port facilities serving such ships engaged on international voyages. 76 Article 1.2.1, ISPA Code, Part A. 77 SOLAS Reg. XI-V/19, which applied to ships between 300–50,000 GT other than passenger ships and tankers. Ships over 50,000 GT and passenger ships as well as tankers are already required to be fitted with an AIS on or before July 1, 2004 under previous amendments made to SOLAS in 2000. 78 SOLAS Reg. XI-1/5. The CRS is to provide an on-board history of the ships including such information as its name of flag state, date of registry, IMO number, port of registration, name of registered owner(s) and address(es), name of registered bareboat charterers, name of company responsible for safety management of ship under SOLAS Reg. IX/1, name of all classification societies under which ship is classed, name of Administration that has issued the DOC for the ISM Code, name of Administration that has issued the SMC for the ISM Code and the name of Administration that has issued the ISSC for Part A of the ISPS Code. 79 SOLAS Reg. XI-1/3. 80 SOLAS Reg. XI-2/6. 81  SOLAS Reg. XI-2/4 and ISPS Code S.6–13.

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The ISPS Code also provides a detailed set of guidelines for the steps to take if “clear grounds” exist for “suspecting” deficiencies in compliance with reg. XI-2 and the Code in two circumstances: when a foreign ship is in the port of a Contracting Government and subject to port state control inspection, and (2) a foreign ship is intending to enter the port of another contracting Government. In both cases, if there are “clear grounds” to believe that a ship is not in compliance, the coastal State is allowed to take further measures. These measures include detention, arrest and even expulsion of the ship.82 The international legal questions surrounding implementation of the ISPS Code were raised during the diplomatic conference. The possible ramifications of the new security regulation prompted inclusion of Article 4.34 of in Part B of the ISPS Code. The provision specifically recognized the international law implications of regulation XI-2/9” and made it clear that it would not prejudice the Contracting Government from taking measures having a basis in, and consistent with, international law to ensure the safety or security of persons, ships, port facilities and other property in cases where the ship, although in compliance with Chapter XI-2 and Part A of this Code, is still considered to present a security risk. Consequently, a coastal State would not be restricted from taking action against a vessel where it had reason to suspect that the ship was engaged in activities posing a threat to its security even if the ship were technically in compliance with regulation XI-2 and the ISPS Code. For example, if a Contracting Government received information that a ship entering its internal waters or was heading for a port carrying terrorists from a terror organization known to be planning attacks against its national security, the fact that the ship was carrying a ISSC would not in any way restrict the rights of the Contracting Government to take actions as permitted under international law. The question is how the ISPS Code impacts the passage regime in straits used in international navigation, especially in those where large volumes of oil and other hazardous cargo are transported, and whether such straits should be able to take additional preventive measures against risks or potential threats. Would the straits State be able to take action based on Article 39 (b) of the Convention mandating that flag State in transit passage “refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations”? Would such action include prevention of passage? The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA)83 was adopted following the 1985 Achilles Lauro incident in which terrorists hijacked a passenger vessel off the coast of Egypt killing

82 SOLAS reg. XI-9/3/3.3. 83 Adopted on March 10, 1988. Entered into force on March 1, 1992, 27 ILM 668 (1988).



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one of the passengers.84 Despite its title the SUA Convention did not address prevention of terrorism at sea but rather addressed post-incident issues related to prosecution jurisdiction and extradition. In 2005, however, a Protocol to the 1988 SUA was adopted by the IMO, which amended the SUA Convention in various aspects, including expansion of the types of offenses to be covered.85 An important amendment was Article 8(bis) which specifically provided for the boarding and inspection of vessels suspected of terror related activities, with consent of the flag State.86 The SUA Convention and the 2005 Protocol would apply to straits used in international navigation regardless of the type of passage regime applicable. Malacca and Singapore Straits The challenges of addressing terror and piracy attack threat have become acute in the heavily used Malacca and Singapore Straits.87 Actual plans for terror attacks in the Straits have been discovered.88 Piracy attacks in the Strait of Malacca rose during the 1990s and posed a serious threat to international shipping.89 Protection of the Malacca and Singapore Straits against piracy and terror attacks creates challenges at several levels, including that of which States were to be responsible for providing for the necessary security. Malaysia, Indonesia and Singapore protested on grounds of sovereignty against the U.S. initiative to send military forces to secure the straits following the 11 September 2001 attacks. The three littoral States adopted domestic measures to enhance security of the

84 M. Halberstam, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety,” American Journal of International Law, 88 (1988): 269–310; Glen Plant, “The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,” International & Comparative Law Quarterly, 39 (1990): 27; Brad J. Kieserman, “Preventing and Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA),” in Myron H. Nordquist, John Norton Moore, and Kuen-chen Fu (eds.), Recent Developments in the Law of the Sea and China (Leiden, 2006), 425–464. 85 Entered into force July 28, 2010. 86 Helmut Tuerk, “Combating Terrorism at Sea—The Suppression of Unlawful Acts Against the Safety of Maritime Navigation,” University of Miami International and Comparative Law Review, 15 (2008), 337. 87 J. Ashley Roach, “Enhancing Maritime Security in the Straits of Malacca and Singapore,” Journal of International Affairs, 59 (2005), 97. 88 The discovered plans outlined in detail a seaborne suicide attack using small vessels able to hide from radar detection against U.S. ships when navigating in the narrowest part of the channel. See S. Jayakumar, “UNCLOS—Two Decades On” [Speech reprinted], Singapore Year Book of International Law, 9 (2005): 1–8. 89 Yann-huei Song, “Regional Maritime Security Initiative (RSMI) and Enhancing Security in the Straits of Malacca: Littoral States’ and Regional Responses,” in Shicun Wu and Keyuan Zou (eds.), Maritime Security in the South China Sea: Regional Implications and International Cooperation (Farnham, Surrey/Burlington, VT, 2009), 109–134.

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straits, much of which involved setting up radar stations and electronic surveillance along the coast of the straits, as well as increased boat patrols.90 In addition to concluding bilateral cooperation agreements with user States, such as the USA, the three strait States also established a tripartite agreement for enhanced strait patrol by sea and air by the strait States in their respective territorial seas.91 The most significant development, perhaps, was the direct involvement of the IMO, which in 2005 organized an important high-level conference in Jakarta on how to address the serious threat of terror and piracy against shipping in the Malacca and Singapore Straits.92 In the final Jakarta Statement the Governments reaffirmed that the principal responsibility for providing for the security of passage through straits lay with the strait States.93 However, one of the direct consequences of the high risk created by terror and piracy was the increased insurance premiums for ships using the Malacca and Singapore Straits. Clearly, the interest to preserve transit passage rights cannot be sustained at the expense of the shipping industry itself.94 There is clearly a need to develop a balance of interests and rights within the context of the “transit passage” regime so that the rights of one interest do not subsume the interests of all. Conclusion The transit regime under the UNCLOS was created to achieve a balance between the military concerns of the two Super Powers at the time and the environmental concerns of the strait States. However, since 1982 much has changed in the world, especially the political balance of power. What have not changed are the environmental concerns of the strait States. Somewhat of a paradox, the UNCLOS gave more restricted competence to the coastal State of a strait, which by definition is a narrow and riskier transport route, with respect to the regime of transit passage, than it gave to the coastal State over its territorial sea. Thus, the laws of a coastal State regulating safety of navigation and protection of the marine environment 90 Id. at 117–119. 91   Id. at 124–127. See also Suk Kyoon Kim and Seokwoo Lee, “Maritime Security Initiatives in East Asia,” in this volume. 92 In 2004 the IMO Council adopted a decision to hold a conference in Jakarta, “The IMO Jakarta Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection.” IMO Council 93rd Session, November 15–19, 2004. 93  The 2005 Jakarta Statement on Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection confirmed the Batam Joint Statement, adopted on August 2, 2005 of the Fourth Tripartite Ministerial Meeting of the Littoral States on the Straits of Malacca and Singapore that the “primary protection over the safety of navigation, environmental protection and maritime security lies with the littoral States . . .” see Law of the Sea Bulletin, No. 59 (2005) 42–47 available at http://www .un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulletin59e.pdf. 94 Song, “Regional Maritime Security Initiative (RSMI),” supra note 90.



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would have different application depending whether the vessel was engaged in passage in its territorial sea or in a strait subject to the transit passage regime, even if the bodies of water were along the same coast. Even more paradoxical is the difference in competence of the coastal State to suspend passage for security reasons. Under the UNCLOS, and customary international law, a coastal State cannot suspend for security purposes passage in a strait even if the alternative regime of innocent passage applies. Despite these limitations, the international community, especially through the IMO, has made advancements in trying to respond to the very legitimate safety, environmental, and security concerns of strait States. In relation to safety of navigation and in addition to the express provisions of the UNCLOS that allow a straits State subject to the transit passage regime to establish sea lanes and traffic separation schemes, the IMO has extended this to include mandatory ship reporting systems and vessel traffic services. However, in regard to enhancing environmental protection in straits, the international community was unable to achieve consensus on the very important role of mandatory pilotage in straits that have been shown to be high risk for safety of navigation and pollution. Because of its inability to take an appropriate action in a case that clearly merited extraordinary measures for protection, the international community has opened the way for unilateral action. The ICJ in the Gabcikovo-Nagymaros case recognized that the environment was an “essential interest” of the State and under certain circumstance could give rise to “ecological necessity.”95 Consequently, if mandatory pilotage is an effective measure to protect an area that has been recognized as a vulnerable ecosystem in need of additional protection, the international community should be able to agree to create an exception and allow for mandatory pilotage. The international community, especially the IMO, has taken important steps to improve the detection and prevention of terror attacks in adopting the 2002 ISPS Code and the 2005 SUA Protocol. However, there remains a need to clarify and enhance the ability of strait States to take preventive action against potential terror attacks. The provisions of the transit passage regime on security need to be linked to the ISPS Code more directly. On the other hand, there has been significant development in international cooperation in the Straits of Malacca and Singapore in regard to combating piracy and terror. In particular, the activation of Article 43 of the UNCLOS marks an important precedent for international support in straits that provide a benefit to the international economy.96 95 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I. C. J. Reports 1997, p. 7. The Court, however, rejected Hungary’s claim of ecological necessity as grounds for termination of the treaty with Czechoslovakia. 96 See J. Ashley Roach, “Agora: Piracy Prosecutions—Countering Piracy Off Somalia: International Law and International Institutions,” American Journal of International Law, 104 (2010): 397.

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Overall, through cooperative efforts principally centered within the IMO, the international community has been actively engaged in addressing the safety, security and environmental concerns of straits used in international navigation, providing the necessary responsiveness envisioned within the textual framework of the UNCLOS. Nonetheless, as demonstrated by the controversy over mandatory pilotage there is a need to be able to adopt exceptions measures for exceptional cases, such as the Torres Strait. All norms have exceptions and international law must be able to demonstrate this flexibility in order to retain it potency and not give way to unilateral actions. Otherwise, since 1982 international law, through the IMO, has steadily taken the necessary steps to meet the challenge of safety, security and protection of the marine environment in straits used in international navigation.

twelve

The International Legal Regimes Governing Ocean Iron Fertilization Sherry P. Broder and Marcus Haward

Introduction Ocean iron fertilization is the intentional introduction of iron to the upper ocean to stimulate phytoplankton growth in iron-deficient areas. This process is thought by some to be a viable geo-engineering option to address climate change. Iron fertilization might increase the ability of the oceans’ biological pump to draw carbon dioxide (CO2) from the atmosphere and increase the food supply for marine life, but science has not yet established the effectiveness or safety of this procedure to the marine and human environment.1 Iron-deficient waters in the Southern Ocean around Antarctica are currently the prime place of interest for experimentation. The United Nations General Assembly has encouraged states to support further research and study of iron fertilization,2 and four U.N. bodies and associated secretariats have done so: the Intergovernmental Oceanographic Commission of

1   In September, 2009, the Royal Society, Britain’s premier scientific organiz­ation, released its first analysis of a host of controversial methods for intentionally altering Earth’s climate, known broadly as geo-engineering, that could slow or halt climate change by either restricting the amount of sunlight heating Earth’s surface or reducing levels of carbon dioxide in the atmosphere. The Royal Society, Geoengineering the Climate: Science, Governance, and Uncertainty, RS Policy Document 10/09 (London, Sept. 1, 2009) available at http://royalsociety.org/Geoengineering-the-climate/. This report is the first major national academy report solely devoted to this topic. Geo-engineering is defined by the Royal Society as “the deliberate large-scale manipulation of the planetary environment to counteract anthropogenic climate change.” Id. at 1. Geo-engineering is also referred to as climate engineering, climate remediation, and climate intervention. Geoengineering encompasses a range of techniques to remove CO2 from the atmosphere or to block incoming sunlight. 2 G.A.Res 62/215, U.N. Doc. A/62/PV.79 (Dec. 22, 2007).

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UNESCO (IOC),3 the Convention on Biological Diversity (CBD),4 the International Maritime Organization (IMO) (as secretariat for the London Convention, 1972,5 and its related 1996 London Protocol),6 and the meeting of the contacting parties of the U.N. Convention on the Law of the Sea (UNCLOS).7 In addition, other treaties and international instruments are implicated in various ways. Among them are the U.N. Framework Convention on Climate Change (UNFCCC),8 the Environmental Modification Treaty,9 the Straddling Fish Stocks Agreement,10 the Antarctic Treaty,11 the Madrid Protocol,12 and the Convention on the Conservation of Antarctic Marine Living Resources.13

   3 Intergovernmental Oceanographic Commission (IOC) of the U.N. Educational Scientific and Cultural Organization (UNESCO) (hereafter cited as IOC/UNESCO).    4 Convention on Biological Diversity, June 5, 1992, Rio de Janeiro, 1760 U.N.T.S. 79, 31 I.L.M. 818 (1992), entered into force on Dec. 29, 1993 [hereafter cited as CBD].    5 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 13, 1972, London, 1046 U.N.T.S. 120, 11 I.L.M 1294 (1972), entered into force on Aug. 30, 1975 (hereafter cited as London Convention).    6 1996 Protocol to the London Convention 1972, Nov. 7, 1996, 36 I.L.M. 1 (1997), entered into force on March 24, 2006 [hereinafter London Protocol].    7 United Nations Convention on the Law of the Sea, Dec. 10, 1982, Montego Bay, Jamaica, 1833 U.N.T.S. 397, 2 I.L.M. 1261 (1982), entered into force on Nov. 16, 1994 [hereafter cited as UNCLOS].    8 United Nations Framework Convention on Climate Change, May 9, 1992, New York, 1771 U.N.T.S. 107, 31 I.L.M 849 (1992), entered into force on March 24, 1994 [hereafter cited as UNFCCC].    9 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, Geneva, 1108 U.N.T.S. 152, entered into force on Oct. 5, 1978 [hereafter cited as Environmental Modification Treaty]. Militaries have utilized geo-engineering to manipulate the weather. During the Cold War, the United States and the Soviet Union pursued weather control for military applications. The United States conducted weather warfare during the Vietnam War. During both the Johnson and Nixon administrations, the military seeded clouds with silver iodide flares along parts of the Ho Chi Minh Trail to induce greater rainfall, in an attempt to limit enemy movement, in “Operation POPEYE.” J.R. Fleming, “The Climate Engineers,” Wilson Quarterly 31(2) (2007): 46–60. Approximately 2,600 cloud seeding sorties were flown over the course of five years. Id. 10 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, Aug. 4, 1995, 2167 U.N.T.S. 88, 34 I.L.M. 1542 (1995), entered into force on Dec. 11, 2001 [hereafter cited as Straddling Fish Stocks Agreement] 11   Antarctic Treaty, Dec. 1, 1959, Washington D.C., 402 U.N.T.S. 71, 19 I.L.M. 860 (1980), entered into force June 23, 1961. 12 Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Madrid, Spain, 30 I.L.M. 1455 (1991), entered into force on Jan. 14, 1998 [hereafter cited as Madrid Protocol]. 13 Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, Canberra, 1329 U.N.T.S. 48, 19 I.L.M. 841 (1980), entered into force on April 7, 1982.



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The release of iron into the ocean environment may have unintended consequences. Any impacts on the oceans, marine environment, and global climate would no doubt affect many or all countries, though some more than others. The unknown effects of attempting to engineer complex marine ecosystems and the climate, the technical feasibility and the economics of the process, and the inability to develop an exit strategy if unintended environmental effects are discovered, are serious concerns.14 The deployment of this geo-engineering method, and even any ocean research projects made operational to study it, will necessarily have international implications. Because of the lack of success with other climate mitigation strategies, such as emissions reductions at the source, exploratory consideration of geo-engineering options is increasing. The United States, China, India, and other nations have not made binding commitments to reduce greenhouse gases.15 The Kyoto Protocol

14 “More than 175 experts from 15 countries with a wide diversity of backgrounds” met at the Asilomar Conference Center in Pacific Grove, CA during March 22–26, 2010 to discuss the issues that need to be addressed to ensure that research into the risks, impacts and efficacy of climate intervention methods are responsibly and transparently evaluated and that potential consequences are thoroughly understood. Asilomar International Conference on Climate Intervention Technologies, Statement from the Conference’s Scientific Organizing Committee, The Climate Response Fund (March 26, 2010), available at http://climate.org/resources/climate-archives/conferences/asilomar/ statement.html. This group concluded that: “We do not yet have sufficient knowledge of the risks associated with using methods for climate intervention and remediation, their intended and unintended impacts, and their efficacy in reducing the rate of climatic change to assess whether they should or should not be implemented. Thus, further research is essential.” Id. They recommended that evaluations should include transparency and public participation. “This process should ensure that research on this issue progresses in a timely, safe, ethical and transparent manner, addressing social, humanitarian and environmental issues.” Id. The group’s statement was recognized by parties to the London Convention and the London Protocol and reported on by the Chairman of their Scientific Groups. International Maritime Organization [IMO], Report of the 32nd Consultative Meeting of Contracting Parties to the London Convention and the 5th Meeting of Contracting Parties to the London Protocol, LC 32/INF.4 (July 28, 2010). 15 It has been reported that the annual growth rate of CO2 emissions from fossil fuels accelerated since 2000 to well over 3% per year, a large increase above the growth rate in the 1990s (which was just over 1% per year) and well above the long-term historic growth rate, over the past two centuries, of just under 2% per year. Observed growth rates in emissions to scenario predictions have been compared to those made around 2000 in the Special Report on Emissions Scenarios (SRES) of the Intergovernmental Panel on Climate Change (IPCC), showing that actual emissions growth rates lie well above average growth rates for all six SRES scenario families. Michael R. Raupach et al., “Global and Regional Drivers of Accelerating CO2 Emissions,” Proceedings of the National Academy of Sciences of the United States, 104 (24) (June 12, 2007): 10288–93. These figures mean that global emissions have continued to increase by a faster rate than that projected by the IPCC SRES even under its most fossil-fuel-intensive scenario in which an increase in global mean temperature of about 4°C (2.4 to 6.4°C) by 2100 is

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process elicited commitments from other industrialized nations, but many nations, including Canada, have failed to meet their obligations. Even if drastic reductions were implemented immediately, they would not be sufficient to prevent dramatic changes in the earth’s climate and ecosystems. In countries facing sea-level rise, efforts to explore adaptation are underway, but such efforts are similarly unlikely to be adequate to prevent residents of low-lying nations from becoming climate-displaced peoples. Geo-engineering in general, and ocean iron fertilization in particular, hypothesizes that beneficial processes can be devised which may mitigate climate change without reliance on active participation by governments and populations resistant to reducing emissions. Active commercial interest has focused on the potential of iron fertilization in the ocean to capture carbon and qualify for carbon credits, but no consensus has developed to approve wide-scale use of this procedure.16 Recent iron fertilization experiments in the ocean have been controversial, attracting scientific, governmental, and public criticism, and raising concerns about the need for explicit approval-based regulatory mechanisms. Moreover, no international legal precedents apply directly to ocean fertilization, although some existing treaties and principles of customary international law are relevant. Because of the absence of any regulatory framework, several international bodies have started to study ocean iron fertilization and to adopt principles and rules that in some situations tend to create a jurisdictional or operational conflict between the different international bodies and regimes. Geo-engineering necessarily brings into focus the precautionary approach and how it will interact with these international instruments. Before any deployments of full-scale fertilization operations or even ocean experiments take place, a thorough scientific examination of the benefits and risks must take place— and a clear international legal regime must be adopted, including a system for assignment of responsibility and financial accountability for adverse impacts or unintended consequences. The questions are of great moment: Should adverse trans-boundary impacts occur, who will be responsible? Will it be the country authorizing the action or the company undertaking the venture, or both? What proof will be required to establish the adverse impacts?17 projected. Rahmstorf et al., “Recent Climate Changes Compared to Predictions,” Science, 316 (5825) (May 4, 2007): 709. 16 Scientists, policy makers, and the public appear to have reached a consensus that “[n] one of the geoengineering methods evaluated offers an immediate solution to the problem of climate change, or reduces the need for continued emissions reductions.” Royal Society, supra note 1, at x. 17 “Given the limited geoengineering research undertaken to date, the major social, environmental and technological uncertainties associated with its developmental infancy, and the specificity of the various techniques and technologies collectively referred to as geoengineering, it is not yet appropriate to outline a definitive framework for its regulation.” Research Memorandum Submitted by Research Counsels UK (RCUK), The ­Regulation



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The precautionary approach is evolving into an international norm especially where the high seas and the common heritage of mankind are involved. The International Seabed Authority has, for instance, spent more than 25 years developing regulations to govern mining in the deep seabed, and through this process it has provided a model that could be adapted to govern iron fertilization projects. The Seabed Authority has adopted the precautionary approach, established careful regulations for environmental assessment prior to permitting, and required careful monitoring, sharing of data, and financial responsibility for unintended negative consequences on the environment. The Authority has set high standards that should provide guidance for assessment, reporting, sharing of data, permitting, risk assessment, environmental protection, liability, compensation and financial accountability of scientific and exploratory activities in the high seas. Conflicts and Coordination among International Bodies The Convention on Biological Diversity (CBD)18 initially focused on terrestrial biodiversity, but its members gave more explicit focus to marine and coastal issues through the “Jakarta Mandate” negotiated at the second meeting of state parties to the CBD in 1995, which provided a program of action to implement the provisions of the convention relevant to marine and coastal environments.19 At the Ninth Meeting of the Conference of the Parties in May 2008 in Bonn, the Parties adopted Decision IX/16 which urged States to use utmost caution when considering proposals for ocean iron fertilization and adopted the precautionary principle. Under this Decision, the precautionary approach was to be adopted, so that no ocean iron fertilization activities are to take place until there is: (1) an adequate scientific basis on which to justify such activities, “including assessing associated risks,” and (2) the establishment of a “global, transparent, and effective regulatory mechanism for these activities.” Decision IX/16 established a limited exception for “small-scale” scientific research studies undertaken within “coastal waters” but only if those experiments were needed to gather specific scientific data and were subjected to a thorough prior assessment of the potential impacts

of Geoengineering, UK House of Commons, Session 2009–10, Science and Technology Committee Publications, GEO 10 (Dec. 2009), available at http://www.parliament.the­stationery-office.co.uk/pa/cm200910/cmselect/cmsctech/221/10011307.htm. 18 CBD, supra note 4. The CBD has almost universal membership with 193 contracting parties–only the United States, Andorra and the Vatican have not ratified this treaty. 19 Under the Jakarta Mandate, each party to the CBD has responsibility for the conservation and sustainable use of the marine biological diversity within its own adjacent waters, and must cooperate with others in implementing the convention in areas beyond national jurisdiction such as the high seas. CBD, Id. See also Marcus Haward and Joanna Vince, Oceans Governance in the Twenty-First Century: Managing the Blue Planet (Cheltenham, UK; Northampton, MA, 2008), 45.

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of the research studies on the marine environment, and did not involve generating or selling carbon offsets or any other commercial purposes.20 CBD Decision IX/16 recognized that the activities of parties to the 1972 London Convention its 1996 Protocol21 are relevant to iron fertilization;22 but it nonetheless was designed to establish a moratorium on ocean fertilization activities beyond national jurisdiction, including those involving legitimate scientific research. Other international bodies responded, and, in particular, the Intergovernmental Oceanographic Commission (IOC) criticized the CBD parties for “plac[ing] unnecessary and undue restriction on legitimate scientific activities.”23 The International Maritime Organization (IMO), acting as secretariat for the London Convention and London Protocol (LC/LP) on dumping matters, has taken the lead in developing some regulations and also incorporating the precautionary principle. The parties to the London Convention and Protocol responded to CDB Decision IX/16 later in 2008: they rejected a complete moratorium, and adopted Resolution LC/LP.1 on the Regulation of Ocean Fertilization, which states that no ocean fertilization activities other than “legitimate scientific research” (to be defined in 2009) should be allowed.24 In October 2010, at its COP 10 meeting in Nagoya, Japan, the parties to the CDB adopted Decision X/3325 to expand the

20 CBD, COP 9, Decision IX/16, Biodiversity and Climate Change (Bonn 2008), available at http://www.cbd.int/decision/cop/?id=11659. 21   London Convention and London Protocol, supra notes 5 and 6. 22 Decision IX/16, supra note 20, §C(4). Article 22 of the CBD itself states that other international treaties already in place at ratification, such as UNCLOS, should be respected. 23 Intergovernmental Ocean Commission (IOC) of UNESCO, Ad Hoc Consultative Group on Ocean Fertilization, Report on the IMO London Convention Scientific Group Meeting on Ocean Fertilization, § IV(3) (June 15, 2008, Paris). 24 IMO, 30th Meeting of the Contracting Parties to the London Convention and 3rd Meeting of the Contracting Parties to the London Protocol, Resolution LC/LP.1 on the Regulation of Ocean Fertilization (2008). See portions of the text infra note 116. 25 Convention on Biological Diversity, 10th Conference of the Parties, Decision X/33, Biodiversity and Climate Change 3 (Oct. 18–29, 2010, Nagoya, Japan). At this meeting, Tuvalu, whose very survival is immediately threatened by climate change, on behalf of the Pacific Island parties, supported a moratorium pertaining to ocean fertilization and other forms of geo-engineering activities to counteract the effects of climate change. Soseala Tinilau and Solomona Lotoala, from Tuvalu’s Department of Environment, Ministry of Foreign Affairs, Environment and Labour, spoke on behalf of the Pacific Island parties: “Unfortunately for our Pacific Island countries both climate change and biodiversity are integral recognized as parts of our daily lives. One represents an opportunity and supports our daily lives the other is imposed on our daily lives through global processes beyond our control and threatens our survival.” “Pacific Supports Ocean Moratorium on Ocean Fertilization at Nagoya Biodiversity Conference,” Island Business International, Oct. 22, 2010, available at http://www.islandsbusiness.com/ news/index_dynamic/containerNameToReplace=MiddleMiddle/focusModuleID=130/



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moratorium to all forms of geo-engineering, not just iron fertilization.26 Decision X/33 again applies the precautionary approach, limits scientific research to “small scale” studies in a “controlled setting,” and requires a prior “thorough prior assessment of the potential impacts on the environment.”27 It appears that by “a controlled setting,” the CDB is referring again to research studies and experiments that would be subject to national jurisdiction. It is thus clear that geo-engineering issues are now firmly on the agenda of the parties to the CBD. The International Maritime Organization has continued on a course that takes account of the geo-engineering challenge. The parties to the London Convention and Protocol met in the same month as the CBD parties (that is, in October 2010) and adopted Resolution LC/LP.2, on the Assessment Framework for Scientific Research Involving Ocean Fertilization, which had been in the process of development since June 2007 (and was anticipated by Resolution LC/LP.1.)28 It provides guidance for assessing iron fertilization proposals and lists detailed steps for an environmental assessment including risk management and monitoring.29 Intersessional working groups have been analyzing the issues further, including vehicles to make the Assessment Framework binding and methods to be responsive to developments in science.30 (A more in-depth discussion of the London Convention/Protocol activities follows below in Section VI (B) of this chapter.) The parties to the London Convention and Protocol face challenges similar to those confronted by the International Seabed Authority in the latter’s dealing with establishing the regime of seabed mining, namely, that commercial entities have and will continue to look to the exclusive economic zones of coastal countries to conduct activities, where the regulations may be more lax. In 2008, the Intergovernmental Oceanographic Commission (IOC) entered the field if debate by establishing an ad hoc consultative group on ocean fertilization. The Statement31 issued by this group offers insight, through the perspective of a

focusContentID=21187/tableName=mediaRelease/overideSkinName=newsArticle-full .tpl?PHPSESSID=66118ca2e179e9e12e02e3ef583752cc. 26 Id. 27 Id., ¶8(w). 28 IMO, Report of the 32nd Meeting of the Contracting Parties to the London Convention and 5th Meeting of the Contracting Parties to the London Protocol, Resolution LC/ LP.2 on the Assessment Framework for Scientific Research Involving Ocean Fertilization, LC/LP.2, LC 32/15 Annex 5 (2010). See also IMO, Report of the 32nd Meeting of the Contracting Parties to the London Convention and 5th Meeting of the Contracting Parties to the London Protocol, Assessment Framework for Scientific Research Involving Ocean Fertilization, LC 32/15, Annex 6 (2010). 29 IMO, LC 32/15, Annex 6 (2010). See portions of text infra at notes 130–139. 30 See IMO, Revised Programme of Meetings for 2011, PROG/119/Rev.2 (March 3, 2011). See also IMO LC/LP 32/15, Annex 7. 31   Statement of the IOC Ad Hoc Consultative Group on Ocean Fertilization, supra note 23.

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group of scientists, into how ocean fertilization could be better managed worldwide. The IOC scientists recognized the London Convention (but not the London Protocol) as the governing body of law concerning iron fertilization, but they disagreed with the idea that the size of the iron fertilization project should be relevant in deciding whether a project constituted a scientific experiment.32 The Statement also criticized the concept of making a distinction between coastal waters and the open ocean.33 “An ocean fertilization activity,” it declared, “might be damaging even if conducted over one square kilometer (for example, over a coral reef) just as another ocean fertilization activity might be benign even though conducted over many thousands of square kilometers.”34 Further, the IOC Statement encourages iron fertilization experiments as “important tools” for learning about the ocean environment,35 criticizes the “bureaucratic burden” the London Protocol parties have placed on iron fertilization research,36 and denounces the CBD parties for “plac[ing] unnecessary and undue restriction on legitimate scientific activities.”37 The IOC scientists argue that there will not be a true assessment of risks associated with iron fertilization until scientists can conduct valid experiments.38 The 1992 United Nations Framework Convention on Climate Change (UNFCCC)39 encourages all governments to achieve stabilization of greenhouse gas emissions at 1990 base year levels and recognizes that a range of mitigation and adaptation measures will be necessary. Geo-engineering through ocean fertilization needs to proceed carefully so as to not come into conflict with the UNFCCC provision requiring the parties to “prevent dangerous anthropogenic interference with the climate system.”40 Although the terrestrial carbon sink is addressed specifically in the Kyoto Protocol,41 it deals with the oceanic carbon sink only tangentially, and the ­parties’ 32 “There is no well-established meaning to ‘large scale’ that would allow it to usefully distinguish between activities that would and activities that would not damage the ocean environment . . . [i]t is impossible to assess the impacts of experiments through information on spatial scale alone.” Id. at § II(2)(A)-(C). 33 Id. 34 Id., § I(4). 35 Id., § I(5) (“We should promote better scientific understanding of the ocean. Manipulative experiments, including ocean fertilization, are important tools that scientists use to develop a better understanding of the marine environment. Such scientific research should be promoted with a minimum of additional bureaucratic burden.”). 36 Id., § I(5). 37 Id., § III. 38 Id., at § III(5). 39 UNFCCC, supra note 8. 40 Id., art. 2. 41   Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, Japan, Dec. 11, 1997, UN Doc FCCC/CP/1997/7/Add.1, 37 ILM 22 (1998), entered into force on Feb. 16, 2005 [hereafter cited as Kyoto Protocol].



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commitment regarding the oceans is governed primarily through Article 4 of the 1992 UNFCCC,42 which asks the parties to protect and enhance carbon sinks and reservoirs, and to conduct research into, promote, develop, and increase the use of sequestration technologies. Commercial interest is increasing as to the potential of iron fertilization to capture carbon and qualify for carbon credits through certification under the Clean Development Mechanism of the Kyoto Protocol.43 Currently, no approved formal market exists for carbon credits from ocean fertilization. The major existing carbon trading markets such as the Chicago Climate Exchange and the European Climate Exchange, which allow for tradable carbon offsets, have no provisions for carbon trading based on ocean fertilization. The main driver of carbon credits globally, the Kyoto Protocol, allows terrestrial carbon sinks as creditable offsets that can be sold to emission sources regulated under the Protocol, but does not allow such offsets from ocean sinks. Moreover, a nation’s carbon offsets under the Kyoto Protocol only relate to projects in another country’s territory, ruling out such offsets from ocean fertilization locations on the high seas. 42 UNFCCC, supra note 8, art. 4: 1. All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall: (a) Develop, periodically update, publish and make available . . . national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties; (b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change; (c) Promote and cooperate in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol in all relevant sectors, including the energy, transport, industry, agriculture, forestry and waste management sectors; (d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems . . .  43 Kyoto Protocol, supra note 41, art. 12, Clean Development Mechanism (CDM). The terrestrial carbon sink may be enhanced by forestation, which is not considered to be geo-engineering, although large scale afforestation with intensive harvesting or the use of genetically modified crops to capture the store carbon might be considered geo-engineering. In 2001, in Marrakech, the parties agreed that only reforestation and afforestation projects would qualify for consideration by the CDM. UNFCCC, COP 7, Marrakesh, Oct. 29–Nov. 10, 2001, The Marrakesh Accords, FCCC/CP/2001/13.Add.1, Annex, ¶13 (2002) [hereafter cited as Marrakesh Accords].

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The debate among scientists and policy-makers can be expected to continue. Chemical oceanographers Long Cao and Ken Caldeira have, for instance, recently suggested that “[s]mall-scale fertilization experiments can be useful to help understand the role of nutrients in marine biogeochemical cycles.”44 The Oceans as a Carbon Sink in the Global Climate System The oceans are an integral and significant component of the global climate system and with warming global temperatures, as a result of increased levels of greenhouse gases in the atmosphere, the seas are growing warmer with the consequent thermal expansion contributing to sea-level rises. The temperature increase of the oceans also affects their roles as carbon sinks and the operation of the carbon cycle, because it reduces the ocean’s ability to absorb atmospheric carbon (CO2). Increased levels of CO2 in the oceans also contribute to heightened acidity levels.45 Oceans are a major sink for atmospheric CO2. It is absorbed through biological and physical processes, and some of the carbon is returned to the atmosphere. In the biological pump, CO2 is absorbed through photosynthesis, by small microscopic marine plants, phytoplankton, which are then consumed and excreted by marine animals, allowing the CO2 to sink to the seafloor. In the physical pump, CO2 is dissolved into seawater and transported to the deep ocean through broader global circulation patterns.46 Global ocean circulation is a critical factor in this system, with circulation driven by tides and wind as well as by differences in density of water. The latter processes, known as the thermohaline circulation, occurs as “sea water density depends on temperature and salinity . . . . [S]alinity and temperature differences arise from heating/cooling at the sea surface and from the surface freshwater fluxes (evaporation and sea ice formation enhance

44 Long Cao and Kenneth Caldeira, “Can Ocean Iron Fertilization Mitigate Ocean Acidification? A Letter,” Climate Change, 99 (2010): 303, 310. See generally David Freestone and Rosemary Rayfuse, “Ocean Fertilization and International Law,” Marine Ecology Progress Series 364 (2008): 227–233. 45 Marcus Haward, “Climate Change: Antarctica and the Southern Ocean, Science, Law and Policy,” in Robin Warner and Clive Schofield (eds.), Climate Change and the Oceans: Gauging the Legal and Policy Currents in the Asia Pacific Region (Cheltenham UK, 2012) (“the uptake of carbon dioxide by the oceans leads to changes in ocean chemistry, altering its pH to make the ocean more acidic.”). 46 These processes are significant with the oceans absorbing and removing approximately 2 GTC (2 billion tons of carbon) of carbon annually from a total of approximately 7 GTC (7 billion tons of carbon) emitted by anthropocentric processes each year. Antarctic Climate and Ecosystems Cooperative Research Centre (ACECRC), Position Analysis: Ocean Fertilisation: Science and Policy Issues, PA03–081008 at 4 (2008), available at http://www.acecrc.org.au.



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salinity; precipitation, runoff and ice-melt decrease salinity),” which leads to considerable movement of sea water.47 Geo-Engineering the Oceans with Iron, and the Global Climate System Just as growth of terrestrial plants is enhanced by the addition of trace elements to improve soil productivity—that is, through agricultural fertilization processes— the deliberate addition of basic elements such as iron and other trace minerals to the ocean is hypothesized to enhance marine plant phytoplankton productivity. These nutrients, sometimes in significant amounts, are deposited naturally in the oceans through transport by wind as sand or dust storms. Iron is an important micronutrient for phytoplankton, but iron in the natural environment is never added alone—macronutrients are also included. Thus, the addition of just iron as a discrete and isolated addition to the ocean environment does not imitate a natural process. Iron fertilization research being undertaken today is focused on high-nutrient/ low-chlorophyll regions of the ocean, such as the Southern Ocean and the eastern tropical Pacific, where biological productivity is limited by reduced amounts of naturally-occurring iron. Scientists predict that the introduction of iron into such areas would simulate an increase in phytoplankton growth.48 Krill consume phytoplankton and recycle iron when feeding.49 Also, Baleen whales eat krill and, as a result, whale feces have high levels of iron “suggesting that [fecal iron content] could act as a fertilizer.”50 Known as the “iron hypothesis,”51 this theory has attracted scientific and commercial attention because of the potential to achieve an increase in the capacity of CO2 drawn down from the atmosphere.52 Potential negative side effects have been identified. They include an increase in domoic acid, a neurotoxin which could have a detrimental effect on ocean

47 S. Rahmstorf, The Thermohaline Ocean Circulation: A Brief Fact Sheet, Potsdam Inst. for Climate Impact Research (2006), available at http://www.pik-potsdam.de/~stefan/ thc_fact_sheet.html. See also S. Rahmstorf, “Thermohaline Ocean Circulation,” in S.A. Elias (ed.), Encyclopedia of Quaternary Sciences (Amsterdam, 2007), 739–750. 48 J.H. Martin et al., “Iron Deficiency Limits Phytoplankton Growth in Antarctic Waters,” Global Biogeochemistry Cycles, 4 (1990): 5–12. 49 S. Nicol et al., “Southern Ocean Iron Fertilization by Baleen Whales and Antarctic Krill,” Fish and Fisheries, 11 (2010): 203–09. 50 Id. at 203. 51   Martin, supra note 48, at 5. 52 Oceanic areas close to land tend to have higher levels of phytoplankton and hence more productive fisheries.

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ecosystems,53 and an elevation in the acidity levels of the ocean.54 Further, a study on iron seeding authored by 47 ocean scientists concluded that such attempts to seed the ocean artificially were actually unlikely to sequester much carbon dioxide.55 The ultimate objective of iron fertilization is “to significantly increase the uptake of carbon by the ocean” and to store the carbon in the ocean interior for an adequate duration and in a sufficient quantity “to make a climatically-significant reduction in the increase of atmospheric CO2” in a verifiable manner, without “deleterious unintended side effects.”56 Scientific research into ocean iron fertilization needs carefully to measure, analyze, evaluate, and monitor the effects of any intended or unintended impacts on the marine environment.57 Climate change therefore acts as a driver, sharpening focus on existing arrangements and opening up new and emergent issues. These emergent issues

53 The Silver study has demonstrated that iron fertilization leads to increased biomass of diatom species from the genus Pseudo-nitzschia. This species has been found to produce the neurotoxin domoic acid. The Silver study surveyed 34 stations ranging from the Pacific subarctic to the Southern Ocean, some of which were experimental iron fertilization sites, collecting and analyzing near-surface-water samples and sediment samples, including eleven Pseudo-nitzschia species from these samples, and measuring domoic acid concentrations in the cells and water of each sample. Although it has not yet been shown that these elevated toxin levels impact higher trophic levels in oceanic ecosystems, as seen in coastal regions, it has been proven that domoic acid has reached levels that pose a threat to oceanic ecosystems. The data from this study also suggest that domoic-acid neurotoxins are delivered to deeper depths in the intact cells of these Pseudo-nitzschia species and at higher rates with iron fertilization. M. Silver, et al., “Toxic Diatoms and Domoic Acid in Natural and Iron Enriched Waters of the Oceanic Pacific,” Proceedings of the National Academy of Sciences [PNAS], 107 (Nov. 30, 2010): 20762–20767. 54 Another emerging concern of ocean scientists is the potential for acidification of parts of the world’s oceans due to increased absorption of carbon into the sea. Scientists have concluded that “[i]f the amount of net carbon storage in the deep ocean by iron fertilization produces an equivalent amount of emission credits, ocean iron fertilization further acidifies the deep ocean without conferring any chemical benefit to the surface ocean.” Cao and Caldeira (2010), supra note 44, at 303. See also L. Cao and K. Caldeira, “Ocean Fertilization and Ocean Acidification,” Abstract, American Geophysical Union, Fall Meeting (2008), available at http://adsabs.harvard.edu/ abs/2008AGUFM.B22C.06C. 55 S. Blain et al., “Effect of Natural Iron Fertilization on Carbon Sequestration in the Southern Ocean,” Nature, 446 (April 26, 2007): 1070–74. 56 U.N. Educ. Sci. and Cult. Org. (UNESCO), Intergovernmental Oceanographic Commission (IOC), Ocean Fertilization: A Scientific Summary for Policy Maker, prepared by Doug Wallace et al., at 1,3, IOC/2010/BRO/2 (2010) (hereafter IOC/UNESCO Report 2010). 57 Philomene Verlaan, “Experimental Activities That Intentionally Perturb the Marine Environment: Implications for the Marine Environmental Protection and Marine Scientific Research Provisions of the 1982 United Nations Convention on the Law of the Sea,” Marine Policy, 31 (2007): 210, 213.



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include a refocusing on environmental security, and a reshaping of the discourse of environmentalism.58 Iron Fertilization Experiments and Research to Date Ocean iron fertilization and other geo-engineering concepts suffer from scientific uncertainty.59 The “iron hypothesis” is highly controversial among scientists. Many reject the notion that ocean iron fertilization would be an effective means to reduce climate warming and point out the dangers of unintended ­consequences.60 Increased interest in the “iron hypothesis,” however, has led to small scale laboratory based “bottle experiments,” large-scale modelling simulations, and some open-ocean projects conducted in the Southern Ocean and other nutrientlow areas.61 Several computer modelling simulations of iron fertilization on the global cumulative show an increased uptake of CO2 after 100 years.62 The results of

58 Marcus Haward, “Marine Resources Management, Security and the Antarctic Treaty System: An Ongoing Agenda?” in Alan Hemmings et al. (eds.), Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives (Abingdon, Oxford, 2012): 215–237. 59 “Few geoengineering experiments or modelling studies have been conducted, and major uncertainties remain on the efficacy and potential consequences of geoengineering approaches.” U.S. Gov’t Accountability Office [GAO], Climate Change: A Coordinated Strategy Could Focus Federal Geoengineering and Research and Inform Governance Efforts, Report to the Chairman, Committee on Science and Technology, House of Representatives, GAO-10-93 (Sept. 2010), available at http://www.gao.gov/new.items/ d10903.pdf. 60 K. Buesseler, et al., “Ocean Iron Fertilization—Moving Forward in a Sea of Uncertainty,” Science, 319 (Jan. 11, 2008): 162, 162 (questioning the effectiveness of iron fertilization); A. Strong, J. Cullen, and S. Chisholm, “Ocean Fertilization: Science, Policy, and Commerce,” Oceanography, 22 (September 2009): 236–61 (although further research is needed on ocean fertilization, enough research has been conducted to show that it should not be used as a climate mitigation technique); Blain et al., supra note 55; S.W. Chisholm et al., “Dis-Crediting Ocean Fertilization,” Science, 294 (2001): 309. 61   ACECRC, supra note 46, at 4–5. 62 See J. Sarmiento and J. Orr, “Three-Dimensional Simulations of the Impact of Southern Ocean Nutrient Depletion on Atmospheric CO2 and Ocean Chemistry,” Limonology and Oceanography, 36 (1991): 1928–1950; K. Kurz and E. Maier-Reimer, “Iron Fertilization of the Austral Ocean—The Hamburg Model Assessment,” Global Biogeochemical Cycles, 7 (1993): 229–244; R.E. Zeebe and D. Archer, “Feasibility of Ocean Fertilization and Its Impact on Future Atmospheric CO2 Levels,” Geophysical Research Letters, L09703, 32 (2005): 1–5; O. Aumont and L. Bopp, “Globalizing Results from Ocean in Situ Iron Fertilization Studies,” Global Biogeochemical Cycles, GB2017, 20 (2006): 1–15; Konstantin Zahariev, James R. Christian, and Kenneth L. Denman, “Preindustrial, Historical, and Fertilization Simulations Using a Global Ocean Carbon Model with New Parameterizations of Iron Limitation, Calcification, and N2 Fixation,” Progress In Oceanography, 77 (April 2008): 56–82.

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these predictive models also suggest that iron fertilization may create conditions in which additional powerful greenhouse gases, such as nitrous oxide or methane, are released to the atmosphere—and thus that iron fertilization may actually increase the concentration of gases in the atmosphere that contribute to climate warming.63 Other computer simulations show that long-term storage of carbon in an artificially fertilized part of the ocean will significantly reduce the productivity of other parts of the ocean that rely on nutrients from the altered location64 and will produce negative effects on fisheries in these other locations.65 Several open ocean experiments of iron fertilization have been initiated since 1995,66 and they would clearly have continued on the high seas without regulation had the parties to the London Convention and Protocol taken no action. None of these experiments have been longitudinal (involving repeated observations of the same variables over time), and so the long-term risks of heightened iron levels, the amount of CO2 captured and retained, and whether this capture and retention would make a difference in the level of atmospheric carbon are still unknown. Because the recent ocean experiments have been extremely controversial, international attention has focused on the need for management and regulation of such activities. In 2007, Planktos, a U.S. based corporation, announced its plans for an iron fertilization project in the high seas near the Galapagos Islands, an area free of permitting requirements. The commercial mission proposed to produce and sell carbon offsets based on results from prior small-scale research conducted off the coast of Hawaii.67 Prompted by public interest group outcry and legal concerns

63 A. Oschlies, W. Koeve, W. Rickels, and K. Rehdanz, “Side Effects and Accounting Aspects of Hypothetical Large-Scale Southern Ocean Iron Fertilization,” Biogeosciences, 7 (2010): 4017–4035, 4027. See also Xin Jin and Nicolas Gruber, “Offsetting the Radiative Benefit of Ocean Iron Fertilization by Enhancing N2O Emissions,” Geophysical Research Letters, 30 (2003): 2249. 64 J. Cullen and P. Boyd, “Predicting and Verifying the Intended and Unintended Consequences of Large-Scale Ocean Fertilization,” Marine Ecology Progress Series, 364 (2008): 295. at 298–99. 65 Id. at 298. 66 The open ocean experiments have included Ironex in 1995, SOIREE (Southern Ocean Iron Release Experiment) in 1999, EisenEX in 2000, SEEDS (Subantarctic Pacific Iron Exper­iment for Ecosystem Dynamics Study) in 2001, SOFeX (Southern Ocean Iron Experiments— North and South) in 2002, SERIES (Subarctic Ecosystem Response to Iron Enrichment Study) in 2002, SEEDS II in 2004, EIFEX (European Iron Fertilization Experiment) in 2004, CROZEX (CROZet Natural Iron Bloom and Export Experiment) in 2005, and LOHAFEX in the South Atlantic in 2009 (LOHA is Hindi for iron, FEX stands for Fertilization Experiment). See P. Boyd, et al., “Mesoscale Iron Enrichment Experiments 1993–2005: Synthesis and Future Directions,” Science, 315 (2007): 612. 67 Q. Schiermeier, “Climate Change: The Oresmen,” Nature, 421 (January 9, 2003): 109–110.



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raised by the U.S. Environmental Protection Agency and others,68 the U.S. government submitted an agenda item to the Scientific Group of the London Convention and Protocol expressing concern about Planktos’s proposed actions using a U.S.-flagged vessel.69 To no one’s surprise, Planktos initially tried to avoid regulation and accountability by reflagging,70 but domestic pressure combined with heavy protest by international civil societies stunted the entire project indefinitely in 2008.71 In January 2009, LOHAFEX, a joint Indian-German project conducted by the Alfred Wegener Institute (AWI) with an international research team, initiated plans for an iron fertilization experiment in the Southern Atlantic Ocean. It inaugurated its project in the face of the virtual moratorium on ocean iron fertilization embodied in Decision IX/16 by the CBD parties in 2008, and it drew international criticism and significant opposition, which caused the experiment to come to an end in March 2009, after having concluded that its efforts did not contribute significantly to reducing atmospheric carbon.72

68 In 2009–2010, the Science and Technology Committee of the U.S. House of Representatives conducted hearings to consider the benefits and risks of a variety of climate geoengineering techniques, including iron fertilization. See U.S. House of Representatives, 111th Congress, Hearing Before the Committee on Science and Technology, Geoengineering: Parts I, II, and III (November 5, 2009-March 18, 2010), available at http://www.gpo.gov/ fdsys/pkg/CHRG-111hhrg53007/pdf/CHRG-111hhrg53007.pdf. In May 2010, Senators John Kerry and Joseph Lieberman introduced the American Power Act, a proposed bill to address climate change, which included a proposed ban on iron fertilization. “Kerry, Lieberman: American Power Act Bill Will Secure America’s Energy, Climate Future,” Newsfeed article on website for Senator J. Lieberman (May 12, 2010), available at http:// lieberman.senate.gov/index.cfm/. 69 IMO, U.S. Submission to the 30th Meeting of the Scientific Group of the London Convention and the 1st Meeting of the Scientific Group of the London Protocol, Planktos, Inc., Large-Scale Ocean Iron Addition Projects, LC/SG 30/INF.28 (June 1, 2007). 70 Id. 71   Planktos maintained that they “decided to abandon any future ocean fertilization efforts,” Alfred Wagener Institute Homepage (2011), http://www.awi.de/en, because of a “highly effective disinformation campaign waged by anti-offset crusaders.” Alexander Proelss, Legal Opinion on the Legality of the LOHAFEX Marine Research Experiment under International Law 3–6 (Walther-Schücking-Institut for International Law) (Christian Albrechts University at Kiel, 2009). Professor Proelss, who was an advisor to the LOHAFEX project, has argued that decisions of the CBD parties, such as Decision IX/16, are nonbinding. He has asserted that “[t]he power to adopt legally binding decisions was not conferred upon the COP by the contracting parties to the CBD, “ and further concluded that “COP Decisions must therefore be understood as non-binding statements with potentially guiding character for future legally-binding measures, which can provide significant political impetus for the implementation of the Convention’s provisions.” Id. at 13. 72 Alfred Wagener Institute Press Release, Lohafex Provides New Insights on Plankton Ecology—Only Small Amounts of Atmospheric Carbon Dioxide Fixed, March 23, 2009, available at http://www.awi.de/en/news/press_releases/detail/item/lohafex_provides_

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Climos, another U.S. start-up corporation interested in iron fertilization, is still operational. The CEO of Climos has proposed a “code of conduct”73 for ocean fertilization experiments to “find effective ways for the science, business and carbon market communities to collaborate.”74 The Ocean Nourishment Corporation, an Australian company, had plans to dump urea (nitrogen) into the Sulu Sea but was stopped by the Filipino government in 2007 after civil society organizations campaigned against the plan.75 From the history of these new_insights_on_plankton_ecology_only_small_amounts_of_atmospheric_carbon_ dioxide/?tx_list_pi1%5Bmode%5D=6andcHash=ffd0b4deee. The LOHAFEX scientific team defended its iron fertilization project and claimed that it was a “scientific experiment” designed to “provide more basic information to further our understanding of the role of ocean ecosystems in the global carbon cycle.” Ultimately, LOHAFEX completed its experiment after a legal opinion that the CDB Decision was not binding and that the mission complied with the LC/LP.1 resolution. LOHAFEX thereafter concluded the mission was in accordance with the governing international laws and treaties. Alfred Wagener Institute Press Release, “LOHAFEX: An Indo-German Iron Fertilization Experiment—What Are the Effects on the Ecology and Carbon Uptake Potential of the Southern Ocean?” (January 13, 2009), available at http://www.awi.de/en/news/press_releases/detail/item/lohafex_an_indo_german_iron_ fertilization_experiment_what_are_the_effects_on_the_ecology_and_carb/?tx_list_pi1% 5Bmode%5D=6andcHash=a3777f 7afd. 73 Climos, “The Climos Code of Conduct for Ocean Fertilization,” Climos Publication (July 9, 2008), available at http://www.climos.com/standards/codeofconduct.pdf. 74 M. Leinan (of Climos), “Building Relationships Between Scientists and Business in Ocean Iron Fertilization,” Marine Ecology Progress Series, 364 (July 29, 2008): 251, 251, available at http://www.climos.com/publication.php. 75 The Ocean Nourishment Corp. (ONC) a commercial venture in Australia has proposed injecting large amounts of urea—a nitrogen compound found in mammalian urine and fertilizers—into low-nitrogen seas to stimulate phytoplankton blooms and draw down excess CO2 from the air. Phytoplankton require not just iron but nutrients such as nitrogen to grow, but most tropical and subtropical ocean regions have too little of this essential nutrient, resulting in low productivity. To be effective, the proposal would have to be worldwide. It would require at least 1,000 times more nitrogen than iron to fertilize equivalent blooms. This process raises many unresolved issues. Increased coastal nitrogen could promote blooms of toxic algae (“red tides”); the altered ocean chemistry could lead to unanticipated and permanent ecosystem changes; it remains unproved that more carbon-containing debris will sink to the deep ocean. ONC seeks to sell rights to use its licensed method in tropical regions to obtain carbon-offset credits. The company reportedly has conducted at least one small-scale experimental release of one ton of urea in the Sulu Sea, bounded by the Philippines and Borneo, and has further plans to test a release of 1,000 tons. The first release was near a highly biodiverse area and a World Ocean Heritage site, prompting protests, partly because ONC may not have secured adequate Philippine government permission. See Associated Press, “Activists Protest Ocean Warming Experiment: Urea Injected to Spur Growth of Plankton, Which Absorb Carbon” (Nov. 8, 2007), available at http://www.msnbc.msn.com/id/21689538/ns/ us_news-environment/t/activists-protest-ocean-warming-experiment/; See also Patricia Glibert, “Ocean Urea Fertilization: A High Risk Plan and a Unified International Response,” Coastal and Estuarine Research Federation Newsletter, 34 (July 2008): 3.



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early commercial efforts, it seems very clear that interest in ocean fertilization will continue.76 Many international organizations have expressed concerns about the potential damage from iron fertilization to the ocean environment and about its probable inability to impact climate change. The World Wildlife Fund’s “concern extends beyond the impact on individual species and extends to the changes that this dumping may cause in the interaction of species, affecting the entire ecosystem.”77 Members of the National Oceanography Centre, Southampton, have contended that “it is likely that almost all of the CO2 taken up is released back to the atmosphere within a year. In addition, there is the considerable carbon cost of the [fertilization] process itself.”78 They conclude that “[c]ommercial exploitation of this technique could cause substantial harm to the ocean ecosystem and may even reduce its ability to sequester carbon. Such an assault on these remote and fragile ecosystems should not be done until we can show there are demonstrable benefits that outweigh the costs.”79 The British Royal Society80 and the U.S. National Research Council have agreed that although ocean fertilization has received some sustained research attention, its potential to remove CO2 from the atmosphere and keep it sequestered remains unclear.81

76 Several iron fertilization projects are being funded by US Agencies. See F. Rusco, Director of Natural Resources and Environment, Gov’t Accountability Office, Testimony before the Committee on Science and Technology, U.S. House of Representatives, 11th Congress (March 18, 2010). President Obama’s top science advisor, John Holdren, has come out in support of research into geo-engineering options. “Obama’s Science Chief Eyes Drastic Climate Steps: Geoengineering Approaches Have ‘Got to be Looked at,’ Holdren Says,” Associated Press, MSNBC (April 8, 2009), available at http://www .msnbc.msn.com/id/30112396/ns/us_news-environment/t/obamas-science-chief-eyesdrastic-climate-steps/. Another example of current interest is Nualgi Nanobiotech, a company in Bangalore, India, that is marketing a patented product called Nualgi that it says causes algae to bloom, absorbing CO2, releasing oxygen, and providing food for fish. See Nualgi, Homepage (2011), available at http://www.nualgi.com. 77 “WWF Condemns Iron Fertilization Scheme to Fight Global Warming,” Mongabay.com (June 28, 2007), available at http://news.mongabay.com/2007/0627-planktos.html. Statement made by Dr. Sallie Chisholm, a microbiologist at the Massachusetts Institute of Technology and a board member of the World Wildlife Fund. 78 R. Lampitt, et al., National Oceanography Center, “Letters: Dumping at Sea: Fragile Ocean Ecosystems Threatened by Plan to Dump Iron,” The Independent (May 14, 2007), available at http://www.independent.co.uk/opinion/letters/letters-dumping-atsea-448758.html. 79 Id. 80 Royal Society, supra note 1. 81   I d. at ix. See also U.S. National Research Council, America’s Climate Choices: Panel on Advancing the Science of Climate Change, Advancing the Science of Climate Change (Washington, D.C., 2010).

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A report issued by the International Oceanographic Commission in 201082 expressed concern that the effects of tinkering with the ocean’s chemistry are largely unknown: Large-scale fertilization could have unintended (and difficult to predict) impacts not only locally, e.g., risk of toxic algal blooms, but also far removed in space and time. Impact assessments need to include the possibility of such “far-field” effects on biological productivity, sub-surface oxygen levels, biogas production and ocean acidification.83

This report concluded that ocean fertilization will not prove to be a very effective way to combat climate change because only a small fraction of the carbon drawn out of the atmosphere sinks to the bottom and is actually removed from the carbon cycles.84 Estimating the amount of carbon that would be sequestered in the ocean requires making many assumptions, but the IOC/UNESCO 2010 Report is clear that “the overall potential for ocean fertilization to remove CO2 from the atmosphere is relatively small.”85 Governance of Marine Geo-Engineering As is mentioned in Section II above, several international treaties, conventions, and declarations prohibit dumping of pollutants at sea or the disturbance of ocean ecosystems, while at the same time various other treaties, conventions and declarations (and sometimes the same international instruments) broadly encourage enhancement of greenhouse gas sinks or ecosystem improvements. The 1982 United Nations Convention on the Law of the Sea UNCLOS contains broad legal parameters for the protection of the seas from pollution, the preservation of the marine environment, the prevention of dumping, and

82 IOC/UNESCO Report 2010, supra note 3. 83 Id. at 1. 84 “Estimates of the overall efficiency of atmospheric CO2 uptake in response to ironbased ocean fertilization have decreased greatly (by 5–20 times) over the past 20 years. Although uncertainties still remain, the amount of carbon that might be taken out of circulation through this technique on a long-term basis (decades to centuries) would seem small in comparison to fossil-fuel emissions.” Id. at 1–2. 85 “[E]ven using the highest estimates for both carbon export ratios and atmospheric uptake efficiencies, the overall potential for ocean fertilization to remove CO2 from the atmosphere is relatively small. Thus recent calculations of cumulative sequestration for massive fertilization effort over 100 years are in the range 25–75 Gt (gigatonnes) of carbon [], in comparison to cumulative emissions of around 1,500 Gt carbon from fossil fuel burning for the same period under business-as-usual scenarios.” Id. at. 12 (emphasis added), D. Wallace, et al., UNESCO-IOC Ocean Fertilization, A Scientific Summary for Policy Makers, IOC/BRO/2010/2, supra note 56.



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marine scientific research, but has no specific rules addressing geo-­engineering. The Convention does not say whether placing a substance such as iron into the water constitutes “dumping,” but it requires the purposeful placement of such a material in the ocean to be within the bounds of the “aims” of the Convention.86 Such a requirement means that depositing iron into open oceans must not be “likely to result in such deleterious effects as harm to living resources and marine life,” because it would then be considered “pollution.”87 The text does not convey at what point scientific endeavors become “pollution,” but this language nonetheless acts as a constraint on the right to conduct research in the high seas.88 The tension between the prospect of potential environmental harm caused by geo-engineering practices, on the one hand, and, on the other, environmental harm expected from climate change is central to the ocean iron fertilization debate, and the provisions of the Convention reflect this conflict. The Convention requires that “[i]n taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.”89 Careful consideration needs to be given to this requirement because iron fertilization seeks to manipulate the marine environment in order to reduce the concentration in the atmosphere of CO2 but at the same time it has the potential to have disproportional environmental consequences for other parties. Experiments in the high seas raise challenging regulatory issues because the Convention does not establish a scheme for issuing permits and evaluating proposed projects on the high seas, nor does it have an administrative structure capable of overseeing such activities. Nonetheless, duties imposed by the Convention clearly relate to ocean fertilization within a coastal state’s exclusive economic zone, and thereby impose responsibilities on the coastal state. The duty “to protect and preserve the marine environment”90 in the course of conducting marine scientific research, and the duty “to take all measures necessary to

86 The Convention identifies dumping as “any deliberate disposal of wastes or other matter” into the ocean, and forbids the practice unless it is the “placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.” UNCLOS, supra note 7, art. 1(1)(5). 87 Id., art. 1(1)(4). 88 Id., art. 257: All States, irrespective of their geographical location, and competent international organizations have the right, in conformity with this Convention, to conduct marine scientific research in the water column beyond the limits of the exclusive economic zone. 89 Id., art. 195. 90 Id., art. 192.

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­ revent, reduce and control pollution of the marine environment,”91 are essential p responsibilities of actors under the Convention. The regulation of pollution by dumping, through the creation of “international rules and standards,” is delegated to “competent international organizations,” and states “shall” enforce these regulations.92 This recognition of the role of other bodies is clear, but as explained in Section II above, confusion exists about which bodies should take the lead, and how binding their regulations have become. The London Convention and Protocol The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, now called the London Convention, 1972,93 and the 1996 Protocol to this Convention,94 which has the effect of replacing the Convention for those parties that have ratified it,95 have established legal restrictions on what can be disposed of in the ocean.96 The London Convention now has 87 contracting parties, and 40 of them have also ratified London Protocol.97 The International Maritime Organization (IMO) serves as secretariat for the contracting parties to both instruments. The London Protocol is a more comprehensive waste management system and has more emphasis on protection of the environment. A “two dumping agreements—one family” approach has governed work relating to ocean iron fertilization, and also for seabed carbon sequestration.98 91   Id., art. 196: “States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto.” 92 Article 216 anticipates that other international bodies will govern “dumping” practices and states that “[l]aws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organizations or diplomatic conference for the prevention, reduction and control of pollution of the marine environment by dumping shall be enforced.” Id., art. 216 (1) (emphasis added). See also art. 210(4) (“States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution”) (emphasis added). 93 London Convention, supra note 5. 94 London Protocol, supra note 6. 95 Id., at art. 24. 96 J. Jabour Green, Legal and Political Aspects of Iron Fertilisation in the Southern Ocean: Implications of Australian Involvement, 32(5) Envtl. Pol’y and L. 217 (2002). 97 International Maritime Org. (IMO) Website (July 2011), available at http://www.imo .org; then follow “Our Work” tab; click on “Marine Environment” hyperlink: click on “Special Programmes and Initiatives; select “London Convention and Protocol.” 98 At the first joint meeting of the parties to the LC and LP in 2006, Chairman of the meetings, Victor Escobar Paredes of Spain, cultivated the phrase “two instruments— one family” as a strategy for the parties of both conventions to work together to regulate marine dumping and pollution. IMO, Report of the 28th Meeting of the Contracting



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General Provisions on Dumping The London Protocol requires states to “individually and collectively protect and preserve the marine environment from all sources of pollution.”99 It prohibits all dumping, except for seven enumerated substances,100 which may be dumped only with a permit and under certain defined conditions.101 A permitting process for dumping based on an assessment of the potential environmental impact was cultivated under the London Protocol which requires an adequate report of potential risks and effects before a permit for a dumping project is approved.102 The Protocol calls for the application of the “precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.”103 This precautionary approach establishes a high burden for ocean scientific research. It also makes experimentation difficult because, in the nature of an experiment, exact results cannot be predicted ahead of time.104 The Protocol also calls for the application of the “polluter-pays” rule.105

Parties to the London Convention and 1st Meeting of the Contracting Parties to the London Protocol, LC 28/15 §20 (Dec. 6, 2006). Again at the October 2010 LC32/LP3 Meeting of the Parties, the Chair stated: “In other words, by seeking ways of serving both instruments, your continued deliberations to regulate ocean fertilization would be a true reflection of the “two instruments—one family approach” you adopted when the London Protocol entered into force.” LC32/INF.5 (Oct. 11–15, 2010).    99 London Protocol, supra note 6, art. 2; art. 1(1) incorporates the Law of the Seas Convention’s definition of pollution. 100 Dredge spoil, sewage sludge, fish waste, vessels, platforms and other man-made structures at sea, inert geological material, organic material of natural origin, and certain “bulky items.” Id., annex 1(1)(1–7). 101   Id., art. 4. 102 Id., annex 1–2. “An analysis of each disposal option should be considered in the light of a comparative assessment of the following concerns: human health risks, environmental costs, hazards, (including accidents), economics and exclusion of future uses. If this assessment reveals that adequate information is not available to determine the likely effects of the proposed disposal option then this option should not be considered further. In addition, if the interpretation of the comparative assessment shows the dumping option to be less preferable, a permit for dumping should not be given.” Id., annex 2, para. 14. 103 Id., art. 3. 104 See K. Güssow et al., “Ocean Iron Fertilization: Why Further Research Is Needed,” Marine Policy, 34 (2010): 911, 914 (criticizing the London Protocol’s application of the precautionary approach as inadequate and self-defeating because “[i]f lack of scientific basis on which to justify a certain potentially harmful activity is used to strengthen the case against scientific research on the very same subject matter, though, it is difficult to argue that such a course of conduct is sustainable.”). 105 Id., art. 3(2).

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Actions on Geo-engineering in the Oceans—Sub Seabed Carbon Sequestration The text of the London Protocol has been revised twice to indicate that this instrument, and its secretariat (the IMO), seeks to be the instrument and agency to regulate CO2 sequestration in the sub seabed. Australia submitted a proposal, co-sponsored by France, Norway and the United Kingdom, to amend Annex 1 in order to include the storage of CO2 in sub-seabed geological formations in the list of permitted dumping-related activities. This proposal entered into force on February 10, 2007 for all contracting parties to the Protocol, as no objection was presented to the IMO by the deadline provided by Article 22 (4) of the Protocol.106 At the Fourth Meeting of the Parties to the London Protocol in October 2009, Norway proposed an amendment that would enable the export of CO2 for sequestration, which otherwise would have been prohibited under Article 6 of the ­Protocol.107 Concerned that the export of CO2 would justify allowing the export of other wastes, China voted against the adoption of this amendment and stated that: “[a]t the current stage, the relevant technical and legal issues are still not very clear, so it is not appropriate to make a hasty amendment to this Article without adequate time for consultations.”108 The amendment carried, but it appears unlikely that a sufficient number of contracting parties will ratify this amendment in the near future,; and thus the transboundary transport of CO2 for the purpose of geological disposal will be prohibited under the Protocol, but the

106 A Resolution Relating to Risk Assessment and Management Framework on carbon sequestration was adopted at the First Meeting of the Parties to the London Protocol in November 2006. Then Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations were adopted at the next meeting of the parties in November 2007. IMO, Report of the 29th Meeting of the Parties to the London Convention and 2nd Meeting of the Parties to the London Protocol, LC 29/17, ¶0.2(.2) (Nov. 5–9, 2007). Consistent with previous guidelines, they are to be described as a “living document” to be continuously reviewed and updated in five years, or earlier, if necessary. Id. The intent of the Specific Guidelines is to provide a clear road map to national authorities on what is required before a permit for Sub Seabed Sequestration is granted. The Parties are mandated to adopt administrative or legislative measures to ensure compliance with Annex 2 and “[p]articular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.” London Protocol, supra note 23, art. 4(1)(2). Finally, this licensing process should mean that permits will be issued only where all “impact evaluations are completed and the monitoring requirements are determined.” Id., Annex 2(17). 107 IMO, 4th Meeting of the Contracting Parties to the London Protocol, On the Amendment to Article 6 of the London Protocol, Resolution LP.3(4) (Oct. 30, 2009). The proposed amendment to article 6 will enter into force for Parties that have accepted it on the 60th day after two-thirds of all Contracting Parties have adopted it. 108 IMO, Report of the 31st Meeting of the Contracting Parties to the London Convention and 4th Meeting of the Contracting Parties to the London Protocol, LC 31/15, ¶5.18 (Oct. 26–30, 2009).



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amendment does set forth for the standard to be followed if such sequestration is to occur. Plans to engage in sub seabed sequestration of carbon dioxide are proceeding: so it is salutary that at least some international framework has been established for guidance. In Western Australia, a liquid natural gas (LNG) plant, the Gorgon, is under construction and designed to capture and store reservoir carbon-dioxide from the gas field. The plant would sequester between 2.7 and 3.5 million tons per year and some 130 million tons over the life of the proposal. The United States has established an interagency task force on CO2 sequestration issues. These and similar activities present challenges to any international regulator regime, however, because some commercial ventures will intentionally seek to conduct these activities in national territorial jurisdictions in order to avoid complying with international standards. The Adoption of LC/LP.1 Allowing “Legitimate Scientific Research” of Ocean Fertilization As explained in Section A above, the reference to “global rules and standards” in Article 210(6) of UNCLOS refers to the provisions of the London Convention and Protocol. Thus, it would seem that the London Convention and Protocol (LC/LP) regulations should be binding on all contracting parties to UNCLOS, and that LC/ LP regulations should govern all iron fertilization projects in international waters, “regardless of the sponsoring country.”109 At first meeting of the LC/LP Scientific Group in June 2007, the scientists and participants expressed concern that commercial companies were investigating geo-engineering projects, such as iron fertilization, in order to assess whether large-scale iron additions resulted in carbon sequestration that could be quantified, verified, and sold in the global carbon credit market.110 The Scientific Group

109 “The [UNCLOS] points to the LC and LP to clarify the more specific rules that govern ‘dumping,’ and effectively extends the coverage of the LC and LP to include all parties to the more widely-ratified [] [Law of the Sea] Convention.” K. Russell LaMotte, “Legal Posture of Ocean Iron Fertilization Under International Law,” International Environmental Law Committee Newsletter, 11 (Feb. 2009): 8, at 10. See also text at note 140 infra. For a contrary perspective, see Proelss, supra note 71, at 13. 110   See IMO, Submission of the United States to the 30th Meeting of the Scientific Group of the London Convention and the 1st Meeting of the Scientific Group of the London Protocol, Planktos, Inc., Large-scale Ocean Iron Addition Projects, LC/SG 30/INF.28 at 1 (June 1, 2007); see also IMO, Submission of Greenpeace International to the 30th Meeting of the Scientific Group of the London Convention and the 1st Meeting of the Scientific Group of the London Protocol, Challenging ‘Geo-Engineering Solutions’ to Climate Change: The Urgent Need for Detailed Scientific Scrutiny and International Regulations to Protect the Oceans from Large-Scale Iron Fertilization Programmes, LC/SG 30/12/1 at 1 (May 8, 2007); IMO, Submission of the World Conservation Union (IUCN) to the 30th Meeting of the Scientific Group of the London Convention and the 1st

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issued a Statement of Concern111 underscoring that “knowledge about the effectiveness and potential environmental impacts of ocean iron fertilization currently was insufficient to justify large-scale operations,” and expressing concern for the possible “negative impacts on the marine environment and human health.112 It recommended, therefore, that any such operations be evaluated carefully to ensure that they were not contrary to the aims of the London Convention and Protocol.113 The Statement urged that the next LC/LP Conference of the Parties address the issues raised by ocean fertilization, and develop a framework for its practice.114 This statement was endorsed by the 29th London Convention and 2nd London Protocol Consultative Meeting in November 2007. The Parties also stated that the London Convention and Protocol were competent to address this issue because of their explicit general objective to protect and preserve the marine environment from all sources of pollution. The Parties further urged states to use the utmost caution when considering proposals for large-scale ocean fertilization operations, concluding that, given the present state of knowledge regarding ocean fertilization, large-scale operations were not justified.115 In October 20008, at the 30th London Convention and the 3rd London Protocol Consultative Meeting, the Parties discussed further the development of a binding regulatory and permitting regime for ocean fertilization.116 Australia proposed an amendment to the London Protocol to ensure that legitimate noncommercial scientific research could occur, provided it was effectively regulated

Meeting of the Scientific Group of the London Protocol, Regulation of CO2 Sequestration, LC/SG 30/12 at 1–2 (May 8, 2007) [hereafter cited as IUCN Submission]. 111   IMO, 30th Meeting of the Scientific Group of the London Convention and 1st Meeting of the Scientific Group under the London Protocol, Statement of Concern Regarding Iron Fertilization of the Oceans to Sequester CO2, LC-LP.1/Circ.14 (July 13, 2007). 112 Id. at ¶1. 113 IMO, Report of the 30th Meeting of the Scientific Group of the London Convention and the 1st Meeting of the Scientific Group of the London Protocol, LC/SG 30/14, ¶2.23– 2.25 (July 25, 2007). 114 IMO, Statement of Concern, supra note 111, at ¶¶3–4. 115 IMO, Report of the 29th Meeting of the Contracting Parties to the London Convention and the 2nd Meeting of Contracting Parties of the London Protocol, LC 29/17, ¶4, (Nov. 5–9, 2007). 116 Because of the debate about how to make any regulatory and permitting system mandatory and binding, a Legal Intersessional Correspondence Group (LICG), under the lead of the United Kingdom, was established and presented its report summarizing the legal views by Parties as to whether, and how, the legal framework of the London Convention and Protocol could be applied to ocean fertilizations. IMO, 30th Meeting of the Contracting Parties to the London Convention and the 3rd Meeting of the Contracting Parties to the London Protocol, Ocean Fertilization: Report of the Legal and Intersessional Correspondence Group on Ocean Fertilization (LICG), Submitted by U.K., Agenda Item 4, LC 30/4 (Oct. 27–31, 2008). See also Comments to the Report of the LICG, Submitted by Greenpeace Int’l, LC 30/4/1 (Oct. 27–31, 2008).



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and met an impact threshold test appropriate for research activities.117 Vanuatu opposed ocean fertilization and manipulating ocean ecosystems in general, expressing grave concern about the possible catastrophic environmental damage from ocean fertilization, and stating that climate warming should be solved at its source.118 The Parties debated a draft resolution prepared by the Ocean Fertilization Working Group119 and adopted Resolution LC/LP.1 on the Regulation of Ocean Fertilization. The Resolution confirms that ocean iron fertilization activities outside an LC/LP assessment framework are contrary to the London Convention and Protocol,120 and declares that only “legitimate scientific experiments” using an assessment framework to be developed by the LC/LP Scientific Groups should be allowed.121 Resolution LC/LP.1 is thus expansive in its definition of ocean fertilization which is “any activity undertaken by humans with the principal intention of stimulating primary productivity in the oceans.”122 The Resolution declares that iron fertilization is the “placement of matter for a purpose other than mere disposal,”123 and that large-scale or commercial iron fertilization projects are defined as contrary to the Convention and Protocol and are not exempt from their definitions of dumping. This Resolution differs dramatically from Decision IX/16 of the Convention on Biological Diversity by rejecting the complete moratorium preferred by the parties to the CBD (for all iron fertilization other than for small-scale projects in coastal waters), but it does propose that the precautionary approach should apply to all iron fertilization activities.124 Resolution LC/LP.1 does not qualify the size of the

117   IMO, Report of the 30th Meeting of the Contracting Parties to the London Convention and the 3rd Meeting of the Contracting Parties to the London Protocol, LC 30/16, ¶4.7 (Oct. 27–31, 2008). 118   I d. at annex 5. 119   I MO, Report of the 31st Meeting of the Scientific Group of the London Convention and the 2nd Meeting of the Scientific Group of the London Protocol, LC/SG 31/16, annex 2 (May 19–23, 2008). IMO, 30th Meeting of the Contracting Parties to the London Convention and the 3rd Meeting of the Contracting Parties to the London Protocol, Ocean Fertilization: Report of the Working Group on Ocean Fertilization, LC 30/WP.6 (Oct. 27–31, 2008). 120 IMO, 30th Meeting of the Contracting Parties to the London Convention and the 3rd Meeting of the Contracting Parties to the London Protocol, Resolution LC/LP.1 on the Regulation of Ocean Fertilization (Oct. 31, 2008). 121   Resolution LC/LP.1, supra note 24, at ¶1 (The parties “[agree] that the scope of the London Convention and Protocol includes ocean fertilization activities”). 122 Id. at ¶2, fn. 3 (emphasis added). It excludes the processes of conventional aquaculture, or mariculture, or the creation of artificial reefs. 123 Id. at ¶3.üü 124 Id. at ¶6. See, e.g., Güssow et al., supra note 104, at 914: “Since the goal of OIF [ocean iron fertilization] is the stimulation of the primary production of phytoplankton in

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“legitimate scientific experiment,” a question presumably to be addressed when the LC/LP Scientific Groups will draft an “assessment framework.”125 In keeping with the effort to communicate with other forums, Resolution LC/ LP.1 was circulated officially to the secretariats, contracting parties, or members of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), all regional fisheries management organizations, Antarctic Treaty bodies, UNESCO-IOC, the United Nations General Assembly, the UNFCCC, the Convention on Biological Diversity, CPPS, the Scientific Committee on Oceanic Research, GESAMP; the Inter-Governmental Panel on Climate Change (IPCC), and UN-Oceans.126 Intersessional groups were called upon to work further on developing the science and technical evaluation and permitting process, and to solve the thorny issue of how to assure that the LC/LP permitting process would be legally binding and enforceable.127 The Development of an Assessment Framework for Iron Fertilization and the Adoption of LC/LP.2 In 2009, intersessional groups worked to develop an Assessment Framework as had been requested by the London Convention and Protocol parties.128 Australia in particular, joined by other Pacific Island countries had pressed for the establishment of a clear legal retime, because ocean fertilization experiments were being carried out.129 At the 31st Meeting in late 2009, the parties reviewed the work of the 2009 intersessional groups and discussed the difficult issue of making an assessment framework legally binding. Eight options remained open for discussion to deter-

order to scientifically examine this process and its consequences with a view to potential increases in the uptake of CO2, an objective other than the mere disposal of iron filings is being pursued.” 125 Id.; The development of an Assessment Framework for adoption is included and anticipated to be worked on until 2012. IMO, Joint Long-Term Programme [JLTP] for the London Convention and Protocol (2010–2012), LC-LP.1/Circ.32, Annex, ¶3.2.2 (Jan. 12, 2010). 126 IMO, Report of the 29th Consultative Meeting of the London Convention and the 2nd Meeting Of Contracting Parties, Ocean Fertilization, ¶¶4.18(2), Oct. 7–11, 2008, LC/29/16. 127 Id. at ¶¶4.15. 128 See IMO, Report of the 32nd Meeting of the Scientific Group of the London Convention and the 3rd Meeting of the Scientific Group of the London Protocol, LC/SG 32/15, ¶2 and annex 2 (May 25–29, 2009); IMO, LC 31/15, supra note 108. 129 IMO, 31st Meeting of the Contracting Parties to the London Convention and 4th Meeting of the Contracting Parties to the London Protocol, Ocean Fertilization: Regulating Ocean Fertilization Experiments Under the London Protocol and Convention, Submitted by Austl. and N.Z., LC 31/4/1 (Oct. 26–30, 2009); IMO, LC 31/15, supra note 108 at ¶¶4,18.



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mine a method of implementing an enforceable regime, iincluding a statement of concern, a simple resolution, a resolution building upon resolution LC-LP.1 (2008), an interpretative resolution, an amendment to Annex 1 of the London Protocol, an amendment to the definition of dumping and exclusions for dumping, and a new, stand-alone article to the London Protocol.130 But no decision was made on a legal instrument and the discussion has continued. At the 2010 intersessional meetings prior to the 32nd Meeting, there was serious debate about the science of iron fertilization. The Ocean Fertilization Correspondence Group could not reach a consensus on whether the CDB report adequately summarized the current state of scientific knowledge on iron fertilization. The Correspondence Group identified two gaps in the CBD report: [1] the report focused only on the potential impacts of iron fertilization upon marine diversity and did not provide a comprehensive summary of the current state of knowledge on iron fertilization, and [2] the report did not provide sufficient guidance for determining what level of impact to marine diversity is acceptable.131 In 2010, IOC/UNESCO published its Report, Ocean Fertilization, A Scientific Summary for Policy Makers. This Report concluded that it is unclear whether findings from small scale experiments can even be extrapolated to apply accurately to larger applications, and cited the extreme difficulty of assessing the long-term effectiveness of any carbon capture or the unintended consequences.132 More Discussions In October 2010, the Scientific Groups met and further developed a draft Assessment Framework for Scientific Research Involving Ocean Fertilization and submitted it to the Parties for the November 2010 32nd Meeting of the London Convention and 15th Meeting of the Protocol. Some delegations expressed a preference to completely prohibit ocean fertilization, including research experiments.133 Others expressed concern that the issue of liability and compensation in relation to ocean fertilization experiments had not yet been addressed in the draft Assessment Framework, as this issue fell outside the responsibility of the Scientific Groups. Nonetheless the parties proceeded and narrowed the number of legal options to explore to three different types of Resolutions. In addition, Canada proposed [1] a Protocol amendment to create a permitting authority that could be adapted to other marine geoengineering 130 IMO, LC 31/15, supra note 108 at ¶¶4, 39. 131   IMO, 33rd Meeting of the Scientific Group of the London Convention and 4th Meeting of the Scientific Group of the London Protocol, Ocean Fertilization: Development of Science Overviews on Ocean Fertilization, Report of the Ocean Fertilization Correspondence Group, LC/SG 33/2/1 (April 19–23, 2009). 132 D. Wallace, et al., UNESCO-IOC Ocean Fertilization, A Scientific Summary for Policy Makers, IOC/BRO/2010/2, supra note 56. 133 IMO, LC/LP 32/15, supra note 28, at ¶4.4.

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activities to be accompanied and [2] an interpretive resolution for the interim until the amendment could enter into force and the Convention could also be amended.134 Despite the lack of a liability and compensation regime and despite legal uncertainty about the binding mandate of resolutions of the London Convention and Protocol, the Parties reaffirmed the 2008 Statement of Concern and the requirement of “utmost caution” and voted for Resolution LC/LP.2135 which included the Assessment Framework for Scientific Research Involving Ocean Fertilization.136 “This Assessment Framework guides Parties as to how proposals they receive for ocean fertilization research should be assessed and provides criteria for an initial assessment of such proposals and detailed steps for completion of an environmental assessment, including risk management and monitoring.”137 The Resolution and Assessment Framework commit the joint treaty system to a “global, transparent, and effective control and regulatory mechanism for ocean fertilization activities” and requires environmental assessment, including risk management and monitoring, sharing of research results, the prohibition of carbon credits at this time, the imposition the precautionary approach, and the establishment of a baseline as a condition precedent. Objections were raised about the proposed requirement of obtaining “prior informed consent” from parties in the Region of Potential Impact, and as a result the final version merely required the seeking of consent.138 The Assessment Framework is still not complete, legal issues remain, and a system of liability and compensation is not adopted. Ocean fertilization is on the agenda for the next annual meeting of the LC/LP in December 2011.139 Professors Freestone and Rayfuse have observed that “[n]o matter how strict an approach is taken by the parties to the LC/LP, the very real potential exists for proponents of ocean fertilization to undermine the LC/LP regulatory efforts by simply incorporating their companies, flagging their vessels, and loading their fertilizer in non-LC/LP party states.”140 This potential problem is a serious one. However if the flagging and loading were done in a country that had ratified UNCLOS, Article 210 of that Convention would require adherence to the rules

134 Id. at ¶¶4.2–4.9. 135 IMO, 32nd Meeting of the Contracting Parties to the London Convention and the 5th Meeting of the Contracting Parties to the London Protocol, Resolution LC/LP.2 on the Assessment Framework for Scientific Research Involving Ocean Fertilization (Oct. 14, 2010) [hereinafter Resolution LC/LP.2]. 136 IMO, LC 32/15, supra note 28, annex 6. 137 IMO, IMO Input to the Global Environment Facility Discussion Meeting on Marine Areas Beyond National Jurisdiction (ABNJ), ¶2.5.1 (Washington D.C., Nov. 19, 2010). 138 Resolution LC/LP.2, supra note 136, Annexes 5 and 6; IMO LC/LP 32/15, ¶¶4.2.1. 139 Ocean Fertilization and carbon sequestration are on the provisional agenda for the 33rd Meeting of the Parties to the London Convention and 4th Meeting of the Parties to the London Protocol, LC 33/1Provisional Agenda, LC 33/1. 140 Freestone and Rayfuse, supra note 44, at 230.



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promulgated under the LC/LP. To completely avoid such rules, the flagging and loading would have to be done in a country that had not ratified either UNCLOS, or the London Convention or Protocol. Even under that scenario, it can be argued that the regulations established by the parties to the London Convention and Protocol have become binding customary international law because they were adopted by the countries most concerned with these issues. Ocean fertilization, as well as CO2 sequestration and other marine geo-engineering, will continue to be on IMO agendas.141 After all, climate change is already with us and any and all possible amelioration strategies will be pursued. A clear international regulatory regime that is unquestionably legally binding both on the high seas and in exclusive economic zones, and that provides for clear accountability must be the goal, given the potential adverse environmental effects.142 The International Seabed Authority’s Deep Seabed Regulations The International Seabed Authority (ISA) is the international organization that has control and management over the sea floor and the seabed beyond national jurisdiction, which is part of the common heritage of humanity and is described in UNCLOS as the “Area.”143 Over a 25-year period, it has developed very careful regulations that govern the prospecting and exploration of the deep seabed and that protect the environment. These regulations have not proceeded to the point of allowing commercial development or exploitation, even after all this time, because of the lack of scientific knowledge about what the impacts of this ocean mining will be. The ISA regulations have set the gold standard for activities in the high seas with unknown impacts on the marine environment. Its work—taken together with the recent advisory opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea regarding state liability144—thus provides a roadmap for the legal and liability regime that should govern iron fertilization. The ISA has the authority to manage the Area by issuing permits to private and public entities and is responsible for its environmental protection. Activities in the Area are regulated by UNCLOS, the 1994 Agreement Relating to the

141   S upra note 139. 142 Marine climate engineering was on the agenda for the most recent meeting of the LC/ LP scientific groups: IMO, Provisional Agenda for the 34th Meeting of the Scientific Group of the London Convention and the 5th Meeting of the Scientific Group of the London Protocol, LC/SG 34/1, Agenda Item 3 (Tallinn, Estonia, April 11–15, 2011). 143 UNCLOS supra note 7, art. 1(1). 144 International Tribunal for the Law of the Sea [ITLOS], Seabed Disputes Chamber, Advisory Opinion, Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area, Case No. 17 (Feb. 1, 2011) [hereinafter ITLOS Advisory Opinion].

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Implementation of Part XI (the seabed provisions) of UNCLOS,145 as well as the regulations adopted by the International Seabed Authority146 pursuant to Article 162(2)(o)(ii) of the Convention. The Council and the Assembly, the political bodies of the ISA, have the clear authority to adopt binding rules, regulations, and procedures. In 2000, the ISA promulgated the “Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area.”147 In the years that followed, the Council decided that the new regulations on Polymetallic Sulfides and Cobalt Crusts should follow the framework of the ones already-adopted Polymetallic Nodules Regulations.148 At its 16th Session in 2010, the Assembly adopted a separate set of Regulations on Prospecting and Exploration for Polymetallic Sulphides.149 The draft of a third set of regulations, on Prospecting and Exploration for Cobalt-Rich Crusts, was be taken up by the Council at the Authority’s next scheduled Session, in 2011; but has still not been finally adopted.150 The basic principles already established in the Polymetallic Nodules Regulations are included in both. A key principle of the regulations is that the ISA and sponsoring states are required to apply a precautionary approach to activities in the Area, as reflected in Principle 15 of the Rio Declaration and “best environmental practices.”151 The contractor has the obligations to cooperate with the Authority in the establishment and implementation of monitoring and evaluation programs, to gather environmental

145 U.N.G.A., Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, U.N.G.A. Res. 48/263 (1994). 146 The International Seabed Authority, which has its headquarters in Kingston, Jamaica, came into existence with UNCLOS. There are 149 contracting parties to the Law of the Sea Treaty (as of June 1, 2011) and 122 parties to the 1994 Agreement. Whether or not a country has ratified the Agreement, the Convention requires that the country cannot mine in the Area outside the framework of the International Seabed Authority. 147 International Seabed Authority [ISA], Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, Decision of the Assembly, ISBA/6/A/8 (2000), available at http://www.isa.org.jm [hereafter Regulations]. According to Regulation 1(d) “polymetallic nodules” “means one of the resources of the Area consisting of any deposit or accretion of nodules, on or just below the surface of the deep seabed, which contain manganese, nickel, cobalt and copper.” See also Chapter 10, infra, by Alexander Proelss. 148 See ISA, 11th Session, Explanatory Notes Relating to the Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides and Colbalt-Rich Ferromanganese Crusts, ISBA/11/C/5 (July 13, 2005). 149 ISA, 16th Session, 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 (April 26–May 7, 2010). 150 ISA, 16th Session, Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts in the Area, Secretariat, ISBA/16/C/WP.2 (April 26–May 7, 2010). 151   Regulations, supra at note 147, Reg. 31(1).



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baseline data, to establish baselines, and to share it with others, and withal must take into account recommendations of the Legal and Technical Commission.152 Relevance to Iron Fertilization of the ITLOS Advisory Opinion on the Area On February 1, 2011, the Seabed Disputes Chamber of ITLOS issued an advisory opinion on the responsibilities and obligations of States sponsoring persons and entities conducting activities in the Area.153 The implications of this ITLOS opinion for the development of international law in respect to iron fertilization warrants our giving it attention here as follows. The Chamber explained in a unanimous opinion that sponsoring States have two types of obligations.154 The first obligation requires sponsoring States to ensure compliance by contractors with the terms of their contract and with the obligations set out in the Convention and related instruments. This obligation is an obligation “of conduct,” and not “of result.” The content of this obligation varies over time in light of technological and scientific developments. Riskier activities require a higher standard of due diligence. The second set of obligations flow from UNCLOS and from the Nodules and Sulphides Regulations. These obligations include assisting the Authority, applying the precautionary approach and “best environmental practices,” ensuring that the contractor complies with its obligation to conduct an environmental impact assessment (EIA), and providing effective methods for compensation in the case that harm results from the mining activity. The ITLOS Seabed Disputes Chamber has noted that these Regulations, by embodying the precautionary approach defined in Principle 15 of the 1992 Rio Declaration on Environment and Development,155 had the effect of transforming a nonbinding concept into a binding obligation.156  Thus, the Chamber found

152 Id., Reg. 31(4) (Requirement to Collect Baseline Data). The Regulations require annual reporting by the contractors of the environmental work accomplished and assessments of the environmental effects of their prospecting and exploration mining activities. Obtaining these reports from the contractors, however, has proved to be difficult. At the 2010 meeting of the Legal and Technical Commission, the members expressed concerns that the raw data required for prospecting and exploring had not been provided by the eight contractors. As a result, the detailed analysis of the environmental aspect of the mining activities by the secretariat could not be completed. ISA, Information Note on Matters Before the Legal and Technical Commission at Its Meetings During the 17th Session of the International Seabed Authority, Prepared by Michael Lodge, Legal Counsel (March 2011), available at http://www.isa.org.jm/files/documents/EN/17Sess/ LTC/LTC-InfoNote.pdf. 153 ITLOS Advisory Opinion, supra note 144. 154 Id. at §IV. 155 1992 Rio Declaration on Environment and Development, available at http://www.unep .org/Documents.Multilingual/Default.asp?documentid=78andarticleid=1163. 156 ITLOS Advisory Opinion, supra note 144, at ¶¶125–35.

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that the precautionary approach had evolved and is now a norm of customary international law.157 The Chamber concluded, however, that the Rio Principles, in stating (in Principle 15) that the precautionary approach shall be applied by States “according to their capabilities,” had incorporated a concept of differentiated application according to the capabilities of each State.158 The Chamber also decided that the obligation to conduct an environmental impact assessment is a direct and mandatory obligation under Article 206 of UNCLOS and a general obligation under international law as recognized by the International Court of Justice in its judgment in Pulp Mills on the River Uruguay.159  The Chamber explained that consequences flow from a state’s failure (through its sponsored entity) to comply with the relevant governing legal instruments under the following conditions: (i) the failure of the sponsoring State to carry out its responsibilities and (ii) the occurrence of damage.160 The Chamber did not make any differentiation among states, explaining that responsibility and liability apply equally to all sponsoring States, whether developing or developed: “equality of treatment . . . is consistent with the need to prevent commercial enterprises based in developed States from setting up companies in developing States, acquiring their nationality and obtaining their sponsorship in the hope of being subjected to less burdensome regulations and controls.”161  This decision thus eliminates completely the scenario where the contractor can identify a state with insufficient resources as its sponsoring state in order to limit its liability, thus reducing the problem presented in the shipping industry by the flagging of vessels in other jurisdictions to avoid liability. The Chamber found that “each State Party may . . . be entitled to claim com­ pensation in light of the erga omnes character of the obligation relating to preservation of the environment of the high seas and in the Area.”162 This is a very broad principle of standing and allows many sponsoring states and the ISA itself to bring claims for damages. With regard to the extent of liability for accidents resulting from activities in the Area, the Chamber found that the liability of the sponsoring State for failure to meet its duties is parallel to the contractor’s liability arising from its own noncompliance.163 The sponsoring state’s obligation is one of “due diligence,” and,

157 Id. at ¶135. 158 Id. at ¶¶151–63. 159 Id. at ¶¶141–50 (citing Pulp Mills on the River Uruguay (Arg. v. Uru.) 2010 I.C.J. No. 135 (April 20)). 160 Id. at ¶¶181–184. 161   Id. at ¶159. 162 Id. at ¶180. Eligible requesters may also include the Authority—which shall act “on behalf ” of mankind—entities engaged in deep seabed mining, other users of the sea, and coastal States. Id. at ¶¶179–80. 163 Id. at ¶201.



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although this diligence requires focused attention to the risks linked to mining, it is not equivalent to a regime of strict liability. The Chamber found that where the contractor fails to cover the damage fully but the sponsoring state is not found in violation of any obligation, the Convention and related instruments leave “no room for residual liability.”164 With a view to remedying this gap, the Chamber suggested that “the Authority may wish to consider the establishment of a trust fund to compensate for the damage not covered.”165 Now that these legal principles have been clarified by the Seabed Disputes Chamber, work plans for exploration of nodules and polymetallic sulphides have been recommended by the Legal and Technical Committee and adopted at the 17th Session in 2011. These plans refer to projects by Nauru Ocean Resource and Tonga Offshore Mining Ltd. for nodules, and by the China Ocean Mineral Resources and Development Association and the Ministry of Natural Resources and the Environment for the Russian Federation for polymetallic sulphides. In the debate regarding these applications, reference was made to the advisory opinion of the Seabed Disputes Chamber which required sponsoring states to have laws, regulations and administrative measures in place for “active supervision of the activities of the sponsored contractor” and the decisions for Nauru and Tonga were amended to address more specifically the applicants’ actions to adopt and implement appropriate legislation. In addition, language was added to underscore the contractors’ reporting obligations, including reporting of environmental data and of actual and direct exploration expenditures. We believe that the approaches that have been applied to seabed mining, as described above, should also apply to iron fertilization. Both the International Law of the Sea Tribunal and its Seabed Disputes Chamber could be available for parties making claims in the event of unintended transboundary effects of ocean iron fertilization. In addition, both could also be available for an advisory opinion on the responsibilities, duties and obligations of those engaging in ocean fertilization activities. The ISA Regulations provide an extensive code of environmental regulation of common heritage resources. Among other requirements, the Regulations ensure that a contractor shall “take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area.” The ISA has taken into consideration the effect that scientific research may have on the marine environment and has directly addressed it. It has provided important precedents for other international ­organizations to

164 Id. at ¶204. 165 Id. at ¶205. The idea of a trust fund has been implemented before. In 2006, the ISA established an Endowment Fund to Support Collaborative Marine Scientific Research on the International Seabed Area. This Fund is designed to provide funding to enable scientists and technicians from developing countries to participate in deep-sea research organized by international and national institutions. See http://www.isa.org .jm/en/efund/fund.

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use and follow in efforts to protect the marine environment, preserve marine biodiversity, provide for a regime that does allow research, and ensure an international marine order. Competing National Regulations and the Development of a Comprehensive International Regulatory Regime Mining may be undertaken on the polymetallic sulphides associated with hydrothermal vents, many of which are found within national exclusive economic zones, where the environmental regulations are likely to be less stringent than the Regulations adopted by the ISA and where the ISA requirements regarding fees and technology transfer would not apply. In 2002, the members of the ISA Council agreed that a “flexible approach” was required so that the Authority’s regulations could “compete with similar regulatory frameworks in place under municipal legislations.”166 Nautilus Mineral, a Canadian company, has obtained a lease from Papua New Guinea (PNG) for a seabed mining project (called Solwara 1) in the Manus Basin between the island chains of New Britain and New Ireland, where it plans to mine for sulphide deposits near hydrothermal vents within the PNG exclusive economic zone.167 If this project begins as scheduled in 2013, it will be the world’s first seabed mine. Some scientists and some countries in the region have raised questions about the impact of this project.168 The plan involves using a strip-mining approach to remove the top 20 meters of the Massive Sulphide System on the sea floor at a depth of 1500 meters of water, using remotely-operated underwater mine cutters and pumps to bring ore to the surface onto barges.169 The regulatory regime that emerges to govern these mining operations should conform to the ISA Regulations and the rules announced by the Seabed Disputes Chamber. Although countries have jurisdiction within their exclusive economic 166 See ISA, 8th Session, Council Proceedings (Aug. 5–16, 2002), available at http://www .isa.org.jm/en/sessions/2002. 167 See Nautilus Minerals Website (2011), available at http://www.nautilusminerals.com/s/ Projects-Solwara.asp. 168 See High Level Meeting Shows Way Forward for Seabed Mineral Mining, Secretariat of the Pacific Community, Applied Geoscience and Technology Division (SOPAC) (June 14, 2011), available at http://www.sopac.org/index.php/media-releases/1-latestnews/300-high-level-meeting-shows-way-forward-for-seabed-mineral-mining; see also Pacific Islands Development Program / East West Center, “Group Seeks Moratorium On Sea Bed Mining Licenses: Pacific Network on Globalization Wants Baseline Studies,” Pacific Islands Report, (May 31, 2011), available at http://pidp.eastwestcenter.org/ pireport/2011/June/06-02-10.htm. 169 See J. Halfar and R. Fujita, “Danger of Deep-Sea Mining,” Science, 316 (May 18, 2007): 987.



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zones, we believe, they also have a duty under Article 192 of UNCLOS to protect and preserve the marine environment; hence, they must comply with the internationally-accepted rules in fulfilling that obligation. Conclusion The foregoing review of the efforts to understand and regulate iron fertilization in the ocean within different treaty regimes raises the question whether the world’s nations are moving toward consensus on this regulation or whether tensions between treaty regimes will emerge. In some situations, ocean governance has been enhanced by the deliberate integration of regimes, for example the linking of MARPOL provisions to the environmental protection regime under the Antarctic Treaty System and the leveraging of the rules developed through the London Convention and Protocol through Article 210 of UNCLOS. Where regimes or instruments have not been so clearly integrated, conflicts may undermine each regime’s effectiveness. The efforts to regulate ocean fertilisation highlight the potential problems that can be created by forum shopping, especially where national regulations may not meet the international standards that govern the exploitation of marine resources.170 An international consensus has certainly emerged on certain basic issues, and it may be argued that this consensus now appears to constitute customary international law. Its basic terms are as follows: Ocean iron fertilization should be limited to scientific experimentation and should be carefully and closely regulated and subject to the precautionary approach. The collection of scientific data should be required, and should be shared and publically available. It is premature to sell carbon offsets from any commercial-scale iron fertilization experiments unless it becomes more clearly established that this geo-engineering technique effectively removes CO2 from the atmosphere, retains that carbon in the ocean for a quantifiable amount of time, and has acceptable and predictable environmental impacts. Complete and detailed environmental impact assessments and adequate scientific justifications are required.

170 A. Djoghlaf, “Message of Dr. Ahmed Djoghlaf Executive Secretary on the Occasion of World Ocean Day 8 June 2008,” Secretariat of the CBD (2008), available at http:// www.cbd.int/doc/speech/2008/sp-2008-06-08-ocean-en.pdf.; The Ninth Conference of Parties (COP 9) to the CBD meeting in Bonn during May 2008 discussed ocean fertilisation as part of its agenda item on biodiversity and climate change. As explained above, following deliberations, the parties agreed to a resolution that, inter alia, requested parties and urged other governments not party to the convention, in accordance with the precautionary approach, to ensure that ocean fertilization activities not take place until an adequate scientific basis is established to justify such activities and to assess associated risks.

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The on-going work of the parties to the London Convention and Protocol on ocean fertilization is pioneering in its development of international regulations to govern marine geo-engineering and its environmental implications. It is critical that the Assessment Framework be further developed so as to ensure that all steps are taken to protect the marine environment, requiring prior consent from those in the affected region, public consultations, monitoring, sharing of data, accountability and providing for comprehensive liability and compensation. The Seabed Disputes Chamber of ITLOS in its February 2011 Advisory Opinion provides a very useful roadmap to guide the international community in establishing regulations and a liability and compensation regime. The world community will be seeking solutions of any and all kinds given the crisis of increasing amounts of carbon dioxide in the atmosphere. Geo-engineering will continue to be viewed by some as a tool that can be deployed successfully to address this problem and thereby combat climate change.

thirteen

Mechanisms for Prevention of Disputes Concerning Encroachment upon the Area by Excessive Continental Shelf Claims Michael Sheng-ti Gau

Introduction An encroachment upon the International Seabed Area (the Area) as common heritage of mankind, as prohibited by Article 137(1) of the United Nations Convention on the Law of the Sea (UNCLOS),1 is a serious problem for the international community. UNCLOS is gradually becoming a universal treaty.2 It turns the idea of non-encroachment upon the Area into a general legal obligation that few States dare to defy. However, the fear remains that efforts at encroachment are only a matter of time. This concern has attracted the attention of diplomats,3 international lawyers4 and various States5 in different fora.

1   International Legal Materials, 21 (1982): 1245. UNCLOS becomes effective on November 16, 1995. Art. 137(1) provides “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.” 2 As of October 1, 2010, ratification or accession instruments deposited have amounted to as many as 161 (http://www.un.org/Depts/los/reference_files/status2010.pdf). 3 Chinese proposal (SPLOS/196) presented at the 19th meeting of States Parties to UNCLOS from June 22–26, 2009. 4 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 International Law 9 (2010): 663–698; Yann-huei Song, “Oki-no-Tori Shima: 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 (Leiden/Boston, 2009), 145–176. Also see Wolfrum, infra note 9. 5 See Chinese and Korean Notifications, dated on February 6, 2009 and February 27, 2009 respectively, to the Japanese Submission to the CLCS.

