ITSSD Journal on the UN Law of the Sea Convention

International Tribunal on the Law of the Sea Finally Renders Advisory Opinion Establishing that the Precautionary Principle is Incorporated Within UNCLOS Law

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http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf

[On February 1, 2011, the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea issued its advisory opinion in Case No. 17 - RESPONSIBILITIES AND OBLIGATIONS OF STATES SPONSORING PERSONS AND ENTITIES WITH RESPECT TO ACTIVITIES IN THE AREA. This case arose from a formal request made by the International Seabed Authority for an advisory opinion, in light of two prior applications the Authority's Legal and Technical Commission had received from the Republics of Nauru and Tonga concerning activities (a plan of work to explore for polymetallic nodules) to be undertaken by two State-sponsored contractors (Nauru Ocean Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of Tonga) in 'the Area'.

The advisory opinion responds to the following three questions posed by the Authority with respect to these proposed activities:

1. What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982?

2. What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2 (b), of the Convention?

3. What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement?

The advisory opinion sets forth the responsibilities and obligations of the Authority, as set forth in the applicable provisions of the United Nations Law of the Sea Convention (UNCLOS) and in its regulations and annexes, to ensure that sponsored activities do not harm the marine environment - i.e., by drawing up

Rules, regulations and procedures...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.

The advisory opinion also sets forth the obligations of States sponsoring activities in the Area consisting of the exploration and exploitation of of polymetallic nodules and polymetallic sulphides, consistent with the applicable provisions of the UNCLOS and its regulations and annexes. These UNCLOS provisions, regulations and appendices impose upon State Parties to said treaty the obligation to adopt, implement and enforce laws that ensure State-sponsored contractor compliance with the State's obligation under the treaty.

The sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.

According to the ITLOS,

The sponsoring State’s obligation “to ensure”...is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result...this obligation may be characterized as an obligation “of conduct” and not “of result”, and as an obligation of “due diligence”.

...“An obligation to adopt regulatory or administrative measures … and to enforce them is an obligation of conduct.

It is significant that the Tribunal found it necessary to stipulate that State Parties' are 'obligated', to incorporate these UNCLOS treaty requirements (which are intended to protect the marine environment of the Area from potentially harmful exploration and exploitation activities undertaken there) into their domestic laws, administrative practices and judicial procedures.

It is even more significant that the Tribunal found it necessary to compare/analogize this UNCLOS obligation to a similar obligation imposed by other provisions of the UNCLOS to protect the marine environment of other States from potentially harmful economic activities undertaken within such State Parties' jurisdiction and control.

113. An example may be found in article 194, paragraph 2, of the Convention which reads: “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment …”.

According to the Tribunal, such an obligation

...entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators … (Paragraph 197)

To drive the point home that UNCLOS treaty obligations assumed by State Parties may indeed require substantive domestic legislative and regulatory changes to the current laws and practices of sponsoring States, the Tribunal emphasized once again that:

118. Article 153, paragraph 4, last sentence, of the Convention states that the obligation of the sponsoring State in accordance with article 139 of the Convention entails “taking all measures necessary to ensure” compliance by the sponsored contractor. Annex III, article 4, paragraph 4, of the Convention makes it clear that sponsoring States’ “responsibility to ensure” applies “within their legal systems”. With these indications the Convention provides some elements concerning the content of the “due diligence” obligation to ensure. Necessary measures are required and these must be adopted within the legal system of the sponsoring State.

However, according to the Tribunal, these are not the only obligations the UNCLOS (and its regulations and annexes) imposes on sponsoring States to ensure that the Authority is able to protect the marine environment of the Area in the face of sponsored exploration and exploitation activities - THERE IS ALSO THE LEGAL OBLIGATION TO APPLY THE PRECAUTIONARY APPROACH.

121. The obligations of sponsoring States are not limited to the due diligence “obligation to ensure”. Under the Convention and related instruments, sponsoring States also have obligations with which they have to comply independently of their obligation to ensure a certain behaviour by the sponsored contractor. These obligations may be characterized as “direct obligations”.

122. Among the most important of these direct obligations incumbent on sponsoring States are: the obligation to assist the Authority in the exercise of control over activities in the Area; the obligation to apply a precautionary approach;

... Precautionary approach

125. The Nodules Regulations and the Sulphides Regulations contain provisions that establish a direct obligation for sponsoring States. This obligation is relevant for implementing the “responsibility to ensure” that sponsored contractors meet the obligations set out in Part XI of the Convention and related instruments. These are regulation 31, paragraph 2, of the Nodules Regulations and regulation 33, paragraph 2, of the Sulphides Regulations, both of which state that sponsoring States (as well as the Authority) “shall apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration” in order “to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area”. 126. Principle 15 of the 1992 Rio Declaration on Environment and Development (hereinafter “the Rio Declaration”) reads:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

127. The provisions of the aforementioned Regulations transform this non-binding statement of the precautionary approach in the Rio Declaration into a binding obligation. The implementation of the precautionary approach as defined in these Regulations is one of the obligations of sponsoring States.

128. It should be noted that while the first sentence of Principle 15 seems to refer in general terms to the “precautionary approach”, the second sentence limits its scope to threats of “serious or irreversible damage” and to “cost-effective” measures adopted in order to prevent “environmental degradation”.

129. Moreover, by stating that the precautionary approach shall be applied by States “according to their capabilities”, the first sentence of Principle 15 introduces the possibility of differences in application of the precautionary approach in light of the different capabilities of each State (see paragraphs 151-163). 40

130. The reference to the precautionary approach as set out in the two Regulations applies specifically to the activities envisaged therein, namely, prospecting and exploration for polymetallic nodules and polymetallic sulphides. It is to be expected that the Authority will either repeat or further develop this approach when it regulates exploitation activities and activities concerning other types of minerals.

131. Having established that under the Nodules Regulations and the Sulphides Regulations, both sponsoring States and the Authority are under an obligation to apply the precautionary approach in respect of activities in the Area, it is appropriate to point out that the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States, which is applicable even outside the scope of the Regulations. The due diligence obligation of the sponsoring States requires them to take all appropriate measures to prevent damage that might result from the activities of contractors that they sponsor. This obligation applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks. Such disregard would amount to a failure to comply with the precautionary approach.

132. The link between an obligation of due diligence and the precautionary approach is implicit in the Tribunal’s Order of 27 August 1999 in the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan).

...It should be further noted that the Sulphides Regulations, Annex 4, section 5.1, in setting out a “standard clause” for exploration contracts, provides that: 41 The 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 as far as reasonably possible applying a precautionary approach and best environmental practices. Thus, the precautionary approach (called “principle” in the French text of the standard clause just mentioned) is a contractual obligation of the sponsored contractors whose compliance the sponsoring State has the responsibility to ensure.

134. In the parallel provision of the corresponding standard clauses for exploration contracts in the Nodules Regulations, Annex 4, section 5.1, no reference is made to the precautionary approach. However, under the general obligation illustrated in paragraph 131, the sponsoring State has to take measures within the framework of its own legal system in order to oblige sponsored entities to adopt such an approach.

135. The Chamber observes that the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law. This trend is clearly reinforced by the inclusion of the precautionary approach in the Regulations and in the “standard clause” contained in Annex 4, section 5.1, of the Sulphides Regulations.

...242. For these reasons,

THE CHAMBER,

1. Unanimously,

Decides that it has jurisdiction to give the advisory opinion requested.

2. Unanimously,

Decides to respond to the request for an advisory opinion.

3. Unanimously, Replies to Question 1 submitted by the Council as follows:

Sponsoring States have two kinds of obligations under the Convention and related instruments:

A. The obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the Convention and related instruments.

This is an obligation of “due diligence”. The sponsoring State is bound to make best possible efforts to secure compliance by the sponsored contractors. 71

The standard of due diligence may vary over time and depends on the level of risk and on the activities involved.

This “due diligence” obligation requires the sponsoring State to take measures within its legal system. These measures must consist of laws and regulations and administrative measures. The applicable standard is that the measures must be “reasonably appropriate”.

...B. Direct obligations with which sponsoring States must comply independently of their obligation to ensure a certain conduct on the part of the sponsored contractors.

Compliance with these obligations may also be seen as a relevant factor in meeting the “due diligence” obligation of the sponsoring State.

The most important direct obligations of the sponsoring State are:

(a) the obligation to assist the Authority set out in article 153, paragraph 4,

of the Convention;

(b) the obligation to apply a precautionary approach as reflected in Principle 15 of the Rio Declaration and set out in the Nodules Regulations and the Sulphides Regulations; this obligation is also to be considered an integral part of the “due diligence” obligation of the sponsoring State and applicable beyond the scope of the two Regulations;...

In summary, the recently issued ITLOS advisory opinion confirms this author's numerous research findings which establish without doubt that the UNCLOS incorporates within its provisions, at a minimum, the PRECAUTIONARY APPROACH and, perhaps even, EUROPE'S PRECAUTIONARY PRINCIPLE, which all UNCLOS State Parties must incorporate within their domestic laws, regulations and administrative and judicial procedures, consistent with the obligations they assume both under the treaty and under international law generally.

For further reading, please consult the full opinion reproduced below. In addition, interested persons may wish to review this author's articles on the subject:

What Goes Around Comes Around: How UNCLOS Ratification Will Herald Europe's Precautionary Principle as U.S. Law, 7 SANTA CLARA J. INT’L L. (June 2009), Working Paper and Abstract available online, Social Science Research Network (SSRN) at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837

“Ecosystem-Based Management”: A Stealth Vehicle To Inject Euro-Style Precaution Into U.S. Regulation, Washington Legal Foundation Backgrounder Vol. 24 No. 23 (July 2009), available online at: http://www.wlf.org/Upload/legalstudies/legalbackgrounder/071009Kogan_LB.pdf

Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (April 2009), available online at: http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf

Arctic Escapades: Can The Precautionary Principle Be Invoked via UNCLOS to Undermine U.S. Polar Interests?, presented at the National Defense University and Forces Transformation and Resources Seminar Transforming National Security, at pp. 175–179, Unfrozen Treasures National Security, Climate Change and the Arctic Frontier Laws of the Sea: Changing Air Land and Sea Routes (May2008), available online at: http://www.ndu.edu/CTNSP/docUploaded//TFX_Arctic%20Security%20Compilation.pdf .]

** Perhaps readers should also consider whether the 2010 imposition by the Obama administration of a sweeping moratorium against deep sea oil & gas drilling in the Gulf of Mexico, along the Eastern Seaboard and along the Alaskan Coast reflected the U.S. application of the Precautionary Approach or Europe's Precautionary Principle.

See, e.g.: Martin Banks, MEPs welcome EU 'U-turn' on deep sea oil drilling, The Parliament.com (Oct. 14, 2010) available online at: http://www.theparliament.com/latest-news/article/newsarticle/meps-welcome-eu-u-turn-on-deep-sea-oil-drilling/ ;

See also, Ian Traynor, Brussels plans strict new controls for offshore oil drilling, Guardian UK (Oct. 12, 2010) available online at: http://www.guardian.co.uk/business/2010/oct/12/brussels-plans-offshore-drilling-controls

See also, Leading article: The lessons of the Gulf of Mexico crisis, The Independent UK (June 10, 2010), available online at: http://www.independent.co.uk/opinion/leading-articles/leading-article-the-lessons-of-the-gulf-of-mexico-crisis-1995928.html .

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SEABED DISPUTES CHAMBER

OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

YEAR 2011

1 February 2011

RESPONSIBILITIES AND OBLIGATIONS OF STATES SPONSORING PERSONS

AND ENTITIES WITH RESPECT TO ACTIVITIES IN THE AREA

ADVISORY OPINION

List of cases:

No. 17

RESPONSIBILITIES AND OBLIGATIONS OF STATES SPONSORING PERSONS AND ENTITIES WITH RESPECT TO ACTIVITIES IN THE AREA ADVISORY OPINION

TABLE OF CONTENTS

Paragraphs

Introduction 1-71

I. The Request 1-3

II. Events leading to the Request 4

III. Chronology of the procedure 5-24

IV. Role of the Chamber in advisory proceedings 25-30

V. Jurisdiction 31-45

VI. Admissibility 46-49

VII. Applicable law and procedural rules 50-56

VIII. Interpretation 57-71

In general 57-60

Multilingual international instruments 61-63

Meaning of key terms 64-71

Question 1 72-163

I. Sponsorship 74-81

II. “Activities in the Area” 82-97

III. Prospecting 98

IV. Responsibilities and obligations 99-120

Key provisions 99-102

Obligations of the contractor whose compliance the sponsoring

State must ensure 103-106

“Responsibility to ensure” 107-116

The content of the “due diligence” obligation to ensure 117-120

V. Direct obligations of sponsoring States 121-140 3

The obligation to assist the Authority 124

Precautionary approach 125-135

Best environmental practices 136-137

Guarantees in the event of an emergency order by the Authority

for protection of the marine environment 138

Availability of recourse for compensation 139-140

VI. Environmental impact assessment 141-150

VII. Interests and needs of developing States 151-163

Question 2 164-211

I. Applicable provisions 165-169

II. Liability in general 170-174

III. Failure to carry out responsibilities 175-177

IV. Damage 178-184

Causal link between failure and damage 181-184

V. Exemption from liability 185-187

VI. Scope of liability under the Convention 188-205

Standard of liability 189

Multiple sponsorship 190-192

Amount and form of compensation 193-198

Relationship between the liability of the contractor and

of the sponsoring State 199-205

VII. Liability of sponsoring States for violation of their direct obligations 206-207

VIII. “Without prejudice” clause 208-211 4

Question 3 212-241

I. General aspects 213-217

II. Laws and regulations and administrative measures 218-222

III. Compliance by means of a contract? 223-226

IV. Content of the measures 227-241

Operative part 242

ADVISORY OPINION

Present: President TREVES; Judges MAROTTA RANGEL, NELSON,

CHANDRASEKHARA RAO, WOLFRUM, YANAI, KATEKA,

HOFFMANN, GAO, BOUGUETAIA, GOLITSYN; Registrar GAUTIER.

On Responsibilities and Obligations of States sponsoring persons and entities

with respect to activities in the Area,

THE SEABED DISPUTES CHAMBER,

composed as above,

gives the following Advisory Opinion:

Introduction

I. The Request

1. The questions on which the advisory opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (hereinafter “the Chamber”) has been requested are set forth in decision ISBA/16/C/13 adopted by the Council of the International Seabed Authority (hereinafter “the Council”) on 6 May 2010 at its sixteenth session. By letter dated 11 May 2010, transmitted electronically to the Registry of the Tribunal on 14 May 2010, the Secretary-General of the International Seabed Authority (hereinafter “the Secretary-General”) officially communicated to the Chamber the decision taken by the Council. The original of that letter was received in the Registry on 17 May 2010. Certified true copies of the English and French versions of the Council’s decision were forwarded by the Legal Counsel of the International Seabed Authority (hereinafter “the Legal Counsel”) on 8 June 2010 and received in the Registry on the same date. The decision of the Council reads:

The Council of the International Seabed Authority,

Considering the fact that developmental activities in the Area have already commenced,6

Bearing in mind the exchange of views on legal questions arising within the scope of activities of the Council,

Decides, in accordance with Article 191 of the United Nations Convention on the Law of the Sea (“the Convention”), to request the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, pursuant to Article 131 of the Rules of the Tribunal, to render an advisory opinion on the following questions:

2. The Request was entered in the List of cases as No. 17 and the case was named “Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area”.

3. In his letter of 11 May 2010, the Secretary-General informed the Chamber of the appointment of the Legal Counsel as the representative of the International Seabed Authority (hereinafter “the Authority”) for the proceedings.

II. Events leading to the Request

4. The Chamber considers it necessary to describe the events that led to the request for an advisory opinion:

- On 10 April 2008, the Authority received two applications for approval of a plan of work for exploration in the areas reserved for the conduct of activities by the Authority through the Enterprise or in association with developing States pursuant to Annex III, article 8, of the United Nations 7 Convention on the Law of the Sea (hereinafter “the Convention”). These applications were submitted by Nauru Ocean Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the Kingdom of Tonga);

- These applications were submitted to the Legal and Technical Commission of the Authority. On 5 May 2009, the applicants submitted to the Authority a request that consideration of the applications should be postponed. At the fifteenth session of the Authority, held from 25 May to 5 June 2009, the Legal and Technical Commission decided to defer further consideration of the item;

- On 1 March 2010, the Republic of Nauru transmitted to the Secretary General a proposal, set out in document ISBA/16/C/6, to seek an advisory opinion from the Chamber on a number of specific questions regarding the responsibility and liability of sponsoring States;

- In support of its proposal,

Nauru

submitted, inter alia, the following considerations:

In 2008 the Republic of Nauru sponsored an application by Nauru Ocean Resources Inc. for a plan of work to explore for polymetallic nodules in the Area. Nauru, like many other developing States, does not yet possess the technical and financial capacity to undertake seafloor mining in international waters. To participate effectively in activities in the Area, these States must engage entities in the global private sector (in much the same way as some developing countries require foreign direct investment). Not only do some developing States lack the financial capacity to execute a seafloor mining project in international waters, but some also cannot afford exposure to the legal risks potentially associated with such a project.

Recognizing this, Nauru’s sponsorship of Nauru Ocean Resources Inc. was originally premised on the assumption that Nauru could effectively mitigate (with a high degree of certainty) the potential liabilities or costs arising from its sponsorship. This was important, as these liabilities or costs could, in some circumstances, far exceed the financial capacities of Nauru (as well as those of many other developing States). Unlike terrestrial mining, in which a State generally only risks losing that which it already has (for example, its natural environment), if a developing State can be held liable for activities in the Area, the State may potentially face losing more than it actually has. (ISBA/16/C/6, paragraph 1); 8 Ultimately, if sponsoring States are exposed to potential significant liabilities, Nauru, as well as other developing States, may be precluded from effectively participating in activities in the Area, which is one of the purposes and principles of Part XI of the Convention, in particular as provided for in article 148; article 150, subparagraph (c); and article 152, paragraph 2. As a result, Nauru considers it crucial that guidance be provided on the interpretation of the relevant sections of Part XI pertaining to responsibility and liability, so that developing States can assess whether it is within their capabilities to effectively mitigate such risks and in turn make an informed decision on whether or not to participate in activities in the Area. (ISBA/16/C/6, paragraph 5);

- Nauru’s proposal was included in the agenda for the sixteenth session of the Council of the Authority, during which intensive discussions on this agenda item were held at the 155th, 160th and 161st meetings;

- The Council decided not to adopt the proposal as formulated by Nauru. In view of the wishes of many participants in the debate, it decided to request an advisory opinion on three more abstract but concise questions;

- These questions were formulated in decision ISBA/16/C/13, adopted by the Council at its 161st meeting on 6 May 2010. As indicated by the Authority in its written statement and at the hearing, the decision adopted by the Council on 6 May 2010 was taken “without a vote” and “without objection” (written statement of the Authority, paragraph 2.4; ITLOS/PV.2010/1/Rev.1, p. 10, lines 16-21).

III. Chronology of the procedure

5. Pursuant to article 133, paragraph 1, of the Rules of the Tribunal (hereinafter “the Rules”), the Registrar, by Note Verbale dated 17 May 2010, notified all States Parties to the United Nations Convention on the Law of the Sea (hereinafter “States Parties”) of the request for an advisory opinion.

6. By letter dated 18 May 2010, pursuant to article 4 of the Agreement on Cooperation and Relationship between the United Nations and the International 9 Tribunal for the Law of the Sea of 18 December 1997, the Registrar notified the Secretary-General of the United Nations of the request for an advisory opinion.

7. By Order dated 18 May 2010, pursuant to article 133, paragraph 2, of the Rules, the President decided that the Authority and the organizations invited as intergovernmental organizations to participate as observers in the Assembly of the Authority (hereinafter “the Assembly”) were considered likely to be able to furnish information on the questions submitted to the Chamber for an advisory opinion.

Accordingly, the President invited the States Parties, the Authority and the aforementioned intergovernmental organizations to present written statements on those questions. By the same Order, in accordance with article 133, paragraph 3, of the Rules, the President fixed 9 August 2010 as the time-limit within which written statements on those questions might be submitted to the Chamber. In the Order, in accordance with article 133, paragraph 4, of the Rules, the President further decided that oral proceedings would be held and fixed 14 September 2010 as the date for the opening of the hearing. States Parties, the Authority and the aforementioned intergovernmental organizations were invited to participate in the hearing and to indicate to the Registrar, not later than 3 September 2010, their intention to make oral statements.

8. Article 191 of the Convention requires the Chamber to give advisory opinions “as a matter of urgency”. In the present case, the time-limits for the submission of written statements and the date of the opening of the hearing, as set out in the Orders of the President, were fixed with a view to meeting this requirement.

9. By Order dated 28 July 2010, in light of a request submitted to the Chamber, the President extended the time-limit for the submission of written statements to 19 August 2010.

10. By letter dated 30 July 2010, pursuant to article 131 of the Rules, the Legal Counsel transmitted to the Chamber a dossier containing documents in support of the Request. The dossier was posted on the Tribunal’s website. 10

11. Within the time-limit fixed by the President, written statements were submitted by the following 12 States Parties, which are listed in the order in which their statements were received: the United Kingdom, Nauru, the Republic of Korea, Romania, the Netherlands, the Russian Federation, Mexico, Germany, China, Australia, Chile, and the Philippines. Within the same time-limit, written statements were also submitted by the Authority and two organizations, namely, the Interoceanmetal Joint Organization and the International Union for Conservation of Nature and Natural Resources.

12. Upon receipt of those statements, in accordance with article 133, paragraph 3, of the Rules, the Registrar transmitted copies thereof to the States Parties, the Authority and the organizations that had submitted written statements. On 19 August 2010, pursuant to article 134 of the Rules, the written statements submitted to the Chamber were made accessible to the public on the Tribunal’s website.

13. On 17 August 2010, the Registry received a statement submitted jointly by Stichting Greenpeace Council (Greenpeace International) and the World Wide Fund for Nature. The statement was accompanied by a petition from these two nongovernmental organizations in which they requested permission to participate in the advisory proceedings as amici curiae. At the request of the President, by separate letters dated 27 August 2010, the Registrar informed those organizations that their statement would not be included in the case file since it had not been submitted under article 133 of the Rules; it would, however, be transmitted to the States Parties, the Authority and the intergovernmental organizations that had submitted written statements, which would be informed that the document was not part of the case file and that it would be posted on a separate section of the Tribunal’s website. By communication dated 27 August 2010, the States Parties, the Authority and the intergovernmental organizations in question were so informed.

14. On 10 September 2010, the Chamber, having considered a petition from Stichting Greenpeace Council (Greenpeace International) and the World Wide Fund for Nature requesting permission to participate in the advisory proceedings as amici 11 curiae, decided not to grant that request. The decision was communicated to the two organizations on the same day by a letter from the President.

15. By e-mail dated 26 August 2010, the Legal Counsel transmitted to the Registrar, at the latter’s request, a note containing a summary of potential environmental impacts of seabed mining. This document was posted on the Tribunal’s website.

16. By letter dated 1 September 2010, after the expiry of the time-limit for the

submission of written statements, the United Nations Environment Programme

submitted a written statement that was received by the Registry on 2 September

2010. The President nevertheless decided that the statement should be included in

the case file. Accordingly, on 3 September 2010, the Registrar transmitted an

electronic copy of that document to the States Parties, the Authority and the

intergovernmental organizations that had submitted written statements. The

document was also posted on the Tribunal’s website.

17. Within the time-limit fixed in the Order of the President of 18 May 2010, nine States Parties expressed their intention to participate in the oral proceedings, namely, Argentina, Chile, Fiji, Germany, Mexico, Nauru, the Netherlands, the Russian Federation and the United Kingdom. Within the same time-limit, the Authority and two organizations, namely, the Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Union for Conservation of Nature and Natural Resources also expressed their intention to participate in the oral proceedings.

18. Prior to the opening of the oral proceedings, the Chamber held initial deliberations on 10, 13 and 14 September 2010.

19. At four public sittings held on 14, 15 and 16 September 2010, the Chamber heard oral statements, in the following order, by: 12

For the International Seabed Authority:

Mr Nii Odunton, Secretary-General,

Mr Michael Lodge, Legal Counsel,

Mr Kening Zhang, Senior Legal Officer, and

Ms Gwenaëlle Le Gurun, Legal Officer;

For the Federal Republic of Germany: Ms Susanne Wasum-Rainer, Legal Adviser, Director-General for Legal Affairs, Federal Foreign Office;

For the Kingdom of the Netherlands: Ms Liesbeth Lijnzaad, Legal Adviser, Ministry of Foreign Affairs;

For the Argentine Republic: Ms Susana Ruiz Cerutti, Ambassador, Legal Adviser, Ministry of Foreign Affairs International Trade and Worship;

For the Republic of Chile: Mr Roberto Plaza, Minister Counsellor, Consul General of Chile in Hamburg;

For the Republic of Fiji: Mr Pio Bosco Tikoisuva, High Commissioner of

Fiji

to the United Kingdom of Great Britain and Northern Ireland;

For the United Mexican States: Mr Joel Hernández G., Ambassador, Legal Adviser, Ministry of Foreign Affairs;

For the Republic of Nauru: Mr Peter Jacob, First Secretary, Nauru High Commission in Suva (

Fiji

), and Mr Robert Haydon, Advisor;

For the United Kingdom of Great Britain and Northern Ireland: Sir Michael Wood KCMG, Member of the English Bar and Member of the International Law Commission;

For the Russian Federation: Mr Vasiliy Titushkin, Deputy Director, Legal Department, Ministry of Foreign Affairs;

For the Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO): Mr Ehrlich Desa, Deputy Executive Secretary; 13

For the International Union for Conservation of Nature and Natural Resources: Ms Cymie R. Payne, Member of the Bar of the State of California, the Commonwealth of Massachusetts, and the Supreme Court of the United States of America, Counsel, Mr Robert A. Makgill, Barrister and Solicitor of the High Court of New Zealand, Counsel, and Mr Donald K. Anton, Barrister and Solicitor of the Supreme Court of Victoria, the Supreme Court of New South Wales and the High Court of Australia; Member of the Bar of the State of Missouri, the State of Idaho, and the Supreme Court of the United States; and Senior Lecturer in International Law at the Australian National University College of Law, Counsel.

20. The hearing was broadcast over the internet as a webcast.

21. By letter dated 13 September 2010, pursuant to article 76, paragraph 1, of the Rules, the Registrar transmitted to the Authority, prior to the hearing, a list of the following points that the Chamber wished the Authority to address:

1. With reference to article 153, paragraph 4, of the Convention, how has the Authority been exercising control over activities in the Area for the purpose of securing compliance with the relevant provisions of the Convention and what experience has the Authority accumulated over the years in this regard?

2. In what form has assistance been provided so far to the Authority by sponsoring States, including the case of various States sponsoring one contractor, for the purpose of securing compliance with provisions referred to in article 153, paragraph 4, and what experience has the Authority accumulated over the years in this regard?

3. What are the activities in the Area, including activities associated with exploration and exploitation, which so far have been controlled by the Authority?

4. Would it be possible for the Authority to provide the certificates of sponsorship regarding the contracts it has concluded with contractors, as well as copies of the sponsorship agreements if available?

22. Responses to points 1 to 3 of this list were provided in the oral statements made on behalf of the Authority during the sitting held on 14 September 2010. By 14 letter dated 17 September 2010, the Legal Counsel communicated information on point 4 of the list. This letter was posted on the Tribunal’s website.

23. At the request of the President, by letter dated 13 October 2010, the Registrar asked the Legal Counsel to provide the Chamber with information on the various phases of the process of exploration and exploitation of resources in the Area (collection, transportation to the surface, initial treatment, etc.), as well as information

on the technology available. The Legal Counsel provided this information by letter

dated 15 November 2010. The information was posted on the Tribunal’s website.

24. As indicated by the President at the opening of the oral proceedings, one

Member of the Chamber, Judge Chandrasekhara Rao, was prevented by illness

from sitting on the bench during the hearing. However, with the approval of the

Chamber, he participated in the subsequent deliberations on the advisory opinion.

VIII. Interpretation

In general

57. Among the rules of international law that the Chamber is bound to apply, those concerning the interpretation of treaties play a particularly important role. The applicable rules are set out in Part III, Section 3 entitled “Interpretation of Treaties” and comprising articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties (hereinafter “the Vienna Convention”). These rules are to be considered as reflecting customary international law. Although the Tribunal has never stated this view explicitly, it has done so implicitly by borrowing the terminology and approach of the Vienna Convention’s articles on interpretation (see the Tribunal’s Judgment of 23 December 2002 in the “Volga” Case (ITLOS Reports 2002, p. 10, at paragraph 77). The ICJ and other international courts and tribunals have stated this view on a number of occasions (see, for example, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 6, at paragraph 41; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, ICJ Reports 1996, p. 803, at paragraph 23; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 12, at paragraph 83; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, paragraphs 64-65; Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, Arbitral Tribunal, Award of 14 February 1985, UNRIAA, 21 vol. XIX, pp. 149-196, 25 ILM (1986), p. 252, at paragraph 41; United States Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body (WT/DS2/AB/R), adopted by the Dispute Settlement Body of the World Trade Organization on 20 May 1996, DSR 1996:I, p. 3, at pp. 15-16).

58. In light of the foregoing, the rules of the Vienna Convention on the interpretation of treaties apply to the interpretation of provisions of the Convention and the 1994 Agreement.

59. The Chamber is also required to interpret instruments that are not treaties and, in particular, the Regulations adopted by the Authority, namely, the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area of 2000 (hereinafter “the Nodules Regulations”), and the Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area of 2010 (hereinafter “the Sulphides Regulations”).

60. The fact that these instruments are binding texts negotiated by States and adopted through a procedure similar to that used in multilateral conferences permits the Chamber to consider that the interpretation rules set out in the Vienna Convention may, by analogy, provide guidance as to their interpretation. In the specific case before the Chamber, the analogy is strengthened because of the close connection between these texts and the Convention. The ICJ seems to have adopted a similar approach when it states in its advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, that the rules on interpretation of the Vienna Convention “may provide guidance” as regards the interpretation of resolutions of the United Nations Security Council (ICJ, 22 July 2010, paragraph 94).

Multilingual international instruments

61. In interpreting the provisions of the Convention, it should be borne in mind

that it is a multilingual treaty: the Arabic, Chinese, English, French, Russian and

Spanish texts are equally authentic (article 320 of the Convention). It should also be

noted that these six languages are also official languages of the Council and that the 22

Regulations of the Authority, as well as the decision of the Council containing the

questions submitted to the Chamber, were adopted in those languages with the

original in English.

62. The relevant provision to be considered in the present context is article 33, paragraph 4, of the Vienna Convention. According to this provision, where no particular text prevails according to the treaty and where “a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”.

63. An examination of the relevant provisions of the Convention reveals that the terminology used in the different language versions corresponds to the objective stated by the Drafting Committee of the Third United Nations Conference on the Law of the Sea, namely, “to improve linguistic concordance, to the extent possible, and to achieve juridical concordance in all cases” (Report of the Chairman of the Drafting Committee, 2 March 1981, A/CONF.62/L.67/Rev.1, in Third United Nations Conference on the Law of the Sea, Official Records, vol. XV, p.145, at paragraph 8). There are certain inconsistencies in the terminology used within the same language version and as between language versions. In the view of the Chamber, there is, however, no difference of meaning between the authentic texts of the relevant provisions of the Convention. A comparison between the terms used in these provisions of the Convention is nonetheless useful in clarifying their meaning.

Meaning of key terms

64. The meaning of the term “responsibility” as used in the English text of article

139, paragraphs 1 and 2; article 235, paragraph 1; and Annex III, article 4,

paragraph 4, of the Convention (“States Parties shall have the responsibility to

ensure”; “States are responsible for the fulfilment”; “States shall ... have the

responsibility to ensure”) does not correspond to the meaning of the same term in

article 304 of the Convention (“responsibility and liability for damage”) and Annex III,

article 22, of the Convention (“responsibility or liability for any damage”). 23

65. In article 139, article 235, paragraph 1, and Annex III, article 4, paragraph 4,

of the Convention, the term “responsibility” means “obligation”. This emerges not

only from the context of the aforementioned articles, but also from a comparison with

other linguistic versions. The Spanish text uses the expression “estarán obligados”

and the French text uses the more indirect but equally explicit expression “il incombe

de”. Similarly, the Arabic text uses the expression “ملزمة تكون”. The Chinese text uses

the term “义务” and the Russian text the term “обязательство”.

66. In the view of the Chamber, in the provisions cited in the previous paragraph, the term “responsibility” refers to the primary obligation whereas the term “liability” refers to the secondary obligation, namely, the consequences of a breach of the primary obligation. Notwithstanding their apparent similarity to the English term “responsibility”, the French term “responsabilité” and the Spanish term “responsabilidad”, respectively, indicate also the consequences of the breach of the primary obligation. The same applies to the Arabic term “مسؤولية”, the Chinese term “责任” and the Russian term “ответственность”. The fact that the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter “the ILC Articles on State Responsibility”), adopted in 2001, give the term “responsibility” a meaning corresponding to “responsabilité”, “responsabilidad”, “مسؤولية”, “责任” and “ответственность” may create confusion, which can be avoided by comparing the English text of article 139, article 235, and Annex III, article 4, paragraph 4, of the Convention with the other language versions.

67. It should be further observed that in article 235, paragraph 3, and Annex III, article 22, of the Convention, the English version of which uses the terms “responsibility and liability” together, the term “responsibility” has the same meaning as in the ILC Articles on State Responsibility. This is clear from a comparison of the English version with the French and Spanish versions, which use only the term “responsabilité” and “responsabilidad”. Similarly, the Arabic, Chinese and Russian versions use the term “مسؤولية”, “责任” and “ответственность”, respectively.

68. This analysis of the terms used in the provisions of the Convention provides a basis for determining their meaning as used in the three Questions. 24

69. Thus, in Question 1, the expression “legal responsibilities and obligations” refers to primary obligations, that is, to what sponsoring States are obliged to do under the Convention.

70. In Question 2, the English term “liability” refers to the consequences of a breach of the sponsoring State’s obligations.

71. In Question 3, as in Question 1, “responsibility” means “obligation”. The terms “responsabilité” and “responsabilidad”, used, respectively, in the French and Spanish versions of Question 3, are translations of the English term “responsibility” and were apparently introduced for the sake of uniformity. However, in light of the English version and of the terminology used in the French and Spanish versions of article 139 of the Convention, the meaning intended is that of “obligation”. Similarly, the Arabic, Chinese and Russian versions of Question 3 use the term “مسؤولية”, “义务” and “обязательство”, respectively.

Question 1

72. The first question submitted to the Chamber is as follows:

What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982?

73. This question concerns the obligations of sponsoring States. Before examining the provisions of the Convention, the 1994 Agreement as well as the Nodules Regulations and the Sulphides Regulations (hereinafter “the Convention 25 and related instruments”), the Chamber must determine the meaning of two of the terms used in the Question, namely: “sponsorship” and “activities in the Area”.

I. Sponsorship

74. The notion of “sponsorship” is a key element in the system for the exploration and exploitation of the resources of the Area set out in the Convention. Article 153, paragraph 2, of the Convention describes the “parallel system” of exploration and exploitation activities indicating that such activities shall be carried out by the Enterprise, and, in association with the Authority, by States Parties or state enterprises or natural or juridical persons. It further states that, in order to be eligible to carry out such activities, natural and juridical persons must satisfy two requirements. First, they must be either nationals of a State Party or effectively controlled by it or its nationals. Second, they must be “sponsored by such States”. Article 153, paragraph 2(b), of the Convention makes the requirement of sponsorship applicable also to state enterprises.

75. The purpose of requiring the sponsorship of applicants for contracts for the exploration and exploitation of the resources of the Area is to achieve the result that the obligations set out in the Convention, a treaty under international law which binds only States Parties thereto, are complied with by entities that are subjects of domestic legal systems. This result is obtained through the provisions of the Authority’s Regulations that apply to such entities and through the implementation by the sponsoring States of their obligations under the Convention and related instruments.

76. The role of the sponsoring State, as set out in the Convention, contributes to the realization of the common interest of all States in the proper application of the principle of the common heritage of mankind which requires faithful compliance with the obligations set out in Part XI. The common-interest role of the sponsoring State is further confirmed by its obligation, set out in article 153, paragraph 4, of the Convention, to “assist” the Authority, which, as stated in article 137, paragraph 2, of the Convention, acts on behalf of mankind. 26

77. The connection between States Parties and domestic law entities required by

the Convention is twofold, namely, that of nationality and that of effective control. All

contractors and applicants for contracts must secure and maintain the sponsorship

of the State or States of which they are nationals. If another State or its nationals

exercises effective control, the sponsorship of that State is also necessary. This is

provided for in Annex III, article 4, paragraph 3, of the Convention and confirmed in

regulation 11, paragraph 2, of the Nodules Regulations and of the Sulphides

Regulations.

78. No provision of the Convention imposes an obligation on a State Party to

sponsor an entity that holds its nationality or is controlled by it or by its nationals. As

the Convention does not consider the links of nationality and effective control

sufficient to obtain the result that the contractor conforms with the Convention and

related instruments, it requires a specific act emanating from the will of the State or

States of nationality and of effective control. Such act consists in the decision to

sponsor.

79. As subjects of international law, States Parties engaged in deep seabed

mining under the Convention are directly bound by the obligations set out therein.

Consequently, there is no reason to apply to them the requirement of sponsorship.

Article 153, paragraph 2(b), of the Convention as well as the identical regulation 11,

paragraph 1, of the Nodules Regulations and the Sulphides Regulations confirm that

the requirement of sponsorship does not apply to States. This point is further

supported by Annex III, article 4, paragraph 5, of the Convention which reads as

follows: “The procedures for assessing the qualifications of States Parties which are

applicants shall take into account their character as States”.

80. The practice of the Authority, however, indicates that at least two contractor

States, when applying for a contract, considered it necessary to submit to the

Authority documents of sponsorship.

81. It may also be noted that all but one of the existing contractors, as “registered

pioneer investors” under the provisional system set out in Resolution II of the Third 27

United Nations Conference on the Law of the Sea, obtained their contracts for

exploration through the simplified procedure set out in section 1, paragraph 6(a)(ii) of

the Annex to the 1994 Agreement. As “certifying States” under paragraph 1(c) of

Resolution II, they stand in the same relationship to a pioneer investor as would a

sponsoring State stand to a contractor pursuant to Annex III, article 4, of the

Convention.

II. “Activities in the Area”

82. Question 1 concerns the responsibilities and obligations of sponsoring States in respect of “activities in the Area”. This expression is defined in article 1, paragraph 1 (3), of the Convention as “all activities of exploration for, and exploitation of, the resources of the Area”. According to article 133 (a) of the Convention, for the purposes of Part XI, the term “resources” means “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”. The two definitions, however, do not indicate what is meant by “exploration” and “exploitation”. It is important to note that according to article 133 (b), “resources, when recovered from the Area, are referred to as ‘minerals’”.

83. Some indication of the meaning of the term “activities in the Area” may be found in Annex IV, article 1, paragraph 1, of the Convention. It reads as follows:

The Enterprise is the organ of the Authority which shall carry out activities in the Area directly, pursuant to article 153, paragraph 2(a), as well as the transporting, processing and marketing of minerals recovered from the Area.

84. This provision distinguishes “activities in the Area” which the Enterprise carries out directly pursuant to article 153, paragraph 2(a), of the Convention, from other activities with which the Enterprise is entrusted, namely, the transporting, processing and marketing of minerals recovered from the Area. Consequently, the latter activities are not included in the notion of “activities in the Area” referred to in Annex IV, article 1, paragraph 1, of the Convention. 28

85. Article 145 of the Convention, which prescribes the taking of “[n]ecessary measures ... with respect to activities in the Area to ensure effective protection for the marine environment from harmful effects which may arise from such activities”, indicates the activities in respect of which the Authority should adopt rules, regulations and procedures. These activities include: “drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities”. In the view of the Chamber, these activities are included in the notion of “activities in the Area”.

86. Annex III, article 17, paragraph 2(f), of the Convention, which sets out the criteria for the rules, regulations and procedures concerning protection of the marine environment to be drawn up by the Authority gives further useful indications of what is included in the notion of “activities in the Area”. The provision reads as follows:

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.

87. The provisions considered in the preceding paragraphs confirm that processing and transporting as mentioned in Annex IV, article 1, paragraph 1, of the Convention are excluded from the notion of “activities in the Area”. They set out lists of activities whose harmful effects are indicated as directly resulting from such activities. These lists may be seen as an indication of what the Convention considers as included in the notion of “activities in the Area”. These activities include: drilling, dredging, coring, and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such activities.

88. Under Annex III, article 17, paragraph 2(f), of the Convention, “shipboard processing immediately above a mine site of minerals derived from that mine site” is to be considered as included in “activities in the Area”. As the aforementioned list of activities refers without distinction to the harmful effects resulting directly from 29 “activities in the Area” and from “shipboard processing”, the two are to be seen as part of the same kind of activities.

89. The Nodules Regulations and the Sulphides Regulations define “exploration” and “exploitation” in the context of polymetallic nodules and polymetallic sulphides, respectively. According to regulation 1, paragraph 3(b) and (a), of the Nodules Regulations:

“Exploration” means searching for deposits of polymetallic nodules in the

Area with exclusive rights, the analysis of such deposits, the testing of

collecting systems and equipment, processing facilities and transportation

systems, and the carrying out of studies of the environmental, technical,

economic, commercial and other appropriate factors that must be taken

into account in exploitation.

“Exploitation” means the recovery for commercial purposes of

polymetallic nodules in the Area and the extraction of minerals therefrom,

including the construction and operation of mining, processing and

transportation systems for the production and marketing of metals.

90. The same definitions are set out in regulation 1, paragraph 3(b) and (a), of the

Sulphides Regulations.

91. These provisions of the Nodules Regulations and the Sulphides Regulations

include in the notion of exploration the testing of processing facilities and

transportation systems and in that of exploitation the construction and operation of

processing and transportation systems.

92. The scope of “exploration” and “exploitation” as defined in the Regulations seems broader than the “activities in the Area” envisaged in Annex IV, article 1, paragraph 1, and in article 145 and Annex III, article 17, paragraph 2 (f), of the Convention. Processing and transportation are included in the notion of exploration and exploitation of the Regulations, but not in that of “activities in the Area” in the provision of Annex IV of the Convention, which has just been cited.

93. The difference in scope of “activities in the Area” in the provisions of the Convention and in the Nodules Regulations and the Sulphides Regulations makes it necessary to examine the relevant provisions within the broader framework of the 30 Convention. It would seem preferable to consider that the meaning of “activities in the Area” in articles 139 and Annex III, article 4, paragraph 4, of the Convention is consistent with that of article 145 and Annex III, article 17, paragraph 2(f), and Annex IV, article 1, paragraph 1, rather than with that of “exploration” and “exploitation” in the two Regulations. The aforementioned articles of the Convention and of Annexes III and IV, all belong to the same legal instrument. They were negotiated by the same parties and adopted at the same time. It therefore seems reasonable to assume that the meaning of an expression (or the exclusion of certain activities from the scope of that expression) in one provision also applies to the others. The Regulations are instruments subordinate to the Convention, which, if not in conformity with it, should be interpreted so as to ensure consistency with its provisions. They may, nevertheless be used to clarify and supplement certain aspects of the relevant provisions of the Convention.

94. In light of the above, the expression “activities in the Area”, in the context of both exploration and exploitation, includes, first of all, the recovery of minerals from the seabed and their lifting to the water surface.

95. Activities directly connected with those mentioned in the previous paragraph such as the evacuation of water from the minerals and the preliminary separation of materials of no commercial interest, including their disposal at sea, are deemed to be covered by the expression “activities in the Area”. “Processing”, namely, the process through which metals are extracted from the minerals and which is normally conducted at a plant situated on land, is excluded from the expression “activities in the Area”. This is confirmed by the wording of Annex IV, article 1, paragraph 1, of the Convention as well as by information provided by the Authority at the request of the Chamber.

96. Transportation to points on land from the part of the high seas superjacent to the part of the Area in which the contractor operates cannot be included in the notion of “activities in the Area”, as it would be incompatible with the exclusion of transportation from “activities in the Area” in Annex IV, article 1, paragraph 1, of the Convention. However, transportation within that part of the high seas, when directly connected with extraction and lifting, should be included in activities in the Area. In 31 the case of polymetallic nodules, this applies, for instance, to transportation between the ship or installation where the lifting process ends and another ship or installation where the evacuation of water and the preliminary separation and disposal of material to be discarded take place. The inclusion of transportation to points on land could create an unnecessary conflict with provisions of the Convention such as those that concern navigation on the high seas.

97. One consequence of the exclusion of water evacuation and disposal of

material from “activities in the Area” would be that the activities conducted by the

contractor which are among the most hazardous to the environment would be

excluded from those to which the responsibilities of the sponsoring State apply. This

would be contrary to the general obligation of States Parties, under article 192 of the

Convention, “to protect and preserve the marine environment”.

III. Prospecting

98. “Prospecting”, although mentioned in Annex III, article 2, of the Convention

and in the Nodules Regulations and the Sulphides Regulations, is not included in the

Convention’s definition of “activities in the Area” because the Convention and the two

Regulations distinguish it from “exploration” and from “exploitation”. Moreover, under

the Convention and related instruments, prospecting does not require sponsorship.

In conformity with the questions submitted to it, which relate to “activities in the Area”

and to sponsoring States, the Chamber will not address prospecting activities.

However, considering that prospecting is often treated as the preliminary phase of

exploration in mining practice and legislation, the Chamber considers it appropriate

to observe that some aspects of the present Advisory Opinion may also apply to

prospecting. 32

IV. Responsibilities and obligations

Key provisions

99. The key provisions concerning the obligations of the sponsoring States are: article 139, paragraph 1; article 153, paragraph 4 (especially the last sentence); and Annex III, article 4, paragraph 4, of the Convention (especially the first sentence).

100. These provisions read:

Article 139, paragraph 1

States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part. The same responsibility applies to international organizations for activities in the Area carried out by such organizations.

Article 153, paragraph 4

The Authority shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of this Part and the Annexes relating thereto, and the rules, regulations and procedures of the Authority, and the plans of work approved in accordance with paragraph 3. States Parties shall assist the Authority by taking all measures necessary to ensure such compliance in accordance with article 139.

Annex III, article 4, paragraph 4

101. A perusal of these three provisions reveals that article 139 plays a central role, as it is referred to both in article 153, paragraph 4, and in Annex III, article 4, paragraph 4, of the Convention. While Annex III, article 4, paragraph 4, of the Convention refers to sponsoring States, articles 139, paragraph 1, and 153, paragraph 4, of the Convention do not do so explicitly. However, since the entities which conduct activities in the Area mentioned in article 139, paragraph 1, of the 33 Convention can do so only when there is a State Party sponsoring them, all three provisions must be read as referring to sponsoring States.

102. It is important to note that the last sentence of article 153, paragraph 4, of the

Convention places the obligation of the sponsoring State in relationship with the

obligations of the Authority by stating that the former has the obligation to “assist” the

latter. As will be seen in the reply to Question 2, the subordinate role of the

sponsoring State is reflected in Annex III, article 22, of the Convention, in which the

liability of the contractor and of the Authority is mentioned while that of the

sponsoring State is not (see paragraph 199).

Obligations of the contractor whose compliance the sponsoring State must ensure

103. The three provisions mentioned in paragraph 100 specify that the obligation

(responsibility) of the sponsoring State is “to ensure” that the “activities in the Area”

conducted by the sponsored contractor are “in conformity” or in “compliance” with the

rules to which they refer.

104. These rules are referred to as “this Part” (Part XI) in article 139 of the

Convention, as “the relevant provisions of this Part and the Annexes relating thereto,

and the rules, regulations and procedures of the Authority, and the plans of work

approved in accordance with paragraph 3” in article 153, paragraph 4, of the

Convention, and as “the terms of its contract and its obligations under this

Convention” in Annex III, article 4, paragraph 4, of the Convention.

105. The difference between the references contained in articles 139 and 153 of

the Convention, cited in the previous paragraphs, is only one of drafting. The

reference to Part XI in article 139 of the Convention includes Annexes III and IV. In

the view of the Chamber, this reference also includes the rules, regulations and

procedures of the Authority and the contracts (or plans of work) for exploration and

exploitation, which are based on Part XI and the relevant Annexes thereto.

106. The reference to the contractor’s “obligations under this Convention” in

Annex III, article 4, paragraph 4, would seem to be broader than the references in 34

articles 139 and 153 of the Convention. This difference would be relevant if there

were obligations of sponsored contractors set out in parts of the Convention other

than Part XI and the annexes thereto, the rules, regulations and procedures of the

Authority, or the relevant contracts. As this is not the case, it would appear that the

scope of the obligations of sponsored contractors, although indicated differently in

the three key provisions of the Convention referred to in paragraph 100, is in fact

substantially the same.

“Responsibility to ensure”

107. The central issue in relation to Question 1 concerns the meaning of the expression “responsibility to ensure” in article 139, paragraph 1, and Annex III, article 4, paragraph 4, of the Convention.

108. “Responsibility to ensure” points to an obligation of the sponsoring State under international law. It establishes a mechanism through which the rules of the Convention concerning activities in the Area, although being treaty law and thus binding only on the subjects of international law that have accepted them, become effective for sponsored contractors which find their legal basis in domestic law. This mechanism consists in the creation of obligations which States Parties must fulfill by exercising their power over entities of their nationality and under their control.

109. As will be seen in greater detail in the reply to Question 2, a violation of this obligation entails “liability”. However, not every violation of an obligation by a sponsored contractor automatically gives rise to the liability of the sponsoring State. Such liability is limited to the State’s failure to meet its obligation to “ensure” compliance by the sponsored contractor.

110. The sponsoring State’s obligation “to ensure” is not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with the aforementioned obligations. Rather, it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. To utilize the terminology current in international law, this obligation may be characterized as an obligation “of conduct” and not “of result”, and as an obligation of “due diligence”. 35

111. The notions of obligations “of due diligence” and obligations “of conduct” are connected. This emerges clearly from the Judgment of the ICJ in the Pulp Mills on the River Uruguay: “An obligation to adopt regulatory or administrative measures … and to enforce them is an obligation of conduct. Both parties are therefore called upon, under article 36 [of the Statute of the River Uruguay], to exercise due diligence in acting through the [Uruguay River] Commission for the necessary measures to preserve the ecological balance of the river” (paragraph 187 of the Judgment).

112. The expression “to ensure” is often used in international legal instruments to refer to obligations in respect of which, while it is not considered reasonable to make a State liable for each and every violation committed by persons under its jurisdiction, it is equally not considered satisfactory to rely on mere application of the principle that the conduct of private persons or entities is not attributable to the State under international law (see ILC Articles on State Responsibility, Commentary to article 8, paragraph 1).

114. The nature of the obligation to “ensure” in article 139 of the Convention and in the other provisions mentioned in paragraph 100 appears even more clearly in light of the French and Spanish texts of article 139 of the Convention. They use respectively the expression “il incombe aux Etats Parties de veiller à …” and “los Estados Partes estarán obligados a velar”. “Veiller à” and “velar” point out, even more clearly than “ensure”, the idea of exercising diligence. The Arabic text uses the expression “بضمان ملزمة اأطراف الدول تكون”, the Chinese text uses the expression “缔约国应有责任确保” and the Russian text uses the expression “Государства-участники обязуются обеспечивать”, which point in the same direction. 36

115. In its Judgment in the Pulp Mills on the River Uruguay case, the ICJ illustrates the meaning of a specific treaty obligation that it had qualified as “an obligation to act with due diligence” as follows:

It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators … (Paragraph 197)

116. Similar indications are given by the International Law Commission in its Commentary to article 3 of its Articles on Prevention of Transboundary Harm from Hazardous Activities, adopted in 2001. According to article 3, the State of origin of the activities involving a risk of causing transboundary harm “shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof”. The Commentary states:

The obligation of the State of origin to take preventive or minimization measures is one of due diligence. It is the conduct of the State of origin that will determine whether the State has complied with its obligation under the present articles. The duty of due diligence involved, however, is not intended to guarantee that significant harm be totally prevented, if it is not possible to do so. In that eventuality, the State of origin is required … to exert its best possible efforts to minimize the risk. In this sense, it does not guarantee that the harm would not occur. (Paragraph 7)

The content of the “due diligence” obligation to ensure

117. The content of “due diligence” obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that “due diligence” is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity. As regards activities in the Area, it seems reasonable to state that prospecting is, generally speaking, less risky than exploration activities which, in turn, entail less risk than exploitation. Moreover, activities in the Area concerning different kinds of minerals, for example, polymetallic nodules on the one hand and polymetallic sulphides or cobalt rich ferromanganese 37 crusts on the other, may require different standards of diligence. The standard of due diligence has to be more severe for the riskier activities.

118. Article 153, paragraph 4, last sentence, of the Convention states that the obligation of the sponsoring State in accordance with article 139 of the Convention entails “taking all measures necessary to ensure” compliance by the sponsored contractor. Annex III, article 4, paragraph 4, of the Convention makes it clear that sponsoring States’ “responsibility to ensure” applies “within their legal systems”. With these indications the Convention provides some elements concerning the content of the “due diligence” obligation to ensure. Necessary measures are required and these must be adopted within the legal system of the sponsoring State.

119. Further light on the expression “measures necessary to ensure” is shed by the

Convention if one considers article 139, paragraph 2, last sentence, and Annex III,

article 4, paragraph 4, last sentence, of the Convention. The main purpose of these

provisions is to exempt sponsoring States that have taken certain measures from

liability for damage. The description of the measures to be taken by that State may

also be used to clarify its “due diligence” obligation. This description remains in

general terms in article 139, paragraph 2, of the Convention which mentions “all

necessary and appropriate measures to secure effective compliance under article

153, paragraph 4, and Annex III, article 4, paragraph 4”. The latter provision is more

specific as it requires the sponsoring State to adopt “laws and regulations” and to

take “administrative measures which are, within the framework of its legal system,

reasonably appropriate for securing compliance by persons under its jurisdiction”.

120. More specific indications concerning the content of these measures, including

aspects relating to their enforcement, with respect to the contents of these measures

will be provided in the reply to Question 3. As regards Question 1, it has been

established that the “due diligence” obligation “to ensure” requires the sponsoring

State to take measures within its legal system and that the measures must be

“reasonably appropriate”. 38

V. Direct obligations of sponsoring States

122. Among the most important of these direct obligations incumbent on sponsoring States are: the obligation to assist the Authority in the exercise of control over activities in the Area; the obligation to apply a precautionary approach; the obligation to apply best environmental practices; the obligation to take measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment; the obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution; and the obligation to conduct environmental impact assessments. These obligations will be examined in paragraphs 124-150.

123. It must nevertheless be stated, at the outset, that compliance with these obligations can also be seen as a relevant factor in meeting the due diligence “obligation to ensure” and that the said obligations are in most cases couched as obligations to ensure compliance with a specific rule.

The obligation to assist the Authority

124. Pursuant to the last sentence of article 153, paragraph 4, of the Convention, sponsoring States have the obligation to assist the Authority in its task of controlling activities in the Area for the purpose of ensuring compliance with the relevant provisions of Part XI of the Convention and related instruments. This obligation is to be met “by taking all measures necessary to ensure such compliance in accordance with article 139”. The obligation of the sponsoring States is a direct one, but it is to be met through compliance with the “due diligence obligation” set out in article 139 of the Convention. 39

Precautionary approach

127. The provisions of the aforementioned Regulations transform this non-binding statement of the precautionary approach in the Rio Declaration into a binding obligation. The implementation of the precautionary approach as defined in these Regulations is one of the obligations of sponsoring States.

132. The link between an obligation of due diligence and the precautionary approach is implicit in the Tribunal’s Order of 27 August 1999 in the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan). This emerges from the declaration of the Tribunal that the parties “should in the circumstances act with prudence and caution to ensure that conservation measures are taken …” (ITLOS Reports 1999, p. 274, at paragraph 77), and is confirmed by the further statements that “there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna” (paragraph 79) and that “although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency” (paragraph 80).

133. It should be further noted that the Sulphides Regulations, Annex 4, section 5.1, in setting out a “standard clause” for exploration contracts, provides that: 41 The 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 as far as reasonably possible applying a precautionary approach and best environmental practices. Thus, the precautionary approach (called “principle” in the French text of the standard clause just mentioned) is a contractual obligation of the sponsored contractors whose compliance the sponsoring State has the responsibility to ensure.

135. The Chamber observes that the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law. This trend is clearly reinforced by the inclusion of the precautionary approach in the Regulations and in the “standard clause” contained in Annex 4, section 5.1, of the Sulphides Regulations. So does the following statement in paragraph 164 of the ICJ Judgment in Pulp Mills on the River Uruguay that “a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute” (i.e., the environmental bilateral treaty whose interpretation was the main bone of contention between the parties). This statement may be read in light of article 31, paragraph 3(c), of the Vienna Convention, according to which the interpretation of a treaty should take into account not only the context but “any relevant rules of international law applicable in the relations between the parties”.

Best environmental practices

136. Moreover, regulation 33, paragraph 2, of the Sulphides Regulations supplements the sponsoring State’s obligation to apply the precautionary approach with an obligation to apply “best environmental practices”. The same obligation is 42 established as a contractual obligation in section 5.1 of Annex 4 (Standard Clauses for exploration contracts) of the Sulphides Regulations. There is no reference to “best environmental practices” in the Nodules Regulations; their standard contract clause (Annex 4, section 5.1), merely refers to the “best technology” available to the contractor. The adoption of higher standards in the more recent Sulphides Regulations would seem to indicate that, in light of the advancement in scientific knowledge, member States of the Authority have become convinced of the need for sponsoring States to apply “best environmental practices” in general terms so that they may be seen to have become enshrined in the sponsoring States’ obligation of due diligence.

137. In the absence of a specific reason to the contrary, it may be held that the Nodules Regulations should be interpreted in light of the development of the law, as evidenced by the subsequent adoption of the Sulphides Regulations. Guarantees in the event of an emergency order by the Authority for protection of the marine environment

138. Another obligation which is directly incumbent on the sponsoring State is set

out in regulation 32, paragraph 7, of the Nodules Regulations and in regulation 35,

paragraph 8, of the Sulphides Regulations. This obligation arises where the

contractor has not provided the Council “with a guarantee of its financial and

technical capability to comply promptly with emergency orders or to assure that the

Council can take such emergency measures”. In such a case, under regulation 32,

paragraph 7, of the Nodules Regulations:

the sponsoring State or States shall, in response to a request by the

Secretary-General and pursuant to articles 139 and 235 of the

Convention, take necessary measures to ensure that the contractor

provides such a guarantee or shall take measures to ensure that

assistance is provided to the Authority in the discharge of its

responsibilities under paragraph 6.

Regulation 35, paragraph 8, of the Sulphides Regulations contains an identical

provision. 43

Availability of recourse for compensation

139. Another direct obligation that gives substance to the sponsoring State’s

obligation to adopt laws and regulations within the framework of its legal system is

set out in article 235, paragraph 2, of the Convention. This provision reads as follows:

States shall ensure that recourse is available in accordance with their

legal systems for prompt and adequate compensation or other relief in

respect of damage caused by pollution of the marine environment by

natural or juridical persons under their jurisdiction.

140. This provision applies to the sponsoring State as the State with jurisdiction

over the persons that caused the damage. By requiring the sponsoring State to

establish procedures, and, if necessary, substantive rules governing claims for

damages before its domestic courts, this provision serves the purpose of ensuring

that the sponsored contractor meets its obligation under Annex III, article 22, of the

Convention to provide reparation for damages caused by wrongful acts committed in

the course of its activities in the Area.

VI. Environmental impact assessment

141. The obligation of the contractor to conduct an environmental impact assessment is explicitly set out in section 1, paragraph 7, of the Annex to the 1994 Agreement as follows: “An application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities …”. The sponsoring State is under a due diligence obligation to ensure compliance by the sponsored contractor with this obligation.

142. Regulation 31, paragraph 6, of the Nodules Regulations and regulation 33,

paragraph 6, of the Sulphides Regulations establish a direct obligation of the

sponsoring State concerning environmental impact assessment, which can also be

read as a relevant factor for meeting the sponsoring State’s due diligence obligation.

This obligation is linked to the direct obligation of assisting the Authority considered

at paragraph 124. The abovementioned provisions of the two Regulations read as 44

follows: “[c]ontractors, sponsoring States and other interested States or entities shall

cooperate with the Authority in the establishment and implementation of programmes

for monitoring and evaluating the impacts of deep seabed mining on the marine

environment”. This provision is designed to clarify and ensure compliance with the

sponsoring State’s obligation to cooperate with the Authority in the exercise of the

latter’s control over activities in the Area under article 153, paragraph 4, of the

Convention, and of its general obligation of due diligence under article 139 thereof.

The sponsoring State is obliged not only to cooperate with the Authority in the

establishment and implementation of impact assessments, but also to use

appropriate means to ensure that the contractor complies with its obligation to

conduct an environmental impact assessment.

143. Contractors and sponsoring States must cooperate with the Authority in the

establishment of monitoring programmes to evaluate the impact of deep seabed

mining on the marine environment, particularly through the creation of “impact

reference zones” and “preservation reference zones” (regulation 31, paragraphs 6

and 7, of the Nodules Regulations and regulation 33, paragraph 6, of the Sulphides

Regulations). A comparison between environmental conditions in the “impact

reference zone” and in the “preservation reference zone” makes it possible to assess

the impact of activities in the Area.

144. As clarified in paragraph 10 of the Recommendations for the Guidance of the

Contractors for the Assessment of the Possible Environmental Impacts Arising from

Exploration for Polymetallic Nodules in the Area, issued by the Authority’s Legal and

Technical Commission in 2002 pursuant to regulation 38 of the Nodules Regulations

(ISBA/7/LTC/1/Rev.1 of 13 February 2002), certain activities require “prior

environmental impact assessment, as well as an environmental monitoring

programme”. These activities are listed in paragraph 10 (a) to (c) of the

Recommendations.

145. It should be stressed that the obligation to conduct an environmental impact

assessment is a direct obligation under the Convention and a general obligation

under customary international law. 45

146. As regards the Convention, article 206 states the following:

When States have reasonable grounds for believing that planned

activities under their jurisdiction or control may cause substantial pollution

of or significant and harmful changes to the marine environment, they

shall, as far as practicable, assess the potential effects of such activities

on the marine environment and shall communicate reports of the results

of such assessments in the manner provided in article 205.

[Article 205 refers to an obligation to publish reports.]

147. With respect to customary international law, the ICJ, in its Judgment in Pulp

Mills on the River Uruguay, speaks of:

a practice, which in recent years has gained so much acceptance among

States that it may now be considered a requirement under general

international law to undertake an environmental impact assessment

where there is a risk that the proposed industrial activity may have a

significant adverse impact in a transboundary context, in particular, on a

shared resource. Moreover, due diligence, and the duty of vigilance and

prevention which it implies, would not be considered to have been

exercised, if a party planning works liable to affect the régime of the river

or the quality of its waters did not undertake an environmental impact

assessment on the potential effects of such works. (Paragraph 204)

148. Although aimed at the specific situation under discussion by the Court, the

language used seems broad enough to cover activities in the Area even beyond the

scope of the Regulations. The Court’s reasoning in a transboundary context may

also apply to activities with an impact on the environment in an area beyond the

limits of national jurisdiction; and the Court’s references to “shared resources” may

also apply to resources that are the common heritage of mankind. Thus, in light of

the customary rule mentioned by the ICJ, it may be considered that environmental

impact assessments should be included in the system of consultations and prior

notifications set out in article 142 of the Convention with respect to “resource

deposits in the Area which lie across limits of national jurisdiction”.

149. It must, however, be observed that, in the view of the ICJ, general

international law does not “specify the scope and content of an environmental impact

assessment” (paragraph 205 of the Judgment in Pulp Mills on the River Uruguay).

While article 206 of the Convention gives only few indications of this scope and

content, the indications in the Regulations, and especially in the Recommendations 46

referred to in paragraph 144, add precision and specificity to the obligation as it

applies in the context of activities in the Area.

150. In light of the above, the Chamber is of the view that the obligations of the

contractors and of the sponsoring States concerning environmental impact

assessments extend beyond the scope of application of specific provisions of the

Regulations.

VII. Interests and needs of developing States

151. With respect to activities in the Area, the fifth preambular paragraph of the

Convention states that the achievement of the goals set out in previous preambular

paragraphs:

will contribute to the realization of a just and equitable international

economic order which takes into account the interests and needs of

mankind as a whole and, in particular, the special interests and needs of

developing countries, whether coastal or land-locked.

152. Accordingly, it is necessary to examine whether developing sponsoring States

enjoy preferential treatment as compared with that granted to developed sponsoring

States under the Convention and related instruments.

153. Under article 140, paragraph 1, of the Convention:

Activities in the Area shall, as specifically provided for in this Part, be

carried out for the benefit of mankind as a whole, irrespective of the

geographical location of States, whether coastal or land-locked, and

taking into particular consideration the interests and needs of developing

States …

154. According to article 148 of the Convention:

The effective participation of developing States in activities in the Area

shall be promoted as specifically provided for in this Part, having due

regard to their special interests and needs, and in particular to the special

needs of the land-locked and geographically disadvantaged among them

to overcome obstacles arising from their disadvantaged location,

including remoteness from the Area and difficulty of access to and from it. 47

155. These provisions develop, with respect to activities in the Area, the statement

in the fifth preambular paragraph of the Convention.

156. For the purposes of the present Advisory Opinion, and in particular of

Question 1, it is important to determine the meaning of article 148 of the Convention.

According to this provision, the general purpose of promoting the participation of

developing States in activities in the Area taking into account their special interests

and needs is to be achieved “as specifically provided for” in Part XI (an expression

also found in article 140 of the Convention). This means that there is no general

clause for the consideration of such interests and needs beyond what is provided for

in specific provisions of Part XI of the Convention. A perusal of Part XI shows

immediately that there are several provisions designed to ensure the participation of

developing States in activities in the Area and to take into particular consideration

their interests and needs.

157. The approach of the Convention to this is particularly evident in the provisions

granting a preference to developing States that wish to engage in mining in areas of

the deep seabed reserved for the Authority (Annex III, articles 8 and 9, of the

Convention); in the obligation of States to promote international cooperation in

marine scientific research in the Area in order to ensure that programmes are

developed “for the benefit of developing States” (article 143, paragraph 3, of the

Convention); and in the obligation of the Authority and of States Parties to promote

the transfer of technology to developing States (article 144, paragraph 1, of the

Convention and section 5 of the Annex to the 1994 Agreement), and to provide

training opportunities for personnel from developing States (article 144, paragraph 2,

of the Convention and section 5 of the Annex to the 1994 Agreement); in the

permission granted to the Authority in the exercise of its powers and functions to give

special consideration to developing States, notwithstanding the rule against

discrimination (article 152 of the Convention); and in the obligation of the Council to

take “into particular consideration the interests and needs of developing States” in

recommending, and approving, respectively, rules regulations and procedures on the

equitable sharing of financial and other benefits derived from activities in the Area

(articles 160, paragraph 2(f)(i), and 162, paragraph 2(o)(i), of the Convention). 48

158. However, none of the general provisions of the Convention concerning the

responsibilities (or the liability) of the sponsoring State “specifically provides” for

according preferential treatment to sponsoring States that are developing States. As

observed above, there is no provision requiring the consideration of such interests

and needs beyond what is specifically stated in Part XI. It may therefore be

concluded that the general provisions concerning the responsibilities and liability of

the sponsoring State apply equally to all sponsoring States, whether developing or

developed.

159. Equality of treatment between developing and developed sponsoring States 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. The spread of sponsoring States “of convenience” would

jeopardize uniform application of the highest standards of protection of the marine

environment, the safe development of activities in the Area and protection of the

common heritage of mankind.

160. These observations do not exclude that rules setting out direct obligations of

the sponsoring State could provide for different treatment for developed and

developing sponsoring States.

161. As pointed out in paragraph 125, the provisions of the Nodules Regulations and the Sulphides Regulations that set out the obligation for the sponsoring State to apply a precautionary approach in ensuring effective protection of the marine environment refer to Principle 15 of the Rio Declaration. As mentioned earlier, Principle 15 provides that the precautionary approach shall be applied by States “according to their capabilities”. It follows that the requirements for complying with the obligation to apply the precautionary approach may be stricter for the developed than for the developing sponsoring States. The reference to different capabilities in the Rio Declaration does not, however, apply to the obligation to follow “best environmental practices” set out, as mentioned above, in regulation 33, paragraph 2, of the Sulphides Regulations. 49

162. Furthermore, the reference to “capabilities” is only a broad and imprecise

reference to the differences in developed and developing States. What counts in a

specific situation is the level of scientific knowledge and technical capability available

to a given State in the relevant scientific and technical fields.

163. It should be pointed out that the fifth preambular paragraph of the Convention

emphasizes that the achievement of the goals of the Convention will “contribute to

the realization of a just and equitable international economic order which takes into

account the interests and needs of mankind as a whole and, in particular, the special

interests and needs of developing countries, whether coastal or landlocked”. As

noted above, article 148 of the Convention speaks about the promotion of the

effective participation of developing States in activities in the Area. What is more

important is that Annex III, article 9, paragraph 4, of the Convention specifically

refers to the right of a developing State or any natural or juridical person sponsored

by it and effectively controlled by it, to inform the Authority that it wishes to submit a

plan of work with respect to a reserved area. These provisions have the effect of

reserving half of the proposed contract areas in favour of the Authority and

developing States. Together with those provisions mentioned in paragraph 157, they

require effective implementation with a view to enabling the developing States to

participate in deep seabed mining on an equal footing with developed States.

Developing States should receive necessary assistance including training.

Question 2

164. The second question submitted to the Chamber is as follows:

What is the extent of liability of a State Party for any failure to

comply with the provisions of the Convention in particular Part XI,

and the 1994 Agreement, by an entity whom it has sponsored

under Article 153, paragraph 2(b), of the Convention? 50

I. Applicable provisions

165. In replying to this question, the Chamber will proceed from article 139,

paragraph 2, of the Convention, read in conjunction with the second sentence of

Annex III, article 4, paragraph 4, of the Convention.

166. Article 139, paragraph 2, of the Convention reads:

Without prejudice to the rules of international law and Annex III, article 22,

damage caused by the failure of a State Party or international

organization to carry out its responsibilities under this Part shall entail

liability; States Parties or international organizations acting together shall

bear joint and several liability. A State Party shall not however be liable

for damage caused by any failure to comply with this Part by a person

whom it has sponsored under article 153, paragraph 2(b), if the State

Party has taken all necessary and appropriate measures to secure

effective compliance under article 153, paragraph 4, and Annex III, article

4, paragraph 4.

167. Annex III, article 4, paragraph 4, second sentence, of the Convention states:

A sponsoring State shall not, however, be liable for damage caused by

any failure of a contractor sponsored by it to comply with its obligations if

that State Party has adopted laws and regulations and taken

administrative measures which are, within the framework of its legal

system, reasonably appropriate for securing compliance by persons

under its jurisdiction.

168. The Chamber will further take into account articles 235 and 304 as well as

Annex III, article 22, of the Convention. Lastly, it will consider, as appropriate, the

relevant rules on liability set out in the Nodules Regulations and the Sulphides

Regulations. In this context, the Chamber notes that the Regulations issued to date

by the Authority deal only with prospecting and exploration. Considering that the

potential for damage, particularly to the marine environment, may increase during

the exploitation phase, it is to be expected that member States of the Authority will

further deal with the issue of liability in future regulations on exploitation. The

Chamber would like to emphasize that it does not consider itself to be called upon to

lay down such future rules on liability. The member States of the Authority may,

however, take some guidance from the interpretation in this Advisory Opinion of the

pertinent rules on the liability of sponsoring States in the Convention. 51

169. Since article 139, paragraph 2, and article 304 of the Convention refer,

respectively, to the “rules of international law” and to “the application of existing rules

and the development of further rules regarding responsibility and liability under

international law”, account will have to be taken of such rules under customary law,

especially in light of the ILC Articles on State Responsibility. Several of these articles

are considered to reflect customary international law. Some of them, even in earlier

versions, have been invoked as such by the Tribunal (The M/V “SAIGA” (No. 2)

(Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999,

p. 10, at paragraph 171) as well as by the ICJ (for example, Armed Activities on the

Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ

Reports 2005, p. 168, at paragraph 160).

II. Liability in general

170. At the outset, the Chamber would like to state its understanding of the system

of liability in regard to sponsoring States as set out in the Convention and related

instruments.

171. Article 139, paragraph 2, of the Convention and the related provisions referred

to above, prescribe or refer to different sources of liability, namely, rules concerning

the liability of States Parties (article 139, paragraph 2, first sentence, of the

Convention), rules concerning sponsoring State liability (article 139, paragraph 2,

second sentence, of the Convention), and rules concerning the liability of the

contractor and the Authority (referred to in Annex III, article 22, of the Convention).

The “without prejudice” clause in the first sentence of article 139, paragraph 2, of the

Convention refers to the rules of international law concerning the liability of States

Parties and international organizations. A reference to the international law rules on

liability is also contained in article 304 of the Convention. The Chamber considers

that these rules supplement the rules concerning the liability of the sponsoring State

set out in the Convention. 52

172. From the wording of article 139, paragraph 2, of the Convention, it is evident

that liability arises from the failure of the sponsoring State to carry out its own

responsibilities. The sponsoring State is not, however, liable for the failure of the

sponsored contractor to meet its obligations (see paragraph 182).

173. There is, however, a link between the liability of the sponsoring State and the

failure of the sponsored contractor to comply with its obligations, thereby causing

damage. An examination of article 139 of the Convention and Annex III, article 4,

paragraph 4, second sentence, of the Convention will establish more precisely the

link between the damage caused by the contractor and the sponsoring State’s

liability (see paragraph 181).

174. Whereas the first sentence of article 139, paragraph 2, of the Convention

covers the failure of States Parties, including sponsoring States, to carry out their

responsibilities in general, the second sentence deals only with the liability of

sponsoring States.

III. Failure to carry out responsibilities

175. The Chamber will now turn to the interpretation of the elements constituting

liability as set out in article 139, paragraph 2, of the Convention, read in conjunction

with Annex III, article 4, paragraph 4, of the Convention.

176. The wording of article 139, paragraph 2, of the Convention clearly establishes

two conditions for liability to arise: the failure of the sponsoring State to carry out its

responsibilities (see paragraphs 64 to 71 on the meaning of key terms); and the

occurrence of damage.

177. The failure of a sponsoring State to carry out its responsibilities, referred to in

article 139, paragraph 2, of the Convention, may consist in an act or an omission that

is contrary to that State’s responsibilities under the deep seabed mining regime.

Whether a sponsoring State has carried out its responsibilities depends primarily on

the requirements of the obligation which the sponsoring State is said to have 53

breached. As stated above in the reply to Question 1 (see paragraph 121),

sponsoring States have both direct obligations of their own and obligations in relation

to the activities carried out by sponsored contractors. The nature of these obligations

also determines the scope of liability. Whereas the liability of the sponsoring State for

failure to meet its direct obligations is governed exclusively by the first sentence of

article 139, paragraph 2, of the Convention, its liability for failure to meet its

obligations in relation to damage caused by a sponsored contractor is covered by

both the first and second sentences of the same paragraph.

IV. Damage

178. As stated above, according to the first sentence of article 139, paragraph 2, of

the Convention, the failure of a sponsoring State to carry out its responsibilities

entails liability only if there is damage. This provision covers neither the situation in

which the sponsoring State has failed to carry out its responsibilities but there has

been no damage, nor the situation in which there has been damage but the

sponsoring State has met its obligations. This constitutes an exception to the

customary international law rule on liability since, as stated in the Rainbow Warrior

Arbitration (Case concerning the difference between New Zealand and France

concerning the interpretation or application of two agreements, concluded on 9 July

1986 between the two States and which related to the problems arising from the

Rainbow Warrior Affair, UNRIAA, 1990, vol. XX, p. 215, at paragraph 110), and in

paragraph 9 of the Commentary to article 2 of the ILC Articles on State

Responsibility, a State may be held liable under customary international law even if

no material damage results from its failure to meet its international obligations.

179. Neither the Convention nor the relevant Regulations (regulation 30 of the

Nodules Regulations and regulation 32 of the Sulphides Regulations) specifies what

constitutes compensable damage, or which subjects may be entitled to claim

compensation. It may be envisaged that the damage in question would include

damage to the Area and its resources constituting the common heritage of mankind,

and damage to the marine environment. Subjects entitled to claim compensation 54

may include the Authority, entities engaged in deep seabed mining, other users of

the sea, and coastal States.

180. No provision of the Convention can be read as explicitly entitling the Authority

to make such a claim. It may, however, be argued that such entitlement is implicit in

article 137, paragraph 2, of the Convention, which states that the Authority shall act

“on behalf” of mankind. Each State Party may also be entitled to claim compensation

in light of the erga omnes character of the obligations relating to preservation of the

environment of the high seas and in the Area. In support of this view, reference may

be made to article 48 of the ILC Articles on State Responsibility, which provides:

Any State other than an injured State is entitled to invoke the

responsibility of another State ...if: (a) the obligation breached is owed to

a group of States including that State, and is established for the

protection of a collective interest of the group; or (b) the obligation

breached is owed to the international community as a whole.

Causal link between failure and damage

181. Article 139, paragraph 2, first sentence, of the Convention refers to “damage

caused”, which clearly indicates the necessity of a causal link between the damage

and the failure of the sponsoring State to meet its responsibilities. The second

sentence of article 139, paragraph 2, of the Convention does not mention this causal

link. It refers only to a causal link between the activity of the sponsored contractor

and the consequent damage. Nevertheless, the Chamber is of the view that, in order

for the sponsoring State’s liability to arise, there must be a causal link between the

failure of that State and the damage caused by the sponsored contractor.

182. Article 139, paragraph 2, of the Convention establishes that sponsoring States

are responsible for ensuring that activities in the Area are carried out in conformity

with Part XI of the Convention (see paragraph 108). This means that the sponsoring

State’s liability arises not from a failure of a private entity but rather from its own

failure to carry out its own responsibilities. In order for the sponsoring State’s liability

to arise, it is necessary to establish that there is damage and that the damage was a

result of the sponsoring State’s failure to carry out its responsibilities. Such a causal

link cannot be presumed and must be proven. The rules on the liability of sponsoring 55

States set out in article 139, paragraph 2, of the Convention and in the related

instruments are in line with the rules of customary international law on this issue.

Under international law, the acts of private entities are not directly attributable to

States except where the entity in question is empowered to act as a State organ

(article 5 of the ILC Articles on State Responsibility) or where its conduct is

acknowledged and adopted by a State as its own (article 11 of the ILC Articles on

State Responsibility). As explained in the present paragraph, the liability regime

established in Annex III to the Convention and related instruments does not provide

for the attribution of activities of sponsored contractors to sponsoring States.

183. In the event that no causal link pertaining to the failure of the sponsoring

States to carry out their responsibilities and the damage caused can be established,

the question arises whether they may nevertheless be held liable under the

customary international law rules on State responsibility. This issue is dealt with in

paragraphs 208 to 211.

184. For these reasons, the Chamber concludes that the liability of sponsoring

States arises from their failure to carry out their own responsibilities and is triggered

by the damage caused by sponsored contractors. There must be a causal link

between the sponsoring State’s failure and the damage, and such a link cannot be

presumed.

V. Exemption from liability

185. The Chamber will now direct its attention to the meaning of the clause “shall

not however be liable for damage” in article 139, paragraph 2, second sentence, and

in Annex III, article 4, paragraph 4, second sentence, of the Convention.

186. This clause provides for the exemption of the sponsoring State from liability.

Its effect is that, in the event that the sponsored contractor fails to comply with the

Convention, the Regulations or its contract, and such failure results in damage, the

sponsoring State cannot be held liable. The condition for exemption of the

sponsoring State from liability is that, as specified in article 139, paragraph 2, of the 56

Convention, it has taken “all necessary and appropriate measures to secure effective

compliance” under article 153, paragraph 4, and Annex III, article 4, paragraph 4, of

the Convention.

187. It may be pointed out that Annex III, article 4, paragraph 4, of the Convention

does not give sponsoring States unlimited discretionary powers concerning the

measures to be taken in order to avoid liability. This matter is dealt with in detail in

the reply to Question 3.

VI. Scope of liability under the Convention

188. The Chamber will now deal with the scope of liability under article 139,

paragraph 2, second sentence, of the Convention. This requires addressing several

issues, namely, the standard of liability, multiple sponsorship, the amount and form

of compensation and the relationship between the liability of the contractor and of the

sponsoring State.

Standard of liability

189. With regard to the standard of liability, it was argued in the proceedings that

the sponsoring State has strict liability, i.e., liability without fault. The Chamber,

however, would like to point out that liability for damage of the sponsoring State

arises only from its failure to meet its obligation of due diligence. This rules out the

application of strict liability.

Multiple sponsorship

190. According to Annex III, article 4, paragraph 3, of the Convention, in certain

situations, applicants for contracts of exploration or exploitation may require the

sponsorship of more than one State Party. This occurs when the applicant holds

more than one nationality or where it holds the nationality of one State and is

controlled by another State or by nationals of another State. 57

191. Neither article 139, paragraph 2, nor Annex III, article 4, paragraph 4, of the

Convention, indicates how sponsoring States are to share their liability. The Nodules

Regulations and the Sulphides Regulations also do not provide guidance in this

respect, with an exception as far as the certification of financial viability of the

contractor is concerned. Such certification as required under regulation 12,

paragraph 5(c), of the Nodules Regulations and under regulation 13, paragraph 4(c),

of the Sulphides Regulations must be provided by the State that controls the

applicant. Consequently, in this case, a failure of that State to comply with its

obligations entails liability.

192. Apart from the exception mentioned in paragraph 191, the provisions of

article 139, paragraph 2, of the Convention and related instruments dealing with

sponsorship do not differentiate between single and multiple sponsorship.

Accordingly, the Chamber takes the position that, in the event of multiple

sponsorship, liability is joint and several unless otherwise provided in the

Regulations issued by the Authority.

Amount and form of compensation

193. As regards the amount of compensation payable, it is pertinent to refer again

to Annex III, article 22, of the Convention, which states, with respect to the Authority

and the sponsored contractor, that “[l]iability in every case shall be for the actual

amount of damage.” In this context, note should be taken of regulation 30 of the

Nodules Regulations, the identical regulation 32 of the Sulphides Regulations, and

the identical section 16.1 of the Standard Clauses for exploration contracts (Annex 4

to the said Regulations).

194. The obligation for a State to provide for a full compensation or restituto in

integrum is currently part of customary international law. This conclusion was first

reached by the Permanent Court of International Justice in the Factory of Chorzów

case (PCIJ Series A, No. 17, p. 47). This obligation was further reiterated by the

International Law Commission. According to article 31, paragraph 1, of the ILC

Articles on State Responsibility: “The responsible State is under an obligation to

make full reparation for the injury caused by the internationally wrongful act”. The 58

Chamber notes in this context that treaties on specific topics, such as nuclear energy

or oil pollution, provide for limitations on liability together with strict liability.

195. In the light of the foregoing, it is the view of the Chamber that the provisions

concerning liability of the contractor for the actual amount of damage, referred to in

paragraph 193, are equally valid with regard to the liability of the sponsoring State.

196. As far as the form of the reparation is concerned, the Chamber wishes to refer

to article 34 of the ILC Articles on State Responsibility. It reads:

Full reparation for the injury caused by the internationally wrongful act

shall take the form of restitution, compensation and satisfaction, either

singly or in combination, in accordance with the provisions of this chapter.

197. It is the view of the Chamber that the form of reparation will depend on both

the actual damage and the technical feasibility of restoring the situation to the status

quo ante.

198. It should be noted that, according to regulation 30 of the Nodules Regulations

and regulation 32 of the Sulphides Regulations, the contractor remains liable for

damage even after the completion of the exploration phase. In the view of the

Chamber, this is equally valid for the liability of the sponsoring State.

Relationship between the liability of the contractor and of the sponsoring State

199. Concerning the relationship between the contractor’s liability and that of the

sponsoring State, attention may be drawn to Annex III, article 22, of the Convention.

This provision reads as follows:

The contractor shall have responsibility or liability for any damage arising

out of wrongful acts in the conduct of its operations, account being taken

of contributory acts or omissions by the Authority. Similarly, the Authority

shall have responsibility or liability for any damage arising out of wrongful

acts in the exercise of its powers and functions, including violations under

article 168, paragraph 2, account being taken of contributory acts or

omissions by the contractor. Liability in every case shall be for the actual

amount of damage. (Emphasis added)59

200. No reference is made in this provision to the liability of sponsoring States. It

may therefore be deduced that the main liability for a wrongful act committed in the

conduct of the contractor’s operations or in the exercise of the Authority’s powers

and functions rests with the contractor and the Authority, respectively, rather than

with the sponsoring State. In the view of the Chamber, this reflects the distribution of

responsibilities for deep seabed mining activities between the contractor, the

Authority and the sponsoring State.

201. In this context, the question of whether the contractor and the sponsoring

State bear joint and several liability was raised in the proceedings. Nothing in the

Convention and related instruments indicates that this is the case. Joint and several

liability arises where different entities have contributed to the same damage so that

full reparation can be claimed from all or any of them. This is not the case under the

liability regime established in article 139, paragraph 2, of the Convention. As noted

above, the liability of the sponsoring State arises from its own failure to carry out its

responsibilities, whereas the contractor’s liability arises from its own non-compliance.

Both forms of liability exist in parallel. There is only one point of connection, namely,

that the liability of the sponsoring State depends upon the damage resulting from

activities or omissions of the sponsored contractor (see paragraph 181). But, in the

view of the Chamber, this is merely a trigger mechanism. Such damage is not,

however, automatically attributable to the sponsoring State.

202. If the contractor has paid the actual amount of damage, as required under

Annex III, article 22, of the Convention, in the view of the Chamber, there is no room

for reparation by the sponsoring State.

203. The situation becomes more complex if the contractor has not covered the

damage fully. It was pointed out in the proceedings that a gap in liability may occur if,

notwithstanding the fact that the sponsoring State has taken all necessary and

appropriate measures, the sponsored contractor has caused damage and is unable

to meet its liability in full. It was further pointed out that a gap in liability may also

occur if the sponsoring State failed to meet its obligations but that failure is not

causally linked to the damage. In their written and oral statements, States Parties

have expressed different views on this issue. Some have argued that the sponsoring 60

State has a residual liability, that is, the liability to cover the damage not covered by

the sponsored contractor although the conditions for a liability of the sponsoring

State under article 139, paragraph 2, of the Convention are not met. Other States

Parties have taken the opposite position.

204. In the view of the Chamber, the liability regime established by article 139 of

the Convention and in related instruments leaves no room for residual liability. As

outlined in paragraph 201, the liability of the sponsoring State and the liability of the

sponsored contractor exist in parallel. The liability of the sponsoring State arises

from its own failure to comply with its responsibilities under the Convention and

related instruments. The liability of the sponsored contractor arises from its failure to

comply with its obligations under its contract and its undertakings thereunder. As has

been established, the liability of the sponsoring State depends on the occurrence of

damage resulting from the failure of the sponsored contractor. However, as noted in

paragraph 182, this does not make the sponsoring State responsible for the damage

caused by the sponsored contractor.

205. Taking into account that, as shown above in paragraph 203, situations may

arise where a contractor does not meet its liability in full while the sponsoring State is

not liable under article 139, paragraph 2, of the Convention, the Authority may wish

to consider the establishment of a trust fund to compensate for the damage not

covered. The Chamber draws attention to article 235, paragraph 3, of the

Convention which refers to such possibility.

VII. Liability of sponsoring States for violation of their direct obligations

206. As stated in paragraph 121, the Convention and related instruments provide

for direct obligations of sponsoring States. Liability for violation of such obligations is

covered by article 139, paragraph 2, first sentence, of the Convention.

207. In the event of failure to comply with direct obligations, it is not possible for the

sponsoring State to claim exemption from liability as article 139, paragraph 2,

second sentence, of the Convention does not apply. 61

VIII. “Without prejudice” clause

208. The Chamber will now consider the impact of international law on the deep

seabed liability regime. Articles 139, paragraph 2, first sentence, and 304 of the

Convention, state that their provisions are “without prejudice” to the rules of

international law (see paragraph 169). It remains to be considered whether such

statement may be used to fill a gap in the liability regime established in Part XI of the

Convention and related instruments.

209. As already indicated, if the sponsoring State has not failed to meet its

obligations, there is no room for its liability under article 139, paragraph 2, of the

Convention even if activities of the sponsored contractor have resulted in damage. A

gap in liability which might occur in such a situation cannot be closed by having

recourse to liability of the sponsoring State under customary international law. The

Chamber is aware of the efforts made by the International Law Commission to

address the issue of damages resulting from acts not prohibited under international

law. However, such efforts have not yet resulted in provisions entailing State liability

for lawful acts. Here again (see paragraph 205) the Chamber draws the attention of

the Authority to the option of establishing a trust fund to cover such damages not

covered otherwise.

210. The failure by a sponsoring State to meet its obligations not resulting in

material damage is covered by customary international law which does not make

damage a requirement for the liability of States. As already stated in paragraph 178,

this is confirmed by the ILC Articles on State Responsibility.

211. Lastly, the Chamber would like to point out that article 304 of the Convention

refers not only to existing international law rules on responsibility and liability, but

also to the development of further rules. The regime of international law on

responsibility and liability is not considered to be static. Article 304 of the Convention

thus opens the liability regime for deep seabed mining to new developments in

international law. Such rules may either be developed in the context of the deep

seabed mining regime or in conventional or customary international law. 62

Question 3

212. The third question submitted to the Chamber is as follows:

What are the necessary and appropriate measures that a

sponsoring State must take in order to fulfil its responsibility under

the Convention, in particular Article 139 and Annex III, and the

1994 Agreement?

I. General aspects

213. The focus of Question 3, as of Questions 1 and 2, is on sponsoring States.

The Question seeks to find out the “necessary and appropriate measures” that the

sponsoring State “must” take in order to fulfil its responsibility under the Convention,

in particular article 139 and Annex III, and the 1994 Agreement. The starting point for

this inquiry is article 153 of the Convention, since it introduces for the first time the

concept of the sponsoring State and the measures that it must take. Article 153 does

not specify the measures to be taken by the sponsoring State. It makes a crossreference to article 139 of the Convention for guidance in the matter.

214. Article 139, paragraph 2, of the Convention provides that the sponsoring

State shall not be liable for damage caused by any failure to comply with Part XI of

the Convention by an entity sponsored by it under article 153, paragraph 2(b), of the

Convention, “if the State Party has taken all necessary and appropriate measures to

secure effective compliance under article 153, paragraph 4, and Annex III, article 4,

paragraph 4”.

215. Article 139, paragraph 2, of the Convention does not specify the measures

that are “necessary and appropriate”. It simply draws attention to article 153,

paragraph 4, and Annex III, article 4, paragraph 4, of the Convention. The relevant

part of Annex III, article 4, paragraph 4, reads as follows:

A sponsoring State shall not, however, be liable for damage caused by

any failure of a contractor sponsored by it to comply with its obligations if 63

that State Party has adopted laws and regulations and taken

administrative measures which are, within the framework of its legal

system, reasonably appropriate for securing compliance by persons

under its jurisdiction.

216. Although the terminology used in these provisions varies slightly, they deal in

essence with the same subject matter and convey the same meaning. Annex III,

article 4, paragraph 4, of the Convention contains an explanation of the words

“necessary and appropriate measures” in article 139, paragraph 2, of the Convention.

217. Under these provisions, in the system of the responsibilities and liability of the

sponsoring State, the “necessary and appropriate measures” have two distinct,

although interconnected, functions as set out in the Convention. On the one hand,

these measures have the function of ensuring compliance by the contractor with its

obligations under the Convention and related instruments as well as under the

relevant contract. On the other hand, they also have the function of exempting the

sponsoring State from liability for damage caused by the sponsored contractor, as

provided in article 139, paragraph 2, as well as in Annex III, article 4, paragraph 4, of

the Convention. The first of these functions has been illustrated in the reply to

Question 1, in connection with the due diligence obligation of the sponsoring State to

ensure compliance by the sponsored contractor, while the second has been partially

addressed in the reply to Question 2 and will be further addressed in the following

paragraphs.

II. Laws and regulations and administrative measures

218. Annex III, article 4, paragraph 4, of the Convention requires the sponsoring

State to adopt laws and regulations and to take administrative measures. Thus, there

is here a stipulation that the adoption of laws and regulations and the taking of

administrative measures are necessary. The scope and extent of the laws and

regulations and administrative measures required depend upon the legal system of

the sponsoring State. The adoption of laws and regulations is prescribed because

not all the obligations of a contractor may be enforced through administrative

measures or contractual arrangements alone, as specified in paragraphs 223 to 226. 64

Support for the enforcement of contractor’s obligations under the domestic law of the

sponsoring State is an essential requirement in a number of national jurisdictions.

But laws and regulations by themselves may not provide a complete answer in this

regard. Administrative measures aimed at securing compliance with them may also

be needed. Laws, regulations and administrative measures may include the

establishment of enforcement mechanisms for active supervision of the activities of

the sponsored contractor. They may also provide for the co-ordination between the

various activities of the sponsoring State and those of the Authority with a view to

eliminating avoidable duplication of work.

219. Since the sponsoring State is responsible for ensuring that the contractor acts

in accordance with the terms of the contract and with its obligations under the

Convention, that State’s laws, regulations and administrative measures should be in

force at all times that a contract with the Authority is in force. While the existence of

such laws, regulations and administrative measures is not a condition precedent for

concluding a contract with the Authority, it is a necessary requirement for compliance

with the obligation of due diligence of the sponsoring State and for its exemption

from liability.

220. It may be observed in this regard that the Nodules Regulations were approved

after the pioneer investors had been registered. In view of this, certifying States are

required, if necessary, to bring their laws, regulations and administrative measures in

keeping with the provisions of the Regulations.

221. The national measures to be taken by the sponsoring State should also cover

the obligations of the contractor even after the completion of the exploration phase,

as provided for in regulation 30 of the Nodules Regulations and regulation 32 of the

Sulphides Regulations.

222. As already indicated, the national measures, once adopted, may not be

appropriate in perpetuity. It is the view of the Chamber that such measures should

be kept under review so as to ensure that they meet current standards and that the

contractor meets its obligations effectively without detriment to the common heritage

of mankind. 65

III. Compliance by means of a contract?

223. It is the requirement in Annex III, article 4, paragraph 4, of the Convention,

that the measures to be taken by the sponsoring State should be in the form of laws

and regulations and administrative measures. This means that a sponsoring State

could not be considered as complying with its obligations only by entering into a

contractual arrangement, such as a sponsoring agreement, with the contractor. Not

only would this be incompatible with the provision referred to above but also with the

Convention in general and Part XI thereof in particular.

224. Mere contractual obligations between the sponsoring State and the sponsored

contractor may not serve as an effective substitute for the laws and regulations and

administrative measures referred to in Annex III, article 4, paragraph 4, of the

Convention. Nor would they establish legal obligations that could be invoked against

the sponsoring State by entities other than the sponsored contractor.

225. The “contractual” approach would, moreover, lack transparency. It will be

difficult to verify, through publicly available measures, that the sponsoring State had

met its obligations. A sponsorship agreement may not be publicly available and, in

fact, may not be required at all. Annex III of the Convention, and the Nodules

Regulations and the Sulphides Regulations contain no requirement that a

sponsorship agreement, if any, between the sponsoring States and the contractor

should be submitted to the Authority or made publicly available. The only

requirement is the submission of a certificate of sponsorship issued by the

sponsoring State (regulation 11, paragraph 3(f), of the Nodules Regulations and of

the Sulphides Regulations), in which the sponsoring State declares that it “assumes

responsibility in accordance with article 139, article 153, paragraph 4, and Annex III,

article 4, paragraph 4, of the Convention”.

