Chamber advises caution in seabed mining

(Thank you, IntLawGrrls, for the opportunity to contribute this guest post)

A new Advisory Opinion on Responsibility and Liability for International Seabed Mining from the Seabed Disputes Chamber of the Hamburg-based International Tribunal for the Law of the Sea advises countries interested in sponsoring commercial mining in international waters that they can limit their liability for accidents, but that they will have to consider the precautionary approach, global commons interests, and the evolution of international law in light of new scientific information.
Small island states interested in sponsorship requested this advisory opinion before they undertook to sponsor mining companies based in Canada and Australia.
This February decision was the first to be issued by the Seabed Disputes Chamber, which was established by the UN Convention on the Law of the Sea. The opinion clarifies a number of issues specific to a state’s obligations and liability for harm that might result when it sponsors commercial deep seabed mining in a zone of international waters designated “the Area.” It also offers much of more general interest, particularly in its application of the ILC Draft Articles on state responsibility.

The Chamber’s thoughtful decision should encourage states to have confidence in the Tribunal and its Chamber.

The increasing value of metals that are found on the deep seabed has given rise to greater commercial interest in mining in international waters, more than 200 miles offshore and at as much as 6,000 meters (18,000 feet) below the sea surface. (credit for above right photo of seabed diamond-mining vessel) Access to these resources is implemented through a regime managed by the Jamaica-based International Seabed Authority, which, the Chamber observed, “acts on behalf of mankind.” Under this system, a government can sponsor a company to explore and mine some international waters. The United States, not having ratified the law of the sea convention, is not part of the regime.
If a state adopts appropriate measures, Article 139 of the convention exempts that state from liability for catastrophic harm to the ocean or seabed caused by a company that it sponsors. However, the Chamber advised that to obtain this protection the sponsoring state must satisfy its “due diligence” obligation to make best possible efforts to secure compliance by the sponsored contractors. What is required of due diligence varies according to the state of scientific and technological knowledge and the risks of the activity. It includes the adoption of laws, regulations, and administrative measures in the state’s domestic legal system that are both:
► As stringent as those established by the International Seabed Authority; and
► As effective as international standards.
States must apply a precautionary approach as an integral part of their due diligence obligations

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.

Disregarding such risks would constitute a failure of due diligence. The Chamber observed that a growing number of treaties have “initiated a trend” to make the precautionary approach part of customary international law. (This advisory opinion adds one more example of opinio juris to that development.)

In addition, the mining regulations governing prospecting and exploration for polymetallic nodules and sulphides explicitly require states and the International Seabed Authority to apply Rio Declaration Principle 15. That formulation requires that

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.

In a variation on the principle of “common but differentiated responsibilities,” Nauru, a small Pacific island state, had proposed that UNCLOS provisions intended to encourage developing state participation require it to observe a lesser standard of obligation than required of developed countries. Nauru argued that it could not risk the potential cost of a disaster, and so would be unable to gain the benefits from deep seabed mining promised to developing states in the convention. In this Advisory Opinion, the Seabed Disputes Chamber stated that sponsoring state obligations apply to both developed and developing countries, although “rules setting out” direct obligations could differentiate. The Chamber also noted that Rio Principle 15 may suggest a different standard, as that principle includes the proviso that the precautionary approach is to be applied according to the capabilities of the state.
While obligations and liability rules are established by the convention and related instruments, the consequences are governed by customary international law. Citing the ILC’s codification of customary law, its Articles on State Responsibility, Article 48, the Chamber indicated that obligations to preserve the environment of the high seas and in the Area may be erga omnes; that is, owed to the international community as a whole or “to a group of States [if the obligation] is established for the protection of a collective interest of the group.” The Seabed Authority might be able to claim compensation on behalf of the international community, along with parties to UNCLOS, “entities engaged in deep seabed mining, other users of the sea, and coastal States.” Though the Chamber does not mention it, other forms of enforcement may also be open to the international community.
Some failures of state oversight that contributed to the Deepwater Horizon disaster in the Gulf of Mexico (prior IntLawGrrls posts available here) are addressed by the Chamber. They include:
► The obligation of Environmental Impact Assessment;
► Raising of the performance standard from “best technology” to “best environmental practices”; and, in the aftermath,
► Ensuring access to compensation.
Referring to the 2010 judgment of the International Court of Justice in Pulp Mills (discussed here), the Chamber stated that Environmental Impact Assessment is both

a direct obligation under the Convention and a general obligation under under customary international law.