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UNCLOS defines the Area as “the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”6 On the other hand, Article 76 of UNCLOS provides the authority for a coastal State to establish the limits of its national jurisdiction as far as the sea-bed, ocean floor, and subsoil is concerned, namely, the limits of its continental shelf. Therefore, the Area starts where the continental shelf of a coastal State ends. Since every coastal State is entitled to have a continental shelf limit of 200 nautical miles,7 claims of national jurisdiction within this breadth will not represent encroachment upon the Area. Only when a coastal State claims that its continental shelf extends beyond 200 nautical miles (i.e., the outer continental shelf) will an opportunity be created for encroachment to occur. A coastal State wishing to establish an outer continental shelf shall follow the criteria indicated by Article 76(1)-(7). Under Article 76(8), the information on the limits of outer continental shelf shall be first considered by the Commission on the Limits of Continental Shelf (the CLCS).8 Hence, the encroachment will not materialize just because a coastal State fails to observe the conditions under Article 76 in its 6 UNCLOS, Art. 1(1)(1). 7 UNCLOS, Art. 76(1). 8 There are many articles written on the CLCS so far. The author has benefited from the following ones: Ted L. McDorman, “The Entry into Force of the 1982 LOS Convention and the Article 76 Outer Continental Shelf Regime,” The International Journal of Marine and Coastal Law (hereinafter IJMCL) 10 (1995): 165–187 (hereinafter McDorman 1995); Ted L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World,” IJMCL 17 (2002): 301–324 (hereinafter McDorman 2002); David A. Colson, “The Delimitation of the Outer Continental Shelf between Neighboring States,” American Journal of International Law 97 (2003): 91–107; Huw Llewellyn, “The Commission on the Limits of the Continental Shelf: Joint Submission by France, Ireland, Spain, and the United Kingdom,” 56 The International and Comparative Law Quarterly 56 (2007): 677–694; Clive R. Symmons, “The Irish Partial Submission to the Commission on the Limits of the Continental Shelf in 2005: A Precedent for Future Such Submissions in the Light of the ‘Disputed Areas’ Procedures of the Commission?” Ocean Development and International Law (hereinafter ODIL) 37 (2006): 299–317; Ron Macnab, “The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76,” ODIL 35 (2004): 1–17; Edwin Egede, Submission of Brazil and Article 76 of the Law of the Sea Convention 1982,” International Journal of Marine and Coastal Law 21 (2006): 33–55; A.G. Oude Elferink, “The Continental Shelf Beyond 200 Nautical Miles: The Relationship Between the CLCS and Third Party Dispute Settlement,” in A.G. Oude Elferink and D.R. Rothwell (eds.), Ocean Management in the 21st Century: Institutional Frameworks and Responses (Leiden, 2004), 107–124; Satya N. Nandan and Shabtai Rosenne (eds.), II United Nations Convention on the Law of the Sea 1982: A Commentary (hereinafter UNCLOS Commentary) (The Hague, 1993); Rüdiger Wolfrum, “The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf,” in R. Lagoni and D. Vignes (eds.), Maritime Delimitation (Leiden, 2006), 19–31; Michael Sheng-ti Gau, “Third Party Intervention in the Commission on the Limits of the Continental Shelf Regarding a Submission Involving a Dispute,” Ocean Development and International Law 40 (2009): 61–79.



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Submission, as long as the CLCS properly handles the information submitted. It makes the CLCS the field of initial battle between the State making encroaching claims and its opponents. Scholars have discussed the possibilities for resolving an encroachment dispute when a coastal State has established its own limits of outer continental shelf after the CLCS recommendations are made. Their studies suggest that the existing international rules and mechanisms cannot sufficiently address the problem in a judicial way.9 It may be worthwhile for us to probe into the rules, procedures and practices of the CLCS to see if this non-judicial agency can play any role to solve, to any extent, a dispute over encroachment in the process of its deliberation before making its recommendations. When handling international affairs, it is unwise to wait until a dispute has materialized and then ask the parties to stop fighting and start negotiating. The best way is prevention, especially when no cure exists after the dispute becomes real and possibly dangerous. Since this paper addresses the issue of dispute prevention as the best way to address concerns regarding encroachment, the central issue would be the role played by the CLCS. The author will discuss the CLCS-related rules, including Articles 76, 121, and 60 of UNCLOS, and provisions in the Rules of Procedure of this agency. The connection between Article 76 and provisions of Rules of Procedure will be studied closely. Also to be reviewed are the rules for the CLCS to handle third-party notifications which directly or indirectly challenge the Submissions suspected of encroaching upon the Area. Based on the result of such study, the author will comment on the ways the CLCS had handled situations allegedly encroaching upon the Area and will assess whether the CLCS is competent to offer non-judicial service which may defuse the encroachment dispute. The Functions of the CLCS and its Role in Maritime Delimitation Established by UN according to Article 76 of and Annex II to UNCLOS, the CLCS has the mandate to consider the information submitted by coastal States (i.e., the Submitting States) on the outer limits of their outer continental shelf and to make recommendations on matters related to the establishment of these limits.10 The limits established by a coastal State on the basis11 of such recommendations shall be final and binding upon itself.12 Importantly, the binding nature of such limits is only for the coastal State (the Submitting State) that establishes the outer continental shelf to its limit.13

   9 Wolfrum, supra note 9, 24–25, 27. 10 Art. 76(8) of UNCLOS and Art. 3(1)(a) of Annex II to UNCLOS. 11   See Colson, supra note 9, 93. Also see Llewellyn, supra note 9, 677, 682. 12 UNCLOS Art. 76(8). Macnab, supra note 9, 11. 13 McDorman 2002, supra note 9, 315.

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The limits are neither opposable nor binding upon third States. A contrary interpretation would make such binding limits under Article 76(8) irreconcilable with the obligations imposed by Article 83(1)-(2) of UNCLOS, which provides that (1) The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. (2) If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.14 [Italics added.] Being capable of producing binding force upon all the parties to the delimitation dispute, both the agreement and the procedures under Part XV of UNCLOS are different from the limits established on the basis of the CLCS’ recommendations under Article 76(8). Furthermore, Article 76(10) of UNCLOS provides that “[t]he provisions of this article are without prejudice to the questions of delimitation of the continental shelf between States with opposite or adjacent coasts.”15 In other words, the continental shelf boundaries between the Submitting State and the neighboring States are not settled as being the limits of outer continental shelf established unilaterally by the former simply because they are based on the CLCS recommendations. Otherwise, the Submitting States might evade the obligations under Article 83 to settle any delimitation dispute. The Rules and Procedure for the CLCS to Handle Outer Continental Shelf Submissions Involving a Dispute Which States can Inform the CLCS of a Dispute? One preliminary issue for the CLCS is to decide if any dispute is involved in the Submission. The CLCS cannot decide by itself that a dispute exists, even when some Members of the Commission individually have such knowledge. The CLCS needs to be informed formally from the outside. The reason lies in paragraph 1 of Annex I to the Rules of Procedure, which reads: “The Commission recognizes that the competence with respect to matters regarding disputes which may arise in connection with the establishment of the outer limits of the continental shelf

14 Supra note 1. 15 Also see Art. 9 of Annex II to UNCLOS and Rule 46(2) of the CLCS’ Rules of Procedure (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/309/23/PDF/N0830923.pdf ? OpenElement).



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rests with States.” The rules of the CLCS provide two sources from which the Commission may obtain the knowledge of a dispute, as follows: The first source for the CLCS to learn the existence of a dispute is the Submitting State itself under paragraph 2(a) of Annex I to the Rules of Procedure.16 When the Submitting State admits the involvement of a dispute, the CLCS has to follow Rule 46(1) of and Annex I to its Rules of Procedure. The second source is a “third Party” that offers a reminding notification. The legal basis established by paragraph 2(b) under Section II of Annex III to the CLCS’ Rules of Procedure has to be read together with paragraph 2(a)(iv)–(v) as its context for the purpose of treaty interpretation under customary international law.17 Annex III is entitled “Modus Operandi for the Consideration of a Submission Made to the Commission on the Limits of the Continental Shelf.” The heading of Section II is “Organization of the Work of the Commission.” And the title of paragraph 2 is “agenda items related to the Submission.” Sub-paragraphs 2(a) (iv)–(v) and 2(b) in this section provide that: 2. Agenda Items Related to the Submission Upon notification that a submission has been received and made public in accordance with rule 50, and after a period of at least three months following the date of publication, in accordance with rule 51, paragraph 1, the Commission shall convene its session with the following items on the provisional agenda prepared in accordance with rule 5 and rule 51, paragraph 1: (a) Presentation of the submission by coastal State representatives, to include the following: . . . . . . . .  Information regarding any disputes related to the submission; and . . . Comments on any note verbale from other States regarding the data reflected in the executive summary including all charts and coordinates as made public by the Secretary-General in accordance with rule 50; (b) Consideration of any information regarding any disputes related to the submission, and decisions in accordance with rule 46 and Annex I to these Rules as to whether to proceed with the consideration of the submission, or part thereof, or not. The Commission may defer these decisions to a sub-commission in accordance with paragraph 7.18 [Italics added.]

16 Also see paragraph 2(a)(iv) of Annex III to the CLCS’ Rules of Procedure. 17 As a codification of customary rule of treaty interpretation, Art. 31 of Vienna Convention on the Law of Treaties (VCLT) requires treaty interpreters to look at the “context.” VCLT was done at Vienna on May 23, 1969. It entered into force on January 27, 1980. United Nations, Treaty Series, Vol. 1155, p. 331 (http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf). See Anthony Aust, Modern Treaty Law and Practice 2nd edition (Cambridge, 2007), 235–238; Richard K. Gardiner, Treaty Interpretation (New York, 2008), 180–184. 18 Annex III to the CLCS’ Rules of Procedure.

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It is clear from subparagraph (b) that after the presentation of the Submitting State, the CLCS may consider “any information regarding any disputes related to the Submission.” The Commission is thus offered an opportunity to consider whatever information it has received. The information the CLCS may consider is not limited to the information provided by those “other States” as indicated by subparagraph (a). To sum up, a broad and liberal, rather than a restrictive, approach is authorized by the CLCS rules for interpreting the scope of third parties qualified to provide reminding communications. In order to handle correctly the following two scenarios, the CLCS must consider the first and the second sources independently of each other. First, imagine that a Submission denies the existence of a dispute. Some other States send notifications to the CLCS to inform it of a dispute while objecting to the processing of the Submission. The CLCS should evaluate such notifications, instead of blindly following the Submission and dismissing the third party notifications. To avoid the troubles made by notifications from mischievous third States, the CLCS may only entertain those third party notifications which indicate situations falling into the scope of “dispute.” A second and more outrageous case may occur when a Submitting State admits the involvement of a dispute while identifying Country X as the other party to the dispute. This does not make Country X the only one eligible to deliver third party notification. Otherwise, a plot among two or more States to unlawfully annex part of the Area might succeed by means of the CLCS process. In this second case, given the concept of the common heritage of mankind, every State is eligible to deliver communication to the CLCS to oppose the encroaching Submissions.19 The concept further supports the right of an agency or an international institution representing a group of States, or the whole international community of States, to make such notifications.20 Therefore, the CLCS may legitimately consider the views of the International Seabed Authority when it challenges an encroaching Submission. The above-mentioned broad scope of third parties eligible to send notifications seems to support this position. What Kind of Disputes may Concern the CLCS? The nature and the types of disputes that may interfere with the work of the CLCS are defined by the Rules of Procedure of this agency. The title of Rule 46 and that of Annex I to the Rules of Procedure is identical in wording: “Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes.” Since both disputes “between States with opposite or adjacent coasts” and in “other cases” concern 19   Wolfrum, supra note 9, 31. 20 Award of June 10, 1992, 95 ILR, 545 at 674. Quoted from Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions, 5th edition (London, 2001), 139.



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the CLCS, it seems safe to say that a dispute between the Submitting State and a distant State whose coasts are neither opposite nor adjacent may concern the CLCS. What kind of dispute21 can this be? Can the dispute over the encroachment upon the Area be included? It depends on whether the encroachment dispute is considered as an “unresolved land or maritime dispute.” The answer seems to be “yes.” The encroachment dispute is by nature a dispute over the legal status of a maritime zone, and so it should undoubtedly be considered a maritime dispute. If the answer to the above-mentioned question is really affirmative, then any State, be it neighbor or not, would be qualified to send third party notification to the CLCS to protest the Submissions encroaching upon the Area, as the Area is the concern of all the States in the world. To be sure, there are other reasons for the third party not in the neighborhood to provide warning notifications.22 The Primacy of Article 76 When interpreting the term “dispute” under the CLCS Rules, one must bear in mind Article 76 of UNCLOS, which ranks higher than those Rules in legal hierarchy and constitutes the basis of the CLCS’ establishment. Equally important is the fact that Article 76 is the context for the interpretation of the CLCS’ Rules of Procedure. More specifically, the CLCS Rules must be interpreted in a manner consistent with the provisions of Article 76. Here, the central issue is the prerequisite definition of continental shelf under Article 76(1), which provides that “the continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea through the natural prolongation of its land territory to the outer edge of the continental margin . . .” (italics added). The CLCS has the power and the duty to apply Article 76, including paragraph 1, to decide if the information submitted meets the criteria under this article.23 No matter how big the size of outer continental shelf circled by the limits submitted, it first has to meet the definition of “continental shelf.” Therefore, the interpretation24 and application of the term “natural prolongation of land territory” under Article 76(1) to the information submitted constitutes the initial step for the CLCS to take, before the Submitting State can be considered entitled to possess an outer continental shelf.

21   As repeatedly declared by PCIJ and ICJ, a dispute is “a disagreement on the point of law, a conflict of legal views or interests between parties.” East Timor (Portugal v. Australia), Judgment, ICJ Report 1995, 99–100. 22 India, Germany, the Netherlands, and the Russian Federation once notified the CLCS of their concerns about the Submission made by Australia in 2004 for guarding the Antarctic and its natural prolongation for this case, the third party notifications were considered admissible. 23 Art. 3(1)(a) of Annex II to UNCLOS. 24 Wolfrum, supra note 9, 22 (especially footnote 5).

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There are three incidental situations the CLCS must consider while applying and interpreting the term “natural prolongation of land territory” under Article 76(1), as follows: Situation One: Situation One is the existence of a sovereignty dispute over the “land” used to generate the outer continental shelf claim by and for the Submitting State, when some other State claims sovereignty over this same land while requesting the CLCS to stop considering the Submission. If the CLCS goes ahead and makes any recommendations, it is tantamount to an endorsement of the claim of the Submitting State. Additionally, the CLCS may facilitate creation of another dispute over legal status of maritime zones surrounding such disputed land. Without a mandate to decide the real sovereignty owner of the land, the CLCS should still decide “not to consider” such Submission when the third State so requests under paragraph 5 of Annex I to its own Rules of Procedure. Situation Two: Situation Two is that, while having no sovereignty dispute, the legal capability of the land territory to generate “natural prolongation” is being contested. Articles 121(3) and 60(8) of UNCLOS specify certain kinds of situations legally incapable of generating continental shelf as their natural prolongation under Article 76(1). These situations include: a rock, an artificial island, an installation, or a structure. In addition, a formation falling short of the criteria of an island under Article 121(1), e.g., a permanently submerged reef, may not generate outer continental shelf as its natural prolongation.25 Once indicated by a notification to CLCS, any of these situations constitutes an incidental question to the application of Article 76(1). Hence the CLCS must address it before ruling on anything else, even if the CLCS considers itself powerless to interpret Article 121 and 60. In the event the CLCS accepts the hands-off request in the third party notification and stops considering the Submission, the situation will not be worsened. Otherwise, the Commission might contribute to generating a separate dispute over the legal status of the maritime zone surrounding the above-mentioned “incapable land,” which under UNCLOS is unable to produce outer continental shelf. Situation Three: Situation Three is not a controversy related to “sovereignty” over land that generates continental shelf, nor is it about “legal capability” of such land to generate 25 A slightly different situation is that a Submission includes a land which generates outer continental shelf claimed by the Submitting State. While no dispute over the sovereignty of such land exists, distant States oppose the consideration by the CLCS of the outer continental shelf surrounding this land because it is part of Antarctica. See paragraph 41 of the Chairman’s Statement (CLCS/66).



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natural prolongation. Rather, it is a dispute concerning how far such natural prolongation should go. There may be two kinds of negative notifications voiced in Situation Three. The first is a warning notification (Notification A) saying that the information in the Submission is incorrect, misleading, or inconsistent with Article 76(3)-(7). Therefore, the Submitting State’s claim as to the extent of the outer continental shelf is invalid. The second type of notification (Notification B) might report that an island or maritime zones owned by the third State are located inside the outer continental shelf being claimed by the Submitting State, even though the third State does not use the island to generate its own outer continental shelf. In other words, Notification A reminds the CLCS of certain natural situations that affect, control, or limit the distance of the prolongation. And Notification B indicates some legal situations which cut short the prolongation as submitted. If the CLCS ignores the warning of Notification A by giving insufficient care in considering the submitted information, another dispute over the size of the outer continental shelf might occur, in addition to the dispute over the consistency of seabed configurations submitted with the requirements of Article 76(3)–(7).26 On the other hand, suppose the CLCS refuses to follow the argument in Notification B, the Commission would be affirming the sovereignty titles claimed by the Submitting State over the disputed island and the surrounding outer continental shelf. By doing this, the CLCS would turn itself into a dispute settlement body, which it is not. As mentioned already, the above three Situations are all capable of affecting the size of the outer continental shelf pertaining to the Submitting State. The decisions as to how these Situations should be handled fall, procedurally, within the competence of the CLCS, as these Situations are incidental to the interpretation and application of the term “natural prolongation of land territory” under Article 76(1) of UNCLOS. In other words, the exercise of its authority by the CLCS can discourage any Submitting State from claiming an excessive outer continental shelf by taking advantage of these Situations. The scenarios that particularly warrant dissuasion are Situation Two and Notification A in Situation Three, as they attempt to encroach upon the Area. Having considered above-mentioned Situations inherent in the interpretation and application of Article 76(1) of UNCLOS, we will now review the scope of disputes that concern the CLCS under the Rules of Procedure, that are subsidiary to Article 76 of UNCLOS. .

26 The CLCS once dismissed the notifications of this kind made by the US against the Brazilian Submission, on the ground that “no dispute” was involved.

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Disputes between States with Opposite or Adjacent Coasts When interpreting this phrase, we have to consider the qualifying wording “other cases of unresolved land or maritime disputes” as context. As indicated by the practices of the CLCS, the disputes of this kind include maritime delimitation disputes,27 namely, the delimitation of overlapping EEZs,28 and of overlapping outer continental shelf,29 or of overlapping continental shelf within 200 nautical miles from one States but beyond 200 nautical miles from another State.30 In addition, “land disputes” involving contested sovereignty title under Situation One may fall within this category. Scope of Land Dispute under the CLCS Rules The first kind of land disputes should be Situation One.31 It is proper to consider such disputes as being of the type that may interrupt the CLCS’ consideration process; otherwise the CLCS will transform itself into a dispute settlement tribunal, which it is not meant to be. The ongoing dispute over the outer continental shelf surrounding Antarctica, as a special case under Situation Two, may be categorized as the first kind of land dispute. This is so because the Party States to the Antarctica Treaty refuse to recognize the claims of outer continental shelf as natural prolongations of land in Antarctica under Article IV of the Antarctica Treaty.32 It is similar to a disputed island, which the CLCS is unqualified to endorse as a basis for generating an outer continental shelf for the Submitting State. As demonstrated by the CLCS’ practice, however, Situation One33 as well

27 Examples can be seen in paragraphs 40, 46, 49, 52 of the Chairman’s Statement (the CLCS/64). 28 See Japanese communications to challenge Chinese and Korean Preliminary Information dated on July 23, 2009 and May 26, 2009 respectively. 29 See the reaction from Norway towards the 2001 Russian Submission. 30 See the reaction from Tonga towards the 2006 New Zealand Submission. 31   See Japanese third party notification against part of the Russian Submission with respect to the so-called Northern Territories of Japan. Also see the third party notification of the UK against the Submission of Argentina with respect to the Falkland Islands, South Georgia, and the South Sandwich Islands. 32 See communications of the U.S., India, the Netherlands, Japan, Russia, and Germany against Submissions of Australia, New Zealand, and Norway dated November 15, 2004, April 19, 2006, and May 4, 2009 respectively. 33 See recommendation of the CLCS concerning the Russian Submission, with respect to the Sea of Okhotsk, which was challenged by Japan as using Japanese Northern Territories as bases to generate outer continental shelf. See paragraph 40 of Report of the Secretary-General at the 57th session of the UN General Assembly, A/57/57/Add.1 (October 8, 2002). Also see paragraph 76–77 of the Chairman’s Statement (CLCS/64). Also see paragraph 60 of the Chairman’s Statement (CLCS/66).



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as the Antarctica situation34 have been taken into consideration in this agency’s procedure in hearing disputes. The foregoing Notification B under Situation Three indicates that an island over which there are conflicting sovereignty claims is not used to generate outer continental shelf, but simply is located inside the outer continental shelf in the Submission. Could this be considered as a land dispute? A counter argument might be raised that such a “land dispute,” being unrelated to the Submission, should not trigger the application of the rule under the first sentence of paragraph 5(a) of Annex I to the CLCS’ Rules of Procedure. Therefore, the CLCS can still consider and qualify the Submission by disregarding such opposing notifications. However, this situation can still be regarded as a “maritime dispute.” The reason is that the third party, as a competitor, claims to have the sovereignty and related jurisdiction and rights over the island and its surrounding waters, seabed, and subsoil. It makes controversial the legal status of the maritime zones surrounding the island. Such a kind of disputes, when settled, will affect the size of maritime zones pertaining to the Submitting State. And it is fair to treat this dispute as part of those “disputes” concerning the CLCS. The record shows that Notification B of Situation Three has been well-received by the CLCS.35 It is believed that Situation Two, minus the (artificial island) situation of Article 60(8), also should be considered a “land dispute.” It is because of the land-related essence of such dispute, namely, whether the “land” is legally capable of having “natural prolongation” is contested. It is a matter of interpretation of the term “natural prolongation of land territory” under Article 76(1), while Articles 121(3) and 121(1) acting only as the context. Since the CLCS has the power and duty to interpret and apply Article 76(1) correctly, such a land dispute concerns this agency. A question may arise that, since the CLCS members are not lawyers, the Commission is not qualified to make judicial determination as to whether the “land (or rock)” or the submerged reef concerned meets the definition of Articles 121(3)36 or not meeting conditions under 121(1). However, the CLCS can seek assistance from the Legal Counsel of the UN Office of Legal Affairs, who indeed has provided advice several times.37 Therefore, the question whether the CLCS is competent to interpret these two provisions will not adversely affect its duty to interpret and apply Article 76(1).

34 See supra, note 26. 35 See paragraphs 87–92, 106 of the Chairman’s Statement (CLCS/64). 36 See the notification made by Korea against Japanese Submission to the CLCS. 37 See paragraphs 5–11 of the Chairman’s Statement (CLCS/48). Also see paragraph 13 of the Chairman’s Statement (CLCS/44).

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Scope of Maritime Disputes To be submitted, the generic term “maritime disputes” covers all the disputes created by conflicting claims made by Submitting State and other State(s) relating to sovereignty, sovereign rights, and jurisdictions over various self-claimed maritime zones under UNCLOS, including territorial seas, contiguous zones, EEZs, continental shelf, outer continental shelf, and the Area. Apart from the scenario in Notification B under Situation Three, there are two kinds of maritime disputes, as follows. Disputes of encroachment upon the Area: When a third party notification challenges some part of a Submission as not being the outer continental shelf of any State, but part of the Area instead, such encroachment dispute should be considered as a “maritime dispute” which concerns the CLCS. And such circumstances can be created or indicated by the above-discussed Situation Two or Notification A of Situation Three. The most extreme kind of maritime disputes: Not confined to theory, the worst situation is for a Submitting State to use artificial islands, installations, or structures (vide Article 60(8) of UNCLOS) to generate an outer continental shelf, as part of Situation Two. Such situation is not a “land” dispute, as these entities are not “land” in the terms of UNCLOS. However, it is reasonable to consider this as a maritime dispute, as the resolution of such a dispute will affect the size of the maritime zones to be obtained by the Submitting State. Beyond these considerations, there is a dispute over the legal status of the maritime zones surrounding these non-land figures. Consequences of a Dispute Paragraph 5 of Annex I to the CLCS’ Rules of Procedure provides for the consequences of a dispute when its existence is confirmed, as follows: 5. (a) In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute. However, the Commission may consider one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute. [Italics added.]

The first sentence contains a general principle of a negative nature. When a dispute exists, the Submission shall not be considered, nor be deemed qualified or suitable for the Commission to process. This general principle is, however, subject to an exception under the second sentence. Under the general principle, the Submission not to be considered is that made by any of the States “concerned in” the dispute. The States “concerned in the dispute” refer to, in the ordinary meaning of these terms, the States “who have some connection with,” “who will be affected by,” “who are involved in,” or “who



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have interest in” the dispute.38 In other words, a third party notification needs (1) to provide the information about the alleged dispute; (2) to describe why such alleged dispute falls within the scope of “disputes” concerning the CLCS; and (3) to prove that the Submitting State has interests that would be affected by the alleged dispute. The wording under the general principle “any of the States concerned in the dispute” also indicates that the interests at stake must be shared by other States. The third-party notification must demonstrate that its own interests are affected by the maritime area included in the Submission. Such information may convince the CLCS that this third party is eligible to become one of the parties to the dispute. Consequently this third party may block the CLCS deliberation process in accord with the second sentence of paragraph 5(a). The formulation of this provision allows a single State to make a notification on behalf of the international community. What kind of interests of the international community may concern the third State? The easy answer is the common interests of the Area not to be encroached upon, as dictated by Article 137(1) of UNCLOS. The conditions required by the exceptional rule are “prior consent” being given by “all” States that are “parties to the dispute.” It means, as long as one State Party to the dispute disagrees, the CLCS shall remain barred from considering and qualifying the Submission. The possibility for a majority of States Parties to the dispute to outvote a single Party is hence forbidden. The actions taken by the CLCS to handle a submission that has been alleged to encroach upon the Area Japan’s Submission and third party notifications from the United States, China, Korea, and Palau On 12 November 2008, Japan made a Submission to the CLCS covering seven regions in the Pacific Ocean located to the south and the south-east off main islands of Japan.39

38 See A.S. Hornby, Oxford Advanced Learner’s Dictionary, 16th edition (Oxford/New York, 1982). Also see Longman Dictionary of Contemporary English, 3rd edition, 7th impression (White Plains, NY, 2003), 318. Also see MacMillan English Dictionary for Advanced Learners of American English (Houndmills, Hampshire, 2002), 280. 39 See Executive Summary of this Submission (http://www.un.org/Depts/los/CLCS_new/ submissions_files/jpn08/jpn_execsummary.pdf) visited on September 28, 2010. There are seven regions covered by the Submission, namely, (1) the Southern Kyushu-Palau Ridge Region (KPR), (2) the Minami-lo To Island Region (MIT), (3) the Minami-Tori

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Importantly, Japan indicates that this Submission is not subject to any dispute between Japan and other States, except in certain areas. Japan said that there are potential overlap in the areas between Japan on the one hand, and the United States and Palau on the other hand. However, for the areas concerned, the US and Palau do not object to the consideration by the CLCS of Japan’s Submission.40 China and Korea objected to the CLCS’ consideration of part of Japan’s Submission, arguing that this would go beyond the competence of the CLCS. China invoked the obligations incumbent upon the States Parties to UNCLOS to ensure respect for the extent of the Area, not to affect the overall interests of the international community as a whole, and to ensure that the extent of the Area is not subject to illegal encroachment.41 The two governments pointed out Japan’s wrongful inclusion in the Submission of a rock (Oki-no-Tori Shima) used to generate the outer continental shelf in the SKB, MIT, and KPR regions. China and Korea argued that such a rock cannot generate an EEZ, a continental shelf, and an outer continental shelf under Article 121(3). As stated by China, “Since the rock of Oki-no-Tori does not have any ground to claim continental shelf, it is not within the mandate of the Commission to make any recommendation” on the continental shelf and outer continental shelf from this rock. China requested the CLCS to take no action on the portions concerned.42 Korea used a slightly different argument, namely, that “the legal status of ­Oki-no-Tori Shima is not a scientific or technical matter involving the establishment of the outer limits of the continental shelf, but rather a matter concerning the interpretation and application of Article 121 of the Convention, which is beyond the purview of the Commission.” Korea then “requests the CLCS to set aside the portions relating to Oki-no-Tori Shima from its action on the Submission made by Japan.”43 Japan does not consider China and Korea to be parties to any dispute with Japan under this Submission. Presumably, since the United States and Palau have no objection to the consideration by the CLCS of the Submission, the CLCS should move on, disregarding the positions expressed by China and Korea.

Shima Island Region (MTS), (4) the Mogi Seamount Region (MGS), (5) the Ogasawara Plateau Region (OGP), (6) the Southern Oki-Daito Ridge Region (ODR), and (7) the Shikoku Basin Region (SKB). 40 Ibid., 7–8. 41   Paragraph 2 of China’s Notification to the Japanese Submission. 42 China’s communication, ibid., paras. 3–5. 43 Korea’s communication against Japan’s Submission, paras. 4–6. Korean communication did not mention the specific portions (or regions) in the Japanese Submission that the CLCS is requested to take no action, unlike the Chinese communication.



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Reactions of the CLCS The CLCS during its 23rd session discussed Japan’s Submission as well as the third party notifications. On March 25, 2009, the representative of Japan, Ambassador Hamuro, having introduced the Submission, responded to the communications from China and Korea. He pointed out that these two notifications were related to an interpretation of Article 121 of UNCLOS, that did not fall within the mandate of the CLCS and was not referred to in the CLCS’ rules of procedure. Hence, Japan requested the CLCS not to take into account the positions expressed in the two note verbales.44 Having discussed the notifications from China and Korea, the CLCS acknowledged that it has no role to play on matters relating to the legal interpretation of Article 121 of the Convention. The Commission decided that it would revert to the matter when it was ready to proceed with the establishment of the sub-commission, and would take into account any further developments that might occur during the intervening period.45 Six months later, during its 24th session between August 10 and September 11, 2009, the Commission resumed discussion of Japan’s Submission. For the contentious issue of Oki-no-Tori Shima, a working group was established that provided a draft for the Commission’s consideration. The Commission agreed on the following approach. Firstly, the Commission reiterated that it had no role to play on matters relating to the legal interpretation of Article 121 of UNCLOS. Secondly, the Commission recalled that one of its functions is to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles. It would then make recommendations in accordance with Article 76 and the Statement of Understanding adopted on August 29, 1980 by the Third UN Conference on the Law of the Sea. Thirdly, the consideration of submissions by the Commission concerned issues related only to Article 76 and Annex II to UNCLOS, and was without prejudice to the interpretation or application of other parts of the Convention.46 Therefore, “the Commission decided to instruct the Sub-commission to proceed with the consideration of the full submission of Japan. The Commission decided, however, that it shall not take action on the part of the recommendations prepared by the Subcommission in relation to the area referred to in the [Chinese, Korean, and Japanese] notes verbales . . . until the Commission decides to do so.”47

44 Paragraph 54 of the Chairman’s Statement (CLCS/62). 45 Paragraph 59, ibid. 46 Paragraphs 22–25 of the Chairman’s Statement (CLCS/64). 47 Paragraph 26, ibid.

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It is interesting to note that, during the recent sessions of the CLCS, the above decision concerning how this agency would handle the issue of Oki-no-Tori Shima was not changed.48 Hard Questions Arising from the CLCS’ Handling of Japanese Submission and Chinese/Korean Notifications Questions for the CLCS Let us suppose, for the moment, the reactions of the CLCS to be correct in the present case. The interpretation and application of Article 121(3) of UNCLOS is beyond the mandate of the CLCS. It would be lawful for this agency to ignore all challenges raised by China and Korea against the creation of an outer continental shelf out of Japan’s claim to Oki-no-Tori Shima. It is also legal for this agency to proceed with its normal course of doing business by considering Japan’s ­Submission. Following this logic, suppose we have a slightly different situation that some State uses an artificial island, installation or structure as legal basis to claim outer continental shelf surrounding it and makes a respectable Submission. How would the CLCS react? Would it also be deemed a matter of interpretation of Article 60(8) of UNCLOS, which goes beyond the mandate of the CLCS? Would it be then legitimate for the CLCS to ignore all the challenges raised by the third party notifications? Would it be also lawful for the CLCS to go on considering such Submissions by following its precedent in the case of Oki-no-Tori Shima? Questions Concerning Situation Closer to the Oki-no-Tori Shima Let us then consider hypothetically a certain world-famous submerged reef not fulfilling the conditions of definition of an island under Article 121(1) of UNCLOS. Without any sovereignty dispute, the reef is used to generate an outer continental shelf under a fully developed Submission to the CLCS. A negative third party notification is sent, expressing objections against the Commission’s reviewing of the Submission. The third party notification is based on the application to the reef of Article 121(1), slightly different from what Chinese and Korean Government said in the Oki-no-Tori Shima case. Following the precedent of Oki-no-Tori Shima, would it then also be legitimate for the CLCS to disregard such objections, because the interpretation of Article 121(1) is beyond the mandate of this agency? We must recall what the CLCS recently announced, viz., that “it had no role on matters relating to the legal interpretation of Article 121 of UNCLOS.” 48 Paragraphs 21–22 of the Chairman’s Statement (CLCS/66) and paragraph 12 of the Chairman’s Statement (CLCS/68).



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Lessons for other Coastal States It is correct for the CLCS to say that it has no mandate to conduct an interpretation of Article 121. But is it also valid for the coastal States intending to make Submissions to the Commission under Article 76 to ignore or even violate Article 121? The interpretation of Article 60(8) is also beyond the mandate of the CLCS, as this agency openly said that it is only responsible for Article 76. Would it be correct for coastal States intending to send Submissions to also ignore or violate Article 60(8)? Or let us set aside the CLCS and focus on Article 76. Can we imagine any situation in violation of Articles 60(8), 121(3), or 121(1) that would still be consistent with Article 76(1)? If not, then how can the CLCS correctly interpret and apply Article 76 so as to produce a recommendation, when there is a controversy that infringement of Articles 60(8), 121(1), or 121(3) is allegedly committed by the Submitting State? Questions for the CLCS, Japan, China, and Korea What kind of dispute do we have here? The rules of the CLCS require that the Commission decide if a dispute exists, based on the Submissions and the thirdparty Notifications. Moreover, the Commission needs to classify such a dispute to determine if it falls within the category of those “disputes” that concern this agency. The Chinese and Korean notes verbales are not very clear about what dispute they have with Japan’s Submission. However, what is clear from China’s notification is that an encroachment upon the Area is allegedly being committed by Japan for including the outer continental shelf allegedly generated by Oki-no-Tori Shima in its Submission. On the other hand, throughout its Submission and presentations, Japan does not concede any kind of dispute. Then, from the decision of the CLCS, there was no mention of any dispute existing between Japan and China, nor between Japan and Korea. Perhaps it was due to the insufficient classification of the encroachment situation that the CLCS was able to ignore the dispute factor. However, under such circumstances and when encroachment has been pointed out, can the CLCS still proceed? Questions about Article 76 Does Article 76 play no role in the Oki-no-Tori Shima controversy? Is it true that the only legal provision involved is Article 121(3), because no party explicitly mentioned Article 76 in its submission? It is true that the CLCS has the mandate to interpret and apply Article 76. Can the interpretation and application of Article 76 solve the encroachment problem? If the answer is in the affirmative, why didn’t China and Korea mention Article 76 as their legal basis? If Article 76 could be used as the basis for challenging Oki-no-Tori Shima, then what role would Article 121(3) play?

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Classification and Observations Classification of the Dispute Of utmost importance is the classification of the dispute between China and Korea on the one hand, and Japan on the other hand. Neither China and Korea, nor Japan and the CLCS, address this issue explicitly. Nevertheless, the situation of illegal encroachment upon the Area by Japan was pointed out in the Chinese note verbale. To be submitted, such situation can be considered as both an unresolved land dispute and unresolved maritime dispute. The reason for it to be a land dispute is due to the unsettled/disputed legal capacity of the “land” of Oki-no-Tori Shima to generate an outer continental shelf under Article 121(3). Falling within the aforementioned Situation Two, such dispute constitutes an incidental question for the CLCS to address when interpreting and applying Article 76(1) of UNCLOS. The reason for this situation to be also classified as a maritime dispute is due to the unsettled/disputed legal status of the maritime zones surrounding Oki-no-Tori. Applying Paragraph 5 of Annex I to the CLCS’ Rules of Procedure If it is correct to consider the present dispute to be an unresolved land and maritime dispute, then the CLCS needs to apply the rules contained in paragraph 5 of Annex I to its own Rules of Procedure, as discussed already. Obviously, Japan is one of the States “concerned in the dispute,” as Japan made a Submission to claim its outer continental shelf generated by Oki-no-Tori Shima, among other islands. If the CLCS is enlightened by the notifications from China and Korea so as to confirm the existence of a dispute, then Japan will be discouraged from establishing its outer limits concerned by CLCS’ refusal to consider that part of Submission and to give recommendations. Therefore, nobody can deny that Japan is concerned in such dispute. Under this situation, the CLCS shall not consider and qualify the part of Submission relating to the outer continental shelf surrounding Oki-no-Tori Shima, under the general rule in paragraph 5. However, if the exceptional rule in paragraph 5 applies, there is still a chance for the CLCS to consider the Submission lawfully. The condition is that prior consent has been given to the CLCS by all States that are parties to such a dispute. But this has not yet happened. The nature of the dispute is that the maritime zones surrounding Oki-noTori Shima are considered by China (and Korea tacitly) as Common Heritage of Mankind (the Area), while considered by Japan as its own continental shelf and outer continental shelf (as well as EEZ). China and Korea are two members of the international community of States which have an interest in the non-encroachment of the Area. In other words, China and Korea (and many other States) have the legal standing to be parties to such dispute concerning the legal status of the maritime zones surrounding Oki-no-Tori Shima, as to whether it is part of the Area or not.



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As China and Korea currently have not accepted as legitimate the action of Japan in making the Submission concerned, it is fair to say that these two States still withhold consent to the CLCS’ considering and qualifying such Submission. The exception in paragraph 5 hence remains inapplicable. And the conclusion will be the CLCS is still obligated under general rule in paragraph 5 not to consider and qualify the Oki-no-Tori Shima Submission by Japan. Concluding Remarks: the Role of the CLCS as a Mechanism to Prevent Encroachment Can the CLCS prevent encroachment upon the Area from realization? In this Chapter, we have gone through the relevant provisions of UNCLOS and the CLCS’ Rules of Procedure, as the subsidiary regulations, with respect to the functions of this Commission. The relation between such two bodies of law has been examined. Attention has been paid to the rules for the CLCS to stop considering a disputed Submission. It is justified to say that the CLCS has a sufficient competence to handle the dispute of encroachment by halting its consideration of the Submission. And it is a duty of the CLCS to deal properly with such a matter. The point of departure is Article 76 of UNCLOS, which the CLCS has a duty to apply in good faith. Article 76(1) provides the threshold that the Submitting State must cross before having a valid claim to an outer continental shelf. The CLCS must address certain incidental questions in order to determine whether the Submitting State has such an entitlement under international law. In this connection, the author has proposed three Situations for the CLCS to examine as preliminary matters. Situation Two, as discussed already, involves issues concerning the disputed “capability” of a land mass to legally generate natural prolongation under the UNCLOS regime. If that dispute is not resolved, it is legally impossible for the CLCS to reach a conclusion that the Submitting State has any outer continental shelf. The failure to properly address Situation Two would be tantamount to an endorsement for the Submitting State in its claim to encroach upon the Area. The role of Article 76 of UNCLOS is to secure the legitimate geographical division between national jurisdiction of coastal States and the International Seabed Area as the Common Heritage of Mankind. It makes the CLCS a watchdog of the Area by dint of its duty to faithfully apply Article 76 and to curb any attempt of a coastal State to make an exaggerated outer continental shelf claim. The possible violations by coastal States of Article 121(1), 121(3) or 60(8) of UNCLOS, as indicated by Situation Two, can all lead to an encroachment upon the Area. The duty of the CLCS to properly apply Article 76, which includes the duty to take these three provisions as context for the purpose of interpretation/application of Article 76(1). The CLCS has unjustifiably narrowed the scope of disputes that it is concerned with. Its interpretation of the scope of disputes under Rule 46 and Annex I in

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its own Rules of Procedure is inconsistent with Article 76(1) of UNCLOS, which ranks higher in legal hierarchy and constitutes the proper context for the interpretation of its own Rules of Procedure. The disputes arising from Situation Two and Notification A under Situation Three, being an integral part of the application and interpretation of Article 76(1), are all excluded from the scope of such disputes by the CLCS itself. It creates lots of embarrassing questions that are hard for the CLCS to answer. Opening the Pandora’s Box, the CLCS has unleashed enormous possibilities for the coastal States to legally encroach upon the Area, based on the Oki-no-Tori Shima precedent. If the CLCS considers itself not concerned with these difficult questions because Article 121 (and Article 60) of UNCLOS are beyond its mandate, this agency has to tolerate possible encroachment on the Area in the future. If the CLCS proves content to live with such situations, the establishment of this agency under Article 76 will be seen as a mistake. The members of the CLCS are not lawyers. It is presumed that they would not touch upon the interpretation of Article 121 of UNCLOS (regarding the definition of island versus rock). However, since the situation of a suspected violation of Article 121(3) is part of the application and interpretation of Article 76(1) (regarding the limit of the continental shelf), the CLCS is obligated to undertake this as an obligation. For this, the CLCS shall seek legal/advisory opinions from the International Tribunal for the Law of the Sea, the International Court of Justice, the Legal Counsel of the UN Office of Legal Affairs, or other authorities, in order to solve this incidental/preliminary question. My suggestion goes to China and Korea, whose third-party notifications to challenge the Japanese Submission have not gone deep enough to clearly identify the nature of the “disputes” involved. It may have justified the inaction of the CLCS. However, China hinted by stating that “since the rock of Oki-no-Tori does not have any ground to claim continental shelf, it is not within the mandate of the Commission to make any recommendation.” This “groundless” argument may be based on Article 76(1) after the interpretation and application of the term “natural prolongation of land territory” had been made in respect of Oki-no-Tori Shima. It would have been more satisfactory if all the parties concerned had explicitly characterized the dispute, given the fundamental rule that the CLCS needs to be reminded of a dispute by States—and to be reminded well.

part three

Regional Issues and Ocean Regimes

A. The Pacific Area

fourteen

China and the Law of the Sea Jerome A. Cohen and Jon M. Van Dyke† 1

Finding Its Sea Legs Increasingly intense ocean disputes between China and its neighbors have heightened interest in Beijing’s theory and practice of international law. What legal principles does China invoke to support claims to islands in nearby seas? On what basis does Beijing believe sea boundaries should be drawn? What rights and obligations does it recognize regarding resources, and foreign ships and aircraft, within its maritime jurisdiction? What methods does it favor to resolve ocean disputes? From its establishment in 1949 until 1971, the People’s Republic of China was excluded from the United Nations and even fought a war against the UN in Korea from 1950–53. During that period, Beijing often rejected what it called the “bourgeois” rules and institutions that dominated the world community. Domestic upheavals, especially the 1957–58 “anti-rightist” campaign against intellectuals and the early years of the Cultural Revolution that began in 1966, enhanced China’s hostility towards not only the capitalist world but also the Soviet bloc and silenced most of the country’s academic and government experts in international law. When China assumed its seat in the UN, it was so lacking in international law expertise that the wife of Huang Hua, its first UN ambassador, although trained in economics rather than law, represented the country in the UN’s legal committee. As late as June 1972, when the senior author of this Chapter urged premier Zhou Enlai to nominate a Chinese specialist to serve on the International Court of Justice, Zhou and China’s other highly intelligent foreign policy leaders laughed derisively at the idea of participating in what they perceived to be an “imperialist”

1 An earlier version of this chapter appeared, in four parts, in the South China Morning Post (Hong Kong) on Oct. 26, 2010; Nov. 10, 2010; Nov. 24, 2010; and Dec. 7, 2010.

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institution.2 Today, China’s attitude towards international law is very different. It plays an active role in the UN and most other international organizations. The Treaty and Law Department of the Ministry of Foreign Affairs is a knowledgeable group of specialists. China is now ably represented in the International Court of Justice, the UN legal committee, the World Trade Organization and other forums. Chinese experts do not reject international law but seek to shape it on behalf of their nation’s interests. China actively participated in the negotiations that produced the 1982 UN Convention on the Law of the Sea and ratified it in 1996. A Chinese maritime specialist serves as one of the 21 judges on the International Tribunal for the Law of the Sea, and another is a member of the Commission on the Limits of the Continental Shelf. China has joined three regional organizations created to protect the marine environment of the shared seas of East Asia.3 It is also a member of the Western and Central Pacific Fisheries Commission, which has jurisdiction over the straddling and migratory stocks of most of the Pacific Ocean. China has generally played a responsible role in multilateral ocean organizations and seems committed to conducting maritime relations in accordance with at least its own understanding of international law. It has successfully negotiated a maritime boundary with Vietnam in the Gulf of Tonkin, which essentially divides the body of water between them equally. China’s claim that the large Gulf of Bohai on its northeast coast has the status of “internal waters” appears to be accepted by most countries. In 2008, China tentatively agreed with Japan on a joint hydrocarbon development area in the East China Sea that may be implemented before conflicting sea boundary claims are resolved.4 And it has been pursuing the possibility of mining the polymetallic nodules on the floor of the deep seabed through internationally prescribed channels.5 2 Other commentators in developing nations have contended that legal constructs are the product of, and for the advantage of, the western imperialist and colonialist powers. See, e.g., Dakas C.J. Dakas, “Dokdo, Colonialism, and International Law: Lessons from the Decision of the ICJ in the Land and Maritime Dispute between Cameroon and Nigeria,” in Seokwoo Lee and Hee Eun Lee (eds.), Dokdo: Historical Appraisal and International Justice (Leiden/Boston, 2011), 91–122. 3 The Coordinating Body on the Seas of East Asia (COBSEA), the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA), and the North-West Pacific Regional Seas Programme (NOWPAP). 4 “China, Japan reach principled consensus on East China Sea issue,” Xinhua News Agency, June 18, 2008, available at http://www.chinadaily.com.cn/china/2008-06/18/ content_6774860.htm. 5 Clive Schofield and I Made Andi Arsana, “Beyond the Limits?; Outer Continental Shelf Opportunities and Challenges in East and Southeast Asia,” Contemporary Southeast Asia: A Journal of International and Strategic Affairs 31 (2009), available at http://muse.jhu .edu/journals/contemporary_southeast_asia_a_journal_of_international_and_strategic_ affairs/v031/31.1.schofield.html. For a general overview of the East Asian sovereignty



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Yet China has had difficulties reaching agreement with its neighbors regarding the proper division of most of its adjacent waters. Negotiations with Japan and South Korea remain deadlocked over Beijing’s claim to virtually all the continental shelves of the Yellow Sea and the East China Sea and their resources, which is based on the view that their sea floors are formed by the mineral-rich sediments that flow into these coastal areas from China’s rivers. Disputes over seemingly insignificant islets assume importance because they not only arouse nationalist territorial passions but also may be relevant to the much larger issues of how to draw maritime boundaries in the area. China and South Korea have sparred over jurisdiction over a submerged reef in the Yellow Sea called Socotra Rock by the West, Suyan Rock by China, and Ieodo by Korea. Far more prominent has been the long-simmering dispute between China and Japan over islets and rocks near Taiwan called the Diaoyu Islands in Chinese and the Senkakus in Japanese. It flared up dangerously in the fall of 2010 when Japan, the administering power, detained a Chinese fishing trawler captain for allegedly ramming Japanese coast guard boats patrolling the adjacent territorial sea.6, 7 Equally troublesome politically is Beijing’s claim to most islands and waters of the South China Sea. Although echoed by Taiwan, which also claims to represent China, it is vigorously opposed by others bordering the area—Vietnam, Malaysia, Brunei and the Philippines. Beijing hopes to settle this dispute through separate bilateral talks with each of these countries, but they understandably prefer a single collective negotiation that would improve their bargaining power. The United States, alert to the security as well as economic importance of the South China Sea, has increasingly supported collective discussions.8

and maritime delimitation disputes, see 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 (Leiden and Boston, 2009), 39–75. 6 Ji Guoxing, “Similarities and Differences between the Korean-Japanese Dokdo Disputes and the Sino-Japanese Diaoyudao Disputes,” in Seokwoo Lee and Hee Eun Lee (eds.), Dokdo: Historical Appraisal and International Justice (Leiden and Boston, 2011), 189–210. 7 Jean-Marc F. Blanchard, “Politics and Economics in the Resolution/Non-Resolution of The East China Sea/Diaoyu Islands and Northern Territories Issues: Feats, Failures, And Futures,” in Seokwoo Lee and Hee Eun Lee (eds.), Dokdo: Historical Appraisal and International Justice (Leiden and Boston, 2011), 223–248. 8 For historical background of the disputes, see Choon-ho Park, “The South China Sea Disputes: Who Owns the Islands and the Natural Resources?” in 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 (held in Seoul, Korea, June 30–July 3, 1981 and July 3–6, 1984), (Manoa, 1987); and Yann-huei Song, “United States and Territorial Disputes in the South China Sea: A Study of Ocean Law and Politics,” Maryland Series in Contemporary Asian Studies, 1 (2002), available at http://digitalcommons.law .umaryland.edu/mscas/vol2002/iss1/1.

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A series of potentially serious recent incidents involving US air and naval reconnaissance in waters claimed by China as its exclusive economic zone has added yet another urgent problem to Beijing’s ocean agenda. Thus far, official Sino-American consultations have proved disappointing. With its sovereignty, national security, transport routes and economic resources at stake, China’s law of the sea experts and diplomats confront challenges equal to their considerable talents. The East China Sea—Lines of Latitude Japan’s arrest in September 2010 of a Chinese fishing captain within the 12-­nautical-mile territorial sea surrounding the Diaoyu-Senkaku Islands—five tiny islets and three barren rocks northeast of Taiwan—has again inflamed relations between the two great East Asian powers. These remote features, with a total land area under seven square kilometers, have proved incapable of sustaining human habitation. They have little intrinsic importance apart from their considerable ability to arouse nationalist passions. Yet, since Japan, which controls them, insists that the islets are entitled not merely to a territorial sea but also to a vast exclusive economic zone (EEZ) and part of the adjacent continental shelf, the sovereignty issue has become linked to the major challenge of drawing fair national maritime boundaries in the East China Sea. China’s claim to the islets is based on the “discovery” of unclaimed territory and derives from a range of Chinese governmental contacts and references going back to 1372. Japan’s claim is also based on the “discovery” of supposedly unclaimed territory, despite the fact that official Japanese documents, several of which were unearthed by Taiwan scholar Han-yi Shaw, demonstrate that the Japanese government was well aware of China’s historic claim when it began to take an interest in the islets in 1885.9 During the subsequent decade, contrary to the assertions now made by Japan, its officials not only failed to complete surveys of the islets necessary to confirm their alleged unclaimed status, but also recognized that the matter “would need to involve negotiations with Qing China.” To avoid China’s suspicion, Japan chose to conceal its intention to occupy the islets “until a more appropriate time.” That time came in January 1895, when Japan, by then on its way to defeating China in their 1894–95 war, adopted a Cabinet decision that the islets were Japanese territory. Yet even that Cabinet decision was not made public until after World War II.

9 Han-yi Shaw, “The Diaoyutai/Senkaku Islands Dispute: Its History and an Analysis of the Ownership Claims of the P.R.C., R.O.C., and Japan,” University of Maryland Occasional Paper No. 3 (1999), 152, available at http://digitalcommons.law.umaryland.edu/cgi/ viewcontent.cgi?article=1151andcontext=mscas.



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China maintains that the islets passed to Japan not by virtue of the unilateral, secret Cabinet decision but were acquired together with Taiwan and other unmentioned pertinent islands under the 1895 peace treaty of Shimonoseki. Therefore, Beijing argues, they should have been returned to China together with Taiwan and other pertinent islands after World War II instead of falling under temporary American administration, as Okinawa did. Japan points out that neither Chiang Kai-shek’s Republic of China nor Mao Zedong’s People’s Republic of China protested at the post-war placing of the islets under American administration, although the PRC did reject the entire post-war treaty settlement, from which it had been excluded. After a 1968 UN survey reported the huge oil and gas potential of the area near the islets, both competing Chinese governments began to protest against the scheduled 1972 US return of the islets to Japanese control, even though the United States took no position on their ultimate ownership. Today, now that the PRC has “risen,” and the legal status of the islets remains unresolved, failure to settle this territorial dispute has begun to threaten not only the area’s development of petroleum resources and fisheries but also its peace and security. Neither China nor Japan has accepted the recent American offer to “host” a discussion of the dispute. China wants the United States to keep out of all its sea boundary problems, as it has already made clear regarding the South China Sea. To China, American involvement in the East China Sea seems even more inappropriate, since the US, although professedly neutral on the territorial question, has nevertheless infuriated China by reaffirming that, being administered by Japan, the islets are protected by the 1960 US-Japan Security Treaty. Although Japan generally values American support to balance China’s growing power, it cannot welcome the US offer to enter the islet dispute, since Japan takes the ludicrous position that there is no dispute. Moreover, if the US were to become an impartial mediator, it would have to note that Japan’s claim to sovereignty over the islets is based on a distorted version of late-19th-century history that does not pass the international smell test. A mediator would also remind Japan—as China frequently has—that, under Article 121(3) of the UN Convention on the Law of the Sea, decisions of the International Court of Justice and international practice, these tiny, uninhabited spits of land that cannot sustain economic life on their own are not entitled to the 200-nautical-mile EEZ and resources of the adjacent continental shelf enjoyed by genuine “islands.”10

10 See Park, “The South China Sea Dispute,” and, the general subject revisited, Choon-ho Park, “The Changeable Legal Status of Islands and ‘Non-Islands’ in the Law of the Sea: Some Instances in the Asia-Pacific Region,” in David D. Caron and Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (Leiden, 2004), 483–491.

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It is time for Japan to reassess its views on the international law of the sea. Those of its views that are plainly irresponsible only discredit others of its positions that deserve serious consideration. Perhaps most insulting to the world community is its claim that the rock called Okinotorishima that constitutes Japan’s southernmost “land,” a reef system with land at high tide no larger than a kingsized bed, is entitled to an EEZ and continental shelf.11 If Japan wants to peacefully settle its East China Sea boundaries with China, it should also abandon its unpersuasive claim that the Diaoyu-Senkaku are entitled to an EEZ and continental shelf. Their ownership would thus become much less important and could be temporarily set aside. Then the parties could continue negotiations to reconcile China’s claim to control the economic resources of its vast continental shelf with Japan’s endorsement of the widely accepted principle of drawing equidistant EEZ boundaries between neighboring coasts. Even before completing the complex details of a boundary agreement, they can also implement their long-pending plans to jointly develop petroleum resources in disputed areas. To avoid future clashes over the Diaoyu-Senkaku, the parties should establish some coordinating mechanisms, including a hotline like the one China suggested to Vietnam. Although neither side is enthusiastic about international adjudication, in order to divert domestic nationalist passions into constructive channels they should display enough confidence in their legal positions to refer the territorial sovereignty dispute to the International Court of Justice, the International Tribunal for the Law of the Sea or an agreed arbitration panel. Further dithering is dangerous and unproductive. The South China Sea—High Stakes Of the many signs of China’s increasingly assertive foreign policy, none has troubled its neighbors—and the United States—more than its claim to some form of jurisdiction over much of the South China Sea.12 Yet the People’s Republic has never explained exactly what it is claiming or the basis for its claims regarding these strategically important waters, so rich in mineral, fishery and other resources. Much of the attention of contesting states has revolved about their conflicting claims to sovereignty over two sets of tiny islets that, properly viewed under

11   See 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 (Leiden and Boston, 2009), 145–76. 12 See generally Mark J. Valencia, Jon M. Van Dyke, and Noel Ludwig, Sharing the Resources of the South China Sea (Leiden, 1997; reprinted Manoa, 1999).



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international law, should not significantly influence maritime delineation. The Paracels (Xisha), in the north of the South China Sea near China and Vietnam, have long been claimed by both. The Spratly Islands (Nansha), in the south near Vietnam, Malaysia, the Philippines, Indonesia, and Brunei, are even tinier, but have long attracted claims by all those countries, in addition to China. China claims sovereignty over both sets of islets based on historical linkages to them during the past millennium, although traditionally it did not exercise “effective occupation and control” over them. The other coastal countries make similar claims. None of these islets had been inhabited historically, but in the recent half century the competing countries have put military garrisons on many of them. The People’s Republic did not take an active interest in these islets until about 1970. By then, most of the features above water at high tide were controlled by others. In 1974, China used force to oust the South Vietnamese government from the Paracels shortly before its collapse, and in 1988, when China began to “occupy” some of the low tide elevations in the Spratlys, it forced socialist Vietnam from Fiery Cross Reef. The breadth of China’s claim to the sea area is usually attributed to a map published in 1947 by Chiang Kaishek’s Nationalist government, shortly before the communist revolution chased it from the mainland to Taiwan. The map drew eleven dashed lines extending all the way to the southern part of the South China Sea. Later, Communist-era Chinese maps eliminated the two lines in the Gulf of Tonkin, but the other nine lines have appeared repeatedly in a tongue-like configuration swinging deep through the South China Sea. In 2009, China attached a version of this map to its official protest against a joint Malaysia-Vietnam claim to part of the continental shelf in the central-southern part of the area.13 It seems that China is putting forward an “historic” claim to much of the South China Sea. And yet it has never clarified whether it is claiming these waters as internal waters, territorial sea, exclusive economic zone, extended continental shelf, or some status unique to the region. It has merely published straight baselines for delineating the 12-nautical-mile territorial sea boundary to which the Paracels are entitled, but it has never done so for the Spratlys. In 2009, the Philippines filed with the UN Commission on the Limits of the Continental Shelf a formal claim to shelf areas around those islets in the eastern part of the South China Sea that it claims, and Malaysia and Vietnam filed their unusual joint continental shelf claim. China strongly protested against both actions. After US Secretary of State Hillary Rodham Clinton in July 2010 challenged China’s broad but vague claims, China provided symbolic support for its position

13 Tessa Jamandre, “PH protests China’s ‘9-dash line’ Spratlys claim,” Malaya, Apr. 14, 2011.

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by announcing in late August 2010 that its national flag had been planted in the seabed at one of the deepest points in the South China Sea. When, soon after, China applied fierce pressures against Japan for arresting a Chinese fishing captain off the disputed Senkaku/Diaoyu islets in the East China Sea, this alerted the world to the increasing danger of conflict in the South China Sea as well.14 What can be done to improve the situation? China seems to prefer negotiating territorial and boundary claims with each of the other contending countries in a series of bilateral talks, rather than seeking resolution of the conflict of claims in the ITLOS or in some other agreed international dispute-settlement forum. Presumably, such bilateral talks would be similar to the Sino-Vietnam negotiation that in 2004 resulted in China’s first maritime boundary agreement, a mutually satisfactory compromise that approximately divided jurisdiction equally (under the equidistance principle) over the adjacent Gulf of Tonkin. Other contending states, finding security and bargaining power in numbers, prefer a collective, multilateral, negotiation. Although many have interpreted the 2002 Declaration on the Conduct of Parties in the South China Sea,15 signed by the ASEAN members and China, as calling for a collective settlement, the declaration prescribed settling disputes only “through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea”. The parties further agreed to continue their consultations and dialogues “through modalities to be agreed by them.”16 It should not strain the imagination of diplomats to find a formula that will take account of the virtues of both bilateral and collective negotiations. Just as in the East China Sea, for purposes of sea boundary delimitation the first substantive step that should be taken is for the parties to agree on the unimportance of the disputes concerning sovereignty over the islands in question. The Spratlys are uninhabitable and incapable of sustaining economic life of their own, and hence they are not entitled to an exclusive economic zone or continental shelf under the Convention of the Law of the Sea.17 Although the Paracels may now be deemed habitable, parties bent upon compromise should be able to 14 Martin Fackler and Ian Johnson, “Arrest in Disputed Seas Riles China and Japan,” The New York Times, Sept. 19, 2010. 15 Declaration on the Conduct of Parties in the South China Sea, adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8th ASEAN Summit in Phnom Penh, Cambodia on November 4, 2002, available at http://www.aseansec .org/13163.htm. 16 Ibid. 17 See Jon M. Van Dyke, “The Romania v. Ukraine Decision and Its Effect on East Asian Maritime Delimitations,” Ocean and Coastal Law Journal, 15 (2010): 261–83, and in Jon M. Van Dyke, Jin-Hyun Paik and Seokwoo Lee (eds.), Governing Ocean Resources: Essays in Tribute to Judge Choon-Ho Park (Leiden/Boston, publication forthcoming).



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negotiate limits to the claims this status might generate. It will be much easier to compromise upon sea boundaries if all the neighboring countries agree, as China apparently has, regarding the comparable Senkaku-Diaoyu problem, that these tiny islets and reef features should not become the tail that wags the dog of maritime delimitation. Following this approach, a fair delimitation can take place drawn from the land boundaries of the continental and large island land masses of the adjacent states, recognizing the Paracels as relevant features and thus giving China substantial ocean space in the area nearest to it. This would permit the countries of the region to work together to exploit the resources of the South China Sea for the benefit of their citizens and ensure the “peace, stability, economic growth and prosperity,” plus the “freedom of navigation and overflight” their 2002 Declaration endorsed. Military Activities in the Exclusive Economic Zone—Limits of Tolerance The US-South Korean “war games” in the Yellow Sea offshore China and Korea in late 2010 dramatically brought to a boil the long-simmering US-China dispute over what kinds of military activities can be conducted in another nation’s exclusive economic zone. China has not yet formally staked out the boundaries of its economic zone. Under the UN Convention on the Law of the Sea (UNCLOS), ratified by China and most other countries, but not the United States, a nation is generally permitted an exclusive economic zone extending 200 nautical miles from its coastal baselines. If the distance to its nearest neighbor is less than 400 nautical miles, a maritime boundary needs to be negotiated between the opposite countries. Although international attention has focused on the urgent need to negotiate such boundaries in the East China Sea and the South China Sea, the US-South Korean “joint military exercise” demonstrated the dangers of neighboring states failing to agree on Yellow Sea boundaries as well. And these maneuvers raise once again the question of what military activities are permissible in the EEZ of another country. In such an EEZ, a coastal country has complete control over all living and nonliving resources and can limit marine scientific research by other countries. But the United States argues—and the text and negotiating history of the UN convention appear to support its view—that the ships and planes of other countries, military and commercial, have navigational rights to operate in and over these waters.18 In the 16 years since the UN convention went into effect, China has frequently said it will not interfere with freedom of navigation in its exclusive 18   See generally Jon M. Van Dyke, “Military Ships and Planes Operating in the Exclusive Economic Zone of Another Country,” Marine Policy 28 (2004): 29–39; Jon M. Van Dyke,

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economic zone as well as on the high seas beyond. China’s words and actions indicate that it permits commercial shipping to pass through its economic zone. Yet, although China was not among the small group of signers that declared that the UN Convention allows coastal states to limit military activities in this zone, it has periodically endorsed their position in recent years. In 2001 and again in 2009, China’s continuing challenges to US military activities in its EEZ led to dangerous confrontations, and China has also objected to hydrographic surveying undertaken by U.S. vessels in these waters. The 2001 incident involved an unarmed propeller-driven US Navy EP-3 reconnaissance plane, which was flying along China’s coastline, over its exclusive economic zone. When a Chinese fighter plane harassed the EP-3, the two planes collided. The Chinese plane crashed, and the pilot was killed. The US argued vigorously that its plane was entitled to fly over the zone without interference, and that the Chinese action violated international law. China responded with equal vigor, arguing that US reconnaissance flights were a violation of China’s zone rights, because these flights were not engaged in simple navigation, but were explicitly designed to intercept communications from China’s coastal communities and military facilities.19 The 2009 incident involved another type of US surveillance, this one by the USNS Impeccable. It was equipped with sophisticated sonar to locate Chinese submarines, and was operating about 75 miles south of China’s submarine base on Hainan Island. Three Chinese government ships and two fishing vessels sought to disable the Impeccable’s sonar equipment. The Impeccable managed to avoid serious damage, but this incident further highlighted China’s views on navigational freedoms in the exclusive economic zone.20 The United States has consistently contended that surveillance activities are legitimate in the zone, as well as on the high seas, but China refuses to accept this position, despite persistent reports that China itself quietly engages in similar activity offshore Japan and Vietnam. The United States also seeks to survey the sea floor of the world’s oceans, including in such zones, to permit its submarines to operate without running into obstacles. In the U.S. view, this activity is necessary for navigation and thus is permitted by the UN convention. Some other countries, including China, characterize this activity as “marine scientific research” which, in an exclusive economic zone, requires the consent of the

“The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone,” Marine Policy 29 (2005): 107–121. 19   Eric Donnelly, “The United States–China EP-3 Incident: Legality and Realpolitik,” Journal of Conflict and Security Law 9 (2004): 25–42. See also Margaret K. Lewis, Note, “An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident,” New York University Law Review 77 (2002): 1404. 20 See, e.g., Jonathan G. Odom, “The March 2009 Incident between United States and Chinese Vessels in the South China Sea: A Perspective from the United States,” in Governing Ocean Resources, supra note 17.



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coastal state. In December 2002, China passed a law requiring Chinese approval for all mapping and surveying activities in its economic zone.21 Experts in the American government emphasize that the United States does not prevent—but merely monitors—the military activities of Russia and other countries in America’s economic zone. Yet a number of countries claim that coastal states can prohibit at least some types of military activities in their zone. So this matter remains controversial, and U.S. failure to ratify the UN Convention on the Law of the Sea makes it difficult for it to present arguments based on the convention’s nuanced language.22 The conflicts over U.S. military activities near China’s coasts are likely to increase, as China’s navy and air force continue to expand—and as China pursues its claims to adjacent continental shelf resources that stretch beyond its economic zone. The United States has sought to convince China that—as China becomes more of a maritime naval power—it will be in China’s interest to protect the navigational freedoms of military ships. China has not yet accepted this view, however, despite its own reported military activities near the coasts of its neighbors. Thus far, its position seems to be: “Do as I say, not as I do.” In 1978, Deng Xiaoping suggested leaving China’s difficult island dispute with Japan “to the next generation, which will be wiser.”23 China has followed his advice regarding all its major law of the sea problems for over three decades. Now it is time for Deng’s successors to prove that they are indeed wiser by reaching an understanding on these dangerous issues before the confrontations they involve flare out of control.

21 This was an amendment to a law China enacted on June 18, 1996 entitled “Regulations of the People’s Republic of China on the Management of Foreign-Related Marine Scientific Research.” 22 See, inter alia, James Kraska, Maritime Power and the Law of the Sea: Expeditionary Operations in World Politics (Oxford and New York, 2011), 223–41 (general rules), 312ff. (on the East Asian nations). 23 “New Upsurge in Friendly Relations between China and Japan,” Beijing Review, Nov. 3, 1978, p. 16.

fifteen

Japan’s Anti-Piracy Law and UNCLOS Moritaka Hayashi

Introduction On June 19, 2009, the Japanese Diet (the national legislative body) adopted a Law on the Punishment of and the Measures against Acts of Piracy1 (hereinafter “Anti-Piracy Law” or “the Law”). Until this Law entered into force in July 2009, Japan had no domestic legal regime to deal specifically with acts of “piracy,” even though it had the duty to cooperate to the fullest possible extent in the repression of piracy under the terms of the 1958 Convention on the High Seas and the UN Convention on the Law of the Sea (hereinafter UNCLOS). The Law enables the Japanese government to implement the UNCLOS’s provisions for the first time after the lapse of more than ten years since Japan became a party to the ­Convention. After a brief review of the relevant Convention provisions (Section II), this paper attempts to elucidate the unique situation and the urgent need which the Government had confronted with for the enactment of the Law in a rather short period of time (Section III, 1). The paper then examines the main provisions of the Law (Section III, 2). The Law raised several legal and political issues of interpretation and application, particularly during the deliberations of its draft at the Diet. The paper discusses the major issues thus raised especially, where relevant, in the light of the provisions of the UNCLOS (Section IV), and it concludes with a few final remarks (Section V). UNCLOS Provisions on Piracy The UNCLOS defines piracy in Article 101 as consisting of any of the following acts: 1 Act No. 55 of 2009. Entered into force on July 24, 2009.

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(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). It should be noted first that in order for an act of violence to be considered as an act of piracy, it must be perpetrated “for private ends” by persons on board a private ship or aircraft, thus excluding those on board ships or aircraft used for government or other public purposes. However, such acts on a government ship or aircraft or a warship whose crew has mutinied and taken control of the ship or aircraft are defined as acts committed as though on board a private ship or aircraft (Art. 102). Secondly such acts must be done against another ship or aircraft on the high seas, or in the exclusive economic zone,2 or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. It is thus clear that the ship or aircraft victimized on the high seas must be a second one, separate from the pirate ship or aircraft. On the other hand, it appears that there is no such requirement in the case where an act of piracy is committed against a ship, aircraft, persons or property “in a place outside the jurisdiction of any State.” It is logical, in the context of Article 101, to interpret this last phrase to be a place somewhere other than the high seas. The Convention further provides that all States “shall cooperate to the fullest extent possible” in the repression of piracy on the high seas, in the exclusive economic zone, or in any other place outside the jurisdiction of any State (Arts. 100 and 58 (2)). And the Convention confirms the well-established principle of universal jurisdiction over acts of piracy, providing that every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the pirates’ control, and arrest the persons and seize the property on board; and also that the courts of such State may decide on the penalties to be imposed, and may determine the action to be taken with regard to the ships, aircraft or property (Art. 105). Such seizure, however, may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect (Art. 107). Such warship or aircraft

2 Provisions relating to piracy apply also to the exclusive economic zone through Article 58 (2).



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may board a ship on the high seas when there is reasonable ground for suspecting that the ship is engaged in piracy, and if necessary may conduct further inspection on board (Art. 110). It is therefore clear that while the Convention confirms the right of every State to arrest and punish any pirates on the basis of the principle of universal jurisdiction, it does not impose specific duties on any State to exercise the jurisdiction, beyond the general duty to cooperate in the repression of piracy. Although these provisions of the UNCLOS follow in principle those of the 1958 Convention on the High Seas, and are regarded as reflecting customary law, there have been few instances where States actually exercised their rights regarding pirates. It also appears that not many States have adopted legislative measures applicable specifically to acts of piracy.3 Japan’s Anti-Piracy Law With respect to Japan, until the new law was enacted in 2009 there had been no crime of “piracy” as such in its domestic law, and no legal enforcement measures could be taken against violent acts which would fall under acts of piracy as defined by international law. The only possibility under its domestic law was to deal with them as criminal offenses, such as robbery and murder, as defined in the Japanese Penal Code, in its territory or on board a ship registered in Japan outside its territorial sea. Background Several facts and incidents in recent years may be pointed to as contributing to the enactment of the Anti-Piracy Law. First to be stressed is the vital importance of sea transportation and its security for the economy of the nation: Japan depends for its foreign trade overwhelmingly on sea transportation, which accounted for 973,000 million tons, or 99.7 per cent of the total, and 71.2 per cent in value of

3 The concern was expressed by the Security Council in resolution 1918 (2010), adopted on April 27, 2010, that the domestic law of a number of States lacks provisions criminalizing piracy and/or procedural provisions for effective criminal prosecution of suspected pirates. Those States which have criminal law provisions in domestic law against piracy, or against similar crimes without calling them as piracy, include Australia (Crimes Act 1914 [Act No. 12 of 1914 as amended]), France (Penal Code, Art. 113), Germany (Penal Code, Art. 316), the Netherlands (Penal Code, Arts. 381–382), Russia (Penal Code, Art. 227), the United Kingdom (Piracy Act 1838 and the Merchant Shipping and Maritime Security Act 1997), and the United States (US Code, Title 18, Ch. 81, Sects. 1651–1661). See Masataka Okano, “International Efforts for the Control of Piracy,” Kokusai Mondai (International Affairs), 583 (July–August 2009): 36–37 (in Japanese). For more recent developments, see note 28 below.

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exports and imports in 2008.4 Second, there have been a great number of incidents of armed robbery and piracy in South East Asian waters, particularly in the Malacca and Singapore Straits, including several serious cases involving Japanese ships or “ships with Japanese interests.”5 Third, in more recent years, violent cases in the Gulf of Aden and offshore of Somalia have increased sharply. All these areas are part of sea-lanes of vital importance for Japan. The incidence of such cases in these and other regions are summarized in Table 1.6 In the Gulf of Aden, offshore areas of Somalia, and the Red Sea, it is estimated that in recent years more than 20,000 ships have passed each year. This number includes approximately 2,000 ships with Japanese interests. Several ships with Japanese interests were attacked, including a chemical tanker in 2007 and an oil tanker in 2008, in the area off the coasts of Somalia. Several urgent appeals were made, particularly in 2008 and early 2009, to the Government of Japan to take specific measures, including the deployment of Maritime Self-Defense Force ships and the enactment of new legislation, to combat piracy and armed robbery at sea in a more efficient manner. These appeals included those by the Japanese Shipowners’ Association and the All Japan Seamen’s Union, as well as other non-governmental organizations like the Nippon Foundation and the Ocean Policy Research Foundation. These two foundations jointly organized emergency symposia in Tokyo to which several influential lawmakers were also invited. It is also important to point out that, prior to these developments, Japan’s Basic Act on Ocean Policy, adopted in April 2007, had stated that it is essential to secure the safety of maritime transport and to maintain order in the oceans, and that the Government of Japan “shall take necessary measures to secure the Table 1. Incidence of Piracy and Armed Robbery at Sea Year South East Asia Africa as a whole Offshore of Somalia, Gulf of Aden and Red Sea Whole world*

2003

2004

2005

2006

2007

2008

2009

2010

2011

170 93 21

158 73 10

102 80 45

83 61 20

70 120 44

54 189 111

46 266 218

70 259 219

80 293 237

445 (12)

329 (7)

276 (9)

239 (8)

263 (10)

293 (12)

410 (5)

445 (15)

439 (11)

* Number in brackets shows the number of victimized ships with Japanese interests.

4 Japanese Shipowners’ Association, The Current State of Japanese Shipping (in Japanese), available at http://www.jsanet.or.jp/data/pdf/genjo2010.pdf (accessed August 10, 2010). 5 For the meaning of “ships with Japanese interests,” see Section IV, B below. 6 Prepared on the basis of information from the International Maritime Bureau and the Foreign Ministry of Japan. See http://www.mofa.go.jp/mofaj/gaiko/pirate/index.html.



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peace and safety of the nation as well as to secure the maritime safety and public order.”7 Moreover, when approving the Act, the Committees on Land and Transportation of both the House of Representatives and the House of Councilors adopted accompanying resolutions of nearly the same contents, stressing the need for an early establishment of a domestic legal system which would enable the implementation of the UNCLOS and other international commitments, in view of the fact that national legislation for incorporating and implementing such international instruments was not yet adequate.8 Furthermore, in accordance with this Act, the Government of Japan drew up the Basic Plan on Ocean Policy in March 2008,9 in which the Government stressed explicitly the need to take appropriate measures to suppress acts of piracy “by working out a new legal framework in accordance with international law, not only for Japan’s national interests . . . but also from the point of view of responding to the needs of the international community.” Meanwhile, the international community has also started to show serious concern with the situation off the coast of Somalia. In particular the UN Security Council adopted four resolutions on the situation in Somalia in 2008, urging States inter alia to take necessary measures to combat piracy and armed robbery in the area, including the deployment of naval vessels and military aircraft for that purpose.10 The first action that the Prime Minister of Japan took to respond to these urgent appeals from both inside and outside the country was to order, under the Law on the Self-Defense Forces, the “Maritime Security Operation” on March 13, 2009. In this operation, two naval escort ships were dispatched to the area off Somalia and the Gulf of Aden. Four Coast Guard officials accompanied each of these ships to perform judicial police functions on board since no such functions are granted to the Self-Defense Forces. The naval vessels started their operations in the area on March 30, 2009, joined in May 2009 by two P-3C surveillance aircraft, with a base established in Djibouti under bilateral arrangements. However, these measures, all taken under the law existing at that time, had some serious limitations: first, the operation was authorized to protect only Japanese flagged    7 Basic Act on Ocean Policy, Art. 21(1).    8 House of Representatives Committee on Land and Transport, Resolution of April 3, 2007 entitled, “On the Building of a New Ocean State,” para. 3; House of Councilors Committee on Land and Transport, Resolution of April 19, 2007 entitled “Resolution Accompanying the Draft Basic Act on Ocean Policy.”    9 For the Basic Act and the Basic Plan on Ocean Policy, see Moritaka Hayashi, “The Rebirth of Japan as an Ocean State,” paper delivered at the Law of the Sea Institute-Inha University International Conference on the Law of the Sea and Ocean Governance, November 4–5, 2008, Berkeley, California. 10 UN Security Council Resolutions 1816, 1838, 1846 and 1851. See Tullio Treves, “Piracy, Law of the Sea, and Use of Force: Developments Off the Coast of Somalia,” European Journal of International Law 20 (2009): 399–414, doi: 10.1093/ejil/chp027.

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ships and the ships with Japanese interests, and second, no domestic legal basis had been established to prosecute pirates even if they were arrested. In fact, some ships with no connection to Japan requested assistance, but what the Japanese escort ships on the high seas could do was merely try to discourage the approach by potential pirate ships without resort to forceful means, e.g., by using the Long Range Acoustic Device (LRAD) system, which emits highly directional acoustic arrays against the target. Key Provisions of the Law Referring to the duty to cooperate in the repression of piracy under the UNCLOS, the new Anti-Piracy Law states that the purpose of the Law is “to provide necessary legal grounds for appropriate and effective response by Japan to acts of piracy, and thereby maintain public safety and order at sea.”11 Article 2 of the Law defines “acts of piracy” as acts falling under any of the following seven types of actions committed for private ends on the high seas (including on the exclusive economic zones), or the territorial sea or internal waters of Japan, by crew or other persons on board a ship, except warships and other government ships: (i) seizing another ship in navigation or taking control of the operation of another ship by rendering persons irresistible through assault, intimidation or other means; (ii) robbing property on board another ship in navigation or obtaining, or causing other persons to obtain, an unlawful profit by rendering persons irresistible through assault, intimidation or other means; (iii) kidnapping a person on board another ship in navigation for the purpose of taking the person hostage to demand a third person to deliver any property, to take other unobligated action, or not to exercise that person’s right; (iv) demanding a third person to deliver any property, to take other unobligated action, or not to exercise that person’s right, by taking a person, on board a robbed ship or a ship whose control is taken or kidnapped on board another ship in navigation, hostage; (v) breaking into or damaging another ship in navigation for the purpose of committing the acts of piracy as referred to in any of the preceding items; (vi) operating a ship and approaching in close proximity of, beleaguering, or obstructing the passage of, another ship in navigation for the purpose of committing the acts of piracy as referred to in any of items (i) to (iv) above; and (vii) preparing weapons and operating a ship for the purpose of committing the acts of piracy as referred to in any of items (i) to (iv) above.

11 Anti-Piracy Law, Art. 1.



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It should be noted that out of the seven variants mentioned above, the first five may be interpreted as involving one or more of “acts of violence,” “detention,” or “act of depredation,” defined in Article 101 (a) of the UNCLOS. Items (vi) and (vii), however, appear to go beyond the provisions of the Convention. The Law then provides for the punishment as follows of criminals who have committed acts of piracy: • Those who commit the crimes as defined in items (i) to (iv) above shall be punished by imprisonment with work either for life or for a definite term of not less than five years. Those who attempt to commit the crimes defined in items (i) to (iii) shall also be punished.12 • Those who commit such crimes and cause another person to suffer injury shall be punished by imprisonment with work for life or for a definite term of not less than six years, and in the case of causing death, the death penalty or imprisonment with work for life shall be imposed. Those who attempt to commit such crimes shall also be punished.13 • Those who commit the crimes as defined in items (v) or (vi) above shall be punished by imprisonment with work for not less than five years.14 • Those who commit the crimes as defined in item (vii) above shall be punished by imprisonment with work for not more than three years.15 With regard to enforcement at sea, the Law empowers the Japan Coast Guard as the primary responsible agency.16 However, “in the case where there is special necessity,” which is interpreted as the case where it is not possible or extremely difficult for the Coast Guard to deal with,17 the Self-Defense Forces may be ordered to send units to take measures against acts of piracy18 in what is called the “Anti-Piracy Response Operations.” In such a case, the Minister of Defense, after consultation with the heads of relevant administrative agencies, must obtain the approval of the Prime Minister, provided that when an urgent action is needed, the Defense Minister is required only to report a summary of measures to be taken to the Prime Minister.19

12 Ibid., Art. 3 (1) and (2). 13 Ibid., Art. 4 (1) and (2). 14 Ibid., Art. 3 (3). 15 Ibid., Art. 3 (4). 16 Ibid., Art. 5 (1). 17 Hiroshi Sasamoto and Naoko Takafuji, “The Legislative Arrangements for Anti-Piracy Measures off the Coasts of Somalia and the Gulf of Aden,” Rippo to Chosa (Legislation and Research), 295 (August 2009): 20 (in Japanese). 18 Anti-Piracy Law, Art. 7 (1). 19 Ibid., Art. 7 (2).

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Major Issues in the Application and Interpretation of the Law During the relatively short period of time since the entry into force of the Law, it does not appear that the Law has been faced with any major problems in its interpretation and actual implementation. Therefore, the issues discussed below are basically theoretical and are mostly those raised during the deliberations on its draft in the two Houses of the Diet. Definition of Acts of Piracy From the summaries of the relevant provisions of the Anti-Piracy Law and the UNCLOS, it is apparent that there are several differences between the two instruments. The question may be asked if the provisions of the Law that are different from those of the Convention are consistent with the letters and purposes of the latter. First, while the Convention defines an act of piracy as occurring only on the high seas or in a place outside the jurisdiction of any State, the Law includes such act committed in the territorial sea and internal waters of Japan as well. This is a major difference, one that may cause confusions in the use of the term “acts of piracy.” Acts similar to piracy in the territorial sea and internal waters are normally called “armed robbery” or “violence at sea.” There were specific reasons, however, for Japanese legislators to deliberately use the same term for such acts in its territorial sea and internal waters. A government representative explained that since the Law provides for penalties to be applied to acts of piracy on the high seas which would be much heavier than those normally applied to similar crimes under the Penal Code within the territorial sea, and because the rules relating to the use of weapons within the territorial sea are different from those on the high seas, an unbalance would result in law enforcement between the area inside and the area outside the outer limit of the territorial sea.20 It is certainly convenient to use the same term for all sea areas for describing and punishing piratical acts from the point of view of domestic law. It is however not consistent from the international point of view, and clearly inconsistent with the traditional usage of the term in international law. It is therefore not advisable for other States to follow the same practice as Japan regarding this point. There would certainly be legal techniques to avoid the same terminology and yet enable the application of enforcement measures and penalties which are equal in substance for both inside and outside the territorial sea. On the other hand, the use of the term “piracy” for covering acts both outside and inside the territorial sea would certainly not be contrary to the purpose of the UNCLOS, which allows

20 Official Records of the Committee on Foreign Relations and Defense of the House of Councilors, 171st Session of the Diet, June 4, 2009, no. 16, p. 22 (in Japanese).



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the coastal State to exercise criminal jurisdiction over acts of violence within its territorial sea by using whatever name it prefers for a particular crime. Second, while the UNCLOS includes in the definition of piracy acts committed by using aircraft, no reference is made to such acts in the Anti-Piracy Law. The reasons for this, as explained by a government representative, were that there had been no actual instance of such act, and that it was not conceivable or technically difficult at this stage for a private person to use a helicopter to land on a ship, which would certainly try to take evasive action.21 It may not be totally unconceivable, however, that a helicopter should conduct an act of “breaking into or damaging another ship in navigation for the purpose of committing the acts of piracy,” as defined in Article 2 (v), e.g., by attacking the ship from the air before landing on it. Third, the Law excludes the reference to acts “against a ship, aircraft, persons or property in a place outside the jurisdiction of any State,” as stipulated in UNCLOS Art. 101 (a) (ii). This is done presumably because of the somewhat unrealistic nature today of the case applicable to such situation, which is usually understood as typically including islands which are not claimed by any State. It may be pointed out, however, that the provision could apply to an illegal act of violence, etc. against a ship, aircraft, persons or property in the coastal areas of Antarctica on which no State has claimed territorial sovereignty. Fourth, while the Convention defines the core acts of piracy succinctly as “any illegal acts of violence or detention, or any act of depredation . . .,” the Law describes five specific types of acts in Article 2, items (i) to (v), as acts of piracy. The wording of these provisions is different from that of the Convention. As pointed above, however, these provisions of the Law are clearly the elaboration of those of the Convention and no problem of inconsistency would arise between the two. Fifth, Article 2 (vi) of the Law includes in acts of piracy an act of “operating a ship and approaching in close proximity of, beleaguering or obstructing the passage of another ship in navigation for the purpose of committing the acts of piracy.” The UNCLOS has no such provision, and including such acts in acts of piracy may not be consistent with the Convention. However, as far as it is reasonably clear from the circumstances that the ship in question is in navigation “for the purpose of committing the acts of piracy,” it would not necessarily be going beyond the purpose of the Convention, which imposes on all States the obligation to cooperate in the repression of acts of piracy to the fullest extent possible, under Article 100.

21 Official Records of the Special Committee on Anti-Piracy, the Suppression of International Terrorism and Japan’s Cooperation and Assistance Activities of the House of Representatives, 171st Session of the Diet, April 22, 2009, no. 6, p. 27 (in Japanese).

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Sixth, Article 2 (vii) of the Law includes in acts of piracy the acts of “preparing weapons and operating a ship for the purpose of committing the acts of piracy.” No such provision is found in the UNCLOS. Here again, however, the provision would be justified under Article 100, as far as it is reasonably clear that the operation of the ship in question is to be devoted to committing acts of piracy. Lastly, the Law makes no reference to “any act of voluntary participation” in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft as stipulated in Art. 101 (b) of the Convention. It is assumed that the provisions of the Penal Code of Japan, particularly Articles 60 and 62 relating to conspiracy or assisting in a crime, would apply in such a case. Enforcement Powers of the Coast Guard and the Self-Defense Forces As discussed above, the role of enforcing the Law is given primarily to the Coast Guard, which has the general function of acting as maritime police. In cases where there is “special necessity,” however, the Self-Defense Forces may also be involved in law enforcement activities. In fact, the first anti-piracy operation under the new Law was, and still is, the deployment of the units of the Self-Defense Forces consisting of two escort ships and two surveillance aircraft in the areas off the coasts of Somalia and the Gulf of Aden. The main reasons for not sending the Coast Guard ships, according to the Government, were (1) the great distance from Japan to the areas in question, which prevents the Coast Guard having few large vessels from being involved in long-term missions, (2) the kinds of heavy weapons used by pirates there including rocket launchers, and (3) the fact that other major countries have deployed naval vessels, with which the Self-Defense Force ships are better equipped to coordinate their activities.22 In fact, when the Government started to deploy the Maritime Self-Defense Force ships to the areas off Somalia and the Gulf of Aden in March 2009, it was before the Anti-Piracy Law was enacted; the legal basis of their deployment was the “Maritime Security Operations” provision of Article 82 of the Law on the SelfDefense Forces. Such operations were authorized to protect, however, only the life and property of Japanese nationals or ships “with Japanese interests,” which are normally understood by the Government as (1) ships registered in Japan, (2) foreign-flagged ships having Japanese on board, and (3) foreign-flagged ships operated by Japanese companies or those carrying Japanese cargoes which are considered to play important roles for the stable economic activities of Japanese people.23 Such a restriction would not be in conformity with the object and

22 Official Records of the Plenary Meetings of the House of Representatives, 171st Session of the Diet, April 14, 2009, no. 2, p. 5 (in Japanese). 23 Official Records of the Special Committee on Anti-Piracy, the Suppression of International Terrorism and Japan’s Cooperation and Assistance Activities of the House of Representatives, 171st Session of the Diet, April 21, 2009, no. 4, pp. 18–19 (in Japanese).



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­ urpose of Article 100 of the UNCLOS, which obligates all States to cooperate in p the repression of acts of piracy in general. Under the Anti-Piracy Law, when the Maritime Self-Defense Force is deployed for the “Anti-Piracy Response Operations,” Article 82 of the Law on the Self-Defense Forces would not apply,24 and thus no such restrictions apply as to the ships to be protected. Upon the entry into force of the Anti-Piracy Law on 24 July 2009, the units of the Maritime SelfDefense Force which had been deployed continued their activities in the area by just switching the legal basis of their operation to the Anti-Piracy Response Operations. This switch thus enabled them to protect ships regardless of their nationality and to take cooperative measures with government (military) ships of other countries deployed in the area. Use of Weapons The use of weapons for law enforcement purposes is a highly sensitive issue in Japanese law, and the conditions of their use are carefully prescribed by law. Since Coast Guard officials who are engaged in anti-piracy action are performing the functions of police activities, they may use their weapons as authorized normally under the “Law on the Execution of Duties of Police Officials” in such cases as arresting criminals or exercising the right of self-defense. In addition, under the Anti-Piracy Law, Coast Guard officials may use weapons in the course of deterring acts of piracy when a suspicious ship is approaching, beleaguering or obstructing the passage of another ship in navigation for the purpose of committing an act of piracy, as provided for in Article 2 (vi). This is so on the condition that the ship disobeys other measures to deter and continues the acts of piracy, and that there is probable cause to believe in the lack of any other appropriate means to stop the navigation of that ship. The use of weapons is limited to the extent reasonably necessary according to the situation.25 These provisions apply, mutatis mutandis, to the execution of the duties of the officials of the Self-Defense Forces which are ordered to take the Anti-Piracy Response Operations.26 In summary, the forces of the Coast Guard and the Self-Defense Forces may use weapons in a case of self-defense, or where there is probable cause to believe in the lack of any other means to stop acts or attempted acts of piracy, and in any case to the extent reasonably necessary. Arrest of Suspects and Other Judicial Procedures The Anti-Piracy Law confirms, in Article 9, the application of Japanese law with regard to the execution of duties of Japanese public officials related to measures

24 Anti-Piracy Law, Art. 7 (2). 25 Ibid., Art. 6. 26 Ibid., Art. 8.

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against acts of piracy. In the case of the Self-Defense Force ships deployed off Somalia and in the Gulf of Aden, four Coast Guard officials are placed on board each of these vessels in order to perform judicial police functions, since no such function is given to Self-Defense Force officials. In the case of serious crimes such as murder of a Japanese national on a Japanese ship, the Government intends to apprehend and escort the suspect to Japan through Djibouti, with which Japan concluded an agreement on April 3, 2009 regarding the status of the Self-Defense Forces and the various facilities to be extended in using its territories for escorting suspects to Japan. As to the suspects of other crimes, they would be handed over to the authorities of a near-by country depending on the degree of injury or damage suffered.27 The Government has been negotiating with other States in the region for their acceptance and prosecution of suspects in appropriate cases. Final Remarks Although the principal concern which had prompted the Japanese law-makers to enact the Anti-Piracy Law was the serious situation in the Gulf of Aden and the areas off the coast of Somalia, the Law is formulated as a general legal instrument applicable to any piratical acts on the high seas, as well as those in the territorial sea of Japan, whatever the nationality of the ships victimized or being beleaguered by pirates. It appears that the Law is one of the first substantive pieces of legislation enacted for the domestic implementation of the relevant provision of the UNCLOS to be adopted by a party thereto since its entry into force in 1994.28 The new Law has made it possible for Japan to be better prepared to act in the suppression of acts of piracy wherever they occur, except in the territorial sea of other countries. As such acts become more and more violent and organized, it is essential for concerned States to cooperate and better coordinate their

27 Official Records of the Special Committee on Anti-Piracy, the Suppression of International Terrorism and Japan’s Cooperation and Assistance Activities of the House of Representatives, 171st Session of the Diet, April 15, 2009, no. 3, p. 8 (in Japanese). See also Kazuhiro Nakatani, “The Law on the Punishment of and Response to Acts of Piracy,” Jurist, No. 1385 (September 15, 2009): 67–68 (in Japanese). For the exchange of notes between Djibouti and Japan, see http://www.mofa.go.jp/region/africa/djibouti/note0904-e.pdf (English) and http://www.mofa.go.jp/region/africa/djibouti/note0904-f.pdf (French). 28 See Okano, supra note 3, p. 37. More recently, Kenya enacted the Merchant Shipping Act of 2009, in Part XVI of which several provisions are incorporated concerning acts of piracy. For the text, see http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/KEN_merchant_shipping_act.pdf. It was also reported by the Prime Minister of Tanzania in his speech at the UN General Assembly on September 27, 2010 that his country had recently amended its criminal code in order to enable prosecution of suspected pirates under universal jurisdiction. See http://gadebate.un.org/ View/SpeechView/tabid/85/smid/411/ArticleID/217/reftab/233/t/United-Republic-ofTanzania/Default.aspx.



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a­ nti-piracy measures with each other. The new Law enables Japan to join in such international cooperation in a more active and systematic manner.29 The Law has some elements which are not necessarily a model to be followed by other States. It is hoped, however, that the Law in general will become a good precedent and prompt other States to take similar legislative measures.

29 For further related discussion of the status of coordination, see Suk Kyoon Kim and Seokwoo Lee, Chapter 16 of this volume.

Sixteen

The Legal Framework of Maritime Security in East Asia: A Comparative View Suk Kyoon Kim & Seokwoo Lee1

Forward In the post-Cold War era, international disputes have taken on a new and distinctive character. During the Cold War, an ideological confrontation between the United States and the Soviet Union prevailed, while conventional threats to security occurred in a context in which the availability of nuclear weapons maintained a balance of power. In the post-Cold War era, while conventional security threats have decreased, they have been replaced by nonconventional threats of regional, ethnic, religious and resource disputes, terrorism and piracy. Another trend to note is that the focus of disputes during the Cold War era, which mostly occurred on land, has begun to shift to the seas. Various aspects of maritime disputes, including maritime resources, sea lanes of communication, maritime delimitation, and maritime security, which were mainly in the background during the Cold War era, are now beginning to be manifested in overt conflicts, with low-intensity maritime disputes appearing with increased frequency.2 With inter-state conflicts growing particularly more acute in Northeast Asia regarding important interests in the ocean, e.g., maritime territorial sovereignty and maritime resources, there is the possibility of these conflicts turning into high-intensity disputes. Together with these issues, non-conventional maritime security threats, especially the maritime terrorism and piracy that has been on the rise since the 9/11 terrorist attack, are becoming significant threats to the international trade order and to free navigation. To deal with such non-conventional maritime security threats, the international community, under a US-led initiative in its capacity 1  This paper is solely the opinion of the authors and does not represent in any way the position of the Korean Coast Guard. 2 See Suk Kyoon Kim, “Understanding Maritime Disputes in Northeast Asia: Issues and Nature,” International Journal of Marine and Coastal Law, 23 (2008): 214–15.

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as the world’s largest economy and status as a superpower, is strengthening the existing international legal regime and concluding new agreements to strengthen worldwide cooperation for their implementation. Unfortunately, the United Nations Convention on the Law of the Sea (UNCLOS), which provides the basic framework for this new maritime order, is now found to have many imperfections and limits in supporting the international efforts to respond to the needs of maritime security. Its provision on piracy in particular is much too limited and thus divorced from reality, and it contains no provisions regulating maritime terrorism. Further, while there are increasing concerns over the proliferation of weapons of mass destruction (WMD) through the seas, it is difficult to gain agreement for revision of the conventional international legal framework (embodied in UNCLOS) that emphasizes freedom of navigation so as to respond effectively to these newly arising threats to security. This has led to the international community to either form new maritime security regimes3 apart from UNCLOS which has been driven by the US following the events of 9/11, or else to strengthen existing regimes. With such changes in international maritime security and the emergence of new threats, it became necessary for the three northeast Asian states of Korea, China and Japan, whose national economies and welfare are overwhelmingly dependent upon seaborne trade, to find in their legal systems ways that would support their participation in a new maritime security regime and their domestic implementation. This study compares and evaluates how the global maritime security regimes for the confrontation of piracy, port and vessel security, and maritime terrorism are being accommodated by the legal systems in Korea, China and Japan, as well as how the legal groundwork for the implementation of such maritime security regimes is being laid out. Piracy Current Occurrences of Piracy and Counter-Efforts Despite continued vigorous efforts of the international community to eradicate piracy, such acts and the harm it has caused has been on the rise. The costs incurred are colossal. As one study shows, direct costs, i.e. the ransom demand for kidnapped sailors and vessels, insurance premiums, detour costs, procurement of defense equipment and the operation of the navy, in addition to indirect

3 The term “maritime security” strongly connotes military involvement, in contrast to the term “maritime safety” which focuses on the equipment, qualifications and standards for the safety of navigation of ship and related workers. This paper uses the term “maritime security” in order to include non-military measures against maritime threats.



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costs, i.e. losses in trade by neighboring states due to avoiding dangerous regions, as well as flight of foreign investment, add up to 7 to 12 billion USD annually.4 Together with such economic loss, piracy is becoming a grave threat to seaborne trade and to the right of humankind to freely make use of the oceans.5 The most distinctive feature of piracy is the recent move of such activities from Southeast Asian waters near the Malacca Strait to the Gulf of Aden and near off the coast of Somalia. Prior to mid-2000’s, the Malacca Strait and Southeast Asian waters were the most vulnerable to pirate attacks; recently, however, piracy in the area has significantly decreased while the coast of Somalia and the African waters including the Gulf of Aden has emerged as the new center for such activities. This trend is evident by the fact that piracy cases in the Malacca Strait (including the Singapore Strait) numbered 52 between 2006 and 2010, while off the coast of Somalia and the Gulf of Aden numbered 564 around the same time.6 The decrease of piracy in Southeast Asian waters can be credited to the continued anti-piracy efforts of the littoral states. The coastal states of Malaysia, Indonesia and Singapore surrounding the Malacca Strait have endeavored to strengthen judicial assistance and cooperation such as through joint periodic naval and air force patrol and permitting foreign vessel entry into territorial waters when pursuing pirates. Other countries within the area, especially Japan and Korea, concluded the Regional Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCCAP), which became effective in 2006, for the establishment of a multilateral anti-piracy regime and to provide equipment such as guard boats, as well as human and material resources for the eradication of piracy including training in the execution of maritime laws. ReCCAP establishes an Information Sharing Center, regulates cooperation in the arrest and extradition of pirates, and provides support and cooperation for anti-piracy capacity building. This agreement is also significant in that, unlike the declaratory nature of previous anti-piracy efforts, it provides for a binding multinational cooperative regime. Korea, China and Japan, three northeast Asian nations that are wholly dependent on sea lanes of communication for import-export commodities and energy transport, have been actively involved in endeavoring to secure the safety of the sea lanes of communication from pirates. The three states have also dispatched military vessels to actively participate in the international efforts to fight

4 Anna Bodwen, The Economic Cost of Maritime Piracy 2 (One Earth Future, Working Paper, 2010). 5 On which subject generally, see discussion of piracy developments and implications for ocean law in Chapters by President Jesus, by Judge Tuerk and by Professor Hayashi, in this book. 6 See International Maritime Bureau, Piracy and Armed Robbery against Ships, Annual Report 2010.

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piracy in Somalia and to protect their vessels passing through Somalia and the Gulf of Aden. Unfortunately, there are legal complexities, according to the flag state of a pirate vessel seized or nationality of the crew, in regard to trial and punishment of arrested pirates. There is today increasingly salient discussion of the desirability of the creation of special courts7 or crew in their exercise of jurisdiction in transferring and trying the arrested pirates, as was evident in the transfer and trial of the pirates who hijacked the Malta-registered chemical tanker Samho Jewelry on January 15, 2010 in Somali waters. Domestic Legislations International Law Provisions General regulations regarding piracy are provided in the UNCLOS Article 101 which defines piracy as consisting of: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; [as well as] (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.

Piracy is a universal crime that seriously undermines the rights of all states to freely and peacefully use the oceans; therefore, any state seizing a pirate ship may exercise jurisdiction over it (Article 105). However, such seizures may only be carried out by military vessels or those on government service (Article 106). With Somali pirates running rampant, the international community has been striving to fight piracy with the UN playing a central role. Through a sequence of Security Council Resolutions—1816 (June 2008), 1838 (Oct. 2008), 1846 (Dec. 2008), 1851 (Dec. 2008) and 1897 (Nov. 2009)—the UN has been urging the participation of the international community and justifying measures taken against Somali pirates under international law. More specifically, it has called for: i) deployment of naval vessels and military aircrafts, ii) conclusion of agreements to facilitate investigation and prosecution of pirates, and iii) authorization of nations entering the territorial waters in pursuit of pirates.

7 As contended for, e.g., by United Nations special adviser on piracy Mr. Jack Llang. See http://www.un.org/apps/news/story.asp?NewsID=37378&Cr=piracy&Cr1.



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Korea Acts of piracy are punishable under the Criminal Act and Punishment for Damaging Ships and Marine Structures Act (hereinafter “Punishment for Damage Act”). It defines piracy in Article 340 as the forcible seizure of a ship or another’s property after intruding upon a ship through the threat of collective force on the sea and includes that those having killed, caused injury or raped a person is punishable under the crime of maritime robbery. At the same time, acts of piracy in a broader sense, threatening the safety of maritime infrastructures on the continental shelf or on Korean vessels outside her territories, are punishable under the Punishment for Damage Act. Because Korea, unlike the United States or Japan, does not have independent regulations punishing acts of piracy, issues were raised in the process of transferring and trying the Samho Jewelry pirates, seized in a successful capture by a Korean naval vessel; and there were calls for strengthening the legal grounds for the anti-piracy activities of the navy in the Gulf of Aden. To be more specific, because of the gap between the elements of maritime robbery provided for in the Criminal Act and the UNCLOS and its lack of clarity, there is a potential for confusion in the process of dealing with piracy as it is inevitably intertwined with international issues. Issues that can be posited from the differing elements constituting the act of piracy under the UNCLOS and maritime robbery under the Criminal Act are as follows: • First, the UNCLOS limits the purpose of piracy to “private ends,” while no such restrictions exist under Korea’s Criminal Act; • Second, acts of piracy under the UNCLOS must meet the “two ship” rule where one pirate ship commits an act against another ship, while no such rule exists under the Criminal Act; • Third, the UNCLOS does not indicate whether the act of piracy must be committed by more than one person; thus it appears that even an act by one person can meet the elements necessary for the crime of piracy. The Criminal Act, however, requires a “collective force,” which may be difficult to establish in the case of an act committed by a single person; • Fourth, the UNCLOS includes acts of voluntary participation or of inciting or intentionally facilitating piracy while no such rule exists under the Criminal Act; • Fifth, while the UNCLOS defines the location as “On the high seas, or in any other place outside the jurisdiction of any State,” the Criminal Act only states “in the sea” thereby having no such limitation. While the UNCLOS limits the location to the high seas and places beyond the jurisdiction of any state, the International Maritime Organization (IMO) describes crimes committed within the jurisdiction of a state as sea robbery, thereby differentiating the two.