226. As stated above, the role of the sponsoring State is to contribute to the

common interest of all States in the proper implementation of the principle of the

common heritage of mankind by assisting the Authority and by acting on its own with

a view to ensuring that entities under its jurisdiction conform to the rules on deep

seabed mining. Contractual arrangements alone cannot satisfy the obligation 66

undertaken by the sponsoring State. The sponsoring State could not claim to be

assisting the Authority under article 153, paragraph 4, of the Convention by the mere

fact that it had concluded a contract under its domestic law.

IV. Content of the measures

227. The Convention leaves it to the sponsoring State to determine what measures

will enable it to discharge its responsibilities. Policy choices on such matters must be

made by the sponsoring State. In view of this, the Chamber considers that it is not

called upon to render specific advice as to the necessary and appropriate measures

that the sponsoring State must take in order to fulfil its responsibilities under the

Convention. Judicial bodies may not perform functions that are not in keeping with

their judicial character. Nevertheless, without encroaching on the policy choices a

sponsoring State may make, the Chamber deems it appropriate to indicate some

general considerations that a sponsoring State may find useful in its choice of

measures under articles 139, paragraph 2, 153, paragraph 4, and Annex III, article 4,

paragraph 4, of the Convention.

228. What is expected with regard to the responsibility of the sponsoring State in

terms of Annex III, article 4, paragraph 4, of the Convention is made clear in the

second sentence of the same paragraph. It requires the sponsoring State to adopt

laws and regulations and to take administrative measures which are, within the

framework of its legal system, “reasonably appropriate” for securing compliance by

persons under its jurisdiction. The standard for determining what is appropriate is not

open-ended. The measures taken must be “reasonably appropriate”. The

appropriateness of the measures taken may be justified only if they are agreeable to

reason and not arbitrary.

229. The measures to be taken by the sponsoring State must be determined by

that State itself within the framework of its legal system. This determination is,

therefore, left to the discretion of the sponsoring State. Annex III, article 4, paragraph

4, of the Convention requires the sponsoring State to put in place laws and

regulations and to take administrative measures that are “reasonably appropriate” so 67

that it may be absolved from liability for damage caused by any failure of a contractor

sponsored by it to comply with its obligations. The obligation is to act within its own

legal system, taking into account, among other things, the particular characteristics

of that system.

230. In view of the above, it may be relevant to deal with some general

considerations pertaining to the measures to be taken by the sponsoring State. The

sponsoring State does not have an absolute discretion with respect to the action it is

required to take under Annex III, article 4, paragraph 4, of the Convention. In the

sphere of the obligation to assist the Authority acting on behalf of mankind as a

whole, while deciding what measures are reasonably appropriate, the sponsoring

State must take into account, objectively, the relevant options in a manner that is

reasonable, relevant and conducive to the benefit of mankind as a whole. It must act

in good faith, especially when its action is likely to affect prejudicially the interests of

mankind as a whole. The need to act in good faith is also underlined in articles 157,

paragraph 4, and 300 of the Convention. Reasonableness and non-arbitrariness

must remain the hallmarks of any action taken by the sponsoring State. Any failure

on the part of the sponsoring State to act reasonably may be challenged before this

Chamber under article 187 (b) (i) of the Convention.

231. It may be pertinent to inquire whether there are any restrictions on what a

sponsoring State may provide for in its laws and regulations applicable in this regard.

Attention may be drawn to Annex III, article 21, paragraph 3, of the Convention. This

paragraph reads as follows:

No State Party may impose conditions on a contractor that are

inconsistent with Part XI. However, the application by a State Party to

contractors sponsored by it, or to ships flying its flag, of environmental or

other laws and regulations more stringent than those in the rules,

regulations and procedures of the Authority adopted pursuant to article 17,

paragraph 2(f), of this Annex shall not be deemed inconsistent with

Part XI.

232. This provision imposes a general obligation on the sponsoring State not to

impose on a contractor conditions that are “inconsistent” with Part XI of the

Convention. At the same time, however, it establishes an exception thereto. The 68

exception provides the sponsoring State with the option to apply to contractors

sponsored by it, or to ships flying its flag, environmental or other laws and

regulations more stringent than those in the rules, regulations and procedures of the

Authority adopted pursuant to Annex III, article 17, paragraph 2(f), of the Convention

(dealing with protection of the marine environment).

233. While dealing with the obligation of the sponsoring State contained in

Annex III, article 21, paragraph 3, of the Convention, account has to be taken of the

obligation of the contractor under the legal regime for deep seabed mining and the

corresponding obligations of the sponsoring State. According to Annex III, article 4,

paragraph 4, of the Convention the contractor shall carry out its activities in the Area

“in conformity with” the terms of its contract with the Authority and its obligations

under the Convention. The same provision states that it is the responsibility of the

sponsoring State to ensure that the contractor carries out this obligation (see

paragraph 75).

234. The sponsoring State may find it necessary, depending upon its legal system,

to include in its domestic law provisions that are necessary for implementing its

obligations under the Convention. These provisions may concern, inter alia, financial

viability and technical capacity of sponsored contractors, conditions for issuing a

certificate of sponsorship and penalties for non-compliance by such contractors.

235. Additionally, the Convention itself specifies in various provisions the issues

that should be covered by the sponsoring State’s laws and regulations. In particular,

article 39 of the Statute dealing with enforcement of decisions of the Chamber

provides:

The decisions of the Chamber shall be enforceable in the territories of the

States Parties in the same manner as judgments or orders of the highest

court of the State Party in whose territory the enforcement is sought.

Reference may also be made to Annex III, article 21, paragraph 2, of the Convention

which provides: “Any final decision rendered by a court or tribunal having jurisdiction

under this Convention relating to the rights and obligations of the Authority and of the

contractor shall be enforceable in the territory of each State Party”. In a number of 69

national jurisdictions, these provisions may require specific legislation for

implementation.

236. Other indications may be found in the provisions that establish direct obligations of the sponsoring States (see paragraph 121). These include: the obligations to assist the Authority in the exercise of control over activities in the Area; the obligation to apply a precautionary approach; the obligation to apply best environmental practices; the obligation to take measures to ensure the provision of guarantees in the event of an emergency order by the Authority for protection of the marine environment; the obligation to ensure the availability of recourse for compensation in respect of damage caused by pollution; and the obligation to conduct environmental impact assessments. It is important to stress that these obligations are mentioned only as examples.

237. In this context, the Chamber takes note of the Deep Seabed Mining Law

adopted by Germany and of similar legislation adopted by the

Czech Republic

238. While the applicable contract is a contract between the Authority and the

contractor only and as such does not bind the sponsoring State, the sponsoring

State is nevertheless under an obligation to ensure that the contractor complies with

its contract. This means that the sponsoring State must adopt laws and regulations

and take administrative measures which do not hinder the contractor in the effective

fulfilment of its contractual obligations but rather assist the contractor in that respect.

239. It is inherent in the “due diligence” obligation of the sponsoring State to ensure

that the obligations of a sponsored contractor are made enforceable.

240. Under Annex III, article 21, paragraph 3, of the Convention, the rules,

regulations and procedures concerning environmental protection adopted by the

Authority are used as a minimum standard of stringency for the environmental or

other laws and regulations that the sponsoring State may apply to the sponsored

contractor. It is implicit in this provision that sponsoring States may apply to the

contractors they sponsor more stringent standards as far as the protection of the

marine environment is concerned. 70

241. Article 209, paragraph 2, of the Convention is based on the same approach.

According to this provision, the requirements contained in the laws and regulations

that States adopt concerning pollution of the marine environment from activities in

the Area “undertaken by vessels, installations, structures and other devices flying

their flag or of their registry or operating under their authority … shall be no less

effective than the international rules, regulations, and procedures” established under

Part XI, which consist primarily of the international rules, regulations and procedures

adopted by the Authority.

* *

242. For these reasons,

THE CHAMBER,

1. Unanimously,

Decides that it has jurisdiction to give the advisory opinion requested.

2. Unanimously,

Decides to respond to the request for an advisory opinion.

3. Unanimously, Replies to Question 1 submitted by the Council as follows:

Sponsoring States have two kinds of obligations under the Convention and related instruments:

A. The obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the Convention and related instruments.

This is an obligation of “due diligence”. The sponsoring State is bound to make best possible efforts to secure compliance by the sponsored contractors. 71

The standard of due diligence may vary over time and depends on the level of risk and on the activities involved.

B. Direct obligations with which sponsoring States must comply independently of their obligation to ensure a certain conduct on the part of the sponsored contractors.

Compliance with these obligations may also be seen as a relevant factor in meeting the “due diligence” obligation of the sponsoring State.

The most important direct obligations of the sponsoring State are:

(a) the obligation to assist the Authority set out in article 153, paragraph 4,

of the Convention;

(b) the obligation to apply a precautionary approach as reflected in Principle 15 of the Rio Declaration and set out in the Nodules Regulations and the Sulphides Regulations; this obligation is also to be considered an integral part of the “due diligence” obligation of the sponsoring State and applicable beyond the scope of the two Regulations;

(c) the obligation to apply the “best environmental practices” set out in the Sulphides Regulations but equally applicable in the context of the Nodules Regulations;

(d) the obligation to adopt measures to ensure the provision of guarantees

in the event of an emergency order by the Authority for protection of the

marine environment; and

(e) the obligation to provide recourse for compensation. 72

The sponsoring State is under a due diligence obligation to ensure compliance by

the sponsored contractor with its obligation to conduct an environmental impact

assessment set out in section 1, paragraph 7, of the Annex to the 1994 Agreement.

The obligation to conduct an environmental impact assessment is also a general

obligation under customary law and is set out as a direct obligation for all States in

article 206 of the Convention and as an aspect of the sponsoring State’s obligation to

assist the Authority under article 153, paragraph 4, of the Convention.

Obligations of both kinds apply equally to developed and developing States, unless specifically provided otherwise in the applicable provisions, such as Principle 15 of the Rio Declaration, referred to in the Nodules Regulations and the Sulphides Regulations, according to which States shall apply the precautionary approach “according to their capabilities”.

The provisions of the Convention which take into consideration the special interests

and needs of developing States should be effectively implemented with a view to

enabling the developing States to participate in deep seabed mining on an equal

footing with developed States.

4. Unanimously,

Replies to Question 2 submitted by the Council as follows:

The liability of the sponsoring State arises from its failure to fulfil its obligations under

the Convention and related instruments. Failure of the sponsored contractor to

comply with its obligations does not in itself give rise to liability on the part of the

sponsoring State.

The conditions for the liability of the sponsoring State to arise are:

(a) failure to carry out its responsibilities under the Convention; and

(b) occurrence of damage.

The liability of the sponsoring State for failure to comply with its due diligence obligations requires that a causal link be established between such failure and 73 damage. Such liability is triggered by a damage caused by a failure of the sponsored contractor to comply with its obligations. The existence of a causal link between the sponsoring State’s failure and the damage is required and cannot be presumed. The sponsoring State is absolved from liability if it has taken “all necessary and appropriate measures to secure effective compliance” by the sponsored contractor with its obligations. This exemption from liability does not apply to the failure of the sponsoring State to carry out its direct obligations.

The liability of the sponsoring State and that of the sponsored contractor exist in

parallel and are not joint and several. The sponsoring State has no residual liability.

Multiple sponsors incur joint and several liability, unless otherwise provided in the

Regulations of the Authority.

The liability of the sponsoring State shall be for the actual amount of the damage.

Under the Nodules Regulations and the Sulphides Regulations, the contractor

remains liable for damage even after the completion of the exploration phase. This is

equally valid for the liability of the sponsoring State.

The rules on liability set out in the Convention and related instruments are without

prejudice to the rules of international law. Where the sponsoring State has met its

obligations, damage caused by the sponsored contractor does not give rise to the

sponsoring State’s liability. If the sponsoring State has failed to fulfil its obligation but

no damage has occurred, the consequences of such wrongful act are determined by

customary international law.

The establishment of a trust fund to cover the damage not covered under the

Convention could be considered. 74

5. Unanimously,

Replies to Question 3 submitted by the Council as follows:

The Convention requires the sponsoring State to adopt, within its legal system, laws and regulations and to take administrative measures that have two distinct functions, namely, to ensure compliance by the contractor with its obligations and to exempt the sponsoring State from liability.

The scope and extent of these laws and regulations and administrative measures depends on the legal system of the sponsoring State.

Such laws and regulations and administrative measures may include the

establishment of enforcement mechanisms for active supervision of the activities of

the sponsored contractor and for co-ordination between the activities of the

sponsoring State and those of the Authority.

Laws and regulations and administrative measures should be in force at all times

that a contract with the Authority is in force. The existence of such laws and

regulations, and administrative measures is not a condition for concluding the

contract with the Authority; it is, however, a necessary requirement for carrying out

the obligation of due diligence of the sponsoring State and for seeking exemption

from liability.

These national measures should also cover the obligations of the contractor after the

completion of the exploration phase, as provided for in regulation 30 of the Nodules

Regulations and regulation 32 of the Sulphides Regulations.

In light of the requirement that measures by the sponsoring States must consist of

laws and regulations and administrative measures, the sponsoring State cannot be

considered as complying with its obligations only by entering into a contractual

arrangement with the contractor.

The sponsoring State does not have absolute discretion with respect to the adoption of laws and regulations and the taking of administrative measures. It must act in good faith, taking the various options into account in a manner that is reasonable, relevant and conducive to the benefit of mankind as a whole. As regards the protection of the marine environment, the laws and regulations and administrative measures of the sponsoring State cannot be less stringent than those adopted by the Authority, or less effective than international rules, regulations and procedures.

The provisions that the sponsoring State may find necessary to include in its national

laws may concern, inter alia, financial viability and technical capacity of sponsored

contractors, conditions for issuing a certificate of sponsorship and penalties for noncompliance by such contractors.

It is inherent in the “due diligence” obligation of the sponsoring State to ensure that the obligations of a sponsored contractor are made enforceable.

Specific indications as to the contents of the domestic measures to be taken by the

sponsoring State are given in various provisions of the Convention and related

instruments. This applies, in particular, to the provision in article 39 of the Statute

prescribing that decisions of the Chamber shall be enforceable in the territories of

the States Parties, in the same manner as judgments and orders of the highest court

of the State Party in whose territory the enforcement is sought.

Done in English and French, both texts being authoritative, in the Free and

Hanseatic City of Hamburg, this first day of February, two thousand and eleven, in

three copies, one of which will be placed in the archives of the Tribunal and the

others will be sent to the Secretary-General of the International Seabed Authority

and to the Secretary-General of the United Nations.

(signed)

Tullio TREVES,

President

(signed)

Philippe GAUTIER,

Registrar

http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf

Some Observations on a Proposed UNCLOS/UNEP Global Commons Trusteeship: Environmental Global Governance via Green Regulations, Taxes and User Fees

noreply@blogger.com (ITSSD Charitable Mission) — Sat, 29 May 2010 16:11:00 +0000

[THE U.S. CONGRESS AND THE OBAMA ADMINISTRATION HAVE THUS FAR REFUSED TO HOLD TRANSPARENT AND INCLUSIVE PUBLIC HEARINGS TO EVALUATE IN-DEPTH THE ENVIRONMENTAL DIMENSIONS OF THE UN CONVENTION ON THE LAW OF THE SEA (UNCLOS) WHICH THIS ADMINISTRATION, LIKE THE BUSH & CLINTON ADMINISTRATIONS PRECEDING IT, SEEKS FOR THE U.S. TO RATIFY. PERHAPS ONE REASON THEY HAVE BEEN RELUCTANT, DESPITE PUBLIC CALLS TO DO SO, IS THAT THEY DO NOT WISH TO DISCLOSE TO THE AMERICAN PUBLIC THE COMPLEX RELATIONSHIP BETWEEN THE UNCLOS' ENVIRONMENTAL PROVISIONS, REGULATIONS, PROTOCOLS, & ANNEXES, EVOLVING INTERNATIONAL ENVIRONMENTAL LAW, AND THE CHANGES THAT THE ADMINISTRATION & CONGRESS WOULD NEED TO MAKE TO CURRENT U.S. FEDERAL & STATE ENVIRONMENTAL LAWS & REGULATIONS TO ENSURE U.S. COMPLIANCE WITH THE RELEVANT UNCLOS ENVIRONMENTAL PROVISIONS UPON RATIFICATION. UNFORTUNATELY, A NUMBER OF FORMER AND CURRENT U.S. NAVY OFFICIALS, POLITICAL FIGURES AND ACADEMIC COMMENTATORS HAVE CONTRIBUTED TO THIS ONGOING SECRECY. FOR A DISCUSSION OF THESE RELATIONSHIPS IN THE ABSENCE OF CONSTITUTIONALLY (DUE PROCESS) REQUIRED PUBLIC HEARINGS: See Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009) at pp. 61-70, abstract and working paper available online at Social Science Research Network (SSRN) at 53, 56-97, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837 ; Lawrence A. Kogan, 'Ecosystem-Based Management': A Stealth Vehicle To Inject Euro-Style Precaution Into U.S. Regulation, Washington Legal Foundation Legal Backgrounder (July 2009) at: http://www.wlf.org/Upload/legalstudies/legalbackgrounder/071009Kogan_LB.pdf

THE FOLLOWING DISCUSSION REFLECTS OBSERVATIONS MADE BY THIS AUTHOR, BASED ON THE AVAILABLE LITERATURE AND PUBLIC INFORMATION TO DATE, WHICH STRONGLY SUGGESTS ADDITIONAL REASONS WHY THE OBAMA ADMINISTRATION AND THE U.S. CONGRESS HAVE THUS FAR FAILED TO CONVENE TRANSPARENT & PUBLIC IIN-DEPTH HEARINGS TO INFORM THE AMERICAN PUBLIC ABOUT THE ENVIRONMENTAL DIMENSIONS OF THE UNCLOS.]

I. UNCLOS is at the Center of a Global Network of Multilateral Environmental Regulatory Treaties

A. There Has Been a Rapid Progression of International Environmental Law Focusing on the Marine Environment

During the twenty-year period spanning 1972[i]-1992[ii], the world witnessed the negotiation of many multilateral treaties calling for the increased regulation of the environment. In fact, as many as 302 separate but overlapping Multilateral Environmental Agreements [MEAs] were drawn up during this era, many of which [“197, or nearly 70%”] are regional rather than global in scope.[iii]

These MEAs are generally viewed as falling within two general categories. The first category consists of “Core environmental conventions and related international agreements”. They are themselves divided into five clusters: a) the biodiversity-related conventions,[iv] b) the atmosphere conventions,[v] c) the land conventions,[vi] d) the chemicals and hazardous wastes conventions,[vii] and d) the regional seas conventions and related agreements”.[viii] According to UN authorities, the second category of MEAs consists of “Other Global Conventions Relevant to the Environment, including Regional Conventions of Global Significance,”[ix] to which the 1982 United Nations Convention on the Law of the Sea (UNCLOS) belongs. [x]Both UN and environmental commentators believe that “40% [or more] of [all of] these treaties are related to the protection of the marine environment, with the comprehensive UNCLOS as [their] centerpiece...” [xi] (emphasis added).

The following regional seas conventions, some accompanied by separate implementing protocols, fall within the first category of MEAs, all of which are related to the UNCLOS: 1) Convention for the Protection of the Mediterranean Sea against Pollution; 2) Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution; 3) Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region; 4) Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific; 5) Regional Convention for the Conservation of the Red Sea and Gulf; 6) Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region; 7) Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region; 8) Convention for the Protection of the Natural Resources and Environment of the South Pacific Region; 9) Convention on the Protection of the Marine Environment of the Baltic Sea Area; 10) Convention on the Protection of the Black Sea against Pollution; 11) Convention for the Protection of the Marine Environment of the North-East Atlantic; 12) Draft Convention for the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific; 13) Draft Framework Convention for the Protection of the [Marine] [Environment] of the Caspian Sea.

The UNCLOS and its related protocols are among an additional group of “global conventions relevant to the environment, including regional conventions of global significance” – i.e., MEAs.[xii] There are thirty four ‘marine pollution’ conventions protocols and amendments related to the International Maritime Organization (IMO), as well as, several ‘oceans-related conventions including the 1958 Convention on the Territorial Sea and the Contiguous Zone, the 1958 Convention on the High Seas, the 1958 Convention on the Continental Shelf, the 1964 Convention for the Int’l Council for the Exploration of the Sea (as amended), the 1982 UNCLOS, the 1994 Agreement Relating to the Implementation of Part XI of the UNCLOS, and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks.

According tothe German Advisory Council on Global Change (WBGU), an independent, scientific body established by the German federal government in 1992 (in preparation for the Rio Earth Summit) to analyze and report global environment and development problems,[xiii] there is a complex multi-dimensional interrelationship between various potential environmental harms posed to the global commons and the applicable multilateral environmental regulatory treaty regimes that address them. Besides the UNCLOS and the International Convention for the Prevention of Pollution from Ships (MARPOL),[xiv] there are included within this network several of the core UNEP-administrated MEAs, namely those concerning biodiversity, atmosphere and land.[xv] These include the UN Framework Convention on Climate Change (UNFCCC) and its accompanying Kyoto Protocol and the UN Montreal Protocol on Substances that Deplete the Ozone (Montreal Protocol) (atmosphere); the UN Convention to Combat Desertification (UNCCD) (land); the, the UN Convention on Biological Diversity (CBD) and the non-binding UN Forum on Forests (UNFF)[xvi] (biodiversity).

And, as the UN has found, “By far the largest cluster of MEAs is related to the marine environment...and is distinguished by the United Nations Convention on the Law of the Sea (UNCLOS) (1982), new IMO marine pollution conventions and protocols, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (1995), as well as the regional seas MEAs and regional fisheries conventions and protocols” (emphasis added).[xvii]

The United Nations classifies the UNCLOS as a “global convention[] relevant to the environment”, rather than as a “core environmental convention...of global significance whose negotiation, development and/or activities have been associated with UNEP’s (UN Environment Program’s] work...”[xviii] This distinction is not insignificant.

B. UN Secretariat and UN Environmental Program Share Responsibility for Managing UNCLOS & Related Oceans Treaties

According to the UN, the UNCLOS operates “under the UN General Secretariat”,[xix] whereas the core MEAs operate, for the most part, under the UNEP [xx] and/or four other related UN organizations.[xxi] Commentators, as well, have noted how the UNCLOS Secretariat is only one of several organizations, including the International Maritime Organization (IMO) and UNEP...that deal with the marine environment. The IMO manages agreements concerning pollution from ships; UNEP manages the regional seas program; and the UNCLOS Secretariat handles the broader legal framework.” [xxii] In addition, “The UN General Secretariat [also] serves as the secretariat for... the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks.” [xxiii]

Moreover, although the UN views the 11 legally binding regional seas conventions (including the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region and its accompanying Protocol Concerning Pollution from Land-Based Sources and Activities[xxiv] – a/k/a the ‘Toilet-Bowl Treaty’[xxv]) as falling within the latter group of “core environmental conventions and related agreements of global significance” that are under the jurisdiction of the UNEP, the “regional seas conventions are also known, because of their multisectoral nature [and]... comprehensive” nature, to be “systematically linked to global conventions and agreements” such as the UNCLOS, whose implementation they tend to support. [xxvi] “In fact, the regional seas programmes were developed as complimentary instruments to UNCLOS.” [xxvii]

“By far the largest cluster of MEAs, the...regional seas conventions and action plans, are a global mosaic of agreements with one over-arching objective: the protection and sustainable use of marine and coastal resources. In the early years shortly after the Stockholm Conference, the regional seas programmes focused on marine pollution control. In the ensuing 25 years they have involved into multi-sectoral agreements addressing integrated coastal area management, including in several cases links to the management of contiguous freshwater basins; land-based sources of pollution; conservation and sustainable use of living marine resources; and impacts of offshore exploration and exploitation of oil and gas” (emphasis added). [xxviii]

A prior 1996 OECD report further corroborates this relationship.

“The need for a global approach to deal with the management of oceanic resources ‘in the interests of the mankind’ was brought to the attention of the United Nations in 1967. The ensuing negotiations led in 1982 to the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). The Convention takes an ecosystem approach and covers all forms of marine pollution. Part XII of the convention contains the only existing, comprehensive, binding international law, covering pollution from all sources, whether land-based, oceanic or atmospheric. It also provides a comprehensive, binding system for the peaceful settlement of environmental issues. In parallel, and in the spirit of UNCLOS negotiations, further impetus for the development of regional programmes was provided in 1974 by the decision of the UNEP to launch a Regional Seas Programme through a series of regional action plans. Recognising the intimate links between the marine/coastal and terrestrial environments, the Programme aimed to deal with the problems of deteriorating conditions in the marine/coastal environment through the control of their land-based causes” (emphasis added). [xxix]

“While the legal office of the UNCLOS Secretariat ha[d previously] played an advisory role in the development of regional seas conventions and protocols, however, this support has unfortunately been sporadic in recent years.” [xxx]

“Throughout the years, beginning with the work of the Seabed Committee in 1968 and later during the nine-year duration of the Third United Nations Conference on the Law of the Sea, the United Nations has been actively engaged in encouraging and guiding the development and eventual adoption of the Law of the Sea Convention. Today, it continues to be engaged in this process, by monitoring developments as they relate to the Convention and providing assistance to States, when called for, in either the ratification or the implementation process. The goal of the Organization is to help States to better understand and implement the Convention in order to utilize their marine resources in an environment relatively free of conflict and conducive to development, safeguarding the rule of law in the oceans.” [xxxi]

As a result, the burden of administrating and coordinating the burgeoning MEA network has been left to the respective UNCLOS Parties and the UNEP treaty secretariats in which they simultaneously serve as Member State Parties, that have had to perform multiple and perhaps overlapping management functions.

“While the scope and mandate of MEA secretariats can vary, from a functional point of view they can be divided into two categories: (a) secretariats that prepare and service the meetings of the COPS [Conference Of the Parties] and their subsidiary bodies and coordinate with other international organizations (UNFCCC, the Montreal Protocol, CBD, the Ramsar Convention, CMS, AEWA, ASCOBANS, EUROBATS, the Rotterdam Convention and the Stockholm Convention); and (b) secretariats that, while carrying out the functions of the first category, are also involved in implementing programmes or projects at the regional and country levels (WHC, CITES, the Basel Convention, the UNCCD, the GPA and regional seas conventions and action plans). An important function of most secretariats is the monitoring and evaluation of the implementation of their MEA, proposing formats for national reports, receiving and analyzing reports submitted, and providing the COP or MOP with syntheses of the information contained in national reports.” [xxxii]

Notwithstanding this assessment, commentators have concluded that, “the UNCLOS Secretariat is [was and remains] a part of the United Nations”,[xxxiii] and could potentially play an influential role in ensuring how the UNCLOS is interpreted and implemented in the future by UN member parties.[xxxiv] According to UN scholars,

“Nearly every international organization can point to reports drafted by expert UN Secretariat personnel that were the basis for subsequent action by policy-making bodies...At a tactical and procedural level, Secretariat officials are storehouses of information on such policy-relevant matters the conduct of meetings, the drafting of resolutions and tactics of effective advocacy...When UN resolutions call for government action rather than establishing operating programs, Secretariat officials may perform a diplomatic function in seeking compliance from member states. The object of the negotiation is as varied as the subject matter of the resolutions...” (emphasis added).[xxxv]

This is clearly contrary to what U.S. government officials[xxxvi] backed by the former chairman of the U.S. Senate Foreign Relations Committee [xxxvii] and academic commentators [xxxviii] have publicly stated.

The WBGU’s analysis, set forth in the upper of the two accompanying diagrams, further supports this conclusion. It reflects a simplified structure of the UN Environment Program (UNEP) as of 2000, focusing on the relatively flexible but supportive relationship between the UNEP’s main office and several of the core MEA secretariats (CBD, UNFCCC and UNCCD) that it oversees and/or manages.[xxxix] In this regard a distinction should be made between MEAs that fall directly within UNEP (e.g., the CBD and others not here depicted),[xl] and MEAs that fall under UNEP auspices but not directly within it (UNFCCC, UNCCD). The illustration also shows how the UN trusteeship which, in part, incorporates the UNCLOS Secretariat, relates to but yet stands apart from and falls outside the direct control of the UNEP. The chart demonstrates the general flow of information between the UNEP treaty secretariats and the scientific bodies (e.g., the Intergovernmental Panel on Climate Change (IPCC) and other such bodies not here depicted),[xli] as well as, the flow of monies from several different UN organizational funding mechanisms (e.g, the UN Development Program and Global Environmental Facility), the World Bank, and from private donor sources. In addition, the illustration places the UNCLOS in a box entitled, “Trusteeship”, thereby reflecting the legal and fiduciary responsibility of the UNCLOS Secretariat, the UN General Secretariat and/or the UN International Seabed Authority, pursuant to the CHM doctrine, to hold in trust and protect the deep sea floor (‘the Area’ comprised also of the surrounding global ocean and atmosphere commons) for the future benefit of mankind.

C. The UNCLOS Legal Framework Could Be Used to Revive and Expand the Notion of a Centralized UN Trusteeship Over the Global Commons

The U.N. is made up of six organs: General Assembly, Security Council, Secretariat, International Court of Justice, Economic and Social Council and Trusteeship Council.

Actually, the placing of the UN/UNCLOS Secretariat within the larger trusteeship square may reflect much greater ambitions within the United Nations system. In particular, it may evidence renewed efforts to reconstitute the now moribund UN Trusteeship, one of the six principal organs of the UN originally established in 1945 “to oversee decolonization efforts of those dependent territories that were to be placed under the international trusteeship system created by the United Nations Charter as a successor to the League of Nations mandate system.” [xlii]

“With the independence of Palau, formerly part of the Trust Territory of the Pacific Islands, , in 1994...and its mission thus fulfilled, the Trusteeship Council suspended its operation on 1 November 1994...[A]lthough under the United Nations Charter continues to exist on paper, its future role and even existence remains uncertain... The formal elimination of the Trusteeship Council would require the revision of the UN Charter. The Commission on Global Governance's 1996 report Our Global Neighborhood recommended amending Chapters 12 and 13 of the United Nations Charter to give the Trusteeship Council authority over the global commons, which consists of oceans, the atmosphere, outer space, and Antarctica. The World Federalist Association issued an action alert calling for members to lobby the Government in support of this reform. Their theory is that an international regulatory body is needed to protect environmental integrity on the two-thirds of the world’s surface that is outside national jurisdictions. In March 2005, however, UN Secretary-General Kofi Annan proposed a sweeping reform of the United Nations, including an expansion of the Security Council. As this restructuring would involve significant changes to the UN charter, Annan proposed the complete elimination of the Trusteeship Council as part of these reforms” (emphasis added). [xliii]

While the status of former UN Secretary-General Kofi Annan’s 2005 plan for UN reform remains uncertain, it is useful to recall Maurice Strong's initial plan to begin reforming (read: restructuring) the United Nations, released during 1997. Pursuant to Strong’s plan entitled, Renewing the United Nations: A Programme for Reform, (A/51/1950) (July 14, 1997), the overall reform of the UN would include “a restructured UN Trusteeship Council.”

“The UN Trusteeship Council, created originally to oversee the transition of colonies to independence, is to become the trustees of the global commons. Global commons is defined to be ‘The atmosphere, outer space, the oceans beyond national jurisdiction, and the related environment and life-support systems that contribute to the support of human life.’ The United Nations Center for Human Settlements (HABITAT) is being incorporated into the United Nations Environment Program (UNEP). The restructured UNEP will administer all environmental treaties, more than 300 currently, and will become the implementation and enforcement arm of the UN Trusteeship Council” (emphasis added).[xliv]

The UN General Assembly, in recognition of this report, declared soon thereafter in resolution A/RES/52/12 (Nov. 12, 1997) that,

“...[R]eform of the United Nations will be an ongoing process and that there is a need for the United Nations to consider changes of a more fundamental nature and other broader issues, and invites the Secretary-General to elaborate further his proposals, taking into account the views of Governments, and to present them to the General Assembly by the end of March 1998 on: (a) A new concept of trusteeship” (emphasis added). [xlv]

D. A UN Global Trusteeship that Covers the Oceans the Seabed and the Atmosphere Above Falls Under the Auspices of the UNCLOS Legal Framework Which Entails Layers of UN Secretariat and UNEP International, Regional, and National Environmental Regulation

“One of the most significant features of the UNCLOS agreement was its commitment to be a comprehensive and universally accepted delineation of maritime law as well as an institution with a strong and wide-ranging conflict resolution system.” [There are also] “layers of regulation and enforcement...nested within each other...Individual citizens and companies are first regulated by their own state, and then states themselves are regulated by the Convention. This allows problems to be addressed at the appropriate level” (emphasis added). [xlvi]

The likelihood that this dynamic network of UN-based MEAs and related regional environmental treaties and regulations will continue to expand into the foreseeable future is very real. For example, UNCLOS Articles 64.1 and 118, which deal with living resources (e.g., migratory fish), call upon UNCLOS parties to create new rules and institutions at the regional level to govern the sustainable management of those marine resources when they straddle EEZs or swim the high seas. A broad interpretation of these UNCLOS provisions arguably led to the negotiation and entering into force (December 11, 2001) of the UN Migratory Fish Stocks Agreement,[xlvii] a full fledged environmental/natural resources regulatory treaty (protocol) affecting the international commercial fishing industries that was designed to implement the legal obligations alleged to have been assumed by UNCLOS State Parties.[xlviii] The Clinton administration promptly signed and ratified this protocol on December 4, 1995 and August 21, 1996 [xlix] respectively, in anticipation of securing the subsequent US ratification of the UNCLOS; but ratification of the UNCLOS was apparently not necessary to give effect to this protocol’s strict environmental regulatory provisions.[l] And other UNCLOS provisions (e.g., Parts XIII and XIV), as well,[li] arguably gave rise to the Clinton-Gore administrations’ mistaken assumption that it could also secure ratification of the Kyoto Protocol to the UNFCCC, based on aggressive but untested use of novel treaty interpretation theories.[lii] Such notions would have given full force and effect to the broad ‘global constitutional’ principles believed by legal commentators to be embodied in the UNCLOS,[liii] which such commentators advised “had to be sensitive to [the UNCLOS’] relationship with existing and future rights and obligations that would run between its Parties.” [liv]

It would appear that this UN trusteeship would extend to both the Arctic and Antarctic regions and would entail modifications of the UNCLOS to expressly incorporate Europe’s Precautionary Principle to further accommodate it. Recognizing this linkage,[lv] the Obama administration has expressed its intention to both ratify Annex VI of the Antarctica Treaty’s Madrid Protocol and to accede to the UNCLOS, recognizing that they these regulatory treaty regimes are “intimately related”.[lvi] During the past few years, European officials, United Nations University scholars, university academicians and green activist groups have called for UNCLOS parties to effectuate this relationship by negotiating a new Implementing Agreement incorporating updated international environmental legal norms, including Europe’s Precautionary Principle. They believe that a more comprehensive agreement is needed to fill the regulatory gaps and resolve the apparent conflicts that exist between these related legal regimes (i.e., as reflected, in part, by the lack of consensus concerning the status of legal claims to Antarctica and the competing notions of national jurisdiction and the common heritage of mankind[lvii]), which allegedly render the environmental health of the ‘high seas’, otherwise known as, ‘areas beyond national jurisdiction’ (‘ABNJ’) and the marine genetic resources found within them vulnerable to further degradation from pollution and global warming/ climate change acidification.[lviii]

According to Dr. Gerhard Hafner of the Austrian Federal Ministry for Foreign Affairs, who spoke in 2006 before the United Nations General Assembly, the European Union is squarely in favor of such an agreement.

“[T]he EU reiterates its call for the development of an Implementation Agreement consistent with the [UNCLOS] which will provide for the conservation and management of marine biological diversity in areas beyond the limits of national jurisdiction, including the establishment and regulation, on an integrated and precautionary basis, of marine protected areas where there is a scientific case for establishing these areas…The measures in ABNJ have to be based on the best available scientific information and the precautionary principle” [lix]

Given the focus of Madrid Protocol Annex V on establishing Antarctic Specially Protected Areas, it is quite apparent that the subject matter of an UNCLOS Implementing Agreement would be consistent with and complement that of the Madrid Protocol.

More recently, during 2008, Aleksander Čičerov, Minister Plenipotentiary at the Permanent Mission of Slovenia to the United Nations, speaking on behalf of the European Union, remarked that, “the EU remains of the view that ultimately an Implementation Agreement under UNCLOS would be the most effective option in order to provide such an integrated regime and address in a comprehensive manner the multiplicity of challenges facing the protection and sustainable use of marine biodiversity in ABNJ.”[lx] He provided the following rationale which echoes his colleague’s call for a Precautionary Principle-based implementing agreement:

“The implementation of the UNCLOS general framework and principles for the management of the oceans relies mainly on sectoral or regional instruments. This fragmented approach does not allow for the development of a global strategy to protect marine biodiversity. This has notably prevented the international community from establishing multipurpose MPAs in ABNJ, given the lack of integrated mechanisms to identify, design, manage and enforce such tools…The mainly sectoral focus of existing ocean bodies also results in a patchy application across sectors of basic principles guiding ocean governance and management. The ecosystem approach, the precautionary principle or prior impact assessment are being gradually incorporated as basic tools underpinning the policy of existing ocean bodies, but this evolution is taking place unevenly and is far from being completed. Whilst recognising the importance of these sectoral and regional bodies, the lack of an integrated approach is a hindrance to effectively protecting ocean biodiversity…[T]he EU also recognizes that there are short-term options available through existing arrangements, which can help to achieve the above mentioned goals of integration, coordination and cooperation, working through the existing competent bodies, when available…[T]he EU proposes the establishment of multi-purpose pilot Marine Protected Areas in ABNJ as a key element of an ecosystem-based and precautionary approach to oceans management.” [lxi]

Indeed, the EU has also expressly raised the need for an UNCLOS Implementing Agreement incorporating Europe’s Precautionary Principle to govern the Arctic region.

“The EU should work to uphold the further development of a cooperative Arctic governance system based on the UNCLOS which would ensure: security and stability[;] strict environmental management, including respect of the precautionary principle [; and] sustainable use of resources as well as open and equitable access…Proposals for action:…Explore all possibilities at international level to promote measures for protecting marine biodiversity in areas beyond national jurisdiction, including through the pursuit of an UNCLOS Implementing Agreement[;] Work towards the successful conclusion of international negotiations on marine protected areas on the high seas” (emphasis added). [lxii]

Furthermore, one in a series of reports from the International Union for Conservation of Nature and Natural Resources (IUCN), a green activist group, “identifies regulatory and governance gaps in the current international regime for the conservation and sustainable use of marine biodiversity in ABNJ”. In response, it has cited the need for “An instrument or mechanism to ensure that modern conservation principles such as the ecosystem approach and the precautionary principle are incorporated and applied in all existing global and regional treaties or instruments relevant to ABNJ.”[lxiii] One such possibility is a “global instrument on [marine protected areas] MPAs or more broadly on marine spatial planning…consistent with UNCLOS [that] could serve as a means to implement the environmental duties of Part XII in the context of modern eco-system-based and precautionary management approaches” (emphasis added).[lxiv]

A second IUCN report in that series has argued that such an implementing agreement would logically entail the imposition of formal environmental limitations upon what are assumed to be ‘high seas’ freedoms throughout the globe.

“Under UNCLOS, the high seas are open to all States and certain ‘freedoms’ include inter alia navigation, overflight, fishing and [marine scientific research]…The freedoms are not absolute as they are conditioned by obligations to not cause damage to the environment of other States arising from customary international law and the general obligations under UNCLOS to protect and preserve the marine environment; to conserve high seas living resources; to prevent, reduce and control pollution of the marine environment; and to fulfill their duties to cooperate with other States”.[lxv]

Clearly, this report makes reference to the environmental restrictions placed on freedom of navigation by the 45 provisions of UNCLOS Part XII [lxvi] and the three related International Seabed Authority (ISA) regulations.[lxvii] Indeed, as concerns the broad scope of the ISA’s mandate pursuant to UNCLOS Article 145,[lxviii] a prior IUCN report had declared that,

“[T]he ISA’s mandate regarding the resources of the deep seabed extends well beyond mineral exploitation, and the Authority is being encouraged to more fully exercise its powers and responsibilities with regard to living resources of the seabed and to ensure that marine ecosystems are properly protected”.[lxix]

Apart from the loss of navigational and economic freedoms deemed necessary to preserve and protect the marine environment, as discussed above, one of the IUCN reports suggests that the scope of such an UNCLOS Implementing Agreement, moreover, could be broad enough to cover the legal status of intangible property rights acquired in marine genetic resources (MGRs) in the ABNJ (i.e., it can preside over the loss of US private property rights as well). In other words, the objective of such an MGR framework would be to redistribute such rights and the financial profits and benefits flowing from them so that they may be ‘equitably’ shared with[lxx] developing countries.[lxxi]

“It is thought that bioprospecting and exploitation of MGRs in the water column falls under the regime of the high seas, whereas there is debate as to the extent that the Part XI regime for the Area applies to MGRs of the deep-sea bed. The ISA under Part XI has no direct authority to regulate the exploitation of biological resources in the Area because the term ‘resources’ is defined as being non-living resources. If the issue of bioprospecting is to be included within an Implementation Agreement, the potential role of the ISA in such a regime also needs to be discussed. Legally it would be possible to broaden the mandate of the ISA which would reduce the need for development of a new institutional structure for regulation of bioprospecting for MGRs sourced from the deep seabed”.[lxxii]

A legal framework of this nature would be akin, but not identical, to the politically controversial ‘access and benefit sharing’ (ABS) treaty proposed by developing country members of the United Nations Convention on Biological Diversity (CBD).[lxxiii] Unlike the ABS regime previously proposed at the CBD during 2003, which is intended to facilitate the redistribution and equitable sharing of genetic materials acquired from national forests located within the sovereign territories of developing countries and the financial benefits flowing therefrom,[lxxiv] the proposed MGR ‘high seas’ framework would likely fall under the UNCLOS’ common heritage of mankind doctrine. During 2007 and 2008, for example, the EU proposed such a regime in the context of the UNCLOS and the Antarctic Treaty, as a temporary ‘fix’ to protect the ‘high seas’ marine environment until the time that regulatory gaps in ocean governance can be remedied through an UNCLOS Implementation Agreement.[lxxv]

These issues are not new in the context of the UNCLOS. Previously, during a 2006 meeting of a UN General Assembly Working Group on marine biological diversity, the “EU had proposed a new UNCLOS implementation agreement” on fisheries to control deep sea bottom trawling activities “and the creation of marine protected areas, invoking the Precautionary Principle” to ensure “the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.” Not unexpectedly, the U.S. and Japan had strenuously objected.[lxxvi] The disagreement reflected the apparently different regional and national conceptions of how the benefits of marine genetic resources should be shared with developing countries. Whereas Europe called for the expanded jurisdiction of the International Seabed Authority over the global commons and new international regulations to protect such resources as the common heritage of mankind, the U.S. and Japan argued that such resources should instead fall subject to the freedom of the ‘high seas’ principle.[lxxvii] Commentators, therefore, have already pointed to the potential conflict over the future treatment of marine genetic resources located within the U.S. EEZ and the global commons.

II. European Government, Academic and Activist Calls for UN Institutional Reform Requires Changes to Global Environmental & Oceans Governance

France and Germany have long considered how best to strengthen UN environmental governance[lxxviii] in order to ensure the protection of the global environment from excessive economic exploitation (i.e., globalization) and to counter-balance the growing influence of the U.S.-backed World Trade Organization (WTO) which continues to sanction it. It was not until 1998, however, that the formal process for considering reforms to the UN Environment Program was begun in earnest.

“In 1998, UN Secretary-General Kofi Annan established the United Nations Task Force on Environment and Human Settlements in order to elaborate proposals for strengthening UNEP and Habitat (United Nations Centre on Human Settlements). Klaus Töpfer, UNEP Executive Director, was appointed chair. The motivation behind establishing the Task Force was the generally shared conviction that institutional fragmentation in numerous separate environmentally related processes has led to a loss of effectiveness. The brief of the Task Force was to review the structures of environmentally related activities within the UN, to evaluate their efficiency and effectiveness and to submit proposals for improving the environmental work of the UN at the global level and the role of UNEP as leading environmental organization. In addition, recommendations were to be made for strengthening the role of UNEP as the main source of environmentally related information for the CSD.”[lxxix]

The key outcome of the review was a Task Force proposal “to establish an Environmental Management Group headed by the UNEP Director”, which would “better coordinate the exchange of information, new initiatives and the planning framework” and “ensure an efficient and effective use” of the UN’s limited “resources.”[lxxx] In addition, the Task Force proposed that a “global environmental forum” be convened annually “at the minister level” to discuss and “review the environmental agenda of the UN and its implementation.” The first such meeting took place in Malmö, Sweden during May 2000.[lxxxi]

A. The German UNEP Reform Proposal

Sometime during 2000, perhaps in preparation for that meeting, the WBGU (German Advisory Council) submitted to the German Government[lxxxii] an extensive proposal to reform the UN Environment Program (UNEP), which it believed will improve the UN’s ability to coordinate the UNEP’s various activities in furtherance of the UN’s environmental goals.

The lack of coordination and collaboration among individual activities to preserve the natural basis for human life is painfully obvious. In an era of globalization – meaning also global accountability for the environment of the planet as a whole – humanity must unite in a common effort for the sustainable co-evolution of nature and human society. Yet global environmental policy does not today enjoy a priority commensurate with the magnitude of the problems it addresses. This is why now, shortly before the World Summit on Sustainable Development (WSSD), the German Advisory Council on Global Change (WBGU) proposes a new Earth Alliance as a vision for the restructuring of international environmental institutions and organizations.” [lxxxiii]

Among the environmental problems mentioned, was the destructive exploitation of the world’s oceans, which the report characterized as “a common asset that can be used by all”. In particular, the report emphasized that, although there were international agreements already adopted to protect the oceans, these agreements (e.g., the UNCLOS and the regional seas agreements) were not, partially due to lack of adequate funding, being implemented and enforced as intended.

“Because the greater part of the oceans is a common asset that can be used by all (common access problem), international agreements are indispensable to provide effective protection for the oceans by abating pollution and destructive exploitation. A further aspect is that pollutants are transported far across national boundaries by the air and ocean currents, so that generators and affected parties are far removed from each other. Here numerous international agreements have already been adopted (e.g. UNCLOS, MARPOL), but a need for action remains to further develop these regimes and, in particular, to enforce them. The UNEP regional seas programmes provide promising international approaches, under which institutional environmental policy arrangements are agreed among the coastal states of specific regional seas. However, implementational problems, such as inadequate funding, have meant that enforcement capabilities are still lacking.”[lxxxiv]

The WBGU proposal called for the expansion and conversion of the UNEP agency into a centralized supranational Earth Alliance effectively consisting of three interrelated organizations/chambers: an International Environmental Organization (IEO), an Earth Commission and an Earth Funding body.

“The Council’s vision of an Earth Alliance to reform the framework of international environmental institutions and organizations builds on existing structures and develops them further as needed. The Earth Alliance breaks down into three crosscutting areas – Earth Assessment, Earth Organization and Earth Funding – to be linked to one another through mutual commitments for information and communication exchange, joint activities and common financing models.”[lxxxv]

“[T]he Council suggests a gradual reform of the relevant international network of institutions in its entirety, which in the long term should lead among other things to an ‘International Environmental organization’ under the auspices of the UN...The concept under discussion here is an organizational structure for international environmental policy resting on three pillars of an Earth Alliance: The first pillar represents a coordinated and integrated system for continual analysis and evaluation of the global environment and development situation (Earth Assessment).The second (and central) pillar concentrates and structures all relevant regimes and trusteeships, in particular the central environmental conventions (Earth Organization). The third pillar unites the totality of all financial and other resources for effective Earth System management,” (emphasis added). [lxxxvi]

This structure is illustrated in the lower of the two accompanying diagrams. As readers may discern, the UN’s trusteeship over the global commons covers not only the oceans, but also the airspace above, as well as, outer space. In addition, all of the MEAs, including those shown, would fall under the auspices of the IEO. Furthermore, funding to maintain the commons would be derived from a combination of ‘user fees’, public funds and private donor funds. Also, the scope and extent of the permitted uses as well as their rate of charge would likely be regulated by reference to the assessments of environmental harm triggered by the specific activities in question as determined by one or more of the scientific panels listed or to be created.

In particular, the Earth Commission would be established as an independent entity, modeled after the German Council for Sustainable Development, to serve as a special authority for the evaluation of environmental problems. Its duty would be to issue timely warnings of environmental risks that ‘catch the public’s attention’, and it would possess limited authority to make proposals, vis-à-vis scientific panels, to the public.[lxxxvii]

“This commission would provide the long-term perspective needed to protect environmental resources and safeguard the rights and interests of future generations, and would provide impulses for research activities and political action. A particular function of the Earth Commission could be to place on the international agenda, in a manner that catches the world’s attention, issues which would otherwise be neglected despite their vital importance” (emphasis added) [lxxxviii]

“Such a commission might be viewed as a globalized form of the German Council for Sustainable Development (Rat für Nachhaltige Entwicklung)” (emphasis added).[lxxxix]

Apparently, the paradigm of ‘science’ the German report had in mind would be modeled after the German, and by extension, the European Precautionary Principle.

“Overall, the assessment process should seek to integrate the Earth Commission, the scientific policy advice community and the CSD. In the view of the Council, such an interplay of ethical authority, cutting-edge scientific expertise and open debate within a UN institution is crucial to the enterprise of assessing the complex problems of global change in a manner that is both appropriate to the issues at hand and does justice to the precautionary principle”. It is above all important that this assessment process has a dynamic structure and adapts continuously to changing conditions and findings. The Earth Commission should not only sound the environmental ‘warning trumpet’, but should also be able, if developments are favourable, to give the ‘all clear’” (emphasis added).[xc]

Consistent therewith, the Earth Funding mechanism would ensure “payment for use of the global commons and precautionary adaptation and compensation funds play an essential role (Earth Funding)” (boldface emphasis added).[xci]

The formation of an International Environmental Organization (IEO), according to the report, would entail the merger of UNEP with the numerous UN MEA secretariats. The IEO would operate exclusively and independently from, but would coordinate its projects with, the UN Development Program (UNDP), the World Bank, the Food and Agricultural Organization (FAO) and/or UN Industrial Development Organization (UNIDO).[xcii]

The recommendations set forth in the 2000 WGBU report were most likely embraced by the German Government, and later echoed by the then German Environment Minister, Jürgen Trittin, at a 2004 international environmental governance conference convened in Paris by the Institut du Developpment Durable et des Relations Internationales (IDDRI).[xciii] Mr. Trittin was very clear in expressing Germany’s aim in promoting UN environmental reform:

“to strengthen and enhance the United Nations Environment Program [in order] to make real improvements in living conditions [and to create] a fundamental counterweight to the World Trade Organization and to the international environmental governance structures which are driving globalization forward” and preventing “the principle of sustainable development [from] assert[ing] itself at the international level.”[xciv]

In particular, Tritten emphasized the need for 1) “universal membership of all UN Member States in the UNEP Governing Council and consequently also in the Global Ministerial Environment Forum” 2) “enhancement of UNEP to a UN Environment Organisation”; and 3) “a clear improvement in UNEP's scientific basis”, i.e., the “prime importance [of having] international scientific consensus on the nature and extent of environmental problems, as well as on possible solutions and obstacles”.[xcv]

In addition, the former German Environment Minister publicly declared Germany’s agreement with France concerning the need for a strengthened and reformed UNEP.

“We agree with the French Government that strengthening UNEP presupposes its transformation into a specialised agency, a UN Environment Organisation that is on equal footing with major players such as the World Health Organisation, the International Labour Organisation and the World Trade Organisation. Globalisation must be structured in an environmentally and socially compatible way. To achieve this we need a strong UN Environment Organisation” (emphasis added).[xcvi]

...I welcome the stance on the UNEO that the French Government has outlined on numerous occasions, most recently at the New York working group. France's clarification that this is not a case of an institution à la WTO is correct, since the WTO is not a member of the UN family. The UN Environment Organisation needs the same status as the FAO and the ILO, namely that of a specialised agency. It is also true that the major task of operating worldwide capacity building for efficient environmental policy cannot be achieved by a UNEO alone. It requires the solidarity of the UN Development Programme and the World Bank” (emphasis added). [xcvii]

B. The French UNEP Reform Proposal

In 1998, a year after former German Chancellor Helmut Kohl officially stated at a 1997 UN General Assembly special session on environment and development that, “global environmental protection and sustainable development need a clearly audible voice at the United Nations”, former French President Jacques Chirac called for “the establishment of an international environmental organization”.[xcviii] Two years later, in June 2000, former “French Prime Minister Lionel Jospin and French Environment Minister Dominique Voynet “announced their intention to use the French EU presidency to advance the debate on an international environmental organization.” [xcix]

At the 58th Session of the UN General Assembly, during September 2003, Mr. Chirac recommended the development of a United Nations Environment Organization (UNEO). On behalf of France, he emphasized the link between environmental protection and global security, stating that, “We now realize that globalization demands stronger economic, social and environmental governance.”

“[Chirac] proposed the creation of ‘a new political forum’, [i.e.,]...a council...representative of the present state of the world economy...[that] would be entrusted with the responsibility for providing the necessary impetus to the international institutions for improving their coordination, and for anticipating and tackling global problems more effectively. ‘Against the chaos of a world shaken by ecological disaster, let us call for a sharing of responsibility, around a United Nations Environment Organization’, Chirac said”.[c]

Thereafter, “an informal working group was set up in New York to facilitate dialogue between governments on UNEP reform”.[ci] According to a 2004 multi-stakeholder dialogue environmental governance report, the French UNEP reform proposal for a UNEO sought to achieve several objectives: 1) “to raise the profile of international environmental agreements [MEAs]; 2) “to build institutional capacity”; and 3) to streamline environmental and other institutional demands”. It was claimed that UNEO was to be viewed as a long term goal, and not as a substitute for a strengthened UNEP, which was the priority.[cii] “With over 500 MEAs institutions and governance frameworks are being placed under increasing stress...activities are required to ensure policy and institutional coherence, capacity building and compliance”[ciii]

France once again publicly reasserted its commitment to global environmental governance during February 2005. While attending a joint meeting of the French National Assembly and Senate at Versailles to reform the French Constitution by incorporating within it an Environment Charter enshrining Europe’s Precautionary Principle as French constitutional law, former Prime Minister of France, Jean-Pierre Raffarin, stated that,

“France [is] commit[ted] to global governance of the environment and to the...creation [of]...a United Nations Environment Organization. I am pleased to say that there is already growing international support for this, with Rio and Kyoto providing tangible evidence.” [civ]

And, more recently, although French President Nicholas Sarkozy was provided the political opportunity to ‘scrap’ the Precautionary Principle, deemed a major obstacle to French national economic and technological growth and French industries’ global competitiveness by the same socialist-stocked Attali Commission he himself had appointed to liberalize the French economy, he nevertheless chose, as a matter of ideology and trade protectionism, to reject that advice.[cv] [cvi] [cvii]

C. The EU-UNEP Reform Position

During September and October 2007, the European Union expressed its support, as well, for the establishment of a new International Environmental Organization based on a reformed and restructured UNEP. This message was delivered first in September on behalf of the EU by Joao Salgueiro, Portugal’s Permanent Representative to the United Nations.

“In this regard, the European Union would like to reiterate its willingness to work with the wider Membership of the UN, and all other relevant stakeholders to, strengthen IEG and upgrade UNEP... The European Union firmly believes that an ambitious reform is required in order to achieve real change and feels encouraged to work for the establishment of a UN Organization for the Environment based on UNEP, with a revised and strengthened mandate, supported by Stable, adequate and predictable financial contributions and operating on an equal footing with other UN specialized Agencies.” [cviii]

The European Union’s support was delivered again during October 2007, as a more elaborate written response to a paper prepared by the co-chairs of a UN General Assembly International Environmental Governance consultation group.

“While significant strengthening of the IEG system can be achieved through short-and medium-term reform, such as the measures included in the proposed building blocks, the EU firmly believes that an ambitious reform is required in order to achieve the desired strengthening of the IEC system and feels encouraged to work for the establishment of a UN Environment organization in, Nairobi, based on UNEP, with a revised an strengthened mandate, supported by stable, adequate and predictable financial contributions and operating on an equal footing with other UN specialized Agencies.” [cix]

In addition to emphasizing the need to ensure an acceptable international paradigm for consideration of science and economics issues when assessing environmental concerns, the EU made the following remarks, which should be of interest to U.S. policymakers.

“Scientific knowledge and management of scientific information should be at the basis of sound environment policy and has a key role to play in the IEG system. UNEP must continue to be the authoritative body and centre of excellence on monitoring assessment and early warning on the global environment that can mobilize scientific support, information and knowledge as well as technical support and capacity building...The creation of a Chief Scientist is a very interesting proposal which could allow UNEP to become the convenor of choice for scientific institutions and communities. The option should, however, be carefully assessed and other options also envisaged. Apart from the need for a high-caliber incumbent, the institutional support is key to success. In addition, based on the growing need for multi-disciplinary work the inclusion of a highly competent senior economist, with expertise in the fields of environmental and development economics in a support team should be considered. There is also a need to strengthen existing scientific networks and capacity within UNEP. UNEP should focus scientific assessment on areas which are valuable to diverse policy constituencies and have political traction” (emphasis added). [cx]

“The strengthening of UNEP and the further creation of a UN Environment Organisation should facilitate a strengthened scientific base for lEG, improving policy and decision-making. The mandates should allow it to be an authoritative body and centre of excellence on monitoring assessment and early warning on the global environment that can mobilize scientific support, information and knowledge as well as technical support and capacity building” (emphasis added).[cxi]

The EU’s letter also addresses the need for a revised and reformed UNEP to improve coordination between and among the UN’s numerous MEAs, which would presumably result in an improved and more coherent relationship between UNCLOS and the core UNEP MEAs and regional seas programme agreements and protocols discussed above.

“The call for an increased cooperation and coordination between different MEAs, the need for greater synergies between local and regional offices and a better cooperation between UNEP and the MEAs are strongly supported by the EU. Enhanced cooperation and coordination among the different entities would Ensure a more coherent system and lead to enhanced and facilitated national implementation of the MEAs, Reducing the burden of participation on Parties, especially developing country Parties” (emphasis added). [cxii]

Lastly, the EU response highlights how a UNEO might help to secure a stable, reliable and adequate source of financing/funds to tackle the increasing degradation of the global environment. Besides calling for improved efficiencies in the use of funds, the EU also emphasizes the need for such an organization to develop new innovative methods to finance the protection of the global environment for the future.

“In the face of increasing environmental degradation in developed and developing countries, the EU believes more efficient use of existing resources is needed, as well as, ensuring adequate global financial means. The establishment of a UNEO could enable the setting of a more stable, predictable and adequate budget, taking into account the respective requirements for efficient and effective operation of the headquarters, as well as, for the organization’s activities in accordance with the work programme. The EU can support the objective to ‘improve financing for the IEG system and for environmental activities through timely and adequate funding’ and efforts to make more efficient use of existing resources” (emphasis added).. [cxiii]

In this regard, we would like to highlight the proposals on a financial tracking system and on a funding structure for UNEP that allows for private sector contributions and increased adequate future replenishments of the GEF. Innovative ways to provide more financing for environmental protection are likely to be required in addition to the measures proposed” (emphasis added). [cxiv]

D. International Academic & ENGO [cxv] Input

It is also clear that ‘multilateralist’ academics and ENGOs have significantly influenced the thinking of environmentally ‘enlightened’ UN and national government officials about the urgent need for UNEP institutional and governance reform, given the ‘magnitude of environmental problems’ believed to be facing the global community. Among the barriers to international coordination on environmental governance, two professors have cited the difficult obstacles posed by a lack of immediately visible environmental problems, a lack of adequate funding, and a lack of cooperation from UN member states seeking to preserve their national sovereignty.

“There is clearly a disconnect between the magnitude of environmental problems on the one hand and the ability of contemporary institutions to effectively address them on the other. For all the rhetoric, agreements, and promises of action over the past 30 years, actual institutions, processes, and resources have fallen short of addressing the problems for which they were established. To be fair, environmental problems are difficult to tackle because they are hard to see, spread over space, stretched out in time, with diffused costs and concentrated benefits. National sovereignty in the face of global environmental problems has also proven a difficult obstacle to effective solutions as governments have been driven to act on the basis of narrowly defined self-interest rather than the common good. In addition, too often, international environmental organizations are under-funded or otherwise incapacitated. Moreover, disjointed priorities within national governments have led to conflicting viewpoints in different international forums. Nevertheless, the lack of coherence and coordination of organizational priorities, activities, and investments at the international level only exacerbates the problem. A key finding of the empirical analysis we undertook is that even though a certain division of labor among international organizations may exist, considerable overlap and duplication of activities likely persists” (emphasis added). [cxvi]

As a result, a key argument made within a second article prepared by one of these authors, Ms. Maria Ivanova,[cxvii] is that UNEP should enhance its institutional and governance abilities as “an ‘anchor institution’ for the global environment”.

“While stewardship of the global environment is a Herculean task to place on any institution’s shoulders, UNEP, Ivanova argues, is uniquely positioned to carry it. Created in 1972, it was meant to be ‘a central coordinating mechanism in the United Nations to provide political and conceptual leadership, to assess the state of the global environment and to contemplate methods of avoiding or reducing global environmental risk and of working out joint norms.’ UNEP is an ‘anchor institution’ for the global environment. Anchor institutions, said Ivanova, have four roles: to oversee the monitoring, assessing and reporting on their particular issue; to set agendas for standards and guidelines; to develop institutional capacity to address existing and emerging problems; and to develop new ideas. Though they aren’t alone in working on global issues, anchors are the glue that holds such efforts together. On that score, UNEP, which began with such promise, has lost its grip. ‘The key thing is that UNEP, created in 1972, has never been systematically reviewed externally,’ said Ivanova. ‘We cannot know how to improve unless we know where we are and how we got there’” (emphasis added). [cxviii]

According to Ms. Ivanova, UNEP was formed for just this purpose.

“UNEP was not purposefully established as a 'weak, underfunded, overloaded, and remote organization.' Rather, it was created as the ‘anchor institution’ for the global environment to serve as the world’s ecological conscience, to provide impartial monitoring and assessment, to serve as a global source of information on the environment, to ‘speed up international action on urgent environmental problems,’ and to ‘stimulate further international agreements of a regulatory character.’ Most importantly, the mission of the new environment Programme was to ensure coherent collective environmental efforts by providing central leadership, assuring a comprehensive and integrated overview of environmental problems and developing stronger linkages among environmental institutions and the constituencies they serve” (emphasis added).[cxix]

These papers were among many other contributions that comprise the chapters of a book entitled, Global Environmental Governance: Perspectives on the Current Debate, recently released by the Center for UN Reform Education, a New York-based NGO.[cxx]

One other paper included within this UNEP reform book, which is germane to the discussion of international environmental taxation, was contributed by Mohamed El-Ashry, currently a Senior Fellow at the United Nations Foundation. In Mr. El-Ashry’s opinion,

"In order to deliver on the internationally agreed goals and commitments, the UN will require stronger leadership and greater capacity for the environment. It is in the international community’s interest to have institutions that can respond effectively to the threats of environmental degradation. In this regard, UNEP is the right organization to set global standards and to coordinate system-wide environmental activities. It should be strengthened with a renewed mandate and improved funding, with broad oversight for international environmental governance” (emphasis added).[cxxi]

Interestingly, Mr. El-Ashry previously served as Chief Executive Officer and Chairman of the Global Environment Facility (GEF),[cxxii] during which time he advocated in favor of international environmental taxation to support global environment-centric sustainable development regulatory policies.

“A carbon or energy tax is often suggested as a means of generating revenues for global environment and sustainable development purposes. Closely related is the recent fund-raising provision of the Kyoto Protocol known as the Clean Development Mechanism (CDM) which is linked to carbon emission trading and joint implementation. There are also ideas related to taxing international air transportation, international tourism, and even a surcharge on automobile registration...We need to deal also with the underlying economic, demographic, and political forces. Whether in addressing wasteful consumption and production patterns, population growth, or inefficient energy and transport systems, the right policies always count. In other words, adequate finance without adequate policies will not deliver the full intended results. In fact, the right policies concerning energy pricing and proper natural resource valuations can generate substantial financial resources” (emphasis added).[cxxiii]

III. European Government, Academic and Activist Proposals to Pay for the Needed UN Institutional Reforms to Global Environmental & Oceans Governance

A. Identifying a Need to Establish Global Public Property in ‘the Area’ for New Funding Sources

Commentators note that during the negotiation of UNCLOS III in the 1970’s, it had been hoped that the user fees charged by the UNCLOS’ newly created International Seabed Authority to private parties for the right to engage in deep-sea mining in ‘the Area’ could serve “as a means of raising [much-needed] funds for the UN”.[cxxiv] However, it was soon realized that market forces were going to prevent this opportunity from materializing into a money-making proposition.

UNCLOS, which came into force in 1994, created a new institution for supervising deep-sea mining, the International Seabed Authority. However, little came of initial hopes of a new source of funding for the UN. The International Seabed Authority coordinates the activities of private consortia of firms and levies only very small utilization charges. As there is currently very little activity taking place in this field due to the relative, and in some cases the absolute, decline in price of many mineral resources and unresolved technical problems relating to deep-sea mining, hopes of tapping into new, additional financial resources from this sphere have been dashed for the time being. A major problem as regards these considerations is that they were planned as a tax or duty for financing the UN” (emphasis added). [cxxv]

Following the ‘efficiency review’ of UN programs undertaken during the early 1990’s as part of the then current U.S. and European proposals for United Nations reform, it was concluded that the traditional “pattern of international assistance and other public financial flows, which relie[d] almost completely on unpredictable voluntary contributions, ha[d] become obsolete and [] woefully inadequate.”[cxxvi] In order to generate a more steady source of general and special revenues that could be used in the future to respond to what was perceived as “the urgent [environmental] challenges before [them]” (which apparently have still not abated),[cxxvii] UN officials and supporters “call[ed] for a new approach to questions of international public finance.”[cxxviii] Such approach included consideration of an alternative “system of taxes, user fees and other mechanisms that could generate substantial revenues on an automatic rather than a discretionary basis[cxxix]...[and]...be used to fund general and ocean-related development programmes and also the regulation and conservation of ocean resources.”[cxxx] The need to secure supplementary sources of revenue to finance the mounting costs of administrating, overseeing and/or managing the UNEP’s burgeoning multilateral environmental treaty program most likely also provided the impetus behind this movement.

As a solution, UN and European officials determined that there was a need to vest an international institution with the authority, as a global trustee, to establish public property rights in the global oceans commons, to avert an alleged ‘tragedy of the commons’. These public property rights would be divided into varying forms of temporary private economic and legal rights in exchange for monetary consideration. For example, access to OR use of the seabed floor may be sold, leased or rented to private parties (mining, oil and gas companies), subject to public welfare/interest (‘environmental’) considerations. It was hoped that the International Seabed Authority would also manage and oversee such activities to ensure the protection of the marine environment. In addition, there was also a perceived need to establish a regulatory body that would ensure the fairness of that institution’s pricing policies and the protection of the marine environment. The rent so collected would then be used cover the administrative costs of the trustee body.

“If ownership of the seabed existed, then it would be conceivable to buy and sell, or lease it subject to public welfare considerations. An institution that is responsible for managing the seas – and therefore also its mineral resources – in trusteeship could lease out areas subject to environmental considerations. In view of the lack of appropriate property rights to date, it would be quite legitimate here – contrary to utilization of the Earth’s atmosphere – to charge a rent and thereby secure an income for the trustee body. To ensure that the rent charged is appropriate it would make sense to establish a regulatory body responsible for authorizing the pricing proposals of the Seabed Authority while at the same time taking into account environmental issues” (emphasis added). [cxxxi]

Although it is said that the convention’s member states, rather than the UN itself or one of its agencies or institutions, have the last word about how such resources are to be allocated, priced and utilized, the evidence indicates otherwise. The UNCLOS’ International Seabed Authority (ISBA), which “shall have international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes”,[cxxxii] can actually determine the rate and amount of taxes and variable user fees to be automatically assessed against private parties engaged in deep seabed excavation and extraction activities in ‘the Area’. The ISBA “is responsible for licensing and collecting fees for the mining of the deep ocean bed by private firms, and the Enterprise,[cxxxiii] which may itself mine it under a parallel system of seabed mining.”[cxxxiv] This fact was recently confirmed once again by the International Seabed Authority Council:

“[T]he ISBA serves the important [role] of preserving the resources of the deep seabed as the common heritage of mankind...As trustees of the common heritage of mankind... under the Convention, the Authority [has been] allowed to raise or vary fees...the Authority’s concern was [always] to ensure that fees established, while being fair to contractors, brought reasonable benefit to mankind.” [cxxxv]

However, how would the U.S., let alone, any other national government ever be able to hold the ISBA accountable for showing how the taxes, charges and/or fees raised from activities engaged in by public or private entities in and around ‘the Area’ have actually been employed – i.e., whether they were used for their intended designated purpose(s) or otherwise diverted to unauthorized uses? The UNCLOS expressly provides the ISBA with absolute sovereign immunity,[cxxxvi] which serves to protect the ISBA and its property and assets, within each UN Member territory, from legal process,[cxxxvii] search and seizure[cxxxviii] and “restrictions, regulations, controls and moratoria of any kind”.[cxxxix] Furthermore, the ISBA’s archives, wherever located, are granted the privilege & immunity of nonviolability.[cxl] And, State Party representatives performing official functions on behalf of their governments in connection with their work in the ISBA Assembly, Council and subsidiary organs, as well as, the ISBA executive and its officers and staff, are all immune from legal process.[cxli]

B. Identifying a Need to Establish Global Public Property Beyond ‘the Area’ for New Funding Sources

Thus, the UN bureaucracy and UN intellectuals have long viewed the institutional legal framework established by the UNCLOS as providing a legitimate beginning point for the exploitation and redistribution of the marine environment’s resources held in trust by means of strict environmental regulations as well as tax and user fee assessments. And, in their opinion, the UNCLOS framework can also be used to derive more varied and extensive sources of revenue from the oceans’ living as well as nonliving resources on an automatic rather than a discretionary basis, as long as, the funds thereby collected are placed into the appropriate UN fund to ensure proper ocean governance and preservation of the res communis. [cxlii]

“It is evident...that the sources of revenues that can be derived from the oceans are much more varied and extensive: they can be from the deep ocean bed, from fishing on the high seas, from taxes on trade through freight and over-flight and on passenger traffic, from a system of taxes, user charges, fines and permits for commercial activities in the Southern Ocean and others. These resources can be placed in a general fund for general international use. A significant part, however, should be allocated specifically for ocean governance and development. Activities for these purposes are also myriad: there is a need for regulation, enforcement of the provisions of the Law of the Sea...for research on ocean resources and the way it influences climate and might in the twenty-first century even be used to forecast or modify climate and regional weather patterns.” (emphasis added). [cxliii]

In the view of certain commentators, the notion of res communis would extend as well to patents derived from bio-organisms prospected from the deep sea beds and water columns – i.e., “the Convention [UNCLOS] provides fairly clear grounds for denying patentability for products derived from pure marine scientific research and for those covering organisms themselves collected in the Area.”[cxliv] [cxlv] Similarly, the UNDP considers knowledge as a type of ‘human-made’ global public good (GPG). [cxlvi]

Indeed, back during early 2006, the G77 and China, had sought to define the legal status of marine genetic resources as falling under the ‘common heritage of mankind’ principle rather than the ‘freedom of the high seas’ principle. At the same meeting of the UN General Assembly Working Group on marine biological diversity, the “EU had proposed a new UNCLOS implementation agreement” on fisheries to control deep sea bottom trawling activities, “and the creation of marine protected areas, invoking the Precautionary Principle” to ensure “the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction”, to which at that time, the US had strenuously objected.[cxlvii]Could the US Senate and the administration now guarantee that the US would be as readily able to object to such restrictions in the future were it to become a party to the UNCLOS?

As previously noted, UNCLOS commentators have long referred to these resources as global public goods – ‘GPGs’ that should fall under the international trusteeship of the UN, as previously described. It was therefore not too difficult for UN scholars to extend this reasoning in order for the UN to assume the responsibility of designating public international property rights to deep ocean seabed resources for the public benefit. Pursuant to such a legal construction, it seems to matter not whether the private economic activities for which the user charges, fees and taxes are to be levied cause identifiable environmental harm.

“The Law of the Sea Convention, by designating international property rights to the deep ocean bed, has, in fact, already set this process in motion. Because of the huge volumes of economic activity involving the use of the oceans, international taxes or user fees could mobilize substantial revenues. For instance, a tax of just 0.1 per cent on international trade - 95 per cent of which is through ocean freight - could yield almost $4 billion, based on the level of imports in 1993... New funding mechanisms are especially appropriate for ocean governance and development, since the oceans constitute 75 per cent of the world’s total surface, contain extensive living and non-living resources fisheries, minerals, and the principal means of transport and are part of the global commons. The oceans, moreover, are the main influence on global climate, absorb most of the atmospheric carbon dioxide and substantial wastes and are the object of extensive expenditures.

... An important requirement for levying such charges and fees is the designation of the oceans as common property, a resource belonging to all mankind, or res communis. This is in contradistinction to the notion of res nullius, a thing that belongs to no one, and is therefore ‘up for grabs.’ It is in the latter situation that the tragedy is bound to occur. Designating the oceans as res communis has ample precedents in traditional international law, dating from the time of Grotius, and a basis in the principles of equity. It could underpin a system of charges for exploiting the ocean bed, marine fisheries, navigation and over-flight, and developing the resources of the Southern Ocean” (emphasis added).[cxlviii]

As a result, UN scholars had endeavored to justify these revenue-raising mechanisms as necessary to implement the communitarian CHM and environment-centric sustainable development doctrines on behalf of the global public good. Accordingly, these commentators argued that no sovereign nation or its citizens should be able to hold proprietary economic rights in the global oceans commons and the living and nonliving resources derived therefrom, which includes the exclusive economic zones adjacent to coastal state territorial waters. They believe that, pursuant to the UNCLOS, the scope and extent of any such economic rights, which are to be held in trust by the UN for the benefit of all the world’s peoples, especially those residing in landlocked nations, should be determined equitably consistent with CHM and environment-centric sustainable development.

“The EEZs, which contain the shallower waters and the bulk of the continental shelves of coastal States, contain most of the currently valuable natural resources, both living and non-living...which include hydrocarbons...The EEZs also contain the world’s most productive fisheries...and It is reasonable therefore for the world community to ask the coastal States...[which] do not exercise sovereignty over the EEZs and are forbidden by the principle of res communis from appropriating any part of common property as private property]...to provide a portion of the income they derive from the EEZs to a global authority for international uses, including assistance to land-locked developing countries. Such an arrangement, it may be recalled, was proposed by Nepal in the form of the creation of a ‘Common Heritage’ [Trust] Fund. A ‘gentleman's agreement’ for the sharing of revenues from the EEZs could still be forged and would not contravene any of the sovereign rights of the coastal States” (emphasis added). [cxlix]

To raise revenues, these scholars recommended the following mechanisms; 1) international taxes on traded commodities such as fossil fuels and minerals[cl]; 2) the granting of leases to private parties to exploit certain areas[cli]; and 3) the sale or auction of permits to pollute, which had been successfully used in the United States.[clii]

To be sure, efforts to siphon off resources and tax revenues from within coastal state EEZs for the global public good (GPG) have thus far been largely thwarted by coastal states, including the U.S., concerned about retaining for themselves legal title to the valuable economic resources yet to be discovered and extracted from within their EEZs (see e.g., the Outer Continental Shelf Lands Act[cliii]).[cliv] Yet, international efforts to employ the institution of the International Seabed Authority to exact redistributive license fees, user fees and taxes from coastal states and their industries for undertaking scientific research and exploration and mining and excavation activities in areas adjacent to and beyond national jurisdiction such as in coastal state outer-continental shelf (OCS) areas[clv] and in ‘the Area’ have only increased. Unlike the inner continental shelf of the EEZ, UNCLOS Article 82 which governs OCS exploitation expressly requires revenue-sharing.[clvi] “1 per cent of the value or volume of all production at the site after the first five years of production at that site increased by 1 per cent for each subsequent year until the twelfth year and shall remain at 7 per cent thereafter. States shall make payments or contributions in-kind through the International Seabed Authority to other States Parties of the Convention.”[clvii] And, to justify the imposition of such redistributive revenue raising mechanisms, the UNCLOS Secretariat, the UNEP, EU Member States and the environmental activist community have increasingly argued that the International Seabed Authority bears the sole responsibility, as trustee of the global commons and its living and nonliving resources, to preserve the marine environment from damage triggered by such activities.[clviii] [clix]

Apart from these more direct taxes and user fees, experts also recommended the imposition of an additional ‘Pigovian’ system[clx] of corrective user fees and taxes as preventative measures. Consistent with Europe’s hazard-based Precautionary Principle, they would be intended to ensure against potential ‘overuse’ of the global commons.

“In addition to mobilizing revenues, a variety of ‘Pigovian’ or corrective, taxes and user fees are desirable for the management and optimum development of ocean resources. Charging users for the cost (to other potential users) of using the global commons can prevent the overuse of what is wrongly perceived to be a free and inexhaustible resource. Specifically designed long-term or even quasi-perpetual leases on fisheries, for example, could provide an incentive for leaseholders to maintain, rather than deplete, the resource. And ‘permits to pollute’ could be sold at a price that would discourage polluters and at least equal the cost to society of the pollution” (emphasis added).[clxi]

Regarding the ultimate uses for which the collected funds would later be allocated and discharged, UN scholars previously cited the following: 1 “implementation of the rules and programmes of the Law of the Sea Convention”; 2 “the ecologically sound development of marine fisheries”; 3 “the exploitation of the resources of the deep ocean bed, e.g., by the Enterprise,[clxii] for the benefit of all mankind”; 4) “the prevention of marine pollution”; and 5) “further [oceans] research”.[clxiii] In the end, UN scholars were convinced that such financial measures “could be implemented within the existing international political framework by means of conventions, or multinational treaties.”[clxiv] In their estimation, “The establishment of a broad system of international taxation to fund these efforts seemed basically a question of time - elements of it [had then] already [been put] in[to] place.” [clxv] They then referred to the value-added tax regime that was already in practice within the European Community as the strongest precedent in favor of such an outcome.[clxvi]

It is also interesting to note that, during the 1990’s (i.e, during the two Clinton-Gore administrations), intergovernmental organizations such as the OECD had discounted the current economic costs of environmental protection relative to its future projected benefits. Arguably, this contributed to the belief that the imposition of environmental ‘user fees’ upon developed country industries to finance sustainable development would not place a drag on national economies.

“Although there is no adequate or universally applicable method for the comparison of the benefits and costs associated with the maintenance of a clean environment, the costs for such management seem, in most cases, to be below the total benefits derived from a clean environment. Environmental management costs could be met through a combination of financial sources and economic and fiscal measures, for example, by use of “user fees” (emphasis added). [clxvii]

In one report, for example, the OECD recommended levying user fees upon dischargers of effluents rather than issuing tradable discharge permits. It favored user fees because permits “do not take into account [that the] discharges from one...permitted source...location could be more harmful than those from another.” It also reasoned that user charges could be employed to discourage “people/organizations [from] moving certain residential, commercial or industrial activities to the coastal zone.”[clxviii] The OECD report did not seem too concerned with the economic costs of such initiatives which were believed to be, for the most part, ‘revenue-neutral’.

“All charges would contribute toward the cost of environmental management. Of course, some [economic] development would need to be prohibited outright as their impacts would be unacceptable.” [clxix]

The OECD report, furthermore appeared to take comfort in the fact that user fees have already been ‘successfully’ imposed in the tourism sector, which encouraged it to recommend that global user fees be expanded to other industries.

“Certain specific user fees are already collected. Tourist taxes are included in hotel and restaurant bills, and nautical taxes are collected from pleasure boats. To date, however, only a small fraction is set aside for environmental management. This approach could be expanded to the fees and taxes collected from the users of non-renewable, finite or scarce natural resources. For example, the imposition of a user fee on oil tankers and the like for the free use of the oceans as a transport facility may merit further consideration. The fee should then be used for oil monitoring and control of potentially polluting ships. Restructuring of ship charges, re: port fees, reception facilities, adequate salvage capacity, training, emergency preparedness and response, are all being examined by the Members of the International Maritime Organisation (IMO)” (emphasis added).[clxx]

In the end, this OECD report drew the following conclusion: that the automatic rather than discretionary nature of user fees, pollution charges, taxes, pricing policies, and fiscal incentives, when combined with appropriate environmental regulations, “provided a more effective vehicle” for financing global environmental protection than other fiscal or economic mechanisms. [clxxi]

During 2000, the NGO Steering Committee of the United Nations Committee on Sustainable Development (CSD) also engaged in strategy sessions concerning how to help secure new sources of UN funding. They focused on how they might enhance the international system of taxation for purposes of protecting the global environmental commons and achieving sustainable development.

“In an ideal world, we would all be concerned with the state of the global commons to create and sustain a livable world. New forms of resource generation including taxation and tax shifting are needed, which might be collected nationally but which would be available for collective use. In this regard, we must better access resources that are available for sustainable development. Many of these ideas relate to other global objectives; the recommendations here concentrate primarily on ways of raising money for sustainable development. Obviously, a new tax or revenue stream should be cheap, easy to collect, and difficult to evade. It should be neutral in its impact on market incentives and on income distribution unless it is deliberately designed (like tobacco taxation or progressive income tax, for example) to influence consumption or to redistribute wealth. Priority should be given to a tax which discourages inappropriate consumption, excessive control of resources, environmentally damaging activities and social inequities. Most of the ideas for global taxation fall into three groups. The first group consists of various forms of taxation on financial transactions. As short-term transactions have proven to have destabilizing effects not fostering sustainable development, the suggestions below should be endorsed at this CSD, with a concrete time frame for an international implementation. The second group tries to exploit a hitherto-untapped source of revenue which no nation-state already "owns". The most-discussed example of these "global commons" is deep-sea mineral mining outside territorial waters. The third consists of attempts to get sovereign states to dedicate some part of their present national tax base to global purposes, in the same way that the European Union has an automatic right to part of the yield of VAT in member countries” (emphasis added). [clxxii]

The CSD NGO Finance Caucus paper ultimately recommended 10 different possible sources of tax revenue: 1) Tobin-like taxes on financial transactions; 2) commodity trading taxes on fuels, etc.; 3) arms taxes; 4) airline taxes on international flights (which are presently being imposed in France to pay for HIV/AIDS treatment); 5) deep sea mining royalties; 6) satellite ‘parking’ charges; 7) international waters fishing charges; 8) international television & radio charges in OECD countries; 9) pollution charges; and 10) pollution permit trading taxes. [clxxiii]

Interestingly, an earlier draft version of this paper revealed the NGO community’s frustration with being unable to secure the creation of an international taxation regime through the UNCLOS for these purposes, and with the need to compromise to achieve some level of success.

“Recent attempts at global taxation (the best example is the Law of the Sea Convention) suggests that it will be very hard - but perhaps not impossible - to reach some compromise” (emphasis added).[clxxiv] In addition the draft reflected the NGO community’s belief in the power of wealth redistribution: “nation-states...should pay into international funds to do the things which are best done collectively; and the richer ones should subsidise the poorer countries.” [clxxv] The earlier draft also reflects a longer list of revenue sources (20) apparently “taken from Overseas Development Institute Briefing Paper and UNDP Human Development Report.” [clxxvi]

Lastly, a 2000 report issued by the German Advisory Council on Global Change (WBGU), an independent, scientific body established by the German federal government in 1992 (in preparation for the Rio Earth Summit) to analyze and report global environment and development problems,[clxxvii] discussed the need to solve the UN funding problem in order to address the growing ‘scarcity of marine resources’ arising, in part, from land-based sources of effluents.

“With regard to financing such measures the [German Advisory] Council advocates reviewing which uses of the marine environment might best contribute to underscoring the increasing scarcity of marine resources through the introduction of user charges. This particularly concerns deep-sea mining, whose importance is considered minimal at present, but will increase in the future...The oceans of the world are a common resource par excellence, even if the recent regime of Exclusive Economic Zones has in some ways led to property rights to resources being allocated or appropriated since the 1970s. There is still a need for action. The following forms of utilization require regulation: Use of resources on or in the seabed; use of fish stocks; use of the sea for transportation and for installations (such as drilling rigs); use of the sea for waste disposal. In all these cases there is a problem of financing. This is particularly relevant with regard to combating the pollution problem that is largely the result of river-borne substances entering the oceans of the world. This problem can only be combated by building purification plants in the catchment areas of major rivers and by modifying production processes and product systems. In places where industrial nations are responsible for river effluent one can assume that the riparian states have the necessary technical know-how and are also in a position to finance solutions to the problems themselves. The situation in developing countries, on the other hand, is quite different. There, both technology and financial transfers are needed. In these cases the first question that arises is how to raise the necessary funds for financing measures to reduce effluent in the developing countries. At the same time, there is the question of how funds can be used most efficiently in the countries concerned” (emphasis added). [clxxviii]

IV. Germany/France/EU Propose Environmental User Fees & Taxes to Finance UNEP Reforms Advancing UNCLOS CHM/Sustainable Development Objectives

As previously discussed, UN and European officials and scholars have long deemed necessary the designation of a global commons area and the creation of corresponding public property rights regime in the world’s oceans and atmosphere, i.e., a res communis. In their opinion, this would not only protect the global environment, but also serve as a source of future UN revenue to pay for the ambitious environmental, social and development projects and/or activities in which it engages. In addition, Part III.B of this paper previously reviewed the various types of financial mechanisms that the UN, as trustee/fiduciary for current and future human generations, could employ to achieve those goals. According to such persons, the UN could legally impose fees, taxes and other charges (‘rents’) on private parties and/or national governmental entities in exchange for granting them access to and/or use of those global public goods - common areas.

A number of the studies performed since the 1990’s carry forward and elaborate upon this UN/EU institutional thinking. Several of those reports even recommend specific EU regional and member state models for levying environmental user fees, environmental taxes and/or pollution credits. Curiously, they each seem to refer to these centralized governmental funding measures/mechanisms as market-based instruments.

Consistent with the UN and other studies already noted, a 2002 German Advisory Council (WBGC) report suggests that a broad strategy for imposing global user fees and/or taxes to protect ‘global public goods’ against overuse (GPGs) has long lain dormant at the UN and EU, and is now being dusted off for ‘prime time’.

“The concept of user charges and the issue of the additionality of new financial resources are also to be seen in connection with the current debate on global public goods (GPGs). The notion of GPGs has accompanied global environmental policy from the very outset. At the international environmental conferences of the 1980s and 1990s a number of declarations made reference to the common, but nationally differentiated responsibility of the community of states to preserve global environmental goods. Since the publication of the much-discussed work by UNDP [United Nations Development Program], the concept of GPGs has gained new impetus and is also playing an important role in the preparatory process for the UNFfD [United Nations International Conference on Financing for Development which previously took place during March 2002]. The UNDP study distinguishes between three categories of GPGs: 1. natural GPGs (e.g. the atmosphere); 2. human-made GPGs (e.g. knowledge); and 3. GPGs that are the outcome of political action (e.g. the stability of international financial markets)... The Council’s approach of levying user charges is limited to the natural global commons. The approach largely tallies with the understanding of natural GPGs developed in the UNDP study. The political challenge in managing natural global common resources is to agree rules at international level for preventing the overexploitation of these resources” (emphasis added). [clxxix]

A. Environmental User Fees

The German Advisory Council, for example, strongly favors UN resort to environmental ‘user fees’ to raise revenues and to ensure against overuse of, and thus harm to, the global air and ocean commons. They note how user fees provide an advantage over other charges because they require significantly less government involvement and practically no budgetary appropriations.

“International airspace and the high seas are natural global common goods for which property rights are insufficiently defined. The international community of states is therefore responsible for their conservation. Due to prevailing gaps in international regulatory regimes, they are overexploited and user-related environmental damage occurs. For instance, the CO2 emissions of international aviation and ocean shipping are not included in national emissions inventories and thus are not subject to the quantitative commitments of the Kyoto Protocol. This regulatory gap could be closed by levying user charges” (emphasis added).[clxxx]

“The Advisory Council recommends...levying utilisation fees for resources belonging to the global community, and stepping up integration of both private and public financing mechanisms....The linking of private market price mechanisms to the use of natural resources is in many instances the decisive factor in conscientious resource management. These mechanisms have their limits, however, due to the non-existence of property rights. Numerous natural assets – such as international air space, the high seas, or space – are ‘open-access’ resources and as such constitute resources belonging to the global community as a whole. Since it is impossible to put a price on such resources, only placing them within a common global trusteeship can prevent their overexploitation for exclusive use. In the Earth Funding system, the levying of user charges for the tapping of such global community resources provides an important alternative to appropriations from government budgets for financing global environment and development policy” (emphasis added). [clxxxi]

“In the Earth Funding system, the levying of user charges for the tapping of such global community resources provides an important alternative to contributions from government budgets for financing global environment and development policy” (emphasis added). [clxxxii]

According to the Council, user levies can be graded in accordance with environmental impact criteria so that a direct relationship is established between the use of the oceans and the charge to be paid. By providing ship-owners, deep-sea miners, aviators, etc. with a menu of charges based on their different uses of the oceans or atmosphere, they have multiple opportunities to reduce their environmental damage to the commons. Although their improved environmental behavior may not satisfy all environmental goals, considering also the effect of land-based sources of pollution/emissions, the fiscal function of the user charges still remains. In other words, the charges earned may be deployed to support shipyards and shipping companies in their efforts to meet more environmentally friendly standards. Alternatively, they may be disbursed to restore the marine environment damaged by the shipping activities.[clxxxiii] The Council report clearly sets forth a blueprint for a UN-administered global oceans and airspace user fee to be levied on all ships and aircraft that call at coastal state ports (including airports) in industrialized nations.[clxxxiv]

The German Advisory Council report also explains what environmental ‘user’ fees are in economic and behavioral terms.

“...The term ‘user charge’ is associated in economics, specifically in public finance, with a financing instrument that has the following characteristics: The use of a certain asset or right is linked to the payment of a sum of money; The charge is a payment for the conferral of the right; In contrast to the complete transferral of a right, use rights are viewed exclusively as a subset of property rights, i.e. the property rights are retained by the party that confers the right to use; Rights to use can be conferred to individuals, but also to groups and states... If this concept of user charges is transferred to global environmental problems, it is expedient to raise a charge for the use of global common goods. Through the payment that has to be made, users can perceive the scarcity of a good and the costs of its provision. User charges are to be understood as contributions to financing the provision of global common goods... The concept of user charges is thus distinct from taxation, which makes no direct connection between the payment of a tax and the service to be financed. The special feature of the concept of global user charges is that it can both induce incentive effects to reduce environmental pressure and mobilize additional financial resources to promote environment and development policy goals. The incentive effects are achieved by charging the users of a global common good for the use-related environmental costs” (emphasis added). [clxxxv]

“...[W]ithin the concept of user charges for environmental assets or natural resources, the fiscal effect is at least as important as the incentive purpose. The aim is not only to ensure via the economic incentive function that the production and consumption of environmentally harmful goods or services is kept to the societally desired level. Above and beyond this, the concept of user charges envisages that the state or global institutions retain the revenue generated and earmark it for measures to conserve or restore the quality of public goods such as the climate... The concept of user charges has strong links to environmental policy. Thus the rate of the charge should depend upon the use-related environmental damage and upon the financing required for its ‘repair’. By earmarking revenue for global environment and development policy measures, user charges also become a financing instrument for [supranational] global sustainability” (emphasis added). [clxxxvi]

“...User charges are one instrument within a broad range of possible financing instruments. Consequently, meeting the financing requirements of global sustainability policy beyond the areas discussed in the present report makes it necessary both to examine other novel financing instruments – including global taxes – and to strengthen existing sources of development finance such as ODA.” [clxxxvii]

Also, the German Ecologic Institute for International and European Environmental Policy (Ecologic) issued a report in 2005 that reflects its belief in the power of user fees to prevent global public environmental goods from being irreparably over-used.[clxxxviii]

“International airspace and international waters constitute global common environmental goods, the use and consumption of which does not fall under the jurisdiction of any national sovereign body. These goods are over-used because the laws governing access to them are under-developed. Increasingly, two environmentally-intensive forms of use – namely the airline and shipping industries – account for a significant proportion of such exploitation... Aviation constitutes the fasting growing source of greenhouse gas emissions. As for the latter, increased international shipping is causing considerable environmental damage through the exchange of ballast water plus contamination caused by the discharge of waste water, sundry waste and other pollutants. Moreover, both industries emit air pollutants, in particular sulphur dioxide and nitrous oxides, both of which are known to cause subsequent adverse effects, including, for instance, acid rain.” [clxxxix]

While the report’s authors prefer, on public (economic) efficiency grounds, the imposition of global airline and shipping ‘user’ fees over ‘taxes’ and conventional ‘command and control’ measures to promote more environmentally friendly modes of global transportation, they reluctantly admit that the use of such ‘enlightened’ mechanisms may have negative economic and social repercussions.

“[T]he conventional “command and control” approach to tackling environmental problems has not proven fully effective at surmounting the user problems associated with aviation and shipping. For this reason, user fees – broadly speaking, charges imposed on the use of international airspace and waters – have been proposed at the national, European and international levels. By introducing a duty to compensate the consequences of such use financially, the environmental costs associated with aviation and shipping could be allocated to the respective users of those forms of transportation, and, thereby, factored into the price of the activities. Such a system of user charges would introduce economic incentives as well as generate revenue. On the one hand, in rendering the affected transportation and airline companies economically less advantageous, user charges create incentives to switch to more environmentally friendly modes of transport or to eschew transportation altogether” (emphasis added).[cxc]

Yet, this has not prevented them from trying to conceive of the most ‘perfect’ (synchronous and balanced) design for environmental user fees that can satisfy European Community legal and policy goals.

“Depending on their design, user charges levied on global environmental goods can be based on a variety of provisions in the Community primary law. Generally, product-based user charges can be based on Article 93 of the Treaty Establishing the European Community (EC Treaty), requiring a unanimous decision by the European Council, since they are relevant to the European Common Market – to the extent they are designed to harmonise indirect taxes – whereas other conceivable forms of user charges centred on environmental policy will generally be based on Article 175 of the EC Treaty. As a rule, however, user charges will have their substantive focus in the area of environmental policy and thus be based Article 175 EC Treaty. If the user charge is designed as a fee imposed on a service or benefit rendered, the prerequisites for applying Paragraph 2 of Article 175 will not usually be fulfilled and Paragraph 1 of Article 175 EC Treaty (co–decision procedure) be the correct legal basis. Paragraph 1 of Article 71 of the European Union Treaty may provide a possible legal basis where an inseparable link between a particular user charge and the conceptual aims of Community transport policy exists” (emphasis added).[cxci]

Consequently, the world can now see how the European Union, inspired by the new monism of environmentalism led by an enlightened Germany and France, intends to utilize a newly reformed UNEP, and/or a newly created United Nations Environmental Organization and strict regulatory enforcement of the UNCLOS, to establish a supranational global governance toll-way to levy charges against American shipping and aviation companies for their ‘use’ of the oceans, the air above and the seabed below, which may never be used as intended.

The observations of two American commentators, in this regard, should not be ignored. They warn how a user fee may be quickly transformed, behind closed doors, into a tax. This occurs if the monies are used to pay for something other than the service being used. [cxcii]

“When someone chooses to use a government service and must pay for it, he's paying a user fee. Furthermore, what he pays should cover the cost of the service he's receiving; if it also pays for something he isn't getting or doesn't want, then he's paying both a user fee and a tax. Taxes differ from user fees in that paying them isn't a matter of choice and what you pay is not tied to what you get” (emphasis added). [cxciii]

“Politicians and bureaucrats are notorious for manufacturing euphemisms—clever but deceptive substitutes for what they really mean but don’t want to admit. That’s how the phrase ‘revenue enhancement’ entered the vocabulary. Some of our courageous friends in government couldn’t bring themselves to say ‘tax hike.’ At all levels of government, a bipartisan effort to impose new or higher taxes and mislabel them as seemingly less onerous “user fees” provides another example. Sometimes, a user fee is indeed a user fee. Other times, it’s not that at all. Instead, it’s a tax hike disguised by a misnomer” (emphasis added). [cxciv]

Hence, Americans should be leery about this user fee/taxation dichotomy and alert to the real possibility that when UN and EU officials speak officially about user fees they may actually be referring to hidden UN sustainable development global oceans and atmosphere taxes!