The rejection of the argument that states that sponsor mining operations bear residual liability for any damages not compensated by the mining company leaves an important gap in liability.
Other international liability regimes are structured in a similar way, which made sense in an “empty world”. In today’s “full world”, if the cost of environmental damage is not paid by those who expected to profit from the harmful activities, it will be paid by the international community.
The Chamber suggested that a possible solution could be the establishment of a trust fund.
Such funds have at times been successful, as in the case of the International Oil Pollution Compensation Funds. But the slow progress on climate change funds is an example of the problems.
The Chamber’s invocation of Article 304 of the law of the sea convention, which refers to the development of further rules governing responsibility and liability for damage, and its linkage of rising environmental standards to increased scientific knowledge leave the door open to a more protective stance in future contentious cases and provides important guidance to the International Seabed Authority.
The Chamber provided a degree of access to nonstate participants.
Under the rules applicable to the Chamber’s advisory jurisdiction, “intergovernmental organizations which are likely to be able to furnish information on the question” may be invited to participate.
On that basis, the Chamber invited all observers to the International Seabed Authority Assembly to submit written and oral statements. The participation of the International Union for Conservation of Nature, on behalf of which I appeared in these proceedings, along with members of the UN family: UNESCO’s Intergovernmental Oceanographic Commission and the UN Environmental Programme, occurred on this basis.
Two nongovernmental organizations, Greenpeace International and the World Wildlife Fund, jointly submitted a statement and a request to participate in the proceedings as amici curiae. The Chamber considered the request and decided to post the statement on its website, but as the Rules of the Tribunal do not provide for amicus participation, did not include their statement in the case file. The NGOs were not allowed to participate in the oral proceedings.
The Advisory Opinion, written statements, verbatim record of oral statements, and webcast of oral statements are all available here.

2 tacks to combat piracy

Year's end finds 2 countries setting different courses to combat the recent spate of pirate attacks in the Gulf of Aden off the coast of Somalia.
In the United States, just before Thanksgiving, a federal jury in Virginia returned convictions for piracy and other offenses against 4 Somali defendants. (credit for detail from 2010 courtroom sketch by Alba Bragoli/AP) The verdict came one month after the judge in the case, United States v. Hasan, sustained a charge brought under 18 U.S.C. § 1651. The statute provides, in language dating to 1819:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Yet in the same courthouse a few months earlier, a different federal judge, in the case of United States v. Said, had dismissed a piracy charge brought against 6 other Somali men. Tripping the latter judge up was Congress' reference in § 1651 to "the law of nations."

The opposite rulings reflect uncertainties about whether an old legal framework presents the proper way to proceed against 21st C. pirates. It's a puzzle addressed in this discussion by our OJ colleagues, and in many IntLawGrrls posts available here.

In the United States, the discrepancy next awaits consideration by the Virginia-based Court of Appeals for the 4th Circuit.

France, meanwhile, has taken another tack.

France also has been involved in policing piracy in the Gulf of Aden. (credit for March 2010 of French naval vessel, with "Somali pirate skiffs" in foreground) France also has found that its old laws fell short -- and so it's opted for a legislative fix.

Shortly before Christmas, the Sénat voted unanimously in favor of the Loi de lutte contre la piraterie et d'exercice des pouvoirs de police de l'Etat en mer -- a bill to ease the pursuit and punishment of pirates that the legislature's lower house already had approved.

Key components:

► An 1825 French antipiracy law having been abrogated in 2007, the newly adopted law reintroduces into the penal code the crime of piracy -- a crime may be pursued via universal jurisdiction. The new law applies to acts of piracy "within the meaning of" the 1982 U.N. Convention on the Law of the Sea, "committed ... on the high seas," "in maritime spaces outside any state's jurisdiction," and "when international law permits, in a state's territorial waters." That Convention is an artifact of the law of nations to which France has been a state party since 1996, but to which, as posted, the United States does not belong.