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As mentioned earlier, in the process of transferring and trying the Samho Jewelry pirates, several issues were raised owing to the gap between domestic and international law, as well as the limitations of the domestic justice system, Although the vessel was a Maltese flagged vessel, there were no issues regarding Korea’s exercise of jurisdiction pursuant to the universal jurisdiction provision of UNCLOS Article 105.8 Rather, in the process of the trial, lawfulness was questioned regarding i) the arrest and transfer of the pirates by the navy, ii) request for the warrant after the arrest and transfer, and iii) the assistance of legal counsel. First, with regard to the arrest of the pirates by the navy, Criminal Procedure Act, Article 213 (Delivery of Arrested Flagrant Offender) was an issue that was raised. It provides in paragraph 1 that “In cases where a person other than a public prosecutor or judicial police official arrests a flagrant offender, he shall immediately turn over the offender to a public prosecutor or judicial police official.” Thus, there was much debate as to whether the 9 days it took for the pirates to be handed over by the navy—who were not judicial police officials—to the investigative institutions could be considered as being “immediate.” Regarding this issue, the Busan District Court, in recognizing these circumstances such as the refusal of neighboring states to receive the pirates and the difficulty in finding flights for their transfer, held that “the nine days it took for the Cheonghae Unit to deliver the Defendants to Korea was inevitable due to spatial and material limitations” and therefore falls within the definition of “immediately.”9 The second issue raised was whether a warrant was requested within the time period provided in Criminal Procedure Act, Article 203–2(5) stating that where a flagrant offender arrested is sought to be detained, a warrant of detention must be requested within 48 hours. On this point, the Busan District Court cited Article 200–2(5) in holding that while the provision applies to situations in which a public prosecutor or judicial police official arrests a flagrant offender, and in special cases where the transfer to the investigative institutions following the arrest exceeds 48 hours as was in this case, it would be proper to view the above 48 hours as starting when the investigative institution receives the flagrant offender.10 The third issue raised was the point at which the suspects should have received legal assistance. The Busan District Court held that the moment of receipt of the flagrant offender by investigative institution is when the right to legal counsel should be guaranteed.11

8 UNCLOS Art. 105 states, “. . . [E]very State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, . . .” 9 2011 Go-Hap 93 Pangyeolmun [Verdict] (Busan Dist. Ct. 2011). 10 Id. 11  Id.



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While decisions of the court regarding the above points were generally reasonable, there continue to be points raised regarding the difficulty of equating the arrests made by the navy operating in the Somali waters as being executed by “private individuals,” considering the fact that the arrest of pirates is an exercise of public power, premised on criminal punishment. With regard to the “immediacy” provision, there also needs to be modifications considering potential factors that might lead to a delay such as the political situation of adjacent states, bad weather conditions, the arrest of other pirates afterwards and so on.12 On the other hand, there are concerns that further breaking down the legal provisions by higher degree of specification would prove undesirable because the arrest and treatment of suspects are inevitably unpredictable and unsteady as it is premised upon military operations against heavily armed pirates. In spite of the forceful anti-piracy efforts of the international community, considering the continued increase of piracy in Somali waters, the possibility of future arrest and transfer of pirates to Korea cannot be ruled out. Further participation of the navy in international anti-piracy efforts to secure the safety of the sea lanes of communication is expected, and the same issues raised in the justice system in the Samho Jewelry piracy case can resurface. Thus, there needs to be a modification of the domestic law at least to prevent future controversies. In this regard the following changes should be made: first, amendments should be included in the relevant provisions of the Criminal Act, Criminal Procedure Act, Punishment for Damaging Ships and Marine Structures Act, etc.; second, the Special Act regarding Judicial Actions in the Anti-piracy Operations of the Navy in Somali Waters should be enacted; and iii) a separate regulation in the judicial system for the purpose eliminating piracy should be made. The Special Act regarding Judicial Actions in the Anti-piracy Operations of the Navy in Somali Waters was proposed as a bill in November of 2009, but there have not been any other significant developments.13 Similar to that of Japan, a separate regulation regarding the handling of pirates and their arrests can balance out the piracy provisions in UNCLOS and thus help settle the gap between domestic and international legal provisions. While it can also resolve the limitations exposed in the capture and trial process of the pirates, there still remains the burden of

12 South Regional Headquarters of the Korea Coast Guard, White Paper on the Investigation of Samho Jewelry Piracy Case 292 (2011). 13 “Special Act regarding Judicial Actions in the Anti-piracy Operations of the Navy in Somali Waters,” a bill proposed by 12 members of the National Assembly including Jin-bok Lee on November 17, 2009, provides for the captain’s exercise of the right of self-defense based on rules of engagement, the captain’s duty as a judicial police officer regarding acts of piracy in Somali waters, performance of the functions of a judicial police officer upon the captain’s designation, arrest without warrant for flagrant offenders for acts of piracy, immediate issuance of warrant upon arrest (including electronic documents), etc.

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new legislation. Although the gravity of the issue of piracy was raised together with the need for separate legislation, the counterargument that the current legal system is sufficient for judicial action was also given much weight. China As China and its vessels have been incurring much damage in Somali waters, it has begun to actively participate in the international efforts to fight piracy by dispatching a fleet of two destroyers and a supplier; but China’s domestic justice system regarding piracy is still very much lacking. In the Chinese judicial system, there are no provisions of law regarding “pirates”; rather the punishment for acts of piracy are based on Articles 8, 9 and 263 of the Criminal Law of the People’s Republic of China. Article 8 states, “This Law may be applicable to any foreigner who commits a crime outside the territory and territorial waters . . . of the People’s Republic of China against the State of the People’s Republic of China or against any of its citizens, if for that crime this Law prescribes a minimum punishment of a fixed-term imprisonment of not less than three years;” while Article 9 provides that “This Law shall be applicable to crimes which are stipulated in international treaties concluded or acceded to by the People’s Republic of China and over which the People’s Republic of China exercises criminal jurisdiction within the scope of obligations, prescribed in these treaties it agrees to perform.” These two provisions form the basis for the exercise of criminal jurisdiction over acts of piracy committed against China or foreign ships in the waters outside Chinese jurisdiction. While piracy is punishable as robbery under Article 263, there are no specific provisions regulating robbery at sea. Among those listed under robbery, acts that may be applicable to pirates may be i) those causing serious injuries to or death while robbing (para. 5); ii) those committing robbery using guns (para. 7); and iii) those robbing materials for military use, or materials for fighting disasters or relieving disaster victims (para. 8). Japan14 Following the Alondra Rainbow incident in 1999,15 Japan hosted an international anti-piracy conference in April 2004 in Tokyo for joint action against piracy and

14 For authoritative further discussion on Japanese law and policy, see Chapter 15 by Professor Hayashi in this book. 15 Alondra Rainbow, a 7,762-ton Japanese cargo ship registered in Panama, departed from Kuala Tanjong of Sumatra, Indonesia, bound for Japan, on October 22, 1999 carrying aluminum ingots. It was hijacked by pirates armed with guns and knives. At the time, there were two Japanese—the captain and the chief engineer—and fifteen Filipino crew members. Following the initial attack, the pirates numbering 15 moved the crew to the pirate ship and confined them for six days, after which they were set free on a life boat



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armed robbery with representatives from 15 Asian states in attendance. At the conference, the Anti-Piracy Action Plan and Asia Anti-Piracy Challenge 2000 were adopted. Together with the Japanese Ministry of Land, Infrastructure, Transport and Tourism, the Japanese Coast Guard took the lead in strengthening antipiracy cooperation with the littoral states of Southeast Asia. To this end, it also hosted an experts meeting with the coastal states surrounding the Malacca Strait in order to run cooperative programs for piracy information and awareness sharing, vulnerable open waters patrol through the dispatch of boats and aircrafts, joint exercises and boarding training with port states, training of maritime security institutions and technological assistance for the enhancement of maritime enforcement capacities. Prior to the enactment of the Law on Punishment of and Measures against Acts of Piracy (‘Punishment and Measures against Piracy Law’) in June of 2009, Japan applied provisions of the national Penal Code. However, after having dispatched two convoys as part of its Maritime Self-Defense Force in March of 2009 to Somalia and the Gulf of Aden, it quickly enacted the above law of June 2009 to provide a basis for intervention in instances of damage to foreign vessels and harm to foreign nationals by pirates. Its major points can be summarized as follows: First, this law applies to “ships” regardless of its nationality, thereby strengthening the legal basis for protection or other measures against piracy committed against foreign vessels. However, the scope of “ships” excludes warships and other government ships. Second, in defining a pirate, their purpose has been limited to “private ends,” similar to that of the UNCLOS. As for location, while UNCLOS limits it to the “high seas, or in any other place outside the jurisdiction of any State,” the “Punishment and Measures against Piracy Law” extends the scope not only to the high seas but to territorial and internal waters as well (Article 2). The high seas were defined to include exclusive economic zones, thereby leaving no room for issues regarding its scope. There are no provisions regarding acts of voluntary participation or of inciting or intentionally facilitating piracy; and while there is a penalty clause for the crime of attempt, there are none for incitement or abetting. Further, while the UNCLOS defines piracy as “any illegal acts of violence or detention, or any act of depredation . . . against another ship or aircraft, or against persons or property on board such ship or aircraft,” Punishment and Measures against Piracy Law defines acts of piracy, in a specific yet broad manner describing it as: i) seizing another ship in navigation or taking control of the operation

on October 29. After drifting on the seas for eleven days, they were discovered by a fishing boat near the coast of Phuket, Thailand and were safely rescued. On November 16, the pirate ship was captured by the Indian Coast Guard and Navy while sailing in the high seas of southern India with all fifteen of the Indonesian pirates captured.

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of another ship by rendering persons irresistible by assault, intimidation or any other means; ii) kidnapping a person on board another ship in navigation for the purpose of taking the person hostage to demand a third person to deliver any property; iii) demanding a third person to deliver any property or to take any other unobligated action or to waive that person’s right by taking a person, on board a robbed ship or a ship whose control is taken or kidnapped on board another ship in navigation, hostage; iv) breaking into or damaging another ship in navigation; v) operating a ship and approaching in close proximity of, beleaguering, or obstructing the passage of another ship in navigation for the purpose of committing the acts of piracy; and vi) preparing weapons and operating a ship for the purpose (Article 2, paras. 1 to 7). Third, the Japanese Coast Guard was designated as the institution in charge of measures against piracy, though allowing the Self-Defense Force to take action when necessary, so that the relationship was clear among the agencies involved (Articles 5 and 7). In other words, the Japanese Coast Guard would normally be in charge of taking measures against piracy; but in special cases where its capacity alone is insufficient to respond to piracy as in cases of Somali pirates, the Self-Defense Force may take measures necessary with the approval of the Prime Minister. Where the Self-Defense Force takes anti-piracy measures, the Japanese Coast Guard Law applies to the execution of the duties of the Maritime SelfDefense officials at the rank of Petty Officer 3rd Class or higher, while relevant provisions of the same law applies with regard to the use of weapons (Article 8, paras. 1 to 3) in order to resolve potential legal issues that may arise in the process of responding to piracy by the Self-Defense Force having no judicial policing authority. The Japanese Coast Guard currently has eight international investigators, in six-month rotations, aboard two conveyors dispatched to Somalia; and it is also carrying out a one year long-distance flight training for the Middle East and European regions to utilize affiliated aircraft for the transfer of pirates in cases of emergency. Evaluation As seen above, Japan has enacted a separate legal provision entitled Punishment and Measures against Piracy Law in order to provide the system necessary for the Self-Defense Force to fight and handle pirates in foreign waters; but Korea and China punish acts of piracy pursuant to their criminal codes and other relevant laws. Korea, China and Japan are parties to the UNCLOS and therefore do not confront legal problems in exercising jurisdiction over pirate attacks against their own or foreign vessels in Somali waters or elsewhere. However, as seen in the Samho Jewelry case, procedural issues in the process of exercising jurisdiction remain yet to be resolved in Korea; and under the current justice systems relating to piracy in Korea and China, the legal basis for intervening in regards to foreign vessels is weak.



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To resolve these issues, alternatives ought to be examined, such as enacting special laws granting judicial policing authority to soldiers on duty in foreign waters, or enacting separate anti-piracy or other related laws. This must be decided after having considered legislative concerns, such as the effectiveness of the current piracy related laws and the actual effect of new legislation as a whole to tailor it to the judicial needs of one’s own country. As for Korea, we would contend that the necessary legislative issues have already been amply addressed by the Punishment for Damaging Ships and Marine Structures Act and thus the problem does not require separate legislation. With regard, however, to the issues raised in the process of handling pirates by military crew members without judicial policing authority, possible solutions may include the stationing of judicial police on board military vessels to handle criminal procedures on the scene; or the conclusion of judicial assistance agreements with nations that are neighbors to Somalia in order to consign the procedure to local states. Vessel and Port Security Amendment of the SOLAS Convention In the wake of the 9/11 terrorist attack in 2001, the international community developed comprehensive security regulations entitled the International Ship and Port Facility Security Code (ISPS Code)16 to strengthen the security of ship and port facilities. The ISPS Code refers to international rules for the security of ­vessels and port facilities as adopted at the state party conference on December 12, 2002, enhancing the 1974 Convention for the Safety of Life at Sea (SOLAS) resolutions Part A (Mandatory) and Part B (Recommended).17 At the 22nd general meeting of the IMO held in November of 2011, a mere two months after 9/11, a conference of contracting governments to the 1974 SOLAS Convention was called,, to be held in December of 2002 to develop measures for port and vessel security. The Maritime Safety Committee (MSC) prepared a preliminary draft of amendments to the Convention, and in December, 113 government representatives met in London for the Diplomatic Conference on Maritime Security. They voted unanimously to adopt the proposed amendments to the SOLAS Convention. The amendments to the SOLA Convention as adopted at the conference may be summarized as follows:

16 The formal title of the code is The International Code for the Security of Ships and of Port Facilities, though it is more often referred to as The International Ship and Port Facility Security Code or the ISPS Code. 17 SOLAS Convention Chapter 11-2 Art. 1 para. 1 (12).

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• Chapter 5 was amended to require all ships of 300 gross tonnage and upwards but not more than 50,000 (not including oil tankers and passenger ships) to be fitted with the Automatic Identification System (AIS); while passengers ships engaged in international voyage and cargo ships of 300 gross tonnage and upwards, as well as mobile offshore drilling units and ships built after 2008 were required to be fitted with Long-Range Identification and Tracking (LRIT) system; • Chapter 11-1 (Special measures to enhance maritime safety) was amended to require that i) all passenger ships of 100 gross tonnage and upwards and cargo ships of 300 tonnage and upwards should be marked with its Ship Identification Number (SIN), ii) port State control on operational requirements, and iii) placement of Continuous Synopsis Record (CSR); • Chapter 11-2 (Special measures to enhance maritime security) was added to i) enshrine the ISPS Code for specific provisions regarding vessel and port security, ii) require all ships to be provided with the Ship Security Alert System (SSAS), and iii) regulate the State control of ships in port such as the refusal of entry; • Adoption of the ISPS Code as an annex. While the SOLAS Convention regulates standards for the construction, equipment and operation of ships for the safety of persons on the sea, the ISPS Code seeks to identify and prevent any acts that threaten the security of ships and port facilities through the cooperation of the workers on ships or in port facilities. Because the two differ in legislative purpose and scope of application, there were limitations on the extent to which the SOLAS Convention could accommodate the ISPS Code in the first place.18 Expanding the ISPS Code to include port facilities, regardless, was made possible by the consensus reached regarding the need to strengthen maritime security and to establish a new international maritime security regime in the wake of 9/11 and the terrorist threat. In addition, although the establishment and amendment of international conventions generally take several years, the “tacit acceptance”19 procedure of the 1974 SOLAS Convention that allowed an 18 Yoon-cheol Lee, A Study on the International Legal Actions against Maritime Terrorism and its National Countermeasures in Korea 102, 2005 (The Korean Society of Marine Environment and Safety) (in Korean). 19 The SOLAS Convention was first adopted in 1914 in response to the Titanic disaster, to require lifesaving equipment like lifeboats as well as a communication receiver. Amendments were adopted in the years that followed—in 1929, 1948, 1960 and 1974. However, the implementation of the amendments took several years due to the IMO’s notification procedures, and the requirements of the minimum number of states and tonnage and so on. In 1974, an entirely new version was adopted including tacit acceptance. The current version of the 1974 SOLAS Convention was amended in 1974 and implemented in 1980. The most distinguishing feature of the 1974 SOLAS Convention is “tacit acceptance” which provides that an amendment adopted by two-thirds of the



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amendment that was approved by two-thirds of the member states to automatically take effect in six months if there is no particular opposition within a year also played a significant role in placing the ISPS Code within the Convention. The aggressive effort of the United States to push ahead, with leadership taken by the U.S. Coast Guard, was another factor that helped quickly conclude the legislative process;20 and finally, on July 1, 2004, the amendment took effect. Contents of the ISPS Code The ISPS Code, as an annex to the amendment of the SOLAS Convention, is comprised of 19 articles, divided into mandatory provisions in Part A and recommended provisions in Part B. Though the provisions of Part B are not mandatory, considering that they must be referenced in establishing and understanding security regulations, they ought to be seen as equally mandatory as Part A in reality. This is because Part A provides the basic framework for the security system and instructs the referencing of specific provisions in Part B.21 The ISPS Code is applicable to i) all passenger ships, ii) cargo ships of 500 gross tonnage and upwards, iii) mobile offshore drilling units, and iv) port facilities utilized by ships engaged in international voyage. Key responsibilities include i) setting the security level by each government and providing adequate guidelines, ii) conducting approval and evaluation of national ships and port security plans, as well as security check-ups of foreign ships, and communicating security related information to the IMO, iii) appointing ship security officers (SSOs) onboard and establishing self-security evaluation plans to be approved by the administration (flag) state, after which international ship security certificates (ISSCs) are placed onboard, iv) appointing (shipping) company security officers (CSOs), and v) as for the port State, having in place port facility security measures based on the security level and appointing port facility security officers (PFSOs).

member states shall enter into force by default on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties. 20 The United States has actively supported and encouraged the legislative process by twice shouldering the hosting costs of IMO extraordinary sessions. Prior to the Diplomatic Conference for the adoption of the convention, members of Committee on Commerce, Science and Transportation of the US Senate sent a letter to the IMO Secretary General emphasizing the importance of the ISPS Code. Further, Admiral Thomas H. Collins, Commandant of the US Coast Guard visited the IMO to explain to the Secretary General the urgency of the convention and to request cooperation. In order to accommodate the ISPS Code, the US amended its 1936 Merchant Marine Act to pass the Maritime Transportation Security Act of 2002 and sent inspectors to 110 states in order to examine their implementation. 21  Yoon-cheol Lee, supra note 15, at 103.

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Accommodation by Domestic Law and Its Evaluation Korea Following the full implementation of the ISPS Code, as of January 2011, some 1,004 Korean flagged vessels obtained the security certificates; and 28 trade ports utilized by ships of international voyage became their targets. The government in 2003, due to time constraints prior to the Convention’s entry into force, legislated and implemented the Regulation regarding Security of Ships and Port Facility through public notice by the Ministry of Maritime Affairs and Fisheries. Because the domestic accommodation of the ISPS Code was a legislative matter directly related to the rights and duties of citizens, however, the legal status of the public notice to implement such duties was inadequate. Thus, in August of 2007, the legal grounds were strengthened by the enactment of the Security of Ships and Port Facilities Engaged in International Voyage Act. This law provided for: i) the setting of security level of ships and port facilities engaged in international voyage (Articles 5 & 6); ii) appointment of a general security officer and ship security officer by the owner of the ship engaged in international voyage (Articles 7 & 8) and the acquisition of international ship security certificates (Articles 11 & 12); iii) port State control of foreign ships based on the possession of international ship security certificates (Articles 19, para. 1); iv) the duty to communicate ship security information 24 hours prior to the entry of foreign ships into a port of the Republic of Korea and the ensuing power to limit movement, request modification, investigate ship or refuse entry (Article 19, paras. 4 & 6); and v) appointment of a port security officer by the owner of the port facility and the implementation of a security evaluation (Articles 23 & 24). China China also actively participated in the amendment of the SOLAS Convention. China, as a contracting party to the SOLAS Convention, enacted two laws in 2003 to implement the Convention amendments for ships and port security—Port Facility Security Regulations and International Ships Security Regulations, which were implemented in November of 2003 and April of 2004 respectively.22 In China, there are 130 trade ports and about 10,000 port facilities. As for China’s marine transport and port security, the former is managed by the Department of Water Transport, Ministry of Communication (Maritime Transport Bureau). With regard to the latter, pursuant to the reformed Port Management System as instituted by the Port Law amended in 2003 and implemented on January 1, 2004, port authority was transferred to regional governments and sepa22 Zhang Shoguo, Department of Water Transport, Ministry of Communication, China, Playing an Active Role in Fulfilling Maritime Security Obligations, presented at OECD Workshop on Maritime Transport (April 2004).



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rated from companies. This change meant that port companies were no longer in charge of administrative functions. In other words, it went from a complex, dual port management system by the central and regional governments to a single-port-single-government system where a regional government took charge of the safety management of a port, thereby establishing a regional-governmentcentered management system (Article 6).23 Chapter 4 of the Port Law provides that the port operator and the port administration authority are in charge of the safety and security of the port. Port facility security regulations include security level, security evaluation, education and training of security officers and so on. To effectively implement the law, China promulgated the Port Security Regulation and has taken other necessary measures such as notification of the port facility security charge and so on.24 Japan For the implementation of the ISPS Code, Japan enacted the Law regarding Security of International Voyage Ships and International Port Facilities in April of 2004, under which security measures are required for ships on international voyage and international port facilities, as well as prior notification of ship security information when entering Japanese ports from abroad for regulation of dangerous ships. The Implementation Order for the above law required ships on international voyage entering Japanese ports for the first time to notify the port security office of ship security information consisting of 28 items, 24 hours prior to entry (Articles 74 & 75). At the same time, the Japanese Coast Guard handles tasks related to ship security information, maritime order maintenance, crime prevention and suppression pursuant to Japanese Coast Guard Law (Article 2). Apart from this, Japan also enacted Special Measures relating to the Prohibition of Entry of Particular Ships in June of 2004 that would allow it to prohibit port entry of particular ships of particular states in consideration of international political situation surrounding Japan. Particular ships include i) ships of particular foreign nationality as determined by the Cabinet, ii) ships having put in at particular foreign ports during the period prohibited by the Cabinet, and iii) ships that have relationships with particular foreign states similar to the above provisions (Article 2). Decisions of the Cabinet regarding the above provisions must obtain the approval of the Parliament (Article 5).

23 See Jae Ho Yoon, Zheng Hui Chen, Myong Sop Pak, “A Study on the Development of Chinese Port System and the Improvement of China’s Port Law,” Journal of Korea Trade, 35 (June 2010): 290–96. 24 Jae Sun Choi et al., Study on the Establishment of State Logistics Security System, 141–42 (Korea Maritime Institute 2006).

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Evaluation After having passed a new resolution regarding ships and port facility security at the 22nd IMO general meeting in November 2001, the amendment to the existing SOLAS Convention was unanimously adopted at the 1974 SOLAS Convention Conference of Contracting States (Diplomatic Conference) of December 2002. The very fact that an amendment to an international convention was adopted in one year, and that the ISPS Code was fully implemented within eighteen months is exceptional when considering the need for various preparations necessary for domestic accommodation such as the examination of domestic law, security evaluation, education and training, and so on. It can be credited as a concerted effort of the international community taken upon recognition of the urgent need to strengthen security of ships and port facilities in the wake of the 9/11 terrorist attacks. China and Japan enacted domestic laws prior to the entry into force of the ISPS Code to provide legislative support for domestic implementation. Korea, however, as observed earlier, did not have legislative support within the limited time period prior to the implementation of the ISPS Code and thus had to enact a public notice of the Ministry of Maritime Affairs and Fisheries. However, due to continued criticism that ministerial notice provided insufficient legal grounds for the domestic implementation of the ISPS Code, it was finally reinforced by the enactment of the law in 2007. The ship and company security system provided by the ISPS Code, in some aspects, overlaps with the International Safety Management Code (ISM Code)25 that has been in effect since July 1, 1998 for maritime safety, accident prevention and environment, and can thus add to the burden of shipping companies. Further, as there is no legal framework with which the current container security measures can be supported, provision of such a legal basis through enactment or amendment of relevant regulations is necessary. The United States in 2006 enacted the Security and Accountability For Every Port Act (SAFE Port Act) to establish an operations center for institutions related to port security, and also to provide legal support for the Container Security Initiative (CSI), the Customs-Trade Partnership Against Terrorism (C-TPAT) and the Secure Freight Initiative (SFI)—measures that seek to promote a prior search of all containers arriving in the US.

25 The IMO primarily focused on improving the structure and installations of the ships themselves as well as the crew qualifications for the safe navigation of ships and the protection of the marine environment. However, after having realized that the majority of accidents on the seas were caused not by the vessel defects but rather human error, it established the International Safety Management Code (ISM Code). Korea amended its Maritime Traffic Safety Act in February 1999 to provide for the relevant matters in Articles 10 and 21.



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Maritime Terrorism Maritime Terrorism under International Law As can be seen in the cases of the hijacking of Achille Lauro in Egyptian waters in 1985, the attack on the US destroyer U.S.S Cole while anchored in Yemen in 2000, and the attack of the French oil tanker M/T Limburg in 2002, major incidents of maritime terrorism against ships has long been emerging as a menacing feature of marine operations. Today, when 90 per cent of the worldwide import/export goods by volume are transported over the sea, even a temporary shutdown of major sea lanes of communication due to maritime terrorism can greatly affect the world economy. Yet states face difficulty in determining political priorities and securing the necessary means due to the shifting targets of maritime terrorism such as ships, ports, maritime infrastructures, and limited anti-terrorism resources. Further, a precise definition of maritime terrorism cannot be found in international law, with resultant ambiguities of law concerning counter-maritime terrorism policies, in international cooperation, and the exercise of jurisdiction over terrorists. The concept of maritime terrorism can be clarified when compared with that of piracy. As can be observed in the Achille Lauro case, there are religious beliefs or political ideologies behind maritime terrorism, while piracy seeks private, economic gain.26 Despite this distinction, however, maritime terrorism and piracy often have mixed goals; and the two are fundamentally similar in that they are both illegal acts committed on the seas thereby threatening the safety of navigation and incurring much damage to persons and property.27 The UNCLOS only provides for acts of piracy as mentioned above. The two conditions necessary for piracy, namely i) on the high seas or places outside the jurisdiction of any state, and ii) the two ship rule requiring the attacking ship and a victim ship, is inadequate in that it cannot cover instances like 9/11 on the oceans where a passenger or crew hijacks the ship and utilizes the vessel as a weapon to attack port facilities. Further, unlike piracy cases where any state discovering or successfully suppressing acts of piracy can exercise jurisdiction,28 maritime terrorism, becasue it does not satisfy the elements of criteria for piracy, raises unresolved issues of the existing framework international law: The perplexities pertain to such issues as the elements of the crime, transfer of a suspect, and the exercise of jurisdiction. To prevent maritime terrorists from going unpunished due to the lack of

26 Suk Kyoon Kim, Building a Multilateral Framework to Combat Piracy in Asia: From a Global Governance Perspective 93 (2005) (Doctoral dissertation, Hanyang University, Korea). 27 Id. 28 UNCLOS Art. 105.

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jurisdiction under international law, the international community adopted in March 1988 the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), for the purpose of extending the scope of jurisdiction. Legislative Accommodation of the SUA Convention and Its Evaluation Background The main purpose of the SUA Convention is to prevent unlawful acts threatening safe navigation and to ensure that appropriate action is taken against persons committing unlawful acts against ships. The adoption of the SUA Convention was directly influenced by the hijacking of the luxury Italian cruiser Achille Lauro on October 7, 1985.29 Following this incident, in December 9 of the same year, UN General Assembly resolution 40/61 instructed the IMO to examine adequate measures against maritime terrorism committed against ship and crew. As a result, the SUA Convention was adopted in March 1988, entering into force on March 1, 1992. As of 2011, there are 144 state parties. The IMO also adopted The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, reaching the problem of offshore drilling and othr facilities, an issue not included in the SUA Convention. After 9/11, to prevent ships from being utilized for terrorist purposes or for the transport of WMD, under the leadership of the United States, the 1988 SUA Convention was reevaluated. As a result, the IMO adopted the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The amended SUA Convention (Articles 1 & 16), the 2005 Protocol to the SUA Convention (Articles 17 & 24) and their annexes were combined to form the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005 (2005 SUA Convention). The 1988 SUA Convention defines “offence” as i) destruction or damage to a ship or its cargo, ii) an act of violence likely to endanger the safe navigation of the ship, iii) acts of violence against a person on board, iv) attempt, incitement or threats of the above acts and so on. The same Convention recognizes the varying 29 On October 7, 1985, four Palestinian terrorists hijacked the Achille Lauro bound for Egypt from Italy. It took the passengers and crew hostage and demanded the release of 50 terrorists in Israeli prisons. In the process, they killed a male American passenger in a wheelchair and threw his body overboard. When the negotiations were unsuccessful, they agreed to surrender to Egypt in exchange for a flight to Tunisia. The US intercepted the plane carrying these terrorists as soon as it took off from Egypt and forced its landing at a NATO base in Italy. The US requested of the Italian government the extradition of the hijackers for their acts of piracy on the basis of the American passengers being aboard Achille Lauro and the killing of an American hostage. The Italian government refused their extradition, however, and indicted them in their own courts. Abul Abbas, who led the entire hijacking incident, was released for lack of evidence.



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jurisdictions of flag state of the victimized ship, the state in which the crime occurred, the nationality of the suspect or victim, state of residence for persons without nationality and so on.30 By establishing jurisdiction and facilitating the transfer of criminals, the focus was on preventing situations in which criminals would go unpunished for lack of jurisdiction.31 However, in a changing security environment along with heightened terrorist threats, issues have been raised as to the difficulty of applying the 1988 SUA Convention to cases in which ships are utilized as means for terrorism or for transporting terrorist supplies such as WMD. The 2005 SUA Convention created new provisions to bolster such weaknesses. First, Article 3bis was newly added to include within the scope of “offences” i) intimidating a population, or to compel a Government or an international organization to do or to abstain from any act, ii) uses against or on a ship or discharging from a ship any explosive, radioactive material or BCN (biological, chemical and nuclear) weapon, iii) discharges, from a ship, oil or other hazardous or noxious substance, iv) transports32 on board a ship any explosive or radioactive material.33 Second, the 2005 SUA Convention also added a boarding and inspection provision in 8bis to prevent terrorism. Where the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship has been, is or is about to be involved in the commission of an offence, it may request the flag state to board and inspect the vessel, at the point which the flag ship may authorize the request or refuse and conduct the boarding and inspection with its own law enforcement.34 Third, in relation to the extradition of criminals or judicial assistance, the contracting state cannot refuse the extradition request on the basis of determining the act to be a political crime.35 Whereas the 2005 SUA Convention enters into effect 90 days after 12 states become contracting parties, as of November 2011, there were only 11 contracting states and thus has not entered into force.

30 1988 SUA Convention, Arts. 3 and 6. 31  Sang-Won Ji, “A Study on the Municipal Legislation for the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988,” Korean Institute of Maritime Law, 14 (2002): 110. 32 2005 SUA Convention, Art. 3 para. 2 (1) (f ) provides, “ ‘[T]ransport” means to initiate, arrange or exercise effective control, including decision-making authority, over the movement of a person or item.” 33 Id., Art. 4, para. 5. 34 Id., Art. 8bis, para. 4 and 5. 35 Id., Art. 11bis.

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Legislative Accommodation Korea Korea became party to the 1988 SUA Convention in May 2003; and to implement in domestic law the Convention and its Protocol, it enacted the Punishment for Damaging Ships and Marine Structures Act (Punishment for Damage Act) the same year. This act expanded jurisdiction to acts committed by foreign nationals against Korean ships and marine structures outside Korean territory. It also provides for the process of transfer of criminals and defines specific acts of the crime. More specifically, it provides for: i) the punishment of foreign nationals for criminal acts committed against ships and marine structures outside of the territory of Korea (Article 3); ii) the captain’s transfer of a criminal to a SUA Convention state party pursuant to the approval of the Minister of Justice (Article 4), and iii) includes unlawful acts such as murder or infliction of injury upon persons on ship or marine structures and hijacking of ship, damage to ship and others, installation of dangerous objects, delivery of false information, threats, and so on (Articles 5 & 13). Japan Though Japan is a state party to the 1988 SUA Convention, there are no domestic laws that have accommodated the Convention. It has yet to become party to the 2005 SUA Convention. Japan is known to be of the position that the above Convention is difficult to accommodate because inspection of foreign vessels are premised upon the consent of the flag state, which is advantageous when inspecting suspicious foreign vessels in the high seas near Japan but would also require its consent for foreign state inspection of its vessels navigating foreign waters. China China is also party to the 1988 SUA Convention but not the 2005 SUA Convention. China has no separate laws having accommodated the SUA Convention, and the punishment of unlawful acts committed by ships operating on the seas is based on its Criminal Law. While there are no specific regulations regarding the SUA Convention, enforcement is carried out by the police, frontier guard, the liberation army, and maritime customs. Evaluation Maritime terrorism is a transnational crime, whose preparation, implementation and impact go beyond the boundaries of a state. Thus, complex international legal issues are at play in the investigation of the crime of terrorism and the punishment thereof. The 1988 SUA Convention provides for the extension of jurisdiction and the duty to extradite criminals to facilitate the punishment of persons committing maritime terrorism. In light of the increased potential for terrorism on the seas



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using ships or transport of terrorist related goods in the wake of 9/11, the amended 2005 SUA Convention, in particular, added new provisions defining offenses to include the transport of BCN and related substances, as well as the inspection of suspicious vessels. The current 2005 SUA Convention has not entered into force owing to an insufficiency of state parties, which appears to be partially due to the potential of the newly added provisions to infringe upon state sovereignty. Another reason may possibly be that the state parties of the SUA Convention, who are actively participating, may undergo searches or inspection necessary for the prevention of the transport of WMD over the seas by the WMD Proliferation Security Initiative (PSI). However, in spite of the fact that the PSI that began under the initiative of the US involves military action, it is taking place outside the framework of the UN; and the fact that the participating states in PSI constitute only a small proportion of the member states of the UN has raised criticisms regarding its justification under international law. Taking these points into consideration, the SUA Convention—currently with 156 member states—will likely contribute more significantly to the prohibition of the proliferation of WMD and terrorism than will the PSI, which is less disputed as to its international legal justification or binding force as a treaty, especially when the 2005 SUA Convention becomes effective. Concluding Remarks The domestic accommodation and implementation of international treaties regarding piracy and maritime security of the three northeast Asian states of Korea, China and Japan have been described above. As states are entirely dependent upon seaborne trade, securing the safety of the sea lanes of communication has become part of their respective national agendas. Thus, these countries are putting great efforts into securing safe passage of their ships from pirates who disturb maritime trade order and interfere with the free passage of vessels, as well as to provide security measures for their major national port facilities and marine structures. The three states need to construct a close regional cooperative system, moreover, to advance the cause of maritime security. Although threats of maritime terrorism are increasing, the lack of a unified definition under international law such as through the UNCLOS, SUA Convention, etc., in addition to the differing domestic systems for punishment of terrorists, could cause confusion in cooperating towards distinguishing maritime terrorism from piracy and punishing them.36 Further, the 2005 SUA Convention, which seeks to prevent the transport of unlawful WMDs over the seas, has yet

36 See also discussion of these issues in President Jesus’ analysis, in Chapter 1 above.

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to enter into force, while the PSI system has to still overcome the challenge of strengthening its justification under international law. Domestic criminal procedures for punishing pirates arrested in foreign waters such as Somalia ought to be supplemented. Also, in relation to this, just as the International Criminal Court exists to punish crimes against humanity, the establishment of an international anti-piracy tribunal solely in charge of punishing pirates which is being raised by the international community, should be actively evaluated.

Seventeen

The Role of Taiwan in Global Ocean Governance Yann-huei Song

Introduction The ocean-related industries of the Republic of China (Taiwan) have a major place in the global ocean economy and a significant role in international ocean politics. This is true especially with regard to ocean fisheries and global trade in marine fish products; Taiwan’s production for export of information and communications technologies (ITC); and its merchant shipping, including prominence in container-ship activity. Moreover, Taiwan is heavily dependent upon importation by sea of fuel and other materials, and it stands sixteenth internationally in value of national merchandise trade volume. In that regard, Taiwan has a vital interest in the protection of sea lanes of communication, including the troubled lifeline routes in Southeast Asia waters. The geographic reach of Taiwan’s ocean interests are extensive, as the EEZ boundaries of Taiwan encompass an area twelve times that of its territory on land; and, of critical importance, they involve contested claims of control over seabed resources and waters in the EEZs of islands in the South China Sea—placing the Taiwan government in the center of controversies of that region that have ominous potential for armed conflict. Despite Taiwan’s importance in these dimensions of global ocean affairs, the notorious and protracted diplomatic impasse in relations with the People’s Republic of China (PRC) since 1971 has frustrated Taiwan’s ambitions to become a full partner in key international agreements—including the UN Law of the Sea Convention and its implementation. The “One China Principle” that is a central canon of PRC diplomacy has presented a powerful barrier against Taiwan’s participation in many of the most important institutions that define and enforce the terms of ocean governance. The bilateral PRC-Taiwan Economic Cooperation Framework Agreement of 2010 is seen as a significant advance in cross-Strait cooperation to nurture mutual interest in trade and economic development. At a more general level in global diplomacy, however, Taiwan’s quest for enlargement of what it terms its “international living space” has been frustrated; and its

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efforts to be recognized as a party to UNCLOS and to be admitted to full membership in the numerous instruments and agencies of the United Nations remain unfulfilled. The present Chapter analyzes Taiwan’s participation in ocean governance, within the constraints it faces in global diplomacy; and it takes note of the recent changes in cross-Strait relations. Comment is also offered on a way forward by which Taiwan might be brought constructively into institutions from which it is now excluded or (as in some of the regional fisheries organizations) is restricted to only a limited policy making role. Taiwan’s Participation in Global Ocean Governance: 1971–2007 Taiwan’s leaving the United Nations system1 and the rigid adherence to the “One China” principle in dealing with the Taiwan issue by the PRC since 19712 have resulted in Taiwan’s being excluded from participating in the negotiation and conclusion of ocean-related international agreements and their joint actions within ocean-related international organizations that are the major elements of global ocean governance. Taiwan did not attend UNCLOS III and was not able to sign, ratify, or accede to the ocean-related international legal instruments, in particular the 1982 UNCLOS, which is a framework treaty dealing with governance of all kind of ocean uses and has often been referred to as “the Constitution for the Oceans.” Following the entry into force of UNCLOS, the General Assembly began to undertake an annual review and evaluation of the implementation of the Convention and other developments relating to ocean affairs and the law of the sea. Since Taiwan is not a member of the UN, it cannot participate in the UN General Assembly discussions under the agenda item “oceans and the law of

1  The Republic of China is an original member of the United Nations. The Charter of the United Nations was signed and ratified on June 26, and September 28, 1945, respectively, by the government of the ROC, which continued to represent China in the UN until 1971. On October 25, 1971, the General Assembly of the United Nations adopted Resolution 2758, which restored all its rights to the People’s Republic of China and recognized the representatives of the government of PRC as “the only legitimate representatives of China to the United Nations.” For the resolution, see Developments within the Organizations of the UN System Concerning Chinese Representation, 11 ILM 561 (1972). 2 Based on the “One-China” principle, the government of the People’s Republic of China insists that Taiwan is an inalienable part of China, there is only one China, and the government of the PRC is the legitimate government representing the whole of China. Its government also opposes “two Chinas,” “One-China, one Taiwan,” or Taiwan independence. See White Paper—The One-China Principle and the Taiwan Issue, Embassy of the People’s Republic of China in the United States of America, available at http://www .china-embassy.org/eng/zt/twwt/White%20Papers/t36705.htm (accessed September 14, 2010).



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the sea.” In addition, because Taiwan is not a party to UNCLOS, it cannot attend the annual meetings of the states parties to the Convention (SPLOS), as well as annual sessions of the International Seabed Authority (ISA) and the Commission on the Limits of the Continental Shelf (CLCS). Moreover, Taiwan cannot participate in the UN General Assembly Informal Consultation Process on the Ocean and the Law of the Sea (ICP), which is de facto playing the role of a conference for the parties to UNCLOS and is the main forum where the implementation of the Convention is assessed. Although Taiwan’s participation in UN ocean-related activities has thus been restricted to a large extent since 1971, its government necessarily follows closely the progress achieved at ocean-related international conferences, either within or outside the UN system. Ocean-related legal and policy measures have been adopted by the government of Taiwan in response to the impact of the maritime legislative actions taken by its neighboring countries. A number of laws and regulations dealing with oceanic issues have been promulgated by its government, most of which are comparable to the provisions provided for in UNCLOS and in many other ocean-related treaties. Although Taiwan has made numerous efforts trying to rejoin or participate in the UN and its specialized agencies, Taiwan’s participation in global governance of the oceans has been confined since 1971 to the implementation of ocean-related international legal instruments at a national level. For example, in June 1978, the government of the Philippines promulgated Presidential Decree 1599, establishing its 200-nautical-mile exclusive economic zone (EEZ),3 which impacted Taiwan’s fishing interests in the waters between the country and the Philippines. In response, Taiwan’s Presidential Decree No. 5046 was promulgated in October 1979, which expanded Taiwan’s territorial sea limit from 3 to 12 nautical miles and established a 200-nautical-mile EEZ.4 In 1982, UNCLOS was adopted at end of UNCLOS III, which was opened for signature in December 1982. While Taiwan was unable to sign UNCLOS because of its exclusion form UNCLOS III at the insistence of the government of PRC,5 its Foreign Minister made a statement on behalf of the ROC government in January 1983 that “[a]fter the Law of the Sea Convention enters into force, our attitude is that in principle we will comply with its terms.”6 In fact, Article 64 of Taiwan’s Shipping 3 Presidential Decree 1599—Establishing Exclusive Economic Zone and for Other Purposes, 11 June 1978. For the Decree, see Pacifico A. Castro, ed., The Philippines and the Law of the Sea (Manila, Philippines: Foreign service Institute, 1983): 41–42. 4 Lien-he-Bao (United Daily), September 7, 1979 (in Chinese). 5 Hungdah Chiu, “Political Geography in the Western Pacific after the Adoption of the 1982 United Nations Convention on the Law of the Sea,” Political Geography Quarterly, 5, no. 1 (1986): 25. 6 See Kuo-Tsai Chao, “The Republic of China and the Law of the Sea,” in The Law of the Sea: Problems from the East Asian Perspective, Proceedings of two workshops of The Law of the Sea held in Seoul, Korea, ed. Choon-ho Park and Jae Kyu Park (Honolulu, the Law of the Sea Institute, University of Hawaii, 1987): 347.

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Law, promulgated in June 1981, provides that “[i]n case provisions involving international matters are not provided in the present law, MOTC [Ministry of Transportation and Communications] may undertake to adopt, promulgate and enact the relevant international conventions or agreements and the regulation, directives, standards, recommendations or programs prescribed in the annexes thereto as the provision.”7 After the entry into force of UNCLOS on November 16, 1994, Taiwan’s legislative action on its territorial sea and EEZ laws was accelerated by the ratification of the Convention by PRC, Japan and South Korea in 1996 and the enactment of 200-nautical-mile EEZ maritime legislation in these countries in 1996 and 1997.8 On December 30, 1997, Taiwan adopted the Law of the Republic of China on the Exclusive Economic Zone and the Continental Shelf, which was followed on January 2, 1998 by the adoption of the Law of the Republic of China on the Territorial Sea and the Contiguous Zone.9 The two laws were promulgated on January 21, 1998. In February 1999, Taiwan published its territorial sea baselines, outer limits of the territorial sea and contiguous zone.10 In general, the two ROC laws are consistent with customary international law as reflected in UNCLOS.11 On January 26, and August 16, 2000, respectively, Regulations of Permission on Delineation of Course for Laying, Maintaining, or Modifying Submarine Cables or Pipelines on the Continental Shelf of the Republic of China12 and Regulation Governing Permission to Undertake the Marine Scientific Research in the Exclusive Economic Zones and on the Continental Shelf of the Republic of China13 were announced and entered into force upon the date of promulgation. On January 26, 2000, the Coast Guard Act was announced.14 In addition, a number of laws and regulations were promulgated by the government of Taiwan to protect the marine environment between 2000 and 2002, 7 The law was amended in 7/1995, 1/1999, and 1/2002. For English text of the law, visit Taiwan’s LAWBANK at: http://db.lawbank.com.tw/Eng/FLAW/FLAWDAT0201.asp (accessed September 21, 2010). 8 South Korea ratified UNCLOS on January 29, 1996; PRC on June 7, 1996; and Japan on June 20, 1996. Japan promulgated its Law on the Exclusive Economic Zone and the Continental Shelf on June 14, 1996. South Korea promulgated the Exclusive Economic Zone Act No. 5151 on August 8, 1996. For the text of Japanese EEZ law, see Law of the Sea Bulletin, no. 33 (1997): 36–44. For the Korean text of the law, see Law of the Sea Bulletin, no. 33 (1997): 52–54. 9 For English version of the two laws, see United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Taiwan’s Maritime Claims, Limits in the Seas, no. 127 (2005): 20–24 and 26–33 (Annex I & III). 10 For the coordinates of the baseline segments, see Limits in the Seas, no. 127 (2005): 25. 11  Limits in the Seas, no. 127 (2005): 2. 12 For the Regulations, visit: http://db.lawbank.com.tw/Eng/FLAWDAT0202.asp (accessed September 21, 2010). 13 Ibid. 14 Ibid.



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which include Marine Pollution Control Act,15 Marine Dumping Permit Management Regulations,16 Marine Pollution Control Act Enforcement Rules,17 Regulations Governing Marine Environment Pollution Cleanup and Disposal,18 and Regulations Governing the Collection of Various Marine Pollution Control Permit Application Fees.19 Most of the provisions contained in these laws and regulations are comparable with Part XII (Protection and Preservation of the Marine Environment) of UNCLOS. A specialized agency of the UN is specifically referred to in Article 3 (I) of Taiwan’s Marine Pollution Control Act, stating that “[h]azardous substance means a substance designated in accordance with the International Maritime Dangerous Goods Code determined by the United Nations International Maritime Organization.” While participation in international ocean governance has been largely denied over the past three decades, Taiwan has been participating in a number of international governmental organizations in the areas of sport, economic, trade, and fishery. In 1981, Taiwan participated in International Olympic Committee using the name of “Chinese Taipei Olympic Committee.”20 In addition, due to political pressure from other members of the United Nations, in particular, the United States, and as a combination of trade policy consideration and political compromise between the organization and parties concerned, Taiwan was able to stay in the Asian Development Bank (ADB) in 1988, with the official name Republic of China being changed to “Taipei, China.” In 1991, Taiwan became a member of Asia-Pacific Economic Cooperation (APEC) forum using the name “Chinese ­Taipei.”

15 This Act was promulgated by presidential order on November 1, 2000. For the English text of the Act, visit: http://law.epa.gov.tw/en/laws/759702163.html (accessed September 21, 2010). 16 Twenty-one articles promulgated by Environmental Protection Administration Order Huan-Shu-Shui-Tzu No. 0910088369 on December 25, 2002. Fifteen articles revised and promulgated by Environmental Protection Administration Order Huan-Shu-Shui-Tzu No.0980000029 on January 8, 2009; name of the Regulations revised from the original name “Marine Dumping and Marine Incineration Management Regulations.” For the English text, visit: http://law.epa.gov.tw/en/laws/ 309100985.html (accessed September 21, 2010). 17 Promulgated by Environmental Protection Administration order on September 5, 2001. For the English text, visit: http://law.epa.gov.tw/en/laws/596770824.html (accessed September 21, 2010). 18 Promulgated by Environmental Protection Administration order on March 6, 2002. For the English text, visit: http://law.epa.gov.tw/en/laws/441224861.html (accessed September 21, 2010). 19 Promulgated by Environmental Protection Administration order on July 30, 2002. For the English text, visit: http://law.epa.gov.tw/en/laws/435467049.html (accessed September 21, 2010). 20 See Gerald Chan, China and International Organizations: Participation in NonGovernmental Organizations since 1971 (Hong Kong, 1989), 35–52.

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In February 1990, the National Unification Council was established by the government of Taiwan, with the aim of promoting the reintegration of mainland China into the Republic of China.21 This was followed by an agreement signed between Taiwan’s and mainland China’s Red Cross Society on the Kinmen islets in September 1990 which has therefore been referred to as “the 1990 Kinmen Agreement.”22 The agreement established a mechanism to facilitate the bilateral repatriation of stowaways and illegal immigrants. It was the first agreement signed between Taiwan and Mainland China to deal with cross-Strait affairs and set a precedent in institutionalizing the management of cross-Strait affairs after ­Taiwan allowed citizens to visit relatives on mainland China in 1987.23 In February 1991, Taiwan’s National Unification Council drafted the Guidelines for National Unification, which was then adopted by the Executive Yuan Council (Cabinet) in March the same year. The Guidelines, aiming to establish a democratic, free and equitably prosperous China, outlined a three-phase approach for Chinese unification: (1) a phase of exchanges and reciprocity; (2) a phase of mutual trust and cooperation; and (3) a phase of consultation and unification.24 In the midst of gradual improvement in political relations between Taiwan and mainland China in the early 1990s, the ROC government began to bid to return to the UN system. In 1993, citing a number of UN-related conventions in the areas of human rights and environmental protection that Taiwan had been denied to participate in the conferences, mechanisms and conventions of the United Nations and its specialized agencies,25 and stressing the fact that both Taiwan and mainland China were members of the Asian Development Bank (ADB) and the Asia-Pacific Economic Cooperation (APEC) conferences, and were observers in the General Agreement on Tariffs and Trade (GATT), Taiwan argued: [T]he time has come for the international community to pragmatically accommodate the Republic of China on the basis of reason and the world’s necessity. The

21  For more information about the NUC, visit: http://en.wikipedia.org/wiki/Natioal_ Unification_Council (accessed September 24, 2010). 22 For the English text of the Agreement, visit the website of the Mainland Affairs Council, available at http://www.mac.gov.tw/ct.asp?xItem=51914&ctNode=6517&mp=201 (accessed February 26, 2011). 23 “Ma praises 1990 Kinmen Agreement,” Taipei Times, September 12, 2010, http://www .taipeitimes.com/News/taiwan/archives/2010/09/12/2003482689 (accessed September 24, 2010). 24 For the Guidelines, see Position Paper on the Participation of the Republic of China on Taiwan in the United Nations, Ministry of Foreign Affairs, Republic of China, April 1993, Appendix). 25 These international conventions include Convention on the Rights of the Child, the Indigenous and Tribal Populations Convention, the Montreal Protocol on the Substances that Deplete the Ozone Layer, the United Nations Framework Convention on Climate Change, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.



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multilateral international humanitarian aid and economic programs sponsored by the United Nations system would gain a meaningful contribution from the participation of the Republic of China, benefiting the promotion of international welfare.26

Between 1993 and September 2007, the government of Taiwan urged its allies in the General Assembly to speak in support of Taiwan’s rejoining the UN, but the General Assembly repeatedly declined to include Taiwan’s request on its agenda for discussion and action. During the same period of time, Taiwan made efforts to participate in other UN-related or non-UN international organizations. Since Taiwan is not a party to the 1985 Vienna Convention for the Protection of the Ozone Layer and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, it cannot attend the conference of parties (COP) to the two treaties and the relevant activities dealing with the protection of the ozone layer. For the purpose of participating in the implementation of the Convention and Protocol, however, Taiwan sent its governmental officials and scholars to attend the conferences of parties to the two environmental agreements as a non-governmental organization (NGO) observer under the name Industrial Technology Research Institute (ITRI), which only allows Taiwan to participate in UNFCCC peripheral events.27 This approach has also been taken by Taiwan to facilitate participation in the COP to UNFCCC since 1995.28 Taiwan’s participation in global and regional ocean governance has been more active in the areas of trade and fishery, which are not associated with the United Nations or its specialist agencies. In 2001, Taiwan became an observer at the Organisation for Economic Co-operation and Development (OECD) by using the name of “Chinese Taipei.” In 2001, Taiwan joined the World Trade Organization (WTO) with the status and name of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei). In the fishery area, ­Taiwan participated in International Commission for the Conservation of ­Atlantic Tunas (ICCAT) bearing the status of “non-cooperating party/fishing entity” in 1999. Since 2001, Taiwan’s fisheries officials have participated in annual sessions of the Indian Ocean Tuna Commission (IOTC) as invited experts. In 2002, Taiwan obtained membership in the Extended Commission of Commission for 26 It was stated in the ROC position paper that “. . . the time as come for the international community to pragmatically accommodate the Republic of China on the basis of reason and the world’s necessity. The multilateral international humanitarian aid and economic programs sponsored by the United Nations system would gain a meaningful contribution from the participation of the Republic of China, benefiting the promotion of international welfare.” 27 For more information, visit the website of the ROC Ministry of Foreign Affairs at: http:// www.mofa.gov.tw/webapp/fp.asp?xItem=27627&ctnode=2034 (accessed September 21, 2010). 28 See Taiwan’s position entitled “The Case for Taiwan’s Meaningful Participation in the UNFCCC,” available at http://www.mofa.gov.tw/public/Attachment/912218135271.doc (accessed September 21, 2010).

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the Conservation of Southern Bluefin Tuna (CCSBT) and became an observer of CCSBT. In the same year, Taiwan became a member of the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC). Since 2003, Taiwan has begun to participate in Inter-American Tropical Tuna Commission (IATTC) as a “Cooperating None-Party/Fishing Entity.” In 2004, after the signing the “Arrangement for the Participation of Fishing Entities” and completed the domestic ratification process, Taiwan became a member of Western and Central Pacific Fisheries Commission (WCPFC) under the name “Fishing Entity of Chinese Taipei.” In 2005, Taiwan became an observer of North Pacific Anadromous Fish Commission (NPAFC). Beginning in 2006, Taiwan participated in the Committee for Fisheries of OECD.29 Beginning in 1997, Taiwan, through its diplomatic allies in the UN, began a yearly process of applying for observer status in one of the UN specialized agencies, the World Health Organization, by proposing that a supplementary item entitled “Inviting the Republic of China (Taiwan) to participate in the World Health Assembly (WHA) as an observer” be considered by the WHA during its annual session. Due to strong opposition from the government of the PRC, the General Committee of WHA annually rejected the inclusion of the proposal in the agenda for lack of a consensus.30 In May 2003, after three years of negotiations, member states of WHO adopted the WHO Framework Convention on Tobacco Control (FCTC) at the 56th WHA meeting, which entered into force on 27 February 2005. After FTCT was passed in the World Health Assembly (herein after as “WHA”) in 2003, the Foundation persuaded the Taiwanese Legislature to ratify the FCTC. Consequently, even though Taiwan was not a member of World Health Organization, and not a party to the FCTC, its Legislative Yuan

29 See Michael W. Lodge, “The Practice of Fishing Entities in Regional Fisheries Management Organizations: The Case of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean,” Ocean Development and International Law, 37 (2006): 185–2007; Peter S.C. Ho, “The Impact of the U.N. Fish Stocks Agreement on Taiwan’s Participation in International Fisheries Fora,” Ocean Development and International Law, 37 (2006): 133–148; Nien-Tsu Alfred Hu, “Fishing Entities: Their Emergence, Evolution, and Practice from Taiwan’s Perspective,” Ocean Development and International Law, 37 (2006): 149–183; Dustin Kuan-Hsiung Wang, “Taiwan’s Participation in Regional Fisheries Management Organizations and the Conceptual Revolution on Fishing Entity: The Case of the IATTC,” Ocean Development and International Law, 37 (2006): 209–219; and Ja-Zong Lin, “Our Country’s Participation in Important International Agricultural and Fisheries Organizations and Activities,” available in the website of Taiwan’s Council of Agriculture at: http://www.coa.gov.tw/view.php?catid=13339&print=1 (accessed August 18, 2010) (in Chinese); and Taiwan’s participation in regional fisheries organizations, in the website of Taiwan’s Ministry of Foreign Affairs at: http://www.mofa.gov.tw/webapp/ fp.asp?xItem=45816&ctnode=2174 (accessed August 27, 2010). 30 See Jaw-Ling Joanne Chang, “Taiwan’s Participation in the World Health Organization: The U.S. ‘Facilitator’ Role,” American Foreign Policy Interests, 32 (2010): 131–146.



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(Parliament) approved Taiwan’s accession to the Convention in January 2005. The President of Taiwan issued the Instrument of Accession and completed the process of ratification in March 2005.31 Article 37 of the FCTC stipulates that the UN Secretary-General shall be the Depository of the Convention. Accordingly, Taiwan submitted its instrument of accession to the UN Secretary-General. While receiving no responses from the UN to the submission, Taiwan revised its domestic Tobacco Control Law32 in 2007 to comply with the 2005 FCTC of the World Health Organization. In January 2007, Taiwan’s Legislature Yuan approved a resolution for Taiwan to join the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). Taiwan’s ally Nauru diplomatically submitted to the UN Secretariat a letter drafted by Taiwan that was forwarded to UN Secretary-General Ban Ki-moon. In response, the Secretary-General issued a letter in late March 2007, asserting that under the terms of UN General Assembly Resolution 2758, “the United Nations considers Taiwan for all purposes to be an integral part of the People’s Republic of China” and therefore Taiwan does not have membership status in the UN.33 In April 2007, Taiwan’s President Chen Shui-bian sent an official letter to the new WHO Director-General Margaret Chan Fung Fu-chun, in which he mentioned Taiwan’s proposal to apply for WHO membership under the name of “Taiwan.” In response, the Director-General stated that WHO member countries all firmly stick to the “one China” principle in handling with the Taiwan issue in strict accordance with WHO policy. The Ministry of Foreign Affairs of the PRC also stressed that “the WHO is a specialized agency of the United Nations that only sovereign countries may join. Taiwan fundamentally lacks the qualifications to join or apply for membership in the WHO.” In May 2007, at the opening ceremony of the 60th WHA, Taiwan’s application was thwarted by the obstruction from the PRC. On June 15, 2007, the International Health Regulations (IHR) became effective and the government of the PRC claimed that the Regulations covered the entire territory of China, including Hong Kong, Macao and Taiwan. In 2007, the government of Taiwan, frustrated by the strong obstruction from the government of PRC, began to apply for membership in the UN under the name of “Taiwan.” While it was clear that there was no chance at all to be accepted by using the name “Taiwan” in applying for UN membership, the then government

31  See “The Ministry of Foreign Affairs urges the United Nations to comply with common practice in permitting the deposit of Taiwan’s FCTC Instrument of Accession,” for this news report, visit the website of Taiwan’s Ministry of Foreign Affairs at: http://www .mofa.gov.tw/webapp/content.asp?CuItem=16814 (accessed September 22, 2010). 32 Tobacco Control Law in Taiwan was passed in March, 1997 and revised respectively in 2000, 2007 and 2009. 33 See John Tkacik, “Taiwan’s ‘Unsettled’ International Status: Preserving U.S. Options in the Pacific,” The Heritage Foundation, Backgrounder #2146, published on June 19, 2008.

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in Taiwan under the control of Democratic Progress Party (DPP),34 which has traditionally been associated with strong advocacy of a distinct Taiwanese identity, including promotion of de jure Taiwan independence, adopted the approach as a strategy to attract more people to vote for the party during the 2008 presidential election campaign. In September 2007, at the opening of the 62nd session of the UN General Assembly, “Taiwan’s bid to join the United Nations” was included in the agenda of the General Assembly as a supplementary item. After a closed-door meeting of the UN General Committee and opposition mobilized by the PRC delegation, UN General Assembly President Srgjan Kerim decided to exclude Taiwan’s motion from the session agenda due to a lack of consensus. On September 21, 2007, the 62nd session was convened and 14 diplomatic allies of Taiwan called for the inclusion of Taiwan’s UN membership bid on the session agenda. In response, the PRC mobilized its 140 allied member countries to oppose the motion. Again, citing the lack of consensus, President Kerim decided not to include the motion on the session agenda of the UN General Assembly. During the general discussion of the General Assembly, the PRC’s foreign minister Yang Jiechi reiterated the “One China” principle. In October 2007, the October newsletter of the United Nations Atlas of the Ocean was originally scheduled to report on Taiwan’s establishment of the Dongsha Marine National Park on 4 October 2007. However, due to pressure from the government of the PRC, the information was deleted from the newsletter.35 Changing Cross-Strait Relations and New Strategy in Taiwan’s Bid for Participation in UN-related Organizations: 2008–2010 Taiwan’s participation in global ocean governance has been denied over the past three decades mainly because of PRC concerns over Taiwan’s sovereignty and insistence on the “One-China” principle in dealing with so-called “Taiwan issues,” particularly those involving Taiwan’s request to participate in UN-related organizations. Since May 2008, however, there have been some positive changes in the development of cross-Strait relations. In March 2008, the Nationalist Party (KMT) won the presidential election, and reverted government policy to support the consensus reached between Taiwan and mainland China in 1992 that “there is only one China to which both Taiwan and the mainland are part of, but 34 The Democratic Progressive Party (DPP) is a major political party in Taiwan. It is the dominant party in the Pan-Green Coalition. It has traditionally been associated with strong advocacy of a distinct Taiwanese identity, including promotion of de jure Taiwan independence. Its present chair is Tsai Ing-wen. For more information, visit: http:// en.wikipedia.org/wiki/Democratic_Progressive_Party (accessed September 29, 2010). 35 For more examples of the PRC’s suppression of Taiwan’s bid for participation in international organizations between January 2005 and October 2007, visit the website of Taiwan’s Mainland Affairs Council at: http://www.mac.gov.tw/public/Data/962717531571 .pdf (accessed September 29, 2010).



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Taipei and Beijing can reach different interpretations as to what that ‘One China’ refers to.”36 In August 2008, the government of Taiwan changed its strategy in seeking for participation in the UN system. In line with President Ma Ying-jeou’s policy of flexible diplomacy, Taiwan’s new strategy is to request that the General Assembly include a supplementary item in the agenda of its annual session to consider the need to examine the fundamental rights of the 23 million people of Republic of China (Taiwan) to participate meaningfully in the activities of the UN specialized agencies.37 However, because of PRC objections, a UN subcommittee decided on September 18, 2008 not to include Taiwan’s request for “meaningful participation” in UN activities on the agenda for the 63rd Generally Assembly. On December 15, 2008, the mainland and Taiwan resumed direct air and sea transport and postal services amid warming ties, ending decades of practice that air and sea movements—including mail—travel via a third location, usually Hong Kong or Macao. On December 31, 2008, the President of the PRC and General Secretary of the Chinese Communist Party (CCP) Central Committee, Hu Jintao, delivered a speech commemorating the 30th anniversary of the “Message to Compatriots in Taiwan.” Hu said that mainland China is willing to open discussions with Taiwan proper and to reach reasonable arrangements for Taiwan’s participation in activities of international organizations, as long as this does not create a scenario of “two Chinas” or “one China, one Taiwan.”38 The same position was reiterated in a statement made by the PRC Premier Wen Jiabao at a press meeting in March 2009 after the conclusion of the National People’s Congress in Beijing. In April 2009, Taiwan authorities announced that the WHO had invited Taiwan to attend the 2009 WHA meeting as an observer. The invitation marks the first time that Taiwan has been permitted to participate in an activity of UN specialized agency since it lost its UN seat to the PRC in 1971. Also in 2009, Taiwan acceded to the WTO Government Procurement Agreement (GPA) and become the 41st signatory to the GPA. In May 2010, Taiwan’s health minister participated in the WHA as an observer under the designation “Chinese Taipei.”

36 The consensus is known and used as “1992 consensus.” See “Taipei, Beijing show willingness to discuss ‘92 consensus’,” The China Post, August 13, 2010. 37 See Request for the inclusion of a supplementary item in the agenda of the sixtythird session, Need to examine the fundamental rights of the 23 million people of the Republic of China (Taiwan) to participate meaningfully in the activities of the United Nations specialized agencies, Letter dated August 14, 2008 from the representatives of Belize, Burkina Faso, El Salvador, the Gambia, Honduras, the Marshall Islands, Nauru, Nicaragua, Palau, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sao Tome and Principle, Solomon Islands, Swaziland and Tuvalu to the United Nations addressed to the Secretary-General, UN General Assembly, 63rd session, A/63/194, August 22, 2008. 38 See Russell Hsiao, “Hu Jintao’s ‘Six-Points’ Proposition to Taiwan,” China Brief, 9, no. 1 (2010), http://www.jamestown.org/single/?no_cache=1&tx_ttnews%5Btt_news% 5D=34333 (accessed September 29, 2010).

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In the spirit of building trust, laying aside disputes, seeking consensus and shelving differences, and creating a win-win situation, Taiwan and mainland China have undertaken efforts to expand communication and cooperation, promote negotiations and handle problems. Since the resumption of exchanges and talks between the mainland’s Association for Relations across the Taiwan Straits (ARATS) and Taiwan’s Strait Exchange Foundation (SEF) in June 2008, five rounds of talks have been held. These talks resulted in the signing of 14 agreements governing cross-Strait affairs. During the latest round of talks, on June 29 2010, the two sides signed the Cross-Strait Economic Cooperation Framework Agreement (ECFA) and the Cross-Strait Agreement on Intellectual Property Rights Protection and Cooperation.39 In August 2010, Taiwan and mainland China agreed to establish an economic cooperation commission under the signed ECFA, which will be headed by vice ministerial-level officials from each side.40 Also in August the same year, the ECFA was passed with 68 votes for and none against in the 112-seat Legislative Yuan (Parliament).41 On September 12, 2010, the ECFA and the Cross-Strait Agreement on Intellectual Property Rights Protection and Cooperation became effective. Despite warming relations between Taiwan and mainland China since May 2008, the government of the ROC continues to encounter difficulties participating in international governmental organizations, in particular those which are UN-related. While Taiwan is not a party to the UNFCCC, it voluntarily prepares and published its First and Second National Communication in 2002 and 2010, respectively, and publishes its greenhouse gas inventories yearly. Taiwan has expressed a willingness to submit its national reports on implementation of the Convention to the Conference of the Parties to UNFCCC, but it has been rebuffed. At the 15th COP of the UNFCCC, Taiwan’s diplomatic allies expressed their support for Taiwan’s participation in the UNFCCC and its related mechanisms. Adhering to the “One China” principle, the PRC delegate opposed the call to allow Taiwan to participate in UNFCCC-related implementing organizations and activities.42

39 See Peace, Democracy and Prosperity: The Utmost Conjunctions of ROC Mainland Policy and EU Development Experience, speech at the European Parliament on September 14, 2010, by Dr. Lai Shin-yuan, Minister of the Mainland Affairs Council, Executive Yuan, http://www.mac.gov.tw/ct.asp?xItem=88292&ctNode=6256&mp=3 (accessed September 29, 2010). 40 “Taiwan, China agrees on economic commission,” The China Post, August 14, 2010. 41  “Taiwan-China trade deal passed by Taipei legislators,” BBC News, Asia-Pacific, August 18, 2010, available at http://www.bbc.co.uk/news/world-asia-pacific-11008076 (accessed August 22, 2010). 42 “Diplomatic Allies Support Taiwan at the Climate Change Summit, China intervened to oppose,” SINA.com, daily news, December 17, 2010, http://dailynews.sina.com/bg/ chn/chnoverseamedia/cna/20091217/1809971369.html (accessed September 30, 2010) (in Chinese).



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On March 31, 2009, Taiwan’s Legislative Yuan (Parliament) ratified the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights 42 years after the government of the ROC signed the two United Nations treaties in 1967.43 On the same day, the parliament approved legislation to implement these two Covenants.44 In accordance with Article 48, paragraph 2 of the International Covenant on Civil and Political Rights, Taiwan is required to deposit its instruments of ratification with the UN Secretary-General. The Covenant will then enter into force for Taiwan three months after the date of the deposit of its own instrument of ratification.45 The same requirements are found in Articles 26 and 27 of the International Covenant on Economic, Social and Cultural Rights. In June 2009, Taiwan deposited the instru­ments of ratification to the UN Secretariat, but was returned because the United Nations, under the 1971 UN General Assembly Resolution 2578, which recognizes that the representatives of the PRC are the only lawful representatives of China to the United Nations. The return of the deposit of the two ratified covenants by the UN Secretariat, however, did not prevent Taiwan from incorporating the two treaties and the Act into its domestic law, which entered into force on December 10, 2009. Under the Act, government agencies on all levels in Taiwan should protect human rights and Taiwan is required to establish a national human rights reporting mechanism in accordance with the two covenants.46 The approach taken by the ROC government to internalize international human rights laws and convert them into domestic law has been praised as a creative way to break the deadlock of Taiwan’s being excluded from the participation in the activities conducted by the UN and its specialized agencies. The approach is also considered useful to deal with Taiwan’s problem of being excluded from signing, ratifying, or acceding to the existing international treaties that either resulted from the UN-sponsored law-making conferences or from the UN specialized agencies. Moreover, it is believed that the approach can help Taiwan to link its domestic legal development with the development of international law.47

43 “Legislature ratifies UN rights treaties,” Taipei Times, April 1, 2009, http://www .taipeitimes.com/News/taiwan/archives/2009/04/01/2003439900/print (accessed September 4, 2010). 44 The Act was approved by the Legislative Yuan on March 31, 2009 and promulgated by the government on April 22, 2009. For the English text of the Act, visit the Laws and Regulations Database of the Republic of China at: http://law.moj.gov.tw/Eng/LawClass/ LawAll.aspx?PCode=I0020028 (accessed on September 4, 2010). 45 Article 49(2) of the International Covenant on Civil and Political Rights. 46 See Articles 4–6 of the Act, supra note 4. The reporting obligation is provided in Article 16 of the International Covenant on Economic, Social and Cultural Rights and Article 40 of the International Covenant on Civil and Political Rights. 47 C.V. Chen, “Cannot Rely on President to Internalize Multilateral Treaties,” Op-ed article, China Times, April 20, 2009 (in Chinese).

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In September 2010, Taiwan reiterated that it aims to achieve “meaningful participation in international organizations and to promote broader participation for Taiwan in the UN specialized agencies such as IMO, ICAO, and WMO, as well as in the conferences of parties to a number of important environmental treaties, such as UNFCCC and CBD. But for the operational consideration, the targets set for “meaningful participation” in UN specialized agencies are ICAO and UNFCCC.48 International support for Taiwan’s efforts to participate in UNFCCC and ICAO as an observer has come from the European Parliament, the Australian Parliament, the United States Senate and 19 representatives of the U.S. Congress.49 A Way Forward to Increase Taiwan’s Participation in Global Ocean Governance Ocean governance is composed of legal, institutional, and implementation elements, and effective ocean governance rests on legal, political, institutional, and capacity-building pillars. For the purpose of achieving effective global ocean governance, an inclusive approach needs to be adopted, one which involves not only states, but also entities, IGOs, NGOs, and other stakeholders that are involving in the negotiation, conclusion and implementation of the legal instruments related to ocean affairs and the law of the sea. Taiwan’s participation in global ocean governance since the loss of its membership in the UN system in 1971 has been restricted to a great extent mainly because of the rigid adherence of the “One China” principle by the government of the PRC. As a result of the PRC’s opposition, Taiwan’s participation in global ocean governance over the past three decades has focused on adopting domestic legal and policy measures to implement those principles, rules, and norms that are incorporated into the ocean-related international legal instruments, or the resolutions or decisions adopted by UN-related and non-UN organizations. Due to the development of a better political relationship between Taiwan and mainland China, as well as a change in Taiwan’s strategy to bid for participation in UN-related organizations, it is believed that a window of opportunity has been opened for increasing Taiwan’s participation in global ocean governance. No doubt, this window of opportunity is subject to a compromise that must be reached between Taiwan and mainland China with regard to the interpretation and handling of the issue of “One China.” It is therefore urged to include

48 “Taiwan reiterates goal of joining U.N. organizations,” Focus Taiwan News Channel, September 2, 2010, http://focustaiwan.tw/ShowNews/WebNews_Detail.aspx?ID=2010 09020017&Type=aIPL (accessed September 9, 2010). 49 “Gov’t reiterates int’l participation goals,” The China Post, September 3, 2010, http:// www.chinapost.com.tw/taiwan/national/national-news/2010/09/03/271192/Govtreiterates.htm (accessed September 30, 2010).



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Taiwan’s participation in international organizations, and in particular, in global and regional ocean governance, in the cross-Strait talks under the existing ARATS and SEF dialogue mechanism. There have already been seen a number of precedents that reflect the workable compromise between Taiwan and mainland China over the interpretation of the “one China” principle, and between Taiwan and relevant UN-related or non-UN organizations over the requirement of statehood for participation in the oceanrelated legal instruments and institutions. Taiwan’s participation in a number of regional fisheries management organizations as a full member, non-cooperating party/fishing entity, or cooperating none-party/fishing entity under the name Chinese Taipei, such as WCPFC, CCSBT, ICCAT, IATTC, by signing a special arrangement or adopting a resolution for the participation. The most recent example in this regard is Taiwan’s becoming a member of the Inter-American Tropical Tuna Commission after Taiwan’s Legislative Yuan approved the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of American and the Republic of Costa Rica (Antigua Convention)50 and the Instrument for the Participation of Fishing Entities Chinese Taipei in IATTC on April 20, 2010.51 In accordance with Article 28 of the Antigua Convention, any fishing entity whose vessels have fished for fish stocks covered by this Convention at any time during the four years preceding the adoption of this Convention may express its firm commitment to abide by the terms of this Convention and comply with any conservation and management measures adopted pursuant thereto, by: (a) signing an instrument drafted in accordance with the resolution adopted by the Commission; and/or (b) providing a written communication in accordance with the resolution adopted by the Commission.52

On August 17, 2010, Taiwan submitted the instrument of ratification to the depositary of the Convention, that is, United States and became a full member of IATTC. The government of PRC also signed the Convention on March 3, 2004 and ratified it on June 3, 2009.53 Both Taiwan and mainland China are members of IATTC. The same practice is also found in WCPFC. On September 5, 2000, a representative of Taiwan signed an Arrangement for the Participation of Fishing Entities.54 On November 2, 2004, in accordance with that Arrangement, Taiwan

50 Antigua Convention was adopted at the 70th Meeting of the IATTC on June 27, 2003 and entered into force on August 27, 2010. 51  The instrument was signed on November 14, 2003 by the Representative of the Taipei Economic and Cultural Representative Office in the United States. 52 For the status of commitments to the Convention by IATTC members, visit: http://www .iattc.org/IATTCdocumentationENG.htm (accessed September 22, 2010). 53 Ibid. 54 For the text of this instrument, visit: http://www.wcpfc.int/doc/arrangement-participationfishing-entities (accessed September 30, 2010).

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advised the Depositary that it had fulfilled its domestic requirements and that it agreed to be bound by the regime established by the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean55 in accordance with its Article 9(2) as a Member in the WCPFC. The PRC acceded to the Convention on November 2, 2004 and became a member of WCPFC on December 2, 2004.56 Thus, both Taiwan and mainland China are members of the regional fisheries management organization. Another existing practice is found in Taiwan’s participation, as an “observer” under the name Chinese Taipei, at the 62nd World Health Assembly (WHA) in May 2009 and the 63rd WHA in May 2010. Due to political concerns about a possible turnover of power from a government in Taiwan that supports the 1992 Consensus and future reunification of the two sides of the Taiwan Strait to another government that emphasizes Taiwanese identity and advocates independent from China, Taiwan’s participation at the WHA depends formally on annual invitations from the WHO Director-General. Despite this limitation, however, the practice in WHO can still be replicated in other UN-affiliated organizations such as ICAO and IMO, or other conferences or processes that are convened by UNrelated organizations in relation to ocean affairs and the law of the sea, such as the ICP and the SPLOS. Concluding Remarks To achieve effective global ocean governance, it is necessary that participation be as broad and inclusive as possible. At the international level, this means that all state members of the United Nations, non-UN member states and other political entities, intergovernmental organizations, intergovernmental bodies and agencies, non-governmental organizations, and other stakeholders concerned with the development of oceans and the law of the sea should be included in the development of global ocean governing process. Since its loss of membership in the UN system in 1971, Taiwan’s participation in the management and governance of ocean affairs has greatly been restricted. Rigid adherence to the “One China” principle by the government of the PRC has also resulted in Taiwan’s being denied the chance to participate in the negotiation, conclusion, and implementation of the ocean-related international legal instruments, in particular, the UNCLOS, and the UN-related organizations, as well

55 The Convention was opened for signature on September 5, 2000 and entered into force on June 19, 2004. For the text, visit: http://www.wcpfc.int/key-documents/conventiontext (accessed September 30, 2010). 56 For the status of the Convention as of November 7, 2009, visit: http://www.wcpfc.int/ doc/wcpfc2-2005-07-rev2/status-convention-34k (accessed September 30, 2010).



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as other UN-related conferences and meetings that are dealing with ocean affairs and the law of the sea. Clearly the government of PRC holds the key to Taiwan’s “meaningful participation” in international legal instruments and their mechanisms, as well as UN-related and non-UN institutions that are considered important elements of global ocean governance. The rapid warming of the relationship between Taiwan and mainland China since May 2008 has contributed to opening a window of opportunity for Taiwan’s participation in the global ocean governance. Taiwan’s willingness to abide by “the 1992 consensus,”57 and the flexibility and good will shown by the government of the PRC over the past two years have led to positive expectations that it will be possible to increase Taiwan’s participation in global ocean governance. The ROC government’s pragmatic approach to seek “meaningful participation” as an observer in UN-affiliated conferences and the specialized agencies of the United Nations, instead of bidding for membership in the UN system, has also helped increase Taiwan’s chances of participating in global ocean governance. The signing of the ECFA between Taiwan and mainland China in June 2010 and entry into force of the agreement in September 2010 will expand cross-Strait cooperation and increase their mutual trust in dealing with more complicated and sensitive issues, such as Taiwan’s call for an enlargement of its “international living space.” Both of the PRC President Hu Jintao and Premier Wen Jiaboa have stated that mainland China is willing to discuss proper and reasonable arrangements for Taiwan’s participation in activities of international organizations, as long as this does not create a scenario of “two Chinas” or “one China, one Taiwan.” Taiwan’s participation in the UN General Assembly, ICAO, SPLOS, ICP, UNFCCC, and CBD, by assuming observer status and operating under the name Chinese Taipei, should be considered consistent with the position taken by the PRC leaders. If this is accepted, there is a need for the ARATS of mainland China and SEF of Taiwan to include Taiwan’s “meaningful participation” in the ocean-legal instruments and institutions in cross-Strait talks. It is therefore concluded that Taiwan’s efforts to participate in the UN General Assembly, ICAO, SPLOS, ICP, UNFCCC, CBD, and other ocean-related legal instruments and institutions should be welcomed.

57 The consensus was reached at a meeting held in 1992 between the representatives of the People’s Republic of China in mainland China and the Republic of China in Taiwan. The two sides recognize that there is only one China, both Taiwan and mainland China belong to the same China, but both sides agree to verbally express the meaning of that one China according to their own individual definition.

B. Europe and the Mediterranean Regions

Introductory Remarks: Law of the Sea in the European Union and in the Mediterranean Tullio Treves

Consideration of institutions and regions in ocean governance with respect to Europe and the Mediterranean, which is the subject of Chapters 18 and 19, covers a series of questions that goes far beyond the scope of the subjects so ably examined by our colleagues Doris Koenig and Davor Vidas. Each of them will give insights on very specialized aspects: ship emissions regulations in the European Union and the International Maritime Organization, and governance in the Mediterranean, the Adriatic and the EU. Their studies offer in-depth consideration of deeply interesting subjects that suggest some of the richness and complexity of the law of the sea questions in the European Union and in the Mediterranean. My purpose in this brief paper is to suggest in a very elementary and concise manner the more general framework within which these topics stand. I would like to state at the outset that the law of the sea in the European Union and the law of the sea in the Mediterranean are two different subjects with important areas of overlap, due to the fact that a number of States with coasts on the Mediterranean are also member States of the European Union. These States are, going from West to East, Spain, France, Italy, Slovenia, Greece, Malta, Cyprus, as well as, if we include also the Black Sea, Bulgaria and Romania. Other States with coasts on the Mediterranean, such as Croatia and Turkey, are candidates to accession to the EU. The European Union The European Union has become a protagonist of the law of the sea. Its member States have coasts on many seas (the Baltic, the North Sea, the Mediterranean, the Black Sea) as well as on the Atlantic Ocean. Together with all its member States, the EU is a party to the UN Convention on the Law of the Sea and to the UN Fish Stocks Agreement, and, together with the member States of the regions concerned, of regional conventions for the protection of the environment, such as those concerning the Mediterranean and the Baltic, as well as the

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OSPAR Convention. As discussed by Professors Franckx and Van den Bossche, in Chapter 22, below, various agreements are also being concluded with African states with regard to control of fishing activities in their coastal waters. The EU is not, however, a party to the conventions adopted within the framework of the International Maritime Organization, as it has not yet obtained the status of member of that organization. The competences of the EU include several maritime activities. In some cases, in particular with respect to fisheries, the EU’s competence is exclusive. This has led it to adopt a very articulated common fishery policy which can be seen as the fishery legislation of a big coastal State whose coasts are those of the EU’s nonlandlocked member States. Recently, EU regulations have included also subjects of general international concern, such as deep-sea fishing and IUU fishing on which negotiations are also held within the FAO. The EU exclusive competence on fisheries is exercised with regard to participation in fisheries agreements, including those adopted within the framework of FAO. The EU is normally a party to these agreements without its Member States. In other cases, in particular as regards the protection of the marine environment and navigation, the competence of EU is concurrent with that of the member States, with the consequence that both the Union and the Member States are parties to the relevant international treaties. The borderline between concurrent and exclusive competence is, however, a moving one. The competences of the Union tend to expand. In particular its external competences, including those concerning the conclusion of treaties and litigating fisheries cases before international tribunals (this was the case of the EC/Chile swordfish dispute before a Chamber of the International Tribunal for the Law of the Sea) expand to all fields on which the EU adopts legislation. The European Court of Justice, to whose decisions the just-mentioned expansion of EU competence is due, has refined and further amplified this process by holding that all treaties to which the Union is a party become EU law and that, as a consequence, disputes between member States concerning their interpretation and application can be submitted only to the European Court of Justice. The legal basis of this position is the rule in the Lisbon Treaty for the Functioning of the European Union (and previously in the EC Treaty) that all disputes between member States concerning EU law are under the exclusive jurisdiction of the European Court of Justice. This point was made in that Court’s well-known and controversial Mox judgment, which decided that Ireland had infringed the EC Treaty in submitting a dispute with the United Kingdom to arbitration under the UN Law of the Sea Convention. In the fields of navigation and prevention of pollution from vessels, including the prevention of incidents, the EU has developed a complex web of legislation, mostly produced under the impulse of notorious navigational incidents causing environmental disasters in the waters and coasts of member States. It may ­suffice



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to recall the now remote Amoco Cadiz incident and the most recent ones concerning the Erika and the Prestige. The EU legislation has provoked a certain tension with IMO, as it has sometimes preceded and conditioned the activities of this organization by binding an important number of high-tonnage States whose negotiating positions become consequently constrained. On the other hand, it has also contributed, albeit only for its member States, to harden soft law on navigational and pollution matters. This was the case of the EU Regulations corresponding to the Paris Memorandum for inspection of vessels. The Mediterranean The Mediterranean joins three continents and is criss-crossed by some of the busiest sea lanes of the world. Navigation in these sea lanes passes through a patchwork of maritime zones of different widths and covering different activities. We find not only continental shelves, but also exclusive economic zones, fishery zones, environment protection zones, contiguous zones, archaeological zones. If all States with coasts on the Mediterranean were to expand their jurisdiction to the maximum permitted by international law, not one square inch of it would be in the high seas, since no point in the Mediterranean is at a distance exceeding 200 miles from a coast. Consequently, all existing areas of high seas in the Mediterranean are superjacent to continental shelf areas and are potential exclusive economic zones. The view has recently been developed both in the IUCN group dealing with the protection of the environment in the Mediterranean and in EU Commission circles, contending that all Mediterranean coastal States should establish exclusive economic zones so that agreements on delimitation of maritime areas could be concluded to cover the whole of this sea. To clarify in this way the jurisdictional status of all the waters of the Mediterranean would be, according to this view, a necessary precondition for better governance in the Mediterranean. Due to the differences in the degree of development and in political orientation, cooperation among the States bordering the Mediterranean is rather loose and sometimes difficult. The most remarkable success of such cooperation is the Barcelona system, consisting of the Barcelona Convention of 1976 and related Protocols concerning different forms of pollution and of environmental cooperation. The Convention was updated in 1995, with the new title of Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, in order to introduce modern environmental law concepts, especially those developed in the Rio Declaration of 1992. Updated Protocols have been adopted also. Although not all Mediterranean States have adopted all protocols in the latest version, the Barcelona system binds all these States, including those that are at the center of well-known international tensions such as between Israel and its neighbours, and Greece, Cyprus and Turkey.

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The system includes periodic conferences of State parties. The latest of these conferences, held in Almeria, Spain, has adopted a non-compliance system modelled, with some variants, on those already experimented in the framework of the most important international multilateral environmental agreements. This does not, however, fully compensate the lack of an efficient mechanism for the settlement of disputes. The participation of the EU together with its Mediterranean States parties in the Barcelona Convention and several of its Protocols has had the consequence that a dispute concerning alleged violations of one of the Protocols by a Mediterranean EU member State has been submitted to the European Court of Justice by the European Commission. Whether this is good or bad in light of the need to ensure equality of treatment of the States parties to the Protocol is debatable. Attempts to develop cooperation between the Mediterranean States at high political level, such as the recently launched “Union pour la Méditerranée,” have been disappointing, at least for the time being. Competing political ambitions for leadership, difficulties in the relationship with the EU, and differing views as to the economic implications have been the main obstacles encountered.

Eighteen

Global and Regional Approaches to Ship Air Emissions Regulation: The International Maritime Organization and the European Union Doris Koenig*

Ship air emissions have been a subject of concern to the international community since the early 1990s. In this respect, an important distinction has to be made: First, air pollutants such as nitrogen oxide (NOx), sulphur oxide (SOx) and volatile organic compounds were regulated. These regulations were revised in 2008, and the entry into force of stricter sulphur limits in ship fuel, in particular, led to costly changes for the shipping industry. Second, greenhouse gas (GHG) emissions, especially CO2 emissions, in the maritime sector came into focus in the late 1990s. The most critical issues are still unresolved, but ought to be decided soon since the urgency of the challenge posed by global warming does not allow for further delay: But which organization—the International Maritime Organization (IMO), the Conference of States Parties of the United Nations Framework Convention on Climate Change (UNFCCC) or unilateral entities such as the European Union (EU)—is entitled to impose (and also actually capable of imposing) regulative measures on the shipping industry in order to reduce CO2 emissions? And what kind of instrument should be established? This Chapter will provide, first, in Part I, a short overview of the new IMO regulations concerning air pollutants. Turning in Part II to greenhouse gas emissions, the discussions in the UNFCCC and the IMO will be examined and the critical issues will be pointed out. In Part III, the activities of the EU and the issue of extraterritorial jurisdiction will be discussed. This Chapter will close with an appeal to all States to reach consensus on the global level in order to avoid heterogeneous regional regulations which are particularly burdensome for maritime transport.

* I want to thank my Ph.D. students Lutz Morgenstern and Christoph Hessling for their assistance.

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Air Pollutants: NOx and SOx Air pollutant emissions from ships are covered by Annex VI of the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), adopted in 1997. The Annex established nitrogen oxide emission standards for ships’ engines, and a limit of 4.5% for the sulphur content of fuels used by ships. Additionally, it provided for the establishment of so-called “Sulphur Oxide Emission Control Areas (SECAs)” in which the sulphur content must not exceed 1.5%. Current SECAs include the Baltic Sea and the North Sea with the English Channel. When entering into force in 2005, the limits established in Annex VI were already out-dated. Thus the Parties initiated a revision which led to the adoption of more ambitious limits by the Marine Environment Protection Committee (MEPC) in 2008.1 With these 2008 amendments, the limit for sulphur will be decreased from 4.5% to 3.5% in 2012 and to 0.5% in 2020. Additionally, the specific limit for sulphur, within the new “Emission Control Areas (ECAs)” targeted at stricter limits for all air pollutants, was also lowered. In March 2010, the first ECA was established off the coasts of North America and will be in effect from August 1, 2012. The new sulphur limit entered into force on July 1, 2010. As of this date, all ships operating in (S)ECAs need to use fuel with a sulphur content not exceeding 1%. This means a drop of one third from the former limit. In 2015, this limit will be decreased again to then be 0.1%.2 To implement the regulations contained in the 1997 Annex VI, the EU adopted the Marine Fuel Sulphur Directive in 2005.3 This action raises an important question as to the role that the EU plays in implementing IMO standards. By being transformed into an EU directive, the IMO provisions have to be transposed by all EU Member States into their national legal systems, usually within a time period of one to two years. This is an obligation deriving from EU treaty law, irrespective of whether all of the 27 Member States have ratified the pertinent IMO convention. If a member state does not transpose such a directive in due time, the European Commission usually institutes an infringement procedure before the European Court of Justice (ECJ). The Court may impose a substantial pecuniary penalty on the non-complying member state to enforce that obligation. Therefore, the EU plays a crucial role in implementing IMO standards in Europe. From a global point of view, however, it might be a source of tensions

1  IMO Briefing 46, October 10, 2008, accessible at http://www.imo.org/Newsroom/ mainframe.asp?topic_id=1709&doc_id=10262 (last visited January 7, 2013). 2 For more details see Karoline Solhaug/Jannike Eide-Fredriksen, “Revision of MARPOL Annex VI and the NOx Technical Code,” DNV Tanker Update 2 (2008): 11–13. 3 Directive 2005/33/EC of the European Parliament and of the Council of July 6, 2005 amending Directive 1999/32/EC as regards the sulphur content of marine fuels, Official Journal of the European Union, L 191/59, July 22, 2005.



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in that the EU sometimes goes a step further by adopting standards that are stricter than IMO standards. Since January 1, 2010, for instance, the EU requires all ships at berth or anchorage in EU ports to use fuels with a sulphur content of less than 0.1%. In addition, on December 21, 2009, the European Commission adopted a (non-binding) Recommendation on the safe implementation of the use of low sulphur fuel by ships at berth in Community ports.4 Since jurisdiction over internal waters is not limited under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), this strict regional emission standard is, however, in conformity with the international law of the sea. Furthermore, the Commission announced its plan to turn the 2008 amendments to Annex VI into EU law as soon as possible. Industry calls for a postponement of the 2015 deadline concerning the 0.1% limit in Emission Control Areas have been firmly rejected. In sum, the IMO has proven to be capable of efficaciously establishing and tightening standards reducing air pollution by ship emissions. The EU is in the process of transforming the revised 2008 IMO standards into EU law, thus making their implementation mandatory for all member states. Carbon Dioxide Emissions by Shipping According to the much noticed “Second IMO GHG Study 2009,” commissioned by the International Maritime Organization, shipping is estimated to have emitted about 2.7% of the global CO2 emissions in 2007.5 In the absence of policies to reduce greenhouse gas emissions in the maritime sector, emission scenarios show that these emissions may grow by a projected factor of two to three by 2050.6 Currently, these emissions are neither regulated by the 1992 United Nations Framework Convention on Climate Change and its 1997 Kyoto Protocol, nor by any IMO instrument. In the following subsections, first the outcome and implications of the 16th Conference of the Parties (COP 16) of the UNFCCC, better known as the Cancún Climate Summit, which took place in December 2010, will be summarized. Second, the activities and reactions in the IMO after Copenhagen, the previous UNFCCC Conference of the Parties in December 2009 (COP 15), will be outlined.

4 Commission Recommendation of December 21, 2009 on the safe implementation of the use of low sulphur fuel by ships at berth in Community ports, Official Journal of the European Union, L 348/73, December 29, 2009. 5 IMO, “Second IMO GHG Study 2009” (London, 2009), 1. 6 Ibid.

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The Road to Cancún and the Conference’s Outcome with regard to Shipping Emissions At first sight, it might seem surprising that both the Copenhagen and Cancún Climate Summit were expected to deal with shipping emissions, given that the 1997 Kyoto Protocol explicitly states that “[t]he Parties included in Annex I shall pursue limitation or reduction of emissions of greenhouse gases . . . from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.”7 However, until now, both organizations have failed to adopt binding rules. Consequently, some hoped that the UNFCCC States Parties would reinstall the issue of shipping emissions on its agenda and adopt regulative measures itself within the expected broader framework of a post-2012 climate agreement. Others wished for the UNFCCC to at least provide some guidance for the IMO as to how the conflicting principles of “common but differentiated responsibilities” underlying the UNFCCC and its Kyoto Protocol and the principle of equal treatment, i.e., no more favorable treatment of all ships irrespective of flag, governing IMO conventions could be reconciled.8 In the end, both expectations were frustrated. Given the disappointing results, some labeled COP 15 a “failed opportunity.”9 Nonetheless, others welcomed the fact that the lack of results at least renewed the opportunity for the IMO “to plot its own course on greenhouse action.”10 Unfortunately, Cancún failed to address the topic of CO2 emissions from shipping and aviation in its final decision as well. Even though it was discussed repeatedly, and different proposals were featured in several provisional working papers of the subsidiary bodies and ad hoc working groups (although due to the differing opinions heavily bracketed), the Parties eventually were unable—or unwilling—to reach consensus on how to phrase even a modest mandate for the IMO and ICAO that would no more than encourage them to continue their work on this issue.

7 Article 2, Section 2 of the Kyoto Protocol. 8 Clearly so Lloyd’s Register briefing: COP 15 and the shipping industry, January 12, 2010, 1; see Norton Rose, “Shipping and carbon emissions,” April 2010, accessible at http:// www.nortonrose.com/knowledge/publications/27135/shipping-and-carbon-emissions (last visited January 7, 2013); Carbon Positive, “2010 outlook: Shipping and carbon emissions,” January 8, 2010, accessible at http://www.carbonpositive.net/viewarticle .aspx?articleID=1808 (last visited March 15, 2011, not available anymore). 9 Transport & Environment, “Analysis: Aviation and Shipping Emissions after Copenhagen,” January 4, 2010, accessible at http://www.transportenvironment.org/News/2010/1/ Analysis-Aviation-and-Shipping-Emissions-after-Copenhagen/ (last visited January 7, 2013). 10 Carbon Positive, “2010 outlook: Shipping and carbon emissions.”



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The Work of the “Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA)” In order to understand the course of action in the climate negotiations within the UNFCCC context, it is necessary to look more closely at the work undertaken by the so-called “AWG-LCA,” the “Ad Hoc Working Group on Long-term Cooperative Action under the Convention.” In the run-up to Cancún, this body was the main forum to discuss the issue of shipping emissions. According to its mandate, which is contained in the Bali Action Plan, the AWG-LCA was inter alia asked to address “[e]nhanced national/international action on mitigation of climate change, including [. . .] (iv) cooperative sectoral approaches and sectorspecific actions, in order to enhance implementation of Article 4, paragraph 1 (c), of the Convention.”11 Article 4 (1) (c) of the UNFCCC provides that all Parties shall promote the development and application of technologies, practices and process that reduce greenhouse gas emissions “[i]n all relevant sectors, including [. . .] transport.”12 By referring to this provision, the Bali Action Plan opened the door for considering and negotiating the regulation of shipping emissions within the framework of the UNFCCC. However, within two years, from Bali to Copenhagen, the AWG-LCA was not able to prepare an agreement acceptable to all Parties. One month before COP 15, at a meeting in Barcelona, the group could only agree to a so-called “Non-Paper No. 49”13 including different options for reducing greenhouse gas emissions from the shipping and aviation sector.14 In Copenhagen, negotiations on shipping emissions centered on this document, but delegates were again not able to solve the most contentious issues. Nonetheless, the facilitators of the responsible drafting group tabled a consolidated version of the prior negotiating text which contained five notable objectives. The first one was to establish a 10% or a 20% reduction of global shipping emissions below 2005 levels by 2020. Another objective was to ensure that revenues generated by the proposed instruments are used for adaptation to and mitigation of climate change.15 In other words, the funds would have been “earmarked.” However, the Chair of the AWG-LCA did not incorporate these proposals into his draft conclusions presented to the Conference of the Parties. Correspondingly, shipping or other transport emissions were mentioned neither in the declaration resulting from COP 15, the Copenhagen Accord (which was only taken note of by the Conference of the Parties), nor in the final agreement 11  Bali Action Plan, Decision 1/CP.13, Para. 1 (b) (iv). 12 Article 4 (1) (c) of the UNFCCC. 13 Accessible at http://unfccc.int/files/meetings/ad_hoc_working_groups/lca/application/ pdf/awglca1bivnp49051109.pdf (last visited January 7, 2013). 14 See Norton Rose, “Shipping and carbon emissions.” 15 Ibid., 3. These proposed reduction targets mirrored the demands put forward by the EU, see Transport & Environment, “Analysis: Aviation and Shipping Emissions after Copenhagen.”

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of COP 16 in Cancún. Only a short reference to “alternative sources of finance”16 the Copenhagen Accord was considered a possible opening for the introduction of an instrument generating funds in the maritime and aviation sector.17 The Work of the “High-level Advisory Group on Climate Change Financing” Reference to “alternative sources of finance” leads to another interesting implication of COP 15 which proved to be of relevance for the Cancún discussions regarding the shipping sector. Another paragraph of the Copenhagen Accord stated that “a High Level Panel will be established to study the contribution of the potential sources of revenue, including alternative sources, towards meeting [the goal of up-scaling the climate change financing for developing countries].”18 This provision can be traced back to an idea voiced earlier by UN Secretary-General Ban Ki-moon. A few weeks after the Copenhagen Climate Summit, the SecretaryGeneral established a High-level Advisory Group on Climate Change Financing (AGF), which was asked to conduct a study on potential sources of revenue for the scaling-up of new and additional resources from developed countries for financing measures in developing countries.19 According to its terms of reference, the group was expected to conduct its work “in the spirit of the political commitments contained in the Copenhagen Accord, with a view to contributing to an appropriate decision of the UNFCCC Conference of the Parties at its 16th session in Mexico.”20 The final report of the AGF was submitted to the UN Secretary-General in November 2010 and, indeed, identified the transportation sector through both shipping and aviation as a potential source of revenues that could be used for adaptation to and mitigation of climate change in developing countries.21 During the Cancún summit that took place only a month after the publication of the AGF Report, this caused considerable attention, because several NGOs tried to convince developing countries’ delegations that the distribution of the funds 16  Copenhagen Accord, para. 8, sentence 5: “This funding will come from a wide variety of sources, public and private, bilateral and multilateral, including alternative sources of finance.” 17  See Transport & Environment, “Analysis: Aviation and Shipping Emissions after Copenhagen.” 18  Copenhagen Accord, para. 9. 19  See http://www.un.org/wcm/content/site/climatechange/pages/financeadvisorygroup (last visited January 7, 2013). Members of this high-profile body included heads of states and governments such as Jens Stoltenberg and until his death in 2012 Meles Zenawi, Prime Ministers of Norway and of Ethiopia, several ministers, and also finance experts such as Sir Nicholas Stern, George Soros, Lawrence Summers and Caio Koch-Weser. 20 See http://www.un.org/wcm/content/site/climatechange/pages/financeadvisorygroup/ tors (last visited January 7, 2013). 21  See Report of the Secretary-General’s High-Level Advisory Group on Climate Change Financing (AGF Report), November 5, 2010, 6, 11, and 23.



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generated in these sectors might be a feasible approach to respect the principle of common but differentiated responsibilities both in the IMO and the ICAO without explicitly mentioning this principle in the further negotiations in these organizations. Even though none of the various proposals by NGOs found its way into the final document of COP 16, the prospect of revenues are likely to keep the topic of CO2 emissions from the maritime and aviation sector on the UNFCCC agenda. Conclusion To conclude, neither the Copenhagen Climate Summit nor the subsequent conference in Cancún led to any measurable result regarding CO2 emissions from shipping. During both conferences, however, it became clear that the shipping industry is considered by the international climate change community as a sector with the potential to generate significant funds for financing climate change adaptation and mitigation measures in developing countries.22 Pointing this out does not mean to say that the adoption of an instrument under the UNFCCC is very likely. It has to be stressed, though, that the maritime community within the IMO should not come to the premature conclusion that all attempts by the climate change community to adopt regulations on CO2 emissions from shipping have been dropped. Activities of the IMO since Copenhagen General Remarks Since 1997, the year the Kyoto Protocol was adopted, the IMO has dealt with the issue of greenhouse gas emissions from the maritime sector.23 However, it has not yet adopted any binding instrument effectively addressing this challenge.24 The main stumbling block to an agreement was and still is the difference of opinion regarding the application of the principle of “common but differentiated responsibilities” within the IMO. While many developing and threshold countries insist to date that this principle has to be fully respected, and that it calls for a

22 Norton Rose, “Shipping and carbon emissions;” Transport & Environment, “Analysis: Aviation and Shipping Emissions after Copenhagen;” AGF Report, 23. 23 IMO, “Second IMO GHG Study 2009,” 60. 24 Since the initial presentation of this paper at the conference in 2010, the IMO has adopted two measures adressing this issue: at the MEPC 62 in July 2011, the Energy Efficiency Design Index (EEDI) and the Ship Efficiency Management Plan (SEEMP) have been made mandatory. At the following 63rd MEPC meeting in March 2012 four guidlines were adopted to assist their implementation, see http://www.imo.org/ourwork/environment/pollutionprevention/airpollution/pages/technical-and-operationalmeasures.aspx (last visited January 7, 2013). For more information see 325–328 of this paper.