B. Environmental Direct and Indirect Taxes

The 2002 German Advisory Council’s report noted previously also recognized how individual-based environmental user fees could be confused with more societal-wide Pigouvian taxes that endeavor to internalize all negative environmental (pollution) effects. According to the report, the latter are less concerned with specific behaviors and less revenue-driven than the former.

“The concept of user charges needs to be distinguished clearly from approaches in welfare economics to internalize external effects, for instance through a ‘Pigouvian tax’. Such internalization approaches seek – in highly simplified terms – to impose a charge (e.g. by taxation) upon the production or use of these resources with the aim of integrating all social costs into the cost calculation of producers or users. The aim is thus to bring about a level of use or pollution that is optimal in terms of welfare economics, the transgression of which would cause society more damage (e.g. poorer air quality) than benefit (e.g. additional income). Internalization in the narrower sense generates state revenue, but this is considered as no more than an unintended side effect by environmental economics and should ideally – in the view of economic allocation theory – even be returned to taxpayers on a per-capita basis. To sum up: The neoclassical internalization concept is all about creating an incentive effect, while the fiscal effect is regarded unimportant if not undesired.” [cxcv]

Other commentators have described the intent behind Pigouvian taxes more directly:

“Pigouvian taxes are designed to correct what economists call ‘market failures’ or ‘negative externalities’ that impose spillover costs on society.” [cxcvi] Notwithstanding these innocuous characterizations of a Pigouvian tax as an instrument concerned with other than specific behaviors, it is arguable nevertheless, that specific behavior modification is precisely its goal! In fact, such taxes strongly resemble what were previously referred to within the United States during the prohibition era as ‘sin’ or ‘sumptuary’ taxes.[cxcvii]

“The term sumptuary taxation has gone out of fashion. An earlier generation of writers used the term to categorize taxes imposed for moral or religious reasons. Contemporary economists would describe a tax intended to discourage consumption of a specific commodity as adjusting for a negative externality. Politicians and journalists might use the term ‘sin taxes’... Both advocates of externality-adjusting excise taxes and advocates of sumptuary taxes would agree that the revenue generated by the tax is not a primary objective. Similarly, they would agree that the distribution of either tax among taxpayers classified by income or consumption levels is largely irrelevant. For both, the object of the tax is to get the gross-of-tax price ‘right’...Sumptuary taxes set "too high" verge upon prohibition through the tax system rather than by regulation. Because the social costs of prohibition can be significant-for example, the costs of controlling smuggling and illicit domestic production and distribution-a sumptuary tax rate that is in some sense optimal is not a rate that minimizes consumption.” [cxcviii]

The problem with these kinds of taxes is that it is quite challenging to compile data and estimate the social costs that such taxes are intended to offset, which may vary widely. Also, should policymakers overestimate the cost of externalities and implement an excessive Pigouvian environmental tax, the level of total social welfare loss could be significant, let alone, difficult to determine.[cxcix]

While the rationale behind Pigouvian taxes might not appeal to many Americans, including policymakers, it is completely in line with Brussels and EU member state thinking. “It is increasingly clear...that [European] countries are recognizing the power of tax restructuring to reach environmental goals.”[cc] Germany, United Kingdom, The Netherlands, Finland and Sweden, for example, are rethinking the ways in which to ‘legitimately’ tax, on a national and regional level, the ambient air and water that we all use to survive and prosper – i.e. the ‘commons’.

European government enthusiasm for environmental sustainable development taxation was recently on display during a March 2007 Tax Forum convened in Brussels, Belgium. According to Jan Kees de Jager, the Dutch State Secretary for Finance, The Netherlands are quite experienced in the ‘art’ of using environmental taxation to achieve social policy goals.

“We led the way in Europe in introducing a tax on electricity and natural gas, and we levy various other environmental taxes. Eleven per cent of total tax revenue can now be said to be ‘green’. A large part of this revenue comes from excise duties on fuels, car taxes and tax on electricity and natural gas. We also have a number of other environmental taxes: taxes on groundwater, mains water and the dumping of waste. My government wants to do more. So we will be introducing taxes on air traffic. And, also on packaging materials. We will also be raising excise duties on fuels and stepping up the environmental differentiation of car taxes. As a general principle, the new government wants to build environmental cost into market prices. Taxation is one way of doing this...[T]axation as an instrument to promote a more sustainable society is firmly on the European agenda – as underlined by this Tax Forum. Given that Europe’s economies are increasingly interconnected, it is important that we act together on this issue.” [cci]

Another commentator, the EU Commissioner for Taxation and Customs Union,[ccii] opined that environmental taxes (which include energy, transport and pollution/resource taxes)[cciii] are needed to correct for the failure of markets to address the global environmental crisis resulting from humankind’s over-use of public environmental goods.

“The main threats to the long-term sustainability of our civilisation are energy and climate change. I would like to recall that less than two weeks ago the Heads of State and Government of the 27 EU Member States endorsed a very ambitious plan for an EU integrated climate change and energy agenda. Taxation is one of the instruments that come into play in this context. The need to enhance the sustainability of our economies arises from the failure of market forces to address properly the entire costs and benefits of certain activities. Since they are not reflected in the market price we do not take account of them in our consumer and production decisions. The best way to correct this kind of market failure is to use market based instruments. Taxation is a traditional and well known tool of this kind...[This is] the tax policy strategy of the European Commission and furthermore [hopefully] it will promote the cooperation between the European Union and other international players who face the same global challenges” (emphasis added).[cciv]

This speaker’s endorsement of environmental taxation is not surprising given his political background and market inexperience. He previously served as a “Deputy Head of the Department for International Relations, Hungarian Socialist Workers’ Party”, the Head of the Parliamentary Faction of the Hungarian Socialist Party, Co-Chairman of the Central and East European Committee of the Socialist International, Vice Chairman of the Socialist International, and Chairman of the Hungarian Socialist Party.[ccv] Also, his view that taxation constitutes a traditional and well known market-based instrument (‘MBI’) used to correct market failures is shared by the European Commission – indeed, it is its official position! As the Commission’s recently issued ‘Green Paper’ on market-based instruments for environmental purposes reflects, [ccvi] environmental taxes, user fees, pollution credits and other charges are all deemed market-based mechanisms that may be employed to correct market failures!

“Market failure refers to a situation in which markets are either entirely lacking (e.g. environmental assets having the nature of public goods) or do not sufficiently account for the ‘true’ or social cost of economic activity. Public intervention is then justified to correct these failures and, unlike regulatory or administrative approaches, MBIs have the advantage of using market signals to address the market failures...At the EU level, the most commonly used market-based instruments are taxes, charges and tradable permit systems. [ccvii]

Notwithstanding the rah-rah tenor of this forum, however, what is most likely driving this renewed EU governmental interest in environmental taxes is a simple regional revenue shortfall. In other words, the ‘green’ governments of Europe have been unable to escape the fact that they must continue to pay for their ambitious utopian projects which tend to be other than revenue-neutral.[ccviii] [ccix] A description of these initiatives, through which centralized EU governmental institutions seek to reshape human conduct via culture, education and legislation,[ccx] [ccxi] follows:

“The role of taxation in sustainable development covers many aspects. The most commonly discussed ones are the use of taxes or tax incentives designed to encourage or discourage specific behaviour that affect economic, environmental or social sustainability. However, there is a more fundamental, although less often advocated, dimension to this issue. Taxation is essential to sustainable development in that it provides governments with the necessary finance to effectively implement development policies. Objectives in terms of improving infrastructures, education, health, or environmental protection, cannot be achieved at no cost” emphasis added). [ccxii]

“The EU is a leading force in the world in taking action on environmental sustainability and, in particular, on climate change. This has been confirmed recently through the adoption of the energy and climate policy package1 as endorsed by the Spring European Council in which the EU repeated its commitment to addressing climate change internally and on an international scale, to promoting environmental sustainability, to reducing dependence on external resources and to ensuring the competitiveness of European economies. In addition, halting loss of biodiversity, preserving natural resources that are under pressure and protecting public health also require urgent action. Without public intervention and the strong commitment of all actors, these ambitious objectives cannot be reached” (emphasis added).[ccxiii]

“As well as discouraging environmentally damaging behaviour through taxation, Member States may also use fiscal incentives such as subsidies to encourage green behaviour, facilitate innovation, research and development, provided that public resources are first generated in some other way (e.g. by taxing environmentally damaging behaviour) or that spending is reduced (e.g. by removing environmentally harmful subsidies). This approach is particularly relevant in the context of the ambitious objectives of the climate and energy agenda of the EU, notably to achieve the reduction of greenhouse gas emissions by at least 20% by 2020, the binding target of 20% renewables of energy production by 2020, and the target of 10% biofuels” (emphasis added). [ccxiv]

It is no wonder then that the Dutch Secretary for Finance actually declared in his introductory remarks that, “It is a pleasure for me to speak to you today on a subject that is close to my heart, using tax as a means to promote a more sustainable society” (emphasis added).[ccxv]

According to a recently issued 2007 Eurostat report,

“The introduction of environmental tax reforms gained increasing support during the 1990s. The basic idea was that an increase in environmental taxes constituted an attractive instrument to not only reduce the damage wrought by human activities to the environment, but also to achieve another objective, that of reducing taxes on labour, which has proven elusive. At the same time, care had to be taken to protect producers from any negative effect on competitiveness arising from increases in the cost of inputs, most particularly energy. Offsetting these cost increases is usually possible and has indeed been a key feature of the 'green' tax reforms that many Member States have introduced over the last decade. Among others, Denmark, Germany, Italy, the Netherlands, Austria, Sweden, Finland and the UK have introduced elements of environmental taxation. Some new Member states, too, have followed suit; one example is Hungary, where a law introducing a new environmental tax entered into force already in September 1995... Despite this interest, environmental tax revenues have not been growing significantly in recent years, at least in the old Member States. [ccxvi]

At this juncture, US policymakers are cautioned to take note of what European policymakers have already discovered - namely, that a temporary increase in environmental taxes collected incident to triggering reforms in industry and consumer behavior that yield greater environmental protection may likely result in lower environmental tax revenues over the longer term.

“[I]f green taxes act as an efficient disincentive, they will over time reduce the recourse to environmentally harmful goods and thereby erode the tax base, leading to a gradual fall in revenue. In addition, if tax breaks on environmentally friendly products or processes are granted, the same objective -protecting the environment- results in lower tax revenues. In either case we would witness a falling tax-to-GDP ratio for environmental taxes despite an increase in environmental protection” (emphasis added). [ccxvii]

Nevertheless, this finding has not dampened EU government interest in searching for ways in which to use environmental taxes to shift the EU revenue burden from taxes on labor to taxes on industry and other sources of environmentally damaging economic activities – all to achieve environment-centric sustainable development.

“The EU is strongly committed towards ensuring environmentally sustainable development as well as promoting the Growth and Jobs agenda. An environmental tax reform (ETR) shifting the tax burden from welfare-negative taxes, (e.g. on labour), to welfare-positive taxes, (e.g. on environmentally damaging activities, such as resource use or pollution) can be a win-win option to address both environmental and employment issues18. At the same time, a long term tax shift will require relatively stable revenues from the environment related tax base.” [ccxviii]

Therefore, in addition to imposing strict national and regional behavior-changing environmental regulations, governments will likely need to rely on economic policy instruments other than environmental taxes, such as ‘user fees and pollution credits, the revenues from which are not ‘booked’ as tax revenues. This way, they can achieve their stated environmental protection objectives without arousing public suspicion about the true cost of doing so.[ccxix] This recognition was likely behind the prior recommendations contained within the European Community’s 2003 6th Environmental Action Programme to broaden environmental policy instruments beyond environmental legislation and taxation.[ccxx] And, such revenues will likely need to be raised at the global as well as the national and regional levels, as a matter of equity, and in order to ‘level the global economic playing field’, via the expanding multilateral environmental regulatory treaty network with the UNCLOS at its center.

If the recent UN meeting convened in Bali Indonesia to discuss a post-2012 successor to the Kyoto Protocol is any indication, it would appear that oceans (UNCLOS) and atmosphere (Kyoto/UNFCCC) environmental policy at the international and domestic levels has now been firmly joined. And it is likely to result in some combination of new Precautionary Principle based regulations, environmental taxes and/or user fees.[ccxxi]

A multilateral (global) rather than a purely European regional approach to environmental taxation, especially with respect to carbon-emitting goods entering into the EU from non-European nations, would not only further the EU and UN sustainable development programs and reduce the costs to EU regional industries, but would also help the EU to avoid legal challenges at the WTO.[ccxxii] Apparently, the proposed EU carbon tax plan had caused a split among EU member states during 2008, with former EU Trade Commissioner Peter Mandelson calling the proposed EU carbon emission tax ‘dead’, while EU Environment Commissioner Stavros Dimas saying it was still being debated.[ccxxiii]

During May 2009, the Government of Denmark floated the use of a global carbon tax, modeled after the EU aviation carbon tax, at the International Maritime Organization (IMO)’s Marine Environment Protection Committee (MEPC’s) 59th sessional meeting. The Danish proposal, which targeted the shipping industry, was described as “amount[ing] to the world’s first universal tax – a maritime greenhouse gas tax on bunker fuel”. [ccxxiv]

“The ambitious proposal, to be discussed at MEPC 59 in July, would entail a new convention and the establishment of a fund administrator, who would control billions of dollars. The proposal is part of an attempt to create a worldwide scheme for shipping, thereby avoiding the need for regional schemes, such as the one the aviation sector is facing in the European Union. Details of the proposal include an obligation on all ships to buy fuel at a registered bunker fuel supplier. All bunker fuel suppliers would undergo ‘mandatory registration’ and would have to ‘collect and transfer greenhouse gas contributions to the International GHG fund administrator’. The fund manager would allocate revenues for ‘mitigation and adaptation activities in developing countries’.

…Money should also be targeted at research and development projects for efficient ship design. ‘The International GHG Fund provides a simple mechanism that will result in significant reductions in global GHG emissions primarily by funding mitigation and adaptation activities,’ the proposal said.The fund is not, technically speaking, a tax on shipping, because the money collected ‘would by nature cater for offsetting some of the negative effects of international shipping on the climate by allocating revenues to specific international purposes with a view to addressing climate change’ and would not pass through national finance ministries.” [ccxxv]

Although the Denmark proposal was subsequently discussed at some length during the December 2009 Copenhagen Climate Change Conference, no action was taken on it.

“A UN tax on shipping was discussed at some length but did not materialise. During negotiations, the taxation of maritime bunkers in general became a bargaining point for achieving a climate deal. This issue is now of great concern to the shipping industry as it would not mean offsetting, as with a Compensation Fund in IMO, but a regular tax on all bunkers consumed by ships. Such a tax would generate revenue that in practice could buy enough allowances to claim that shipping was carbon neutral if the revenue was used on offsetting and not on the general financial needs of governments. No targets were decided but some ideas were discussed regarding shipping. The only concrete figure presented was apparently the EU proposal for shipping to reduce GHG emissions by 20% in 2020, with 2005 as base year.” [ccxxvi]

Since then, the Government of the United Kingdom has taken up the cause of indirectly taxing the shipping industry for polluting the global air and oceans commons. It recently called for the extension of the EU emissions trading regime to the global shipping industry were the IMO to fail in enacting its own international rules to address ship-based GHGs.

“Progress within the IMO on tackling rising shipping GHG emissions has been slow in the 13 years since the signing of the Kyoto Protocol. The main sticking point appears to be disagreement between developing countries (notably Brazil, India, China and South Africa) and the developed world (lead by the likes of the UK, Germany, France, Belgium, Sweden and Norway) over whether emissions reduction targets and market based instruments – as advocated by the protocol and including emissions trading – are appropriate solutions…In July 2009, the Marine Environment Protection Committee (MEPC), the environmental policy decision-making body of the IMO, agreed on a workplan for discussion on the applicability of market based instruments to reducing global shipping emissions. This could lead to the production of a strategy report for cutting GHG emissions by 2011, including identification of possible future steps. Because the IMO process will not deliver an agreed solution for a number of years, it is understood that a number of interim and voluntary technical and operational measures to reduce GHG emissions are being trialled.”

…It is more likely that the EU will take action. The revised EU emission trading system (EU ETS) Directive requires the European Commission to consider the inclusion of shipping in the scheme from 2013 if the IMO process is not complete by 2012. Although this could potentially address only emissions from ships arriving at or departing from EU ports, approximately 31 per cent of global shipping emissions1 could be covered (6.1 per cent of total EU 27 GHG emissions). The new climate change commissioner, Connie Hedegaard, has indicated her willingness to tackle the problem if the IMO process does not deliver in time, while European Commission president, Jose Manuel Barroso has suggested that 'decarbonising' the transport sector is a priority for his second term in office. A report prepared for the European Commission by environmental consultancy CE Delft and published in mid-February examined four policy options and came out in favour of including shipping emissions in the EU ETS in preference to the other options (carbon taxation, efficiency standards or a baseline credit system).” [ccxxvii]

The UK initiative followed up the previous efforts of Norway, Germany and France, whose governments had previously submitted an emissions trading - ETS – proposal at the IMO[ccxxviii] that was later considered during the December 2009 Copenhagen Climate Change Conference.

As of the 60th sessional meeting convened by the IMO’s Marine Environment Protection Committee during March 2010, the IMO was still considering “the proposed mandatory application of technical and operational measures designed to regulate and reduce emissions of greenhouse gases (GHGs) from international shipping.”[ccxxix] Apparently, the IMO MEPC’s slow movement to adopt a particular initiative was triggered, in part, by the World Shipping Council (WSC)’s introduction, during the MEPC’s January 2010 59th sessional meetings of popular “proposals that seek to focus on and reward vessel efficiency…[wherein] the ship owner or operator can choose the action or actions that are most appropriate for meeting the standards articulated in the agreement”.[ccxxx] The WSC’s proposal echoed a prior proposal of the U.S. and Japanese Governments,[ccxxxi] which “suggest[ed] using an efficiency index standard and allowing the trade of efficiency credits to meet those standards”.[ccxxxii] Arguably, as the result of the evolving competition between these three (shipping carbon tax/shipping ETS regime/vessel energy efficiency design index) proposals, the MEPC had managed to prepare only a “draft text 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” by the time of the March 2010 60th sessional meeting.[ccxxxiii]

A review of the viability and enforceability of a global commons oceans/atmosphere greenhouse gas emissions tax was recently undertaken by the nonprofit U.S. Florida-based Center for Tankship Excellence, which compared and contrasted all three of the proposals discussed above: a) a carbon based bunkers tax; b) a cap and trade regime under the name, Emission Trading System (ETS) for International Shipping; and c) mandated “energy efficiency” referred to as Energy Efficiency Design Index (EEDI). It found both the EEDI and ETS approaches to be deeply flawed.

“[T]he EEDI approach would not only be a horribly inefficient (high resource cost) means of reducing CO2 emissions, but extremely dangerous in terms of safety and oil pollution. EEDI would be a major step in the wrong direction…A more fuel efficient, far, far safer twin screw ship will have a higher EEDI than an equivalent single screw ship. Mandating an EEDI will effectively outlaw twin screw. EEDI will also have a pernicious effect on structural strength. For most ship types, the Capacity term in the EEDI denominator is deadweight. By reducing lightweight, that is by reducing structural steel, a designer can increase deadweight without increasing displacement or reducing trial speed and thereby generate a lower EEDI. But once again we are dealing with a fleet in which structural margins have been pared to nothing, a fleet in which fatigue cracking is endemic, a fleet with very low corrosion margins.

… Efficiency is not a priority…[E]missions reductions scheme costs society three or four times as much as another for the same level reduction…Permit allocation offers opportunities to buy votes and trade favors…An allocation of permits is a windfall for the permitee, found money stolen from the public… Promoters expect to benefit…[B]ehind the scenes, the classification societies, IMO employees, and flag state registry services have been actively promoting ETS. ETS will require all sorts of audits and inspections and checks. The classification societies and related regulatory bodies see this as an immense expansion in their business, as it indeed will be. Some of the classification societies are already in the carbon auditing business…Precise Emissions Reduction. With cap-and-trade, the benefit is out front and the cost is hidden…With a cap-and-trade system, the headline is ‘ETS will reduce carbon emissions 23.5%’. Nobody knows what the costs will be, and they often go unmentioned. MEPC 60/4/22 calls this precise emissions reduction although in fact there is nothing precise about it…A distressing feature of the Norwegian shipping ETS is that there is essentially no relationship between the people who will vote the system in and the people who will pay the cost: the planet’s producers and consumers. The shipping ETS will be voted on by IMO rules. Under IMO rules, the voting is by flag state, with each flag state’s voting power based on the size of its fleet. In other words, the people who vote the system in will be predominately flag of convenience politicians: Panamanians, Liberians, Marshall Islanders, etc, some elected, some not. In either case, they are totally out of the control of the people who will pay for the inefficiencies… In the ship focused, ETS proposed by MEPC 60/4/22, the prime enforcer is the flag state. Most of the largest flag states are known more for their marketing prowess than enforcement. The EU and Australia have not been able to enforce a workable cap-and-trade. MEPC 60/4/22 relies mainly on flags of convenience to enforce this complex system. Many of these countries can’t even administer their own registry programs, hiring third parties to do the job…While the ETS alternative is far superior to EEDI, a carbon based bunkers tax would be much more efficient, more effective, more comprehensive, and far easier to administer…” [ccxxxiv]

Furthermore, it sets forth the outlines of the ‘ideal’ international bunker fuel carbon tax which it characterizes as an upstream production/‘export’ carbon content fuels tax eligible for downstream rebates that can be administered by national governments at the country level independent of IMO involvement.[ccxxxv] The outlines of the ‘ideal’ bunker fuel carbon tax, which would apply to ALL industries including international shipping, are as follows:

“By far the most attractive market based measure is a bunkers tax based on carbon content…In the ideal system each country’s tax would be collected as far upstream as possible. For domestic production, this will be at the well-head or the mine mouth. For imports, it will be at the point of entry. The tax would be charged on the carbon content of all fossil fuel produced/imported without exception…Taxing at the point of production or importation is administratively very attractive…However, taxing this far upstream requires a system of rebates to handle non-fuel use, carbon sequestration and removal, and exports…Chemical plants and other non-fuel consumers will have to apply for rebates by documenting that the fuel they bought were used for non-fuel purposes…Fuel consumers who are large enough to remove and sequester CO2 will be large enough to document the amount of carbon sequestered, and then would apply for rebates. Plants that produce hydrogen from fossil fuel and sequester the carbon. would also apply for rebates on the basis of the amount of carbon sequestered…Any operation which removes and sequesters atmospheric CO2 should receive the same “rebate” as any other sequestration operation…The tax would be rebated to exported fossil fuel…1. [to] [a]void double taxation in the highly desirable event that the importing country adopts a similar system...[and to] [k]eep the revenues from the tax inside the country that actually consumes the fuel…This…allows a country to impose the tax unilaterally. There is no need for any international agreements… For the purpose of the ideal tax, international bunkers would be treated as exports…A very important feature of the ideal tax is that each country can implement it independently…The fuel is imported when it is loaded on to the ship…The bunker supplier will want to claim as high a rebate as possible. The importing shipowner will want to pay as small an import tax as possible. There is no way they can mutually benefit by understating the amount loaded. Also the bunker supplier has no motivation to claim to be selling to domestic shipping when in fact he is not. That would cost him his rebate. In fact, his motivation is just the opposite, to falsely claim that he is exporting when in fact the fuel will be used domestically…If the exporting country has not enacted an ideal tax, then [the] bunker tax is playing the role of a carbon content import duty…The prime enforcer of a bunkers tax is the country where the ship bunkers” (emphasis in original).[ccxxxvi]

________________________________

ENDNOTES

[i] 1972 is the year of the United Nations Conference on the Human Environment, which took place in Stockholm, Sweden. “It considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.” And, it called upon Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity”, by fulfilling 26 principles. Pursuant to Principle 7, “States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.” See “Declaration of the United Nations Conference on the Human Environment”, United Nations Environment Program website at: http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503 .

[ii] 1992 is the year of United Nations Conference on Environment and Development (UNCED), otherwise known as the ‘Earth Summit’, which took place in Rio de Janeiro, Brazil. It continues to be described as the most important indication of a worldwide paradigm shift with respect to the environment. was the United Nations Conference on Environment and Development (“UNCED”). The Earth Summit, among other things, produced the Rio Declaration on Environment and Development (hereinafter referred to as “the Rio Declaration”), a non-binding set of broad principles set forth in the form of declarations, that helped to create international environmental norms and expectations. It also produced a non-binding agreement called ‘Agenda 21’, which is a global plan of action for more sustainable societies. The UNFCCC, as well, was opened for signature at the Earth Summit, although it was negotiated independently of the UNCED during the same period of time. Rio Principle 15 is understood to have articulated the facts and circumstances, scientific risk assessment and economic cost benefit analysis-based Precautionary Approach as opposed to the broader and more sweeping hazard-based European Precautionary Principle.

[iii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements”, UNEP/IGM/1/INF/3 (April 6, 2001), presented at the MEETING OF THE OPEN-ENDED INTERGOVERNMENTAL GROUP OF MINISTERS OR THEIR REPRESENTATIVES ON INTERNATIONAL ENVIRONMENTAL GOVERNANCE (April 18, 2001) at pars. 9-11, at: http://www.ramsar.org/key_unep_governance1.htm . See also Linda Nowlan and Chris Rolfe, “Kyoto, POPS and Straddling Stocks: Understanding Environmental Treaties” West Coast Environmental Law (Jan. 2003) at p. 16 at: http://www.wcel.org/wcelpub/2003/13929.pdf .

[iv] “The scope of the biodiversity-related conventions ranges from the conservation of individual species (CITES and the Lusaka Agreement) via conservation of species, their migration routes and their habitats (CMS, AEWA, EUROBATS, ASCOBANS, ACCOBAMS and various MOUs) to the protection of ecosystems (CBD, the Ramsar Convention, the World Heritage Convention and the International Coral Reef Initiative--ICRI).” See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, - Status of Multilateral Environmental Agreements”,supra., at par. 18.

[v] “The Vienna Convention on the Protection of the Ozone Layer and its Montreal Protocol on Substances that Deplete the Ozone Layer and the United Nations Framework Convention on Climate Change and its Kyoto Protocol are closely associated in protecting the environment by eliminating or stabilizing anthropogenic emissions that threaten to interfere with the atmosphere.” Id., at par. 19.

[vi] “This cluster is comprised of only one major global convention. As stated in the text, the main objective of the UNCCD (“United Nations Convention to Combat Desertification”) is to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa. This objective is to be achieved through effective action at all levels, supported by international cooperation and partnership arrangements, in the framework of an integrated approach which is consistent with Agenda 21, with a view to contributing to the achievement of sustainable development in affected areas.” Id., at par. 20.

[vii] “The overarching objective of the chemicals and hazardous wastes conventions is the protection of human health and the environment from pollution by specific chemicals and hazardous substances. In the case of the Rotterdam Convention, it specifically addresses certain banned or severely restricted chemicals, as well as severely hazardous pesticide formulations, subject to international trade. The Stockholm Convention has as its priorities the phasing out of an initial list of 9 chemicals, the restriction to certain acceptable purposes the production and use of DDT, and the reduction or elimination of unintentionally produced chemicals (dioxin and furans). The Convention also has provisions to add further POPs to the treaty, and will require parties with new chemical programmes to prevent the introduction of new POPs onto the marketplace. The scope of the Basel Convention covers a broad range of hazardous wastes, including chemical wastes, subject to transboundary movements, aiming to reduce these movements to a minimum by minimizing the quantity and hazardousness of the wastes generated and by promoting the treatment and disposal of hazardous wastes and other wastes as close as possible to their source of generation. These global MEAs are complimented by regional agreements such as the Bamako Convention and the Waigani Convention, as well as the Protocol to the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources.” Id., at par. 21.

[viii] There is a strong interrelationship between the global mosaic of regional seas conventions and actions plans, the chemicals-related conventions, and the biodiversity-related conventions. “By far the largest cluster of MEAs, the 17 regional seas conventions and action plans are a global mosaic of agreements with one over-arching objective: the protection and sustainable use of marine and coastal resources...The Barcelona Convention (1976), the oldest of these agreements, fostered the establishment of the Mediterranean Commission for Sustainable Development which is serviced by the Secretariat of the Convention. Also included in this cluster are the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA) and the International Coral Reef Initiative (ICRI) which were both adopted in 1995... From a substantive point of view, the GPA is closely related to the chemicals-related conventions on issues such as agrochemicals, persistent organic pollutants and heavy metals. Likewise, the work of ICRI is closely associated with the biodiversity-related conventions, specifically CBD, CITES and Ramsar.” Id., at pars. 22 and 23. See in particular, “Table 1 - Core Environmental Conventions and Related Agreements of Global Significance”.

[ix] Id. at par. 14.

[x] “Major MEAs can be divided into two groups: first generation and second generation. First generation MEAs focus on issues such as air and water pollution, wildlife conservation, and protection of vulnerable habitat. Pivotal first generation treaties include MARPOL 73/78; the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972); the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973); and the Ramsar Convention on Wetlands (1971). Second generation MEAs involve even more complex issues that implicate economic behavior and lifestyles at a multiplicity of levels. Pivotal second generation treaties include the Vienna Convention for the Protection of the Ozone Layer (1985), and subsequent Protocols (in particular the Montréal Protocol (1987) and London Amendment thereto (1990)); the United Nations Framework Convention on Climate Change (FCCC) (1992) and Kyoto Protocol (1997); the Convention on Biological Diversity (CBD) (1992); the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989); and the United Nations Convention to Combat Desertification (CCD) (1994). Another major MEA is the United Nations Convention on the Law of the Sea (UNCLOS) (1982) which, although not primarily concerned with environmental issues, addresses pollution and protection of the marine environment” (emphasis added). See Mark Drumbl, “Actors and Law-Making in International Environmental Law”, at p. 18, RESEARCH HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW, Ong & Fitzmaurice, eds., Edward Elgar Publishing, 2007 Available at SSRN: http://ssrn.com/abstract=1022363 .

[xi] See Linda Nowlan and Chris Rolfe, “Kyoto, POPS and Straddling Stocks: Understanding Environmental Treaties”, supra at at p. 16, citing Mostafa Tolba and Iwona Rummel-Bulska, Negotiating the Environment, (Boston: MIT Press), 1999 (“the memoirs of the longest serving Executive Secretary of UNEP, documenting this period of MEA development”). Id., at fn 12.

[xii] This illustration is an extract of “Table 4 - Global Conventions Relevant to the Environment, including Regional Conventions of Global Significance”, found within “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Executive Summary UNEP/IGM/1/INF/3 (April 6, 2001).

[xiii] See “German Advisory Council on Global Change – Mission”, at: http://www.wbgu.de/wbgu_auftrag_en.html .

[xiv] See “The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) at: http://www.imo.org/Conventions/mainframe.asp?topic_id=255 .

[xv] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publications Ltd. © 2000) Figure B 3.2-1 at p. 55, at: http://www.wbgu.de/wbgu_jg2000_engl.pdf ; http://www.wbgu.de/Images/jg2000_en/fig_B3-2-1.pdf . “Arrowheads indicate amplifying effects, the circle indicates a dampening effect. Bold arrows and the bold circle indicate strong effects, outline arrows stand for weaker effects. The grey shaded fields state relevant global negotiating processes.” Id.

[xvi] “In October 2000, the Economic and Social Council of the United Nations (ECOSOC), in its Resolution 2000/35 established the United Nations Forum on Forests (UNFF), a subsidiary body with the main objective to promote “…the management, conservation and sustainable development of all types of forests and to strengthen long-term political commitment to this end…”based on the Rio Declaration, the Forest Principles, Chapter 11 of Agenda 21 and the outcome of the IPF/IFF Processes and other key milestones of international forest policy. The Forum has universal membership, and is composed of all Member States of the United Nations and specialized agencies. Following intense negotiations, the Seventh Session of the Forum adopted the landmark non-legally binding agreement on all types of forests on 28 April 2007. The instrument is considered a milestone, as it is the first time Member States have agreed to an international instrument for sustainable forest management.” See “UNFF Fact Sheet”, United Nations Forum on Forests website at: http://www.un.org/esa/forests/about.html . “The purpose of this instrument is: (a) To strengthen political commitment and action at all levels to implement effectively sustainable management of all types of forests and to achieve the shared global objectives on forests; (b) To enhance the contribution of forests to the achievement of the internationally agreed development goals, including the Millennium Development Goals, in particular with respect to poverty eradication and environmental sustainability; (c) To provide a framework for national action and international cooperation.” See “United Nations Forum on Forests Report of the Seventh Session (Feb. 24, 2006 to April 27, 2007) Economic and Social Council Official Records, 2007, Supplement No. 22, E/CN.18/2007/8 at p. 4, at: http://daccessdds.un.org/doc/UNDOC/GEN/N07/349/31/PDF/N0734931.pdf?OpenElement .

[xvii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Status of Multilateral Environmental UNEP/IGM/1/INF/3 (April 6, 2001), supra at par. 11.

[xviii] Id., at par. 14. “The core environmental conventions and related international agreements are basically divided into five clusters: the biodiversity-related conventions, the atmosphere conventions, the land conventions, the chemicals and hazardous wastes conventions, and the regional seas conventions and related agreements.” Id., at par. 15.

[xx] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Recommendations and Options”, UNEP/IGM/1/INF/3 supra, at par. 151. “Multilateral environmental agreements adopted after 1972 generally have the following institutional elements: a Conference of the Parties (COP), a secretariat, advisory bodies, a clearing-house mechanism and a financial mechanism.” See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements” at par. 29.

[xxi] There are “basically six UN organizations that play an important role in supporting MEAs and conventions and protocols relevant to the environment.” They include the UN General Secretariat, the UN Environment Program (UNEP), the International Maritime Organization (IMO), the International Labor Organization (ILO) and the Food and Agricultural Organization (FAO). Id.

[xxii] See Frank Biermann and Steffan Bauer, A World Environmental Organization: Solution or Threat for Effective International Environmental Governance (© 2000 Ashgate Publ.) at p. 190, at: http://books.google.com/books?id=bGJW1aBz_fMC&dq=%22unclos+secretariat%22 .

[xxiii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs)”, Status of Multilateral Environmental Agreements supra. at par. 90.

[xxiv] See discussion, infra.

[xxv] See Cliff Kincaid, “President Bush's Toilet Bowl Treaty”, The National Ledger (Oct. 29, 2007) at: http://www.nationalledger.com/artman/publish/article_272616936.shtml .

[xxvi] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements UNEP/IGM/1/INF/3 (April 6, 2001), supra at pars. 25 and 27.

[xxvii] Id., at par. 92.

[xxviii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs), - Status of Multilateral Environmental Agreements”, supra, at par. 22.

[xxix] See “OECD Development Assistance Committee (1996) Guidelines for Aid Agencies on Global and Regional Aspects of the Development and Protection of the Marine and Coastal Environment, Guidelines on Environment and Aid”, No. 8, OECD, Paris at pp. 22, at: http://www.oecd.org/dataoecd/37/9/1887756.pdf . “The Guidelines are only one aspect of the DAC activities which bear on sustainable development. Current activities include work on capacity development in the field of environment; environmental assessment; technology co-operation; trade, environment and development co-operation; and national planning for sustainable development.” Id., at p. 3. See generally, “DAC Guidelines on Aid and Environment”, Development Cooperation Directorate, Organization for Economic Cooperation and Development (OECD) at: http://www.oecd.org/document/26/0,3343,en_2649_33721_1887578_1_1_1_1,00.html .

[xxx] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements”, supra. at par. 92.

[xxxi] See “The United Nations and the Law of the Sea”, The United Nations Convention on the Law of the Sea(A historical perspective) UN Division of Ocean Affairs and the Law of the Sea website at: http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#The%20United%20Nations .

[xxxii] See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Status of Multilateral Environmental Agreements” supra. at par. 12.

[xxxiii] See Chris McGrath, Synopsis of the Queensland Environmental Legal System 4th Ed. (Environmental Law Publ. 2006), at p.8, at: http://www.envlaw.com.au/sqels4.pdf .

[xxxiv] * “The UN Secretariat under Article 7 of the Charter is included as one of the six ‘principal organs of the United Nations’. The Secretariat consists of [fulltime] officials and civil servants who perform administrative, budgetary, secretarial, linguistic, staff and housekeeping functions for the other principal organs and carry out the programs of the organization...They are supposed to serve the entire membership of the United Nations in a politically neutral manner, although reality sometimes falls short of the ideal. Heading the Secretariat is a Secretary-General who in Article 97 [of the Charter] is designated ‘the chief administrative officer of the Organization’. Pursuant to Article 101 of the Charter, Secretariat staff appointments are made by the Secretary General pursuant to regulations established by the General Assembly. See Lawrence Ziring, Robert E. Riggs and Jack C. Plano, The United Nations – International Organization and World Politics, supra at. p.57. “Lending money, giving advice on agricultural questions, fighting AIDS, reducing illiteracy, improving meteorological services, regulating labor standards, promoting human rights, safeguarding the environment, and providing refugee relief are just some of the UN activities that come within the purview of the UN Secretariat” (emphasis added). Id., at pp. 110-111.

[xxxv] See Lawrence Ziring, Robert E. Riggs and Jack C. Plano, The United Nations – International Organization and World Politics, supra at pp. 122-124.

[xxxvi] “Myth: The Convention is a “UN” treaty and therefore does not serve our interests. Reality: The Convention is not the United Nations – it was merely negotiated there, as are many agreements, and negotiated by States, not by UN bureaucrats.” See WRITTEN TESTIMONY OF JOHN D. NEGROPONTE, DEPUTY SECRETARY U.S. DEPARTMENT OF STATE BEFORE THE SENATE FOREIGN RELATIONS COMMITTEE ON SEPTEMBER 27th, 2007, ACCESSION TO THE 1982 LAW OF THE SEA CONVENTION AND RATIFICATION OF THE 1994 AGREEMENT AMENDING PART XI OF THE LAW OF THE SEA CONVENTION [Senate Treaty Document 103-39] (Oct. 2007) at p. 14, at: http://www.senate.gov/~foreign/testimony/2007/NegroponteTestimony070927.pdf .

[xxxvii] “[T]he LOS Convention does not award any decision-making authority on any issue to the United Nations. The fact that the term ‘United Nations’ appears in the title of the LOS Convention is legally meaningless and is an accident of history. The LOS Convention is a multilateral agreement that governs the legal relations among the States Parties. It creates three bodies, the International Seabed Authority, the Law of the Sea Tribunal and the Commission on the Limits of the Continental Shelf. All three are funded and organized by the States Parties to the LOS Convention and not by the United Nations.” See Letter dated April 7, 2004, to The Honorable Richard G. Lugar Chairman, Committee on Foreign Relations, Re: LOS Convention”, from eight former U.S. State Department Legal Advisers, at: http://lugar.senate.gov/sfrc/pdf/letter12.pdf .

[xxxviii] ** “The critics urge that the Convention will turn the world’s oceans over to the United Nations. To the contrary, the Convention establishes coastal nations’ control over the principal resources of the oceans while protecting freedom of navigation. The United Nations has no decision authority over any oceans issue under the Convention and no organization created is a branch of the United Nations. Rather, the three strictly limited organizations created report to the States parties to the treaty, not the United Nations. As with many arms control agreements of the United States, the negotiations proceeded under United Nations auspices. It was individual nations, however, who developed the Convention, not the United Nations.” See John Norton Moore and William L. Schachte, Jr., “The Senate Should Give Immediate Advice and Consent to the Law of the Sea Convention: Why the Critics Are Wrong”, at p. 7, at: http://www.virginia.edu/colp/pdf/Moore.Schachte.final.pdf . Perhaps Professors Moore and Schachte should take a refresher course in the United Nations, focusing on how the expert staff of the UN General Secretariat, and the UNCLOS Secretariat, in particular, could actually influence UNCLOS policies.

[xxxix] “Of the 41 core environmental conventions, protocols and related international agreements...UNEP provides the secretariat for 22. It also promoted and facilitated the negotiations for 13 other conventions and agreements. With these 13 and the remaining 6 conventions and agreements, UNEP maintains a working relationship, albeit at different degrees of support. In short, UNEP is the principal organization providing secretariats to the core environmental conventions and with working relationships with all the core environmental conventions” (emphasis added). See “International Environmental Governance: Multilateral Environmental Agreements (MEAs) - Recommendations and Options”, UNEP/IGM/1/INF/3 supra, at par. 151.

[xl] This author believes that such others include, in addition to the CBD, the Secretariats of: 1) the Basel Convention; 2) the Convention on International Trade in Endangered Species (CITES); 3) the Convention on Migratory Species (CMS); 4) the Ozone; 5) the Multilateral Fund for the Implementation of the Montreal Protocol; 6) Interim Secretariat of the Rotterdam Convention on PIC, together with FAO; and 7) Interim Secretariat of the Stockholm Convention on POPs. See “United Nations Environment Program – Organizational Profile” (2007), at p. 22, at: http://www.unep.org/PDF/UNEPOrganizationProfile.pdf .

[xli] This author believes that another such body might be the International Programme on Chemical Safety. See “International Programme on Chemical Safety” website at: http://www.who.int/ipcs/en .

[xlii] The UN Trusteeship Council was created to “help ensure that non-self-governing territories were administered in the best interests of the inhabitants and of international peace and security. The trust territories – most of them former mandates of the League of Nations or territories taken from nations defeated at the end of World War II – have all now attained self-government or independence, either as separate nations or by joining neighbouring independent countries... Under the Charter, the Trusteeship Council was to consist of an equal number of United Nations Member States administering trust territories and non-administering states. Thus, the Council was to consist of (1) all U.N. members administering trust territories, (2) the five permanent members of the Security Council, and (3) as many other non-administering members as needed to equalize the number of administering and non-administering members, elected by the United Nations General Assembly for renewable three-year terms. Over time, as trust terrritories attained independence, the size and workload of the Trusteeship Council was reduced and ultimately came to include only the five permanent Security Council members (China, France, the Soviet Union/Russian Federation, the United Kingdom, and the United States)... The Trusteeship Council was not assigned responsibility for colonial territories outside the trusteeship system, although the Charter did establish the principle that member states were to administer such territories in conformity with the best interests of their inhabitants. See “United Nations Trusteeship Council”, Wikipedia at: http://en.wikipedia.org/wiki/United_Nations_Trusteeship_Council .

[xliii] Id.

[xliv] See “UN Reform - Restructuring for Global Governance”, Ecologic (July/August, 1997) at: http://www.sovereignty.net/p/gov/ggunreform.htm#9 .

[xlv] See A/RES/52/12 UNGA (Nov. 12, 1997), at: http://www.undg.org/archive_docs/1551-Renewing_the_UN__A_Res_52_12_-_Renewing_the_UN__A_Res_52.doc .

[xlvi] Stephen C. Nemeth, Sara McLaughlin Mitchell, Elizabeth A. Nyman and Paul R. Hensel, “UNCLOS and the Management of Maritime Conflicts”, supra, at pp. 14-15.

[xlvii] See “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 High Migratory Fish Stocks”, at: http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm .

[xlviii] “As fish stocks have diminished, the international community has recognized that several issues needed to be addressed. These included the practice of reflagging fishing vessels and the management of straddling and highly migratory fish stocks. The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas promotes sustainable international fisheries by addressing fishing vessel reflagging. The accountability principles outlined in this Reflagging Agreement are the cornerstones of a further 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. This second Agreement creates a framework within which regional arrangements are to be developed to cope with conservation and management concerns, relying on international technological and scientific cooperation. A non-binding Code of Conduct for Responsible Fisheries, developed by the United Nations Food and Agriculture Organization (FAO), represents the culmination of these efforts. All of these recently negotiated agreements extend provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to promote better international fishery conservation and management. Through these agreements, the United States has an opportunity to ratify and implement several less-controversial provisions of UNCLOS. The United States has already implemented the Reflagging Agreement through Title I of P.L. 104-43. The Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was signed by the United States on December 4, 1995, and will soon be transmitted to the Senate for advice and consent.” See Eugene H. Buck, “Agreements to Promote Fishery Conservation and Management in International Waters”, CRS Report 96-56 (Jan. 5, 1996) at: http://www.ncseonline.org/nle/crsreports/marine/mar-8.cfm .

[xlix] See “Status of the United Nations Convention on the Law of the Sea, of the Agreement relating to the implementation of Part XI of the Convention and of the Agreement for the implementation of the provisions of the Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks” at: http://www.un.org/Depts/los/reference_files/status2007.pdf .

[l] “The Agreement encourages states to avoid disputes, but to institute expeditious dispute-settlement procedures if needed. Pending the settlement of a dispute, Parties are encouraged to adopt practical provisional arrangements. In technical disputes, the Agreement provides for ad hoc panels to promote resolution. Part XV (Settlement of Disputes) of UNCLOS applies to all disputes between states party to the SFS/HMFS Agreement, regardless of whether the states are participants in UNCLOS” (emphasis added). See CRS Report 96-56 (Jan. 5, 1996), supra.

[li] “Part XIV of UNCLOS focuses on the development and transfer of marine technology (refer to brief discussion on UNCLOS in this paper). SOPAC [South Pacific Applied Geoscience Commission] is recognized as the regional agency assisting its members benefit from the transfer of marine technology and the promotion of marine scientific research [MSR]. Technology and its utilization should be environmentally sound and appropriate and be made available at all levels. This ranges from the transfer of knowledge to the more sophisticated equipment used in MSR and monitoring of fisheries regimes and those that address issues ranging from resource management and conservation at the community level to those that relate to climate change and greenhouse emissions. The Kyoto Protocol for example suggests the formulation of policies and programmes to promote and enhance the transfer of and access to environmentally sound technologies...UNCLOS did not deal with climate change and sea level rise issues. This however has been adequately covered in subsequent conventions and agreements” (emphasis added). See “Overview of an Ocean Policy for the Pacific Islands”, Pacific Islands Regional Ocean Forum (PIROF), Council of Regional Organisations in the Pacific, Pacific Islands Forum Secretariat (June 2001) at pp. 27 and 35, at: http://www.spc.int/piocean/MSWG/PIROP_overview_seremaia.pdf .

[lii] “Treaty interpretation is an important method that can be applied by diplomats and dispute settlement bodies to harmonise two norms that seem to be in conflict. It cannot resolve ‘genuine conflicts’, i.e. cases in which compliance with one norm leads to breach...of another. The main rules on how to interpret treaties can be found in the Vienna Convention on the Law of Treaties (VCLT). Art 31 VCLT provides gives basic interpretation rules, stipulating that a treaty’s ordinary meaning, its context, and its object and purpose should be taken into consideration. It also gives more dynamic interpretation rules, which determine that interpretation should take into account a) any subsequent agreement between the Parties on interpretation of the treaty, b) any subsequent practice in the application of the treaty, and c) “any relevant rules of international law applicable in the relations between the parties” (Article 31.3 VCLT)... The third rule of Article 31.1 (c) is perhaps the most interesting one. It includes a principle of ‘systemic integration’... that opens up the possibility to interpret treaties in the light of a broader system of international law, of which other related treaties related are also a part. Given the relatively young age of international environmental law, the lack of references to environmental considerations, linkages between environmental and non-environmental issue areas, and continuous changes in scientific insights...it is attractive to use this interpretative tool in disputes between, for example, climate and trade...views the provision as a possibility to apply a ‘harmonising approach’ to the conflict between the CBD and Kyoto Protocol on the issue of sinks. The main question in this regard is whether the relevant law must be in place at the time of the adoption of a new treaty or at the time of interpretation. The latter allows for a more ‘evolutionary approach’ to treaty interpretation, and is arguably appropriate when interpreting terms that are likely to evolve over time... This would mean, for example, that some provisions of UNCLOS, adopted in 1982, could now be interpreted to apply to the issue of climate change, even though negotiations on the UNFCCC did not start until the late 1980s” (emphasis added). See Harro van Asselt, “Dealing with the Fragmentation of Global Climate Governance: Legal and Political Approaches in Interplay Management”, Global Governance Working Paper No 30—May 2007 at p. 6, at: http://glogov.org/images/doc/WP30.pdf .

[liii] The prior Senate testimony of other LOST proponents is also quite revealing. In addition to Mr. Rufe, former Senator Claiborne Pell and current Senator Richard Lugar previously referred to LOST as a new “constitution for the world’s oceans”. In addition, University of Miami School of Law Professor, Bernard Oxman has referred to the UNCLOS as “the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time”, given “the attention it devotes to environmental protection”. Bernard Oxman, “The Territorial Temptation: A Siren Song at Sea”, supra, at p. 843. Prof. Oxman previously testified that LOST is “the most important and comprehensive international environmental agreement in existence” (emphasis added). Id.

[liv]See J.D. Werksman, “Formal Linkages and Multilateral Environmental Agreements”, Background Paper Prepared for the International Conference on Synergies and Co-ordination Between Multilateral Environmental Agreements (United Nations University Tokyo July 14-16, 1999) at pp. 6 and 9, at: http://www.geic.or.jp/interlinkages/docs/jake.PDF .

[lv] “The law of the sea and Antarctica are intimately related. Appreciation for that relationship and for its international political and policy implications requires assessment of the legal situation of the continent. That is, Antarctica’s legal situation remains linked to considerations about sovereignty on the continent and the legal bases for states asserting valid title to territory there. Antarctica today is claimed by seven states (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) which base the legitimacy of their pie-shaped sectors on various legal grounds. The precise legal status of these claims to the continent in turn determines whether the claimants may lawfully extend jurisdiction offshore in the form of territorial seas, exclusive economic zones and continental shelf delimitations. Even though these claims to Antarctica exist, it is equally important to realize that they are not recognized by any other states in the international community” (emphasis added). See Christopher C. Joyner, “Antarctica and the Law of the Sea”, (Martinus Nijhoff Publishers © 1992) at p. 41, at: http://books.google.com/books?id=y6JAr747H60C&pg=PA36&vq=142&dq=antarctic+treaty+%2B+area+beyond+national+jurisdiction&source=gbs_search_r&cad=1_1#PPA41,M1.

[lvi] See Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (April 2009) at: http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf .

[lvii] “Some commentators assert that State parties to the 1982 LOS Convention (but not to the Antarctic Treaty) will view the Southern Ocean as having the character of high seas, beyond national jurisdiction. In addition, those States will view the seabed of the Southern Ocean as the common heritage of mankind, subject to the deep seabed mineral regime provided by Part XI of the 1982 LOS Convention…Conversely, Scott Hajost has contended that neither Antarctica, nor the adjacent Antarctic seabed can be considered to be part of the deep seabed ‘Area’ mentioned in Part XI because there is no consensus that these regions are beyond the limit of national jurisdiction…In addition, during UNCLOS III negotiations, the President, Hamilton Shirley Amerasinghe of Sri Lanka, even asserted that Antarctica was in no way linked to the Convention…That the possibility of ‘reverse creeping jurisdiction’ occurring along the Antarctic continental shelf may be but a moot point, simply because no consensus has ever existed on Part XI of Convention” (emphasis added). Id., at p. 140, fn 141, citing Pinto, “Authority to Manage Resources of the Southern Ocean”, p. 36; Scott Hajost, “Authority to Manage Fisheries and Mineral Resources of the Southern Ocean: The Perspective of Non-Claimant Parties to the Antarctic Treaty” in Clingan, Law of the Sea: What Lies Ahead?, p. 376; UN Doc. A/PV 2380 (1975) p. 16; Francisco Orrego-Vicuna, “Antarctic Mineral Exploitation: The Emerging Framework”, (Cambridge Univ. Press © 1988), p. 210. “To wit, no mention is made in the Antarctic Treaty of either the territorial sea or the continental shelf. Article VI maintains that the treaty applies to the area south of 60 degrees South latitude, including all ice shelves. However, the article also asserts that ‘Nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the ‘high seas’ within that area’…In addition, Article IV of the Treaty would prohibit any new claims to territorial sovereignty in Antarctica, or the enlargement of an existing claim, both of which would be implicit in effecting continental shelf delimitation” (emphasis added). Id., at p. 140, fn 142.

[lviii] See Marian Wilkinson, “Greenhouse Gas Threatens Ocean Food Chain”, The Sydney Morning Herald (March 9, 2009) at: http://www.smh.com.au/environment/global-warming/greenhouse-gas-threatens-ocean-food-chain-20090308-8sgt.html. (“Rising concentrations of acid in the Southern Ocean caused by greenhouse gases are damaging the ability of some sea creatures to form shells, posing a serious threat to marine life, a study by Australian scientists has found…‘The potential knock-on effects pose significant implications for the oceanic food chain and the findings are a worrying signal of what we can expect to see elsewhere in the future,’ said Dr Howard, whose study was funded by the Federal Government's Department of Climate Change. The study, which is published today in the journal Nature Geoscience, compared the shells of microscopic marine animals, called forams, taken from the Southern Ocean with shells from similar animals preserved in sediments dating back to pre-industrial times. The scientists found the modern creatures had shell weights 30 to 35 per cent lower than their pre-industrial forebears. The study has implications for a wide range of sea life whose shells or skeletons could be damaged or deformed by rising acid levels, including krill, the main food source for whales”). Id. Green groups had previously rung the alarm bells during 1993 about the risk that mineral exploitation and over-fishing posed to krill. See “Written Statement of Bruce S. Manheim, Jr., Senior Attorney, Environmental Defense Fund”, Before the Subcommittee on Economic Policy, Trade and Environment of the House Committee on Foreign Affairs and the House Committee on Merchant Marine and Fisheries, on Implementing Legislation for the Protocol on Environmental Protection to the Antarctic Treaty supra, at p. 45; “Letter dated August 23, 1993 to Vice President Al Gore from Jim Barnes, International Director, Friends of the Earth, and Beth Marks, Director, the Antarctica Project”, and “Remarks of James N. Barnes, ‘The Place of Science on an Environmentally Regulated Continent’” supra, at pp. 127-128.

[lix] See “Statement on behalf of the European Union by Prof. Dr. Gerhard Hafner, Austrian Federal Ministry for Foreign Affairs”, Ad Hoc Open-ended Informal Working Group of the United Nations General Assembly to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (2/13/06) (emphasis added) at: http://www.eu-un.europa.eu/articles/en/article_5691_en.htm .

[lx] See “Statement on behalf of the European Union by Mr. Aleksander Čičerov, Minister Plenipotentiary at the Permanent Mission of Slovenia to the United Nations”, United Nations General Assembly Ad-Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, (4/28/08) at: http://www.eu2008.si/en/News_and_Documents/Statements_in_International_Organisations/April/0428UN_Marine_Biological_Diversity.html ; http://newyork.predstavnistvo.si/fileadmin/user_upload/dkp_13_mny/docs/EU_Presidency_Statements/1EU_opening_statement_28.4.08.pdf .

[lxi] Id.

[lxii] See The EU and the Arctic Region - Multilateral Governance Maritime Policy Actions, European Commission, Maritime Affairs website at: http://ec.europa.eu/maritimeaffairs/arctic_governance_en.html .

[lxiii] See Kristina M. Gjerde, Harm Dotinga, Sharelle Hart, Erik Jaap Molenaar, Rosemary Rayfuse and Robin Warner, Options for Addressing Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, IUCN Environmental Policy and Law Papers online Marine Series No. 2 (International Union for Conservation of Nature and Natural Resources © 2008) at p. 3, at: http://cmsdata.iucn.org/downloads/iucn_marine_paper_2.pdf .

[lxiv] Id., at p. 9 (emphasis added).

[lxv] See Sharelle Hart, Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, IUCN Environmental Policy and Law Papers online Marine Series No. 4 (International Union for Conservation of Nature and Natural Resources © 2008) at p. 5, at: http://cmsdata.iucn.org/downloads/iucn_marine_paper_4.pdf .

[lxvi] See J. William Middendorf II and Lawrence A. Kogan, “The ‘LOST 45’ UN Environmental Restrictions on U.S. Sovereignty”, ITSSD JOURNAL ON THE UN LAW OF THE SEA CONVENTION (Sept. 2007), accessible at: http://itssdjournalunclos-lost.blogspot.com/2008/01/itssd-lost-45-un-environmental.html.

[lxvii] The ISBA has been rather active since 1997. They have already completed final environmental regulations and guidelines governing the activities relating to polymetallic nodules and only recently submitted to the ISBA Assembly for consideration draft regulations and guidelines they have worked on to encompass polymetallic ferromanganese sulfides and cobalt-rich crusts. See Report of the Secretary-General of the International Seabed Authority under article 166, par. 4, of the United Nations Convention on the Law of the Sea”, at p. 4, citing ISBA/4/C/4/Rev.1; See also Michael W. Lodge, The International Seabed Authority’s Regulations in Prospecting and Exploration for Polymetallic Nodules in the Area, The Journal, Vol. 10, Abstract 2 (Dec. 18, 2001) at 12, http://www.dundee.ac.uk/cepmlp/journal/html/vol10/article10-2.pdf; Decision of the Assembly of the International Seabed Authority Relating to the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, International Seabed Authority Assembly ISBA/6/A/18 (July 20, 2000), http://www.isa.org.jm/files/documents/EN/6Sess/Ass/ISBA-6A-18.pdf; Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, International Seabed Council ISBA/13/C/WP.1 (March 29, 2007), http://www.isa.org.jm/files/documents/EN/13Sess/Cncl/ISBA-13C-WP1.pdf; Draft Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, International Seabed Authority Legal and Technical Commission ISBA/13/LTC/WP.1 (May 9, 2007), http://www.isa.org.jm/files/documents/EN/13Sess/LTC/ISBA-13LTC-WP1.pdf; Informal Note on Matters before the 14th Session of the Int’l Seabed Authority (May 26 - June 6, 2008), http://www.isa.org.jm/en/sessions/2008.

[lxviii] UNLCOS Article 145 mandates the International Seabed Authority to “adopt appropriate rules, regulations and procedures for inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including [from] the coastline, and of interference with the ecological balance of the marine environment.” See UNCLOS Article 145(a). Article 145 also specifies that such rules, regulations and procedures must ensure “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.” See UNCLOS Article 145(b).

[lxix] See IUCN (2004) TEN-YEAR HIGH SEAS MARINE PROTECTED AREA STRATEGY: A Ten-year Strategy to Promote the Development of a Global Representative System of High Seas Marine Protected Area Networks, Executive Summary (Sept. 2003) (emphasis added) at 13, Toolbox 1, http://www.iucn.org/THEMES/MARINE/pdf/10-Year_HSMPA_Strategy_SummaryVersion.pdf.

[lxx] Id., Executive Summary at p. vii.

[lxxi] Id. (emphasis added). “It is argued that financial and economic benefits derived from the utilisation of MGR should be shared on an equitable basis rather than kept for the benefit of the few technologically advanced States or entities that are in a position to undertake bioprospecting activities (especially of the deep seabed). A number of States have suggested that a benefit sharing regime for deep-seabed genetic resources could be included in the mandate of the ISA given the symbiotic relationship of the biodiversity with the deep seabed and its mineral resources. If bioprospecting for MGR is considered within the scope of an Implementation Agreement, the interests of developing countries regarding the sharing of financial benefits arising from the exploitation and utilisation of such resources should be considered.” Id., at p. 16.

[lxxii] Id.

[lxxiii] See “International Regime on Access and Benefit-Sharing”, UN Convention on Biological Diversity website at: http://www.cbd.int/abs/regime.shtml.

[lxxiv] See “Building a Global Partnership on Access and Benefit-Sharing”, Press Release, Secretariat of the Convention on Biological Diversity (April 1, 2009) at: http://www.cbd.int/doc/press/2009/pr-2009-04-01-abs-en.pdf.

[lxxv] See “General Assembly Resolution 61/222 - Genetic Resources Beyond National Jurisdiction, Marine Biodiversity Working Group Highlights: Wednesday 30 April 2008”, Earth Negotiations Bulletin Vol. 25 No. 47 (May 1, 2008) at pp. 1-2, at: http://www.iisd.ca/download/pdf/enb2547e.pdf. See also “Summary of the Eighth Meeting of the Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: 25-29 June 2007”, Earth Negotiations Bulletin Vol. 25 No. 43 (July 2, 2007) at: http://www.iisd.ca/download/pdf/enb2543e.pdf; “Eighth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: 25-29 June 2007”, Earth Negotiations Bulletin Vol. 25 No. 38 (June 25, 2007) at: http://www.iisd.ca/oceans/icp8/compilatione.pdf; United Nations General Assembly Resolution “Oceans and the Law of the Sea” (A/RES/61/222) (March 16, 2007) at: http://www.undemocracy.com/A-RES-61-222.pdf.

[lxxvi] See “Legal Status of Marine Genetic Resources in Question”, Bridges Trade BioRes Vol. 6, No. 4 (March 3, 2006) http://www.ictsd.org/biores/06-03-03/inbrief.htm.

[lxxvii] Id.

[lxxviii] “Germany and France are strong advocates of institutional reform and the establishment of a World Environmental Organization.” See Norichika Kanie, “Governance With Multilateral Environmental Agreements: A Healthy or Ill-Equipped Fragmentation?”, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education (Lydia Swart and Estelle Perry Eds.) (© 2007) at p. 80, at: http://www.centerforunreform.org/node/251 .

[lxxix] Id., at Box E 2.3-1 at p. 136. “The Task Force comprised 21 eminent experts, met four times and submitted its report to the Secretary-General in 1998. It summarized its findings in 24 recommendations. Their implementation would serve to strengthen coordination among the various organizations, programmes and conventions, and enhance general political coherence in order to reinvigorate the work of the UN in the sphere of the environment and human settlements. The recommendations call for decisions and measures at both the intergovernmental and secretariat levels.” Id.

[lxxx] Id.

[lxxxi] Id.

[lxxxii] “As a part of its vision for recasting the structures of global environment and development policy, the Council considers it essential to establish an independent body endowed with universally accepted ethical and intellectual authority, and charged with identifying and assessing the risks of global change. The Council recommends to the German government that it examines the options for establishing an ‘Earth Commission’ and that it submits a corresponding proposal to the United Nations...” Id., at p. F-2.

[lxxxiii] Id., at p. 3.

[lxxxiv] Id., at p.33.

[lxxxv] Id. at p.3.

[lxxxvi] Id., at p. 17.

[lxxxvii] Id. at p. 3.

[lxxxviii] “The members of the Earth Commission, appointed by the UN General Assembly, should number 10 to 15, and be leading figures of highest moral authority who can command the attention of a global audience, as the Brandt and Brundtland Commissions did. Such a commission might be viewed as a globalized form of the German Council for Sustainable Development (Rat für Nachhaltige Entwicklung). Where the need arises, the Earth Commission could be supported by inputs provided by scientific Panels. The Earth Commission could receive a right to propose scientific issues to be treated by the panels. These environmental analyses would then be processed by the Earth Commission and evaluated in terms of whether a ‘warning’ needs to be issued to the global public and the United Nations about impending and potentially irreversible environmental changes.” Id., at p. F-2.

[lxxxix] Id., at p. 173.

[xc] Id., at p. 131.

[xci] Id., at p. 17.

[xcii] “The foundation of a new International Environmental Organization into which the convention secretariats and UNEP would merge would indeed create a new bureaucracy – but it would simultaneously render several smaller ones superfluous. There is nonetheless a need to state clearly what a new International Environmental Organization should not yield, or what must at all events be avoided. For one thing, it needs to be ensured that such an organization does not carry out projects itself. On-site project coordination should continue to be provided, according to the specific technical expertise required, by UNDP, the World Bank, FAO or UNIDO, whereby the new International Environmental Organization would operate exclusively as client and provider of substantive support. It would greatly exacerbate the inefficiency of the overall system if a further project-executing organization were created in addition to the existing project-focused entities in the UN system.” Id., at pp. 134-135.

[xciii] Institut du Developpment Durable et des Relations Internationales (IDDRI) “is an association loi de 1901 that examines sustainable development issues that require international coordination, such as climate change or the depletion of natural resources. Its research focuses on global governance, North-South relations and international negotiations. IDDRI has three objectives: informing policy decisions; identifying emerging issues; and creating a platform for dialogue between stakeholders whose interests are often at odds - research organizations, public and private economic actors, unions and NGOs.” See IDDRI Website at: http://www.iddri.org/L .

[xciv] See Jürgen Trittin, Environment Minister, Federal Republic of Germany, “Strengthening environmental protection in the United Nations” Presented at the IDDRI Conference ‘International Environmental Governance’ (March 15, 2004) at:
http://www.iddri.org/Activites/Conferences/trittin.pdf . “The Global Ministerial Environment Forum in Malmö four years ago called emphatically for ‘an institutional architecture that has the capacity to effectively address wide-ranging environmental threats in a globalizing world’... The goal is clear: to strengthen and enhance the United Nations Environment Programme...[I]f we want to make real improvements in living conditions, we need a fundamental counterweight to the World Trade Organisation and to the international environmental governance structures which are driving globalisation forward.” Id., at p.1. “A separate issue here is...how...can... UNEP - even more than is the case today...become the globally recognised voice of the United Nations on environmental protection... The principle of sustainable development cannot assert itself at the international level. This is due to the fact that in its current format, UNEP is not an equal partner to the major players of the UN system, not to mention the World Bank and the IMF. It is unacceptable that the institution championing questions of survival for this planet remains a junior partner in the United Nations... In contrast to major international organisations such as the FAO, ILO and WTO, as a United Nations programme UNEP's structure is not strong enough to allow it to influence international policies in favour of environmental protection in the way major challenges necessitate.” Id., at p. 3.

[xcv] “Two separate goals are of key importance for the reform of environmental governance. One relates to UNEP's structure, the other to its status within the system of the United Nations as a whole: [1] universal membership of all UN Member States in the UNEP Governing Council and consequently also in the Global Ministerial Environment Forum[; and] [2] enhancement of UNEP to a UN Environment Organisation in the form which is currently being discussed in a New York working group headed by France. This is not just symbolic policy. On the contrary, these are the necessary steps to ensure that environmental protection has success-oriented structures within the United Nations system...[T]he actual decision-making process remains in the hands of the 58 Governing Council members. This has a negative impact on the ‘ownership’ of the countries and consequently on the acceptance and implementation of the decisions. The conditions which are a matter of course in the Conferences of the Parties – i.e. the same right for all Parties – must also apply to the United Nations Environment Programme: all UN Member States should effectively be given the same rights in the UNEP decision-making processes. Far more countries would, as a matter of course, actively support UNEP decisions, for instance on chemicals policy, on sustainable consumption and production patterns and on post-conflict measures in trouble spots, if their governments had actually been involved in the decision-making process...The introduction of universal membership should also be accompanied by a clear improvement in UNEP's scientific basis. It is of prime importance to have international scientific consensus on the nature and extent of environmental problems, as well as on possible solutions and obstacles.” Id., at pp. 2-3.

[xcvi] Id.,at p.4.

[xcvii] Id.,at p.5.

[xcviii] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change supra, at p. 132.

[xcix] Id.

[c] See “THE ENVIRONMENT IN THE NEWS”, UN Environment Program (Sept. 24, 2003) at: http://www.unep.org/cpi/briefs/Brief24Sept03.doc .

[ci] See Georgina Ayre, “REFORM OF UNEP: FORM TO FOLLOW FUNCTION”, Report of Multi-stakeholder Workshop 8th Special Session of the Governing Council/Global Ministerial Environment Forum (Jeju, Republic of Korea, March 29-31, 2004) at p.1, at: http://www.unedforum.org/publications/reports/UNEP-Ministerial.pdf .

[cii] Id., at p.3.

[ciii] Id., at p.4.

[civ] See “Constitutional Bill on the Environment Charter - Speech By Jean-Pierre Raffarin, Prime Minister, to the Meeting of Parliament in Congress”, Embassy of France in the United States (Feb. 28, 2005) at: http://www.ambafranceus.org/news/statmnts/2005/raffarin_environement_022805.asp ; “Constitutional bill on the Environment Charter - Speech by M. Jean-Pierre Raffarin, Prime Minister, to the meeting of Parliament in Congress”, French Embassy in the United Kingdom (Feb. 28, 2005) at: http://www.ambafrance-uk.org/Constitutional-bill-on-the.html .

[cv] “President Nicolas Sarkozy on Wednesday gave his backing to a far-reaching plan to liberalise the French economy and raise its trend rate of growth to 3 per cent within five years. Mr Sarkozy said he supported ‘in the main’ the conclusions of a commission chaired by Jacques Attali, the economist and former socialist presidential adviser, and would convene a ministerial committee next month to decide which of the measures to put in place first. The Attali commission produced 316 proposals to liberalise sheltered sectors of the economy, cut the cost and improve the flexibility of the labour market, and streamline public administration. ‘If some people have been alarmed by the contents of your proposals, I find them rather reasonable in the main’, Mr Sarkozy said as he received the report from Mr Attali...According to Mr Attali, Mr Sarkozy disagreed with only two of the commission’s 316 recommendations: the scrapping of the precautionary principle (conferring the benefit of the doubt against technological innovations) enshrined in France’s constitution and the abolition of the department, the revolutionary-era local government unit” (emphasis added). See Ben Hall, “Sarkozy Backs Liberalisation Plan”, Financial Times (Jan. 23, 2008) at: http://www.ft.com/cms/s/0/17d878de-c9c0-11dc-b5dc-000077b07658.html . See also Jérôme Bouin, “Sarkozy rejette deux propositions du rapport Attali”, Le Figaro Economie (Jan. 23, 2008) at: http://www.lefigaro.fr/economie/2008/01/23/04001-20080123ARTFIG00421-sarkozy-rejette-deux-propositions-du-rapport-attali.php (“Contre la suppression du principe de précaution. Le président de la République s'est également dit opposé aussi à la suppression du principe de précaution, actuellement inscrit dans la Constitution. «Proposer sa suppression au motif qu'il bride l'action repose à mon sens sur une incompréhension», a dit le chef de l'Etat. Inscrit dans la Constitution française, il peut être invoqué si le besoin d'une intervention urgente se fait ressentir face à un possible danger pour la santé ou pour la protection de l'environnement”) (emphasis added).

[cvi] See “Commission Attali: The First Proposals Raise Controversy”, AFP (Oct. 11, 2007) at: http://afp.google.com/article/ALeqM5iIkbSL5Gk4G9QyBlLMweFS993GgA . (“The first proposals of the Committee for the Liberation of French growth (CLCF) headed by Jacques Attali, which was to deliver Monday afternoon to President Nicolas Sarkozy a progress report on purchasing power, already sparked controversy. According to news published Friday, the committee members suggested including withdraw from the Constitution the ‘precautionary principle’, regarded as a brake on growth, which has resulted in a lifting of shields. The Minister of Ecology, Jean-Louis Borloo, has been strongly opposed to that suggestion Monday, recalling that ‘the precautionary principle is part of international treaties to which France has signed.’ The Secretary of State for Environment, Nathalie Kosciusko-Morizet, had earlier described the position of ‘reactionary’. ‘We must stop viewing the environment is a limit to growth,’ said she who was rapporteur of the Charter of the environment, which had included this principle in the Constitution in 2005. Since Friday, the CLCF had stressed that his proposals were ‘being finalized’ and that ‘the documents that have been released so far do not match the current proposals.’ Indeed, a draft document dated Friday, October 12 and which AFP obtained a copy refrain from any reference to the precautionary principle.” (English translation of the original French: “Selon des informations de presse publiées vendredi, les membres de la commission suggéraient notamment de retirer de la Constitution le ‘principe de précaution’, considéré comme un frein à la croissance, ce qui a suscité une levée de boucliers. Le ministre de l'Ecologie, Jean-Louis Borloo, s'est fermement opposé lundi à cette suppression, rappelant que ‘le principe de précaution fait partie de traités internationaux que la France a signés’. La secrétaire d'Etat à l'Ecologie, Nathalie Kosciusko-Morizet, avait auparavant qualifié cette position de ‘réactionnaire’. ‘Il faut cesser de considérer que l'environnement est une limite à la croissance’, a affirmé celle qui fut rapporteur de la Charte de l'environnement, qui avait inscrit ce principe dans la Constitution en 2005. Dès vendredi, la CLCF avait souligné que ses propositions étaient ‘en cours de finalisation’ et que ‘les documents qui ont pu être diffusés jusqu'ici ne correspondent pas à l'état actuel des propositions’. De fait, un document provisoire daté du vendredi 12 octobre et dont l'AFP a obtenu copie s'abstient de toute référence à ce principe de precaution”)) (emphasis added).

[cvii] See Attali, J. “Rapport de la Commission pour la libération de la croissance française.” (Report of the Commission for the liberation of the french growth), at pp. 91-93 (in French) (Jan. 23, 2008) at: http://www.liberationdelacroissance.fr/files/rapports/rapportCLCF.pdf . The English translation of this portion of the Attali Commission Report was provided to this author by Sorin Straja, Ph.D., member of the National Advisory Board of the Institute for Trade, Standards and Sustainable Development (Jan. 24, 2008). “OBJECTIVE: To rethink the precautionary principle The constitutional law n° 2005-205 of March 1st, 2005 inscribed in the constitutional text the “Charter of the environment of 2004”. It thus meets an increasing concern of the citizens with regard to their environment and testifies to the interest that the Parliament carries to these questions. However, article 5 of the Charter introduces a new provision in constitutional law, by referring to a “precautionary principle”, already present in the legislative corpus, and whose normative range remains uncertain. This reference generates judicial uncertainties and installs a context prejudicial to the innovation and the growth, because of the risks of dispute of responsibility against the most innovating companies in front of the courts of law. It also burdens with a heavy presumption the decisions of administrative police force. The need for protection is undeniable. It is established and recognized by the European texts. If the constitutional text intends to prevent the realization of damages harmful to the collectivity, its very open drafting leaves place to potentially divergent interpretations, likely to paralyze the economic activity and that of the administration. In effect, the concept of damage affecting the “environment in a gravely and irreversible way” is not defined by the constitutional text. Moreover, the reality of the “damage” is only very vaguely specified there: it is enough that its realization be “uncertain in the state of scientific knowledge” to oblige the administration to act. This fuzzy formulation opens to the judge the possibility of interpreting the founding text of the Republic. This situation is not idea from the point of view of democracy. Moreover, article 5 of the Charter of the environment risks to inhibit the fundamental and applied research, insofar as an innovation which potentially would generate a damage whose realization would be “uncertain in the state of scientific knowledge” could open recourse of responsibility, against the companies or institutes of research as well as against public collectivities charged with administrative police force. Moreover, sometimes this sanction would intervene only at the end of a long legal procedure, thus paralyzing the activity of the public and private laboratories. In addition, the administrative action itself would be very slow due to this vague formulation. In virtue of this constitutional text modified in 2005, the administration is supposed to be able to follow the whole scientific research, which appears not very realistic. Not being able to do it, the administration will thus resort very often to prohibition, the solution that is judicially the most sure, administratively the most comfortable, and the more penalizing for our growth. Finally, article 5 of the Charter of the environment is not dissociable from article 7 that imposes that the decisions of precaution be taken with the participation of the citizens. Under French reality, the precautionary principle leads to situations of indecision that are penalizing for the industrialists and, in a general way, for the long-term investment. The constitutionalisation of the principle solidifies reality and constitutes an obstacle to the growth: the legislator should be able to preserve a room for maneuver to define precise conditions of application of the principle. Consequently, it seems convenient to repeal, or if this is not possible then to very strictly specify the range of article 5 of the Charter of the environment of 2004, with respect to both the private operators and the public authorities, by a revision of the constitutional text, which will make it possible to specify the nature of the “damage” and the conditions of its compensation” (emphasis added). Id.

[cviii] See Statement by Ambassador Joao Salgueiro, Permanent Representative Permanent Mission of Portugal to the United Nations, On Behalf of the European Union, Informal Consultation Process on the Co-Chairs' Option Paper on IEG 61st Session of the General Assembly (Sept. 10, 2007), referenced in “Growing Momentum in the GA to Strengthen International Environmental Governance – Member States Respond to Options Paper”, Center for UN Reform Education at: http://www.centerforunreform.org/node/274 .

[cix] See “European Union's First Reaction on the Co-Chair’s ‘Options Paper’ on IEG”, Presented at the lnformal Consultative Process on the Institutional Framework for the UN's Environmental Activities, 62nd Session of the United Nations General Assembly (Oct. 4, 2007) at p. 2, at: http://www.centerforunreform.org/system/files/04Oct2007-PortugalEU+options+pap.PDF .

[cx] Id.

[cxi] Id., at p.3.

[cxii] Id., at p.4.

[cxiii] Id., at p.5.

[cxiv] Id., at p.6.

[cxv] ENGO = Environmental nongovernmental organization.

[cxvi] See Maria Ivanova and Jennifer Roy, “The Architecture of Global Environmental Governance: Pros and Cons of Multiplicity”, at p. 63, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra.

[cxvii] Professor Ivanova currently teaches at the John C. Whitehead School of Diplomacy and International Relations.

[cxviii] See Alan Bisbort, “Critic of U.N. Environmental Program Offers Plan for Its Reform”, Environment Yale Magazine at: http://environment.yale.edu/pubs/Critic-of-UN-Environmental-Program-Offers-Plan-for-Its-Reform .

[cxix] See Maria Ivanova, “Moving Forward by Looking Back: Learning from UNEP’s History”, at pp. 26-27, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra.

[cxx] “‘Global Environmental Governance – Perspectives on the Current Debate,’” is divided into three parts. Part I describes current global environmental reform proposals and initiatives at the UN. Part II presents three chapters analyzing the architecture of the current system of global environmental governance, including its origins and its strengths and weaknesses. Part III offers three contributions on policy and institutional options for the future of GEG including one chapter dedicated to the issue of climate change and its governance.” See Lydia Swart and Estelle Perry, “Introduction” at p. 2, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra..

[cxxi] See Mohamed El-Ashry, “Recommendations From the Hi-Level Panel on System-Wide Coherence on Strengthening International Environmental Goverance”, at p. 8, in GLOBAL ENVIRONMENTAL GOVERNANCE Perspectives on the Current Debate, Center for UN Reform Education, supra.

[cxxii] See “Bio” of Mohamed El-Ashry, United Nations Foundation Website at: http://www.unfoundation.org/files/pdf/2005/Mohamed_El_Ashry_Bio.pdf .

[cxxiii] See Mohamed T. El-Ashry, “Financial Global Sustainable Development”, International Conference in Preparation for the World Summit on Sustainable Development (Copenhagen, Denmark (June 11, 2001) at pp. 6-7 at: http://www.gefweb.org/participants/Secretariat/CEO/Denmark_Speech_June_11__2001.pdf .

[cxxiv] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publications Ltd. © 2000) at p. 150, at: http://www.wbgu.de/wbgu_jg2000_engl.pdf .

[cxxv] Id.

[cxxvi] See Ruben P. Mendez, Ocean Governance and Development: The Question of Financing: The Global Commons: Disputed and Encroached Areas, in Ocean Governance: Sustainable Development of the Seas, (Peter Bautista Payoyo Ed.) The United Nations University © 1994, at: http://www.unu.edu/unupress/unupbooks/uu15oe/uu15oe0u.htm.

[cxxvii] See “A More Secure World – Our Shared Responsibility – Report of the High-level Panel on Threats, Challenges and Change”, United Nations (© 2004) at: http://www.un.org/secureworld/report2.pdf . “In my speech to the General Assembly in September 2003, I argued that we faced a decisive moment for the United Nations — and in particular for the aspiration set out in the Charter to provide collective security for all. I drew attention to deep divisions among the Member States on the nature of the threats that we faced and the appropriateness of the use of force to address those threats. I challenged the Member States to make the United Nations more effective. I concluded by announcing my intention to convene a high -level panel of eminent persons to provide me with a shared, comprehensive view about the way forward on the critical issues... I asked the High -level Panel to assess current threats to international peace and security; to evaluate how our existing policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations so that it can provide collective security for all in the twenty -first century.” See “Note by the Secretary-General to the General Assembly” A/59/565 (Dec. 2, 2004) at: http://www.un.org/secureworld/report.pdf .

[cxxviii] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing: Introduction”, in Ocean Governance: Sustainable Development of the Seas, supra.

[cxxix] “The automatic, compulsory nature of the charges would eliminate the ‘free-rider’ problem that tends to undermine voluntary funding schemes.” Id.

[cxxx] Id.

[cxxxii] See UNCLOS Section 4, Subsection G, Article 176.

[cxxxiii] See Annex, Section 2 - “The Enterprise” of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994), at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm .

[cxxxiv] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing: The Global Commons: Disputed and Encroached Areas”, in Ocean Governance: Sustainable Development of the Seas, supra.

[cxxxv] See “ISA Council Begins Substantive Work on Draft Regulations On Sulphides”, International Seabed Authority Press Release SB/13/5 (July 10, 2007) at p. 3, at: http://www.isa.org.jm/files/documents/EN/Press/Press2007/SB-13-5.pdf .

[cxxxvi] See UNCLOS Section 4, Subsection G, Art. 177.

[cxxxvii] Id., at Art 178.

[cxxxviii] Id., at Art. 179.

[cxxxix] Id., at Art. 180.

[cxl] Id., at Art. 181.

[cxli] Id., at Art. 182(a).

[cxlii] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing; Institutional Arrangements for Financing”, in Ocean Governance: Sustainable Development of the Seas, supra.

[cxliii] Id.

[cxliv] “Countries with biotechnology industries have asserted either that Part XI accommodates “bioprospecting” (biological or genetic research carried out for commercial purposes) under the high seas freedom of marine scientific research, or that UNCLOS is simply not relevant to bioprospecting. The result of either view would be international patenting of deep sea living resources on a first-come-firstserved basis. This has provoked concern by developing countries, who have expressed concern that the fruits of marine scientific research cannot be owned at all, or else ought to be viewed as ‘common heritage of mankind’ subject to ISA regulatory and revenue-sharing jurisdiction. This [author] largely avoids this debate by focusing on the question precedent: whether the need for a new deep sea intellectual property regime is felt by a sufficient plurality of nations to make a new property rules agreement a viable political and legal necessity. In answering this antecedent question in the affirmative, this [author] briefly analyzes this intersection of TRIPS and UNCLOS and finds that the Convention provides fairly clear grounds for denying patentability for products derived from pure marine scientific research and for those covering organisms themselves collected in the Area” (boldfaced emphasis added). See Peter Prows, “Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law” (July 10, 2006). NYU Law School, Public Law Research Paper No. 06-19 at pp. 55-56, Abstract at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=918458 . Cf. Chika B. Onwuekwe, The Commons Concept and Intellectual Property Rights Regime: Whither Plant Genetic Resources and Traditional Knowledge?, 2 Pierce Law Review 65-90 (March 2004) at: http://www.lawreview.piercelaw.edu/PLRarticles/vol2no1/OnwuekweCommonsconcept.pdf (distinguishes between the concept of the “commons” and closely related terms often confused with it such as ‘open access’, ‘common property,’ ‘shared resources’, and ‘communal resources’ or ‘communal property’. This article argues that PGRs [plant genetic resources] are not within the category of commons recognized under international law or any other known jurisprudence. It further contends that equating the “air” or “outer space” with “plant plasm” is a misnomer because such an approach undermines the concept of sovereign control of natural resources (renewable and non-renewable) within a country’s territory”) Id., at p. 69.

[cxlv] See Christopher Garrison, “Beneath the Surface: the Common Heritage of Mankind”, Knowledge Essentials Studies, Vol. 1 (2007) at: http://kestudies.org/ojs/index.php/kes/article/viewDownloadInterstitial/21/38 (“...considering what might happen if it were decided that the biomedical invention landscape... were to be treated as an [A]rea in accordance with the principle of the Common Heritage of Mankind... a landscape covered with a grid, where each grid square contains a discrete invention. To discover each new invention involves “exploring’ the landscape in much the same way as [A]reas of the seabed are explored... Firstly, it will not permissible for any private or public entity to ‘own’ outright any of these biomedical inventions... Secondly, biomedical inventions would have to be managed for the benefit of all humanity... Thirdly, the benefits from these biomedical inventions must be shared amongst all humanity... Fourthly, biomedical inventions must only be used for peaceful purposes. Fifthly, scientific research must be able to be freely carried out and the results of this research, freely published in accordance with the scientific method, for the benefit of all humanity”) (emphasis added). Id., at pp. 76-77, and 79.

[cxlvi] See Section V, infra.

[cxlvii] “[S]ome countries within the group stressed that the benefits arising from marine genetic resources should be shared with developing countries by expanding the jurisdiction of the International Seabed Authority (ISA) or through new international regulations. While they pointed to article 136 of the UN Convention on the Law of the Sea as justification for the relevance of the common heritage of mankind to marine genetic resources, the US and Japan argued that this regime applies only to mineral resources whereas marine genetic resources should be subject to the freedom of the high seas principle, namely that the high seas are open to all States, and pointed to article 87 of UNCLOS to justify their position.” See “Legal Status of Marine Genetic Resources in Question”, Bridges Trade BioRes Vol. 6, No. 4 (March 3, 2006) at: http://www.ictsd.org/biores/06-03-03/inbrief.htm .

[cxlviii] See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing; Institutional Arrangements for Financing”, in Ocean Governance: Sustainable Development of the Seas, supra.

[cxlix] Id.

[cl] “[I]nternational taxes could be levied on specific traded commodities, such as internationally traded oil, other exhaustible hydrocarbons such as coal and natural gas, mineral raw materials, such as aluminum, copper, iron, lead, nickel, manganese, tin, and zinc and on international passenger and freight transport.” See Ruben P. Mendez, “Ocean Governance and Development: The Question of Financing: Specific Proposals”, supra, at: http://www.unu.edu/unupress/unupbooks/uu15oe/uu15oe0t.htm#specific%20proposals .

[cli] “Such leases, however, should be granted only on a long-term, even a quasi-perpetual, basis so that there would be an incentive to maintain the resources of the areas under lease rather than to overexploit them. For example, fishing nations could be assigned specific areas of the oceans in which only fish of a particular species, e.g. tuna, might be caught. As payment for the benefits derived available to some nations but not to others - user charges in the form of leases would be imposed.” Id.

[clii] “The cost of the permits would equal the marginal cost (to society and the environment) of the pollution. This method is used in nation-states and smaller political entities such as States and cities of the United States of America. The advantage of permits to pollute is that the polluters would pay according to the amount of damage they inflict on the environment, which would not be true of across-the-board regulation...A market for trading in such permits exists in the United States. A global market is also a possibility” (emphasis added). Id.

[cliii] Outer Continental Shelf Lands Act of 1953 (43 U.S.C. 1331 - 1356, P.L. 212, Ch. 345, August 7, 1953), as amended. “The 1953 statute defines the Outer Continental Shelf (OCS) as all submerged lands lying seaward of State coastal waters (3 miles offshore) which are under U.S. jurisdiction. The statute authorized the Secretary of Interior to promulgate regulations to lease the OCS in an effort to prevent waste and conserve natural resources and to grant leases to the highest responsible qualified bidder as determined by competitive bidding procedures”... Since its original enactment in 1953, the OCSLA has been amended several times, most recently as a result of the Energy Policy Act of 2005. Amendments have included, for example, the establishment of an oil spill liability fund and the distribution of a portion of the receipts from the leasing of mineral resources of the OCS to coastal states” (emphasis added). See “Outer Continental Shelf Lands Act”, Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service at: http://www.fws.gov/laws/lawsdigest/OUTCONT.HTML ; “OCS Lands Act History”, Minerals Management Service, U.S. Department of the Interior website at: http://www.mms.gov/aboutmms/OCSLA/ocslahistory.htm . Pursuant to a related law, “The Submerged Lands Act” (43 U.S.C. §§1301-1315 (1953)), as amended, “Congress sought to return the title to submerged lands to the states and promote the exploration and development of petroleum deposits in coastal waters...[and] natural resources...includ[ing] oil, gas, and all other minerals... Title II addresses the rights and claims by the States to the lands and resources beneath navigable waters within their historic boundaries and provides for their development by the States. Title III preserves the control of the seabed and resources therein of the Outer Continental Shelf beyond State boundaries and to the federal government and authorizes leasing by the Secretary of the Interior...” See “OCS Lands Act History”, Minerals Management Service, U.S. Department of the Interior website, supra at: http://www.mms.gov/aboutmms/pdffiles/submerged.pdf . In effect, the SLA grants coastal states title to offshore lands within their historic boundaries, generally up to three miles from the coastline, as well as the rights to the natural resources on or within those lands. The federal government relinquishes its claims to the lands and resources, but maintains the right to regulate offshore activities for national defense, international affairs, navigation, and commerce. The Act grants coastal states title to offshore lands within their historic boundaries, generally up to three miles from the coastline, as well as the rights to the natural resources on or within those lands. The federal government relinquishes its claims to the lands and resources, but maintains the right to regulate offshore activities for national defense, international affairs, navigation, and commerce.” See “Submerged Lands Act - Summary”, Fish & Wildlofe Service Handbook at: http://ipl.unm.edu/cwl/fedbook/sublands.html .

[cliv] However, it must not be forgotten that the U.S., under the stewardship of former President Carter, had previously enacted the Deep Seabed Hard Minerals Resources Act (30 U.S.C. 1441 et. seq.) and the Deep Seabed Revenue Sharing Trust Fund (26 U.S.C. 1472) which, not only anticipated US ratification of the UNCLOS or some other international deep seabed treaty, but also established an interim licensing and permitting regime that provided for the sharing of such deep seabed mining revenues with other nations as required by such a treaty. The Deep Seabed Hard Mineral Resources Act (DSHMRA) (Public Law 96-283, 30 U.S.C. 1441 et seq.), was signed by President Carter on June 28, 1980, and remains on the books as of 2006. It reflected the then congressional purpose “to encourage the successful conclusion of a comprehensive Law of the Sea Treaty, which will give legal definition to the principle that the hard mineral resources of the deep seabed are the common heritage of mankind and which will assure, among other things, nondiscriminatory access to such resources for all nations... to establish, pending the ratification by, and entering into force with respect to, the United States of such a Treaty, an interim program to regulate the exploration for and commercial recovery of hard mineral resources of the deep seabed by United States citizens; to accelerate the program of environmental assessment of exploration for and commercial recovery of hard mineral resources of the deep seabed and assure that such exploration and recovery activities are conducted in a manner which will encourage the conservation of such resources, protect the quality of the environment, and promote the safety of life and property at sea...” (emphasis added). See 30 U.S.C. 1401 (b)(1),(3) and (4). The DSHMRA established “an interim domestic legal regime for deep seabed mining pending adoption of an acceptable international regime, [including]...a licensing [and permitting] regime [30 U.S.C. 1411-1424] that ensures protection of the marine environment, safety of life and property at sea, prevention of unreasonable interference with other uses of the high seas, and conservation of mineral resources... The DSHMRA set[] forth criteria that would need to be met for an international regime to be acceptable to the U.S., namely, assured and nondiscriminatory access to deep seabed resources for U.S. citizens and assured continuity in mining activities undertaken by U.S. citizens prior to entry into force of an international regime under terms, conditions, and restrictions that do not impose significant economic burdens. [The] DSHMRA also recognize[d] that a treaty must be judged by the totality of its provisions. The Agreement to implement Part XI of the United Nations Convention on the Law of the Sea revises Part XI in a manner that satisfies these criteria” (emphasis added). See “Deep Seabed Hard Mineral Resources Act”, NOAA website at: http://maps.csc.noaa.gov/RoisDatabaseEntry/lawDetails.jsp?lawID=74 .** 30 USC 1414 provided that the “license and permit fees...be deposited into miscellaneous receipts of the Treasury.” 30 U.S.C. 1472(a) provides for the creation of trust fund to be known as the ‘Deep Seabed Revenue Sharing Trust Fund’. In particular, readers will be interested in 30 U.S.C. 1472(d), entitled, “Expenditures from Trust Fund”, which provides that, “If an international deep seabed treaty is ratified by and in effect with respect to the United States on or before the date ten years after June 28, 1980, amounts in the Trust Fund...[i.e., the amount of licensing and permit fees ‘appropriated to the Trust Fund [and]...determined by the Secretary of the Treasury to be equivalent to the amounts of the taxes received in the Treasury under [former Internal Revenue Code – 26 U.S.C.] section 4495’ [which has since been repealed]...shall be available, as provided by appropriations Acts, for making contributions required under such treaty for purposes of the sharing among nations of the revenues from deep seabed mining.” See 30 U.S.C. 1472(b).

[clv] The outer continental shelf area is defined as “The area of sea-bed and subsoil ranging from the 200 nautical mile EEZ limit to the seaward limit of the legal continental shelf, incorporating the geological continental shelf, rise, slope and margin but not including the superjacent water column above it. However, it shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.” UNCLOS Art. 76(5).

[clvi] UNCLOS Article 82.

[clvii] UNCLOS Article 82(4).

[clviii] See Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009) at pp. 61-70, abstract and working paper available online at Social Science Research Network (SSRN) at 53, 56-97, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837 .

[clix] “The International Seabed Authority is responsible for organizing and controlling all mineral-related activities that take place in the international seabed area. This is an enormous task: the ocean floor in the international seabed area covers more than 50 per cent of the world’s surface! It includes all the seabed areas beyond the 200-mile-limit exclusive economic zones of every country around the world. Mineral-related activities are highly diverse. Prospecting may target polymetallic nodule deposits and sulphides on the ocean floor or minerals embedded in cobalt-rich crusts. Mining may take place in depths of up to 6,000 metres and along biologically rich ocean floor areas, such as seamounts and hydrothermal vents. The International Seabed Authority is required to manage these activities. This includes managing the environmental impacts to ensure that mining activities do not cause undue harm to ocean biodiversity as well as ensuring that all countries share the benefits from the economic value of mineral resources. The mandate of the International Seabed Authority is sufficiently broad to address these and other issues. While the Authority aims to encourage the development of seabed mineral resources, for example, it also works to ensure that biodiversity within the marine environment is sustained. To maintain this balance, the Authority encourages and promotes marine scientific research in the international seabed area. The Authority also requires that research and scientific knowledge gained in this area be shared amongst the international science community so scientists around the world can benefit from the findings. This concept of ‘common heritage’ is an important overriding principle of the International Seabed Authority. The international seabed area and its resources are designated as the common heritage of all mankind. The Authority ensures that any economic benefits gained from extracting mineral resources in the area are shared between mining companies or entities and the international community. Any scientific understanding gained through deep-seabed research is also shared within the international scientific community” (emphasis added). See Michael W. Lodge, Collaborative Marine Scientific Research on the International Seabed, Journal of Ocean Technology (© 2008) at pp. 30-31, at: http://www.isa.org.jm/files/documents/EN/efund/JOT-article.pdf .

[clx] Pigovian taxes are discussed in greater depth in a subsequent section of this paper.

[clxi] Id.

[clxii] See Annex, Section 2 - “The Enterprise” of the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994), supra.

[clxiii] Id.

[clxiv] Id.

[clxv] “Although nations are jealous of their sovereignty, and do not readily submit to international authority, compulsory payments to the regular budgets of public international organizations have already been agreed to universally, in principle if not always in practice. In the World Bank and the International Monetary Fund the financial obligations of membership are punctiliously observed. Many political leaders and students of political economy raised the need for a more equitable distribution in the wealth of nations - for a narrowing of the gap between the rich and poor nations - and for international development assistance and economic cooperation. These led to the sprouting of a variety of international assistance programmes after the end of World War II.” Id.

[clxvi] “Perhaps the strongest precedent can be found in the European Community, where a true system of international taxation is already in full practice. Under this system, members of the EC pay 1 per cent of their value added tax (VAT) income to the European Commission, with the percentage increasing gradually over the years as Europe-wide legislation supersedes national legislation. This system could serve as a model for financing worldwide institutions such as the United Nations and its affiliated agencies. It illustrates the quickening pace and possibilities of institutional change in the fields of international political and economic relations.” Id.

[clxvii] See “OECD Development Assistance Committee (1996) Guidelines for Aid Agencies on Global and Regional Aspects of the Development and Protection of the Marine and Coastal Environment, Guidelines on Environment and Aid”, No. 8, supra at p. 18.