► The new statute further establishes a legal regime for detaining suspects onboard French naval vessels while they are being transported to judicial authorities. These Mesures prises à l'encontre des personnes à bord des navires respond to a March 2010 judgment, Affaire Medvedyev et Autres c. France, in which the European Court of Human Rights held that France had violated the guarantee of liberty and security of person in Article 5 of Europe's human rights convention by its high-seas detention in 2002 of members of a ship's crew who were suspected of trafficking in drugs.

(Deep thanks for invaluable assistance with this post to University of California-Davis LL.M. student Johann Morri, on leave this year from his post as a French administrative law judge.)

Guest Blogger: Caitlyn Antrim

It's IntLawGrrls' great pleasure to welcome Caitlyn Antrim (left) as today's guest blogger.
Caitlyn's the executive director of the Rule of Law Committee for the Oceans and publisher of the "Ocean Law Daily," a newsletter focused on the U.N. Convention on the Law of the Sea, its relation to U.S. national interests, and prospects for approval by the U.S. Senate. She discusses those prospects in her guest post below.
Caitlyn began studying law of the sea under Harvard Law School Professors Louis Sohn and Richard Baxter at the same time she was earning the professional degree of Environmental Engineer at the Massachusetts Institute of Technology. She credits this dual track for preparing her for translating and mediating between lawyers and engineers, developed and developing countries, and other cultural clashes in international ocean and environmental policy debates.
After graduation she joined the government, representing the Commerce Department and NOAA, the National Oceanic and Atmospheric Administration, on the U.S. delegation to the Law of the Sea Conference. Since then, she has served on delegations and secretariats at the U.N. Conference on Environment and Development and the Convention on Drought and Desertification. She's also worked for the Congressional Office of Technology Assessment, the American Academy of Diplomacy, and the National Academy of Sciences, all the while keeping involved in the progress of the law of the sea convention.
Caitlyn has published articles on law of the sea, strategic minerals, negotiation theory and practice and, most recently, the emerging regime for the Arctic. A loyal blogreader, Caitlyn nominated an IntLawGrrls transnational foremother years ago: Dr. Grace Murray Hopper (right) (photo credit), a Navy officer who developed the computer language COBOL.
Heartfelt welcome!