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clear distinction between developed and developing countries in the application of any IMO instrument on GHG emissions, the majority of developed countries shares the view that measures imposed by the IMO shall not interfere with the principle of “equal” or “no more favorable” treatment of ships irrespective of flag. Given the ease with which the flag of a ship can be changed, they fear massive evasion if regulations adopted by the IMO were not to be applied and adhered to in the same way by all flag states.25 Even today, regulatory measures restricted to ships from developed countries would have a limited effect for the purpose of combating climate change, given that, according to calculations by the IMO, three-quarters of the world’s merchant fleet fly the flag of countries not listed in Annex I to the UNFCCC.26 Moreover, it is important to understand the concern of developing countries not to set a precedent for the wider climate change negotiations by accepting an instrument for the shipping sector placing them on an equal footing with developed countries. Nevertheless, the IMO has already carried out significant preparatory work in analyzing the scope of the problem and possible options to solve it. The “Second IMO GHG Study 2009” did not only update the estimates on current and future emissions, but also explored different instruments and options to reduce CO2 emissions from the international maritime sector. Broadly speaking, there are three types of measures to reduce CO2 emissions from shipping, namely (1) technical measures, (2) operational measures, and (3) market-based measures.27 Technical measures aim at improving the design efficiency of the fleet. To initiate such improvements, technical standards may be prescribed, e.g., for the hull design or for ship engines, which lead to an accelerated application of more energy-efficient and lower-emission technologies on board of vessels. Operational measures are supposed to increase the operational efficiency of ships, for example, by improving ship management and logistics or by using wind power (“sky sails”). Other examples for operational measures are the establishment of vessel speed reductions (“slow-steaming”), real-time coordinated vessel management, the so-called “in-time arrival” and weather routing.28 In order to define and assess technical and operational measures, the establishment of indexes is at minimum helpful, and often it is considered necessary.29 25 See also The Chamber of Shipping of the UK et al., “A global cap-and-trade system to reduce carbon emissions from shipping,” September 2009, accessible at http://www .shippingandco2.org/CoS-GlobalCapAndTrade.pdf, 7 (last visited January 7, 2013). 26 IMO Briefing 48, October 13, 2008, accessible at http://www.imo.org/Safety/main frame.asp?topic_id=1709&doc_id=10268 (last visited January 7, 2013). 27 IMO, “Second IMO GHG Study 2009,” 67. 28 See German Federal Environment Agency (Umweltbundesamt), “Integration of Marine Transport into the European Emissions Trading System: Environmental, economic and legal analysis of different options,” May 2010, 28. 29 IPCC, “Transport and Its Infrastructure,” in Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel



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In this regard, some initial progress has been achieved already. Since a resolution adopted by the IMO Assembly in 2003, the MEPC considers the introduction of indexing schemes for ships in order to increase technical and operational improvements.30 The basic idea behind an indexing scheme is that it describes the energy and fuel efficiency of a ship, i.e. by measuring the CO2 emissions per ton of cargo transported over one nautical mile. An index might also assess more specific technical features such as the hull design and operational features such as the average speed of the ship. In order to induce any significant reductions in GHG emissions, the introduction of an index would need to be combined with requirements such as a mandatory index ranking to be reached for each ship or mandatory reporting obligations.31 In recent MEPC discussions, the debate on indexing schemes has centered on plans for the introduction of a mandatory “Energy Efficiency Design Index” (EEDI) which will apply only to new vessels.32 Currently, the IMO promotes the voluntary use of this index.33 The EEDI is a non-prescriptive, performance-based mechanism that enables ship-owners and engineers to choose the most cost-efficient technology to attain the required energy efficiency level. To stimulate new technological developments, the reduction level which in the first phase is set to 10% will be tightened every five years. The EEDI will be complemented by a less rigid “Ship Energy Efficiency Management Plan” (SEEMP) for all ships in operation that establishes a mechanism for a shipping company or a ship to improve energy efficiency of ship operations.34 With regard to market-based instruments, which are aimed at raising the costs of using fuel or emitting greenhouse gases thereby creating an additional incentive to improve the energy efficiency of each vessel, the prospects for IMO regulation have so far remained rather vague. This is true even though several studies, including the “Second IMO GHG Study 2009,” have presented detailed proposals for market-based instruments. The most prominent options are the introduction of a maritime emissions trading scheme or a global levy on marine bunkers.35

on Climate Change (Cambridge, 2007), 377. See also Sebastian Oberthür, “The Climate Change Regime: Interactions with ICAO, IMO, and the EU Burden-Sharing Agreement,” 65 et seq., in: Sebastian Oberthür/Thomas Gehring, eds., Institutional Interactions in Global Environmental Governance (Cambridge, 2006), 53–77. 30 Para. 1 (b), (c) of the IMO Resolution A.963(23) on IMO Policies and Practices related to the Reduction of Greenhouse Gas Emissions from Ships, adopted on December 5, 2003. On this resolution see also IMO, “Second IMO GHG Study 2009,” 61 et seq. 31 Ibid., 68. 32  Ibid., 62; ABS Regulatory Affairs: International Regulation News Update, Vol. 19 No. 1, May 2010, 1. 33 See the “Interim Guidelines for Voluntary Ship CO2 Emission Indexing for Use in Trials,” adopted by the MEPC in July 2005. 34 ABS Regulatory Affairs: International Regulation News Update, Vol. 19 No. 1, May 2010, 1. 35 IMO, “Second IMO GHG Study 2009,” 70 et seq.

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In the first case, each ship covered by the trading scheme would need to hold emission allowances corresponding to the amount of emissions it has caused. The allowances could be allocated in different ways, i.e., by auctioning, free allocation on the basis of former emissions, or a benchmark, or a combination of the above.36 They could be tradable either within the maritime emissions trading scheme itself or within other existing or future trading schemes as well. Furthermore, by allowing the use of credits from projects in developing countries (i.e. Clean Development Mechanism (CDM) credits), the scheme could finance adaptation and mitigation measures in those countries. In the second case, all ships in international trade would become subject to a levy on bunker fuels, established at a given cost level per ton of fuel bunkered.37 The levy could either be paid by the ship-owners or charterers, by the suppliers of bunker fuel or by oil refiners.38 Both schemes, if effectively implemented, would not only reduce emissions, but also raise funds which could be used for a number of purposes to contribute to financing the mitigation of or adaptation to climate change. However, this feature is not always perceived as an advantage since it means that the shipping industry is burdened more obviously and potentially more intensively than it would be in the cases of other regulatory options. This again raises the question whether, against the backdrop of the principle of “common but differentiated responsibilities,” ships registered in developing countries should be excluded or at least privileged by such a scheme or whether it should universally apply to all ships equally. Given the heated debate around this politically sensitive issue, the MEPC has for a long time proved to be very hesitant in considering the introduction of any market-based instrument. MEPC—60th and 61st Sessions During the 60th Session of the MEPC the same debate as in 2009 continued without any significant results.39 Regarding technical and operational measures, draft texts on mandatory requirements for the Energy Efficiency Design Index (EEDI) for new vessels and on the Ship Energy Efficiency Management Plan (SEEMP) for all ships in operation were prepared, but not finalized. The Committee finally concluded that “[m]ore work needs to be done before it completes its consideration of the proposed mandatory application of technical and operational measures designed to regulate and reduce emissions of greenhouse gases (GHGs) from international shipping.”40 Accordingly, an intersessional Working

36 Ibid., 72. 37 Ibid., 71. 38 Ibid. 39 ABS Regulatory Affairs: International Regulation News Update, Vol. 19 No. 1, May 2010, 1. 40 Accessible at http://www.imo.org/Newsroom/mainframe.asp?topic_id=1859&doc_id= 12724 (last visited January 7, 2013).



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Group was established which was expected to report back to the Committee’s next session (MEPC 61) from September 27 to October 1, 2010. This Working Group, composed of more than 200 representatives of member states and organizations with observer-status, gathered for a five-day meeting from June 28 to July 2, 2010. Its achievements presented at the 61st MEPC session were, however, small. Slight revisions of the existing draft texts relating to the index schemes could be agreed upon, and consensus was reached that the draft text of the regulations “[w]ould benefit from further drafting improvements and legal review.”41 In other words: Further work needed to be done—a result that had been reached before at the MEPC. At the moment, controversial discussions do not so much focus on technical or operational matters as on a legal and political issue, namely the question whether making the EEDI and SEEMP mandatory should be achieved by amending MARPOL Annex VI or by drafting a new convention. The main difference between these two options is the following: Amendments to Annex VI will be achieved by a tacit consent viz. opting out procedure laid down in Article 16 of MARPOL 73/78.42 In accordance with Article 16 (2)(f )(iii), an amendment shall be deemed to have been accepted by all Parties to the Annex after the expiry of a time-period not less than 10 months after its adoption, unless prior to that date not less than one third of the Parties or Parties whose combined merchant fleets constitute not less than 50% of the gross tonnage of the world’s merchant fleet have communicated to the IMO their objection to the amendment. Thus, a Party to Annex VI will be bound by an amendment if not enough other Parties that are against it formally object to the amendment. In contrast, in the case of a new convention each Party can decide whether it wants to ratify it or not. Therefore, this issue is of considerable importance to those states, in particular, that do not want to accept an obligation to reduce GHG emissions on the same footing as industrialized states listed in UNFCCC Annex I. With regard to market-based measures, the MEPC at its 60th session agreed to establish an “Expert Group on Feasibility Study and Impact Assessment of Possible Market-Based Measures (MBM-EG)” which was mandated to “[u]ndertake a feasibility study and impact assessment of the various proposals submitted for a market-based instrument for international maritime transport.”43 The principle of “common but differentiated responsibilities” is not explicitly mentioned in the

41 MEPC 61/5/3, “Reduction of GHG Emissions from Ships: Report of the Outcome of the Intersessional Meeting of the Working Group on Energy Efficiency Measures for Ships,” July 7, 2010, 10. 42  See Doris König, “Tacit Consent/Opting Out Procedure,” in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, online edition, accessible at http:// www.mpepil.com (last visited January 7, 2013). 43 Accessible at http://www.imo.org/Newsroom/mainframe.asp?topic_id=1859&doc_id= 12724 (last visited January 7, 2013).

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group’s mandate, but the group has been requested to provide information on how the difference in the socio-economic capability between developing and developed states and the specific needs and circumstances of developing states can be addressed.44 This request might be understood as a proxy for a mandate to elaborate on this politically sensitive issue. The Expert Group, composed of 35 experts nominated by Member Governments and organizations but serving in their own personal capacity, submitted a voluminous report to MEPC 61 discussing ten proposals for market-based measures.45 These proposals range from various emissions trading schemes backed by Norway, UK, France and Germany, an international fund financed by a global levy on the purchase of bunker fuel sponsored by Denmark, Cyprus, the Marshall Islands, Nigeria and the International Parcel Tankers Association, a rebate mechanism proposed by IUCN to compensate developing countries for negative financial impacts of market-based measures, various hybrid solutions based on the Energy Efficiency Design Index promoted by Japan, the US and the World Shipping Council and a port-based scheme favored by Jamaica to a proposal made by the Bahamas to leave marketbased measures aside and rely on technical and operational measures.46 This broad range of proposals shows how complex the issue of market-based measures is. Therefore, it is not surprising that the discussions are highly controversial and the various positions are extremely difficult to reconcile. Conclusion Currently, it is open to question whether the IMO will adopt ambitious measures to reduce greenhouse gas emissions from the maritime sector on a large scale. The EEDI and SEEMP, if introduced on a mandatory basis and combined with sanctions for failure to comply, will contribute to achieving some improvements. But given the fact that the EEDI will only apply to new ships, the effectiveness of this approach will be limited in scope and environmental effectiveness.47 The 44 ABS Regulatory Affairs: International Regulation News Update, Vol. 19 No. 1, May 2010, 1. 45 See Reduction of GHG Emissions from Ships—Full report of the work undertaken by the Expert Group on Feasibility Study and Impact Assessment of Possible MarketBased Measures, MEPC 61/INF.2, August 13, 2010, accessible at http://www.imo.org/ OurWork/Environment/PollutionPrevention/AirPollution/Documents/INF-2.pdf (last vis­ ited January 7, 2013). 46 For a summary see “Market-Based Measures Proposals under consideration within the Expert Group on Feasibility Study and Impact Assessment of Possible Market-Based Measures,” accessible at http://www.imo.org/OurWork/Environment/PollutionPrevention/ AirPollution/Documents/Summary%20of%20MBM-EG%20proposals.pdf (last visited January 7, 2013). 47 IMO, “Second IMO GHG Study 2009,” 1, 87. See also Sven Bode et al., “Climate Policy: Analysis of Ecological, Technical and Economic Implications for International Maritime Transport,” International Journal of Maritime Economics 4 (2002): 164–184, at 173 et seq.



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discussion on market-based measures is still in full swing, and at the moment the division of opinion between developing and developed states makes reaching an agreement not very likely. Activities of the European Union since Copenhagen General Remarks With neither the UNFCCC nor the IMO having achieved any significant results so far, the likelihood for the EU to take unilateral measures to regulate GHG emissions from shipping has increased considerably. Already in 2009, when adopting its Climate and Energy Package, the EU announced its determination to adopt unilateral measures. Recital 3 of Directive 2009/29/EC, which set forth the modalities of the EU’s Emissions Trading System in its third phase, clearly expresses that “[i]n the event that no international agreement which includes international maritime emissions in its reduction targets through the IMO has been approved by the Member States or no such agreement through the UNFCCC has been approved by the Community [now the European Union] by 31 December 2011, the Commission should make a proposal to include international maritime emissions according to harmonised modalities in the Community reduction commitment, with the aim of the proposed act entering into force by 2013. Such a proposal should minimize any negative impact on the Community’s competitiveness while taking into account the potential environmental benefits.”48 This reference does not indicate or predetermine the instrument through which shipping emissions shall be included in the overall EU reduction commitment. However, against the backdrop of the decisions adopted in 2008 to include the aviation sector in the EU Emissions Trading System (EU ETS) as from 2012,49 it seems quite obvious that the most probable option would be to take similar action in view of the maritime sector.50

48 Directive 2009/29/EC of the European Parliament and of the Council of April 23, 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, June 5, 2009, Official Journal of the European Union, L 140/63. 49 Directive 2008/101/EC of the European Parliament and of the Council of November 19, 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, Official Journal of the European Union, L 8/3, January 13, 2009. 50 See German Federal Environment Agency (Umweltbundesamt), “Integration of Marine Transport into the EU ETS.”

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Possible Policy Instruments A recent study commissioned by the European Commission from CE Delft and other well-known research institutions has found that such emissions trading schemes could work on a regional basis, albeit with some difficulties. Among 27 possible instruments to address shipping emissions,51 the study concluded that a cap-and-trade approach which would integrate shipping emissions in the EU ETS would be feasible to implement and best capable of reaching the policy objective of reducing CO2 emissions.52 The report suggests that the geographical scope of the system should not be limited to voyages from one EU port to another, but should also cover emissions on voyages from non-EU waters to an EU port.53 The emissions caused by each vessel would be calculated on the basis of its fuel consumption. By this means, the system would not cause an unnecessary administrative burden since fuel consumption is routinely monitored and recorded on board of ship anyway.54 Finally, the enforcement of the scheme would have to be carried out at EU ports as Member States exercise exclusive jurisdiction over their ports, and ships calling at EU ports are required to comply with the laws of the respective state.55 Enforcement measures would be flag-neutral and thus apply to all ships. Since the port authorities already have to control the adherence to various standards on board of each vessel, the addition of yet another requirement would not entail the setting-up of a completely new infrastructure.56 In order to further induce compliance, failure to submit allowances matching the ship’s emissions would result in banning that ship from all EU ports.57 Other less likely options for EU regulation include measures such as an emissions tax for ships based on their CO2 emissions58 or a mandatory energy efficiency limit for all ships calling at EU ports.59 Economic Risks and Opportunities Associated with Unilateral Measures Apart from the legal challenges, which will be addressed subsequently, the proposal to enact unilateral measures entails several risks. First, it might lead to economic distortion and competitive disadvantages for the domestic shipping industry. As a consequence, operators might be tempted to re-register their ves-

51 CE Delft, “Technical Support for European Action to Reducing Greenhouse Gas Emissions from International Maritime Transport,” December 2009, 15, 113 et seq. 52  Ibid., 26, 335. 53 Ibid., 15. 54 Ibid., 17. 55 Ibid., 17. 56 Ibid., 17. 57 Ibid. 58 Ibid., 18. 59 Ibid., 20.



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sels in flag states that are not covered by the unilaterally enacted system, or reroute their ships in order to avoid compliance.60 Second, it might lead to high administrative burdens for the industry. This would especially be the case if other regions, regional groupings or States, i.e. the US, Japan, Australia and New Zealand decided to follow the EU’s example by introducing their own unilateral legislation on shipping emissions. At the end, the shipping industry might face a “patchwork quilt of regional schemes”61 where ship operators would have to deal with different rules and different national entities administrating the regulatory systems in each part of the world. Accordingly, the shipping industry perceives this scenario as the “worst possible solution.”62 On the other hand, environmentalists also have their point in arguing in favor of unilateral action by the EU. They suggest that already the threat of unilateral action might spur the international negotiations.63 Nevertheless, opportunities for the European shipping industry have been identified as well: The ship-building sector, currently undergoing a period of shrinkage, would probably benefit from the demand of more energy efficient vessels or the modernization of older ones.64 Furthermore, the “price elasticity of demand is relatively low in the maritime transport market and [. . .] most, if not all, of the marginal cost increase will be passed on to the customers [. . .].”65 Legal Obstacles Associated with Unilateral EU Measures European seaborne transport activity causes approximately 32% of the global shipping emissions, but only a small portion thereof is emitted within the 12 mile territorial waters or even the 200 mile Exclusive Economic Zone (EEZ).66 Thus, in order to create an effective policy regime, the EU would need to expand its regulations to maritime transport activities in international waters or even in territorial waters of third states. But does the EU have the required extraterritorial jurisdiction to do so? In this case, jurisdiction could possibly be based on the principle of territoriality as modified by the effects doctrine.67 In a comprehensive study commissioned by the German Federal Environment Agency (“Umweltbundesamt”) on behalf of the German Federal Ministry of the

60 The Chamber of Shipping of the UK et al., “A Global cap-and-trade system to reduce carbon emissions from shipping,” September 2009, 7. 61 Norton Rose, “Shipping and carbon emissions.” 62  Ibid.; Lloyd’s Register briefing, “COP 15 and the shipping industry,” January 12, 2010, 2. 63 See Transport & Environment, “Analysis: Aviation and Shipping Emissions after Copenhagen,” calling for unilateral legislation in the event that the stalemate on the international level continues. 64 German Federal Environment Agency (Umweltbundesamt), “Integration of Marine Transport into the EU ETS,” 3. 65 Ibid. 66 Ibid., 1. 67 Ibid., 3.

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Environment, Nature Conservation and Nuclear Safety published in May 2010, the authors came to the conclusion that these legal obstacles could be overcome and that the integration of Maritime Transport into the European Emissions Trading System thus constitutes a legally feasible option.68 This legal opinion certainly deserves a closer look. Since a thorough legal analysis is beyond the scope of this article, only the problem of extraterritorial jurisdiction shall be discussed briefly. The Problem of Extraterritorial Jurisdiction The question arises whether the European Union may claim extraterritorial jurisdiction to regulate activities outside the territories of its member states ( jurisdiction to prescribe) and if so, whether and how EU regulations can be enforced ( jurisdiction to enforce). In the event of unilateral measures adopted by the EU this question was answered in the affirmative, because in view of its goal to reduce global CO2 emissions from shipping, the system would have to cover “not only ( . . .) emissions produced on the high seas, but also emissions discharged in the territorial waters and the EEZ of foreign non-EU states”69 and “in order to avoid a distortion of competition between EU and non-EU vessels [. . .] encompass emissions [. . .] of all vessels regardless of the flag flied.”70 Article 92 of the United Nations Convention on the Law of the Sea (UNCLOS) confirms the customary international law principle that on the high seas ships are subject to the exclusive jurisdiction of the flag state. The Convention does not, however, explicitly state to what extent a port state may enact and enforce its laws against foreign ships, leaving room for this gap to be filled by interpreting general principles of international law.71 The principle coming to mind is the territoriality principle entitling states to “regulate any conduct within their territory,”72 extended by the so-called effects doctrine, according to which “the territoriality principle is already applicable if the effects of an activity occur in the state claiming jurisdiction.”73 Instead of analyzing the question whether the effects doctrine would be a sufficient legal basis for jurisdiction, the authors of the German study submit an interesting thought. They argue that it does not constitute extraterritorial jurisdiction in the first place, when a port state that can even close its ports completely for any ship as long as it does not act discriminatorily, links its decision to allow a ship to call at its port to the condition that the latter complies with specific environmental regulations.74 According to this view, 68 Ibid. 69 Ibid., 79. 70 Ibid. 71 Ibid., 83, with further references. 72  Ibid., 81. 73 Ibid., with further references. 74 Ibid., 84.



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the question of extraterritorial jurisdiction would not arise, because conditions on the entry into ports are fully covered by port state jurisdiction based on the territoriality principle. Appealing as this argument a maiore ad minus may seem at first sight, it cannot conceal the fact that the port state by requiring emissions allowances—at least indirectly—regulates activities such as the discharge of CO2 emissions outside its territory. Therefore, the authors finally came to the correct conclusion that this argument would constitute an “unlawful circumvention of the general principles of international law.”75 Consequently, the question has to be answered whether the EU could rely on the effects doctrine which is to date widely accepted only in the context of antitrust regulation. It is a matter of argument, though, whether the effects doctrine is also applicable in the context of environmental protection. One could argue that a state must have the right to regulate extraterritorial conduct if its territory and citizens are subject to substantial negative environmental effects deriving from such conduct. Such effects, combined with the fact that combating climate change is a common concern of mankind, could possibly suffice to establish a substantial and bona fide connection between the subject-matter and the regulating state.76 Even if this argument is accepted, states regulating extraterritorial activities have to take into account the principle of proportionality and balance the interests of the regulating state against those of other states, i.e. flag states, affected by the exercise of extraterritorial jurisdiction. With regard to the proportionality principle, it seems doubtful whether the requirement of EU allowances for CO2 emissions discharged outside EU territory is the most effective and least obtrusive measure to obtain the regulatory goal. Therefore, the reliance on the effects doctrine as a basis for EU jurisdiction is at best arguable.77 Finally, the German study briefly touches on the sensitive issue of possible means to challenge the integration of maritime emissions into the EU ETS. In addition noting that the International Tribunal for the Law of the Sea in Hamburg is empowered to give a binding decision, the study observes that if a state party of UNCLOS wishes to challenge the conformity of the integration of maritime CO2 emissions into the EU ETS with the Convention, there is the possibility for private parties (i.e. shipping companies) to bring an action before the European Court of Justice (ECJ). Keeping in mind the ECJ’s decision in the 2007 Intertanko case, however, according to which private persons cannot invoke UNCLOS or MARPOL against legislative acts of the European Union, as neither UNCLOS nor

75 Ibid., 85. 76 See Ian Brownlie, Principles of Public International Law, 7th edition (Oxford, 2008), 311. 77 For more details see Doris König/Lutz Morgenstern, “CO2-Emissionen aus dem Schiffsverkehr—Internationale Lösungen oder unilaterales Handeln?,” Zeitschrift für öffentliches Recht in Norddeutschland, 12 (2009): 181–190.

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MARPOL establish rules intended to apply directly to individuals, a decision of the ECJ against the pertinent EU legislation is not to be expected.78 Debate in Progress While it is, of course, legitimate that the aforementioned study argues the case of the European Commission by identifying a solid legal basis for unilateral action, different conclusions have been drawn even within the EU framework. In two complementary reports the Joint Research Centre (JRC) of the European Union voiced its concern that “the internal features of the maritime shipping sector do not lend themselves favorably to inclusion in the [EU ETS] scheme.”79 Moreover, the JRC challenged the legal opinion of the German Federal Environment Agency (Umweltbundesamt) stating: “[I]ndeed, there is currently no strong legal basis for the EU to exercise extra-territorial jurisdiction, and this is likely to give non-EU states and industry bodies grounds for challenging carbon emissions reduction measures adopted by the EU for maritime transport.”80 Furthermore, it identified two more arguments that might be raised by non-EU states against unilateral measures, namely violation of the right of innocent passage through territorial waters (Article 24 UNCLOS) and violation of the freedom enshrined in Article 26 UNCLOS which allows no charges or levies to be imposed by the coastal state, except for “specific services rendered to the ship.”81 In addition, the JRC envisaged that an agreement on a mechanism to allocate ship emissions to the member states will be very difficult to reach. Such an allocation mechanism would, however, be necessary for the scheme to operate within the EU ETS framework, since under the Burden Sharing Agreement each member state is responsible for its national installations’ emissions.82 Consequently, the JRC came to the conclusion that a unilateral scheme imposed by the EU would be facing a number of administrative, political and legal challenges83 whereas “[a] global policy could

78 German Federal Environment Agency (Umweltbundesamt), “Integration of Marine Transport into the EU ETS,” 95, referring to the European Court of Justice, Case C-308/06 (Intertanko et al.), European Court Reports 2008, I-4057. For a similar case in aviation, where the ECJ accepted such measures, see Case C-366/10, accessible at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010CJ0366:EN:HTML (last visited January 7, 2013). 79 JRC, “Reference Reports, Regulating Air Emissions from Ships—The State of the Art on Methodologies, Technologies and Policy Options,” (Luxembourg, 2010), 40; see also JRC, “Scientific and Technical Reports, Analytical framework to regulate air emissions from maritime transport,” (Luxembourg, 2010), 102. 80 JRC, “Reference Reports, Regulating Air Emissions from Ships,” 41. 81 Ibid., 41 et seq., with further references. 82  See JRC, “Scientific and Technical Reports, Analytical framework to regulate air emissions,” 102; for an overview of the allocation-options discussed within the UNFCCC by its Subsidiary Body for Scientific and Technological Advice (SBSTA) see 102 et seq. 83 Ibid., 112.



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overcome most of the abovementioned challenges, but will be a success only when the ‘equal treatment of ships’ principle of the IMO can be streamlined with the ‘common but differentiated responsibilities’ principle of the UNFCCC.”84 “Streamlining,” to use that phrase, these two principles has of course been the major stumbling block in the discussions both in the UNFCCC and the IMO’s MEPC. This is the main reason why the European Union, which for a long time encouraged the issue to be handled by the IMO on a global level,85 feels urged to step up and act if no international agreement is reached by December 31, 2011.86 Outlook As already mentioned, the integration of maritime transport into the European Union’s Emissions Trading System seems to be the option preferred by the Commission in the event of unilateral EU legislation. To further discuss the issue the Commission established working groups, among others a Stakeholder Working Group, “Reducing greenhouse gas emissions from ships,” composed of representatives of member states, the European Parliament, interested NGOs and research institutions and the shipping industry. As far as specific regulatory measures are concerned, these discussions are open to various options. The Commission envisages submitting a proposal for a Directive on the reduction of GHG from shipping during the first quarter of 2013.87 Conclusion With a view to the provisions of MARPOL Annex VI relating to air pollutants such as NOx and SOx, the EU substantially supports and strengthens their implementation in Europe. As far as CO2 emissions from shipping are concerned, the EU, by threatening to adopt EU legislation in 2012, puts substantial political pressure on the IMO to spur international negotiations. It is not clear whether this ­strategy is

84 Ibid. 85 See Lloyd’s List, March 10, 2010, “Brussels to back IMO stance in greenhouse gas emissions debate.” 86 See COM(2010) 265 final, Brussels, May 26, 2010, “Analysis of options to move beyond 20% greenhouse gas emission reductions and assessing the risk of carbon leakage.” This “deadline has already been prolonged.” In COM(2009) 39 final, Brussels, January 28, 2009, “Towards a comprehensive climate change agreement in Copenhagen,” the Commission stated that it expected both IMO and ICAO to deliver results by the end of 2010. 87 See Joint Statement by Vice-President of the European Commission Siim Kallas and EU Commissioner for Climate Action Connie Hedegaard of October 1, 2012, accessible at http://ec.europa.eu/commission_2010-2014/hedegaard/headlines/news/2012-10-01_01_ en.htm (last visited January 7, 2013).

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supportive of the cause of climate change mitigation or whether unilateral action might backfire. Therefore, a global approach to regulating CO2 emissions from shipping would be the best option. All states should reinforce their attempts to reach a compromise which reconciles the UNFCCC principle of “common but differentiated responsibilities” with the IMO principle of equal or no more favorable treatment. For example, a promising proposal has been made according to which an instrument established by the IMO is applied to all ships irrespective of flag, but the funds generated by that instrument are used exclusively for climate change purposes in developing countries, through existing or new mechanisms under the UNFCCC.88 Such a compromise might break the current impasse, and, in the end, everyone would benefit—developed countries, developing countries and, last but not least, our climate.

88 At its 59th session, the MEPC noted a “general preference” for this approach, see http://www.imo.org/Newsroom/mainframe.asp?topic_id=1773&doc_id=11579 (last visited January 7, 2013).

Nineteen

Subregional Marine Governance: The Case of the Adriatic Sea Davor Vidas1

Introduction Although it is a part of the wider Mediterranean region, the Adriatic Sea—connected to the rest of the Mediterranean only by the Strait of Otranto—has its own specific features, and is for many reasons rightly considered a marine subregion in its own right. This is confirmed by both hydrographical and political definitions.2 The Adriatic Sea has come increasingly into the international focus, far beyond the confines of its natural and political boundaries. This chapter provides a concise overview of key recent developments and challenges of the Adriatic Sea, many of which concern Adriatic subregional features. While some of these features were well-known in the earlier history of the law of the sea, they are now reemerging in a new and more complex contemporary setting. Today, the concept

1  Information included in this chapter draws some material from previous studies by the author, and develops these further in the context of this study. See, in particular concerning the proclamation of Adriatic Sea maritime zones and certain delimitation issues: Davor Vidas, “The UN Convention on the Law of the Sea, the European Union and the Rule of Law: What is Going on in the Adriatic Sea?” International Journal of Marine and Coastal Law, Vol. 24, No. 1 (2009): 1–66; and, regarding the initiative for the designation of the Adriatic Sea as a Particularly Sensitive Sea Area, Davor Vidas, “Particularly Sensitive Sea Areas: The Need for Regional Cooperation in the Adriatic Sea,” in Katarina Ott (ed.), Croatian Accession to the European Union: The Challenges of Participation (Zagreb, 2006), 347–380. 2 On the hydrographical definition of the Adriatic Sea as a subdivision of the eastern Mediterranean Sea basin, see International Hydrographic Organization, Limits of the Oceans and Seas, special edition No. 23, third edition (Monte Carlo, 1953), 17. Regarding the Adriatic Sea, this subdivision corresponds to the recent subdivisions in legal and policy instruments, such as the 2008 EU Marine Strategy Framework Directive, which identifies the Adriatic Sea as one among several distinct marine subregions of the Mediterranean Sea region; see further below in the next section.

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of “subregional” geographic realities and political jurisdictions may involve several different layers, important in terms of the law of the sea for understanding certain unusual and possibly highly detrimental recent developments in the Adriatic region. The coastal states of the Adriatic Sea are now facing major challenges as regards the sustainability of marine resources, where impacts in one Adriatic area may be reflected in any other area of that sea. Scientific and monitoring projects have documented the worrisome effects and risks of current maritime uses of the Adriatic Sea—both shipping and fishing—on its biodiversity, the state of its living resources, and the marine environment. Simultaneously, complex regional responses to the uses of the seas, with the ultimate objective of “achieving or maintaining good environmental status in the marine environment,” are being developed within the European Union (EU) in the context of its Integrated Maritime Policy as well as on the basis of the EU Marine Strategy Framework Directive.3 Regionalization of the “European seas,” including a subregional approach where appropriate, is an important element of the EU Marine Strategy.4 Is there a role for the EU, now also equipped with its Marine Strategy, to play in the current Adriatic Sea situation? How has the EU handled pressing Adriatic Sea issues so far, especially in relations between EU member states and states that are candidates for EU membership? Are there specific Adriatic Sea “subregional” approaches emerging in that context? And if so, how do they relate to the international law framework provided by the United Nations Convention on the Law of the Sea (UNCLOS)?5 Some of those questions still remain without definitive answers. This chapter aims to help us understand why such a situation has persisted. Regional and Subregional Approaches in the Mediterranean The EU Marine Strategy identifies four marine regions where European marine waters extend, the Mediterranean Sea being one; the others are the Baltic Sea,

3 Directive 2008/56/EC of the European Parliament and of the Council, of June 17, 2008, establishing a framework for community action in the field of marine environmental policy, Official Journal of the European Union, L 164 (June 25, 2008): 19. 4 See ibid., especially Article 3, paragraphs 2, 3, 5, 6 and 9, and Article 4 (“Marine regions or subregions”). 5 UN doc. A/CONF.62/122; text in United Nations Treaty Series, Vol. 1833, pp. 3ff; text re­print­ed in International Legal Materials, Vol. 21 (1982): 1,261ff; available at http://www .un.org/Depts/los. The Conven­tion was opened for signature on December 10, 1982, and entered into force on November 16, 1994. As of June 8, 2011 there were 162 parties to the Convention, including 161 states and the European Union; moreover, all 27 current EU member states are parties to UNCLOS.



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the Black Sea, and the North-east Atlantic. The Strategy further divides two of the regions—the North-east Atlantic and the Mediterranean—into subregions, to account for their specific peculiarities. The Mediterranean, as a marine region, has been subdivided into four such subregions: the Western Mediterranean Sea, the Aegean-Levantine Sea, the Ionian Sea with the Central Mediterranean, and the Adriatic Sea. EU member states within each marine region or subregion are required to make every effort to coordinate their actions with “third countries”—that is, non-EU coastal states—in the same marine region or subregion (Article 6[2] of the Marine Strategy). The distinction between regional and subregional approaches relates here to the question of whether issues and options for responses are the same throughout the entire Mediterranean. Several examples can illustrate the need for distinct subregional approaches in the Adriatic Sea—however, always within the overall framework of international law of the sea. For instance, as to commercial shipping, the Mediterranean (the sea where some 30 percent of global maritime trade transits) is characterized by two major patterns: one is transit only, whereas the other involves calling at a port in some Mediterranean country. Owing to its geography, the Adriatic Sea has no maritime through transit; and so all commercial traffic there calls at some Adriatic port. An important share of that traffic (crude oil in particular) is then further transported by land to some Central European countries, several of them land-locked. In such a situation, the reliance on port state jurisdiction on arrival may be of considerable importance—a feature that requires enhanced subregional cooperation and coordination. This is further related to the need for coordinated proposals on the global level, as for example, with respect to the International Maritime Organization (IMO). Some seas are in a rather special position as to ballast water management. The Adriatic Sea is a clear case of this kind, being too shallow and too narrow to be able to comply viably with the requirements of the 2004 IMO Ballast Water Convention6 for the designation of ballast-water exchange zones.7 Or we can take the example of subregional cooperation on initiatives such as the designation of a 6 International Convention for the Control and Management of Ships’ Ballast Water and Sediments, done in London, February 16, 2004, not yet in force. For the text of the Convention see IMO doc. BWM/CONF/36 of February 16, 2004; reprinted in Ballast Water Management Convention, IMO Publication 1620M (London, 2005). For a comprehensive review and analysis of the Ballast Water Convention, see Maria Helena Fonseca de Souza Rolim, The International Law on Ballast Water: Preventing Biopollution (Leiden, 2008). For a useful brief overview of the Convention, see “New Convention on Ballast Water— Preventing Alien Invaders,” Environmental Policy and Law, Vol. 34 (2004): 120–123. 7 For a detailed discussion, see Davor Vidas and Maja Markovčić Kostelac, “Ballast Water and Alien Species: Regulating Global Transfers and Regional Consequences,” in Davor Vidas and Peter Johan Schei (eds.), The World Ocean in Globalisation (Leiden, 2011), 371–392, especially at 386–391.

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Particularly Sensitive Sea Area (PSSA). While it may be difficult to argue for, or to see the usefulness of, PSSA as a management tool at the all-Mediterranean level, such a measure could be highly appropriate in more compact marine subregions like the Adriatic Sea. The Adriatic Sea is a marine area where a combination of specific subregional measures and application of globally agreed-upon rules of the law of the sea could provide responses to many challenges of maritime safety, and of environmental and resource management. However, in the course of the past decade it has become evident that such challenges still persist, and the adoption of measures for dealing with them remains difficult in the current Adriatic Sea setting. Peculiar solutions, determined by the subregional political setting, are not new here; on the contrary, due to such peculiar solutions the Adriatic Sea was recognized already as a distinctive marine region in the early history of the law of the sea. The Adriatic Sea as a Distinct Subregion in the History of the Law of the Sea Formed as a narrow gulf deeply incised into the European mainland, the semienclosed8 Adriatic Sea has been a trade and transport route since antiquity. It has been characterised not only by the special natural feature of being a marine waterway deeply penetrating into the European mainland—but also by the specific constellations of power distribution on and around its shores. The Adriatic Sea has thus for long periods been “subregional” due to both natural conditions and political circumstances. Historically, political force has combined with the natural features of the Adriatic Sea to form its specific “subregional” picture and to inspire a rather distinct “legal approach.” When, almost 400 years ago, John Selden wrote his Mare Clausum, he used the Adriatic Sea to illustrate the thesis he argued for—dominion of the sea. A key chapter in Mare Clausum opens with the following statement: . . . there is nothing that can more clearly illustrate the point in hand then the Dominion of the Adriatick Sea, which the most noble Common-wealt of Venice hath enjoyed for so many Ages. The truth of this is every where attested and acknowledged.9

The Venetian Republic, although not a single coastal territorial unit there, at periods controlled most of the Adriatic Sea politically (and militarily)—and claimed 8 For the legal definition of an “enclosed or semi-enclosed sea,” see Article 122 of UNCLOS. 9 See Chapter XVI of Book 1 in Mare Clausum: Of the Dominion, Or, Ownership of the Sea, by John Selden (Clark, NJ, 2004), at p. 99, a recent reprint of the 1652 edition (English translation) of Mare Clausum. The book, first published in Latin original in 1635, was drafted much earlier (around 1618), but its publication was delayed due to political circumstances.



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ownership over the entire sea, arguing that this was its “inherent right.”10 For centuries, and until the fall of the Republic at the end of the 18th century, maritime charts showed the Adriatic Sea as the “Gulf of Venice” (Golfo di Venezia).11 Two key circumstances prompted this rather specific “subregional” Adriatic Sea approach, in which Venice openly claimed (and at periods enforced) dominion over the entire Adriatic Sea—although she possessed only a part, and not all, of the Adriatic coasts. First, Venice did not claim dominion over the Adriatic Sea purely for territorial gains as such. The reasons were primarily functional. Venice wanted to ensure for herself unimpeded maritime navigation and trade. For that to be possible, Venice needed to focus on one distinct Adriatic Sea feature: the chain of islands along the opposite, that is, eastern, Adriatic coast. At that time, and for centuries, navigation through the Adriatic Sea went through the sheltered waters situated between the chain of islands and the eastern Adriatic coast along which that island archipelago stretches. That was, at the time, the most salient subregional maritime feature of the Adriatic Sea. There was another, second aspect of importance. Following the decline of the Byzantine Empire (especially as of the early 13th century, after the Fourth Crusade in 1204), the constellation of power in the region was profoundly changed. The lack of a major power controlling the eastern Adriatic coast (or at least a major part of it) became then the most salient subregional terrestrial feature, enabling Venice—the major power on the opposite (western) Adriatic coast—to consolidate (during certain periods) its political power over most of the eastern Adriatic coast and many islands along it, thereby controlling navigation in the Adriatic Sea. Today, we are centuries removed from what were the main “subregional” features of the Adriatic Sea in that history. We now have other coastal states on the shores of the Adriatic, some of which are members of the European Union while 10 On Venetian dominance over the Adriatic Sea, see especially the work by Paolo Sarpi, titled Dominio del Mar Adriatico della Serenissima Repub­lica di Venezia, reproduced in: Guido Acquaviva and Tullio Scovazzi (eds.), Il dominio di Venezia sul mare Adriatico nelle opere di Paolo Sarpi e Giulio Pace (Milan, 2007), 75–118. Natko Katičić, in More i vlast obalne države (The Sea and the Coastal State), (Zagreb, 1953), at 115–121, analyses this work by Sarpi and observes that his basic thesis was that Venice did not acquire dominion over the Adriatic Sea, rather that it is a right embodied in the Republic from its emergence. 11  See for instance Map “Golfo di Venezia” by Vincenzo Maria Coronelli (Venice, 1688). See also Map of ‘Dalmatia, Istria, Bosnia, Servia, Croatia, e parte di Schiavonia” by Giacomo Cantelli da Vignola (Rome, 1684), using the term “Mare Adriatico ouero Golfo di Venezia.” The same alternative term was used a century later, on the map “La Dalmazia con le Isole adiacenti” (Rome, 1792) by Giovanni Maria Cassini. The Map of Dalmatia by Coronelli (Paris, ca 1700) uses “Mer ou Golfe de Venise” as the main term. However, also maps by noted cartographers from other countries, such as the map of Illyricum by Iannes Blaeu (Amsterdam, 1669) used the term “Golfo di Venetia,” even when showing southern part of the Adriatic Sea along its eastern coast only.

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others are candidates or potential candidates for membership. And indeed, the EU now has its own Marine Strategy, as well as various other explicit regulations, plans, and initiatives. Yet, once again the Adriatic Sea demonstrates certain salient “subregional” features. And, due to its strategic position, the Adriatic Sea is now re-emerging as an arena of high strategic importance in the changing geopolitical picture of Eurasia. The Adriatic Sea of Today: A “Local” Picture Today, the eastern Adriatic island chain no longer serves as a shelter for commercial shipping. Instead, that island archipelago now involves a reservoir of unique biodiversity of the Adriatic Sea—and is a prime example of a natural value in need of conservation and protection. The Adriatic ecosystem is, however, exposed to serious and ever-increasing stresses. Before reviewing those stresses, the key is first to understand the anatomy of that area today. Prior to 1991, there were only three coastal states on the Adriatic Sea north of the Strait of Otranto: Albania, Italy and Yugoslavia.12 Today there are six, as Bosnia and Herzegovina, Croatia, Montenegro and Slovenia emerged as Adriatic coastal states after the dissolution of what had been the Socialist Federal Republic of Yugoslavia (see Figure 1). Whereas land borders between the former Yugoslav federal republics have been recognized as state borders, the territorial sea in Yugoslavia was never delimited between the various republics. Following the emergence of four new Adriatic coastal states, neither legally binding agreements in force nor international judicial decisions to finally resolve the pending maritime delimitations has yet been achieved.13 The geographical positions of some of those coasts are but one indication of the complex and generally troubled past of the region, where boundaries have been subject to the vagaries of history. Delimitation of maritime zones of sovereign rights and jurisdiction between the countries on the eastern Adriatic Sea coast, on the one hand, and on the western coast (Italy), on the other, is largely pending—with the general exception of

12 Another Mediterranean EU country, Greece, is partly oriented toward the broader Adriatic-Ionian Sea area, with its coasts and islands close to the Otranto, but to the southeast. 13 So far, one agreement related to (maritime) delimitation has been concluded and is in force, however it does not contain the final resolution of the delimitation dispute concerned, rather the peaceful settlement procedure through which to reach the final resolution: Arbitration Agreement between Croatia and Slovenia, signed in Stockholm, November 4, 2009, entered into force on November 29, 2010, procedurally operative as of December 9, 2011. Other bilateral instruments, such as between Croatia and Montenegro (2002), and between Bosnia and Herzegovina and Croatia (1999), are either of a provisional nature or not in force.



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Source: Copyright (c) Fridtjof Nansen Institute. Figure 1. The Adriatic Sea—Coastal States and Major Ports.

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the continental shelf.14 This situation of pending maritime (water-column) delimitation issues, some of which have emerged in the relatively recent past due to the emergence of new coastal states as well as a consequence of new maritime zones being proclaimed (further discussed in section VIII below), is an important feature of the Adriatic Sea area today. Understanding one other Adriatic Sea feature is easier when the coastline lengths of individual countries are contrasted with their economic uses of the seas, such as maritime transport and fisheries. Natural features of the Adriatic Sea contribute here to a rather peculiar situation. The two opposite coastlines, eastern and western, are separated by a relatively narrow sea (in average only 86 nautical miles in width). The total length of the entire Adriatic Sea coastline, including all islands, extends over some 8,300 kilometres. However, some 7,000 km of the coastline, or around 85 percent, extends along the eastern Adriatic side. This is due to its geomorphology, with a highly indented coastline and numerous islands, most of which form an archipelago that follows the general contours of the mainland coast. The length of the coastline of Croatia, islands included, occupies by far the largest share: approximately 6,200 km, or around 75 percent of the entire Adriatic coastline. Italy’s Adriatic coastline, situated along the entire western coast, is significantly less indented, and has a total length of only some 1,300 km (about 15 percent of the Adriatic coastline). The remaining part of the Adriatic coastline extends along the opposite, eastern side and is shared between three non-EU countries: Albania (with around 400 km of coastline), Montenegro (290 km), and Bosnia and Herzegovina (20 km). The only other EU member state on the Adriatic Sea coast, Slovenia, has some 45 km of coastline,15 constituting the remaining 0.5 percent of the total length of the Adriatic coastline.

14 See the 1968 Agreement on the delimitation of the continental shelf between Italy and Yugoslavia (upon the dissolution of Yugoslavia, succeeded by Croatia and Montenegro), published in Službeni list SFRJ, Dodatak: Međunarodni ugovori i drugi sporazumi (Official Gazette of the SFR Yugoslavia, Annex: International Treaties and Other Agreements), No. 28 (1970); English translation in International Legal Materials, Vol. 7 (1968); and the 1992 Agreement between Albania and Italy for the determination of the continental shelf of each of the two countries (text reproduced at http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TREATIES/ALB-ITA1992CS.pdf ). Regarding delimitation of the territorial sea between Italy and Yugoslavia, see the 1975 Treaty of Osimo (upon dissolution of Yugoslavia succeeded by Croatia and Slovenia), published in Službeni list SFRJ, Dodatak: Međunarodni ugovori i drugi sporazumi (Official Gazette, Annex), No. 1 (1977). 15 The figure of 45 kilometres long coastline, as well as of the adjacent, in total 180 square kilometres of territorial waters of Slovenia, was provided by the Government of Slovenia in the context of pre-accession negotiations for EU membership. See the document by the Republic of Slovenia, “Negotiating Position of the Republic of Slovenia on Chapter 8—Fisheries,” for the Intergovernmental Conference on the Accession of the Republic of Slovenia to the European Union, dated December 18, 1998, at p. 3; document available at the website of the Slovenian Governmental Office for Development



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When it comes to maritime traffic and trade volume, however, the situation seems reversed in many respects, especially as regards the proportions for the eastern and western Adriatic coasts. By far the largest share of maritime traffic and trade involves Italian ports, which annually receive some 75 to 80 percent of the total commercial ship traffic and cargo transported. Croatia makes up around 10 percent of the total Adriatic traffic in terms of number of vessels and amount of cargo, though with a tendency to growth. The remaining countries—Slovenia, Bosnia and Herzegovina (through the Croatian port of Ploče), Montenegro, and Albania—together make up the remaining 15 percent of the traffic and 10 percent of the cargo transported. Of their ports, the sole Slovenian international commercial port of Koper stands out: it is larger than any other single port on the eastern Adriatic coast, except for the northeast Italian port of Trieste. In terms of marine environmental protection and resource management, the significance of this difference can be illustrated in the context of ballast-water issues. Three of the Adriatic countries—two EU members (Italy and Slovenia) and one candidate (Croatia)—all show profoundly different circumstances. Italy, with its maritime export, is the biggest generator of ballast water introduced into the Adriatic Sea, accounting for over three quarters of the annual total. Slovenia’s coastline is a short one, yet this country is not a negligible contributor of ballast water, due to the maritime export volume from the port of Koper. Finally, Croatia has by far the longest coastline in the Adriatic Sea, yet is currently contributing far less ballast-water import, due to the still relatively low volumes of maritime export. Also in some other economic aspects, such as fisheries, Adriatic proportions are diametrically reversed. Italy is clearly the biggest user of the Adriatic Sea; it is the undisputed fishing superpower there. However, whereas Italy has the dominant fishing fleet, most of the fishing grounds lie in waters closer to the Croatian island chain. The disproportion is especially obvious in bottom-trawl fishery, with the Croatian annual catch at around 5,000 tons, as against the Italian catch of some 50,000 tons.16 For other Adriatic Sea countries, overall annual fish catches are very low.

and European Affairs, at http://www.svrez.gov.si/fileadmin/svez.gov.si/pageuploads/ docs/negotiating_positions/8.pdf (last accessed June 25, 2011). Slovenia, now an EU member state, has in recent years claimed a considerably larger maritime area, which however cannot be related to its 45 kilometres of coastline; see further discussion in section VIII below). 16 Dr. Nedo Vrgoč, Institute of Oceanography and Fisheries, Split, personal communication, September 2008.

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The Adriatic Sea: A Broader Picture On the western coast of the Adriatic there is a highly industrially developed country, Italy. The eastern coastal states are mostly less industrially developed, but several developed Central European countries (some of them land-locked), gravitate naturally in trade activities to the Adriatic Sea. Indeed, some are heavily dependent on that maritime route for their energy imports: Austria, for instance, receives 75 percent of its crude oil imports through Adriatic ports, and Bavaria in southern Germany a full 100 percent.17 In the foreseeable future the Adriatic region may see major changes. As to future oil transport routes, several large-scale visions clash when it comes to projections for this and the next decade. Some of the projects conceived over the past decade, on exporting Russian and Caspian oil through the Mediterranean in order to (at least partly) by-pass the Bosporus, include the prospects of using various Adriatic ports and terminals. Due to its placement and natural features, the eastern Adriatic coast is central to several such energy transport plans and projects. It is blessed with good deep-water ports, especially along the Croatian coast—and thus also closer to Central Europe. Implementation of these plans and projects would also result, however, in an important change in tanker transport of oil in the Adriatic Sea: it would involve a shift from exclusively crude-oil import, as today, to include export as well. That, in turn, could aggravate issues like those related to the problem of ballast water and the risks of introducing harmful aquatic organisms into the shallow, semienclosed Adriatic Sea. Conservation of Adriatic Sea living resources is of high importance for the coastal countries. Moreover, maritime safety considerations and the increase of related risks for the marine environment emerge as well. In addition, plans are afoot for large LNG (liquefied natural gas) import terminals in the area, to help in diversifying Central European gas imports and lessen the dependence on Russia; no such terminals are in place today. The Croatian coast, due to its placement and natural features, is central in several such energy transport plans and projects. In addition to industrial interests, also the geopolitical interests of main players on the Eurasian scene—Russia, the USA and some key EU countries—are involved here, and must be taken into account when explaining overall Adriatic Sea developments and future projections.

17 For information about crude oil supplies to Austria and Bavaria/Bayern (as well as Baden-Württemberg) in Germany through the Adriatic Sea tanker transport, see the website of the Transalpine Pipeline, at http://www.tal-oil.com/index.htm (last accessed June 30, 2011).



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Eastern Adriatic and “Subregions”: One Additional Layer The five Eastern Adriatic states are all, except Albania, coastal states of only the Adriatic Sea.18 From their perspective, this may be a marine region as much as it is a subregion. The situation of Italy, due to the central placement of the Apennine Peninsula in the Mediterranean, is profoundly different: Italy is a truly Mediterranean state, littoral on several seas and thus belonging to several subregions. However, the Eastern Adriatic states are not only parts of the Adriatic Sea subregion either. Most of those states are—now excluding Slovenia but including Albania—at the same time part of one other “subregion.” That one has in recent years, due to one source or another, gained wide acceptance and is in contemporary political vocabulary called the Western Balkans, and must therefore be understood as a part of a wider “Balkans” region (whatever that may mean and comprise).19 It is relatively straightforward to define the Adriatic Sea, since the hydrographical, ecological and other criteria are evident. Those criteria are clear, easily understandable and well justified. However, it may be rather difficult to define what the “Western Balkans” is—in terms of criteria. There is no clear geographic link for such a “regionalization,” and no real historic linkages among all the countries involved (and excluded) to justify their joint classification as “Western Balkans.” It is certainly not the area of the former Yugoslavia—since in the “definition” of Western Balkans Slovenia is missing, and Albania has been added.20

18 South of the Strait of Otranto, Albania has some 150 km of coastline along the Ionian Sea. 19 The relationship between the “Balkans” and “Western Balkans” can be better understood from, as observed by Vobruba, “. . . the intention of the term western Balkans, which was coined to separate the instable Yugoslavian successor states from the accession efforts on the part of Romania and Bulgaria” to the EU—whereas, however, “Austria succeeded in establishing Slovenia as a buffer zone between itself and the troubled Balkans in the 1990s, shortly before Austria itself joined the EU;” see Georg Vobruba, “Internal Dynamics and Foreign Relations of the European Union,” in Maurizio Bach, Christian Lahusen and Georg Vobruba (eds.), Europe in Motion: Social Dynamics and Political Institutions in an Enlarging Europe (Berlin, 2006), at 66. 20 More recently, the term “Yugosphere” has been introduced in the context of efforts to underline commonalities joining together the countries on the eastern Adriatic Sea coast and in its hinterland, albeit not in the Western Balkans cloth; see, especially, Tim Judah, Good News From the Western Balkans: Yugoslavia is Dead—Long Live the Yugosphere (London, 2009), and related articles published in The Economist (see especially “Entering the Yugosphere: Former Yugoslavia Patches Itself Together,” The Economist, August 20, 2009, available at http://www.economist.com/node/14258861 and, by the same author, “The Former Yugoslavia: Let’s Hear It for the Yugosphere,” The Economist, June 23, 2011, available at http://www.economist.com/blogs/eastern­ approaches/2011/06/former-yugoslavia). The concept of “Yugosphere” also aims at

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Only one criterion for determining what the “Western Balkans” is may be detected. EU institutions define “Western Balkans” to include: Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Montenegro and Serbia, as well as Kosovo under UN Security Council Resolution 1244/99.21

Under this definition, then, it is a group of countries that are either eastern Adriatic coastal states or land-locked countries in the Adriatic Sea hinterland, and are, everywhere on land, enclosed by the European Union. All those countries have ambitions (some of them more and other less realistic) of joining the European Union—but none of them has as yet been admitted.22 It seems that this is all that makes the Western Balkans a region (or subregion). If the Adriatic Sea as a subregion is an “enclosed or semi-enclosed” sea in legal terms, the Western Balkans is, likewise, an “enclosed or semi-enclosed” subregion in political terms.23 The EU has its own policy crafted for “relations between the Union and the Western Balkans”—it is called the “Stabilisation and Association Process.”24

regionalization: its main focus, however, is on the “region of the former Yugoslavia” inhabited by “former Yugoslavs” (see Judah, Good News from the Western Balkans, e.g., at pp. 3 and 8, respectively; emphasis added). The most prominent recent historical event related to Yugoslavia was, indeed, its dissolution and collapse in a series of wars in the first half of the 1990s—and it is today difficult to see under what criteria and with what motives the same framework could now provide the terms of reference for “regionalization” or, as Judah also terms it—“for the creation of the sphere” (ibid., at p. 3). 21  See Commission of the European Communities, Western Balkans: Enhancing the European perspective, Communication from the Commission to the European Parliament and the Council, COM(2008) 127 final, Brussels, March 5, 2008, at p. 2. 22 As of June 30, 2011, Croatia, Montenegro, and “the former Yugoslav Republic of Macedonia” are considered candidate countries for EU membership, with Albania, Bosnia and Herzegovina, Serbia, and “Kosovo under UN Security Council Resolution 1244” as potential candidates; see the European Commission—Enlargement, at http://ec.europa .eu/enlargement/index_en.htm. On June 30, 2011, the EU closed the accession negotiations with Croatia, and has foreseen accession of that country to EU membership by July 1, 2013 (indeed, conditional upon the completion of ratification procedure in all the current 27 EU member states). 23 See “Political Maps of the Western Balkans” at the website of the European Environment Agency, at http://www.eea.europa.eu/data-and-maps/figures/political-maps-ofthe-western (published June 3, 2010; last accessed June 30, 2011). 24 See Commission of the European Communities, The Western Balkans and European Integration, Communication from the Commission to the Council and the European Parliament, COM(2003) 285 final, Brussels, May 21, 2003, at p. 2. As clarified by the European Commission, “the process guiding the progress of the Western Balkan countries towards EU membership” is called the ‘Stabilisation and Association Process,” in which “regional cooperation is an essential element;” see http://ec.europa.eu/enlargement/ projects-in-focus/regional-cooperation/index_en.htm. Slovenia is currently the only former Yugoslav republic to become a full member of the EU (in May 2004)—­however,



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What is important to note here is that most of those countries are, at the same time, part of the Western Balkans and also of the Adriatic Sea subregions. We will later on, in connection with marine governance, look at the consequences of that situation. Marine Environmental and Resource Management Concerns As to the status of marine environment and resources of the Adriatic Sea, there are serious reasons for concern. By the early 2000s, scientific and monitoring projects had documented the troubling effects and risks of current maritime uses of the Adriatic Sea—both shipping and fishing—on the state of its living resources and the marine environment. As to maritime transport and shipping in general, the current levels of traffic in the Adriatic Sea, apart from accident risks, give rise to various concerns for the coastal states. Particularly important here are the impacts of operational oil discharges from large ships, mainly on international shipping routes that traverse the Adriatic. The extent and frequency of that type of pollution in the Adriatic Sea have been well documented by analyses performed in projects using special satellite technology (satellites equipped with Synthetic Aperture Radar, SAR)— such as, from the early 2000s onwards, by the Sensors, Radar Technologies and Cybersecurity Unit, DG Joint Research Centre of the European Commission.25 Analysis of images obtained has shown the occurrence of greater spill concentrations along main maritime routes, proving that such operational oil spills from ships occur on a large scale here—despite the Special Area status of the entire Mediterranean Sea, including the Adriatic, under MARPOL Annex I, which prohibits the discharge of oil and oily waste. Another major concern relates to marine living resources and their conservation and management. The Adriatic Sea contains some of the highest fish-­producing areas in the Mediterranean. This is especially the case in the northern Adriatic, as well as in several other localities along the Croatian coast. However, Adriatic fish stocks have been exposed to devastating fishing practices. From the commercial perspective, the most attractive species in the Adriatic Sea are ­demersal (benthic, bottom-dwelling) ones. The profitability of demersal resources, easily accessible due also to the wide and mostly shallow Adriatic Sea shelf, has contributed not within the framework of the Western Balkans “Stabilisation and Association Process” package. 25 See especially European Commission, DG Joint Research Centre, Atlante dell’inquinamento da idrocarburi nel mare Adriatico (Luxembourg, 2005), 10. According to that report, 257 oil spills from ships were detected in the Adriatic Sea (area north of latitude 39° N) in 1999; 263 spills in 2000; 184 in 2001; and 244 spills in 2002. A special campaign for the Adriatic Sea during only two-and-a-half summer months in 2004 (July 16– September 30) revealed 77 possible oil spills there; see ibid., pp. 9–10 and 49–53.

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to their depletion. At the same time, the abundance of typical prey species has increased. Especially disturbing findings were revealed in 2000/01, based on data comparison of two research survey cruises monitoring the state of demersal fish stocks over a span of 50 years: the results of the HVAR cruise in 1948 and those of the MEDITS cruise since 1998.26 The comparison revealed major negative changes in the composition and distribution of demersal fish resources, clearly indicating their overexploitation. Some species, such as rays, have been especially affected by the intensity of trawl fishery and are disappearing; moreover, various indicators have been documented of the poor state of demersal Adriatic fish stocks in particular. Exploitation pressures have been out of proportion to the productivity of many important species and stocks, creating a key problem for the sustainability of the Adriatic Sea fisheries. Despite serious concerns for the sustainability of Adriatic Sea fisheries as well as frequent incidents of illegal oil spills from vessels, until recently most of the Adriatic Sea has retained its legal status as a high seas area. Extending Sovereign Rights and Jurisdiction: A Recent Development A key measure under international law, as codified by the 1982 UNCLOS, is the Exclusive Economic Zone (EEZ). However, although such maritime zones have been introduced in most of the world’s seas, including several semi-enclosed seas in or adjoining Europe, none of the Adriatic Sea coastal states had proclaimed an EEZ (or a maritime zone based on it) prior to 2003. In October 2003, Croatia was first to declare an “Environmental and Fisheries Protection Zone” (hereinafter: Zone) in the Adriatic Sea, based on the EEZ regime.27 However, criticism was forthcoming from neighbouring EU member states, Italy and Slovenia, channelled also through various EU bodies. The European Commission, and especially its Directorates-General for External Relations and (since 2005) for Enlargement, were instrumental in that development.28 This carried significant weight politically, 26 See S. Jukić-Peladić, N. Vrgoč, S. Krstulović-Sifner, C. Piccinetti, G. Piccinetti-Manfrin, G. Marano and N. Ungaro, “Long-term changes in demersal resources of the Adriatic Sea: comparison between two trawl surveys carried out in 1948 and 1998,” Fisheries Research, Vol. 53, No. 1 (2001): 95–104. 27 Decision on the Extension of Jurisdiction of the Republic of Croatia in the Adriatic Sea, adopted by the Croatian Parliament, Sabor, on October 3, 2003 and, published in Narodne novine (Official Gazette), No. 157, of October 6, 2003; English translation in Law of the Sea Bulletin, No. 53 (2004): 68–69. 28 For a detailed review and analysis, see Vidas, “The UN Convention on the Law of the Sea, the European Union and the Rule of Law,” supra note 1, pp. 16–24 and 52–66. Fisheries were a chapter subject to negotiations with Croatia regarding its EU membership—thus, a matter in which the European Commission Directorate-General (DG) for Fisheries and Maritime Affairs has the primary competence for involvement. Within the European Commission, however, the handling of the issue of the Croatian Zone



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since Croatia at that time was an applicant, and thereafter (since 2005) a candidate for EU membership—and the issue of the proclaimed Zone has gradually been placed in the context of progress in Croatia’s EU accession process. Eventually, as of March 2008, after several revisions of the initial decision, Croatia was persuaded to discontinue application of the Zone to the EU countries, until a solution “in the EU spirit” could be found.29 Maritime delimitation issues and claims by Italy and Slovenia figured prominently on that agenda.30 In October 2005 and January 2006, through its internal legislation Slovenia unilaterally proclaimed a maritime zone of sovereign rights and jurisdiction in the Adriatic Sea.31 Although labelled as an “ecological” zone, this in fact constitutes a political claim, and not a marine environmental or resource management measure based on international law. The proclaimed zone extends in parallel to the Croatian coast of the western Istrian peninsula. Also the continental shelf that Slovenia claims to have in that area is not a natural prolongation of its own land territory, but a prolongation of the land territory of Croatia in front of its western Istrian coast. Through those claims, Slovenia has considerably enlarged the area it claims as its territorial sea—far beyond the area of “territorial waters

was, at first, a matter in which its External Relations DG was involved and, later in the process, the DG for Enlargement. The involvement of the European Commission in the issue of the Croatian Zone thus focused on the political aspects, instead of substantive aspects of that maritime zone, as related to the sphere of competence of the European Commission. 29 Decision on Modifying the Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea, adopted by the Croatian Parliament on March 13, 2008 and published in Narodne Novine (Official Gazette), No. 31 (2008). Croatia’s suspension of all aspects of its Ecological and Fisheries Protection Zone with respect to EU vessels was referred to by the President of the European Commission, José Manuel Barroso, as one among several conditions for the Commission’s presenting an “indicative timetable for the technical conclusion” of the accession negotiations with Croatia in 2009. On the day of adoption of the said Decision by Croatia, Barroso concluded that this condition had been met; see “Speaking points of Commission President José Manuel Barroso following meeting with Croatian PM Sanader,” of March 13, 2008, at http://ec.europa.eu/ commission_barroso/president/archives/2008/index_en.htm (archived on February 16, 2010, on file with the author). 30 See further analysis in Vidas, “The UN Convention on the Law of the Sea, the European Union and the Rule of Law,” supra note 1, pp. 24–50. 31  Act on the Proclamation of the Ecological Protection Zone and on the Continental Shelf, adopted by the Slovenian Parliament, Državni zbor, on October 4, 2005 and published in Uradni list (Official Gazette), No. 93 (2005). English translation in Law of the Sea Bulletin, No. 60 (2006): 56–57; that translation, however, does not contain the word “proclamation” in the title of the Act, which is otherwise contained in the title of the Act in its original Slovenian-language version: “Zakon o razglasitvi” (Act on the Proclamation). See also the Decree on the Determination of the Fisheries Sea Area, passed by the Government of Slovenia on January 5, 2006, and published in Uradni list (Official Gazette), No. 2 (2006).

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(12 miles from the coast), which cover 180 square kilometres,” as specified earlier by Slovenia.32 That specification was indeed in accordance with international law based on the position and length of the Slovenia’s “45 km long coastline along the Adriatic Sea,” as specified in the same 1998 document by the Government of Slovenia. Maritime areas over which Slovenia now claims sovereign rights and jurisdiction are extended from such an excessive territorial sea claim. As yet, there have been no official or public reactions from other EU member states or any EU body to Slovenia’s evidently excessive maritime claim, which is clearly in violation of UNCLOS. No state except Croatia has publicly protested.33 Slovenia’s “ecological zone,” while a paper tiger only, remains formally in effect under its national legislation. In February 2006, Italy adopted a law on the establishment of an “ecological protection zone.”34 Within the zone, Italy is to exercise its jurisdiction in the protection and conservation of the marine environment, including the archaeological and historic heritage. The Law, however, does not apply to fishing activities. Moreover, it only authorizes the establishment of an ecological protection zone pending a decree of the President of Republic. This is related to achieving delimitation agreements with the “states involved,” i.e., those whose territory is adjacent to or facing Italian territory. In effect, and as the result so far, the (political) status quo has been maintained regarding coastal state jurisdiction in the Adriatic Sea. No real progress has been made regarding management and conservation measures for the heavily depleted Adriatic fish stocks. Quite the contrary, the same harmful fishing practices continue, with no legal possibility of control by the coastal state. Due to political considerations, advances in measures to combat marine pollution have also been limited—even though frequent incidents of illegal oil spills had been proven by research projects conducted under the auspices of the European Commission itself. In addition to the right of any coastal state that can lawfully proclaim an EEZ to apply that regime in accordance with UNCLOS, some core principles of the law of the sea have been under pressure, amounting to testing in the Adriatic Sea. That includes the basic axiom that the land dominates the sea in determining maritime areas under sovereignty and the sovereign rights of coastal states— 32 Information cited as provided by the Government of Slovenia in the context of preaccession negotiations for EU membership of that country, in the document on “Negotiating Position of the Republic of Slovenia on Chapter 8—Fisheries,” dated December 18, 1998 (supra note 15), at p. 3. 33 See note verbale by Croatia, dated May 31, 2007, in Law of the Sea Bulletin, No. 64 (2007): 40–42. 34 Law 61 on the Establishment of an Ecological Protection Zone Beyond the Outer Limit of the Territorial Sea, adopted on February 8, 2006 and published in Gazzetta Ufficiale della Republica Italiana (Official Gazette of the Italian Republic), No. 52 (March 3, 2006); English translation as provided by Italy in Law of the Sea Bulletin, No. 61 (2006): 98.



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whether in relation to the delimitation issues along the eastern Adriatic coast, or potentially in future delimitation between the maritime zones of the western (Italian) coast and the eastern coast countries, where the Croatian island archipelago plays a prominent role. The need to conserve the marine resources and prevent environmental degradation of the Adriatic Sea speaks strongly in favour of the adoption and implementation of all measures available, including an EEZ. There is, however, no more than international law to give impetus to this line of action. Powerful economic and political interests, on the Adriatic regional and the broader Eurasian strategic level, seem to favour maintaining the status quo in the overall picture of Adriatic Sea jurisdiction. Pending Joint Initiatives: The Example of an Adriatic Sea PSSA Owing to its special features and the slow exchange of water with the rest of the Mediterranean through the Strait of Otranto, the Adriatic is a particularly sensitive sea, highly vulnerable to marine pollution. PSSA, as a concept of balancing the local and regional or subregional environmental protection interests with the global interests of international shipping and industry, may prove itself a feasible and useful instrument for the Adriatic Sea sub-region. Seen in the context of regionalisation of the “European seas,” which is an important underlying element of the new EU Marine Strategy Directive, the relevance of an Adriatic Sea PSSA becomes even more apparent. While the Marine Strategy is directly applicable only to the EU member states and marine waters covered by their sovereignty or jurisdiction, member states are required within each marine region or subregion to make every effort to coordinate their actions with third countries. Ability to cooperate on a PSSA may prove a key test-case for the Adriatic countries—EU members, candidates, or potential candidates alike— towards meaningful implementation of an otherwise broad EU Marine Strategy, on the specific and crucial goal of Adriatic marine environment protection and sustainable development. An Adriatic PSSA could be an important first step in that direction. So far, however, the matter remains unresolved. In the spring of 2006, Croatia invited the other Adriatic coastal states to collaborate on a proposal for an Adriatic Sea PSSA to be submitted to the IMO; Croatia has also distributed a draft study for the Adriatic Sea PSSA, prepared with the assistance of the Fridtjof Nansen Institute in Oslo in cooperation with Det norske Veritas and several Croatian scientific institutions.35 A Joint Expert Group, with the participation of

35 For a comprehensive overview and discussion on the Adriatic PSSA initiative see Vidas, “Particularly Sensitive Sea Areas: The Need for Regional Cooperation in the Adriatic Sea,” supra note 1, pp. 347–380; available at http://www.ijf.hr/eng/EU4/vidas.pdf.

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Albania, Bosnia and Herzegovina, Croatia, Italy, Montenegro and Slovenia, has been formed and several meetings have been held. The Group made good progress at its first three meetings in 2006 and 2007. Since then, however, stalemate on some issues seems to have impeded the conclusion of the work and submission of the Adriatic Sea PSSA proposal to the IMO. The Adriatic Sea Dilemma: A Persistent Challenge Among the Adriatic coastal states there exist great regional imbalances, even diametrically opposed situations—as illustrated by the share, position, and various features of coastline of Adriatic Sea countries, on the one hand, and the extent of their maritime uses of the Adriatic Sea, on the other. As a result, while some overall interests in the Adriatic Sea remain shared, other, more specific ones, are still poles apart. Moreover, the pressing need for sound environmental protection and improved resource management and conservation in the Adriatic Sea remains hampered by a plethora of delimitation disputes and emerging maritime boundary issues. That is of little help to the Adriatic Sea states that are facing major challenges as to the sustainability of marine resources—and where impacts of the expansion of international shipping and fishing in one specific Adriatic area may easily spill over to another, potentially affecting the entire region. The Adriatic Sea countries share one important, lasting feature: they are all coastal states, with a multitude of important activities and considerations. A range of measures will need to be put in place, to enable sustainable resource utilization and rational management, and durable marine environmental protection in the Adriatic Sea. Inevitably, the Adriatic Sea states will need to be oriented towards cooperation in approaches to matters of joint concern, such as marine environmental protection and resource conservation and management— yet where all the participants can retain certain profoundly different features of their own. The key challenge is to strike the right balance between the national regulation sphere, which can take into account each country’s special features and rights under international law, on the one hand, and regional/subregional cooperation based on commonality, on the other. In responding to that challenge, the Adriatic countries should remain within the framework of general rules of international law and global agreements to which they are parties, in order to facilitate long-term stability in mutual relations and also to arrive at solutions that can be acceptable to third states. Subregional Layers and Adriatic Sea Governance: Final Remarks Under international law, it is the coast—an objective geographic criterion— that serves as the key parameter in attributing the rights of states over the sea.



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However, in the Adriatic Sea there is a disproportion in political power in favour of the western (Italian) coast, whereas international law, insofar as it depends on coastal geography, generally works in favour of the eastern (mostly Croatian) coast. That is the first layer of Adriatic Sea context of the past 20 years. The second layer is found in the placement of the eastern Adriatic coast, to which several developed, Central European land-locked countries gravitate, and on which they depend for energy and other supplies. And then there is a third layer: the countries here are not only part of the Adriatic Sea subregion; most of them (now excluding Slovenia but including Albania) are also part of yet another putative “subregion,” in recent political vocabulary called “the Western Balkans.” That multifaceted context of the Adriatic Sea placement has two key aspects. Under globally agreed rules of the international law of the sea, developments in the Adriatic Sea area are to be governed by the rule of law, such as contained in UNCLOS. In practice, however, relations in the Western Balkans are governed by politics, since agreements and arrangements there are not yet settled. The outcome has increasingly been a spill-over of the Western Balkans political path to the governance aspects of the Adriatic Sea. The consequences have been highly detrimental: 1) for the Adriatic as a marine region/subregion: As a result of the failure of international law, there is status quo on regulatory action, with the continuation of marine ecosystem stresses; 2) for the Western Balkans: The trend contains a nucleus of future destabilization, whereas the essence of EU involvement, and a declared goal, should be stabilization of the area; 3) for the European Union as a whole: Its foundation is the Rule of Law—and this should be employed to strengthen cooperation in both the Adriatic and the Western Balkans (sub)regions. However, that cannot be done by facilitating circumvention of international law there.36 The EU is based on the rule of law, one of the main values on which its foundations rest. Thus it is essential that the “European way” and international law (in this case, UNCLOS, to which all the EU member states are parties) should correspond.37

36 For further discussion on this particular aspect in the context of the issue of the Croatian Zone, see Vidas, “The UN Convention on the Law of the Sea, the European Union and the Rule of Law,” supra note 1, pp. 62–66. 37 On EU and the rule of law see Article 2 of the Treaty on European Union, consolidated version published in Official Journal of the European Union, C 115 (May 9, 2008): 13. On UNCLOS and the rule of law see Bernard H. Oxman, “The Rule of Law and the United Nations Convention on the Law of the Sea,” European Journal of International Law, Vol. 7 (1996): 353–371.

C. The Indian Ocean, Latin American, African and Arctic Regions

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Current Ocean Law Issues in the Indian Ocean Region Ximena Hinrichs Oyarce*

Introduction The Indian Ocean is the third largest in the world.1 Surrounded by three continents in the form of a triangle, the Indian Ocean is bordered by the Indian subcontinent to the north; the Arabian Peninsula and East Africa to the west; the Malay Peninsula, the Sunda Islands and Australia to the east.2 The southern limit of the Indian Ocean, however, is deemed to be located at 60° South latitude, the line which separates it from the Southern Ocean.3 Consisting of vast maritime areas, the wider Indian Ocean includes 26 coastal States in addition to France and the United Kingdom, which have island possessions in the region. The States bordering the Indian Ocean do not form a cohesive regional unit. Their maritime interests vary, depending on the extension of maritime space under national jurisdiction and on the situation of the individual State as a coastal State, island State or geographically-disadvantaged State. However, enclosed and

* The opinions contained in this article are expressed by the author in her personal capacity and do not reflect the views of ITLOS. 1 For a geographical description of the Indian Ocean, see Indian Ocean, Encyclopaedia Britannica Online, available at http://www.britannica.com (accessed on February 18, 2011); Didier Ortolland and Jean-Pierre Pirat, Atlas géopolitique des espaces maritimes, (Paris, 2008), at 109–120; Indian Ocean, CIA—The World Factbook, available at https:// www.cia.gov/library/ (accessed on February 18, 2011) (); Alastair Couper (ed.), The Times Atlas of the Oceans (London, 1983), at 26. 2 The International Hydrographic Organization (IHO) has defined the limits of the oceans and seas including the Indian Ocean, see IHO, Limits of Oceans and Seas, 3rd edition (Monte-Carlo, 1953), at 22. 3 The southern limit of the Indian Ocean is currently under review within the IHO, see Indian Ocean, CIA—The World Factbook.

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semi-enclosed seas in the region are areas of common concern, as they provide strategic routes for the transportation of oil.4 The United Nations Convention on the Law of the Sea of 1982 (UNCLOS) sets out the universal legal framework within which all activities in the oceans and seas are to be carried out.5 It contains, in its Part XV, comprehensive procedures for the settlement of disputes concerning the application or interpretation of UNCLOS. The International Tribunal for the Law of the Sea (ITLOS) is given, in Part XV, a pre-eminent position in the matter of settlement of law of the sea disputes. Pursuant to UNCLOS, States in the region have asserted jurisdiction over wide maritime areas leading in some cases to overlapping claims. The most pressing issue in the region is perhaps maritime security and piracy, which has required the UN Security Council to take stringent deterring measures. States in the region have also had to deal with illegal fishing and with emerging environmental issues. Through the establishment of mechanisms of regional cooperation, States have striven to pursue their common maritime interests. In a few instances, recourse to third-party dispute resolution has proved to be a valid alternative in order to achieve a peaceful solution of bilateral disputes. This paper deals with these and other current law of the sea issues in the Indian Ocean region, which are assessed from the perspective of UNCLOS and its settlement of dispute procedures. Compatibility of National Legislation with UNCLOS The large majority of States in the region have agreed to be bound by UNCLOS and have become parties to it. Exceptions are Eritrea, Iran and the United Arab Emirates. The claims to maritime jurisdiction made by the States Parties indicate a wide degree of acceptance of the maritime zones regime established by UNCLOS.6 It appears that only one State, Somalia, claims a 200-nautical-miles territorial sea.7 It may be recalled, in this regard, that the UN General Assembly has frequently affirmed the need to preserve the universal and unified character of UNCLOS.8

4 Enclosed and semi-enclosed seas include the Red Sea, the Gulf of Aden, the Persian Gulf, the Gulf of Oman, the Arabian Sea, and the Great Australian Bight. From the Indian Ocean, access can also be gained to the Straits of Hormuz, Bal el Mandeb, Malacca and Singapore; see Couper, The Times Atlas of the Oceans, 150–155, 185. 5 United Nations Convention on the Law of the Sea, adopted in Montego Bay on December 10, 1982, entered into force on November 16, 1994, UNTS Vol. 1833, at 3. As of August 3, 2012, there are 162 States Parties to UNCLOS. 6 Division of Ocean Affairs and Law of the Sea of the UN (DOALOS), Table of claims to maritime jurisdiction, updated on July 31, 2010, which is available on the DOALOS website. 7 Somalia, Law No. 37 on the Territorial Sea and Ports, of September 10, 1972, which is available on the DOALOS website. 8 GA resolution A/RES/64/71, of December 4, 2009, paragraph 2.



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The importance of preserving its integrity is indeed vital to the maintenance of peace and the equitable use of marine resources. Since the adoption of UNCLOS, States have embarked upon a process of harmonizing their national legislation with the provisions of UNCLOS; and this is seen as a positive trend. A number of countries in the region, including South Asian States, nevertheless maintain legislation that dates back to the 1970s.9 The legislation enacted by States shows general conformity with the provisions of UNCLOS, albeit if some rules have been seen as a departure from it.10 In a few cases, the baselines used may exceed the criteria laid down in UNCLOS for the determination of straight baselines and archipelagic baselines.11 Prior notification or permission for warships or other ships to exercise the right of innocent passage in the territorial sea is sometimes required.12 Conditions are occasionally imposed on foreign vessels, such as those carrying radioactive wastes or other dangerous cargo, for navigation in the exclusive economic zone.13 These practices may raise issues relating to provisions of UNCLOS dealing with innocent passage, the freedom of navigation and the duty to protect of the marine environment.  9 For example, see the legislation of Bangladesh, Territorial Waters and Maritime Zones Act 1974, Act No. XXVI of 1974, and Notification No. LT—1/3/74 of the Ministry of Foreign Affairs, Dacca of April 13, 1974; Djibouti, Law No. 52/AN/78 concerning the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, the Maritime Frontiers and Fishing; India, The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, Act No. 80 of 28 May 1976; Sri Lanka, Maritime Zones Law No. 22 of September 1, 1976; Yemen, Act No. 45 of 1977 concerning the Territorial Sea, Exclusive Economic Zone, Continental Shelf and other Marine Areas, Act. No. 45 of December 17, 1977. 10 J. Ashley Roach, “Excessive Claims,” American Society International Law Proceedings 84 (1990): 288–295; see also Ted McDorman, “Extended Jurisdiction and Ocean Resource Conflict in the Indian Ocean,” IJECL 3 (1988): 211–212, at 214. Concerning the practice of African States, see Tayo O. Akintoba, African States and Contemporary International Law: A Case Study of the 1982 Law of the Sea Convention and the Exclusive Economic Zone (The Hague, 1996), in particular, Chapter 4. 11 For instance, with regard to the archipelagic baselines used by the Maldives, the ratio between land and sea has been questioned; see Ortolland and Pirat, Atlas géopolitique, at 117. 12 For example, see the legislation of Bangladesh, Territorial Waters and Maritime Zones Act 1974, Act No. XXVI of 1974, sections 6 and 7; India, Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, Act No. 80 of 28 May 1976, section 4 (2); Sri Lanka, Maritime Zones Law No. 22 of 1 September 1976, section 3 (1); Seychelles, Maritime Zones Act, 1999 (Act No. 2 of 1999), section 16 (2) and (4). 13 For instance, see the legislation of India, Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, Act No. 80 of 28 May 1976, section 7; Maldives, Maritime Zones Act No. 6/96, sections 13 (a) and 14; Myanmar, Territorial Sea and Maritime Zones Law, 1977, Pyithu Hluttaw Law No. 3 of 9 April 1977, section 9; Yemen, Act No. 45 of 1977 concerning the Territorial Sea, Exclusive Economic Zone, Continental Shelf and other Marine Areas; Pakistan, articles 7 and 8; Territorial Waters and Maritime Zones Act, 1976 (of 22 December 1976), section 3 (3) and 6 (4).

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Overlapping Claims The Indian Ocean region presents only a few unresolved maritime boundaries.14 This is true, in particular, with regard to the eastern sector, including the Andaman Sea (where the majority of maritime boundaries have been delimited), as well as a number of boundaries in the area surrounding the Indian subcontinent. The situation is to some extent different in the western sector, where fewer agreements may reflect the persistent political conflicts in the region.15 Possible maritime boundaries which are still to be resolved concern the Timor Sea (East Timor and Australia, East Timor and Indonesia), Bay of Bengal (India and Bangladesh), India and Pakistan, and the area of the Mozambique Channel. There are conflicts concerning sovereignty over islands as well.16 Regarding the Timor Sea, in 2002 East Timor and Australia established a Joint Petroleum Development Zone,17 which coincided with the so-called “Area A” in the Timor Gap Treaty of 1989 between Indonesia and Australia.18 With the establishment of this zone of cooperation, East Timor and Australia undertook to jointly exploit the petroleum resources in the area and to share the revenues of

14 With regard to the unresolved maritime boundaries in the Indian Ocean, see Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, 2nd edition (Leiden, 2005), 461–475; see also Victor Prescott, “Indian Ocean Boundaries,” in David A. Colson and Robert W. Smith, eds., International Maritime Boundaries (The Netherlands, 2000), Vol. V, 3452–3466. 15 In this regard, see Prescott and Schofield, Maritime Political Boundaries, at 461–462; see also Ortolland and Pirat, Atlas géopolitique, at 111. Concerning delimited maritime boundaries in the Indian Ocean, see Jonathan I. Charney and Lewis A. Alexander, eds., International Maritime Boundaries (The Netherlands, 1993), Vol. II, 1185–1472; Vol. III (1998), 2369–2381; and Vol. IV (2002), 2697–2820. 16 Other unresolved maritime boundaries in the Indian Ocean region concern Pakistan and Iran, Somalia and Yemen, Somalia and Kenya, and Mozambique and South Africa, although the delimitation of these boundaries does not appear to be a matter of urgency for those concerned, see Prescott and Schofield, Maritime Political Boundaries, at 462, 464–467. 17 Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste concerning Arrangements for Exploration and Exploitation of Petroleum in an Area of the Timor Sea between Australia and East Timor, signed at Dili, on May 20, 2002, which is available on the DOALOS website. The Exchange of Notes was applicable pending entry into force of the Timor Sea Treaty between the Government of East Timor and the Government of Australia, signed at Dili, on May 20, 2002, entered into force on April 2, 2003, UNTS Vol. 2258, 3–70. 18 In this regard, see Prescott and Schofield, Maritime Political Boundaries, at 462. The Timor Gap Treaty was the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, signed in Canberra, on 11 December 1989, no longer in force, Australian Treaty Series No. 9 (1991).



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the petroleum production; of which ninety per cent was allocated to East Timor and ten per cent to Australia. While the Timor Sea Treaty provides an example for conflict management, it is not meant to create a maritime boundary between East Timor and Australia. Instead, it establishes provisional arrangements within the meaning of Article 83 of UNCLOS,19 taking into account that the treaty is without prejudice to permanent seabed delimitation between East Timor and Australia.20 The boundary delimitation between those countries is thus pending.21 On the other hand, concerning East Timor and Indonesia, no agreement has been concluded with regard to the delimitation of their maritime boundary. This exercise presents a number of challenges on account of complex geographical factors affecting the boundary.22 The delimitation of boundaries between countries around the Bay of Bengal is a more pressing issue. On 8 October 2009, Bangladesh instituted separate arbitral proceedings against both Myanmar and India in accordance with Annex VII of UNCLOS. According to Bangladesh, the purpose of its claims was “to secure the full and satisfactory delimitation of Bangladesh’s maritime boundaries with India and Myanmar in the territorial sea, the exclusive economic zone and the continental shelf in accordance with international law.”23 Subsequently, proceedings were instituted before ITLOS on 14 December 2009 in respect of the dispute between Bangladesh and Myanmar and ITLOS issued its judgment on 14 March 2012. Information on these disputes is given in section VII below. Turning to Pakistan and India, the maritime boundary between these countries remains unsettled.24 One issue with a bearing on the maritime boundary concerns the dispute about the mouth of the Sir Creek, which defines a section

19 Timor Sea Treaty, preamble. 20 Timor Sea Treaty, article 22. 21 In this regard, Prescott states that “[i]n the future East Timor is likely to press for the delimitation of a single boundary to separate its maritime areas from those of Australia in the Timor Sea,” in Prescott, “Indian Ocean Boundaries,” Vol. V (2005), at 3458. He further states that “there seems little prospect that such negotiations [on a single boundary] will be productive” bearing in mind the overlapping claims concerning the continental shelf resulting from Australia’s reliance on the principle of natural prolongation and East Timor’s argument in favour of the criterion of distance,” in Prescott and Schofield, Maritime Political Boundaries, at 462. 22 For instance, due to the configuration of the coast on the south side of the island of Timor; the presence of the detached territory of Oekussi on the north side of the island of Timor which pertains to East Timor but is enclaved in Indonesian territory; and the presence of islands like Pulau Batek and Ilha do Atauro, see Prescott and Schofield, Maritime Political Boundaries, at 462. See also Prescott, “Indian Ocean Boundaries,” Vol. V (2005), at 3458–3459. 23 Letter by the Minister for Foreign Affairs of Bangladesh of 13 December 2009, the text of which is available on the website of ITLOS. 24 Prescott and Schofield, Maritime Political Boundaries, at 462, 464–465.

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of the land boundary between the two countries.25 A further issue arose as a consequence of the deposit with the UN Secretary-General in 1999 by Pakistan of the coordinates of baseline points.26 India reacted to this notification raising matters concerning the identification of the land terminus of the boundary, the compatibility of certain baseline points with UNCLOS including the method of drawing straight baselines, and the status of the formation Sail Rock in relation to Article 121 of UNCLOS.27 There are a number of undelimited boundaries in the area of the Mozambique Channel. Situated between Madagascar and the African mainland, the Mozambique Channel faces the Comoros archipelago to the north, and the island Europa on the south. No section of the Mozambique Channel is wider than 200 nautical miles.28 This complicated geographical setup might explain why only a few maritime boundaries in this area have been delimited. Unresolved boundaries include those between Comoros and Tanzania, on the one hand, and between Comoros and Mozambique on the other, but these delimitations do not currently seem to pose major difficulties.29 The establishment of the boundary between Madagascar and Mozambique appears more problematic, however, due to the presence of islands in the channel which are administered by other countries. France owns a number of small islands in the Mozambique Channel, although the sovereignty over some of these islands—Juan da Nova and Europa—has been challenged.30 French sovereignty over these islands permits it to claim extensive maritime areas reducing the common boundary between Madagascar and Mozambique. An additional difficulty in the area results from the presence of the French feature named Bassas da India (total area, 0.2 sq. km), whose status as a rock or low-tide elevation has

25 Concerning the mouth of the Sir Creek, see A. Misra, “The Sir Creek Boundary Dispute,” International Boundaries Research Unit Boundary and Security Bulletin (2000–2001): 91–95. See also Prescott and Schofield, Maritime Political Boundaries, at 465. 26 Notification of the UN Secretary-General dated June 4, 1999: Deposit by Pakistan of the list of geographical coordinates of points for the drawing of the straight baselines, with an illustrative map, which is available on the DOALOS website. According to Pakistan, the identification of the baselines “was part of the process of delimiting the maritime boundaries with countries with adjacent (India and Iran) and opposite (Oman) coasts,” see Pakistan, Government defines territorial maritime boundaries, LSB 34 (1997), at 45. 27 Statement by India dated May 22, 2001, LSB 46 (2001), at 90. India contended therein that Sail Rock could not form a base point as “rocks which cannot sustain human habitation or economic life of their own cannot have a territorial sea, exclusive economic zone or continental shelf.” As to the starting point of the boundary, India noted that this should have been the land terminus point inside the Gwatar Bay. 28 Prescott and Schofield, Maritime Political Boundaries, at 466. 29 Ibid., at 467. 30 Ibid., at 468.



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been questioned.31 Furthermore, French possession of the islands Mayotte and Glorieuses is relevant to the determination of the maritime boundary between Comoros and France. The sovereignty over the islands Glorieuses is, however, disputed by Madagascar which in turn complicates the boundary between this country and France.32 The boundary between these two countries is also to be drawn around the island of Réunion and the smaller island Tromelin (0.8 sq. km), which is a French overseas territory also claimed by Mauritius.33 The United Kingdom also controls territories in the region, namely, the Chagos Archipelago (British Indian Ocean Territory) with the island of Diego Garcia, on which the United States of America installed an important military base in 1966.34 Situated in the centre of the Indian Ocean and south of the Maldives, the Chagos archipelago allows the United Kingdom to make claims to extended maritime areas, which may overlap with those of the Maldives, given that the Maldives has drawn archipelagic baselines from which it has measured its various maritime zones.35 However, boundaries between the United Kingdom in relation to the British Indian Ocean Territory and the Maldives appear to have been agreed but need still to be formalized.36 Regarding Mauritius, this country defined its baselines in 2008, which the United Kingdom protested, stating that “Mauritius purported to exercise rights over the territory of the United Kingdom.”37 According to the United Kingdom, this would overlap with the 200 nautical miles Environment (Protection and Preservation) Zone established by it around the British Indian Ocean Territory in 2003.38 In April 2010, the United Kingdom announced the formation of the world’s largest marine preserve, comprising a

31 Ibid., at 469. 32 Ibid., at 470. 33 Ibid., at 471. 34 Ortolland and Pirat, Atlas géopolitique, at 111. 35 See Maritime zones of Maldives Act No. 6/96, which is available on the DOALOS website. According to Prescott and Schofield, the United Kingdom and the Maldives had agreed, at the technical level, on a line based on equidistance, in Maritime Political Boundaries, at 472. 36 Note of the Permanent Mission of the United Kingdom to the UN, No.171/10 of August 9, 2010, which was made in relation to the submission made by the Maldives to the Commission on the Limits of the Continental Shelf. The note is available on the DOALOS website. 37 Note 26/09 from the United Kingdom dated March 19, 2009, which is available on the DOALOS website. 38 In response to the British note, Mauritius issued a communication on June 9, 2009, see Report of the Secretary-General, Oceans and the Law of the Sea, UN document A/64/66/Add.1, of November 25, 2009, paragraph 35, at p. 12. For a comment on the measures taken by the United Kingdom, see 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. See BBC News, April 2, 2010, regarding the United Kingdom announcement.

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545,000 square mile area around the Chagos archipelago. Furthermore, Mauritius appears to have put forward sovereignty claims over the Chagos ­archipelago.39 On 20 December 2010, Mauritius instituted arbitral proceedings concerning the establishment by the United Kingdom of a marine protected area around the Chagos Archipelago pursuant to Annex VII of UNCLOS. Further to the above, it may be noted that a number of maritime delimitation disputes in the region involve questions concerning the principles and methods governing maritime delimitation, which relate to Articles 15, 74 and 83 of UNCLOS. They also concern the status of islands, which is a matter governed by Article 121 of UNCLOS. Other issues relate to the determination of the starting point of the maritime boundary and sovereignty over islands, which may be regarded as falling within the framework of UNCLOS to the extent that they impinge on the maritime boundary delimitation. Outer Continental Shelf The international community is currently involved in the delineation of the outer limits of the continental shelf. As regards the continental shelf of the Indian Ocean, this is relatively narrow with an average width of about 120 km, having its widest point off Mumbai and off northwestern Australia. However, the bottom deposits of the Indian Ocean are significant, with high levels of suspended sediments originating mainly from the Indian subcontinent, which in the Bay of Bengal forms a particularly thick layer.40 Above the ocean floor, seamounts abound between Réunion and the Seychelles, and near the Wharton Basin located off the coasts of Java and Sumatra.41 There are large reserves of hydrocarbons and natural gas in the Indian Ocean, and it is indicated that about 40% of the world’s offshore oil production is located therein. Polymetallic sulfides, cobalt-rich crusts and other minerals seem to abound on its ocean floor.42 It is thus hardly surprising that the 39 Preliminary Information Submitted by the Republic of Mauritius Concerning the Extended Continental Shelf in the Chagos Archipelago Region Pursuant to the Decision Contained in SPLOS/183 (May 2009), which is available on the website of DOALOS. In this preliminary information, Mauritius stated that under its Constitution the territory of Mauritius includes the Chagos Archipelago. 40 For general information, see R.P. Anand, Studies in International Law and History, An Asian Perspective (Leiden, 2004), 225–243. See also Indian Ocean, Encyclopaedia Britannica Online, at 2–3. 41 Seamounts are underwater volcanic peaks that rise more than 1,000 metres above the ocean floor and are considered to provide habitats for species of high diversity and endemism, for further information see the Report of the UN Secretary General on Oceans and the Law of the Sea, UN document A/59/62 of March 4, 2004, at 60, paragraphs 235–236. 42 In this regard, see Indian Ocean, CIA—The World Factbook, at 2. It is stated that sample sites have yielded nodules in the Indian Ocean (in the central part thereof, south



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possibility for a State to extend its continental shelf beyond 200 nautical miles has acquired increasing importance. Such possibilities appear to exist mainly in the areas off the west coast of Australia, the Bay of Bengal, south of Madagascar, and to the east of Seychelles.43 Countries of the Indian Ocean region which fulfill the requirements set out in Article 76 of UNCLOS are making use of the procedure established therein of presenting information on the limits of the outer continental shelf to the Commission on the Limits of the Continental Shelf (“the CLCS”). According to the UN, 20 submissions concerning areas of the Indian Ocean have been made to the CLCS out of a total of 61 submissions.44 In addition, seven countries have presented preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles to the CLCS.45 The CLCS has made one recommendation concerning Australia. Thus, countries in the region have been particularly active in making their respective claims. It goes without saying that some claims to the outer limits of the continental shelf of States in the region may overlap. For instance, the claims of South Africa to the outer continental shelf arising from Prince Edward Islands may overlap with those of France on the

towards South Africa and in the South Australian Basin), see Indian Ocean, Encyclopaedia Britannica Online, at 7. In this regard, see also Ellen Laipson and Amit Pandya, eds., The Indian Ocean: Resources and Governance Challenges (Washington D.C., 2009), at 68. 43 Ortolland and Pirat, Atlas géopolitique, at 109; see also McDorman, “Extended Jurisdiction,” at 214. 44 According to the information posted on the DOALOS website, accessed on August 3, 2012, these 20 submissions are the following: (1) Australia on November 15, 2004, in respect of which the Commission made recommendations in 2008; (2) Indonesia (North West of Sumatra Island) on June 16, 2008; (3) Joint submission by Mauritius and Seychelles (in the region of the Mascarene Plateau) on December 1, 2008; (4) Myanmar on December 16, 2008; (5) France (areas of the French Antilles and the Kerguelen Islands) on February 5, 2009; (6) Yemen (in respect of south east of Socotra Island) on March 20, 2009; (7) Pakistan on April 30, 2009; (8) South Africa (in respect of the mainland of the territory of the Republic of South Africa) on May 5, 2009; (9) Joint submission by France and South Africa (in the area of the Crozet Archipelago and the Prince Edward Islands) on May 6, 2009; (10) Kenya on May 6, 2009; (11) Mauritius (in the region of Rodrigues Island) on May 6, 2009; (12) Seychelles (concerning the Northern Plateau Region) on May 7, 2009; (13) France (in respect of La Réunion Island and Saint-Paul and Amsterdam Islands) on May 8, 2009; (14) Sri Lanka on May 8, 2009; (15) India on May 11, 2009; (16) Mozambique on July 7, 2010; (17) Maldives on July 26, 2010; (18) Bangladesh on February 25, 2011; (19) Madagascar on April 29, 2011; and (20) Tanzania on January 18, 2012. 45 According to the information posted on the DOALOS website, accessed on February 18, 2011, these States are the following: Comoros on June 2, 2009; Mauritius on May 6, 2009; Mozambique on May 11, 2009; Oman on April 15, 2009; Seychelles on May 8, 2009; Somalia on April 14, 2009; and Tanzania on May 7, 2009.

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basis of the Crozet Islands.46 However, South Africa and France presented a joint submission to the CLCS in relation to the limits of the continental shelf beyond 200 nautical miles in the area of the Crozet Archipelago and the Prince Edward Islands.47 In other cases, from a perusal of communications issued by States in respect of the submissions made, it would appear that questions of overlapping claims will arise. As appropriate, the question of the delimitation of the outer continental shelf between States with opposite or adjacent coasts may need to be effected pursuant to Article 83 of UNCLOS, leading to dispute settlement within the framework of Part XV procedures. Maritime Security The Indian Ocean has gained strategic importance for international shipping, as it provides crucial sea routes for the transport of petroleum. Piracy and armed robbery continue to pose serious threats to maritime security in various areas of the Indian Ocean and has a critical effect on maritime trade worldwide. In recent years, most of the pirate incidents in the region have taken place in Somalia and the Gulf of Aden, a crucial route from the Indian Ocean leading to the Suez Canal.48 However, because of the efforts undertaken by international naval operations, incidents in the Gulf of Aden dropped in 2010 by at least 50 percent compared to previous years. On the other hand, in other areas off Somalia, including the Red Sea and the wider Indian Ocean, such incidents have increased significantly due to the lack of naval units patrolling the area.49 It is indeed the continuing political instability in Somalia which largely contributes to the problem of piracy and armed robbery in the region.50 This problem may, however, be assessed from a juridical angle as it has given rise to important questions concerning the interpretation or application of certain provisions of UNCLOS. When the UN Security Council considered measures to counter the incidents of piracy and armed robbery off the coast of Somalia, it had to deal with the narrow definition of piracy contained in Article 101 of UNCLOS as such illegal acts often occurred within the territorial waters of Somalia.51 Article 101 of UNCLOS limits piracy to the commission of acts of violence on the high seas, thus excluding

46 Prescott and Schofield, Maritime Political Boundaries, at 472. 47 Joint Submission of South Africa and France, May 6, 2009, which is available on the DOALOS website. In the joint submission, both countries explained that the areas concerned were not the subject of any dispute between them. 48 International Maritime Bureau, “Piracy and Armed Robbery against Ships: Annual Report for the Period 1 January–31 December 2010,” available upon request from the website of the International Chamber of Commerce, at 6, 19. 49 Ibid., at 19. 50 See UN Security Council Resolution 1964 (2010), adopted on December 22, 2010. 51 UN Security Council Resolution 1816 (2008), adopted on June 2, 2008.



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those acts conducted in the territorial sea.52 As a result, the Security Council proceeded to obtain the consent of Somalia in order to authorize States cooperating with the Transitional Federal Government of Somalia to enter the territorial waters of Somalia for a certain period, according to its Resolution 1816 (2008). This authorization permitted these States to use all necessary means to suppress acts of piracy and armed robbery, albeit, “in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law.”53 As has been pointed out, “[t]he basic effect of these provisions is to make the rules of international law concerning piracy on the high seas applicable also to territorial waters” while noting, at the same time, “how keen many states are not to go beyond what is provided in UNCLOS and how dangerous the provisions of the Security Council resolution may appear to them.”54 Certain limitations set out by the Security Council in its resolution 1816 may meet those concerns, in that it provided that the authorization was limited to six months and to the specific situation of Somalia, and that the entering of foreign vessels in the territorial waters of Somalia was not to be considered as having the effect of denying or impairing the right of innocent passage.55 These developments may be further appraised vis-à-vis the definition of piracy in Article 101 of UNCLOS. The fact that pirates have been captured in the course of operations carried out off the Somali coast has given rise to the further issue of how to proceed with their criminal prosecution. Article 105 of UNCLOS stipulates that “the courts of the State which carried out the seizure [of the pirate ship] may decide upon the penalties to be imposed.” Although this provision confers universal jurisdiction on the courts of the seizing State, the seizing States appear reluctant to exercise such powers.56 On this basis, an agreement was concluded on 6 March 2009 between the European Union and Kenya concerning the transfer to Kenya of persons suspected of having carried out acts of piracy.57 According to the

52 With regard to current developments on piracy, see Tullio Treves, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia,” European Journal of International Law 20 (2009): 399–414. 53 Subsequently, in its Resolution 1897 (2009), adopted on November 30, 2009, the Security Council renewed the authorization granted in Resolution 1816 (2008) for a period of twelve months. 54 Treves, “Piracy, Law of the Sea,” at 404–405. 55 UN Security Council Resolution 1816 (2008), paragraphs 7 and 8. 56 Treves, “Piracy, Law of the Sea,” at 408. See also Helmut Tuerk, “Piracy and the Law of the Sea,” Chapter 25 in the present volume. 57 Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and detained by the European Union-led naval force (EUNAVFOR), and Seized Property in the Possession of EUNAVFOR, from EUNAVFOR to Kenya and for their Treatment after such Transfer, Official Journal of the European Union (March 25, 2009) L79/49.

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agreement, the accused persons would be prosecuted under Kenyan law. A similar agreement was concluded between the European Union and Seychelles on 30 October 2009.58 The link between these agreements and UNCLOS is a matter which may need further appraisal in light of its Article 105. On the other hand, the Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden was concluded on 29 January 2009, under the auspices of the International Maritime Organization (“IMO”).59 Through this non-binding mechanism, States have agreed to cooperate towards the seizure of ships and persons suspected of engaging in piracy or armed robbery against ships as well as the prosecution of these persons, for which States agreed to review their national legislation. Provision is also made for the rescue of ships, persons, and property subject to acts of piracy. The Code of Conduct also covers the possibility of nominating an authorized official to embark on the ship or aircraft of another signatory State. With respect to this Code, Judge Treves points out that the Code “provides different rules for piracy on the high seas and for armed robbery in internal, archipelagic, and territorial waters” and that “[o]n the high seas the UNCLOS regime applies, and in the territorial sea, including pursuit from the high seas, the authorization of the coastal state is necessary.”60 Through the Code of Conduct, States appear to have distant themselves from the measures adopted by the Security Council as they concluded that these measures were restricted to the situation of Somalia and not to be considered as establishing customary international law. Thus, this Code of Conduct may be seen as implementing the duty of States to cooperate in the repression of piracy envisaged in Article 100 of UNCLOS. environmental Issues The Indian Ocean region is vulnerable to natural hazards, including tropical cyclones, draughts and tsunamis, which have caused devastating effects in coastal areas. In particular, the tsunami of December 2004 resulted in enormous environmental impact on the biodiversity and ecosystems such as mangroves and coral reefs. It goes without saying that the law cannot prevent the occurrence of 58 Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer, Official Journal of the European Union (December 2, 2009), L315/37. 59 The Code of Conduct has been signed by Comoros, Djibouti, Egypt, Eritrea, Ethiopia, Jordan, Kenya, Madagascar, Maldives, Mauritius, Oman, Saudi Arabia, Seychelles, Somalia, Sudan, Tanzania and Yemen. Information on the Code of Conduct can be obtained from the IMO website. 60 Treves, “Piracy, Law of the Sea,” at 405.