[clxviii] “One approach is a levy on individuals/organisations for discharging effluents. Dischargers should be charged a realistic user fee. Alternatively, authorisation for discharge may be issued in the form of tradable permits, as this would stimulate reduction and recycling of waste, and application of non- or less-polluting technologies. However, tradable permits do not take into account the location of the permitted source since in trading that varies and discharges from one location could be more harmful than those from another site. In addition, a charge could be levied on people/organisations moving certain residential, commercial or industrial activities to the coastal zone.” Id., at p. 19.

[clxix] Id.

[clxx] Id.

[clxxi] “User fees, charges for violating pollution control measures, pricing policies, fiscal incentives and taxes, have a major advantage over other fiscal and economic measures. They are automatic mechanisms which, when combined with appropriate institutional and regulatory arrangements, provide an effective vehicle for financing environmental protection.” Id., at p. 20.

[clxxii] See “NGO Paper 1 - New Financial Mechanisms for Sustainable Development - Green Taxes for Global Needs?”, Commission on Sustainable Development (CSD) NGO Finance Caucus (Feb. 2000) at: http://csdngo.igc.org/finance/fin_pos_paper1.htm .

[clxxiii] “The CSD NGO Finance Caucus calls for the Financing for Development High-Level Event in 2001 to further investigate the following suggestions for global revenue... [1] A tax on all or some international financial transactions (Tobin-like tax); [2] Taxes on specified traded commodities like fuel; [3] A tax on the international arms trade ; [4] A charge on international flights with departures and destinations in OECD countries; [5] Royalties on minerals mined in international waters; [6] Parking charges for satellites placed in geostationary orbit; [7] Charges for fishing international waters; [8] Charges for use of the electromagnetic spectrum (e.g. television, radio) in OECD countries; [9] Pollution charges; [10] A tax on traded pollution permits” (emphasis added). Id.

[clxxiv] See Peter Mountfield and Felix Dodds, “New Financial Mechanisms for Sustainable Development - Green Taxes for Global Needs?”, Draft NGO Position Paper, NGO Steering Committee to the United Nations Commission on Sustainable Development (Feb. 2000) at: http://csdngo.igc.org/finance/fin_paper_1_NFM.htm .

[clxxv] Id.

[clxxvi] “Some suggestions for global revenue (Taken from Overseas Development Institute Briefing Paper and UNDP Human Development Report) [include]: 1. A tax on all or some international financial transactions (Tobin Tax) Variants include a tax on bond turnover, or on derivations [;] 2. Bit Tax - on Internet messages the suggestion is 1 cent per 100 messages [;] 3. A general surcharge on international trade [;] 4. Taxes on specified traded commodities like fuel [;] 5. A tax on the international arms trade [;] 6. A charge on international flights [-] A variation is a tax on aviation kerosene [;] 7. Surcharges on post and telecommunication revenues [;] 8. An international lottery [tax;] 9. A surcharge on domestic taxation (usually expressed as a progressive share of income tax [;] 10. Royalties on minerals mined in international waters [;] 11. Parking charges for satellites placed in geostationary orbit [;] 12. Charges for exploration in or exploitation of Antarctica [;] 13. Charges for fishing international waters [;] 14. Charges for use of the electromagnetic spectrum [;] 15. A tax or charge on international shipping [;] 16. Pollution charges (eg dumping at Sea) [;] 17. A tax on traded pollution permits [;] 18. A voluntary local tax paid to central global agency [;] 19. Sale of part of the IMF gold stock [;] 20 Dedication of some part of national or local taxes eg on luxuries (or surcharges on them)” (emphasis added). See Peter Mountfield and Felix Dodds, “New Financial Mechanisms for Sustainable Development - Green Taxes for Global Needs?”, Draft NGO Position Paper, supra.

[clxxvii] See “German Advisory Council on Global Change – Mission”, at: http://www.wbgu.de/wbgu_auftrag_en.html .

[clxxviii] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change (Earthscan Publ. © 2000) at p. 149, at: http://www.wbgu.de/wbgu_jg2000_engl.pdf .

[clxxix] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change, supra , at p. 5.

[clxxx] See “World in Transition: Volume 2 - New Structures for Global Environmental Policy”, German Advisory Council on Global Change, supra , at p. 1.

[clxxxi] Id., at p. 8.

[clxxxii] Id., at pp. 8 and 181.

[clxxxiii] See “Charging the Use of the Global Commons”, German Advisory Council on Global Change (WGBU) Special Report, supra at p. 30.

[clxxxiv] “The Council therefore takes the view that user charges should initially only be levied for all ships that call at ports in the industrialized countries. The fact that the majority of ocean transport ends or begins in industrialized countries means that the main shipping parties would be included. In parallel, levying user charges may also serve as a clear signal of the willingness of the industrialized countries to contribute to financing global sustainability if the funds were deployed accordingly. If a system of levying user charges was applied in industrialized countries only, it seems reasonable that such a system should be established within the framework of the OECD – in substantive coordination with the IMO – without, however, limiting the participants to OECD members... Discussions on levying a charge on shipping fuel as a way to promote environmentally sound ships are primarily focused on the imposition of a comprehensive CO2 levy. The incentive effect of a charge on heavy oil will depend largely on the level of the charge... Alternatively a direct CO2 levy may be imposed upon ship operators. The charge could be imposed by port officials in conjunction with the harbour dues, on the basis of the origin of the relevant freight... The Council favours levying a new, environmentally differentiated charge to be paid on an annual basis... The charging system proposed by the Council is based primarily upon the deadweight tonnage of ships and the power of ship engines. It is not based upon the length of the journey completed because the recording and accounting processes would require much evidential documentation and extensive calculations. The ship is deemed to be in service for the whole year exerting a permanent adverse effect on the environment. All measures taken to reduce adverse environmental effects and to improve safety are taken into detailed consideration as ‘Quality Shipping’ measures leading to a bonus in the charge calculation. To identify Quality Shipping aspects, a catalogue containing 19 criteria grouped in three categories is proposed. These categories are: shipping company policy and management; ship design, construction and equipment; and the management and technology of operations on board ship. The catalogue was drawn up by the German Institute for Environmental Protection and Safety in Shipping (GAUSS –Gesellschaft für Angewandten Umweltschutz und Sicherheit im Seeverkehr). All these criteria can be evidenced by already existing internationally accepted certificates and documents, which leads to a rapid and straightforward monitoring process. Id., at pp. 25-27.

[clxxxv] Id., at p. 2.

[clxxxvi] See “Charging the Use of the Global Commons”, German Advisory Council on Global Change (WBGU) Special Report, supra at p. 4. “The present proposal by the Council builds upon the concepts previously recommended (WBGU, 2001b). This proposal should not be confused with the levying of a global tax on CO2 emissions, such as has been proposed in the run-up to the UNFfD in the Zedillo Report produced by the High-level Panel on Financing for Development (High-level Panel on Financing for Development, 2001).While the Zedillo Report proposal is certainly worthy of consideration, the concept of user charges differs in several respects. It is not based upon an international taxation approach, but upon a narrower understanding of charges in conjunction with an earmarking of revenue – consequently, its prospects of political viability are substantially better than those of taxation.” Id.

[clxxxvii] Id.

[clxxxviii] See “Legal Aspects of User Charges on Global Environmental Goods”, Executive Summary, Ecologic Institute for International and European Environmental Policy (Nov. 13, 2005) at: http://www.ecologic.de/download/projekte/1850-1899/1886/1886_summary.pdf .

[clxxxix] Id., at p. 2.

[cxc] Id.

[cxci] Id., at p. 5.

[cxcii] See “PA’s Coming Transportation Taxes: When a “User Fee” is a ‘Tax’”, Commonwealth Foundation for Public Policy Alternatives (July 17, 2007) citing Matthew J. Brouillette, president of the Commonwealth Foundation, at: http://www.commonwealthfoundation.org/newsreleases/pa-s-coming-transportation-taxes-when-user-fee-tax .

[cxciii] See Lawrence W. Reed, “User Fees and Taxes: What’s the Difference?”, Mackinac Center for Public Policy (Jan. 20, 1992) at: http://www.mackinac.org/190 .

[cxciv] See Lawrence W. Reed, “A Tax is Not a User Fee”, The Freeman: Ideas on Liberty, Vol. 49 No. 6 (June 1999) at: http://www.fee.org/Publications/the-Freeman/article.asp?aid=4409 .

[cxcv] See “Charging the Use of the Global Commons”, German Advisory Council on Global Change (WBGU) Special Report, supra at pp. 3-4.

[cxcvi] See Jonathan Williams “Gasoline Taxes: User Fees or Pigouvian Levies?”, Commentary, Tax Foundation (Nov. 27, 2006) at: http://www.taxfoundation.org/news/show/2048.html .

[cxcvii] “Certain types of Pigovian taxes are sometimes referred to as sin taxes, for example taxes on alcohol and cigarettes. Sin taxes are often enacted for special projects — American cities and counties have used them to pay for stadiums — when increasing income or property taxes would be politically inviable. The proper name for such taxes is sumptuary tax.” See “Pigouvian Tax”, Wikipedia at: http://en.wikipedia.org/wiki/Pigovian_tax .

[cxcviii] See Bruce F. Davie, “Sumptuary Taxes”, in The Encyclopedia of Taxation and Tax Policy Second Edition, (Joseph J. Cordes, Robert D. Ebel, and Jane G. Gravelle Eds.) Urban Institute (© 2005) at: http://www.urban.org/books/TTP/davie.cfm .

[cxcix] “N. Gregory Mankiw, Harvard professor and former Chairman of the Council of Economic Advisers... publicly advocated higher Pigouvian taxes, such as gasoline taxes or carbon taxes.” Mankiw has advocated phasing in a $1 per gallon increase in Pigouvian gasoline taxes over a decade to correct for social costs created by gasoline consumption – specifically relating to national security, traffic congestion and pollution. In theory, using Pigouvian taxes is efficient and straightforward, but in practice, the Pigouvian solution is anything but simple. One important problem often ignored by advocates of Pigouvian taxes is what is typically referred to as the “knowledge problem.” That is, if gas taxes should be raised purely to offset the social costs of gasoline consumption, how high are those social costs, how would policymakers attempt to quantify them on an ongoing basis, and how high of a tax would be necessary to compensate for them? Clearly, the practical difficulty of compiling data and estimating social costs is not trivial. Pigouvian taxes place enormously high information burdens on policymakers. Policymakers looking for social cost estimates in the economic literature will find results that vary widely... Additionally, what level of total social welfare loss would Americans experience if policymakers overestimate the costs of externalities and implement an excessive Pigouvian tax? Those hit hardest would be the lower-income Americans who are already disproportionately harmed by the regressive nature of gasoline taxes. On the other hand, what convinces proponents of Pigouvian taxes that $1 per gallon would be enough to solve the plethora of harms that “under-priced” gasoline is said to create?.. Even if policymakers were able to solve the “knowledge problem” that plagues Pigouvian taxes, finding the optimal policy solution for environmental externalities from fossil fuels may require additional analysis. For instance, even if a government-appointed central actor could somehow ascertain the “correct” tax rate that internalizes negative externalities from pollution, gasoline is probably the incorrect base for that tax. If the objective is to internalize environmental costs from fossil fuels, why not focus on carbon emissions directly?... Raising gasoline taxes for Pigouvian purposes advances a dangerous view of tax policy, where government attempts to use the tax code as a tool to centrally plan economic decisions. The fundamental purpose of taxes is to raise necessary revenue for government programs, not micromanage a complex market economy with subsidies and penalties. The tax system’s central aim should be to minimize distortions in the economy, and to interfere as little as possible with the decisions of free people in the marketplace.” See Jonathan Williams “Gasoline Taxes: User Fees or Pigouvian Levies?”,supra.

[cc] See Bernie Fischlowitz-Roberts, “Restructuring Taxes to Protect the Environment”, Earth Policy Institute (2002) at: http://www.earthpolicy.org/Updates/Update14.htm . Actually, France, Belgium, West Germany... Denmark and the European Commission have, as far back as 1990, called for environmental carbon taxes. “Environment ministers of the European Community found little common ground when they met in Rome last weekend to explore the use of taxes and other economic means of cleaning up the environment... Spain and Ireland feared that taxes on dirty technology would hamper their efforts to 'catch up' economically with the rest of Europe - but Greece supported environmental taxes. France, Belgium, West Germany and Denmark called for a 'carbon tax' to reduce emissions of carbon dioxide, the main greenhouse gas. The Danes called for a tax on CFCs, which destroy ozone and are also greenhouse gases...West Germany will shortly become the first country in Europe to impose a financial disincentive on carbon dioxide emission, but it will not be a tax. The environment minister, Klaus Topfer, announced that he would ask the German parliament in November to impose a duty on carbon dioxide emissions of 10 Deutschmarks (Pounds sterling 2.85) per tonne. Payments would be collected in a special fund, worth some 5 billion Deutschmarks per year, to be invested in energy-efficient technology. The European Commission itself supported community-wide taxes on carbon emissions at the Rome meeting. Its discussion document argued that 'to avoid economic distortions between member states . . . a common framework for charging/taxing greenhouse gas emissions should be...agreed at Community level'... Holland opposed harmonised taxes for fear that they would be too weak, and would dilute its ambitious plans for environmental tax incentives and other financial measures. Belgium, France, West Germany and Denmark supported such 'harmonised' taxation.” See Debora Mackenzie, “As Europe's Ministers Fail to Agree on Framework for Green Taxes”, The New Scientist Environment (Sept. 29, 1990) at: http://environment.newscientist.com/article/mg12717360.900----as-europes-ministers-fail-to-agree-on-framework-forgreen-taxes-.html .

[cci] See Jan Kees de Jager, “Modernization of Tax Systems: Instrument for Sustainable Economic Growth”, Speech by the State Secretary for Finance, The Netherlands at the Brussels Tax Forum, 20 March 2007, at pp. 1-2, at: http://ec.europa.eu/taxation_customs/resources/documents/common/about/speeches/taxforum_2007/de_jager.pdf .

[ccii] See László Kovács, EU Commissioner for Taxation and Customs Union, Europa Website at: http://ec.europa.eu/commission_barroso/kovacs/index_en.htm .

[cciii] *See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES COM(2007) 140 final (3/28/07) Box C.8: Classification and features of environmental taxes, p. 414, at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0140en01.pdf .

[cciv] See László Kovács, “Taxation for Sustainable Development”, Opening Speech, Brussels Tax Forum (March 19, 2007) at: http://ec.europa.eu/taxation_customs/resources/documents/common/about/speeches/kovacs_taxforum_190307.pdf .

[ccv] See “Curriculum Vitae” of László Kovács, EU Commissioner for Taxation and Customs Union, Europa Website at: http://ec.europa.eu/commission_barroso/kovacs/my_profile/index_en.htm .

[ccvi] *See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES, supra at: p. 3..

[ccvii] Id., at pp. 3-4.

[ccviii] Although “EU tax levels remain generally high in comparison with the rest of the world, with the EU27 tax ratio exceeding those of the USA and of Japan by some 13 percentage points...environmental tax revenues have been declining since 1999; their 2005 level, 2.6% of GDP, is the lowest in ten years. This drop is due to lower energy taxation, as revenues from the other environmental taxes have remained stable” (emphasis added). See “Taxation trends in the EU Rise in Overall Tax Burden in the EU27 to 39.6% of GDP in 2005”, European Union Press Release STAT/07/89 (June 26, 2007), Europa Website at: http://europa.eu/rapid/pressReleasesAction.do?reference=STAT/07/89&format=HTML&aged=0&language=en&guiLanguage=en .

[ccix] “The EU is, taken as a whole, a high tax area. In 2005, the last year for which detailed tax data are available, the total tax ratio in the EU-27 amounted to 39.6 % (in the GDP-weighted average; see Table Tot_G in Annex A), about 13 percentage points of GDP above those recorded in the United States and Japan. The EU tax-to-GDP ratio is high not only compared with these two countries but generally; among the major non-European OECD members, only New Zealand has a tax ratio that exceeds 35 per cent of GDP1)... “Currently, roughly one euro out of every fifteen in revenue derives from environmental taxes. Data...show that while environmental tax revenues have increased considerably, particularly in the 1990-1994 period, in the last five years they have been on the decline, at least in the EU-15. This trend continued in 2005. In contrast, in the 12 newly acceded Member States, which originally levied low environmental taxes, revenues from this kind of taxes have shown a strong progression over time, so that by now there is practically no difference vis-à-vis the EU-15 in this respect; but this was not enough to offset the decline in the EU-15” (emphasis added). See Taxation Trends in the European Union: Data for the EU Member States and Norway”, Eurostat Statistical Books (2007 Edition) Executive Summary at pp. 7 and 9, at: http://ec.europa.eu/taxation_customs/resources/documents/taxation/gen_info/economic_analysis/tax_structures/Structures2007.pdf .

[ccx] The reader, at this point, should not overlook the indelible impression that the philosophy of eighteenth century Frenchman, Claude Adrien Helvetius had left on the European social behaviorists of his time, and apparently, now, the politicians of today. Helvetian-favored communalism and utilitarian logic are most definitely the driving force behind the current indoctrination climate under which European cultural preferences are being converted into an almost universal and unquestioning acceptance of national, regional, and potentially, supranational governmental mandates to employ the hazard-based precautionary principle in every day economic life. Helvetius “advocated legislation...as the means by which happiness for the greatest number would be achieved.” See Eric Samuelson, A BRIEF CHRONOLOGY OF COLLECTIVISM (1997) at:
http://www.mega.nu:8080/ampp/samuelson.html#preserve%20the%20rights .

[ccxi] “Men develop according to the cultural pressures to which he is subject. Education accounts for all differences between individuals and must be utilized to realize ‘the ideal of general intelligence, virtue, and happiness’... In [Helvetius’] system, the only pleasure that is immoral is one that conflicts with the pleasure of the greatest number... The final test of any action, then, is its utilitarian value - its use to the public. The ideal government, he believed, would bring the greatest happiness to the greatest number, and universal education would make children useful to such a society. He advocated legislation of punishments and rewards to force men to contribute to public welfare. Under such a system, he felt only madmen could prevent themselves from being good citizens. Individual preferences and rights are lost to Helvetius in the all-consuming importance of public interest” (emphasis added). Id., citing Mordecai Grossman, THE PHILOSOPHY OF HELVETIUS 16 (1926). Hence, the wisdom of Helvetius has permeated the Brussels bureaucratic mindset, which has recognized how cultural pressures influenced by individual perceptions of others’ preferences and by the educational power of universally applicable (national, regional and international) laws, regulations and standards can help shape societal behavior in ways that may facilitate government’s fulfillment of socially and politically desirable policy objectives. It is therefore only in this light that one can truly appreciate why people would ever clamor for more rather than less regulation and taxation.

[ccxii] See “The Role of Taxation in Sustainable Development: A Shared Responsibility for Developing and Developed Countries”, Institutional Approaches to Policy Coherence for Development - OECD Policy Workshop (May 18-19 2004) at p. 6, at: http://www.oecd.org/dataoecd/24/25/31744387.pdf .

[ccxiii] See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES COM(2007) 140 final supra, at p. 2.

[ccxiv] Id., at p.5.

[ccxv] See Jan Kees de Jager, “Modernization of Tax Systems: Instrument for Sustainable Economic Growth”, Speech by the State Secretary for Finance, The Netherlands at the Brussels Tax Forum, 20 March 2007, at: http://ec.europa.eu/taxation_customs/resources/documents/common/about/speeches/taxforum_2007/de_jager.pdf .

[ccxvi] “In 2005, revenues from environmental taxes in the EU-27 (in the GDP-weighted average) accounted for 2.6 % of GDP and for 6.6 % of total revenues. Compared to 1980, when environmental taxes accounted for 0.5 % of GDP43), the increase is significant. However, in the EU-15, the main increase took place between 1990 and 1994 and was largely driven by the above-average increase of energy taxes; in the recently acceded Member States the situation is different as the increase in environmental taxes usually took place somewhat later and was partly linked with the EU accession process. Since the year 1999 environmental tax revenues, in the weighted average, have slightly decreased both in relation to GDP and as a share of total taxation; this overall decline is due essentially to the trend in the larger Member States, as the simple arithmetic average does not show any decline in revenue.” See Taxation Trends in the European Union: Data for the EU Member States and Norway”, Eurostat, supra at p. 109.

[ccxvii] Id., at p. 112.

[ccxviii] See “GREEN PAPER On Market-based Instruments for Environment and Related Policy Purposes”, COMMISSION OF THE EUROPEAN COMMUNITIES COM(2007) 140 final supra, at p. 5.

[ccxix] “It is also worth pointing out that the decrease in environmental tax revenues on GDP in recent years could be due in part to innovations in policy instruments. An example of this could be represented by an increased recourse to road pricing systems accompanied by a reduction in lump-sum car circulation taxes (which, by not affecting the cost per kilometre, have a lower impact on emissions). In this case, environmental tax revenues – specifically, the car registration tax – are reduced. The revenues of the charges for using roads increase, but this does not translate into higher tax revenues because these are not booked as taxes. CO2-emissions trading will probably also translate into less environmental tax revenues and a diminishing tax–to-GDP ratio.” Id.

[ccxx] “In its 6th Environmental Action Programme, the European Community argued for a broadening of the range of policy instruments beyond environmental legislation. These should include increased use of market-based instruments, such as environment taxes, aiming to internalise external environmental costs and thereby stimulate both producers and consumers towards limiting environmental pressure and towards responsible use of natural resources. In October 2003, after six years of negotiations in the Council, the Directive (2003/96/EC) for restructuring the Community framework for the taxation of energy products and electricity was adopted by the Council. The Directive extended the Community system of minimum rates to coal, natural gas and electricity, and increased the existing minimum rates from their 1992 level to some extent.” Id., at p. 109, fn # 42.

[ccxxi] “Britain is to push for pollution from the global aviation and shipping industries to be included in a new international agreement on climate change at a meeting in Bali... Action on greenhouse gas emissions from international travel and trade is among eight points that British and European negotiators intend to pursue at the meeting, which aims to set the framework for a global treaty to replace the Kyoto protocol when it runs out in 2012... Kyoto does not include carbon emissions from international aviation and shipping... Europe is concerned that the expected rises in aviation and shipping emissions could cancel out gains made elsewhere, though officials concede any agreement to regulate them worldwide would be difficult to achieve... Joseph Zacune, international climate campaigner with Friends of the Earth, said: ‘Industrialised nations must commit to stringent targets and timetables that ensure emissions peak by 2015 and continue to fall. ‘A comprehensive range of mitigation and adaptation efforts are needed, including changes in the lifestyle and unsustainable consumption patterns of the richer industrialised nations...’” See David Adam, “UK to Seek Pact on Shipping and Aviation Pollution at Climate talks - Europe to Put Forward Eight-point Plan at Meeting on Replacing Kyoto Protocol”, Guardian Unlimited (Dec. 3, 2007) at: http://www.guardian.co.uk/environment/2007/dec/03/climatechange.greenpolitics . “Rich and poor differed on Sunday over how to open up trade in green goods, with Brazil fearing a major U.S.-EU proposal raised on the fringes of climate talks in Bali was a protectionist ruse... Pakistan and Brazil voiced reservations on Sunday over a move to cut tariffs on clean technologies, such as wind power and solar panels, meant to help reduce the cost of curbing greenhouse gas emissions blamed for global warming. They suspect the measure's real intention is to boost exports from rich nations... World Trade Organisation chief Pascal Lamy said developing countries, such as Indonesia, Malaysia and Thailand, were leaders in some clean technologies and would benefit from free trade in environmental goods. CARBON TAXES He also said trade rules could be tweaked to help curb the output of greenhouse gases, for example taking into account carbon taxes and subsidies, or minimum environmental standards. But that would have to be under the framework of an international climate change pact, he said. ‘The relationship between international trade and indeed the WTO and climate change would be best defined by a consensual, international agreement on climate change that successfully embraces all major polluters,’ Lamy said. The Bali climate talks aim to find ways to include outsiders such as top carbon emitters the United States and China in the fight against rising greenhouse emissions scientists say will lead to more droughts, floods, heatwaves and rising seas.” See Gerard Wynn and Adhityani Arga, “Nations Bicker in Bali Over ‘Green’ Goods Trade”, Reuters (Dec. 9, 2007) at: http://www.alertnet.org/thenews/newsdesk/SP210166.htm ; “New York City Mayor Michael Bloomberg, who has won praise for his ambitious sustainability plan for the largest U.S. city, said that a carbon tax, as compared to regulation-heavy carbon trading, would be a much more efficient and fair way to limit greenhouse gas pollution, the Associated Press reported. He made his comments in Bali where the United Nations is wrapping up a contentious summit on global warming that is intended to draft a roadmap for updating the global climate change treaty.” See Dan Shapley, “Bloomberg, in Bali, Calls for Carbon Tax”, The Daily Green (Dec. 14, 2007) at: http://www.thedailygreen.com/environmental-news/latest/bloomberg-global-warming-47121403 ; “New York City Mayor Michael R. Bloomberg, at a U.N. climate conference drawing hundreds of emissions traders, said Thursday the growing carbon cap-and-trade industry is vulnerable to ‘special interests, corruption, inefficiencies,’ and should be replaced by straight carbon taxes. Speaking of global warming, Bloomberg said, ‘Most experts would agree that the way to solve the problem is with a carbon tax.’ The Kyoto Protocol, requiring 37 industrial nations to reduce carbon dioxide and other industrial, transportation and agricultural emissions, has given rise in Europe and elsewhere to carbon cap-and-trade systems, under which businesses that don't use up quotas of emission allowances sell them to others who need them to overshoot their ceilings. That in turn has given rise to a multibillion-dollar global industry of brokers, analysts and project managers dealing in such carbon credits and ‘green’ projects that produce them...[Carbon trading ‘is attractive to many politicians because it doesn't have that three-letter word tax. But it's a very inefficient way to accomplish the same thing that a carbon tax accomplishes,’ he said. ‘It leaves itself open to special interests, corruption, inefficiencies.’ See “Carbon Tax Should Replace Carbon Trading to Curb Climate Change, Says US Mayor Bloomberg”, Associated Press (Dec. 14, 2007) at: http://www.iht.com/articles/ap/2007/12/13/asia/AS-GEN-Bali-NY-Mayor.php .

[ccxxii] “The United States warned the European Union yesterday against using climate change as a pretext for protectionism, setting the stage for trans-Atlantic tension over a new package of EU measures to combat global warming. The pointed comments by the US trade representative, Susan Schwab, after talks in Brussels, came just two days before the European Commission introduced its proposals for cutting EU emissions at least 20 percent from 1990 levels by 2020. ‘We have been dismayed at a variety of suggestions where we have seen the climate and the environment being used as an excuse to close markets,’ Schwab said after discussions with Peter Mandelson, her European counterpart. President Nicolas Sarkozy of France has called for a carbon tax on imports to ensure that European companies that need to comply with tough environmental rules are not undercut by foreign competitors whose governments are not capping carbon emissions. EU officials were not expected to propose such a measure tomorrow but were expected to keep alive the possibility of a so-called border tax to keep European industries competitive. The EU pledge to protect European industry by 2011 at the latest will be aimed at assuaging powerful lobby groups from sectors like steel and aluminum manufacturing, which say they are facing higher costs than their overseas competitors because of the EU's determination to lead the world in climate protection. Even so, EU officials hope to be able to avoid the issue, not least because any European border tax could be challenged at the World Trade Organization” (emphasis added). See James Kanter and Stephen Castle, “US Warns EU On Using Climate Change as Pretext”, International Herald Tribune (Jan. 21, 2008) at: http://www.iht.com/articles/2008/01/21/business/carbon.php .

[ccxxiii] See Carl Mortished, “EU Split Over Plan to Levy Import Tax on Polluters”, London Times Online (Jan. 8, 2008) at: http://www.timesonline.co.uk/tol/news/environment/article3149181.ece .

[ccxxiv] See Justin Stares, Denmark Floats Idea of Global Bunker Fuel Tax, Lloyds List Daily Commercial News (May 8, 2009) at: http://www.lloydslistdcn.com.au/archive/2009/may/weekly-edition-7th-of-may-2009/denmark-floats-idea-of-global-bunker-fuel-tax .

[ccxxv] Id.

[ccxxvi] See Result of COP 15 – No Decisions Regarding Shipping but the Setting has Changed, BIMCO News (Dec. 2009) at: https://www.bimco.org/Members/News/General_News/2009/12/23_Result_of_COP_15.aspx .

[ccxxvii] See United Kingdom: Decarbonising The Shipping Sector - Extension Of The EU Emissions Trading Scheme, Freshfield Bruckhaus, Deringer, Mondaq (May 24, 2010) at: http://www.mondaq.com/article.asp?articleid=100570 .

[ccxxviii] See PREVENTION OF AIR POLLUTION FROM SHIPS - A further outline of a Global Emission Trading System (ETS) for International Shipping, Proposal Submitted by Norway, MARINE ENVIRONMENT PROTECTION COMMITTEE 60th session Agenda item 4, MEPC 60/4/22 (Jan. 15, 2010) at: http://www.rina.org.uk/c2/uploads/mepc%2060_4_22.pdf .

[ccxxix] See IMO Environment Committee Makes Progress, IMO Briefing 10 (March 26, 2010) at: http://www.imo.org/newsroom/mainframe.asp?topic_id=1859&doc_id=12724 .

[ccxxx] See PREVENTION OF AIR POLLUTION FROM SHIPS - Proposal to Establish a Vessel Efficiency System (VES) Submitted by the World Shipping Council, International Maritime Organization MARINE ENVIRONMENT PROTECTION
COMMITTEE Agenda item 4, MEPC 60/4/XX (Jan. 15, 2010) at: http://www.worldshipping.org/WSC_Draft_VES_Proposal__-14_Jan-_revised.pdf

[ccxxxi] Id.

[ccxxxii] See Which Market Based Instrument Proposal Would be the Most Effective in Reducing Greenhouse Gas Emissions from Ships?, Sustainable Shipping (Mar. 22, 2010) at: http://www.sustainableshipping.com/forum/polls/92595/Which-market-based-instrument-proposal-would-be-the-most-effective-in-reducing-greenhouse-gas-emissions-from-ships .

[ccxxxiii]See IMO Environment Committee Makes Progress, IMO Briefing 10, supra.

[ccxxxiv] See Jack Devanney, Efficient, Safe Reduction of CO2 Emissions from Shipping, Center for Tankship Excellence (May 28, 2010) at pp. 3, 6-8, at:

http://www.c4tx.org/ctx/pub/tax_vs_ets.pdf .

[ccxxxv] Id., at p. 2.

[ccxxxvi] Id., at pp. 7, 14-16.

Some Observations About the Relationship Between the UNCLOS, Precautionary Principle-Based Multilateral Environmental Treaties & the WTO NOT Discussed

noreply@blogger.com (ITSSD Charitable Mission) — Sat, 29 May 2010 15:59:00 +0000

http://www.unep.org/gc/gc24/docs/S2R2.FINALdoc.pdf

World Trade Organization

TN/TE/S/2/Rev.2
16 January 2007

Committee on Trade and Environment

Special Session

Existing forms of cooperation and Information exchange
Between UNEP/MEAs and the WTO

Note by the Secretariat

Revision

This document has been prepared under the Secretariat's own responsibility and without prejudice to the positions of Members and to their rights and obligations under the WTO

1. In Paragraph 31(ii) of the Doha Ministerial Declaration, Ministers agreed to negotiations, without prejudging their outcome, on "procedures for regular information exchange between MEA Secretariats and the relevant WTO committees, and the criteria for the granting of observer status."[1] Moreover, the Doha Ministerial Declaration contains a number of references to the importance of cooperation and information exchange. In the Preamble, Ministers welcomed "the WTO's continued cooperation with UNEP and other inter-governmental environmental organizations. [They encouraged] efforts to promote cooperation between the WTO and relevant international environmental and developmental organizations, especially in the lead-up to the World Summit on Sustainable Development to be held in Johannesburg, South Africa, in September 2002."

2. At the launch of the negotiations in 2002, the Secretariat was requested to prepare a note informing the participants of existing information exchange practices between the WTO and MEAs to assist the CTESS discussions on the information exchange component of paragraph 31(ii) mandate.[2] The note entitled "Existing Forms of Cooperation and Information Exchange between the United Nations Environment Programme (UNEP)/Multilateral Environmental Agreements (MEAs) and the WTO" was prepared in response to that request. This present paper is the recent update of that note.[3]

3. The note addresses the following topics: (i) existing forms of cooperation between UNEP/MEAs and the WTO: arrangement between the WTO and UNEP Secretariats (pages 2-3); (ii) existing forms of information exchange Between UNEP/MEAs and the WTO: MEA Information Sessions in the CTE; and WTO side events in MEAs (pages 3-6); (iii) respective Secretariats' technical cooperation activities: WTO trade and environment regional seminars; and UNEP-UNCTAD Capacity Building Task Force (CBTF) and UNEP meetings back-to-back with the CTE (pages 6-9); (iv) background notes on MEAs (page 9); and (v) observer status: MEA observership in the WTO; and WTO observership in UNEP and MEAs (pages10-11).

A. Arrangement between the WTO and UNEP secretariats

4. On 29 November 1999, a cooperation arrangement between the WTO and UNEP Secretariats was concluded and its elements detailed in the following press release:

Elements of Cooperation between the WTO and UNEP

Press Release – Press/154 – 29 November 1999

A global arrangement between the Secretariat of the World Trade Organization and the United Nations as a whole was agreed between the two Secretariats in an exchange of letters between the Director‑General of the WTO and the Secretary-General of the United Nations on 29 September 1995. In accordance with the mandate given to the Secretariat of the WTO and the mandate given to the Secretariat of the United Nations Environment Programme (UNEP), recognition is given to the importance of cooperation and collaboration between the two Secretariats with respect to their work on issues of mutual interest.

Recalling the commitment of Members to continue to improve efforts towards the objective of sustainable development, the WTO and UNEP Secretariats have elaborated the following elements of cooperation between their respective organizations. This cooperation will take place in the context of our respective mandates and within our respective resources.

Building on the global arrangement between the UN and the WTO, consultations have been held between the Director-General of the WTO and the Executive-Director of UNEP to further effective cooperation between the two Secretariats in areas of mutual interest and to help achieve the aims of the Rio Declaration. It is understood that cooperation between the WTO and UNEP Secretariats should encompass practical measures which could assist in the smooth and efficient functioning of both organizations in areas where interaction could be of mutual benefit. The goal is to improve the working relationship at all levels in the two Secretariats, including with respect to technical cooperation and research initiatives.

Cooperation between the WTO and UNEP Secretariats will thus include the provision and exchange of relevant non-confidential information, including access to trade-related environmental databases, and reciprocal representation at meetings of a non‑confidential nature, in accordance with the decisions of the competent bodies of the respective organizations. With respect to participation and representation, it is noted that the WTO Secretariat is an observer of the Governing Council of UNEP, and UNEP is an observer of the WTO Committee on Trade and Environment.

Building on past practice, the Secretariats of the two organizations will also continue, as appropriate, their cooperation and collaboration, in particular through informal staff meetings and information sessions, including where feasible with the participation of the Secretariats of Multilateral Environmental Agreements.

Capacity building for developing countries and countries with economies in transition is another form of cooperative activity between the two Secretariats which could usefully be continued and further strengthened, thus contributing to raising awareness on the linkages between trade, environment and sustainable development and the development of policies which integrate sustainable development considerations with trade policies. We agree to work for complementarity in technical cooperation with the aim of improving cooperation across the board and making better use of available resources.

A. MEA Information Sessions in the CTE

5. The CTE has invited a number of MEA Secretariats to participate in a total of eight Information Sessions from 1997 to date. MEA Secretariats presented background notes on their respective MEAs and responded to questions from Members on the trade-related aspects of their agreements. Since 1997, the following MEAs have participated in CTE Information Sessions:[4] (see Table 1 below)

1. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention)

2. The Convention on Biological Diversity (CBD) and its Biosafety Protocol

3. The Convention for the Conservation of Atlantic Marine Living Resources (CCAMLR)

4. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

5. The International Commission for the Conservation of Atlantic Tunas (ICCAT)

6. The Intergovernmental Forum on Forests (IFF)

7. The International Tropical Timber Organization (ITTO)

8. The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)

9. The Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade

10. The Stockholm Convention on Persistent Organic Pollutants (POPs)

11. The United Nations Convention on the Law of the Sea (UNCLOS)

12. The United Nations Framework Convention on Climate Change (UNFCCC)

13. The United Nations Fish Stocks Agreement (UN Fish Stocks)

14. The United Nations Forum on Forests (UNFF)

_________________________________

[1] WT/MIN(01)/DEC/1, 20 November 2001.
[2] Summary Report on the First Meeting of the CTE Special Session (TN/TE/R/1, 19 April 2002).
[3] The previous update was made on 17 February 2005 (TN/TE/S/2/Rev.1).
[4] While not MEAs per se, the Global Environmental Facility (GEF) and the Multilateral Fund for the Implementation of the Montreal Protocol have also participated.

Table 1: MEA Information Sessions in the CTE

Date	MEAs Participating	Documents Crculated by MEAs
22-24 September 1997 (WT/CTE/M/15)	Basel Convention CBD CITES GEF Montreal Protocol Multilateral Fund for the Implementation of the Montreal Protocol UNCLOS UNEP Chemicals on PIC and POPS Conventions UNEP	Basel Convention (W/CTE/W/55) CBD (WT/CTE/W/64) CITES (WT/CTE/W/63) GEF (WT/CTE/W/58) Montreal Protocol (WT/CTE/W/57) Multilateral Fund for the Implementation of the Montreal Protocol (WT/CTE/W/60) UNCLOS (WT/CTE/W/62) UNEP Chemicals on PIC and POPS Conventions (WT/CTE/W59) UNFCCC (WT/CTE/W/61)
23-24 July 1998 (WT/CTE/M/18)	Basel Convention CBD ECE POPS Protocol ICCAT IFF ITTO UNEP Chemicals on PIC and POPS Conventions UNFCCC UNEP	Basel Convention (WT/CTE/W/90) CBD (WT/CTE/W/92) ECE POPS Protocol (WT/CTE/W/88) ICCAT (WT/CTE/W/87) IFF (WT/CTE/W/84) ITTO (WT/CTE/W/89) UNEP Chemicals on PIC and POPS Conventions (WT/CTE/W/91) UNFCCC (WT/CTE/W/74) UNEP (WT/CTE/W/94)
29-30 June 1999 (PRESS/TE/029)	CITES IFF ITTO Montreal Protocol UNFCCC	CCAMLR (WT/CTE/W/113 and CORR.1) CBD (WT/CTE/W/116) CITES (WT/CTE/W/119) IFF (WT/CTE/W/122) ITTO (WT/CTE/W/120) Montreal Protocol (WT/CTE/W/115) UNFCCC (WT/CTE/W/123)
5-6 July 2000 (WT/CTE/M/24)	CBD ICCAT Montreal Protocol UNFCCC UNEP	CBD (WT/CTE/W/149 and WT/CTE/W/136) CCAMLR (WT/CTE/W/148) ICCAT (WT/CTE/W/152) Montreal Protocol (WT/CTE/W/142) UNFCCC (WT/CTE/W/153) UNEP (WT/CTE/W/155)
24-25 October 2000 (WT/CTE/M/25) [1]	Basel Convention CBD CITES IFF UNEP chemicals on PIC and POPS Conventions UNFCCC UNEP	Basel Convention (WT/CTE/W/163 and CORR.1) CITES (WT/CTE/W/165) IFF (WT/CTE/W/164) ITTO (WT/CTE/W/169) UNEP Chemicals on PIC and POPS Conventions (WT/CTE/W/166) UNFCCC (WT/CTE/W/174) UNEP (WT/CTE/W/179)
27-28 June 2001 (WT/CTE/M/27)	Basel Convention Biosafety Protocol CBD CITES Montreal Protocol UNEP Chemicals on PIC and POPS Conventions UNFCCC UN Fish Stocks UNEP	The following MEAs contributed to a background paper jointly prepared by the WTO and UNEP Secretariats on Compliance and Dispute Settlement Provisions in the WTO and in MEAs – Note by the WTO and UNEP Secretariats (WT/CTE/W/191): Basel Convention Biosafety Protocol CBD CCAMLR CITES ICCAT Montreal Protocol UNEP Chemicals on PIC and POPS Conventions UNFCCC UN Fish Stocks
13 June 2002 (WT/CTE/M/30)	UNEP CITES PIC POPS UNFCCC CBD Basel Convention ITTO UNFF UN Fish Stocks UNCLOS	The following MEAs contributed to a background paper prepared for this Information Session on Technical Assistance, Capacity Building and Enhancing Information Exchange (WT/CTE/W/209): UNEP CITES Basel Convention UNFCCC CBD ITTO UNCLOS Other documents: UNEP (WT/CTE/W/213)
12 November 2002 (TN/TE/R/4)	UNFCCC CBD UNEP PIC POPS ITTO UNFF Basel Convention	UNEP (TN/TE/INF/2 AND 3)

Date

MEAs Participating

Documents Crculated by MEAs

22-24 September 1997 (WT/CTE/M/15)

Basel Convention

CBD

CITES

GEF

Montreal Protocol

Multilateral Fund for the Implementation of the Montreal Protocol

UNCLOS

UNEP Chemicals on PIC and POPS Conventions

UNEP

Basel Convention (W/CTE/W/55)

CBD (WT/CTE/W/64)

CITES (WT/CTE/W/63)

GEF (WT/CTE/W/58)

Montreal Protocol (WT/CTE/W/57)

Multilateral Fund for the Implementation of the Montreal Protocol (WT/CTE/W/60)

UNCLOS (WT/CTE/W/62)

UNEP Chemicals on PIC and POPS Conventions (WT/CTE/W59)

UNFCCC (WT/CTE/W/61)

23-24 July 1998 (WT/CTE/M/18)

Basel Convention

CBD

ECE POPS Protocol

ICCAT

IFF

ITTO

UNEP Chemicals on PIC and POPS Conventions

UNFCCC

UNEP

Basel Convention (WT/CTE/W/90)

CBD (WT/CTE/W/92)

ECE POPS Protocol (WT/CTE/W/88)

ICCAT (WT/CTE/W/87)

IFF (WT/CTE/W/84)

ITTO (WT/CTE/W/89)

UNEP Chemicals on PIC and POPS Conventions (WT/CTE/W/91)

UNFCCC (WT/CTE/W/74)

UNEP (WT/CTE/W/94)

29-30 June 1999 (PRESS/TE/029)

CITES

IFF

ITTO

Montreal Protocol

UNFCCC

CCAMLR (WT/CTE/W/113 and CORR.1)

CBD (WT/CTE/W/116)

CITES (WT/CTE/W/119)

IFF (WT/CTE/W/122)

ITTO (WT/CTE/W/120)

Montreal Protocol (WT/CTE/W/115)

UNFCCC (WT/CTE/W/123)

5-6 July 2000 (WT/CTE/M/24)

CBD

ICCAT

Montreal Protocol

UNFCCC

UNEP

CBD (WT/CTE/W/149 and WT/CTE/W/136)

CCAMLR (WT/CTE/W/148)

ICCAT (WT/CTE/W/152)

Montreal Protocol (WT/CTE/W/142)

UNFCCC (WT/CTE/W/153)

UNEP (WT/CTE/W/155)

24-25 October 2000 (WT/CTE/M/25) [1]

Basel Convention

CBD

CITES

IFF

UNEP chemicals on PIC and POPS Conventions

UNFCCC

UNEP

Basel Convention (WT/CTE/W/163 and CORR.1)

CITES (WT/CTE/W/165)

IFF (WT/CTE/W/164)

ITTO (WT/CTE/W/169)

UNEP Chemicals on PIC and POPS Conventions (WT/CTE/W/166)

UNFCCC (WT/CTE/W/174)

UNEP (WT/CTE/W/179)

27-28 June 2001 (WT/CTE/M/27)

Basel Convention

Biosafety Protocol

CBD

CITES

Montreal Protocol

UNEP Chemicals on PIC and POPS Conventions

UNFCCC

UN Fish Stocks

UNEP

The following MEAs contributed to a background paper jointly prepared by the WTO and UNEP Secretariats on Compliance and Dispute Settlement Provisions in the WTO and in MEAs – Note by the WTO and UNEP Secretariats (WT/CTE/W/191):

Basel Convention

Biosafety Protocol

CBD

CCAMLR

CITES

ICCAT

Montreal Protocol

UNEP Chemicals on PIC and POPS Conventions

UNFCCC

UN Fish Stocks

13 June 2002 (WT/CTE/M/30)

UNEP

CITES

PIC

POPS

UNFCCC

CBD

Basel Convention

ITTO

UNFF

UN Fish Stocks

UNCLOS

The following MEAs contributed to a background paper prepared for this Information Session on Technical Assistance, Capacity Building and Enhancing Information Exchange (WT/CTE/W/209):

UNEP

CITES

Basel Convention

UNFCCC

CBD

ITTO

UNCLOS

Symbol	Date Issued	Topic
WT/CTE/W/62	16 September 1997	The 1994 Agreement Relating to the Implementation of Part XI of the 1982 UN Convention on the Law of the Sea – Communication from the UN Division for Ocean Affairs and the Law of the Sea

The EU Has Long Relied on the UNCLOS Tribunal & Global Governance Framework to Export and Enforce its Green Precaution-Based SD Policies-Obama Agrees?

noreply@blogger.com (ITSSD Charitable Mission) — Sun, 15 Nov 2009 14:35:00 +0000

[The following European Commission press releases once again corroborate, verify and confirm all ITSSD research related to how Europe and the Obama administration seek to use US UNCLOS accession as a springboard to change US federal, state and local environmental law consistent with socialist Europe's Precautionary Principle.

For a detailed explanation of this see: Americans' Constitutional Rights Will Be Trampled Unless Senator Kerry & Other Congressional Committee Chairs Hold Public Hearings to Vet the UNCLOS , ITSSD Journal on the UN Law of the Sea Convention (May 5, 2009) at: http://itssdjournalunclos-lost.blogspot.com/2009/07/americans-constitutional-rights-will-be.html ].

-------------------------------------------------------------------------------------------------

http://ec.europa.eu/maritimeaffairs/speeches/speech130509_en.html

Dr. Joe Borg

Member of the European CommissionResponsible for Fisheries and Maritime Affairs

Challenges of globalisation: working together to strengthen global governance of the oceans

National Europe Centre, Australian National University

Canberra, 13 May 2009

Distinguished Guests, Ladies and Gentlemen,

It gives me great pleasure to be here in this vibrant country with its outstanding maritime tradition. I am especially pleased to be speaking to you here at the National Europe Centre, which is making a sterling contribution towards building ever closer ties between Australia and Europe. One of the many facets of your valuable work involves bringing together universities and national institutions and pursuing academic excellence. This admirable approach is to be encouraged. It also shows the extent to which concerted and genuine co-operation can yield first-rate results in any number of areas. And co-operation is very much the theme of my address to you today.

The period of financial, economic and also political turmoil we are currently experiencing certainly requires co-operation, for no region of the world has been left untouched and we are all feeling the consequences. The positive aspect of the current downturn is that, faced with these global challenges, the international community is coming together as it has rarely done before, to forge common responses.

The importance of the efforts to promote global governance is becoming ever more obvious. Indeed, they are starting to bear fruit in a number of fields.

Today I would like to mention a few issues related to global governance of the oceans where I believe progress is undeniable and encouraging, both on an international scale, at regional level, and within the EU. We have two main instruments in the EU that help us govern our activities with the seas and oceans: the Common Fisheries Policy and the recently established Integrated Maritime Policy. Both policies relate to a number of international conventions, agreements and arrangements of which the EU is often party. Developments in the United Nations Convention on the Law of the Sea are therefore of direct interest to the EU.

A case in point is the international effort on tackling the problems caused by the use of destructive fishing practices. In a world where the search for natural resources, including fish, has become increasingly difficult, technological progress has enabled fishermen to use fishing gears to take them to previously uncharted depths. However, the negative consequences of these fishing practices have quickly become apparent, as, in many areas, vulnerable marine ecosystems have been destroyed by fishing gears raking across ocean floors. We know today that for those vulnerable marine ecosystems to recover - if they are to recover at all - long periods of complete rest and isolation will be needed.

At the UN General Assembly in 2006, the European Community and others decided to take action. The General Assembly laid down a set of rules and conditions to be applied to bottom fishing in a resolution known as UNGA 61/105.

As you may know, fishing on most parts of the high seas is governed by Regional Fisheries Management Organisations or RFMOs. Obviously, RFMOs have a very important role to play in implementing this UN resolution, as they agree on the detailed technical rules and fishing possibilities they undertake to respect in the area of the sea under their responsibility.

The European Union and others have been working hard to promote and ensure implementation of the UN rules on bottom fishing. In RFMOs we have tried to push for the adoption of strict measures, often supported by Australia and other countries. While rule-setting within RFMOs has had a relatively encouraging start, progress is still needed on the implementation side.

Until now, the European Union is the only party that has adopted a set of rules for its fishing vessels limiting the impact, and, in many cases, prohibiting bottom fishing practices in areas of the high seas for which there is no RFMO. We implement a precautionary approach and only allow Member States to permit bottom trawling once there is scientific evidence that such practices do not cause additional damage to vulnerable marine habitats. We hope that international partners will adopt similar measures.

We are looking forward to this year's stock-taking exercise on the implementation of resolution 61/105, at the UN. I hope that increasing transparency on the efforts undertaken will demonstrate that rule-setting at global level on a specific issue which can have a serious impact on marine ecosystems will be both possible and effective.

I mentioned that most of the high seas are covered by Regional Fisheries Management Organisations. We are working on filling up the gaps. Thus, the EU and Australia, along with interested parties are in the last stages of agreeing on a convention that would lead to the creation of such an organisation for the South Pacific. In the meantime, management measures have been put in place under an interim arrangement.

There are other examples in the field of fisheries where progress is being achieved both at global and regional level. One major challenge lies in tackling illegal, unreported and unregulated (IUU) fishing practices. With an estimated global turnover of 10 billion Euro a year, IUU or pirate fishing is big business. IUU fishing benefits fraudsters but brings nothing to others but grief through over-fishing, habitats destruction and unfair competition. This is why we must fight these illegal activities together

Negotiations at the FAO Committee on Fisheries in Rome to establish an internationally binding instrument on so-called port State measures are ongoing. The aim here is to allow port States to react with a set of measures when confronted with vessels that have clearly been engaging in IUU activities. Good progress has been made in the last year and, again, at the meeting last week in Rome. The last stumbling issues now need to be resolved so as to pave the way for an agreement on international measures.

As the biggest market in the world, the EU also wants to take action at the trade level and close the door to illegally-caught fish. Thus, last September it adopted a Regulation on IUU fishing which will enter into force on 1 January 2010. This Regulation will apply to all fishing vessels, under any flag. It seeks to prevent, deter and eliminate IUU fishing in all maritime waters. To ensure that no products derived from IUU fishing appear on the EU market or on markets supplied from the EU, the Regulation seeks to ensure full traceability of all fishery products traded with the Union through a catch certification scheme.

This scheme will improve and facilitate control and compliance with conservation and management rules in co-operation with third countries. The Regulation also comprises provisions on port State control, mutual assistance in monitoring and control, IUU vessel identification, and it includes a system of proportionate and dissuasive sanctions for serious infringements. We obviously want to do all we can to facilitate the implementation of this IUU Regulation and have held a number of bilateral meetings with third countries. My Services have also organised regional seminars for the authorities. Two have already taken place in South Africa and Columbia, one will be held tomorrow in Viet-Nam and one in June in Cameroon. The Commission is looking at having a fifth meeting for the Island Countries in the Pacific.

We also hope that others will follow in adopting market-related measures.

This brings me back to the co-operation I mentioned at the start. I know that Australia is also deeply committed to doing away with IUU practices, and I am confident that by working together we can help stamp out IUU fishing.

Australia's approach to IUU fishing is typical of its longstanding and pioneering commitment to sustainable fisheries. Your fisheries management and the ecosystem approach on which it is based are well known around the world. In the European Union, fisheries are facing tremendous challenges. Our own work in that vein has just entered a new phase with the publication of a Consultation Paper on the reform of the EU's Common Fisheries Policy, kicking off a debate to identify means of achieving sustainable and responsible fisheries in Europe.

The conditions for such a debate are good, given the awareness among European citizens of the need to develop sustainable fisheries. The public consultation will run for the remainder of the year and we expect to have a new ambitious and durable policy in place from 2013.

Co-operation is also very much a core principle of integrated maritime policy – another area in which Australia has led the way and provided us with much inspiration. Europe, a continent located between two oceans and four seas, has nearly 70 000 kilometres of coastline. Europeans have always been among the world's leading seafarers, and this remains the case today. Nowadays, over 40% of the EU's internal trade is carried out by sea, and almost 4.8 million Europeans now work in the maritime sector.

Yet, until 18 months ago when the integrated maritime policy was adopted, maritime matters had traditionally been addressed as part of sector-specific concerns at EU level: maritime transport, fisheries, aquaculture, off shore energy extraction, tourism and environment, to name but a few.

The IMP aims to provide an over-arching, integrated and coherent approach among the various sea-related initiatives taken under sectoral EU policies – an approach grounded in robust and constant multi-stakeholder interaction. The Commission is also encouraging Member States to adopt this integrated approach. This is particularly relevant at a time of economic crisis when we need to give an even stronger push for investment in the industries of the future and to create jobs. Offshore energy, port expansion, new energy transmission systems and the development of cost-efficient coastal infrastructure will ensure a return on Europe's investment.

Having been adopted by the Commission in October 2007, the EU's Integrated Maritime Policy, or IMP, is still in its infancy, but it is already progressing well. We have made meaningful progress in implementing the IMP via a Maritime Policy Action Plan adopted alongside the policy itself, thanks to an encouraging response from EU Member States.

This year will prove momentous for the IMP for two reasons. Firstly, at EU level, 2009 is the year in which we must complete the remaining actions announced in the Action Plan and, more importantly, we shall deliver a progress report on the value and achievements of the Integrated Maritime Policy since its launch in autumn 2007. The result of this process will set the tone for the IMP that will take shape under the new Commission.

Secondly, 2009 is also the year in which we intend to roll out the external dimension of the IMP. Before the end of the year, we will publish a Communication to set out how we intend to work with our international partners to further good maritime governance.

A visit to Australia in July 2005 enabled the Commission to use its analysis of the Australian experience in drawing up its own integrated approach to maritime affairs. Australia's governance system, in particular, was cited as an example of good practice in our Guidelines for an Integrated Approach to Maritime Policy that sets out key principles on maritime governance.

A number of other countries have since made significant strides in developing approaches to integrated ocean management. They include Canada, the United States, Norway, Japan and an increasing number of EU Member States. We have begun to notice a real trend developing among OECD countries in terms of building integrated approaches towards oceans, seas and coasts. So it is fair to say that Australia's pioneering efforts have certainly served as an inspiration to others. This has resulted in a considerable stock of expertise and a sufficient level of interest within the OECD members to enhance co-operation on integrated approaches at international level.

In this context, the Commission is considering the possibility of using the OECD as a forum for discussing maritime affairs. We believe that this could create a higher sense of ownership in the international community and would facilitate the exchange of best practices with respect to integrated maritime management.

The Commission also believes that the time is right to encourage the UN General Assembly to recognise the integrated approach to maritime affairs in its annual resolution on the oceans and the seas, and to advance the maritime agenda at global level. In our view, the 2009 negotiations on the future climate framework and the 2010 World objectives on biodiversity will provide excellent opportunities to that end.

As I said a moment ago, implementation of our Action Plan is well on track. This can be seen in a number of areas, of which I would like to highlight just two here, both of which are linked to illegal activities at sea, namely maritime surveillance and action against piracy...

Ladies and Gentlemen,

In today's globalised world, we cannot afford to work alone or to deal with issues in isolation. The bonds of friendship between the European Union and Australia are as strong as ever and provide us with a unique opportunity to work together to tackle issues of mutual interest and concern. I am fully convinced that my visit to Australia will produce a wealth of enriching ideas and experiences for us to share and will mark another step on our journey as friends and international partners in maritime affairs and beyond.

Thank you.

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Dr Joe Borg

Member of the European Commission Responsible for Fisheries and Maritime Affairs

The European Union's strategy of sustainable management for the Arctic Conference: Arctic Frontiers

Tromso, Norway, 19 January 2009

Reference: SPEECH/09/9 Date: 19/01/2009

Conference: Arctic Frontiers

Tromso, Norway, 19 January 2009

Ministers, Distinguished Guests, Ladies and Gentlemen,

Let me first of all thank you for your invitation to address this important conference. One could not have made a better choice for the venue of a conference called "Arctic Frontiers" than the gateway to the Arctic itself.

Arctic Frontiers seeks to forge new partnerships to bring together the worlds of science, art, policy-making and business. Furthermore, its work to reach out in particular to younger generations and transcend ethnic divides will help carry today's decisions through into tomorrow and beyond. These principles very much underpin my message to you today.

We are gathered here in Tromsø to examine the opportunities and challenges for the Arctic region. Yesterday I had the chance to experience the beautiful landscape of the area myself and to gain an insight into what it means to live north of the polar circle and so close to the Arctic. The Arctic, as we know, plays a key role in regulating the Earth's climate system. And because of this key role, the future of the Arctic and that of our planet as a whole are inextricably linked.

Last September, I attended an international conference hosted by the Nordic Council of Ministers in Greenland entitled "Common Concern for the Arctic". I came away from Greenland more convinced, than ever, of the pressing need for decisive action in the Arctic at an international level.

With its focus on how to strike the right balance between human activity and protection of the ecosystem in the Arctic, this conference is both welcome and timely.

The melting of the ice in the Arctic together with advances that have been made in modern technology means that this fragile region will become increasingly accessible to international shipping and those wishing to exploit the rich and abundant resources located there. While we cannot prevent this, we can make sure that shipping, fishing and the extraction of minerals in the Arctic is done in a sustainable manner, providing maximum protection to the people of the region and the unique environment in which they live.

The European Union has close historical and geographical links to the Arctic.

We are working hard to limit the damage caused by climate change and we promote environmental sustainability in various ways, in particular through research and concrete action. Yet in areas such as transport and fisheries, our actions have a direct bearing on the Arctic.

In turn, the changing face of the Arctic impacts upon European security, trade and the supply of resources.

The European Union's Integrated Maritime Policy works on the fundamental premise that each sea region is unique and needs individual solutions in order to maximise the sustainable use of resources. The Arctic is no different, and so it is in this respect, that the European Union has an interest in securing a sustainable future for the Arctic. More than that, the Union feels quite strongly that it would also be failing its citizens, and the world at large, if it did not take its responsibility in this regard.

The European Union has a clear vision of the path it would like to take with regard to the Arctic, in cooperation with its international partners. That is why the Commission proposed a European Union Strategy for the Arctic on 20 November.

In a nutshell, the aim of this Strategy is to promote the sustainable management of one of the last relatively unspoilt areas on Earth. It firmly establishes our commitment to the region and states our willingness to be an enthusiastic contributor towards preserving the Arctic's common heritage. This commitment is very firmly underlined by the desire to do this in partnership with others.

More specifically, our Arctic strategy focuses on three main policy objectives: protecting and preserving the Arctic together with its population; promoting the sustainable use of resources; and enhancing multilateral governance in the region.

With respect to our first objective, to protect and preserve the Arctic, we need to channel our efforts primarily into the management of the negative consequences of climate change and into preventing any further aggravation. The European Union is ready to work together with Arctic states, territories, NGOs and other stakeholders to promote high environmental standards and to develop an ecosystem-based approach to managing human activity in the region. Our experience of close co-operation between public authorities and local stakeholders in planning new developments has proven beneficial to all parties time and time again.

But sustainable management, and in more general terms, finding the right policy response for the Arctic Region is not just about environmental action. We are convinced that there are two important ingredients that will make the cocktail right.

The first is about taking into account the specific concerns and needs of indigenous communities and the local population and drawing on their unrivalled knowledge of the region.

Another ingredient for any sound policy response for the Arctic must be based on sound scientific data. With 86 million euros, the European Union is a major contributor to research activities of direct relevance to the Arctic. In addition, individual Member States also fund information-sharing in research and co-operation in areas such as long-term monitoring and surveillance.

Such funding would benefit greatly from partnerships between EU and non-EU countries. An initiative such as the proposed sustained Arctic Observing Network could have a key role to play here. I would like to salute, in particular, the pivotal role that Tromsø University plays in research activities, setting an example to others working in Arctic research.

The second objective of our strategy lies in promoting the sustainable use of resources and focuses on hydrocarbons, fisheries, transport and tourism. The prospects in these different fields vary. Some forms of Arctic tourism for example, especially cruise ship tourism, are already underway, while the future for transport in the region remains rather less clear.

Here I would emphasise our commitment to the principle of freedom of navigation. We support improved conditions for gradually introducing Arctic commercial navigation, as long as stricter safety and environmental standards apply. Indeed in all of the areas I have just mentioned, we must adopt the same approach of strong international cooperation, sustainability, strict adherence to environmental standards and full respect for the rights and interests of local communities.

This brings me to the third objective, namely enhanced governance. The challenges and opportunities facing the Arctic are international in nature. This means they can and must be tackled through concerted international action. We must turn our back on the divisions of the 20th century and make unity the watchword for the 21st century.

The main legal framework and tool for managing the Arctic Ocean and its resources is the United Nations Convention on the Law of the Sea, or UNCLOS, which establishes the notion of a "common heritage of mankind". The Arctic Ocean therefore concerns not only its coastal states. Its sound management and the preservation of its resources is an obligation for all countries and signatories to UNCLOS.

We are convinced that an enhanced system of governance in the Arctic could prove to be a real asset. The European Parliament, which has consistently shown a keen interest in Arctic issues, recently highlighted the importance of Arctic governance. And the Council of the European Union has rightly stated that the EU's goals can be achieved only in close cooperation with all Arctic partner countries, territories and communities.

But we don't need to reinvent the wheel to build a governance system for the Arctic. Indeed, the structures we need for this, already exist.

We believe an UNCLOS-based governance system could deliver security and the sustainable use of resources stability, strict environmental management and subject to open and equitable access – precisely the aims contained in our strategy. In fisheries, we should examine sustainable stock management for the large areas of the Arctic Ocean, which are not covered by any such arrangements. One possibility for this would be extending the convention area of the North East Atlantic Fisheries Commission, NEAFC, to cover the entire Arctic. As regards international navigation in the Arctic, I believe that the International Maritime Organisation will have an even more significant role to play.

Furthermore, the EU would like to enhance its input to the Arctic Council and also hopes to see progress on moves towards an integrated approach to maritime issues.

The reinvigorated Northern Dimension – which counts Norway among its valuable partners – is now earning its stripes as a vehicle for concrete action and cooperation. New and existing Northern Dimension partnerships have great relevance for Arctic cooperation.

The Arctic Council and the Northern Dimension are also important fora for dialogue with the United States and Russia. We look forward to closer cooperation with the United States within the Arctic Council and beyond. The very recent US Presidential Directive on the Arctic contains a policy with very similar objectives to our own, namely protecting the environment, ensuring sustainable use of natural resources, involving indigenous peoples, enhancing monitoring and conducting research. It furthermore recognises that the best way to address challenges and opportunities is through international cooperation.

We look forward to working together towards these common goals.

In the same vein, we will continue our dialogue with Russia as a strategic partner. We are indeed also eagerly anticipating the publication of its Arctic strategy at the end of this month.

Ladies and Gentlemen,

The Commission has been encouraged by the reaction to its Arctic strategy. As ever we welcome receiving feedback from all stakeholders in order to ensure any proposals are both useful and directly relevant.

I sincerely hope that the discussions over the next few days will generate new ideas and help us take a step further towards securing a healthy Arctic region for future generations to come.

Let me finish by quoting Henrik Ibsen: "A Community is like a ship, everyone ought to be prepared to take the helm".

If the Arctic is our ship then we must all take the helm to preserve its future.

Europe wants to contribute towards the sustainable development of the Arctic region while protecting it from environmental changes that result from increasing human activity. With that in mind, our message to you is clear. All of us in a position to make and influence policy must recognise the need to contribute to the decisive international action we need for the Arctic in order to preserve our common heritage.

Let us be bold and protect this precious region in the interest of our planet as a whole.
Thank you.

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Midday Express of 2006-11-24

Reference: MEX/06/1124 Date: 24/11/2006

MIDDAY EXPRESS

News from the Communication Directorate General's midday briefing

24 / 11 / 06

Joe Borg welcomes consensus reached at the UN General Assembly on tackling destructive fishing practices (23/11)

At the end of the preparatory meeting of the General Assembly of the United Nations, in New York, Joe Borg, European Commissioner for Fisheries and Maritime Affairs, welcomed the consensus achieved by the Parties on tackling destructive fishing practices.

Mr Borg said that the European Union had worked in a positive and constructive manner toward consensus-building on the most effective way to tackle fishing practices that have a destructive impact on fragile marine ecosystems. The Commissioner said that he was particularly pleased by the fact that the UN consensus marks a new and important step towards strengthening and responsibilising Regional Fisheries Management Organisations in relation to the governance of the high seas.

The EU approach focused on ensuring acceptance of both the need to apply the precautionary principle and for urgent action to put in place measures that are effective and have a realistic chance of being applied. This is, of course, an on-going process and the EU will continue to play a full part in ensuring its success.

Commissioner Borg said that he was confident that the text agreed today would become a resolution when the General Assembly meets on 7 December. The Commission will shortly table concrete proposals to the Council on the areas of EU responsibility in this domain. (for more information: M. Thom - tel: 299 1630 - fax: 296 3067)

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http://www.europa-eu-un.org/articles/en/article_5001_en.htm

Speech by EU Commissioner Borg on Oceans and the Law of the Sea

Summary: Speech by EU Commissioner Borg on Oceans and the Law of the Sea (2 September 2005: Hamburg)

Oceans and the Law of the Sea: Towards new horizons

Speech by Dr. Joe BORG, Member of the European Commission Responsible for Fisheries and Maritime Affairs, "Oceans and the Law of the Sea: Towards new horizons," Address at the Conference of the International Tribunal for the Law of the Sea, Hamburg President of the Tribunal.

Distinguished guests,

When Arvid Pardo, on 1 November 1967, suggested to the UN General Assembly that a regime of common heritage replace the traditional regime of the high seas, he could not have imagined the historic importance his proposal would grow to assume. It was the start of a long process which led to the United Nations Convention on the Law of the Sea (UNCLOS), a Convention which as you well know was adopted finally in December 1982, and only entered into force in 1994.

Despite its long genesis and the delays in its entry into force, or perhaps because of them, the Law of the Sea Convention clearly has become a success story for the United Nations and the international community at large. On the first day on which it was opened for signature, 119 countries signed the convention, which was a record at the time.

With today's 148 ratifications, this constitution of the oceans may be deemed as practically universal and is among the major achievements of global governance based on the rule of law.

The European Union has, overall, been a supporter of UNCLOS, which by now is already a part of the Union's legislative architecture. The European Community deposited its instrument of ratification of UNCLOS on 1 April 1998, and since its entry into force one month later, has been an active and interested party to the Convention.

Over and above the EC as a Community, 24 of the current 25 EU Member States are also contracting parties of UNCLOS. These memberships prompted a declaration clarifying the division of competences between the European Community and its Member States as to the rights and obligations contained in UNCLOS.

As Judge Tulio Treves of this Tribunal recalled at a Symposium we held just recently in Brussels on the enforcement of fisheries legislation, this declaration of competences contains a number of dynamic elements. Following the major reform of the CFP in 2002, it may also be an opportune moment to consider updating the list of legislation attached to the declaration.

In the context of the UN System and within the subject of oceans and law of the sea, the EU has also been an active participant in the Informal Consultative Process (ICP) on Oceans and the Law of the Sea at the United Nations. We have followed this year's session closely and have taken particular note of its agenda comprising issues such as the conservation and sustainability of marine biodiversity and the contribution of fisheries to sustainable development.

I am also pleased to say, that the Union has been a strong supporter of this forum and we are fully committed to a prolongation of the ICP mandate. We have also made it clear that we attach great importance to resolving the discrepancy that currently exists between the European Community's observer status and its competences - whether exclusive or mixed - with respect to many issues that are being discussed in the ICP.

As a contracting party in its own right of both UNCLOS and of the UN Fish Stock Agreement, the European Community has accepted legal obligations with respect to oceans and the law of the sea that are particularly relevant to the ICP agenda. We hope, therefore, that the UN will grant the EU the status that fully reflects its rights and obligations under international law within the ICP.

Ladies and Gentlemen,

The peaceful settlement of disputes is an essential element of good governance of the oceans. The importance of the achievement of UNCLOS in instituting a specialized, permanent Tribunal on the Law of the Seas (ITLOS) cannot be underestimated. As you are probably aware, although the Community has contributed to the Budget of the International Tribunal for the Law of the Sea since 1998, it initially had a "wait and see" attitude towards this institution. Indeed in view of Article 287 of the Convention, the European Commission had proposed to the EU Council of Ministers in 1999 to take a decision not to express a preference for any of the three dispute settlement procedures provided for in UNCLOS and which are open to the Community, namely ITLOS, an arbitral tribunal or a special arbitral tribunal.

The Council of Ministers, however, never formally decided on the line proposed by the Commission, and the Commission in October 2004 decided to withdraw that proposal together with others that are no longer relevant.

Notwithstanding the 1999 proposal, the EU was positively disposed towards ITLOS. Indeed, already in the year 2000 in the context of a fisheries dispute between the EU and Chile the latter requested ITLOS to constitute an arbitral tribunal under Article 287 of UNCLOS. The European Community, represented by the European Commission, agreed that the case should be heard by a special Chamber of ITLOS.

This case concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean revolved around questions of compliance with UNCLOS and whether the Galapagos Agreement which Chile has negotiated with three other southern American coastal states is in conformity with the Law of the Sea.

As you are well aware, this case raises a number of difficult jurisdictional issues, including with respect to the relationship between UNCLOS and the WTO. This was also the case when the EC initiated proceedings concerning Chilean restrictions on transhipments through its ports. I have been given to understand, that proceedings in both cases have remained suspended to date.

The European Commission is thankful for the cooperative attitude that the Tribunal took in the handling of the dispute, namely by first guiding the parties to an agreement on the establishment of a special chamber for hearing the dispute, and then by suspending the time-limits for the proceedings in this dispute, thus allowing the parties to accommodate each others concerns, at least for the time being.

Even if the Tribunal has not as yet decided on the merits of the actual dispute, the experience so far shows that proceedings have already been an important contribution to the peaceful settlement of the dispute. This demonstrates the Tribunal's potential role as a facilitator for peaceful settlements well beyond its intrinsic authority to rule on the merits.

The European Commission also has a major interest in the case concerning the Mox Nuclear Plant in Sellafield. In this case, Ireland brought an application against the UK and this Tribunal ruled, by Order of 3 December 2001, on a request for provisional measures, the substance of the case having been referred to arbitration under Annex VII of the Convention.

The arbitral tribunal felt that there were significant questions of EC law, and suspended its proceedings in order to give the Parties the possibility to resolve their dispute under EC law. Interestingly, the arbitral Tribunal ordered that the European Commission be provided a copy of its order.

The Commission in fact brought a procedure against Ireland on 30 October 2003 before the European Court of Justice. In that procedure, the Commission submitted that Ireland instituted the proceedings against the United Kingdom without taking due account of the fact that the European Community is a party to UNCLOS and that through its act of ratification the relevant provisions of UNCLOS have been incorporated into Community law. In those circumstances, by submitting the dispute to a Tribunal other than the European Court of Justice, Ireland has violated the exclusive jurisdiction of the ECJ for disputes between Member States concerning the interpretation of Community law.

This case raises a fundamental issue of Community law, on which the Commission seeks a clear judgement by the Court of Justice. The action by the Commission is guided by its duty, as established in the European Treaties, to secure and defend the integrity of the Union's legal order.

In no way does this action reflect a lesser perception of the authority of ITLOS.

On the contrary, the case reflects the great significance of UNCLOS as an integral part of the EC's regulatory framework on maritime affairs. This case also finds a close parallel in the recent judgment of the European Court of Justice in the Etang de Berre case, where the Court decided that a provision contained in an international convention for the protection of the maritime environment in the Mediterranean has direct effect on the Community legal order.

In addition, in 2003, the EU Presidency emphasised in the UN the importance of judicial mechanisms in the prevention and resolution of legal disputes, stating that "In our view the early and more frequent resort to these mechanisms and, in particular to the International Court of Justice and the International Tribunal of Law of the Sea, would greatly contribute to the maintenance of international peace and security and the promotion of the primacy of international law in international relations."

There may have been some misjudgements in the past on the economic importance of the oceans, for example in relation to the exploitation of the resources of the seabed. Yet today, the overall assessment remains however, that politically, economically and environmentally, the importance of the oceans, and thus UNCLOS, is on the rise and thus needs to be given its full due. According to one recent estimate, the economic value of the oceans amounts to a total of 4,363 billion euro for the years 2005-2009, not including the value of the ecological contribution by the oceans to mankind.

Ladies and Gentlemen,

The recent enlargement of the European Union has not only strengthened the EU politically and economically. It has also increased the length of the EU coastline and the total area of water under EU jurisdiction. The tonnage of the EU-controlled and registered, merchant shipping fleet is now also the biggest in the world.

It should not be a surprise, therefore, that this enlargement has helped us to become even more conscious of the maritime dimension of Europe and the great potential that oceans hold for us.

It is against this background that the European Commission is now preparing a Green Paper on an all embracing Maritime Policy, which is to be published in the first semester of 2006. This Green Paper will be the basis for a broad consultation of interested parties, a number of whom have already submitted their contributions.

By this Green Paper, the EU is seeking to address the economic, environmental, social, as well as governance challenges relating to the oceans and the seas, in a holistic manner. The objective is to set out options for a maritime policy that will maximise the benefits Europe can draw from ocean and sea related activities, bearing both the Lisbon strategy of employment and growth, and questions of sustainability, in mind.

Within this comprehensive approach to the oceans and seas, an important theme of the Green Paper will be the protection of the marine environment, as an essential component for the sustainable use of the oceans and seas, both in relation to EU waters and internationally. For this reason, the work of the European Commission on a "Thematic Strategy on the Protection and Conservation of the Marine Environment" will constitute one of the major building blocks of the Green Paper.

The Green Paper will also address options to make maritime professions more attractive and to strengthen education and training for these professions, given that, in certain sectors of maritime activities, the demand for qualified personnel cannot be satisfied.

Leadership in scientific research and development relating to both the natural conditions of the oceans and seas as well as technologies to be used in relation to them, is crucial to strengthen the knowledge base of Europe and its competitiveness. Building on existing policies of the Union, the Green Paper will explore options for the future.

We are conscious of the fact that Europe's relation with the oceans and seas has a number of very particular characteristics. One example is the strength of the European fleet and its global importance as a backbone for international trade. Another example is the major variation of hydrological, biological, geological, political and legal realities in the marine regions surrounding Europe, which must be taken into account in the formulation of a future maritime policy.

For example, the Baltic Sea is now almost entirely an EEZ of EU Member States with the exception of the areas falling under the jurisdiction of Russia. As a result of this, the Council of Ministers has decided that the EU should withdraw from the International Baltic Sea Fisheries Commission and turn to regulating fisheries either autonomously or in bilateral agreement with Russia. The Community will seek to build on IBSFC's efforts in ensuring the efficient governance of the Baltic Sea waters now under our jurisdiction. But let me also note that the dissolution of an international organisation - these days a rare event - is itself a contribution to good governance, if it is replaced by more efficient structures.

On the other hand, in the Mediterranean, EU Member States have not declared EEZs and the EU works with a large number of third countries. Given the different realities of the littorals of these two seas, it is only natural that the approach in these two situations must be different.

An added, significant dimension to relations within the Mediterranean, has been the recent declarations on extensions of Fisheries Protection Zones. The unilateral declaration of an FPZ by Libya, and the preparations of others like Tunisia and Malta who have so far enacted the enabling legislation, point to the need to establish more efficient means of consultation and co-ordination in the establishment of such zones. In the absence of such consultation, the unilateral extension of FPZs may have unforeseen impacts on the fishing patterns of other States and could jeopardize other states' traditional practices.

In order to mitigate these effects, in cases where such zones are aimed purely at enhancing the management of fisheries resources, a mechanism of prior consultation could be envisaged to ensure that the extension of such zones is not a source of tension or conflict.

The Commission has also intensified its dialogue with relevant bodies within the United Nations and other international organisations, as well as with third countries, in order to identify best practices relating to integrated ocean policies. These contacts are instrumental in discovering new possibilities to strengthen international cooperation and good governance of the oceans.

In the Green Paper, we hope not only to look at the European scenario but also at the contributions the EU can make towards strengthening the good governance of the oceans globally. Some of the issues to be raised will necessarily relate to law of the sea considerations and some may be of interest to this Tribunal.

Hence, while the economic, environmental and demographic pressures on the oceans and their resources are increasing, also the number of multilateral and bilateral agreements relating to ocean issues such as fisheries, environmental protection, or shipping is ever increasing; confirming the trend towards "Treaty congestion" as already identified in the 1998 report of the Independent World Commission on Oceans, entitled " The Oceans … our Future".

Many of these Treaties, however, either do not contain rules on a binding settlement of disputes, thus lacking enforcement, or they install special dispute settlement mechanisms, thus increasing fragmentation rather than coherence.

In this situation, we believe it is necessary that coherence and the rule of law are strengthened through an increased effort on behalf of the parties to UNCLOS to make good use of the existing institutions available for dispute settlement. We understand that parties may wish to bring cases before the International Court of Justice (ICJ) in areas relating to the Law of the Sea in which the ICJ itself has set a precedent. But we also believe that for cases which cannot be brought before the ICJ or for cases where ITLOS has a specific competence, that ITLOS should be the institution of choice.

This will necessarily be so for a number of the Community's cases given that the EC is not a state and as such may not be a party before the International Court of Justice in cases relating to the Law of the Sea. On the other hand, the EC can be a party before ITLOS, a fact which renders ITLOS the preferred choice for the European Community when it comes to disputes relating to the Law of the Sea. In order to strengthen this even further, the EU, where appropriate, could also offer to include a provision in the agreements relating to the Law of the Sea which it concludes with third countries binding the parties to refer the settlement of any disputes to ITLOS.

This will not necessarily significantly increase the number of cases before ITLOS. Rules on binding dispute settlement actually increase the incentive of parties to find mutual agreeable solutions - a fact which is in itself positive. Yet nevertheless, we do believe that taking a step such as that outlined above, could be an important contribution by the European Union to the strengthening of the rule of law in international relations.

Allow me, by way of conclusion, to come back to the fact that the EU comprises 24 Member States which may themselves be party to disputes that come before ITLOS, and that such cases could concern rules emanating from EU law or indeed concern the Community as party to UNCLOS. Given this, I would like to suggest that an exchange of letters between ITLOS and the European Commission on the swapping of information could be a useful step towards added coherence between EU law and the United Nations Convention of the Law of the Sea.

The Green Paper on a Maritime Policy for Europe will provide ample opportunity to discuss these and any other proposals which may be brought forward by stakeholders or the academic community. In this regard, as the Chairman of the Steering Group of European Commissioners discussing the Green Paper, I am looking forward to any contributions you may have in the months ahead and of course, to having a frank and open discussion here with you this evening.

Thank you.

· Ref: SP05-281EN
· EU source: European Commission
· UN forum:
· Date: 2/9/2005

Bangladesh Invokes UNCLOS Dispute Settlement Mechanism to Resolve Territorial Maritime Disputes With India & Myanmar

noreply@blogger.com (ITSSD Charitable Mission) — Sat, 10 Oct 2009 03:20:00 +0000

http://www.modernghana.com/news/242616/1/bangladesh-starts-reacting-to-maritime-dispute.html

Bangladesh Starts Reacting to Maritime Dispute

By Salah Uddin Shoaib Choudhury

ModernGhana.com

October 9, 2009

On Thursday [October 8, 2009], Bangladesh has served legal notive on India and Myanmar to settle the disputes over maritime boundary claims before a United Nations [UN] tribunals as it decided to take the issue to a compulsory arbitration under the UN Convention on the Law of the Sea. Disputes over the territorial waters amongst the three countries are preventing Bangladesh from extracting marine resources and establishing its sovereignty in the Bay of Bengal.

Bangladesh is yet to delimit its maritime boundary with its neighbours in Bay of Bengal, that is Myanmar on eastern side and India on its western side. Myanmar and India agreed on maritime territory between themselves but they need to solve the maritime boundary issues with Bangladesh.

During the last quarter of 2008, this problem gained momentum in the area near 50 nautical miles southwest of the St. Martin Island when Myanmar sent four offshore exploration vessels [2 Bahamas registered and 2 Belize registered] escorted by 2 naval ships to facilitate the South Korean Daewoo Company to explore the oil and gas resources. The situation become complicated when the Bangladesh Navy also positioned three ships at the spot after the Myanmar side reportedly began oil and gas exploration in that area. Despite protests by Bangladesh, citing sovereignty issues, the Myanmar government said that it would continue exploration in the Bay of Bengal. It stopped the oil and gas exploration in deep-sea blocks in disputed waters, a day after Bangladesh asked China to mediate the issue. Myanmar however has claimed that withdrawal was not because of the Bangladesh request; apparently the South Korean company had completed its seismic survey in Block AD-7. Although the tension has slowed down, the crisis is yet to be solved.

According to the United Nations Convention on the Law of the Sea [UNCLOS] 1982, a nation can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf. Generally a state's EEZ extends to a distance of 200 nautical miles [370kms] out from its coast. However, in the case of Bangladesh, India and Myanmar, the situation became difficult as coasts of these countries follow a curve which has led overaping of territory. Yet, neither party was interested to take it to UN, nor did they agree for joint survey mechanism, that India follows with Pakistan. Under the United Nations Convention on the Law of the Sea [UNCLOS] Bangladesh too has to file its claim by July 27, 2011.

Bangladesh's foreign minister Dr. Dipu Moni told newsmen on October 8, 2009 that Dhaka has decided to go to the United Nations arbitration as negotiations with India and Myanmar in past 35 years failed to resolve the issue. Indian high commissioner Pinak Ranjan Chakravarty and Myanmar ambassador U Phae Thann Oo were called in to the foreign ministry earlier in the day and foreign secretary Mijarul Quayes handed the notifications to them pass it on to their governments.The arbitration notifications were issued a day after prime minister Sheikh Hasina announced in the parliament her government's decisive move towards exploring gas in the Bay and with the state-owned petroleum corporation, Petrobangla, holding negotiations with two international oil companies to award contracts for exploration.Prime Minister Sheikh Hasina said in the parliament, 'We want to solve the problems with neighbouring countries without any quarrel. Problems can be solved through discussions.'

Briefing reporters, the foreign minister said that the arbitration would be initiated before a United Nations tribunal to be constituted in accordance with the principles and rules of the UN Convention on the Law of the Sea [UNCLOS].

Bangladesh appointed British jurist Vaughn Lowe QC as its arbitrator to plead the country's case at the world body. Bangladesh submitted the notifications of arbitration within weeks after agreeing to lease out three gas blocks in the Bay of Bengal to US company ConocoPhillips and Irish Tullow. ConocoPhillips, the third largest energy company in the US, will get deep-sea blocks 10 and 11 and shallow-sea block 5 will be awarded to Tullow. But India and Myanmar sent objections to ConocoPhillips asking the company not to explore the gas blocks 10 and 11, claiming that some parts of the blocks belonged to their respective territorial waters.

Foreign secretary Mijarul Quayes in a statement said the claims of Bangladesh's neighbours had 'unfairly cut off a significant portion of our maritime area in the Bay of Bengal and prevented us from exploring and exploiting our oil and natural gas resources'.

The Bay of Bengal has become a lucrative territory for countries, especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Myanmar's discovery of 7 trillion cubic feet of gas. According to British Petroleum, Myanmar has 21 Trillion Cubic Feet [TCF] of gas reserves, while Bangladesh has 13.77 TCF of gas. Most of them are located in the Bay of Bengali. However, except the discovery of Sangu gas field with about .848 TCF of recoverable gas, Bangladesh has not much of exploration on the five offshore blocks so farii. Bangladesh is very keen on utilizing its offshore reserves for the country's development after they realized that existing gas reserves were smaller than anticipated and predicted that abundant oil & gas reserves are most likely to be present in the offshore region.

In Bangladesh, oil and gas is an economic resource and is vital for the survival of 150 million people living in an area of 147,000 sq km. Gas is a major source of revenue and employment for expanding their industrial growth. Bangladesh has recently been facing shortage of gas, currently produces 1750 million cubic feet of gas a day and faces a shortage of nearly 200 million cubic feet in its daily domestic consumptioniii. This situation exists despite the existence of hydrocarbon in Bangladesh.

Generally wherever gas is found oil is also normally present in its lower strata provided certain geological conditions prevail. Thus, it is expected that the offshore area of Bangladesh may be rich in oil reserves.For several years after taking the lead in 1974 for offshore exploration, Bangladesh hibernated while India and Myanmar aggressively explored and discovered significant petroleum resources. Under the New Exploration Licensing Policy, India offered 55 blocks [24 deepwater blocks beyond 400m bathymetry] to the International Oil Companies [IOCs] in the Bay of Bengal during 2006, which is now under exploration phase. Bangladesh has claimed that the map published by the country clearly showed that blocks D-23 [8,706 square kilo meter] and D-22 [7790 square kilo meter] have overlapped Bangladesh's block 21 declared in 1991, which is technically very hard to prove.

On the other hand, Myanmar made significant gas discovery in the block A-1 and A-3 gas fields in the Bay of Bengal in Rakhaine Province, which is adjacent to Bangladesh. Disturbing part is, Bangladesh hardly knew that Myanmar has claimed certain blocks that are overlapping with their blocks in the Exclusive Economic Zone [EEZ] areas, which they have claimed in 1974. Bangladesh claimed in 2006, that Myanmar had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh took place in April 2008, which was ended inconclusively without making any significant progress in resolving the issue. There seems to be a strong feeling that Bangladesh should have registered their strongest protest against Myanmar's exploration in A-1, A-3 and India's exploration in D-22 and 23, like India had done in 1974 and again in 2008 against Bangladesh.

In 1974, Bangladesh was the first country among the South Asian countries which declared its jurisdictions on territorial waters, economic zones, and continental shelf through a national legislation in the parliament, known as the Territorial and Maritime Zones Act 1974. Regarding the maritime boundary issue, Bangladesh had a negotiation with both India and Myanmar commenced in 1974 and since then, there were series of meetings with the representatives of both countries in the intervening years. Later, negotiations were held with India in 1982 and with Myanmar in 1986 and recently during 2008. However, negotiations remained inconclusive with both India and Myanmar.

In the case of Bangladesh, India and Myanmar, the problem arose when they have taken different approach to demarcate their maritime boundary; because of which, India and Bangladesh bilateral talk's became inconclusive. India offers the equidistant principle as the basis for demarcating maritime boundary, where on Bangladesh favours a principle based on equity, which actually resulted in an area of overlap between them. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar [opposite States] agreed upon equidistant boundary among themselves on 23rd December 1986 through an agreement, which came into force on 14th September 1987.

According to the UNCLOS- Part V, any such dispute between any two countries should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Article 15 says, Delimitation of the territorial sea between States with opposite or adjacent coastsiv are:“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

It is clarified that if no treaty exists otherwise [as in case of India-Bangladesh], the equidistant line should be considered as boundary. There is no historic title, nor special circumstances that exist between these two countries. No official stay order was also issued from ICJ [International Court of Justice] on this dispute. Hence, technically Indian claim gets priority over the Bangladesh claim since the former follows the equidistant principle. Assuming that India does not intrude beyond the equidistant line, it is difficult to find technical fault from Indian perspective. There has been no official complain against India lodged in ICJ as well. A similar action by Myanmar few months back sparked enmity between the nations. It should be noted that Bangladesh needs to file the claim to UN by July 27, 2011, a failure of which would enable India and Myanmar to go ahead with their lines of demarcation.

However, the Articles 76 and 82 of the 1982 UNCLOS lay down the methods of delimitation of sea boundary between adjacent states [distinct from opposite states, such as Sri Lanka and India]. According to these articles, first the states shall settle the boundary through negotiations.

If negotiations fail, the principle of equity will apply, implying that justice and fairness must be the hallmark of settlement. Main argument is, delimitation of sea boundary between two adjacent states, such as Bangladesh and India, is different from that of opposite states such as India and Sri Lanka or Australia and Indonesia. The "equidistant method" that is applicable between the opposite countries in respect of delimitation of Exclusive Economic Zone [EEZ] and Continental Shelf cannot be invoked to draw the sea boundary between adjacent countries as it disregards the physical features of coastal areas and does not achieve "an equitable solution" as mandated by the UN Convention. If this method is applied, the boundary between adjacent countries will be unfair, distorted and inequitable. Therefore, sea boundary of Bangladesh with its adjacent neighbours requires to be drawn in terms of the provisions of the UN Convention so as to achieve "an equitable solution”.

The unresolved martime boundary issue has surely put Dhaka, New Delhi and Yangoon in a kind of 'cold war' situation. Sensing Dhaka's initiatives in knocking the doors of United Nations in seeing resolution to the decade-old dispute, both New Delhi and Yangoon have started mobilizing all out diplomatic efforts in raising their voice in favor of their claim on the maritime boundary in Bay of Bengal. In this case, New Delhi will also be able to mobilize its friendly allies in the West as well take the support from Western media, as it enjoys a reputation of being a secular democratic nation in South Asia. On the other hand, Myanmar is considered to be a country ruled by autocratic military junta and Bangladesh a country, till now failing to combat rise of Islamist militancy. Naturally, the entire situation puts New Delhi rather in an advantageous situation. Now it is very important to watch the final fate of Dhaka's efforts in settling the long-dtanding dispute. Surely, this may either end in a all party acceptable conclusion, or may further generate tension amongst the three South Asian nations.

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http://rezwanul.blogspot.com/2008/11/bangladesh-myanmar-maritime-boundary.html

The Bangladesh-Myanmar Maritime Boundary Dispute

The 3rd World Review

11/06/2008

On the 1st of November four drilling ships from Myanmar started exploration for oil and gas reserves within 50 nautical miles south west of St. Martins Island, in Bangladesh. A South Korean company was awarded the oil and gas exploration contract in that place and two Myanmar naval ships escorted the drilling ships. Three naval ships of Bangladesh went to challenge them but the Myanmar Navy responded by alleging that the Bangladesh Navy ships are trespassing.

This escalated the maritime boundary disputes between Bangladesh and Mayanmar. Mayanmar vowed to continue with the exploration despite the territorial dispute with Bangladesh. Bangladesh Government warned the Myanmar envoy in Bangladesh to immediately suspend all activities within the declared maritime zones of Bangladesh in accordance with the Territorial Waters and Maritime Zones Act 1974 of Bangladesh and sent a high level delegation to Myanmar.

Adding fuel to the fire four Bangladeshi woodcutters were shot dead by the Burmese Nasaka (border force) alleging trespassing into Burmese territory.

But what is the background of this dispute? The Bay of Bengal has become a lucrative territory for the adjacent countries especially after India's discovery of 100 trillion cubic feet of gas in 2005-06 and Burma's discovery of 7 trillion cubic feet of gas. India also discovered oil.

None of the countries in this region so far claimed their marine boundaries before the United Nations (UN). India and Myanmar agreed territory between themselves but they need to solve the maritime boundary issues with Bangladesh as they are set to file their claim to the United Nations on June 29 and May 21, 2009, respectively. Under the U.N. Convention on the Law of the Sea (UNCLOS), Bangladesh too has to file its claim within July 27, 2011.

Bangladesh claimed in 2006 that Burma had encroached 18,000 square kilometers into Bangladesh waters and floated gas exploration tenders. The first round of talks between Myanmar and Bangladesh was in April this year but ended inconclusively in Dhaka. Both the sides then agreed to continue with the dialogue to reach a conclusion and meanwhile refrain from intruding into the disputed area for exploration.

Bangladesh has so far refrained from energy exploration in disputed waters. But Myanmar did not. So the country has the right to protect its sovereignty and has demanded the Burmese ships withdraw until a maritime boundary can be established through talks.

The Guardian reports:

The senior official from Burma's foreign ministry told Reuters: "We have no reason to stop the exploration activities since these blocks are located in our exclusive economic zone. We will go ahead with it."

Only a couple of months ago the Vice Chairman of Myanmar Ruling Government during his visit assured Bangladesh that Myanmar will not embark on any drilling in disputed areas of Bay of Bengal and will resolve the boundary dispute through bilateral discussions as per UN guideline. Bangladesh also pressed for early finalization of the demarcation. The next meeting between the parties is due in November 16-17th. Now why Myanmar is going into the offensive?According to the Law of the Sea, Bangladesh can claims 12 nautical miles of territorial sea, 200 nautical miles of Exclusive Economic Zone, and 350 nautical miles of continental shelf in the Bay of Bengal and so does Myanmar.India/Myanmar claim:Bangladesh claim:Images courtesy India Speaks.

The main dispute on maritime boundary delimitation between Bangladesh and Myanmar centres around Bangladeshi views to demarcate in equity basis North to South while Myanmar wants it for eco–distance system in East to West boundary.The issue is not so simple as there are many legal issues and international negotiations at stake. A famous case ruling by International Court of Justice on 'North Sea Continental Shelf' concerning maritime boundaries Federal Republic of Germany, Denmark, Federal Republic of Germany and Netherlands describes the equity method (Page 7):

(1) delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;Barrister Harunur Rashid has a legal view of Bangladesh's claims.

Engr. Khondkar Abdus Saleque writes in Energy Bangla:

If we fail to stop aggression of neighbours to encroach our maritime boundary through proper diplomatic initiatives we must take resort to UN Convention and move to international court of justice to resolve maritime dispute. We can not afford to compromise our sovereign right on resources. [..] For several months Bangladesh is discussing with Myanmar ruling junta for bilateral cooperation. Trade, energy, communication came under discussions. (But) Bangladesh did not make strong enough protests when ruling junta unleashed cruel actions against freedom loving Myanmar people were struggling for democratic rights.

In this situation it will not be unwise to consider Myanmar unilateral action as a fragrant violation of Bangladesh’s territorial integrity. If we fail to get the required response Bangladesh government must leave nothing unturned to protect our territorial integrity.

Myanmar earned $2.6bn from selling gas last year and these revues keep the country protected from western sanctions.

According to latest reports Myanmar stopped oil and gas exploration in deep-sea blocks in disputed waters in the Bay of Bengal on Thursday, a day after Bangladesh asked China for help over the row. But they are yet to remove vessels and equipment from Bangladesh territory.

Energy Bangla discusses Bangladesh's unresolved maritime boundary dispute with India. India is alleged to have encroached 19,000 square kilometers into Bangladesh waters.

India Speaks defends the case for India:

India and Bangladesh started their bilateral talks way back in 1974, which was inconclusive. India was looking for equidistant border where Bangladesh was for equity based boundary. The same difference in arguments rendered Bangladesh-Myanmar talks inconclusive as well. But, India and Myanmar (opposite States) agreed upon equidistant boundary.

It cannot be denied that Bangladesh is now exposed to international oil and gas politics. We will see more such conflicts between India and Myanmar before 2011 when the maritime boundary is scheduled to be fixed by UN. The government should give more focus to the demarcation issue and employ proper experts and resources to bolster Bangladesh's case.A Daily Star editorial says:

It is important that we make persistent and determined efforts to protect our interests. Bangladesh cannot afford to lose in the bargain for its legitimate share of the oil and gas rich Bay, which will only weaken our case for retaining the territorial waters that belong to us as per international laws.