UNCLOS needs bipartisan push

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Twenty-eight years ago, on December 10th, 1982, 119 nations signed the United Nations Convention on the Law of the Sea, a convention that the United States has yet to join. It was written recently that the American government can no longer approve treaties, at least not ones of importance. While IntLawGrrls Diane Marie Amann made a convincing counterargument, the case of the United Nations Convention on the Law of the Sea (prior posts) could leave one pondering the issue again. (credit for photo of 1982 U.N. law of sea conference in Montego Bay, Jamaica)
UNCLOS is recognized worldwide as one of the great accomplishments in modern international law. Responding to changes of ocean use that were undermining the three-century-old Grotian regime of free seas, negotiators labored for more than a decade to craft a convention that benefited all nations. Then they labored another dozen years to resolve the last of the concerns, enumerated by President Ronald Reagan, which had previously kept the United States from joining the Convention.
Though it can be intimidating in its scope and detail, the Convention has garnered the support of the U.S. Navy and Coast Guard, the energy, transportation, fishing and telecommunications industries, and non-profit organizations committed to conservation, law, and international engagement. In fact, there is no international agreement in decades that has garnered such a broad and powerful body of domestic support.
In spite of this support, UNCLOS, with its partner agreement on the implementation of Part XI, has been stalled in the Senate for 16 years.
For the first eight years, Senator Jesse Helms (R-N.C.), who chaired the Foreign Relations Committee, refused all requests for hearings. In 2003, when Helms retired and Senator Richard Lugar (R-Ind.) took his place, the Convention moved smoothly through hearings and unanimous approval in committee, but was brought to a halt by Senate Majority Leader Bill Frist (R-Tenn.).
After Democrats took control of the Senate in 2007, the Convention was once again approved in committee -- only to have George W. Bush’s support disappear in light of the foxhole conversion of Senator John McCain (R-Ariz.) to opposition to the Convention during his campaign for the Republican nomination.
The Convention returned to the Senate Foreign Relations Committee again at the beginning of 2009. The new administration of President Barack Obama listed the Convention as one of 17 “priority” treaties, but never placed it above the economy and other domestic issues in the Administration’s legislative agenda. Without active Presidential support, the Senate declined to act.
At the beginning of 2011, the Convention will automatically return to the Senate Foreign Relations Committee to start the process once again.
So, should supporters of the Convention be discouraged and turn their attention and energy to other matters in 2011? That would be understandable, but it would be wrong.
The loss of 6 Democratic seats and replacement of several supportive Republicans certainly increases the effort needed to secure Senate advice and consent over the current session, during which the 2/3 majority was assured. Still, the outlook is more promising than in any other session since hearings began in 2003.
The key to approval of the Convention in 2011 lies in mobilizing a bipartisan coalition that includes Senate Democrats and Republicans, leaders of major industries, environmental groups, good governance and international engagement organizations, and respected Republican statesmen and military leaders. Most of these have already endorsed the Convention, but they won’t pull out their big guns and commit their political and financial assets unless and until the President calls on them to make common effort to secure approval.
The downside for the President is that the Convention will be subjected to all the procedural roadblocks that opposing Senators, James Inhofe (R-Okla.), David Vitter (R-La.), and Jim DeMint (R-S.C.) can devise. This includes not one but two filibusters and cloture votes -- one for adoption of the Convention and another for adoption of the resolution of advice and consent. These delays would come at the cost of floor time for other legislative issues.
In addition to the Senate battle, another contest will be fought by grassroots groups through faxes and e-mails.
Conservative and libertarian networks such as “FreeRepublic.com” and “GrassFire.org” have deluged Senate offices with thousands of messages on a moment’s notice. These communications are fraught with errors and outright lies, but the number of opposition messages puts senators on the defensive.
In the past, there have been no corresponding efforts to support for the Convention. This has to change. But just as businesses want to know that the Administration is serious before committing their CEOs and their political resources, public interest groups want to know that they will be part of a team effort and will not be abandoned by the Administration along the way.
Two women leaders will be key to success in approving the Convention: Secretary of State Hillary Clinton and Senator Lisa Murkowski (R-Alaska). (photo credit) Both have been outspoken supporters of the Convention, notably during Secretary Clinton’s confirmation hearing (video clip). The commitment recently was repeated Clinton’s comments to the Commonwealth Club in San Francisco:

We're going to prioritize the Law of the Seas next year. It is critical to how we're going to manage the Arctic. It is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea. It is so much in America's interests. And the objections to it are just not well founded. So I'm hoping that we'll be able to get a hearing on it early in the year and get a vote on it as soon thereafter as possible.

In the end, success or failure regarding the Convention on the Law of the Sea rests with President Obama, for three reasons:
► First, he, with Senate Majority Leader Harry Reid (D-Nev.), will determine where the Convention fits in the Senate’s agenda;
► Second, military leaders, always strong supporters of the Convention, will not move forward until the President directs them to do so; and
► Third, the heavy hitters of industry, environment and public interest groups will only move as part of a concerted effort with the Administration.
While Clinton and Murkowski will help lead the effort to move the Convention through the Senate, their effort cannot get underway until the President enlists partners inside and outside the government in a bipartisan and multi-sector effort to secure the support of all but the most ideological opponents in the Senate.