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natural disasters. It can however contribute to reducing their impact through the adoption of preventative measures.61 Climate change has also been a predominant environmental issue in recent years, having led to sea level rise, flooding of coasts, and the degradation of ecosystems. In this regard, it is remarkable that the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region of 1985 (“the 1985 Nairobi Convention”) was amended on March 31, 2010 to take account inter alia of the emerging issue of climate change.62 Climate change may also affect the configuration of coasts and the designation of baselines, considering also that with the variation of the sea level new islands may emerge. While maritime natural hazards are not to be understood as constituting marine pollution within the meaning of Article 1, paragraph 4, of UNCLOS, climate change may be considered a man-made activity resulting or likely to result in deleterious effect to the marine environment. In light of the above, the issue of climate change may give rise to questions in connection with the environmental obligations of States under Part XII and the entitlements of coastal States due to alterations to the coastal configuration and the emergence of new features. Human economic activities impacting the marine environment of the Indian Ocean range from the overexploitation of resources to pollution from land-based sources and oil spills. In addition, an important risk to the marine environment is posed by the shipment of hazardous waste to countries in the region and the shipments of radioactive materials. While Part XII of the UNLOS does not specifically refer to the transport of dangerous goods or hazardous waste, the general obligation provided therein to protect the marine environment from all sources of pollution is deemed to apply to those activities as well. States have sometimes denied entry to their ports to vessels carrying hazardous waste and prohibited vessels transporting nuclear waste from passing through their territorial seas.63 61 In this regard, it is reported that “[p]ost-tsunami environmental assessments revealed that coastal ecosystems . . . acted as a natural buffer, at least partially protecting the coastline of some countries from destruction,” Report of the UN Secretary General on Oceans and the Law of the Sea, UN document A/60/63 of March 4, 2005, paragraph 289, at 74. 62 Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, adopted in Nairobi (Kenya) on March 31, 2010, the text of which is available on the website of UNEP. The Amended 1985 Nairobi Convention, in its preamble, explicitly recognizes “the impacts of climate change on marine and coastal environment resulting in, inter alia, sea-level rise, increase of sea water temperature, ocean acidification, weather and climate variability, that affect or are likely to affect coastal communities.” The IOTC agreement made no reference to the precautionary approach or biodiversity protection. See Chapter 22, by Erik Franckx and Koen Van den Bossche, in this volume. 63 For example, in 1999 Kenya denied the freighter Bruma Americana entry to the port as it attempted to load over 20,000 tonnes of toxic waste in Mombassa; see UNEP, Training Manual on Environmental Law (2006), at 141. Indonesia prohibited the Pacific

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In general, it is understood that the freedom of navigation enshrined in Article 87 of UNCLOS includes the transport of goods, notwithstanding the duty of flag States to ensure safety at sea with regard to the construction and seaworthiness of vessels.64 Furthermore, in relation to the territorial sea, the transport of dangerous goods is not mentioned in Article 19, paragraph 2, of UNCLOS as an activity which would render the passage of vessels non-innocent. It may, nevertheless, be argued that the listing of “non-innocent” activities in that provision is purely of an indicative nature. It may be noted that the sole provisions dealing with the passage of vessels carrying dangerous or noxious substances through the territorial sea are Articles 22 and 23 of UNCLOS. These two Articles merely require that those vessels should confine their passage to sea lanes or traffic separation schemes designated by the coastal State, carry documents, and observe special precautionary measures established for such ships by international agreements. Whatever the case may be, the operation of this type of transport may raise issues concerning the freedom of navigation, the application of the precautionary approach, the duty of cooperation and the procedural obligations of States relevant to the protection of the marine environment. ITLOS (ITLOS) has already had the opportunity to make important pronouncements in respect of the environmental obligations of States, within the framework of provisional measures proceedings instituted under Article 290, paragraph 5, of UNCLOS.65 As established in Article 197 of UNCLOS, an important obligation of States Parties is to cooperate on a regional basis in the protection and preservation of the marine environment. The UNEP regional seas program has been instrumental in this regard.66 In particular, the1985 Nairobi Convention is a framework treaty designed to protect and manage the marine environment of an area of the Western Indian Ocean extending from Somalia to South Africa.67 The adoption in 2010 Pintail, which was transporting radioactive material, from passing through its territorial sea; see Jon M. Van Dyke, “Applying the Precautionary Principle to Ocean Shipments of Radioactive Materials,” Ocean Development & International Law 27 (1996): 379–397, at 387. 64 See Article 94, paragraph 3, of UNCLOS. 65 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Report 1999, p. 280; MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of December 3, 2001, ITLOS Reports 2001, p. 95; Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of October 8, 2003, ITLOS Reports, p. 10. 66 See Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 3rd edition (New York, 2009), 393–398, at 391. Further information is available on the UNEP website. See also Jon Van Dyke, Chapter 7 of the present volume. 67 The 1985 Nairobi Convention entered into force on May 30, 1996 and was amended on April 1, 2010. There are ten parties to the Amended 1985 Nairobi Convention: Comoros, France, Kenya, Madagascar, Mauritius, Mozambique, Seychelles, Somalia, Tanzania and the Republic of South Africa, five of which are island States in the Western Indian Ocean. Other UNEP agreements cover the Red Sea, see the Regional Convention for the Conservation of the Red Sea and Gulf of Aden (Jeddah Convention) of February



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of a supplementary protocol focusing on land-based activities constitutes a further improvement of the legal system established by the Nairobi Convention.68 With the adoption of this protocol, the Western Indian Ocean has become one of the only three areas in the world to have an agreement addressing the control of land-based activities, the other regions being the Wider Caribbean and the Mediterranean Sea. Although the matters covered by the Nairobi Convention fall within the scope of the Law of the Sea Convention, its settlement-of-disputes clause does not take account of Part XV procedures.69 With reference to the Eastern Indian Ocean, the 1995 South Asian Seas Action Plan (SASAP), which includes the Maldives, Sri Lanka, Bangladesh, India and Pakistan, provides a nonbinding mechanism to protect the marine environment and coastal ecosystems of that region. Focusing on integrated coastal zone management, this instrument recognizes UNCLOS as an umbrella treaty although no binding regional instrument has been established thus far.70 Fisheries Coastal and island States in the Indian Ocean region are actively engaged in the exploitation of fisheries in the region, and so their economic interests in this field are not to be overlooked.71 In 2008, fisheries in the Indian Ocean represented about 13.5% of the world’s total capture. Catches in the Eastern Indian Ocean which reached 6.6 million tonnes were slightly higher than in the Western Indian Ocean, which amounted to 4.1 million tonnes (the latter figure representing a slight decrease compared to 2006). Among coastal States, Indonesia and India were by far the main producers, situated at places 3 and 6, respectively, in the ranking of world producers.72 The most important fisheries in the Indian Ocean

14, 1982, entry into force on August 20, 1985; and the Persian Gulf area, see Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution of April 24, 1978, entry into force on July 1, 1979. 68 Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities, adopted on March 31, 2010. 69 Article 25 of the 1985 Amended Nairobi Convention provides that disputes between contracting parties are to be settled through negotiation or other peaceful means and upon failure by arbitration. 70 The progress in respect of this region has been seen “as rather slow;” see M. Habibur Rahman, Legal Regime of Marine Environment in the Bay of Bengal (New Delhi, 2007), at 132. Information on the South Asian Seas UNEP program is available on the UNEP website. 71 In this regard, see Indian Ocean, CIA—The World Factbook; see also Encyclopaedia Britannica Online, at 7. 72 The State of World Fisheries and Aquaculture 2010, Fisheries and Aquaculture Department of the Food and Aquaculture Organization of the UN, Rome (2010), at 13, 14, 35, 42.

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are tuna.73 Prawn trawling also constitutes an important fishery and artisanal fisheries play an important role as well.74 There have been, in general, no important fisheries disputes in the region, although the activity of Illegal, Unreported and Unregulated (IUU) operators is a continuing concern.75 However, as already noted, the existence of a number of unresolved boundaries in the Indian Ocean region means that the allocation of resources between the States concerned remains a contentious matter. Unsettled boundaries might also have an adverse impact on the adoption of measures for the conservation and management of fisheries. Disputes over fisheries derive generally from unsettled maritime boundary disputes. In this connection, it may be noted that fisheries disputes may be submitted to ITLOS on the basis of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.76 Only a few countries in the region are however bound by this agreement.77 As in other regions of the world, IUU fishing in the Indian Ocean represents a serious impediment to the conservation and sustainable use of the fisheries resources. In the Mozambique Channel and the southern section of the Indian Ocean, illegal fishing has been particularly problematical. The involvement of distant water fishing fleets in IUU activities is an aggravating factor.78 A contributing factor to IUU fishing is also the registration of vessels in countries which operate open registers or are not members of a regional fisheries organization.79 Although a number of coastal States in the region have enacted regulations for the management of fisheries, compliance is difficult due to the lack of effective control

73 D. Rumley, S. Chaturvedi, and V. Sakhuja, eds., Fisheries Exploitation in the Indian Ocean: Threats and Opportunities, Institute of Southeast Asian Studies (Singapore, 2009), at 3. 74 Ibid., at 3, 7. 75 Anand, Studies in International Law, at 242. 76 United Nations Treaty Series, Vol. 2167, 3, entry into force on December 11, 2001; as of February 18, 2011 there are 78 parties to this agreement. With regard to procedures for the settlement of disputes, see articles 30 to 32 thereof. 77 Kenya, India, Indonesia, the Maldives, Mauritius, Mozambique, Oman, Seychelles, and Sri Lanka are parties to this agreement. 78 Rumley, Chaturvedi, and Sakhuja,eds., Fisheries Exploitation in the Indian Ocean, 12. On the IUU problem more generally, see Harry N. Scheiber, Kathryn J. Mengerink and Yann-huei Song, “Ocean Tuna Fisheries, East Asian Rivalries, and International Regulation: Japanese Policies and the Overcapacity/IUU Fishing Conundrum,” 30 University of Hawaii Law Review (2007): 99–165, and Davor Vidas, “IUU Fishing or IUU Operations? Some Observations on Diagnosis and Current Treatment,” in David D. Caron and Harry N. Scheiber, eds., Bringing New Law to Ocean Waters (Leiden, 2004), 125–144. 79 In this sense, see Dikdik Mohamad Sodik, “Non-Legally Binding International Fisheries Instruments and Measures to Combat Illegal, Unreported and Unregulated Fishing,” Australian Journal of International Law 15 (2008): 129–164, at 129–130.



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and surveillance capacities. In some instances, the penalties for fisheries offences appear not severe enough to discourage illegal practices.80 UNCLOS authorizes a coastal State, pursuant to Article 73, paragraph 1, to take measures including arrest and judicial proceedings to ensure compliance with its laws and regulations. Many States provide for the “detention” of the vessel for fisheries offences.81 Some provide also for the “confiscation” of the ship.82 While Article 73 of UNCLOS authorizes the coastal state to detain a vessel for fisheries offences, at the same time, it requires the coastal State to release the vessel upon the posting of a reasonable bond. In this respect, it may be noted that prompt release proceedings in accordance with Article 292 of UNCLOS have been instituted before ITLOS in three cases involving alleged illegal fishing in areas of the Indian Ocean.83 Regional fisheries management organizations operating in respect of the Indian Ocean play an important role in dealing with the conservation and management of fisheries, including IUU fishing. While States must individually ensure that stocks in their exclusive economic zones are not endangered by over-exploitation, they are required by UNCLOS to cooperate through regional organizations as appropriate to this end.84 On the high seas, the duty to cooperate also applies to the conservation of fisheries, for which States are required to establish regional fisheries management organizations.85 A number of regional fisheries management organizations operate in respect of the Indian Ocean. Particular reference is made to the Indian Ocean Tuna Commission (IOTC), created within the framework of the FAO to manage tuna and tuna-like species in the Indian Ocean. The IOTC has indeed undertaken important efforts in relation to IUU fishing.86

80 Cassandra De Young, “Overview of the Indian Ocean,” FAO Fishery Policy and Planning Division (2005), which is available on the FAO website. 81 For instance, Australia, Fisheries Management Act 1991; Indonesia, Act No. 5 of 1983 on the Indonesian exclusive economic zone (EEZ), October 18, 1983, article 13; Seychelles, Maritime Zones Act 1999 (Act No. 2 of 1999), article 23, 1(c), 48 Law of the Sea Bulletin (2002), p. 16; Tanzania, Territorial Sea and Exclusive Economic Zone Act, 1989 Article 14, paragraph 3(a). 82 For instance, Bangladesh, India, Indonesia and Malaysia; see FAO, Coastal State Requirements for Foreign Fishing, Legislative Study 57 (1996), Table E, 259. 83 These cases are the “Camouco” Case (2000), the “Monte Confurco” Case (2000), and the “Grand Prince” Case (2001). 84 Article 61, paragraph 2, of UNCLOS. 85 Article 118 of UNCLOS. 86 For EU concerns regarding IUU policy of IOTC, see Franckx and Van den Bossche, Chapter 22, above. See information posted on the website of the IOTC. Its current members are Australia, Belize, China, Comoros, Eritrea, European Union, France, Guinea, India, Indonesia, Iran, Japan, Kenya, Madagascar, Malaysia, Mauritius, Oman, Pakistan, Philippines, Republic of Korea, Seychelles, Sierra Leone, Sri Lanka, Sudan, Thailand, United Kingdom, Tanzania, and Vanuatu. Cooperating non-Contracting Parties are Maldives, Senegal, South Africa and Uruguay.

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A significant function of the IOTC is to review the information provided by member States on vessels presumed to be involved in IUU fishing activities which are then included in a IUU list.87 A program has been designed for the inspections of vessels located voluntarily in ports of both member States and cooperating States of the IOTC. Such inspection includes examination of documents, logbooks, fishing gear and catch on board fishing vessels. The agreed scheme also requires member States to adopt regulations to prohibit landing and transhipment of a catch when it has been established that the catch was taken in a manner that undermines the effectiveness of the conservation and management measures adopted by the IOTC.88 Some of the measures adopted, for instance, the prohibition of landing, are, however, not expressly mentioned in UNCLOS, in particular, Article 62 thereof. This may give rise to issues of consistency of regulations with UNCLOS and the extent of the enforcement powers of coastal States. In this regard, it may be noted that the settlement of dispute clause contained in Article XIII of the IOTC agreement provides recourse to non-binding conciliation and, upon failure, to the ICJ. No mention is made therein of Part XV procedures. A recent example of regional cooperation is the establishment in 2006 of the South Indian Ocean Fisheries Agreement (SIOFA). The purpose of this agreement is the conservation and management of resources other than tuna in areas beyond national jurisdiction of coastal States, in the southern Indian Ocean.89 It may be noted that Article 20 of this agreement, concerning the interpretation and settlement of disputes, refers to Section II of Part XV procedures. However, the SIOFA agreement has not yet entered into force.90 A further organization in the region is the Southwest Indian Ocean Fisheries Commission (SWIOFC), whose function is to promote the sustainable utilization of the living marine resources of the area of the commission and address common problems of fisheries management.91 The area of competence of the SWIOFC waters of the South-West Indian Ocean within the national jurisdiction of coastal States and covers all living marine resources.92 There is no particular settlement of dispute mechanism in the Statute of the SWIOFC.

87 IOTC website, inter alia. 88 IOTC Resolution 05/03 Relating to the establishment of an IOTC program of inspection in port of 2005, the text of which is available on the website of the IOTC. 89 The State of World Fisheries and Aquaculture 2008, p. 70. 90 The State of World Fisheries and Aquaculture 2008, p. 70. 91 Statute of the South West Indian Fisheries Commission, adopted on 25 November 2004, which is available on the FAO website. 92 Current membership includes Comoros, France, Kenya, Madagascar, the Maldives, Mauritius, Mozambique, Seychelles, Somalia, South Africa, Tanzania and Yemen.



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A further development in the region relates to the use made of access agreements.93 The European Union has been particularly active in this regard, entering into agreement on fisheries partnership with Comoros, Madagascar, Mozambique, and Seychelles. Through the agreements, a financial contribution is provided by the European Union to support the fisheries policy of the country concerned. With regard to the settlement of disputes which arise from these agreements, it may be noted that no reference has been to Part XV procedures. Instead, a joint committee set up by the parties is entrusted to perform the function of acting as a forum for the amicable settlement of disputes. Settlement of Disputes Not much use has been made by States in the region of the possibility offered by Article 287 of UNCLOS to choose their preferred means for the compulsory settlement of disputes. The International Tribunal for the Law of the Sea is one of four procedures for the settlement of disputes that entail binding decisions provided for in that article. The other means are the International Court of Justice, arbitration (Annex VII) and special arbitration (Annex VIII). In the absence of a declaration or where the parties have not accepted the same procedure, parties are deemed to have accepted arbitration, unless they otherwise agree. Among the States bordering the Indian Ocean, Tanzania has made a declaration in accordance with Article 287 of UNCLOS selecting ITLOS as the means for the settlement of disputes concerning the interpretation or application of UNCLOS; Australia as well as Oman chose ITLOS and the ICJ, with Australia excluding sea boundary delimitation pursuant to Article 298, paragraph 1(a); Bangladesh made a declaration selecting ITLOS for maritime boundary disputes with Myanmar and India in the Bay of Bengal; and Myanmar made a declaration selecting ITLOS for maritime boundary dispute with Bangladesh in the Bay of Bengal. Incidentally, according to the UN Treaty Section, on January 14, 2010, Myanmar notified the UN that it decided to withdraw its declaration.94 Thus, for a large number of States, arbitration forms the default procedure for the settlement of disputes concerning UNCLOS involving States bordering the Indian Ocean including maritime boundary disputes. However, compared to arbitration, ITLOS, as a permanent court, offers a number of advantages to potential 93 See Edward N. Kimani, Gladys M. Okemwa, and Johnson M. Kazungu, “Fisheries in the Southwest Indian Ocean: Trends and Governance Challenges,” in E. Laipson and A. Pandya, The Indian Ocean: Resource and Governance Challenges, H.L. Stimson Centre (Washington D.C., 2009), available at http://www.stimson.org, at 11. 94 Bangladesh made two separate declarations for the settlement of dispute between the Bangladesh and the India relating to the delimitation of their maritime boundary in the Bay of Bengal, and Bangladesh and Myanmar relating to the delimitation of their maritime boundary in the Bay of Bengal, respectively.

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parties for the settlement of their disputes, in particular, with respect to an established jurisprudence, low costs, and a well-organized secretariat. Likewise, States concluding regional and bilateral agreements in the region may also benefit from dispute settlement through ITLOS, taking into account that its jurisdiction comprises “all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS.”95 UNCLOS is indeed open to international organizations, which are allowed to be a party to a dispute before ITLOS. That said, limited use has been made of Part XV procedures for settlement of law of the sea disputes by States in the Indian Ocean region. In few such instances has recourse to third-party dispute resolution proved to be a valid alternative in order to achieve a peaceful solution of bilateral disputes. As mentioned earlier, three cases involving applications under Article 292 of UNCLOS for the prompt release of vessels and their crews detained in areas of the Indian Ocean have been submitted to ITLOS: the “Camouco” Case (2000), the “Monte Confurco” Case (2000), and the “Grand Prince” Case (2001). Only one of these was, however, instituted by a State of the region, namely, the “Monte Confurco Case” which was instituted on behalf of Seychelles. These cases arose on account of the alleged non-compliance with the provisions of Article 73, paragraph 2, of UNCLOS which reads that “[a]rrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.” Prompt release cases raised concerns about illegal, unregulated and unreported IUU fishing. ITLOS took note of these concerns, though it indicated that the submissions in this regard could not be adjudged in the proceedings under Article 292 of UNCLOS as ITLOS’s jurisdiction was limited to the question of the prompt release of vessels and crews upon the posting of a reasonable bond. For instance, in the “Monte Confurco” Case, France raised the issue of unlawful fishing in the region as one factor which should be taken into account in assessing the reasonableness of the bond, and ITLOS took note of this argument.96 In a further case, the Land Reclamation Case, pursuant to Article 290, paragraph 5 of UNCLOS, Malaysia requested ITLOS to order provisional measures against Singapore in its dispute with Singapore concerning land reclamation activities carried out by Singapore which allegedly infringed Malaysia’s rights in and around the Straits of Johor, pending the constitution of an Annex VII arbitral

95 See Article 21 of the Statute of ITLOS. 96 “Monte Confurco” (Sychelles v. France), Prompt Release, Judgment, ITLOS Reports 2000, p. 86, paragraph 79, at p. 110. This issue was also raised by the respondent party in subsequent prompt release cases. ITLOS, while taking note of this concern, indicated that it would not exceed the limits of its jurisdiction; see “Volga” (Russian Federation v. Australia), Prompt Release, Judgment, ITLOS Reports 2002, p. 10, at pp. 32–33, and “Juno Trader” (Saint Vincent and the Grenadines v. Guinea Bissau), Prompt Release, Judgment, ITLOS Reports 2004, p. 17, at p. 87.



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tribunal to which the dispute had been submitted.97 In its Order of October 8, 2003, ITLOS found that the requirement of urgency was not satisfied in respect of the measure sought by Malaysia concerning the suspension of Singapore’s land reclamation activities.98 In its Order, ITLOS laid emphasis on the duty of cooperation between the parties as a fundamental principle under Part XII of UNCLOS.99 It also considered that it could not be excluded that, in the particular circumstances of this case, the land reclamation works might have adverse effects on the marine environment in and around the Straits of Johor; hence, it expressed the view that “prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information [on] and assessing the risks or effects of land reclamation works.”100 Among the measures prescribed, ITLOS ordered the establishment of a group of independent experts with the mandate to conduct a study to determine the effects of Singapore’s land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such land reclamation. On September 1, 2005, the Annex VII arbitral tribunal constituted to deal with the case gave an award terminating the arbitration proceedings. In the previous settlement agreement of the parties dated April 26, 2005, the parties referred to the Order of ITLOS of October 8, 2003, in particular the measures by which they were requested to establish a group of independent experts and agreed that the recommendations of the group of experts provided the basis for an amicable, full and final settlement of the dispute.101 The Order of ITLOS was thus instrumental in assisting the parties achieving an agreeable solution to the dispute. It is significant to note that the dispute between Bangladesh and Myanmar relating to the delimitation of maritime boundary between the two countries in the Bay of Bengal was instituted before ITLOS at the end of 2009. The Tribunal issued its judgment on 14 March 2012. As reported by the President of ITLOS to the Meeting of States Parties on June 4, 2012:102 In its judgment the Tribunal determined the maritime boundary between the Parties in relation to the territorial sea, the exclusive economic zone and the continental shelf. A distinguishing feature of this case was that the Tribunal was also called upon

97 Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of October 8, 2003, ITLOS Reports, p. 10. 98 See paragraphs 85 to 88 of ITLOS’s Order. For comments on this case, see Tullio Treves, “The International Tribunal for the Law of the Sea,” Italian Year Book of International Law XIII (2003), at 157. 99 Land Reclamation Case, paragraph 92. 100 Land Reclamation Case, paragraph 99. 101 See Annual Report of ITLOS for 2005, SPLOS/136 of March 24, 2006, paragraph 38, at p. 10. 102 Statement by the President of ITLOS on the Report of ITLOS at the Twenty-Second Meeting of States Parties to UNCLOS, June 4, 2012, which is available on the ITLOS website.

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ximena hinrichs oyarce to consider the delimitation between the Parties of the continental shelf beyond 200 nautical miles. In relation to the delimitation of the territorial sea, the Tribunal found that there was no agreement between the Parties within the meaning of article 15 of the Convention. Having also concluded that there was no historic title or other special circumstance relevant to the area to be delimited, the Tribunal proceeded to effect the delimitation of the territorial sea by means of an equidistance line, pursuant to article 15 of the Convention. Turning to the delimitation of the exclusive economic zone and the continental shelf within 200 nautical miles, the Tribunal applied the equidistance/relevant circumstances method, following the three-stage approach as developed in the most recent case law. The Tribunal first constructed its own provisional equidistance line. It then determined that the concavity of Bangladesh’s coast was a relevant circumstance because the provisional equidistance line produced a cut-off effect on that coast. It therefore decided to adjust the equidistance line. With regard to the continental shelf beyond 200 nautical miles, the Tribunal first established that it had jurisdiction to delimit the continental shelf in its entirety. It then examined questions relating to, inter alia, the Parties’ entitlements to a continental shelf beyond 200 nautical miles, and the meaning of “natural prolongation” and how it inter-relates with that of “continental margin”. From this examination, the Tribunal concluded that the Parties had overlapping entitlements to the continental shelf beyond 200 nautical miles and the Tribunal proceeded to effect the delimitation. In this connection the Tribunal stated [. . .] ‘Article 83 of the Convention applies equally to the delimitation of the continental shelf both within and beyond 200 [nautical miles].’ [. . .] (paragraph 454 of the Judgment). The Tribunal further observed [. . .] ‘the delimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 [nautical miles]. Accordingly, the equidistance/ relevant circumstances method continues to apply for the delimitation of the continental shelf beyond 200 [nautical miles].’ [. . .] (paragraph 455 of the Judgment). After re-examining the question of relevant circumstances, the Tribunal decided that its adjusted equidistance line would continue in the same direction beyond the 200-nautical-mile limit of Bangladesh until it reached the area where the rights of third States might be affected. The Tribunal finally applied the test of disproportionality and concluded that the adjusted equidistance line did not lead to any significant disproportion in the allocation of maritime areas to the Parties in relation to the respective lengths of their coasts.”

Concerning the maritime delimitation between Bangladesh and India, an Annex VII arbitral tribunal has been seized of the dispute between the two countries. As reported by a press release of ITLOS, the President of ITLOS appointed three arbitrators to serve as members of the Annex VII arbitral tribunal instituted for the settlement of the maritime delimitation dispute between Bangladesh and India in the Bay of Bengal.103

103 ITLOS/ Press 143 of March 8, 2010, which is available on the website of ITLOS. The arbitrators are Rüdiger Wolfrum (Germany) who has also been appointed as president of the arbitral tribunal, Tullio Treves (Italy) and Ivan Shearer (Australia). The two other arbitrators had already been appointed by each party.



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Bangladesh, Myanmar and India’s willingness to submit their disputes to the dispute settlement mechanism under Part XV of UNCLOS indicates an important development, and may well be a sign of what is to follow with regard to the resolution of other disputes in the region. Conclusions Almost every State in the Indian Ocean region is a party to UNCLOS. Thus, current law of the sea issues in the Indian Ocean are to be assessed vis-à-vis the provisions of UNCLOS, including its settlement of dispute procedures. This may involve questions concerning compliance with the obligations laid down in UNCLOS, consistency of national rules or regional measures with UNCLOS, sea boundary delimitation, and other emerging issues, including climate change. In some instances, on account of the duty of cooperation, environmental and fisheries-related matters have been channelled through the establishment of regional agreements. Conflicts between parties to these agreements may be addressed by having recourse to Part XV procedures, in particular, in connection with fisheries matters. The consideration of emerging issues by adjudicative bodies may also pave the way for the progressive development of the law of the sea. The advantage of having recourse to ITLOS to deal with ocean issues is apparent. Created by UNCLOS as a specialized court and entrusted with jurisdiction over all law of the sea issues, ITLOS has already made a significant contribution to the settlement of disputes and international law. In order to preserving the integrity and universal character of UNCLOS, current and emerging ocean issues are best addressed through an harmonized and up-to-date interpretation of its provisions by the adjudicative or advisory functions of ITLOS. The recent cases submitted to the dispute settlement mechanism under Part XV of UNCLOS indicates an important development, and may well be a sign of what is to follow with regard to the resolution of other disputes in the region.

twenty-one

Latin America and the Law of the Sea Eduardo Ferrero Costa

Latin American Contributions to the Law of the Sea It is widely recognized in the scholarly literature that many Latin American countries have played an important role in the modern development of the law of the sea. Thus, “[t]he contribution to this body of law made by the Latin American countries,” Garcia Amador asserts, “has no parallel in any other group of countries or region. This contribution has been not only fruitful but extremely varied.”1 In September 28, 1945, United States’ President Truman issued Presidential Proclamation No. 2667, establishing the jurisdiction and control of the United States with respect to the natural resources of the subsoil and sea bed of the Continental Shelf. At the same time the President issues a second Proclamation announcing a new policy of the United States with respect to coastal fisheries in certain areas of the high seas.2 Beginning on that date, a new Law of the Sea emerged in the world; and Latin America would play a significant role in its shaping. In a short time, several Latin American countries followed these U.S. initiatives with proclamations of their own designed to protect their marine resources. Thus in 1945 Mexico issued its own declaration; Argentina in 1946, and—most significantly—Chile3 and Peru,4 in 1947. These latter two declarations introduced

1 García-Amador, F.V. “The Latin American Contribution to the Development of the Law of the Sea,” The American Journal of International Law, 68 (1974): 33–50, 33. 2 Presidential Proclamation 2668, “Policy of the United States with respect to Coastal Fisheries in Certain Areas of the High Seas.” On the historical concept, see Harry N. Scheiber, “Origins of the Abstention Doctrine in Ocean Law,” Ecology Law Quarterly, 16 (1989): 24–36. 3 Official Declaration of June 23, 1947. 4 Supreme Decree No. 781 of 1947, available in Spanish at http://www.congreso.gob.pe/ comisiones/2008/seguimiento-demandaperuana/documentos/DECRETOSUPREMO781 .pdf.

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a revolutionary concept that would change the Law of the Sea. Referring to their geological realities, both countries claimed, with different instruments of diverse juridical nature, jurisdiction over the resources of the Continental Shelf; but in addition, jurisdiction was declared over the waters and all living resources within the 200 miles of their coasts, regardless of the geographical extent of the continental shelf. The 1947 Peruvian Supreme Decree declared that “national sovereignty and jurisdiction are extended to the submerged continental or insular shelf adjacent to the shores of national territory whatever the depth and extension of this shelf may be” and then stated that Peru would exercise “control and protection on the seas adjacent to the Peruvian coast over the area covered between the coast and an imaginary parallel line to it at a distance of two hundred (200) nautical miles.”5 In 1952, Chile and Peru joined with Ecuador to sign a tripartite political declaration in order to internationalize and defend the 200 miles concept in a joint manner. In this document, known as the Santiago Declaration, the three Governments proclaimed “as a norm of their international maritime policy that they each posses exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts,” adding in the next paragraph of the Declaration that “the exclusive jurisdiction and sovereignty over this maritime zone shall also encompass exclusive sovereignty and jurisdiction over the sea bed and the subsoil thereof.”6 This was a revolutionary approach that challenged the established views of the world’s naval super-powers like Great Britain and the United States, both of which, from the outset, objected to the concept of maritime jurisdiction up to 200 miles. As the British representation put it, in objecting the 1947 Peruvian Declaration, “The Government of His Majesty firmly states to the Peruvian Government that it does not recognize territorial jurisdiction outside the three mile limit off the coast, nor with regard to the British ships engaged in their legitimate affairs in the high seas to which they may be submitted without the consent of the Government of his Majesty, to whichever measure the Peruvian Government may adopt in concordance to the declaration.”7 Since then, a long historical process has followed in which these three Latin American countries of the South Pacific have defended their original thesis of 200 miles of maritime sovereignty and jurisdiction for the conservation and exploitation of their natural resources. They challenged the international community, which was still mainly committed to what may be termed the Old Law of the Sea, 5 Ibid. 6 “Declaración Conjunta relativa a los Problemas de las Pesquería en el Pacífico Sur (Conferencia de Explotación y Conservación de las Riquezas Marítimas del Pacifico Sur),” approved in Santiago, in force since May 10, 1955. 7 Note No. 11 (152/8/48) dated February 6, 1948 from the British Embassy in Lima to the Peruvian Foreign Relations Minister.



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which still prevailed at the times of the First and Second United Nations Conferences on the Law of the Sea held in Geneva in 1958 and 1960. Throughout the next decade, Peru and its allies continued promoting their position, first within the other Latin American countries, and then with developing countries from other regions of the world. During the preparatory sessions between 1971 and 1972 and then during the eleven sessions of the Third United Nations Conference on the Law of the Sea held between 1973 and 1982, the Latin American influence became decisive. The Latin American contribution was especially important in the development of three key concepts recognized in the 1982 Convention on the Law of the Sea (UNCLOS)—concepts that are now commonplace among the international legal community: (1) the Exclusive Economic Zone of 200 Miles with sovereignty and jurisdiction for economic and other purposes established in UNCLOS; (2) the continental shelf, where the coastal state has sovereign and exclusive rights for exploring and exploiting “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance;”8 and (3) the International Seabed Area as a “common heritage of mankind,” where states cannot exercise sovereign rights over any part of the Area or its resources.9 In fact, UNCLOS provided explicitly as an obligation of States parties that every activity in the Area “shall be carried out for the benefit of mankind as a whole”10 and established the International Seabed Authority for that purpose. The Geographical Situation of Latin America and its Different Sub-Regions Latin America and the Caribbean is a vast region with extensive coasts, situated within the two biggest oceans of the world and composed of a diversity of 33 countries and sub-regions with very different geographical realities, as it can be appreciated in Table 1. Therefore, in this paper attention will be given only to the 20 Latin American countries, leaving aside the case of the 13 Caribbean States, with special reference to the South American countries and in particular to those facing the East Pacific.

8 Article 76.1 of UNCLOS. UNCLOS also allows extending the Continental Shelf up to 350 nautical miles, according to Article 76.5. 9 Article 137 of UNCLOS. 10 Article 140 of UNCLOS.

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eduardo ferrero costa Table 1. The Caribbean

Latin America

Cuba Dominican Republic Haiti Jamaica Trinidad and Tobago Bahamas Barbados Saint Lucia Saint Vincent Grenada Dominica Antigua and Barbuda Saint Kitts and Nevis

Argentina Belize Bolivia Brazil Chile Colombia Costa Rica Ecuador El Salvador Guatemala Guyana Honduras Mexico Nicaragua Panama Paraguay Peru Suriname Uruguay Venezuela

The economic interests of the Latin American countries vary, as influenced by differing resources bases and geophysical and climatic realities. The states in the Pacific Basin, like Peru and Chile, are large-scale exploiters of living marine resources, and their economies depend much on the condition of their marine eco­systems. Peru and Chile are among the most productive fishing countries in the world, with Peru the second largest in world capture fisheries after China. In the case of the countries in the Atlantic Basin, by contrast, although they are also fishing countries, the value and volume of their fishing industries is at a lower level than in countries of the Eastern Pacific. This difference is illustrated in Tables 2 and 3, showing that during 2008–2010 the Southeast Pacific marine region produced annually on its own 7.7 million to an astonishing 12.1 million tons of fish capture, while the Southwest Atlantic lagged behind at only 1.76 million tons (with Brazil, the largest country in the Atlantic, reporting annual capture of only 725,000 to 825,000 tons).11

11 Source: 2010 FAO Yearbook—Fishery and Aquaculture Statistics (Rome, 2012).



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Table 2. Fisheries Capture Production in Latin America, by Region (metric tons) 2008

2009

2010

Southwest Atlantic Southeast Pacific

2,403,878 12,117,471

1,910,273 11,437,296

1,762,281 7,766,834

Total for Latin America

14,521,349

13,347,569

9,529,115

Source: 2010 FAO Yearbook—Fishery and Aquaculture Statistics (Rome, 2012).

Table 3. Fisheries Capture Production in Latin America, by Country (metric tons) Country Argentina Brazil Chile Ecuador Mexico Peru Venezuela

2008

2009

2010

995,083 791,892 3,554,808 495,089 1,581,272 7,394,538 296,266

861,973 825,412 3,453,766 485,805 1,611,175 6,914,452 288,462

811,749 785,369 2,679,736 391,714 1,523,889 4,261,091 274,417

Source: 2010 FAO Yearbook—Fishery and Aquaculture Statistics (Rome, 2012).

Table 4. Southeast Pacific Sea Capture (2008 FAO data) 2008 (tons) Belize Chile China China, Taiwan Colombia Ecuador Estonia Ghana Guatemala Honduras Japan Korea Rep Lithuania Mexico Netherlands Nicaragua Panama Peru Portugal Russian Fed Spain

– 3,552,262 222,436 184 100,571 402,335 – – 5,263 5,746 22,393 17,551 24,056 4,777 39,192 6,861 56,175 7,317,495 – 2,323 5,808

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eduardo ferrero costa Table 4 (cont.) 2008 (tons) USA Uruguay Vanuatu Venezuela Other Total

5,276 – 8,448 36,728 1 11,835,881

Source: 2008 FAO Yearbook—Fishery and Aquaculture Statistics.

Table 5. Southwest Atlantic Sea Capture (2008 FAO data) 2008 (tons) Argentina Australia Belize Brazil Cambodia Chile China China, Taiwan Estonia Falkland France Ghana Japan Korea Latvia Namibia New Zealand Panama Philippines Poland Portugal Russian Fed St. Vincent Seychelles Spain Ukraine UK Uruguay Vanuatu Other Total

983,837 – 880 532,000 – 1,653 198,793 215,960 – 81,707 – – 11,102 168,390 – – – – 1,494 – 5,416 – – – 87,885 413 5,982 109,595 1,419 – 2,406,526

Source: 2008 FAO Yearbook—Fishery and Aquaculture Statistics.



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Also, there was in 2008 a great difference between the South East Pacific capture already mentioned and the captures in the Western Central Atlantic with a total capture only of 1.2 million tons; and with capture in the Pacific Eastern Central, with a total of 1.8 million tons in 2008, as is shown in Tables 6 and 7. Even in those Latin American countries that have coasts both in the Atlantic (Caribbean) and the Pacific, their fishing activities, are much less significant than the aforementioned case of Peru and Chile. Thus in the case of Mexico the total capture in 2008 was 1.2 million tons, and in the case of Panama only 144,744 tons.12 Table 6. Western Central Atlantic Sea Capture (2008 FAO data) 2008 (tons) Anguilla Antigua Barb Aruba Bahamas Barbados Belize Bermuda Br Virgin Is Cayman Is China China, Taiwan Colombia Costa Rica Cuba Dominica Dominican Rep Fr Guiana Grenada Guadeloupe Guatemala Guyana Haiti Honduras Jamaica Japan Korea Rep Martinique Mexico Montserrat Netherland Antilles Nicaragua Panama Philippines Portugal 12 Ibid.

701 3,521 151 9,117 3,551 3,146 400 1,200 125 13 1,108 10,000 625 25,092 694 13,711 3,957 2,384 10,100 536 41,368 9,700 5,058 12,775 2,928 928 6,200 198,825 50 705 10,206 398 486 35

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eduardo ferrero costa Table 6 (cont.) 2008 (tons) Puerto Rico St Kitts Nev St Lucia St Vincent Spain Suriname Trinidad Tobago Turks Caicos USA US Virgin Islands Vanuatu Venezuela Other Total

1,793 450 1,713 3,828 3,961 23,461 13,833 6,133 625,979 1,065 181 217,858 – 1,280,049

Source: 2008 FAO Yearbook—Fishery and Aquaculture Statistics.

Table 7. Pacific Eastern Central Sea Capture (2008 FAO data) 2008 (tons) Amer Samoa Belize China China, Taiwan Colombia Cook Islands Costa Rica Ecuador El Salvador Estonia French Polynesia Guatemala Honduras Japan Korea Rep Mexico Nicaragua Niue Panama Samoa Spain Tokelau Tonga USA Vanuatu Venezuela Other Total

4,451 – 13,619 19,513 4,429 3,000 20,125 31,705 45,600 – 11,856 3,540 2,000 25,485 16,586 1,272,929 11,755 200 144,744 3,799 5,999 200 2,141 201,559 2,427 15,896 – 1,863,558

Source: 2008 FAO Yearbook—Fishery and Aquaculture Statistics.



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This contrast may be better appreciated in the chart below (Table 8), comparing the 2008 fish catch of the most relevant countries of the Southeast Pacific with those of the Southwest Atlantic, as well with the Mexico and Panama (which are the major fishing countries in the Western Central Atlantic and Pacific Eastern Central with coasts both in the Pacific and the Atlantic oceans). With regard to seabed resources however, a different pattern pertains within the region. In the case of hydrocarbons, oil, gas and minerals, the Latin American countries of the Atlantic have greater expectations because off their shores they have extended continental shelves, well toward or beyond 200 miles, whereas the Latin American countries facing the South Pacific have short continental shelves that extend seaward far short of the 200 miles (EEZ) limit.13 Latin America and the Law of the Sea Convention Parties to UNCLOS on the Law of the Sea Since UNCLOS was approved and opened to signature in Montego Bay in 1982, 164 states have become parties to UNCLOS, which entered into force in 1994.14 In the case of Latin America, among the 20 states of the region, 16 are parties to UNCLOS; but Peru, Venezuela, Colombia and El Salvador have not accepted the treaty.15 It is, however, somewhat paradoxical that Peru, a nation Table 8. Fish Capture Comparison by Access (2008 FAO data) Access

Country

Capture in 2008

Pacific

Perú Chile Ecuador Argentina Brasil Venezuela México Panama

7,362,907 tons. 3,554,814 tons. 434,239 tons. 995,083 tons. 775,000 tons. 295,364 tons. 1,588,857 tons. 222,508 tons.

Atlantic Both

Source: 2008 FAO Yearbook—Fishery and Aquaculture Statistics.

13 See for example: http://news.bbc.co.uk/2/hi/americas/7201744.stm. 14 According to Article 308 (1), UNCLOS “. . . shall enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession.” 15 Party states are: Argentina, Belize, Bolivia, Brazil, Chile, Costa Rica, Ecuador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Surinam, and Uruguay. Non-party states are: Peru, Venezuela, Colombia, and El Salvador, of which the last two have already signed UNCLOS.

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that contributed so much in its inception, has neither signed nor ratified UNCLOS. In El Salvador,16 the 200-mile zone is considered a territorial sea rather than only an economic zone. In the case of Peru, on the contrary, the Peruvian Constitution opens the possibility for Peru to be a party to UNCLOS, as Peru considers the 200-mile zone to be a sui generis concept compatible with UNCLOS. The Peruvian Constitution states that “in its maritime domain the State exercises sovereignty and jurisdiction, without prejudice to the freedom of international communications, pursuant to the law and the treaties ratified by the State.”17 Ecuador acceded to UNCLOS on Septemer 24, 2012. El Salvador nonetheless did sign UNCLOS, but it has not yet ratified it; and in the case of Peru, the country did submit UNCLOS to its legislature for consideration and approval of adherence some years ago. In the case of Colombia and Venezuela, the reason for not being a party to UNCLOS until now has to do with their disagreement on UNCLOS provisions related to maritime delimitation, but not with reference to the provisions related to the zones of national jurisdiction. In fact, both Colombia and Venezuela have established in their national legislation a territorial sea of 12 miles and an EEZ of up to 200 miles, completely in accordance with UNCLOS provisions in this matter (see Table 9). Table 9. Maritime Delimitations Zone Perú

Colombia Venezuela

El Salvador

Maritime Domain (200 miles of sovereignty and jurisdiction with freedom of international communications) Territorial Sea (12 miles) EEZ (200 miles), Continental Shelf Territorial Sea (12 miles), EEZ (200 miles), Continental Shelf (200 miles or more) Territorial Sea (200 miles)

16 1983 Constitution, Art. 84. 17 1993 Constitution, Art. 54.

Legal Basis 1993 Constitution, Art. 54

Law No. 10, of 1978 1999 Constitution, Article 11. Decree No. 1437 of August 30, 2001 1983 Constitution, Art. 84



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Latin American Declarations under Article 310 of UNCLOS Article 309 of UNCLOS does not allow reservations or exceptions to UNCLOS, unless expressly permitted. Nevertheless, Article 310 states that UNCLOS “. . . does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Con-vention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.”18 In this context, nine Latin American states have made declarations on several issues; the topics are noted in Table 9. Belize, Guyana, Honduras, Mexico, Paraguay and Suriname have not made any kind of declarations regarding Article 310. With reference to special concerns, Argentina was opposed to the Final Act of the Conference on the Law of the Sea, saying that Resolution III of Annex I “in no way affects the ‘Question of the Falklands (Malvinas),’ which is governed by specific resolutions of the General Assembly.” Argentina reaffirmed “its legitimate and inalienable sovereignty over the Malvinas and the South Georgia and South Sandwich Islands and their respective maritime and island zones . . .” Argentina also stated the validity of its Boundary Treaty of 1881 with Chile through their Treaty of Peace and Friendship, entered into force in 1985.19 This last statement was then Table 10. Number of states 6 3 2 2 2 2 2 1 1 1 1 1 1 1

Topics (included among the nine declarations of Latin American states regarding Article 310) Special Concerns Domestic Law Military Exercises Straddling and Highly Migratory Fish stocks Construction of Installations Pollution Navigation and Innocent Passage Option of future revisions/declarations Seabed resources Definition of EEZ Straight Baselines Reciprocity Use of Force Continental Shelf

18 United Nations Convention on the Law of the Sea, signed in Montego Bay, in force since November 16, 1994. Available at http://www.un.org/los. 19 For complete declarations and statements on ratification by Latin American and other ratifying States, see http://www.un.org/depts/los/convention_agreements/­convention_ declarations/htm.

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repeated by Chile upon its Convention ratification. Chile also issued a statement to effect that the concept of the 200 mile exclusive economic zone was created with an important contribution made by the Government of Chile. Bolivia declared that its condition as a non-coastal state was not due to its “natural geographic position and that it will assert all the rights of coastal states under UNCLOS once it recovers the legal status in question . . .” In the same way, Bolivia stated that it has been exercising the right of freedom of access to and from the sea, granted by UNCLOS to land-locked nations, through bilateral treaties. Guatemala clarified that its ratification of UNCLOS did not imply any reduction on its rights over the territory of Belize and that the maritime zones in dispute cannot be delimited until such controversy is solved. Nicaragua stated that it did not consider itself “bounded by any of the declarations . . . made by other states” and Panama declared exclusive sovereignty over the “historic Panamanian bay” of the Gulf of Panama.” With regard to aspects related to domestic law, Brazil and Uruguay stated that their regimes applied in their maritime areas adjacent to their coasts were compatible with UNCLOS. Nicaragua specified that “such adjustments of its domestic law as may be required in order to harmonize it with UNCLOS will follow from the process of constitutional change initiated by the revolutionary State of Nicaragua . . .” In addition, important declarations on military exercises in the exclusive economic zone were made by Brazil and Uruguay. Brazil stated that UNCLOS does not allow other states to carry out “military exercises or maneuvers, in particular those that imply the use of weapons or explosives, without the consent of the coastal State.” Uruguay also claimed that the freedom of navigation recognized in the Exclusive Economic Zone “excludes any non-peaceful use without the consent of the coastal State . . .” Furthermore, Uruguay declared that issues not expressly provided for in UNCLOS regarding rights and jurisdiction in a state’s Exclusive Economic Zone fall within the competence of the coastal state.20 The Latin American statements on UNCLOS also expressed concern about construction of installations. In this regard Brazil declared that the coastal State has the “exclusive right to construct and to authorize and regulate the construction, operation and use of all types of installations and structures, without exception, whatever their nature or purpose” in the Exclusive Economic Zone. In its turn, Uruguay declared that UNCLOS “does not empower any State to build, operate or utilize installations or structures in the exclusive economic zone of another State, neither those referred to in UNCLOS nor any other kind, without the consent of the coastal State.”

20 In this regard, it is important to note the objection made by the Kingdom of Netherlands, with regard to the prohibition of military exercises in the Exclusive Economic Zone, where according to this State, all states enjoy the freedoms of navigation and over flight, subject to the relevant provisions of UNCLOS.



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The issues of “straddling” and highly migratory fish stocks were of concern for Argentina and Costa Rica. Thus Argentina considered that the regime of UNCLOS is insufficient and that it should be “supplemented by an effective and binding multilateral regime which, inter alia, would facilitate cooperation to prevent and avoid overfishing . . .” Costa Rica declared that provisions of its domestic law under which foreign vessels must pay for licenses to fish in its exclusive economic zone, would apply also for highly migratory species, pursuant to the provisions of Articles 62 and 64, paragraph 2, of UNCLOS.” Finally, regarding navigation and innocent passage through the territorial sea, Argentina stated that its Government will continue applying the regimen in force upon UNCLOS’s ratification, given the fact (as it claimed) that that regime and UNCLOS’s terms were. Whereas Chile declared that if a State should place restrictions on the “right of innocent passage for foreign warships,” Chile reserved the right to apply similar restrictive measures. In addition, Argentina considered that transportation of highly radioactive substances “must be duly regulated” by supplementing Part XII of UNCLOS. Latin American Declarations regarding Settlement of Disputes According to Article 287 of UNCLOS, “when signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.”21 In addition, Article 298 establishes optional exceptions to the applicability of the procedures provided in UNCLOS. Thus “a State may. . . . declare in writing that it does not . . . accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles . . .; (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; (c) disputes in respect of which the Security Council

21 Article 287.

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of the United Nations is exercising the functions assigned to it by the Charter of the United Nations . . .”22 Only eight out of the 16 Latin American states parties to UNCLOS have made declarations regarding their choices for settlement of disputes: the eight are Argentina, Brazil, Chile, Ecuador, Honduras, Mexico, Nicaragua and Uruguay. On the other side, as of summer 2011, Belize, Bolivia, Costa Rica, Guatemala, Guyana, Panama, Paraguay and Suriname have not declared on these matters. Among the eight Latin American countries that have made declarations on settlement of disputes, five states have chosen to be bound by the jurisdiction of the International Tribunal for the Law of the Sea. According to Articles 186, 287, and 298 of UNCLOS, ITLOS has jurisdiction over these matters: a) Seabed disputes; b) Settlement of disputes concerning the interpretation or application of UNCLOS; and c) Disputes concerning military activities. Argentina and Chile, under Article 287, both accepted, in order of preference, the following forums for the settlement of disputes: (a) the International Tribunal for the Law of the Sea; and (b) an arbitral tribunal constituted in accordance with Annex VIII for questions relating to fisheries, protection and preservation of the marine environment, marine scientific research and navigation. In addition, under Article 298 of UNCLOS, neither country accepted the option to submit disputes on sea boundaries, military activities, or law enforcement in the exercise of sovereignty or jurisdiction and Security Council action. On the other hand, Mexico chose, under Article 287 and without order of preference: (a) the International Tribunal for the Law of the Sea; (b) the International Court of Justice; and (c) an Arbitral Tribunal for topics of Annex VIII. Under Article 298, Mexico did not accept any option for disputes on sea boundaries or military activities. Uruguay, stating it was without prejudice to the International Court of Justice, chose the International Tribunal for the Law of the Sea for dispute settlement; it did not accept, under Article 298, disputes on law enforcement in the exercise of sovereignty or jurisdiction. Honduras and Nicaragua selected the International Court of Justice for settling their disputes, but Honduras declared that it could agree on the forum on a caseby-case basis. Brazil reserved its rights to choose both the issues in dispute to submit, and the forum to which a particular issue would be submitted. Although the majority of the Latin American countries seem to have chosen the International Tribunal for the Law of the Sea, in practice the cases on maritime delimitation to be decided by international dispute settlement bodies are being submitted mainly to the International Court of Justice. This is the case with regard to the dispute between Nicaragua and Colombia on “Territorial and

22 Article 298.1. For the specific terms of Ecuador’s statement, see http://www.un.org/ Depts/los/convention_agreements/convention_declarations.htm#Ecuador%20 Upon%20ratification.



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Maritime Dispute,”23 in which the issue of jurisdiction was resolved in 2008; today a decision on the merits is pending. This was also the case between Nicaragua and Honduras on “Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea,”24 decided by the International Court of Justice in 2007. The most recent dispute submitted to the International Court of Justice is the case between Peru and Chile on Maritime Delimitation, which began in January 2008 and in which the written phase has finished in July 2011. The other controversy in Latin America on maritime delimitation decided­ during the last decade by an international tribunal was the dispute between Guyana and Suriname with a decision taken in 2007 by International Arbitration under the jurisdiction of the Permanent Court of Arbitration. With reference to membership of judges on ITLOS, which is composed of 21 independent members, currently there are two Latin American members of the Tribunal, from Argentina and Brazil. Among the 14 former members of the Tribunal, one of them was Latin American, from Belize. Nevertheless, the Statute provides that there should be at least three members of the Tribunal “from each geographical group as established by the General Assembly of the United Nations.”25 And in accordance with Article 2 (2) of the Statute, “In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.” Latin American Participation in Other Organs Established by the Law of the Sea Convention In addition to the creation of the International Tribunal for the Law of the Sea, UNCLOS established two institutions related to the bed and seabed beyond the 200 miles: the Commission on the Limits of the Continental Shelf, and the International Seabed Authority. Article 76 (1) of UNCLOS defines the continental shelf of a coastal state as “. . . the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” If the geographical continental shelf extends over the 200 miles, the continental shelf can be considered wider, either “. . . 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or 100 nautical

23 ICJ Case of Territorial and Maritime Dispute between Nicaragua and Colombia. Available at http://www.icj-cij.org. 24 ICJ Case of Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea. Available at http://www.icj-cij.org. 25 Article 3 of the Statute of the ITLOS.

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miles from the 2,500 meter isobaths, which is a line connecting the depth of 2,500 meters.”26 To facilitate an orderly procedure to recognize the rights of the coastal states on the continental shelf beyond the 200 nautical miles limit, UNCLOS establishes that coastal states should address information on this regard to the Commission on the Limits of the Continental Shelf (CLCS) for an initial recommendation and future definition. The CLCS must analyze the information submitted by coastal states regarding the limits of the continental shelf in order to make technical recommendations. Upon request by the coastal state, it must offer scientific advice to elaborate the information to be submitted. Eight of the 61 submissions made up to June 2012 to the CLCS have been made by Latin American countries: Brazil and Mexico, who have already adopted the recommendations by the CLCS; and Argentina and Uruguay. With reference to Latin American participation in the CLCS, which is composed of 21 members elected for a five year term, since 2007 three members have been from Latin American countries: Argentina, Brazil and Mexico. The International Seabed Authority (the Authority) is the autonomous international organization that administers the mineral resources in the Area (i.e., the seabed and subsoil beyond the limits of national jurisdiction), as defined by UNCLOS and the Agreement on Part XI. All state parties are ipso facto members of the Authority. Since the Authority started operations in 1996, there have been 17 Assemblies, two of which were under the Presidency of Latin American representatives: from Mexico (1999) and Argentina (2009). Currently four Latin American states occupy seats in the Council of the Authority: Brazil, Argentina, Chile and Mexico. Four other Latin American countries have been members of the Council: Guyana (1999–2000), Costa Rica (1999–2000), Paraguay (1996–1997) and 1999–2002) and Honduras (2003–2008). Besides, Argentina, Brazil, Chile and Mexico have nationals presently serving as members of the Legal and Technical Commission. Finally, the five Latin American countries that are not parties to UNCLOS do participate as observers in the Authority. Latin American Participation in Related Instruments to UNCLOS on the Law of the Sea In addition to the 1982 Convention on the Law of the Sea, the Agreement on Implementation of Part XI of UNCLOS was concluded in 1994, whereby the status of common heritage of mankind of the Area was ratified. This Agreement entered into force on July 28, 1996, and the nine sections of its Annex focus on resolving the concerns raised by certain developed countries during a series of informal

26 Article 76 (5) of UNCLOS.



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consultations27 held by the UN Secretary General beginning in 1990. As of today, there are 141 State parties to the Agreement, including the 15 Latin American States that ratified UNCLOS. The other treaty directly related to the Law of the Sea Convention is the Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, which was negotiated with the objective of advancing the conservation and sustainable use of straddling and highly migratory fish stocks; it incorporates a provision for a precautionary approach. This Agreement is subsidiary to UNCLOS, this relationship being well defined in Article 4 of the Agreement, which reads as follows: “Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under UNCLOS. This Agreement shall be interpreted and applied in the context of and in a manner consistent with UNCLOS.” The Agreement obliges state parties to agree on diverse matters when they establish or enter regional or sub regional fisheries management organizations for straddling or highly migratory fish stocks (Article 9). The Agreement was opened for signature in December 1995. Seventy-eight states and entities have since then become parties to it. Among them, five Latin American countries: Belize, Brazil, Costa Rica, Panama and Uruguay. Argentina has signed the treaty, but has not yet ratified it. On the contrary, none of the countries of the Eastern South Pacific are parties to this Agreement; even Chile, which is a party to UNCLOS on the Law of the Sea, has not approved it.28 Maritime Governance in Latin America Maritime activities, either traditional or new, have increased in magnitude and character in the contemporary era. From fisheries to aquaculture and from shipping to offshore renewable energy production, the pressure over the maritime environment has undoubtedly grown.29 This unprecedented rise has generated a concomitant rise in international attention to ocean issues in recent years. Therefore, a number of worldwide, regional and sub-regional organizations have developed. As we will

27 The report of the Secretary General can be viewed in document A/48950 of the UN General Assembly. 28 In this regard it must be noted that Chile opposes this Agreement, claiming it does not solve the underlying problems of Straddling and Highly Migratory Fish Stocks. Rather, Chile purports to enforce what they say is their “Mar Presencial” or Presential Sea in the high seas, that would allow for wider control of the Coastal State in the high seas, which goes far beyond what is accepted by international law. See, for example, Jorge Martinez Busch, La Pesca en el Mar Presencial, conference paper for seminar, “La Pesca en el Mar Presencial y los Derechos del Estado Rector del Puerto,” Santiago, March 28, 2000. 29 See, inter alia, Harry N. Scheiber, “Economic Uses of the Oceans and the Impacts on Marine Environments,” in Davor Vidas and P.J. Schei (eds.), The World Ocean in Globalisation (Leiden/Boston, 2001), pp. 65–97.

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see in the following part of this Chapter, Latin America has been no stranger to this intricate regulation process, especially with regard to fisheries and conservation or the marine environment. Even though Latin America has access to the Pacific and Atlantic Oceans, it is the Pacific area that has seen the highest degree of activity among the Latin American states with regard to regional organizations and maritime governance concerned with fisheries. The Permanent Commission for the South Pacific (PCSP) and Its Related Instruments The best example of a successful regional organization established in Latin America for purposes of conservation and regulation of marine resources and coordination of their maritime policies by a group of countries is the Permanent Commission for the South Pacific (PCSP) established in 195230 by Chile, Ecuador and Peru, and later joined by Colombia in 1979. When in August 18, 1952, Chile, Ecuador and Peru approved in Santiago de Chile the Declaration on the 200 miles Maritime Zone mentioned in Section I of this paper, they “announce[d] their intention to sign agreements or conventions which shall establish general norms to regulate and protect hunting and fishing within the maritime zone belonging to them, and to regulate and coordinate the exploitation and development of all other kinds of products or natural resources existing in these waters which are of common interest.”31 On that same date, in order to achieve the goals and objectives of the Santiago Declaration on the 200-mile Maritime Zone, Chile, Ecuador and Peru agreed to create the Organization of the Permanent Commission of the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific, as a permanent body with the objective of enforcing the Santiago Declaration. Thus, through this Table 11. PCSP Member Nations Chile Ecuador Peru Colombia

Year Joined 1952 1952 1952 1979

30 “Convenio sobre Organización de la Comisión Permanente de la Conferencia sobre Explotación y Conservación de las Riquezas Marítimas del Pacífico Sur,” signed in Santiago, in force since August 18, 1952. Available in Spanish in http://www.cpps-int.org/ plandeaccion/enero%202009/libro%20convenios.pdf. 31 “Declaración Conjunta relativa a los Problemas de la Pesquería en el Pacífico Sur (Conferencia de Explotación y Conservación de las Riquezas Marítimas del Pacifico Sur),” signed in Santiago, in force since May 10, 1955.



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Agreement, a regional maritime system known as the Permanent Commission for the South Pacific (PCSP) was born. The PCSP has defined itself as “a regional maritime system and alliance” as well as a “strategic, political and operative option in the South East Pacific to consolidate the presence of coastal States in this important geographical zone and their effective and coordinated projection both towards nearby zones and their links to the Pacific Basin.”32 Its founding agreement states that the PCSP would draft Resolutions for the conservation and better use of the maritime resources taking into consideration each nation’s interests. Among other purposes, the PCSP would establish protected species; maritime zones and open and closed seasons; fishing and hunting methods; study and propose to the parties the measures it deems appropriate for the protection, defense, conservation and use of marine resources; promote scientific research on biological phenomena in the South Pacific; gather general statistics on industrial exploitation; absolve consultations and harmonize the Parties’ domestic legislation; and, verify that the fishing and hunting contingencies that each party establishes annually does not threaten the preservation of the marine resources in the South Pacific. The PCSP is composed of an Assembly, National Sections, and a General Secretariat. The Assembly, conformed by representatives of the State members at the Ministerial level directs the other bodies and is in charge of determining its programs, formulates regional maritime policies and proposes plans for its implementation. It also promotes the adoption of joint positions of member states and establishes the General Secretariat’s guidelines in areas such as law of the sea, scientific research, living and non-living resources, and environmental conservation, amongst others. Based in Guayaquil, Ecuador, the General Secretariat is the executive body of the organization in charge of fulfilling its objectives through the Assembly’s mandates and the PCSP treaties. It coordinates the member’s policies and promotes technical and financial assistance in their benefit. In sum, the PCSP is a highly successful and technical regional organization with over more than fifty years of experience. It is one of the most effective regional organizations in Latin America, having been able to guide its members during several decades until now. Through the PCSP, the South Pacific has seen the signing of a number of important agreements, such as the Galapagos Agreement and the Action Plan for the Protection of the Maritime Environment and the Coastal Areas of the South-East Pacific. The Agreement for the Conservation of Living Marine Resources in the High Seas in the South East Pacific, also known as the “Galapagos Agreement” was adopted by all four CPPS Member States at the XXIV Ordinary Meeting in 2000. It is, however, not yet in force because it has only been approved by Chile (2001)

32 Available at http://www.cpps-int.org/.

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and Ecuador (2002). The Galapagos Agreement’s objective is the conservation of marine resources in the high seas within the South East Pacific area. It is applicable only to the high seas, from the outer limit of the zones under national jurisdiction of the state parties and a line drafted along the 120o meridian, from the 5o parallel north to the 60o parallel south. The Action Plan for the Protection of the Maritime Environment and the Coastal Areas of the South East Pacific was signed in 1981 by the four PCSP State members and Panama, in the context of similar regional Plans of Action promoted by the United Nations Environment Programme (UNEP). For its application, the State Members and Panama have adopted UNCLOS for the Protection of the Marine Environment and Coastal Area of the South East Pacific and in 1981, UNCLOS on Regional Cooperation against Hydrocarbons and other Harmful Substances Pollution in the South East Pacific in case of Emergencies; in 1983, the Supplementary Protocol to the aforementioned Agreement and the Protocol for the Protection of the South East Pacific against Pollution from Land Based Sources; and in 1989, the Protocol for the Conservation and Administration of the Maritime and Coastal Protected Areas of the South Pacific and the Protocol for the Protection of the South Pacific against Radioactive Pollution.33 The Inter-American Tropical Tuna Commission (IATTC) The Inter-American Tropical Tuna Commission (IATTC) mandate is to undertake research and advance the protection and management of marine resources, mainly tuna, but also seabirds and sharks, among others, in the eastern Pacific Ocean. The IATTC conducts investigations concerning the abundance, biology, biometry, and ecology of a variety of tunas as well as other fish, such as anchovy. It also collects information on fish populations and how to increase them, issues recommendations and proposals, collects statistics and publishes reports. The IATTC was established by a bilateral treaty in 1949 concluded in Washington between Costa Rica and the United States in order to maintain the populations of tunas and other fished targeted by tuna fishing vessels in the eastern Pacific Ocean. A joint commission was then created, “. . . composed of national sections, each consisting of from one to four members, and appointed by the Governments of the respective High Contracting Parties.”34 Afterwards other countries joined the Organization, which today has 21 members—including Canada, the European Union, France, the United States, Japan, Kiribati, Korea, Vanuatu, Chinese Taipei and China,—from which Belize, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Peru and Venezuela are Latin American members. It also has one cooperating non-party states: the Cook Islands. 33 Available in Spanish at http://cpps-int.org/plandeaccion/enero%202009/libro%20 convenios.pdf. 34 Article I (1) of the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission.



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Country

Status

Belize Canada China Colombia Costa Rica Ecuador El Salvador European Union France Guatemala Japan

Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party

Country Kiribati Korea Mexico Nicaragua Panama Peru Chinese Taipei United States Vanuatu Venezuela Cook Islands

403

Status Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Cooperating non-party

Source: http://www.fpir.noaa.gov/IFD/ifd_iattc_map.html

Figure 1. Inter-American Tropical Tuna Commission, Area of Competence.

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The International Commission for the Conservation of Atlantic Tuna (ICCAT) The International Convention for the Conservation of Atlantic Tuna (ICCAT) is the organization responsible for the conservation of tunas and tuna-like species (around 30 of them) in the Atlantic Ocean and adjacent seas. The IATTC conducts investigations concerning the abundance, biology, biometry, and ecology of a variety of tunas as well as other fish, such as anchovy. It also collects information on fish populations and how to increase them, issues recommendations and proposals, collects statistics and publishes. The ICCAT also provides a mechanism for contracting parties to agree on management measures. Its area of competence extends to all of the Atlantic Ocean. The ICCAT was founded in negotiations concluded in Rio de Janeiro in 1966 and entered into force in 1969.35 There are 48 parties to the 1966 Convention of which nine are Latin American States: Brazil, Belize, Guatemala, Honduras, Mexico, Nicaragua, Uruguay, Panama and Venezuela. Colombia—along with Chinese Taipei, Guyana and Curacao—is an ICCAT cooperator. The Latin American Organization for Fisheries Development (OLDEPESCA) The Latin American Organization for Fisheries Development (OLDEPESCA) has as its objective to meet adequately the dietary needs of Latin American people using the potential of their fisheries, through the establishment of joint actions for the development of their countries. OLDEPESCA develops research on areas such as exploitation of fishery resources, aquaculture, technological development and even marketing, through fostering multilateral activities and creating conditions to enhance its member’s capabilities in fisheries. The Agreement creating36 OLDEPESCA was concluded in 1982. It entered into force in 1984 and has 12 members: Belize, Bolivia, Costa Rica, Cuba, Ecuador, El Salvador, Guyana, Honduras, Mexico, Nicaragua, Peru and Venezuela. States have to belong to the Latin American and Caribbean Economic System (SELA) in order to acquire membership status. Its geographical area of competence expands through national waters of its members, including inland waters.

35 “Conference of Plenipotentiaries on the Conservation of Atlantic Tunas,” signed in Rio de Janeiro, in force since March 21, 1969. Available at http://www.iccat.es/Documents/ Commission/BasicTexts.pdf. 36 Signed in Mexico City, in force since November 2, 1984. Available at http://www .oldepesca.com. See, inter alia, Eduardo Ferrero Costa, “Pacific Resources and Ocean Law: A Latin American Perspective,” Ecology Law Quarterly, 16 (1989): 250ff.

Figure 2. International Commission for the Conservation of Atlantic Tuna, Area of Competence.

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Country United States Japan South Africa Ghana Canada France Brazil Morocco Korea Cote D’Ivoire Angola Russia Gabon Cape Verde Uruguay Democratic Republic of São Tomé and Príncipe Venezuela Equatorial Guinea Guinea United Kingdom Libya China Croatia European Union Tunisia Panama Trinidad and Tobago Namibia Barbados Honduras Algeria Mexico Vanuatu Iceland Turkey Philippines Norway Nicaragua Guatemala Senegal Belize Syria St Vincent and the Grenadines Nigeria Egypt Albania Sierra Leone Mauritania Chinese Taipei Guyana Curacao Colombia

Status

Year Status Acquired

Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Contracting party Non-contracting party Non-contracting party Non-contracting party Non-contracting party

1967 1967 1967 1968 1968 1968 1969 1969 1970 1972 1976 1977 1977 1979 1983 1983 1983 1987 1991 1995 1995 1996 1997 1997 1997 1998 1999 1999 2000 2001 2001 2002 2002 2002 2003 2004 2004 2004 2004 2004 2005 2005 2006 2007 2007 2008 2008 2008 – – – –

Source: http://www.fao.org/fishery/rfb/search/en



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The South Pacific Regional Fisheries Management Organization (SPRFMO) UNCLOS on the Conservation and Management of High Seas Resources of the South Pacific Ocean37 was drafted after a number of International Consultations sponsored by Australia, Chile and New Zealand. Through 2006–2009, eight International Consultations were held in different countries, with the participation of Belize, Chile, Colombia, Cuba, Ecuador, Panama, Peru and Venezuela as Latin American countries. The purpose of the consultations was to establish a regime for the conservation and management of fisheries and protect the biodiversity in the high seas of the South Pacific Ocean beyond the areas of national jurisdiction, excluding highly migratory fisheries, anadromous and catadromous species and marine mammals. According to the Final Act of the International Consultations, “the process resulted in a series of international meetings with the objective of discharging the duty of states under international law to cooperat\e with each other in the conservation and management of living resources in such areas of the high seas . . .” In Auckland, on November 14, 2009, the participants adopted the aforementioned Convention which established the South Pacific Regional Fisheries Management Organization (SPRFMO). Among the 14 States that have signed UNCLOS, Belize, Chile, Colombia, Cuba and Peru are the Latin American countries that have signed it; Belize, Chile and Cuba have ratified the Convention, which entered into force in August 2012.38 Article 5 of UNCLOS provides that UNCLOS “applies to waters of the Pacific Ocean beyond areas of National jurisdiction in accordance with International Law.” In the Area of the high seas, the Commission of this international organization may adopt conservation and management measures; determine the nature and extent of participation in fishing for fishery resources; and develop rules for the collection, verification, reporting, storing and dissemination of data. Said conservation and management measures include the determination of the nature and extent of fishing for any fishery resource “including the establishment of a total allowable catch or total allowable fishing effort.” Although UNCLOS applies to

37 Signed in Auckland, not in force. Available at http://www.southpacificrfmo.org. 38 Http://www.southpacificrfmo.org. According to the Convention: “Article 38. Entry into force. 1. This Convention shall enter into force 30 days after the date of receipt by the Depositary of the eighth instrument of ratification, accession, acceptance or approval, which shall include ratification, accession, acceptance or approval by: (a) at least three coastal States adjacent to UNCLOS Area, which must include representation from both the side of UNCLOS Area that is east of Meridian 120o West and the side of UNCLOS Area that is west of Meridian 120o West; and (b) at least three States that are not coastal States adjacent to UNCLOS Area and whose fishing vessels are fishing in UNCLOS Area or have fished in UNCLOS Area. . . .”

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Country

Signature Date

Australia 2010 Belize Republic of Chile 2010 China 2010 Republic of Colombia 2010 Cook Islands 2010 Cuba 2011 European Union 2010 Kingdom of Denmark in respect of Faroe Islands 2010 Korea 2011 New Zealand 2010 Peru 2010 Russian Federation 2011 United States of America Chinese Taipei 2011 (Instrument (fishing entity) for Participation)

Ratification Date 2012 2011 2012 -– -–

2011 2011 2011 2010 2012 2011 -–

2012 -–

2012

Source: http://www.southpacificrfmo.org

Figure 3. South Pacific Regional Fisheries Management Organization, Area of Competence.



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the area of the High seas, when a coastal State consents to it, the Commission’s total allowable catch or total allowable fishing effort determination may include of that state areas under its national jurisdiction.39 The Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC) The Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC)40 establishes a legal framework for American countries to promote actions in benefit of these species. Some of the measures the IAC provides for are the prohibition of the intentional capture, retention or killing of, and domestic trade in, sea turtles, their eggs, parts or products. Moreover, this Convention complies states parties to follow obligations established under UNCLOS on International Trade in Endangered Species of Wild Fauna and Flora (CITES). UNCLOS also restricts human activities that could seriously affect sea turtles; among others. The area of application of the IAC “comprises the land territory in the Americas of each of the Parties, as well as the maritime areas of the Atlantic Ocean, the Caribbean Sea and the Pacific Ocean, with respect to which each of the Parties exercises sovereignty, sovereign rights or jurisdiction over living marine resources in accordance with international law . . .”41 The IAC entered into force in May of 2001 and currently has fifteen Contracting Parties: Argentina, Belize, Brazil, Chile, Costa Rica, Ecuador, Guatemala, Honduras, Panama, Mexico, Peru, the Netherlands, the United States of America, Uruguay and Venezuela, 13 of which are Latin American nations. Non-party members awaiting ratification include Trinidad and Tobago, Nicaragua, Colombia, and the Dominican Republic. As we have seen in this Chapter, Latin America´s participation has been substantial both at the beginning of modern ocean law reform and in various ways today in regard to contemporary Law of the Sea. Whether it was with its contribution to the development of new institutions, as in the case of the Exclusive Economic Zone, whether it is with their active participation in the institutions established by UNCLOS on the Law of the Sea, or whether it is by establishing regional regulatory organizations and agreements for ocean governance, the Latin American countries are important actors in the development of the Law of the Sea and the ongoing international process for the conservation and sustainable exploitation of the marine resources.

39 See specifically, Article 20.4. 40 Signed in Salvador, Brazil, in force since May, 2011. Available at http://www.iacseaturtle .org. 41 Article III of the IAC.

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Table 12. Inter-American Convention for the Protection of Sea Turtles, Parties to UNCLOS Country Argentina Belize Brazil Chile Costa Rica Ecuador Guatemala Honduras Mexico Panama Peru The Netherlands The United States of America Uruguay Venezuela Trinidad and Tobago Nicaragua Colombia Dominican Republic

Status Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Contracting party member Non-party member Non-party member Non-party member Non-party member

Year Status Acquired 2011 2002 1999 2010 2000 2000 2003 2001 2000 2008 1999 2000 2001 2007 1998 2010 2010 2010 2011

Source: http://www.iacseaturtle.org/English/download/Revista10yearsEnglishLR.pdf

twenty-two

Regional Issues and Ocean Law: The African region Erik Franckx and Koen Van den Bossche

The present chapter discusses fisheries in the African Region mainly with regard to the participation of certain African States in regional fisheries management organizations (RFMOs). The focus will be on the effectiveness of two African RFMOs, one on the African east coast, i.e. the Indian Ocean Tuna Commission (IOTC) and one on its west coast, i.e. the Fisheries Committee for the Eastern Central Atlantic (CECAF). In Part I, priority issues for these RFMOs in implementing international fishery instruments are considered. In Part II, we discuss the EU fisheries partnership agreements (FPA) concluded with some African countries for the purpose of gaining exploitation rights in certain maritime zones off the African continent; this will complement the picture of fisheries cooperation in African waters. Finally, in Part III, we will draw certain conclusions related to the interaction between African States and the EU, both on a regional level through the framework of RFMOs, as well as on a bilateral level through the conclusion of FPAs. Key Problems within Two African RFMOs A key problem of the so-called African RFMOs is the lack of effective participation of developing countries either in engaging in setting management measures and in ensuring compliance. This is mainly because of a lack of capacity or the desire not to be bound by the RFMO rules. Another reason voiced is that current RFMOs are driven by the agendas of the major distant water fishing nations. It should also be noted that African RFMOs have not been developed along the structures of regional cooperation organizations (e.g. the Economic Community of West African States (ECOWAS), the Common Market for Eastern and Southern Africa (COMESA), the Southern African Development Community (SADC), etc.). Consequently, different institutional processes address similar issues, resulting in a fragmented national and regional policy landscape. The divergent and often

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overlapping mandates within the different RFMOs make the goal of strengthening the role of RFMOs particularly difficult.1 The Indian Ocean Tuna Commission African nations bordering the Indian Ocean have increasingly expressed their concern over unsustainable tuna catches in their waters, in addition to excessively high by-catch rates. IOTC compliance is very weak, and the science and data collection particularly for small-scale tuna fleets is poor. Most African proposals to limit these problems have failed to gain a majority vote within the IOTC Commission. The reasons for the poor performance of the IOTC in comparison to most other RFMOs are to be found in the Agreement for the Establishment of the IOTC,2 which is outdated in light of the instruments following the 1992 UN Conference on Environment and Development (UNCED).3 1 C. Tindall, Baseline Study on the CFP External Dimension and Global Fisheries Governance (London, July 2010), 37. 2 Agreement for the Establishment of the Indian Ocean Tuna Commission, Rome, November 25, 1993 (105th Session FAO Council) (available at http://www.iotc.org). In force as of March 27, 1996. Hereinafter IOTC Agreement. See Chapter 20, by Ximena Hinrichs, in this volume. 3 These instruments comprise: the 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, November 24, 1993, multilateral, International Legal Materials 33 (1994): 968. Hereinafter FAO Compliance Agreement (available at http://www.fao.org/legal/treaties/012te.HTM); the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, December 4, 1995, multilateral, 2167 United Nations Treaty Series 88. Hereinafter UN Straddling Stocks Agreement (available at http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agreement/ CONF164_37.htm); the 1995 FAO Code of Conduct for Responsible Fisheries, October 31, 1995, multilateral. Hereinafter FAO Code of Conduct (available at http://www.fao.org/ docrep/005/v9878e/v9878e00.HTM). Under the framework of the FAO Code of Conduct, four international plans of action (IPOA) have been adopted: the 1999 FAO IPOA for Reducing the Incidental Catch of Seabirds in Long-line Fisheries. Hereinafter FAO Seabirds IPOA (available at http://www.fao.org/documents/pub_dett.asp?pub_id=64458&lang=en); the 1999 FAO IPOA for the Conservation and Management of Sharks. Hereinafter FAO Sharks IPOA (available at ibid.); the 1999 FAO IPOA for the Management of Fishing Capacity. Hereinafter FAO Capacity IPOA (available at http://www.fao.org/documents/pub_dett. asp?pub_id=64458&lang=en); the 2001 FAO IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Hereinafter FAO IUU IPOA (available at http:// www.fao.org/DOCREP/003/y1224e/y1244e00.htm). Three other instruments adopted under the auspices of FAO concern: the 2003 FAO Strategy for Improving Information on Status and Trends of Capture Fisheries. Hereinafter FAO Status and Trends Information Strategy (available at http://www.fao.org/DOCREP/006/Y4859T/Y4859T00.HTM); the 2005 FAO Model Scheme on Port State Measures to Combat IUU Fishing. Hereinafter FAO Port State Model Scheme (available at http://www.fao.org/docrep/010/a0985t/ a0985t00.HTM); the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, multilateral, November 25, 2009.



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The IOTC Agreement was concluded under Art. XIV of the FAO Constitution.4 The IOTC focuses on tuna(-like) species5 occurring within the Indian Ocean and adjacent seas, north of the Antarctic Convergence.6 The IOTC is the only tuna RFMO located within the FAO framework. IOTC membership is open to members and associate members of the FAO that are coastal States or associate members situated wholly or partly within the Indian Ocean. Also States or associate members whose vessels fish in the Indian Ocean for tuna(-like) stocks and regional economic organizations to which such a State is a member and to which that State has transferred competence over matters covered by the IOTC Agreement can become members.7 The current members of the IOTC are: Australia, Belize, China, Comoros, Eritrea, the EU, France, Guinea, India, Indonesia, Iran, Japan, Kenya, Madagascar, Malaysia, Mauritius, Oman, Pakistan, Philippines, Republic of Korea, Seychelles, Sierra Leone, Sri Lanka, Sudan, Thailand, United Kingdom, United Republic of Tanzania and Vanuatu. Maldives, Senegal, South Africa and Uruguay are cooperating non-contracting parties.89 ­Hereinafter FAO IUU Agreement (available at http://www.fao.org/Legal/treaties/037s-e .htm). Of relevance is also UNGA Resolution A/RES/61/10, 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 December 10, 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and Related Instruments (March 6, 2007). Hereinafter UN Sustainable Fisheries Resolution. 4 The FAO Constitution is available at http://www.fao.org/DOCREP/003/X8700e/x8700e01.htm. 5 IOTC Agreement, supra note 2, Art. III & Annex B. The following species are under the management mandate of the IOTC: yellow-fin tuna, skipjack, big-eye tuna, albacore tuna, southern blue-fin tuna, longtail tuna, kawakawa, frigate tuna, bullet tuna, narrow barred Spanish mackerel, Indo-Pacific king mackerel, Indo-Pacific blue marlin, black marlin, striped marlin, Indo-Pacific sailfish and swordfish. 6 In so far as it is necessary to cover such areas for the purpose of conserving and managing stocks that migrate into or out the Indian Ocean. Ibid., Art. II. This area coincides exactly with FAO Statistical Areas 51 and 57. 7 IOTC Agreement, supra note 2, Art. IV(1)(a). 8 As of March 5, 2010. See IOTC Document 2010-S14-R[E], Report of the Fourteenth Session of the Indian Ocean Tuna Commission (1–5 March 2010), pp. 16–23. Maldives indicated its intention to become a full member of IOTC in the very near future, namely as soon as the ongoing internal ratification procedures are completed. The Commission may, by a two-thirds majority of its members, admit to membership any other States that are not members of FAO, but are members of the UN or of any of its Specialized Agencies or of the International Atomic Energy Agency (IAEA), provided that such coastal States are situated within the Indian Ocean or that such States’ vessels engage in fishing in the Indian Ocean for stocks covered by the Agreement. IOTC Agreement, supra note 2, Art. IV(2)(a). Parties eligible to accede to the Commission may do so by depositing with the Director-General of FAO an instrument formally accepting to be bound by the conditions of the IOTC Agreement. Ibid., Art. IV (1)(b) & Art. IV(2)(b). The IOTC legal status as an Art. XIV FAO body, has prevented Taiwan, having a considerable fleet within the Indian Ocean, from becoming a member of the IOTC; Anonymous (2009), Report of the IOTC Performance Review Panel (IOTC, 2009), 17. 9  

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source: fao.9

figure 1. iotc competence area.

the governing body of the iotc is the commission.10 it is composed of all members and is empowered to adopt conservation and management measures. such binding measures must be adopted by a two-thirds majority of members present and voting. each member of the iotc commission has one vote. individual members objecting to a decision are not bound by it. non-binding recommendations concerning conservation and management of the stocks need only be adopted by a simple majority of its members present and voting. the iotc commission is assisted by a scientific committee,11 a compliance committee12 and a standing committee on administration and finance.13 the commission has established working parties which analyze technical issues related to the man-

9 information available at http://www.fao.org/docrep/w1310e/w1310e03.htm. 10 sessions of the commission are normally held annually. 11  this committee advises the iotc commission on research and data collection, on the status of stocks and on management issues. 12  this committee reports, inter alia, to the iotc commission on the status of member compliance with a range of compliance and enforcement related management measures, and provides technical advice on proposals for conservation and management measures. 13  this committee advises the iotc commission on administrative and financial matters.



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agement goals of the Commission.14 The Secretariat of the Commission is based in Victoria, Seychelles.15 Implementation of the Post-UNCED Instruments The main objective of the IOTC is to “promote cooperation among its members with a view to ensuring, through appropriate management, the conservation and optimal utilization of stocks covered by the agreement and encouraging sustainable development of fisheries based on such stocks.”16 The objectives of the IOTC Agreement are broadly worded and do not refer to modern conservation and management concepts. Instead, emphasis is laid on the concept of optimum utilization of stocks, which in contrast with the post-UNCED fisheries developments can be qualified as an outdated concept. In the same vein, the IOTC Agreement stresses that one of the main functions of the IOTC consists in adopting, “in accordance with Article IX and on the basis of scientific evidence, conservation and management measures, to ensure the conservation of the stocks by this Agreement and to promote the objective of their optimum ­utilization throughout the Area.”17 It is unclear whether this objective is also based on environmental criteria. The answer seems to be negative as the IOTC Agreement clarifies that another function of the IOTC is “to keep under review the economic and social covered aspects of the fisheries based on the stocks covered by this Agreement. . . .”18 Consequently, it appears that the main objective of the IOIC is to avoid that the resources are wasted through under-utilization. The IOTC Agreement predates the FAO Code of Conduct and the UN Straddling Stocks Agreement. Consequently, the IOTC Agreement lacks any reference to modern principles or approaches, e.g. the application of the precautionary approach, the principle of long-term sustainability, the ecosystem-based approach to fisheries management and the protection of biodiversity in the marine environment. The IOTC Agreement also lacks any reference to the commitment to halt IUU fishing. This constrains the IOTC in responding adequately to current conservation and management needs within the region, e.g. the adoption

14 Current working parties include: Working Party on Tropical Tunas (WPTT); Working Party on Billfish (WPB); Working Party on Neritic Tunas (WPNT); Working Party on Temperate Tunas (WPTmT); Working Party on Ecosystems and Bycatch (WPEB) (previously called Working Party on Bycatch, WPBy); Working Party on Tagging (WPT); Working Party on Methods (WPM); WPDCS Working Party on Data Collection and Statistics; WPTDA Working Party on Tagging Data Analysis; WPFC Working Party on Fishing Capacity. 15 Information available at http://www.fao.org/fishery/rfb/iotc/en#Org-OrgGovernance. 16 IOTC Agreement, supra note 2, Art. V(1). There are some serious unresolved maritime boundary issues. See Chapter 20, by Ximena Hindrichs, in this volume. 17 Ibid., Art. V(2)(c). 18 Ibid., Art. V(2)(d). Emphasis added.

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of ­conservation and management measures for non-target species and species dependent on or associated with target stocks. In 2007, the IOTC agreed to review its performance. The Review Panel concentrated, inter alia, on: the adequacy of the IOTC Agreement relative to current principles of fisheries management; the consistency between scientific advice and conservation and management measures adopted; the effectiveness of control measures. This analysis highlighted numerous weaknesses in the workings of the IOTC. A major shortcoming was that the IOTC Agreement did not take account of modern principles for fisheries management. This resulted in high levels of uncertainty concerning the status of many stocks under the IOTC mandate and is partly due to lack of compliance, lack of cooperation of non-members of the IOTC. The low compliance level with the IOTC measures and obligations is aggravated by the absence of sanctions/penalties for non-compliance. In addition the list of IUU-vessels applies only to non-IOTC members. Another weakness of the IOTC concerned the implementation of the special requirements for developing States. The relevant provisions of the IOTC Agreement are not detailed enough and contain no explicit obligations. In addition, many developing States lack appropriate scientific expertise because budgetary constraints limit their participation in the IOTC meetings. Because of these financial constraints, developing States have limited capacity for data collection, processing and reporting, as well as technical capabilities.19 Recent Developments Despite these shortcomings, several measures furthering the implementation of the post‑UNCED instruments have been adopted during recent years. With respect to the UN Straddling Stocks Agreement, the IOTC has adopted several resolutions, e.g. on cooperation with non-contracting parties20 and limitation of fishing effort by non‑members.21 In the context of the FAO Compliance Agree-

19 2009 IOTC Performance Review Report, supra note 8, pp. 1–33. 20 E.g. IOTC Resolution 98/05 on Cooperation with Non-contracting Parties; IOTC Resolution 00/01 On Compliance With Mandatory Statistical Requirements for IOTC Members and Requesting Cooperation with Non-contracting Parties; IOTC Resolution 01/03 Establishing a Scheme to Promote Compliance by Non-contracting Party Vessels with Resolutions Established by IOTC. 21  E.g. IOTC Resolution 01/04 on Limitation of Fishing Effort on Non-members of IOTC whose Vessels Fish Big-eye Tuna. Other Resolutions furthering the provisions of the UN Straddling Stocks Agreement concern: the conservation of bigeye and yellow-fin tuna in the Indian Ocean; the limitation of fishing capacity by contracting parties and cooperating non-contracting parties; criteria to obtain the status of a cooperating noncontracting party; management options for tuna and tuna-like species; the ­conservation



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ment, the IOTC has called for action against flags of convenience,22 and each flag State must maintain a record of fishing vessels that are entitled to fly its flag on the high seas.23 Measures transposing elements of the FAO Code of Conduct have been addressed, e.g. Resolution 08/03 dealing with the reduction of incidental by-catch of seabirds in long-line fisheries;24 Resolutions 06/04 and 08/03 seeking to achieve reductions in the levels of seabird by-catch by the deployment of bird scaring lines;25 Resolution 05/05 concerning the conservation of sharks caught in association with fisheries managed by the IOTC.26 The FAO Capacity IPOA is dealt with by a series of IOTC resolutions dealing with catch reduction, control and inspection schemes among contracting and non-contracting parties.27 The FAO IUU IPOA is addressed through resolutions on e.g. actions against fishing activities by large-scale long-line vessels flying flags of convenience; a control and inspection scheme; national observer programs for tuna fishing; a scheme to promote compliance by non-contracting party vessels with resolutions established by the IOTC; a statistical document program; trade measures; port inspections; management standards for tuna vessels; the authorized vessel list and IUU fishing vessel list; and

of sharks caught in association with fisheries managed by the IOTC; recommendations on sea turtles and seabirds; establishing an IUU fishing vessel list; establishing an authorized vessel list; establishing a vessel monitoring system; limiting fishing capacity; establishing a program for transshipment by large‑scale fishing vessels; establishing a regional observer program; and prohibiting the use of large-scale driftnets. 22 E.g. IOTC Resolution 98/04 Concerning Registration and Exchange of Information on Vessels, Including Flag of Convenience Vessels, Fishing for Tropical Tunas in the IOTC Area of Competence; IOTC Resolution 99/01 On the Management of Fishing Capacity and on the Reduction of the Catch of Juvenile Bigeye Tuna by Vessels, Including Flag of Convenience Vessels, Fishing for Tropical Tunas in the IOTC Area of Competence; IOTC Resolution 99/02 Calling for Actions Against Fishing Activities by Large Scale Flag of Convenience Long-line Vessels; IOTC Resolution 05/04 Concerning Registration and Exchange of Information on Vessels, Including Flag of Convenience Vessels, Fishing for Tropical Tunas and Swordfish in the IOTC Area of Competence. 23 E.g. IOTC Resolution 05/02 Concerning the Establishment of an IOTC Record of Vessels Authorized to Operate in the IOTC Area (superseded by IOTC Resolution 07/02); IOTC Resolution 07/02 Concerning the Establishment of an IOTC Record of Vessels Authorized to Operate in the IOTC Area. 24 IOTC Resolution 08/03 On Reducing the Incidental By-catch of Seabirds in Long-line Fisheries. 25 IOTC Resolution 06/04 On Reducing Incidental By-catch of Seabirds in Long-line Fisheries. 26 IOTC Resolution 05/05 Concerning the Conservation of Sharks Caught in Association with Fisheries. Gail Lugten, FAO Fisheries and Aquaculture Circular N° 1054, The Role of International Fishery Organizations and Other Bodies in the Conservation and Management of Living Aquatic Resources (2010), at 59–61. 27 FAO Fisheries and Aquaculture Circular N° 1054, ibid., 59–61.

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a vessel monitoring system (VMS) program.28 The FAO Port State Model Scheme is included through Resolution 05/03,29 which stresses the importance of prior notification of port entry, restrictions on transshipment of fish, documentation requirements and port inspections, pursuant to the model scheme.30 A series of IOTC resolutions are in line with the FAO Status and Trends Information Strategy: mandatory statistical requirements; record of vessels; and recording of catches.31 The 14th Session of the IOTC was held in March 2010.32 In its aftermath, the EU issued a press release highlighting that measures adopted were “probably the most far-reaching undertaken by IOTC since its conception in 1996,”33 and that “all stemmed from the EU’s proposal and were made possible thanks to the EU’s progressive leadership and close cooperation with all IOTC members, particularly coastal developing states.”34 In order to overcome the financial constraints posed to the developing States, a special “Scientific Meetings Participations Fund”

28 Ibid., pp. 59–61. These resolutions are all listed in: IOTC, Collection of Resolutions and Recommendations by the Indian Ocean Tuna Commission, as last updated in April 2010 (available at http://www.iotc.org/files/proceedings/misc/ComReportsTexts/resolutions_E.pdf ). 29 IOTC Resolution 05/03 Relating to the Establishment of an IOTC Program of Inspection in Port. 30 FAO Fisheries and Aquaculture Circular N° 1054, supra note 26, pp. 59–61. 31  I bid., pp. 59–61. 32 The following resolutions and instruments were adopted by the Commission: IOTC Resolution 10/01 for the Conservation and Management of Tropical Tunas Stocks in the IOTC Area of Competence; IOTC Resolution 10/02 on Mandatory Statistical Requirements for IOTC Members and Cooperating Non-contracting Parties (CPCs); IOTC Resolution 10/03 Concerning the Recording of Catch by Fishing Vessels in the IOTC Area; IOTC Resolution 10/04 on a Regional Observer Scheme; IOTC Resolution 10/05 on the Establishment of a Meeting Participation Fund for Developing IOTC Members and Non-contracting Cooperating Parties (CPCs); IOTC Resolution 10/06 on Reducing the Incidental Bycatch of Seabirds in Long-line Fisheries; IOTC Resolution 10/07 Concerning a Record of Licensed Foreign Vessels Fishing for Tunas and Swordfish in the IOTC area; IOTC Resolution 10/08 Concerning a Record of Active Foreign Vessels Fishing for Tunas and Swordfish in the IOTC area; IOTC Resolution 10/09 Concerning the Functions of the Compliance Committee; IOTC Resolution 10/10 Concerning Market Related Measures; IOTC Resolution 10/11 On Port State Measures to Prevent, Deter and Eliminate IUU Fishing; IOTC Resolution 10/12 on the Conservation of Thresher Sharks (Family Alopiidae) Caught in Association With Fisheries in the IOTC Area of Competence; Recommendation 10/13 On the Implementation of a Ban on Discards of Skipjack Tuna, Yellowfin Tuna, Bigeye Tuna, and Non-targeted Species Caught by Purse-seiners. 33 European Commission Press Release, Fisheries: Unprecedented Progress in Protection of Indian Ocean Fish Stocks Thanks to EU Leadership (March 8, 2010) (available at http:// ec.europa.eu/fisheries/news_and_events/press_releases/080310/index_en.htm). 34 Ibid. Within the IOTC (indicative contributions for 2010) the overall budget is $1.98 million of which the EU contributes $512,000 (26%). Tindall, supra note 1, p. 35.



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was created to support developing States’ participation to IOTC Meetings.35 The contracting parties agreed to develop a total allowable catch (TAC) and quota system for the main IOTC targeted species and notably for yellow-fin and big-eye tunas by 2012.36 For the first time in the history of IOTC, conservation measures were voted upon. The IOTC established a time/area closure in the region outside the EEZ of Somalia to 60 degrees East and between 0 and 10 degrees North throughout the month of February for long-line fleet and throughout the month of November for purse fleet.37 The IOTC Commission also adopted a binding resolution establishing a port State control and inspection scheme, with provisions almost identical to the FAO IUU Agreement.38 The issue of lack of compliance by members was addressed by the strengthening of the Compliance Committee, which will focus on the performance of individual members, allowing it to identify parties that are deficient in the implementation of IOTC resolutions. Combating IUU fishing continued with a detailed review of several incidents of IUU involving vessels from member States, which resulted in new vessels being

35 The Scientific Committee was given a clear mandate to develop management options and present them to the IOTC. IOTC Proposal D [E] On Establishment of a Scientific Meeting Participation Fund for Developing State Members Submitted by the European Union (available at http://www.iotc.org/English/meetings/comm/history/doc_­meeting_ S14.php). There are however key disagreements on how quota should be allocated i.e. EU, Japan and Taiwan are in favor of allocations based on historical data (previous fishing activity) while coastal States in the area (e.g. Seychelles) are arguing for a method in line with the proximity of their EEZs. Tindall, ibid., p. 38. 36 IOTC Document 2010-S14-PropJ[E], Proposal for the Conservation and Management of Tropical Tunas Stocks in the IOTC Area of Competence—Submitted by European Union (available at http://www.iotc.org/English/meetings/comm/history/doc_­meeting_ S14.php). 37 The Commission also issued a statement on piracy reflecting its rising concerns with the delivery of humanitarian assistance to the Somali population and the impact on legitimate fishing activities occurring in the western part of the IOTC area of competence. See IOTC‑2010-S14-05[E]: Proposal for a statement of IOTC on piracy in the western part of the IOTC area of competence (2010) (available at http://www.iotc.org/ files/proceedings/2010/s/IOTC-2010-S14-05%5BE%5D.pdf ). 38 IOTC Document 2010-S14-R[E], supra note 8, pp. 4–5.

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listed under the IUU list.39 This led to a considerable expansion of the IOTC list of IUU vessels.40 The conclusions of the European Commission on the outcome of the 15th Session of the IOTC41 could not contrast more with those of the 14th Session. According to the European Commission, the IOTC becomes a dangerous precedent of ineffective management as the North-east Indian Ocean Coastal States, which run some of the less controlled fleets in the area, blocked progress in the process of identifying compliance problems. In the IOTC plenary session, most of the main conservation and management proposals were rejected.42 A measure on data collection by the most uncontrolled fleets, notably the gillnet ones, and the extension of the reporting obligations for the most endangered sharks species, based on clear advice by the IOTC scientific committee, were downgraded to voluntary measures. Limited progress was made in the fight against IUU fishing. None of the vessels proposed for inclusion onto the black list was actually

39 Ibid. See Chapter 20, by Ximena Hinrichs, in this volume. The following resolutions and instruments were adopted by the Commission: IOTC Resolution 10/01 for the Conservation and Management of Tropical Tunas Stocks in the IOTC Area of Competence; IOTC Resolution 10/02 on Mandatory Statistical Requirements for IOTC Members and Cooperating Non-contracting Parties (CPCs); IOTC Resolution 10/03 Concerning the Recording of Catch by Fishing Vessels in the IOTC Area; IOTC Resolution 10/04 on a Regional Observer Scheme; IOTC Resolution 10/05 on the Establishment of a Meeting Participation Fund for Developing IOTC Members and Non-contracting Cooperating Parties (CPCs); IOTC Resolution 10/06 on Reducing the Incidental Bycatch of Seabirds in Long-line Fisheries; IOTC Resolution 10/07 Concerning a Record of Licensed Foreign Vessels Fishing for Tunas and Swordfish in the IOTC area; IOTC Resolution 10/08 Concerning a Record of Active Foreign Vessels Fishing for Tunas and Swordfish in the IOTC area; IOTC Resolution 10/09 Concerning the Functions of the Compliance Committee; IOTC Resolution 10/10 Concerning Market Related Measures; IOTC Resolution 10/11 on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing; IOTC Resolution 10/12 on the Conservation of Thresher Sharks (Family Alopiidae) Caught in Association With Fisheries in the IOTC Area of Competence; Recommendation 10/13 on the Implementation of a Ban on Discards of Skipjack Tuna, Yellowfin Tuna, Bigeye Tuna, and Non-targeted Species Caught by Purse-seiners. 40 The EU also tabled an IOTC Resolution intended to help support the implementation of conservation and management measures, improve control and data gathering as well as scientific research, for yellow-fin, big-eye and skipjack tunas, considering, inter alia, the need to control trade flows in order to combat IUU fishing. In addition, the new catch documentation required could be used in the framework of the new EU IUU Regulation. IOTC Document 2010-S14-PropI[E]: On an IOTC Tropical Tunas—Yellowfin, Bigeye and Skipjack—Catch Documentation Programme Submitted by European Union (available at http://www.iotc.org/English/meetings/comm/history/doc_meeting_S14.php). 41  Held in Colombo, Sri Lanka from March 18–22, 2011. 42 Such as the protection of endangered species like hammerhead or oceanic white tip sharks. For these the EU had tabled proposal prohibiting their retention on board. Only two EU proposals were adopted: an amendment of the IOTC resolution against IUU fishing and a statement on piracy.



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included. The majority of the IOTC contracting parties preferred to adopt a laissez faire attitude.43 Fisheries Committee for the Eastern Central Atlantic The CECAF is a consultative organization, which realized several notable achievements, particularly in the period immediately following the extension of fisheries jurisdiction by West African coastal States.44 Factors that have constrained the functioning of the CECAF include a lack of funding, a lack of commitment and inadequate implementation of recommendations adopted by the Committee.45 Largely due to under-resourcing and lack of data, the Scientific Committee is not able to comprehensively and accurately assess fish stocks in West Africa. The main problems in the West-African waters concern the understanding and monitoring of fishing activities by foreign trawlers and IUU fishing.46 The CECAF was established in June 1967, by FAO Resolution 1/48.47 The CECAF has passed by different organizational structures along its history. The last reorganization took place during the late nineties when it was transformed in an RFMO under Art. VI(2) of the FAO Constitution.48 The CECAF has opted to maintain an Art. VI organization, but with the long-term aim of becoming an Art. XIV organization. One reason may be that the UN Straddling Stocks Agreement has limited

43 European Commission Press Release, Results of Indian Ocean Tuna Commission Meeting (March 23, 2011) (available at http://ec.europa.eu/fisheries/news_and_events/press_ releases/2011/20110323/index_en.htm). 44 See: CECAF Doc. XV/2000/6, Options for Long-Term Institutional Arrangements for Fishery Management in the Eastern Central Atlantic (2006), Appendix IV. 45 Ibid., para. 8. 46 European Parliament, Policy Coherence for Development and Effects of EU Fisheries Policies on Development in West Africa (2007), p. 44. 47 FAO Council Resolution 1/48, FAO Fishery Committee for the Eastern Central Atlantic, 48th Session (12–13 June 1967) (available at http://www.fao.org/docrep/ meeting/007/68977E/68977E02.htm#ch2.5.1). 48 FAO Constitution, supra note 4, Art. VI(2). Its statutes were adopted on 19 September 1967 and amended in November 1992. The Rules of Procedure were adopted in March 1969 and amended in November 1992 and in October 2003. The CECAF Statutes and the CECAF Rules of Procedure are available at http://www.fao.org/fishery/rfb/cecaf/en. One needs to distinguish between RFOs constituted under Arts. VI and XIV of the FAO Constitution. RFMOs constituted under Art. VI (CARPAS, CECAF, IOFC and WECAFC) are advisory organizations relying on the FAO for funding and secretarial functions. Art. XIV RFMOs (APFIC, GFCM and IOTC) have potentially stronger mandates as fisheries management bodies and autonomous budgets. A.K. Sydnes, “Regional Fishery Organizations: How and Why Organizational Diversity Matters,” 32 Ocean Development & International Law (2001), p. 374. See also FAO Fisheries Circular N° 916, The Role of FAO RFBs in the Conservation and Management of Fisheries (by S.H. Marashi, 1996), p. 15 & footnote 19.