How Europe's Precautionary Principle Can Be More Easily Enforced via UNCLOS Dispute Settlement & the 'Greening' of the WTO

noreply@blogger.com (ITSSD Charitable Mission) — Mon, 13 Jul 2009 14:23:00 +0000

The following excerpts were taken from a law review article that appeared in the June 2005 issue of the UCLA Journal of Environmental Law & Policy. (See Brian K. Myers Trade Measures and the Environment: Can the WTO and UNCLOS be Reconciled?, 25 UCLA J. of Env'l Law & Policy (June 2005) accessible at:

http://findarticles.com/p/articles/mi_hb3571/is_1_23/ai_n29237468 ; http://www.thefreelibrary.com/Trade+measures+and+the+environment:+can+the+WTO+and+UNCLOS+be...-a0143580597. This law review article provides further credible evidence concerning how U.S. UNCLOS Accession by THIS administration & THIS Congress would herald Europe's Precautionary Principle as U.S. and customary international law.

"Traditionally, disputes concerning trade measures were handled at the WTO--often with disappointing results for environmentalists. With the advent of UNCLOS, however, an alternative forum was created for hearing such disputes--at least as they pertain to UNCLOS provisions. In this context, it is possible that a nation might use trade measures that are permissible under UNCLOS but which violate WTO rules."

..."Free trade advocates have correctly pointed out that WTO rules impose virtually no restrictions on the ability of a nation to protect its own environment against damage caused by either domestic production or domestically produced or imported products. (35) The problem arises when nations use trade restrictions as a means of unilateral action to impose environmental regulations on other countries. (36) Such measures usually run afoul of the WTO Agreement."

..."With respect to the oceans, for example, some nations have opted for strict environmental standards within their territorial waters and Exclusive Economic Zones (EEZs). On the other hand, developing nations--who control 90 percent of the world's coastal waters--may not share the same zeal for environmental protection. (38) Developing nations complain that environmental regulations amount to a cynical effort by rich countries to thwart the comparative economic advantage of poor countries. (39)".

..."It is difficult to understate the global environmental importance of UNCLOS. When Secretary of State Warren Christopher submitted UNCLOS to President Clinton, Christopher described it as the "strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time." (96) .

"...Perhaps most environmentally significant is the fact that 59 of the 320 provisions in UNCLOS relate directly to environmental protection. (98) As a result, the fundamental aims of UNCLOS can safely be said to differ from those of the WTO. While the WTO is concerned foremost with the promotion of free trade and the removal of trade barriers, UNCLOS contains numerous provisions whose purpose is environmental protection of the oceans."

[See also J. William Middendorf, II and Lawrence A. Kogan, The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty, Institute for Trade, Standards and Sustainable Development (Sept. 2007) at: http://www.coin.dk/default.asp?aid=1370 ].

...The provisional orders issued by the ITLOS were justified--albeit indirectly--on application of the precautionary principle in international law. The ITLOS noted that all three parties had acknowledged that southern bluefin tuna stocks were at historic lows. (121) Moreover, there was major disagreement between the parties as to scientific data and the impacts of the experimental fishing program on bluefin tuna stocks. (122) In light of these factors, the ITLOS concluded that the precautionary principle was justified--at least until the case could be decided on the merits and the underlying scientific uncertainties resolved. (123)".

"...Article 30 of the Vienna Convention on the Law of Treaties (Vienna Convention) states that when two treaties conflict, the most recent treaty shall govern the dispute to the extent its provisions are compatible with those of the earlier treaty (per the doctrine of lex posterior). (143) In comparing UNCLOS to the WTO, the applicability of lex posterior is uncertain. UNCLOS entered into force on 16 November 1994 and certainly postdates the 1947 GATT Agreement. However, the WTO Agreement entered into force on 1 January 1995 and (just barely) postdates UNCLOS".

"...That said, it is probably unwise to apply lex posterior too dogmatically.Many treaties, including UNCLOS, are inherently evolutionary and are constantly amended and expanded over time. (146) It would be an absurd result, for example, if the U.S. finally ratified UNCLOS in 2005 and UNCLOS obligations therefore superseded pre-existing U.S. obligations under the WTO. Likewise, a WTO Member that adopted the Climate Change Convention in 1992 could be said to have nullified the treaty by adopting the WTO Agreement in 1994. In the absence of a Member's formal withdrawal from previous treaty obligations, neither example's outcome seems logical given that most treaties are continually affirmed, either directly or indirectly, through their very existence and evolution over time. (147)

Additionally, the established doctrine of lex specialis specifies that when two treaties conflict, the more specific treaty shall govern. In the aforementioned hypothetical, the issue at stake--preservation of marine life on the high seas--is particularly relevant to several provisions in UNCLOS, while no such provisions exist under WTO rules. Thus, it is possible to argue that UNCLOS supersedes WTO rules per lex specialis. [But?] Similarly, regardless of which tribunal hears the matter, either a WTO Panel or UNCLOS tribunal may apply the rules in the MEA to the extent they are specific to the conflict.

Nevertheless, the prospect of either tribunal applying a set of rules contained in an MEA against a non-party to the same MEA raises a significant problem...Consequently, while MEAs might be effective as applied to those nations that agree to them, there appears to be little basis in international law for applying MEAs to nations that have not consented to their application."

"...Putting aside the issue of treaty competition, it is also worth considering which forum is more appropriate for settling our hypothetical dispute. In a comprehensive study, McLaughlin provides a chart summarizing the salient differences between the dispute resolution systems of UNCLOS and the WTO. (152) With respect to using trade measures to protect marine life, he concludes that UNCLOS provides a more accommodating forum. UNCLOS provisions regarding non-compulsory negotiations, choice of forum, tribunal composition, applicable law, burden of proof, and implementation of decisions are all more favourable to Members than comparable WTO provisions. (153) For example, a nation that uses trade measures to protect the environment has a better chance of succeeding before a UNCLOS tribunal comprised of experts in the field of maritime and environmental law, rather than a tribunal made up of trade experts at the WTO. (154) UNCLOS provisions also benefit countries seeking to improve their marine conservation practices. This is because WTO tribunals are limited to applying law as contained in relevant trade agreements; they generally do not refer to outside sources. (155) In addition, the burden of proof in a WTO proceeding will always fall on the Member seeking to employ an environmental trade restriction. Under UNCLOS, the burden of proof shifts under different circumstances and may actually fall to the party accused of using inadequate environmental measures. (156) Finally, with respect to the implementation of a tribunal's decision, the losing party in a UNCLOS dispute often has far more flexibility, versus WTO rules, in deciding how to bring their procedures into compliance. (157)"

"...Unlike the WTO, UNCLOS contains no direct reference to trade measures. (158) UNCLOS proponents contend that this issue should be resolved from a broader perspective: do the trade measures in dispute enhance or defeat the object and purpose of UNCLOS? (159)...This author suggests, rather, that the UNCLOS approach is by nature multilateral and focused on collective action with respect to environmental protection. In this vital respect, the approaches of UNCLOS and the WTO are remarkably similar."

"...the WTO Secretariat issued a report entitled "Trade and Environment" on 14 October 1999. (171)...the Report did contain a startling, if often overlooked, innovation. For the first time, the WTO explicitly recognized the importance of MEAs (175) Of the 200 or so existing MEAs, the Secretariat noted that about 20 of them had the potential to affect free trade (176) Agreements such as the Montreal Protocol for the protection of the ozone layer and the Convention on International Trade in Endangered Species (CITES) allow countries to ban or restrict trade for the purpose of environmental protection. Although these and other MEAs clearly violate WTO obligations, the Secretariat explicitly endorsed their use...MEAs are a valuable form of environmental regulation because they are by nature multilateral and tend to foster cooperation as opposed to conflict. (177) The WTO took a significant cooperative step by promising not to intervene in trade-related disputes when it is clear that an MEA governing the issue exists between the parties. "

"...Conceivably, this relegation might include UNCLOS matters or other agreements in furtherance of UNCLOS provisions. Of course, any such agreements must be precisely worded to meet Article 281 and 282 requirements if the parties hope to utilize UNCLOS dispute resolution as an alternative to the WTO."

"...Perhaps the most articulate critique of the WTO highlights the tension between basic WTO obligations and the need to protect the 'global commons,' including oceans."

"...Businesses often lobby their government to oppose environmental treaties on the grounds that they will be placed at a competitive disadvantage vis-a-vis nations that are not part of the agreement. By imposing trade measures on non-parties to the agreement, these disadvantages can be minimized. (186) As such, numerous commentators have concluded that WTO restrictions on the use of such trade measures present a serious handicap to the international community's efforts to protect the global commons. (187)

These arguments are persuasive and worth considering. However, the conclusion that the WTO imposes a general ban on trade restrictions for environmental protection is overstated--especially in light of recent WTO jurisprudence concerning Article XX exceptions. Likewise, the WTO's endorsement of bilateral, plurilateral, and multilateral agreements suggests an increasing acceptance of such measures. The "free rider" and collective action problems can also be overcome through effective enforcement mechanisms in these treaties. (188)"

...It is also impossible to ignore the resentment that would result if a handful of nations attempted to impose strict environmental standards on the rest of the world. The U.S., for example, is not capable of single-handedly coercing the world into adopting extensive environmental measures. (191) The amount of resentment that would be inherent in such an attempt would likely derail future hopes of multinational environmental cooperation. (192) Even if other nations [e.g., the European Union & its Member States] decided to help the U.S. by adopting similar environmental measures, the myriad conflicting national regimes would create a hopeless morass--each nation's system made further susceptible to being co-opted by domestic protectionist interests. (193) Finally, a frequently overlooked consequence of employing trade measures to further environmental protection is the possibility that a targeted nation might counter with equally damaging retaliatory measures. (194)"

"...Rather than viewing the WTO as the dominant legal regime, international law suggests that WTO trade-liberalizing rules are simply lex generalis, permitting the continuation or development of other more detailed rules. (200) This approach looks remarkably similar to the "umbrella approach" of UNCLOS, which incorporates other environmental treaties within the broad scope of its obligations. (201) WTO Panels could be compelled to give credence to more specific rules dealing with the environment...The WTO is not a hermetically sealed regime incapable of considering other treaties and aspects of international law. (202) To the contrary, WTO Panels frequently refer to outside sources and customary international law when interpreting WTO agreements. (203)"

"...the WTO should not be viewed as the sole forum for dispute resolution in all trade-related disputes. (207) The near judicial monopoly that the WTO has exercised to this point is no fault of its own given the underdeveloped nature of alternative dispute resolution fora. Nevertheless, the recent proliferation of alternatives provides a unique opportunity to broaden the options available for parties seeking resolution to trade-related environmental disputes."

"...Commentators have also suggested that hitherto ignored WTO rules may actually contain untapped potential for environmental protection. (211) By drawing on rules of international law from outside the WTO, this potential could be realized. For example, the WTO often considers so-called 'non-violation' cases. These cases involve trade concessions granted by one Member to another in which the benefits that would normally accrue are nonetheless "nullified or impaired" by subsequent action. However, suppose one Member grants a trade concession to another Member--say, reduced tariffs on the importation of sardines--and the exporting Member realizes a benefit as a result. Subsequently, imagine that the granting Member begins to over-fish their waters for sardines, thus driving down the domestic price of sardines, and nullifying the benefit that the receiving country expected. The receiving country could argue that over-fishing for sardines violates UNCLOS provisions...If the case is pursued at the WTO, the Panel would need to determine whether over-fishing of sardines violates UNCLOS. Assuming that it does, the Panel would then determine whether the violation--despite being a non-WTO environmental violation--nullifies the benefit of the trade concession."

"...WTO Panels must become more accommodating to outside sources of law. Consider UNCLOS Article 293, which gives tribunals a broad mandate to 'apply this Convention and other rules of international law not incompatible with this Convention.'"

"...On a related point, the WTO must become more accepting of outside expert advice, especially in the form of amicus curiae briefs. Although the WTO has pledged to make the dispute resolution process more accessible to NGOs, such reforms have been limited. To its credit, the WTO has turned to expert advice in the form of scientific testimony."

"...A final area for consideration involves the availability of provisional measures. The WTO has never granted provisional relief in a trade dispute, let alone a dispute involving environmental issues...In such cases, relief should be available when it can be shown that irreparable harm will occur in the interim period before international cooperative agreements can be established."

...Additionally, provisional measures might be based on the precautionary principle. While debate persists over whether the precautionary principle has assumed the status of customary international law, it could eventually become a basis for provisional measures at the WTO. (219) Although the final ruling in the SBT Case was disappointing, the ITLOS established useful precedent with respect to the precautionary principle".

"...multilateralism is the fundamental trait characterizing both regimes. With respect to the WTO, significant progress has been made in expanding Article XX exceptions for environmental protection. WTO jurisprudence has been augmented by the endorsement of MEAs as a vehicle for environmental protection. While perhaps remaining deficient in the eyes of some, these developments suggest a trend toward ever greater acceptance of environmental measures".

"...UNCLOS, on the other hand, faces a different challenge. As a creature of the modern environmental movement, its numerous provisions establish its credentials as a vital component of international environmental law. The challenge for UNCLOS lies not in its attention to environmental issues, but in the meaningful implementation and enforcement of its provisions. While the "umbrella approach" of UNCLOS is commendable in its breadth, the lynchpin is the cooperation of Members under other treaties and international agreements in carrying out UNCLOS obligations. The precise relationship between these agreements and UNCLOS is unsettled, as demonstrated by the reluctance of tribunals to find jurisdiction in cases touching on both UNCLOS and outside agreements."

“ECOSYSTEM-BASED MANAGEMENT”: A STEALTH VEHICLE TO INJECT EURO-STYLE PRECAUTION INTO U.S. REGULATION

noreply@blogger.com (ITSSD Charitable Mission) — Sat, 11 Jul 2009 18:45:00 +0000

http://itssd.org/7-10-09Kogan2_Leg alBackgrounder%20(2).pdf

“ECOSYSTEM-BASED MANAGEMENT”: A STEALTH VEHICLE TO INJECT EURO-STYLE PRECAUTION INTO U.S. REGULATION

By Lawrence A. Kogan

Washington Legal Foundation Legal Backgrounder

Vol. 24 No. 23

July 10, 2009

"As debate continues over whether the United States will accede to the UN Convention on the Law of the Sea (UNCLOS), recent developments in Congress and the Executive Branch indicate a quiet but concerted effort to inject UNCLOS environmental principles into U.S. law. Some, including this author, have argued that U.S. accession to UNCLOS would explicitly usher into the U.S. legal system an aggressive version of Europe’s precautionary approach to regulating economic conduct.1 In advance of accession, though, this “Precautionary Principle” is finding its way into U.S. policy statements and proposed legislation in the more politically palatable and innocuous-sounding, but no less unscientific, form of “ecosystem-based management” (EBM). As this LEGAL BACKGROUNDER will illustrate, application of EBM to use and exploration of the sea, and even land could substantially frustrate critical economic activity such as offshore oil exploration and marine genetic prospecting, while also imperiling U.S. sovereignty.

...The administration and the 111th Congress convey the impression that these proposals do not relate to the UNCLOS.31 Presumably, they wish to avoid a time-consuming and politically risky Senate floor debate that would reveal to an uninformed and economically weary American public the costs, as well as the putative benefits, actually associated with U.S. UNCLOS accession.

The reality, however, is that the U.S. government would be hard pressed to avoid a discussion of how the proposals discussed above, or an even more formal embrace of the ecosystem-based management precaution embodied in UNCLOS, would impair important American economic and sovereignty interests. Such obligations, being consistent with Europe’s Precautionary Principle, would require the strict and costly preservation and protection of the oceans from land, air and water-based sources of pollution within the U.S., without any need to prove or quantify the environmental benefits resulting from government regulation.

Our government is asking the American public to bear the costs which will result from precaution-driven EBM. In turn, we [WE THE PEOPLE] deserve that such measures be examined in venues such as congressional hearings on U.S. UNCLOS accession, rather than disguised via use of obtuse administration policy statements, a raft of amendments to existing federal environmental laws, and arcane regulatory proceedings."

[See also Lawrence A. Kogan, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law, 7 SANTA CLARA INT’L L. (June 2009), abstract available online at Social Science Research Network (SSRN) at 53, 56-97, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837 ].

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Two reports issued by the U.S. Joint Oceans Commission Initiative (‘JOCI’), in which former U.S. Admiral James Watkins and new CIA Director Leon Panetta likely participated as Commissioners are illustrate the Obama administration's gameplan concerning how to introduce the matter of ecosystem-based management into U.S. environmental law. An April 6, 2009 report recommended US Congressional accession to the UN Law of the Sea Convention, while a prior June 2006 JOCI report recommended changes to U.S. legislation and regulation to “[e]nable the transition toward an ecosystem-based approach”.

[An excerpt from the 2009 report, entitled, Changing Oceans, Changing World: Ocean Priorities for the Obama Administration and Congress: Recommendations from the Joint Ocean Commission Initiative, the cover of which is reproduced above, states the following:]

"The Administration and Congress have failed to act on most of the core recommendations of the Commissions, including the establishment of a national ocean policy, securing Senate support for U.S. accession to the Convention on the Law of the Sea, codifying and reorganizing the National Oceanic and Atmospheric Administration (NOAA), significantly increasing federal support for regional coordination efforts, and addressing chronic underfunding of ocean and coastal science, management, and conservation. Action on these recommendations is essential if we are to begin the transition toward a more integrated and ecosystem-based approach to management." (p. 8).

"...A catalyst is now needed to take this effort to the next level, and it must come in the form of leadership by the Administration and Congress. Specifically, legislation is needed to identify the goals and objectives of a national ocean policy, and the responsibilities of NOAA must be updated and the agency’s structure reorganized to realize its full potential. There must also be a coherent federal strategy for working with the states and regions, whose work is often stymied by confusion and conflict at the federal level. Oceans and coasts must be fully integrated into national climate and energy strategies, and the United States must reassert international leadership by acceding to the Law of the Sea Convention." (Id., at p. 9).

[An excerpt from the 2006 report, entitled,From Sea to Shining Sea: Priorities for Ocean Policy Reform, Report to the United States Senate, Joint Ocean Commission Initiative(June 2006) at p. 3).states the following:

"...Congress should enact legislation to create incentives for ecosystem-based management that builds on existing regional efforts. The incentives should provide a framework of policies and programs to guide the development and implementation of collaborative efforts that involve federal, state, tribal, and local governments, as well as the private sector, nongovernmental organizations, and academic institutions, working together toward regional actions that advance national ocean and coastal interests. The framework should be flexible in order to promote collaborative efforts that are responsive to regional realities, while ensuring accountability for making meaningful progress toward ecosystem-based management..." (p. 3).

"...PRINCIPLES TO GUIDE NATIONAL OCEAN GOVERNANCE REFORM

...Management Decisions Grounded in an Ecosystem-based Approach. In carrying out a national ocean policy, we need to implement an ecosystem-based management approach that examines the links among living and nonliving resources. Instead of managing one issue or resource in isolation, we need to move toward a management approach that considers human activities, their benefits, and their potential impacts within the broader context of interconnected social, economic, and ecological factors.

A Stronger NOAA Capable of Implementing an Ecosystem-based Management Approach. Since its creation by a reorganization order in 1970, NOAA has worked to advance the understanding, management, and protection of ocean and atmospheric resources. However, the agency suffers from programmatic and functional overlaps, disconnects among current line offices, and changing organizational priorities. NOAA needs congressional action to codify the agency and thereby enhance its mission, improve its structure, and better enable it to carry out existing and new responsibilities in a manner that is consistent with ecosystem-based management." (Id., at p. 16).

"...Congress should expressly acknowledge that management of all marine resources should be carried out in an ecosystem-based approach. Further, Congress should call upon federal agencies to develop guidelines that enable improved coordination and analysis to assist in the transition toward an integrated management approach that considers the entire ecosystem. Such an express acknowledgment should be part of law currently up for reauthorization, including the Magnuson-Stevens Fishery Conservation and Management Act, the Coastal Zone Management Act (CZMA), the National Marine Sanctuaries Act, the Clean Water Act, and other statutory regimes governing the use and management of ocean and coastal resources. Through reauthorization or passage of these statutes, Congress can provide that the goals for management should be set to ensure that ocean and coastal ecosystems remain productive with respect to all resources.

For example, through language included in the reauthorization of the Magnuson-Stevens Act, Congress can acknowledge that a first step toward effective ecosystem-based management of fisheries is to enable coordinated analysis of cumulative impacts of activities on fishery resources, as well as the impacts of fishing activities on other sectors, by developing guidelines for Regional Fishery Management Councils and other state and federal agencies and management entities to perform such analyses.

Likewise, through reauthorization of the CZMA, Congress can require that state coastal programs work with federal, state, and local agencies to provide for periodic assessments of the state’s natural, cultural, and economic resources, and based on those assessments, set specific, measurable goals that reflect the growing understanding of ocean and coastal environments and the need to manage growth in regions under pressure from coastal development. Congress can also direct that states redefine the landward reach of their coastal zones to include coastal watersheds, thus better enabling coastal programs to look across political boundaries and incorporate a coastal watershed focus and the basic tenets of ecosystem-based management. Statutory acknowledgement of the need to incorporate ecosystem-based management into marine resource management regimes is intended be a first step toward ecosystem-based management by enabling improved coordination and analysis among agencies managing marine resources and providing for a transition toward an integrated management approach that considers the entire ecosystem." (Id., a pp. 19-20).

[These two JOCI reports were discussed in: Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (May 2009) at: p. 2, and accompanying footnotes 19-20, at: http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf ].

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http://www.defra.gov.uk/marine/environment/stewardship.htm

Safeguarding our Seas: A strategy for the conservation and sustainable development of our marine environment ((c) 2002)

UK Department for Environment, Food and Rural Affairs (DEFRA)

"This report sets out our vision for the marine environment - clean, healthy, safe, productive and biologically diverse oceans and seas. It is underpinned by the principles of sustainable development, integrated management, the conservation of biological diversity, robust science, the precautionary principle and stakeholder involvement.

It outlines how we are adopting an ecosystem-based approach to marine management to better integrate marine protection objectives with sustainable social and economic goals. It covers the broad spectrum of policies that affect the marine environment. As well as describing past achievements and progress made, it contains new ideas and initiatives to turn our vision into reality.

These include initiatives to improve marine conservation and conserve biodiversity. They will also improve our management of our marine resources and develop scientific research and involve stakeholders. Our initiatives will also streamline regulation affecting development in coastal waters whilst protecting the marine environment. The report is a valuable first step in turning our vision into reality."

http://www.defra.gov.uk/marine/pdf/environment/marine_stewardship.pdf

"...We need to use the resources and opportunities offered by our oceans and seas while protecting ecological processes and ecosystems. This is the foundation for sustainable development. We can achieve our vision by adopting an ecosystem-based management approach.

...For the UK, and our Overseas Territories and Crown Dependencies, the principles that underpin our policy for the marine environment are:

• the precautionary principle – sensibly erring on the side of caution where the scientific evidence is not conclusive;" (Exec. Summ. at p. 3).

"...OUR VISION

1.8 Within the framework of the United Nations Convention on the Law of the Sea (UNCLOS2) and international law, our vision for the marine environment can be summarised as working for clean, healthy, safe, productive and biologically diverse oceans and seas. Within one generation we want to have made a real difference to tackling the threats that marine ecosystems face. This vision covers all oceans and seas and their adjacent coastal areas. It is a long term vision, but one that requires short to medium term outputs, targets and aspirations."

"2UNCLOS came into force in 1994. It contains a legal framework covering navigation, maritime boundaries, fisheries, the marine environment and marine scientific research. To date, 138 states are members, including the UK. We strongly support it and encourage all states to join."

"...1.17 An ecosystem-based approach to management represents a new and more strategic way of thinking. It puts the emphasis on a management regime that maintains the health of ecosystems alongside appropriate human use of the marine environment, for the benefit of current and future generations. This requires setting clear environmental objectives both at the general and specific level, basing management of the marine environment on the principles of sustainable development, integrated management, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement." (p. 7)

...1.20 Where scientific evidence is not conclusive, we need sensibly to apply the precautionary principle. This means, for example, taking preventive measures where there are reasonable grounds for concern that direct or indirect inputs to the marine environment may harm human health, living resources and marine ecosystems or other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects. (p. 7)

...TAKING THINGS FORWARD

1.41 This chapter has summarised our vision and the key initiatives that will help us to deliver clean, healthy, safe, productive and biologically diverse oceans and seas. It outlines how an ecosystem-based approach can deliver this goal based on the principles of sustainable development, integrated management, conservation of biodiversity, robust science, the precautionary principle and stakeholder involvement. The remainder of the report sets out in more detail what we have already achieved and how we will deliver our vision based on the initiatives summarised in this chapter. (p. 11)

Americans' Constitutional Rights Will Be Trampled Unless Senator Kerry & Other Congressional Committee Chairs Hold Public Hearings to Vet the UNCLOS

noreply@blogger.com (ITSSD Charitable Mission) — Sat, 11 Jul 2009 18:07:00 +0000

http://www.theenergydaily.com/pressreleases/environmental_services/200905051030PR_NEWS_USPR_____DC10103.html

http://www.upi.com/finance//?ChannelID=3197&GUID=8749816&Page=MediaViewer

Energy Daily/ UPI.com

May 5, 2009

In a new article appearing within the forthcoming issue of the Santa Clara Journal of International Law entitled, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe's Precautionary Principle as US Law, international attorney Lawrence Kogan calls upon all Americans to immediately exercise their constitutionally guaranteed 'right to know'. This article identifies the multiple pathways through which global environmental extremists, US trans-nationalists, and the 111th Congressional supermajority seek to use the highly complex United Nations Convention on the Law of the Sea (UNCLOS) as a loading platform from which to import into the American heartland very harmful UN and European-anchored environmental treaty and customary international law rules. "Unless the public demands due process of law from their congressional representatives," emphasized Kogan, "such rules, resembling rogue waves, will collectively override US sovereignty and the supremacy of the US Constitution and its accompanying Bill of Rights".

According to Kogan, "The US Navy continues to publicly deny the likely adverse consequences of the more than 45 plus environmental UNCLOS articles, regulations, protocols and annexes that implicitly and explicitly incorporate Europe's Precautionary Principle. This principle is known not only to raise indirect taxes and to threaten American free enterprise by chilling investments in technological innovations, reducing economic activity and increasing product manufacturing, processing and distribution costs and service fees, but to also severely impact military planning. Indeed, since, at least the late 1990's, foreign governments and environmental activist groups have invoked this controversial European legal nostrum to block US commercial activity, to curtail the Navy's ability to train offshore with sonar equipment, and to impair the timely US naval exercise of customary international law rights to freedom of navigation and innocent passage, both on the high seas and in territorial waters and at the north and south poles."

[There are embedded hyperlinks which may be accessed by clicking on the highlighted words above - 'north' & 'south'].

"Meanwhile," notes Kogan, "there are 'environmentally-enlightened' congressional committee chairs and ranking members who appear to be enamored with the legislative and associated regulatory powers derived from Europe's political civil law Precautionary Principle, especially those who hail from the coastal States of Alaska, California, Maine, Massachusetts, New Jersey and New York. They are busily preparing amendments to a host of US federal environmental, chemical and energy statutes that would expressly incorporate said principle as US law from within our own borders and thereby obviate the need for special US legislation to implement the UNCLOS' land and air-based pollution provisions. For example, these amended statutes, the new carbon cap-and-trade regime currently under development and the proposal for a new federal oceans policy are designed to achieve regulatory harmonization with socialist Europe. Their effect is to attenuate and subjugate US constitutionally guaranteed individual rights, including private property, to global communal interests. In addition to raising the cost of living for all Americans, they would also create disguised environmental trade barriers that are likely to injure and trigger retaliation from US trading partners, all at a time when the US is suffering from a deep financial crisis."

It has been observed that the Obama administration is paying lip service to ensuring Americans greater public transparency and a higher standard of governmental ethics than had its predecessors, even as it devises how to exploit the opaque federal administrative regulatory process to enshrine Europe's Precautionary Principle as US law. Perhaps, this explains why it has yet to 'walk the talk' to move those congressional committees possessing oversight jurisdiction concerning the UNCLOS' environmental, economic and tribunal components to hold open public hearings, prior to ratification, that substantively discuss their impact on the US economy, US national security, US constitutional rights and US sovereignty. If, however, 'change' is in the air as this administration insists, then nothing less than full disclosure will make it authentic.

The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. An annotated version of this press release is accessible at: http://itssd.org/news.html.

[A fully annoted version of this summary / press release is accessible at:

http://www.itssd.org/ITSSD%20-%20Americans'%20Constitutional%20Rights%20Will%20Be%20Trampled%20Unless%20Congress%20Convenes%20Public%20UNCLOS%20Hearings%20-%20III.doc ]

[The full law rev

iew article is accessible at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356837.]

Arguably, given the sheer number and scope of UNCLOS environmental regulatory and judicial enforcement provisions, their potential impact on court proceedings, interstate and foreign commerce and military subcontractors, as well as, their potential to trigger new or amended U.S. legislation and/or federal agency regulations, Americans should demand from their congressional representatives that the environmental provisions of the UNCLOS should be reviewed by more than just the Senate Committee on Foreign Relations chaired by Massachusetts Senator John Kerry.

In the Senate, these UNCLOS provisions should be reviewed also by:

1) the Committee on Energy and Natural Resources;
2) the Committee on Commerce, Science and Transportation;
3) the Committee on Intelligence;
4) the Committee on Finance;
5) the Committee on Environment and Public Works; and
6) the Committee on Judiciary.

In the House of Representatives, these UNCLOS provisions should be reviewed also by:

1) the Committee on Energy;
2) the Committee on Foreign Affairs;
3) the Committee on Intelligence;
4) the Committee on the Judiciary;
5) the Committee on Natural Resources;
6) the Committee on Science;
7) the Committee on Transportation and Infrastructure; and
8) the Committee on Ways and Means.

US UNCLOS Accession NOT Necessary to Secure Vast Majority of U.S. Energy Needs, US Army War College Research Paper Finds; Amendment Preferred

noreply@blogger.com (ITSSD Charitable Mission) — Wed, 08 Jul 2009 00:07:00 +0000

March 2003http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA497652&Location=U2&doc=GetTRDoc.pdf

TOWARD AN ARCTIC STRATEGY

By Lieutenant Colonel Alan L. Kollien

United States Air Force

U.S. Army War College Strategy Research Report

February 17, 2009

ABSTRACT

Rising temperatures and a corresponding icepack melt in the Arctic accelerates to levels not previously envisioned. The rapidly receding polar ice pack opens a new Arctic area of opportunity in ways not witnessed until this century. This emerging area of operations holds new economic opportunity recognized by many nations, but especially Arctic border nations rushing to stake their claims in the Arctic Ocean and its seabed. Despite the accelerating Arctic Rush and its emerging conflicts, the United States lacks a strategy to achieve its interests in the region. This paper provides the foundation for strategy makers to move toward an Arctic strategy. It discusses the major regional stakes and definesArctic strategic objectives in terms of the most recent executive Arctic policy directive. It examines options for a legal regime to frame the strategy and recommends a combatant command structure that incorporates a circumpolar perspective to maximize unity of unity of effort throughout the Arctic area of operations. In total, this paper aims to spawn vigorous efforts among U.S. leadership to rapidly design and codify a comprehensive strategy to achieve U.S. Arctic objectives.

…This paper aims to spark American strategists to build and codify an already “late to need” comprehensive Arctic strategy. It examines two factual cause and effect trends that illustrate the urgent need for this strategy. First, Arctic ice retreat measurements point to increased regional accessibility faster than scientific models predicted earlier this decade. That trend, in turn, encourages previously unforeseen economic, scientific and other activities on America’s increasingly exposed northern flank. The paper then identifies U.S. Arctic objectives (ends) based on the latest executive Arctic policy directive signed by the President. In light of the ends, it then proposes, analyzes and recommends two foundational ways toward an effective Arctic strategy. First, it proposes that the United States requires legal transparency and should strive for a common international legal regime to stake and defend its Arctic claims and interests. Second, it proposes that the United States requires unified command reorganization to eliminate seams and effectively execute a comprehensive Arctic strategy. When added to the growing body of literature regarding the emerging Arctic’s importance, this paper should embolden U.S. leaders to rapidly end the current Arctic strategy void. (pp. 1-2)

… Arctic Legal Regime

The most pressing challenge the United States faces is choosing a way to legally stake and enforce its Arctic territorial claims in order to meet national security, homeland security and economic objectives as stated in the policy. (p. 5).

To achieve a common international legal regime, NSPD-66/HSPD-25 urges the Senate to ratify the United Nations Convention on the Law of the Sea (UNCLOS).23 However, an opposition group, including recently re-elected Senator Jim Inhofe (R-OK), believes ratification of the current convention gains little, but costs too much. Before determining legal regime options, strategists should carefully examine arguments from both sides of the UNCLOS issue to develop the necessary political consensus on complex national security issues.

Ratification foes for accepting the current UNCLOS treaty provide the following reasons, many with implications beyond the Arctic, to support their opposition. First, some UNCLOS provisions open new avenues for traditionally anti-U.S. environmental groups to affect U.S. policies through domestic or international court actions.24 Second, UNCLOS requires taxable licenses for companies seeking to harvest resources from the seabed beyond the 200-nautical-mile (EEZ), whereas companies may currently do so without a fee. Third, UNCLOS articles regarding intellectual property could force the United States to share some technologies with potential competitor or adversary states.25 Fourth, UNCLOS provisions govern the management of fisheries, overriding some management aspects of sovereign states.26 Fifth, UNCLOS’ definitions of internal and archipelagic waters as well as articles defining boarding and investigation may limit U.S. Navy and Coast Guard freedoms to an unacceptable degree, including within the northern Canadian islands.27 Some countries even seek to stake increased sovereignty claims within their EEZs by establishing Particularly Sensitive Sea Areas or Marine Protected Areas that legally compel naval and commercial vessels to avoid these areas.28 Sixth, in case of disputes, the United States should not submit itself to UNCLOS’ International Tribunal for the Law of the Sea.29 (p. 10)

24 Lawrence A. Kogan, “UNCLOS Alchemy,” November 2, 2008, linked from The Minority Report, http://www.theminorityreportblog.com/story/steven_foley/2007/11/02/unclos_alchemy_law_of_the_sea_treaty (accessed November 10, 2008).

28 Kogan, “UNCLOS Alchemy.”

(p.10)

...Ratification advocates believe that unless the United States ratifies the treaty, it will also lose the claims race for areas of the resource-rich Arctic and will lack representation in various United Nations committees designed to administrate the treaty’s broad enterprises. (p.11)

Energy companies currently operating on Alaska’s North Slope and in the Beaufort Sea who advocate UNCLOS ratification want to extend their drilling fields and exclusively secure the resources along, and eventually beyond, the continental shelf. Exemplifying their enthusiasm, Chukchi Sea leases fetched a record $2.6 billion at a February 2008 auction.35 UNCLOS provisions allow a nation to claim exclusive seabed mineral rights up to 350 nautical miles from its shoreline if its continental shelf extends beyond the current 200-nautical-mile EEZ (depicted for the United States, Canada, Denmark, Norway and Russia by the bold line in Figure 3). (p. 11). Nations must submit claims for co ntinental shelf rights beyond the 200-nautical-mile limit to the Commission on the Limits of the Continental Shelf (CLCS).36 Such claims must be submitted within ten years of treaty ratification. They may also apply for licenses to claim mineral resources beyond national limits in the deep seabed through the International Seabed Authority (ISA). (pp. 11-12).

However, the 2008 USGS data suggest ratification may not be necessary to secure the vast majority of U.S. energy interests. The majority of undiscovered oil and natural gas resources likely lie along the continen tal shelf, within nations’ current EEZs, rendering claims to the CLCS and ISA unnecessary to harvest those resources.38 T he Arctic Alaska province contains 30 BBO and 221 TCF of natural gas, all within the U.S. EEZ. The province also likely contains an undiscovered 5.9 billion barrels of natural gas. .liquids (BNGL). (p.12)

All total, the estimated sum of undiscovered energy in the province equals 72.77 billion barrels of oil and oil-equivalent natural gas (BOE).39 Claims submitted under UNCLOS provisions could increase the U.S. stake for resources in only one area, the Amerasian Basin province, to a limited degree. The USGS study indicates that 9.7 BBO, 56.89 TCF of natural gas, and 0.54 BNGL lie undiscovered in the province. However, the highest concentrations of these resources likely exist along the Canadian and U.S. (Alaskan) continental shelves. Compared to the 72.77 BOE suspected to lie within the Arctic Alaska province, 19.75 BOE likely lies within the Amerasian Basin. The vast majority of that 19.75 BOE lies within the Canadian and U.S. EEZs, therefore little remains available for the United States to claim.40 A U.S. claim submission to the CLCS to extend economic rights could increase total U.S. energy reserves, but only by a miniscule amount according to the most current USGS appraisal. Additionally, under UNCLOS, a claim beyond the current U.S. EEZ would require a license fee, making the scant amount of additional resources even less economically attractive.41 (pp. 12-13).

...The United States also needs to carefully measure the effectiveness of UNCLOS in its current form to meet U.S. Arctic policy objectives without jeopardizing other national interests and objectives abroad. Freedom of navigation issues, for example, put NSPD-66/HSPD-25 objectives at odds with its own recommendations. While the joint policy directive recommends ratifying UNCLOS, it also explicitly seeks to preserve U.S. freedom of navigation “rights throughout the world, including through strategic straits” and claims the “regime of transit passage” for international navigation through the Northwest Passage and Northern Sea Route.42 (p.13).

Canada, meanwhile, invokes U.N. rulings in other parts of the world to justify claiming portions of the Northwest Passage as internal waters.43 In this light, building the legal regime strategy block requires a cautious balancing act to maximize achievement of all U.S. interests.44. (pp. 13-14).

Having examined the UNCLOS arguments, it is time to analyze the three options that use UNCLOS as the basis for a legal regime. In Option 1 (Modification), the United States seeks to modify, then ratify the convention. In Option 2 (Ratification), the U.S. Senate ratifies UNCLOS in its current form. In Option 3 (Codification), the United States defines and codifies which provisions it treats as customary international law. (p.14)

Option 1, the most complex, requires modification submissions to the United Nations that may or may not prove acceptable to UNCLOS signatory nations. This process would likely be lengthy based on standard U.N. consensus building practices. The United States would require a special team of subject matter experts from each of the disputed topic areas to address all of the issues previously discussed. To gain greater bipartisan consensus, the team should also include knowledgeable representatives from Senator Inhofe’s and other ratification foes’ offices and appropriate legal experts. The team must thoroughly review all UNCLOS provisions questioned by ratification foes and then codify a comprehensive and detailed update proposal to the convention that will gain U.S. Senate support.

All six issues previously identified by ratification opponents need to be addressed by examining and, where required, amending UNCLOS articles. Fees and taxes listed in Article 82 require elimination for U.S. businesses to avoid unfavorable treatment with respect to businesses of developing nations. Transfer of technology provisions listed in Article 144 require modification to avoid mandates of U.S. technology transfer, .especially dual-use technology transfer, to potentially anti-U.S. or rogue actors. Articles 61 through 69 require modification to preclude sovereignty infractions regarding U.S. EEZ fisheries and marine life harvests. Articles 47 through 53 require clarification or changes in order to not limit naval vessels’ practices deemed vital to U.S. security. Articles 224 through 227 require review to ensure USCG and Navy operations are not unduly impeded, especially in an era of active counter-proliferation and increased piracy. Article 236 needs legal review to ensure, and perhaps broaden, USCG and Navy vessels’ immunity from UNCLOS legal provisions. Finally, Part XI of UNCLOS requires a thorough review and modifications to prevent international authorities, courts and tribunals from unduly overriding U.S. sovereignty.

If the team’s proposed adjustments, approved by appropriate U.S. authorities, prove acceptable to the United Nations, then the U.S. Senate should ratify the modified UNCLOS and the United States recognize all provisions as treaty law. This provides a common legal regime for all Arctic nations to stake claims and enforce the rule of law in this rapidly emerging region of importance. This option, though the most time consuming and potentially difficult to achieve, provides a path to minimum conflict and maximum international legitimacy. Fundamentally, it fully achieves all related U.S. Arctic policy objectives to the maximum extent possible. (pp. 14-15)

Option 2 requires U.S. Senate ratification of the current treaty, but may prove politically difficult to obtain because senate ratification requires 67 votes, and this support may not currently be available. If ratified, UNCLOS becomes treaty law common to all ratifying nations. Option 2 also maximizes the potential of U.S. energy interests in the Arctic, but cedes aspects of U.S. sovereignty throughout the world in some of its articles as mentioned earlier. While most U.S. government agencies recommend treaty ratification, political sensitivities as espoused by Senator Inhofe and his supporters may prevent or at least delay it. It remains to be seen if the 2009 presidential administration and congressional changes will overcome the opposition. (pp. 15-16)

Option 3 achieves most, if not all, U.S. economic objectives according to the most recent USGS data and protects U.S. sovereignty, but falls short of providing an international legal regime completely common to all Arctic states. The United States already treats most UNCLOS provisions as customary international law. This option maintains the status quo, but requires the United States to codify which UNCLOS provisions it recognizes as law and which provisions it rejects in order to provide legal transparency in lieu of a completely common legal regime. With Option 3, the United States continues to pursue all resources within its EEZ and operate abroad as it currently does without ceding sovereignty. It simultaneously pursues bilateral agreements with Russia and Canada to resolve its Bering Strait and Beaufort Sea disputes, respectively, with each nation.

This option potentially casts the United States as a “unilateralist” nation since it does not achieve the common legal regime championed by the United Nations and those nations who have already ratified the measure. It could reinforce a negative image among certain governments and anti-U.S. groups. For example, these actors may disparage the United States in the same manner they do regarding the Kyoto protocols. (p. 16)

While Option 3 does not create a common international legal regime, it does clarify America’s view and buys time to pursue Option 1. This transparency could alleviate potential conflicts regarding territorial and resource claims in the Arctic and naval freedoms throughout the world. At least other nations would know the United States’ position regarding every UNCLOS provision. Option 3 provides flexibility since it may represent the United States’ final position regarding UNCLOS or just fill the gap until achieving Option 1 in the future. It could be a steppingstone while seeking a politically acceptable option that better achieves a common legal regime. (pp. 16-17)

...Based on the preceding analysis, this paper recommends Option 1 (Modification). It provides the best solution using UNCLOS as a foundation to provide a legal regime for an Arctic strategy. It maximizes U.S. energy and sovereignty objectives at stake while achieving a common international legal regime that is politically acceptable. The other two options fall short.

Option 3 (Codification) nearly maximizes U.S. energy objectives while maintaining sovereignty, but fails to provide a truly common legal regime. In the interim, however, Option 3 could possibly be used to minimize potential conflicts while pursuing Option 1.

Finally, Option 2 (Ratification) maximizes U.S. energy interests and legal regime compatibility, but the expense of ceding sovereignty makes it politically unpopular and strategically inferior. It clearly provides the least favorable solution. In fact, Option 2 would likely hinder achieving some of the global objectives explained in NSPD-66/HSPD-25. (p. 17)

...Conclusion

...This paper provides the foundation for strategy makers to move toward an Arctic strategy. It examines the major regional stakes primarily related to economic opportunities created by climate change. Using the newly approved Arctic objectives identified in NSPD-66/HSPD-25, it analyzes three legal regime options and two. combatant command options. It then recommends modifying UNCLOS to achieve a common international legal regime and modifying the UCP to incorporate a circumpolar perspective for maximizing unity of effort throughout this emerging region of importance. In total, this paper aims to spawn vigorous efforts to rapidly design and codify a comprehensive strategy to achieve U.S. Arctic objectives. (pp. 23-24)

CFR Report Uses Climate Change, Piracy & Continental Shelf as Bogeymen to Promote UNCLOS Ratification Without Congressional Hearings

noreply@blogger.com (ITSSD Charitable Mission) — Sun, 10 May 2009 16:34:00 +0000

http://ww w.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf

The National Interest and the Law of the Sea

By

Scott G. Borgerson

Council on Foreign Relations Special Report No. 46

May 2009

Foreword

..."Among other things, the report argues, accession to the convention would secure rights for U.S. commercial and naval ships, boost the competitiveness of American firms in activities at sea, and increase U.S. influence in important policy decisions, such as adjudications of national claims to potentially resource-rich sections of the continental shelf."

...Richard N. Haass
President
Council on Foreign Relations
May 2009

[THIS REPORT MAKES A SERIES OF UNSUBSTANTIATED CLAIMS THAT CAN BE EASILY DEBUNKED AS 'MYTHS'.]

[The only UNCLOS truth which the CFR Report speaks about is that set forth immediately below. Otherwise, there are at least 3 UNCLOS Myths they have promoted.]

" UNCLOS ENVIRONMENTAL" TRUTH

"Protection of the marine environment was a core U.S. objective during the Law of the Sea negotiations...The convention’s living-resources articles create a framework for international cooperation in the sustainable management of fish stocks and the conservation of marine mammals...The convention’s provisions on environmental protection address all sources of marine pollution, from ships and waste disposal at sea, in coastal areas and estuaries, to airborne particles... create a framework for further developing measures to prevent, reduce, and control pollution globally, regionally, and nationally, and they call for measures to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened, or endangered species, and other forms of marine life." (pp. 29-30)

[CFR Report MYTH #1]

"Those facts alone argue strongly for U.S. accession. To answer the question “Why now?” however, a daunting set of comparatively new ecological threats must be considered. Climate change and the burgeoning industrialization of the oceans are giving rise to severe environmental stresses that require an urgent global response. U.S. leadership is critical, not only in undertaking the research that will help us understand the effects of climate change in the marine environment and related mitigation and adaptation options, but also in tackling the problems head-on. In many respects, such leadership cannot be fully realized without accession to the convention."

"Oceans are among the first casualties of increased greenhouse-gas emissions. In preindustrial times, the oceans released an amount of carbon that roughly equaled the quantity they absorbed. But with rising levels of atmospheric CO2, the seas are being asked to absorb more carbon than ever before, a process that has already increased the acidity of ocean surface waters by approximately 30 percent.21 It is projected that global surface pH will decrease by a further 40 percent to 120 percent by the end of the century,22 at which point the amount of CO2 in the ocean will exceed levels seen at any time in the last three hundred million years."

"Strategic Imperatives"

"Acidification carries with it the potential to devastate ocean ecosystems. 23 It will deprive marine animals of access to the calcium carbonate many of them require, weakening the formation of calcium carbonate shells. Commercially fished species that will be directly affected include corals, mussels, oysters, lobsters, and crabs. More important, however, is the likely impact on many species of small planktonic plants and animals that are crucial to marine food webs. In short, acidification has the potential to transform ocean life, and its impact is already being felt by America’s marine environment."

"A related consequence of climate change is ocean warming. The absorption by the ocean of excess heat in the atmosphere elevated ocean temperatures in the upper 700 meters by 0.1 degree Celsius between 1961 and 2003.24 That ostensibly small temperature rise over such a vast expanse of water is, in fact, potentially devastating not only to ocean life but to life in general, because of the role ocean temperature plays in driving the planet’s climate. The oceans store huge amounts of heat and distribute it across the globe. Even small changes in ocean temperature will have consequences for how that process occurs. As the oceans continue to warm, both the frequency and the intensity of hurricanes are predicted to increase. Scientists also predict more extreme maximum temperatures and more frequent heavy precipitation.25"

"Change is happening most rapidly, and can be seen most vividly, in the Arctic. The Arctic Ocean is the least understood of all the world’s oceans, but we know it is warming at approximately twice the rate of the rest of the oceans. That is causing the rapid retreat of Arctic sea ice. In September 2007, the minimum ice extent at the end of summer was 23 percent lower than what it had been in 2005, the previous record low, and 50 percent lower than was typical in the 1950s through the 1970s.26 Scientists from the National Snow and Ice Data Center and the National Center for Atmospheric Research have found that Arctic sea ice is melting even faster than models have projected, giving rise to predictions that the Arctic might be seasonally ice free as soon as 2013, and possibly earlier. Such rapid change will lead to the local loss—or, in some cases, complete extinction—of certain Arctic species. Ice-associated marine algae and amphipods provide the base of the unique food web that includes a rich variety of invertebrates, fish, and birds. Ice-dependent ocean mammals, such as bowhead whales, narwhals, polar bears, ringed seals, and walruses, will also be directly affected by loss of habitat. The changes in the extent of Arctic sea ice will also have profound consequences for the world’s climate, increasing the retention of solar heat and reducing the vital temperature gradient between the warmer tropics and colder polar regions, thus altering ocean currents and weather patterns throughout the Northern Hemisphere."

"Attempts to mitigate climate change are the subject of separate international discussions. There is a strong argument to be made that acceding to the Law of the Sea Convention would strengthen America’s diplomatic hand in those negotiations. Quite apart from that, however, the far-reaching changes to ocean ecosystems that are occurring as a result of climate change provide an answer to the question “Why now?” Full U.S. participation in the convention is vital as the international community adjusts to a rapidly changing ocean environment. The need to find ways to help humankind adapt to a changing climate will become increasingly important. Efforts to restore the natural resilience of marine ecosystems and species through their protection, maintenance, and restoration will be a central part of that effort. Given the geopolitical context of the Arctic region, U.S. leadership will be crucial."

"The Arctic offers a particularly sobering environmental imperative. As its ecosystem comes under increasing strain from climate change, melting sea ice will expose it to unprecedented pressures that will accompany increased human access. Concerted international engagement to ensure effective and integrated ecosystem-based management of human activities in the Arctic is essential. Acceding to the convention would help the United States advance new governance initiatives in this important region, such as shipping-traffic schemes through the Bering Strait, coordinated sea route authorities, and possibly even the establishment of a marine scientific park at the North Pole. The convention provides solid legal bedrock on which to build elegant and effective governance structures for the future Arctic."

"As the Law of the Sea regime becomes more entrenched, the international organs it has created are becoming more important policymaking centers. The continued absence of the United States from this international management regime deprives the United States of the opportunity to exercise environmental leadership over nearly three quarters of the earth. Joining the convention would permit the United States to become the main force for responsible ocean stewardship at this critical juncture, rather than see the fate of the oceans determined by other players..." (CFR Report at pp. 29-32)

[UNFORTUNATELY, THIS CLAIM IS UNTRUE, AS EXPLAINED BELOW.]

[UNCLOS REALITY #1 - COUNTERING CFR REPORT]

[Apparently, during its final twenty-four months, the legacy-oriented Bush administration had sought to secure U.S. ratification of the UN Law of the Sea Convention for the alleged purpose of preserving the ocean’s critical ability to absorb atmospheric carbon dioxide. According to at least one prominent scientist who was formerly a member of the United Nations Intergovernmental Panel on Climate Change (IPCC), this effort was not only ill-advised but also without scientific foundation. "Since geologic processes ultimately determine the level of atmospheric CO2," the director of the Geological Museum at the University of Oslo, formerly an expert reviewer with the IPCC, argues that IPCC scientists must acquire the [geologic] knowledge that is central to understanding climate change ..."to avoid making fundamental mistakes"...[W]ith the advent of IPCC-influenced science, the length of time that carbon stays in the atmosphere became controversial. Climate change scientists began creating carbon cycle models to explain what they thought must be an excess of carbon dioxide in the atmosphere. These computer models calculated a long life for carbondioxide. Amazingly, the hypothetical results from climate models have trumped the real worldmeasurements of carbon dioxide’s longevity in the atmosphere. Those who claim that CO2 lasts decades or centuries have no such measurements or other physical evidence to support their claims...In the real world, as measurable by science, CO2 in the atmosphere and in the oceanreach a stable balance when the oceans contain 50 times as much CO2 as the atmosphere. "The IPCC postulates an atmospheric doubling of CO2, meaning that the oceans would need to receive 50 times more CO2 to obtain chemical equilibrium," explains Prof. Segalstad. "This total of 51 times the present amount of carbon in atmospheric CO2 exceeds the known reserves of fossil carbon—it represents more carbon than exists in all the coal, gas, and oil that we can exploit anywhere in the world." ]

[See: Lawrence Solomon, Models Trump Measurements, CAN. FIN. POST (July 7, 2007), available at: http://www.financialpost.com/story.html?id=433b593b-6637-4a42-970b-bdef8947fa4e&p=2 ].

[We are doomed, say climate change scientists associated with United Nations Intergovernmental Panel on Climate Change, United Nations body organizing most climate change research occurring world today. Carbon dioxide man-made sources rises atmosphere then stays 50, 100, even 200 years. unprecedented buildup CO2 then traps heat would otherwise escape atmosphere, threatening us all.

"This nonsense," says Tom V. Segalstad, head Geological Museum University Oslo formerly an expert reviewer with same IPCC. He laments paucity geologic knowledge among IPCC scientists – knowledge central understanding climate change, view, since geologic processes ultimately determine level atmospheric CO2.

"The IPCC needs lesson geology avoid making fundamental mistakes," he says. "Most leading geologists, throughout world, know IPCC's view Earth processes are implausible if not impossible."

Catastrophic theories climate change depend on carbon dioxide staying atmosphere long periods time – otherwise, CO2 enveloping globe wouldn't dense enough keep heat in. Until recently, world science near-unanimous CO2 couldn't stay atmosphere more than about five 10 years because oceans' near-limitless ability absorb CO2.

"This time period has been established measurements based on natural carbon-14 readings carbon-14 nuclear weapons testing, has been established radon-222 measurements, has been established measurements solubility atmospheric gases oceans, has been established comparing isotope mass balance, has been established through other mechanisms, too, over many decades, many scientists many disciplines," says Prof. Segalstad, whose work has often relied upon such measurements.

Then, with advent IPCC-influenced science, length time carbon stays atmosphere became controversial. Climate change scientists began creating carbon cycle models explain what thought must an excess carbon dioxide atmosphere. These computer models calculated long life carbon dioxide.

Amazingly, hypothetical results climate models have trumped real world measurements carbon dioxide's longevity atmosphere. Those who claim CO2 lasts decades centuries have such measurements other physical evidence support their claims.

Neither can demonstrate various forms measurement are erroneous.

"They don't even try," says Prof. Segalstad. "They simply dismiss evidence is, intents purposes, irrefutable. Instead, substitute their faith, constructing kind science fiction fantasy world process."

In real world, measurable science, CO2 atmosphere ocean reach stable balance when oceans contain 50 times much CO2 atmosphere. "The IPCC postulates an atmospheric doubling CO2, meaning oceans would need receive 50 times more CO2 obtain chemical equilibrium," explains Prof. Segalstad. "This total 51 times present amount carbon atmospheric CO2 exceeds known reserves fossil carbon – represents more carbon than exists coal, gas, oil can explo anywhere world."

Also real world, Prof. Segalstad's isotope mass balance calculations – standard technique science – show if CO2 atmosphere had lifetime 50 200 years, claimed IPCC scientists, atmosphere would necessarily have half its current CO2 mass. Because nonsensical outcome, IPCC model postulates half CO2 must hiding somewhere, "a missing sink." Many studies have sought missing sink – Holy Grail climate science research – without success.

"It search mythical CO2 sink explain an immeasurable CO2 lifetime of hypothetical CO2 computer model purports show an impossible amount fossil fuel burning heating atmosphere," Prof. Segalstad concludes. "It [is] fiction." ].

See: Lawrence Solomon, The Deniers, Part XXIX: Models Trump Measurements, Urban Renaissance Institute website, accessible at: http://www.urban-renaissance.org/urbanren/index.cfm?DSP=content&ContentID=17666 . Lawrence Solomon is executive director of Urban Renaissance Institute Consumer Policy Institute, divisions Energy Probe Research Foundation].

[CFR REPORT MYTH #2]

"HOW REMAINING OUTSIDE THE CONVENTION DAMAGES U.S. NATIONAL INTERESTS"

"... The convention provides two essential and immediate components for responding to piracy off the coast of Somalia. First, the convention permits any state to arrest pirates, seize pirate vessels, and prosecute pirates in the courts of the interdicting naval authority. Second, and equally important, the convention protects the sovereign rights of ocean-going states that participate in antipiracy naval operations in the territorial seas of failed states such as Somalia. This is critical for building international naval flotillas for combating the growing pirate problem in the Indian Ocean..." (CFR Report at p. 33)

[UNCLOS REALITY #2 - COUNTERING CFR REPORT]

THE UNCLOS DOES NOT PROVIDE THE ESSENTIAL & IMMEDIATE COMPONENTS FOR [ADEQUATELY] RESPONDING TO PIRACY OFFSHORE']

["Article 110 of the U.N.'s Law of the Sea Convention -- ratified by most nations, but not by the U.S. -- enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates. A recent U.N. Security Council resolution allows foreign navies to pursue pirates into Somali waters -- provided Somalia's tottering government agrees -- but the resolution expires next week. As for the idea of laying waste, Stephen Decatur-like, to the pirate's prospering capital port city of Eyl, this too would require U.N. authorization. Yesterday [November 24, 2008], a shippers' organization asked NATO to blockade the Somali coast. NATO promptly declined".].

[See: BRET STEPHENS, Why Don't We Hang Pirates Anymore?, Wall Street Journal Op-ed (Nov. 25, 2008) at: http://online.wsj.com/article/SB122757123487054681.html?mod=djemEditorialPage ].

["[T]he navies say it is virtually impossible to patrol the vast sea around the gulf. NATO has ruled out a blockade. 'Blocking ports is not contemplated by NATO,' said NATO Secretary General Jaap de Hoop Scheffer in Brussels. U.N. Security Council resolutions 'do not include these kind of actions and as far as NATO is concerned, this is at the moment not on the cards,' he said..."]

[See: EILEEN NG, NATO Rejects Call for Blockade Along Somali Coast, Associated Press (Nov. 24, 2008) accessible at: ITSSD Journal on the UN Law of the Sea Convention (Nov. 2008) at: http://itssdjournalunclos-lost.blogspot.com/2008/11/futility-of-relying-upon-unclos-to.html ].

["'The authorities these days have a real problem because of international law...As in the days of the Caribbean pirates, everything is on the pirates' side'. says Dr David Cordingly Maritime writer."

"These days, there is no question of a bombardment of the port of Eyl, the main pirate base on the Somali coast. That might be the most effective response but it would require a UN Security Council resolution."

"There is a resolution (1838, passed in October [2008]) which authorises the use of 'necessary means', meaning force if need be, to stop piracy in international waters. There is also another resolution (1816) which allows anti-pirate operations within Somali waters, but only with the agreement of the Somali transitional government. But even all these operations have to be conducted within international law, defined in this case as the provisions of the UN Law of the Sea Convention."

"The Law of the Sea Convention places limitations on daring action. Under Article 100 of the convention a warship has first to send an officer-led party to board a suspected pirate ship to verify any suspicions."

"The warship cannot just open fire. Any inspection has to be carried out 'with all possible consideration'. That sounds rather tentative...'The authorities these days have a real problem because of international law. There are measures ship owners can take like having fire hoses to aim at the pirates, acoustic devices to hurt their hearing or electric fences but, as in the days of the Caribbean pirates, everything is on the pirates' side".]

[See Paul Reynolds, Rules Frustrate Anti-Piracy Efforts, BBC News (Nov. 19, 2008) at: http://news.bbc.co.uk/2/hi/africa/7735144.stm .]

["Summary - Articles 100 to 107 of the 1982 Convention merely allow the community of states to take police action at sea but not to prosecute offences. On the high seas, this right is reserved for the individual states and based on their national law."

Rulemaking Petition: Request for Rulemaking to Provide American Depository Receipt Owners With Certain Traditional Shareowner Rights When Foreign Corporations Advocate On Significant U.S. Social Policy Issues Or Have Significant U.S. Social Impacts

"The 1982 Convention in itself is not sufficient to ensure adequate protection against piracy. Since the offence is restricted to the high seas, many cases do not qualify as piracy, for some 80% of all attacks occur in territorial waters and in ports."

"A further shortcoming of the 1982 Convention is that an attack only qualifies as piracy according to the Convention’s own definition if it is committed for “private purposes”. The rights of intervention granted by the 1982 Convention therefore do not encompass the growing number of terrorist acts."

"Furthermore, Article 100 of the 1982 Convention obliges the states to work together in the fight against piracy. That, however, does not mean that the states are under any obligation to incorporate standards penalising piracy in their legal systems."

"The term 'piracy' was defined by the Geneva Convention on the High Seas in 1958. This definition was adopted by the 1982 [UN] Convention [on the Law of the Sea UNCLOS]."

Rulemaking Petition: Request for Rulemaking to Provide American Depository Receipt Owners With Certain Traditional Shareowner Rights When Foreign Corporations Advocate On Significant U.S. Social Policy Issues Or Have Significant U.S. Social Impacts

"For acts of violence against ships, persons, or property on board to be classified as piracy in accordance with Articles 101 and 102 of the 1982 Convention, the following conditions must all be met simultaneously:

The act of violence must be:

– committed by the crew or passengers of another vessel,

– illegal and serve private purposes,

– and it must be committed on the high seas or at a place not subject to state sovereignty."

"Article 101 of the 1982 Convention defines the act of piracy very narrowly. Politically motivated acts, such as terrorist attacks, are not included according to the 1982 Convention."

"The definition is unclear on the meaning of the word 'illegal'. It is left to the courts of the prosecuting countries to decide whether the act is to be designated “illegal” according to international law or according to the national law of the prosecuting countries."

Rulemaking Petition: Request for Rulemaking to Provide American Depository Receipt Owners With Certain Traditional Shareowner Rights When Foreign Corporations Advocate On Significant U.S. Social Policy Issues Or Have Significant U.S. Social Impacts

"...Right of intervention against piracy"

"Article 110 of the 1982 Convention...grants warships the right to stop other vessels for the purpose of verifying their right to fly a flag. However, this is not a general right. It must be based on certain reasons, such as the suspicion of piracy, slave trading, or statelessness. The warship may send a so-called boarding team on board the stopped vessel in order to verify its right to fly the flag. The vessel may be searched if the suspicion is confirmed after inspecting the ship’s papers (Article 110, paragraph 2, 1982 Convention). When exercising this right, however, the commanding officers must remember that, if the suspicion proves to be unfounded, Article 110, paragraph 3 of the 1982 Convention stipulates that the shipping company be reimbursed for all losses incurred."

"...According to the first sentence of Article 105 of the 1982 Convention, every state may take action against pirates (arrest and seizure) at any time in international waters (= high seas and waters not controlled by any state)."

"The second sentence of Article 105 states that the courts of the state which has seized the vessel (i.e. whose colours are being flown) can also decide on the penalties to be imposed and on the action to be taken with regard to the vessel or property..."

"...At the same time, Article 105 of the 1982 Convention specifies that a pirate ship cannot be pursued further once it has reached national waters."

"Article 107 of the 1982 Convention, however, restricts the right of such intervention in international waters to warships or 'other ships which are clearly marked and identifiable as being on government service and are authorized to that effect'.

– Exception: 'consent of the flag state'..."

[See: Munich Re Group ((c) 2006), Piracy - Threat at Sea: A Risk Analysis, at pp. 24-27, accessible online at: http://www.munichre.com/publications/302-05053_en.pdf . ]

Rulemaking Petition: Request for Rulemaking to Provide American Depository Receipt Owners With Certain Traditional Shareowner Rights When Foreign Corporations Advocate On Significant U.S. Social Policy Issues Or Have Significant U.S. Social Impacts

[THERE IS ACTUALLY A BETTER LEGAL INSTRUMENT, BUT IT, TOO, HAS LIMITATIONS. - The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation of 1988 (SUA Convention)]

["...The purpose of the SUA Convention was to fill the loopholes of the 1982 Convention. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was signed in Rome on 10 March 1988 and was prompted by the Achille Lauro incident in 1985...By 30 April 2006, 135 states had acceded to the SUA Convention, including China, India, Japan, Korea, Vietnam, and Nigeria."

"…Summary

Although not all the loopholes of the 1982 Convention have been filled, the SUA Convention does constitute a further step towards repressing violence at sea. It compels states to make more efficient use of national legal standards. The signatories must exercise jurisdiction against all suspected offenders or extradite them. Unfortunately, however, this still does not mean that the offenders will also be punished."

"…Definition of piracy according to the SUA Convention"

"While the first two Articles of the SUA Convention are devoted to the scope and definition of a “vessel”, Article 3 and the following articles are concerned with the definition and response to illegal actions against maritime navigation."

"Among other things, illegal actions include the unlawful seizure of vessels, the attachment of materials to or installation of materials in vessels which could lead to damage or destruction of the vessel in question, and the killing of persons on board. Consequently, the SUA Convention, unlike the 1982 Convention, mainly relates to politically motivated terrorist acts. But it can also be applied to acts of piracy."

"In addition, it covers a significantly larger geographical territory than the 1982 Convention. According to Article 4 of the SUA Convention, the vessel can be at sea anywhere at the time of the illegal act – on the high seas, in the exclusive economic zone, in coastal waters – and also on inland waterways. However, the vessel must be in international transit at the time of the illegal act, i.e. it must have come from a foreign territory or from the high seas or it must be passing through or heading for such areas at the time of the illegal act."

"A loophole arises if the vessels only transit the territorial waters of one state – but that loophole could be filled by national laws."

"Right of intervention permitted by the SUA Convention"

"Unlike the 1982 Convention, the SUA Convention does not grant any powers to take action against pirates and avert pirate attacks. Only the flag state (under the so-called flag state principle) and the state whose coastal waters are being transited by foreign vessels (territoriality principle) or whose citizens commit the offence (personality principle) have the right to take such action...This means that the SUA Convention, like the 1982 Convention, does not provide states with any right to pursue offenders in the territorial waters of other states..."

"...Criminal prosecution"

"Unlike the 1982 Convention, however, the SUA Convention does provide a legal foundation for the prosecution of pirates. Article 7, paragraph 1, SUA Convention obliges the treaty states to detain suspected persons in their territory or to take other measures to prevent their escape. This applies until criminal proceedings or extradition proceedings are instituted..."]

[“IMO Maritime Safety Committee Circulars 622/Revision 1 of June 16, 1999 and 623/Revision 3 of May 29, 2002 provide recommendations to governments and guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. These publications emphasize self-protection measures, reporting events, and coordination among countries.”

“…The IMO initiatives establish a framework under which ship operators take their own precautions to protect themselves against piracy. The Somali situation has given rise to a number of specific recommendations, including:

Transiting at high speed to outrun attackers. An option for certain ships, such as container ships, but not others, such as tankers.
Take the long road around Africa. Adds time and expense and will be less attractive in Southern Hemisphere winter.
Discourage or repel attackers by using long-range acoustical devices ($20,000 to $30,000 apiece), raising boarding ladders, dangling fire hoses over the side or installing razor wire at access points.
Call for help and either lock the crew up or use Molotov cocktails, beer bottles and other missiles until rescue forces arrive.”

“There is also the much-discussed delicate question of the use of force by vessel operators or their contractors. Testifying before Congress in early February, Rear Adm. William D. Baumgartner, judge advocate general of the U.S. Coast Guard, said, ‘The U.S. government does recognize that that’s an option available to a shipowner’, although one that ‘has to be thought out very carefully in advance’.”]

[See: K&L Gates, Legal Issues and Somali Piracy: A Maritime Whitepaper, The Journal of Commerce (April 27, 2009) at p. 16, at: http://www.joc-digital.com/joc/20090427/?pg=16 ].

[“Prior to the current situation in Somalia, anyone with even a passing familiarity with UNCLOS would have thought – correctly – that international law was very simple and clear on the subject of piracy. A distinguished international law scholar who is an expert on UNCLOS and the SUA Convention wrote to us that: ‘[UNCLOS] contains very clear provisions on this matter. It is for the states parties to the Convention to implement these provisions and that is where the major problem seems to lie. Furthermore, there are certainly complicated legal and practical issues in bringing pirates arrested off the coast of Somalia to trial in countries far away from the region.’”

“Somali pirates have illustrated these practical shortcomings of the legal system. U.S. Navy Vice Adm. William Gortney, commander of the U.S. Fifth Fleet and of the Combined Maritime Forces who directed the establishment of the Maritime Security Patrol Area and established Combined Task Force 151, indicated in a Pentagon briefing earlier this year that without orders to capture pirates and a procedure to turn them over for prosecution somewhere, there is a serious gap in the arsenal of anti-piracy measures. This admission should have been a surprise to no one.”

“…IMO MSC/Circular 622/Revision 1 addresses criminal jurisdiction by recommending that countries prosecuting persons apprehended at sea outside the territorial seas of any country should do so under mutual agreement with other substantially interested countries. This is consistent with a provision in UNCLOS that the actions of a state that seizes a pirate ship are “subject to the rights of third parties acting in good faith.” Additionally, IMO Resolution A.922(22) adopted a Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships.”]

[See: K&L Gates, The Pirates of Puntland: Practical, Legal and Policy Issues in the Fight Against Somali Piracy (March 2009), at p. 5, at: http://www.klgates.com/files/Publication/ac22f46f-de64-41d5-a99c-8566b961c41e/Presentation/PublicationAttachment/fbdacf5a-55e1-408d-833b-a4bc8a15dc70/3_09_The_Pirates_of_Puntland.pdf ].

[CFR REPORT MYTH #3]

"The United States cannot currently participate in the Commission on the Limits of the Continental Shelf, which oversees ocean delineation on the outer limits of the extended continental shelf (outer continental shelf). Even though it is collecting scientific evidence to support eventual claims off its Atlantic, Gulf, and Alaskan coasts, the United States, without becoming party to the convention, has no standing in the CLCS. This not only precludes it from making a submission claiming the sovereign rights over the resources of potentially more than one million square kilometers of the OCS, it also denies the United States any right to review or contest other claims that appear to be overly expansive, such as Russia’s in the Arctic. This is especially urgent this year, as the commission will review an influx of claims expected in May 2009, the deadline for twenty-six states to make their submissions based on the procedural clock that began ticking when they ratified the convention. (The United States would have ten years to make its claim if it were to join the convention.)" (CFR Report at pp. 33-34)

[UNCLOS REALITY # 3 - COUNTERING CFR REPORT]

lide 20

UNCLOS RATIFICATION IS NOT NECESSARY FOR U.S. TO EXTEND ITS CONTINENTAL SHELF

ILA COMMITTEE ON LEGAL ISSUES OF THE OUTER CONTINENTAL SHELF
The ‘‘as soon as possible but in any case within 10 years of the entry into force of this Convention for that State’ language of Art. 4 of Annex II and the drafting history of UNCLOS suggests that it was not intended to accord this right to States that are not parties to the Convention.”

"...The rules concerning continental shelf entitlement and outer limits contained in article 76 of the Convention have attracted broad support in State practice, also from States that have not signed or ratified the Convention. A difference between article 76 of the Convention and customary international law is that in the latter case there does not exist an obligation (or a right) to make a submission to the CLCS concerning the outer limits of the continental shelf. One of the implications of this distinction would seem to be that outer limits established on the basis of customary international law may not as easily gain the same amount of recognition as outer limits established in accordance with the procedures under article 76."

"One option to address this issue would be for a third State to make a submission to the CLCS... It can be observed that the CLCS has requested the SPLOS for clarification and/or possible recommendation whether:

In the light of article 4 of annex II to the Convention, do the terms "a coastal State" and "a State" include a non-State party to the Convention, or do they only refer to a coastal State or a State which is a State party to the Convention? (Letter Dated 12 March 1998 from the Chairman of the Commission on the Limits of the Continental Shelf Addressed to the President of the Eighth Meeting of States Parties (Doc. SPLOS/26 of 12 March 1998), para. 5)."

"It is not clear if such a right has been accorded to non-parties under the Convention. Rights can be accorded to non-parties to a treaty by the parties under the treaty. However, it is questionable whether the Convention accords a right to third States to make a submission to the CLCS. Such a right would have to be stated in a sufficiently clear manner and there has to be an intention on the part of the States that have drawn up the instrument concerned to accord a right and an acceptance of the right by the third State."

"Article 4 of Annex II to the Convention provides that a coastal State shall make a submission ‘as soon as possible but in any case within 10 years of the entry into force of this Convention for that State’. This language indicates that the time frame for making of a submission is linked to the date of entry into force of the Convention for a State. This suggests that it was not intended to accord this right to States that are not parties to the Convention. This language in any case does not seem to meet the criteria set out by the Permanent Court in the Free Zones case."

"...As was observed by the Permanent Court of International Justice in the Free Zones of Upper Savoy and the District of Gex case:

It cannot be lightly presumed that stipulations favourable to a third State have been adopted with the object of creating an actual right in its favour. There is however nothing to prevent the will of sovereign States from having this object and this effect. The question of the existence of a right acquired under an instrument drawn between other States is therefore one to be decided in each particular case: it must be ascertained whether the States which have stipulated in favour of a third State meant to create for that State an actual right which the latter has accepted as such ([1932] Permanent Court of International Justice, Series A/B No. 46, at 147)."

"The drafting history of the Convention provides support for the interpretation that Article 4 of its Annex II was not intended to accord a right to third States. The acceptance of the compromise concerning the extent of the continental shelf in article 76 was based on the inclusion in the Convention of article 82 on revenue sharing in respect of the outer continental shelf. Article 82 has not created an obligation for third States."

“...In this light, it would seem desirable that the consideration of the question by the States parties to the Convention to accord third States the right to establish the limits of their outer continental shelf in accordance with the procedures under article 76 is linked to the acceptance by these States of the obligation concerning revenue sharing under article 82 of the Convention.”

[See International Law Association Berlin Conference (2004) – Legal Issues of the Outer Continental Shelf, at pp. 29-31, at: http://www.ila-hq.org/download.cfm/docid/B5A51216-8125-4A4B-ABA5D2CAD1CF4E98 ; International Law Association Toronto Conference (2006) – Legal Issues of the Outer Continental Shelf, at pp. 20-21, at: http://www.ila-hq.org/download.cfm/docid/435A6BA1-4F85-47B3-9ED23A6F64924414. See also generally Atsuko Kanehara, The Revenue Sharing Scheme with Respect to the Exploitation of the Outer Continental Shelf under Article 82 of the United Nations Convention on the Law of the Sea —A Plethora of Entangling Issues, Presented at Seminar on the Establishment of the Outer Limits of the Continental Shelf beyond 200 Nautical Miles under UNCLOS—Its Implications for International Law (Ocean Policy Research Foundation (Feb. 27, 2008), at: http://www.sof.or.jp/en/topics/pdf/aca.pdf ].

"While UNCLOS ratification would likely enable the U.S. “to appoint someone to the continental shelf commission and have a seat at the table when Law of the Sea-related negotiations are taking place...The United States is not going to be deprived of a seat at the table even if it is not a treaty member... So a virtual or indirect seat will be found, in some way or another...(though one of 21 votes probably makes no difference).” See Eric Posner, The Race to the Arctic and International Law, The Law School Faculty Blog, University of Chicago (Aug. 13, 2007), at: http://uchicagolaw.typepad.com/faculty/2007/08/the-race-to-the.html ].

Slide 21[Continental Shelf Commission determinations are NOT binding. If countries refuse to accept them, they will likely end up in dispute with each other, and subsequently, arbitration/litigation, unless the opt-out provision is invoked. (See: UNCLOS Arts. 76(8) and (10) and 298(1)(a)(i)). And the Commission cannot rule on rule on territory claimed by more than one state, which is subject to dispute resolution. (See UNCLOS Art. 83)].

Where is Obama's & Kerry's Promised Governmental Accountability as Concerns the UN Law of the Sea Convention Ratification Process?

noreply@blogger.com (ITSSD Charitable Mission) — Sun, 10 May 2009 14:15:00 +0000

http://www.nytimes.com/gwire/2009/05/07/07greenwire-sen-kerry-looks-for-window-to-ratify-law-of-th-12208.html

CSI [Cetecean Society International]

Whales Alive! - Vol. XIII No. 3 - July 2004

"Director Emeritus Dr. Robbins Barstow in Washington office of Massachusetts Senator John Kerry, on April 28, 2004 lobbying mission for the United Nations Law of the Sea Treaty. Kerry, the presumed Democratic candidate for President in this year's critical election, has one of the strongest environmental voting records of any U.S. Senator and has been a long-time supporter of the treaty.

...CSI Lobbying Efforts

On April 28, at the request of the CSI Board of Directors, I went to Washington and personally visited the offices of five United States Senators to urge support for immediate Senate action on the UN Law of the Sea Treaty..."

Sen. Kerry looks for window to ratify Law of the Sea

By ALLISON WINTER, Greenwire

New York Times - Energy and Environment

May 7, 2009

Senate Foreign Relations Chairman John Kerry (D-Mass.) is crafting a strategy to ratify the long-stalled Law of the Sea Treaty this year -- a move that ocean and foreign policy experts say is increasingly important as climate change reshapes the Arctic.

Kerry said this week that he is working to find time for a hearing and votes on the treaty, which governs navigation, fishing, economic development and environmental standards on the open seas.

"I hope we're ready to ratify it. I am going to do everything in my power, but I want to do it on the right schedule," Kerry told reporters. "We're sort of working through that process carefully."

His remarks came after a "roundtable" that the Foreign Relations Committee hosted to get advice on the Arctic from experts on the region, ocean conservation advocates and foreign policy strategists. Among the panelists' many recommendations to address the drastic changes in the Arctic economy and ecosystem, they listed the Law of the Sea as paramount.

"The sea ice is melting faster than policy can keep up with it," said Scott Borgerson, a former Coast Guard instructor who is now a visiting fellow at the Council on Foreign Relations. "First and foremost, my strongest recommendation is to finally get on with it -- it is high time that the U.S. finally accedes to the Law of the Sea."

He added: "At all the conferences we go to we have to defend -- and it's impossible to defend, why the U.S. is not party to this treaty."

More than 150 other nations have ratified the U.N. Convention on the Law of the Sea. U.S. leaders have signed onto the agreement and the George W. Bush administration supported it, but several Senate conservatives have stymied its ratification.

Becoming a party to the 25-year-old international treaty would allow the United States to claim rights to mineral-rich portions of the Arctic seafloor. Experts told the Foreign Relations Committee that will be even more important as nations rush to make new claims in the Arctic.

[AS A MATTER OF CUSTOMARY INTERNATIONAL LAW, INTERPRETED BY THE U.S. GOVERNMENT CONSISTENT WITH THE UNCLOS, THE U.S. ALREADY HAS RECOGNIZED RIGHTS TO ALL MINERALS, OIL & GAS RESERVES AND MARINE GENETIC RESOURCES ON ITS CONTINENTAL SHELF AND WITHIN ITS 'EXCLUSIVE ECONOMIC ZONE'. THE U.S. NEED NOT RATIFY THE UNCLOS TO ASSERT THESE CLAIMS. ANY SUCH STATEMENT IS PATENTLY FALSE.]

"It is very clear the U.S. has to be a part of the Law of the Sea," said David Carlson, director of the International Polar Year program office.

[WHY, MUST THE U.S. IMMEDIATELY RATIFY THE UNCLOS WITHOUT HOLDING PUBLIC HEARINGS, MR. CARLSON???]

Recent studies have shown that Arctic sea ice has receded rapidly in recent years, leading to concerns about conflicts over environmental protection, control of recently opened waterways and access to natural resources as nations scramble to exploit the resource-rich region.

Nations bordering the Arctic are already making claims on the oil, gas and mineral-rich territory, but several disputes have already arisen over competing claims and witnesses warned lawmakers that more disputes would likely arise if stronger international policies are not developed.

Getting the votes

The treaty, first negotiated in the 1980s, has garnered an impressive, wide-ranging list of supporters -- including the Joint Chiefs of Staff, all living former chiefs of naval operations, four former secretaries of state, the heads of the American Petroleum Institute and the Natural Resources Defense Council, the U.S. Chamber of Commerce, and the governors of seven coastal states.

[THIS IS AN IMPRESSIVE LIST OF 'PERSONAGES'. BUT HOW MANY OF THEM KNOW VERY MUCH ABOUT THE PROVISIONS, REGULATIONS, PROTOCALS AND ANNEXES OF THE UNCLOS?? WE ARE CERTAIN THAT THERE ARE NOT MANY SUCH PERSONS.]

The treaty's backers are hopeful that after years of delay, the Senate may finally approve it this year.

Potentially helping it on that path is the solid Democratic majority in the Senate and advocates in the Obama administration. Secretary of State Hillary Rodham Clinton has said ratification is "long overdue" and will be a top priority. And Vice President Joe Biden was a major proponent of its ratification when he chaired the Senate Foreign Relations Committee.

While the Bush administration gave its support to the treaty, lobbyists and lawmakers who support the Law of the Sea said they expect the Obama administration might be more active in pushing for its approval.

"[Biden] understands it, and I hope he's going to be very -- part of the game plan," Kerry said.

The treaty also has a major advocate on the Republican side in Sen. Lisa Murkowski (R-Alaska). At the roundtable earlier this week, the ranking member of the Energy and Natural Resources Committee urged Kerry to schedule hearings on the treaty "expeditiously" and push the issue with the White House.

"I will help you," Murkowski told the chairman.

Kerry replied: "I hope you are going table to table in the Republican caucus."

[NEITHER KERRY NOR MURKOWSKI HAVE ANY RESPECT FOR THE U.S. CONSTITUTION, ITS BILL OF RIGHTS OR FOR AMERICANS AT LARGE. THEY ARE SELF-ABSORBED, POWER-HUNGRY POLITICIANS WHO BELIEVE THEY ARE ABOVE THE LAW OF THE LAND.]

It would take 67 votes to ratify the treaty. If all of the Democrats voted in favor, Kerry would only need to find eight more Republicans at present. Advocates for the bill say there are easily 80 votes in support of ratification, but the problem is finding time for it on the Senate floor. They hope that given that 2009 is not an election year, lawmakers might find a window.

"It's not a question of getting the votes to approve it, it's a question of time ... it's a parliamentary issue at this point," said Caitlyn Antrim, who tracks the issue for Rule of Law Committee for the Oceans.

Kerry said his aides are assessing the Senate agenda, timing, availability of witnesses and President Obama's timing in an effort to come up with a schedule for ratifying the treaty.

The Republicans who oppose the treaty would likely use Senate procedure to prolong the debate, meaning it could take up to a week of floor time. Indeed, one of the more vocal opponents of the treaty, Sen. James Inhofe (R-Okla.), said in an interview this week that he would "do all I could" to block the measure if it came to the Senate floor.

"It's called sovereignty. We seem to be in such a hurry to give up our sovereignty to multinational organizations; the Law of the Sea certainly fits into that," Inhofe said.

The treaty provides a framework for protection of the marine environment and claims on energy resources. The polar region contains 22 percent of the world's undiscovered but technically recoverable oil and gas, according to the U.S. Geological Survey, with about 84 percent of those deposits located offshore.

[YES, MOST CLAIMS ARE LOCATED OFFSHORE, BUT WITHIN THE U.S. 'EXCLUSIVE ECONOMIC ZONE' ALREADY RECOGNIZED AS BEING UNDER U.S. SOVEREIGN CONTROL BY THE WORLD. U.S. RATIFICATION OF THE UNCLOS WILL NOT CHANGE THIS.]

Among the countries that are already party to the treaty, there has been a recent rush in claims on the Arctic. The Commission on the Limits of the Continental Shelf -- a body of specialized undersea geographers and hydrographers established under the 1982 Law of the Sea Convention -- has seen its workload double from late last year, fulfilling its members' predictions of a backlog that could take years to resolve (Greenwire, April 13).

From 2001 through 2007, just nine claims were put forward as more advanced Law of the Sea Treaty countries surveyed their continental shelves. But since Japan issued its sweeping claim to Pacific Ocean territory last November, many smaller states have leaped into the fray. All told, the commission now has 36 applications.

[AND, THE COMMISSION IS ONLY STAFFED WITH PART-TIME EXPERTS WHO, ADMITTEDLY, ARE 'OVER THEIR HEADS' OR 'UNDER WATER' WITH COMPLEX CLAIMS. See: Continental Shelf Confusion Over Detritus Of The Deep, ITSSD Journal on the UN Law of the Sea Convention (March 2008) at:

http://itssdjournalunclos-lost.blogspot.com/2008/03/continental-shelf-confusion-over.html ].

Kerry said he has a personal interest in the issues facing the Arctic and recognizes the need for swift action: "This is very interesting to me. It is very challenging, but it is also very urgent. We need to get on this fast."

[YES. KERRY HAS A PERSONAL INTEREST IN ENSURING THAT THE U.S. ADOPTS EUROPE'S PRECAUTIONARY PRINCIPLE AS U.S. LAW, WHICH WILL HAVE THE EFFECT OF ABRIDGING THE U.S. CONSTITUTION AND ITS ACCOMPANYING BILL OF RIGHTS, ESPECIALLY THE RIGHT TO PROTECT PRIVATE PROPERTY.]

Copyright 2009 E&E Publishing. All Rights Reserved.

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http://www.foxnews.com/politics/2009/03/12/lost-found-senate-moves-ratification-un-treaty

LOST and Found: Senate Moves Toward Ratification of U.N.'s 'Law of the Sea Treaty'

The Senate is gearing up to ratify a decades-old U.N. treaty that critics warn could create a massive U.N. bureaucracy that could even claim powers over American waterways.

By Joseph Abrams

FOXNews.com

Thursday, March 12, 2009

The Senate is gearing up to ratify a Nixon-era U.N. treaty meant to create universal laws to govern the seas -- a treaty critics say will create a massive U.N. bureaucracy that could even claim powers over American waterways.

LOST -- the U.N. Convention on the Law of the Sea, also called the Law of the Sea Treaty -- regulates all things oceanic, from fishing rights, navigation lanes and environmental concerns to what lies beneath: the seabed's oil and mineral wealth that companies hope to explore and exploit in coming years.

But critics say the treaty, which declares the sea and its bounty the "universal heritage of mankind," would redistribute American profits and have a reach extending into rivers and streams all the way up the mighty Mississippi.

[YES. THE UNCLOS' LAND, AIR & WATER-BASED SOURCES OF POLLUTION PROVISIONS WILL REQUIRE THE U.S. GOVERNMENT TO RE-LEGISLATE & RE-REGULATE THE CONTINENTAL UNITED STATES, CONSISTENT WITH EUROPE'S PRECAUTIONARY PRINCIPLE.]

The U.N. began working on LOST in 1973, and 157 nations have signed on to the treaty since it was concluded in 1982. Yet it has been stuck in dry dock for nearly 30 years in the U.S. and never even been brought to a full vote before the Senate.

But swelling approval in the Senate and the combined support of the White House, State Department and U.S. Navy mean LOST may be ready to unfurl its sails again.

Sen. John Kerry, chairman of the Senate Foreign Relations Committee, said during a January confirmation hearing that he intends to push for ratification. "We are now laying the groundwork for and expect to try to take up the Law of the Sea Treaty. So that will be one of the priorities of the committee, and the key here is just timing -- how we proceed."

[MR. KERRY, WHO IS ON THE RECORD FOR SUPPORTING U.S. ADOPTION OF EUROPE'S PRECAUTIONARY PRINCIPLE, A KIND OF 'OUTSOURCING' OF THE U.S. LEGISLATIVE FUNCTION TO EUROPEAN SOCIALIST BUREAUCRATS. MR. KERRY DOESN'T CARE ABOUT BEING ACCOUNTABLE TO THE AMERICAN PUBLIC, LET ALONE, TO HIS MASSACHUSETTS CONSTITUENTS.]

Secretary of State Hillary Clinton, saying the treaty is vital for American businesses and the Navy, told Kerry that his committee "will have a very receptive audience in our State Department and in our administration."

[MS. CLINTON HAS STILL NOT ARTICULATED A VALID REASON WHY IT IS VITAL.]

LOST apportions "Exclusive Economic Zones" that stretch 200 miles from a country's coast and establishes the International Seabed Authority to administer the communal territory farther out. The treaty's proponents say it clears up a murky legal area that has prevented companies from taking advantage of the deep seas' wealth.

[THE U.S. ALREADY RECOGNIZES THE 200 MILE 'EXCLUSIVE ECONOMIC ZONE' AS A MATTER OF CUSTOMARY INTERNATIONAL LAW, CONSISTENT WITH THE UNCLOS, AND IT ISN'T YET A PARTY TO THE TREATY. WHY, THEN, RATIFY THE UNCLOS, IF THE U.S. & ALL UNCLOS PARTIES ALREADY RECOGNIZE THE U.S. EEZ???]

"American firms and businesses want legal certainty so they can compete with foreign companies for marine resources," said Spencer Boyer, director of international law and diplomacy at the Center for American Progress. Without the clearly defined authority established by the treaty, "there's confusion -- a lot of businesses don't want to take that risk."

[YES. ONCE THE U.S. RATIFIES THE UNCLOS, U.S. COMPANIES WILL BE CERTAIN THAT THEY WILL BECOME SUBJECT TO EUROPE'S RESTRICTIVE AND EXPENSIVE PRECAUTIONARY PRINCIPLE!!].

The American military is looking for another kind of certainty from LOST -- a guarantee of safe passage through all seaways, a right China sought to deny an unarmed Navy vessel Monday in its own Exclusive Economic Zone in the South China Sea.

"The Convention codifies navigation and overflight rights and high seas freedoms that are essential for the global mobility of our armed forces," the Joint Chiefs of Staff wrote in a June 2007 letter to Senate leadership.

[THE JOINT CHIEFS OF STAFF CONTINUE TO BELIEVE THAT THE UNCLOS IS A DOCUMENT ETCHED IN STONE THAT IS IMMUTABLE, i.e., THEY BELIEVE IT WILL NOT CHANGE TO ACCOMODATE EVOLVING INTERNATIONAL ENVIRONMENTAL LAW, WHICH CLEARLY REFLECTS THEIR MISUNDERSTANDING OF THE TREATY AND THE LONGSTANDING (HISTORICAL) INTENTIONS OF MANY UNCLOS PARTIES, THE GLOBAL ENVIRONMENTAL ACTIVIST COMMUNITY AND MANY ACADEMICIANS WHO WERE INVOLVED IN THE UNCLOS III CONFERENCE.]

LOST has even managed to unify environmental groups and deep-sea miners, who both see something to gain in the treaty.

[THAT IS BECAUSE DEEP SEA MINERS DON'T KNOW MUCH ABOUT THE ENVIRONMENTAL PROVISIONS, REGULATIONS, PROTOCOLS AND ANNEXES OF THE UNCLOS. IGNORANCE IS BLISS.]

"We gain sovereignty, we gain territory, we gain access to places that we have not had access to as easily," said Don Kraus, president of Citizens for Global Solutions, a group that advocates strengthening international institutions. "We don't stand to lose anything."

[UNFORTUNATELY, MR. KRAUS' STATEMENT IS NOT TRUE.]

But critics say clauses built into the treaty could directly harm American interests. They say it could force the U.S. to comply with unspecified environmental codes, and that the treaty gives environmental activists the legal standing to sue over river pollution and shut down industry, simply because rivers feed into the sea.

The treaty allows environmental groups to bring lawsuits to the Law of the Sea Tribunal in Germany, a panel of 21 U.N. judges who would have say over pollution levels in American rivers. Their rulings would have the force law in the U.S., according to a reading in a 2008 Supreme Court decision by Justice John Paul Stevens.

"You've got an unaccountable tribunal that will surely be stacked with jurists hostile to our interests," said Chris Horner, author of "Red Hot Lies," a book critical of environmentalists. "This would never pass muster if the Senate held an open, public debate about this."

Legal experts also warn that the treaty demands aid for landlocked countries that lack the access and technology to mine the deep seas -- and that it might not even benefit the U.S. at all.

"You have to pay royalties on the value of anything you extract (from the deep seabed), those royalties to be distributed as the new bureaucracy sees fit, primarily to landlocked countries and underdeveloped countries," said Steven Groves, a fellow at the conservative Heritage Foundation. American money would also go to fund the International Seabed Authority, which Groves warned "would have the potential to become the most massive U.N. bureaucracy on the planet."

"The whole theory of the treaty is that the world's oceans and everything below them are the common heritage of mankind," said Groves. "Very socialist."

Any nation that is party to the treaty can have a seat on the tribunal and seabed authority -- even ones that don't have access to the sea. The current vice president of the tribunal represents Austria, a landlocked nation that hasn't had a sea berth since the Austro-Hungarian Empire was dissolved in the First World War.

Some legal experts worry that without ratification, the U.S. will lose a seat at the table as maritime law continues to be codified and resources get divvied up. But opponents note that many of the benefits offered the U.S., such as navigation rights, are already international custom, and that the U.S. has effected the treaty without being party to it. President Reagan's initial opposition on the basis of seabed laws forced the rewriting of the original treaty in 1994, which led the U.S. to sign it, but not to ratify it.

Its complexity, however, still beguiles even experts, who say it is unlikely to be understood when brought to a vote in the Senate.

"The thing is about 150 pages long -- meaning there are exactly zero people in the Senate who have read it," said Groves.

-----------------------------------------------------------------------------------------------

http://www.gao.gov/about/workforce/orgchartdet.html
http://www.gao.gov/about

"The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress. Often called the "congressional watchdog," GAO investigates how the federal government spends taxpayer dollars...Our Mission is to support the Congress in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government for the benefit of the American people."

The United States Congress Office of Compliance is an independent federal agency within the legislative branch of the United States government. It was created to administer and enforce the Congressional Accountability Act of 1995.

US Congress Office of Compliance - The office is made up of a five-member, non-partisan Board of Directors appointed to five-year terms by the majority and minority leaders of both the United States House of Representatives and the United States Senate. The members of the Board of Directors come from across the United States, and are chosen for their expertise in employment and labor law.

The Congressional Accountability Act (CAA), enacted in 1995, was one of the first pieces of legislation passed by the 104th Congress. The CAA applies twelve civil rights, labor, and workplace safety and health laws to the U.S. Congress and its associated agencies, requiring them to follow many of the same employment and workplace safety laws applied to businesses and the Federal Government.

Laws Applied to the Legislative Branch by the CAA

The Age Discrimination in Employment Act of 1967

The Federal Service Labor-Management Relations Statute

Veterans’ employment and reemployment rights at Chapter 43 of Title 38 of the U.S. Code

The Americans with Disabilities Act of 1990

Title VII of the Civil Rights Act of 1964

The Employee Polygraph Protection Act of 1988

The Fair Labor Standards Act of 1938

The Family and Medical Leave Act of 1993

Occupational Safety and Health Act of 1970

The Rehabilitation Act of 1973

The Worker Adjustment and Retraining Notification Act of 1989

Indoor Air Quality: Air Pollutants

"Pollutants can be generated by outdoor or indoor sources, including building maintenance activities, pest control, housekeeping, renovation or remodeling, new furnishings or finishes, and building occupant activities. One important goal of an indoor air quality program is to minimize people's exposure to pollutants from these sources. Some of the key pollutant categories include biological contaminants, chemical pollutants, and particles." [See: Office of Compliance Fast Facts - "Indoor Air Quality:Air Pollutants" (April 2009) at: http://www.compliance.gov/forms-pubs/eresources/fastfacts_airpollutants.pdf ].

Workers’ Right to Know: What you should know about workplace chemicals

"If you are an employee in a workplace where hazardous chemicals are present, you must be able to describe the hazards of the chemical products[1] in the workplace and what measures are used to avoid those hazards. If your workplace has chemicals present...[t]he Occupational Safety and Health Administration (OSHA) Hazard Communication (HAZCOM) Standard, 29 CFR §1910.1200... HAZCOM requires your employer to train you (1) when you’re initially assigned and (2) whenever a new or different product, which presents a new hazard, is introduced into the workplace." [See : Office of Compliance Fast Facts - "Workers’ Right to Know:What you should know about workplace chemicals" (March 2009), at:
http://www.compliance.gov/forms-pubs/eresources/fastfacts_workplacechemicals.pdf].

US Navy Had a Whale of a Job Fending Off Green Lawfare in NRDC v. Winter Case

noreply@blogger.com (ITSSD Charitable Mission) — Sat, 09 May 2009 21:26:00 +0000

http://ro-a.redorbit.com/news/business/1667947/itssd_us_navy_had_a_whale_of_a_job_fending/index.html

ITSSD: U.S. Navy Had a Whale of a Job Fending Off Green Lawfare in NRDC v. Winter Case

Posted on: Wednesday, 8 April 2009, 10:17 CDT

PRINCETON, N.J., April 8 /PRNewswire-USNewswire/ -- In a newly released Washington Legal Foundation working paper, international lawyer Lawrence Kogan describes the U.S. Navy's challenge in convincing the U.S. Supreme Court to vacate a green injunction effectively preventing critical U.S. Naval sonar training exercises from taking place off the Southern California coast. The injunction had been issued on the grounds that the Navy's failure to prepare a full environmental impact statement could trigger possible but scientifically unverifiable discomfort to beaked whales.

"The green group and California State pleadings the Supreme Court reviewed in Winter provide a bird's eye view of continuing activist efforts to rewrite U.S. environmental regulatory law from the bench in pacifist Europe's socialist image," emphasizes Kogan. "Respondents and amici urged the Court to embrace up to three different applications of Europe's Precautionary Principle: the Ninth Circuit's presumption of irreparable environmental injury, its presumption in favor of issuing preliminary injunctions in environmental matters, and/or its presumption against issuing a military exemption in NEPA cases."

Despite this legal 'win', the Navy remains very concerned that Europe's Precautionary Principle is being used also by third nations (e.g. China) as a domestic and international environmental 'lawfare' tool to decrease U.S. military capabilities against "the world's [growing] inventory of quiet diesel-electric submarines."

According to one Navy Commander, "...[N]ongovernmental organizations...such as Greenpeace...[are working] in conjunction with certain coastal countries, including close U.S. allies, to unilaterally impose maritime and...environmental...rules that restrict international shipping, aircraft overflight of the seas [and the]...right of freedom of navigation,...and...[which thereby,] diminish national security." Similarly, a Navy JAG Corps Officer has concluded that, "the means are available for an adversary to engage in full-scale international and domestic lawfare by exploiting international forums and misusing domestic environmental protection laws to blunt our technological anti-submarine advantages, degrade our training, reduce our capabilities, restrict our operations, reveal our training methods and locations, limit future technological advances and undercut our national strategic objectives."

If, as these officers strongly suggest, the U.S. Navy has barely kept its head above water when defending against U.S.-based environmental lawsuits, how could it realistically expect to successfully handle the many additional foreign-based green lawsuits it would certainly face once America accedes to the UN Law of the Sea Convention?

The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. This article is accessible at:

http://www.itssd.org/Winter%20Decision%20--%200409KoganWPFinal.pdf.

CONTACT: ITSSD, +1-609-658-7417, info@itssd.org

SOURCE Institute for Trade, Standards, and Sustainable Development

Has the Obama Administration Intentionally Duped America Again Concerning Global Warming/Climate Change as a Pretense for UNCLOS Accession?

noreply@blogger.com (ITSSD Charitable Mission) — Sun, 12 Apr 2009 14:40:00 +0000

Speaker Biographieshttp://www.chinapost.com.tw/international/americas/2009/04/08/203408/U.S.-committed.htm

U.S. committed to backing Law of the Sea convention

China Post

Agence France Presse

April 8, 2009

WASHINGTON -- Secretary of State Hillary Clinton said Monday the United States was "committed" to ratifying a convention on world ocean use, as she called for more international cooperation to protect the North and South poles.

[IS THAT BECAUSE SECRETARY OF STATE CLINTON BELIEVES IN SURRENDERING U.S. SOVEREIGNTY FOR THE PURPOSE OF MAKING DIPLOMATIC KUMBAYA?? DOES MS. CLINTON BELIEVE THAT A EUROPEAN CONTINENTAL CIVIL LAW PREVENTIVE JUSTICE-BASED GLOBAL GOVERNANCE LEGAL FRAMEWORK

ANCHORED IN THE UNITED NATIONS IS THE BEST WAY TO GO? CAN MS. CLINTON CONFIRM THAT SUCH A FRAMEWORK WOULD NOT UNDERMINE THE U.S. COMMON LAW & FREE MARKET SYSTEMS, AND THE INDIVIDUAL RIGHTS & FREEDOMS GUARANTEED TO ALL AMERICANS BY THE U.S. CONSTITUTION AND ITS ACCOMPANYING BILL OF RIGHTS? IS THIS "CHANGE YOU CAN BELIEVE IN"?]

Her comments came at the first summit to tackle environmental and territorial issues affecting the Arctic and Antarctic. Some 60 countries and international organizations are meeting in Washington and Baltimore for the 11-day talks.

At the meeting, the United States and Norway said that the melting of glaciers was opening new navigation routes in the Arctic, thus creating economic opportunities -- including in transportation and energy -- for neighboring countries, but with that came new responsibility.

Clinton said Washington would work with other countries surrounding the region "to strengthen peace and security and support economic development and protect the environment." Those countries include Russia, Canada, Norway and Denmark.

"The changes under way in the Arctic will have long-term impacts on our economic future, our energy future and indeed again the future of our planet, so it is crucial that we work together," she added.

The diplomatic chief said she and President Barack Obama were committed to having the US Congress ratify the Law of the Sea Convention, a United Nations text on maritime rights drafted in 1982.

The United States signed the convention's text in 1994, after securing changes to certain provisions deemed against US interests. But Congress never ratified the treaty, despite a lobbying effort by former president George W. Bush in 2007.

[CONGRESS NEVER RATIFIED THE TREATY DURING 2007 BECAUSE IT LACKED THE VOTES. AND, THAT OCCURRED BECAUSE CONGRESS DID NOT FULFILL ITS CONSTITUTIONAL RESPONSIBILITY OF VETTING THE ENVIRONMENTAL COMPONENT OF THIS 200 + PAGE TREATY. THE CURRENT CONGRESSIONAL MAJORITY AND THE CURRENT ADMINISTRATION DO NOT APPEAR TO WANT TO SHARE WITH THE AMERICAN PUBLIC THEIR EXTENSIVE KNOWLEDGE ABOUT THIS DIMENSION OF THE UNCLOS. THE FAILURE OF CONGRESSIONAL OVERSIGHT COMMITTEES TO CONVENE PUBLIC HEARINGS ON SUCH SUBJECT MATTER, AND THE OBAMA ADMINISTRATION'S FAILURE TO CALL FOR SUCH HEARINGS, SUGGESTS THAT THE PRESIDENT'S CAMPAIGN MANTRA FOR A 'NEW BEGINNING IN WASHINGTON' - "TRANSPARENCY & OPEN and INCLUSIVE PUBLIC POLICY DEBATE" MAY LIKELY HAVE BEEN PURELY RHETORICAL.]

Global warming, she added, "raises the possibility of new energy exploration, which will, of course, have additional impacts on our environment."

Clinton was referring to huge unexplored reserves of some 90 billion barrels of oil and an even greater amount of natural gas in the Arctic, according to estimates by the US Geological Survey.

[MS. CLINTON AND HER STATE DEPARTMENT ARE MOST ASSUREDLY DRINKING FROM THE AL GORE-EUROPEAN UNION KOOL-AID FOUNTAIN!!]

[ARE NOT THE CURRENT PRESIDENT & SECRETARY OF STATE BEING A BIT DISINGENUOUS HERE? HASN'T THE SUPER-MAJORITY IN CONGRESS ALREADY STOPPED THE PROCESS OF OPENING OFFSHORE DRILLING IN THE NORTH AND MID-ATLANTIC REGIONS THAT OUR FORMER PRESIDENT HAD EFFECTIVELY FACILITATED VIA EXECUTIVE ORDER, & THE 110TH CONGRESS HAD EFFECTIVELY APPROVED BY ALLOWING THE LEGISLATIVE MORATORIA AGAINST OFFSHORE DRILLING TO EXPIRE?]

These resources constitute 13 percent of the world's untapped reserves of oil and 30 percent of reserves of natural gas.

Norwegian Foreign Minister Jonas Gahr Store noted that merchandise between the Japanese port of Yokohama and the Dutch port of Rotterdam would see a 40 percent reduction when merchant ships would be able to use the North-West Passage being opened north of Canada.

He called for bordering countries, which are members of the Arctic Council, to cooperate closely to avoid an escalation of conflict.

Russia recently announced it intended to militarize the Arctic in order to protect its interests there, while Canada seeks to control 200 nautical miles of Arctic waters.

Ottawa has been consistently reaffirming its sovereignty over the region, in particular the North-West Passage and its thousands of uninhabited islands. Due to melting ice, the passage could become an important future maritime route linking Asia to Europe.

But the United States and other countries say it is an international maritime route, and should thus remain open.

Participants also spoke about the A

ntarctic, which is protectedby a treaty signed in Washington 50 years ago.

"We have no time to lose in tackling this crisis" and take new measures to protect the region, said Clinton after having recalled the collapse over the weekend of an ice bridge that holds in place the Wilkins Ice Shelf, seen as an alarming sign of melting of the glaciers.

[AS WHITE HOUSE CHIEF OF STAFF RAHM EMANUEL PREVIOUSLY STATED FOR THE RECORD, "YOU NEVER WANT A SERIOUS CRISIS TO GO TO WASTE. AND WHAT I MEAN BY THAT IS AN OPPORTUNITY TO DO THINGS YOU THINK YOU COULD NOT DO BEFORE." See: Rahm Emanuel: Don't Waste a 'Serious Crisis', All The News That Fits (Nov. 2008) at:

Speaker Biographies

http://allthenewsthatfits.wordpress.com/2008/11/21/rahm-emanuel-dont-waste-a-serious-crisis ].

She said that Obama had provided Congress with an annex to the treaty for ratification. The annex set the obligations of signatories in case of an environmental catastrophe in the South Pole region.

[DEAR PRESIDENT OBAMA & SECRETARY OF STATE CLINTON - WHY NOT ENGAGE IN SOME CONSTITUTIONALLY WARRANTED TRANSPARENCY & DUE PROCESS YOU ADVOCATE AS PART OF THE NEW SPIRIT OF 'CHANGE' IN WASHINGTON? AND, WHY HAVEN'T THE ADMINISTRATION & CONGRESS YET SHARED WITH THE AMERICAN PUBLIC INFORMATION ABOUT THE LIABILITY FOR ENVIRONMENTAL DAMAGES ANNEX VI OF THE MADRID ENVIRONMENTAL PROTOCOL OF THE ANTARCTIC TREATY TRANSMITTED TO THE CONGRESS DURING EASTER WEEK 2009??]

[See Lawrence A. Kogan, Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Institute for Trade, Standards and Sustainable Development (April 2009), at:
http://www.itssd.org/Polar%20Sea%20Ice%20Melts%20Away%20in%20Time%20for%20Antarctic%20Easter%20Surprise%20III.pdf ]

The United States is also seeking to limit tourism in the region, including the docking of cruise ships, Clinton said.

Clinton was hosting the first joint session of the Antarctic Treaty Consultative Meeting (ATCM) and the Arctic Council, which the State Department called "the two most important bodies involved with diplomacy at the Poles."

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Speaker Biographies

http://online.wsj.com/article/SB122721278056345271.html

In Crisis, Opportunity for Obama

By GERALD F. SEIB

Wall Street Journal

November 21, 2008

As the economic signs grow ever more grim, so do the problems facing the incoming Obama administration.

That's one way of looking at things. Here's another:

As the economic signs grow ever more grim, the opportunities for the Obama administration to drive through its agenda actually are getting better.

The thing about a crisis -- and crisis doesn't seem too strong a word for the economic mess right now -- is that it creates a sense of urgency. Actions that once appeared optional suddenly seem essential. Moves that might have been made at a leisurely pace are desired instantly.

Therein lies the opportunity for President-elect Barack Obama. His plans for an activist government agenda are in many ways being given a boost by this crisis atmosphere and the nearly universal call for the government to do something fast to stimulate the economy.

[ACTUALLY, THIS PROVIDES THE OBAMA ADMINISTRATION WITH THE OPPORTUNITY TO DISINGENUOUSLY ENGAGE IN WIDESPREAD POPULAR MISREPRESENTATIONS.]

This opportunity isn't lost on the

new president and his team. "You never want a serious crisis to go to waste," Rahm Emanuel, Mr. Obama's new chief of staff, told a Wall Street Journal conference of top corporate chief executives this week.

He elaborated: "Things that we had postponed for too long, that were long-term, are now immediate and must be dealt with. This crisis provides the opportunity for us to do things that you could not do before."

Listen

Rahm Emanuel addresses leaders at the Wall Street Journal CEO Council.

He ticked off some areas where he thought new doors were opening: energy, health, education, tax policy, regulatory reforms. The current atmosphere, he added, even makes bipartisanship easier: "The good news, I suppose, if you want to see a silver lining, is that the problems are big enough that they lend themselves to ideas from both parties for the solution."

Mr. Emanuel noted, correctly, that the U.S. largely squandered the opportunity the oil shocks of the 1970s presented to make serious, long-term changes in its energy habits -- a failure that has returned to haunt the nation today.

Conversely, history points to examples of leaders who have used crises to seize opportunities. Most obviously, President Franklin Roosevelt took advantage of economic trauma in the 1930s to drive through a new economic agenda, as did President Ronald Reagan with his tax cuts in 1981.

The lesson holds true in foreign policy as well. Only the 1973 Arab-Israeli war, and its shock to the Middle East status quo, made it possible for President Jimmy Carter to move in and negotiate the historic Camp David peace accords between Egypt and Israel.

And so it is for Team Obama now. The risk, of course, is today's opportunities will tempt the administration to overreach, lifting government spending so high that the deficit hangover at the other end of the cycle is intolerable, or injecting government so far into the marketplace that bipartisan support evaporates.

But for now, the call for government action is so universal that the playing field is wide open. With interest rates approaching zero, the Federal Reserve Board is nearly out of interest-rate ammunition to stimulate an economy sinking into recession; Fed policy makers likely are quietly praying for fiscal stimulus to start filling the void.

The chief executives gathered at the Journal conference this week called for the new administration to enact a fiscal-stimulus package of at least $300 billion -- perhaps double the amount of stimulus such a group likely would have called for just a few weeks ago.

That creates an opening through which Mr. Obama can drive a fair amount of his domestic agenda. Certainly the field is open for some immediate form of the president-elect's middle-class tax cut to become part of a stimulus package.

By the same token, the yearning for government spending on "infrastructure" to stimulate economic activity creates an opening for the new president to push the kind of green projects that fit his call for a transition to alternative energy sources, including new kinds of mass-transit systems. And the Obama call for government "investment" in alternative energies will be easier to turn into reality if it, too, can be cloaked as part of stimulus spending.

At the same time, as thousands of additional Americans lose jobs in the recession that lies ahead, they also will lose their employer-provided health insurance and swell the ranks of the nation's uninsured. That will add a bit of rocket fuel to the Obama call for universal health coverage. And certainly the broad dissatisfaction with the way financial markets were regulated will make it easier to rebuild regulatory structures.

The crisis also presents the Obama team with an opportunity that isn't so obvious: using economic distress to step back from the protectionist cliff Democrats edged toward during the election campaign.

A time of global economic distress isn't a good time to construct barriers to international trade. Conversely, it may be a good time to help both stressed American consumers and distressed developing-world economies by lowering tariffs on some goods made abroad. One test of the Obama administration's economic philosophy is whether it is as eager to take advantage of that opening as some of the others now before it.

President-Elect & Media Drink US Navy Kool-Aid: Fail to Confirm Spurious Claims That UNCLOS Ratification Necessary to Exploit Deep Sea Oil & Gas

noreply@blogger.com (ITSSD Charitable Mission) — Fri, 21 Nov 2008 05:36:00 +0000

http://www.bloomberg.com/apps/news?pid=20601109&sid=axGnGj6oDSqY&refer=news

Arctic-Seabed Oil Claims May Quicken Under New Senate (Update1)

By Hugo Miller

Bloomberg News

November 20, 2008

Democratic party gains in the U.S. Senate may speed approval of a maritime treaty that allows signatories to stake claims to Arctic seabed containing oil and gas deposits.

With President-elect Barack Obama supporting ratification of the Law of the Sea and Democrats unseating seven Republican senators in this month's elections, the U.S. moved a step closer to joining 157 nations including Russia that have endorsed the treaty, political analysts including the Century Foundation's Jeff Laurenti said.

The Senate, which must ratify any international treaty, ``is where the roadblock has been in the last couple of years when even President Bush was repeatedly expressing strong support'' for ratification, Laurenti, foreign policy program director at the New York-based policy-research group, said in an interview yesterday.

A rush to explore the Arctic was triggered by the region's melting ice. That has opened more access to areas holding about 22 percent of the world's untapped oil and natural gas, including deposits off Alaska, according to U.S. Geological Survey estimates. Russia, a signatory in 1997, already has used the treaty's legal authority to assert its rights to mineral riches on its continental shelf in the Arctic.

[PRECISELY. ALL EXPERTS AGREE THAT MOST OF THE DEEP SEA OIL AND GAS TO BE EXPLOITED IS LOCATED ON THE U.S. CONTINENTAL SHELF. SINCE THE U.S. CONTINENTAL SHELF IS WITHIN THE U.S. 'EXCLUSIVE ECONOMIC ZONE', TO WHICH THE U.S. HAS EXCLUSIVE ECONOMIC RIGHTS AND CONTROL, CONSISTENT WITH BOTH CUSTOMARY INTERNATIONAL LAW AND THE RELEVANT PROVISIONS OF THE UN LAW OF THE SEA CONVENTION (UNCLOS), AND WITHIN WHICH U.S. LAWS EXCLUSIVELY APPLY, CONSISTENT WITH U.S. FOREIGN RELATIONS LAW, THE U.S. NEED NOT RATIFY/ACCEDE TO THE UNCLOS TO EXPLOIT THOSE NATURAL RESOURCES!!!]

[THE ISSUE WITH RUSSIA IS THAT, PURSUANT TO THE 'DELIMITATION' PROVISIONS OF THE UNCLOS, RUSSIA HAS STAKED A CLAIM TO EXTEND ITS CONTINENTAL SHELF BEYOND THE APPROXIMATE 220 MILE LIMIT OF THE 'EXCLUSIVE ECONOMIC ZONE', BASED ON SPURIOUS CLAIMS THAT ITS CONTINENTAL SHELF EXTENDS OUT FAR BEYOND IT. THE UN CONTINENTAL SHELF COMMISSION HAS ALREADY REJECTED RUSSIA'S CLAIMS ON TWO OCCASIONS BECAUSE THEY LACK SCIENTIFIC (e.g. GEOLOGIC) SUBSTANTIATION.]

Paves the Way

U.S. adoption of the treaty, which took effect in 1994, could open the way to contracts for survey companies such as TGS-Nopec Geophysical Co., which uses sound waves to map potential oil and gas fields, and drillers. BP Plc, Europe's second-largest oil company, already is exploring in the Chukchi Sea off Alaska, adjacent to the Arctic Ocean.

``We would be interested in business opportunities there,'' Arne Helland, chief financial officer for TGS-Nopec, said in an interview today.

A London-based spokesman for BP declined to comment. Patrick McGinn, a spokesman for Exxon Mobil Corp., which holds leases on gas deposits in Alaska and is bidding for an oil license in the Norwegian Arctic, declined to comment.

ConocoPhillips, which is active in the Russian Arctic and is bidding to drill for oil in the Canadian North, supports ratification of the treaty, said spokesman Charlie Rowton. Chief Executive Officer Jim Mulva has written to U.S. Senate leaders urging approval because the accord provides the ``certainty and stability crucial for investment in global maritime enterprises,'' Rowton said.

Establishes Rules

The treaty, concluded in 1982, sets rules for activities from research and navigation to fishing and laying pipelines. One provision entitles country signatories to exclusive economic control over the 200 nautical miles (370 kilometers) of waters beyond their coastline, and another to exploit the seabed beyond that limit if it's part of the continental shelf.

The United Nations Convention on the Law of the Sea was never ratified by the Senate over largely Republican concerns that the UN-sponsored treaty would restrict U.S. decision-making on marine issues such as mining and seabeds. Opponents, including Senator James Inhofe of Oklahoma and more recently Arizona Senator John McCain, also argued acceptance would undercut U.S. sovereignty.

[SENATOR MCCAIN WAS CORRECT IN HIS ASSESSMENT, ESPECIALLY CONSIDERING THE 45+ ENVIRONMENTAL PROVISIONS, REGULATIONS, PROTOCOLS AND ANNEXES WHICH SERVE TO UNDERCUT U.S. NAVAL NAVIGATION FREEDOMS OF NAVIGATION & INNOCENT PASSAGE OFFSHORE, IMPAIR US NAVAL TRAINING EXERCISES IN TERRITORIAL WATERS AND TO IMPOSE EXPENSIVE AND BURDENSOME NEW LEGISLATION & REGULATION BURDENS ON U.S. INDUSTRIES AND HOUSEHOLDS ON THE CONTINENTAL UNITED STATES. THE UNCLOS WILL REQUIRE RE-LEGISLATION & RE-REGULATION OF THE U.S., CONSISTENT WITH EUROPE'S PRECAUTIONARY PRINCIPLE!!]

That roadblock has eroded with Obama's Nov. 4 win and with Democrats increasing their ranks in the 100-member Senate to 58 seats, adding seven who will likely support the Law of the Sea, said Caitlyn Antrim, executive director of the Rule of Law Committee for the Oceans, a research organization.

[MS. ANTRIM - WE HAVE ONE MESSAGE - BON CHANCE!!]

More Than `Words'

Senate ratification of a treaty requires a two-thirds majority. Before the election, the treaty had the support of close to that level, Antrim said.

``An Obama-Biden administration will not just support the convention with words but with the actions that were lacking in 2008,'' Antrim said in an interview after the election.

Spokesmen for four of the seven Democratic senators-elect, including Mark Warner of Virginia and Oregon's Jeff Merkley, said the lawmakers are still studying the issue and cannot yet comment. Two additional Senate races are still unresolved.

Regan Lachapelle, a spokeswoman for Senate Majority Leader Harry Reid, said it would be premature to comment on how the new Senate will act. She stood by her pre-election comments that the Nevada lawmaker ``is and has been supportive of the Convention'' on the Law of the Sea.

Arctic sea ice shrank to the smallest area on record last year, or 1.2 million square kilometers (460,000 square miles) less than the previous minimum in 2005, according to the National Snow and Ice Data Center in Boulder, Colorado.

Biden's Role

Vice President-elect Joe Biden's role overseeing a report to the Senate recommending ratification should help even if economic issues take precedent in early 2009, Antrim said.

McCain's opposition to the treaty may shift, Laurenti said. Putting the election behind him allows McCain ``to resume his place as a supporter of ratification,'' Laurenti said.

The Law of the Sea is ``clearly the driver'' to making new claims ``because the rest of the world has acknowledged it,'' Mead Treadwell, White House-appointed chairman of the Arctic Research Commission, said in an interview last month in Montreal.

[UNFORTUNATELY, EITHER MR. TREADWELL IS IGNORANT OF THE ENVIRONMENTAL PROVISIONS OF THE LAW OF THE SEA CONVENTION, ESPECIALLY THEIR RELATIONSHIP TO EUROPE'S PRECAUTIONARY PRINCIPLE AND TO MANY UN ENVIRONMENT PROGRAM MULTILATERAL ENVIRONMENTAL TREATIES, OR HE HAS A POLITICAL AGENDA AND REPRESENTS CORPORATE INTERESTS, OR BOTH.]

Obama has said Law of the Sea membership is critical to U.S. national security -- even if he opposed oil and natural-gas drilling in protected areas off Alaska that McCain advocated in the campaign.

[THE PRESIDENT MUST BECOME A QUICK STUDY ON THE TREATY BECAUSE HIS ADVISERS ARE NOT ACCURATELY DESCRIBING THE TREATY AND ITS IMPLICATIONS. THE FORMER PRESIDENT FELL SUBJECT TO THE SAME 'STORY-TELLING'.]

``I will work actively to ensure that the U.S. ratifies the Law of the Sea Convention -- an agreement supported by more than 150 countries that will protect our economic and security interests,'' Obama said in a September questionnaire sponsored by the National Academy of Sciences.

Though the U.S. could make claims to oil and gas in international waters outside the parameters of the treaty, no one will recognize such claims, which matters to oil, gas and mining investors, Antrim said.

[MS. ANTRIM IS ONE SUCH STORY-TELLER, WHO HAS A MAJOR POLITICAL AGENDA CONSIDERING HER FAMILY'S INTIMATE TIES WITH THE U.S. NAVY.]

``Banks and investors are usually pretty picky about having title nailed down,'' she said. All the countries with a stake in the Arctic ``are laying down plans'' for the future. ``It's about the next generation.''

To contact the reporter on this story: Hugo Miller in Toronto at hugomiller@bloomberg.net

Last Updated: November 20, 2008 16:15 EST

The F(utility) of Relying Upon the UNCLOS to Ensure Freedom of Navigation and Eradicate High Seas Piracy, Illegal Fishing & Toxic Waste Dumping

noreply@blogger.com (ITSSD Charitable Mission) — Thu, 20 Nov 2008 13:17:00 +0000

http://online.wsj.com/article/SB122757123487054681.html?mod=djemEditorialPage

Why Don't We Hang Pirates Anymore?

By BRET STEPHENS

Op-ed, Wall Street Journal

Nov. 25, 2008

It's a safe bet, dear reader, that the title of this column has caused you to either (a) roll your eyes and wonder, What century do you think we're living in? or (b) scratch your head and ask, Yes, why don't we? Wherever you come down, the question defines a fault line in the civilized world's view about the latest encroachment of barbarism.

Year-to-date, Somalia-based pirates have attacked more than 90 ships, seized more than 35, and currently hold 17. Some 280 crew members are being held hostage, and two have been killed. Billions of dollars worth of cargo have been seized; millions have been paid in ransom. A multinational naval force has attempted to secure a corridor in the Gulf of Aden, through which 12% of the total volume of seaborne oil passes, and U.S., British and Indian naval ships have engaged the pirates by force. Yet the number of attacks keeps rising.

Why? The view of senior U.S. military officials seems to be, in effect, that there is no controlling legal authority. Title 18, Chapter 81 of the United States Code establishes a sentence of life in prison for foreigners captured in the act of piracy. But, crucially, the law is only enforceable against pirates who attack U.S.-flagged vessels, of which today there are few.

What about international law? Article 110 of the U.N.'s Law of the Sea Convention -- ratified by most nations, but not by the U.S. -- enjoins naval ships from simply firing on suspected pirates. Instead, they are required first to send over a boarding party to inquire of the pirates whether they are, in fact, pirates. A recent U.N. Security Council resolution allows foreign navies to pursue pirates into Somali waters -- provided Somalia's tottering government agrees -- but the resolution expires next week. As for the idea of laying waste, Stephen Decatur-like, to the pirate's prospering capital port city of Eyl, this too would require U.N. authorization. Yesterday, a shippers' organization asked NATO to blockade the Somali coast. NATO promptly declined.

Then there is the problem of what to do with captured pirates. No international body similar to the old Admiralty Courts is currently empowered to try pirates and imprison them. The British foreign office recently produced a legal opinion warning Royal Navy ships not to take pirates captive, lest they seek asylum in the U.K. or otherwise face repatriation in jurisdictions where they might be dealt with harshly, in violation of the British Human Rights Act.

In March 2006, the U.S. Navy took 11 pirates prisoner, six of whom were injured. Not wanting to set a precedent for trying pirates in U.S. courts, the State Department turned to Kenya to do the job. The injured spent weeks aboard the USS Nassau, enjoying First World medical care.

All this legal exquisiteness stands in contrast to what was once a more robust attitude. Pirates, said Cicero, were hostis humani generis -- enemies of the human race -- to be dealt with accordingly by their captors. Tellingly, Cicero's notion of piracy vanished in the Middle Ages; its recovery traces the recovery of the West itself.

By the 18th century, pirates knew exactly where they stood in relation to the law. A legal dictionary of the day spelled it out: "A piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgment may be obtained."

Severe as the penalty may now seem (albeit necessary, since captured pirates were too dangerous to keep aboard on lengthy sea voyages), it succeeded in mostly eliminating piracy by the late 19th century -- a civilizational achievement no less great than the elimination of smallpox a century later.

Today, by contrast, a Navy captain who takes captured pirates aboard his state-of-the-art warship will have a brig in which to keep them securely detained, and instantaneous communications through which he can obtain higher guidance and observe the rule of law.

Yet what ought to be a triumph for both justice and security has turned out closer to the opposite. Instead of greater security, we get the deteriorating situation described above. And in pursuit of a better form of justice -- chiefly defined nowadays as keeping a clear conscience -- we get (at best) a Kenyan jail. "We're humane warriors," says one U.S. Navy officer. "When the pirates put down their RPGs and raise their hands, we take them alive. And that's a lot tougher than taking bodies."

Piracy, of course, is hardly the only form of barbarism at work today: There are the suicide bombers on Israeli buses, the stonings of Iranian women, and so on. But piracy is certainly the most primordial of them, and our collective inability to deal with it says much about how far we've regressed in the pursuit of what is mistakenly thought of as a more humane policy. A society that erases the memory of how it overcame barbarism in the past inevitably loses sight of the meaning of civilization, and the means of sustaining it.

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http://www.chron.com/disp/story.mpl/world/6129342.html

NATO rejects call for blockade along Somali coast

By EILEEN NG

Associated Press

Nov. 24, 2008

KUALA LUMPUR, Malaysia — Shipping officials from around the world called today for a military blockade along Somalia's coast to intercept pirate vessels heading out to sea.

But NATO, which has four warships off the coast of Somalia, rejected a blockade.

Peter Swift, managing director of the International Association of Independent Tanker Owners, said stronger naval action — including aerial and aviation support — is necessary to battle rampant piracy in the Gulf of Aden near Somalia.

Some 20 tankers sail through the sea lane daily. But many tanker owners are considering a massive detour around southern Africa to avoid pirates, which will delay delivery and push costs up by 30 percent, Swift said.

The association, whose members own 2,900 tankers or 75 percent of the world's fleet, opposes attempts to arm merchant ships because it could escalate the violence and put crew members at even greater risk, he said.

"The other option is perhaps putting a blockade around Somalia and introducing the idea of intercepting vessels leaving Somalia rather than to try to protect the whole of the Gulf of Aden," Swift said.

Somali pirates have become increasingly brazen, seizing eight vessels in the past two weeks, including a huge Saudi supertanker loaded with $100 million worth of crude oil.
A blockade along Somalia's 2,400 mile coastline would not be easy.

"But some intervention there may be effective," Swift told reporters on the sidelines of a shipping conference in Malaysia.

U.S. Gen. John Craddock, NATO's supreme allied commander, said today the alliance's mandate is solely to escort World Food Program ships to Somalia and to conduct anti-piracy patrols.

Asked what he thought of a Russian proposal to jointly attack the pirate strongholds, Craddock answered: "That's far beyond what I've been tasked to do."

According to Lt. Nathan Christensen, spokesman of the U.S. 5th Fleet based in Bahrain, more than 14 warships from Denmark, France, India, Malaysia, Pakistan, Russia, the U.S. and NATO are currently patrolling a vast international maritime corridor. They escort some merchant ships and respond to distress calls in the area.

Christensen declined to comment on the idea of a blockade.

But the navies say it is virtually impossible to patrol the vast sea around the gulf.
NATO has ruled out a blockade.

"Blocking ports is not contemplated by NATO," said NATO Secretary General Jaap de Hoop Scheffer in Brussels. U.N. Security Council resolutions "do not include these kind of actions and as far as NATO is concerned, this is at the moment not on the cards," he said.

Secretary-General of the Arab League Amr Moussa said today Arabs should deploy their own naval forces to fight piracy in the Horn of Africa and also cooperate with foreign fleets in the area.

Diplomats of the Arab countries on the Red Sea met in Cairo last week to coordinate efforts to combat piracy, but some of these nations have been reluctant to get involved.

Somalia, an impoverished nation caught up in an Islamic insurgency, has had no functioning government since 1991. There have been 95 pirate attacks so far this year in Somali waters, with 39 ships hijacked.

Fifteen ships with nearly 300 crew are still in the hands of Somali pirates, who dock the hijacked vessels near the eastern and southern coast as they negotiate for ransom.

"Any action to prevent the pirates from heading out to sea is welcome," said Noel Choong, who heads the International Maritime Bureau's piracy reporting center in Kuala Lumpur. He said it was up to the international community to decide how they can deploy their forces for the blockade.

The Baltic and International Maritime Council, the world's largest private shipping organization, echoed calls for greater military action.

"Despite increased patrols by coalition forces, piracy attacks continue. We hope a system ... will be put in place to coordinate the coalition forces," said Thomas Timlen, its Asian liaison officer. "It's clear from recent events ... that more needs to be done."

Both Swift and Timlen said a blockade is possible if the multi-coalition naval force coordinate their actions and more warships are sent to the area with a stronger mandate.

U.N. resolutions now allow pursuit of pirate ships but various countries interpret the law differently, Swift said.

He called for a clear mandate from the United Nations to allow warships to intercept pirate ships and arrest the sea bandits.

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http://www.guardian.co.uk/world/2008/nov/20/piracy-somalia1

UN imposes fresh sanctions on Somalia after piracy talks

15-nation Security Council agrees to freeze pirates' assets

Xan Rice in Nairobi, Matthew Weaver and agencies

Guardian.co.uk

November 20 2008

The United Nations Security Council unanimously imposed fresh sanctions on Somalia today amid calls for armed peacekeepers to be sent to the Horn of Africa.

The diplomatic initiative came as Arab countries held a crisis meeting on how to tackle piracy, as the gang who hijacked a Saudi supertanker demanded a $25m ransom to be paid within 10 days.

The 15-nation Security Council in New York adopted a British plan for enhanced sanctions aimed at freezing the assets of those involved in piracy and undermining Somalia's weakened national government. There has been a UN arms embargo against Somalia since 1992.

The most senior diplomat of the African Union also called for UN peacekeepers to be sent to Somalia.

Increasing piracy, he said, was "a clear indication of the further deterioration of the situation, with far-reaching consequences for (Somalia), the region and the larger international community".

Pirates who seized the Sirius Star and its $100m oil cargo have warned of "disastrous" consequences unless the money is paid, according to the news agency, AFP.

Mohamed Said, who claimed to be one of the pirates who seized the ship, told the agency: "We are demanding $25m [£17m] from the Saudi owners of the tanker.

"The Saudis have 10 days to comply, otherwise we will take action that could be disastrous."

The demand came as Egypt hosted an emergency meeting on piracy attended by representatives from Yemen, Saudi Arabia, Sudan, Jordan and Somalia.

Egyptian diplomat Wafaa Bassem said several options would be discussed at the Cairo meeting, including establishing joint operations by Arab navies and setting up a piracy monitoring centre and warning systems for ship.

Egypt is concerned that piracy will force shipping companies to opt for safer routes that avoid the Suez canal, which links the Red Sea with the Mediterranean.

Odfjell SE, a big Norwegian shipping group, has already ordered its 90 tankers to take the long route around South Africa.

The British foreign secretary, David Miliband, signalled that Britain would not pay a ransom for the two British crew members held hostage on the Sirius Star.

Speaking to reporters, he said the international community must "stand firm" against hostage-taking in all its forms. He insisted that making payments in return for the release of hostages would only encourage further such incidents.

"There is a strong view of the British government, and actually the international community, that payments for hostage-taking are only an encouragement to further hostage-taking and we will be approaching this issue in a very delicate way, in a way that puts the security and safety of the hostages to the fore."

The Sirius Star, which is carrying $100m (£66m) worth of oil, was hijacked at the weekend.

The 330-metre oil tanker, the largest ship ever captured at sea, is reported to be anchored near the town of Harardheere on Somalia's eastern coast.

Its owner, Vela International, a subsidiary of the state oil company Saudi Aramco, yesterday opened ransom negotiations, according to the Saudi foreign minister, Prince Saud al-Faisal. "I know the owners of the tanker are negotiating on the issue. We do not like to negotiate with terrorists or hijackers. But the owners of the tanker, they are the final arbiters of what happens there," he said.

The UN estimates that pirates have received up to $30m in ransom payments this year.

Reports of the demand come as Russia announced it would send more warships to the east African coast to prevent pirate raids.

The Russian news agency RIA Novosti said the deployment of a missile frigate from Russia's northern fleet last month had helped prevent the seizure of at least two ships in the area.

"Russia will be sending warships from other fleets to this region," said Admiral Vladimir Vysotsky, Russia's navy commander, attributing the decision to "the current developments off the Horn of Africa and the Gulf of Aden, where Somali pirates have intensified their activity".

Yesterday, an Indian warship destroyed a pirate "mothership" in the Gulf of Aden. The Indian navy said its frigate, one of the numerous international warships dispatched to patrol the waters around the Horn of Africa, had approached the suspicious vessel on Tuesday evening.

It turned out to be a previously captured ship being used by pirates as a base to launch their speedboats far out to sea.

"The INS Tabar closed in on the mother vessel and asked her to stop for investigation," an Indian navy spokesman said. "But on repeated calls, the vessel's threatening response was that she would blow up the naval warship if it approached."

After a heavy exchange of fire, the pirate ship was destroyed. Two speedboats escaped.

On the same day, pirates seized three other ships: a Greek bulk carrier, a Thai fishing boat and an Iranian-chartered cargo ship carrying 36,000 tonnes of wheat from Germany.

In September, pirates who captured the Ukrainian ship MV Faina, carrying 33 army tanks, initially demanded $20m, although they later reduced their ransom.

The Faina and its crew are still being held near the north-eastern Somali fishing town of Eyl, together with more than a dozen other vessels with about 220 foreign seamen on board.

Al-Jazeera yesterday broadcast an audio tape featuring what it said was the voice of Farah Abd Jameh, a pirate on the Sirius Star, making his demands.

"Negotiators are located on board the ship and on land," he said. "Once they have agreed on the ransom it will be taken in cash to the oil tanker. We assure the safety of the ship that carries the ransom. We will mechanically count the money and we have machines that can detect fake money."

The authenticity of the tape could not be confirmed.

While the capture of so many passing cargo vessels makes a mockery of pirates' claims to be protecting the country from foreign exploitation, complaints about illegal fishing in Somali waters are genuine.

The Seafarers' Assistance Programme in Mombasa says that at any one time there can be hundreds of foreign trawlers, mostly from Europe and the Middle East, fishing within Somalia's 200 nautical mile exclusive economic zone.

Local fishermen say their catches are declining as a result. While some foreign ships do have permits, corrupt officials often pocket the money.

Analysts say that in the long term the key to ending piracy is establishing an effective authority on land in Somalia. Piracy all but disappeared in 2006, when the Islamic Courts Union controlled most of southern and central Somalia for six months, bringing in law and order for the first time since the early 1990s.

Pirates began to flourish once more after invading Ethiopian forces ousted the Islamists. The transitional federal government, with Abdullahi Yusuf Ahmed as president, exercises no authority on the ground or at sea and claims it can do little about the pirates.

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http://newsinfo.inquirer.net/breakingnews/world/view/20081121-173567/Military-only-solution-to-piracy

OIL TANKER FIRM: Military 'only solution' to piracy

Agence France Presse

November 21, 2008

SINGAPORE -- (UPDATE) A more aggressive military approach is the only answer to an escalation of piracy off Somalia, the world's biggest oil tanker company said Friday.

"I think that's the only solution," Martin Jensen, acting chief executive officer of Oslo-based Frontline Ltd, told Agence France-Presse in an interview.

He said Frontline, which has 80 tankers, is considering whether to divert its ships from Somalia and the treacherous Gulf of Aden, "if there's no quick international force or situation being applied."

Jensen, whose company has an office in Singapore, said Frontline is holding serious internal talks about whether to avoid the Gulf of Aden but the matter would have to be discussed with owners of the cargo.

"The main consideration, that's the safety of the crew and the ship," he said.

But Jensen added that piracy was not a problem that one company can solve, and his preference was for a military approach.

"It doesn't solve anything by diverting," he said.

Over the weekend pirates seized their biggest prize so far, the Saudi Arabian oil tanker Sirius Star. It was loaded with two million barrels of oil when they seized it hundreds of miles off the coast of Kenya.

The pirates have demanded a ransom of $25 million, while more than a dozen other vessels are being held in Somali waters by pirates.

In the face of their audacity, Russia's NATO envoy, Dmitry Rogozin, called for a land military force to confront the pirates on their home turf.

NATO sent four warships into the Gulf of Aden last month on anti-piracy duties and to escort aid vessels, while a European Union anti-piracy operation off the coast of Somalia is to begin on December 8.

But the world's navies are struggling to find the right deterrent and any use of force might have little effect, experts say.

Jensen said his ships traveled near pirate-infested Somalia every week and one of them, the Front Voyager, recently had a narrow escape.

"A pirate boat approached but before they got too close the ship was able to get naval assistance," he said, adding that the problem was escalating.

One of the world's biggest shipping lines, Denmark's A.P. Moeller-Maersk, said Thursday it would divert some of its vessels around the tip of South Africa to avoid pirates in the Gulf of Aden.

In a statement, it said ships that are too slow -- or with decks low enough for pirates to scramble aboard -- would "seek alternative routing" around the Cape of Good Hope and Madagascar.

Alternatively, they could join a naval convoy through the Gulf of Aden, if one were available.

Norwegian shipping company Odfjell said on Monday it, too, would choose the longer, more expensive but also safer route around the Cape of Good Hope.

Jensen said the southern route was about 40 percent longer, "so of course that would be quite a cost".

One of the world's largest container shipping firms, Neptune Orient Lines, said it was "closely monitoring events" in the Gulf of Aden but was not planning to reroute ships.

"The relative risk of attack is lower for fast high-decked container ships than it is for slower low-decked vessels such as bulk carriers or tankers," said NOL spokesman Paul Barrett.

He said Singapore-based NOL has comprehensive -- but confidential -- measures in place to protect its crews.

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http://www.msnbc.msn.com/id/27820573

Somali pirates pocket at least $1.67 million: 2 tankers released after payments to hijackers; U.N. backs arms sanctions

NBC News and news services

November 20, 2008

MOGADISHU, Somalia - Somali pirates released two hijacked ships after ransoms were paid, U.S. military officials said Thursday. The deals emerged as Britain warned that paying for the release of hostages risks encouraging more piracy.

NBC News reported that the Great Creation, a Hong Kong-flagged chemical tanker seized on Sept. 18, was released after a $1.67 million ransom was paid. The Genius, another Hong Kong-flagged chemical tanker which was hijacked Sept. 26, was also returned in exchange for an unknown sum.

Earlier this week, pirates released the Stolt Valor, a Japanese chemical tanker after paying hijackers $2.5 million.

Gunmen from the chaotic Horn of Africa country grabbed world headlines with Saturday's spectacular capture of a huge Saudi Arabian supertanker loaded with $100 million worth of oil, the biggest ship hijacking in history.

Since seizing the Sirius Star oil tanker, pirates have hijacked at least three other ships, maritime officials say. The supertanker's owners are in ransom talks with the pirates who are reportedly demanding $25 million for its release.

The Saudi Arabian tanker was seized 450 nautical miles southeast of Mombasa, Kenya — far beyond the gangs' usual area of operations. It was believed to be anchored near Eyl, a former Somali fishing village that is now a well-defended pirate base.

The audacity of the attack underlined the extent of a crime wave that experts say has been fueled by the Iraq-style Islamist insurgency onshore, dimming hopes for U.N.-led peace talks, and the lure of multi-million-dollar ransoms.

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http://www.telegraph.co.uk/news/worldnews/piracy/3491039/Britain-opposes-25-million-ransom-payment-to-Somali-pirates.html

Britain opposes $25 million ransom payment to Somali pirates

By Tim Butcher, Middle East Correspondent

Telegraph.co.uk

November 20, 2008

Britain has said a $25 million ransom should not be paid to Somali pirates who seized the massive Sirius Star supertanker and its crew including two Britons.

Foreign Secretary David Miliband said he shared the view that ransoms should not be paid because it encourages further raids.

He spoke after a person claiming to be a pirate on board the Sirius Star demanded a fee of $25 million (£17 million) within ten days. If it is not paid he threatened "disastrous action''.

With Britain taking command next month of a European Union naval task force in the seas off Somalia some experts said the force was simply too small to cope with the threat from pirates ranging across wide swathes of the Indian Ocean.

Arab states in the region of the Red Sea met at an emergency summit in Cairo but came up with no new initiatives to deal with the problem.

Russia even suggested foreign powers arrange some sort of military assault on the towns on the lawless Somali coast to destroy pirate boats and infrastructure invoking the spirit of 18th century cutting-out attacks by the Royal Navy.

In the meantime Moscow said it would send more ships to reinforce the Russian frigate, Neustrashimy, which is already on station off the coast of Somalia. Russia did not indicate how many more ships would be sent.

[See: Dominic Wabala and Agencies, Russia seeks go-ahead with attack, Daily Nation (Oct. 23, 2008) at: http://www.nation.co.ke/News/-/1056/483372/-/tlh0sq/-/index.html ].

Mr Miliband spoke after the Foreign Office identified the two Britons on the Sirius Star as Peter French, 44, from County Durham, and James Grady from Strathclyde, in Scotland.

"There is a strong view of the British Government, and actually the international community, that payments for hostage-taking are only an encouragement to further hostage-taking,'' he said.

"We will be approaching this issue in a very delicate way, in a way that puts the security and safety of the hostages to the fore.'' He said he believed the deployment of a European flotilla was the best course of action.

"It is very important that the international community stands firm against the scourge of hostage-taking, whether it is on boats, whether it is on airlines or elsewhere,'' he said.

"All of our hearts go out to all of those people who are now hostages on that ship; obviously, in our case, especially for the two British hostages.

"Their families will be going through a wrenching hell of waiting. It is important we assure them we are fully engaged with all of our partners on this issue.''

Speaking by satellite phone from the ship, one of the pirates who identified himself as Mohammed Said threatened the results would be "disastrous" if the ransom was not paid.

The scuttling of the supertanker could cause an environmental catastrophe when its cargo of 2m barrels of Saudi crude oil starts to leak.

While the tone of the demand was threatening almost all recent incidents involving Somali pirates have ended peacefully following the payment of a ransom.

A spokesman for the ship's owners, Vela International Marine, which is controlled by the Saudi Arabian royal family, declined to comment on any ransom demand.

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http://news.bbc.co.uk/2/hi/africa/7735144.stm

Rules frustrate anti-piracy efforts

By Paul Reynolds

World affairs correspondent, BBC News website

November 19, 2008

The international effort to stop piracy off Somalia has not worked and the effort clearly needs to be stepped up into a higher gear.

The response so far has been twofold: first, to assemble naval forces to try to stop the pirates on the high seas; second, to encourage a political settlement within the fractured state of Somalia to enable law and order to be established.

The naval forces are growing all the time. There is already a small flotilla of warships in the region from the US, UK, Canada, France, Turkey, Germany, Russia and India, among others. This shows how the world's trading powers regard the piracy as a joint threat.

There has been some success. The warships have established a safe shipping lane and escort food aid ships into Somalia. The Royal Navy recently shot and killed two pirates and captured others. The French staged a daring capture of pirates who had taken over a yacht. The Indian navy has thwarted two attempted hijacks, though the pirates in both cases got away. (Update 19 November: The Indian Navy reports that it has sunk a pirate ship which refused to stop).

And the European Union is about to launch its first naval action. It has approved Operation Atalanta, in which about eight ships will add their weight to the international effort.

It is under the control of Commodore Antonius Papaioannou of Greece and Rear Admiral Philip Jones of the UK, whose command will be based at Northwood, outside London.

It offers a chance, perhaps, for some dashing naval commander to make his name in the style of some of the great anti-pirate commanders of the past.

Changing times

The problem these days, however, is that the operation is hemmed in by rules and regulations.

In 1815 the American Cmdr Stephen Decatur, sent to stop the Barbary pirates in the Mediterranean, simply captured the flagship of the Algerian Dey and forced a capitulation. When the Dey later repudiated the agreement, the British and Dutch bombarded Algiers.

"The authorities these days have a real problem because of international law... As in the days of the Caribbean pirates, everything is on the pirates' side". Dr David Cordingly Maritime writer.

These days, there is no question of a bombardment of the port of Eyl, the main pirate base on the Somali coast. That might be the most effective response but it would require a UN Security Council resolution.

There is a resolution (1838, passed in October) which authorises the use of "necessary means", meaning force if need be, to stop piracy in international waters. There is also another resolution (1816) which allows anti-pirate operations within Somali waters, but only with the agreement of the Somali transitional government.

But even all these operations have to be conducted within international law, defined in this case as the provisions of the UN Law of the Sea Convention.

There has also been a legal opinion by the Foreign Office in London that captured pirates cannot necessarily be sent back to whatever authorities can be found in Somalia, in case they are subject to harsh treatment. That would contravene the British Human Rights Act. The pirates captured in the Royal Navy action have now been handed over not to Somalia, but Kenya.

The Law of the Sea Convention places limitations on daring action. Under Article 100 of the convention a warship has first to send an officer-led party to board a suspected pirate ship to verify any suspicions.

The warship cannot just open fire. Any inspection has to be carried out "with all possible consideration". That sounds rather tentative.

(Update: I have heard from the Nautical Institute, an international professional body for mariners based in London that it has started a petition to the British prime minister urging tougher measures. Other readers have suggested various 'solutions', including having marines or private security guards on board ships or in escort vessels and declaring war in order to bombard pirate ports. I have also heard from someone who used to advise British forces in the region and he says you cannot under international law convert a commercial ship into a kind of warship. He also thinks the issue of who will put pirates in trial is a legal minefield and yet to be resolved.)

Historical measures

Maritime writer Dr David Cordingly, author of "Life among the Pirates", says that, historically, firm measures were taken against pirates.

"There would often be a show trial in London, Jamaica, Boston or Charleston," he said.

"That was followed by a public hanging and the bodies would be left swinging on the gallows at the entrance to harbours. Sailors would draw the conclusion that piracy was not a good career option.

"The authorities these days have a real problem because of international law. There are measures ship owners can take like having fire hoses to aim at the pirates, acoustic devices to hurt their hearing or electric fences but, as in the days of the Caribbean pirates, everything is on the pirates' side.

"Modern pirates use very similar methods to the old. They shadow and then board their victims. They usually outnumber the small crew on board the ship.

"The difference is in what they do next. They used to remove the valuables and maybe abandon or kill the ship's crew. The pirates of the Caribbean did not seek ransom though the Barbary pirates did, as the Somali pirates do.

"But the old ways of dealing with them are no longer possible."

Diplomatic effort

As for the diplomatic effort on land, that is going even more slowly. Somalia is basically split into three.

The capital, Mogadishu, is nominally under the control of a transitional government set up after an Ethiopian-led intervention that removed the Union of Islamic Courts.

Between the lack of decisive naval operations and the chaos on land, the pirates have thrived.

Since then, a breakaway Islamist group known as al-Shabab has gained control of much of the south and centre of the country. An African Union peacekeeping force has been ineffective.

There have been some calls for a larger UN force. Large parts of population survive on food aid.
The pirates, however, are based further north, in Puntland, a semi-autonomous region, where the port of Eyl is the main pirate base.

There is a president but he has either no power or no interest in stopping a lucrative form of income.

It is believed that the money gained from ransom is more than the income of the local government of Puntland.

Further round the coast again is Somaliland, which would like international recognition of its independence. The chances of there being a united, peaceful Somalia in the foreseeable future are close to nil.

Between the lack of decisive naval operations and the chaos on land, the pirates have thrived.

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http://sify.com/news/fullstory.php?id=14801497

Fourteen piracy attempts off Somalia in 10 days

InterAsia News Service (IANS)

19 November , 2008

New Delhi: There have been 14 instances of piracy off the Somali coast in the past 10 days.

Prior to the three vessels seized Tuesday-Wednesday, the International Maritime Bureau (IMB) had reported 92 attempts at piracy off the coast of Somalia this year, 36 of which were successful.

The following are the details of the latest incidents as posted on the IMB website (barring the three incidents Tuesday-Wednesday):

Nov 18-19: A Hong Kong flagged vessel, a Kiribati fishing vessel and a Greek ship are seized in the Gulf of Aden and off the Somali coast.

Nov 15: Armed pirates attacked and hijacked a chemical tanker in the Gulf of Aden.

Nov 15: 450 nautical miles south east Mogadishu, armed pirates attacked and hijacked the Saudi Aramco super tanker Sirius Star.

Nov 14: Off southern Somalia, pirates heavily armed with automatic weapons and RPGs in two speedboats chased and fired at a container ship. Master increased speed, took evasive manoeuvres and crew activated fire hoses. Pirates aborted the attempted attack. Ship sustained damages due to gunshots and RPG fire. No injuries to crew.

Nov 14: Pirates armed with automatic weapons in three small speedboats approached a chemical tanker in the Gulf of Aden. Master contacted coalition warship and took evasive manoeuvres. The speedboats spread out and approached the vessel at high speed. The pirates failed in their attempt to board the vessel.

Nov 13: Six pirates in a fast speedboat approached a bulk carrier in the waters off Somalia. Master raised alarm, took evasive manoeuvres and crew activated fire hoses. The pirates ordered the ship to stop but master continued with the evasive manoeuvres. The pirates fired upon the ship with two rocket propelled grenades and automatic weapons. Master called coalition warship and asked for immediate assistance. A coalition warship responded and came to the location in 15 minutes and chased away the pirate boat. No injuries to the crew or damages to the ship.

Nov 13: Off Somalia, pirates armed with automatic weapons and RPGs chased and fired upon a container ship. Because of the firing, fire broke out in the third officers' cabin. The vessel increased speed and made evasive manoeuvres. The pirate boat came alongside on port side. Pirates tried to embark on board but were unsuccessful. Later they aborted. Vessel continued to her destination port.

Nov 12: Armed pirates in two speedboats chased a tanker in the Gulf of Aden. Tanker took evasive manoeuvres and escaped from the pirates.

Nov 12: Armed pirates attacked and hijacked a chemical tanker in the Gulf of Aden.

Nov 11: Two speedboats with three-four armed pirates in each boat chased a bulk carrier in Gulf of Aden. Evasive manoeuvres made and Indian Navy warship contacted. An Indian Navy helicopter arrived at the location and interrupted the speedboats. Speedboats aborted the attack. Later, the warship, INS Tabar, was sighted and established contact.

Nov 10: 250 nautical miles east of Mogadishu, two speedboats approached a refrigerated cargo ship. One boat approached from the starboard quarter and the other from astern. The pirates armed with guns and RPGs started to open fire on the ship. Ship made evasive manoeuvres. The speedboats could not get closer due to the waves created by the evasive manoeuvres. Later the speedboats aborted the attempt. Ship sustained damages from gunfire. Crew safe.

Nov 10: Pirates armed with RPGs and guns boarded a chemical tanker underway and hijacked it in the Gulf of Aden.

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http://www.arabnews.com/?page=7&section=0&article=116493&d=19&m=11&y=2008

Editorial: Pirates must be hit in their lairs

Arab News

19 November 2008

The seizure of an Aramco oil tanker, the Sirius Star, brings home to many people the extent of both the scourge and the dangers it poses for the Kingdom’s well-being if not confronted. This part of the world has always lived on trade, maritime trade in particular. Oil has not changed that. It has magnified it. These pirates, unless stopped, will continue their murderous, pillaging ways. This will not be the only tanker seized. There will be others. With cargoes around two million barrels, the pickings are just too tempting.

The seizure seven weeks ago of the MV Faina, a Ukrainian ship carrying a cargo of Russians tanks, galvanized some nations into a degree of action. There is now an increased NATO naval presence in the region as well as ships from India, Malaysia and Russia — and they have been cooperating. Recently the Russian and British navies prevented a Danish ship being captured. But this is not enough. The pirates are becoming daily bolder and more sophisticated in their operations — and have expanded into an ever wider area. There have been 92 attacks in the Arabian Sea and off the coast of East Africa this year, 36 of them successful. Fourteen vessels are currently held, including the MV Faina. The Sirius Star shows that, despite the naval presence, the problem is worsening. It is not only the biggest vessel to be seized but it was taken well outside what was thought to be the pirates’ zone of activity.

The root problem, as we all know, is the implosion of Somalia. While it remains a failed state, it provides a safe haven for the pirates. But the world cannot wait until law and order is re-established in Somalia, which is the de-facto international policy at the moment. It could be years before that happens. In the meantime, the attacks will continue and become ever more menacing. It is no exaggeration to say that the Kingdom’s very economy is at stake here — as well as that of other Gulf states.

Some years ago, piracy on the high seas was only ended when the major maritime powers decided no longer to license pirates as freelance buccaneers against each other but rather to pursue them and destroy them in their lairs. The policy worked and it seems to be what is needed today.

The policy of trying to contain the threat by increasing security on board ships is all very well, but it is ultimately futile — and expensive. It is not going to stop the pirates. They will find plenty of victims. The navy patrols cannot be everywhere. As for handing captured pirates to what limited authorities there are in Somalia’s breakaway region of Puntland — which is what the French Navy did with nine last month — it is insane. The pirates are closely linked to the warlords of Puntland who take their cut of the ransoms paid.

Negotiating with them and paying the ransom is also madness. It positively encourages them to strike again. This is now a multimillion dollar business.

Hitting the pirates in their lairs would mean naval action against Somali ports such as Eyl and the destruction of all potential pirate vessels there. That could only be done under UN authority. Seven weeks ago we suggested the creation of a UN naval force, a maritime equivalent of the UN peacekeeping forces in order to ensure safe shipping in the Gulf of Aden and the Arabian Sea. Whether it is that or providing the authority to move against the pirates, the UN has to address the issue — and immediately. It is already past time to deal with the problem before things grow even worse.

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http://www.blackagendareport.com/index.php?option=com_content&task=view&id=894&Itemid=1

Buccaneers In Somali Waters - But They're Not Somalis

Black Agenda Report: The Journal of African-American Political Thought and Action

November 17, 2008

There is, indeed, piracy in the waters of Somalia, most of it perpetrated by foreign vessels that steal $300 million in fish per year. With no government to protect their national rights, Somali sailors find other ways to make a living. "Think of us like a coast guard." "Foreign ‘fish pirates' plunder Somali waters from about 700 vessels - an armada of commercial buccaneers."

So far this year, at least two dozen vessels have been boarded and seized by armed men off the coast of Somalia, the latest a Saudi Arabian supertanker capable of carrying two million barrels of oil. I'm avoiding using the term "pirates" because there is lots of piracy going on in Somali waters, most of it committed, not by Somalis, but by foreigners from around the globe. The northeast African nation, with 2,000 miles of coastline, once boasted some of the richest fisheries in the world, swarming with tuna, lobster, shark, shrimp and whitefish. But there has been no effective government in Somalia since 1991 and, therefore, no Somali coast guard to protect the fishing grounds from marauding foreign vessels. How much damage has been done by over fishing is unknown - foreigners sail into the fisheries as if they own them, and take what they wish.

Webster's Dictionary defines piracy as "robbery on the high seas." By that definition, Somalia is the victim of pirates from all over the world.

According to the United Nations, these foreign "fish pirates" plunder Somali waters from about 700 vessels - an armada of commercial buccaneers.

Before Somalia descended into chaos, 30,000 fishermen made their livings from the sea. But they can't compete with the modern, foreign vessels, and there is no one to keep the commercial fish pirates out.

Some foreign fishing interests make their own deals, purchasing fishing "licenses" from warlords purporting to represent authority on behalf of Somalia. That's very much like the "diplomacy" practiced by white settlers in the colonial and early United States, when they made "treaties" with bogus Indian "chiefs" who signed away Native American land for trinkets and liquor.

"The American fleet does little to interfere with the illegal dumping of radioactive waste in Somali waters."

Local and clan militias have replaced national authority in Somalia, which is partially occupied by the Ethiopian military. The Ethiopian invasion and occupation, instigated by the United States in late 2006, has displaced millions, many of whom face starvation. The coastal fishermen are also members of militias. Western media call them pirates, but as one armed sailor told the New York Times: "Think of us like a coast guard."

Somebody needs to guard Somali's water resources, but it certainly isn't the Americans. The U.S. Fifth Fleet, of the U.S. Navy's Central Command, patrols the Red Sea, the Arabian Sea and the Indian Ocean - Somalia's neighborhood. It also bombs Somalis that resist the Ethiopian occupation and targets people the U.S. claims have ties to Al Qaida. But the American fleet does little to interfere with the illegal dumping of radioactive waste in Somali waters or any other crimes against the environment and Somalia's national treasure and sovereignty.

When it comes to piracy, Somalis are on balance the victims rather than the perpetrators. It is estimated that foreigners poach $300 million from Somali fisheries each year. Somalia's armed sailors extort about one-third that amount - $100 million - from the owners of captured ships. So, who are the real pirates?

The United States helped Ethiopia hijack the entire Somali nation: an international crime against peace. Uncle Sam is the biggest pirate of them all.

For Black Agenda Radio, I'm Glen Ford.

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http://www.munichre.com/publications/302-05053_en.pdf

Piracy - Threat at Sea: A Risk Analysis

(pp. 24-27)

"The term 'piracy' was defined by the Geneva Convention on the High Seas in 1958. This definition was adopted by the 1982 [UN] Convention [on the Law of the Sea UNCLOS].

For acts of violence against ships, persons, or property on board to be classified as piracy in accordance with Articles 101 and 102 of the 1982 Convention, the following conditions must all be met simultaneously:

The act of violence must be:

– committed by the crew or passengers of another vessel,

– illegal and serve private purposes,

– and it must be committed on the high seas or at a place not subject to state sovereignty.

Article 101 of the 1982 Convention defines the act of piracy very narrowly. Politically motivated acts, such as terrorist attacks, are not included according to the 1982 Convention.

The definition is unclear on the meaning of the word 'illegal'. It is left to the courts of the prosecuting countries to decide whether the act is to be designated “illegal” according to international law or according to the national law of the prosecuting countries."

"...Right of intervention against piracy

Article 110 of the 1982 Convention...grants warships the right to stop other vessels for the purpose of verifying their right to fly a flag. However, this is not a general right. It must be based on certain reasons, such as the suspicion of piracy, slave trading, or statelessness. The warship may send a socalled boarding team on board the stopped vessel in order to verify its right to fly the flag. The vessel may be searched if the suspicion is confirmed after inspecting the ship’s papers (Article 110, paragraph 2, 1982 Convention). When exercising this right, however, the commanding officers must remember that, if the suspicion proves to be unfounded, Article 110, paragraph 3 of the 1982 Convention stipulates that the shipping company be reimbursed for all losses incurred.

...According to the first sentence of Article 105 of the 1982 Convention, every state may take action against pirates (arrest and seizure) at any time in international waters (= high seas and waters not controlled by any state).

The second sentence of Article 105 states that the courts of the state which has seized the vessel (i.e. whose colours are being flown) can also decide on the penalties to be imposed and on the action to be taken with regard to the vessel or property...

...At the same time, Article 105 of the 1982 Convention specifies that a pirate ship cannot be pursued further once it has reached national waters.

Article 107 of the 1982 Convention, however, restricts the right of such intervention in international waters to warships or 'other ships which are clearly marked and identifiable as being on government service and are authorized to that effect'.

– Exception: 'consent of the flag state'...

...Summary

Articles 100 to 107 of the 1982 Convention merely allow the community of states to take police action at sea but not to prosecute offences. On the high seas, this right is reserved for the individual states and based on their national law.

The 1982 Convention in itself is not sufficient to ensure adequate protection against piracy. Since the offence is restricted to the high seas, many cases do not qualify as piracy, for some 80% of all attacks occur in territorial waters and in ports.

A further shortcoming of the 1982 Convention is that an attack only qualifies as piracy according to the Convention’s own definition if it is committed for “private purposes”. The rights of intervention granted by the 1982 Convention therefore do not encompass the growing number of terrorist acts.

Furthermore, Article 100 of the 1982 Convention obliges the states to work together in the fight against piracy. That, however, does not mean that the states are under any obligation to incorporate standards penalising piracy in their legal systems."

...The purpose of the SUA Convention was to fill the loopholes of the 1982 Convention. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was signed in Rome on 10 March 1988 and was prompted by the Achille Lauro incident in 1985. Members of the Palestine Liberation Organisation had seized the Italian liner and held the passengers hostage. One passenger was killed. At this moment it became clear that the international rulings in force were not sufficient.

It is interesting to note that the Convention is based on an initiative by Austria, Egypt, and Italy, none of which can be considered a leader in maritime navigation. By 30 April 2006, 135 states had acceded to the SUA Convention, including China, India, Japan, Korea, Vietnam, and Nigeria.
Important coastal states, such as Indonesia, Malaysia, the Philippines, Singapore, Thailand, and Somalia are still missing, however.

Definition of piracy according to the SUA Convention

While the first two Articles of the SUA Convention are devoted to the scope and definition of a “vessel”, Article 3 and the following articles are concerned with the definition and response to illegal actions against maritime navigation.

Among other things, illegal actions include the unlawful seizure of vessels, the attachment of materials to or installation of materials in vessels which could lead to damage or destruction of the vessel in question, and the killing of persons on board. Consequently, the SUA Convention, unlike the 1982 Convention, mainly relates to politically motivated terrorist acts. But it can also be applied to acts of piracy.

In addition, it covers a significantly larger geographical territory than the 1982 Convention. According to Article 4 of the SUA Convention, the vessel can be at sea anywhere at the time of the illegal act – on the high seas, in the exclusive economic zone, in coastal waters – and also on inland waterways. However, the vessel must be in international transit at the time of the illegal act, i.e. it must have come from a foreign territory or from the high seas or it must be passing through or heading for such areas at the time of the illegal act.

A loophole arises if the vessels only transit the territorial waters of one state – but that loophole could be filled by national laws.

Right of intervention permitted by the SUA Convention

Unlike the 1982 Convention, the SUA Convention does not grant any powers to take action against pirates and avert pirate attacks. Only the flag state (under the so-called flag state principle) and the state whose coastal waters are being transited by foreign vessels (territoriality principle) or whose citizens commit the offence (personality principle) have the right to take such action...This means that the SUA Convention, like the 1982 Convention, does not provide states with any right to pursue offenders in the territorial waters of other states...

...Criminal prosecution

Unlike the 1982 Convention, however, the SUA Convention does provide a legal foundation for the prosecution of pirates. Article 7, paragraph 1, SUA Convention obliges the treaty states to detain suspected persons in their territory or to take other measures to prevent their escape. This applies until criminal proceedings or extradition proceedings are instituted...

Summary

Although not all the loopholes of the 1982 Convention have been filled, the SUA Convention does constitute a further step towards repressing violence at sea. It compels states to make more efficient use of national legal standards. The signatories must exercise jurisdiction against all suspected offenders or extradite them. Unfortunately, however, this still does not mean that the offenders will also be punished.

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http://english.aljazeera.net/news/africa/2008/10/2008109174223218644.html

'Toxic waste' behind Somali piracy

By Najad Abdullahi

Aljazeera.net

UPDATED ON:Saturday, October 11, 2008 12:21 Mecca time, 09:21 GMT

Some pirates operating off Somalia's coast claim to act as coastguards

Somali pirates have accused European firms of dumping toxic waste off the Somali coast and are demanding an $8m ransom for the return of a Ukranian ship they captured, saying the money will go towards cleaning up the waste.

The ransom demand is a means of "reacting to the toxic waste that has been continually dumped on the shores of our country for nearly 20 years", Januna Ali Jama, a spokesman for the pirates, based in the semi-autonomous region of Puntland, said.

"The Somali coastline has been destroyed, and we believe this money is nothing compared to the devastation that we have seen on the seas."

The pirates are holding the MV Faina, a Ukrainian ship carrying tanks and military hardware, off Somalia's northern coast.

According to the International Maritime Bureau, 61 attacks by pirates have been reported since the start of the year.

While money is the primary objective of the hijackings, claims of the continued environmental destruction off Somalia's coast have been largely ignored by the regions's maritime authorities.

Dumping allegations

Ahmedou Ould-Abdallah, the UN envoy for Somalia confirmed to Al Jazeera the world body has "reliable information" that European and Asian companies are dumping toxic waste, including nuclear waste, off the Somali coastline.

"I must stress however, that no government has endorsed this act, and that private companies and individuals acting alone are responsible," he said

The pirates are holding the MV Faina off Somalia's northern coast [Reuters]Allegations of the dumping of toxic waste, as well as illegal fishing, have circulated since the early 1990s.

But evidence of such practices literally appeared on the beaches of northern Somalia when the tsunami of 2004 hit the country.

The UN Environment Programme (UNEP) reported the tsunami had washed up rusting containers of toxic waste on the shores of Puntland.

Nick Nuttall, a UNEP spokesman, told Al Jazeera that when the barrels were smashed open by the force of the waves, the containers exposed a "frightening activity" that has been going on for more than decade.

"Somalia has been used as a dumping ground for hazardous waste starting in the early 1990s, and continuing through the civil war there," he said.

"European companies found it to be very cheap to get rid of the waste, costing as little as $2.50 a tonne, where waste disposal costs in Europe are something like $1000 a tonne.

"And the waste is many different kinds. There is uranium radioactive waste. There is lead, and heavy metals like cadmium and mercury. There is also industrial waste, and there are hospital wastes, chemical wastes – you name it."

Nuttall also said that since the containers came ashore, hundreds of residents have fallen ill, suffering from mouth and abdominal bleeding, skin infections and other ailments.

"We [the UNEP] had planned to do a proper, in-depth scientific assessment on the magnitude of the problem. But because of the high levels of insecurity onshore and off the Somali coast, we are unable to carry out an accurate assessment of the extent of the problem," he said.

However, Ould-Abdallah claims the practice still continues.

"What is most alarming here is that nuclear waste is being dumped. Radioactive uranium waste that is potentially killing Somalis and completely destroying the ocean," he said.

Toxic waste

Ould-Abdallah declined to name which companies are involved in waste dumping, citing legal reasons.

But he did say the practice helps fuel the 18-year-old civil war in Somalia as companies are paying Somali government ministers to dump their waste, or to secure licences and contracts.

"There is no government control ... and there are few people with high moral ground ... [and] yes, people in high positions are being paid off, but because of the fragility of the TFG [Transitional Federal Government], some of these companies now no longer ask the authorities – they simply dump their waste and leave."

Ould-Abdallah said there are ethical questions to be considered because the companies are negotiating contracts with a government that is largely divided along tribal lines.

"How can you negotiate these dealings with a country at war and with a government struggling to remain relevant?"

In 1992, a contract to secure the dumping of toxic waste was made by Swiss and Italian shipping firms Achair Partners and Progresso, with Nur Elmi Osman, a former official appointed to the government of Ali Mahdi Mohamed, one of many militia leaders involved in the ousting of Mohamed Siad Barre, Somalia's former president.

At the request of the Swiss and Italian governments, UNEP investigated the matter.

Both firms had denied entering into any agreement with militia leaders at the beginning of the Somali civil war.

Osman also denied signing any contract.

'Mafia involvement'

However, Mustafa Tolba, the former UNEP executive director, told Al Jazeera that he discovered the firms were set up as fictitious companies by larger industrial firms to dispose of hazardous waste.

"At the time, it felt like we were dealing with the Mafia, or some sort of organised crime group, possibly working with these industrial firms," he said.

Nations have found it difficult to tackle the problem of piracy [AFP]"It was very shady, and quite underground, and I would agree with Ould-Abdallah’s claims that it is still going on...

Unfortunately the war has not allowed environmental groups to investigate this fully."

The Italian mafia controls an estimated 30 per cent of Italy's waste disposal companies, including those that deal with toxic waste.

In 1998, Famiglia Cristiana, an Italian weekly magazine, claimed that although most of the waste-dumping took place after the start of the civil war in 1991, the activity actually began as early as 1989 under the Barre government.

Beyond the ethical question of trying to secure a hazardous waste agreement in an unstable country like Somalia, the alleged attempt by Swiss and Italian firms to dump waste in Somalia would violate international treaties to which both countries are signatories.

Legal ramifications

Switzerland and Italy signed and ratified the [UN] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which came into force in 1992.

EU member states, as well as 168 other countries have also signed the agreement.

The convention prohibits waste trade between countries that have signed the convention, as well as countries that have not signed the accord unless a bilateral agreement had been negotiated.

It is also prohibits the shipping of hazardous waste to a war zone.

Abdi Ismail Samatar, professor of Geography at the University of Minnesota, told Al Jazeera that because an international coalition of warships has been deployed to the Gulf of Aden, the alleged dumping of waste must have been observed.

Environmental damage

"If these acts are continuing, then surely they must have been seen by someone involved in maritime operations," he said.

"Is the cargo aimed at a certain destination more important than monitoring illegal activities in the region? Piracy is not the only problem for Somalia, and I think it's irresponsible on the part of the authorities to overlook this issue."

Mohammed Gure, chairman of the Somalia Concern Group, said that the social and environmental consequences will be felt for decades.

"The Somali coastline used to sustain hundreds of thousands of people, as a source of food and livelihoods. Now much of it is almost destroyed, primarily at the hands of these so-called ministers that have sold their nation to fill their own pockets."

Ould-Abdallah said piracy will not prevent waste dumping.

"The intentions of these pirates are not concerned with protecting their environment," he said. "What is ultimately needed is a functioning, effective government that will get its act together and take control of its affairs."

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http://thelede.blogs.nytimes.com/2008/02/05/a-green-jolly-roger/

A Green Jolly Roger? A Pirate Claims Environmental Concerns

By Mike Nizza

New York Times Blog

February 5, 2008

The latest pirate attack off Somalia, which hit the news on Monday, took an odd turn today as a radio station published a report on its Web site with a sublimely contradictory lede paragraph:

The spokesman of a group of gunmen who hijacked two ships off of Somalia’s northeastern coast has said that they are not pirates.

No? Then what are they, exactly?

“We are the gentlemen who work in the ocean … since the [Somali] civil war began the ocean has been our Mother,” the man said.

[… The] “group’s name is the Ocean Salvation Corps, and they are a group of Somali nationalists who took it upon themselves to protect the country’s shores.”

[ARE THESE PEOPLE CLAIMING THAT THEY ARE 'ENVIROMENTAL FREEDOM FIGHTERS'??]

While environmentally minded pirates might make a nice complement to the bishops who today urged followers to cut their carbon footprint for Lent, there was no way to verify the spokesman’s identity or what he said.

At the very least, though, there was a lucky coincidence between one of his claims and the record of the hijacked tugboat, the Svitzer Korsakov. The caller’s charge that the boat was “part of the environmental destruction” would not be the first levelled against the vessel. But that controversy is located thousands of nautical miles away at Sakhalin Island in the Russian Far East, where oil companies are trying to build a hub for gas and oil production.

According to a statement from the ship’s owner, the tugboat was practically new, and had only recently rolled off the slipways of St. Petersburg, where it was built to help “facilitate year-round oil and gas exports,” in part by doing some icebreaking as well as tugging.

The Korsakov and three other vessels like it can “break a channel wide enough for the tankers calling at the terminal,” the company says. But activists trying to protect local ecosystems are concerned rather than impressed.

Whether or not the raids off Somalia are part of a buccaneering fight to help save the planet — which doesn’t sound like a bad sequel to “VeggieTales: The Pirates Who Don’t Do Anything” — a resolution to this particular hijacking seemed to be in the offing.

Agence France-Presse reports that the tug boat’s owner was in continuing talks to win the vessel’s release, and that NATO naval forces in the area had been called. The military alliance has made quick work of pirates in the past, and are unlikely to care whether the hijackers consider themselves pirates or not.

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http://www.imo.org/home.asp?topic_id=1178

October 2008: United Nations Secretary General supports anti-piracy mandate extension

International Maritime Organization

United Nations Secretary General Ban Ki-moon has pledged his support for an extension of the mandate, given in United Nations Security Council resolution 1816 (2008), enabling States co operating with the Transitional Federal Government of Somalia to enter the country's territorial waters and use all necessary means in order to repress acts of piracy and armed robbery at sea, consistent with relevant international law. That mandate is due to expire on 1 December 2008, i.e. six months after the adoption of the resolution, on 2 June 2008.

IMO Secretary-General Efthimios E. Mitropoulos wrote to Mr Ban in September proposing that the mandate be extended. Mr Ban has now confirmed that he supports the proposal and will be conveying the same to the Security Council, together with the concerns expressed by IMO and international shipping and seafaring organizations.

In a letter to Mr Mitropoulos, Mr Ban said he remains "seriously concerned" about the dangers posed by piracy in the Gulf of Aden and was "acutely aware" of its impact on the ability of the United Nations to deliver humanitarian assistance to Somalia. He also said he was encouraged by the Security Council's adoption, on 7 October 2008, of resolution 1838 (2008) on this issue. Mr Ban added, "We must do more and act quickly to fight this terrible scourge.

Mr Ban's letter came just days after a meeting at IMO, held at the invitation of Mr Mitropoulos, and involving the heads of the four shipping industry bodies known collectively as the Round Table (BIMCO, ICS/ISF, INTERCARGO and INTERTANKO), and the International Transport Workers' Federation (ITF) expressed its own support for an extension of the mandate (see IMO briefing 45/2008).

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http://www.imo.org/home.asp?topic_id=1178

IMO and industry agree joint approaches on Somalia piracy

International Maritime Organization Briefing 45/2008

At the invitation of IMO Secretary-General Efthimios E. Mitropoulos, a meeting took place yesterday involving the heads of the four shipping industry bodies known collectively as the Round Table (BIMCO, ICS/ISF, INTERCARGO and INTERTANKO), and of the International Transport Workers' Federation (ITF). The meeting aimed at exploring common approaches, additional to measures already taken, to address the increasingly serious incidence of piracy attacks on shipping off the coast of Somalia and, in particular, in the Gulf of Aden - a strategic corridor leading to the Red Sea and to the Suez Canal, which represents a key conduit for almost 12% of the world's crude oil, not to mention other energy, container and general bulk traffic.

In the face of the recent alarming deterioration of the situation - both in the number of attacks, hijackings and hostage takings off Somalia, and the ferocity with which they are carried out - and in the light of some 13 vessels and over 200 seafarers reportedly now in the hands of pirates, the meeting, which took place at IMO Headquarters, identified a number of key issues that it felt needed to be addressed in order to alleviate the situation and strengthen further the safeguarding of shipping, including fishing vessels and pleasure craft, in the region.

The meeting called for sustained coordination between all naval forces operating in the area currently and in the future; for clear rules of engagement that would enable military assets to intervene effectively to protect shipping; and for an extension, for an adequate duration, of the mandate given in United Nations Security Council resolution 1816 (2008) enabling States co operating with the Transitional Federal Government of Somalia to enter the country's territorial waters and use all necessary means in order to repress acts of piracy and armed robbery at sea, consistent with relevant international law. That mandate is due to expire on 1 December 2008, i.e. six months after the adoption of the resolution on 2 June 2008.

The meeting agreed on a number of specific measures to be taken by the IMO Secretary-General and the participating organizations, individually and collectively, to mobilize support and action from all sides in a position to assist.

The meeting further agreed that the need for any such measures was becoming increasingly urgent because of the immediate human concerns for the safety and wellbeing of seafarers and passengers who are currently being held hostage or may be caught up in future attacks; the continuing impact of the situation on the viability of transporting much-needed humanitarian assistance to Somalia; and its potential and significant detrimental effect on the world's commerce.

It was considered that, without adequate and coordinated protection for shipping, the current situation off Somalia might cause ship operators to avoid transiting through the Gulf of Aden, using the Cape of Good Hope instead, which would lead to increased shipping costs and, in turn, possible negative consequences for global trade - and, in the final analysis, the consumer - at a time when all nations are making efforts to address the current global financial crisis.

In this respect, the meeting was encouraged by the UN Security Council's adoption, on 7 October 2008, of resolution 1838 (2008), which calls upon States interested in the security of maritime activities to deploy naval vessels and military aircraft to actively fight piracy off the coast of Somalia, and expresses the Council's intention to remain seized of the matter with a view, in particular, to renewing the mandate granted in its earlier resolution 1816.

Briefing 45, 10 October 2008

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http://un.org/News/Press/docs/2008/sc9467.doc.htm

United Nations Security Council
SC/9467

Security Council
5987th Meeting (AM)

October 7, 2008

SECURITY COUNCIL ASKS NATIONS WITH MILITARY CAPACITY IN AREA
TO ‘ACTIVELY FIGHT PIRACY’ ON HIGH SEAS OFF SOMALIA

Unanimous Resolution 1838 (2008) Seeks Repressive Action
In Manner Consistent with United Nations Convention on Law of the Sea

Condemning and deploring all acts of piracy and armed robbery off the coast of Somalia, the Security Council today called upon States interested in the security of maritime activities to deploy naval vessels and military aircraft to actively fight piracy on the high seas off the coast of Somalia.

Unanimously adopting resolution 1838 (2008) under Chapter VII of the United Nations Charter, the Council called upon States with naval vessels and military aircraft operating in the area to use, on the high seas and airspace off the coast of Somalia, the necessary means to repress acts of piracy in a manner consistent with the 1982 United Nations Convention on the Law of the Sea.

The Council urged States that had the capacity to do so to cooperate with Somalia’s Transitional Federal Government in conformity with the provision of resolution 1816 (2008) of 2 June, which allowed States cooperating with the Government, for a period of six months, to enter Somalia’s territorial waters and use “all necessary means” to repress acts of piracy and armed robbery at sea in a manner consistent with international law (see Press Release SC/9344). Today, the Council expressed its intention to consider renewing that provision for an additional period.

States and regional organizations were urged to continue to take action to protect the World Food Programme (WFP) convoys, which was “vital” to bring humanitarian assistance to the affected populations in Somalia.

The draft resolution was sponsored by Belgium, Canada, Croatia, Denmark, France, Greece, Italy, Japan, Lithuania, Malaysia, Netherlands, Norway, Panama, Portugal, Republic of Korea, Singapore, Spain, United Kingdom and United States.

After the vote, the representative of South Africa said he had voted in favour of the resolution, because the Transitional Federal Government of Somalia had issued a call for the international community to assist with the piracy issue. The threat to international peace and security in Somalia, however, originated from the conflict that had ravaged the country for decades.

He said that, in the same letter that had conveyed the request for help against piracy, the Transitional Federal Government of Somalia had also asked for help regarding the transition to a permanent Government, urging the Security Council to seriously consider such help. He, therefore, reiterated the call of the African Union for deployment of a United Nations peacekeeping operation and for United Nations support for African Union Mission in Somalia (AMISOM). In resolution 1814 (2008), the Council had committed itself to consider a peacekeeping operation to take over from AMISOM. He hoped the Council would also consider the second request the Government of Somalia had submitted.

The representative of France said the Somali pirates were a global threat. The international community must respond in line with international law and in particular with the Law of the Sea. It would be essential that in November the Council would extend the provisions of resolution 1816 (2008). He agreed that the Council must not lose sight of the situation in Somalia itself. The Council had asked the Secretary-General in November to offer recommendations on the matter, but that should not stop the Council from taking action now. Every day, the pirates were slowly killing the people of Somalia. It was therefore a matter of urgency to act now.

Indonesia’s representative said his country’s favourable vote reflected its concern over the threat posed by piracy, but such piracy was not a “stand-alone problem”. It was part of the instability of Somalia in general. He urged the international community to redouble its efforts to achieve stability in the country. He also stressed that the resolution must be seen as applying only to the situation at hand and did not establish new international law.

The representative of Italy joined other members in welcoming the resolution, expressing hope that it would spur new action to fight piracy for the benefit of Somalia and the entire international community. He also underlined the need, however, for the Council to address the entire crisis in Somalia with urgency.

The meeting started at 10:10 a.m. and adjourned at 10:30 a.m.

Resolution

The full text of resolution 1838 (2008) reads as follows:

“The Security Council,

“Recalling its resolutions 1814 (2008) and 1816 (2008),

“Gravely concerned by the recent proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and by the serious threat it poses to the prompt, safe and effective delivery of humanitarian aid to Somalia, to international navigation and the safety of commercial maritime routes, and to fishing activities conducted in conformity with international law,

“Noting with concern also that increasingly violent acts of piracy are carried out with heavier weaponry, in a larger area off the coast of Somalia, using long-range assets such as mother ships, and demonstrating more sophisticated organization and methods of attack,

“Reaffirming that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (“the Convention”), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities,

[PRESUMABLY, THE UNCLOS SANCTIONS, CONSISTENT WITH THE UN CHARTER, THE PAYMENT OF RANSOMS AS THE MOST EFFICIENT, HARMONIOUS AND PEACEFUL MEANS OF RESOLVING PIRACY ATTACKS THAT THREATEN THE ESSENCE OF INTERNATIONAL OCEAN-BORNE COMMERCE - FREEDOM OF NAVIGATION??]

“Commending the contribution made by some States since November 2007 to protect the World Food Programme (“WFP”) maritime convoys, and, the establishment by the European Union of a coordination unit with the task of supporting the surveillance and protection activities carried out by some member States of the European Union off the coast of Somalia, and the ongoing planning process towards a possible European Union naval operation, as well as other international or national initiatives taken with a view to implementing resolutions 1814 (2008) and 1816 (2008),

“Noting recent humanitarian reports that as many as three-and-a-half million Somalis will be dependent on humanitarian food aid by the end of the year, and that maritime contractors for the WFP will not deliver food aid to Somalia without naval warship escorts, expressing its determination to ensure long-term security of WFP deliveries to Somalia and recalling that it requested the Secretary-General in resolution 1814 (2008) to provide his support for efforts to protect WFP maritime convoys,

“Reaffirming its respect for the sovereignty, territorial integrity, political independence and unity of Somalia,

“Taking note of the letter dated 1 September 2008 of the President of Somalia to the Secretary-General of the United Nations expressing the appreciation of the Transitional Federal Government (“TFG”) to the Security Council for its assistance and expressing the TFG’s willingness to consider working with other States, as well as regional organizations, to provide advance notifications additional to those already provided, in accordance with paragraph 7 of resolution 1816 (2008), to combat piracy and armed robbery at sea off the coast of Somalia,

“Recalling that in the statement of its President dated 4 September 2008 (S/PRST/2008/33) it welcomed the signing of a peace and reconciliation agreement in Djibouti and commended the Special Representative of the Secretary-General for Somalia, Mr. Ahmedou Ould-Abdallah, for his ongoing efforts, and emphasizing the importance of promoting a comprehensive and lasting settlement in Somalia,

“Recalling also that in the statement of its President dated 4 September (S/PRST/2008/33) it took note of the parties’ request in the Djibouti Agreement that the United Nations, within a period of 120 days, authorize and deploy an international stabilization force and looking forward to the Secretary-General’s report due 60 days from its passage, in particular a detailed and consolidated description of a feasible multinational force, as well as a detailed concept of operations for a feasible United Nations peacekeeping operation,

“Emphasizing that peace and stability, the strengthening of State institutions, economic and social development and respect for human rights and the rule of law are necessary to create the conditions for a full eradication of piracy and armed robbery at sea off the coast of Somalia,

“Determining 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 against international peace and security in the region,

“Acting under Chapter VII of the Charter of the United Nations,

“1. Reiterates that it condemns and deplores all acts of piracy and armed robbery at sea against vessels off the coast of Somalia;

“2. Calls upon States interested in the security of maritime activities to take part actively in the fight against piracy on the high seas off the coast of Somalia, in particular by deploying naval vessels and military aircraft, in accordance with international law, as reflected in the Convention;

“3. Calls upon States whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to use on the high seas and airspace off the coast of Somalia the necessary means, in conformity with international law, as reflected in the Convention, for the repression of acts of piracy;

“4. Urges States that have the capacity to do so to cooperate with the TFG in the fight against piracy and armed robbery at sea in conformity with the provisions of resolution 1816 (2008);

“5. Urges also States and regional organizations, in conformity with the provisions of resolution 1814 (2008), to continue to take action to protect the World Food Programme maritime convoys, which is vital to bring humanitarian assistance to the affected populations in Somalia;

“6. Urges States, as requested in particular by International Maritime Organization resolution (“IMO”) A-1002(25), to issue to ships entitled to fly their flag, as necessary, advice and guidance on appropriate precautionary measures to protect themselves from attack or actions to take if under attack or the threat of attack when sailing in waters off the coast of Somalia;

“7. Calls upon States and regional organizations to coordinate their actions pursuant to paragraphs 3, 4 and 5 above;

“8. Affirms that the provisions in this resolution apply only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of member States under international law, including any rights or obligations under the Convention, with respect to any situation, and underscores in particular that this resolution shall not be considered as establishing customary international law;

“9. Looks forward to the report of the Secretary-General requested in paragraph 13 of resolution 1816 (2008) and expresses its intention to review the situation with respect to piracy and armed robbery at sea against vessels off the coast of Somalia with a view, in particular, upon the request of the TFG, to renewing the authority provided in paragraph 7 of resolution 1816 (2008) for an additional period;

“10. Decides to remain seized of the matter.”

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http://www.un.org/News/Press/docs/2008/sc9344.doc.htm

Security Council
SC/9344

Security Council
5902nd Meeting (PM)

2 June 2008

SECURITY COUNCIL CONDEMNS ACTS OF PIRACY, ARMED ROBBERY OFF SOMALIA’S COAST,
AUTHORIZES FOR SIX MONTHS ‘ALL NECESSARY MEANS’ TO REPRESS SUCH ACTS
Resolution 1816 (2008) Adopted Unanimously with Somalia’s Consent;
Measures Do Not Affect Rights, Obligations under Law of Sea Convention

Condemning all acts of piracy and armed robbery against vessels off the coast of Somalia, the Security Council this afternoon authorized a series of decisive measures to combat those crimes.
By the terms of resolution 1816 (2008), which was unanimously adopted today, the Council decided that the States cooperating with the country’s transitional Government would be allowed, for a period of six months, to enter the territorial waters of Somalia and use “all necessary means” to repress acts of piracy and armed robbery at sea, in a manner consistent with relevant provisions of international law.

The text was adopted with consent of Somalia, which lacks the capacity to interdict pirates or patrol and secure its territorial waters, following a surge in attacks on ships in the waters off the country’s coast, including hijackings of vessels operated by the World Food Programme and numerous commercial vessels -- all of which posed a threat “to the prompt, safe and effective delivery of food aid and other humanitarian assistance to the people of Somalia”, and a grave danger to vessels, crews, passengers and cargo.

Affirming that the authorization provided in the resolution applies only to the situation in Somalia and shall not affect the rights and obligations under the Law of the Sea Convention, nor be considered as establishing customary international law, the Council also requested cooperating States to ensure that anti-piracy actions they undertake do not deny or impair the right of innocent passage to the ships of any third State.

While urging States, whose naval vessels and military aircraft operate on the high seas and airspace of the coast of Somalia to be vigilant, the Council encouraged States interested in the use of commercial routes off the coast of Somalia to increase and coordinate their efforts to deter attacks upon and hijacking of vessels, in cooperation with the country’s Government. All States were urged to cooperate with each other, the International Maritime Organization (IMO) and, as appropriate, regional organizations and render assistance to vessels threatened by or under attack by pirates.

Speaking prior to action on the draft, Indonesia’s representative emphasized the need for the draft to be consistent with international law, particularly the 1982 United Nations Convention on the Law of the Sea, and to avoid creating a basis for customary international law for the repression of piracy and armed robbery at sea. Actions envisaged in the resolution should only apply to the territorial waters of Somalia, based upon that country’s prior consent. The resolution addressed solely the specific situation off the coast of Somalia, as requested by the Government.

Speaking after the vote, Viet Nam’s representative said the resolution should not be interpreted as allowing any actions in the maritime areas other than Somalia’s or under conditions contrary to international law and the Law of the Sea Convention.

The representative of Libya said he had voted in favour of the draft on the understanding that the resolution related only to acts of piracy in the maritime areas under jurisdiction of Somalia.
South Africa’s representative said that it was necessary to be clear that it was the situation in Somalia that constituted a threat to international peace and security and not sea piracy in itself.

Furthermore, the resolution must respect the Law of the Sea Convention, which remained the basis for cooperation among States on the issue of piracy. The Council should not lose focus on the larger situation in the country, most importantly the need to address the political, security and humanitarian situation on the ground.

China’s representative said that the Council’s actions should facilitate international assistance in combating piracy and avoid negative consequences. Such assistance should be based on the wishes of the Government and be applied only to the territorial waters of Somalia. It must comply with the Law of the Sea Convention and must not constitute conflict with existing international legislation. The resolution adopted today responded to those requirements to the greatest extent possible.

The meeting was called to order at 3:15 p.m. and adjourned at 3:40 p.m.

Background

The Security Council met this afternoon to consider the situation in Somalia. It had before it a draft resolution (document S/2008/351) sponsored by Australia, Canada, Denmark, France, Greece, Italy, Japan, Netherlands, Norway, Panama, Republic of Korea, Spain, United Kingdom and the United States, which reads as follows:

“The Security Council,

“Recalling its previous resolutions and the statements of its President concerning the situation in Somalia,

“Gravely concerned by the threat that acts of piracy and armed robbery against vessels pose to the prompt, safe and effective delivery of humanitarian aid to Somalia, the safety of commercial maritime routes and to international navigation,

“Expressing its concerns at the quarterly reports from the International Maritime Organization (IMO) since 2005, which provide evidence of continuing piracy and armed robbery in particular in the waters off the coast of Somalia,

“Affirming that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (“the Convention”), sets out the legal framework applicable to combating piracy and armed robbery, as well as other ocean activities,

“Reaffirming the relevant provisions of international law with respect to the repression of piracy, including the Convention, and recalling that they provide guiding principles for cooperation 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, including but not limited to boarding, searching, and seizing vessels engaged in or suspected of engaging in acts of piracy, and to apprehending persons engaged in such acts with a view to such persons being prosecuted,

“Reaffirming its respect for the sovereignty, territorial integrity, political independence and unity of Somalia,

“Taking into account the crisis situation in Somalia, and the lack of capacity of the Transitional Federal Government (TFG) to interdict pirates or patrol and secure either the international sea lanes off the coast of Somalia or Somalia’s territorial waters,

“Deploring the recent incidents of attacks upon and hijacking of vessels in the territorial waters and on the high seas off the coast of Somalia including attacks upon and hijackings of vessels operated by the World Food Programme and numerous commercial vessels and the serious adverse impact of these attacks on the prompt, safe and effective delivery of food aid and other humanitarian assistance to the people of Somalia, and the grave dangers they pose to vessels, crews, passengers, and cargo,

“Noting the letters to the Secretary-General from the Secretary-General of the IMO dated 5 July 2007 and 18 September 2007 regarding the piracy problems off the coast of Somalia and the IMO Assembly resolution A.1002 (25), which strongly urged Governments to increase their efforts to prevent and repress, within the provisions of international law, acts of piracy and armed robbery against vessels irrespective of where such acts occur, and recalling the joint communiqué of the IMO and the World Food Programme of 10 July 2007,

“Taking note of the Secretary-General’s letter of 9 November 2007 to the President of the Security Council reporting that the Transitional Federal Government of Somalia (TFG) needs and would welcome international assistance to address the problem,

“Taking further note of the letter from the Permanent Representative of the Somali Republic to the United Nations to the President of the Security Council dated 27 February 2008, conveying the consent of the TFG to the Security Council for urgent assistance in securing the territorial and international waters off the coast of Somalia for the safe conduct of shipping and navigation,

“Determining 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,

“Acting under Chapter VII of the Charter of the United Nations,

“1. Condemns and deplores all acts of piracy and armed robbery against vessels in territorial waters and the high seas off the coast of Somalia;

“2. Urges States whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to be vigilant to acts of piracy and armed robbery and, in this context, encourages, in particular, States interested in the use of commercial maritime routes off the coast of Somalia, to increase and coordinate their efforts to deter acts of piracy and armed robbery at sea in cooperation with the TFG;

“3. Urges all States to cooperate with each other, with the IMO and, as appropriate, with the relevant regional organizations in connection with, and share information about, acts of piracy and armed robbery in the territorial waters and on the high seas off the coast of Somalia, and to render assistance to vessels threatened by or under attack by pirates or armed robbers, in accordance with relevant international law;

“4. Further urges States to work in cooperation with interested organizations, including the IMO, to ensure that vessels entitled to fly their flag receive appropriate guidance and training on avoidance, evasion, and defensive techniques and to avoid the area whenever possible;

“5. Calls upon States and interested organizations, including the IMO, to provide technical assistance to Somalia and nearby coastal States upon their request to enhance the capacity of these States to ensure coastal and maritime security, including combating piracy and armed robbery off the Somali and nearby coastlines;

“6. Affirms that the measures imposed by paragraph 5 of resolution 733 (1992) and further elaborated upon by paragraphs 1 and 2 of resolution 1425 (2002) do not apply to supplies of technical assistance to Somalia solely for the purposes set out in paragraph 5 above which have been exempted from those measures in accordance with the procedure set out in paragraphs 11 (b) and 12 of resolution 1772 (2007);

“7. Decides that for a period of six months from the date of this resolution, States cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary General, may:

(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery;

“8. Requests that cooperating States take appropriate steps to ensure that the activities they undertake pursuant to the authorization in paragraph 7 do not have the practical effect of denying or impairing the right of innocent passage to the ships of any third State;

“9. Affirms that the authorization provided in this resolution applies only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under the Convention, with respect to any other situation, and underscores in particular that it shall not be considered as establishing customary international law, and affirms further that this authorization has been provided only following receipt of the letter from the Permanent Representative of the Somalia Republic to the United Nations to the President of the Security Council dated 27 February 2008 (S/2008/XXX) conveying the consent of the TFG;

“10. Calls upon States to coordinate their actions with other participating States taken pursuant to paragraphs 5 and 7 above;

“11. Calls upon all States, and in particular flag, port and coastal States, States of the nationality of victims and perpetrators or piracy and armed robbery, and other States with relevant jurisdiction under international law and national legislation, to cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia, consistent with applicable international law including international human rights law, and to render assistance by, among other actions, providing disposition and logistics assistance with respect to persons under their jurisdiction and control, such victims and witnesses and persons detained as a result of operations conducted under this resolution;

“12. Requests States cooperating with the TFG to inform the Security Council within 3 months of the progress of actions undertaken in the exercise of the authority provided in paragraph 7 above;

“13. Requests the Secretary-General to report to the Security Council within 5 months of adoption of this resolution on the implementation of this resolution and on the situation with respect to piracy and armed robbery in territorial waters and the high seas off the coast of Somalia;

“14. Requests the Secretary-General of the IMO to brief the Council on the basis of cases brought to his attention by the agreement of all affected coastal States, and duly taking into account the existing bilateral and regional cooperative arrangements, on the situation with respect to piracy and armed robbery;

“15. Expresses its intention to review the situation and consider, as appropriate, renewing the authority provided in paragraph 7 above for additional periods upon the request of the TFG;

“16. Decides to remain seized of the matter.”