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c­ onsequences for the organization since few straddling fish stocks occur in its mandate area and that highly migratory stocks are managed by ICCAT.49 Although the CECAF in principle covers all living marine resources within its area of competence,50 it does not focus on tuna and tuna-like species.51 In practice the CECAF concentrates on small-pelagic and demersal resources as ICCAT covers large pelagics within this area. The competence area of the CECAF stretches over the Eastern Central Atlantic — between Cape Spartel (near Tangier in Morocco) and the Congo River—,52 i.e. the area exactly matching FAO Fishing Area 34. Although the CECAF area, and its sub-divisions, covers both waters under national jurisdiction and the high seas the current zonal approach, which predates the establishment of EEZs, is ­problematic because, among other reasons, no distinctions are made between catches made within and outside the EEZ nor between vessel flag States.5354 49 Sydnes, ibid., p. 378. See also United Nations, Report of the Secretary-General, A/54/461, 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: Recent Developments and Current Status (1999), para. 53. 50 The Statutes refer to the “marine fishery resources” of the area. CECAF Statutes, supra note 48, Art. 3(a). 51  At its sixteenth Session in October 2002, the Committee agreed that its work should be more focused. To this effect, the Terms of Reference were revised. The Technical Consultation (Lagos, November 27–30, 2001) had noted that further changes had taken place which should be reflected in the Terms of Reference of the Committee. In particular, the Technical Consultation was of the view that CECAF should be entrusted with wider scientific and technical functions, but these should concentrate on a few key priority areas with a regional or sub-regional focus and that they should be duly reflected in the revised Terms of Reference. At its seventeenth Session in May 2004, the Committee noted that the main high-seas fishery resources currently under exploitation in the region were tuna and tuna-like species, and that the management of these resources was within the mandate of the ICCAT. There were few if any other high-seas resources currently under exploitation. In view of this situation, the Committee was of the opinion that there was no reason to consider the immediate establishment of a separate commission for the management of high-seas resources other than tuna. FAO Fisheries Report N° 693, Report of the Sixteenth Session of the Fishery Committee for the Central Eastern Atlantic (October 22–24, 2002), p. 32; FAO Fisheries Report N° 754, Report of the Seventeenth Session of the Fishery Committee for the Eastern Central Atlantic (May 24–27, 2004), p. 7; FAO Fisheries and Agriculture Circular N° 1054, supra note 26, p. 29. 52 More precisely, all the waters of the Atlantic Ocean bounded by a line drawn as follows: from a point on the high watermark on the African coast at Cape Spartel (35°47’N, 5°55’W) following the high watermark along the African coast to a point at Ponta da Moita Seca (6°07’S, 12°16’E) along a rhumb line in a northwesterly direction to a point at 6°S, 12°E, thence due west along 6°S to 20°W, thence due north to the equator, thence due west to 30°W, thence due north to 5°N, thence due west to 40°W, thence due north to 36°N, thence due east to 6°W, thence along a rhumb line in a southeasterly direction to the original point at Cape Spartel. CECAF Statutes, supra note 48, Art. 1. 53 B. Trouillet, T. Guineberteau, M. Bernardon & S. Le Roux, “Key Challenges for Maritime Governance in West Africa: Fishery-based Lessons from Guinea and Mauritania,” Marine Policy, 35 (2011): 155–162. 54  

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figure 2. cecaf competence area.

the cecaf is composed of the african fao member states and associate members whose territory borders the competence area and of other fao member states and associate members fishing or carrying out research in the area concerned or having some interest in fisheries thereof.55 the current cecaf members are: angola, Benin, cameroon, cape Verde, congo, cuba, democratic Republic of the congo, eu,56 equatorial guinea, france, gabon, gambia, ghana, greece, guinea, guinea-Bissau, italy, ivory coast, Japan, liberia, Mauritania, Morocco, netherlands, nigeria, norway, Poland, Republic of Korea, Romania, sao tome and Principe, senegal, sierra leone, spain, togo and united states of america. fao member states or associate members not member of cecaf may apply with the fao council or fao conference for cecaf observer status. with approval of the fao council, any other states that are not members of the fao, but are members of the un or of any of is specialized agencies or of the international atomic energy agency, may be represented in an observer capacity.57 the current structure of the cecaf includes the committee, where fishery managers with decision capacity from the different member countries are 54 information available at http://www.fao.org/docrep/009/y5852f/y5852f04.htm. 55 cecaf statutes, supra note 48, art. 2. 56 the rationale for the continued participation of eu member states within this body seems to lay predominantly with the development cooperation objectives, which is an area in which the eu and its member states share competence. scientific research in fisheries is another issue where competence is shared. consequently, the member states also continue their membership of the international council for the exploration of the sea alongside the eu. 57 cecaf statutes, supra note 48, art. 6(i)–(ii); cecaf Rules of Procedure, supra note 48, Rule Vii.

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­represented; a Scientific Subcommittee; five permanent assessment working groups (artisanal fisheries, small pelagics north, small pelagics south, demersals north, demersals south). These working groups meet regularly once a year or every two years depending on the data available and the funding availability for their ­organization. Implementation of Post-UNCED Fishery Instruments CECAF’s main objective is to promote the sustainable utilization of the living marine resources within its area of competence by the proper management and development of the fisheries and fishing operations. The functions and responsibilities of the CECAF are broadly worded and do not refer to modern conservation and management concepts.58 The CECAF does not have regulatory powers and its role is purely advisory with respect to the adoption of regulatory measures by member governments, sub-regional or regional organizations.59 The CECAF was not established to manage fisheries but rather to coordinate regional fisheries policies and to promote the development of the industry. Its purely facilitative role in a region with three RFMOs, the lack of collaboration with these other RFMOs, the lack of financial resources and of political will of its members have hindered the implementation of the post-UNCED fishery instruments and CECAF’s progressive transformation into an efficient RFMO.60 Dur-

58 CECAF’s functions and responsibilities are: a) to keep under review the state of the resources within its area of competence and of the industries based on them; b) to promote, encourage and coordinate research in the area related to the living resources thereof and to draw up programs required for this purpose and to organize such research as may appear necessary; c) to promote the collection, interchange, dissemination and analysis or study of statistical, biological, environmental and socio-economic data and other marine fishery information; d) to establish the scientific basis for regulatory measures leading to the conservation and management of marine fishery resources, to formulate such measures through subsidiary bodies, as required, to make appropriate recommendations for the adoption and implementation of these measures and to provide advice for the adoption of regulatory measures by member Governments, sub-regional or regional organizations, as appropriate; e) to provide advice on monitoring control and surveillance, especially as regards issues of a sub-regional and regional nature; f ) to encourage, recommend and coordinate training in the priority areas of the Committee; g) to promote and encourage the utilization of the most appropriate fishing craft, gear and techniques; h) to promote liaison among and with competent institutions within the sea area served by the Committee and to propose and keep under review working arrangements with other international organizations which have related objectives within that area; i) to carry out such other activities as may be necessary for the Committee to achieve its purpose, as defined above. CECAF Rules of Procedure, supra note 48, Appendix E. 59 CECAF Statutes, supra note 48, Art. 3. 60 FAO Fisheries Report N° 828, Report of the Eighteenth Session of the Fishery Committee for the Eastern Central Atlantic—3–5 October 2006 (2006), p. 8.



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ing the past decennium, the CECAF did not implement any measures regarding the FAO Compliance Agreement, the UN Straddling Stocks Agreement, or the four FAO IPOAs.61 Although there have been ongoing debates on the implementation of the FAO Code of Conduct,62 no substantive measure has been approved with respect to the FAO Port State Model Scheme or the FAO Status and Trends Information Strategy. Nor were there any direct activities planned concerning the implementation of the precautionary approach, the establishment of area-based management tools or on issues relating to the management of fleet capacity.63 In the CECAF African sub-region IUU fishing by artisanal and industrial fishermen is common practice.64 The overall impact of these activities has led to dwindling resources, strong competition among vessels on the fishing grounds, conflict between industrial and artisanal fishers, and the disappearance of some species.65 Because of possible diplomatic repercussions, the African countries concerned are often reluctant to take action against vessels involved in such fishing or against their flag States. In addition, the capacity and financial problems of the West African countries constraint the implementation of the FAO Code of Conduct and the FAO IUU IPOA.66 A significant concern is the implementation of appropriate monitoring, control and surveillance (MCS) tools.67 Members of the CECAF African sub-region coordinate their action against IUU fishing outside the framework of the CECAF. The mandates of such RFMOs overlap those of the CECAF. In this respect, the Sub-Regional Fisheries Commission

61 FAO Fisheries and Agriculture Circular N° 1054, supra note 26, p. 29. 62 Ibid. 63 Ibid., p. 30. 64 Types of IUU fishing include: operating without an authorization; fishing unauthorized and under-sized species; incursions into prohibited and seasonally closed areas; the use of destructive fishing methods; the use of prohibited gears and fishing methods, encroachment by foreign fishing vessels into the EEZ; and un-reporting and misreporting of catches. IUU fishermen rely heavily on support from States issuing flags of convenience and those operating ports of non-compliance. FAO Fisheries Report N° 792, The FAO Regional Workshop on the Elaboration of National Plans of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing—West African Sub‑region (2006), pp. 6–7. 65 Ibid., p. 7. 66 Ibid., p. 3. 67 Such tools concern the drafting of adequate legislation for IUU fishing, e.g. setting appropriate penalties, alternatives to VMS and the exchange of information. In this regard, there is a need to prioritize, develop strategies and seek assistance for capacity building. Ibid., p. 7.

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(SRFC)68 and the Fishery Committee of the West Central Gulf of Guinea (FCWC)69 are also important sub-regional RFMOs. However, as pointed out by Trouillet et al., these initiatives are often a reflection of the friendship between various States, and so they do not always make sense or may indeed hinder some of the cooperative actions in the region.70 This also explains the difficulties in harmonizing or federalizing regional initiatives, as is the case for the CECAF and the SRFC. Certain West-African CECAF members have individually taken port State measures to combat IUU fishing.71

68 The SRFC is an inter-governmental organization developed in 1985. Member countries are Cape Verde, Gambia, Guinea, Guinea Bissau, Mauritania, Senegal and Sierra Leone. The scope of the organization covers the EEZs of these countries. The overall aim is to harmonize fisheries policy, laws and regulations across the member States to lead to sustainable resources management. There is also an aim to achieve regional cooperation on aspects such as monitoring, control and compliance as well as research. While the SRFC aims at harmonizing fisheries regulations across its different countries it does not have full powers of an RFMO to make its own regulations—which States are legally obliged to follow—or to enforce regulations through sanctions and penalties. The European Commission is not a member of the SRFC but does provide development funding. Tindall, supra note 1, p. 36. The SRFC, based in Senegal, has a monitoring, control and surveillance program, the Surveillance Operations and Coordination Unit (SOCU) based in Gambia. The SRFC has promoted the development of a national vessel register and a sub-regional register of fishing vessels, which provided a good basis for the exchange of information between its members. The adoption of the declaration entitled “Nouakchott Declaration on IUU fishing” by the SRFC Ministerial Conference has demonstrated the willingness of countries to become involved in the fight against IUU fishing. This political will is also manifested through the creation of the SOCU program, which organizes combined air and sea surveillance operations in order to identify and combat IUU fishing activities in the EEZs of the SRFC members. Ibid., pp. 6–7. 69 Although a permanent working group on IUU fishing has been established and a regional action plan against IUU fishing including port State measures is under preparation, within the area of the FCWC port State measures to combat IUU fishing have not yet been initiated. 70 In the case of the SRFC, the problems linked with fishery resources management are arguably more similar between Guinea and its neighboring countries that lie outside the sub-region (such as Sierra-Leone and the Ivory Coast), than they are with Mauritania within the same region. Indeed, Guinea, Sierra-Leone and the Ivory Coast all need to deal with the problems of Chinese fleets, which is not the case for Mauritania or Cape Verde. Trouillet et al., supra note 53, p. 161. 71 Sierra Leone has designated three transshipment zones in its port and banned high seas transshipments. In Ghana a new fisheries plan gives priority to the struggle against IUU fishing. In Benin, a national action plan to combat IUU fishing has been elaborated. In Ivory Coast, a program of sustainable fisheries management has been put in place that would guide action against IUU fishing. FAO Fisheries Report N° 792, supra note 64, pp. 6–7.



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Recent Developments The CECAF has sensitized its members to the dangers of IUU fishing and the need to strengthen VMS at the national and regional levels. Regarding the collection and dissemination of fisheries data and the harmonization of catch documentation, CECAF member States have conducted national and sub-regional activities on improving fisheries information collection and processing. At its 19th Session, held in Cotonou, Benin on 4–6 November 2008, the CECAF was invited to identify mechanisms to improve fisheries governance at national and regional level, and reporting on the fisheries sector; to advance the implementation of the IPOA on the management of Fishing Capacity and to combat IUU fishing in the region; and to implement the ecosystem approach to fisheries. In addition it was invited to discuss the issue of subsidies and to identify possible opportunities and concerns about eco-labeling.72 At this Session, the CECAF also discussed its role in a region with three fisheries management bodies. The need was emphasized for closer collaboration between the CECAF and the various fisheries bodies in order to facilitate the efficient utilization of the human and financial resources to conserve and manage the fisheries resources in the region. The progressive transformation of the CECAF into a commission, raised at ­meetings in Nigeria in 2001 and in Tenerife in 2002, was identified as one of various options that could make CECAF’s future actions more efficient.73 To reduce the overlaps and to increase the efficiency of the statistical monitoring systems, the CECAF addressed the redefinition of the fishery related statistical divisions, which were established according to geographical coordinates rather than national borders. There are three options under scrutiny for redefining the new CECAF boundaries: (i) adapt existing divisions to the EEZ, (ii) create new boundaries corresponding to the EEZ and (iii) reorganize current divisions according to fisheries sub-regional organizations.74 This CECAF meeting also launched the “Strategic Partnership for a Sustainable Fisheries Investment Fund in the Large Marine Ecosystems of Sub-Saharan Africa,” an initiative to make additional financing from the GEF75 and other partners available to coastal countries in Sub-Saharan Africa

72 CECAF Doc. XIX/2008/8, Nineteenth Session, Global Emerging Issues in Fisheries Development and Management Relevant to the Region (November 4–6, 2008), p. 13. This initiative follows the request made by the FAO Fisheries Committee (COFI) at its 27th Session for RFMOs and Regional Fisheries Bodies (RFBs) to conducting performance reviews. See: FAO, Fisheries Report N° 830, Report of the Twenty-seventh session of the Committee of Fisheries (2007), para. 86. 73 CECAF Doc. XIX/2008/8, ibid., p. 6; FAO Fisheries Report N° 828, supra note 60, paras. 52 & 53. 74 COPACE/XIX/2008/4, Proposition pour une ré-organisation de la région 34 des divisions statistiques de pêche du COPACE-FAO (November 2008), pp. 4 & 8. 75 The Global Environment Facility (GEF) unites 182 member governments—in partnership with international institutions, non‑governmental organizations, and the private

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source: trouillet et al.76

figure 3. overlapping boundaries in west african waters.

to help support sustainable marine fisheries, which is advised by a partnership of stakeholders within the region led by the african union.777677 sector—to address global environmental issues. an independent financial organization, the gef provides grants to developing countries and countries with economies in transition for projects related to biodiversity, climate change, international waters, land degradation, the ozone layer, and persistent organic pollutants. these projects benefit the global environment, linking local, national, and global environmental challenges and promoting sustainable livelihoods. 76 trouillet et al., supra note 53, p. 160. as reproduced from: Vlaams instituut voor de Zee (VliZ), VLIZ—Maritime Boundaries Geodatabase (Dec. 2008), fao, noaa. 77 the initiative includes (i) the sustainable fisheries investment fund, which is a financing mechanism to make available us$60 million in gef grants over the next 10 years to co-finance country-level projects aimed at sustainable marine fisheries, and (ii) the strategic Partnership of stakeholders, donors, regional organizations, the gef- sponsored large Marine ecosystem Programs, etc., led by the african union to advise the investment fund and help exchange lessons learned and promote sustainable fisheries issues within the region. the gef implementing agency for this initiative is the world Bank. cecaf doc. XiX/2008/inf.1, Strategic Partnership for a Sustainable Fisheries Investment Fund in the Large Marine Ecosystems of Sub-Saharan Africa (2008), p. 1.



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Third County Access Agreements With the purpose of gaining exploitation rights, the EU has been concluding a series of bilateral agreements with some African States, the so-called FPAs (Fisheries Partnership Agreements). This section addresses the effectiveness of these instruments, which above all aim at strengthening co-operation with and the improvement of the African States’ capacity to achieve sustainable fisheries, whilst contributing to their development objectives. This section first addresses the international legal framework, after which the African-EU FPAs are addressed from a historical perspective. Subsequently, some of the new elements of sustainable development in the FPAs are discussed. The International Framework Fishing access agreements began to proliferate in anticipation of the UNCLOS, which makes provision for the establishment of 200 nautical miles EEZs in which coastal States enjoy sovereign rights for the purpose of exploiting fisheries resources.78 These exploitation rights are subject to conservation duties. With the purpose of ensuring that the living resources are not endangered with over-exploitation,79 the coastal State is to determine the allowable catch of the living resources.80 The catch level depends on the coastal State’s judgment about both the level of abundance and the replacement rate of fishery stocks, which will serve the coastal State’s economic and other interests. This means that the coastal State can decide that its interest are best served by determining that the allowable catch is equal to, or less than, its harvesting capacity. Subject to these conservation requirements, there is a duty on the coastal State to promote the objective of optimum utilization of the living resources in its EEZ.81 The access provisions for third States strengthen the view that under-utilization is to be avoided.82­

78 UN Convention on the Law of the Sea, December 10, 1982, multilateral, 1833 United Nations Treaty Series 397, Art. 58. Hereinafter UNCLOS. This convention entered into force on November 16, 1994 (available at http://www.un.org/Depts/los/convention_ agreements/texts/unclos/unclos_e.pdf ). 79 Ibid., Art. 61(2). 80 Ibid., Art. 61(1). Catch limitations are not the only means to conserve and manage a fish stock. A non‑exhaustive list of other conservation measures is provided for in the convention, such as determining the species which may be caught, and the fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; fixing the age and size of fish and other species that may be caught. Ibid., Art. 62(4)(b–d). 81 Ibid., Art. 62(1). 82 The concept of optimum utilization originated in proposals from the major distant‑water fishing States in an effort to have continued access to areas of extended jurisdiction. The wording “to promote the objective of optimum utilization” implies that there is no

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Furthermore, States have the right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.83 The measures to be taken include those necessary to protect and preserve rare or fragile eco‑systems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.84 In addition to the UNCLOS aim of managing fisheries at maximum sustainable yield and the requirement of taking into account the interdependence of stocks, other international agreements stress the need to manage fisheries resources in a sustainable manner. These include the FAO Code of Conduct and the UN Straddling Stocks Agreement. Of relevance are also the FAO Compliance Agreement and the FAO IUU Agreement. The concept of a surplus stock is fundamental since it is the basis of fishing agreements with distant water fleets. Where the fishermen of the coastal State are not capable of taking the whole of the allowable catch, the coastal State is to permit the other States’ fishermen to fish for the balance between what its fishermen take and the allowable catch: the surplus catch.85 Whether a surplus exists is thus dependent on the setting of the allowable catch and the coastal States’ capacity to harvest it. The coastal State cannot be compelled to allow foreign access, even if its fails to determine an allowable catch or its harvesting capacity. Nor can the coastal State be compelled to provide access, after declaring a surplus, if it fails to allocate the whole or a part of the surplus to any other State.86 In giving other States access, the coastal State must take into account all relevant factors includobligation to provide for full or maximum utilization of fisheries in the EEZ. And as in the case for allowable catches, it is the coastal State who determines the operational meaning of optimum utilization. 83 UNCLOS, supra note 78, Art. 193. 84 Ibid., Art. 194(5). On the eco-system approach and the protection of habitats under the Common Fisheries Policy, see K. Van den Bossche & N. van der Burgt, “Integrating Environmental Concerns into the European Common Fisheries Policy,” in M. Pallemaerts & A. Azmanova (eds.), The European Union and Sustainable Development—Internal and External Dimensions (Brussels, 2006), 237–274. 85 UNCLOS, supra note 78, Art. 62(2). In practice, it happens that third States are allowed access even when there is no surplus. Note that there is nothing in the convention to prevent States giving other States access to their EEZ even where this is not required by the convention. 86 Ibid., Art. 297(3)(a). This article exempts disputes concerning the interpretation or application of the convention from the compulsory procedures entailing binding decisions, when these disputes relate to the coastal State’s sovereign rights with respect to the living resources in the EEZ, on their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws. Art. 297(3)(b) also excludes any binding and compulsory procedure available should the coastal State deny access to its surplus. In such a case, however, if the refusal to act is “arbitrary,” the coastal State can be pursued through compulsory “conciliation.” However, the conciliation commission is only authorized to make non‑binding recommendations.



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ing, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests; the provisions concerning land-locked and geographically disadvantaged States; the requirements of developing States in the sub-region or region in harvesting part of the surplus; and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.87 Specific reference to the participation in the exploitation of the surplus of the living resources of the EEZs of coastal States of the same sub-region or region is establish for both landlocked and geographically disadvantaged States. Arts. 69(2) and 70(3) UNCLOS formulate that “the terms and modalities of that participation are to be established by the States concerned through bilateral, sub-regional or regional agreements.” These agreements are to take into account according to Art. 69(2) UNCLOS: “(a) the need to avoid effects detrimental to fishing communities of fishing industries of the coastal State” and “(d) the nutritional needs of the population of the respective States.”88 History of ACP (African, Caribbean and Pacific States) Agreements The bilateral agreements signed by the EU with third countries provide the legal framework for fleets to access different countries’ EEZs. From the conclusion of the first agreement in the 1970s until the current FPAs, the agreements have been subject to significant changes. These early agreements have been referred to as the “cash for access” agreements. The agreements with the African, Caribbean and Pacific States (ACP) were non-reciprocal and involved a financial compensation in exchange for access rights. These agreements were often not precise regarding quota and included unsustainable provisions, such as the one that an unforeseeable downward evolution of fish stocks required a replacement with other fishing opportunities.89 It was only in the 1990s, when the EU was heavily criticized for its fisheries agreements, that their impact on the environment and development of ACP States became the subject of discussion. The bilateral fisheries agreement were

87 Ibid., Art. 62(3). 88 Ibid., Art. 69(2). The other factors that are mentioned are: (b) the extent to which the land-locked State or geographically disadvantaged State, in accordance with the provisions of this article, is participating or is entitled to participate under existing bilateral, sub-regional or regional agreements in the exploitation of living resources of the EEZs of other coastal States; (c) the extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the EEZ of the coastal State and the consequent need to avoid a particular burden for a single coastal State. 89 See for example Agreement between the Government of the Republic of Senegal and the European Economic Community on Fishing off the Coast of Senegal, Art. 12, L 226 Official Journal (August 29, 1980), pp. 17–27.

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questioned essentially because of their commercial nature and objectives, which mainly consisted in maintaining the European presence in distant fisheries and protecting European fisheries sector interests. Moreover, the financial compensation was solely based on the fishing access possibilities offered by the coastal State concerned. Another criticism focused on the fact that the EU was exporting excess fishing capacity to third countries, which had insufficient resources for effective monitoring and enforcement. This export of fishing capacity generated harsh and unfair competition with local fleets and small-scale fishermen, blocking their development and leading to a heavy pressure on and ­over-exploitation of fish stocks.90 The ability of developing coastal States to ensure sustainable management of their fish resources was limited by IUU fishing. Coherence between the ACP-EC bilateral fisheries agreements with the EU’s development and environment policy was concluded to be lacking. In response to these criticisms, the European Commission sought to reform the framework of the external aspects of its fisheries policy. The need was highlighted to adapt to the legitimate aspirations of many developing States to develop their fishing industry to meet and the requirements of sustainable development and responsible fisheries.91 The first of these new types of FPAs entered into force in 2006. The specific conditions (technical, financial, type of resources, etc.) of the agreements are laid down in protocols, each of which runs for a period of several years. In recent years, despite new agreements being signed with three Pacific States, namely Kiribati (2006), Micronesia (2007) and the Solomon Islands (2006), the number of agreements has declined mainly due to the loss of previously important agreements in Angola (2004), Mauritius (2007) and Senegal (2006).92 In March 2011, 79% of the agreements (15 out of 19) were with developing countries.93 Most of the current agreements only allow access to tuna resources, but there are also the so-called “mixed” agreements that allow access to demersal (e.g. shrimp, cephalopods, hake) and pelagic species (e.g. sardine, horse mackerel). The only mixed agreements are with Mauritania, Morocco and Guinea Bissau. The agreement with Mauritania is by far the most important in terms of access rights, ahead of that with Guinea Bissau. The activities of the pelagic trawlers are limited to the EEZs of Morocco and Mauritania.

90 K. Van den Bossche & N. van der Burgt, “Fisheries Partnership Agreements under the European Common Fisheries Policy,” Studia Diplomatica 62 (2009): 107–108. 91  COM(2001)135 Final, Green Paper on the Future of the Common Fisheries Policy (March 20, 2001), p. 17. 92 Due mainly to new agreements being singed in the Pacific. 93 The EC has also concluded fisheries agreements with the Faeroe Islands, Iceland and Norway. These agreements involve no financial compensation. The agreement with Greenland provides for financial compensation. Van den Bossche and van der Burgt, supra note 90, pp. 112–113.



regional issues and ocean law: the african region

949596979899100101102103104105106 Table 1. EU expenditure on FPAs in developing countries Atlantic

Indian Ocean

Country

Species

Value/Year €

Morocco94 Mauritania95 Cape Verde96 Guinea Bissau97 Guinea98 Ivory Coast99 Sao Tome100 Gabon101 Seychelles102 Madagascar103 Mozambique104 Comoros Island105

Mixed Mixed Tuna Mixed Tuna Tuna Tuna Tuna Tuna Tuna Tuna Tuna

36,100,000 76,000,000 385,000 7,500,000 1,050,000 595,000 663,000 860,000 5,335,000 1,197,000 900,000 390,000

433

Source: European Commission.106

  94 Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, L 141 Official Journal (May 29, 2006), pp. 4–37.   95 Fisheries Partnership Agreement between the European Community and the Islamic Republic of Mauritania, L 343 Official Journal (December 8, 2006), pp. 4–60.   96 Fisheries Partnership Agreement between the European Community and the Republic of Cape Verde, L 414 Official Journal (December 30, 2006), pp. 3–25.   97 Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau for the Period 16 June 2007 to 15 June 2011, L 342 Official Journal (December 27, 2007), pp. 5–37.   98 Fisheries Partnership Agreement between the Republic of Guinea and the European Community, L 156 Official Journal (19 June 2009), pp. 35–55. The EU repealed this agreement following events of September 28, 2009, when Government forces opened fire on protesting crowds resulting in over 150 deaths. Information available at http://­ agritrade.cta.int/en/content/view/full/4893.   99 Protocol Setting Out the Fishing Opportunities and the Financial Contribution Provided for by the Agreement Between the European Community and the Republic of Côte d’Ivoire on Fishing Off the Coast of Côte d’Ivoire for the Period from 1 July 2007 to 30 June 2013, L 48 Official Journal (February 22, 2008), pp. 46–63. 100 Fisheries Partnership Agreement between the Democratic Republic of São Tomé and Príncipe and the European Community, L 205 Official Journal (August 7, 2007), pp. 36–58. 101  Fisheries Partnership Agreement between the Gabonese Republic and the European Community, L 109 Official Journal (April 26, 2007), pp. 3–7. 102 Fisheries Partnership Agreement Between the European Community and the Republic of the Seychelles, L 290 Official Journal (December 20, 2006), pp. 2–5. 103 Fisheries Partnership Agreement between the Republic of Madagascar and the European Community, L 331 Official Journal (December 17, 2007), pp. 7–35. 104 Fisheries Partnership Agreement between the European Community and the Republic of Mozambique, L 331 Off. Journal (December 17, 2007), pp. 35–54. 105 Partnership Agreement in the Fisheries Sector between the European Community and the Union of the Comoros, L 290 Official Journal (December 20, 006), pp. 7–10. 106 Information available at http://ec.europa.eu/fisheries/cfp/external_relations/bilateral_­ agreements_en.htm.

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New Elements of Sustainable Development in the FPAs A study performed by Marine Resources and Fisheries Consultants Ltd. in 2007 revealed that reliable stock assessments have been rarely available, which presented a problem both for the EU and for the developing States.107 Assessing the state of stocks is often difficult, as the information may be considered ­confidential by the developing States. These States are not always transparent about agreements they may have with other distant water fishing nations, and it can be difficult to assess the true total effort on a particular stock. From their perspective, developing States also at times found it difficult to access catch data from the EU who may have been fishing in their EEZ for a number of years and could potentially have the best data set for a stock assessment.108 The FPAs concluded with African States after 2004 have seen the introduction of an exclusivity clause.109 This means that EU vessels must have a license issued under the FPA to be able to fish in the African State’s EEZ, removing the chance of private arrangements. The exclusivity clause only applies to EU vessels and does not prevent the African coastal States from agreeing fisheries agreements with other countries or private sector companies (outside the EU).110 Most FPAs include limitations on fishing effort. Fishing opportunities are usually determined by number of vessels (for tuna fishing) or gross tonnage (GT) for demersal fishing. Basing fishing opportunities on tonnage is preferable to basing them on the number of vessels, since fishing effort can be better restricted. However, as observed by the UN Environmental Programme (UNEP), estimations of catches are based on vessels that existed 10–20 years ago rather than their current form fitted with sophisticated gear and fishing material with much higher catch power.111 The FPAs include technical measures such as gear restrictions, by-catch limits and defined fishing areas. There has also been an improvement on the inclusion of gear specifications, which is mainly due to the increasing reference to the RFMO technical requirements within tuna agreements, e.g., in the IOTC in the Comoros and Seychelles Agreements. There has also been a slight improvement on by-catch limits, but reference to them in FPAs remains low. Concerning mixed FPAs, by-catch limits were only previously specified for the Mauritania 107 S.F. Walmsey, S.F. Barnes, C.T. Payne & C.A. Howard, Comparative Study of the Impact of Fisheries Partnership Agreements—Technical Report (MRAG, 2007) (available at http://www.globefish.org/files/FPA_Technical%20report_FINAL_sml_535.pdf). 108 Ibid., p. 29. 109 With the exception of the FPA negotiated with Gabon. 110 IFREMER, Evaluation of the Fisheries Agreements Concluded by the European Community (August 1999) (available at http://ec.europa.eu/fisheries/publications/studies/ rsen.pdf ). 111  UNEP, Integrated Assessment of Trade Liberalization and Trade-related Policies—A Country Study on the Fisheries Sector in Senegal (2002); Walmsey et al., supra note 107, p. 27.



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and Guinea-Bissau agreements, and have recently been included in the Morocco FPA.112 All FPAs allow the fishing opportunities in the agreements to be revised in the light of scientific evidence. In this case, the financial contribution is also increased or reduced proportionately. There have also been changes in fishing opportunities between different protocols. For instance, the 2006–2011 Cape Verde Agreement incorporates a 28% reduction in tuna fishing possibilities compared with the previous agreement.113 Most FPAs now require EU vessels to use VMS. In practice, there have been a number of problems with the transfer of VMS information and in some coastal States VMS systems do not exist for the member States’ authorities to be able to transfer VMS data. In Mozambique, there were problems with the security of data transfer, so the VMS system has not yet been operational. The recent FPAs with Guinea-Bissau and Ivory Coast do not include a requirement for VMS, although there are provisions for this to be developed once the coastal State authorities have put in place the necessary systems.114 Monitoring transshipments can help control the trade in IUU fish. The FPAs specify that transshipment must only be carried out in port or in designated areas to facilitate monitoring by authorities. However, these controls only apply to transshipments carried out in the EEZ of the coastal State. Vessels can still leave the EEZ and transship on the high seas with no monitoring or controls.115 Conclusions The IOTC made progress in addressing the main challenges to sustainable fisheries within the Indian Ocean. The commitments to halt IUU fisheries, to enhance enforcement and to adopt conservation and management measures are to be welcomed. The regulatory proposals, which in light of the previous IOTC record could be marked as spectacular, were the fruit of the enhanced cooperation between the EU and some of the African IOTC members. Despite these efforts, real progress is lacking as several members prefer a laissez-faire attitude. The reasons for failure can also be attributed to IOTC’s mandate. There is an urgent need, in order to develop towards an RFMO capable of ensuring sustainable fisheries along the African Indian Ocean coast, to amend the IOTC Agreement in light of the post-UNCED developments and instruments. In the CECAF Area, the overexploitation of resources, fishing overcapacity and IUU fishing continues. The CECAF needs to be strengthened to act as a fullyfledged RFMO for shared stocks along the West coast of Africa, e.g. stocks of 112 Walmsey et al., ibid., pp. 25–30. 113 Ibid., p. 26. 114 Ibid., p. 38. 115 Ibid.

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octopus, hake, prawns and small-pelagics (sardines, horse mackerel). This would enable them to create their own legally binding regulations and enforce them through penalties and sanctions. The FPAs with the African countries have shown improvements in their potential to contribute to rational and sustainable exploitation of fisheries resources through the inclusion of e.g., an exclusivity clause which restricts overall fishing effort; flexibility to revise fishing opportunities in the light of scientific evidence; of technical measures, the focus on tuna stocks which lowered the pressure on demersal stocks; the clear commitment to combat IUU fishing. However, there are still a number of areas where improvements can be made. These include proper stock assessments and the realistic definition of effort limitation. The FPAs should also be based on the exploitation of the surplus stocks. FPAs require the EU fleets to comply with the RFMO rules. These RFMO rules are not as stringent as the conservation and management rules applicable within EU waters. The EU’s fishing vessels have a significant environmental impact within African waters, e.g. damage to benthic environments through bottom trawling, by-catch of purse seines and surface long-lines and discards. The EU external fleet should operate along standards as stringent as the regulations applying within EU waters, which is a matter of EU competence. Also the international fleet should be operating under the highest possible standards. Therefore, both the African States and the EU should continue, and even step up their efforts in furthering the implementation of the post-UNCED instruments both within CECAF and IOTC.

twenty-three

Climate Change and Evolving Regional Ocean Governance in the Arctic Tavis Potts and Clive Schofield

Introduction Climate change has had major impacts on the Arctic region, most dramatically exemplified by the severe and sustained downward trend in the region’s ice cover evident in recent summers. These ongoing environmental changes are leading to notable development opportunities, for example in terms of the gradual opening of long-blocked sea lanes and with respect to accessing valuable marine resources. These developments are, in turn, driving significant geopolitical and socio-economic shifts amongst Arctic nations and between Arctic nations and the international community. Consequently the Arctic has been the focus of unprecedented interest and attention in recent years. Much of the contemporary narrative on the Arctic tends to characterise the region as an arena for resource-driven jurisdictional and geopolitical rivalry among competing interested States. Such States primarily, but not exclusively, comprise the Arctic littoral States; in fact, considerable interest in the region has been shown by extra-regional powers.1 This chapter challenges salient aspects of this seemingly prevailing and remarkably persistent, yet arguably also rather misleading, vision of the Arctic as a potential or indeed likely zone of conflict. We provide first a contextual overview of climate change impacts on the Arctic. Key territorial and maritime jurisdictional developments are then addressed, and it is suggested that the maritime claims of the Arctic littoral States are in keeping with international norms. Emerging socioeconomic pressures in the Arctic system that have largely come to prominence in the context of a warming Arctic are then explored; in particular, suggestions that the Arctic may be a last great frontier for seabed oil and gas exploration is

1 See Chao, Chapter 24.

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critically examined. Similarly, the potential for Arctic navigational opportunities to transform global sea borne trade routes is put in context. These observations are underpinned by a detailed examination of developments at the sub-regional level through a case study of the Barents Sea. This approach illustrates how the complex challenges posed by changing environmental conditions, coupled with increasing socio-economic activity, are being addressed in practice. It is suggested that developments in the Barents Sea tell an alternative, and far more promising, Arctic story than the tales of competition and looming conflict generally associated with coverage of the Arctic in recent years. The Arctic and Climate Change Regardless of the contested debates on the causes and indeed existence of climate change, events in the Arctic in recent years provide especially vivid and compelling evidence of this phenomenon, well documented in scientific2 and media circles. Both the 2004 Arctic Climate Impact Assessment (ACIA)3 and the more recent 2009 Arctic Monitoring and Assessment Program (AMAP) update4 conclude that the Arctic continues to warm with key indicators such as air temperature and sea ice changing at rates previously unanticipated. A primary example is the observed downward trend in summer sea-ice cover over the last 30 years. Forecasts project that this trend will continue and indeed accelerate, leading to a long-term decline that potentially could result in a sea-ice-free summer period in coming decades.5 The retreat of sea ice has resulted in considerable speculation as to a corresponding increase in maritime activity across the Arctic. Despite an increase in political activity and the on-going excitement of the world’s press, however, very little industrial expansion has actually occurred in the Arctic. The ACIA and AMAP update highlight the Arctic’s sensitivity to climatic changes. Modelling forecasts in ACIA developed predictions on a range of future climatic scenarios based on the Intergovernmental Panel on Climate Change (IPCC) B2 scenario (a conservative emissions scenario). Predictions forecast significant regional temperature rises over the period 1990 to 2090. Projected annual temperatures estimated a uniform warming of up to 4°C. Greater warming is to be experienced in winter, with temperatures forecasted to rise by 5°C over 2 The key international publication is the IPCC 4th Assessment. See, Rajendra Pachauri and Andy Reisinger (eds.), Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Geneva, 2007), available at http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html. 3 Arctic Climate Impact Assessment (ACIA), Arctic Climate Impact Assessment: Impacts of a Warming Arctic (Cambridge, 2004). 4 Arctic Monitoring and Assessment Program (AMAP), Update on Selected Climate Issues of Concern (Oslo, 2009), 7, available at http://www.amap.no. 5 ACIA, Arctic Climate Impact Assessment, at 19.

climate change and evolving regional ocean governance 439 land and between 7 and 10°C over the Arctic Ocean and coasts.6 Observations of Arctic air temperatures have shown that rates are rising quicker than the initial modelling forecasts and are continually higher than 20th century averages.7 From land-based measurements, the annual mean air temperature for 2009 over Arctic land areas was cooler than in recent years (+1oC anomaly from the 1961–1990 mean). However, the last decade has remained the warmest on the record since observations beginning in 1900 with annual anomalies reaching +2oC.8 Since the initiation of satellite measurements 30 years ago, Arctic sea ice has been seen to decline dramatically, with the most extreme decline seen in the summer melt season. This has driven speculation in the media, government, and the public concerning the potential for development in the region as a result of reduced ice cover. In September 2007 the summer sea ice minimum had shrunk to its lowest level ever recorded since measurements began. The United States National Snow and Ice Data Centre (NSIDC) reported that the average five-day mean sea ice extent in September 2007 was 4.13 million square kilometres (km2) an enormous reduction from the 1979–2000 average of 6.74km2 million.9 Summer ice extents for subsequent years (2008–11) have closely tracked that for 2007, while not quite reaching that record low level. In 2008 average September ice extent was recorded as 4.67km2 million, the second lowest on record. In 2009, conditions recovered slightly to 5.36km2 million, but still 1.68km2 million below the average.10 The figure for 2010 reached a summer minimum of low point of 4.6km2 million recorded for 19 September 2010, the then third-lowest on record.11 These figures were described by NSIDC as a further indication of a “continuing long-term decline” in Arctic sea ice cover, strengthening predictions for a seasonally ice-free Arctic Ocean in 20–30 years.12 The figures recorded in the summer of 2011 reinforced the trend. On 9 September 2011 minimum Arctic sea 6 ACIA, Arctic Climate Impact Assessment, at 993. 7 AMAP, Update on Selected Climate Issues, 2. 8 National Oceanic and Atmospheric Administration (NOAA), Arctic Report Card: Update for 2010, March 7, 2011, available at http://www.arctic.noaa.gov/reportcard/atmosphere .html. 9 National Snow and Ice Data Centre (NSIDC), “Arctic Sea Ice Shatters All Previous Record Lows,” NSIDC Press Release, October 1, 2007, available at http://nsidc.org/news/ press/2007_seaiceminimum/20071001_pressrelease.html. 10 National Snow and Ice Data Center, “Arctic Sea Ice Extent Remains Low, 2009 sees third lowest mark,” NSIDC Press Release, available at http://nsidc.org/news/press/20091005_ minimumpr.html. 11 National Snow and Ice Data Center, “Arctic sea ice extent falls to third-lowest extent; downward trend persists,” NSIDC Press Release, October 4, 2010, available at http:// nsidc.org/news/press/20101004_minimumpr.html. 12 Clive Schofield, Tavis Potts and Ian Townsend-Gault, “Boundaries, Biodiversity, Resources, and Increasing Maritime Activities: Emerging Oceans Governance Challenges for Canada in the Arctic Ocean,” Vermont Law Review, 34 (Fall 2009): 35, 36–37.

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ice extent was 4.33km2 million. This represents a near-record and the second lowest figure on record (0.16km2 million greater than the 207 record minimum).13 In 2012 this long-term downward trend took a significant turn. September 16, 2012 recorded the lowest seasonal minimum extent in the satellite record since 1979, dropping to 3.41 million square kilometers. Arctic summer sea ice extent appears from the recorded data to be on a continual and long-term downward trend, losing 11.2% of volume per decade.14 Another factor in the decline of sea ice is the length of the melt season. It has been suggested that the later freeze-up is the dominant factor lengthening the melt season.15 Analysis of data from the last three decades shows that the summer Arctic sea-ice melt season now lasts nearly a month longer than it did in the 1980s. A later start of freeze-up and an earlier start to the melt season both contribute to the change in the extent and dynamics of sea ice. Extensive open water at the end of the summer melt season, combined with warmer autumns, delays the autumn freeze-up. The thinning of sea ice is also a driver of instability and decline. One study identified that the mean ice thickness within the central Arctic Ocean was reduced by 40% between the periods of 1958–76 and 1993–97 based on measurements from submarines.16 Recent research has highlighted how satellite measures of ice age can be used as a proxy for thickness and results have indicated considerable declines.17 These observations showed that in the winter of 2008 the average thickness of sea ice over the Arctic fell by 26cm (or 10%) compared with the aver-

13 D. Perovich, W. Meier, J. Maslanik and J. Richter-Menge, “Sea Ice,” Arctic Report Card: Update for 2011, National Oceanic and Atmospheric Administration (NOAA), available at http://www.arctic.noaa.gov/reportcard/sea_ice.html; see also, National Snow and Ice Data Center, “Summer 2011: Arctic sea ice near record lows” NSIDC Arctic sea ice news, available at http://nsidc.org/arcticseaicenews/. 14 National Snow and Ice Data Centre (NSIDC), “Arctic sea ice extent settles at record seasonal minimum,” NSIDC Press Release, September 19 2012, available at http://nsidc.org/ arcticseaicenews/2012/09/arctic-sea-ice-extent-settles-at-record-seasonal-minimum/. It is, however, worth noting that it has also been suggested that climate variability may result in periods of stabilization and possibly expansion in Arctic sea ice cover in “the next few decades,” even if only temporarily. See, “Arctic Ice Melt Could Pause in Coming Decades,” National Science Foundation, Press Release, Aug. 11, 2011, available at http://www.nsf.gov/news/news_summ.jsp?cntn_id=121359&WT.mc_id=USNSF_51&WT .mc_ev=click. 15 Thorstan Markus, Julienne Stroeve and Jeffery Miller, “Recent changes in Arctic sea ice melt onset, freezeup, and melt season length,” Journal of Geophysical Research, 114 (2009), C12024. Doi: 10.1029/2009JC005436. 16 D.A. Rothrock, Y. Yu, G.A. Maykut, “Thinning of the Arctic Sea Ice Cover,” Geophysical Research Letters, 26 (1999): 3469–3472. 17 Katherine Giles, Seymour Laxon, and Andy Ridout, “Circumpolar thinning of Arctic sea ice following the 2007 record ice extent minimum,” Geophysical Research Letters, 35 (2008), L22502.

climate change and evolving regional ocean governance 441 age thickness of the previous five winters. More concerning was the loss of sea ice in the Russian Arctic at rates higher than the average: in this region the thickness of sea ice fell by 49cm. The extent of older, thicker multiyear appears to be reducing and being replaced by seasonal ice that is far more likely to melt during warmer seasonal episodes. The most melting appears to be in areas including the Chukchi, East Siberian, and Laptev Seas which encompass the potential shipping route known as the Northern Sea Route (see below). Overall it is abundantly clear that the Arctic has and is continuing to undergo dramatic changes as a consequence of climate change. These shifts, notably but not exclusively with respect to increasing of temperatures, reductions in sea ice cover and thickness and concerning altered hydrology, will sustain significant impacts on Arctic social and ecological systems. Competition or Cooperation over Arctic Spaces and Resources? Suggestions that the Arctic is the focus of a multi-player “land grab”18 and resource access-related “scramble”19 or “race”20 have been widespread since reports of the substantial melting of Arctic summer sea ice cover emerged and particularly in the wake of Russia’s planting of its flag on the sea floor beneath the North Pole in 2007. Such imagery of a contested region has been sustained over time and are by no means merely confined to media analysis. For example, in October 2010 a senior NATO Commander, U.S. Navy Admiral James G Stavridis, supreme allied commander for Europe, warned that a warming Arctic and a race for resources could lead to a new “cold war” in the Arctic.21 Stavridis observed that: “For now, the disputes in the north have been dealt with peacefully, but climate change could alter the equilibrium over the coming years in the race of temptation for exploitation of more readily accessible natural resources,” and cited the melting of the Arctic ice cap as “a global concern” because of its potential to “alter the geopolitical balance in the Arctic heretofore frozen in time.”22 A strange sort of “land grab” Consistent with the apparently commonly held view of the Arctic as an area ripe for geopolitical and resource driven competition and potentially conflict,

18 David R. Sands, “Sea treaty sparks rivalries,” Washington Times, Nov. 12, 2007. 19 For example, see Ben. Leapman, “Denmark joins race to claim North Pole,” Sunday Telegraph, Aug. 14, 2007. 20 Michael Richardson, “Race is on for Arctic resources,” The Canberra Times, Sept. 10, 2007. 21 Terry Macalister, “Climate change could lead to Arctic conflict, warns senior Nato commander,” The Guardian, Oct. 11, 2010. 22 Ibid.

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unleashed by the melting of summer sea ice, is the perception of the maritime claims of the Arctic coastal States are symptomatic of this trend. In this context, claims to maritime jurisdiction on the part of the Arctic coastal States, including recent and forecast submissions related to extended continental shelf rights, and the actual or potential overlaps between them, have often been characterised as potential source of dispute and triggers for conflict. An alternative perspective is that the claims of the Arctic littoral States are, in fact, predominantly consistent with international norms. All of the Arctic coastal states, save for the United States, are parties to the United Nations Convention on the Law of the Sea (UNCLOS). Moreover, it is notable that the United States generally considers UNCLOS, and particularly those parts of it relating to maritime jurisdiction, as being reflective of customary internationa­­­­l law and pursues its oceans policy accordingly.23 Thus, all of the Arctic littoral states, including the United States, have advanced maritime jurisdictional claims consistent with the UNCLOS, notably 12 nautical mile (nm) breadth territorial seas and 200nm EEZs (see Figure 1).24 The maritime claims that have been made in the Arctic are therefore wholly in keeping with those made elsewhere around the world. Similarly, in accordance with the provisions of Article 76 of UNCLOS, the Arctic littoral States that are parties to UNCLOS have made, or are in the process of preparing, submissions related to the outer limits of the continental shelf seaward of the 200nm limits of claimed EEZs, to the relevant United Nations scientific body—the Commission on the Limits of the Continental Shelf (CLCS). While such submissions relating to so-called “extended” or “outer” continental shelf areas in the Arctic, have provoked considerable interest and debate, such submissions are also consistent with UNCLOS and are analogous to numerous submissions made elsewhere around the world.25

23 J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims 2nd edition (Leiden/Boston, 1996), 5–6. 24 The exception to this rule is Denmark which, on behalf of Greenland, claims a 200nm fishing zone rather than a 200nm EEZ. See Robin R. Chruchill, “Claims to Maritime Zones in the Arctic—Law of the Sea Normality or Polar Peculiarity?” in Alex G. Oude Elferink and Donald R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Leiden/Boston, 2001), 116–19. 25 For a global review of extended continental shelf submissions see, Robert Van de Poll and Clive Schofield, “A Seabed Scramble: A Global Overview of Extended Continental Shelf Submissions,” paper presented at the Advisory Board on the Law of the Sea (ABLOS) conference on Contentious Issues in UNCLOS—Surely Not? International Hydrographic Bureau Monaco, October 25–27, 2010, available at http://www.gmat .unsw.edu.au/ablos/ABLOS10Folder/ABLOS.htm. See also, Robert Van de Poll and Clive Schofield, “Exploring to the Outer Limits: Securing the Resources of the Extended Continental Self in the Asia-Pacific,” paper presented at the Advisory Board on the Law of the Sea (ABLOS) conference on UNCLOS in a Changing World, International Hydrographic Bureau Monaco, October 3–5, 2012.

Figure 1. Arctic Maritime Claims and Boundaries.

Source: Clive Schofield and Andi Arsana, 2012.

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Although by no means all of the potential maritime boundaries in the Arctic Ocean have been delimited, this cannot be considered as remarkable given the incomplete nature of the maritime political map of the world such that the majority of potential maritime boundaries around the world remain un-delimited.26 Thus, while the Arctic is not free of maritime jurisdictional disputes, in fact this merely means that the region is similar to most other maritime spaces. In fact, it can be argued, however, that the Arctic is subject to fewer disputes than elsewhere. For example, the Arctic is largely blessed by an absence of the disputes over territory that frequently complicate efforts towards maritime boundary delimitation elsewhere. In the Arctic such sovereignty disputes are essentially confined to the Canadian-Danish dispute over tiny Hans Island, which has an area of just over 1km2, located in the Nares Strait between Ellesmere Island and Greenland. Moreover, this dispute did not prevent the two States from settling their continental shelf boundary delimitation in 1973.27 That overlapping claims to maritime jurisdiction exist in the Arctic, for instance between Canada and the United States in the Beaufort Sea, is also unremarkable. Maritime boundary disputes are by no means a peculiarity of the Arctic Ocean and numerous overlapping claims areas exist throughout the world ocean. Indeed, Canada and the United States share disputed maritime boundary situations in the Pacific Ocean (Juan de Fuca Strait and Dixon Entrance) and Atlantic Ocean (Gulf of Maine) as well as the aforementioned dispute in the Arctic Ocean.28 Further, it is certainly the case that the semi-enclosed nature of the Arctic Ocean will tends to lead to a convergence in maritime entitlements. Indeed, the majority of the central Arctic Ocean is understood to be likely to be subject to extended continental shelf submissions with the likely exception of four ‘donut holes’ (see Figure 1).29 However, it is also the case that many such submissions made elsewhere also overlap. This point is reinforced by calculations that extended continental shelf submissions made worldwide encompass approximately 30 million km2 and of this figure in excess of 2.7 million km2 of seabed is subject to competing claims.30 It is also worth pointing out that the Arctic littoral States,

26 J.R. Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, (Leiden/Boston, 2005) at 217–218. 27 See Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries, Vol. I, (The Hague, 1993), at 371–385. 28 See, David H. Gray, “Canada’s unresolved maritime boundaries,” Boundary and Security Bulletin, 5 (Autumn 1997): 61–70. While it can be observed that the Canada-U.S. boundary in the Gulf of Maine is partially resolved, the two countries still dispute sovereignty over Machias Seal Island within the Gulf of Maine. 29 Ron Macnab, “The Outer Limit of the Continental Shelf in the Arctic Ocean,” pp. 301–311 in Myron H. Nordquist, John Norton Moore & Thomas H. Heidar (eds.), Legal And Scientific Aspects of Continental Shelf Limits, (Leiden/Boston, 2004). 30 Van de Poll and Schofield, “Exploring to the Outer Limits: Securing the Resources of the Extended Continental Self in the Asia-Pacific”.

climate change and evolving regional ocean governance 445 along with coastal States worldwide are to a large extent merely reacting to a deadline for making outer continental shelf limit submissions to the CLCS, rather than acting in an overtly expansionistic or aggressive manner. The coastal States involved potentially faced losing out on valuable maritime jurisdictional rights if submissions were not prepared in time. The original deadline for submissions on the outer limits of the continental shelf was set as being ten years after the entry into force of UNCLOS.31 As the Convention entered into force on November 16, 1994, this translated to a submissions deadline of November 16, 2004. However, as the Commission itself was only established in 1997 and in light of indications that many interested States would struggle to prepare their submissions in time, the deadline was pushed back to 10 years after the adoption of the Commission’s Scientific and Technical Guidelines on May 13, 1999, giving a fresh submissions deadline of May 13, 2009. States which became parties to UNCLOS after May 13, 1999 have ten years from their becoming parties in order to make submissions however and the same will apply to any new parties to UNCLOS. Both Russia (December 2001) and Norway (on behalf of Spitzbergen, December 2006) have made submissions.32 In 2002, the Commission indicated that Russia should make a revised submission and Russia has reportedly been engaged in substantial efforts to gather additional information to support a revised submission.33 In this context, it remains to be seen how the Commission will deal with the complex and contentious issue of submarine ridges in the Arctic Ocean.34 The Commission provided Norway with recommendations on the outer limits of its continental shelf on March 27, 2009.35 The deadline for submission for Canada is 2013 and Denmark the following year, ten years after each of these States became

31 UNCLOS, Annex II, Article 4. 32 The executive summaries of these submissions are available on the Commission’s website at http://www.un.org/Depts/los/clcs_new/commission_submissions.htm. 33 United Nations, Report of the Secretary-General on Oceans and the Law of the Sea, 41, delivered to the General Assembly, U.N. Doc. A/57/57/Add.1 (Oct. 8, 2002). 34 The key difficulty here is distinguishing between “submarine elevations” and “submarine ridges” (UNCLOS, Article 76(5) and 76(6)) and determining how the cut-off lines provided for in Article 76 should be applied to such features. Much has been written on this problematic issue. See generally Philip A. Symonds, Mike F. Coffin, George Taft and Hideo Kagami, “Ridge Issues,” pp. 285–307 in Peter J. Cook & Chris M. Carleton (eds.), Continental Shelf Limits: The Scientific and Legal Interface (Oxford, 2000); and, Ron MacNab, “Submarine Elevations and Ridges: Wild Cards in the Poker Game of UNCLOS Article 76,” Ocean Development and International Law, 39 (2008), 223. 35 United Nations Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006 (March 27, 2009), available at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_nor.htm# Recommendations_.

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parties to UNCLOS.36 As a non-party to UNCLOS, no deadline has been set for the United States. The United States has, however, been actively gathering data, for example through joint survey activities with Canada, that could ultimately form part of a submission to the Commission should the United States eventually become a party to UNCLOS.37 Suggestions that the Arctic littoral States are engaged in a form of “land grab”38 therefore seem misplaced. While coastal states are engaged in a race of sorts to gather the scientific information, all are doing so in accordance with the terms of UNCLOS.39 It is also the case that significant diplomatic and scientific cooperation among the interested States does take place. For example, Arctic coastal States have indicated to the CLCS that they have no objection to the submissions of their Arctic neighbours being considered by the Commission without prejudice to the delimitation of maritime boundaries.40 Thus, whilst there have clearly been enhanced efforts on the part of the Arctic littoral States to advance and underpin their maritime and territorial claims, these are in keeping with the actions of coastal States worldwide. Moreover, recent events have shown that even longstanding maritime boundary disputes are capable of resolution. Of particular note in this context is the resolution, through a treaty on the delimitation of a maritime boundary, of Norway and Russia’s longstanding dispute over the Barents Sea. Through the agreement, signed on April 27, 2010, the two sides agreed to divide up an overlapping area of approximately 175,000km2. This overlap was essentially caused by Norway’s preference for a median line and Russia’s insistence on a sector line solution. The boundary agreement involves a single maritime boundary for EEZ and continental

36 UNCLOS, Table Recapitulating the Status of the Convention and of the Related Agreements as of July 10, 2009. 37 See, for example, “U.S.-Canada Arctic Ocean survey partnership saved costs, increased data,” National Oceanic and Atmospheric Administration (NOAA), Dec. 15, 2011, available at http://www.noaanews.noaa.gov/stories2011/20111215_arctic.html. 38 David R. Sands, “Sea treaty sparks rivalries,” Washington Times, Nov. 12, 2007. 39 Ibid. 40 Both Russia and Denmark (on behalf of Greenland) indicated that they consented to the Commission proceeding to examine Norway’s submission without prejudice to the delimitation of maritime boundaries at a later stage. See, UN Division for Ocean Affairs and the Law of the Sea, Commission on the Limits of the Continental Shelf [CLCS], Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baselines: Reaction to the Submissions to the Commission made by the Kingdom of Norway, note from Denmark (Jan. 24, 2007), available at http://www.un.org/Depts/los/clcs_new/submissions_ files/submission_nor.htm; UN Division for Ocean Affairs and the Law of the Sea, Commission on the Limits of the Continental Shelf [CLCS], Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baselines: Reaction to the Submissions to the Commission made by the Kingdom of Norway, note from the Russian Federation, (Feb. 21, 2007), available at http://www.un.org/Depts/los/clcs_new/submissions_files/ submission_nor.htm.

Figure 2. The Norway-Russia Maritime Boundary.

Source: Clive Schofield and Andi Arsana, 2012, adapted from UNEP, 2010.

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shelf rights out to the 200nm limit from the mainland coasts of the parties, a continental shelf boundary with respect to the so-called “Barent Sea Loophole” beyond 200nm from either State’s baselines, and a delimitation through the northern Barents Sea for the continental shelf and also the Norwegian fisheries protection zone defined on behalf of Svalbard and the Russian EEZ (generated from the islands of Franz Josef Land and Novaya Zemlya) (see Figure 2).41 Russian President Medvedev termed the agreement a way for the two States to “turn a new page” in relations and “a key step forward” whilst Norwegian Prime Minister Jens Stoltenberg referred to the treaty as a “historic milestone” and “new era of cooperation.”42 In a joint statement both leaders hailed the agreement as a symbol of the Arctic as peaceful region where disputes resolved in accordance with international law.43 The agreement was ratified by the Norwegian parliament on February 8, 2011 and by Russia’s State Duma on March 25, 2011. President Medvedev signed the ratified agreement on April 8, 2011, with the treaty to become law 30 days thereafter. On July 7, 2011, the Foreign Ministers of the two countries, Jonas Gahr Støre of Norway and Sergei Lavarov of the Russian Federation, exchanged instruments of ratification on the Treaty on Maritime Delimitation and Cooperation in the Barents Sea and Arctic Ocean.44 This peaceful settlement of a long-running and previously apparently intractable boundary dispute in the Arctic runs distinctly counter to the aforementioned narrative of increasing rivalry and potential conflict in the region. An Arctic Resource Race? Driven by the sustained decline in summer sea ice cover and hence increasing access, economic activity in the Arctic is clearly on the rise. For example, the Arctic is home to important stocks of living natural resources. Arctic fisheries, which are generally well managed, already contribute a significant share of the global supply of fish for human consumption and exploitation of these resources is increasing. This trend is highlighted by the case study of the Barents Sea below. There have also been suggestions that the Arctic offers great potential in terms of seabed energy resources and even represents the “last great frontier” for oil and gas exploration. This notion has created much excitement, especially in the media 41 For an analysis of the agreement see, Tore Henriksen and Geir Ulfstein, “Maritime Delimitation in the Arctic: The Barents Sea Treaty,” Ocean Development and International Law, 42 (2011): 1–21. 42 “Stoltenberg: A historic day!,” The Norway Post, 27 April 2010, http://www.norwaypost .no/news/stoltenberg-a-historic-day.html. 43 Ibid. 44 Norway Ministry of Foreign Affairs, “Norway and Russia ratify treaty on maritime delimitation,” Press Release, June 7, 2011, available at http://www.regjeringen.no/en/ dep/ud/press/news/2011/maritie_delimitation.html?id=646614.

climate change and evolving regional ocean governance 449 and tends to underpin the idea of a “race for resources” in the Arctic, especially when conflated with the jurisdictional developments mentioned above. The perception of the Arctic as a source of major natural resources, and in particular energy resources, has influenced the direction of policy debate. For example, in one of the final acts of his presidency, outgoing U.S. President George W. Bush, issued a National Security Directive stating that “[e]nergy development in the Arctic region will play an important role in meeting growing global energy demand” because of the “substantial portion” of global undiscovered energy resources thought to exist there.45 Similarly, the Norwegian and Russian Foreign Ministers, when announcing the exchange of instruments of ratification for the treaty on maritime delimitation in the Barents Sea and Arctic Ocean, framed the agreement in resource access terms. For example, the Norwegian Foreign Minister, whilst suggesting that the treaty “made it clear that there is no ongoing race for resources in the Arctic,” stated that close bilateral cooperation on fisheries in the Barents Sea would continue and that the agreement also “creates new opportunities for petroleum activities and cooperation” in the Barents Sea.46 The latter view is supported by the pronouncements of the United States Geological Survey (USGS). In 2001 a USGS survey claimed the Arctic could hold 25% of the world undiscovered oil resources.47 Subsequently, the USGS’s 2008 Circum-Arctic Resource Appraisal strongly reinforced the view that the Arctic holds great promise in terms of seabed energy resources. This assessment pointed to the existence of over seven million km2 of Arctic continental shelf areas under less than 500 meters of water.48 Furthermore, it posited that these shallow continental shelf areas “may constitute the geographically largest unexplored prospective area for petroleum remaining on Earth.”49 The USGS report went on to conclude that, overall, the Arctic may hold around 22% of undiscovered, technically recoverable resources globally50, potentially consisting of 90 billion 45 Memorandum from The White House Office of the Press Secretary, Presidential Directive on Arctic Region Policy, § III(B)(5) (Jan. 9, 2009), available at http://www.nsf.gov/ od/opp/opp_advisory/briefings/ may2009/nspd66_hspd25.pdf. 46 Norway Ministry of Foreign Affairs, “Norway and Russia ratify treaty on maritime delimitation,” Press Release, June 7, 2011, available at http://www.regjeringen.no/en/ dep/ud/press/news/2011/maritie_delimitation.html?id=646614. 47 It is notable that the USGS findings relate to undiscovered oil and that a summary of the report does not, in fact, even make mention of the Arctic specifically. See, http:// pubs.usgs.gov/fs/fs-062–03/FS-062–03.pdf. 48 Peter H. Shauffer (ed.), Circum-Arctic Resource Appraisal: Estimates of Undiscovered oil and Gas North of the Arctic Circle Circum-Arctic Resource Appraisal Assessment Team, (United States Geological Survey, 2008), para.3, available at http://pubs.usgs.gov/ fs/2008/3049/fs2008-3049.pdf. 49 Ibid. 50 United States Geological Survey (USGS) “90 Billion Barrels of Oil and 1,670 Trillion Cubic Feet of Natural Gas Assessed in the Arctic,” Press Release, July 23, 2008, http:// www.usgs.gov/newsroom/article.asp?ID=1980&from=rss_home.

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barrels of oil (13% of global undiscovered oil); 1,669 trillion cubic feet of natural gas (30% of undiscovered gas); and 44 billion barrels of natural gas liquids (20% of undiscovered liquids).51 Critically, however, it is important to note that, as a result of the difficulties of gathering data in the Arctic’s harsh conditions, the USGS findings were based on a “probabilistic” analytical methodology.52 Other surveys, including ones founded on detailed geoscientific analysis of individual Arctic basins, ground-truthed by oil industry data on exploration wells and existing discoveries, offers a significantly less optimistic picture.53 Moreover, the USGS assessment deals in oil and gas resources rather than recoverable reserves. This distinction is vital. Even if an optimistic estimated recovery rate of 35% of oil reserves translating to proven reserves (rather than the industry “rule of thumb” of 10% for frontier provinces), the USGS’s figure of 90 billion barrels of oil rapidly scales down to potential reserves of 31.5 billion barrels. When it is considered that global consumption of conventional oil (i.e. crude oil and condensates) totaled approximately 26.9 billion barrels in 2010 alone,54 the potential significance of Arctic oil in global context is thrown into stark relief. Further, even if the Arctic seabed does contain globally significant hydrocarbon resource potential, enormous challenges to exploring for, exploiting, and transporting these resources remain and these factors have both economic and environmental dimensions which are likely to impact on the case to develop unconventional Arctic energy resources. In particular, it appears likely that subsea technology, which can operate underneath sea ice cover, will be required.55 Furthermore, both of the studies mentioned above agree that the Arctic is likely to be predominantly gas-prone. This necessarily has implications for the development of these resources because remote gas presents considerable transporta51 USGS, Circum-Arctic Resource Appraisal, 7. 52 Ibid., 4. 53 The joint Wood MacKenzie and Fugro Robertson study, Future of the Arctic, released on November 1, 2006, provided estimates of three million barrels of oil per day and five million barrels of gas equivalent per day at peak production. Press Release, Wood Mackenzie & Fugro Robertson, Future of the Arctic (Nov. 1, 2006) as reprinted in Dave Cohen, “Arctic Dreams,” Energy Bulletin, Apr. 25, 2007, http://www.energybulletin .net/node/29151. Overall, the November 2007 report concluded that its findings were “disappointing from a world oil resource base perspective” and “calls into question the long-considered view that the Arctic represents one of the last great oil and gas frontiers and a strategic energy supply cache for the United States.” Wood Mackenzie & Fugro Robertson, “Arctic role Diminished in World Oil Supply,” 234 Pipeline & Gas Journal 234 (February 2007), 2, available at http://www.epmag.com/archives/newsAnalysis/102 .htm. 54 U.S. Energy Information Administration (EIA) 2011, available at http://www.eia.doe .gov/. 55 Press Release, Wood Mackenzie & Fugro Robertson, “Exploration in the Arctic has a Long Term Future,” (Nov. 15, 2006) as reprinted in Dave Cohen, Arctic Dreams, Energy Bulletin, Apr. 25, 2007, http://www.energybulletin.net/node/29151.

climate change and evolving regional ocean governance 451 tion challenges. Consequently, the exploitation of a large portion of Arctic seabed resources appears unlikely in the near-term.56 It is also worth noting that the oil and gas bearing sedimentary basins that have been identified in the Arctic predominantly fall within 200nm of the coast. Thus, these areas are mostly within the declared EEZs of the Arctic littoral states, a fact that somewhat undermines the media portrayals of an Arctic resource freefor-all in respect of outer continental shelf.57 Accordingly, perceptions of the potential a potential Arctic energy resource bonanza seem far-fetched, at least in the short to medium-term. Indeed, were the USGS’s optimistic scenario even to be realized, it can be argued that this would be likely to have only a minimal impact on global oil scenarios and certainly would not be likely to provide a magical “silver bullet” in the face of global or regional energy security concerns. This is not, however, to suggest that the Arctic, and particularly sub-Arctic areas, will not witness increasing oil and gas exploration activity and development, as demonstrated in the Barents Sea (see below) or that such developments will not be of significance on a regional or countryby-country basis. Nevertheless, it is suggested that the lure of Arctic oil resources should be set in global context and the potentialities not overestimated. Potential and Actual Arctic Navigation Routes Conventional wisdom suggests that as the Arctic warms, so sea ice coverage will be reduced and thus the seasonal Arctic navigational “window” will expand.58 Indeed, a key finding of the ACIA report was that “[r]educed sea ice is likely to increase maritime transport and access to resources.”59 This scenario has stirred long-standing, but also long-dormant, dreams of the opening of shipping routes between the Atlantic and the Pacific Oceans by way of the Arctic: namely the Northwest Passage and the Northern Sea Route (formerly known as the Northeast Passage). Indeed, even a transpolar “over-the-top” route has been suggested.60 It is not difficult to understand the abiding lure of these routes. The Northwest Passage offers a staggering 9,000km (4,860nm) distance saving over the traditional

56 Tavis Potts and Clive Schofield, “The Arctic: A Race for Resources or Sustainable Development?” Ocean Challenge, 19 (2009): 19–29. 57 Donald L. Gautier et al., “Assessment of Undiscovered Oil and Gas in the Arctic,” 324 Science, (2009), 1175, 1175–77 (illustrating location of oil and gas bearing sediments). 58 Claes L Ragner, Den norra sjövägen, Barents—ett gränsland i Norden [The Northern Sea Route, The Barents—A Nordic Borderland] (Torsten Hallberg [ed.], Fridtjof Nansen Inst. tran., 2008), http://www.fni.no/publ/marine.html. 59 Susan Joy Hassol, Impacts of a Warming Arctic: Arctic Climate Impact Assessment: Arctic Climate Impact Assessment (ACIA), (Cambridge, 2004), at 11, available at http://www .acia.uaf.edu. 60 See Hon. Norman Yakeleya, Member of the Legislative Assembly of the Northwest Territories, Statement to the Legislative Assembly (June 2, 2008), available at http://www .exec.gov.nt.ca/currentnews/speechDetails.asp?varStatement_ID=684.

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route between Europe and Asia via the Panama Canal and a 17,000km (9,180nm) saving as compared with the Cape Horn route.61 Navigation traffic in the Arctic is clearly on the rise, led by increasing instances of “adventure cruising”62 in Arctic waters, increased support traffic for oil and gas developments on the periphery of the Arctic, and to some extent from the pursuit of migrating stocks by fishing fleets.63 Furthermore, satellite imagery showed the Northwest Passage to be icefree at the September ice-minimum in 2007 and 2008.64 Dreams of the opening up of Arctic sea lanes and the transformation of global sea borne trade patterns have been encouraged by recent commercial transits of, particularly, the Northern Sea Route. For example, two heavy lift vessels of Germany’s Beluga shipping group, the Beluga Fraternity and Beluga Foresight successfully completed what was billed as the first commercial transit of the Northern Sea Route (sailing from Pusan in Korea to Hamburg in Germany) between July and September 2009.65 Whilst these vessels were relatively small (12,744 deadweight-tons [dwt]), 2010 saw the passage of the SCF Baltica, being the first hightonnage tanker through the Northern Sea Route. The Baltica departed Murmansk on 14 August 2010 and arrived in Ningbo, China on September 6, 2010 carrying a cargo of 70,000 tonnes of gas condensate. The 22-day voyage was estimated to be twice as fast as would be expected on the alternative route via the Suez Canal.66 This trend was reinforced in 2011 by multiple commercial transits of the Northern Sea Route, including the first passage of a Suezmax-class supertanker, the 162,000dwt Vladimir Tikhonov, which took just seven and a half days to sail from Novaya Zemlya to the Bearing Strait.67 Despite the excitement caused by these ground-breaking voyages, there exist strong reasons to doubt the viability of such routes for large-scale, regular interoceanic transportation in the near-term. The first and most obvious factor that mitigates against the use of the Arctic sea lanes for regular inter-oceanic transits 61 Katherine J. Wilson et al., “Shipping in the Canadian Arctic: Other Possible Climate Change Scenarios,” Geoscience & Remote Sensing Symposium, IGARSS ’04 Procedings, 3 (2004) 1853, 1853. 62 B. Stonehouse, “Polar Environments,” in David B. Weaver (ed.), The Encyclopedia of Ecotourism (Wallingford, U.K., 2001), 219, 227. 63 Ibid. at 84. 64 Press Release from the National Snow and Ice Data Center, Arctic Sea Ice Reaches Annual Minimum Extent (Sept. 17, 2009) http://nsidc.org/arcticseaicenews/. 65 Clive Schofield and Tavis Potts, “Across the Top of the World? Emerging Arctic Navigational Opportunities and Arctic Govenance,” Carbon and Climate Law Review, 3 (2009): 472–482. 66 Maritime Information Centre, “SCF Baltica completes her voyage from Murmansk to Ningbo (China),” September 9, 2010, available at http://www.micportal.com/index .php?option=com_content&view=article&id=4337:scf-baltica-completes-her-voyagefrom-murmansk-to-ningbo-china&catid=21:world-ports&Itemid=32. 67 See, “Supertanker sets speed record on Northern Sea Route,” Barents Sea Observer, September 1, 2011, available at http://www.barentsobserver.com/supertanker-sets-speedrecord-on-northern-sea-route.4954241-16149.html.

climate change and evolving regional ocean governance 453 is that, while these waterways in question may well be ice-free at the end of the Arctic summer, the Arctic navigational “window” is still narrow.68 For much of the year, and year-round in the event of a cold summer, ice is likely to remain a key factor and a threat to safety of navigation.69 Indeed, even in a relatively icefree summer, wind-blown ice may impede and delay navigation. The hazardous nature of navigation in the Arctic will necessarily have implications in terms of operating costs, both as a result of the need to use ice-strengthened vessels with ice-breaker support in some cases and potentially vast increases in insurance costs (if insurers can, in fact, be found).70 Despite shorter transit distances, these factors are likely to entail delays and increased costs which will tend to erode the savings offered by substantially reduced transit distances.71 Furthermore, there have been indications that even with a rise in temperatures, there will be only a marginal lengthening in the summer sailing season. In fact, navigation through the Northwest Passage in particular may even become considerably more hazardous as softer first-year ice in the channels between the islands of the Canadian Arctic archipelago melts and causes hard multi-year sea ice from the central Arctic Ocean to drift into and essentially “fill up” the Northwest Passage.72 Nevertheless, it is clear that Arctic navigation is on the rise and the opportunities offered by Arctic sea lanes are highly likely to be investigated further in the future. Thus, even though significant challenges remain and such developments should be kept in perspective, great potential does exist. Increasing shipping activity in the Arctic has prompted efforts on the part of littoral States, especially Russia and Canada, to exert more control over navigation, largely on environmental grounds, which, in turn, has sharpened already existing disputes with States such as the United States over navigational freedoms through what the United States views as straits used for international navigation. The Arctic and other states have also sought to enhance safety of navigation in the Arctic through the Polar Code.73 68 See, Ragner, Claes, L. “The Northern Sea Route,” English translation of chapter published in Swedish in the Norden Association’s 2008 Yearbook: Ragner, Claes, L. “Den norra sjövägen,” in T. Hallberg (ed.), Barents—ett gränsland i Norden, (Stockholm, 2008): 114– 127, available at http://www.norden.se. See also, Schofield, Potts and Townsend-Gault, “Boundaries, Biodiversity, Resources, and Increasing Maritime Activities,” 40–42. 69 See Patrick R.M. Toomey, “Global Warming: Arctic Shipping,” Meridian (Canadian Polar Commission, Ottawa, Ont.), Fall/Winter 2007, at 10, available at http://www.polarcom .gc.ca/media.php?mid=3278. 70 Ibid. at 10. 71 Ibid. at 10. See also Potts & Schofield, The Arctic: A Race for Resources or Sustainable Development? at 22–23. 72 Katherine J. Wilson et al., “Shipping in the Canadian Arctic”, at 1854. See also Potts & Schofield, The Arctic: A Race for Resources or Sustainable Development? at 50. 73 It was reported in October 2010 that further progress had been made in the development of a mandatory Code for ships operating in polar waters. The move to adopt a mandatory Code follows on the 2009 adoption of Guidelines for ships operating in polar waters on the part of the IMO Assembly (Resolution A.1024(26)). See, “Mandatory Polar Code Further Developed,” International Maritime Organization (IMO), Sub-Committee on

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Indeed, a number of the obstacles to the use of Arctic navigational routes are likely to be countered by technological advances and infrastructure investments on the part of Arctic coastal states. Such developments include improved vessel design, port upgrades, improved positioning technologies and charting and improved access to up to date metrological information. These improvements may in combination serve to lengthen the Arctic summer sailing window. Moving Beyond and Across Boundaries: Regional Governance in the Barents Sea Several Arctic nations have progressed along a path of “ecosystem based” marine planning to address climate, industrial and conservation issues. Large scale marine planning is a long term exercise that places considerable demands on human resources, scientific effort and political will. While the “success” of long term marine policy is difficult to define, the salient criteria are the implementation of multi-sector dialogues and adaptive planning, conservation of important and representative habitats and species, development of diverse and economically stable industries, and a process that engages all sectors. While these criteria can be seen as universally applicable to any marine region, the Arctic is facing a unique set of challenges,74 including fragile ecosystems, severe and changing climatic conditions, resource based economies, political vulnerability, and a region challenged by limited infrastructure capacity when global demand for its resources is rising. Case Study: The Barents Sea The Barents is a region of high social and economic importance to Norway and Russia and a region of high marine productivity. The marine region is three times the size of Norway and connects with the Norwegian Sea to the west, the Arctic Ocean to the north, and to the coast of Novaya Zemla to the east. It covers an area of approximately 1.4 million km2 and is a shallow shelf system with an average depth of 230m and a maximum depth of about 500m at the western end of Bear Island (Figure 1). Despite the Barents Sea forming approximately 7% of the total

Ship Design and Equipment (DE)—54th Session, Oct. 25–29, 2010, October 29, 2010, available at http://www.imo.org/mediacentre/meetingsummaries/de/pages/de-54thsession.aspx. 74 Janelle Kennedy, Art Hanson, and Jack Mathias, “Ocean Governance in the Arctic: A Canadian Perspective,” in Chua Thia-Eng, Gunnar Kullenburg and Danilo Bonga (eds.), Securing the Oceans: Essays on Ocean Governance Global and Regional Perspectives (PEMSEA, GEF, IMO, Philippines, 2008), 629–668.

climate change and evolving regional ocean governance 455 sea area of the Arctic, the greater part of all Arctic maritime resource activity is found here due to the predominantly ice free conditions. The Barents Sea is a highly productive and diverse ecosystem. It is an important nursery area for fish stocks that provide the basis for significant fishing and food for marine mammals and seabird colonies.75 Primary production supports a diverse ecosystem of fish, marine mammals, whales; and polar bears. The dynamics and distribution of fish populations are influenced by the oceanography of the Barents and surrounding ocean basins. Many fish stocks of the North Sea and Northeast Atlantic spend part of their life in the colder northern waters, for example Spring Spawning herring and Atlantic cod. For other species like polar cod and capelin, the Barents Sea is a spawning ground, nursery and feeding area.76 Capelin is a critical species in the polar food web. It transports energy from the ice edge to the southern coastal regions. It is prey for species including seabirds, mammals and commercially important fish stocks. Over the past 25 years three crashes of the capelin stock have been recorded.77 The productivity does not only extend to the water column. There is a rich community of benthic species in the Barents Sea. This rich and sensitive benthic fauna includes cold water coral reefs and sponge communities, however little is known on the full distribution and status of benthic systems.78 Norwegian waters contain the largest accumulation of Lophelia (cold water coral) reefs discovered to date. This includes the largest reef complex discovered to date (Sula Reef, 14km in length and measuring up to 30m in height) and the shallowest (Trondheimfjord in water of 39 m depth) cold-water coral reefs in the world.79 The dominant maritime industry in the Barents Sea is fishing, with economically important fishing grounds off the Norwegian coast. The target stocks vary by year and season; they include cod, haddock, halibut, capelin, redfish and shrimps. Cod and haddock are key commercial stocks for Norway and Russia, and under the (increasing) quotas set by the Norwegian-Russian Fisheries Commission under advice from the International Council for Exploration of the Sea (ICES),

75 P. Arneberg, O, Korneev, O, Titov, J.E. Stiansen (eds.), Joint Norwegian-Russian environmental status 2008 Report on the Barents Sea Ecosystem. Part I—Short version (IMR/ PINRO Joint Report Series 2009), available at http://www.regjeringen.no/upload/MD/ Vedlegg/Svalbard%20og%20polaromraadene/imr-pinro_2009.pdf. 76 Ibid. 77 Ibid. 78 Norwegian Government, Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands, Report No. 8 to the Storting (Oslo, 2006), 144pp. 79 Lophelia.org (website), Norway. Available at http://www.lophelia.org/norway; National Oceanic and Atmospheric Administration (NOAA), Arctic Report Card: Update for 2010, March 7, 2011, available at http://www.arctic.noaa.gov/reportcard/atmosphere .html.

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it is considered to be a well managed fishery. Quotas for the main species of cod and haddock have increased for the past two years on the basis of productive stocks and joint management measures from the joint Commission.80 In 2010 the cod quota was set at 607,000 tonnes, the haddock quota was 243,000 tonnes.81 In 2011, a further unprecedented increase has been agreed by the Commission. For cod, 2011 quotas are set at 703,000 tons and an increase of 16% over 2010. Haddock was set at 303,000 tonnes, an increase of 25% over 2010. Capelin quota for 2011 was set at 380,000 tonnes, an increase of 5.5% over 2010 in accordance with the recommendation by ICES.82 While fishing remains the dominant maritime activity, oil and gas exploration and development is expanding. Until recently, there was minimum development in the region apart from the existing fields of the Snohvit gas field and Goliat oil field in the Norwegian sector and the Shtokman development in the Russian sector. Snohvit was the first offshore development in the Barents Sea and is the world’s most northerly offshore gas field. Snohvit does not use surface installations and extracts on a daily basis 20.8 million standard cubic metres of natural gas liquids and condensate that is pumped 143km to the plant onshore in Hammerfest, Norway.83 Snohvit has experienced several technical problems that resulted in years of delay to full production.84 Snohvit will also store 700,000 tonnes of carbon dioxide under the Barents Sea in a stable geological formation.85 In the Russian sector the Shtokman development is a major gas operation that involves the companies Gazprom (51% shareholder), Total (25% shareholder) and Statoil (24% shareholder). The conditions in the Arctic present difficult technical challenges which, combined with an uncertain gas market has delayed produc-

80 Fisheries.no, Fisheries Collaboration with Russia. Last updated May 6, 2010, available at http://www.fisheries.no/resource_management/International_cooperation/Fisheries_ collaboration_with_Russia/. 81 Ministry of Fisheries and Coastal Affairs, Agreement on Norwegian-Russian fisheries for 2010. October 19, 2009, available at http://www.regjeringen.no/en/dep/fkd/ Press-Centre/Press-releases/2009/agreement-on-norwegian-russian-fisheries.html? id=579383. 82 Ministry of Fisheries and Coastal Affairs, Agreement in the Joint Norwegian–Russian Fisheries Commission on quotas for 2011. Oct. 6, 2010, available at http://www .regjeringen.no/en/dep/fkd/Press-Centre/Press-releases/2010/Agreement-in-the-JointNorwegianRussian-Fisheries-Commission-on-quotas-for-2011-.html?id=619744. 83 “Snovhit,” Statoil, Sept. 10, 2007, updated Sept. 3, 2011, available at http://www.statoil .com/en/ouroperations/explorationprod/ncs/snoehvit/pages/default.aspx. 84 “Snøhvit Nears Full Scale Production,” Barents Observer, December 26, 2008, available at http://www.barentsobserver.com/snohvit-near-full-scale-production.4540113-16149 .html. 85 “Carbon Storage started on Snohvit,” Statoil, April 23, 2008, available at http://www .statoil.com/en/NewsAndMedia/News/2008/Pages/CarbonStorageStartedOnSn%C3% B8hvit.aspx.

climate change and evolving regional ocean governance 457 tion by three years from 2013 to 2016 for pipeline gas and from 2014–2017 for liquefied natural gas.86 The key reason for the delay centres on changes in European and United States gas markets influencing the operational timeline of the Shtokman operation. A dip in European demand and a surge in unconventional North American shale gas output has altered the export prospects of the development. Discovery of unconventional “shale” gas in the United States has reduced demand and altered the business case for the development of unconventional resources. Gazprom indicates that it will likely export the majority of the gas to Europe when markets stabilise.87 The Snohvit and Shtokman developments in the Barents region highlight the financial, environmental and technical challenges inherent in exploration and development of oil and gas in the Barents. Until recently, extensive drilling in the Norwegian sector had revealed little finds of commercial significance. However, recent news indicates that oil development will expand significantly. On of April 1, 2011, a major discovery was made in the southern Norwegian sector of the Barents. The Skrugard prospect, 200km off the coast of Finmark and 100km north of the Snohvit field, is believed to contain recoverable reserves of 150 to 250 million barrels of oil equivalent with the potential for another 250 million with further development.88 The Barents Sea Integrated Management Plan In 2002, the Norwegian Parliament developed an oceans policy89 that was adopted in 2006 and proposed an ecosystem based and integrated oceans management regime. The policy defines the ecosystem approach as “management which takes account of the basic conditions set by the eco­system itself in order to maintain production and conserve biological diversity.”90 The policy committed the Norwegian Government to further actions including a plan for management of the Barents Sea.

86 Dmitry Zhdannikov, “Gazprom delays Shtokman gas field 3 years,” The Globe and Mail, Feb. 5, 2010. Available from http://www.theglobeandmail.com/report-on-business/ industry-news/energy-and-resources/gazprom-delays-shtokman-gas-field-3-years/ article1457832/. 87 Shtokman, Shtokman Development, March 2011. Available from http://www.shtokman .ru/en/. 88 Phaedra Friend Troy, “Statoil makes ‘significant’ oil discovery with Skrugard in the Barents Sea,” Penn Energy, April 1, 2011. Available from http://www.pennenergy.com/ index/petroleum/display/4547849516/articles/pennenergy/petroleum/offshore/2011/ 04/statoil-makes_significant.html. 89 Norwegian Government, National Oceans Policy of Norway, Protecting the Riches of the Sea, Report No. 12 to the Storting (2001–2002) (Oslo, 2002), 74pp. 90 Ibid.

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The 2006 decision by the Norwegian Parliament on a plan for “Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands” (the IMP) developed policy detail further with respect to the Norwegian Arctic.91 The purpose is outlined as finding a balance between the various sectors in the Barents and Lofton areas, including fisheries, maritime transport and petroleum industries within the context of sustainable development. The plan states its overall objective as: A framework for the sustainable use of natural resources and goods derived from the Barents Sea–Lofoten area and at the same time maintain the structure, functioning and productivity of the ecosystems of the area.92

Impetus for the plan was the northward movement of the petroleum industry, into an area perceived to be vulnerable in terms of its environmental qualities and importance to fisheries. The plan identifies that scientific knowledge of the marine environment in the Barents Sea is limited, and further effort is needed to understand the distribution of habitats and the impacts of commercial activity on these habitats. The plan covers an enormous area (1.4 million km2) from the Lofoten archipelago to the north of Svalbard and to east to the boundary with Russia.93 It applies from one nautical mile off the coast—the inshore is managed according to the EU Water Framework Directive—to the limits of the Norwegian EEZ. The plan does not cover the part of the Barents Sea that exists in the Russian sector across the now agreed and ratified Norwegian-Russian border. While this can argued that it does not fulfil an ecosystem approach as an artificial border separates the Barents large marine ecosystem, improved cooperation with Russia on ecosystem-based management is an important issue throughout the plan and potentially provides a focus for joint cooperation. The plan is “high level” and provides descriptions of ecosystem, pressures, trends and objectives, current knowledge and knowledge gaps. This involves identification of areas of uncertainty94 and establishes programs for scientific monitoring.95 This is typical of an adaptive management cycle that acknowledges that the

91 Norwegian Government. Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands, Report No. 8 to the Storting. (Oslo, 2006): 144 pp. 92 Ibid. 93 Erik Olsen, Harald Gjøsæter, Ingolf Røttingen, Are Dommasnes, Petter Fossum, and Per Sandberg, “The Norwegian Ecosystem Based Management Plan for the Barents Sea,” ICES Journal of Marine Science, 64 (2007): 599–602. 94 For example the plan identifies that knowledge is limited on the extent and status of benthic habitats in the Barents Sea and endorses further research and adaptive management. 95 Maiike Knoll, “Scientific advice in integrated ocean management: The process towards the Barents Sea plan,” Marine Policy, 34 (2010): 252–260.

climate change and evolving regional ocean governance 459 policy process is a form of experimental learning and improvement. From 2003 to 2006 plan development scoped information relating to economic activities, social issues, environmental priorities and established draft objectives. It gathered data on the impacts of industries including interactions between maritime sectors and solutions in areas of conflict. Importantly it strived for an integrated approach bringing together monitoring and impact data to assess cumulative human impacts, vulnerable areas, and management goals.96 The plan articulates policy direction for integrating maritime sectors including fisheries, shipping, and the hydrocarbon industry within the confines of a healthy ecosystem. The Norwegian Government establishes as a part of the plan a series of high level objectives including: • Management of the Barents Sea–Lofoten area will promote sustainable use of the area and its resources to the benefit of the region and the country in general; • The management regime will ensure that activities in the area do not threaten the natural resource base and thus jeopardise opportunities for future value creation; • The management regime will facilitate economically viable commercial activities and as far as possible promote value creation and employment in the region; • Management of commercial activities in the area will be coordinated to ensure that various industries are able to co-exist and that the overall level of activity is adjusted to take account of environmental considerations; • Harvesting of living marine resources will promote value creation and secure welfare and business development to the benefit of the country as a whole; • Living marine resources are managed sustain-ably through the ecosystem approach; • Petroleum activities will promote value creation and secure welfare and business development to the benefit of the country as a whole; • Steps will be taken to facilitate the profitable production of oil and gas on the basis of health, environment and safety requirements and standards that are adapted to environmental considerations and the needs of other industries; • Favourable conditions will be provided for safe, secure and effective maritime transport that takes account of environmental considerations and promotes value creation. The objectives articulate the vision for a “working Barents.” The objectives are refined into specific goals that form the benchmarks for the plan. They specify goals on pollution (hazardous and radioactive substances, operational discharges;

96 Ibid.

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litter and waste); safe seafood; acute pollution (maritime transport, petroleum activities); biodiversity (management of particularly valuable and vulnerable areas and habitats, species management including vulnerable and endangered species and harvested species, alien species, and conservation of marine habitats). The pollution goals state overall releases and inputs will not result in injury to health or damage to the marine environment. The plan specifies that discharges from industrial activities, including a growing maritime transport and oil and gas sector, will not result in high levels of pollutants. An example from the oil sector is that operational discharges from activities in the area will not result in damage to the environment or elevated background levels of oil or other environmentally hazardous substances over the long term. In the biodiversity theme, the overall approach is to ensure that diversity at species and ecosystem scales are maintained and that human activities do not damage the structure, function and productivity of marine systems. One example is the under the biodiversity goal is the commitment by the Norwegian Government to the implementation of marine protected areas in the Barents Sea, underpinned by a national program of implementation. Under OSPAR and the Convention on Biological Diversity (CBD) Norway has adopted the goal of establishing an international network of MPAs by 2012. As of 2011, a process of planning and implementation of MPAs is being enacted with the National Advisory Committee for MPAs proposing 36 sites. Formal hearings were held in 2010 and through 2011 for the MPA sites. Sites are selected across three biogeographic regions including the Barents, where at least seven sites are proposed. The final decision over designation is yet to be made by the Norwegian Government and monitoring and management plans are still over the horizon. The objectives and goals set the basis for performance assessment of the plan and the set overarching framework for sector based activities. In terms of sectoral actions a number of recommendations are made across the oil and gas, shipping, fisheries, and conservation sectors. While it is beyond the scope of the paper to expand on all initiatives some examples are pertinent. In the fisheries sector, policy measures include addressing and reducing illegal, unreported, and unregulated fishing (IUU fishing), increasing the knowledge of distribution and ecology of relevant species, reducing by-catch and damage to benthic communities by fishing gears. In the petroleum sector, there is the requirement that drilling operations are required to have zero discharges to the Barents region97 and spatial restrictions are placed on when and where activity can occur, particularly in relation to vulnerable marine habitats as shown in Figure 3.

97 Maiike Knoll, “The uncertainties of precaution: Zero discharges in the Barents Sea,” Marine Policy, 35 (2011): 399–404.

climate change and evolving regional ocean governance 461

Source: Clive Schofield and Andi Arsana, 2012, adapted from Erik Olsen, Harald Gjøsæter, Ingold Røttingen, Are Dommasnes, Petter Fossum, and Per Sandberg, “The Norwegian Ecosystem-Based Management Plan for the Barents Sea,” ICES Journal of Marine Science, 64 (2007): 599–602.

Figure 3. The Barents Sea Integrated Management Plan.

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In 2011 the plan was updated to reflect changing conditions and pressures on the Barents Sea and Lofoton Islands.98 While a comprehensive English update of the plan is pending, the update clarifies the spatial expansion of the oil and gas sector. The expansion is a politically sensitive issue, and one that is approached cautiously by the existing government coalition as divergent views exist over oil and gas activity, particularly in the Lofoten Islands. The update restricts any development in the Lofoten Islands and no environmental impact assessments will take place during the current parliamentary period (but may be opened up in the future). In areas that have been the site of exploration, such as the Nordland VI block south of the Lofoten Islands, there will be no new petroleum activities during the current parliamentary period. The update effectively closes exploration and expansion in the Lofoten Islands in the short term but continues to endorse scientific monitoring of the region. The situation for the Barents Sea is rather different. The update specifies that activity is prohibited 35km from the coast, in the marginal ice edge zone to the north, 65km around Bear Island and exploration is limited to 65km from the coast between March and August. However, despite these exclusions, this still leaves several large regions in the Barents open for exploration and development. The zone of the agreed Norwegian-Russian border is open for seismic exploration and drilling. The 175,000km2 region is expected to hold commercial quantities of resource and is the focus of join Norwegian and Russian efforts. In addition the recent Skrugard discovery in the north of the Barents Sea holds further potential and is claimed to be in production from 2013.99 As noted above, it is clear from the pronouncements of Norwegian and Russian political leaders on the conclusion of the two States’ bilateral maritime boundary delimitation treaty that further exploration and development activities in this region are anticipated. Has the plan worked? On the surface, it appears that the plan, at least in the Norwegian sector, is driving investment in scientific monitoring and research, spatially defining oil and gas activity, minimising conflict between sectors, managing pollution and identifying and protecting biodiversity. However, despite five years of activity, many initiatives in the plan are still at formative stages or are ongoing and conclusive evidence of “success” is not apparent. It simply may be too early to tell if the plan is driving changes in the region. At this stage it should be observed that the plan has established processes and structures for

98 Government of Norway, “Updated version of the integrated management plan for the Barents Sea–Lofoten area,” March 11, 2011. Available from http://www.regjeringen .no/mobil/en/dep/smk/press-center/Press-releases/2011/updated-version-of-theintegrated-manage.html?id=635620. 99 “Skrugaurd in Production from 2018?” Barents Observer, April 4, 2011, available at http:// www.barentsobserver.com/skrugard-in-production-from-2018.4906532-16149.html. “Carbon Storage started on Snohvit,” Statoil, April 23, 2008, available at http://www .statoil.com/en/technologyinnovation/newenergy/.

climate change and evolving regional ocean governance 463 integrated management to occur. For example, the plan acknowledges that scientific data is poor across many habitats, in particular information on seabirds and benthic habitats. The plan notes that little is known about the underwater landscape, ecosystems and biodiversity of the seabed and about the state and distribution of seabed habitats such as coral reefs, sponge communities and deep-sea mountains.100 It has moved to address this through the MARENO101 and SEAPOP102 initiatives. In addition the development of a Barents Sea Ecosystem Program coordinated by the Institute of Marine Research and the Norwegian Polar Institute is an initiative that will provide the authorities with scientific advice to make long term management decisions. Outputs from this program have not been released to date. One means of looking at the success of the plan is to examine the status of the Barents through the recent OSPAR Quality Status Report in 2010.103 This assessment covers the regional divisions in OSPAR including the Arctic Seas (Region 1) and is inclusive of the Norwegian and Russian divisions of the Barents Sea. On the whole, the Barents is considered to be relatively unpolluted and in a healthy state. Most of the human pressures are focused on the southern coastal regions where fishing and maritime activity is located and there are emerging pressures from expansion. Issues considered to be of high importance are the impacts of climate change and ocean acidification, persistent organic pollutants in fish and marine mammals; declines in seabirds, and expansion of maritime activities.104 Successes to date have emerged from an 85% reduction in illegal (IUU) fishing based upon Norwegian and Russian cooperation, improved planning and protection of biodiversity. It notes that 1.5% of the area is protected by MPAs, a level below international standards. In terms of the OSAPR assessment, it would appear that the challenges to region are being addressed at the Norwegian scale and an expansion of scientific and political cooperation will improve management across borders. Since the Barents Sea is shared between Russia and Norway, cooperation on scientific monitoring and management is important to implement a coordinated ecosystem approach. The integrated management plan states that “the Government will give priority to cooperation with Russia at every level and in every 100 Norwegian Government, National Oceans Policy of Norway, Protecting the Riches of the Sea, 110. 101 The MARENO program MAREANO maps depth and topography, sediment composition, contaminants, biotopes and habitats in Norwegian waters, available at http:// www.mareano.no/english/index.html. 102 SEAPOP (SEAbird POPulations) is a long-term monitoring and mapping programme for Norwegian seabirds that was established in 2005 under the plan. Available from http://www.seapop.no/en/about/index.html. 103 OSPAR Regional Summaries—Artic Waters Region 1. 2010. Available from http:// qsr2010.ospar.org/en/ch12_01.html. 104 MARENO program, available at http://www.mareano.no/english/index.html.

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field”105 and is typified by cooperation in the Norwegian Russian Environmental Commission. The Commission has been operating since 1992 and meets annually, alternating between Norway and Russia, to set a work plan for the Barents region including terrestrial, coastal and marine systems. The Commission decides on the direction of scientific effort with a focus on regulatory cooperation and competence-building in Russian conservation management.106 The marine working group was established in 2005, and recent cooperation in the 2009–2010 period has focused on building capacity in petroleum environmental management, biodiversity, radioactive contamination, and policy cooperation. An important milestone for was the launch in 2009 of a joint Norwegian-Russian environmental status report for the entire Barents Sea.107 The “Barents Portal” is the output of joint scientific investigations by Norwegian and Russian scientists and found that the state of the Barents was generally satisfactory, but concerns exist over the effects of climate change, spread of alien species, and pollution incidents from increased maritime activity. The Portal states that further cooperation is to be developed in harmonising environmental monitoring and integrating practices for petroleum related activity. In addition, it was noted that the report will form the basis of a Russian plan for the management of the Russian sector of the Barents. It is clear that the region faces many challenges from the Russian sector and that cooperative efforts have yet to mature; but a close working relationship is emerging. Cooperation extends across terrestrial, coastal and marine regions in the Barents, and across maritime sectors. This includes the work of the Joint Norwegian-Russian Fisheries Commission that was established in 1976 to manage cod, haddock and capelin in the Barents Sea and that has been instrumental in reducing illegal fishing. The Barents Euro Council through its intergovernmental (Barents Euro-Arctic Council) regional (Barents Regional Council) bodies has fostered debate and consensus building. It has fostered debate and consensus building within the region with a focus on sustainable development. The members of the Barents Euro-Arctic Council are Denmark, Finland, Iceland, Norway, Russia, Sweden and the European Commission. Sweden holds the chairmanship for the period 2009–2011. Several working groups promote dialogue and cover issues such as economic cooperation, transport, search and rescue, youth policy, environment, energy, indigenous issues, culture and tourism.

105 Norwegian Government, National Oceans Policy of Norway, Protecting the Riches of the Sea, 124. 106 Ministry of the Environment, Joint Norwegian and Russian Environmental Cooperation, available at http://www.regjeringen.no/en/dep/md/Selected-topics/svalbard_og_ polaromradene/. 107 Joint Norwegian-Russian Commission on Environmental Protection. Barents Portal. 2011, available at http://www.barentsportal.com/.

climate change and evolving regional ocean governance 465 It is clear that the Barents is entering a new phase as an oil producing region. While the Government considers that the state of the environment in the Barents Sea–Lofoten area to be good, problems still exist in terms of long-range transboundary pollution, climate change, ocean acidification and biodiversity impacts. With increased oil and gas activity and increasing maritime traffic there is an ongoing and increasing risk of pollution affecting the relatively pristine and sensitive Arctic environment. While exploration and development advances, it should not be forgotten that the region exists within a harsh environment with an extremely challenging set of environmental conditions. While the technical capacity advances and markets shift in favour of production, the risks of operating in the Arctic can never be fully mitigated or minimised. Conclusions That the Arctic is changing in response to global climatic and economic drivers is beyond doubt. Climatic influences are altering the sea ice, atmospheric and hydrological regime and in response patterns of biodiversity are shifting, as are the human settlements that rely on natural resources and ecosystem services. While the changing climate and resulting sea ice change is opening the potential for Arctic-wide development, global economic drivers such as resource scarcity are furthering demands for unconventional energy sources including Arctic and deep water oil. Both of these trends are expected to continue into the future and, indeed, accelerate. It is the combination of these two factors which is creating a new working sea in the Arctic and one where activities are particularly concentrated in the Barents Sea. With respect to the potential for Arctic oil, even though this appears to have been overhyped in terms of its potential to significantly alter the global energy security picture, these resources are nonetheless of great potential significance to the Arctic States themselves and there seems little doubt that major hydrocarbon exploration and development activities are likely to go ahead in the Arctic, including in the Barents Sea region. The response by Arctic governments, as demonstrated by Norway in the Barents Sea, is the development of ecosystem and precautionary marine management regimes. In Norway marine planning has firmly been on the agenda for the better part of a decade, and the Integrated Management Plan for Barents Sea and Lofoten Islands demonstrates that large scale marine planning across sectors and government jurisdictions is a long term exercise that places demands on human resources and scientific effort. The plan has set an ambitious agenda to implement the ecosystem approach and reduce sector conflicts, and as exploration and extraction intensifies in the region, so to do the risks of long term damage to the marine environment. Political will to drive sustainable maritime development and cooperation is the key factor underpinning future management of regional Arctic seas. The

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agreement and ratification of the Norwegian and Russian maritime boundary and drive to further explore and develop the resources of the area provides new challenges to implement the ecosystem approach. In addition, the heightened interest from Europe and Asia in Arctic access and resources further complicates attempts at regulating and enforcing ecological quality measures, particularly when the drivers (and management responses) for such indicators often exist outside the jurisdiction of the Norwegian Barents, or in fact, the Arctic. Clearly the oft-times elusive factors of political will and international cooperation will form the backbone of ecosystem management in the Barents Sea and be the mainstay of regional governance in the Arctic.

twenty-four

China’s Emerging Role in the Arctic John K.T. Chao

Summary of the Issues Melting Arctic ice is transforming the region into an area of global resource interest replete with competing commercial, scientific, security and environmental concerns, with profound implications for the international legal and political system. In this current environment of both international competition and cooperation, China has been working to gain further access to the Arctic. China officially does not have an Arctic strategy; however China is clearly now in the process of establishing its position within the region. Although China is not a littoral State and thus lacks claims of sovereignty in the region, its growing interest in natural resource sources and energy security nonetheless makes the Arctic region an area of considerable national interest to it. This chapter explores the commercial, political, and security implications for China of a seasonally ice-free Arctic region, China’s participation in the Arctic Council, and the importance of the Northern Sea Passage. While China has no shores along the Arctic Circle, its interest in playing a role in defining future international regimes regarding the Arctic is evident.

Introduction The Arctic is warming at twice the average rate of global warming. The impacts on the physical environment are clearly visible, one of which is that snow and ice are melting at an increasing rate, reducing in mass by 3–4 percent over the last three decades, and disappearing at an accelerated rate of more than ten percent in the last ten years. Ice is the main barrier for shipping through the ­Arctic, ­making ordinary navigation impossible except during the summer months. With the prospect of year-round access aided by ice-breakers, the shipping route via the Arctic Ocean between Europe, Japan and China will become 10 to 12 days shorter as opposed to the time required for conventional route through the Panama Canal, the Suez Canal, or the Cape of Good Hope. In the next few decades the Northern Sea Route will become increasingly commercially attractive and possibly ice free year-round by 2060 at the earliest. As the world’s largest exporter,

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China has much to gain from this new passageway. Rerouting through the Arctic is economically attractive for China as it saves not only time, insurance and fuel costs, but also decreases the energy security risk. China’s rapid economic growth has prompted Beijing to undertake an aggressive search for natural resources as economic growth is most directly linked to energy. Rising consumer demands in China, coupled with occasional rolling blackouts due to spiraling demand for energy in Chinese cities, have prompted anxieties in China concerning energy security. Alternate energy sources are receiving heightened attention; so, as a potential source, the Arctic has come under close scrutiny. In 2009, a two-year Chinese research project focusing on the Arctic was completed. Scholars and officials from throughout the country had compiled extensive information on everything Arctic related, from resources and their exploitation to Arctic transportation, Arctic law, Arctic politics and diplomacy, military factors in the Arctic, China’s strategic position in the Arctic, and China’s Arctic policy and recommendations.1 China’s energy development is progressing in a remarkably comprehensive, nuanced fashion. China’s energy strategy is vital to the future of the nation’s energy development and its strategic implications for the United States, with particular attention to maritime development in both countries. The United States is deeply concerned that China is drawing upon much of the world’s remaining oil reserves for its domestic use. The resulting competition for this diminishing resource could lead to energy insecurity and may support other tendencies toward rivalry that in turn could foster a naval arms race neither side seeks. This essay analyzes the implication for China’s resource interests in the Arctic, Arctic shipping routes, future perspective of the Northeast Passage and Northwest Passage, China’s Arctic research, and China’s role as an ad hoc observer in the Arctic Council. China is currently formulating its Arctic Strategy in order to preserve Chinese strategic interests in the Arctic as it would like to play an active role in international affairs in the Arctic region. Climate Change and Geopolitics in the Arctic Climate change will cause major physical, ecological, economic, social, and geopolitical adjustments. Global climate change has catapulted the Arctic into the centre of geopolitics, as melting Arctic ice transforms the region from one of primarily scientific interest into a focus of competing commercial, national security, and environmental concerns, with profound implications for the international legal and political system. As the region opens to increased human activity such as traffic from commercial shipping, tourism, and oil and gas exploration, soot 1 See text at note 35, infra.



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emitted by maritime vessels and operations will land on the ice. Graying of the icecap will result, as black carbon from incomplete hydrocarbon combustion lodges itself in snow and ice, causing what was once a reflective surface to absorb more sunlight, melt, and warm the water. This has led to decreases in the thickness and age of the ice—i.e., the hardness—causing melting to occur at an even faster pace.2 The resulting dangerous feedback loop is part of an alarming phenomenon that is pushing the current drive for policies to slow down climate change. Increasing water temperatures are changing the distribution of sea ice and having grave impacts on ice-dependent flora and fauna. The loss of permafrost, animals, and fish in the Arctic could have a devastating effect on the native peoples of the region, whose cultures continue to be linked intimately with them. Any changes in marine life will also affect the nature of fisheries in the region, and will require policies to facilitate sustainable operations and address potential conflict as fishing grounds and national boundaries overlap.3 In 2007 and again in 2008 the North-West Passage was open for two weeks, and predictions are being made of ice-free Arctic summers as early as 2013. These events are not limited to the North American Arctic. For the last few years, the Northern Sea Route along Russia’s north coast has seen similar ice changes, providing Russia with greater access to its vast Siberian resources and leading to bold assertions of its sovereignty over vast swathes of the polar sea. In a 2009 report the United States Geological Survey (U.S.G.S.) postulated that over 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas and 44 billion barrels of natural gas liquids are located in the Arctic (84 per cent of which could potentially be found in offshore areas).4 With longer ice-free periods now available to explore for hydrocarbons, a new scramble for oil and gas could occur, especially if oil prices recover to levels above $100 a barrel.

2 “This past summer, the area covered by sea ice shrank by more than one million square miles, reducing the Arctic icecap to only half the size it was 50 years ago.” Scott G. ­Borgerson, “Arctic Meltdown: The Economic and Security Implications of Global Warming,” Foreign Affairs, 87 (March/April 2008): 63–77. 3 See Jennifer Jeffers, “Ensuring the Protection of Arctic Marine Biodiversity in the Face of Climate Change,” in Myron H. Nordquist, John Norton Moore, and Tomas H. Heidar, (eds.), Changes in the Arctic Environment and the Law of the Sea (Lieden/Boston, 2010), 323–364. 4 U.S. Geological Survey, “Assessment of Undiscovered Oil and Gas in the Arctic,” Science, 324: 5931, May 29, 2009, 1175–9; U.S. Geological Survey Fact Sheet 2008, “Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle,” available at http://pubs.U.S.gs.gov/fs/2008/3049/, accessed May 29, 2009. See Potts and Schofield, Chapter 23.

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Resources in the Arctic The potential for a hydrocarbon bonanza in the Arctic holds much potential economic benefit for indigenous communities and the Arctic states they call home. Although detailed information on Arctic petroleum resources remains limited, according to the U.S.G.S. report it appears that the ratio of natural gas to oil in the region’s hydrocarbon resources is approximately three to one.5 While the Arctic may have tremendous potential in the long run, its contribution to energy resources in the short term should not be overestimated, as other areas are cheaper, less contentious and less technologically challenging to exploit. The technology required to recover Arctic resources year-round is not readily available, and will not become so in the short term. Transport difficulties add to the problems to be overcome. Natural gas requires pipelines or, alternatively, expensive and complex liquefaction infrastructure. The former is the less likely option, because pipelines would have to cover very large distances. With technological breakthroughs in the development of shale oil resources in the lower 48 states over the last several years, meanwhile, U.S. natural gas reserves have nearly quadrupled. Technology is a key barrier to Arctic access in other ways. Icebreakers, many nuclear powered, are necessary for maritime presence and naval power projection in the region year-round. The various Arctic nations have widely divergent capabilities. For example, Russia has 20 icebreakers; Canada has 12, and is working on budgeting for 8 more; the U.S. has, for all intents and purposes, just one functional icebreaker and China has one as well. These ships take eight to ten years to build, and will cost approximately $1 billion each. The global economic crisis has put a strain on budgets, however, and icebreaker fleets are unlikely to expand rapidly in the short term. Nonetheless, even if the U.S. started building tomorrow it would long remain far behind other Arctic states such as Russia and Canada, taking decades and at least $20 billion to catch up. In the light of forecast increases in shipping traffic in Arctic waters, the Arctic Council conducted an Arctic Marine Shipping Assessment in 2009, calling for mandatory regulations on ship construction standards, which are currently voluntary and vary greatly among countries. The International Maritime Organization (IMO) is discussing whether to adopt the recommendations of the assessment. A final decision may be made soon. The IMO is also striving to identify steps needed to preserve the safety, security, and environmental protection of the Arctic region. Much of the geology supporting the presence of hydrocarbons in the Arctic is already located within the exclusive economic zones (EEZs) and continental shelves of the Arctic littoral

5 U.S. Geological Survey, “Assessment of Undiscovered Oil and Gas in the Arctic;” U.S. Geological Survey Factsheet 2008, “Circum-Arctic Resource Appraisal.”



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States.6 Therefore, an extension of a state’s continental shelf beyond its EEZ may not necessarily expand its yield of oil and gas. The perception of strategic finds, however, can be enough to motivate territorial claims, and thus it fuels the use of hyperbole like “scramble for the Arctic” with reference to what is otherwise an orderly process following international laws and norms. China’s Resource Interests in the Arctic China is paying increasing attention to the consequences of the melting of the ice in the Arctic Ocean. The prospect of the Arctic being navigable during summer months, leading to both shorter shipping routes and access to untapped energy resources, has compelled the Chinese government to allocate more resources to Arctic research. Chinese officials have also started to think about what kind of policies would help China benefit from an ice-free Arctic environment. China is at a disadvantage because it is neither an Arctic littoral state—it has no Arctic coast, and so no sovereign rights to underwater continental shelves—nor an Arctic Council member state with the right to participate in the discussion of Arctic policies. Despite its seemingly weak position, China can be expected to seek a role in determining the political framework and legal foundation for future Arctic activities.7 In 2008 the five littoral states—Canada, Denmark, Norway, Russia and the United States—committed themselves to the existing legal framework of the Arctic and the “orderly settlement of possible overlapping claims.”8 Despite these assurances, the evolving situation in the Arctic could potentially lead to new geopolitical disputes involving also non-littoral states, especially regarding issues related to free passage and resource extraction rights. Consequently, policy makers not only in China but also across Asia, Europe and North America are turning their attention to the region in order to assess this transformation and its economic, territorial and geopolitical implications. To date, China has adopted a wait-and-see approach to Arctic developments, wary that active overtures would cause alarm in other countries due to China’s size and status as a rising global power. Chinese officials are therefore very cautious when expressing their views on China’s interests in the Arctic. They stress that

6 Potential new oil provinces are on the continental shelves of the United States, Canada, Norway, and in the Canadian Arctic and Alaska. Oystein Noreng, Oil Politics in the 1980s: Patterns of International Cooperation (New York, 1978), 12, 39; Tavis Potts and Clive Schofield, “Current Legal Developments: The Arctic,” International Journal of Marine and Coastal Law, 23 (2008): 151. 7 Linda Jacobson, “China Prepares for an Ice‑Free Arctic,” SIPRI Insights on Peace and Security, No. 2010/2 (Stockholm International Peace Research Institute, March 2010), 1–14. 8 Arctic Ocean Conference, Ilulissat Declaration, Ilulissat, Greenland, May 28, 2008, available at http://arctic-council.org/filearchive/Ilulissat-declaration.pdf.

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China’s Arctic research activities remain primarily focused on the climatic and environmental consequences of the ice melting in the Arctic. However, in recent years Chinese officials and researchers have also started to assess the commercial, political and security implications for China of a seasonally ice-free Arctic region.9 The U.S. Geological Survey estimates that the Arctic contains up to 30 per cent of the world’s undiscovered gas and 13 per cent of the world’s undiscovered oil resources.10 Additionally, the region contains vast amounts of coal, nickel, copper, tungsten, lead, zinc, gold, silver, diamonds, manganese, chromium and ­titanium.11 The opening up of the Arctic will also provide access to new reserves of the energy and other natural resources on which China’s economic growth increasingly relies. The technological challenges associated with extracting energy and mineral deposits in the Arctic have been acknowledged, however, by both Chinese and Western observers. Arctic Shipping Routes New shipping routes opened up as the Arctic ice vanishes will reduce substantially decrease the maritime distances between Europe and Asia, while also providing strategic alternatives to other countries such as China, Japan, and South Korea which would have an interest in Arctic access owing to its current dependence on shipping through the Strait of Malacca for most of its energy supplies.12 Northeast Passage (Northern Sea Routes) The Northern Sea Route, also known as the North East Route or North East Passage, is the Russian name for what is often known outside Russia as the Northeast

 9 See e.g., Z. Li, [“Analysis of China’s Strategy on the Arctic Route,”] Zhongguo Ruankexue, No. 1 (2009), 1–7; [“Obstacles to China’s Participation in the International Arctic Route Mechanism and Countermeasures,”] Zhongguo Hanghai, 32, No. 2 ( June 2009): 98–102; P. Guo, [“A Big Power’s Strategy Points at the Arctic,”] Liaowang, No. 27 (2009), 64; X. Ren, and Y. Li, [“A Tentative Analysis on Sovereignty Dispute over the Arctic Ocean and China’s International Responsibility,”] Langfang Shifan Xueyuan Xuebao (Shehui Kexue Ban), 24, No. 4 (Aug. 2008): 66–69; Y. Zhao, [“A Brief Analysis of Legal Challenges in the Arctic Region and its Influence on China,”] Haiyang Fazhan Yu Guanli, 26, No. 3 (March 2009): 17–21. 10 D. Gautier, et al., “Assessment of Undiscovered Oil and gGs in the Arctic,” Science, May 29, 2009. 11 ECON, Arctic Shipping 2030: From Russia with Oil, Stormy Passage, or Arctic Great Game? ECON Report 2007–070 (Oslo, 2007), 4. 12 China, Japan and South Korea rely heavily upon this strait as nearly one quarter of all oil carried by sea comes through this passage, mainly from Persian Gulf suppliers to these three countries.



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Passage (NEP). The terms “Northeast Passage” and “Northern Sea Route” are frequently used interchangeably. As Professor William Butler observes, however, the terms do not describe the same entity. The Northeast Passage is the geographical area from the Russian-Norwegian frontier to the Bering Strait, comprising the waters and islands of the Barents, White, Kara, Laptev, East Siberian, and Chukchi Seas. The Northern Sea Route, in contrast, is a “domestic transport concept,” a cabotage route from European Russia to Vladivostok and serving northern Siberia and the Far East. Over Eurasia the Northern Sea Route is also important since it shortens shipping routes between northern Europe and northeast Asia by 40 percent compared with the existing routes through the Suez or Panama canals, and takes thousands of miles off maritime routes round Africa or Latin America.13 Since Soviet times, the country has built up an Arctic shipping infrastructure— including most notably the fleet of powerful nuclear ice-breakers—and claims jurisdiction over the route.14 The Russian Federation, continuing an initiative begun by the Soviet Union, is attempting to open the Northern Sea Route, the shipping route along the Arctic coast of Siberia from the Norwegian frontier through the Bering Strait, to international commerce. The goal of the effort is eventually to operate the route on a year-round basis, offering it to commercial shippers as an alternative, substantially shorter route from northern Europe to the Pacific Ocean in the hope of raising hard currency in exchange for pilotage, icebreaking, refueling, and other services.15 If the Northern Sea Route were become a regular international route, the major inter-sea straits certainly, and many of the smaller straits probably, will be used for international navigation. At what point will the traffic be heavy enough to justify a claim of transit passage through the inter waters of, say, Novaya Zemlya? On the level, it would not be unreasonable to assert that any foreign vessel engaged in international navigation would be entitled to transit, under the new regime, any strait through which another foreign vessel has already passed.16

13 Ted L. McDorman, “The Northwest Passage: International Law, Politics and Cooperation,” in Myron H. Nordquist, John Norton Moore, and Tomas H. Heidar, (eds.), Changes in the Arctic Environment and the Law of the Sea (Lieden/Boston, 2010), 227–250; ­Alexander S. Skaridov, “Northern Sea Route: Legal Issues and Current Transportation Practice,” ibid., 283–306. 14 Claes Lykke Ragner, “The Northern Sea Route,” [Den norra sjövägen] in Torsten Hallberg, (ed.), Barents—ett gränsland i Norden. Stockholm, Arena Norden, 2008, 114–127. (This is the English translation of a chapter originally published in Swedish in the Norden Association’s Yearbook for 2008, available at http://www.fni.no/doc&pdf/clrnorden-nsr-en.PDF.) 15 William V. Dunlap, Transit Passage in the Russian Arctic Straits, Maritime Briefing, Vol. 1, No. 7 (Durham,1996), preface. 16 Aldo Chircop, “International Arctic Shipping: Towards Strategic Scaling-Up of Marine and Environment Protection,” Nordquist, Changes in the Arctic Environment and the

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The issue is not so simple, however, for two reasons. First, the new regime of straits does not apply only to foreign commercial vessels. It also applies to foreign warships, submarines, and aircraft. Did the convention intend to open the airspace over a strait to foreign aircraft after one commercial vessel has passed through? When l’Astrolabe navigated the Northern Sea Route in 1993, with the permission of the Russian government, did it clear the way for submarines and overflight through and above each strait it transited? Second, the new regime’s use requirement does not appear to contemplate only vessels invited by the coastal state. If an American submarine were to transit Proliv Borisa Vil’kitskogo, submerged and uninvited, it would be using the strait for international navigation. Is there a possibility of “bootstrapping” a strait into the transit-passage regime simply by transiting it? It has been suggested that, in the absence of a generally accepted criteria, “perhaps one foreign-flag vessel would suffice.”17 The Northern Sea Route would reduce the sailing distance between Rotterdam and Yokohama from 11,200 nautical miles—via the current route, through the Suez Canal—to only 6,500 nautical miles, a savings of more than 40 percent. The diminishing Arctic sea ice cover is a fact, while the pace of the process is still uncertain. But the Arctic Ocean is gradually becoming more accessible, and shipping in the region is bound to increase. We are already seeing more regional traffic, mostly related to the development and export of petroleum resources. Later, when the “summer window of opportunity” widens, occasional transits may be seen. Under the most radical climate change scenarios, it will probably still take around 20–30 years from now until conditions have become suitable for such occasional transits. Large-scale, year-round transit operations are hardly possible before the ice cover has disappeared for most of the year, and this does not seem realistic in at least 40–60 years from now. Therefore, it is still too early to start making concrete plans for shifting Atlantic-Pacific trade routes to the Arctic. For concerned governments, however, it is not too early to start planning for the reality ahead. In recognition of the ongoing gradual increase of Arctic shipping, and the large-scale transit operations that are likely to get underway some time in the future, processes to address insufficiencies in the current regulatory regime should be initiated, to ensure operational safety and protection of the Arctic environment as well as the livelihoods of indigenous peoples and other northern inhabitants. Northwest Passage The Northwest Passage would trim a voyage from Seattle to Rotterdam by 2,000 nautical miles, making it nearly 25 percent shorter than the current route, via Law of the Sea, 177–201; Captain J. Ashley Roach, “Arctic Marine Transport: Navigation Issues,” ibid., 203–221. 17 Dunlap, Transit Passage in the Russian Arctic Straits, 54–55.



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the Panama Canal. Taking into account canal fees, fuel costs, and other variables that determine freight rates, these shortcuts could cut the cost of a single voyage by a large container ship by as much as 20 percent—from approximately $17.5 million to $14 million—saving the shipping industry billions of dollars a year. The savings would be even greater for the megaships that are unable to fit through the Panama and Suez Canals and so currently sail around the Cape of Good Hope and Cape Horn. Moreover, these Arctic routes would also allow commercial and military vessels to avoid sailing through politically unstable Middle Eastern waters and the pirate-infested South China Sea. An Iranian provocation in the Strait of Hormuz, such as the one that occurred in January 2011, would be considered far less of a threat in an age of trans-Arctic shipping. Use of the Northwest Passage over North America could shorten shipping routes between Asia and the U.S. east coast by 5,000 miles. However, even though Canada is a strong ally of the U.S., there are disputes between the two countries over the waters of the Canadian archipelago, which Canada claims are internal waters not subject to the conventions of “innocent passage,” while the U.S. regards them as a strait for international navigation, through which ships should be allowed to pass without interference by Canadian authorities. Theses aims have taken the form of functional jurisdiction over pollution, an historic title to the water of the archipelago, and the rejection of “international” status for the waters of the Northwest Passage. Canadian maritime claims in the Arctic have not been consistently formulated or consistently pursued by the Canadian government during the period due to an evolving international law of the sea and American objections. The Canadian position on functional jurisdiction over pollution has been vindicated by the 1982 United Nations Law of the Sea Convention, but there continue to be significant doubts as to the status of the archipelagic waters.18 If the waterway does indeed become ever more ice-free in

18 Canada claimed to have acquired sovereignty by virtue of historic rights to the waters of the Canadian Arctic Archipelago and of the Northwest Passage under the regime of internal waters. The Canadian Department of Indian and Northern Affairs which presented evidence that the local Inuit nation had made constant use of these waters for centuries, especially in the Eastern half of the Northwest Passage, including Lancaster Sound and Barrow Strait as far as Resolute and a little further west. If the Canadian government were to grant recognition domestically to Inuit land and offshore claims based on their historic (hunting) practices, the recognition might be held out as having some international as well as domestic legal significance, strengthening a Canadian claim to sovereignty to these waters under the international legal regime of internal waters by virtue of historic rights. Douglas M. Johnson, (ed.), Arctic Ocean Issues in the 1980’s: Proceedings, Law of the Sea Institute, University of Hawaii and Dalhousie Ocean Studies Programme, Dalhousie University, Halifax, Nova Scotia, Workshop, 10–12 June 1981, Mackinac Island, Michigan (Manoa, HI: 1982), p. 14; N.D. Bankes, “Forty Years of Canadian Sovereignty Assertion in the Arctic, 1947–87,” Arctic, 40, No. 4 (December, 1987): 285–91.

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the future, Canada will be forced formally to resolve its dispute with the United States over the status of the Northwest Passage. The Canadian government, confronted with the Americans’ refusal to recognize its claim of sovereignty over the waters of the Northwest Passage, could engage China as well as other countries in discussing the need to implement stringent shipping rules in the Arctic. The Chinese government and Chinese shipping companies are waiting for the Northwest Passage to open up a bit more before launching full-scale service across Arctic Canadian waters between Asia and Europe. The premise is that a shorter route would naturally be more attractive for shippers of Chinese goods. However, the Northwest Passage is not necessarily the shortest route in any case. China’s interest in the Arctic and in the Canadian Arctic in particular, is not focused primarily on a rapid opening of shipping routes, the economic interest of which remains to be proven for container shipping lines, as surveys of several shipping companies proved. Additionally, there are also concerns over the mutual interdependencies of Russia and China that could actually lead to security tensions, and which could possibly spill out in the Arctic.19 These possibilities depend on whether China and Russia can cooperate on trade and resource issues. Extrapolating China’s resource needs into the future indicates that they could desperately try to maintain their supply chain for Russian resources and those accessible via the Arctic, if faced with stiff competition from other nations. The situation is especially dangerous because there are currently no overarching political or legal structures that can provide for the orderly development of the region or mediate political disagreements over Arctic resources or sea-lanes. The Arctic has always been frozen; as ice turns to water, it is not clear which rules should apply. The rapid melt is also rekindling numerous interstate rivalries and attracting energy-hungry newcomers, such as China, to the region. China’s Shipping Route Interests in the Arctic Arctic melting is providing new opportunities, not only for the five littoral States, but also for other major powers. In 2006, the ice peninsula at the Vilkitskiy strait of Russia which limits the use of the Northeast Passage (the Northern Sea Route) opened, and again in 2008.20 The linkage of both the Northeast Passage and the Northwest Passage provides a now routinely open route between Canada and Russia. The trip from Shanghai to Hamburg via the Northeast Passage—which

19 Anna Nemtsova and Owen Matthews, “Fear and Loathing in Siberia,” Newsweek, March 27, 2006, available at http://www.newsweek.com/id/46951?tid=relatedcl. 20 Geoffrey Lean, “For the first time in human history, the North Pole can be circumnavigated,” The Independent, August 31, 2008, available at http://www.independent.co.uk/ environment/climate-change/for-the-first-time-in-human-history-the-north-pole-canbe-circumnavigated-913924.html.



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runs along the north coast of Russia from the Bering Strait in the east to Novaya Zemlya in the west—is 6,400 kilometers shorter than the route via the Strait of Malacca21 and the Suez Canal.22 A rare open-source article about the Arctic by Senior Colonel Han Xudong, an officer of China’s People’s Liberation Army, warns that the possibility of use of force cannot be ruled out in the Arctic due to complex sovereignty disputes.23 Another Chinese researcher on Arctic politics, Guo Peiqing of the Ocean University of China, has not written quite as critically as Han about government policies; nonetheless, in media interviews he too has voiced disapproval of China’s predominantly natural science-oriented Arctic research and has said it is not in China’s interests to remain neutral and “stay clear of Arctic affairs.”24 Although passage along the Northeast Passage from Eastern China to Western Europe would substantially shorten the journey, high insurance premiums, lack of infrastructure, and harsh weather conditions may make the Arctic routes commercially unviable, at least in the short term. Drift ice will continue to be a problem for ships even when the Arctic passages are officially deemed ice-free. Because of the melting of Greenland’s ice cap, the number of icebergs is expected to increase, forcing ships to proceed at a slow speed and make detours. Moreover, the shallow depth of some of the passages along the shipping routes—in particular the Bering Strait—makes the Arctic unsuited for big cargo ships. Arctic shipping routes are an attractive prospect to China, Japan, South Korea25 and Taiwan. Iceland faced a situation when the banks collapsed in Iceland, and there was no positive helping hand coming either from Europe or the United States. The Iceland government approached China to see if China could show some friendship in these times of difficulties. The Chinese positions in the cooperation have been constructive, balanced, and positive. Iceland invites China to engage in Arctic shipping. The prospect of the Arctic being navigable during summer months as a result of climate change has impelled the Chinese government to allocate more resources to research in the Arctic region. Some scientists posit

21 Strait of Malacca (North) (Indonesia/Malaysia) between Malaysia and Sumatra; Strait of Malacca (South) (Indonesia/Malaysia) between Malaysia and Sumatra opposite Singapore. Since 80 percent of Chinese fossil fuel imports pass by ship through the Malacca Strait, an important component of Beijing’s concerns have come to be known in China. 22 International Northern Sea Route Programme, http://www.fni.no/insrop/; and Guo, P. et al., [“A Study of the International Issues of the Arctic Route,”] (Beijing, 2009), 323–26. 23 X. Han, [“Closely Watched Dispute over Arctic Sovereignty,”] Bingqi Zhishi Fangwu Guancha Jia, Vol. 253, No. 9B (September 2008): 16–19; Jakobson, “China Prepares for an Ice-Free Arctic.” 24 Guo Peiqing, interview by Li Yanjie “New Cold Wars over Arctic Wealth,” Global Times, July 27, 2009. 25 South Korea is one of the major builders of ice-capable vessels.

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that, due to faster rising temperatures, there will be an active Arctic waterway by 2015. Ships now passing through the Panama Canal would be re-routed through the Arctic, shortening the trip by about 37%. The old Northwest Passage journey would gain seven days, making the new waterway the most time efficient.26 The new waterway would also save money, as less insurance would be needed for the shorter journey, and which is further appealing as less fuel would be required to make the trip. China’s Primary Institute of Arctic Research China’s polar research is not new. Its polar science is by far more focused on Antarctic research than on Arctic research. However, over the past 10 years, China has developed an interest in Arctic science, structured along four main axes: oceanography, biology, atmospheric science, and glaciology. In oceanography, Chinese research focuses on the interaction between water masses and their circulation, and on the shelf, in particular in the Beaufort and Chukchi Seas, north of the Bering Strait. Biology research programs focus on sea-ice ecology, coupled with the polar glaciology programs that examine the interaction between ice and marine life. The major objective of the upper-atmosphere physics research programs of the Polar Research Institute of China27 is to understand high latitude space weather.28 China’s research does not relate to the geology of the continental shelf in the Beaufort Sea, where oil and gas exploration by North American and European oil firms has been very active for many years, but where China has no coastline in the area. Besides, if there were indeed interesting prospects for mineral exploitation in the Arctic, most potential fields are located in Arctic countries’ EEZ and thus will be subject to their sovereign rights regarding exploration and production under international law. The question of access to the Arctic research is relevant not only to the States in the Arctic region, but also to that further south. China has carried out four Arctic Scientific Expedition activities in 1999, 2003, 2008, and in 2010, mainly in the Bering and Chukchi Seas on the ­Arctic.29 Through a series of investigations into the complex relationships between the

26 Xiamen Zhonghaihang Seaman Service Co., Ltd., “China is Ready to Open the Arctic Waterways,” February 25, 2011, available at http://www.zhhxm.com/en/news_show .aspx?NewsID=177. 27 Polar Research Institute of China, “Polar Oceanographic Science” and “Polar Upper Atmosphere Physics.” 28 Frederic Lasserre, China and the Arctic: Threat or Cooperation Potential for Canada? China Papers, No. 11, June 2010, Canadian International Council, the University of British Columbia, available at http://www.onlinecic.org. 29 Xinhua News Agency, “China joins Arctic Studies Committee,” April 20, 2005, available at http://www.china.org.cn/english/scitech/126310.htm; accessed February 2, 2009.



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sea water, sea ice, and air of the Arctic Ocean, China has obtained a wealth of precious data and samples, which have provided valuable information for future research teams examining the rapid changes in this finely-balanced environment. The results have also been used to study the possible impact of Arctic climate change on China’s own environment. From the perspective of Chinese scientists, such studies will offer an invaluable reference for future decision-making on the nation’s development path, and will help in the prediction and prevention of natural disasters. China has thus accelerated its exploration and study of the Polar Regions at an unprecedented speed. In October 2003, China opened a permanent Arctic research station in Ny-Alesund, Svalbard. In 2004 China built an Arctic satellite observation centre at New Olson, Spitsbergen Archipelago, in Norway.30 The construction of such centers has been permitted by the Norwegian government to the original signatories to the 1920 Treaty concerning the Archipelago of Spitsbergen (Svalbard Treaty),31 and China, Japan, Germany, Italy, France and South Korea, inter alia, have taken advantage of the opportunity.

30 Spitsbergen Archipelago, also known as Svalbard, is a commercially important group of Norwegian islands about 550 miles north of the northernmost part of Norway; total area about 24, 300 sq. m. It comprises a main island, West Spitsbergen, North East Land, Edge Island, Barents Island, and some smaller islands. There were Dutch, ­British, and Norwegian claims to sovereignty in the seventeenth century when there was much lucrative whale-hunting, but the hunting ended and the claims lapsed until the twentieth century when rich coalfields were discovered. The position of Spitsbergen was curious; it might be called a terra nullius, and the states interested in the questions relating to the islands forming the archipelago have declared their intention to preserve this status. 31  Signed by the nine original parties in Paris, France on February 9, 1920; entered into force on August 14, 1925; 40 parties as of January 1, 2010; depositary French Government. Norway’s full sovereignty over the Svalbard archipelago was recognized by the Treaty but stipulates that it must remain demilitarized. Citizens from all State parties enjoy the same right to access to and residence in Svalbard. Eleven institutions from ten countries have established research stations at Ny-Alesund, Svalbard, three of which are permanently manned. The Spitsbergen Archipelago was officially taken over by Norway on August 14, 1925. The Treaty provided that the economic exploitation of the Archipelago should be open equally to all signatory powers. After 1930 only Norway and the U.S.S.R. (Russia having annexed a coalfield in 1912) carried on mining there; in 1941 British, Canadian, and Norwegian forces dismantled or destroyed most of the mining plant to prevent the Germans from benefiting from the mines in case they arrived in the Archipelago. By 1958 coal production was over 600,000 tons annually; there were approximately 1,900 workers in the three Russian camps, and about 1,300 in the three Norwegian camps, one of which was not being operated. Though earnings are high there is a heavy turnover of labour. The islands are ice-blocked for most of the year and there is total darkness from October to February. The mines are valuable source of supply for north Norway, and the Norwegian government has tried to increase production and to reopen the closed mine. Neither Russian requests to discuss the definition of the Archipelago, which were rejected, nor Norway’s commitments under the North Atlantic Treaty have altered its non-military status, for the 1920 Treaty provided that no military bases or fortifications of any kind should be established. Norway’s Royal

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Over the past 25 years, China’s polar research has been mainly focused in the fields of polar glaciology, oceanography, geology, bio-ecology, atmospheric science, and solar-terrestrial physics. In recent years, Chinese solar scientist have acquired a large quantity of precious data, materials, and samples and made many valuable research achievements in the areas of polar ecology, aerophysics, polar oceanography, geology, and icecap study of the Antarctic inland.32 China’s primary Arctic-focused research institutions are: (a) the Polar Research Institute of China (PRIC) in Shanghai, with a staff of 142 people, which is in charge of polar expeditions on Xuelong (the name means “Snow Dragon”)33 and conducts comprehensive studies of the polar regions; (b) the China Institute for Marine Affairs, the research department within the State Oceanic Administration (SOA) in Beijing, which mainly does research on international maritime law and China’s ocean development strategy; and (c) the Institute of Oceanology, a multidisciplinary marine science research and development institute under the Chinese Academy of Sciences. Although there is no Chinese institution devoted specifically to research on Arctic politics, there are a handful of individuals who have published articles and book chapters that focus on Arctic strategies and geopolitics. In the last decade, Chinese researchers and officials have expanded their participation in international seminars concentrating on commercial, legal and geopolitical Arctic issues. In a major step to enhance China’s understanding of the political, legal and military dimensions of the Arctic, in September 2007 the Chinese Government launched a research project entitled Arctic Issues Research involving scholars and officials from around China. By its developing research programs in the area ten research topics are: the Arctic and human society, Arctic resources and their exploitation, Arctic scientific research, Arctic transportation, Arctic law, Arctic Decree of July 12, 1935, as amended by a Decree of December 10, 1937 which applied straight baselines to the areas northward of latitude 66˚ 28.8’ North, i.e., north of the Arctic Circle. Another Royal Decree of June 30, 1955 and September 25, 1970 applied straight baselines around inter alia the Spitsbergen (Svalbard) Archipelago. United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea—Baselines: National Legislation with Illustrative Maps (New York, 1989), 235–246. 32 Tian Xiaoming, “China a Rising Influence in Polar Exploration,” China Pictorial, 735 (September 2009): 14–17. 33 The world’s largest non-nuclear icebreaker, the 21,000-ton Xuelong, was in fact built as a polar transport ship with strong ice capabilities on March 25, 1993 at the Kherson Shipyard in Ukraine. The Xuelong’s general characteristics include: displacement, 21,250 tons; length, 167 meters; beam, 22.6 meters; full draft, 9 meters; maximum distance endurance, 12,000 nautical miles; maximum speed, 17.9 kn; wind capacity, 12 or above; the ability to continuously break 1.2-meter-thick ice (with 20 cm of snow); and complement, 34 crew, or 128 passengers or researchers. Xuelong has served as the backbone of China’s Antarctic mission since its service began in 1994, and showed up in 1999 in Tuktoyaktuk on the Beaufort Sea without having been detected en route.



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politics and diplomacy, military factors in the Arctic, China’s Arctic activities, the Arctic’s strategic position, and China’s Arctic policy and recommendations.34 In 2009, the Chinese Arctic and Antarctic Administration (CAA) completed a two-year research project titled, “Arctic Issues Research,” which involved scholars and officials from throughout the country. Among the ten research topics were: Arctic resources and their exploitation, Arctic transportation, Arctic law, Arctic politics and diplomacy, military factors in the Arctic, China’s strategic position in the Arctic, and China’s Arctic policy and recommendations.35 China, an Ad Hoc Observer in Arctic Council, is Involved in Regional Cooperation On 1 September 19, 1996, the Arctic Council36 was founded by the Declaration on the Establishment of the Arctic Council under Ottawa Declaration; inaugurated on September 17, 1998. There are eight circumpolar member States with sovereignty over territory in that region: Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States; six non-Arctic States with permanent observer status, being France, Germany, Poland, Spain, the Netherlands and the UK; and three non-Arctic States with “ad-hoc status” are, namely, China, Italy and South Korea. The Arctic Council, in which major groups representing indigenous persons are “permanent participants,” focuses on issues related to sustainable development and environmental protection. It acts primarily through a series of subsidiary bodies in which each of the Arctic States and Permanent participants are represented. The Arctic Council is a high level intergovernmental forum for promoting cooperation among the Arctic States. It is not an international organization with a firm

34 Editorial Committee of China Ocean Yearbook, (eds.), [China Ocean Yearbook 2008,] (Beijing, 2007); [China Ocean Yearbook 2008,] (Beijing, 2008); [China Ocean Yearbook 2009,] (Beijing, 2009). 35 Commander James Kraska, “A Diplomatic Solution for the Northwest Passage,” The National Strategy Forum Review [An Online National Security Journal Published by the National Strategy Forum], 19, Issue 3 (Summer 2010): 1–5; available at http://www .nationalstrategy.com. 36 The Arctic Council was founded by the eight States with sovereignty over territory in that region—Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States—in September of 1998 at its first ministerial-level meeting, held at Iqaluit, Northwest Territories, Canada. On April 1, 1999, Iqaluit became the capital of the new Canadian territory of Nunavut. It is a town of approximately 4,000 inhabitants, mostly Inuit, located on Baffin Island in Northern Canada. By holding the Council’s Ministerial Meeting in Iqaluit, the Canadian Government emphasized the essential linkage between the Council and the indigenous communities of the Arctic. Evan T. Bloom, “Establishment of the Arctic Council,” American Journal of International Law, 93 (1999): 712–22.

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legal charter37 but rather is an international forum designed to foster cooperation and collaboration on Arctic issues, notably, the Arctic Climate Impact Assessment, the Protection of the Arctic Marine Environment program, and the Arctic Marine Shipping Assessment program. It also fosters dialogue between members on technical cooperation and economic and social issues. Its general objective is to develop programs and strategies that have coherence, and are consistent with the policy objectives of all the Arctic States. Most member States are opposed to broadening the Council’s mandate to deal with legal issues, however—although they acknowledge that the changing Arctic environment requires increased international cooperation on issues of trans-border interest. In 2000, the United States completed a two-year term as host country for the Arctic Council. The United States views the Arctic Council as an excellent example of regional cooperation contributing to sustainable development. In 2001, the United States continued to pursue important objectives in the Arctic through the Arctic Council. As a result, the U.S. has stressed the importance of the Arctic Council as an achievement highlighted at the World Summit on Sustainable Development, held in August 2002 in Johannesburg.38 Decisions of the Arctic Council are not binding; that suits China’s taste for discussion forums, where global issues can be considered without giving China the feeling that its sovereignty is being infringed upon. China is at a disadvantage because it is neither an Arctic littoral State39 nor an Arctic Council member State with the right to participate in the discussion of Arctic policies. China displayed a real interest in the Arctic by applying for observer status to the Arctic Council in 2008.40 In June 2009, Hu Zhengyue, Chinese assistant minister of foreign affairs, stressed the need for cooperation among Arctic and non-Arctic States. Unsurprisingly, China would like to see the Arctic States recognize the interests of non-Arctic States. As Hu said, “When determining the delimitation of outer continental shelves, the Arctic States need to not only properly handle relationships among themselves, but must also consider the relationship between the outer continental shelf and the international submarine area that is a common human heritage, to ensure a balance of coastal countries’ interests and the common interests of the international community.”41

37 Decisions of the Arctic Council are not binding, and most are opposed to broadening the Council’s mandate. 38 Sally J. Cummins and David P. Steward (eds.), Digest of United States Practice in International Law (Washington DC, 2002), 741. 39 China has no Arctic coast, and so no sovereign rights to underwater continental shelves. 40 In 2008, China’s observer status was nearly granted; it would have been the first Asian country to be given this status. 41 [“China’s Perspective on Arctic Matters,”], Shijie Zhishi, Vol. 55, No. 15 (2009), (author’s translation).



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When considering the concerns of China and other non-Arctic States it is worth bearing in mind that the vast majority of known but untapped energy resources lie in undisputed areas, that is, within the legitimate exclusive economic zones of the Arctic littoral States. China has participated as an ad hoc observer in two Arctic Council ministerial meetings, in 2007 and in April 2009, and hopes that its application for permanent observer status will eventually be granted. Permanent observer status does not differ from ad hoc observer status regarding the influence on the decision-making process in ministerial meetings. Only Arctic Council member States have voting rights.42 China, inter alia, applied to become a permanent observer, and was subsequently turned down along with the EU, Korea and Italy in 2010.43 China, South Korea, and Italy are currently acting as ad hoc observers pending the next ministerial meeting on May 12, 2011.44 Currently, China’s Arctic interest must be understood: China is much concerned with the global impact of climate change. It intends to have a say in international institutions so as to convey its position. The Arctic Council suits China’s taste for discussion forums with no binding power, where global issues can be considered without giving China the feeling its sovereignty is being infringed upon.45 It appears that there are already some internal and external struggles in the Arctic Council among the Arctic-5 and the Arctic-8. Only five of the coastline states are legally entitled to claim the continental shelf and declare an exclusive economic zone, these primary nations are Canada, Denmark, Russia, the U.S. and Norway. The other three, Sweden, Iceland, and Finland are adjacent to the area in question and have limited, not total access, but were afforded the position due to their proximity. Other non littoral states also want their fair share of the resources of the region; and they want to deem the area a common heritage of mankind, thus opening up the resources for all to access. “China Does Not Have an Arctic Strategy” In June 2009, Hu Zhengyue, Chinese assistant minister of foreign affairs, said “China does not have an Arctic strategy.” Hu made his statement while attending an Arctic forum organized by the Norwegian Government on Svalbard. His speech at the forum, along with his comments to Chinese journalists after the forum, forms the most up-to-date and comprehensive official articulation of

42 See website, available at http://arctic-council.org/. 43 No decision was taken by the Arctic Council ministerial meeting on the applications. It also turned down applications by the EU, South Korea and Italy. 44 Full membership is reserved for Arctic countries and indigenous peoples’ organizations; “Arctic Council rejects European Union’s Observer Application,” April 30, 2009, available at http://euobserver.com/885/28043; accessed May 11, 2009. 45 Lasserre, “China and the Arctic,” China Papers, No. 11.

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China’s thinking on the geopolitics of the Arctic and relating sovereignty issues. Beijing in fact does appear to have a clear agenda regarding the Arctic.46 China’s insistence on respect for sovereignty as a guiding principle of international relations deters it from questioning territorial rights of Arctic states. In line with the country’s oft-stated governing principles in international affairs, Hu emphasized China’s wish to see disputes related to sovereignty resolved peacefully through dialogue. He expressed China’s support for Arctic countries’ sovereign and judicial rights as endowed by international laws, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).47 At the same time, according to Hu, China contends that these laws need to be refined and developed due to the circumstances that are arising from the melting of the ice. As noted earlier, China has participated as an ad hoc observer48 in two Arctic Council ministerial meetings, in 2007 and 2009. In that context, Hu stressed the need for cooperation among Arctic and non-Arctic States. He acknowledged that the Arctic is mainly a regional issue but said that it is also an interregional issue due to climate change and international shipping. Hu did not mention energy and other natural resources. Referring more generally to the interests of nonArctic States, Hu said, “When determining the delimitation of outer continental shelves, the Arctic states need to not only properly handle relationships among themselves, but must also consider the relationship between the outer continental shelf and the international submarine area that is the common human heritage, to ensure a balance of coastal countries’ interests and the common interests of the international community.”49 Chinese Strategic Interests in the Arctic China is a giant economy with growing domestic needs dependent on global supply chains. China is building strategic relationships along the sea lanes from the Middle East to the South China Sea in ways that suggest defensive and offensive positioning to protect China’s energy interests, but also to serve broad security objectives.50 China also has built up sea-lane control weapon systems viz. submarines, warships with long range ballistic missiles, undersea mines, aircraft, optical satellites, and unmanned aerial vehicles for use in the maritime environment. It appears that China will pursue enhanced Arctic capability at some point in the

46 X. Ning, [“A Microcosm of the World’s Future—Assistant Minister of Foreign Affairs talks about ‘High North Study Tour,’ ”], Shijie Bolan, 349, No. 19 (2009), 58. 47 For example, with regards to the outer limit of the continental shelf. 48 Ad hoc observer, special observer status. 49 [“China’s Perspective on Arctic Matters,”], Shijie Zhishi, 55, No. 15 (2009), 50 Bill Ridly, “China and the Final War for Resources,” Energy Bulletin, February 8, 2005; available at http://www.energybulletin.net/4301.html.



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future, not simply for time and cost saving reasons, but for more strictly theaterspecific strategic reasons. Specifically, China may attempt to exploit the opportunity of increased Arctic access so it can keep the United States at bay by taking advantage of known U.S. limitations in Arctic monitoring capability and lack of a formidable American presence in the region.51 In 1999, a Chinese icebreaking vessel made an unannounced visit to Tuktoyaktuk in Northern Canada.52 It proved that China has possessed icebreaker capabilities53 and is active in researching the Arctic, including an understanding of the oceanography and mapping of the seabed that would be useful for routing.54 China’s investment in the development and deployment of ice breaking technology is an indicator of its vision for the future. The Arctic routes would take pressure off the supply-chain security threats from the Strait of Malacca and Lombok Strait. Since 80% of Chinese fossil fuel imports pass by ship through the Malacca Strait, an important component of Beijing’s concerns have come to be known in China as the “Malacca Dilemma.”55 With an open Arctic, China’s supply-chains could be dominantly north-south as opposed to the current east-west dependence. There are also concerns over the mutual interdependencies of Russia and China that could actually lead to security tensions, and which could possibly spill out in the Arctic.56 These possibilities depend on whether China and Russia can cooperate on trade and resource issues. Extrapolating China’s resource needs into the future indicates that Beijing could try to maintain its supply chain for Russian resources and those accessible via the Arctic, if faced with stiff competition from other nations. China is primarily interest in two objectives: one, shortened trade routes to Europe and North America, and two, access to natural resources. Several ­Chinese academics have encouraged Chinese government to be aware of the political, economic and military implications of shorter shipping routes and untapped energy resources. However, Chinese officials advocate cautious Arctic policies for fear of causing alarm and provoking countermeasures among the Arctic States.

51 Michael L. Burd, Global Warming and the Combatant Commander: Engaging the Arctic (Newport 2009), 13; available at http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA463334 &Location=U2&doc=GetTRDoc.pdf. 52 X. Han, [“Closely Watched Dispute over Arctic Sovereignty,”], supra note 23, Bingqi Zhishi Fangwu Guancha Jia, Vol. 253, No. 9B (September 2008), 14. 53 David Shukman, “Conflict Fear over Arctic Borders,” BBC News, September 10, 2008; available at http://news.bbc.co.uk/2/hi/science/nature/7606132.stm. 54 “Chief Scientist: China’s North Pole Trip Focuses only on Climate Studies,” People’s Daily Online, July 13, 2008; available at http://english.people.com.cn/90001/90781/90879/ 6449077.html. 55 Gabriel B. Collins, Andrew S. Erickson, Lyle J. Goldstein, and William S. Murray (eds.), China’s Energy Strategy—the Impact on Beijing’s Maritime Policies (Annapolis, 2008). 56 Nemtsova and Matthews, “Fear and Loathing in Siberia.”

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China and International Affairs in the Arctic China has played a very active role in international Arctic affairs. In 1996, it became a member country of the International Arctic Science Committee. In 2005, it joined the Ny-Alesund Science Management Committee, and in 2007 it obtained “special observer” status on the Arctic Council. The ownership of marine natural resources is settled in compliance with the UN Convention on the Law of the Sea. Under the provisions of UNCLOS, states are entitled to 200 nm of the continental shelf, beyond that if a nation can prove the extension of the continent from a geological basis. In the latter case, an additional 150 nm may be added to the natural prolongation of their territory under and into the sea. Proof must be submitted to the UN Commission on the Limits of the Continental Shelf for approval.57 Under Article 234 of the UNCLOS, entitled “Ice-covered Areas,” coastal states are free to adopt and enforce nondiscriminatory laws and regulations in ice-covered areas within the limits of the EEZ in order to reduce and contain pollution. This article is problematic in that “ice-covered areas” are not specifically precise, and many would argue that an “ice-covered exception” of special coastal state authority is already established as a norm in general international law.58 Article 123: “Cooperation of States bordering enclosed or semi-enclosed seas,” is of special note, for if the Arctic basin is considered Article 123 will apply. As such, this article calls upon States bordering the area to not only cooperate and coordinate the use, study, and exploitation of the area, but also, to invite other interested States to cooperate with them. Once again, qualifying language in the text is less than obligatory, with the use of “should” and “shall endeavor,” making the duty to cooperate less of a mandate and more of a suggestion.59 China and the rest of the world would be at a disadvantage if Russia’s claims over the underwater terrain between the Lomonosov and Mendeleev ridges are legitimized because, in that case, Russia alone would have rights to the resources in that area. The UN Commission on the Limits of the Continental Shelf (CLCS) rejected their initial claim, requesting further geological evidence to prove the natural prolongation of the land territory under the sea.60 Even if that claim is unsuccessful, some Chinese Arctic specialists have expressed concern that the commercial advantage of the Arctic routes would substantially decrease if Russia

57 Natalya King, “Who Owns the Artic?” The Casual Truth, February 25, 2011; available at http://thecasualtruth.com/story/who-owns-arctic. 58 Douglas M. Johnston (ed.), Arctic Ocean Issues in the 1980’s, 12–13. 59 Ibid., 14. 60 Russia first staked its claim in the Arctic in 2001, submitting a claim to the UNCLCS for 460,000 square miles of resource-rich Arctic waters. Even though this claim was unjustified, the Kremlin still sent submarines to plant its flag on the North Pole’s sea floor.



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were to unilaterally charge exorbitant service fees for ships passing through its exclusive economic zone (EEZ) waters.61 While the melting of the Arctic ice could create tension in China–Russia relations, the new opportunities that will arise as a result of an ice-free Arctic could deepen cooperation among East Asian States., China, Japan, North Korea and South Korea as non-Arctic States none of them have Arctic coastlines. Each of them stands to benefit enormously from shorter commercial shipping routes and possible access to new fishing grounds and other natural resources. A unified Arctic strategy would be in their mutual interest. Finding ways to jointly use an ice-free Arctic has the potential to create a genuine win–win situation for both China and Japan, the two East Asian powers which in so many other areas find it difficult to find common ground. From China’s viewpoint, an ice-free Arctic will also increase the value of strong ties and broader cooperation with the Nordic countries that otherwise struggle to be noticed by the rising great power that is preoccupied by global challenges. As a trading nation, China has a large stake in the Arctic as well. The Arctic routes reduce costs and diversify strategic supply chains. As consumers, they will also be eager to utilize the energy resources. Chinese demand for resources may fundamentally alter global shipping patterns if the Arctic routes become routinely navigable.62 The reduction in Arctic ice coverage may quickly open the Arctic for routine, seasonal marine transport. The length of the season may “naturally” grow rapidly from melting of ice, but the intensive use of icebreakers may also greatly extend the shipping season beforehand. With its nuclear-power icebreakers, the Russians claim they already have year-round service.63 Between 1982 and 2005, the summer sea-ice declined by an area equivalent of 22 Western U.S. states, mostly on the Russian side.64 In 2005, a vessel reached the North Pole without the use of icebreakers.65 The Department of Homeland Security and the U.S. Coast Guard watch the Arctic changes as transcending sterile scientific

61  J. Zhang, [“The Arctic: ‘Age of Expedition’ to ‘Age of Scramble,’ ”] Jingji Cankao Bao, April 10, 2009; J. Liu, and Q. Guan, [“Disputes Arise in the Arctic’s ‘Golden Route,’ ”], Huanqiu, No. 22 (2008). 62 Committee on the Assessment of U.S. Coast Guard Polar Icebreaker Roles and Future Needs, National Research Council, Polar Icebreakers in a Changing World: An Assessment of U. S. Needs, (Washington, D.C., 2007), 33; available at http://www.nap.edu/ catalog.php?record_id=11753. 63 Oleg Bukharin [Taylor & Francis Group, LLC], “Russia’s Nuclear Icebreaker Fleet,” Science and Global Security, 14 (2006): 25–31; available at http://www.princeton.edu/ ~globsec/publications/pdf/14_1_25–31_Bukharin.pdf. 64 Izvestia Nauki, “Russia Builds World’s Biggest Nuclear Icebreaker,” Pravda, March 1, 2006; available at http://english.pravda.ru/science/tech/01-03-2006/76685-icebreaker-0. 65 Erich Wiedemann, “Profiteering from the Arctic Thaw,” Der Speigel, March 10, 2006; available at http://www.spiegel.de/international/0,1518,405320,00.html.

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explanations. They recognize the global economic impacts of an opening and the security implications it would incur. First is the fact that the nature of U.S. interests in the Arctic are likely to ratchet up considerably over the next few years. As ice melts, the area, believed to contain vast oil and gas reserves and other mineral riches, is likely to become far more accessible to exploration and development by American companies, and thus the locus of hundreds of billions of dollars worth of critical energy and other industrial infrastructure. The rapid melting of the summer sea ice will also open up the fabled Northwest Passage and other shipping lanes to unprecedented volumes of foreign commercial and perhaps military fleets.66 China seeks to gain more of a role in the Arctic both politically and economically. It is currently not only building what will be the world’s largest icebreaker for polar research but also the possibility of new trade routes and positioning itself for an influential role in the emerging realm of polar geopolitics.67 Conclusion China, a rising influence in Arctic exploration, is paying increasing attention to the consequences of the melting of the ice in the Arctic Ocean as a result of climate change. Chinese officials have thus begun to think about what kind of Arctic strategy and policies would help China benefit from an ice-free Arctic environment. Despite its seemingly weak outside position, China can be expected to seek a role in determining the political framework and legal foundation for future Arctic activities. It appears that China will pursue enhanced Arctic capability at some point in the future, not simply for time and cost saving efficiency, but also for more comprehensive theater-strategic positioning in the Arctic region. Specifically, China may attempt to exploit the opportunity of increased Arctic access so it can keep the United States at bay by taking advantage of known U.S. limitations in Arctic monitoring capability and lack of formidable presence in the region. On the Arctic Council, there is dispute over the sovereign right of the resources of the Arctic region, stemming from both inside and out of the Council. While only five countries have actual coastlines in the area, and therefore should be legally entitled to access, there are three other countries with limited, not total

66 Phil Leggiere, “The Arctic Heats Up As Security Focus,” Homeland Security Today, August 11, 2008; available at http://www.hstoday.U.S./content/view/4655/149/. 67 Randy Boswell, “China Moves to Become Major Arctic Player,” Canwest New Service, March 1, 2010; Mia Bennett, “Report: China to Become More Involved in Arctic,” Foreign Policy Association Blogs, March 5, 2010; available at http://foreignpolicyblogs.com/ 2010/03/05/report-china-to-become-more-involved-in-arctic/.



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access to the resources available. This seems to present an opening for grounds upon which other non littoral states can lay claim to their own right of access. As such, many want to deem the area a common heritage of mankind thus enabling a fair share for all. Despite its lack of Arctic coastlines, China is striving to position itself so that it will not be excluded from access to the Arctic.

part four

hightened challenges

twenty-five

Piracy and the Law of the Sea Helmut Tuerk*

Even with the many advances in technology we have seen, seaborne commerce remains the linchpin of global economy. According to the International Maritime Organization (IMO) “more than 90 percent of global trade is carried by sea.”1 There are, however, critical choke points for maritime traffic. Most prominent among them, the Strait of Malacca, transited by around 50,000 vessels annually transporting about 50% of the total volume of oil transported by sea and the Gulf of Aden, with about 22,000 vessels annually coming from or sailing to the Suez Canal, carrying more than 12% of that volume.2 Pirate attacks occur mainly in five major geographical areas: the Gulf of Aden and off the coast of Somalia; the Gulf of Guinea, near Nigeria and the Niger River delta; the South China Sea; the Malacca Strait between Indonesia and Malaysia;

* This article is based on the book by the author, Reflections on the Contemporary Law of the Sea, Chapter V, “The Resurgence of Piracy,” and Chapter VI, “Terrorism at Sea;” V. Lowe and R. Churchill (gen. eds.), Publications on Ocean Development, Volume 71, Martinus Nijhoff Publishers (Leiden, Boston, 2012). See further the articles by the author, “Combating Terrorism at Sea—The Suppression of Unlawful Acts against the Safety of Maritime Navigation,” University of Miami International and Comparative Law Review, 15 (Special Issue, Spring 2008), and “The Resurgence of Piracy: A Phenomenon of Modern Times,” University of Miami International and Comparative Law Review, 17 (Fall 2009). Opinions expressed in this article are personal. 1  S. Borgerson, The National Interest and the Law of the Sea, Council on Foreign Relations: Council Special Report No. 46 (May 2009), Foreword by R.N. Haass, available at http://www.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf (last visited June 26, 2009). 2 See “Piracy in waters off the coast of Somalia,” available at http://www.imo.org/TCD/ mainframe.asp?topic_id=1178 (last visited May 11, 2009); see also “IMO to take Straits initiative,” 93rd session, available at http://www.imo.org/About/mainframe.asp?topic_ id=848anddoc_id=4466 (last visited June 25, 2009).

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and the Indian subcontinent, particularly between India and Sri Lanka.3 According to the IMO the total number of acts of piracy and armed robbery against ships so far reported to the Organization since it began compiling relevant statistics in 1984 was 5509 by September 1, 2010;4 it is, however, also believed that, in general, incidents of piracy and armed robbery at sea are considerably underreported.5 Thus the actual number of such incidents might be even much higher. In 2009, maritime piracy reached its highest level since the Piracy Reporting Centre (PRC) of the International Maritime Bureau (IMB) began tracking piracy incidents in 1992: A total of 406 incidents of piracy and armed robbery were reported, with 217 incidents attributed to Somali pirates.6 This surge in sea robbery is unprecedented and perhaps the most significant eruption of such criminal activity in 200 years.7 Current day piracy has been estimated to cost between $13 and $16 billion every year.8 According to the IMB, in the first half of 2010, however, pirate attacks worldwide were down by nearly 20% in comparison with the corresponding period in 2009.9 The resurgence of piracy and armed robbery against ships is attributable to many factors, from the poverty of coastal populations and desire for financial gain, to the weakness of some States’ policing functions, or even, as in the case of Somalia, the absence of an effective government and economic collapse. One

3 S. Hanson, Combating Maritime Piracy, Council on Foreign Relations, January 7, 2010 (updated), available at http://www.cfr.org/publication/18376/combating_maritime_piracy .html (last visited April 5, 2010).; see also Lloyds list—Regulation—“South China Sea is new piracy hot spot,” available at http://www.lloydslist.com/II/sector/regulation/ article345194.ece (last visited 1 October 1, 2010). 4 See IMO, Reports on Acts of Piracy and Armed Robbery against Ships, MSC.4/Circ.159 (September 1, 2010), available at http://www.imo.org/includes/blastDataOnly.asp/data_ id%3D29579/159.pdf (last visited October 1, 2010). 5 See IMO, Piracy and Armed Robbery at Sea, Focus on IMO (January 2000), available at http://www.imo.org/includes/blast_bindoc.asp?doc_id=433andformat=PDF (last visited April 5, 2010), at 2. 6 ICC IMB Annual Report 2009, Piracy and Armed Robbery against Ships ( January 2010), at 25. A short summary is available at http://www.icc-ccs.org/index.php?option=com_ contentandview=articleandid=385:2009-worldwide-piracy-figures-surpass-400and catid=60:newsandItemid=51 (last visited April 5, 2010). 7 Worldwide in 2009, 153 vessels were boarded, 49 vessels were hijacked, 84 attempted attacks and 120 vessels fired upon—compared to 46 ships fired upon in 2008. A total of 1,052 crew members were taken hostage. Sixty-eight crew were injured in the various incidents and eight crew killed. The level of violence towards the crew has increased along with the number of crew injuries; see ICC IMB Annual Report 2009 (note 6), at 25; see further M. Silva, “Somalia: State Failure, Piracy, and the Challenge to International Law,” Virginia Journal of International Law 50 (2010), at 560. 8 J. Kraska and B. Wilson, “Piracy Repression, Partnering and the Law,” Journal of Maritime Law and Commerce 40 (2009), at 44. 9 See http://www.lloydslist.com/11/section/ship-operations/article173676.ece (last updated October 6, 2010).



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must also consider the deficiencies of the legal environment characterized by both an insufficient legal framework and the lack of a response mechanism to counter piratical activities.10 What is commonly thought of as piracy has existed for thousands of years.11 Early historians have suggested that acts of piracy can be traced back to the beginnings of navigation, having been regarded only as one of the means of livelihood that the sea offered.12 The concept of piracy has undergone an important evolution, however, from that time until its codification in the 20th century. In antiquity almost anyone who attacked another on the open sea was referred to as a “pirate.”13 It was only in the late Middle Ages that the word “piratae” began to be understood as “sea thieves.”14 Piracy, which was most prevalent in the Mediterranean Sea and on the trade routes between Europe and the Americas, reached its heyday during the 17th and 18th centuries.15 While piracy was cracked down on as disturbing “the commerce and friendship betwixt different nations,”16 privateering authorized by a sovereign was often openly encouraged and became the preferred method of plunder on the high seas.17 With trade flourishing in the relative calm after Napoleon’s demise, nations, however, began to increasingly view not only piracy but also the activities of privateers or corsairs as detrimental to their commercial and national interests. Thus in 1856 the “Declaration Respecting Maritime Law”18 was signed in Paris, outlawing such state-sponsored piracy,19 by stating that “privateering is, and remains, abolished.”20 Piracy dwindled to the point of being a controllable and almost unnoticeable activity at the end of the 19th century and for the greater part of the 20th ­century; it seemed to have faded away into the mists of history. The crime of piracy thus

10 J.L. Jesus, “Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects,” The International Journal of Maritime and Coastal Law 18 (2003), at 365; see also N. Stracke and M. Bos, “Piracy—Motivation and Tactics: The Case of Somali Piracy,” Gulf Research Center, (2009) at 16 and Jesus, Chapter 1, supra. 11  J.M. Goodwin, “Universal Jurisdiction and the Pirate: Time for an Old Couple to Part,” Vanderbilt Journal of Transnational Law 39 (2006): 973, at 976. 12 See id., at 977. 13 See id. 14 A.P. Rubin, The Law of Piracy, (Honolulu, 2006), at 13. 15 I. Shearer, “Piracy,” Max Planck Encyclopedia of Public International Law (Heidelberg, 2009), at 2, available at http://www.mpepil.com (last visited April 8, 2010). 16 See Goodwin, “Universal Jurisdiction and the Pirate: Time for An Old Couple to Part” (note 11), at 996. 17 See id., at 981. 18 See J.D. Peppetti, “Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats,” Naval Law Review 55 (2008), at 87. 19 See M. Bahar, “Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations,” Vanderbilt Journal of Transnational Law, 40 (2007), at 11. 20 See Declaration Respecting Maritime Law, Paris, April 16, 1856, available at http://www .icrc.org/IHL.nsf/INTRO/105?OpenDocument (last visited June 30, 2009).

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also began to disappear from some criminal codes or had not been included therein in the first place.21 In the 1960s, piracy, however, slowly started its surge towards emerging by the 1980s once more as a regional, if not a global, menace. Under customary international law there is no authoritative definition of piracy and the municipal law of a number of countries is based on an extensive interpretation of that term which has been defined as broadly as “any armed violence at sea which is not a lawful act of war.”22 Many countries thus criminalize “piracy” that takes place in their own territorial sea or even in their internal waters; but still, this is not piracy under the terms of international law.23 The notion of piracy was first codified—on the basis of preparatory work by the International Law Commission (ILC)—by the 1958 Geneva Convention on the High Seas24 and later by the 1982 United Nations Convention on the Law of the Sea (UNCLOS)25 in articles 100 to 107 and 110, which almost literally repeat articles 14 to 22 of the 1958 Convention. Some countries which are not yet parties to UNCLOS are never­ theless bound by the 1958 Convention so that the respective articles state the international law on piracy currently in force.26 Article 15 of the 1958 Geneva Convention and Article 101 of UNCLOS define piracy, in particular, as any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed on the high seas, against another ship or aircraft, or against persons or property on board of such ship or aircraft. The intention to rob—animus furandi—is not required. Acts of piracy may also be prompted by feelings of hatred or revenge and not merely by the desire for gain,

21  There are, for instance, no piracy offences in Somali law; see Nairobi Workshop Final Report on Piracy off the Somali Coast, (2008), at 11, available at http://www.imcsnet.org/ imcs/docs/somalia_piracy_intl_report_consolidated.pdf (last visited October 1, 2010). Spain deleted that offence from its Criminal Code in 1995 and France, as late as 2007; see P. Obelleiro, “Juristas internaciones debaten en A Coruña sobre la pirateria,” El Pais, May 16, 2009. 22 M. Halberstam, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety,” American Journal of International Law 82 (1988): 269, at 273. 23 M.H. Passman, “Protections Afforded to Captured Pirates Under the Law of War and International Law,” Tulane Maritime Law Journal 33 (2008), at 5. 24 See Geneva Convention on the High Seas, April 29, 1958, entered into force on September 30, 1962, 450 UNTS 11, at 82, available at http://untreaty.un.org/ilc/texts/instruments/ english/conventions/8_1_1958_high_seas.pdf (last visited June 30, 2009). 25 See United Nations Convention on the Law of the Sea, December 10, 1982, entered into force on November 16, 1994, 1833 UNTS 3, available at http://www.un.org/Depts/los/ convention_agreements/texts/unclos/unclos_e.pdf (last visited June 29, 2009), [hereinafter UNCLOS]. 26 T. Treves, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia,” European Journal of International Law 20 (2009): 399, at 401.



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but the acts must be committed for “private ends.”27 This criterion thus removes attacks on shipping “for the sole purpose of achieving some political end” from the concept of piracy under current international law. Acts of violence and depredation exerted by activist environmental groups or persons, in connexion with their quest for enhanced protection of the marine environment, seem therefore likewise to be excluded.28 Piracy can only be committed by private ships and not by warships or other government ships—except when the crew has mutinied and taken control of the ship; and piracy can only be committed on the high seas or in a place outside the territorial jurisdiction of any State.29 Acts committed on board a ship by the crew or passengers and directed against the ship itself or against persons or property on the ship cannot be regarded as acts of piracy.30 It has also rightly been pointed out that the meaning of the word “illegal” in the definition of piracy is unclear and that the legislative history is not enlightening. It is thus for the courts of the prosecuting State to decide whether the act of violence under consideration is illegal under international law or under the national law of that State.31 The effectiveness of the rules on piracy enshrined in UNCLOS has certainly suffered from the fact that these rules are limited to the high seas and the exclusive economic zone. Pirates are thus able to evade pursuit by crossing into territorial waters, which constitutes a genuine problem.32 In past years, most attacks against ships have taken place when they were transiting the territorial sea or when in port or at anchor.33 The IMB has therefore, for statistical purposes, adopted a

27 See S.N. Nandan, S. Rosenne and N. Grandy (eds.), United Nations Convention on the Law of the Sea: A Commentary, Vol. III, Articles 86–132, Center for Oceans Law and Policy: University of Virginia Law School (Dordrecht, 1995), at 199 [hereinafter Virginia Commentary]; see also J. Hjalmarsson, “Piracy and International Law,” Shipping and Trade Law, (2008), at 1. 28 See Jesus, “Protection of Foreign Ships” (supra note 10), at 379. 29 See Articles concerning the Law of the Sea with Commentaries, Yearbook of the ILC, Volume I, (1956), at 282; available at http://untreaty.un.org/ilc/texts/instruments/english/ commentaries/8_1_8_2_1956.pdf. 30 See Id. 31 R. Wolfrum, “Fighting Terrorism at Sea: Options and Limitations under International Law,” in M.H. Nordquist et al. (eds.), Legal Challenges in Maritime Security (The Hague, 2008), at 8: see also Virginia Commentary (note 27), at 201; see further A. Morita, “Piracy Jure Gentium Revisited: For Japan’s Future Contribution,” Japanese Yearbook of International Law 51 (2008): 76, at 79. 32 C.D. Guilfoyle, “Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter Piracy Efforts,” International Comparative Law Quarterly 57 (2008): 690, at 694. 33 See IMO, Piracy and Armed Robbery at Sea (note 5), at 4; see also R.C. Beckman, “The 1988 SUA Convention and 2005 SUA Protocol: Tools to Combat Piracy, Armed Robbery and Maritime Terrorism,” in R.H. Burns et al. (eds.), Lloyd’s MIU Handbook of Maritime Security (New York. 2009), at 188.

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broader definition than the one retained by UNCLOS. Under that definition, piracy and armed robbery at sea is “an act of boarding or attempting to board any ship with apparent intent to commit theft or any other crime with the apparent intent or capability to use force in the furtherance of that act.”34 This definition covers all actual or attempted acts of armed robbery against ships, perpetrated in the territorial sea and archipelagic waters, as well as attacks against ships at anchor or berthed. Petty thefts are excluded unless the thieves are armed.35 In 2001 the IMO adopted the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships,36 defining “piracy” as meaning unlawful acts as set forth in article 101 UNCLOS. “Armed robbery” was defined as “any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of ‘piracy,’ directed against a ship or against persons or property on board such a ship within a State’s jurisdiction over such offences.” This clear distinction between piracy and “armed robbery against ships” also makes it evident that the special jurisdictional rules on piracy—universal jurisdiction—are not applicable to armed robbery.37 Piracy is the oldest and one of the few crimes where universal jurisdiction has been generally recognized under customary international law.38 The right to take enforcement measures against pirates is vested in all States. Any one of them has therefore the right to capture and punish pirates under its own municipal law, even when the accused pirate is not a national of the State and the crime was neither committed against its nationals nor within its territorial sea. The principle of universal jurisdiction is also reflected in Article 105 UNCLOS39 which provides that on the high seas, or in any place outside the jurisdiction of any State,40

34 See D. Johnson and E. Pladdet, Maritime Piracy in Asia, available at http://www.iias.nl/ nl/32/IIAS_NL32_45.pdf (last visited June 30, 2009). 35 See ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships,” Annual Report, available at http://www.southchinasea.org/docs/ICC-IMB-PRC-2007. pdf (last visited June 30, 2009), at 4; see also J.I. Winn and K.H. Govern, “Maritime Pirates, Sea Robbers, and Terrorists: New Approaches to Emerging Threats,” Homeland Security Review 2 (2008): 131, at 137. 36 See IMO, Assembly Resolution A.922(22), Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships, adopted on November 29, 2001, available at http://www.imo.org/includes/blastDataOnly.asp/data_id%3D23528/ A922(22).pdf (last visited June 25, 2009). 37 See R.C. Beckman, “Combating Piracy and Armed Robbery against Ships in Southeast Asia: The Way Forward,” Ocean Development and International Law 33 (2002), at 319, 320. 38 See Halberstam, “Terrorism on the High Seas” (supra note 22), at 272. 39 M.H. Passman, “Protections Afforded to Captured Pirates under the Law of War and International Law,” Tulane Maritime Law Journal 22 (2008): 1, at 5. 40 In its commentary on article 39 of its 1956 draft articles, the ILC stated that piracy “cannot be committed within the territory of a State or in its territorial sea” as it considered it to be a matter for the State affected to take the necessary measures for the repression



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every State may seize a pirate ship or aircraft, arrest the persons responsible, and seize the property on board. That principle has further found its expression in Article 110 (1) UNCLOS relating to the right of visit of vessels on the high seas. This provision generally prohibits all acts of interference by warships regarding foreign ships on the high seas save for certain exceptions, one of which is that “the ship is engaged in piracy.”41 Universal jurisdiction with respect to pirates was theoretically justified by applying to them the concept of hostis humani generis, that is, enemies of all mankind.42 It has been critically observed that the labelling of pirates as “hostes humani generis” was neither accurate nor able to provide a good reason to apply universal jurisdiction to piracy. A pirate did not need to be truly the “enemy of all mankind” to be found guilty of piracy and have universal jurisdiction applied, nor was piracy more heinous than a number of other serious crimes.43 Applying universal jurisdiction to piracy had the potential to cause international tension, as it might be used merely to harass political opponents or for aims extraneous to criminal justice. Furthermore, the right of a pirate to due process would be violated,44 in particular as he could not know in advance to whose law he would be subject when a country exercised universal jurisdiction; with the punishments for piracy greatly varying, ranging from three years in prison to life imprisonment or even capital punishment—the universal penalty in previous centuries.45 According to Article 107 UNCLOS a seizure of a ship or aircraft on account of piracy may, however, only be carried out by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. The courts of the seizing State may decide on the penalties to be imposed and determine the action to be taken with regard to the seized vessel and property, subject to the rights of third parties acting in good faith.46 The language of Article 105—“may”—seems to indicate that the exercise of jurisdiction by the seizing State’s court is a possibility, not an obligation,

of the acts committed within its territory. See Virginia Commentary (supra note 27), at 201. 41  See Shearer, “Piracy” (supra note 15), at 3. 42 See Halberstam, “Terrorism on the High Seas” (supra note 22), at 288; see also Jesus, “Protection of Foreign Ships” (supra note 10), at 384; see further T. Garmon, “International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake of September 11th,” Tulane Maritime Law Journal 27 (2002–2003): 257, at 259. 43 See J.M. Goodwin, “Universal Jurisdiction and the Pirate” (supra note 11), at 994, 995. 44 See id., at 1003–1007. 45 See id., at 997, 998; see also R. Collins and B. Hassan, “Applications and Shortcomings of the Law of the Sea in Combating Piracy: A South East Asian Perspective,” Journal of Maritime Law and Commerce, 40 (2009), at 102; see further N. Dahlvang, “Thieves, Robbers and Terrorists: Piracy in the 21st Century,” Regent Journal of International Law 4 (2006), at 39, 40. 46 See Shearer, “Piracy” (supra note 15), at 3.

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­ otwithstanding the “duty” to cooperate in the repression of piracy laid down in n Article 100 UNCLOS. In any case, the rules of international law on action to be taken against pirates permit action, but are far from ensuring that such action is effectively taken.47 Article 100 of UNCLOS, literally corresponding to Article 14 of the Geneva Convention, provides that “all States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The question has arisen whether UNCLOS regulates the seizure of pirates as a right or a duty, that is, whether the parties to UNCLOS are obliged to adopt and implement anti-piracy legislation. The view seems justified that the suppression of piracy besides being a right is also an international duty.48 As the ILC pointed out in its Commentary, “[A]ny State having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law. Obviously, the State must be allowed a certain latitude as to the measures it should take to this end in any individual case.”49 The eradication of piracy and armed robbery at sea not only calls for coordination among the international community but also for the close involvement of regional actors.50 An excellent example therefore is to be found in the Strait of Malacca,51 one of the “world’s vital maritime passages,” an area which until 2005 was the main hotspot for piracy and was in that year even classified as a “war zone” for purposes of indemnity coverage.52 In 2004 the “Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP)”53 was adopted, expressly reaffirming the respective duty of States under UNCLOS.54 The central feature of this Agreement—which entered into force in 2006 and

47 See Treves, “Piracy, Law of the Sea, and Use of Force” (supra note 26), at 4. Compare Hayashi, Chapter 15, infra, at pp. 15. 48 A. Blanco-Bazán, “War against piracy?: Some Misconceptions and Oversights in the Repression of Crimes at Sea,” II diritto marittimo, Anno CXI, Terza Serie, Fascicolo I (2009), at 266; see also Wolfrum, “Fighting Terrorism at Sea” (supra note 31), at 9. 49 See Articles concerning the Law of the Sea with Commentaries, Yearbook of the ILC (supra note 29), at 282. 50 Commissioner J. Borg, “Combating Piracy: Strength in Unity,” Address at the Seminar on Piracy and Armed Robbery against Shipping: To Prevent, Deter, Protect and Fight Against an ACTUAL Threat, at 3 (2009), available at http://ec.europa.eu/transport/maritime/ events/doc/2009_01_21_piracy/dr_borg_closing.pdf (last visited October 1, 2010). 51  See id. 52 See J.I. Winn and K.H. Govern, “Maritime Pirates, Sea Robbers, and Terrorists: New Approaches to Emerging Threats,” Homeland Security Review 2 (2008), at 133. 53 International Maritime Organization, Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), adopted in Tokyo on November 11, 2004, entered into force on September 4, 2006, International Legal Matters 44 (2005), at 829. 54 See M. Hayashi, “Introductory Note to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia,” International Legal Matters 44 (2005), at 827.



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to which 17 States are party55—is the establishment of an Information Sharing Centre in Singapore.56 The Malacca Strait has seen a notable decline in attacks against shipping in recent years;57 by working together, Indonesia, Malaysia, Singapore and Thailand have cut the number of pirate attacks by more than half since 2004.58 Addressing the problem of piracy off the coast of Somalia, the IMO in 2007 adopted Resolution A.1002(25),59 in which it asked the Transitional Federal Government (TFG) of Somalia to advise the Security Council that it consents to warships or military aircraft, or other government ships or aircraft, entering its territorial sea when engaged in operations against pirates or suspected pirates and armed robbers. In addition, regional States in East Africa were called upon to conclude an international agreement to prevent, deter and suppress piracy. The IMO further developed such a draft regional agreement60 which may be applied to any region and presents an ideal model for States seeking to work more closely together in that field. As a result of the endeavours by the IMO, a Code of Conduct61 to repress acts of piracy and armed robbery against ships was adopted in Djibouti in January 2009. It is open for signature by the 21 countries in the region and has so far been signed by 16 States.62 The Code provides for 55 These States are: Bangladesh, Brunei Darussalam, Cambodia, China, India, Indonesia, Japan, Korea, Laos, Malaysia, Myanmar, Philippines, Singapore, Sri Lanka, Thailand, Vietnam, available at http://recaap.org; Denmark became the first non-Asian Contracting Party on November 20, 2010; see corresponding press release, available at http://www.recaap.org/news/pdf/press/2010/Joint%20Press%20Release%20(20%20 Nov%2010).pdf (last visited December 7, 2010). 56 See Hayashi, “Introductory Note to the Regional Cooperation Agreement” (supra note 54), at 3. See Kim and Lee, Chapter 16, infra. 57 See C.D. Guilfoyle, “Piracy off Somalia” (supra note 32), at 691. 58 A. Costa, Fighting Piracy on Land and at Sea, Testimony to the U.S. House of Representatives, Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight (2009), available at http://www.unodc.org/unodc/en/about-unodc/ speeches/2009–14–05.html (last visited April 5, 2010). 59 See IMO, Assembly Resolution A.1002(25), Piracy and Armed Robbery Against Ships in Waters off the Coast of Somalia, adopted on November 29, 2007, available at http:// www.imo.org/includes/blastData.asp/doc_id%D27087/1026.pdf (last visited April 24, 2010). 60 See Piracy and Armed Robbery Against Ships: Recommendations to Governments for Preventing and Suppressing Piracy and Armed Robbery Against Ships, International Maritime Organization, MSC/Circ. 622/Rev. 1, June 16, 1999, Appendix 5, Annex, at 12. 61  IMO, Press Briefing, High-level meeting in Djibouti adopts a Code of Conduct to repress acts of piracy and armed robbery against ships, International Maritime Organization Briefing, available at http://www.imo.org/About/mainframe.asp?topic_id=1773anddoc_ id=10933 (last visited April 5, 2010) [hereinafter Code of Conduct]. 62 These States are: Comoros, Djibouti, Egypt, Ethiopia, Jordan, Kenya, Madagascar, Maldives, Mauritius, Oman, Saudi Arabia, Seychelles, Somalia, Sudan, United Republic of Tanzania, and Yemen; countries eligible to sign: Eritrea, France, Mozambique, South Africa and United Arab Emirates; see http://www.imo.org/OurWork/Security/PIU/ Pages/Signatory-States.aspx (last visited December, 6, 2010).

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information ­sharing, interdicting ships suspected in engaging in acts of piracy or armed robbery, the apprehension and prosecution of suspects and also covers the possibilities of shared operations, such as nominating law enforcement or other authorized officials to embark in the patrol ships or aircraft of another signatory.63 While piracy and terrorism at sea have many similarities, and while both are forms of violent interference with shipping,64 there is a marked difference between the goals of pirates and goals of terrorists: while pirates usually seek financial gain, terrorists wish to make a “political or ideological” point, most often coupled with the wanton destruction of human life.65 There is no authoritative definition of terrorism, but all definitions have several elements in common: first, there must be actual or threatened violence; second, a political motive is necessary; finally, the acts must be directed at and intended to influence a targeted audience. The overall facet of these common elements is arguably that an act is not terrorism unless it possesses a deliberate political motive.66 The view has been expressed that to expand piracy to include terrorist acts would undermine the anti-piracy regime since the strategies to combat each crime are “poles apart.” The offences, according to this view, should therefore continue to be treated separately.67 * * * The hijacking of the Italian-flag cruise ship Achille Lauro in 1985 led to a more profound examination of the legal relationship between piracy and maritime 63 See id. 64 See Jesus “Protection of Foreign Ships” (supra note 10), at 363. 65 H. Tuerk, “Combating Terrorism at Sea—The Suppression of Unlawful Acts Against the Safety of Maritime Navigation,” International and Comparative Law Review University of Miami, Special Issue, 15 (2008): 337, at 343. This article can also be found in M.H. Nordquist et al. (eds.), Legal Challenges in Maritime Security, (Leiden, Boston; 2008), at 41; see also L. Diaz and B.H. Dubner, “On the Problem of Utilizing Unilateral Action to Prevent Acts of Sea Piracy and Terrorism: A Protective Approach to the Evolution of International Law,” Syracuse International Law and Commerce Journal 32 (2004–2005); see further T. Sittnick, “State Responsibility and Maritime Terrorism in the Strait of Malacca: Persuading Indonesia and Malaysia to take Additional Steps to Secure the Strait,” Pacific Rim Law and Policy Journal 14 (2005): 743 , at 751. 66 See J. Power, “Maritime Terrorism: A New Challenge for National and International Security,” Barry Law Review 10 (2008), at 114, 115. 67 See Collins and Hassan (supra note 45), at 100. The U.S. Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations states that terrorist attacks on shipping “for the sole purpose of achieving some political end are arguably not piracy under current international law;” see M. Bahar (supra note 19), at 27. For a different view see N. Stillwell, “Robbers or Robinhoods?: A study of the Somali Piracy Crisis and a Call to Develop an International Framework to Combat Maritime Terrorism,” Loyola Maritime Journal Volume 7B (2008–2009), at 128. This article argues “that while some Somali attackers are pirates, other are more akin to maritime terrorists.”



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terrorism. It soon became clear that the “private-ends criterion” and the “twovessel requirement,” as enshrined in the 1958 Convention on the High Seas and UNCLOS, made the rules of piracy inapplicable to the seizure of that cruise ship, and there was thus an obvious legal lacuna which had to be filled by creating a specific convention relating to maritime terrorism.68 As a consequence, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA)69 and a Protocol relating to Fixed Platforms on the Continental Shelf were adopted in 1988 on the basis of a proposal submitted by Austria, Italy and Egypt. This Convention—which entered into force in 1992 and at present counts 156 States parties70—is in substance based on previously existing anti-terrorism conventions by adapting their provisions to the maritime field.71 Its core provision is the requirement for States “to extradite or prosecute”—dedere aut iudicare.72 In support of that framework States parties are required to establish their jurisdiction over specified offences and to make these punishable by appropriate penalties, taking into account their grave nature.73 There is, however, no absolute obligation to extradite, as the possibility of non-extradition for political offences as well as the right to grant asylum are maintained. Nor is there an absolute duty to punish because the State in whose territory the offender is found is only required “to submit the case without delay to its competent authorities for the purpose of prosecution.”74 In 2005, in the wake of the traumatic events of September 11, 2001, amending Protocols to the SUA Convention and Protocol were adopted, significantly expanding the scope of these instruments by providing for the first time an international treaty framework for combating and prosecuting individuals who use a ship as a weapon or means of committing a terrorist attack, or who transport 68 See Tuerk, “Combating Terrorism at Sea” (supra note 65), at 342–344; see also Jesus “Protection of Foreign Ships” (supra note 10), at 388; see further C. Tiribelli, “Time to Update the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,” Oregon Review of International Law 8 (2006): 133, at 144. 69 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, adopted on March 10, 1988, entered into force on March 1, 1992 1678 UNTS 221, available at http://www.unhcr.org/refworld/docid/3ae6b3664.html (last visited June 29, 2009) [hereinafter SUA Convention]. 70 See IMO, Summary of Status of Convention: as of August 31, 2010, available at http:// www.imo.org/TCD/mainframe.asp?topic_id=247 (last visited September 1, 2010). 71  See Tuerk, “Combating Terrorism at Sea” (supra note 65), at 343, 344. 72 Art. 10 SUA Convention; see also B. Kieserman, “Preventing and Defeating Terrorism at Sea: Practical Considerations for the Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA),” in M.H. Nordquist, J.N. Moore, and K. Fu (eds.), Recent Developments in the Law of the Sea and China (Leiden, 2005), 425, at 425. 73 See Tuerk, “Combating Terrorism at Sea” (supra note 65), at 350. 74 Id., at 349.

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by ship terrorists or cargo intended for use in connection with weapons of mass destruction programs. A mechanism was also devised for facilitating the boarding in international waters of vessels suspected of engaging in these activities.75 These amendments entered into force on July 28, 2010; those relating to the Convention have so far been ratified by 16 States and those concerning the Protocol by 12 States.76 It is now no longer possible for a State party to refuse a request for extradition or for mutual legal assistance on the grounds that the offence may be characterized as politically inspired or motivated. As the Safety of Maritime Navigation (SUA) Convention was meant to be an anti-terrorist convention, the view has been put forth that it only applies to acts committed by terrorists as well as “unlawful acts other than piracy.” Its drafters undoubtedly departed from the premise that piracy was a crime already legislated in an international treaty, namely UNCLOS. They certainly did not take into account that so many States parties to UNCLOS would see no need to enact appropriate anti-piracy legislation in compliance with that framework ­Convention.77 In view of the lack of such legislation, it has been suggested that the SUA Convention could also be used to detain pirates, as the motive of the person committing any of the offences listed therein was not relevant.78 The Security Council, in Resolution 1846 (2008),79 for the first time established a link between the SUA Convention and piracy by noting that this Convention “provides for parties to create criminal offences, establish jurisdiction, and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation.”80 It has been pointed out, however, that applying the SUA Convention to piracy may help in some situations but that it remained a defective remedy because it did not reflect the clear distinctions between piracy and maritime terrorism established by the drafters of the two basic treaties addressing crimes at sea. Although there may be States that have piracy legislation not conforming to those

75 See U.S. Dep’t of State Fact Sheet, Protocols to the United Nations Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), available at http://www.state.gov/t/isn/rls/fs/58322.htm (last visited June 29, 2009). 76 See IMO, Summary of Status of Convention, Inventory of International Nonproliferation Organizations and Regimes, available at: http://www.imo.org/ (last visited December 6, 2010). 77 See Blanco-Bazán (supra note 48), at 266. 78 See Beckman (supra note 33), at 330; see also Collins and Hassan (supra note 45), at 46. 79 United Nations Security Council Resolution 1846 (2008), December 2, 2008, avail‑ able at http://daccessdds.un.org/doc/UNDOC/GEN/N08/630/29/PDF/N0863029.pdf?Open Element (last visited June 29, 2009). 80 See Kraska and Wilson (supra note 8), at 56. The use of the SUA Convention for prose­ cuting pirates was affirmed in operative paragraph 5 of Security Council Resolution 1851 (2008).



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distinctions—that have no such legislation at all—the use of the SUA Convention in order to suppress piracy nevertheless did not reflect sound legal policy.81 It has thus been recommended that States modernize their piracy legislation in accordance with UNCLOS, which should include the obligation to exert jurisdiction not only in connection with piracy incidents against the country’s own ships, but also in connection with ships flying the flag of other countries affected by piracy. Once uniform piracy legislation came into place worldwide, clear distinctions could be established between piracy as a crime subject to universal jurisdiction on the one hand, and unlawful acts under the SUA Convention on the other, to be counteracted not through universal, but through multiple jurisdiction.82 The surge in piracy in the Gulf of Aden and off the coast of Somalia has been decisive in prompting the international community to take action in that region. In 2008, the Security Council passed several resolutions pursuant to Chapter VII of the Charter dealing with Somali piracy.83 These resolutions aim at remedying the limitations of the rules of current international law with respect to piracy, as far as their application to the situation in Somalia is concerned. They also provide a legal basis for interception operations by the warships of a large number of countries, including the United States, several European Union Member States, China, India, Japan and Russia, patrolling the waters of the Gulf of Aden and off the coast of Somalia.84 Since December 2008, the European Union has been conducting a military operation—Atalanta—in support of the relevant Security Council resolutions.85 The duration of this mission has been extended until the end of 2012.86 NATO, after having instigated two short-term missions against piracy off the Somali

81  See A. Blanco-Bazán, (supra note 48), at 266. 82 See id. 83 See E. Kontorovich, “International Legal Response to Piracy off the Coast of Somalia,” American Society of International Law Insights 13 (2009), at 2. 84 H. Tuerk, “The Resurgence of Piracy: A Phenomenon of Modern Times,” University of Miami International and Comparative Law Review 17 (2009), at 32, 33. 85 See Council Joint Action 2208/749/CFSP of September 19, 2008 on the European Union military coordination action in support of UN Security Council Resolution 1816 (2008) (EU NAVCO), Official Journal of the European Union, L 252/39, September 20, 2008, at 39; see also Council Joint Action 2008/851/CFSP, of November 10, 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, Official Journal of the European Union, 12/11/2008, L. 301/33; see further J. Romero et al., “The Pirates of Puntland: Practical, Legal and Policy Issues in the Fight Against Somali Piracy,” (2009) at 4, available at http://www.klgates.com/files/Publications/ac22f46f-de64-41d5-a99-8566b961c41e/ Presentation/PublicationAttachment/fbdacf5a-55el-408d-833b-a4bc8a15dc70/3_09_ The_Pirates_of_Puntland.pdf (last visited April 5, 2010). 86 UPI. Cop Special Report, “EU Council Extends Atalanta Operations,” June 15, 2010, avail‑ able at http://www.upi.com/Top_News/Special/2010/06/15/EU-extends-piracy-operationsnear-Somalia/UPI-20451276615949/ (last visited June 21, 2010).

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coast, decided in June 2009 to launch operation “Ocean Shield,” which is anticipated to run for an analogous period of time.87 The international naval forces play a critical role in the prevention of piracy in Somalia, and it is considered vital that they remain. Their increased presence has certainly contributed to the fact that although the total number of incidents attributed to Somali pirates in 2009 has almost doubled as compared to the previous year, the number of ­successful hijackings is proportionately less.88 In Resolution 1816 (2008) the Security Council determined that “the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia, which “continues to constitute a threat to international peace and security in the region.” It is important to note that it is the situation in Somalia which constitutes the threat to international peace and security, not the piracy and armed robbery as such.89 The Security Council, furthermore, with the express consent of the Transitional Federal Government (TFG) of Somalia, authorized States cooperating with that Government “in the fight against piracy and armed robbery at sea off the coast of Somalia” to enter the territorial waters of Somalia for that purpose “in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law,” and under the same conditions to use “all necessary means to repress acts of piracy and armed robbery.” The original limitation to a period of six months of the authorization given by that resolution has since been renewed.90 The basic effect of these provisions of Resolution 1816 is to make the rules of international law concerning piracy on the high seas applicable also to territorial waters, permitting inter alia pursuit from the high seas into these waters,91 or to counter violence against or aboard vessels occurring exclusively within Somalia’s territorial sea.92 These provisions also clarify that States acting under these rules within the territorial sea of Somalia may use “all necessary means”—a phrase commonly associated with a general authorization to use military force.93

87 NATO expands anti-piracy operations off the coast of Somalia until 2012, see: http:// en.rian.ru/world/20100311/158156287.html (last visited July 9, 2010). 88 ICC IMB Annual Report 2009, Piracy and Armed Robbery against Ships (supra note 6), at 25. Military deterrence has managed to reduce the ratio of successful attacks off the coast of Somalia from one out of three in 2006 to one out of six in 2009; see Council of Europe, Parliamentary Assembly, resolution 1722 (2010), Piracy—A crime and a challenge for democracies, April 28, 2010, para. 5, available at http://assembly.coe.int/Documents/ AdoptedText/ta10/ERES1722.htm (last visited June 9, 2010). 89 See Guilfoyle (supra note 32), at 695. 90 See UN Security Council Resolutions 1846 (2008), Dec. 2, 2008, 1897 (2009), Nov. 14, 2009 and 1950 (2010), Nov. 23, 2010. 91  See Treves (supra note 26), at 404. 92 See Guilfoyle (supra note 32), at 695. 93 See id.



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In ­Resolution 1851 (2008)94 the Security Council extended the authorization of military force to land-based operations on the mainland of Somalia and invited all States and regional organizations fighting piracy off the coast of Somalia to conclude special agreements or arrangements with countries willing to take custody of pirates in order to embark law enforcement officials, so called “shipriders” from the latter countries, in particular countries from the region, to facilitate the investigation and prosecution of piracy suspects. The exercise of third-State jurisdiction by shipriders in Somali territorial waters is, however, subject to the advance consent of the TFG, and such agreements or arrangements must not prejudice the effective implementation of the SUA Convention. Authorizing armed action against pirates in sovereign territory is certainly an unprecedented measure by the Security Council. Because the resolutions allow for responses beyond those permitted under current international law they have caused some apprehension on the part of States with a history of piracy problems, fearing a precedent potentially eroding national territorial sovereignty.95 There are, however, important limitations to the authorization accorded by the Security Council. In particular, cooperating States are requested to ensure that anti-piracy activities they undertake “do not have the practical effect of denying or impairing the right of innocent passage to the ships of any third State.” It is also stated explicitly that the authorization by the Security Council “shall not be considered as establishing customary international law.”96 Finally, these resolutions of the Security Council were adopted on the basis of consent given by the TFG of Somalia—pursuant to the aforementioned request by the IMO. The activities authorized thus could also be conducted in the absence of any Security Council resolution on the basis of an agreement given by the coastal State.97 It is furthermore important to note that Resolution 1851 requires that any measure undertaken in Somali territory must be consistent with applicable international humanitarian and human rights law. It has been stated that the latter condition may greatly limit the scope of possible anti-piracy operations under the Resolution, since under international humanitarian law civilians may not be specifically targeted except in immediate self-defence.98 Pirates are not combatants but rather civilians99—even if they are equipped with military weapons. Action 94 See UN Security Council Resolution 1851 (2008), Dec. 16, 2008. 95 See Kontorovich (supra note 83), at 2 and Kim and Lee, Chapter 16, regarding concerns of safety. 96 See Treves (supra note 26), at 405. 97 See id. 98 Id., at 412. 99 See Bahar, “Attaining Optimal Deterrence at Sea” (supra note 19), at 6; see also C. LalyChevalier, “Lutte contre la piraterie maritime et droits de l’homme,” Revue belge de droit international, 1 (2009), at 23; see further D. Guilfoyle, “The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?” Melbourne Journal of International Law 11 (2010), at 141–153.

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against pirates can be assimilated to the exercise of the power to engage in police action on the high seas with respect to foreign vessels in accordance with international legal rules.100 Self-defence against armed attack or threat thereof seems to be a guiding principle of States the navies of which are engaged in the antipiracy efforts off the coast of Somalia. It would, however, seem that in any case the use of force must be necessary, proportionate and should be preceded by warning shots where practicable. As the International Tribunal for the Law of the Sea (ITLOS) has emphasized in a case before it “considerations of humanity must apply in the law of the sea, as they do in other areas of international law.”101 As previously pointed out, international law recognizes universal jurisdiction in the case of piracy which, under the aforementioned Security Council resolutions, also applies to seizures and arrests in the territorial sea of Somalia. The seizing States are, however, in fact reluctant to exercise such broad powers by prosecuting and submitting to criminal proceedings in their courts the pirates and armed robbers arrested in view of legal complexities and in particular human rights implications.102 Thus, in quite a number of instances pirates have been let free or not been detained in the first place.103 In the case of Operation Atalanta over 60% of the pirates apprehended are released, which illustrates their ­impunity. Member States of the European Convention on Human Rights104 are obviously concerned that pirates might request asylum in the respective countries as they certainly would claim to risk torture or the death penalty if returned to Somalia.105

100 See Treves (supra note 26), at 413; see also Blanco-Bazán (supra note 48), at 4. 101 M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment of July 1, 1999, in: International Tribunal for the Law of the Sea, Reports of Judgments, Advisory Opinions and Orders, Volume 3 (The Hague, Boston, London; 1999), at para. 155. 102 See Treves, “Piracy, Law of the Sea, and Use of Force—Somalia” (supra note 26), at 408. See also C. Laly-Chevalier (supra note 99), at 9–11. 103 Over 60% of the pirates apprehended under Operation Atalanta are released, which illustrates the impunity of the pirates; see Non-Paper for the Creation of a Special Somali Court, Relocated to a State in the Region, with International Support (on file with author); see also E. Kontorovich, “ ‘A Guantanamo on the Sea’: The Difficulty of Prosecuting Pirates and Terrorists,” California Law Review 98 (2010): 243, at 1–29. 104 See Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, inter alia amended by Protocol No. 11, available at http://conventions .coe.int/Treaty/en/Treaties/Html/005.htm (last visited April 5, 2010); see also C. LalyChevalier (supra note 99), at 49. 105 See id., Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” See also the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 UNTS 85, Art. 3(1): “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are actual or substantial grounds for believing that he would be in danger of being subjected to torture.”



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Furthermore, after pirates have served a sentence and been granted asylum they may also ask for family reunion. The question may also arise whether the requirement under the European Convention on Human Rights of bringing an arrested or detained person promptly before a judge can be met in the case of a prolonged detention of a pirate suspect on a naval vessel.106 The jurisprudence under the international and regional human rights instruments suggests that the period of delay before a detainee is brought before a judicial officer must not exceed a few days. This requirement, of course, raises practical difficulties in the context of detention on a naval vessel patrolling off the coast of Somalia.107 Ideally, pirate suspects should be tried in the country where they originated, but in the case of Somalia—with the exception of the Somaliland and Puntland regions—this does not seem to be a realistic option under present circumstances. Flag States could, of course, prosecute the pirates; but in many cases ships in the region fly flags of convenience of faraway countries. An option which has been made use of is to conclude bilateral agreements with a country in the region, defining procedures for the detention, transfer and prosecution of persons suspected of having committed acts of piracy, as Canada, China, Denmark, the United Kingdom, the United States and the European Union have done with Kenya.108 The latter agreement expressly provides that such transfer may only take place on condition of humane treatment and that no one will be subjected to the death penalty, to torture, or to any cruel, inhuman or degrading treatment or punishment. There is, further, a guarantee that any transferred person will be brought promptly before a judge and is entitled to trial within a reasonable time

106 See id., European Convention on Human Rights, Art. 5(3): “Everyone arrested or detained in accordance with the provisions [. . .] of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial [. . .].”; see also Art. 6(1): “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time and by an independent and impartial tribunal established by law.” 107 See Contact Group on Piracy off the Coast of Somalia, Working Group 2, May 21, 2010, para. 27 (on file with author). 108 See A. Costa, “Fighting Piracy on Land and at Sea,” Testimony to the U.S. House of Representatives (supra note 59), at 2. See also Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy off the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results, UN doc. S/2010/394, at para. 23 (2010).

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or to release.109 Agreements were also concluded by the United Kingdom and the European Union with the Seychelles.110 With respect to the question whether part of the legal response of the international community to piracy should be the establishment of an international mechanism, a number of suggestions have been made. These proposals include the creation of an entirely new international tribunal on the basis of a Security Council Resolution following the pattern of the international criminal tribunals for the former Yugoslavia and Rwanda; of a hybrid tribunal following the model of the Special Court for Sierra Leone and the Special Tribunal for Lebanon; the establishment of an African regional anti-piracy court based upon a multilateral agreement among regional States, or by amending the statutes of ITLOS, the African Court on Human and People’s Rights or the International Criminal Court by an international treaty.111 Further proposals refer to the creation of special domestic chambers with international components in one or more countries in the region, or the establishment of a special Somali court in another East African country. As regards ITLOS, it has to be borne in mind that it could deal with piracy issues only insofar as they relate to disputes between States or if a legal question would be submitted to it on which it might render an advisory opinion.112

109 See Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union-led Naval Force (EUNAVFOR), and Seized Property in the Possession of EUNAVFOR, from EUNAVFOR to Kenya and for their Treatment after such Transfer, March 6, 2009, Annex, provisions, paras 3(a), 3(b), 3(c), 2009 OJ (L 79) 51; see further http://www.fco.gov.uk/en/ global-issues/conflict-prevention/piracy/prisoners/. 110 Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer, October 30, 2009, 2009 OJ (L 315) 37; see also Report of the Secretary-General (supra note 108), at para. 23. 111  See United Nations Contact Group on Piracy off the Coast of Somalia: Working Group on Legal Issues, Discussion Paper on Prosecution of Pirates: An International Mechanism? Copenhagen, March 3, 2009, at 2–3 (on file with author). 112  UNCLOS does not contain any provision conferring advisory jurisdiction on the Tribunal as such, which may, however, on the basis of Article 21 of its Statute give an advisory opinion on a legal question if that is provided for by an international agreement related to the purposes of the Convention conferring jurisdiction on it. Thus far, no use has been made of that interesting option in any international instrument. See H. Tuerk, “The Contribution of the International Tribunal for the Law of the Sea to International Law,” 26 Penn State International Law Review 26 (2007), at 292; see also Press Release, Clarification, ITLOS/Press 135, April 24, 2009 (available at http://www .itlos.org/news/press_release/2009/press_release_135_en.pdf (last visited April 5, 2010) setting forth that the Tribunal deals mainly with disputes between States Parties to



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Amending the statutes of existing tribunals on a treaty basis would undoubtedly require a number of years and thus would not constitute a short or medium term remedy for the present situation in Somalia. Furthermore, the States parties to the respective multilateral conventions have given no indication whatsoever that they would be willing to consider such a course of action. In connection with the suggestion to establish an international tribunal, it must not be overlooked that such tribunals depend on State cooperation for the enforcement of sentences: these tribunals do not have long-term prison facilities, and the States in whose territory they are based do not necessarily want the prisoners to serve their sentence there.113 The conclusion of sentence enforcement agreements with third States has in practice been difficult, and relatively few States have been willing to enter into such agreements.114 A new judicial mechanism to address piracy and armed robbery at sea off the coast of Somalia— for which a host State would still have to be found—would also have to address a different situation compared with the existing United Nations and United Nationsassisted tribunals, since it would face ongoing criminal activity and potentially a large caseload with no predictable completion date.115 It is estimated that the imprisonment requirement might involve as high as 2,000 persons by the end of 2011. This is a number that is much higher than that generated by all of the existing international tribunals.116 Quite apart from the problems arising in connection with the creation of an international tribunal to deal with Somali pirates, the view has also been put forth that such tribunals, besides being expensive to operate, are not appropriate at all for dealing with a crime like piracy, a common crime that has existed for centuries, which is subject to universal jurisdiction and has been successfully prosecuted in national courts.117 The UN Secretary-General, in his report pursuant to a request by the Security Council contained in Resolution 1918 (2010), has put forth seven options with respect to the prosecution and imprisonment of persons responsible for acts of

the Convention, is not a criminal court, and has no competence to try pirates; see further C. Thedwall, “Choosing the Right Yardarm: Establishing an International Court for Piracy,” Georgetown Journal of International Law 41 (2010), at 1–17, advocating the establishment of an ITLOS Piracy Chamber. See also Espósito, Chapter 5. 113 See Report of the Secretary General (supra note 108), at para. 29. 114 United Nations Contact Group on Piracy off the Coast of Somalia, Copenhagen, August 26–27, 2009, Factual Statement by the United Nations Office of Legal Affairs on international tribunals, para. 10 (on file with the author). 115 See Report of the Secretary-General (supra note 108), at para 29. 116 See id., at para. 36. 117 For analysis of the issues in policy and law regarding prosecution of piracy in national courts, see, e.g., Chapters 15 (by Moritaki Hayashi) and 16 (by Suk Kyoon Kim and Seokwoo Lee), above.