Statements

Speaking prior to the vote, HASAN KLEIB (Indonesia) said that his country fully supported the request of Somalia -- as reflected in the Transitional Government’s letter to the President of the Council -- for international assistance in its efforts to address the acts of piracy and armed robbery against ships off the coast of Somalia. In drafting a positive response to Somalia’s request, Indonesia had been guided by the need for the draft to be consistent with international law, particularly the United Nations Convention on the Law of the Sea, and would not envisage any modification of the existing carefully balanced law. Also, the text should not become a basis of customary international law for the repression of piracy and armed robbery at sea. Actions envisaged in the resolution shall only apply to the territorial waters of Somalia, based upon that country’s prior consent. The draft resolution must address solely the specific situation off the coast of Somalia, as requested by the Government.

Like Somalia and most Members of the United Nations, Indonesia was a faithful party to the Law of the Sea Convention and had a legal obligation to preserve the rights, obligations and responsibilities of Member States derived from it. Those had been carefully negotiated, in order to ensure, in a balanced manner, the interests of coastal and user States. Thus, it was his duty to voice strong reservations if there were actions envisioned by the Council, or any other forum, that could lead to modification, rewriting or redefining the Convention. Ample safeguards were needed. He was pleased that those considerations had materialized in the formulation of operative paragraph 9, which stated that “the authorization provided in this resolution … shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under the Convention, … and … it shall not be considered as establishing customary international law.” It was in the interests of all that existing laws and norms not be violated when taking steps against illegal or criminal acts.

Continued political instability in the country had led to the inability of its law enforcement to maintain stability and security, he continued. That situation also extended to the waters off the coast of Somalia. Thus, Somalia’s unique situation required an exceptional measure by the international community to deal with the problem of piracy and armed robbery against vessels.

In that regard, the request and consent from the Somali Government served as the legal basis for the Council to formulate appropriate responses within the parameter of international law, in particular the Law of the Sea Convention.

Piracy and armed robbery at sea could affect the safety of international navigation, but the Council needed to exercise caution in trying to address such acts in other parts of the globe. He was pleased that such caution was exercised in operative paragraph 14, which requested the Secretary-General of the International Maritime Organization (IMO) to brief the Council on the basis of cases brought to his attention by the agreement of all affected coastal States, and duly taking into account the existing bilateral and cooperative arrangement, on the situation with respect to piracy and armed robbery. That caution undoubtedly reflected the Council’s commitment to uphold international law, in spirit and in letter. The principles of respect for sovereignty and territorial integrity enshrined in the Charter had to be espoused by the Council at all times. In exercising its mandate in the maintenance of international peace and security, it was possible to do so without having to challenge the integrity of international law. Those two objectives were mutually reinforcing and not exclusive.

As it stood now, the text had accommodated those two fundamental principles, he said. Those were about consistency with the Law of the Sea Convention and the specific situation of piracy and armed robbery off the coast of Somalia. After all, the text, first and foremost, was about Somalia. It was about how the Council, together with the international community, could assist Somalia to fight the crime. The text would ensure that Somalia would be the beneficiary of common efforts. His delegation was now ready to support the draft.

The Council then unanimously adopted resolution 1816 (2008).

After the vote, HOANG CHI TRUNG ( Viet Nam) said his country was fully committed to fight against piracy under the provisions of international law and the 1982 United Nations Convention on the Law of the Sea. The resolution adopted should not be interpreted as allowing any actions taken in the maritime areas other than Somalia’s, or under conditions contrary to international law and the Law of the Sea Convention.

IBRAHIM O.A. DABBASHI ( Libya) said his delegation had voted in favour of the draft on the understanding that the resolution related only to acts of piracy in the maritime areas under jurisdiction of Somalia.

BASO SANGQU ( South Africa) welcomed the adoption of the text and said that in negotiating and agreeing on the resolution, his delegation had been guided by the fact that the text limited itself to the situation in Somalia. It was necessary to be clear that it was the situation in Somalia that constituted a threat to international peace and security, and not piracy in itself. Sea piracy was a symptom. Furthermore, the resolution must respect the Law of the Sea Convention, which remained the basis for cooperation among States on the issue of piracy. The Council should not lose focus on the larger situation in the country, most importantly the need to address the political, security and humanitarian situation on the ground.

He welcomed the adoption of resolution 1814 (2008) last month, which provided a signal to the people of Somalia that the international community was serious about assisting them in resolving their conflict. As provided in 1814, the Council was willing to consider, at the appropriate time, a peacekeeping operation to take over from the African Union Mission in Somalia, once there was progress in the political process and improvement in the security situation on the ground. He was pleased that the Council’s visit to Africa had begun with a discussion in Djibouti with key parties in Somalia. He hoped the visit would provide impetus to the ongoing international efforts to resolve the conflict in Somalia.

LA YIFAN ( China) said that his country had always respected the sovereignty, independence and territorial integrity of countries and supported the national reconciliation process in Somalia, which was trying to achieve peace and stability after 17 years of conflict. The Council’s visit to Africa had fully demonstrated the importance its members attached to the situation in Somalia.

The rise of piracy off the coast of that country constituted a great threat to its peace process and international efforts for humanitarian relief. Somalia had asked for assistance in combating piracy, and the international community was widely supportive of that request. The Council had authorized Member States to assist the Government in combating piracy, and China supported prompt adoption of the text.

The issue of piracy was closely related to the rights and obligations in the oceans, and the Council had to act with great prudence, he continued. Its actions should facilitate international assistance in combating piracy and avoid negative consequences. Such assistance should be based on the wishes of the Government and applied only to the territorial waters of Somalia, not expanding to other regions. It must comply with the Law of the Sea Convention and must not constitute conflict with existing international legislation. The resolution adopted today responded to those requirements to the greatest extent possible. It was both positive and prudent, and China had voted in favour of the draft.

In the course of its application, various problems might come up and might require international cooperation, he added. The piracy should not be seen as a stand-alone issue, but as an expression of the situation in the country. The international community should focus on removing the root causes of the current situation in Somalia. China was ready to join others in the continued effort to achieve peace and stability in that country.

ITSSD to Sarah Palin: Arctic Race Notwithstanding, UNCLOS Must Be Thoroughly Vetted & Perhaps Renegotiated BEFORE the U.S. Decides to Ratify It

noreply@blogger.com (ITSSD Charitable Mission) — Wed, 15 Oct 2008 22:19:00 +0000

http://globalsolutions.org/files/general/Palin_LOS_Letter.pdf

See: Letter Dated September 13, 2007 from Alaska Governor Sarah Palin to the Honorable Ted Stevens and Lisa Murkowski, Alaska's U.S. Senators, Declaring Support for U.S. Ratification of the UN Law of the Sea Convention

Dear Sarah Palin and US Senator Lisa Murkowski, does the United States really need this type of 'seat at the table' to project American interests, influence and power in the Arctic?

See: Cliff Kincaid, Bush’s Toilet Bowl Treaty, Canadian Free Press (Oct. 30, 2007), at: http://www.canadafreepress.com/index.php/article/430 ].

[You should consider this question in light of the Bush administration's efforts to enter into a quid pro quo with Europe regarding the UNCLOS during 2007. See Lawrence A. Kogan, UNCLOS Alchemy, ITSSD Journal on the UN Law of the Sea Convention (Oct. 2007), at: http://itssdjournalunclos-lost.blogspot.com/2008/01/unclos-alchemy.html ].

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http://www.usnews.com/articles/news/world/2008/10/09/global-warming-triggers-an-international-race-for-the-artic.html
Global Warming Triggers an International Race for the Arctic

As the ice melts, national rivalries heat up over oil and gas deposits and shipping routes

By Thomas Omestad

US News & World Report

Posted October 9, 2008

A new epoch is beginning at the top of the Earth, where the historic melting of the vast Arctic ice cap is opening a forbidding, beautiful, and neglected swath of the planet. Already, there is talk that potentially huge oil and natural gas deposits lie under the Arctic waters, rendered more accessible by the shrinking of ice cover. Valuable minerals, too. Sea lanes over the top of the world will dramatically cut shipping times and costs. Fisheries and tourism will shift northward. In short, the frozen, fragile north will never be the same.

The Arctic meltdown—an early symptom of global warming linked to the buildup of atmospheric greenhouse gases—heralds tantalizing prospects for the five nations that own the Arctic Ocean coastline: the United States, Canada, Russia, Norway, and Denmark (through its possession of Greenland).

But this monumental transformation also carries risks quite aside from the climate implications for the planet—risks that include renewed great-power rivalry, pollution, destruction of native Inuit communities and animal habitats, and security breaches. "The world is coming to the Arctic," warns Rob Huebert, a leading Arctic analyst at the University of Calgary. "We are headed for a lot of difficulties."

The vast stakes, along with some political grandstanding, are inspiring predictions that a new great game among nations is afoot—a tense race for the Arctic. That scenario got a shot of drama last year when two Russian minisubmarines made a descent to the seabed beneath the North Pole and planted a titanium Russian flag. The operation lacked any legal standing but symbolized Moscow's claims to control the resources inside a mammoth slice of the Arctic, up to the North Pole itself. To calm the mood, the five Arctic coast countries gathered diplomats in Greenland this May to agree that boundary and other disputes would be handled peacefully under existing international law. "We have politically committed ourselves to resolve all differences through negotiation," Danish Foreign Minister Per Stig Möller said at the time. "The race for the North Pole has been canceled."

Or maybe just put on ice, so to speak. It is not certain that his assertion will hold up, given the long history of great powers vying for riches and strategic gain.

This summer, for the first time, both the fabled Northwest Passage through the upper reaches of North America and the Northern Sea Route above Russia opened up, apart from drifting ice. Overall, the expanse of Arctic sea ice was the second smallest in the 30 years of monitoring (summer 2007 was the smallest), and that left an islandlike polar ice cap surrounded by open water. In just the past five years, summer ice has shrunk by more than 25 percent, and so has its average thickness. One consequence of this change is that much of the sun's heat formerly reflected back out to space by the ice sheets is now being absorbed, entrenching the warming process. The acceleration of the ice melt is outstripping earlier predictions of a basically ice-free Arctic summer by mid- or late century. NASA climate scientist H. Jay Zwally now anticipates that most of the Arctic will lose summer ice in only five to 10 years. "We appear to be going through a tipping point," he says.

Already, the ice melt is threatening the traditional livelihoods of native Inuit peoples from Alaska to Greenland. In Alaska, Inuit hunting has grown more difficult because walrus herds have moved away with the receding ice. In Greenland, where glaciers are thawing, similar dislocations are happening, even while commercial interests undertake a "new gold rush" for natural resources, in the words of Inuit leader Aqqaluk Lynge. The Inuits want more say in how the High North is developed. "You have to settle things with us," says Lynge. "We are witnessing, almost, the death of our culture if we don't do anything."

And yet the changing Arctic is yielding big commercial opportunities. This summer, the U.S. Geological Survey estimated that the area above the Arctic Circle, which covers 6 percent of the Earth's surface, holds 13 percent of its as-yet-undiscovered oil and 30 percent of undiscovered natural gas—most offshore, not on land.

Energy companies are intrigued. Royal Dutch Shell, for instance, laid down $2 billion this year for drilling leases in the Chukchi Sea off of Alaska. BP will drop $1.5 billion to develop an offshore Alaskan oil field, and Exxon Mobil and Imperial Oil of Canada bid $600 million for an exploratory area on the Canadian side of the Beaufort Sea.

Oil hunt.

Last year, Norway's StatoilHydro showed that marauding ice packs and perilous cold could be overcome, launching the first commercial energy operation in Arctic waters. Norwegian tankers are now transporting liquefied gas from the Snow White field, 90 miles above the Norwegian shore, to Maryland's Cove Point Terminal, from which it is piped to consumers on the East Coast. With the development of new technologies, like production gear that sits on the bottom of the sea and reinforced tankers that can move bow-first in open water or stern-first to break through ice, the energy industry is readying itself for the Arctic age. "Technology will not hold up Arctic resource development," says Geir Utskot, an Arctic executive for Schlumberger Oilfield Services.

Fortunes may be made in other pursuits as well. The Arctic ice melt will expose mining opportunities for commodities from diamonds and gold to nickel, copper, and chromium. Sea temperature shifts could prompt some fish stocks to migrate to Arctic waters newly accessible to fishing vessels. Those vessels won't be the only ones heading north. Global cargo shipping could change radically because of newly usable Arctic sea lanes. Sailing over the top of the world could cut up to half the current shipping distance between East Asian ports and Europe or the eastern United States, providing an enormous saving in fuel costs and transit time.

Arctic tourism could also flourish. Chuck Cross, president of Bend, Ore.-based Polar Cruises, joined about 100 of his customers in June on the Russian nuclear icebreaker 50 Years of Victory. It set out from Murmansk, in Russia, to the North Pole; thinning ice made the journey a fast one. At the pole, they disembarked to picnic on the ice, though after some difficulty. "We had to maneuver around for more than half an hour because we couldn't find any ice big enough for those hundred people to get off the ship safely," he says.

The nations in the new Arctic game have also been maneuvering for position. All five either have mapped or are mapping the outward extensions of their continental shelves. That painstaking and expensive science is critical to making economic claims. The key piece of international law in the Arctic is the United Nations Convention on the Law of the Sea. The United States, though not yet a signatory, is acting as though it will be.

[BUT, THE U.S. CONGRESS & THE ADMINISTRATION HAVE YET TO UNDERTAKE SUFFICIENT DUE DILIGENCE TO ASCERTAIN HOW THE TREATY'S 45 plus ENVIRONMENTAL REGULATORY PROVISIONS, ANNEXES, REGULATIONS & PROTOCOLS CAN BE USED TO IMPAIR SUCH ECONOMIC ACTIVITIES, AND SERVE TO BIND AMERICANS RESIDING AND CONDUCTING BUSINESS IN THE REMAINING 49 U.S. STATES!]

Under the treaty, a panel of specialists issues recommendations on where shelves end and international seabeds begin. States are entitled to exclusive economic rights to the sea and what lies underneath for up to 200 nautical miles off their coasts. The area of economic control can be extended if the continental shelf is shown to range farther.

There is much in dispute.

The United States and Canada will most likely make overlapping claims on their shelves, as will Norway and Russia. But the biggest problem may arise from a 1,240-mile underwater mountain range called the Lomonosov Ridge, which runs from Siberia to Greenland and Canada. All three may claim it as the natural extension of their homelands. In addition, the Arctic is rife with disagreements over boundaries and maritime passages. Canada and the United States cannot agree over their maritime boundary in the Beaufort Sea, nor on the status of the Northwest Passage. Canada considers the passage internal, while the United States and others view it as an international strait.

Russia has not ratified a previous treaty fixing its maritime frontier with the United States near the Alaska coast.

Canada and Denmark disagree over ownership of rocky Hans Island, and Norway and Russia differ over drawing a line in the Barents Sea.

"All the ingredients," says Scott Borgerson, an Arctic expert with the Council on Foreign Relations, "are present to create an unstable situation."

Russian maneuvers.

Amid that uncertainty, the Arctic nations are growing more assertive—especially the two with the longest Arctic frontage, Russia and Canada. The Russian flag-planting—dismissed as "a stunt" by U.S. and other officials—appealed to the nationalist mood in Russia, with the feat likened to the American moonshot of 1969. Asserted the expedition's leader, explorer and parliamentarian Artur Chilingarov, "The Arctic is ours." The Russian show drew poor reviews elsewhere, though, especially in Canada. "This isn't the 15th century," retorted then Foreign Minister Peter MacKay. "You can't go around the world and just plant flags and say, 'We're claiming this territory.' "

Russian officials say it was not a claim but rather part of a research voyage to chart the continental shelf. But Moscow's ambitions for the Arctic are raising anxieties. Last month, Russian President Dmitry Medvedev convened his Security Council to discuss the "strategically important" Arctic. He called for a law to set Russia's southern Arctic zone and described the pursuit of Russian interests there as a "duty to our descendants." With more than 20 icebreakers, seven powered by atomic reactors, Russia has unparalleled capabilities in the Arctic. "Geographically, they're far and away the dominant force up there," says Arctic expert Borgerson, a former Coast Guard officer. Russia conducted two scientific expeditions in the Arctic this past summer and has stepped up naval activity there. Its strategic bombers and reconnaissance planes have also flown over Arctic waters near Alaska, Canada, and Norway.

In Canada, meanwhile, the government has also struck a tough tone, appealing to nationalist sensitivities. That tack has political benefit, especially as the ruling conservatives stand for re-election this month. A strand of the Canadian identity has always revered the great white north: "The true North, strong and free! From far and wide, O Canada, we stand on guard for thee," goes the country's national anthem.

After the Russian flag planting, Ottawa seemed primed to take up the challenge. " 'Use it or lose it' is the first principle of sovereignty in the Arctic," says Prime Minister Stephen Harper. He has portrayed the region as a key to future Canadian prosperity. His government has decided to double, to 200 nautical miles from the coast, its jurisdiction over shipping and plans to spend $100 million on geomapping over the next five years. On the military side, it is running annual Arctic "sovereignty exercises" and will establish a cold-weather training center at Resolute Bay and a deep-water port. Canada's Navy will also acquire eight more ice-strengthened patrol ships.

The United States, for its part, has not acted with the same urgency.

"We are behind when it comes to what is happening with our other Arctic neighbors," says Republican Sen. Lisa Murkowski of Alaska. The lagging begins with the Law of the Sea convention. Despite Bush administration support, Senate ratification of the 1982 treaty remains blocked by conservative Republicans fearful that the treaty will give away American sovereignty.

The other four Arctic coastal states have adopted the convention and are eligible to file their claims for economic control. The Pentagon has also appeared slow to focus on the region. The U.S. Coast Guard maintains just two working icebreakers, with another docked until repairs are authorized. The question of expanding the icebreaker force has been left unanswered, while a broader, interagency review of Arctic policy has continued for nearly two years. A new national security policy directive is nearing completion.

[THIS IS A FALSE 'STRAW MAN' PRETENSE FOR THE CLAIM THAT U.S. RATIFICATION OF THE UNCLOS IS NECESSARY IN ORDER TO PARTICIPATE IN THE RULE & PRACTICE-MAKING NOW CALLED FOR. LEGAL SCHOLARS HAVE IDENTIFIED HOW THE U.S. COULD ALSO FILE CLAIMS FOR ECONOMIC CONTROL OF AN EXTENDED CONTINENTAL SHELF WITHOUT HAVING TO RATIFY THE UNCLOS. ALL THAT IS NECESSARY IS FOR THE U.S. CONGRESS TO AGREE THAT ROYALTY FEES WILL BE PAID BY THE U.S. GOVERNMENT TO THE UNITED NATIONS INTERNATIONAL SEABED AUTHORITY FOR THE ABILITY TO DRILL ON THE OUTSIDE CONTINENTAL SHELF. THE UNITED NATIONS IS DESPERATELY IN NEED OF FUNDS - IT IS HIGHLY UNLIKELY THAT IT WOULD TURN DOWN SUCH A GRACIOUS OFFER.]

[See: Lawrence A. Kogan, Artic Escapades: Can the Precautionary Principle Be Invoked Via the UNCLOS to Undermine U.S. Polar Interests, Presentation Made at the National Defense University and Forces Transformation and Resources Seminar, Transforming National Security: Unfrozen Treasures - National Security, Climate Change and the Arctic Frontier, Panel on the Laws of the Sea: Changing Air, Land and Sea Routes (May 14, 2008), at: http://www.itssd.org/Programs/KOGANIII.ppt ; Lawrence A. Kogan, At Issue: Should the U.S. Ratify the UN Law of the Sea Convention?, CQ Global Researcher, Vol. 2, No. 8 (Aug. 2008), at p. 235, at: http://www.itssd.org/CQ_Arctic.pdf .]

Still, the United States did begin continental-shelf mapping around Alaska last year and this, turning up evidence that the U.S. continental shelf claim may extend north of Alaska by at least 600 nautical miles. The CIA is said to be analyzing Russian Arctic activities closely, and the National Geospatial-Intelligence Agency has delivered to the Coast Guard a sophisticated model of the Lomonosov Ridge and the High Arctic. The Coast Guard set up a temporary base this past summer at Point Barrow, Alaska, and tested operating in the Arctic. The service's commandant, Adm. Thad Allen, emphasizes the need to prepare for handling oil-spill cleanups and tourist-ship rescues and for policing ship traffic in remote seas. But the resources are lacking. "There's water up there where there didn't use to be, and I'm responsible for it," he says.

U.S. and other diplomats insist that the Arctic will not become a new Wild North, where resource rivalries, backed by armed forces, play out. "No nation has said they will take matters into their own hands," assures Norwegian diplomat Karsten Klepsvik. The Arctic, too, has long had a tradition of cross-national cooperation on science. A Russian icebreaker, for instance, cleared a path for a Danish mapping voyage. Canadian and U.S. ships and researchers teamed up last month to explore the very sea bottom that might be disputed.

Those are certainly hopeful notes. But however it goes, Washington remains unready for the new age of the Arctic.

"I believe it is a race," says Mead Treadwell, an Anchorage businessman who chairs the U.S. Arctic Research Commission, a federally appointed advisory group. "This is a time in human history when rules and practices for the Arctic will be set. If we ignore this opportunity, we may not be happy with the result." It is pretty clear, though, that ignoring the High North will not be an option.

[IF THE NEXT U.S. CONGRESS & A FUTURE ADMINISTRATION WISH TO PARTICIPATE IN ESTABLISHING & ENFORCING THE 'RULES AND PRACTICES OF THE GAME' - THOSE THAT WILL GOVERN ALL ACTIVITIES IN THE ARCTIC, VIA THE UNCLOS, THEN THEY BETTER BE PREPARED TO ENSURE THAT THE RULES WILL NOT BE USED AGAINST THEM AND THE AMERICAN PEOPLE. THAT MEANS LETTING THE WORLD KNOW THAT THE USE OF EUROPE'S EXTRA-WTO PRECAUTIONARY PRINCIPLE WILL NOT BE TOLERATED UNDER THE UNCLOS REGIME FOR GOVERNING LAND, AIR or SEA-BASED SOURCES OF POLLUTION IN & AROUND THE ARCTIC. FURTHERMORE, THE U.S. MUST RECOGNIZE THAT IT DOES NOT HOLD AN ABSOLUTE VETO IN THE UNITED NATIONS INTERNATIONAL SEABED AUTHORITY ASSEMBLY and/or COUNCIL. IT ONLY POSSESSES THE ABILITY TO INFLUENCE A VOTING BLOC THAT IT IS ABLE TO ASSEMBLE - BUT THERE ARE NO GUARANTEES IN THIS REGARD.]

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Reader Comments

Anthropogenic Global Warming Theory Trashes the Scientific Method

Omestad claims recent melting is historic and unprecendented. It is neither. In 2006 scientists discovered evidence in seabed core samples showing the Arctic was TROPICAL in its past. The core samples show fluctuating warm and cold periods throughout the Arctic's history. Ice ages followed by interglacial periods. We're in an interglacial period right now. Anthropogenic global warming (AGW) alarmists never use data before the 1970s since it doesn't compliment their agenda. Furthermore, there is no runaway global warming.

Avg. global temps. are about the same now as they were a century ago. Over the past century temperatures oscillated up and down slightly with no net gain. The slight warming since the 1970s (a rise of about 0.6 degrees Celsius) was erased completely in 2007. Could it be that something other than CO2 drives climate? Perhaps the sun and the oceans? If the media did its job it would find mountains of evidence that the cycles of the sun and oceans drive Earth's climate. Why do AGW alarmists ignore the sun, the solar system's ultimate source of energy, and its connections to the oceans.

The oceans are still not understood completely, but it is understood that they store and release vast amounts of energy. Never mentioned by AGW alarmists are things like the Pacific Decadal Oscillation (PDO) and the Atlantic Multidecadal Oscillation (AMO). Let's look at the PDO. Discovered by Don Easterbrook and confirmed by NASA, the PDO shifts between cool and warm phases every 20-30 years. From the late 1970s to the late 1990s the PDO was in a warm phase. During PDO warm phases the El Nino warming phenomenon dominates world weather making climate warmer. A strong temperature spike in 1998 coincides with a potent El Nino and a very active sun that year. How can this be ignored?

Now the PDO has shifted to its cool phase and guess what? The sun is quiet. Hardly any sunspots. Not one sunspot in August 2008. During PDO cool phases, La Nina dominates world weather making climate cooler. La Nina dominated in 2007 and the planet cooled. Climate is cyclic and CO2 is a minor factor. CO2 is an essential trace gas that makes up about 0.037 percent of all greenhouse gases. Man's contribution to CO2 is a fraction of that. And we're to believe CO2 overrides the energy of the sun and the oceans?

The wild predictions of climate chaos caused by CO2 are not coming true. Temps are not rising. Sea levels are not rising. How do we know that natural processes are not melting Arctic ice? We don't. Climate science is far from settled. Consensus hasn't been reached. To claim the science is settled is anti-science. AGW alarmists spit on the scientific method by ignoring any evidence that contradicts it. Questioning AGW is heresy. It's more religion than science. So many scientists are skeptics. So much evidence contrary to AGW is available. The media won't dare print it, so you have to find it yourself. When politicians claim the science is settled it's time to ask questions.
Josh of Oct 09, 2008 15:45:48 PM [permalink] [report comment]

Gloabl warming scare affects the global economy
Imagine if all the focus, energy and money spent on "saving the planet" and instead focused on more important Global issues such as endemic hunger. Wouldnt we all be better off
mike of MAOct 14, 2008 12:45:19 PM [permalink] [report comment]

No-man's Land
IT BELONGS TO SANTA.
LEAVE IT ALONE.
F of PAOct 14, 2008 16:16:14 PM [permalink] [report comment]

Planetary Cycles yes and global warming yes

There is global warming as measured by numerous studies. There is also the impression there is no warming. It depends on the scope of your data. Global conditions average out to be almost null as pointed out in Josh's response. Locally however, dramatic differences can be seen as in the ice cap melting. Yes, there are many cycles and periods of temperature climb and decent in our history. Yes, we do not understand all there is to understand, but that does not make us wrong or ignorant. Climate is an energy system. The system ocillates between extreems. The more energy we put in the bigger the extreems. Basically, you may never find evidence of warming by looking at averages but you may find it at the fringes, at the extreems. Bigger and more numerous hurricanes, tornadoes, drought and rainfall. Whatever weather you have is just going to get more interesting. The question is, how interesting do you want it to get?
Dean of OROct 14, 2008 18:05:23 PM [permalink] [report comment]

global strategy

To deal with global warming, the government needs to immediately plant more trees, and stop cutting them down. It is a major problem they need to deal with. The importance of trees has been understated by "scientists" that truly don't understand the relevance of trees. Don't criticize the importance of the concept until you know all the facts. On top of deforestation, we are polluting the environment. Another contributing factor is modern day energy systems rely on explosion rather than implosion, and this generates heat. Every systems need to be more efficient and work on implosion, so they stay cool. The non-profit energy research organization at http://www.universalsymbiosis.org (also http://www.genuinewinner.com) is active in these areas which will help reverse effects of global warming.

I suggest everyone also read "Living Energies" by Callum Coats which explains the work of Victor Schauberger and the importance of trees to our planet. Don't rely on information from the authorities as their advisors don't fully understand the life cycle of the planet. We need to push the authorities to develop forest management and sustainability plans, and this will solve at least part of the problem. Global strategy of CAOct 15, 2008 17:23:28 PM [permalink] [report comment]

The Environmentally Focused UN Law of the Sea Treaty is a Threat to U.S. Private Property Rights

noreply@blogger.com (ITSSD Charitable Mission) — Wed, 10 Sep 2008 16:18:00 +0000

http://prfamerica.org/speeches/11th/LawOfTheSeaTreaty.html

The Proposed Law of the Sea Treaty: A Threat to Private Property Rights

By Lawrence Kogan

Delivered at the Eleventh Annual National Conference on Private Property Rights of the Property Rights Foundation of America

October 13, 2007

Thank you, Carol, for inviting me to attend your Eleventh Annual Conference. Last year I tried to convey the national and the international effects of a growing wave of socialist conduct that seems to be emanating from Europe. It definitely has a direct impact on everybody in this room as well as others who are not in attendance.

The Law of the Sea Treaty—I would like to begin by addressing a few different concepts that I think are inherent in the treaty. First of all, you can’t just focus anymore on what occurs locally because what is local may be global. And what you see injected into discussion in bills in municipal and state legislatures may not be thoughts that originated in your local county or municipal or state level officials’ mind. There’s a lot of interchange of ideas. You have judges going overseas sharing their interesting thoughts with other judges about the way law should be, not the way it is. You have legislators going across the big pond from Europe and from Washington and bellowing about all different types of issues and their suggested cures. Having recently spoken with the current President of the Czech Republic, Vaclav Klaus, whom I met in New York shortly after his speech at the United Nations General Assembly this September, one of the key things I learned was that all the research that I have been doing for the last four to five years is actually on the mark.

There is a trend in Europe based upon their notion of rights—versus our notion of rights—that looks to control pretty much everybody’s economic life. This is a vestige of socialism, Marxism, which is now “soft socialism.” You can barely see it because they try to hide it. It is based on the distinction between positive rights and negative rights. We’ve all been talking about property today, and that is an example of a negative right because it is a right to exclude others from the use and ownership of something that you own, something that you use. It’s your property. You have the right to exclude others from its use, either temporarily or permanently, depending upon the duration and scope of the property right. That ranges anywhere from absolute in a fee simple ownership to a leasehold to a lease to a rental property to an intangible property, such as a patent or a copyright which may either span twenty years or a lifetime plus seventy-five. But each of those rights in our system, based on common law embedded in the Constitution and based on natural rights, is an exclusionary right. We have a right to exclude others and the government from treading on our rights.

In Europe it’s different. It is positive rights. German law professors have sourced this out back in the burgs of Germany in the eighteenth and nineteenth centuries, that positive rights were granted by the monarch. Even before then, these rights were granted by the English kings and the French monarchs to mollify the populations so they could gain legitimacy during their time of rule. Therefore, since they are positive rights and they are granted by the sovereign, they can be taken away by the sovereign. That must go together in your minds with the idea of commonality, Communism, communality, community-based thinking. In other words, “all for one and one for all” really means that the individual is subservient to the population, to the civitas, and, therefore, must think about the effect of everything he or she does to the community.

We have the opposite belief here, that the individual is supreme and that as a collective of individuals we can make a bigger splash and a greater difference and provide more positive good than the community as a whole. So when we think about the taking of land, either directly through eminent domain, or by regulating the use of property through environmental regulation or even health regulation in some cases, we have to look at that distinction.

Public trust doctrine is borrowed from Europe, but it was used here very often back in the 1970’s. It’s now making a recurrence because, obviously, everything must be set aside for the community. That is where this distinction between positive and negative rights fits in. Police powers are a way to exercise the community rights in favor of the community and at the expense of the individual if they are not consistent with one another.

The Law of the Sea Treaty happens to be the largest regulatory treaty ever conceived by humankind. It has over 200 pages of provisions. It has over forty-five articles dealing with the environment. It has two protocols which are additions to the treaty and which are used as separate treaties to implement its provisions. Plus, in one case it has three regulations that are already out there dealing with the environment.

This Law of the Sea Treaty goes back to the era of President Reagan, and even before, during the new international economic order of the 1970’s and during the Cold War era. The Navy, who we have gone up against, believes that this Law of the Sea Treaty was an attempt to codify prior customary law on freedom of the seas because freedom of the seas is necessary to conduct international commerce. That is what has raised the economic activity and the wealth of nations throughout history. And the 1982 agreement of the Law of the Sea pretty much codified prior law that goes back to the fifteenth and sixteenth centuries, and was brought up to date through freedom of navigation and innocent passage rules. That means that the right of way goes to the commerce, the vessel that goes through the international waters. The states along the coast had limited rights to exercise in the case of emergency or other types of exigent circumstances. I am talking in very broad brushstrokes here.

The agreement kept on progressing with other UN General Assembly meetings, and governments other than the United States chiming in about how the freedom of navigation should be hindered, because it is a capitalist notion. It’s not something they were used to in the Soviet Block during the Cold War era, so they came up with all types of different conditionalities in this treaty. Eventually there were objections raised by President Ronald Reagan, which a number of groups in this room have also mentioned in their writings and communicated to people in Congress. Basically, President Reagan said he was not satisfied with that treaty because, among other reasons, it was a redistribution of wealth treaty. There were mining interests at that time for copper, gold, and other minerals at the bottom of the ocean floor that the UN as a redistributionist body intended to allocate among the nations of the world, not only those with the technology to extract those minerals. And there was an agreement that was cobbled together to modify the 1982 agreement that was really never passed and never agreed to during President Reagan’s tenure, but was brought up again during President Bill Clinton’s tenure in 1994. That agreement was allegedly marketed as “fixing the objections that President Reagan had.” However, those objections were never really addressed fully, despite the rhetoric that came out of Washington during the Clinton Administration.

One of the things we have been looking at is to convert the rhetoric that is being pushed through the Congress and even through the current George W. Bush administration and explain the difference between the myths and the realities. The interesting thing is that President Bush all of a sudden wants to ratify this treaty. A Republican president who claims to have conservative values and wishes to ratify a treaty like this either is smoking something or he has other interests.

The point is that you have a power grab by the United Nations. There are a number of different agencies in the UN that are working on a “sustainable development” paradigm internationally, to change the way human beings conduct their daily lives—because we are bad and nature is good, just as John had mentioned earlier. Sustainable development came about during 1987, in the “Limits to Growth” report from the former Prime Minister of Norway, Gro Harlem Brundtland. That resulted in the 1992 UN Convention on the Environment, and then all these new laws came about following the fall of the Berlin Wall in 1989. So taking all of this UN thinking and this global collectivism thinking, you have now a new effort to push the UN as a legislative, a global executive body, to impose other than American values on Americans. Obviously they are trying to create social parity rather than social progress in the world today, because our current system of capitalism is blatantly unfair in their eyes. Private property rights, being exclusionary, don’t give “fairness” to others who don’t have those rights. Therefore, they want to weaken private property rights in the name of sustainable development. Sustainable development, in general terms again, focuses mainly on environmental conservation—not just protection, but conservation. As a result, sustainable development has given birth to new concepts of law that Europe, being their originator, wishes to push through the UN as a global body of law.

One of the concepts that I spoke of last year was this notion of the “precautionary principle.” Basically, that says, “Better safe than sorry.” If it’s possible that something bad could happen to the environment, whether you do it on your own property or not, then it can’t be done. And the way it can’t be done is we impose laws that prevent you from doing it. You could be emitting something into the air in your business activity or through your personal activity that’s not good for the air, it pollutes. Or you could be dumping something into the waterways, whether it be a pond, an estuary, a river, or even the ocean. Or it could be just that you are experimenting with new technologies about which there is absolutely no way to know how it is going to affect the future environment or future health of other people. So the precautionary principle says if you don’t know anything about it, and you can’t possibly anticipate the bad things about it, don’t do it. There is no provable science involved in this concept, nor is there any concept of economic cost. Economic cost is not one of the important things when you are conserving the environment for future generations, which is the ultimate goal of sustainable development.

Now, the Law of the Sea Treaty incorporates over forty-five environmental articles. It has protocols that are environmental. It has regulations that are environmental. What they are intended to do is to protect the marine environment from all types of bad things that come off the land, in addition to the bad things that can happen in the open high seas. This is where R. J. Smith’s discussion of the Clean Air Act amendments fits into the puzzle, as well as discussions about the Clean Water Act, the Migratory Birds Act, the Magnuson-Stevens Fishery Conservation and Management Act, and the Coastal Management Acts that you see being invoked in California and Florida.

The puzzle is that the Law of the Sea Treaty is almost like a power station. If you look at the world as a body of lights, the ocean is pretty much dark at this point because every country has its own lights—those lights representing their laws, and those laws either prohibit you from doing something or allow you to do something.

In Europe they came out with an article in September’s Economist that drew a very, very stark distinction between our legal system and theirs, and our cultural system and theirs. In Europe, based on the Napoleonic Civil Code, they can tell you what you can do and what you cannot do. In our constitutional common law tradition, government usually tells you what you can’t do. This is based on our strong belief in limited government and its role to act pretty much as a referee and only to protect us when we really need to be protected from ourselves or from others. Now, again, I am talking general strokes here. But that distinction was drawn up in an article.

If you think about Europe’s penchant for regulating, it has already become to a great extent the global regulator of default because it regulates more than any other country or region in the world. It proclaims 95,000 pages of regulations and it’s still growing. It proclaims that it wishes to be the global regulator because other humans in other countries don’t recognize the threat to the Earth. This is Al Gore, Earth in the Balance. In fact, the British government under Tony Blair hired Al Gore last year—the day after Halloween—to advise them on climate change because I guess they needed more advice from the sage. But this deals with global super-national governance. This deals with looking at the Law of the Sea Treaty, which many people both in Congress and overseas have referred to as a “global constitution.” They tie it together with the Universal Declaration on Human Rights, which goes back to 1946. They tie it together with a covenant on economic and social rights which was enacted in the 1970’s. They wish to tell us plainly and simply that our Constitution no longer will govern international affairs, let alone our own affairs, because it’s based on an individualist model of government insufficient to meet the demands of sustainable development.

Now, I am not making this up. Europe is out there proclaiming this in its laws. They use private standards through industry supply chains to do the same thing, and they use organs of the UN to intimidate industry to adopt those standards. For instance, Tom Borelli was talking this morning about J.P. Morgan. They were basically extorted into following environmental standards to protect the forests that might be impacted by some of their loans indirectly sometime in the future.

It also has happened with respect to manufacturing companies. They can only buy certain procured products. If you go to a Home Depot, you will find something labeled “sustainably managed forest products.” The label has a disclaimer that there is no qualitative difference between that type of product and a normal product. The only thing is that it is environmentally enlightened, and if you wish you can pay more money to feel good, just like when you buy a Prius, then you can. It’s your freedom of choice as an individual. But they don’t want and are not satisfied with leaving it as a matter of choice, they wish to mandate it through law.

Going back to my power station metaphor for the Law of the Sea Treaty, if you look at the countries around the oceans as the lights and the sea as the darkness, the United States being the last holdout is really significant. Then you turn the power station on and connect all the dots, that means all the laws in this treaty, all the articles in this treaty, plus all these other related treaties which number over one hundred, can be plugged in and used against the United States. The treaty basically is a framework treaty which is almost like a lazy Susan on your kitchen table. You spin it around and all of a sudden you can find a box which is just another environmental treaty that came out of the UN environment program, and you can pick up its provisions and apply it through this treaty’s dispute settlement mechanism. What that means is that this treaty provides the environmentalist community, as well as foreign governments, with the ability to sue the United States in an arbitration or in a tribunal such as the International Court of Justice. If a suit is successful, arguably it is binding on the United States. Obviously, there is no way they are going to force us to abide by the decision, but if you sign on to a treaty you are obliged to follow its rules. Otherwise, signing on to it in the first place is a sham. You don’t give international law any credibility.

I know a lot of people here don’t believe in international law, and they think it’s the worst thing that can possibly happen, but that doesn’t stop it from evolving. We can all put our heads in the sand and say it doesn’t exist, but in reality they just keep on churning out the treaties. The United Nations environment program is the treaty-making machine of the UN. And it so happens that all of these environmental treaties conveniently have this constant called a precautionary principle in them. And the environmental community has taken the last twenty years to incorporate them one by one, treaty by treaty. They are very, very patient about putting the same concept in all these different treaties. The wording may not say “precautionary principle” in some cases, but that doesn’t prevent foreign governments and activists from using nuances of the words. The French are famous for the nuance, as are we when we want to negotiate things in our own interest. “It looks like ‘X’ but we say it really means ‘Y.’” And then all of a sudden we have to adopt national laws in order to fulfill our obligations under the treaty.

Out there are the amendments to the Clean Air Act and the Clean Water Act, and the Coastal Zone Management Act amendments are probably cooking somewhere in some committee. There are even chemical regulations that are being sought to be amended, because anything that flows into the marine environment or floats into it from a smokestack or other source on land is actionable under this treaty. The United States could be brought into a tribunal against its own will. Even military contractors can be brought into this treaty even though the military claims it has a military exemption. But that is not foolproof and they know it, but they still represent that it is. The U.S. government will be increasing their outsourcing of military technologies and production of supplies by fifty percent within the next five to ten years. This means that all these contractors making these products and technologies and shipping them overseas will be subject to a coastal state saying, “You are doing something bad in the oceans when you are carrying this cargo from point A to point B. We are going to stop it.” Or, “You can’t even make the product in your country because you are emitting something into the waterway that could harm some endangered species.” The Endangered Species Act and the Migratory Birds Act have a list of species that keeps getting added to each year. This machine will be turned on further and enhanced by this precautionary principle-based Law of the Sea Treaty.

It is wondrous that one can consider all these implications but the Senate won’t hold significant hearings on this treaty. The Senate’s job is to provide advice and consent to the President on ratification of the treaty, since the President submitted it to them for that purpose. It’s surprising that they won’t have significant hearings on it. The one committee that has had hearings thus far is the Senate Foreign Relations Committee, which has the primary responsibility and jurisdiction over treaty making. It had one hearing with government representatives on September 27, 2007. There were no opposing witnesses. They had another hearing on October 4th with two witnesses opposing the treaty and, I believe, seven or nine for the treaty. There is no plan at the current time to have any other committee of the Senate or the House of Representatives review the connection of this treaty with the implementing legislation for the federal acts, like the Clean Air and Clean Water Acts. There is no plan to review how this treaty would impact state laws, for instance, if you flush something down the toilet and it ends up in some river. Seriously, they do get inside your bowl when you trace the tributaries straight back up. No matter what you do, it could affect the marine environment directly or indirectly, which means we’re all regulated.

Now, the Democratic Congress seems to think this is a good thing because, remember, we are a “global village” now. We are not just a village, we are a global village. For that reason, we put out a public service announcement that basically says this treaty is coming down the pike, and it may actually be ratified and put to the Senate floor for voting in the near future. But it probably won’t be voted on in the near future. If we have something called constitutional rights such as substantive rights, substantive due process, as well as procedural rights, then, before this occurs, we should have a right to hear about what we are going to be regulated by, the extent to which it will regulate us and the extent to which it will affect our private property rights and our ability to exercise them.In the public service announcement we have a picture of the “hear no evil,” “see no evil,” “do no evil” and “speak no evil” monkeys. We don’t know which one of those is your Congressional representative—the one that is not speaking up, the one that says he hasn’t read the treaty, or the one that says he hasn’t heard anything about it. We are asking you to distribute these public service announcements so that people are aware of what is actually occurring before it occurs. This truly is the ability to exercise one’s private property right, not only the property right in one’s property, but the property in one’s rights, as James Madison said.

Thank you very much.

EURObama Chose Senate Foreign Relations Committee Chair 'Lightweight Joe' to Push 'Green' UN Treaties Like the UNCLOS & Kyoto Protocol

noreply@blogger.com (ITSSD Charitable Mission) — Sun, 24 Aug 2008 13:44:00 +0000

The United Nations Convention on the Law of the Sea (UNCLOS) may soon be debated, once again, on the floor of the U.S. Senate, most likely sometime during 2009. Although last October 2007, the Senate Foreign Relations Committee (SFRC), chaired by Democratic Senator Joseph Biden, had voted 17-4 to submit the UNCLOS to a floor vote for ratification, the SFRC failed to satisfy many Americans’ demands to convene full, impartial and transparent open public hearings.

See Ken Timmerman, Senate Refuses Debate on Controversial Treaty, Newsmax.com (Sept. 27, 2007) at: http://www.newsmax.com/timmerman/Sea_treaty/2007/09/26/36021.html . "Officially known as the United Nations Convention on the Law of the Sea, opponents are referring to it more simply as the Law of the Sea Treaty, or LOST. What’s got them most riled up is the fact that neither the Bush White House, nor the Treaty’s supporters in the United States Senate, appear willing to have a forthright, honest, and full debate. 'They’re trying to ram this thing through in the dead of night,' said former Reagan administration Pentagon official Frank Gaffney, who now heads the conservative Center for Security Policy. On Thursday, the Senate Foreign Relationship Committee, which is chaired by Sen. Joe Biden of Delaware, will hold its first hearing on the controversial Treaty. A bevy of senior Bush administration officials will all testify in favor of the Treaty. But not a single voice in opposition will be heard. 'Biden brushed us off with a form letter,' says Cliff Kincaid, an anti-United Nations activist who has teamed together with Gaffney and other conservatives into an ad hoc coalition to oppose the treaty. Thursday’s hearing 'is just a stunt by Biden to get mileage for his presidential campaign,' he told reporters in Washington on Wednesday. “And the Bush administration is being dragged along for the show.”

Indeed, what actually transpired following such 'pushback' were perfunctory UNCLOS ratification hearings, with administration officials and treaty proponents dominating much of the ‘air time’ and their obscurantist testimonies receiving the most minimal of cross-examinations. In addition, none of the other committees possessing oversight jurisdiction, either in the Senate or the House of Representatives, called for or conducted their own such investigations. See Colby Itkowitz, Senate Panel Approves Law of the Sea Treaty, CQ TODAY – FOREIGN POLICY (Oct. 31, 2007), ITSSD Journal on the UN Law of the Sea Convention at: http://itssdjournalunclos-lost.blogspot.com/2008/01/senate-panel-approves-law-of-sea-treaty.html . "'Do we join a treaty that establishes a framework to advance the rule of law on the oceans?” Chairman Joseph R. Biden, Jr., D-Del., asked. “Or do we remain on the outside, to the detriment of our national interests?' The Bush administration strongly supports Senate passage of the treaty. Biden said the president told him it was one of his foremost foreign policy priorities. The treaty also has the backing of the U.S. military, intelligence agencies and business and environmental groups."

Due to Americans' dissatisfaction with the SFRC's (and Senator Biden's) lackluster performance, the Senate Majority has since been unable to secure enough votes to ensure the treaty’s ratification. Consequently, the U.S. UNCLOS ratification process remains, at least for the time being, frozen in limbo.

Arguably, had the Congress undertaken a due diligence review befitting its constitutional obligation to provide all Americans with due process of law, it would have been able to discover the treaty’s numerous environmental regulatory, enforcement and revenue-raising provisions pursuant to which new imposts could adversely affect the general public. Given the sheer length of the UNCLOS (over 200 pages) and the multiple subject matters it covers, (and thus the resulting complexity), reasonable citizens are therefore left to wonder whether ‘wisdom’ is served at this time and place and by this Congress, without considering the true amount of work that would be required to thoroughly vet what is perhaps the largest environmental regulatory treaty in the world.

Senator and now Democratic Candidate for Vice President Joe Biden supports greater U.S. participation in United Nations multilateral environmental treaties that would impose legal obligations on the United States government to incorporate European Union-style rules (e.g., the PRECAUTIONARY PRINCIPLE) that are economically costly and nonscience-based, into federal legislation and administrative agency regulations to which ALL American businesses and consumers would be subject. As noted on the Biden for President/Vice President website (See Delware's Joe Biden, at: http://www.joebiden.com/home.php/issues/display/environmental_protection/)

"Joe Biden’s Plan For Passing On A Cleaner, Greener World To Our Children Focus on Climate Change" - "Joe Biden is continuing his strong environmental record by leading the effort to pass the most aggressive bill in the Senate to reverse global warming -- the Global Warming Pollution Reduction Act. The Act would limit greenhouse gas emissions and help avert the major problems warming of our planet could cause – such as altering growing seasons; redistributing natural resources; and lifting sea levels. Lead the World Forward - Global warming requires a global solution. Joe Biden believes the US must take a leadership role in international climate treaty negotiations, and make it a top priority. As chairman of the Senate Committee on Foreign Relations, he wrote a bipartisan resolution directing the President to return to international negotiations and reclaim a leadership role in the fight against global warming. If we don’t engage countries like China – which is building one new coal-fired power plant a week – we will not solve the global warming crisis."

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http://www.wtopnews.com/?nid=213&sid=1465340

Choice of Biden as VP Candidate Praised Overseas

By Arthur Max

Associated Press

August 23, 2008

ACCRA, Ghana (AP) - From confronting Russia to dealing with climate change, Barak Obama's selection of Sen. Joe Biden as his vice presidential candidate Saturday was seen abroad as adding weight and depth to the foreign policy of a potential Obama administration.

European analysts said the crisis in the Caucasus provided an appropriate backdrop to Biden's nomination.

In Accra, experts attending a U.N. climate change convention said Obama was sending a strong signal of change on what many see as a foreign policy debacle by the outgoing Bush administration regarding the battle against global warming.

"Biden owes his selection to (Russian Prime Minister Vladimir) Putin," said French political analyst Dominique Moisi. "Russia's invasion of Georgia reinforced the American worry about international tensions." The choice of the foreign affairs veteran was intended to reassure the electorate concerned about Obama's lack of credentials, Moisi said.

In Britain, the North America editor for the British Broadcasting Corp., Justin Webb, said Biden was "Vladimir Putin's contribution to American politics - he is a necessary antidote to the Obama lack of worldly wisdom, which before Georgia was a bit academic to most Americans."

Webb said Republican presidential candidate John McCain had acquitted himself well during the Russian invasion of Georgia this month. McCain "took the 3 a.m. call. Obama needs a pal who can do the same," Webb wrote in his blog.

In Germany, a member of Chancellor Angela Merkel's center-right Christian Democrats, Eckart von Klaeden, said Biden was "an exceptionally good decision, which shows how Obama is trying to organize all elements of the Democratic party behind him."

Biden's nomination created a buzz at the U.N. conference in Accra, where delegates from 160 countries were working on a successor to the Kyoto Protocol, the 1997 treaty regulating carbon emissions renounced by President Bush shortly after taking office in 2000.

The choice of Biden "is a good signal for these talks," said Angela Anderson, director of the Global Warming Campaign for the PEW environmental group. "I'm thrilled."

Biden, chairman of the Senate Foreign Relations Committee, drafted climate change legislation as long as 20 years ago, and is an aggressive supporter of domestic and international efforts to rein in emissions of carbon and other greenhouse gases.

"The easiest and fastest way to demonstrate a change of foreign policy would be on climate change," said David Doniger, of the Natural Resources Defense Council.

Biden and the ranking Republican on the committee, Sen. Richard Lugar of Indiana, both have sent top congressional staff to the latest series of climate negotiations. The aides, James Greene and Mark Helmke, are to report on the talks to the committee at the end of the year and make recommendations for the next administration.

"This treaty is going to be so complex that the Senate could not give its advice and consent" without a thorough briefing, Helmke, Lugar's aide, said on the conference sidelines.

Helmke said the president-elect, whether Obama or McCain, may send a high-level representative to the next round of talks in December, which takes place in Poland just a few weeks after the U.S. election and seven weeks before the inauguration.

Greene, Biden's aide, declined to comment on the day of his boss's nomination.

But Helmke said it was possible that Biden could take a leading role in the negotiations next year, matching the task of former Vice President Al Gore in capping the Kyoto negotiations a decade ago.
___
AP correspondents Melissa Eddy in Berlin, Jamey Keaten in Paris and Raphael G. Satter in Paris contributed to this report.

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EUROBAMA'S SOUND JUDGMENT & BOLSTERED INTERNATIONAL RELATIONS/FOREIGN POLICY CREDENTIALS...????

http://www.tnr.com/politics/story.html?id=e0b42753-0d7e-4be0-9b6b-d4a626e8d4e9

That's the Ticket! - Why loquacious Delaware Senator Joe Biden is a Terrific Vice-presidential Pick for Barack Obama

by Jonathan Cohn

The New Republic

Post Date Saturday, August 23, 2008

It's a great pick! He connects with blue-collar voters and reassures voters worried about Barack Obama's foreign policy inexperience.

It's a lousy pick! He's prone to gaffes and, as a senior member of the Senate, steps on the message of change.

In the next few days, pundits will be obsessing over the political impact of putting Joe Biden on the Democratic ticket. But the more important questions are the more tangible ones. Is Biden qualified to serve as an advisor to the president and, in an emergency, his stand-in?
What does this selection tells us about the way Obama makes decisions?

[THIS SHOWS HOW TRULY HYPOCRITICAL AND DEVOID OF GOOD JUDGMENT. BY RELYING ON 'LIGHTWEIGHT JOE' TO BOLSTER HIS OWN 'LIGHTWEIGHT' CREDENTIALS, EUROBAMA ONLY MAKES HIMSELF, AND POTENTIALLY THE UNITED STATES, MORE SUSCEPTIBLE TO NUANCED AND WELL-CONSIDERED & STRATEGIZED EURO-INFLUENCES, LET ALONE TO THE PLOTTINGS OF OTHER FOREIGN GOVERNMENTS. ALSO, WE CAN SEE EUROBAMA'S FLAWED JUDGMENT IN HIS RELIANCE ON HIGHLY QUESTIONABLE STATEMENTS PREVIOUSLY MADE BY SENATE MAJORITY LEADER HARRY REID.]

[EUROBAMA WAS RECENTLY QUOTED DURING THE SADDLEBACK CHURCH PUBLIC FORUM THAT TOOK PLACE IN LAKE FOREST, CALIFORNIA, AS CRITICIZING THE SELECTION OF CLARENCE THOMAS AS U.S. SUPREME COURT JUSTICE. WHEN ASKED WHICH SUPREME COURT JUSTICES HE WOULD NOT HAVE NOMINATED, EUROBAMA ANSWERED: "I WOULD NOT HAVE NOMINATED CLARENCE THOMAS. I DON'T THINK THAT HE...WAS A STRONG ENOUGH JURIST OR LEGAL THINKER AT THE TIME FOR THAT ELEVATION. SETTING ASIDE THE FACT THAT I PROFOUNDLY DISAGREE WITH HIS INTERPRETATION OF A LOT OF THE CONSTITUTION." See Jim Meyers, Obama: Clarence Thomas Unfit for Supreme Court, Jacksonville Forum (Aug. 18, 2008) at: http://www.topix.com/forum/city/jacksonville-fl/TI5L03OUTI8GR968U . ]

[HOWEVER, ACCORDING TO JUSTICE THOMAS' FORMER LAW CLERK WENDY E. LONG, CURRENTLY COUNSEL TO THE JUDICIAL CONFIRMATION NETWORK, "OBAMA STARTED TO SAY THAT JUSTICE THOMAS DIDN'T HAVE ENOUGH 'EXPERIENCE' FOR THE SUPREME COURT. IN MID-SENTENCE, WHEN OBAMA REALIZED THAT HE HIMSELF HAS FAR LESS EXPERIENCE FOR THE PRESIDENCY THAN JUSTICE THOMAS HAD FOR THE COURT IN 1991, HE SHIFTED AND SAID JUSTICE THOMAS 'WAS NOT A STRONG ENOUGH JURIST OR LEGAL THINKER AT THE TIME"...THIS IS ALL REMINISCENT OF (SENATE MAJORITY LEADER) HARRY REID'S COMMENT SEVERAL YEARS AGO THAT JUSTICE THOMAS WAS 'AN EMBARRASSMENT TO THE COURT' AND THIS HIS OPINIONS 'WERE POORLY WRITTEN'. REID WAS EXPOSED AS THE IGNORAMUS THEN, AND THE CONGRESSIONAL BLACK CAUCUS ASKED HIM TO STOP USING 'STEREOTYPES AND CARICATURES'"...REID IS AMONG SEVERAL CRITICS WHO HAVE CALLED THOMAS' WRITTEN OPINIONS 'LIGHTWEIGHT' AND SUGGESTED THAT HE WANTS TO ABANDON THE PRINCIPLE OF 'STARE DECISIS' - STANDING BY PRECEDENT - AND REINVENT THE WHEEL WITH EVERY CASE." “'REASONABLE SUPREME COURT OBSERVERS OF ALL POLITICAL STRIPES, WHO DO NOT NECESSARILY AGREE WITH JUSTICE THOMAS' JURISPRUDENCE, CONSIDER HIS WORK TO BE SCHOLARLY AND OF TOP QUALITY. AND YET SENATOR OBAMA IS, SADLY, UNABLE TO ACKNOWLEDGE EVEN THAT MUCH ABOUT AN INTELLIGENT, WONDERFUL AND KIND MAND WHO BROKE RACIAL BARRIERS TO RISE TO THE VERY TOP OF THE LEGAL PROFESSION', SAID HELGI WALKER, A FORMER ASSOCIATE COUNSEL TO PRESIDENT BUSH AND FORMER LAW CLER FOR THOMAS." See: Conservatives Slam Obama’s Answer About Supreme Court Justices at Saddleback Forum, FOXNews.com (Aug. 18, 2008) at: http://elections.foxnews.com/2008/08/18/conservatives-slam-obamas-answer-about-supreme-court-justices-at-saddleback-forum/ ].

[DESPITE ALL OF THIS, EUROBAMA NOMINATES U.S. DELAWARE SENATOR JOE BIDEN AS HIS VICE PRESIDENT, WHOM BOTH DEMOCRATS AND REPUBLICANS HAVE LONG REFERRED TO AS AN 'INTELLECTUAL LIGHTWEIGHT'. EVEN THE TRANSATLANTIC BLOGOSPHERE IS WELL ACQUAINTED WITH 'LIGHTWEIGHT JOE'S' FALLIBILITIES: "HE'S THE SORT OF MAN I'VE MET MANY A TIE IN IRISH PUBS. BIDEN WIL TELL YOU, AT SOME LENGTH FOR SURE, ALL ABOUT HIS PLANS FOR THE FUTURE, HOW HE'S ON THE CUSP OF GREATNESS JUST WAITING FOR THAT LAST PIECE TO FALL NEATLY INTO PLACE. THE FACT THAT - STUBBORNLY - IT HAS NEVER YET DONE SO DETERS HIM NOT A BIT...YOU CAN PICTURE HIM PROPPING UP ONE END OF THE BAR FOR THIRTY YEARS; LONG ENOUGH FOR ALL TO BE FORGIVEN, ALL ANCIENT BATTLES AND BLUNDERS FORGOTTEN AS WE GROW OLDER, MORE CHARITABLE, MORE SENTIMENTAL. BIDEN'S THE SORT OF FELLOW WHO'LL MAKE A WILDLY INAPPROPRIATE AND SUGGESTIVE COMMENT ABOUT YOUR WIFE. TO YOUR FACE. ON YOUR WEDDING DAY. BUT HE'LL DO SO IN SUCH A GUILELESS FASHION FREE FROM ANY HINT OF MALICE THAT, DASH IT AND ALMOST HALF DESPITE YOURSELF, YOU FORGIVE THE SILLY OLD FOOL. HE WAS, YOU REALIZE, PROBABLY TRYING TO AY SOMETHING COMPLEMENTARY. HECK, EVEN HIS 1988 DISGRACE WAS SO PREPOSTEROUS - PLAGIARISING NEIL BLEEDIN' KINNOCK! - THAT IT SEEMS UTTERLY ARTLESS. SO BIZARRE THERE HAD TO BE AN INNOCENT, BRAIN-FRYING EXPLANATING FOR IT. DESPITE ALL THOSE YEARS IN WASHINGTON, THERE'S AN ENDEARING CHILD-LIKE QUALITY TO BIDEN. OR, TO PUT IT ANOTHER WAY, OBSERVING BIDEN IN FULL FLOW IS A GLORIOUS SIGHT; IT'S LIKE WATCHING A LABRADOR BOUND AFTER A BOUNCING BALL EVEN THOUGH, BEING A PUPPY, IT DOESN'T QUITE HAVE THE CO-ORDINATION TO GRAB THE BALL CLEANLY. INSTEAD THERE'S A FRENZY OF YELPING DELIGHT AS THE AS THE BALL CARROMS AROUND THE YARD, ALWAYS TANTALISINGLY JUST OUT OF REACH..." See Megan McArdle, A Man You Don't Meet Every Day, The Atlantic.com (Aug. 24, 2008) at: http://meganmcardle.theatlantic.com/archives/2008/08/a_man_you_dont_meet_every_day.php ].

The answer to the first question is unambiguously "yes." Start with the resume: Biden first came to the Senate in 1973, after a brief career in local government. He rose through ranks, eventually becoming chairman of the judiciary committee, a position he occupied from 1987 through 1995. In 1997, he became ranking minority member of the Senate Foreign Relations a Committee, which he chairs today. As a result of this experience, Biden can boast of real policy expertise--and genuine accomplishments. [??] Chief among them are the Violence Against Women's Act, which he sponsored and eventually shepherded to passage as part of the 1994 crime bill, and American intervention in the Balkans, for which he was an early and influential advocate.

Biden's history of public service has its blemishes, too. After masterminding the defeat of Supreme Court nominee Robert Bork in 1987, he famously botched the hearings for Clarence Thomas, presiding over a spectacle that somehow managed both to confirm a deeply conservative judge while making himself, and many liberals, seem insensitive to the concerns of women. Biden also voted for the Iraq War. He did so more reluctantly than some other Democrats, openly decrying President Bush's doctrine of preemption and promoting (with Republican Senator Richard Lugar) a measure that would have authorized war only to eliminate weapons of mass destruction. But when that effort failed, Biden voted for the final, broader resolution--thereby breaking with more prescient colleagues like Carl Levin and Jack Reed, who thought Bush hadn't made the case for war. Most recently, Biden supported the strongly anti-consumer 2005 bankruptcy law, although that was presumably a typical act of local political boosterism. (Delaware is home to the credit card industry.)

For many Washington insiders, it's Biden's words--not his votes--that deserve scrutiny. His promising 1988 presidential bid ended quickly following revelations he'd used quotes from other famous politicians, without attribution, and that he had a habit of exaggerating his past exploits. [!!] And while those transgressions are old news, might a general election campaign bring forth new ones? It's a legitimate worry. The Obama campaign doesn't need those sorts of distractions--not now and not for the next four years, should the Democrats win in November.

And yet as politically unfortunate as those instances have been, the more important question is what they reveal about Biden's character and leadership qualities. I have no special reporting insights here, but the consensus that emerges from past writings about him--including the descriptions in Battle for Justice, Ethan Bronner's account of the Bork hearings--is that Biden suffered from an acute case of intellectual insecurity. The boasts, in this view, reflected Biden's constant fear that he would be perceived as a lightweight, either because of his (then) youth or lack of top intellectual credentials. (He graduated from the University of Delaware and, later, Syracuse Law School.) Biden is older now. Washington considers him, legitimately, an elder statesman. One can imagine--or at least hope--that the insecurity has waned over time.

And even if it hasn't, it's important to put this character flaw in context. Biden may have stretched the truth about his own accomplishments, but that's a far lesser sin--at least in my book--than calculating every move based on political expediency or using high office to gain personal wealth. And there's no sign that Biden has ever been prone to these sorts of problems. On the contrary, his political history suggests real courage on behalf of important, but controversial, causes. Biden had to fight for both VAWA and the Balkans intervention. As for using office to get rich, Biden's record looks to be squeaky clean. Based on public disclosure forms, he is the least wealthy member of the U.S. Senate. It's a reflection of his working-class roots--and the everyman sensibility that remains one of his most endearing characteristics. But it's also a tribute to Biden's virtue. Such a long tenure in office, surely, has presented ample opportunities for graft and shady dealings.

So Biden is not just qualified for the job. He is very qualified for the job. He can help Obama govern; should the unthinkable happen, he would make a capable and trustworthy commander-in-chief himself. But what does this tell us about Obama and how he makes decisions?

Political considerations surely played a major role in Obama's thinking. If you believe what you read, he had higher regard for--and a closer relationship with--several other contenders, including Virginia Governor Tim Kaine, Kansas Governor Kathleen Sebelius, and Rhode Island Senator Jack Reed. But voters might have rejected a ticket with Kaine or Sebelius, concluding it lacked sufficient experience in national and international politics. Reed, an Army veteran and highly respected lawmaker, didn't have that problem. But he's notoriously dull.

But it's unlikely politics were Obama primary motivation. If they had been, Obama might well have selected Evan Bayh, whose presence on the ticket would have put Indiana into play and--as a result--reshaped the electoral map. (Among other things, it would have drained McCain's financing, by forcing him to advertise in the expensive Chicago television market.) But Bayh, although a perfectly respectable senator, is not exactly a heavyweight. He claims no policy area as expertise; he has no major law or initiative that he can claim as an accomplishment. There's nothing terribly wrong with Bayh but there's nothing terribly right with him, either. It's been said that Bayh was the "safe" candidate--and, as a political matter, that's true. But given his less than sterling record, putting him a heartbeat away from the presidency would have actually been a little risky.

Biden's choice presents real risks for Obama, too--and not just political. Biden can be difficult. He speaks his mind, even when he has nothing nice to say. But if that sometimes makes conversations uncomfortable, it also makes them valuable. Obama has always said he didn't want a "yes" man--that he wanted a vice president who would challenge him intellectually and promote a vigorous debate about policy decisions. It's precisely the sort of environment that the current White House lacks. By choosing Biden, Obama tells us he's serious about that change.

One other, perhaps less appreciated, virtue of the Biden choice is what it says about Obama philosophically. Biden can be counted upon to play the role of house dissenter and skeptic. But he does so as somebody whose fealty to the basic values of the Democratic Party is not in doubt. On a wide range of issues, from economics to the courts to national security, Biden has compiled a record that would please the majority of progressives. His rating from Americans for Democratic Action is a perfect 100, just like Obama's. He scores well among other liberal groups, too.

Conservatives will blast this record, just as surely as liberals will (or should) celebrate it. But one of the virtues of having Biden as the vice presidential nominee is that he won't take those kinds of attacks lightly. He'll fight back. He'll remind people, rightly, that being a liberal Democrat means raising the minimum wage, making sure everybody has affordable health care, providing strong public schools, and protecting human rights. Then, he'll ask why conservative Republicans don't want the same things. That's exactly the kind of political debate this country needs. By picking Biden as a running mate, Obama has signaled that he welcomes this argument--and intends, finally, to win it.

Jonathan Cohn is a senior editor at The New Republic and the author of Sick: The Untold Story of America's Health Care Crisis--And the People Who Paid the Price.

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http://query.nytimes.com/gst/fullpage.html?res=940DE5D61139F930A25752C0A96E948260

Biden Gives Kinnock Copy of His Speeches

REUTERS

Published: January 13, 1988

LEAD: Senator Joseph R. Biden Jr., meeting Neil Kinnock for the first time, today presented the Labor Party leader with a bound copy of the Senator's speeches and told reporters: ''I told him he was welcome to use them whenever he liked, with or without attribution.''

[NOW, IS THIS AN EXAMPLE OF THE GOOD JUDGMENT AND INTELLECTUAL HEFT & HONESTY TO WHICH THE NEW EUROBAMA PRESIDENTIAL TICKET ASPIRES?]

[DID NOT 'LIGHTWEIGHT JOE' UNDERSTAND HOW HE WOULD BE PERCEIVED BY NEIL KINNOCK, LET ALONE BY THE PRESS AND THE PUBLIC, AFTER HE PRESENTED THE UK LABOR PARTY LEADER WITH A COPY OF HIS SPEECHES CONTAINING THE PLAGIARIZED PASSAGES???]

[BUT THEN, AGAIN, WASN'T EUROBAMA HIMSELF ACCUSED OF PLAGIARISM?? See Alex Spillius, Hillary Clinton Accuses Obama of Plagiarism, UK Telegraph (Feb. 26, 2008) at: http://www.telegraph.co.uk/news/worldnews/1579074/Hillary-Clinton-accuses-Obama-of-plagiarism.html . "[Obama]...has been forced into the unwelcome distraction of fighting off charges from Mrs Clinton's camp that he lacks credibility after he used a short passage from a speech by his friend Deval Patrick, the Governor of Massachusetts, nearly verbatim and without attribution. Howard Wolfson, Mrs Clinton's chief spokesman, said: "Senator Obama's campaign is largely premised on the strength of his rhetoric and his promises, because he doesn't have a long record in public life. When the origin of his oratory is called into question, it raises questions about his overall candidacy." See also, Clinton Camp Accuses Obama Of Plagiarism, US News & World Reports Political Bulletin (Feb. 19, 2008) at: http://www.usnews.com/usnews/politics/bulletin/bulletin_080219.htm . "The Financial Times reports, 'In an attack designed to remind people of Joe Biden's withdrawal from the 1988 presidential campaign after his uncredited use of passages from Neil Kinnock, leader of the Labour party opposition in the UK, the Clinton campaign said it raised 'fundamental questions' about the integrity of Mr Obama's campaign.' The Los Angeles Times reports that Clinton, 'in response to a question from reporters on her campaign plane, added her voice to her staff's criticism of Obama. 'If your whole candidacy is about words, they should be your own words,' she said. 'That's what I think.'"].

[See Edward Luce, Clinton in a War Over Words With Obama, Financial Times (Feb. 18, 2008) at: http://www.ft.com/cms/s/0/e7744382-de4e-11dc-9de3-0000779fd2ac.html . "On Monday the Obama camp admitted that Mr Obama had used the same language as Mr Patrick in a speech in Wisconsin on Saturday in a passage designed to rebut the allegation that his campaign consisted of poetic phrases but little else. They said Mr Patrick and Mr Obama were friends who often “riffed off each other’s speeches”. 'Don’t tell me words don’t matter,' Mr Obama said in the passage borrowed from Mr Patrick. 'I have a dream – just words? We hold these truths to be self-evident – just words? We have nothing to fear but fear itself – just words?'”].

Mr. Biden dropped out of the Democratic Presidential race last September after admitting that he had used speeches by Mr. Kinnock and other politicians without attribution, and after published reports that he had plagiarized while in law school.

The Delaware Democrat, who met Mr. Kinnock at the House of Commons, said the Welsh politician ''did not give me any more ideas for speeches, nor I him.''

Mr. Biden, a member of the Senate Foreign Relations Committee, was on a two-day visit of Britain as part of a tour to consult allies on the treaty between the United States and the Soviet Union banning intermediate-range nuclear missiles.

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http://bigheaddc.com/2008/02/18/katrina-vanden-heuvel-plagiarism-not-an-issue/

Katrina vanden Heuvel: Plagiarism Not An Issue

Bighead DC

Feb. 18, 2008

Katrina vanden Heuvel, the editor of The Nation magazine, told Chris Matthews today on Hardball that Sen. Barack Obama’s plagiarism scandal should not have been covered on the program because, she feels, it doesn’t matter to the common person. An incredulous Matthews responded that she should ask Sen. Joe Biden whether these kind of issues matter — a reference to Biden being forced to quit his bid for the presidency in 1987 after he plagiarised a speech. Pat Buchanan, a guest on the show, said that he felt this was a “bad day” for Obama, and that his character will likely be called into question more often now in the campaign.

See also Hardball: Plagiarism or Not?, Hardball at: http://www.youtube.com/watch?v=gAMhjDbrtyg

[WHAT KIND OF EXAMPLE DOES THIS PROVIDE FOR DEVELOPING COUNTRY GOVERNMENTS AND INDUSTRIES THAT SYSTEMATICALLY STEAL U.S. COPYRIGHTS, PATENTS and TRADESECRETS??? THESE POLITICIANS AND COMMENTATORS SHOULD BE ASHAMED OF THEMSELVES, ESPECIALLY UNINFORMED AND ARROGANT KATRINA VANDEN HEUVEL. DEAR MS. VANDEN HEUVEL, PLAGIARISM, LIKE COPYRIGHT and PATENT INFRINGEMENT, ARE REAL ISSUES THAT MATTER TO COMMON PEOPLE WHO OWN BUSINESSES, and INTELLECTUAL PROPERTY ASSETS!! See: ITSSD Journal on Intellectual Property Rights, at: http://itssdinternationaliprights.blogspot.com/ ].

The LOST, a Trojan SeaHorse, is a 'Dynamic and Evolving Body of Law', Says UN, That Would Likely Overtake US Legal & Economic Sovereignty

noreply@blogger.com (ITSSD Charitable Mission) — Fri, 20 Jun 2008 11:17:00 +0000

http://www.spectator.org/dsp_article.asp?art_id=13404

The Public Policy LOST at Sea

By Doug Bandow

The American Spectator

6/20/2008

Like a monster in a horror flick franchise, the Law of the Sea Treaty (LOST), an omnibus treaty originally blocked by President Ronald Reagan, is back! And despite what the doomsday document's delirious spokesmen say, it's about as scary as ever.

The convention is being pushed by a mix of activists, who support international law -- any international law -- and businesses, [$$] such as the International Association of Drilling Contractors, that see visions of profits dancing in their boardrooms. Treaty critics are being dismissed as ignorant fools or cynical liars.

LOST covers navigation, environment, seabed mining, and more. It offers a few benefits, but they have been widely exaggerated. Boosters are bragging that the treaty would strengthen navigation rights. But the difference would only be marginal, since the treaty simply codifies customary international law.

Most countries have an interest in maintaining free navigation. If a nation believes it to be in its interest -- and within its capability -- to interdict commercial or military shipping, it isn't likely to waste time parsing LOST articles before acting.

The Treaty's downsides remain. The seabed mining provisions were renegotiated in 1994, but the treaty was not "fixed." The convention, originally intended to promote large-scale income redistribution to Third World states, creates an International Seabed Authority (ISA) to regulate ocean mining and the Enterprise to mine for the ISA.The system is byzantine in its complexity and inefficiency.

THE RENEGOTIATED text only moderated LOST's infirmities. Now, the U.S. has been given a seat on the Council of the ISA, but it possesses no veto, unlike the UN Security Council.

The Council operates by "consensus," but under the Treaty this only means the ISA must strive to overcome disagreements before moving forward. Had "consensus" really meant consensus as commonly understood, the Treaty itself could never have been approved over U.S. objections.

Similarly, the agreement retains part of the original requirement for mandatory technology transfers. Article 144 directs that the Authority shall "promote and encourage the transfer to developing States of such technology and scientific knowledge."

Moreover, the Authority and States Parties "shall initiate and promote" programs "for the transfer of technology to the Enterprise and to developing states," including "facilitating the access of the Enterprise and of developing States to the relevant technology, under fair and reasonable terms and conditions." The revised text also adds new provisions that easily could be interpreted to require the same sort of technology transfers originally specified in the version that the U.S. rejected, such as the requirement that governments "ensure that contractors sponsored by them also cooperate fully with the Authority."

Equally bad, LOST could be treated as self-enforcing, that is, found to create obligations enforceable by U.S. courts. In Medellin v. Texas, the U.S. Supreme Court recently rejected a challenge to a criminal conviction for failure to fulfill the Vienna Convention on Consular Relations. The majority ruled that it does not constitute "directly enforceable federal law."

Treaty advocates make the same claim for LOST. However, Annex III, Article 21(2) states that LOST tribunal decisions "shall be enforceable in the territory of each State Party." And in Medillin Justice John Paul Stevens contrasted the Vienna Convention with LOST, which he opined did "incorporate international judgments into international law."

The issue isn't going to be settled until a suit is filed under LOST, if the U.S. is foolish enough to ratify the Treaty.

INDEED, SOME PROPONENTS are almost gleeful about the treaty's many opportunities for new litigation. William C.G. Burns, a professor at Monterey Institute of International Studies, denounced America's refusal to ratify the Kyoto Protocol on global warming.

Burns noted that "several States and peoples in recent years have begun to contemplate, or have taken active steps to initiate, actions against States or private actors" in a variety of international forums, including the LOST, which, he contends, "may prove to be one of the primary battlegrounds for climate change issues in the future."

He cites the Treaty's expansive definition of marine pollution, writing that "the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water" could "give rise to actions under the Convention's marine pollution provisions."

"While very few of the drafters of [the Treaty] may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future. At the very least, the spectre of litigation may help to deepen the commitment of States to confront the most pressing environmental issue of our generation," Burns wrote.

By being publicly honest, Professor Burns violated the earlier injunction from Bernard Oxman, a long-time LOST supporter at the University of Miami. Writing in the European Journal of international Law in 1996, Prof. Oxman warned that "global ratification [of LOST] is by no means assured."

Thus, Oxman explained, it was important for advocates not to unduly worry governments about the potential obligations they would be incurring: "this suggests restraint in speculating on the meaning of the convention or on possible differences between the Convention and customary law."

Indeed, he acknowledged that the Convention "is an easy target" because "[l]ike many complex bodies of written law, it is amply endowed with indeterminate principles, mind-numbing cross-references, institutional redundancies, exasperating opacity and inelegant drafting, not to mention a potpourri of provisions that any one of us, if asked, would happily delete or change."

But in Oxman's telling all that mattered was ratifying the Treaty. So it was "essential to measure what we say in terms of its effect on the goal." He explained that "[e]xperienced international lawyers know where many of the sensitive nerve endings of governments are."Where possible, they should try to avoid irritating them."ONE OBVIOUS "sensitive nerve ending" is LOST's purported control over land-based pollution. Article 207 of the Treaty directs: "States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources."

States also "shall take other measures as may be necessary to prevent, reduce and control such pollution."

Some LOST advocates simply deny the obvious. Deputy Secretary of State John Negroponte last year claimed that there was "no jurisdiction over marine pollution disputes involving land-based sources," directly contradicting the Treaty text.

Others claim that the provision is merely hortatory. Yet Lawrence Kogan, of the Institute for Trade, Standards, and Sustainable Development, wrote an extensive analysis for The ITSSD Journal, warning that several provisions created a potential cause of action and could "be used to commence litigation against the U.S." in various international forums.

Still, Treaty advocates contend that such actions would fail. They dismiss a suit by Ireland against Great Britain over domestic-source pollution because of Britain's supposed failure to raise the best defense.

Maybe they are right, but we won't know until their theory is tested. Moreover, argues Kogan, "whether or not an adverse ruling is secured, such other LOST party could help to shape/influence future U.S. governmental legislative and/or regulatory action."

More significantly, it is pretty clear that Treaty supporters are not being straight with the rest of us. The World Wildlife Federation and Don Kraus of Citizens for Global Solutions have told environmentalists that they should back LOST because it could help halt Russian pollution of the Arctic. How can the convention bind Russia but not America?

One Treaty proponent recently sent an email -- which ended up in my hands -- about the consequent difficulty of allaying "conservative fears" of LOST being "some kind of green Trojan Horse."

Supporters of the Convention have a clear agenda. Declared the UN's Division for Ocean Affairs and the Law of the Sea: LOST is not "a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced."

Where might that "dynamic and evolving body of law" end up? Facile assurances from Treaty proponents need to be verified and not trusted. The U.S. Senate has an obligation to answer that question before it ratifies this horror show of a treaty.

[THOSE U.S. SENATE COMMITTEES POSSESSING OVERSIGHT JURISDICTION MUST CONVENE OPEN, PUBLIC & TRANSPARENT HEARINGS TO VET WHAT IS PERHAPS THE MOST EXTENSIVE, EXPANSIVE
AND FAR REACHING ENVIRONMENTAL REGULATORY TREATY EVER CONCEIVED BY HUMANKIND.]

Doug Bandow is the Robert A. Taft Fellow at the American Conservative Defense Alliance and author of Foreign Follies: America's New Global Empire (Xulon Press). This article is adapted from a forthcoming study for the Institute for Policy Innovation.

UNCLOS is Once Again 'On the Move', Being Promoted By Alaska's Senators and President Bush; But the Reality About UNCLOS Continues to Evade Them

noreply@blogger.com (ITSSD Charitable Mission) — Fri, 06 Jun 2008 14:23:00 +0000

U.S. Alaska Senator Lisa Murkowski delivered the keynote speech opening the Arctic Transportation Conference convened by the U.S. Maritime Administration on June 5, 2008, at Washington, DC's St. Regis Hotel. Among the points emphasized, she highlighted the recent plurilateral 'Greenland Declaration of Cooperation' made by Canada, Denmark, Norway, Russia and the United States delegations - i.e., the 'Five Arctic Powers', which supports the UN Law of the Sea Convention as the definitive "framework for legal governance of the Arctic region".

[See THE ILULISSAT DECLARATION, ARCTIC OCEAN CONFERENCE ILULISSAT, GREENLAND, 27 – 29 MAY 2008, at: http://www.ambottawa.um.dk/en/servicemenu/News/THEILULISSATDECLARATIONARCTICOCEANCONFERENCE.htm ].

[THE FOLLOWING IS AN EXTRACT OF THE CONTEMPORANEOUS NOTES TAKEN DURING THE CONFERENCE BY THIS BLOGMASTER].

In particular, Senator Murkowski, emphasized how "it is now more crucial than ever for the U.S. to ratify the UNCLOS...Some in the Senate say that UNCLOS ratification is not necessary and that the U.S. can choose which portions of it to follow. It is better to be a player at the table than to be on the outside. UNCLOS ratification would enhance the ability and credibility of the U.S. to influence the outcome. The U.S. cannot make a claim to an extended continental shelf and have it honored if it doesn't ratify the UNCLOS...A precautionary approach is called for in the Arctic...The U.S. must be a leader in the Arctic and climate change... Sustainable alternative energy is needed. Environmental protection leadership is needed...A congressional resolution [The resolution, S.J. Res.17] was recently passed [GovTrack.us indicates "May 21, 2008: This bill passed in the House of Representatives by voice vote. A record of each representative's position was not kept."] calling for the development of an international fisheries regime for the Arctic. The President will sign this resolution...[The President signed the resolution on June 3, 2008] The U.S. sits on the edge of a precipice...Some senators are hesitant to ratify the UNCLOS and cling to the old environment around which the treaty was negotiated...but the legal and real environment around the treaty early on has changed requiring UNCLOS ratification...We need to be seated at the table...Senators including myself will move to push the treaty through the Senate before the end of the year...as will certain members of the administration...Every member of the Senate must be whipped..."

[See Congress Approves Stevens Resolution to Protect Arctic Fisheries (May 21, 2008), at:
http://commerce.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=e1a92c22-d482-4073-8c39-c29f83061aa7 “As ocean temperatures change and fish habitats expand northward, we may see valuable fish stocks migrate north into the Arctic Ocean,” said Senator Stevens. 'This resolution directs the United States to pursue international agreements to stop any expansion of fishing in the Arctic Ocean until a science-based fishery management plan can be implemented. After the President signs this resolution, I will work with the State Department to bring this issue to the United Nations.'” ].

S.J. Res. 17:

S.J.Res.17
One Hundred Tenth Congress
of the
United States of America
AT THE SECOND SESSION

Begun and held at the City of Washington on Thursday, the third day of January, two thousand and eight

Joint Resolution

Directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean.

Whereas the decline of several commercially valuable fish stocks throughout the world's oceans highlights the need for fishing nations to conserve fish stocks and develop management systems that promote fisheries sustainability;

Whereas fish stocks are migratory throughout their habitats, and changing ocean conditions can restructure marine habitats and redistribute the species dependent on those habitats;

Whereas changing global climate regimes may increase ocean water temperature, creating suitable new habitats in areas previously too cold to support certain fish stocks, such as the Arctic Ocean;

Whereas habitat expansion and migration of fish stocks into the Arctic Ocean and the potential for vessel docking and navigation in the Arctic Ocean could create conditions favorable for establishing and expanding commercial fisheries in the future;

Whereas commercial fishing has occurred in several regions of the Arctic Ocean, including the Barents Sea, Kara Sea, Beaufort Sea, Chukchi Sea, and Greenland Sea, although fisheries scientists have only limited data on current and projected future fish stock abundance and distribution patterns throughout the Arctic Ocean;

Whereas remote indigenous communities in all nations that border the Arctic Ocean engage in limited, small scale subsistence fishing and must maintain access to and sustainability of this fishing in order to survive;

Whereas many of these communities depend on a variety of other marine life for social, cultural and subsistence purposes, including marine mammals and seabirds that may be adversely affected by climate change, and emerging fisheries in the Arctic should take into account the social, economic, cultural and subsistence needs of these small coastal communities;

Whereas managing for fisheries sustainability requires that all commercial fishing be conducted in accordance with science-based limits on harvest, timely and accurate reporting of catch data, equitable allocation and access systems, and effective monitoring and enforcement systems;

Whereas migratory fish stocks traverse international boundaries between the exclusive economic zones of fishing nations and the high seas, and ensuring sustainability of fisheries targeting these stocks requires management systems based on international coordination and cooperation;

Whereas international fishing treaties and agreements provide a framework for establishing rules to guide sustainable fishing activities among those nations that are parties to the agreement, and regional fisheries management organizations provide international fora for implementing these agreements and facilitating international cooperation and collaboration;

Whereas under its authorities in the Magnuson-Stevens Fishery Conservation and Management Act, the North Pacific Fishery Management Council has proposed that the United States close all Federal waters in the Chukchi and Beaufort Seas to commercial fishing until a fisheries management plan is fully developed;

and

Whereas future commercial fishing and fisheries management activities in the Arctic Ocean should be developed through a coordinated international framework, as provided by international treaties or regional fisheries management organizations, and this framework should be implemented before significant commercial fishing activity expands to the high seas:

Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That

(1) the United States should initiate international discussions and take necessary steps with other Arctic nations to negotiate an agreement or agreements for managing migratory, transboundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organization or organizations for the region;

(2) the agreement or agreements negotiated pursuant to paragraph (1) should conform to the requirements of the United Nations Fish Stocks Agreement and contain mechanisms, inter alia, for establishing catch and bycatch limits, harvest allocations, observers, monitoring, data collection and reporting, enforcement, and other elements necessary for sustaining future Arctic fish stocks;

(3) as international fisheries agreements are negotiated and implemented, the United States should consult with the North Pacific Regional Fishery Management Council and Alaska Native subsistence communities of the Arctic;

and

(4) until the agreement or agreements negotiated pursuant to paragraph (1) come into force and measures consistent with the United Nations Fish Stocks Agreement are in effect, the United States should support international efforts to halt the expansion of commercial fishing activities in the high seas of the Arctic Ocean.

Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

[SINCE THE UN MIGRATORY FISH STOCKS AGREEMENT INCORPORATES THE EUROPEAN PRECAUTIONARY PRINCIPLE, THE SENATE RESOLUTION, RECENTLY SIGNED BY THE PRESIDENT, IN EFFECT, CALLS FOR THE ADOPTION OF THE PRECAUTIONARY PRINCIPLE INTO U.S. LAW!!]

[See President Bush Signs H.R. 2356, H.R. 2517, H.R. 4008, S. 2829, and S.J.Res. 17 Into Law, at: http://www.whitehouse.gov/news/releases/2008/06/20080603-2.html . "S.J.Res. 17, which encourages the United States to initiate international discussions with other Arctic nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean"].

ITSSD President Delivers Thought-Provoking Speech at National Defense University - What Do the UNCLOS Experts Have to Say Now??

noreply@blogger.com (ITSSD Charitable Mission) — Mon, 19 May 2008 16:33:00 +0000

As the result of the ITSSD's ongoing research concerning the environmental regulatory dimensions of the UN Law of the Sea Convention, ITSSD President Lawrence Kogan was invited to participate in a recently convened conference (May 13-14, 2008) at National Defense University's Center for Technology and National Security Policy.

Information about the conference entitled, Unfrozen Treasures- National Security, Climate Change and the Arctic Frontier, is accessible at: http://www.ndu.edu/CTNSP/NCW_course.htm .

Mr. Kogan served on a panel of esteemed national experts entitled, Laws of the Sea: Changing Air Land and Sea Routes (http://www.ndu.edu/CTNSP/NCW_course/Arctic%20Security%20Agenda%20Final.pdf ). These UNCLOS experts included Ambassador John Norton Moore, Director, National Security Law, Virginia School of Law, University of Virginia; Dr. Jeremy Rabkin, Professor of Law, George Mason University; and CAPT Patrick J. Neher, Director, International and Operational Law Office of the Judge Advocate General, Department of the Navy.

Mr. Kogan had previously served on a panel alongside CAPT Neher on October 17, 2007, at the Reserved Officers Association in Washington, DC. See: US Citizens Seeking Thorough Congressional Review of UNCLOS Win Debate Against US Navy, at: http://itssdjournalunclos-lost.blogspot.com/2008/01/us-citizens-seeking-thorough.html .

In addition to delivering an oral presentation at the NDU, Mr. Kogan also prepared a written powerpoint presentation that is now accessible on the NDU and ITSSD websites, at pp. 168-219, at: http://www.ndu.edu/CTNSP/NCW_course/Arctic%20Security%20Compilation.pdf ; and http://www.itssd.org/Programs/KOGANIII.ppt .

The National Defense University is the premier center for Joint Professional Military Education (JPME) and is under the direction of the Chairman, Joint Chiefs of Staff. The University’s main campus is on Fort McNair in Washington, D.C. The Joint Forces Staff College is located in Norfolk, VA. The National Defense University is accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools.

If The US Senate is in NO Rush to Ratify UNCLOS, Then Why Doesn't Congress Accord Americans 'Due Process' & Hold Open, Public UNCLOS Hearings?

noreply@blogger.com (ITSSD Charitable Mission) — Sun, 11 May 2008 01:05:00 +0000

http://www.abajournal.com/magazine/stuck_in_port

Stuck in Port - The U.S. Senate is in no rush to vote on ratification of the Law of the Sea Convention

By James Podgers

ABA Journal

February 2008

After a quarter-century of frustration, advocates for U.S. ratification of the U.N. Convention on the Law of the Sea are hoping their ship is finally about to come in.

It’s not there yet, however, and proponents are wary of experiencing déjà vu all over again.

The Senate Foreign Relations Committee caused an initial wave of excitement when it voted 17-4 in late October to report the convention to the full Senate. Since then, the matter has stalled. There is just enough opposition to doubt whether the necessary two-thirds Senate majority (67 votes) can be mustered for ratification. The scenario is similar to 2004, when the Foreign Relations Committee favorably reported the convention, but it was not brought to a vote.

WIDESPREAD SUPPORT

Supporters of the convention say there is now momentum for ratification that wasn’t there before.

“It will go through; we will win it, but it’s a tough fight,” says John Norton Moore, director of the Center for Oceans Law and Policy at the University of Virginia School of Law in Charlottesville. He serves as a counselor to the ABA Standing Committee on Law and National Security.

The treaty has a growing list of advocates. Those supporters include the U.S. Joint Chiefs of Staff, the Coast Guard, the State Department, the shipping and fishing industries, the petroleum industry and many environmental groups.

The treaty also has widespread bipartisan support in the Senate—six of the 10 Republicans on the Foreign Relations Committee joined their Democratic colleagues in voting to report it to the full Senate.

And in May, President Bush issued his first public call for ratification.

Joining the 154 nations (and European Union) that have become parties to the treaty since it was finalized in 1982 “will serve the national security interests of the United States, including the maritime mobility of our armed forces nationwide,” said Bush. “It will secure U.S. sovereign rights over extensive marine areas, including the valuable national resources they contain.”

[THE FACT THAT 154 NATIONS HAVE RATIFIED THE CONVENTION DOESN'T MEAN MUCH IF THE RULE OF LAW DOES NOT PREVAIL IN MOST OF THEM.]

[THE AMERICAN PEOPLE ALREADY UNDERSTAND THAT THE UNITED STATES CONSTITUTION & ITS ACCOMPANYING BILL OF RIGHTS ARE UNIQUE INSTRUMENTS THAT HAVE ENDURED THE TEST OF TIME. THERE IS NO OLDER FUNCTIONING CONSTITUTION IN THE WORLD TODAY. NO OTHER COUNTRY, EVEN IN THE WEST, HAS SUCH A DOCUMENT, DEVELOPED DURING THE UNIQUE ENLIGHTENMENT PERIOD SPANNING THE 17-18TH CENTURIES. THE U.S. CONSTITUTION ESTABLISHED THE BASIS FOR A TRI-CAMERAL SYSTEM OF CHECKS AND BALANCES ('SEPARATION OF POWERS') THAT ALSO ENTAILS FEDERAL-STATE BALANCING AS WELL - FEDERALISM - ALL TO PROVIDE 'GOVERNMENT OF THE PEOPLE, BY THE PEOPLE AND FOR THE PEOPLE'. THIS WAS CLEARLY REFLECTED IN THE CONSTITUTION'S ACCOMPANYING BILL OF RIGHTS WHICH RECOGNIZED & PROTECTED 'NATURAL RIGHTS', INCLUDING THE RIGHT TO THE PROTECTION OF EXCLUSIVE PRIVATE PROPERTY, WHICH THE DECLARATION OF INDEPENDENCE ALSO WAS INTENDED TO ACHIEVE - TO ENABLE AMERICAN CITIZENS TO REALIZE LIFE, LIBERTY & THE PURSUIT OF HAPPINESS. THE U.S. REPRESENTATIVE FORM OF DEMOCRACY REMAINS UNIQUE IN THE WORLD AND IS ACTUALIZED THROUGH THE BILL OF RIGHTS, WHICH RECOGNIZES THE INDIVIDUAL UNIT OF SOCIETY(THE 'INDIVIDUAL GOOD') AS SANCROSANT. AN IMPORTANT RECOGNITION OF THE CONTRIBUTION OF INDIVIDUALS TO AMERICAN SOCIETY IS ALSO REFLECTED ON THE OBVERSE SIDE OF THE GREAT SEAL OF THE UNITED STATES, WITH THE WORDS 'E. PLURIBUS UNUM' - OUT OF MANY, ONE. THE REVERSE SIDE BEARING THE WORDS 'NOVUS ORDO SECLORUM' DOES NOT MEAN, AS CLAIMED BY THE GLOBALISTS, 'A NEW WORLD ORDER'. IT MEANS, INSTEAD 'A NEW ORDER OF THE AGES', WHICH INTIMATES THE PRIMACY OF INDIVIDUAL GOOD OVER SOCIETAL GOOD, AS DETERMINED BY THE PEOPLE THROUGH THEIR REPRESENTATIVES, RATHER THAN BY GOVERMENT OR THE RULER - RULE of LAW, NOT RULE by MEN, WHETHER THEY BE GOVERNMENT OFFICERS OR ACADEMIC EXPERTS. (See, e.g., Origin and Meaning of the Mottoes on the Great Seal, Myth and Misinformation about the Great Seal's at: http://www.greatseal.com/mythamerica/index.html; http://www.greatseal.com/mottoes/seclorumvirgil.html
("The motto Novus Ordo Seclorum was coined by Charles Thomson in June 1782. He adapted it from a line in Virgil's Eclogue IV, a pastoral poem that expresses the longing for a new era of peace and happiness which was written by the famed Roman writer in the first century B.C.")).]