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piracy and armed robbery at sea off the coast of Somalia. The options he suggests essentially correspond to the various suggestions already referred to, except those relating to an extension of the competences of existing international tribunals. It is to be noted that the Secretary-General first of all referred to the enhancement of United Nations assistance to build capacity of regional States for prosecution and imprisonment of pirates—an option that was ongoing and had already achieved some success.118 On August 25, 2010 this report was considered by the Security Council with its President making a Statement on behalf of the Council in which he deemed it “of utmost importance to find long-term solutions to the problem of prosecuting suspected, and imprisoning convicted, pirates. . . .”119 No decision was taken with respect to any of the options outlined in the SecretaryGeneral’s report, without, however, excluding possible further steps. The resurgence of piracy and armed robbery at sea which threatens world trade and international security seems to have caught the international community rather by surprise. Its response to piracy and armed robbery at sea has therefore only gradually developed and is still hampered by various factors.120 These include legislative gaps, as States have not implemented their obligations under UNCLOS with respect to the suppression of piracy—as also noted with concern by the Security Council;121 legal complexities arising out of the need to harmonize measures against piracy and armed robbery against ships with international humanitarian and human rights instruments; as well as uncertainty regarding the extent to which warships can enforce coercive measures in order to suppress a common crime like piracy.122 In many instances the enactment of modern national anti-piracy legislation is still required. The conclusion of a special antipiracy convention regulating the manner in which piracy may be suppressed, as well as the application of the principle of universal jurisdiction, would certainly seem useful, although not an absolute necessity.123 With respect to piracy off the coast of Somalia, it has rightly been emphasized that prevention is crucial: “until there is law and order on land, there

118  See Report of the Secretary-General (supra note 108), at Summary, 2–3, and para. 56. 119  See Statement by the President of the Security Council, UN.doc.S/PRST/2010/16, August 25, 2010. 120 Tuerk, “The Resurgence of Piracy” (supra note 48), at 41. 121 UN Security Council Res. 1918 (2010), preambular para. 14. 122 See Blanco-Bazán, “War Against Piracy?” (supra note 47), at 266. 123 Tuerk, “The Resurgence of Piracy” (supra note 84), at 41. The Ukraine has circulated a Draft Convention at the 65th Session of the UN General Assembly entitled “Comprehensive Convention on the Suppression of Acts of Piracy at Sea.” The purpose of such a Convention would be “to facilitate the cooperation of States in a more effective prevention of piracy as one of the types of transnational organized crime and in fight against it.” The draft also proposes the establishment of a Special Court for Maritime Piracy, the expenses for which are to be charged to the regular budget of the United Nations.



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will be anarchy off the coast.”124 As the UN Secretary-General observed, “In the longer term, the issue of piracy and armed robbery at sea off the coast of Somalia will be resolved only through an integrated approach that addresses the conflict, lack of governance and absence of sustainable livelihoods on land in Somalia.”125 Meanwhile, the tragedy of mass famine, affecting millions of persons in Somalia, further complicates the situation. The ongoing discussion with respect to the prosecution and punishment of suspected pirates off the coast of Somalia—rather than focusing on the establishment of an international mechanism—seems to concentrate on how best to improve the local capacities in the affected region, at least as a short-term remedy. In this connection, the United Nations Office on Drugs and Crime (UNODC) and the European Union play an important role.126 Any impediments regarding the prosecution and punishment of suspected pirates in national courts should be addressed as a matter of urgency and not deferred in favour of attention to an international mechanism that may not be available anytime soon127—if at all. What should not happen is that pirates go free due to the lack of proper legislation or political will. No matter how intimidating the presence of an international naval force may be, pirates will not be deterred if they know that there is no law to judge them.128

124 See Costa, “Fighting Piracy on Land and at Sea,” Testimony to the U.S. House of Representatives (supra note 104), at 1; see also A. Lelarge, “La Somalie entre anarchie et piraterie,” Journal du Droit International 2 (2010), at 449–474. 125 Report of the Secretary-General pursuant to Security Council Resolution 1846 (2008), UN doc. S/2009/146, March 16, 2009. For a general overview with respect to the situation relating to Somali piracy see the Report of the Monitoring Group on Somalia pursuant to Security Council resolution 1853 (2008), UN doc. S/2010/91. 126 The United Nations Office on Drugs and Crime (UNODC) is providing targeted support and capacity-building to countries of the region which agree to undertake piracy prosecutions to ensure that the trials and detention are fair, humane and efficient and take place within a sound rule of law framework. The core support provided by UNODC within the framework of the EU/UNODC Counter-Piracy Programme is focused largely on Kenya. A joint EU/UNODC counter-piracy programme has also been launched in the Seychelles to assist that country in handling the additional challenges of piracy cases. See the official website of UNODC on the subject, available at http:// www.unodc.org. An international trust fund to support Initiatives of States Countering Piracy Off the Coast of Somalia was established on January 27, 2010; see Report of the ­Secretary-General (supra note 108), Annex II, at para. 12. 127 See Non-Paper: An International Piracy Court—Not the Right Direction (supra note 117). 128 See Blanco-Bazán, “War Against Piracy?” (supra note 48), at 270.

twenty-six

Climate Change and the Oceans David D. Caron1

The social, political and legal implications of climate change for the oceans, for ocean law and policy and ultimately for humanity are tremendous. These changes will touch all of the regions of the world and will call on the imagination and resources of all of the ocean institutions examined in this volume. Climate change often presents a set of challenges informed by principles of law, but that in several respects go far beyond existing approaches and will require substantial and innovative law-making. This Chapter proposes a framework for understanding the implications of ­climate change for the oceans; the conclusions its reaches center around the various ways in which humanity interacts with the oceans. The role of law in efforts to mitigate the greenhouse gas emissions from shipping and offshore oil exploration is apparent; however, the law is less clear or developed in terms of possible geo-engineering initiatives focusing on the oceans. The role of law in mitigation efforts has been subject to some scholarly assessment; but the scholarly agenda regarding the role of law in the challenges presented by adaptation to movements in fish, the rise in sea level and the loss of marine life due to increased acidity is not clear. The scope of these latter challenges is truly global and foundational yet present scholarly work tends only to nibble at the edges of these issues. These challenges will require creativity in the academy, and in international relations will demand substantial cooperative international frameworks so that conflict and suffering may be minimized.

1 I thank Berkeley Law for its support of the Law of the Sea Institute, as well as my research assistant, Timothy Hughes JD ‘10, for his excellent work. All errors are of course mine. I also thank my dear friend and colleague, Professor Harry N. Scheiber, for his comments, encouragement and example.

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What are the impacts of climate change for the ocean? Name any physical characteristic of the oceans, and it will change. Three fundamental impacts of increased carbon dioxide focused upon in this Chapter are: (1) an increase in water temperature, (2) a rise in sea level, and (3) an increase in the ocean’s acidity level. Following the approach of the Intergovernmental Panel on Climate Change (“IPCC”), the Chapter first considers ocean-based strategies to mitigate change in the climate by reducing the levels of climate-changing gases in the atmosphere; and, second, considers the challenges posed by the need to adapt to the likely impacts of climate change. The analysis here assumes agreement as to the basic science of climate change even while acknowledging the uncertainties in science as to the speed with which change will take place as well as the impacts that climate change will produce in particular areas of the world. The Oceans and the Mitigation of Climate Change The primary strategy of mitigation is to look to how each sector of human activity contributes to climate change and how the greenhouse gas contribution of each such sector might be reduced.2 In focusing on the oceans, we here consider mitigation in terms of (1) reducing the climate change contribution of the various sectors of human activities occurring on the oceans, (2) assessing new uses of the oceans that will arise as a consequence of mitigation efforts as regards human activities on the land, and (3) assessing geo-engineering efforts to mitigate climate change that will take place on the oceans. Ship Emissions Navigation by vessels is the most widespread human activity on the oceans. And like cars, trucks and trains on the land, the engines aboard vessels emit greenhouse gases. A United Nations sponsored study calculated that annual emissions from the world’s merchant fleet are 1.12bn tons of CO₂, constituting 4.5% of all global emissions of the main greenhouse gases; and they are predicted to rise by

2 As a part of understanding the mechanism of climate change, there arises a possible secondary focus to mitigation, namely non-anthropogenic contributions to climate change. For example, it is speculated that as the Arctic tundra melts, substantial releases of methane (a greenhouse gas) into the atmosphere will follow. I term this a secondary focus because these natural contributions in general are viewed as being beyond human mitigation strategies because of their diffuse nature and the drivers forcing them.



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a further 30% by 2020.3 By comparison, the aviation industry gives rise to about 650m tons of CO₂ emissions a year, just over half of that from shipping.4 In addition to CO₂, vessels emit substantial amounts of soot, often called black carbon. Soot is a carbonaceous aerosol particle emitted during the burning of fossil fuels, which precipitates out of the atmosphere after a relatively short time. Scientists now believe that black carbon (“BC”), one of the “sooty” particulate emissions of combustion, is, after carbon dioxide, the second-most significant global warming pollutant, responsible for up to 20% of the warming measured thus far.5 Because of BC’s short lifespan relative to CO2 and other greenhouse emissions (1–4 weeks for BC compared with 30–43 years for CO2), some scientists and policymakers have recently focused on the potential for short-term climate change mitigation through controlling BC emissions.6 Annual global emissions of BC, however, do not come primarily from shipping but rather from land-based activities such as biofuel burning (20%), fossil fuel burning (40%), and the burning of open biomass (forest and grassland fires) (40%).7 Worldwide, shipping produces about 7.5% of the fossil-fuel-sourced BC, and about 1.7% of the total global emissions of BC.8 While this may seem like a small amount, the impact of shipping emissions on Arctic melting of sea ice

3 John Vidal, “True Scale of CO2 Emissions from Shipping Revealed,” The Guardian, Feb. 12, 2008. The UN report also said that sulfur and soot emissions, which give rise to lung cancers, acid rain and respiratory problems are expected to rise more than 30% over the next 12 years.  In a separate 2008 International Maritime Organization Marine Environment Protection Committee Report entitled “Updating estimated emissions from international shipping based on data from the Intergovernmental Panel on Climate Change” started that the resulting consensus estimate for 2007 CO2 emissions from international shipping amounts to 843 million ton or 2.7% of global CO2 emissions, as compared to the 1.8% estimate in the 2000 IMO study. It went on to conclude that in the absence of future regulations on CO2 emissions from ships, emissions were predicted to increase by a factor of 2.4 to 3.0 by 2050.  See also Richard Hildreth and Alison Torbitt, “International Treaties and U.S. Laws as Tools to regulate the Green house Gas Emissions from Ships and Ports,” International Journal of Marine and Coastal Law, 25 (2010): 347; and Doris Koenig, “Global and Regional Approaches to Ship Air Emissions Regulation: The International Maritime Organization and the European Union,” Chapter 18 of this volume. 4 Vidal, supra note 3. 5 EPA Black Carbon and Global Warming: Hearing Before the H.R. Comm. on Oversight and Gov’t Reform, 110th Cong. 3–4 (2007) [hereinafter Hearing] (statement of Rep. Henry A. Waxman, CA, Chairman). 6 See supra note 5. 7 V. Ramanathan and G. Carmichael, “Global and Regional Climate Change due to Black Carbon,” Nature Geoscience, 1 (April 2008): 221. 8 Daniel Lack et al., “Particulate Emissions from Commercial Shipping: Chemical, Physical, and Optical Properties,” Journal of Geophysical Research, 114 (2009): D00F04, 2.

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and seasonal snowpack may be significant because of the physical darkening of the surfaces upon which BC settles, and because of the seasonal variation in BC emissions from different sources. This effect can be expected to become greater as Arctic sea ice retreats and new far-north shipping channels, which were previously blocked, open for all or most of the year.9 Carbon soot is not the only particulate emission from the burning of fossil fuels; certain fuels, such as the high-sulfur “residual” diesel fuel burned by oceangoing ships, also emit high concentrations of sulfates and nitrates, which have their own impacts on global and regional climates.10 More specifically, the diesel fuel burned by oceangoing transport vessels is not a highly-refined product like the gasoline burned in conventional vehicle engines. The average sulfur content of the low-quality “residual” diesel fuel burned by oceangoing transports is 27,000 ppm.11 Even compared to on-road diesel fuel, the fuel used by oceangoing transports is stunningly crude—it contains almost 2,000 times more sulfur than the fuel burned by commercial trucks on U.S. roads.12 While the U.S. EPA has mandated reduced sulfur content in fuel for smaller vessels, and, recently, for new and remanufactured tugboat engines, oceangoing vessel emissions in U.S. waters remain largely unregulated.13 Senators Diane Feinstein and Barbara Boxer introduced the Marine Vessel Emissions Reduction Act of 2007 (SB 1499, HR 2548) in the 110th Congress. The Congressional findings in the Act focused primarily on abatement of the health risks of ship particulate pollution in coastal population centers (the risks include premature death, bronchitis, asthma, and other chronic illnesses), the bill did not focus on the climate change effects of BC.14 The Act would have amended the 1970 Clean Air Act to require the Administrator of the EPA to promulgate new regulations requiring ships operating within certain proximity to U.S. coastline to use fuel with a maximum sulfur content of 1,000 parts per million, or if that was technically unfeasible, not more than 2,000 ppm. In addition, the Act would have required the Administrator to promulgate regulations establishing standards for emissions of nitrogen oxides, particulate matter, carbon monoxide, and hydrocarbons from newly-manufactured and in-use main and auxiliary engines in oceangoing marine vessels that enter or leave a port or offshore terminal of the United States.15

 9 Hearing, supra note 5. 10 Lack, supra note 8. “Particulate Emissions.” 11 U.S. Senate Committee on Environment and Public Works, Marine Vessel Emissions Reduction Act of 2007, Report on SB 1499. 12 Congressional Research Service (CRS), Report on Ship Pollution Control Options, RL34548, (Sept. 9, 2008): 3. 13 Id. 14 Committee Report on SB 1499, supra note 11. 15 Id.



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The bill was reported out of committee favorably on July 10, 2008. However, the proposed statute was not passed in law. Similar legislation in the House (HR 2548) also was not adopted. Three Senators presented the minority view on SB 1499, objecting that it would “penalize all American ports, regardless of their air quality standards, and impose an unfair economic burden on ports without poor air quality.”16 They asserted that imposing strict emissions controls and fuel quality standards would make American industry less competitive by raising the cost of importing and exporting goods. Paradoxically, these opponents to the Act asserted that the “local problem” should not be solved by the blunt tool of federal regulation; they suggested that the matter would be best left instead to international regulation under Annex VI of the International Convention for the Prevention of Pollution from Ships, more commonly known as MARPOL. The United States is a party to MARPOL, along with about 150 other nations representing 98.7% of global shipping tonnage.17 In 1997, the United States and most of the other nations of the world signed on to Annex VI of MARPOL, which set modest initial limits on air pollution from oceangoing ships. Annex VI did not enter into force until May of 2005.18 MARPOL Annex VI, as amended in 1997, set a the maximum allowable sulfur content for oceangoing vessel fuel at 4.5%, or roughly 45,000 ppm. In October of 2008, the IMO and Marine Environment Protection Committee unanimously (without U.S. participation, due to Congress’ delay in enacting implementing legislation) approved amendments to Annex VI further lowering the maximum sulfur level to 3.5% (35,000 ppm) by 2012, and progressively down to 0.5% (5,000 ppm) by 2020, subject to a feasibility review to be completed by 2018. These regulations are a significant step forward in the as-yet largely unregulated field of oceangoing ship emissions. Offshore Oil and Gas, and Carbon Sequestration Offshore oil and gas production in its day-to-day operations is a source of greenhouse gas emissions, for example through the flaring of natural gas. Offshore oil

16 Id. 17 CRS, Report on Ship Pollution Control Options, RL34548, (Sept. 9, 2008): 3, supra note 12. 18 Id. The United States did not enact implementing legislation (PL #110–280) until July of 2008. Under the implementing act, Annex VI regulations apply to: “any oceangoing vessel that is registered in the United States; ships of any registry in ports, shipyards, terminals, or the internal waters of the United States; ships of any registry bound for or departing from the United States, while they are located in the navigable waters of the United States or designated emission control areas; and ships bearing the flag of any country that has ratified Annex VI traveling through U.S. waters or designated emission control areas, even if they are not bound for or departing from a U.S. destination. To the extent consistent with international law, the Annex also applies to any other ship in the U.S. exclusive economic zone.”

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and gas operations are also a potential source of emissions as a consequence of catastrophic accidents such as occurred in the Gulf of Mexico in 2010. In part these hazards are addressed through better operating procedures and safety standards. The current scholarly and industry focus, however, is the possibility of employing carbon sequestration in the seabed so as to dramatically reduce emissions. Seabed sequestration is most often linked with nearby offshore production facilities; such sequestration, if successful, might be utilized for carbon from nearby land-based sources. Carbon sequestration is the scientific term of art for the capture and permanent (or at least long-term) storage of atmospheric carbon dioxide.19 Scientists have explored a number of ways of storing CO2 in gaseous or liquid forms deep in the earth.20 Compared with reforestation and ocean fertilization, geological carbon sinks can retain sequestered CO2 for much longer—in some cases, for hundreds or thousands of years.21 In addition, even the most conservative estimates of underground storage capacity predict that capacity exists to store significant amounts of CO2 emissions.22 The first large-scale geological CO2 sequestration project began in 1996 in the Sleipner oil and gas fields located under the North Sea between the coasts of Scotland and Norway. The energy company that owns the rights to the resources sought to reduce the CO2 concentration of the natural gas reserves in order to market the gasses because Norwegian carbon taxes on releasing CO2 into the atmosphere made it cheaper to chemically extract excess CO2 from the natural gas and re-inject it under pressure deep into a saline aquifer under the sea floor. The saline aquifer in the Sleipner project is called the Utsira Formation, which is a layer of sand saturated with salt water about 200–300 meters thick. It is about 400 kilometers long and between 100 kilometers wide at its widest point. It is also at least 700 meters below the ocean floor at its shallowest point. Scientists estimate that it may be able to accommodate 42 Giga tons (“GT”) of CO2,

19 It may be ultimately wrong to characterize carbon sequestration as a “permanent” storage mechanism, because most of the proposed methods result in the eventual rerelease of CO2. For example, the CO2 captured by a tree during its lifetime is either (1) immediately respirated back into the atmosphere or (2) released into the atmosphere as the byproduct of decay at the end of the tree’s life. 20 Stephen Lincoln, “Fossil Fuels in the 21st Century,” Ambio, 34 (Dec., 2005): 624–5. 21  I d., citing Falkowski, et al., “The Global Carbon Cycle: A Test of Our Knowledge of Earth as a System,” Science, 290 (2000): 291–296. 22 “Estimates of global storage capacity indicate that 675–900 Giga tonnes CO2 (GtCO2) can be stored in oil and gas fields, 3–200 Gt CO2 in unminable coal seams and 1000– 10000 GtCO2 in deep saline formations. This means that the storage capacity for CO2 in geological formations is much higher than the global annual CO2 emissions, which were 26 GtCO2 annually in 2004.” Semere Solomon and Aage Stangeland, CO2 Storage Factsheet, Oct. 9, 2007, Bellona Foundation, available at http://www.bellona.org/ filearchive/fil_Factsheet_CO2_storage_-_english_-_rev_9oct07.pdf (Citations omitted).



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which equals 400 years of emissions from fossil-fuel power plants in the European Union.23 A number of factors contribute to the suitability of a site for long-term use as a storage cavity for CO2, including the porosity, thickness, and permeability of the proposed formation. In order to prevent leakage of stored CO2, the site should also be capped by a layer of solid, impermeable material (a “confining unit”) to prevent the escape of CO2 to the surface. The site should also be largely free of geological faults and seismic activity. Like other methods of sequestration, underground storage poses a number of difficulties and dangers. Sudden release of large quantities of CO2 after seismic events is not unprecedented, and has caused significant loss of human life. Consider, for example, three lakes known to contain large amounts of dissolved CO2 in their bottom waters: Lakes Nyos and Monoun in Cameroon and Lake Kivu in East Africa.24 A 1984 release of CO2 from Lake Monoum is believed to have killed many people in low-lying areas around the lake. In 1986, a similar release from Lake Nyos killed over 1,700 people and thousands of livestock. International regulation of carbon sequestration in the seabed falls under the 1996 Protocol to the 1972 London Dumping Convention. This Protocol entered into force in March of 2006 and represents a major change of approach to the question of how to regulate the use of the sea as a depository for waste materials. One of the most important innovations was the introduction in Article 3 of what is known as the “precautionary approach.” This approach requires that “appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.” Article 3 also states that “the polluter should, in principle, bear the cost of pollution” and it emphasizes that Contracting Parties should ensure that the Protocol should not simply result in pollution being transferred from one part of the environment to another. Carbon sequestration in particular is addressed by 2006 Amendments to the 1996 Protocol, with those amendments entering into force 100 days after their adoption on 10 February 2007. Those amendments state that carbon dioxide streams may be considered for dumping, but only if disposal is into a sub-seabed geological formation. The amendments regulate the sequestration of CO2 streams from CO2 capture processes into sub-seabed geological formations; and they call for the development of guidance on the means by which sub-seabed geological sequestration of carbon dioxide can be conducted. Such discussions are ­ongoing 23 Semere Solomon, “Security of CO2 Storage in Norway,” Feb. 21, 2007, Bellona Foundation, available at http://www.bellona.org/filearchive/fil_Factsheet_Security_of_CO2_ storage_in_Norway_-_english_-_rev_16aug07.pdf. 24 U.S. Geological Survey report, available at http://vulcan.wr.usgs.gov/Glossary/Lakes/ description_volcanic_lakes_gas_release.html.

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among the state parties to the 1996 Protocol. These developments mean that a basis has been created in international environmental law to regulate carbon capture and storage (CCS) in sub-seabed geological formations, for permanent isolation, as part of a suite of measures to tackle the challenge of climate change and ocean acidification. In practice, this option could apply also to large landbased point sources of CO2 emissions, such as power plants, and steel and cement works.25 Iron Fertilization of the Oceans as a Means of Geo-Engineering The oceans will be implicated in geo-engineering proposals aimed at mitigation of climate change. The prime direction this has taken at present involves proposals to fertilize the top layer of the oceans with iron thereby promoting the growth of carbon-absorbing photosynthetic plankton that in turn would take carbon dioxide out of the atmosphere.26 The forests and the oceans are the two largest natural carbon sinks on earth. On land we will plant trees; in the oceans we will encourage more plankton. Much of the research focus has been on increasing biological carbon fixing in iron-deficient waters of the Southern Ocean, around Antarctica.27 The scientists behind the Southern Ocean Iron Fertilization Experiment (SOFeX) in early 2002 hypothesized that artificial fertilization of the Southern Ocean would stimulate biological production among phytoplankton, increase the capture (“export”) of dissolved CO2 into inert compounds and thereby reduce atmospheric ­concentrations.28 25 Under this last scenario, it is noteworthy that the oceans become a part of mitigation efforts on the land. This indirect effect on the oceans may occur no doubt in many ways. Although it is beyond the scope of this chapter, it is likewise possible that a shift on the land to increased usage of nuclear power as a mitigation strategy may lead to a renewal of plans to bury nuclear wastes in the deep seabed. As to past proposals for such burial and the possibility of renewal, see The Oceans in the Nuclear Age (David D. Caron and Harry N. Scheiber [eds.], [Leiden/Boston, 2010]). It likewise should be not overlooked that as oceans are looked to in new ways as a part of the solution to climate change and a tension will arise once again as to unilateral use of the oceans versus a more multilateral approach. 26 For an extended detailed focus on iron fertilization of the oceans, see Sherry P. Broder and Marcus Haward, “The International Legal Regimes Governing Ocean Iron Fertilization,” Chapter 12 of this volume. 27 According to a 2004 article in Science magazine authored by Kenneth Coale, et al., the Southern Ocean’s biological infertility and low rate of “carbon export” is due primarily to iron deficiency. It is a particularly acute concern in these waters because of the upwelling of CO2-rich water around the southern pole that sustains the high atmospheric CO2 concentrations observed over Antarctica. Coale, et al., “Southern Ocean Iron Enrichment Experiment: Cycling in high- and low-Si waters,” Science, (304) April 2004. 28 Moreover, the chemical process of gas solubility in water depends on the relative concentrations of CO2 in the water and the air over it. In this case, by removing dissolved



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The mechanism behind carbon export in the oceans starts with primary production by photosynthetic organisms, which assimilate carbon dissolved in the water into their skeletons. As these organisms are consumed by predators or as they die, they sink to the deep ocean, effectively storing carbon in the depths. Field experimentation has supported the hypothesis that iron fertilization produced demonstrably higher rates of biological production in the experimental zones.29 In addition, the researchers used a radioactive isotope to track carbon fixed into solid, stable compounds, coming to the conclusion that in the patches of ocean fertilized with iron, there was a higher rate of export to deep water. Other earlier iron experiments that had shorter observation periods also observed higher rates of photosynthetic growth.30 The ultimate bottom line for SOFeX and other ocean fertilization experiments, however, questions whether it could ever be a realistic method for slowing the greenhouse effect through carbon sequestration. In SOFeX, researchers observed an enhanced export of 1800 tons of carbon at a depth of 100 meters. However, they also observed that as the carbon sank deeper, it became “remineralized,” such that only about half of the exported quantity actually sank below the 250 meter mark.31 As a result, it was concluded that “it is difficult to see how ocean iron fertilization with such a low carbon-sequestration to iron-added ratio would easily scale up to solve our larger global [carbon] imbalance problems.”32 Beyond questioning the efficiency of ocean fertilization as a carbon sequestration strategy, some have raised concerns over geo-engineering efforts generally. In the oceans, the primary concern would be disruption of the natural food webs that are already heavily stressed by human pressure on stocks and by changes in ocean chemistry brought on by global warming and related processes. For example, some of the organisms which are most negatively affected by acidification of the oceans, discussed below, are the same organisms upon which ocean fertilization advocates depend to assimilate CO2 into their exoskeletons as calcium carbonate (CaCO3). Although there is great reluctance among many to move towards the numerous suggestions to geo-engineer the world so as to address climate change,33 carbon from the water in the form of heavy particulates, the ocean can absorb more atmospheric CO2. 29 Coale, et al., “Southern Ocean Iron Enrichment Experiment: Cycling in high- and low-Si waters,” Science, (304) April 2004, 408. 30 Buesseler, et al., “The Effects of Iron Fertilization on Carbon Sequestration in the Southern Ocean,” Science, (304) April 2004, 414 (referring to SOIREE—South Ocean Iron Enrichment Experiment) (Feb. 1999, 13 days), and EisenEx (Iron Experiment) (Nov. 2000, 22 days). 31  Id. 32 Id. 33 One definition of geoengineering efforts is where “strategies [which] envision deploying systems on a planetary scale.” David G. Victor, M. Granger Morgan, Jay Apt, John

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simultaneously, as several commentators have recognized, it would be imprudent to not consider the likelihood that the more the costs of climate change are felt, the more acceptable the risks of geo-engineering will appear. At present, voices in this direction already can be heard at least in the sense that we need research on precisely what the geo-engineering options are.34 And other voices also indicate that international norms regarding what is at present an unregulated activity need to be developed.35 Conclusions as to Ocean Based Mitigation Efforts In the climate change mitigation game, every human activity must make its contribution in terms of reduced emissions. Although it is still early to provide an assessment, the possibility of reduction in emissions from shipping offers some low hanging fruit, and efforts are underway in the IMO. In comparison to mitigation efforts in other areas of human activity, mitigation of emissions from shipping is moving along, even if slowly. Although by no means insignificant, the emissions levels from ships are, as noted above, not sufficiently high to do the job alone. The emissions from offshore oil and gas activities also represent a small percentage of global emissions, but here the techniques and law being developed concerning carbon sequestration offer the possibility of substantial reductions— assuming it can be safely scaled up. Finally, geo-engineering efforts in the oceans will likely take several forms. At least as far as iron fertilization of the oceans is concerned, some studies appear to indicate that the effort does not result in significant transfer of carbon dioxide from the atmosphere to the deep ocean. Much of the law at present is left to national authorities, and further development of international law needs to be undertaken before geo-engineering efforts are taken more seriously. The Oceans and Adaptation to the Impacts of Climate Change The following Sections provide an overview of three fundamental shifts that result from increased carbon dioxide and climate change: (1) an increase in water temperature, (2) a rise in sea level, and (3) an increase in ocean acidity

Steinbruner, and Katherine Ricke, “The Geoengineering Option—A Last Resort Against Global Warming?” Foreign Affairs, 88 (March/April 2009): 64 (noting that these strategies include not only ideas for the removal of carbon dioxide from the atmosphere, but also ideas to increase the albedo of the atmosphere.) 34 See, e.g., David G. Victor, et al., “The Geoengineering Option,” 64. 35 Ibid. at 66. As to existing and emerging norms and international instruments, see Sherry P. Broder and Marcus Haward, “The International Legal Regimes Governing Ocean Iron Fertilization,” Chapter 12 of this volume.



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levels.36 Each Section describes the shift, the secondary consequences of each shift that bears on humanity, and a sense of the relative speed with which each shift is projected at present to occur. An Increase in Water Temperatures and the Migration of Living Resources In the summer of 1997, a climate phenomenon called El Niño brought warm tropical waters to the far north, and fishermen reported catches of white sharks in the Gulf of Alaska and of California yellowtail off of Kodiak Island.37 As sport and commercial fishermen have noted in practice for centuries, and as oceanographers and marine biologists have begun to quantify,38 many species of fish are extremely sensitive to water conditions and migrate (as did the shark and yellowtail) along currents of their preferred temperatures. Global climate change has the potential to significantly disrupt the distribution patterns of marine animals by dramatically altering the temperature of the world’s oceans. Such disruptions could result in the local extinction of critical commercial species and in the invasion of species into new regions as they search for waters that match their preferences. A growing body of scientific evidence, backed by empirical observations and sophisticated computer modeling of projected impacts, supports the hypothesis that anthropogenic global warming will cause substantial changes to the abundance and distribution of many marine species.39 “As air and water temperatures rise, marine species are moving northward, affecting fisheries, ecosystems, and coastal communities that depend on the food source. On average, by 2006, the center of the range for the examined species moved 19 miles north of their 1982 locations.”40 Temperature is not the only environmental variable currently under study as a contributing factor in the observed and predicted changes in fish stock distributions. Most commercially important fish experience four distinct life stages, each requiring somewhat different environmental conditions to thrive. Hence they are particularly sensitive to changes in habitat, which affect ocean chemistry, the availability of food sources, and protection from predators. While “[i]t may be

36 The emphasis on these three changing characteristics leaves to the side the question of whether ocean currents will shift and whether weather at sea will be more energetic thereby raising questions of safety at sea as well as increased coastal erosion. 37 Bruce Lieberman, “Scientists see signs of El Nino, raising hopes for wet winter,” San Diego Union Tribune, August 11, 2004, B1. 38 See, e.g., Rijnsdorp et al., “Resolving the effect of climate change on fish populations,” ICES Journal of Marine Science, 66 (2009): 1570–1583. 39 Id. See also Cheung et al., “Climate Change Impact on Marine Biodiversity,” Journal of Fish and Fisheries, 10 (2009): 235–251. 40 USGCRP (NOAA OST) Climate Change Impacts in the United States, 144 (Report of the U.S. Global Change Research Program and NOAA Office of Science and Technology, June 16, 2009).

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argued that it will be impossible to detect generalities in the response of fish populations to climate change, because the number of influential factors is too large and individual species may differ too widely in their response,”41 there is general agreement that whatever the cause may be, ocean fish stocks are moving and thus present a number of novel legal and political challenges.42 The Science Fish cannot regulate their body temperatures independently of the temperature of the water they inhabit. Thus, they are constrained to stay within the temperature limits to which they are adapted.43 In addition, studies have shown that fish species with ranges in the high and low latitudes are more sensitive to changes in temperature than the species that inhabit intermediate latitudes. To further complicate the problem for policymakers, fish eggs and larvae may be more sensitive to water temperature than juveniles and adults.44 Closely related to the physiological effects of climate change are the behavioral changes observed and predicted in marine life at the organism-level. For example, climate-driven changes in temperature can alter the timing and routing of annual migrations to feeding and spawning grounds for temperate marine species.45 For policymakers concerned with studying population range shifts, the behavior of adult fish following favorable water conditions and tracking prey species is one of the primary areas of interest. As previously noted, however, the behavioral

41 Rijnsdorp, supra note 37, at 1570. 42 For example, geopolitical factors may significantly undermine the prospects of negotiated agreements to manage fish stocks for the common good and future of mankind. In the Arctic, for example, the United States shares joint management responsibility with other Arctic nations for stocks of many commercially vital species. The chair of the U.S. Arctic Research Commission has lamented, “management of these species is hampered because essential scientific exchange is weak, underfunded, and too often ignored or shouldered aside by larger diplomatic issues, especially between us and Russia.” (U.S. House Committee on Foreign Affairs, National Security, Climate Change and the Arctic, Mar. 25, 2009 [Testimony of Mead Treadwell] [2009 WLNR 5596598]). 43 The inability of cold-blooded fish to independently regulate their body temperature means that their metabolic rate varies according to the temperature of the water they are in. Fish in warm water require more food to meet the greater energy demands of a faster metabolism. 44 W.E. Shrank, Marine Policy 31 (2007): 11 (“Zooplankton, to provide animals at higher trophic levels with adequate food, must consume sufficient phytoplankton to fill their fat storage organs to capacity. Increased temperatures apparently speed this process. But since zooplankton are passively transported on ocean currents, the timing of phytoplankton blooms, and the transport of zooplankton to the phytoplankton blooms, must be synchronous or the zooplankton will die, thus depriving organisms at higher trophic levels of food. This potential match–mismatch problem exists all along the food chain”). 45 Rijnsdorp, supra note 37 at 1573.



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responses of species may differ depending upon the particular characteristics of each species at the larval stage. Climate could also affect productivity of stocks by affecting the growth and sexual maturation of fish. Higher water temperatures could promote faster maturation, causing fish to reach sexual maturity at shorter lengths and lower body weights. This could affect the mortality of adults, as energy is committed to reproduction that formerly was used to help young individuals increase in size and strength. Global-warming-induced quickening of sexual maturation could affect future spawning yields for exactly the same reason that size limits on commercially exploited species can be effective.46 It is not definite that climate change will have universally negative impacts on species abundance in all regions. Rather, changing weather patterns will likely redistribute resources and increase productivity in some places, while reducing it in others. One overarching theme common to the literature reviewed on marine fisheries ecology suggests that the dynamic interactions between species in regional food webs, environmental conditions, and anthropogenic pressures are massively complex. Because the variables are so difficult to isolate, scientists have not yet reached consensus on the mechanisms by which they operate.47 Adding commercial fishing pressure to the list of factors stacked against global marine fisheries further complicates the picture. More than ten percent of the world’s food supply comes from marine fisheries, and it is likely to be difficult to reach international agreement to a cessation, or even dramatic curtailment, of commercial fishing in order to protect the viability of species also facing the effects of climate change. Fishing and climate change may combine to impact fisheries more significantly than the sum of each could independently of the other. Existing international agreements like UNCLOS and the UN Fish Stocks Agreement, and regional fisheries management organizations like the Western and Central Pacific Fisheries Commission, were negotiated in the shadow of science that did not understand the implications of climate change even as well as even today’s imperfect science. The level of “sustainable” harvest of many species may be significantly lower in light of current knowledge about climate change than what was considered safe even five or ten years ago. Even discounting the impact of lateral changes in distribution, the impact of climate change is likely to be significant; changes in distribution vertically within the water column may make a species more or less “catchable” given existing fishing technologies and

46 For example, size limits on sturgeon in the Columbia river system function to protect large sexually mature individuals from harvest because they have the potential to produce many more gametes per breeding cycle than smaller individuals. 47 Studies disagree on even fundamental questions, such as whether productivity of fish stocks is affected primarily from the “bottom-up” by climatological and environmental factors, or from the “top-down” by predation and fishing. Recent studies seem to indicate that the answer lies somewhere in the middle.

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fleets, or might affect a species’ reproductive efficiency. Similarly, changes in water conditions may force species out of protected zones established by law or geography, rendering them susceptible to fishing, predators, and environmental mortality.48 For instance, melting sea ice is opening vast areas of the Arctic to new fishing pressures, which has caused the U.S. government to place a moratorium on commercial fishing for certain species in newly opened areas pending a scientific assessment of the stocks and calculation of sustainable limits.49 Case Study: The Northeast Continental Shelf Large Marine Ecosystem In July of 2009, the Northeast Fisheries Science Center (NFSC), under the auspices of the National Oceanographic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce, issued an Ecosystem Status Report for the Northeast Continental Shelf Large Marine Ecosystem (LME). This LME covers approximately 250,000 square kilometers, and it contains some of the United States’ most heavily pressured and economically important Atlantic fisheries, such as cod and swordfish. The NFSC report summarized the effect of water temperature on marine ecosystems: “Temperature is one of the most important governing environmental factors for marine organisms. Marine organisms have minimum and maximum temperatures beyond which they cannot survive. Additionally, they have preferred temperature ranges. Within the bounds of these thermal limits, temperature influences many processes including metabolism, growth, consumption, and maturity. Thus, changes in temperature will have far-reaching impacts on species in the ecosystem and on the ecosystem itself.”50 One of the most readily apparent shifts is the movement of stocks in accordance with their preferred temperature ranges. In the LME, for instance, the area of intermediate average temperatures (5–15°C) has declined by approximately 15–20% in the period of 1982–2008, while the coldest (≤4°C) and warmest (≥16°C) regions have grown by 10% and 20%, respectively. The diversity of species in the LME makes it difficult to predict the specific effects on a given species, but in general, species that prefer water in the intermediate range are experiencing a significant decline in available thermal habitat.51

48 Along the Pacific Coast of California, the California Coastal Commission established protected zones within which it is illegal to capture certain severely threatened species, such as White Seabass. 49 NOAA Fisheries News Release, Aug. 20, 2009. The Fisheries Management Plan excludes Pacific Salmon and Pacific Halibut, which are the subjects of existing regulations. It also does not affect Pacific Salmon, Whitefish, and shellfish stocks within 3 miles of the coast, and exempts subsistence fishing or hunting. 50 Id., at 7. 51  Id., at 8.



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The scientists at the NFSC predict that as thermal patterns change in the LME, species that prefer cold water (“cold-temperate species”) will likely shift northward and decrease in abundance. Simultaneously, “warm-temperate” species that prefer warm water will likely shift to the north and increase in abundance. Comparing the known distribution and abundance of Red Hake—a species that prefers cold waters—in the periods of 1968–1980, 1981–1994, and 1995–2008 demonstrates that the stock has shifted northwards and shrunk. The species has become relatively rare in the southern region of the LME off of the Mid-Atlantic States, and is now concentrated in the Gulf of Maine.52 Fish stocks may have moved with significant changes in climate in the past as well, but range shifts and changes in abundance may be more challenging in the modern era of legal controls and extensive territorial line-drawing in the oceans. The EEZ rules under UNCLOS generally gave coastal States the exclusive right to manage marine resources within 200 miles of their coasts, which dramatically changed the legal conception of property rights over much of the oceans’ most-exploitable and economically important resources.53 Those rules also set the stage for numerous newly configured disputes between coastal states and the fishermen of other nations who had previously enjoyed free access to fisheries now covered by the EEZ. New movements of fish stocks into and across EEZ lines will make such tensions more common and difficult to resolve. Conclusions The effects of even small, subtle environmental changes upon creatures in the sea may be disastrous, with concomitant effects upon the human populations that depend upon the productivity of the oceans. Acidification, desalinization, changes in nutrient inputs, temperature variance, and changes in ocean currents—compounded by the preexisting pressures of human consumption—are some of the major challenges facing marine organisms. Each of these factors has the potential, especially taken in concert, to destabilize global fish stocks and threaten the health of whole ecosystems. While the international community and individual nation states have taken some proactive measures to manage the living resources of the oceans, their actions are unlikely to be enough to curb the threat which climate change poses for fisheries in the future. Moreover, it is not only the health of a fishery that is called into question. Fisheries law and jurisdiction generally have rested on the assumption that most fish stocks (highly migratory stocks such as tuna being the exception) do not significantly move. Their movement across jurisdictional lines will not only confuse management but also possibly give rise to private or public conflict. Preexisting agreements were reached when climate science was 52 Id. at 9. 53 See United Nations Convention on the Law of the Sea (UNCLOS) Part V.

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less sophisticated and climate change was less well understood than today. The challenge posed by significant changes in the distribution and abundance of marine species will require multilateral engagement. It is also likely that the necessary changes will be difficult to accept for many nations that depend on ocean fishing for economic, cultural, and nutritional sustenance. A Rise in Sea Level and Uncertainty in Boundaries54 Jim Hansen, a leading climate scientist, recently wrote that the “greatest threat of climate change for human beings, I believe, lies in the potential destabilization of the massive ice sheets in Greenland and Antarctica.”55 Knowledge of where many of the impacts of climate change will be felt remains elusive. All agree, however, that a rising sea level will impact all coastal areas. Predictions concerning the extent of the rise in sea level over the next century tend to focus on two mechanisms: thermal expansion of surface waters (the “steric effect”);56 and the continued breakup and melting of land ice (meaning the Greenland ice sheet and glaciers).57 Most estimates for at least the next century tend to assume that there will not be a sufficient rise in temperature to

54 This section draws upon previous scholarship by the author. For a full presentation, see David D. Caron, “Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict,” in Seoung-Yong Hong and Jon M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and The Law of the Sea (Leiden/Boston, 2009), 1–17; and “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. 55 Jim Hansen, “The Threat to the Planet,” The New York Review of Books, July 13, 2006, 12. Dr. Hansen is the Director of the NASA Goddard Institute for Space Studies and an Adjunct Professor of Earth and Environmental Sciences at Columbia. 56 There has been some confusion over the past few years as to whether the upper ocean layers were cooling rather warming. But studies in 2007, however, suggest that the cooling conclusion reached in a study of a few years ago was a consequence of an instrumentation error. The original team is revisiting its data. See “Seas Are Warming After All,” New Scientist, April 28, 2007, 4. 57 The melting sea ice in the Arctic or elsewhere does not result in a rise in sea level because that ice is already present in the ocean. Its displacement is approximately equivalent. It should be noted that there is some uncertainty about the mechanisms at work in sea level rise. Working Group II of the IPCC in its April 2007 report wrote: “the global average sea level rise for the last 50 years is likely to be larger than can be explained by thermal expansion and loss of land ice due to increased melting, and thus for this period it is not possible to satisfactorily quantify the known processes causing sea level rise.” Climate Change 2007—The Physical Science Basis: Summary for Policymakers—Contribution of Working Group I to the Fourth Assessment Report of the IPCC 421 (2007). In this regard, see also Laury Miller and Bruce C. Douglas, “Mass and Volume Contributions to Twentieth-Century Global Seal Level Rise,” Nature, (428) March 25, 2004, 406. Sea level rise predicted over the next several centuries is distinct from very long term changes anticipated in the size and depth of the oceans basins, see



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require consideration of a third potential cause of sea level rise, the significant breakup or melting of the Antarctic ice sheets. The IPCC in its 2007 report estimated a range of 0.38 to 0.59-meter rise in the sea level by the year 2100. At the same time, numerous scientists note that the IPCC methodology, for understandable reasons, is conservative in its estimations.58 An example recognized in the IPCC report itself is that its model for the melting of glaciers does not fully track the speed with which they appear to be in fact breaking down.59 Predictions from scientists studying the melting of the Greenland ice sheet, in particular, raise the estimation of sea level rise to one meter, if not more, by the year 2100. To the extent that a one-meter rise is viewed as only modestly significant, two things need to be emphasized. First, in certain areas of the world, a one-meter rise will result in very significant flooding. For example, 17 percent of Bangladesh’s land mass would be flooded by such a rise.60 Similarly, as Bill McKibben has written, “a couple of feet is enough to inundate many low-lying areas and drown much of the earth’s coastal marshes and wetlands.”61 Second, it must be remembered that climate change will result in more than simple sea rise. ­Climate change is expected to result also in more intense storms and storm surges, thereby exacerbating local changes in coastlines, such as erosion, that already take place. It has not taken climatically driven sea level rise to alter, and even threaten, low lying islands and the communities that live, for example, in the Ganges River delta. Changes are already occurring.62 Climate change will exacerbate the

Henry Fountain, “Sea Levels Are Falling Over the Long term Because of Lower Basins,” The New York Times, March 11, 2008, D3. 58 Fred Pearce, “But Here Is What They Didn’t Tell Us,” New Scientist, February 10, 2007, 7. See also Editorial, New Scientist, “Consensus Is Not Enough,” February 10, 2007, 3; Bill McKibben, “Warning on Warming,” The New York Review of Books, March 15, 2007, 44 (reviewing Climate Change 2007—The Physical Science Basis: Summary for Policymakers—Contribution of Working Group I to the Fourth Assessment Report of the IPCC [2007]). McKibben describes the report as “a remarkably conservative document,” because it “sacrifices up-to-minute assessment of data in favor of lowest-commondenominator conclusions that are essentially beyond argument . . . one result is that the ‘shocking’ conclusions of the new report in fact lag behind the most recent findings of climate science by at least several years.” Id. at 45. 59 Id. (stating the “[c]urrent climate models assume that the ice sheets will melt only slowly, as heat works its way down through ice more than two kilometers thick. But many glaciologists no longer believe this is what will happen”). 60 “Those in Peril by the Sea,” The Economist, Sept. 9, 2006, 6. 61 Bill McKibben, “Warning on Warming,” The New York Review of Books, March 15, 2007, 44. 62 Somini Sengupta, “Sea’s Rise in India Buries Island and a Way of Life,” The New York Times, April 11, 2007 (National Edition), A1 (reporting on a recent study by Sugata Hazra of Jadavpur University finding that “in the last 30 years, nearly 31 square miles of the Suandarbans have vanished entirely” and more than 600 families have been displaced). The IPCC WGII Fourth Assessment Report (2007) states that the prospect of

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already apparent changes and facilitate new ones. Thus, even a modest rise in sea level will have significant impact on coastlines. Moreover, as argued in my earlier writings, even a modest rise in sea level will be significant in terms of shifting ocean boundaries because those boundaries are generated from baselines that are often tied to rather insubstantial geographic features that will be among the first inundated by a rising sea level. The fundamental reason that the inundation of some baselines by a rising sea level would cause uncertainty in oceanic boundaries is that both the baseline and the boundary generated by that baseline upon are “ambulatory,” that is: (1) if a baseline anchor is submerged, then the baseline is redrawn on the basis of still valid exposed baselines points; and (2) the ocean boundary that was generated from the previous baseline is now redrawn to the new baseline. Thus if the baseline moves, the boundary moves. If a baseline point such as an exposed rock disappears, the boundary generated by that point also disappears. Although this is obviously an important principle, it often goes unstated.63 The conference of experts who met throughout the 1970s did not anticipate that there could be a significant regression of coastlines generally. Nonetheless, it is noteworthy that in the two cases where they were presented with concern over such a possibility—deltas, and arguably the outer edge of the continental shelf—the negotiating states were apparently willing to fix such boundaries permanently. But will these shifts in baselines actually lead to any significant movement in boundaries? The previously described predisposition of the law of baselines virtually ensures that some significant problems will arise. In developing the law regarding maritime boundaries, states sought to maximize their claims over the ocean by supporting a liberal set of baseline rules that claim a fixed width and, in effect, extend zones further to sea.64 The baseline rules do this by recognizing the rising sea levels render the islands, ecology and people of the Ganges river delta among the threatened in the world. 63 It should also be noted that as a practical matter “once the normal baseline has been established and cartographically depicted on large scale charts, it remains in place until such time as it is redrafted, irrespective of whether or not the actual low-water line has physically moved.” D.C. Kapoor and Adam J. Kerr, A Guide to Maritime Boundary Delimitation (Toronto, 1986), 31. This circumstance, however, does not alter the legal question.  The 1982 Law of the Sea Convention does not expressly provide that the boundaries shall move with the baselines. It does, however, do so by negative implication. In particular, the Convention has a special rule for deltas which provides that when straight baselines are used in an area “[w]here because of the presence of a delta and other natural conditions the coastline is highly unstable, . . . notwithstanding subsequent regression of the low water line, the straight baselines shall remain effective. . . .” 1982 Convention on the Law of the Sea, supra note 2, art. 7(2). 64 See, e.g., discussion of drying rocks in Daniel P. O’Connell, The International Law of the Sea (Oxford/New York, 1982), 191–95.



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least substantial points of land as valid baseline points. It is precisely these least substantial points that are most threatened by a rising sea level. These points of land fall into three main groups. First are low tide elevations, sometimes called “drying rocks.”65 Fringing reefs comprise the second category. Such reefs can serve as a baseline point regardless of whether they are within what otherwise would be the territorial sea of the island they fringe. Fringing reefs are often substantially distanced from the low water mark along the coast. Their submergence could result in an equally substantial reduction in the width of oceanic zones. It is, however, a third category, islands, that will potentially result in the most significant shifts. This is because islands, as opposed to uninhabitable rocks,66 are entitled to a 200-mile-wide EEZ. A rising sea level could taint the freshwater reservoir of an island, potentially rendering it an uninhabitable rock, submerge enough of it to leave only an uninhabitable rock, or submerge it entirely. In any of these circumstances, the island state would potentially lose its right to use that part of the island group to extend its EEZ. Consequently, for the island state, there is little doubt that the combination of a rise in sea level and the contingent nature of boundaries is, or will be, of grave concern. Over the period of the century ahead, the prospects for a rising sea level thus threaten many low-lying and heavily-populated areas with inundation and numerous likely secondary effects. In the shorter term, a rising sea level may potentially lead to shifts in boundaries in the ocean, and may even lead to disputes concerning the valid location of boundaries in the oceans. It must be remembered the ocean zones can be extremely valuable, both in terms of living resources and oil and minerals, and that from time immemorial states have fought over control of marine resources. This suggests that a rising sea level and the consequent implications of that rise for ocean boundaries may lead to serious ­confrontations. 65 The 1982 Convention, Art. 13, repeating the text of Article 11 of the 1958 Convention, provides: 1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. 66 As to the distinction between an island and an uninhabitable rock in Article 121(3) of the 1982 Convention, see Jon M. Van Dyke, Joseph 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): 425. Valuable perspectives on the more general legal aspects are provided in Choon-Ho Park, “The Changeable Legal Status of Islands and ‘Non-Islands’ in the Law of the Sea,” in David D. Caron and Harry N. Schieber, eds., Bringing New Law to Ocean Waters (Leiden/Boston, 2004), 483–491.

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Uncertainty regarding ownership of a valuable resource is a fertile ground for conflict between nations or between fishers of different nations. A rising sea level, in addition to the tensions that may result from movement in fish stocks mentioned above, thus may also give rise to uncertainty as to whether a fishing ground is still within one state’s exclusive economic control, and it will tempt others to make use of the resource and create a situation ripe for conflict. An Increase in the Acidity Levels of the Oceans In October of 2008, over 150 marine scientists from 26 different countries met in Monaco to participate in the Second International Symposium on the Ocean in a High-CO2 world.67 On January 30, 2009 they released the “Monaco Declaration,” outlining the nature of the problem, its increasing seriousness, and its actual and possible consequences. The oceans absorb carbon dioxide from the atmosphere. Indeed, according to Ken Caldeira and Michael Wickett of the Lawrence Livermore National Laboratory, the world’s oceans over centuries will eventually absorb most of the carbon dioxide produced by human consumption of fossil fuels.68 While uptake of atmospheric CO2 by the world’s oceans may help to moderate the pace of global climate change by taking some of the greenhouse gas out of the atmosphere, an increase in the concentration of oceanic dissolved CO2 poses serious problems. When CO2 dissolves in H2O, the molecules react to form H2CO3, carbonic acid. Because carbonic acid has relatively weak chemical bonds, it readily releases a hydrogen ion, H+, which causes the acidity of the solution to go up, driving the pH down. The world’s oceans are currently saturated with a carbonate molecule, CO32-, which some marine organisms such as coral, phytoplankton, and shellfish use to form their calcium carbonate (CaCO3) skeletons and protective shells. In nature, calcium carbonate can take one of two polymorphs, aragonite and calcite. While chemically identical, these two polymorphs form different crystalline structures. Most corals and mollusks form their shells out of aragonite, while phytoplankton forms calcite exoskeletons. The overall effect of increasing CO2 in ocean water is that the concentrations of H+, H2CO3, and HCO3- increase, while the concentration of CO32- (carbonate) decreases. Studies have shown that even where surface waters remain saturated with CaCO3, calcification rates of marine organisms decline with the drop in carbonate (CO32-) levels associated with increased dissolved CO2. The same studies also found that when organisms that form their shells out of aragonite are kept in water under-saturated with CO32-, there is visible degradation of their shells within 48 hours. In the case of immobile creatures 67 The first meeting was held in 2005. 68 Ken Caldeira and Michael Wickett, “Oceanography: Anthropogenic Carbon and Ocean pH,” Nature, (425) September 25, 2003, 365.



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like coral, ocean acidification therefore poses a particularly serious threat to continued viability. The organisms studied thus far—corals, mussels, phytoplankton, and algae—respond negatively to decreased levels of dissolved carbonate available for shell and skeleton calcification.69 According to a 2005 article in Nature magazine reporting the research findings of a multinational group of marine scientists, surface ocean pH is already 0.1 units lower it was before the industrial revolution. By the end of the century the surface ocean pH will drop another 0.3–0.4 units, which translates to a 100–150% increase in the levels of H+ ions in seawater. By the middle of this century, the atmospheric CO2 concentration may reach 560ppm, double the pre-industrial level. The Monaco Declaration warns that at the 560ppm level coral calcification rates are expected to decline by about one-third. Even before that, erosion will overtake the rate of coral calcification. Large areas of the polar oceans may become corrosive to important calcareous marine organisms if CO2 levels reach just 450 ppm. While there have not been detailed studies as yet, some scientists have hypothesized about the possible impacts of acidification on ocean food webs. First, organisms which fix calcium in their shells represent an enormous quantity of global biomass and they form an important part of global marine ecosystems as a source of food and habitat. Along with krill, calcareous phytoplankton are a major part of the diet of a number of predators in the Arctic, including “diverse carnivorous zooplankton, myctophid and nototheniid fishes, North Pacific salmon, mackerel, herring, cod and baleen whales.”70 The collapse of foundational prey species due to acidification would impact predator species dramatically. Second, the collapse of marine food webs could be catastrophic for humans. Commercial fishing already puts heavy pressure on the populations of the predator species mentioned above, and the amount of fish that could be sustainably harvested would decline if those species’ food sources disappeared. Some studies have indicated that increased ocean acidity may affect larger marine animals directly by reducing their food supply, and indirectly by affecting their breeding cycles and making their offspring more vulnerable.71

69 “Ocean Acidification: Another Undesired Side Effect of Fossil Fuel-Burning,” Science Daily, May 21, 2008. 70 James C. Orr, et al., “Anthropogenic Ocean Acidification over the Twenty-First Century and Its Impact on Calcifying Organisms,” Nature, (437) September 29, 2005, 681. An interesting examination of the dramatic effects of an acidifying ocean involves research focused on areas of the present ocean which due to particular local conditions are acidifying and is summarized in Elizabeth Kolbert, “The Acid Ocean,” National Geographic, April 2011, 100. 71 See also Cornelia Dean, “Rising Acidity is Threatening Food Web of Oceans, Science Panel Says,” The New York Times, January 31, 2009, A9.

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The Monaco Declaration included a concise summary of the possible socioeconomic impacts of acidification: Ocean acidification could affect marine food webs and lead to substantial changes in commercial fish stocks, threatening protein supply and food security for millions of people as well as the multi-billion dollar fishing industry. Coral reefs provide fish habitat, generate billions of dollars annually in tourism, protect shorelines from erosion and flooding, and provide the foundation for tremendous biodiversity, equivalent to that found in tropical rain forests. Yet by mid-century, ocean acidification may render most regions chemically inhospitable to coral reefs. These and other acidification related changes could affect a wealth of marine goods and services, such as our ability to use the ocean to manage waste, to provide chemicals to make new medicines, and to benefit from its natural capacity to regulate climate. For instance, ocean acidification will reduce the ocean’s capacity to absorb anthropogenic CO2, which will exacerbate climate change.

The Monaco Declaration proposed four types of policy interventions. The first three were (1) the promotion of research, (2) the need to bridge the gap between ocean scientists and economists, and (3) the need for scientists to work with policy makers. The fourth proposal was that emissions be cut dramatically. This last goal is related, of course, to the terms and course of international negotiations, which includes the potential further implementation of Kyoto Protocol. The Monaco Declaration paints a dire picture of the next 10 years. The Declaration asserts that “ocean acidification is accelerating and severe damages are imminent” and then proceeds to assert that although acidification is rapid, recovery from it would be slow. “Recovery from this large, rapid, human-induced perturbation will require thousands of years for the Earth system to reestablish ocean chemical conditions that even partially resemble those found today. . . .” Finally, and particularly significantly, the Declaration observes that geo-engineering strategies are not even a theoretical solution to ocean acidification. “Ocean acidification can be controlled only by limiting future atmospheric CO2 levels.”72 Conclusions as to Human Adaptation to Climate Induced Change in the Oceans All of the changes described—the impact of temperature rise, of sea level rise and of ocean acidification—are potentially of fundamental significance for the well being of significant portions of humanity. Mitigating the extent of such climate change is a first response, yet it also appears that some of these changes are in the pipeline and are likely to occur. Moreover, some of the challenges that follow from these changes will arise sooner rather than later. Thus possible instability in ocean boundaries in general will occur before inundation of low lying coastal areas. Fish stocks will move relatively slowly, while the drafters of the Monaco

72 For a recent survey of the challenges posed by ocean acidification, see Kolbert, “The Acid Sea,” 100–121.



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Declaration sound the alarm that the dire consequences of ocean acidification may come sooner. Conclusion The present Chapter has sought to set out the state of our knowledge as to the implications of climate-induced change for the oceans. Clearly, both policy and law need to begin to anticipate the challenges ahead. To the degree that it can be said that the challenge presented by climate change is like other challenges that have been faced, then there exist analogies in policy that may be looked to for ideas. For example, there are, although imperfect, several policy analogies applicable to the task of reducing emissions. The issue with undertaking significant mitigation policies is partly one of confidence in the value of such efforts and partly one of political will. Importantly, however, there do not appear to be even imperfect analogies to guide thinking as to adaptation to climate change. Societies have faced significant rapid change previously, but such change has not involved such widespread significant and fundamental shifts. If one recognizes the adaptation challenge in that way, then new, and potentially very different, set of responses and policy instruments are required. Many marine policies are intended to address the potential loss that’s engendered with localized industrial activity that is on or adjacent to the oceans or loss that follows from overintensive fishing but another very different set of policy responses potentially are needed when the focus is on climate change. A policy solution such as “marine protected areas” possibly is a response to threats from an ocean-based industrial activity, but will require revisiting in order to address the very different type of challenges described above. This Chapter provides a framework to understanding the range of challenges presented for the oceans and for ocean policy by climate change. Each aspect of this change will need to be approached in terms appropriate to it.

LIST OF ABBREVIATIONS

“The Convention” (United Nations Convention on the Law of the Sea) UNCLOS “The Tribunal” (International Tribunal for the Law of the Sea) ITLOS ACAP (Arctic Contaminants Action Program) ACIA (Arctic Climate Impact Assessment) ACP (African, Caribbean and Pacific) ADP (Asian Development Bank) AGF (High-level Advisory Group on Climate Change Financing) AIS (Automated Information Services) AMAP (Arctic Monitoring and Assessment Program) ANF (Aids to Navigation Fund) APEC (Asia-Pacific Economic Cooperation) APFIC (Asia-Pacific Fishery Commission) APM (Associated Protective Measure) ARATS (Association for Relations across the Taiwan Straits) ASEAN (Association of Southeast Asian Nations) AWG-LCA (Ad Hoc Working Group on Long-term Cooperative Action) AWI (Alfred Wegener Institute) BBC (British Broadcasting Corporation) BBNJ (biodiversity in areas beyond national jurisdiction) BC (Black Carbon) BEAC (Barents Euro-Arctic Council) BRC (Barents Regional Council) CAA (Chinese Arctic and Antarctic Administration) CACFAC (Central Asian and Caucasus Regional Fisheries and Aquaculture) CAFF (Conservation of Arctic Flora and Fauna)

CALDOVREP (Mandatory Ship Reporting System in the Dover Strait) CBD (Convention on Biological Diversity) CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources) CCP (Chinese Communist Party) CCS (Carbon Capture and Storage) CCSBT (Commission for the Conservation of Southern Bluefin Tuna) CDM (Clean Development Mechanism) CECAF (Fisheries Committee for the Eastern Central Atlantic) CEO (Chief Executive Officer) CF (Cooperation Forum) CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) CLCS (Commission on the Limits of the Continental Shelf) COBSEA (Coordinating Body on the Seas of East Asia) COFI (Committee on Fisheries of the Food and Agriculture Organization of the United Nations) COLREG (International Regulations for the Prevention of Collisions at Sea) COMESA (Common Market for Eastern and Southern Africa) COP 15 (15th Conference of the Parties to UNFCCC) COP 16 (16th Conference of the Parties to UNFCCC) CPPS/PCSP (Permanent Commission for the South Pacific) CSO (Company Security Officer) CSR (Continuous Synopsis Record)

540

list of abbreviations

DOALOS (Division for Ocean Affairs and the Law of the Sea) DPP (Democratic Progress Party) EBF (Extrabudgetary Funds) EC (European Community, used in ACP-EC) ECA (Emission Control Area) ECFA (Economic Cooperation Framework Agreement) ECJ (European Court of Justice) ECOWAS (Economic Community of West African States) EEDI (Energy Efficiency Design Index) EEZ (Exclusive Economic Zone) EIA (Environmental Impact Assessment) EisenEx (Iron Experiment) EPPR (Emergency Prevention, Preparedness, Response) EU (European Union) EU ETS (European Union Emissions Trading System) EUNAVFOR (European Union-led Naval Force) EUR (Euro) FAO (Food and Agriculture Organization of the United Nations) FCTC (Framework Convention on Tobacco Control) FCWC (Fishery Committee of the West Central Gulf of Guinea) FPA (Fisheries Partnership Agreements) GA (General Assembly) GATT (General Agreement on Tariffs and Trade) GBR (Great Barrier Reef) GEF (Global Environment Facility) GESAMP (Joint Group of Experts on the Scientific Aspects of Marine Environment Protection) GFCM (General Fisheries Commission for the Mediterranean) GHG (greenhouse gas emissions) GPA (Government Procurement Agreement) GPA (Global Program of Action) GT (Gross Tonnage) IAC (Inter-American Convention for the Protection and Conservation of Sea Turtles) IATTC (Inter-American Tropical Tuna Commission) ICAO (International Civil Aviation Organization) ICCAT (International Commission for the Conservation of Atlantic Tunas)

ICES (International Council for Exploration of the Sea) ICJ (International Court of Justice) ICP (United Nations General Assembly Informal Consultation Process on the Ocean and the Law of the Sea) IHR (International Health Regulations) ILC (International Law Commission) ILC (International Law Commission) IMB (International Maritime Bureau) IMCO (Inter-Governmental Maritime Consultative Organization) IMO (International Maritime Organization) INGO (International Nongovernmental Organization) IOC (Intergovernmental Oceanographic Commission) IOTC (Indian Ocean Tuna Commission) IPCC (Intergovernmental Panel on Climate Change) IPOA (International Plan of Action) ISA (International Seabed Authority) ISC (International Scientific Committee for Tuna and Tuna-like Species in the Northern Pacific Ocean) ISPS (International Ship and Port Security) ISSC (International Ship Security Certificate) IT (Information Technology) ITC (Information and Communication Technologies) ITLOS (International Tribunal for the Law of the Sea) ITRI (Industrial Technology Research Institute) IUCN (International Union for Conservation of Nature) IUU (Illegal, Unregulated or Unreported Fishing) JRC (Joint Research Centre of the European Union) KMT (Nationalist Party of Taiwan) KORDI (Korean Ocean Research and Development Institute) LC/LP (London Convention and London Protocol) LICG (Legal Intersessional Correspondence Group) LME (Large Marine Ecosystem) LNG (Liquid Natural Gas) LOHAFEX (Iron Fertilization Experiment) LOSC (Law of the Sea Conference/ Convention) LOSI (Law of the Sea Institute) LRAD (Long Range Acoustic Device)



list of abbreviations

LRIT (Long-range Tracking Information) MAREANO (Marine Areal Database for Norwegian Waters) MARPOL (International Convention for the Prevention of Pollution from Ships) MBM-EG (Expert Group on Feasibility Study and Impact Assessment of Possible Market-Based Measures) MCS (Monitoring, Controlling and Surveillance) MDG (Millennium Development Goals) MEA (Multilateral Environmental Agreements) MEH (Marine Electronic Highway) MENAS (Middle East Navigation Aids Service) MEPC (Marine Environment Protection Committee) MOTC (Ministry of Transportation and Communications) MPA (Marine Protected Area) NATO (North Atlantic Treaty Organization) NAV 50 (International Maritime Organization Sub-Committee on Navigation) NEP (Northeast Passage) NFSC (Northeast Fisheries Science Center) NGO (Non-governmental Organization) NOAA (National Oceanographic and Atmospheric Administration) NORI (Nauru Ocean Resources, Inc.) NOWPAP (Northwest Pacific Action Plan) NPAFC (North Pacific Anadromous Fish Commission) NSIDC (United States National Snow and Ice Data Centre) OECD (Organization for Economic Cooperation and Development) OLDEPESCA (Latin American Organization for Fisheries Development) ONC (Ocean Nourishment Group) OPRF (Ocean Policy Research Foundation) OSPAR (Oslo/Paris for the Protection of the Marine Environment of the North-East Atlantic) PAME (Protection of the Arctic Marine Environment) PCC (Project Coordination Committee) PCIJ (Permanent Court of International Justice) PCSP/CPPS (Permanent Commission for the South Pacific) PEMSEA (Partnerships in Environmental Management for the Seas of East Asia)

541

PERSGA (Program for the Environment of the Red Sea and Gulf of Aden) PNG (Papua New Guinea) PRC (People’s Republic of China) PRC (Piracy Reporting Centre) PRIC (Polar Research Institute of China) PSSA (Particularly Sensitive Sea Area) RCU (Regional Coordinating Units) ReCAAP (Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia) RFB (Regional Fishery Bodies) RFMO (Regional Fisheries Management Organization) ROC (Republic of China, aka Taiwan) ROPME (Regional Organization for the Protection of the Marine Environment) SADC (Southern African Development Community) SASP (South Asian Seas Action Plan) SCOR (Scientific Committee on Oceanic Research) SDC (Seabed Disputes Chamber) SDWG (Sustainable Development Working Group) SEAFDEC (Southeast Asian Fishery Development Center) SEAPOP (Seabird Populations) SECA (Sulphur Oxide Emission Control Areas) SEEMP (Ship Energy Efficiency Management Plan) SEF (Strait Exchange Fund) SELA (Caribbean Economic System) SIOFA (South Indian Ocean Fisheries Agreement) SOA (State Oceanic Administration) SOCU (Surveillance Operations and Coordination Unit) SOFeX (Southern Ocean Iron Fertilization Experiment) SOIREE (South Ocean Iron Enrichment Experiment) SOLAS (International Convention for Safety of Life at Sea) SPLOS (States Parties to the Law of the Sea Convention) SPREP (Pacific Regional Environment Program in the Pacific Islands) SPRFMO (South Pacific Regional Fisheries Management Organization) SRES (Special Report on Emissions Scenarios)

542

list of abbreviations

SRFC (Sub-Regional Fisheries Commission) SSAS (Ship Security Alert System) SSO (Ship Security Officer) STRAITREP (Mandatory Ship Reporting System for the Straits of Malacca and Singapore) SUA (Suppression of Unlawful Acts against the Safety of Maritime Navigation) SWIOFA (Southwest Indian Ocean Fisheries Commission) TFG (Transitional Federal Government) TOML (Tonga Offshore Mining, Ltd.) TSS (Traffic Separation Schemes) TUBRAP (Mandatory Ship Reporting System for the Turkish Straits) UK (United Kingdom) UN (United Nations) UNCED (United Nations Conference on Environment and Development) UNCLOS (United Nations Convention on the Law of the Sea) UNDP (United Nations Development Program)

UNEP (United Nations Environment Program) UNESCO (United Nations Educational, Scientific and Cultural Organization) UNFCCC (United Nations Framework Convention on Climate Change) UNGA (United Nations General Assembly) UNODC (United Nations Office on Drugs and Crime) US (United States of America) USGS (United States Geological Survey) USSR (Union of Socialist Soviet Republics) VDR (Vessel Data Recording Systems) VMS (Vessel Monitoring System) VTMIS (Vessel Traffic Information Monitoring System) VTS (Vessel Traffic Services) WCPFC (Western and Central Pacific Fisheries Commission) WHA (World Health Assembly) WHO (World Health Organization) WTO (World Trade Organization) WWF (World Wide Fund for Nature)

Index

Abidjan Convention 90 Academia Sinica of Taiwan xi Advisory Committee on Protection of the Seas 107 n. 129 African Court on Human and People’s Rights 510 Agenda 21 116–117 Agreement to Promote Compliance with International Conservation and ­Management Measures by Fishing Vessels on the High Seas 26, 118, 412 n. 3 Alfred Wegener Institute 199 All Japan Seamen’s Union 260 Antarctica 130, 185, 228 n. 25, 230–231, 265, 522, 530 Antarctic Treaty 186, 210, 219 Convention on the ­Conservation of ­Antarctic Marine Living Resources 119, 186, 210 Madrid Protocol 186 Protocol on Environmental ­Protection 186 n. 12 Antigua Convention 307 Arctic Circumpolar Gateway 107 n. 129 Arctic Council 107–109, 464, 467–468, 470–471, 481–484, 486, 488 Arctic Climate Impact Assessment 438, 451, 482 Arctic Contaminants Action Plan 107 Arctic Marine Shipping Assessment 108, 176 n. 68, 470, 482 Arctic Monitoring and Assessment Programme Working Group 108, 438

Conservation of Arctic Flora and Fauna 108 Emergency Prevention, Preparedness, Response Working Group 108 Ottawa Declaration 107 n. 128, 481 Protection of the Arctic Marine Environment 108, 482 Sustainable Development Working Group 108 Argentina 30, 230 n. 31, 383, 386–388, 391, 393, 395–399, 409–410 Boundary Treaty 393 Treaty of Peace and Friendship 393 Asia-Pacific Economic Cooperation  297–298 Asian Development Bank 297–298 Asilomar International Conference on Climate Intervention Technologies 187 n. 14 Assessment Framework for Scientific Research Involving Ocean Fertilization 191, 211–212 Automatic Identification System 179, 282 Barcelona Convention 92, 315–316 Barents Euro Council 464 British Royal Society 201 Bucerius Law School xi Cape Verde Agreement 435 Carbon Capture 211, 524 Carbon Credits 188, 193, 212 Carbon Dioxide (Co2)  185, 187 n. 15, 194–198, 200–203, 206–208, 210, 213, 219–220, 317, 319–320, 323–325, 330,

544

index

332–333, 335, 458, 456, 516–517, 520–522, 524, 534 Carbon Offsets 190, 193, 198, 219 Carbon Sequestration 204, 206–207, 212 n. 139, 519–524 CE Delft 329 Chicago Climate Exchange 193 Chile 30, 41, 43, 74, 122 n. 32, 131 n. 7, 314, 383–384, 386–389, 391, 393–401, 407–410 Santiago Declaration 384, 400 China Ocean Mineral Resources and Development Association 217 Clarion-Clipperton Zone 140, 153 n. 43 Clean Development Mechanism (see Kyoto Protocol) Climate Change 2, 6, 8–10, 91, 93–94, 96, 106, 109, 114–115, 176, 185–188, 190 n. 25, 192–193, 196, 199 n. 68, 201–203, 210, 213, 219 n. 170, 220, 298 n. 25, 304 n. 42, 317, 319, 321–324, 326, 333–335, 371, 381, 426 n. 75, 437–466, 468–469, 474, 477, 479, 483–484, 488, 515–537 (see also United Nations Framework Convention on Climate Change and Kyoto Protocol) Climate Mitigation 187, 197 n. 60 Commission for the Conservation of Antarctic Marine Living Resources  119, 210 Commission for the Conservation of Southern Bluefin Tuna 299–300 Commission on the Limits of the ­Continental Shelf 2, 6, 29, 60 n. 11, 77, 154–155, 223–240, 246, 251, 295, 365 n. 36, 367–368, 397–398, 442, 445–446, 486 Rules of Procedure 223–229, 231–232, 235, 238–240 Scientific and Technical Guidelines  447 Common Heritage Principle 129–144, 151, 157 Common Market for Eastern and Southern Africa 411 Convention for the Prevention of Marine Pollution from Land-Based Sources  90 n. 11 Convention for the Protection of Human Rights and Fundamental Freedoms 508 n. 104

Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 92 n. 19, 315 Convention for the Safety of Life at Sea 169, 171, 178–180, 281–284, 286 Conference of Contracting Parties 286 Convention for the Strengthening of the Inter-American Tropical Tuna ­Commission 307 Convention for the Suppression of ­Unlawful Acts Against the Safety of Maritime Navigation 178, 180, 288–290, 503, 504 n. 75 SUA Protocol 181, 183, 288, 290, 503 Convention of State Parties to the United Nations Framework Agreement on Climate Change 8 Convention on Biological Diversity 186, 189–192, 199, 209–211, 306, 309, 462 Jakarta Mandate 189 Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter 99 n. 76, 186 n. 5, 204 Convention on the Conservation of Antarctic Marine Living Resources  119, 186 n. 13, 210 Convention on the Elimination of all Forms of Discrimination Against Women 301 Convention on the Prohibition of Military or Any Other Hostile Use of ­Environmental Modification Techniques 186 n. 9 Convention on the Protection of the Underwater Cultural Heritage 153 Coordinating Body on the Seas of East Asia 96–102, 106, 246 n. 3 Action Plan 97–98 Forum on Marine Pollution-Related Multilateral Environment ­Agreements 99 New Strategic Direction 97–100 Copenhagen Accord 321–326 Copenhagen Climate Summit 322–323 Council of Europe Parliamentary Assembly 131, 506 n. 88 Cross-Strait Agreement on ­Intellectual Property Rights Protection and ­Cooperation 304 Cross-Strait Economic Cooperation Framework Agreement 304



index

Declaration on the Conduct of Parties in the South China Sea 252 Declaration Respecting Maritime Law 495 Diplomatic Conference on Maritime ­Security 281 Disarmament Conference Sea-Bed Arms Control Treaty 133 Djibouti Code of Conduct 370 Dumping 5, 92–94, 99 n. 76, 105–106, 153 n. 42, 186 n. 5, 190, 201–211, 297, 521 East Asia Seas Congress 99–100 Economic Community of West African States 411 Energy Information Administration  450 n. 54 Environment ix, 1–2, 5, 9–10, 17, 69 n. 59, 79, 89–106, 107 n. 129, 108–109, 112, 116, 117 n. 23, 120, 127, 130, 131, 133, 137, 140–142, 145, 147, 149, 150 n. 31, 152–153, 155–157, 159–161, 163, 165–172, 174–177, 182–187, 188 n. 17, 189–192, 195–197, 199, 201–205, 206 n. 106, 208–209, 212–220, 246, 286, 289, 296–299, 306, 313–316, 318, 328–329, 331–334, 338, 340, 345–346, 349–354, 360–361, 365, 370–373, 379, 381, 396, 399, 401–402, 412, 415, 424 n. 58. 427 n. 75, 430–432, 436, 438, 450, 453, 455, 457–460, 462, 464–465, 467–474, 476, 479, 482, 484, 488, 495, 497, 521–522, 525, 527–530 Environmental Modification Treaty 186 Environmental and Fisheries Protection Zone 350 European Climate Exchange 193 European Commission 316, 318–319, 329, 333, 348–352, 420, 426 n. 68, 432, 464 Directorates-General for External ­Relations and for Enlargement  350 Sensors, Radar Technologies and ­Cybersecurity Unit 349 Stabilisation and Association Process 348–349 European Union 8–9, 31, 61, 74, 92 n. 20, 122 n. 32, 135, 158, 164, 313–319, 329–335, 337 n. 1, 338–342, 344–348,

545

350–353, 355, 369–370, 375 n. 86, 377, 402–403, 406, 408, 411, 413, 419, 420 n. 40, 431–436, 483 n. 44, 505, 509–510, 513, 521 Burden Sharing Agreement 324 n. 28, 334 Climate and Energy Package 329 Commission (see European ­Commission) Emissions Trading System 324 n. 27, 329, 331, 333–335 Fisheries Partnership Agreement 411, 429, 431–436 Joint Research Centre 333–334, 349 Marine Fuel Sulphur Directive 318 Marine Strategy Framework Directive 337–338 Operation Atalanta 507, 510 Stakeholder Working Group 335 Water Framework Directive 458 Exclusive Economic Zone 23–24, 132, 136 n. 21, 144, 150 n. 32, 164, 174, 177, 191, 203, 213, 218, 230, 232, 234, 238, 248–254, 258, 262, 279, 293, 295–296, 315, 331–332, 350, 352–353, 361, 363–364, 375, 379–380, 385, 391–395, 409, 419, 422, 425 n. 64, 426 n. 68, 427, 429–432, 434–435, 442, 446, 448, 451, 458, 470–471, 478, 483, 486–487, 497, 519 n. 18, 529, 533 Fishery Committee of the West Central Gulf of Guinea 426 Florida Constitution 49 Food and Agriculture Organization 4, 111–128, 314, 375, 412 n. 3, 413, 415–419, 421–428, 430 Article VI 126 Article XIV 126 n. 42 Code of Conduct for Responsible Fisheries 111, 113–119, 124–125 Committee on Fisheries 118–120, 123–127 Compliance Agreement 118, 120, 122, 412 n. 3, 416, 425, 430 Constitution 112, 126, 413, 421 Expert Consultation on Flag State Performance 123 Fisheries and Aquaculture Department 115, 124, 126 n. 44, 373 n. 72

546

index

Fisheries Committee for the Eastern Central Atlantic 411, 421–427, 435–436 Guidelines for Ecolabelling of Marine Capture Fisheries 118 International Guidelines for ­Management of Deep-Sea Fisheries in the High Seas 118 International Plan of Action 118–119 IUU Agreement 413, 419, 430 Legal Office 124 Port State Model Scheme 412 n. 3, 418, 425 Status and Trends Information Strategy 412 n. 3, 418, 425 General Agreement on Tariffs and Trade 298 Geneva Convention 22, 132, 162, 496, 500 On the High Seas 132, 257, 259, 496, 503 On the Territorial Sea and Contiguous Zone 162 Geo-engineering 6, 185–188, 190 n. 25, 191–192, 193 n. 43, 195–197, 201 n. 76, 202–213, 219–220, 515–516, 522–524, 536 Germany 22, 107 n. 129, 134 n. 16, 136, 138 n. 27, 227 n. 22, 230 n. 32, 328, 346, 380 n. 103, 452, 479, 481 Federal Environment Agency 331, 334 Federal Ministry of the Environment, Nature Conservation and Nuclear Safety 331 Global Environment Facility 91, 101, 104, 212 n. 137, 427 Sustainable Fisheries Investment Fund 427 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities 91 n. 18, 95 Greenpeace International 69, 81, 207 n. 110 Human Health 205 n. 102, 208 Indian Ocean Tuna Commission 127 n. 47, 299, 371 n. 62, 375–376, 411–421, 435–436 Compliance Committee 415, 419

Review Panel 416 Scientific Committee 415, 420 Scientific Meetings Participation Fund 419 Standing Committee on Administration and Finance 415 Industrial Technology Research Institute 299 Inha University-Incheon xi Inter-American Convention for the Protection and Conservation of Sea Turtles 409–410 Inter-American Tropical Tuna ­Commission 300, 307, 402–404 Intergovernmental Oceanographic ­Commission 79, 185–186, 190–192, 202, 210–211 Ad Hoc Consultative Group on Ocean Fertilization 190 n. 23, 191 Intergovernmental Panel on Climate Change 187 n. 15, 210, 428, 516, 517 n. 3, 530 n. 57, 531 Special Report on Emissions Scenarios 187 n. 15 International Arctic Science Committee 107 n. 129, 486 International Atomic Energy Agency 413 n. 8, 423 International Centre for Settlement of Investment Disputes 48 International Civil Aviation Organization 306, 308–309, 320, 323, 335 n. 85 International Commission for the ­Conservation of Atlantic Tunas 299, 307, 404–405, 422 International Conference on the ­Sustainable Contribution of Fisheries to Food Security Kyoto Declaration 113 International Convention for the ­Prevention of Pollution from Ships  99 n. 76, 165, 167, 219, 318, 327, 333, 335, 349, 521 Sulphur Oxide Emission Control Areas 318 International Convention on Oil Pollution Preparedness, Response and Co-operation 99 n. 76 International Council for Exploration of the Sea 455–456 International Court of Justice 4, 17, 19–20, 23–24, 28, 30–31, 34, 38–42, 44,



index

48, 51, 59, 60 n. 10, 63 n. 24, 64–68, 71, 75 n. 5, 76, 80–81, 82 n. 24, 162 n. 1, 183, 216, 224, 227 n. 21, 240, 245–246, 249–250, 376–377, 395–397 Ad Hoc Chamber 38–45 Peace Palace 81 Practice Direction XII 69 n. 60, 81 Rules 38–45 International Criminal Court 292, 512 International Maritime Bureau 260 n. 6, 494, 497–498 Piracy Reporting Centre 494 International Energy Agency 163 n. 8 International Federation of Red Cross and Red Crescent Societies 107 n. 129 International Hydrographic Organization 337 n. 2, 359 n. 2 International Law Commission 19–21, 24, 148 n. 18, 496, 498 n. 40, 500 Draft Articles on State Responsibility 20, 24 Study Group 19 n. 14, 25 n. 32, 26 n. 33 International Maritime Organization 2, 5–9, 59, 108, 166–171, 174–176, 179, 181–184, 186, 187 n. 14, 190, 191, 204, 206, 207 n. 110, 213 n. 142, 275, 281, 282 n. 19, 283, 286, 288, 297, 306, 308, 313–315, 317–320, 323–325, 327–329, 334–335, 339, 353–354, 370, 470, 493–494, 498, 501, 507, 517 n. 3, 519, 524 Associated Protective Measure 175–176 Ballast Water Convention 339 Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships 498 Convention for the Control and Management of Ships Ballast Water and Sediments 339 n. 6 International Safety Management Code 286 Marine Environmental Protection Committee 175 Polar Code 453 Sub-Committee on Navigation 175 International Norms 437, 442, 524 International Ocean Space Institution 148, 158 International Oil Pollution Compensation Fund 106 International Regulations for the Prevention of Collisions at Sea 166, 170

547

International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean 133 International Seabed Authority 2, 5, 16, 31, 44, 57–58, 62, 65, 75, 129, 135, 145–149, 152–160, 189, 191, 213–218, 226, 295, 385, 397–398 Council 57–59, 62–66, 135, 138–140, 153, 158–159, 214, 218, 398 Deep Seabed Regulations 213 Endowment Fund 141, 217 n. 165 International Seabed Area 4, 31, 58, 63, 66, 69, 71, 136, 217 n. 165, 221, 239, 385 International Ship and Port Security Code 178–180, 183, 281–286 International Tribunal for the Law of the Sea x, xi, 2, 3–5, 9, 15–38, 41–45, 47–54, 57–71, 73–85, 139, 147, 150 n. 31, 156, 213, 215, 217, 220, 240, 246, 250, 252, 292, 314, 333, 360, 363, 372, 374–375, 377–381, 395–397, 508, 510, 511 n. 112 President xi, 3, 17, 35, 39 n. 10, 40, 41 n. 16, 42, 44, 47, 379–380 Rules 41–44, 50, 53 n. 36 Seabed Disputes Chamber 16–17, 19, 31, 43, 47, 57–71, 75–76, 78–79, 85, 139, 147, 150 n. 31, 156, 213, 215, 217–218, 220 Trust Fund 85 International Olympic Committee 297 International Parcel Tankers Association 328 International Union for Conservation of Nature and Natural Resources  69 n. 59, 80, 107 n. 129, 315, 328 Interoceanmetal Joint Organization  69 n. 59, 75–76, 136 Iron 2, 6, 185–220, 522–524 Iron Fertilization 2, 6, 185–220, 524–526 Experiments 188, 192, 197–202, 219, 523 Iron Hypothesis 195, 197 Japan xi, 6, 7, 23, 33, 53 n. 31, 98, 101–103, 105–106, 113 n. 12, 119 n. 25, 134 n. 16, 136, 172–173, 190, 221 n. 4, 230 n. 28, 233–240, 246–250, 252, 254–255, 257–269, 272–273, 275, 277–280, 285–286, 290–291, 296, 328, 330, 375 n. 86, 387–390, 402–403, 406, 413, 419

548

index

n. 35, 423, 467, 472, 477, 479, 487, 501 n. 55, 505 Anti-Piracy Law 257–269 Anti-Piracy Response Operations 263, 267 Coast Guard 247, 261, 263, 266–268, 279–280, 285 Diet (see Japanese Diet) Foreign Ministry 260 n. 6 International Maritime Bureau  260 n. 6 Law Regarding Security of International Voyage Ships and International Port Facilities 285 Maritime Security Operation 261, 266 Maritime Self-Defense Force 260, 266–267, 279 Ministry of Land, Infrastructure, Transport and Tourism 279 Penal Code 259, 264, 266, 279 Prime Minister 261, 263, 280 Punishment and Measures Against Piracy Law 279–280 Japanese Diet 257, 264 Committees on Land and ­Transportation 261 Japanese Shipowners’ Association 260 Kaplan Project 140 Korea xi, 6–7, 98, 100–106, 136, 172 n. 50, 173, 233–240, 245, 247, 253, 271 n. 1, 272–273, 275–277, 280–281, 284, 286, 290–291, 295 n. 6, 296, 375 n. 86, 387–390, 402–403, 406, 408, 413, 423, 452, 472, 477, 479, 481, 483, 487, 501 n. 55 Criminal Act 275, 277, 290 Criminal Procedure Act 276–277 Ministry of Maritime Affairs and Fisheries 284, 286 Ocean Research and Development Institute xi Punishment for Damage Act 275, 290 Kyoto Protocol (See also Climate Change) 187, 192–193, 319–320, 323, 538 Clean Development Mechanism 193, 326 Latin American and Caribbean Economic System 404 Latin American Organization for Fisheries Development 404

Law of the Sea Convention ix–xii, 1–9, 11, 15–19, 25–27, 29–38, 41–45, 47, 50–51, 53 n. 36, 57–62, 63 n. 26, 66–69, 73–78, 79 n. 15, 82, 85, 99 n. 76, 111, 116, 120–121, 129–137, 138 n. 26, 139, 140 n. 31, 142–159, 161–165, 167–168, 169 n. 30, 170–172, 174, 177–178, 182–184, 186, 190 n. 20, 202, 203 n. 86, 205 n. 99, 207, 212–217, 219–224, 227–229, 232–236, 238–240, 246, 248–250, 252–253, 255, 257, 259, 261–268, 272, 274–277, 279–280, 287, 291, 293–297, 306, 308–309, 313–314, 319, 332–334, 337–340, 350, 352, 355, 360–361, 362 n. 17, 363–364, 365 n. 38, 366–381, 383–385, 391–399, 401–402, 407, 409–410, 412 n. 3, 422 n. 49, 430–431, 445–446, 484, 486, 496–500, 503–505, 512, 527, 529, 532 n. 63, 533 n. 66 Annex II 223, 235 Annex III 134, 137, 138 n. 25, 153 n. 42 Annex VII 16–17, 27, 30, 32–33, 35, 363, 366, 377–380, 395 Cooperative Mechanism 172 First Committee 148–149, 158 Implementation Agreement 75 n. 6, 135, 145, 156–159 International Tribunal (see ­International Tribunal for the Law of the Sea) Legal and Technical Commission 139 n. 27, 140, 157, 215, 217, 398 Part XI 63 n. 26, 75–76, 129, 131–132, 134–135, 137, 142–143, 145–149, 151, 157–159, 214, 297, 371, 379, 395, 398 Part XIII 151 Part XV 15, 29, 31–34, 155, 224, 360, 368, 373, 376–378, 381 Preparatory Commission 134 Third UN Conference 130–131, 133 n. 10, 147–150, 158, 161–163, 167, 172, 235, 294–295 Law of the Sea Institute ix–xii, 37 n. 1, 261 n. 9, 515 n. 1 Lawrence Livermore National Laboratory 534 Law School of the University of California, Berkeley x Legal Intersessional Correspondence Group 208 n. 116 LOHAFEX 198 n. 66, 199, 200 n. 72



index

London Convention 94, 99 n. 76, 186, 187 n. 14, 190–192, 198–199, 204, 205 n. 98, 207–213, 219–220 Protocol (see London Protocol) Scientific Group 187 n. 14, 199, 207–211, 213 n. 142 London Protocol 94, 99 n. 76, 186, 187 n. 14, 190–192, 198–199, 204, 205 n. 98, 207–213, 219–220 Ocean Fertilization Correspondence Group 211 Scientific Group 187 n. 14, 199, 207–211, 213 n. 142 Long Range Acoustic Device System 262 Madrid Protocol 186 Maltese Initiative 133 Marine Environment Protection ­Committee 175, 318, 324–328, 334, 335 n. 86, 517 n. 3, 519 Energy Efficiency Design Index  325–326, 328 Ship Energy Efficiency Management Plan 325–328 Marine Resources and Fisheries ­Consultants Ltd. 435 Marine Scientific Research 141–142, 146, 151–152, 168, 203, 217 n. 165, 253–254, 296, 396 Maritime Safety Committee 281 Massachusetts Institute for Technology 201 n. 77 Massive Sulphide System 218 Miller Institute on Global Challenges xi Ministerial Declaration on IUU Fishing 122 Ministry of Natural Resources and the Environment for the Russian ­Federation 217 Monaco Declaration 534–537 Montreal Protocol on Substances that Deplete the Ozone Layer 299 Montreux Convention 170 Nairobi Convention 371–373 Nansen Institute, Norway xi, 353 Northeast Fisheries Science Center  528–529 National Oceanography Centre 201 Nautilus Minerals Nauru Ocean Resources Incorporated  57 n. 2

549

Nippon Foundation 173, 260 Nordic Council 107 n. 129 Nordic Environment Finance Corporation 107 n. 129 North Atlantic Marine Mammal ­Commission 107 n. 129 North Atlantic Treaty Organization 288 n. 29, 441, 505 North Pacific Anadromous Fish ­Commission 300 Northeast Asia History Foundation xi Northern Sea Passage 176–177, 467, 441, 451–452, 469, 472–474, 476 Northwest Pacific Action Plan 90 n. 5, 96, 102–106, 246 n. 3 Regional Oil Spill Contingency Plan 102 Norway xi, 10, 96, 107, 122 n. 32, 171 n. 41, 206, 230 n. 29, 322 n. 19, 328, 406, 423, 432, 445–448, 454–457, 460, 462 n. 98, 463–465, 471, 479, 481, 483, 520 Barents Sea Integrated Management Plan 457, 461 Institute of Marine Research 463 MARENO 463 National Advisory Committee 460 Polar Institute 463 SEAPOP 463 Norwegian-Russian Fisheries Commission 455, 453 n. 80, 464 Ocean Acidification 196 n. 54, 202, 371 n. 62, 463, 465, 522–523, 535–537 Ocean Fertilization 188, 190–193, 196 n. 54, 197 n. 60, 199 n. 71, 200–203, 205 n. 98, 207–213, 217, 219 n. 170, 220, 520, 523 Ocean Carbon Sinks 193–194, 520, 522 Ocean Nourishment Corporation 200 Ocean Policy Research Foundation xi, 260 Organization for Economic Cooperation and Development 299–300 OSPAR Commission 93 Quality Status Report 463 OSPAR Convention 90 n. 11, 92–93, 108, 313, 462, 465 Ottawa Declaration 107 n. 128, 481 Pacific Regional Environment Programme 94 Paris Memorandum 315

550

index

Partnerships in Environmental ­Management for the Seas of East Asia 101–102, 106, 246 n. 3 People’s Republic of China 6–8, 10, 98–105, 136, 173 n. 50, 187, 206, 217, 233–240, 245–255, 272–273, 278, 280, 284–286, 290–291, 293–309, 375 n. 86, 386–390, 402–403, 406, 408, 413, 452, 467–489, 493, 501 n. 55, 505, 509 Academy of Sciences 482 Arctic and Antarctic Administration 481 Arctic Strategy 467–468, 483, 487–488 Association for Relations Across the Taiwan Straits 304, 307, 309 Communist Party 303 Criminal Law 278, 290 Institute for Marine Affairs 480 Institute of Oceanology 480 Malacca Dilemma 485 Maritime Transport Bureau 284 National People’s Congress 303 Polar Research Institute 478, 480 Port Management System 284–285 Port Security Regulation 285 Republic of China (see Taiwan) State Oceanic Administration 480 Permanent Commission for the South Pacific 400–402 Action Plan for the Protection of the Maritime Environment and the Coastal Areas of the South-East Pacific 401–402 Galapagos Agreement 401–402 Permanent Court of Arbitration 48, 397 Permanent Court of International Justice 19, 22, 28, 38, 67, 227 n. 21 Chamber of Summary Procedure 38 Peru 122 n. 32, 383–387, 389, 391–392, 397, 400, 402–404, 407–410 Constitution 392 Supreme Decree 384 Precautionary Approach 4, 6, 9, 116, 143, 156, 188–189, 191, 205, 209, 212, 214–216, 219, 371 n. 62, 372, 399, 415, 425, 521 Polluter Pays Rule 205 Pollution 5, 8, 89–93, 95, 98–99, 102–103, 105–106, 108–109, 114, 144, 153, 163, 164 n. 16, 165–168, 172, 176–177, 183, 186 n. 5, 202–205, 208, 217, 297, 314–315, 318–319, 339, 349, 352–353,

371, 373 n. 67, 393, 402, 459–460, 462, 464–465, 475, 486, 518–519, 521 PRC-Taiwan Economic Cooperation Framework Agreement 293 Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea  92 n. 23 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean 93 n. 25 Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea 92 n. 22 Protocol for the Protection of the ­Mediterranean Sea against ­Pollution Resulting from Exploration and ­Exploitation of the Continental Shelf and the Seabed and its Subsoil 93 n. 26 Protocol on Integrated Coastal Zone Management in the Mediterranean  93 n. 28 Protocol on the Prevention of ­Pollution of the Mediterranean Sea by ­Transboundary Movements of ­Hazardous Wastes and their ­Disposal 93 n. 27 Red Sea and Gulf of Aden Regional Seas Programme 93 Action Plan 93 Jeddah Convention 93, 372 n. 67 Programme for the Environment of the Red Sea and Gulf of Aden 93 Regional Action Plan on Marine Litter 103 Regional Agreement on Combating Piracy and Armed Robbery Against Ships in Asia 273 Information Sharing Centre 501 Regional Forestry Commission 128 Regional Workshop on Identification of Pollution Hot Spots in the East Asian Seas Region 98 Rio Declaration 116–117, 214–215, 315 Russian-Japanese Fisheries Commission 23 Sea Lanes of Communication Study Group xi Security of Ships and Port Facilities Engaged in International Voyage Act 284



index

South Asian Seas Action Plan 373 South Indian Ocean Fisheries Agreement 127 n. 47, 376 South Pacific Regional Fisheries ­Management Organization 407–408 Southeast Asian Fishery Development Center 101 Southern African Development ­Community 411 Southern Ocean Iron Fertilization ­Experiment 522–523 Southwest Indian Ocean Fisheries ­Commission 126 n. 41, 376 Standing Committee of the ­Parliamentarians of the Arctic Region 107 n. 129 Straddling Fish Stocks Agreement 186 Sub-Regional Fisheries Commission 425–426 Svalbard Treaty 479 Taiwan xi, 7–8, 98 n. 71, 247–249, 251, 293–309, 387–390, 413 n. 8, 419 n. 35, 477 Arrangement for the Participation of Fishing Entities 300, 307 Democratic Progress Party 302 Environmental Protection ­Administration 297 International Covenant on Civil and Political Rights 305 International Covenant on Economic, Social and Cultural Rights 305 Kinmen Agreement 298 Legislative Yuan 300, 304–305, 307 Marine Dumping Permit Management Regulations 297 Marine Pollution Control Act 297 Ministry of Foreign Affairs 246, 298, 299 n. 27, 300 n. 29, 301 Ministry of Transportation and ­Communication 296 National Unification Council 298 Nationalist Party 302 Strait Exchange Foundation 304 Tobacco Control Law 301 Timor Sea Treaty 362 n. 17, 363 Tonga Offshore Mining, Ltd. 136, 138 Treaty of Osimo 344 n. 14 Treaty to Submit to Binding Dispute Settlement the Delimitation of the

551

Maritime Boundary in the Gulf of Maine Area 39 Turkish Straits Maritime Traffic ­Regulations 170 United Kingdom 24, 27, 30, 34, 50, 63 n. 24, 85, 107 n. 129, 134 n. 16, 162 n. 1, 169, 206, 208 n. 116, 222 n. 8, 230 n. 31, 259 n. 3, 314, 328, 359, 365–366, 375 n. 86, 388, 406, 413, 483, 511–512 House of Lords 50 United Nations ix–x, 1–9, 11, 25–26, 29–30, 32–35, 37 n. 2, 44, 47 n. 2, 53 n. 36, 57–62, 63 n. 26, 64–65, 67–69, 73–80, 82, 85, 89–90, 91 n. 18, 94–97, 99 n. 76, 101–102, 104, 106, 107 n. 129, 109–112, 113 n. 11, 116, 120, 122, 125, 126 n. 43, 129–137, 138 n. 26, 139, 140 n. 31, 141–145, 147–159, 161–165, 167–168, 170–172, 174, 177–178, 180, 182–186, 190 n. 23, 192–193, 202, 207, 210–215, 219, 221–224, 227–229, 230 n. 33, 231–232, 234–236, 239–240, 245–246, 249, 251–255, 257, 259, 261–268, 272, 274–277, 279–280, 287–288, 291, 293–309, 313–314, 317, 319–324, 327, 329, 332–335, 338, 340 n. 8, 348, 350, 352, 355, 360–361, 363–364, 366–379, 381, 385, 391–392–399, 402, 407, 409–410, 412, 413 n. 8, 423, 442, 480 n. 31, 511–513, 516, 529 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks 186, 374, 399, 412 n. 3 Atlas of the Ocean 302 Charter 1, 112 n. 5, 133 Conference on Environment and Development 9, 116, 412, 415, 416, 424, 435–436 Conference on Sustainable ­Development 9 Conference on the Law of the Sea 147, 162, 235, 261 n. 9, 385, 393 Convention on Conditions for ­Registration of Ships 25 Convention on the Law of the Sea (See Law of the Sea Convention) Declaration of Principles 130, 132, 143, 147–149 Development Programme (See United Nations Development Programme)

552

index

Division for Ocean Affairs and the Law of the Sea 85, 360 n. 6, 362 n. 17, 364 n. 26, 365 n. 35, 366 n. 39, 367 n. 44, 368 n. 47, 446 n. 40 Economic and Social Council 130 n. 2 Economic Commission for Europe 107 n. 129 Educational, Scientific and Cultural Organization  6, 79, 154, 186, 190 n. 23, 202, 210–211 Environment Programme (See United Nations Environment Programme) Framework Convention on Climate Change (see United Nations Framework Convention on Climate Change) General Assembly ix, 6, 44–45, 64, 80, 85, 95, 111 n. 2, 122, 125, 129–130, 124 n. 16, 135, 141, 146–147, 185, 210, 230 n. 33, 268 n. 28, 288, 294–295, 299, 301–303, 305, 309, 360, 393, 397, 413 n. 3, 512 n. 123 Interagency Consultation on Flag State Implementation 122 Millennium Declaration 112 Millennium Development Goals 112 Office on Drugs and Crime 513 Office of Legal Affairs 85, 231, 240, 511 n. 114 Secretariat 301, 305 Secretary-General 135, 301, 322, 364, 513–515 Security Council 7, 64, 75 n. 5, 259 n. 3, 261, 274, 348, 360, 368–370, 395–396, 501, 504–508, 510–512, 513 n. 125 Treaty Section 377 United Nations Convention on the Law of the Sea (see Law of the Sea Convention) United Nations Development Programme 91 n. 18, 101–102, 104 Yellow Sea Large Marine Ecosystem Project 104 United Nations Environment Programme 3–4, 69 n. 59, 79–80, 89–110, 371 n. 62, 372, 373 n. 70, 402, 434, 447 Division of Environmental Policy ­Implementation 94 n. 40 Finance Initiative 95 n. 41 Governing Council 89 n. 4, 96 n. 55 Large Marine Ecosystems 91, 127, 427, 528–529

Marine and Coastal Program 94 n. 40 Marine and Coastal Strategy 96 Mediterranean Action Plan 92 n. 20, 95 Regional Seas Programme 3–4, 89–110 Wider Caribbean Programme 95 United Nations Framework Convention on Climate Change 186, 192–193, 210, 298 n. 25, 299, 304, 306, 309, 317, 319–324, 327, 329, 334–335 Ad Hoc Working Group on Long-Term Cooperative Action under the Convention 321 Annex I 324, 327 Bali Action Plan 321 Conference of the Parties 189, 190, 193 n. 42, 199 n. 71, 208, 219 n. 170, 299, 304, 319–323 United States 1, 24, 39, 49, 107, 133, 134 n. 16, 142, 161–162, 163 n. 9, 164 n. 17, 171 n. 41, 175, 177–178, 181, 186 n. 9, 187, 189 n. 18, 197 n. 59, 198–201, 207, 230 n. 32, 233–234, 247, 249–250, 253–255, 259 n. 3, 271, 275, 283, 286–288, 294 n. 2, 297, 306–307, 365, 383–384, 402–403, 406, 408–410, 423, 442, 444, 446, 453, 457, 468, 470–471, 475–477, 481–482, 485, 488, 505, 509, 518–519, 526 n. 42, 528 Arctic Research Commission 526 n. 42 Container Security Initiative 286 Customs-Trade Partnership Against Terrorism 286 Department of Commerce 528 Department of Homeland Security 487 Energy Information Administration 450 n. 54 Environmental Protection Agency 199 Geological Survey 449–450, 469–470, 472 Government Accountability Office  197 n. 59 House of Representatives (See United States House of Representatives) National Oceanic and Atmospheric Administration 440 n. 13, 528 National Research Council 201 National Security Directive 449 National Snow and Ice Data Center 439–440, 452 n. 64

Presidential Proclamation No. 2667 383 Secure Freight Initiative 286 Security and Accountability for Every Port Act 286 United States House of Representatives 199 n. 68, 201 n. 76, 261, 509 n. 108, 513 n. 124 American Power Act 199 n. 68 Clean Air Act 518 Marine Vessel Emissions Reduction Act 518 Science and Technology Committee 199 n. 68 University of Hawaii x, xii, 100 n. 84, 295 n. 6 University of Miami x University of Milan xi University of Rhode Island x Vessel Traffic Information Monitoring System 168 Vienna Convention for the Protection of the Ozone Layer 299 Vienna Convention on the Law of ­Treaties 26, 225 n. 17 Virginia Commentary 62, 67

index

553

Western and Central Pacific Fisheries Commission 246, 300, 307–308, 527 WMD Proliferation Security Initiative 291 World Bank 428 n. 77 World Health Organization 64–65, 300–301, 303, 308 Framework Convention on Tobacco Control 300 International Health Regulations 301 World Health Assembly 300, 308 World Meteorological Organization 306 World Ocean Heritage Site 200 n. 75 World Peace through Law Conference 130 n. 2 World Shipping Council 328 World Summit on Food Security  113 n. 10 World Summit on Sustainable ­Development 482 World Trade Organization 246, 299, 303 Dispute Settlement Body 48 n. 9 Government Procurement Agreement 303 World Wide Fund for Nature 69, 81 Global Arctic Program 107 n. 129