[SCHOLARS HAVE REFERRED TO THIS NOTION AS 'METHODOLOGICAL INDIVIDUALISM'. See: Svetozar (Steve) Pejovich, Private Property – A Prerequisite for Classical Capitalism, Prepared for the Conference on The Roots of Capitalism, (Oct. 16-18, 2005) at p. 3, at: http://www.easibulgaria.org/docs/Pejovic.doc . "The cornerstones of the private-property, free-market economy are classical liberalism and methodological individualism. Classical liberalism is about individual liberty, openness to new ideas, and tolerance of all views. Methodological individualism means that the unit of analysis is the individual. Governments, think tanks, universities and other organizations do not make decisions; only individuals can.Individuals conceive ideas, invest time and effort in formulating them, and persuade others to accept them. Professor Alan Macfarlan has traced the origin of individualism in the West to 13th century England. He defined it as “the view that society is constituted of autonomous, equal units, namely separate individuals and that such individuals are more important, ultimately, than any larger constituent group. It is reflected in the concept of individual property, in the political and legal liberty of the individual, in the idea of the individual’s direct communication with God.")]

AS A GENERAL RULE, THEN, (EXCEPT IN INSTANCES WHERE THE COURTS, LEGISLATING FROM THE BENCH, HAVE ENGAGED IN SOCIAL ENGINEERING TO ATTENUATE PRIVATE PROPERTY RIGHTS FOR THE PERCEIVED 'PUBLIC GOOD', THROUGH USE OF EMINENT DOMAIN OR REGULATORY 'TAKINGS'), RESPECT FOR EXCLUSIVE PRIVATE PROPERTY & OTHER INDIVIDUAL RIGHTS SERVES AS A MAJOR POINT OF DEPARTURE FROM OTHER NATIONS. IN MANY NATIONS THROUGHOUT THE WORLD, THE POLITY (THE 'PUBLIC GOOD'), NOT THE INDIVIDUAL, IS RECOGNIZED AS THE MOST IMPORTANT UNIT IN SOCIETY, INCLUDING IN WESTERN EUROPE. IN OTHER WORDS, IN AMERICA, IT IS UNIVERSALLY UNDERSTOOD THAT 'THE PEOPLE' IMBUE GOVERNMENT WITH LEGITIMACY - SINCE THE U.S. CONSTITUTION PRECEDED THE FORMATION OF GOVERNMENT, GOVERNMENT CANNOT REMAIN IN POWER WITHOUT THE APPROVAL/'LICENSE TO OPERATE' OF THE AMERICAN PEOPLE. RULE OF LAW IS THE NORM, NOT RULE BY LAW - RULE OF MEN. SINCE IN EUROPE, GOVERNMENT (THE 'STATE') PRECEDED THE DRAFTING OF CONSTITUTIONS, THE PEOPLES' RIGHTS ARE SUBJECT TO GOVERNMENT OVERRIDE - i.e. THEY ARE ATTENUATED. JUST AS EASILY AS GOVERNMENT GRANTS PEOPLE THEIR RIGHTS, THEY CAN TAKETH THEM AWAY.]

[TRANS-ATLANTIC DIFFERENCES IN THE RESPECT FOR & RECOGNITION OF THE INDIVIDUAL AND EXCLUSIVE PRIVATE PROPERTY RIGHTS HAS BEEN CHARACTERIZED BY ONE SCHOLAR AS SYMPTOMATIC OF THE LONG-STANDING DIFFERENCES BETWEEN 'ANGLO-AMERICAN CAPITALISM' & 'CONTINENTAL CAPITALISM' THAT HAVE LONG BEEN HIDDEN BY THE PREVIOUS 'COLD WAR'. HE ALSO BELIEVES THAT MOST GLOBALISTS, ON BOTH SIDES OF THE ATLANTIC, WISH TO IGNORE THEM. HIS RESEARCH REVEALS THAT THERE ARE SIGNIFICANT DISTINCTIONS BETWEEN ANGLO-AMERICAN & CONTINENTAL CAPITALISM THAT MUST BE UNDERSTOOD BEFORE GLOBAL HARMONIZATION CAN TAKE PLACE:]

["German law protects property rights only to the extent that they serve 'human dignity' and the German welfare state. Property rights in Italy are also attenuated; the Italian Constitution allows protection of private property insofar as it serves a social function. Thus, property rights in Germany and Italy neither protect the subjective preferences of their owners nor block legislative and regulatory redistributive measures. The attenuation of private property rights enables the government to interfere with the right of individuals to seek the best use for the goods they own...The contrast between their version of capitalism (hereafter: continental capitalism) and Anglo-American capitalism is striking. Reflecting its skepticism about rulers’ foresight and goodwill, classical capitalism considers any outcome to be fair and just as long as it emerges from the process of voluntary interactions under the umbrella of negative rights. In contrast, continental capitalism believes in rulers’ foresight and goodwill. It means that continental capitalism does not view the government as a predator requiring the rule of law to tame it. On the contrary, it wants the government to be an active factor in running the economy.

Continental capitalism is then more concerned with the desired outcome of economic activities than with the process of voluntary interactions leading to unanticipated results. Terms such as public interest, social justice and other grand-sounding names are used to justify the desired outcome of economic activities. Whatever term is used to explicate the desired outcome, it is a façade hiding subjective preferences of the political-scientific elite."

See: Svetozar (Steve) Pejovich, Private Property – A Prerequisite for Classical Capitalism”, Prepared for the Conference on The Roots of Capitalism, (Oct. 16-18, 2005) at p. 3, at: http://www.easibulgaria.org/docs/Pejovic.doc ; Svetozar (Steve) Pejovich, Capitalism and the Rule of Law: The Case for Common Law, Prepared for discussion at Workshop in Philosophy, Politics and Economics at George Mason University (Oct. 9, 2007) at pp. 4-5, at: http://economics.gmu.edu/pboettke/Boettke/workshop/fall07/Pejovich.pdf .]

[IF UNCLOS REFLECTS A GLOBAL EFFORT TO HARMONIZE ENVIRONMENTAL LAWS SO THEY REFLECT A GRAND COMPROMISE THAT ALL NATIONS CAN LIVE WITH, THE U.S. IS LIKELY TO LOSE OUT. THIS WILL INEVITABLY INVOLVE A LOSS OF INDIVIDUAL RIGHTS GUARANTEED BY THE U.S. CONSTITUTION & BILL OF RIGHTS, NAMELY PROPERTY RIGHTS, DUE PROCESS RIGHTS & AMERICAN INDIVIDUALISM. THIS IS EVIDENTLY CLEAR GIVEN THE UNCLOS' EMPHASIS OF THE 'COMMON HERITAGE OF MANKIND' DOCTRINE THAT REFLECTS THE EUROPEAN SOCIAL MODEL OF COMMUNALISM. CONGRESS SHOULD HOLD OPEN, PUBLIC & TRANSPARENT HEARINGS TO INVESTIGATE AND EXPLAIN THE TREATY'S ENVIRONMENTAL PROVISIONS & THEIR IMPACT ON PRIVATE PROPERTY RIGHTS SHOULD THE U.S. RATIFY IT. BY DOING SO, THE AMERICAN PEOPLE WOULD BE PROVIDED WITH THE OPPORTUNITY TO DECIDE FOR THEMSELVES & THEN COMMUNICATE THAT DECISION TO THEIR ELECTED REPRESENTATIVES.]

Ratifying the treaty also will promote environmental interests and “will give the United States a seat at the table when the rights that are vital to our interests are debated and interpreted,” said the president.

The ABA has supported U.S. accession to the Law of the Sea Convention since 1994, when it went into effect after the 60th U.N. member state ratified it. The convention creates a structure to allow member states to address issues relating to navigation, territorial and resource rights, and environmental protection on the seas that cover some two-thirds of the world’s surface.

“It is difficult to conceive of any reason why the United States should not be a party to, and take a leading role in, advancing the rule of law as it applies to the seas,” said ABA President William H. Neukom of Seattle in a written statement (PDF) submitted to the Senate Foreign Relations Committee in September.

[THIS IS A GOOD QUESTION. BUT, IF THE U.S. CONSTITUTIONAL SYSTEM IS UNIQUE AMONG NATIONS, AND MOST OTHER NATIONS DO NOT ASPIRE TO RECOGNIZE AND PROTECT THE RIGHTS GUARANTEED BY THE U.S. CONSTITUTION &, BY EXTENSION, THE RULE OF LAW, EITHER ON LAND OR AT SEA, THEN WHO & HOW WILL THE U.S. LEAD? LEADING NATIONS AGAINST COMMUNISM AND THE FORMER SOVIET UNION WAS ONE THING, BUT LEADING NATIONS AGAINST TERRORISM HAS PROVEN TO BE ANOTHER. HOW THEN TO LEAD THEM IN A RISK-BASED SCIENCE, ECONOMIC COST-BENEFIT & RULE OF LAW-BASED MANNER? HOW LONG WILL IT TAKE? WHAT MUST THE U.S. GIVE UP IN TERMS OF SOVEREIGNTY? HOW MUCH OF OUR INDIVIDUALLY GUARANTEED CONSTITUTIONAL RIGHTS MUST WE SURRENDER IN THE PROCESS?

REMEMBER, THE AMERICAN PEOPLE MUST KNOW WHAT THEY ARE GETTING INTO WHEN A TREATY IS TO BE RATIFIED, JUST AS WHEN THEIR PROPERTY IS TO BE TAKEN AWAY.]

“It will serve our interests for as long as we are bordered by two great oceans. Looking to the future, ratification would also do much to re-establish our credibility as a negotiating partner and leader, as we have always been, in furthering the rule of law in the world.”

ARCTIC COMES INTO PLAY

And then there’s the arctic. the changing climate near the North Pole —widely interpreted to be a result of global warming—has raised speculation among scientists, energy companies and governments that the region could be a feasible source of oil, gas and minerals.

Experts say the Law of the Sea Convention will be crucial to allocating rights to those resources, especially among the nations that potentially could claim sovereignty over some regions of the Arctic: Russia, Canada, Norway, Denmark (which controls Greenland) and the United States. (A separate international agreement governs Antarctica.)

The convention provides a framework for discussing access to resources in the Arctic, says David D. Caron, a co-director of the Law of the Sea Institute at the University of California at Berkeley. But, he notes, “it becomes more complicated if we don’t participate. Our voice is diminished by not being part of the treaty, even though we’ll still be heard if we yell louder.”

[WELL, THERE IS CERTAINLY NO CONSENSUS ABOUT THIS - DIFFERENCES OF OPINION STILL ABOUND. See: How Can Americans Get Beyond Debate Over Causation If UNCLOS Would Subject U.S.Arctic Oil Fields & Tankers to the Precautionary Principle??, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/can-americans-get-beyond-debate-over.html ; Former UN Legal Affairs Official Bent Out of Shape by 'Arctic Meltdown': Proclaims the Multilateral UNCLOS Norms & Regulations - PRECAUTION - Govern, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/former-un-legal-affairs-official-bent.html .]

The irony is that the United States still stands outside the convention—it’s the last major industrial or maritime nation to put off ratification— after playing such a vital role in the six-year drafting process that began in 1974, says Moore.

“This is one of the clearest and strongest victories for the United States in the history of multilateral negotiations,” he says. “The United States did very well on the merits.”

[NEITHER FORMER PRESIDENT RONALD REAGAN, NOR HIS CHIEF UNCLOS NEGOTIATOR, JAMES MALONE, THOUGHT SO, & FOR GOOD REASON.]

NAUTICAL EXCLUSIVITY

Among the provisions that favor U.S. interests, say Moore and other convention proponents, is the recognition of a 12-nautical-mile boundary of territorial waters for coastal nations as well as resource management rights within a 200-nautical-mile exclusive economic zone. (A nautical mile is equivalent to 1.15 statute miles.)

As a party to the convention, the United States would have the largest EEZ of any nation in the world, according to briefing materials prepared by the ABA Governmental Affairs Office.

[ AS FAR AS SOVEREIGN BOUNDARIES GO, THE UNCLOS GRANTS THE UNITED STATES NOTHING THAT IT DID NOT ALREADY HAVE SOVEREIGN CONTROL OVER - THE TERRITORIAL SEA, THE COASTAL SEA, THE CONTIGUOUS ZONE, THE EXCLUSIVE ECONOMIC ZONE, THE CONTINENTAL SHELF - WHICH THREE FORMER PRESIDENTS OF THE UNITED STATES UNILATERALLY DECLARED AS SOVEREIGN U.S. TERRITORY. THE UNCLOS MERELY CODIFIED IN A TREATY ALL NOTIONS OF SOVEREIGN OCEANS BORDERS THAT CUSTOMARY INTERNATIONAL LAW HAD HISTORICALLY RECOGNIZED. THUS, HISTORICAL PRECEDENT REFLECTS THAT U.S. SOVEREIGN BORDERS ARE SECURE. WHAT UNCLOS PROVIDES FOR THAT IS NEW HERE, IS THE EXTENSION OF THE CONTINENTAL SHELF. HOWEVER, IF HISTORICAL PRECEDENT IS RELIED ON, THE U.S. CAN UNILATERALLY DECLARE AN EXTENSION ONCE IT HAS ACCUMULATED IRONCLAD GEOLOGICAL EVIDENCE SUPPORTING ITS CLAIM. See: U.S. Can Declare Extension of Sovereign Boundaries Independent of the UNCLOS, Precedents Show, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/us-can-declare-extension-of-sovereign.html .]

The convention also grants coastal nations sovereign rights over natural resources in the continental shelf extending from their shores and further grants rights to conduct deep seabed mining in designated areas of the ocean floor (although none is under way at this time).

[THE CONVENTION DOES CANNOT GRANT THE U.S. RIGHTS TO DO THAT WHICH IT ALREADY HAD THE RIGHT TO DO ACCORDING TO CUSTOMARY INTERNATIONAL LAW.]

A catch for the United States, however, is that a member state must make its claim to continental shelf areas to a special commission within a decade after ratifying the convention. Because it hasn’t ratified the convention, the United States can’t file a claim with the commission, which will issue recommendations on which claims to the continental shelf should be recognized.

Those deadlines could be particularly important because the Commission on the Limits of the Continental Shelf is likely to be the body that determines whether claims by various nations to development rights over regions of the Arctic have merit.

[IN OTHER WORDS, PROPONENTS OF THE UNCLOS ARE SATISFIED WITH PROVIDING A U.N. INTERGOVERNMENTAL INSTITUTION LACKING POLITICAL ACCOUNTABILITY WITH THE JURISDICTION TO DETERMINE U.S. SOVEREIGN BORDERS, SOMETHING THAT IS HISTORICALLY UNPRECEDENTED.]

When Russian scientists dropped a titanium version of their national flag on the ocean floor under the North Pole, the gesture was symbolic, Caron says. More significant, he says, is the claim Russia filed with the commission that the Lomonosov Ridge, which reaches deep into the Arctic, is an extension of its continental shelf. Meanwhile, Denmark has suggested that the ridge actually is connected to Greenland. Experts say any solution will likely involve direct talks between claimant nations.

From a national security standpoint, the Law of the Sea Convention is important because it calls for coastal states to recognize the right of “innocent passage” through their waters by both naval vessels and commercial ships. It grants ship and aircraft passage through straits used for international navigation, many of them in strategically sensitive areas.

[UNFORTUNATELY, WHILE THE TREATY CALLS FOR 'INNOCENT PASSAGE', MANY COASTAL STATES, SUCH AS AUSTRALIA, CANADA AND THE MEMBER STATES OF THE EUROPEAN UNION DO NOT RECOGNIZE 'INNOCENT PASSAGE' IF THEY CAN DREAM UP AN ENVIRONMENTAL REASON NOT TO. IN OTHER WORDS, THE QUAINT NOTION OF 'INNOCENT PASSAGE' IS CIRCUMSCRIBED BY UNCLOS' 45+ ENVIRONMENTAL ARTICLES, ANNEXES, REGULATIONS & PROTOCOLS. See: UNCLOS Ratification Would Provide a 'Shield of U.S. Sovereignty' Against EU & Environmentalist-Inspired 'Lawfare'??, at: http://itssdjournalunclos-lost.blogspot.com/2008/05/unclos-ratification-would-provide.html .]

Taken together, these provisions represent “an astounding expansion of U.S. sovereignty,” says Moore.

Opponents of the convention don’t see it that way. Instead, they maintain that the convention would deprive the United States of sovereign rights. In particular, their concerns focus on the potential powers of three bodies created by the convention to consider disputes over the use of the oceans.

In addition to the Commission on the Limits of the Continental Shelf, the International Seabed Authority was created to oversee mining and other commercial activities on the ocean floor. The International Tribunal for the Law of the Sea was created to adjudicate disputes submitted to it that arise out of interpretation and application of treaty provisions.

A common complaint of convention opponents is that these bodies would amount to a “nautical U.N.” empowered to limit U.S. rights on and under the seas.

But convention supporters say those bodies do not in most cases have ultimate decision or enforcement powers, but rather were created to give nations a framework to seek resolutions to disputes. They note that the convention also provides for other dispute resolution mechanisms, including arbitration, which the U.S. government has indicated it favors.

[WHILE IT IS TRUE THAT THE UNCLOS PROVIDES FOR A MENU OF DISPUTE SETTLEMENT OPTIONS, INCLUDING RESORT TO THE INT'L TRIBUNAL ON THE LAW OF THE SEA (ITLOS), THE INT'L COURT OF JUSTICE (ICJ) & ARBITRATION, U.S. VICTORY IN THESE FORUMS IS NOT ASSURED, GIVEN THAT THE U.S. WOULD HAVE ONLY ONE SEAT ON ANY ONE OF THESE TRIBUNALS, AND THERE ARE MANY NATIONS WITH INTERESTS HOSTILE TO THE U.S. AS CONCERNS ENFORCEMENT POWERS, WHY SHOULD THE U.S. JOIN A TREATY IF IT DOES NOT INTEND TO FOLLOW ITS RULES??]

[IN THIS REGARD, READERS SHOULD CONSIDER HOW ONCE THE U.S. RATIFIES THE UNCLOS, IT IS BOUND TO, FOR ALL INTENSIVE PURPOSES: UNCLOS PARTIES, PURSUANT TO UNCLOS ARTICLES 186-187 and ANNEX VI, HAVE NO CHOICE BUT TO SUBMIT TO THE COMPULSORY JURISDICTION OF THE ITLOS SEABED DISPUTES CHAMBER FOR ANY DISPUTE ARISING BETWEEN THEM IN THE 'AREA', WHICH IS UNIQUE AMONG INTERNATIONAL ENVIRONMENTAL AGREEMENTS, BECAUSE ONLY UNDER THE UNCLOS & ITS MIGRATORY FISH STOCKS PROTOCOL, IS DISPUTE SETTLEMENT COMPULSORY and BINDING. UNCLOS PARTIES ARE ALSO EXPRESSLY REQUIRED BY ARTICLE 39 OF ANNEX VI OF THE UNCLOS TO ENSURE THAT THEIR DOMESTIC COURTS ENFORCE THE DECISIONS OF THE SEABED DISPUTES CHAMBER "IN THE SAME MANNER AS JUDGMENTS OR ORDERS OF THE HIGHEST COURT OF THE STATE PARTY IN WHOSE TERRITORY THE INFRINGEMENT IS SOUGHT" - THIS MEANS THE U.S. SUPREME COURT. ARE AMERICAN CITIZENS READY TO INSTRUCT THE U.S. SUPREME COURT TO GIVE UP ITS FEDERAL JURISDICTION TO DECIDE CASES IMPLICATING THE U.S. CONSTITUTION TO AN
UNCLOS TRIBUNAL??? WOULD UNCLOS TREATY LAW TRUMP THE U.S. CONSTITUTION & BILL OF RIGHTS?? ARE THERE NOT CONSTITUTIONAL LIMITS ON THE FEDERAL TREATY-MAKING POWER?]

[See: Gregory Rose and Lal Kurukulasuriya, Comparative Analysis of Compliance Mechanisms Under Selected Multilateral Environmental Agreements, United Nations Environment Programme (Dec. 2005) at pp. 12, 28 and 95, at: http://www.unep.org/Law/PDF/comp_analysis_compliance_mechanisms.pdf .]

[See: Lawrence Kogan, Brazil's IP Opportunism Threatens U.S. Private Property Rights, 38 U. MIAMI INTER-AM. L. REV. 1, at 114-115 (2006) at:

http://www.itssd.org/Publications/IAL105-II(frompublisher)%5B2%5D.pdf . (While treaties and federal statutes constitute the “supreme law of the United States,” and are effectively equal to one another in status, they are both inferior to the U.S. Constitution and the Bill of Rights. The U.S. Supreme Court recognized this hierarchy almost fifty years ago, in the case of Reid v. Covert 345 U.S. 1, 16-17 (1957) . Thus, according to the Court, it is arguable that the President cannot execute and that Congress can neither ratify nor enact legislation implementing a treaty with another nation that effectively violates any of the Constitutional protections afforded U.S. citizens.509 Furthermore, “the records of the Virginia Ratifying Convention contain specific discussions of the scope of the treaty power. These discussions confirm that the Framers did in fact envision [constitutional] limitations on the treaty power” (citing Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L.REV. 390, 413 (1998)).]

Moreover, convention proponents suggest that the U.N. comparisons reveal the ideological basis for much of the opposition. “This is a serious isolationist attack on reasoned U.S. foreign policy,” Moore says.

[NO, MR. MOORE. WHAT PEOPLE OBJECT TO IS THE FACT THAT YOU AND OTHER PROPONENTS OF THE TREATY WILL NOT SHARE ALL THAT THERE IS TO KNOW ABOUT THIS MOST COMPLEX, EXTENSIVE & SIGNIFICANT OF INTERNATIONAL TREATIES, THE ENVIRONMENTAL PROVISIONS OF WHICH WILL IMPACT ALL SECTORS OF THE U.S. ECONOMY, ESPECIALLY IF U.S. ENVIRONMENTAL LAWS ARE AMENDED OR OTHERWISE IMPLEMENTED DIFFERENTLY IN A WAY THAT DIRECTLY OR INDIRECTLY ADOPTS EUROPE'S PRECAUTIONARY PRINCIPLE WITHIN THE U.S. - ON LAND & AS WELL AS AT SEA. WHAT PEOPLE OBJECT TO IS THE LACK OF PROPONENTS' RESPECT FOR THE U.S. CONSTITUTION, WHICH SENATORS TAKE AN OATH TO SUPPORT AND UPHOLD AS CUSTODIANS & REPRESENTATIVES OF THE AMERICAN PEOPLE.

“The Senators and Representatives before mentioned...shall be bound by Oath or Affirmation, to support the Constitution.”
Art. VI.3, the Constitution of the United States of America

“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Senate and House of Representatives Oath of Office

THE AMERICAN PEOPLE ARE ENTITLED TO 'DUE PROCESS OF LAW' WHICH ENTAILS HAVING THE CONGRESS CONVENE OPEN, PUBLIC & TRANSPARENT HEARINGS ABOUT THE UNCLOS & THE ECONOMIC IMPACTS OF ITS 45 + ENVIRONMENTAL ARTICLES, ANNEXES, REGULATIONS & PROTOCOLS.]

LIMITING FUTURE CHOICES

One of the greatest risks for the United States in not ratifying the Law of the Sea Convention is that it will be left out of the process for deciding issues in the future that relate to navigation, commercial use and environmental policies for the oceans, says Margaret Lynch Tomlinson of Washington, D.C., who chairs the Law of the Sea Committee in the ABA Section of International Law.

Recasting customary law of the sea into the framework of an international treaty “was a huge step forward,” says Tomlinson, but now the United States must recognize that the law created by the convention “is not a static thing. Obviously, in the future there will be more changes. The United States needs to be involved in those discussions or they’ll get out of our control.”

[THIS IS PRECISELY THE POINT. THE LAWS OF FREEDOM OF NAVIGATION & INNOCENT PASSAGE EXISTED PRIOR TO THE CONVENTION AS CUSTOMARY INTERNATIONAL LAW. IF THEY WERE RECAST AS MS. TOMLINSON STATES, THEN IT IS THAT THEY ARE NOW CIRCUMSCRIBED BY UNCLOS' 45+ ENVIRONMENTAL ARTICLES, ANNEXES, REGULATIONS & PROTOCOLS WHICH SET FORTH INTERNATIONAL ENVIRONMENTAL STANDARDS THAT ARE DYNAMIC - i.e., THE CONTINUE TO EVOLVE ALONG WITH INT'L ENVIRONMENTAL LAW AS PRACTICED BY NATION STATES THAT ARE PARTIES TO OVER 300 INT'L ENVIRONMENTAL AGREEMENTS, MOST OF WHICH ARE OVERSEEN BY THE U.N. ENVIRONMENT PROGRAM. THE U.S. IS ALSO NOT A PARTY TO MANY OF THESE TREATIES, BECAUSE EACH OF THEM INCORPORATES EUROPE'S PRECAUTIONARY PRINCIPLE, THE APPLICATION OF WHICH AN UNCLOS TRIBUNAL WOULD NEED TO CONSIDER IN THE EVENT IT IS INVOKED AS A PROVISIONAL MEASURE BY A PARTY INITIATING AN ENVIRONMENTAL DISPUTE. WHY WOULD THE U.S. WANT TO BE PART OF SUCH AN ENTERPRISE?]

The question is how effectively the United States will exert its influence, Tomlinson says. “We’ll always defend our national security interests,” she says, “but there’s a difference between leadership and just asserting yourself in a military way.”

[THERE IS MORE TO IT THAN THAT. LEADERSHIP OFTEN INVOLVES DEFENSE OF IMPORTANT PRINCIPLES, REJECTION OF BAD IDEAS AND THE COURAGE TO FORGE A DIFFERENT PATH BY ONESELF IF NECESSARY. ONE CAN JUST AS EASILY ASSERT ONESELF ECONOMICALLY, SCIENTIFICALLY & TECHNOLOGICALLY IN ORDER TO DEFEND NATIONAL SECURITY INTERESTS. THE PRECAUTIONARY PRINCIPLE WOULD PREVENT THE U.S. FROM DOING THIS. IT HAS ALREADY SERIOUSLY HARMED EUROPE ECONOMICALLY & TECHNOLOGICALLY. THAT'S WHY EUROPE IS TRYING TO INCORPORATE IT INTO AS MANY INT'L TREATIES AS IS POSSIBLE THAT OTHER COUNTRIES RATIFY, SO THAT OTHER COUNTRIES ARE ALSO BOUND BY THE PRECAUTIONARY PRINCIPLE, ONE OF EUROPE'S MOST PROFOUND MISTAKES.]

Why Has the U.S. Senate Remained So Quiet About UNCLOS?? Wasn’t Its Ratification Supposed to be a Slam Dunk??

noreply@blogger.com (ITSSD Charitable Mission) — Fri, 09 May 2008 13:20:00 +0000

http://www.opiniojuris.org/posts/1200350661.shtml

All Quiet on UNCLOS

By Duncan Hollis

Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics

01.14.2008 at 5:44pm

Notwithstanding its recent efforts to avoid recess appointments with 12 second sessions, the Senate will return in full next Monday. For international lawyers, the big question is whether UNCLOS finally gets a vote for the Senate's advice and consent. As I noted here and here, the SFRC voted UNCLOS out of Committee last fall largely along party lines. But it's been all quiet since. Indeed, I've heard from a couple of sources that the window for Senate A&C to accession is closing, if not closed. What I don't know is why? Is it that the Democracts really don't have the two-thirds majority for A&C? Or, is the opposition less than a third of the Senate, but the Senate leadership doesn't want to have the UNCLOS fight given all the procedural roadblocks and counter-measures even a handful of heavily committed Senators can invoke to oppose the treaty or forestall a vote? I suppose the fact that the election cycle is in full swing may have some explanatory value as well. But, what do readers think (or know)?

If UNCLOS doesn't get a vote this Congress, it has to go back and start all over again at the SFRC, something I suspect UNCLOS supporters would be eager to avoid. In that respect, I wonder if the supporters have one last push in them, or if the best chance for U.S. accession in the last decade has already passed.

[THE ANSWER IS: ALL OF THE ABOVE. PERHAPS, NEXT TIME THE UNCLOS RATIFICATION PROCESS BEGINS THE ADMINISTRATION & CONGRESS WILL HOLD OPEN, PUBLIC & TRANSPARENT HEARINGS UNDER OATH??? HIGHLY DOUBTFUL!]

Peter Prows:

1.15.2008 6:23am

As world commodities prices continue to rise, perhaps there will also be a push (or maybe a pushback?) as well from US mining companies interested in dusting off Part XI and the 1994 Agreement for prospective seabed mining ventures.

[A LIKELY THOUGHT RUNNING ACROSS THE MINDS OF OIL & GAS EXECUTIVES. BUT, THEY'RE REALLY NOT INTERSTED IN DEALING WITH THE INT'L SEABED AUTHORITY. THEY WOULD RATHER PURSUE U.S. TERRITORIAL EXPANSION VIA THE MAKING OF SUBMISSIONS TO THE U.N. CONTINENTAL SHELF COMMISSION FOR PURPOSES OF EXPLOITING U.S. GOV'T -GRANTED DRILLING/EXTRACTION LICENSES. WHY DO YOU THINK THE BUSH ADMINISTRATION RESUBMITTED UNCLOS TO THE SFRC SHORTLY AFTER AN AMENDMENT TO THE LONDON DUMPING CONVENTION THAT EXEMPTED CARBON SEQUESTRATION IN THE DEEP SEABED FROM THE TREATY'S POLLUTION PROVISIONS WAS SECURED?? OBVIOUSLY, OIL & GAS INTERESTS WERE BEHIND THIS PUSH, & ARE ALSO BEHIND THE CURRENT PUSH AT THE 'ARCTIC'. See e.g.,: UNCLOS Alchemy, http://itssdjournalunclos-lost.blogspot.com/2008/01/unclos-alchemy.html].

Lawrence Kogan:

Dear Duncan,

Perhaps the Senate's silence surrounding UNCLOS has something to do with:

1)New data that has been provided about the universe of MEAs revolving around and relating to the environmental regulations within Part XII of the UNCLOS and the final and proposed environmental regulations of the International Seabed Authority;

2)The plans of some UNCLOS State Parties to 'import' norms from such other treaties to interpret UNCLOS norms in the event ITLOS or arbitral jurisdiction is invoked in a dispute with the US, should it ratify;

3)The plans to reform the UNEP and the now moribund UN Trusteeship, to strengthen the UNEP into an IEO, as suggested by France and Germany, and to improve the relationship between the UNEP secretariats and the UN General Secretariat overseeing the UNCLOS;

4)The plans to vest the International Seabed Authority with broader and more extensive scope to regulate the marine environment of the Res Communis (Global Commons), including below, on and above the seabed, the water columns, and the air above, with ISA jurisdiction in a dispute arguably reaching into US EEZs and coastal waters, inland waterways, and the continental US;

5)The plans to impose environmental taxes and user fees on US and other countries' commercial activities for the use of the Res Communis, as defined above, as explained by France and Germany;

6)The growing number of lawsuits commenced by US environmental extremist groups against the US Navy for operating sonar devices along US coastlines and the US EEZ, such that the Navy JAG has to employ a greater number of attorneys just to keep up with the caseload;

7)The European Union and its coastal EU Member States' growing environmental activism to claim more and more of the EU EEZ as off limits to commercial traffic, as 'Marine Protected Areas' and/or as 'Particularly Sensitive Sea Areas' (PSSA's);

8)Clear and convincing evidence that the UNCLOS, as it is now being practiced by the EU and its Member States, incorporates the wingspread version of the hazard-not-risk-based Precautionary Principle, directly, indirectly, and 'in spirit'.

Perhaps since evidence about all of these factors have been adduced, the US Senate leadership of the 110th Congress believes it doesn't have the requisite number of votes to ratify the treaty. Alternatively, they do not believe it wise to expend the political capital to debate the treaty on the floor of the Senate and risk exposing the documented evidence showing all of the above.

Don't you think this could be why???

Best Regards,

Lawrence

If US Environmentalists Employ Lawfare Against Our Navy What Do You Think the Precautionary Principle-Crazed European Union & its Greens Will Do??

noreply@blogger.com (ITSSD Charitable Mission) — Thu, 08 May 2008 03:57:00 +0000

http://article.nationalreview.com/?q=MjY3MTk1OGEwYjIwMzBiY2U1NmIwZWI4MmZmODE4Yzg=

Mugged by Legality?

By Frank J. Gaffney Jr.

National Review Online

January 22, 2008

It is one of the truisms of politics that a conservative is often enough a former liberal who has been “mugged by reality.” The line comes to mind in the wake of President Bush’s decision Thursday to allow the Navy to ignore a federal court order and continue training with powerful sonars off the West Coast of the United States. Case law and court decisions threatened to end this naval training, which is essential to U.S. national security.

Having seen how far American judges would go to undermine U.S. interests, the episode should be a wake-up call to the president to resist ratification of the Law of the Sea Treaty, which would subject U.S. maritime interests to international judges who care even less for American security.

For decades, the Navy’s Judge Advocate General Corps has been in a lather to get the United States into the Law of the Sea Treaty (LOST). Were it not for those lawyers’ idée fixe — namely, that U.S. adherence to LOST is essential to the execution of the military’s power-projection and mobility missions — it is unlikely that George W. Bush would have decided to seek the ratification of LOST. His administration — like Ronald Reagan’s did 23 years ago — would have refused to subject the United States to this controversial international accord.

LOST’s objectionable provisions include the following:

This accord, which its proponents call a “constitution of the oceans” — infringes unacceptably on American sovereignty.

The treaty imposes curbs on military operations inconsistent with routine U.S. practice and national-security requirements.

It empowers a U.N. agency with authority to exercise control over the world’s oceans, seabeds, and even the airspace above them.

This agency — the International Seabed Authority — will have what amounts to the power to impose taxes in the form of various levies and fees, an ominous precedent for any supranational body.

It will also be able to decide who will be allowed to develop the resources on and beneath the ocean floor and to require transfers of technology and proprietary data from developed nations’ companies to international bureaucrats and third-world states.

Particularly worrisome are numerous, sweeping provisions requiring “protection of the marine environment” that could give rise to obligations to impose stricter environmental requirements than those of the Clean Air Act or Clean Water Act.

Underlying all of these requirements is the Luddite “precautionary principle,” a European-derived legal tenet according to which a country must guarantee that a proposed action will not cause any environmental harm before it can proceed.

Worse yet, LOST requires that any disputes about the reach and implementation of these and other treaty provisions be submitted to mandatory international dispute-resolution bodies, the findings of which are binding, with no appeal.

The Navy (and its sister services) are already hobbled at the hands of environmental activists using domestic courts to interfere with military operations. The practice has proved to be such an effective asymmetric weapon that it has come to be known as “lawfare.”

A case in point is the 2007 civil suit brought against the Navy by the Natural Resources Defense Council. The NRDC — a leftist organization whose “green” agenda often serves as a cover for anti-military activism — sought an injunction against the sea service on the grounds that its use of high-power sonar constituted violations of federal environmental statutes.

The Ninth Circuit Court of Appeals recently ruled that the Navy’s plan for protecting marine mammals off the West Coast during sonar training was inadequate, and ordered the case back to U.S. District Court Judge Florence-Marie Cooper. Judge Cooper proceeded to ban sonar use within 12 nautical miles of the coast and mandated shutdown procedures when the Navy spotted marine mammals. All this in spite of the fact that the Navy already employs 29 procedures to lessen the impact of sonar on marine life.

So egregious would be the impact of these rulings that the Navy urged President Bush to declare it exempt from the laws that Judge Cooper had interpreted to prevent sonar training. In so doing, he declared the sonar training to be “in the paramount interest of the United States.” He added that, “This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security.”

Fortunately, the president currently enjoys the latitude to prevent the creation of what would amount to sonar-free sanctuaries in strategically sensitive areas (notably, off San Diego), perhaps to be exploited by the very quiet submarines now proliferating in Chinese and other hostile navies. He not only recognized that such threats demand that our sailors receive the most effective sonar training possible; he took steps to ensure that they received that training. Today, the president is able to assign higher priority to their safety — and the nation’s security — than to the alleged impact of sonar on sea-life.

The bad news is that, if Bush’s Navy-impelled call for the Senate to ratify the Law of the Sea Treaty is approved, neither he nor his successors would likely be able to exercise such a waiver. In that event, if environmentalists turn to the Treaty’s tribunals and/or arbitral panels to enforce provisions more restrictive than U.S. laws (a safe bet), the Greens would very likely prevail. Hard experience tells us that international jurists all too often exhibit indifference towards, if not outright hostility to, American equities and positions. Such judges will ignore Navy protestations that they cannot interfere, asserting that the activities in question are not

military ones exempted under the Treaty, but environmental predation explicitly prohibited by it.

Sadly, an increasing number of federal judges in this country believe they must submit to the dictates of international tribunals and, for that matter, organizations and conferences. Ironically, the Bush administration itself has filed a brief with the Supreme Court in connection with the now-pending Medellin v. Texas case to the effect that a ruling of the International Court of Justice trumps domestic law.

The current importuning of the Navy to protect its operations from environmental laws should serve as a powerful warning to the president: The national security interests of the United States will be on the line in the future, just as much as they are today. Then, as now, the Navy will be a prime target of those who seek to use “lawfare” to undermine or otherwise interfere with those interests.

By acting to prevent such an action at this juncture, Bush has unwittingly validated the warnings of LOST’s critics. For this reason, among many others, he should withdraw his support for the Law of the Sea Treaty — and give the Navy’s shortsighted, inconsistent, and misguided lawyers who have championed it the old heave-ho.

— Frank J. Gaffney is president of the Center for Security Policy in Washington.

-------------------------------------------------------------------------------------------------

http://www.dailymail.co.uk/pages/live/articles/news/worldnews.html?in_article_id=492804&in_page_id=1811

The Uninvited Guest: Chinese Sub Pops Up in Middle of U.S. Navy Exercise, Leaving Military Chiefs Red-Faced

By MATTHEW HICKLEY -

10th November 2007

Comments (6)

When the U.S. Navy deploys a battle fleet on exercises, it takes the security of its aircraft carriers very seriously indeed.

At least a dozen warships provide a physical guard while the technical wizardry of the world's only military superpower offers an invisible shield to detect and deter any intruders.

That is the theory. Or, rather, was the theory.

Uninvited guest: A Chinese Song Class submarine, like the one that sufaced by the U.S.S. Kitty Hawk

American military chiefs have been left dumbstruck by an undetected Chinese submarine popping up at the heart of a recent Pacific exercise and close to the vast U.S.S. Kitty Hawk - a 1,000ft supercarrier with 4,500 personnel on board.

By the time it surfaced the 160ft Song Class diesel-electric attack submarine is understood to have sailed within viable range for launching torpedoes or missiles at the carrier.

According to senior Nato officials the incident caused consternation in the U.S. Navy.
The Americans had no idea China's fast-growing submarine fleet had reached such a level of sophistication, or that it posed such a threat.

One Nato figure said the effect was "as big a shock as the Russians launching Sputnik" - a reference to the Soviet Union's first orbiting satellite in 1957 which marked the start of the space age.

The incident, which took place in the ocean between southern Japan and Taiwan, is a major embarrassment for the Pentagon.

The lone Chinese vessel slipped past at least a dozen other American warships which were supposed to protect the carrier from hostile aircraft or submarines.

And the rest of the costly defensive screen, which usually includes at least two U.S. submarines, was also apparently unable to detect it.

According to the Nato source, the encounter has forced a serious re-think of American and Nato naval strategy as commanders reconsider the level of threat from potentially hostile Chinese submarines.

It also led to tense diplomatic exchanges, with shaken American diplomats demanding to know why the submarine was "shadowing" the U.S. fleet while Beijing pleaded ignorance and dismissed the affair as coincidence.

Analysts believe Beijing was sending a message to America and the West demonstrating its rapidly-growing military capability to threaten foreign powers which try to interfere in its "backyard".

The People's Liberation Army Navy's submarine fleet includes at least two nuclear-missile launching vessels.

Its 13 Song Class submarines are extremely quiet and difficult to detect when running on electric motors.

Commodore Stephen Saunders, editor of Jane's Fighting Ships, and a former Royal Navy anti-submarine specialist, said the U.S. had paid relatively little attention to this form of warfare since the end of the Cold War.

He said: "It was certainly a wake-up call for the Americans.

"It would tie in with what we see the Chinese trying to do, which appears to be to deter the Americans from interfering or operating in their backyard, particularly in relation to Taiwan."

In January China carried a successful missile test, shooting down a satellite in orbit for the first time.

UNCLOS Ratification Would Provide a 'Shield of U.S. Sovereignty' Against EU & Environmentalist-Inspired 'Lawfare'??

noreply@blogger.com (ITSSD Charitable Mission) — Thu, 08 May 2008 00:44:00 +0000

http://www.washingtontimes.com/article/20070702/FOREIGN/107020031/1003

Compact called shield of sovereignty, security [??]

Washington Times

July 2, 2007

Bernard H. Oxman is a professor at the Miami University School of Law in Coral Gables, Fla., a vice president of the American Society of International Law and a member of the U.S. delegation from 1973 to 1982 that negotiated the Law of the Sea pact. He answered questions from reporter David R. Sands on the upcoming battle over the treaty.

Question: Does the Law of the Sea treaty raise legitimate concerns about sovereignty and overreaching by the United Nations?

Answer: No. The deep-seabed mining provisions have been fixed in a manner directly responsive to each of the concerns raised by President Reagan. The convention enhances the ability of the United States to protect its sovereignty in the same way it has done so since the birth of the republic, namely by maintaining and deploying its armed forces by sea to respond to any threat to our interests in any part of the world, long before that threat reaches our shores. It is the erosion of the global navigational rights and freedoms protected by the convention that would pose a grave threat to national security and national sovereignty.

[PROFESSOR OXMAN SEEMS TO ACKNOWLEDGE THAT THERE IS A GENUINE THREAT TO U.S. MILITARY FREEDOM OF NAVIGATION POSED BY WHAT IS NOW REFERRED TO AS 'LAWFARE' WHICH, PRESUMABLY, IS NOT PROTECTED BY THE UNCLOS.]

[“[L]AWFARE...A VARIANT OF WARFARE...IS A STRATEGY OF USING OR MISUSING LAW [(e.g., filing human rights or environmental lawsuits against the military to stop opposed activities) AS A SUBSTITUTE FOR TRADITIONAL MILITARY MEANS TO ACHIEVE MILITARY OBJECTIVES...[LlAWFARE IS OFTEN CONDUCTED DURING PEACETIME BY INTERNATIONAL GROUPS AND SERVICE ORGANIZATIONS. ITS DEFINITION AND THE LIMITS OF THE PHENOMENON ARE STILL VAGUE." See: Lawfare, the Latest in Asymmetries - Part One, Council on Foreign Relations (March 18, 2003) at: http://www.cfr.org/publication/5772/lawfare_the_latest_in_asymmetries.html ; Lawfare, the Latest in Asymmetries - Part Two, Council on Foreign Relations (May 22, 2003) at: http://www.cfr.org/publication/6191/lawfare_the_latest_in_asymmetries_part_two.html .]

[A RECENT U.S. NAVY DOCUMENT REFLECTS ONE ONE EXAMPLE OF 'LAWFARE'. IT STATES THAT, "THE DEPARTMENT OF DEFENSE HAS GIVEN THE NAVY A TWO-YEAR EXEMPTION FROM CERTAIN PROVISIONS OF THE MARINE MAMMAL PROTECTION ACT, A DECISION THAT WILL CAUSE MORE LAWFARE FROM ENVIRONMENTAL GROUPS" (emphasis added). See: Harold C. Hutchison, The War Against U.S. Submarines, STRATEGYPAGE.COM (Feb. 5, 2007) at: http://www.cus.navy.mil/paofiles/The_War_Against_US_Submarines.htm .]

[THERE ARE MANY OTHER EXAMPLES OF THIS KIND OF 'LAWFARE' BEING INITIATED BY U.S. ENVIRONMENTAL EXTREMIST GROUPS, FOREIGN GOVERNMENTS & INT'L ENVIRONMENTAL EXTREMIST GROUPS THEY FINANCIALLY SUPPORT]

[(See, e.g.,: EU Hides Behind 'Private' Standards in Effort to Secure Global Regulatory Control, PR Newswire in Smart Brief (Oct. 9, 2007) at: http://www.smartbrief.com/news/aaaa/industryPR-detail.jsp?id=B27CFDE2-53BA-453E-AC85-3A7A1595233D )].

[EVEN THE GOVERNMENTS OF AUSTRALIA & CANADA HAVE GOTTEN INTO or ARE PLANNING TO GET INTO THIS PRACTICE OF IMPAIRING THE U.S. NAVY'S INNOCENT PASSAGE IN INT'L STRAITS.]

[(See: Compulsory Pilotage in the Torres Strait, NEWSLETTER OF THE SEA POWER CENTRE AUSTRALIA - (APRIL 7, 2007) at: http://www.navy.gov.au/spc/semaphore/issue7_2007.html ("On 6 October 2006, Australia introduced compulsory pilotage for the Torres Strait and Great North East Channel...to protect sensitive marine habitats...This initiative was hotly debated at the International Maritime Organization (IMO) and has been formally protested by the United States and Singapore...").]

[See: Doug Struck, Dispute Over NW Passage Revived U.S. Asserts Free Use by All Ships - Canada Claims Jurisdiction, Washington Post (Nov. 6, 2006) at: http://www.washingtonpost.com/wp-dyn/content/article/2006/11/05/AR2006110500286.html ("The United States contends that the Northwest Passage, though owned by Canada, is an international strait with free passage for all, like other straits around the world...Canada counters that it has sole jurisdiction over the Northwest Passage and wants to enforce its own laws on ships in the Arctic waters.").]

[See: Duncan Hollis, Passing Gas through Passamaquoddy Bay, Opinio Juris (5/9/07) at: http://www.opiniojuri s.org/posts/1178720996.shtml ("Canada threatens legal action against the U.S. to ensure that liquefied natural gas (LNG) tankers do not transit its waterways en route to deliver LNG to new storage terminals being built along Maine’s coastline abutting Passamaquoddy Bay. It bases its claim on environmental reasons – “the waters are narrow & difficult to navigate, raising the specter of significant environmental and property damage should an accident (or even a terrorist attack occur)” and competitive reasons – “new LNG terminals would obviously compete with its own supply of LNG to the [US] through the very same pipelines.”).]

[See: Passamaquoddy Bay LNG Terminal Controversy (Not So) Innocent Passage: International Law and the Passamaquoddy Bay LNG Terminal Controversy, A Panel Discussion Hosted by the University of New Brunswick and the Canadian Council for International Law (May 11, 2008) at: http://www.ccil-ccdi.ca/index.php?option=com_content&task=view&id=223&Itemid=77 ("The issues the panel anticipates canvassing include: The status under international law of the waters of the proposed shipping route through Head Harbour Passage and the Passamaquoddy Bay; The right of innocent passage of foreign ships; The extent to which environmental risks may affect the right of innocent passage; and The constraints that the rules of international environmental law place on a state proposing to locate a potential hazardous activity in close proximity to another state...The Passamaquoddy Bay LNG controversy also raises questions about the need for a more cooperative approach to the governance of shared marine resources within the Passamaquoddy Bay, and the Gulf of Maine. The potential for the proposed LNG terminals to impact marine biological resources, including protected species, and the potential economic impact on coastal communities suggest the need for regulatory coordination that accounts for eco-system wide impacts...[T]he workshop may also address the following issues: Ocean governance / shared resource management structures and institutions; International rules protecting marine biological resources, including the Convention on Biological Diversity; and The application of general principles of international environmental law, such as the duty to cooperate, ecosystem integrity, the precautionary principle and environmental assessment.")]

[See also: Lawrence A. Kogan, US Military Review of the Law of the Sea Treaty Lacking: Planning Outsourcing Risks Triggering Logistics Nightmare at: http://itssdjournalunclos-lost.blogspot.com/2008/01/us-military-review-of-law-of-sea-treaty.html. (U.S. Military's private contractors not eligible for UNCLOS Arts. 297 -298 tribunal jurisdiction exemption for 'military activities'; thus UNCLOS & European Union environmental norms and standards based on the EU Precautionary Principle may be employed to restrict or ban their activities on the high seas and national EEZs, and could potentially hamper development of U.S. Navy military technologies).]

[MORE INFORMATION ABOUT THE EXTENT OF THE 'LAWFARE' BEING PERPETUATED AGAINST THE U.S. NAVY IN U.S. COURTS & UNILATERALLY WILL BE REVEALED IN A FORTHCOMING ITSSD UNCLOS JOURNAL BLOG ENTRY.]

[THUS, GETTING BACK TO THE DISCUSSION ABOUT HOW UNCLOS RATIFICATION WOULD PROTECT U.S. 'SOVEREIGNTY', IT IS ALSO ARGUABLE THAT PROF. OXMAN IS APPLYING A NARROW DEFINITION TO NATIONAL 'SOVEREIGNTY' IN HIS RESPONSE TO THE FIRST QUESTION POSED BY W/T REPORTER DAVID SANDS. WHILE OXMAN OBLIQUELY REFERS TO MORE THAN THE 'TRADITIONAL' (WESTPHALIAN) CONCEPT OF 'TERRITORIAL SOVEREIGNTY', WHICH MAY EXTEND TO FOREIGN MILITARY BASES, MILITARY VESSELS OPERATING ON THE 'HIGH SEAS' AND FOREIGN EMBASSIES, PROF. OXMAN DOESN'T SEEM TO DISCUSS THE EVOLVING CONCEPT OF 'FUNCTIONAL' SOVEREIGNTY, INTRODUCED BY THE CLUB OF ROME 40 YEARS AGO. ACCORDING TO THAT CONCEPT, SOVEREIGNTY RELIES UPON THE FORCE OF EVOLVING INTERNATIONAL LAW THAT IS, IN MANY WAYS, INCOMPATIBLE WITH THE U.S. CONSTITUTIONAL & COMMON LAW SYSTEMS - (IT INCREASINGLY ENTAILS RULE by LAW, not RULE of LAW).]

[THUS, IN ORDER TO ADEQUATELY 'TEST' PROF. OXMAN'S THESIS, THAT U.S. RATIFICATION OF THE UNCLOS WOULD PROVIDE A 'SHIELD OF U.S. SOVEREIGNTY', READERS MUST FIRST CONSIDER THE CREEPING EFFECTS OF INTERNATIONAL LAW ON THE U.S. EXERCISE OF 'FUNCTIONAL' & 'TRADITIONAL' SOVEREIGNTY, BOTH INTERNATIONALLY & DOMESTICALLY. IN OTHER WORDS, WE ARE SPEAKING HERE ABOUT DE JURE as well as DE FACTO CONSTRAINTS ON U.S. FREEDOM OF NAVIGATION & INNOCENT PASSAGE.]

[ACCORDING TO THE CLUB OF ROME, "FUNCTIONAL SOVEREIGNTY... DISTINGUISHES JURISDICTION OVER SPECIFIC USES FROM SOVEREIGNTY OVER GEOGRAPHIC SPACE...THIS WOULD PERMIT THE INTERWEAVING OF NATIONAL JURISDICTION AND INTERNATIONAL COMPETENCIES WITHIN THE SAME TERRITORIAL SPACE AND OPEN THE POSSIBLITY OF APPLYING THE CONCEPT OF 'COMMON HERITAGE OF MANKIND' BOTH BEYOND and WITHIN THE LIMITS OF NATIONAL JURISDICTION." See: RIO (Reshaping the International Order) Jan Tinbergen, Coordinator, (E.P. Dutton, New York, 1976) at p. 172, discussed in: Brent Jessop, 'Functional' Sovereignty and the Common Heritage of Mankind - Reshaping the International Order Part 3 (April 21, 2008) at: http://www.knowledgedrivenrevolution.com/Articles/200804/20080421_RIO_3_Common.htm ].

[IN ITS REPORT, THE CLUB OF ROME EMPHASIZED WHY SUCH A CONCEPT WAS DEEMED NECESSARY, AND WHAT IT REALLY ENTAILS.

"GIVEN THE GROWING LIST OF PROBLEMS CONFRONTING MANKIND, EVERY EFFORT MUST BE MADE TO STIMULATE PROCESSES WHICH POINT IN DIRECTIONS WHICH CAN BE DEEMED DESIRABLE. THIS WOULD CERTAINLY APPLY, FOR EXAMPLE, TO THE TENDENCY TOWARDS THE INCREASINGIN CENTRALIZATION OF DECISION-MAKING INVOLVING ISSUES BEYOND NATIONAL FRONTIERS [WHICH] SHOULD BE VIEWED AS A LOGICAL CONTINUATION OF THE PROCESS OF 'CHANGE' AND A PRECONDITION FOR THE EFFECTIVE ASSERTION OF NATIONAL SOVEREIGNTY." Id. at p. 103. ]

[IF THIS WERE NOT DISTURBING ENOUGH, BECAUSE IT SOUNDS LIKE THE SLOGAN OFSENATOR BARACK OBAMA'S PRESIDENTIAL CAMPAIGN, READERS SHOULD REFLECT ON THE NEXT PASSAGE:

"ACCEPTANCE OF THESE ELEMENTS CALLS FOR A REINTERPRETATION OF THE CONCEPT OF NATIONAL SOVEREIGNTY. PARTICIPATION AND SOCIAL CONTROL SUGGEST A FUNCTIONAL RATHER THAN A TERRITORIAL INTERPRETATION OF SOVEREIGNTY, OR JURISDICTION OVER DETERMINED USES RATHER THAN GEOGRAPHICAL SPACE. CONCEPTUALLY, THIS INTERPRETATION WILL MAKE POSSIBLE THE PROGRESSIVE INTERNATIONALIZATION AND SOCIALIZATION OF ALL WORLD RESOURCES - MATERIAL AND NON-MATERIAL - BASED UPON THE 'COMMON HERITAGE OF MANKIND' PRINCIPLE." Id. at p. 82.]

[FURTHERMORE, THE CLUB OF ROME SUGGESTED
THE FOLLOWING COURSE OF ACTION, WHICH FRANCE & GERMANY ARE ACTUALLY NOW SPEAKING ABOUT:

"Effective planning and management calls for the fundamental restructuring of the United Nations so as to give it broad economic powers and a more decisive mandate for international economic decision-making... It is also hoped that major changes in the United Nations structure will be made over the next decade so that it is not only able to play a more forceful role in world political affairs but it is also able to become more of a World Development Authority in managing the socio-economic affairs of the international community. ... The most effective way of articulating the planning and management functions of this organization would be through a functional confederation of international organizations, based upon existing, restructured and, in some instances, new United Nations agencies - to be linked through an integrative machinery. This system and its machinery, if it is really to reflect interdependencies between nations and solidarity between peoples, should ultimately aim at the pooling and sharing of all resources, material and non-material, including means of production, with a view to ensuring effective planning and management of the world economy and of global resource use in a way which would meet the essential objectives of equity and efficiency...In the long term, and assuming progress towards the creation of an equitable international economic and social order leading to a pooling of material and non-material resources, mineral resources will need to be viewed as a common heritage of mankind. " Id. at pp. 185 and 188.

See also: UN Reform - Restructuring for Global Governance, Ecologic (July/August, 1997) at: http://www.sovereignty.net/p/gov/ggunreform.htm#9 ; A/RES/52/12 UNGA (Nov. 12, 1997), at: http://www.undg.org/archive_docs/1551-Renewing_the_UN__A_Res_52_12_-_Renewing_the_UN__A_Res_52.doc .]

[WESTPHALIAN NATIONAL SOVEREIGNTY, VIEWED IN TERMS OF TODAY'S GLOBALIZING WORLD IS IN A STATE OF FLUX. IT HAS BEEN DESCRIBED BY POLITICAL ECONOMISTS AS REFLECTING A GOVERNMENT'S ABILITY TO CONDUCT / PURSUE ITS 'INTERNAL AFFAIRS' WITHOUT BEING DEPENDENT ON THE ACTIONS OF EXTRATERRITORIAL AGENTS. "IN THE CONTEXT OF VOLUNTARY INTERNATIONAL AGREEMENTS...[WHERE] ONE STATE HAS INTERVENED IN THE INTERNAL AFFAIRS OF ANOTHER STATE...A VIOLATION OF SOVEREIGNTY...CAN [BE SAID TO HAVE]...OCCURRED...WHENEVER AN INTERNATIONAL AGREEMENT LEADS A GOVERNMENT TO MAKE COMMITMENTS THAT ALTER THE NORMAL OPERATION OF ITS DOMESTIC INSTITUTIONS WITHIN THE DOMAIN OF ITS INTERNAL AFFAIRS."]

[ACCORDING TO THESE SAME COMMENTATORS, "COMMITMENTS THAT RESULT FROM VOLUNTARY INTERNATIONAL AGREEMENTS DO NOT NECESSARILY VIOLATE WESTPHALIAN SOVEREIGNTY (AS WHEN THESE COMMITMENTS PERTAIN ONLY TO A GOVERNMENT'S EXTERNAL AFFAIRS[.]]

[...THERE ARE LIMITS TO THE APPROPRIATE POLICY MATTERS FOR INTERNATIONAL AGREEMENT, AND NEGOTIATED COMMITMENTS OVER POLICIES THAT CONCERN SUFFICIENTLY 'DOMESTIC' AFFAIRS (i.e., INTERNAL AFFAIRS) DO VIOLATE WESTPHALIAN SOVEREIGNTY[.]]

[...INTERNATIONAL COMMITMENTS THAT DISTORT THE NORMAL OPERATION OF DOMESTIC INSTITUTIONS TO A SUFFICIENT DEGREE ALSO VIOLATE WESTPHALIAN SOVEREIGNTY.]

[...[G]OVERNMENT'S SOVEREIGNTY IS VIOLATED...WHEN IT NEGOTIATES INTERNATIONAL COMMITMENTS THAT CONCERN ITS INTERNAL AFFAIRS. SUCH COMMITMENTS DIRECTLY VIOLATE A GOVERNMENT'S SOVEREIGNTY...[B]UT...DIRECT VIOLATIONS OF SOVEREIGNTY CAN ALSO IMPLY FURTHER INDIRECT VIOLATIONS OF THE GOVERNMENT'S SOVEREIGNTY AS WELL, UNDER WHICH GOVERNMENT DECISIONS THAT ARE NOT THE SUBJECT OF INTERNATIONAL NEGOTIATION ARE NEVERTHELESS DISTORTED AWAY FROM THE DECISIONS THAT WOULD NORMALLY HAVE BEEN MADE UNDER THE DOMESTIC INSTITUTIONAL ARRANGEMENTS OF THE COUNTRY." See: Kyle Bagwell and Robert W. Staiger, National Sovereignty in an Interdependent World, (Aug. 2004) at: http://www.stanford.edu/~rstaiger/sovereignty.122903.revisioncopy.082304.pdf ].

Q: Should conservatives support the treaty?

A: Absolutely. President Nixon launched the negotiations in the expectation that a globally ratified Law of the Sea Convention would best protect our permanent security interests in global mobility and our long-range economic interests in a stable and predictable regime for the movement of global trade and for the exploration and exploitation of ocean resources. President Reagan's embrace of the bulk of the convention confirms that the effort launched by President Nixon succeeded. President George H.W. Bush was right to launch the informal negotiations that led to the effective amendment of the deep-seabed mining regime in response to President Reagan's concerns. ... President George W. Bush is absolutely right to conclude that we must act now to become part of the process that consolidates our achievements in the convention and enhances our ability to shape its future from the inside.

Q: Would we be any worse off than we are now if the Senate does not ratify the treaty?

A: We would be much worse off. International law is of greatest use to us in the far reaches of the sea when it induces other countries to accept the legitimacy of our actions even when they disagree with our objectives or policies.

Unilateral pronouncements of the content of international law cannot achieve that objective. If we let the convention slip through our hands ... we would lose our last best chance to solidify the law of the sea around a basic text that protects our long-range security and economic interests, and to control the future evolution of the world's understanding of that text.

[PROF. OXMAN, CONSIDERING THE INFORMATION ABOVE, DO YOU STILL BELIEVE THAT UNILATERAL INTERPRETATIONS OF STRICT INTERNATIONAL ENVIRONMENTAL LAW PREMISED ON EUROPE'S PRECAUTIONARY PRINCIPLE, ENFORCED THROUGH 'LAWFARE', & SANCTIFIED BY U.S. & INT'L TRIBUNALS, CANNOT IMPINGE ON U.S. NATIONAL SOVEREIGNTY, WITH ITS EVOLVING DEFINITION??]

It would not be possible in the foreseeable future to negotiate a new, globally ratified convention on the law of the sea anywhere near as favorable to U.S. interests. And if we allow other countries to control the evolution and amendment of the existing convention without our input, our interests will be adversely affected whether we like it or not.

[WHY WOULD IT NOT BE POSSIBLE TO RENEGOTIATE A GLOBAL CONVENTION ON THE LAW OF THE SEA THAT DOES NOT ENTAIL THE 'COMMON HERITAGE OF MANKIND DOCTRINE' AND PROMOTE THE 'LAWFARE' TENDENCIES OF COMPETING NATION-STATES AGAINST U.S. SOVEREIGN INTERESTS? SHOULDN'T CONGRESS HOLD OPEN, PUBLIC & TRANSPARENT HEARINGS ON THIS VERY IMPORTANT QUESTION?? PRESIDENTIAL CANDIDATE JOHN McCAIN SEEMS TO THINK THIS IS POSSIBLE. See: McCain Recognizes The Dangers Posed By The UNCLOS and Calls For Its Renegotiation: Rabid Republicans Unappreciative at: http://itssdjournalunclos-lost.blogspot.com/2008/03/mccain-recognizes-dangers-posed-by.html ("On the proposed Law of the Seas Treaty that President Bush supports and that conservatives generally oppose, Mr. McCain split the difference, saying the treaty as proposed surrenders "way too much" of America's sovereignty, but it needs to be renegotiated because international law needs 'coherence' in this area."].

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[PROF. OXMAN, ON THE ONE HAND, STRONGLY RECOMMENDS U.S. RATIFICATION OF THE UNCLOS IN ORDER TO STEM UNILATERAL DECLARATIONS OF INTERNATIONAL ENVIRONMENTAL LAW BY FOREIGN GOVERNMENTS THAT ARE HOSTILE TO U.S. INTERESTS. HE BELIEVES THAT THE UNCLOS & ICJ TRIBUNALS PROVIDE THE MECHANISMS WHICH WOULD ENABLE THE U.S. TO SUCCEED IN THIS ENDEAVOR. BUT, AT WHAT COST TO THE U.S.? ENDLESS LITIGATION & DIVERSION OF LIMITED RESOURCES BY THE U.S. NAVY & STATE DEPARTMENTS?]

[THE U.S. NAVY IS ALREADY OVERWHELMED, IN TERMS OF HUMAN RESOURCES, TO ADDRESS ALL OF THE LEGAL CHALLENGES LAUNCHED BY U.S.-BASED ENVIRONMENTAL EXTREMISTS IN U.S. FEDERAL COURTS TO STOP NAVAL DEPLOYMENT OF SONAR IN U.S. 'TERRITORIAL' & 'COASTAL' WATERS, and THE U.S. EEZ. WHAT IF, THE SAME STRICT INT'L ENVIRONMENTAL LEGAL NORMS & STANDARDS INTRODUCED INTO THESE LAWSUITS BY U.S. ENVIRONMENTALISTS ARE ALSO INTRODUCED BY FOREIGN GOV'TS (& DARE WE SAY AN INCOMING OBAMA or CLINTON ADMINISTRATION?) & INT'L ENVIRONMENTALISTS INTO UNCLOS TRIBUNALS or THE ICJ, IN A CONCERTED EFFORT TO 'CHANGE' BOTH THE INT'L & U.S. DOMESTIC REGULATORY PARADIGM TO REFLECT THE COSTLY & ONEROUS FEAR-BASED EUROPEAN PRECAUTIONARY PRINCIPLE? AFTER ALL, UNCLOS ARTICLES 194 (, 207 (land-based pollution sources), 208 (EEZ seabed pollution), 210 (land-based coastal, EEZ ocean pollution/ dumping) and 211 (EEZ vessel pollution) , 212 (EEZ & land-based atmospheric pollution) REFLECT THE GENERAL UNCLOS PRINCIPLE OF STRONGLY ENCOURAGING CONSISTENT /HARMONIZED ENVIRONMENTAL LAWS BASED ON INT'L ENVIRONMENTAL STANDARDS AMONG UNCLOS PARTIES.]

See: U.N. General Assembly Resolution A/RES/62/215, Oceans and the Law of the Sea (March 14, 2008), at: http://daccessdds.un.org/doc/UNDOC/GEN/N07/476/67/PDF/N0747667.pdf?OpenElement

("Emphasizing the universal and unified character of the Convention, and reaffirming that the Convention sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector, and that its integrity needs to be maintained, as recognized also by the United Nations Conference on Environment and Development in chapter 17 of Agenda 21,... Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole through an integrated, interdisciplinary and intersectoral approach, and reaffirming the need to improve cooperation and coordination at the national, regional and global levels, in accordance with the Convention... Expressing its serious concern over the current and projected adverse effects of anthropogenic and natural climate change on the marine environment and marine biodiversity,...Expressing its deep concern over the vulnerability of the environment and the fragile ecosystems of the polar regions, including the Arctic Ocean and the Arctic ice cap, particularly affected by the projected adverse effects of climate change,...5. Calls upon States to harmonize, as a matter of priority, their national legislation with the provisions of the Convention...to ensure also that any declarations or statements that they have made or make when signing, ratifying or acceding to the Convention do not purport to exclude or to modify the legal effect of the provisions of the Convention in their application to the State concerned and to withdraw any such declarations or statements;...31. Notes that States parties to an international agreement related to the purposes of the Convention may submit to, inter alia, the Tribunal or the International Court of Justice any dispute concerning the interpretation or application of that agreement...").

[A 2006 PAPER PREPARED BY PROF. OXMAN, DISCUSSES THE TENSION IN THE THE UNCLOS TREATY REGIME BETWEEN: a) THE U.N. & CLUB OF ROME 'GLOBAL COMMONS' NOTION OF 'COMMON HERITAGE OF MANKIND' ; AND b) THE 'TERRITORIAL IMPULSE' OF UNCLOS PARTIES. IN FACT, HE CONFIRMS THAT THE EUROPEAN UNION IS 'PUSHING THE ENVELOPE' IN THIS REGARD.]

[EXCERPTS OF PROF. OXMANS' PAPER HAVE BEEN REPRODUCED BELOW. THEY RAISE AN EXTREMELY IMPORTANT ISSUE. THERE IS A RESURGENT UNILATERAL PUSH BY EUROPE, AUSTRALIA AND OTHER COUNTRIES TO GRAB MORE 'TERRITORY' BEYOND THEIR EEZ (e.g., BEYOND THE 200 MILE LIMIT), BY SECURING 'PHYSICAL' POSSESSION OF UP TO 150 ADDITIONAL NAUTICAL MILES OF CONTINENTAL SHELF VIA U.N. CONTINENTAL SHELF COMMISSION VALIDATION OF THEIR GEOLOGIC EVIDENCE. IN ADDITION, THERE IS ALSO A RESURGENT UNILATERAL EFFORT BY EUROPE, AUSTRALIA & CANADA (&, IN SOME CASES, THE U.S.) TO CONVERT THEIR QUASI-SOVEREIGNTY OVER THEIR EEZs, INCLUSIVE OF OTHERWISE INT'L STRAITS, THRU IMPOSITION OF STRICT PRECAUTIONARY PRINCIPLE-BASED ENVIRONMENTAL RESTRICTIONS, DESIGNATION OF 'MARINE PROTECTED AREAS' AND ENFORCEMENT OF 'PARTICULARLY SENSITIVE SEA AREAS'. IF THIS IS TRUE, THEN WHY MUST THE U.S. RATIFY THE UNCLOS IN ORDER TO DO THE SAME THING - i.e., TO ACT UNILATERALLY TO ACHIEVE THE SAME RESULT OF SECURING BOTH A DE FACTO & DE JURE 'EXTENSION' OF U.S. TERRITORIAL SOVEREIGNTY?]

[READERS SHOULD NOTE THAT DURING 2000, FORMER PRESIDENT CLINTON ISSUED AN EXECUTIVE ORDER ON THE SUBJECT OF 'MARINE PROTECTED AREAS' (MPAs). THE E.O. DEFINES AN MPA AS:]

“Any area of the marine environment that has been reserved by federal, state, territorial, tribal, or local laws or regulations to provide lasting protection to part or all of the natural or cultural resources therein.” –Executive Order 13158 on Marine Protected Areas (May 2000)

"There are three general types of MPAs...'Cultural'...'Natural Heritage'...[and] 'Sustainable Production'..." See U.S. Marine Protected Areas - FACTSHEET, at: http://www.mpa.gov/pdf/helpful-resources/factsheets/cultural_historical_res1104.pdf .

[AMONG OTHER THINGS, THE INTERNATIONAL MARITIME ORGANIZATION (IMO) IS RESPONSIBLE FOR REVIEWING AND RULING ON UNCLOS PARTY NATIONAL GOVERNMENT APPLICATIONS FOR THE DESIGNATION OF 'PARTICULARLY SENSITIVE SEA AREAS' (PSSAs) and ENSURING THAT THE APPROPRIATE MEASURE IS ADOPTED. ACCORDING TO THE IMO,

"The IMO is the only international body responsible for designating areas as Particularly Sensitive Sea Areas and adopting associated protective measures."

"A PSSA is an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities. At the time of
designation of a PSSA, an associated protective measure, which meets the requirements of the appropriate legal instrument establishing such measure, must have been approved or adopted by IMO to prevent, reduce, or eliminate the threat or identified vulnerability."

See: Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, A 24/Res.982 (Feb. 6, 2006), at pars. 1.2 and 3.1, at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D14373/982.pdf .

[THE FOLLOWING ARE EXCERPTS FROM PROF. OXMAN'S ARTICLE. See: Bernard Oxman, The Territorial Temptation: A Siren Song at Sea, 100 Am. J. Int. L. 830 (Oct. 2006) at: http://www.asil.org/pdfs/Oxman_TerritorialTempt.pdf .]

"...[M]ore recent developments in international law often represent efforts to constrain
the territorial state and the temptation to expand its discretionary reach, substantive as well as geographic."

"...The mid-twentieth century was...a watershed for the international law of the sea..." (P. 831)

"...At the same time that the territorial temptation ran up against increasingly important legal constraints on land—often in response to the values of facilitation of trade, communication, and cooperation, which had traditionally informed the law of the sea—the obverse again occurred at sea." (pp. 831-832)

"...The territorial temptation thrust seaward with a speed and geographic scope that would be the envy of the most ambitious conquerors in human history. The effective start of this process—President Truman’s claim to the continental shelf in 194510—was so quickly accepted and emulated by other coastal states that the emergence of the regime of the continental shelf...has been cited as an example of instant customary law. The Truman Proclamation unleashed a quarter-century of territorial and quasi-territorial claims to the high seas..." (p. 832)

"...The response...following World War II to the systemic problems posed by the insistent demand by the territorial state for substantive discretion on land was to elaborate reciprocal international and regional instruments and mechanisms of restraint and cooperation through which each state could influence the acts and omissions of other states and, through the intermediation of those states, influence human behavior beyond its territorial reach." (pp. 832-833).

"To some extent the response to flag state discretion at sea has been the same as the response to the territorial state’s discretion on land—a system of international agreements and mechanisms to restrain the scope of discretion, especially with respect to navigation and communications..."

"...As for natural resources, the triumph of the territorial temptation with respect to almost all of the commercial fisheries and hydrocarbons in and beneath the sea resulted from a variety of factors. They include political and bureaucratic ambition, the lure of tax revenues and other economic rent, protection against competition, impatience, frustration with international organizations, and, yes, domino effects and a dash of xenophobia." (p. 834).

"... Even if investment in oil and gas development depends on a system of exclusive private rights to exploit a site that in turn requires a recognized public grantor, and also depends on the cooperation of a nearby state to fulfill a variety of practical needs, extension of coastal state jurisdiction is an obvious way, but not necessarily the only way, to accommodate those needs." (pp. 834-835)

"...The real challenge faced by the Third United Nations Conference on the Law of the Sea,
then, was to find ways to accommodate the territorial temptation in the context of an overall system that promised the degree of stability, predictability, and measured change one expects from law. The response to the territorial temptation was to define and circumscribe both its geographic and its substantive reach. To that extent it mirrors the modern response to the territorial temptation on land. The difference is that the limitations in the Law of the Sea Convention are much more extensive and at times more innovative."

"Sovereignty is limited to internal waters, archipelagic waters of an archipelagic state, and the territorial sea. The territorial sea has a precise maximum limit of 12 miles, measured from the normal baseline along the low-water mark or from straight baselines enclosing internal or archipelagic waters." (p. 835)

"Three zones of functional jurisdiction extend seaward from the outer limit of the territorial sea...the contiguous zone, whose maximum limit is 24 miles from the coastal baselines, and where the coastal state may prevent and punish infringement of its customs,fiscal, immigration, or sanitary laws in its territory or territorial sea; the exclusive economic zone (EEZ), whose maximum limit is 200 miles from the coastal baselines, and where the coastal state has sovereign rights over the exploration and exploitation of the natural resources of the waters and the seabed and subsoil,and certain other specific competences; the continental shelf, whose maximum limit is the outer edge of the continental margin or 200 miles from the coastal baselines if the continental margin does not extend up to that distance, and where the coastal state exercises sovereign rights over the exploration and exploitation of the natural resources of the seabed and subsoiland certain other specific competences."(p. 836).

“High seas” is not defined in geographic terms as such. The freedoms of the high seas preserved in the EEZ are[:] navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, while those beyond the EEZ are more extensive and open-ended." (pp. 836-837).

"...the regime of the high seas applies both seaward of the EEZ and, except with respect to living resources, within the EEZ to the extent not incompatible with other provisions regarding the zone. The basic question is whether this system is stable." (p. 837).

"The Commission on the Limits of the Continental Shelf is receiving an increasing number of submissions from broad-margin states that, if approved, will permit those states to establish the definitive limits of their respective continental shelves beyond 200 miles and, accordingly, the limits of the international seabed 'Area.'"

"...the influence of the territorial temptation is demonstrated by the Commission’s decision to permit coastal states with claims of sovereignty or sovereign rights in the immediate vicinity to comment on a submission, but its implicit disregard of the legal interests of all states in the integrity and limits of the international seabed area protected by the principle of the common heritage of mankind by ordering that the technical comments submitted by other states are not to be considered. This position casts an unnecessary cloud over the legitimacy of the carefully constructed system for permitting the coastal state to establish final and binding limits of the continental shelf beyond 200 miles. Its underlying infirmity soon became evident when Australia submitted limits for the continental shelf off that part of Antarctica claimed by Australia, and states from other regions complained that they did not recognize that claim.” (p. 838).

"A more difficult question is whether the substantive balance within the specified limits can be maintained against a persistent territorial temptation...In this respect, the real issue concerns the EEZ and the concomitant right of transit passage of straits connecting two parts of the EEZ. At heart, however, the issue remains the same as it has always been; territorializing the EEZ is simply another way of expanding the limits of the territorial sea." (p. 839).

"The EEZ embraces about a third of the marine environment. All of the important seas and gulfs of the world are composed entirely, or mainly, of waters within 200 miles of the coast of some state. The essence of the EEZ is its substantive balance. That balance is particularly vulnerable to the territorial temptation because the EEZ is already perceived in quasi-territorial terms."(p. 839).

"...what really separates the EEZ from the territorial sea..."

"...the EEZ embraces freedom of navigation, overflight, and communications, and is not in principle subject to comprehensive coastal state jurisdiction..."

"...the territorial sea...is subject to comprehensive coastal state jurisdiction and, outside of straits, includes only a very limited, and suspendable, right of innocent passage that is subject to both important qualifications and unilateral coastal state regulation." (p. 839).

[IT BEARS REPEATING THAT, AS NOTED ON P. 837, THAT THE UNCLOS ENVIRONMENTAL RULES FOR THE 'RES COMMUNIS'/ 'GLOBAL COMMONS' APPLY BOTH WITHIN COASTAL STATE EEZs and SEAWARD FROM COASTAL STATE EEZs.]

"One of the distinguishing features of the LOS Convention is the attention it devotes to environmental protection. It remains 'the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time'...Many of these provisions relate to, and qualify, freedom of navigation in the EEZ. A significant aspect of these provisions is that they are self-adjusting."

"The obligation of the flag state to apply to its ships 'generally accepted' standards, like the coastal state’s right to enforce generally accepted international standards regarding operational discharges in the EEZ, evolves with the standards." (p. 843).

"...the Convention permits the coastal state to seek approval from the International Maritime Organization to adopt and enforce additional standards regarding discharges or navigational practices in its EEZ...[T]he ability of the straits states to implement and enforce international pollution standards, and to secure IMO approval for the adoption and enforcement of specific safety and traffic regulations, appears to be providing a flexible mechanism that can adapt to new needs and be tailored to specific requirements in a particular strait." (pp. 843-844).

"...The LOS Convention contains no restriction on the right of a state to establish port entry requirements, including those regarding the construction, manning, equipment, or design of ships. Acting either alone, or in concert with other states, a state can therefore use port entry restrictions to control the construction, manning, equipment, or design of ships operating off its coast that are headed to or from its own ports or those of a state with similar entry requirements."

"The balance of a system rooted in port state and coastal state enforcement of evolving international standards, coupled with port state unilateral control of port entry requirements, need not be an impediment to the pursuit of new environmental objectives with respect to the EEZ."

"...that environmentalists in particular would embrace the territorial temptation is curious since their essential goal, especially with respect to the oceans, is to achieve global protection." (p. 844).

"That goal can best be realized through strong and effective international measures that states are obliged and empowered to enforce."

"...Even though yielding to the territorial temptation with respect to a particular environmental problem may promise some short-term or tactical benefit, doing so may augment the difficulties of achieving a desired level of international regulation of environmental problems in that area and elsewhere."

"There is ample evidence that states more readily accept international regulation of activities that relate exclusively or principally to areas that are not subject to territorial sovereignty than to areas that are." (p. 845).

[FOR EXAMPLE, UNCLOS PARTIES ARE MORE READILY WILLING TO ACCEPT THE IMPOSITION OF ENVIRONMENTAL & SAFETY OBLIGATIONS BY THE UNCLOS ON THE 'FLAG STATE' WHERE SHIPS ARE REGISTERED & BY THE IMO ON THE SHIPS THEMSELVES WHEN OPERATING ON THE 'HIGH SEAS' / IN THE 'GLOBAL COMMONS'. SUCH OBLIGATIONS ARE FAR MORE OPEN-ENDED, STRICT & EXTENSIVE THAN DOMESTIC LAND-BASED ENVIRONMENTAL REGULATIONS. SIMILARLY, UNCLOS PARTIES ARE WILLING TO ACCEPT THE JURISDICTION OF THE UNCLOS' ONLY INTERNATIONAL REGULATORY BODY - THE INT'L SEABED AUTHORITY.]

"...There is nothing on land approaching the open-ended legal obligations of the flag
state under the LOS Convention to ensure that its safety regulations “conform to
generally accepted international regulations, procedures and practices” and that its
pollution regulations “shall at least have the same effect as that of generally accepted
international rules and standards...”

"...The conventions and other instruments emerging from the work of the International
Maritime Organization regarding pollution from ships rank among the most extensive and effective in the field of international environmental law."

"The jurisdiction of the only international regulatory organization created by the LOS Convention, the International Seabed Authority, relates to the area 'beyond the limits of national jurisdiction.'” (p. 845)

"...Sophisticated environmentalists understand that...the resistance of the territorial state to the intrusion of international environmental regulation on its traditional range of discretion is an obstacle to progress..."

"...The environmental calculus is difficult. The serious literature makes clear that we have gone beyond the easy part of Manichaean norms, and must mediate between competing goods as best we can. To do so, we must confront the complex choices and enforcement challenges that attend almost every environmental decision."

"...for example, the transport of radioactive nuclear materials for reprocessing. Obviously, such an activity requires careful regulation: the LOS Convention and other treaties provide the substantive foundation for doing so, and both the IMO and the International Atomic Energy Agency offer competent venues. Also obviously, fear of an accident is likely to trigger negative reactions by coastal states." (p. 846).

"...political pressures are what make and change the law, both municipal and international."

"As the European Commission recently observed:

'In the wake of the Prestige accident in November 2002 there was an emotional wave
of solidarity throughout Europe, and the institutions and highest authorities of the European Union expressed their firm resolve that the policy of strengthening maritime safety pursued following the Erika accident in December 1999 should be continued and reinforced.'"

"...The European Commission’s Green Paper states:

'The legal system relating to oceans and seas based on UNCLOS needs to be developed
to face new challenges. The UNCLOS regime for EEZ and international straits makes it harder for coastal states to exercise jurisdiction over transiting ships, despite the fact that any pollution incident in these zones presents an imminent risk for them. This makes it difficult to comply with the general obligations (themselves set up by UNCLOS) of coastal states, to protect their marine environment against pollution.'" (p. 847).

"... A further type of challenge to the system of functional allocation of competence in the EEZ is found in the increasing pressure, especially from environmentalists, for 'spatial planning.'"

"... Quite apart from its provisions on pollution from ships and coastal state rights...the Law of the Sea Convention imposes significant environmental obligations on coastal states with respect to their own offshore activities. Many of these and other limitations on the territorial temptation in the LOS Convention were achievable because they were negotiated in the context of substantial disagreement over the nature and extent of coastal state jurisdiction itself. That is no longer the case." (p. 848).

[PROF. OXMAN NEXT PRESENTS AN EXAMPLE OF THE CONTINUING TENSION BETWEEN COASTAL STATE TERRITORIAL URGES & COASTAL STATE ACQUIESCENCE TO INT'L ENVIRONMENTAL REGULATION. EVEN THOUGH COASTAL STATES EMPLOYED REGULATIONS TO SQUEEZE OUT FOREIGN COMPETITION, THEIR IMPLEMENTATION OF FISH CONSERVATION MEASURES PURELY W/IN THEIR EEZs WAS LACKING. YET, COASTAL STATES WERE WILLING TO SUBMIT TO INT'L ENVIRONMENTAL REGULATIONS COVERING 'MIGRATORY' FISH STOCKS ONCE THEY CROSSED OUTSIDE OF THEIR EEZs.]

"...conservationists were largely content to accept the argument that coastal state control of fishing in the EEZ would yield desirable results. Some were skeptical but, in vivid contrast to the hard obligations achieved with respect to environmental and pollution matters in general, the coastal state conservation obligations they settled for in the EEZ are not easy to violate and are not subject to compulsory arbitration or adjudication." (p. 848).

"...The coastal states regarded their existing range of discretion in the EEZ, including their right to determine the total allowable catch and to take as much of it as their harvesting capacity would permit, as vested rights. To protect those rights, they focused on the acquisition of means to reduce competition from foreign high seas fishing. Fortunately, at least beyond 200 miles, a stronger model for an international conservation regime responded both to environmental values and to the allocational objectives of coastal fishing industries."
(p. 849).

[PROF. OXMAN CITES THE COUNTRY OF CANADA AS AN EARLY EXAMPLE OF WHERE ENVIRONMENTAL REGULATIONS WERE USED AS A MEANS TO CURTAIL FREEDOM OF NAVIGATION, and thus, EXTEND IN DE JURE FASHION THEIR NATIONAL SOVEREIGNTY.]

"The link between environmentalism and the territorial temptation remains real. It is worthconsidering its origin. Canada was the first to dramatize a conflict between environmental protection and freedom of navigation. Its 1970 claim to a 100-mile zone in which it asserted unilateral control over navigation, complemented by a reservation to its acceptance of the compulsory jurisdiction of the International Court of Justice, evoked considerable controversy. Much of that controversy was expected to subside with the settlement reached in the LOS Convention, including both its general provisions regarding pollution from ships and a special provision regarding ice-covered areas. But, as was foreseen at the time the claim was first made, the real object was sovereignty. Canada has since established baselines around its Arctic islands and taken the position that the waters thereby enclosed are sovereign historic waters." (p. 849).

"...the territorial temptation evidently continues to influence proposals to change the law of the sea."

"...The European Community and its member states seem on the verge of leading a new wave of territorialization against navigation itself in the name of environmental protection." (p. 850).

[A GOOD EXAMPLE OF A EUROPEAN POLICY DOCUMENT THAT CORROBORATES THIS CLAIM IS THE EU GREEN PAPER ON MARITIME POLICY. See: GREEN PAPER, Towards a future Maritime Policy for the Union: A European vision for the oceans and seas, Commission of the European Communities (June 7, 2006), COM(2006) 275 final, Volume II - ANNEX, at: http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0275Ben01.pdf . RELEVANT EXCERPTS FROM THIS DOCUMENT HAVE BEEN REPRODUCED BELOW. THEY REFLECT TWO PRIMARY RATIONALES FOR EXERCISING LEGAL 'FUNCTIONAL' SOVEREIGNTY OVER EU MEMBER STATE EEZs: ECONOMIC & CULTURAL/POLITICAL PREFERENCE. INDEED, REASONABLE PERSONS SHOULD BEGIN TO QUESTION WHETHER THE EUROPEAN UNION HAS IT IN MIND TO EMPLOY THE SAME PRECAUTIONARY PRINCIPLE-BASED ENVIRONMENTAL REGULATIONS IN EU MEMBER STATE EEZs THAT IT HAS ALREADY EMPLOYED AS DISGUISED NON-TARIFF TRADE BARRIERS ON LAND?? ENLIGHTENED ENVIRONMENTALISM or DISGUISED PROTECTIONISM??]

[PROTECTIONIST PRESSURES:]

“...[O]ver two thirds of the Union’s borders are coastal and that the maritime spaces under the jurisdiction of its Member States are larger than their terrestrial territory... As the EU seeks to revitalise its economy, it is important to recognise the economic potential of her maritime dimension. Between 3 and 5% of Europe’s Gross Domestic Product (GDP) is estimated to be generated by marine based industries and services, without including the value of raw materials, such as oil, gas or fish. The maritime regions account for over 40% of GDP.” (p.3)

"...Sustainable development is at the heart of the EU agenda. Its challenge is to ensure
mutual reinforcement of economic growth, social welfare and environmental protection. The EU now has the opportunity to apply sustainable development to the oceans." (p.4).

"In its strategic objectives for 2005-2009, the European Commission declared “the particular need for an all-embracing maritime policy aimed at developing a thriving maritime economy, in an environmentally sustainable manner. Such a policy should be supported by excellence in marine scientific research, technology and innovation”. (P. 5)

"...[We must maintain and improve the status of the resource upon which all maritime activities are based: the ocean itself. To do this, ecosystem-based management, built on scientific knowledge, is essential. The Commission has completed the groundwork for this by putting forward its Thematic Strategy for the Marine Environment." (pp. 5-6).

"...[T]wo characteristics of the marine environment need to be borne in mind. First, the global nature of the oceans. This leads to both complementarity and competition between nations. To regulate maritime activities in the interest of worldwide sustainable development necessitates developing universally applicable rules. Yet each part of the oceans and seas is different and may require its own morespecific rules and administration." (p. 6).

"... Shipping and ports are essential for international trade and commerce. 90% of the
EU’s external trade and over 40% of its internal trade is transported by sea." (p.6)

"... The oceans and seas also generate income through tourism. The direct turnover ofmarine tourism in Europe is estimated at € 72 billion in 2004."

"...Tourism generates business for the shipbuilding industry. The cruise industry in Europe has expanded strongly over the last years with an annual growth rate of more than 10%. Cruise ships are virtually all built in Europe. Cruise tourism contributes to the development of coastal areas and islands. The recreational boating industry experienced steady growth during the past years and forecasts point to a 5-6% annual growth within the EU." (p.7).

"...The EU is one of the world’s major world fishing powers and the biggest market for processed fish products. While the number of EU fishers has been declining over the years, some 526 000 are employed in the fisheries sector as a whole. Many jobs are generated in processing, packing, transportation and marketing as well as in shipyards, fishing gear manufacturing, chandlers and maintenance, not only in catching fish. These activities play a significant role in the economic and social fabric of fisheries areas."

"...The Food and Agricultural Organisation indicates that most of the new demand for fish consumption will have to be met by aquaculture. The challenge will be to manage this increase in a sustainable and environmentally friendly way. As competition for space can also be a major issue in some coastal zones, aquaculture could be moved further from the coast, requiring further research and development on offshore cage farming technology..." (p. 8).

"...The Importance of the Marine Environment for the Sustainable Use of our Marine Resources"

"A healthy marine environment is a sine qua non to realising the full potential of the oceans. For this reason, preservation of this resource base is the key to improving the EU’s competitiveness, long-term growth and employment. The deterioration of our marine environment reduces the potential of the oceans and seas to provide income and jobs. Economic activities that depend on the quality of the marine environment are particularly affected. The health of coastal and marine tourism, Europe’s biggest sea related industry, is at stake." (p. 10).

[ENLIGHTENED ENVIRONMENTALISM OR CULTURAL /POLITICAL PREFERENCE/ PROTECTIONISM? - THE CLIMATE CHANGE CARD]:

"...Oceans and seas play a key role in climate and weather patterns. Equally the oceans and seas are particularly sensitive to climate variations. Oceans act as climate regulators either directly by, e.g. transferring heat (an example of this is the Gulf Stream) or indirectly, through CO2 absorption. They can also be affected by human activities in coastal zones and coastal waters. The icecaps also play a crucial role in the global climate system."

"On average, climate warming of the Arctic region is two or three times more marked than elsewhere on the planet, with a 3° C increase over the past 50 years. Arctic pack ice has already shrunk by 15 to 20% over the past 30 years. If this is not addressed, arctic flora and fauna will suffer severe changes, as will the entire food chain from single-cell algae to fish and seals. There will be serious consequences for indigenous peoples. Climate change in the Arctic could become a major challenge for EU Maritime Policy." (p. 14).

"... Climate change also has important impacts on Europe. It could contribute to the slowing of the Gulf Stream, with all the effects this would have on the climate in Europe. According to the International Panel on Climate Change (IPCC), the global mean sea level is set to rise significantly during this century. Coastal development and ports will be increasingly vulnerable to storm surges. Tourism may also suffer. Increasing summer temperatures in the south of Europe may cause major changes in favoured tourist destinations. Mediterranean coastal zones are likely to face serious impacts from precipitation pattern changes." (p. 14).

"The consequences of climate change on oceans and seas, the environment at large and in turn our economic prosperity and social well-being are potentially farreaching and will carry significant costs. It is thus essential that Europe continue to play a leadership role on the world stage in tackling climate change. It needs to continue to consider appropriate measures aimed at reducing climate change, including in the maritime transport and energy sectors." (p. 15).

"...The Regulatory Framework" (p. 21).

"In sectors such as shipping, port infrastructure and offshore resource exploitation, including fisheries, where large investments are being made in innovative products designed to last for many years, a stable regulatory environment is important. This is particularly true for rules affecting the location of economic activity. This is another reason why a comprehensive system of spatial planning should be put into place as soon as possible for European coastal waters."
(p. 21).

"...The interdependence of the maritime sectors and policies may mean that legislation developed for the needs and objectives of one policy may have unintended and contradictory impacts on other maritime...

"...The enforcement of rules on the immense vastness of the world’s oceans must rely not solely on government activity but also on the acceptance of the rules by those to whom they apply... Self regulation, despite its limits, and Corporate Social Responsibility (CSR) may have important and complementary roles to play. The adoption of CSR strategies and the disclosure of performance in relation to announced goals represent an alternative to regulation." (p. 22).

"...An efficient regulatory system will also ensure that the economic signals given to the market reinforce its rules. As the European Association of Classification Societies (EurACS) stated “future success will depend both on incentives for quality performance and a certain degree of penalties for unsatisfactory performance.” (p. 22).

"...Targeted Port State inspections have proven to be a valuable tactic in eliminating substandard shipping from the world’s oceans and in raising the overall safety standards of the international shipping industry”. Mandatory insurance and a bonus-malus system as used in other transport modes should be implemented...Under the rules of UNCLOS, it is the country in which the ship is registered which is primarily responsible for their enforcement, the so-called flag state." (p. 22).

ITSSD Journal on the UN Law of the Sea Convention

International Tribunal on the Law of the Sea Finally Renders Advisory Opinion Establishing that the Precautionary Principle is Incorporated Within UNCLOS Law

Some Observations on a Proposed UNCLOS/UNEP Global Commons Trusteeship: Environmental Global Governance via Green Regulations, Taxes and User Fees

Some Observations About the Relationship Between the UNCLOS, Precautionary Principle-Based Multilateral Environmental Treaties & the WTO NOT Discussed

The EU Has Long Relied on the UNCLOS Tribunal & Global Governance Framework to Export and Enforce its Green Precaution-Based SD Policies-Obama Agrees?

Bangladesh Invokes UNCLOS Dispute Settlement Mechanism to Resolve Territorial Maritime Disputes With India & Myanmar

How Europe's Precautionary Principle Can Be More Easily Enforced via UNCLOS Dispute Settlement & the 'Greening' of the WTO

“ECOSYSTEM-BASED MANAGEMENT”: A STEALTH VEHICLE TO INJECT EURO-STYLE PRECAUTION INTO U.S. REGULATION

Americans' Constitutional Rights Will Be Trampled Unless Senator Kerry & Other Congressional Committee Chairs Hold Public Hearings to Vet the UNCLOS

US UNCLOS Accession NOT Necessary to Secure Vast Majority of U.S. Energy Needs, US Army War College Research Paper Finds; Amendment Preferred

CFR Report Uses Climate Change, Piracy & Continental Shelf as Bogeymen to Promote UNCLOS Ratification Without Congressional Hearings

Where is Obama's & Kerry's Promised Governmental Accountability as Concerns the UN Law of the Sea Convention Ratification Process?

...CSI Lobbying Efforts

Sen. Kerry looks for window to ratify Law of the Sea

The Senate is gearing up to ratify a decades-old U.N. treaty that critics warn could create a massive U.N. bureaucracy that could even claim powers over American waterways.

The U.S. Government Accountability Office

The Government Accountability Office Organization Chart - Detailed

US Navy Had a Whale of a Job Fending Off Green Lawfare in NRDC v. Winter Case

ITSSD: U.S. Navy Had a Whale of a Job Fending Off Green Lawfare in NRDC v. Winter Case

Has the Obama Administration Intentionally Duped America Again Concerning Global Warming/Climate Change as a Pretense for UNCLOS Accession?

U.S. committed to backing Law of the Sea convention

President-Elect & Media Drink US Navy Kool-Aid: Fail to Confirm Spurious Claims That UNCLOS Ratification Necessary to Exploit Deep Sea Oil & Gas

The F(utility) of Relying Upon the UNCLOS to Ensure Freedom of Navigation and Eradicate High Seas Piracy, Illegal Fishing & Toxic Waste Dumping

ITSSD to Sarah Palin: Arctic Race Notwithstanding, UNCLOS Must Be Thoroughly Vetted & Perhaps Renegotiated BEFORE the U.S. Decides to Ratify It

The Environmentally Focused UN Law of the Sea Treaty is a Threat to U.S. Private Property Rights

EURObama Chose Senate Foreign Relations Committee Chair 'Lightweight Joe' to Push 'Green' UN Treaties Like the UNCLOS & Kyoto Protocol

The LOST, a Trojan SeaHorse, is a 'Dynamic and Evolving Body of Law', Says UN, That Would Likely Overtake US Legal & Economic Sovereignty

UNCLOS is Once Again 'On the Move', Being Promoted By Alaska's Senators and President Bush; But the Reality About UNCLOS Continues to Evade Them

ITSSD President Delivers Thought-Provoking Speech at National Defense University - What Do the UNCLOS Experts Have to Say Now??

If The US Senate is in NO Rush to Ratify UNCLOS, Then Why Doesn't Congress Accord Americans 'Due Process' & Hold Open, Public UNCLOS Hearings?

Why Has the U.S. Senate Remained So Quiet About UNCLOS?? Wasn’t Its Ratification Supposed to be a Slam Dunk??

If US Environmentalists Employ Lawfare Against Our Navy What Do You Think the Precautionary Principle-Crazed European Union & its Greens Will Do??

UNCLOS Ratification Would Provide a 'Shield of U.S. Sovereignty' Against EU & Environmentalist-Inspired 'Lawfare'??