International law & new U.S. ocean policy

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

International lawyers measure change over the course of human events, believing we might even shape both the change and the events. Geologists think differently.
In geologic time 65 years barely register. In international law they take us from the September 28, 1945, Proclamation on the Continental Shelf, issued by President Harry S. Truman, to the July 19, 2010, Executive Order No. 13547 on Stewardship of the Ocean, Our Coasts and the Great Lakes, issued by President Barack Obama. Delayed a few weeks by the fatal explosion and aftermath at the Deepwater Horizon oil rig in the Gulf of Mexico (prior IntLawGrrls posts), the latter order adopts a task force's recommendations, establishes a National Ocean Council, and proclaims a national ocean policy.
At long last the United States has a national ocean policy. Will it make a difference? Did the Truman Proclamation? Why consider documents of domestic executive power in a forum for international law?
For one, the Truman Proclamation memorialized this country’s once and future reliance on hydrocarbons and, for better or worse, it has shaped international law. It introduced the idea that the continental shelf

may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it,

and called for settling overlapping shelf claims by “equitable principles.” Via the 1969 judgment of the International Court of Justice in North Sea Continental Shelf, the 1945 Proclamation led negotiators to include the conept of “natural prolongation” in how to define the continental shelf under Article 76(1) of the U.N. Convention on the Law of the Sea. Geoscientists worldwide have learned to work with this legal construct and non-geologic definition of the shelf as they gather data that undergird national submissions to the Commission on the Limits of the Continental Shelf.
Other parts of the Truman Proclamation have been less influential in international law. Perhaps, post-Deepwater Horizon, their time has come.
Filtered through intervening years and changed understandings of resources (not just for exploitation any more) and their role in larger social or eco-systems, the Proclamation might be applied in powerful new ways. It states:

[S]elf-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources.

Yes, the focus is on utilization, and the environment goes unmentioned, but this is not surprising. It was, after all, only 1945.
If international environmental and ocean law have accomplished anything since 1945, they’ve made clear the duty of states. To quote Article 192 of the Law of the Sea Convention:

States have the obligation to protect and preserve the marine environment.

The Convention further calls for: protecting fragile ecosystems/endangered species habitats, in Article 194; contingency plans against pollution, in Article 199; and monitoring risks of pollution and assessing potential effects of activities on the marine environment, in Articles 204 and 206. Article 208 requires states to adopt rules to “prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction,” which shall be “no less effective than international rules, standards and recommended practices.” As IntLawGrrl Rebecca Bratspies has posted, regulations promulgated pursuant to the United States' Outer Continental Shelf Lands Act require shutdown of offshore operations if there exists a

threat of serious, irreparable or immediate harm or damage to life ... or to the marine, coastal or human environment.

To quote the Truman Proclamation, what “activities off our shores” are necessary today for resource use in the ocean’s subsoil and seabed? What future uses should we promote? How to define “self-protection”?
In issuing his Stewardship order last month, President Obama answered these questions by embracing one big idea: coastal and marine spatial planning, defined in § 3(b) of that Executive Order as

a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas.

This big idea lets stakeholders decide, region by region, what to allow off their shores. In this and other ways, the national ocean policy reflects developments in international law since the Truman Proclamation.
The Executive Order states that it is U.S. policy to “support sustainable, safe, secure and productive access to, and uses of the ocean, our coasts, and the Great Lakes” and to “exercise rights and jurisdiction and perform duties in accordance with applicable international law.” The United States is to promote this policy by “pursuing ... accession to the Law of the Sea Convention.”
The order doesn’t mention the precautionary approach. But the Final Recommendations of the Interagency Ocean Policy Task Force, which the order adopts, do. Specifically, the Recommendations list the precautionary approach as one of the “Principles” that will guide “management decisions and actions affecting the ocean” (p. 15) and planning for achieving coastal and marine spatial planning (p. 49). Principle 15 of the Rio Declaration is quoted both times, for example:

Decision-making will also be guided by a precautionary approach as reflected in the Rio Declaration of 1992, which states ... ‘[w]here 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.’

Appendix C of the Recommendations summarizes public comments about the “precautionary approach” and “precautionary principle” (prior IntLawGrrls posts), the latter of which the United States has consistently declined to apply. To cite one example, the temporary ban on commercial fishing in the 2009 Fishery Management Plan for the U.S. Arctic invoked the precautionary approach.
The Recommendations contain another “principle”; that is, that the country

should cooperate and provide leadership internationally in the protection, management, and sustainable use of the world’s ocean [and] coastal regions, ... in keeping with applicable conventions and agreements, and with customary international law, as reflected in the Law of the Sea Convention.

(p. 17) In implementing the policy, the new National Ocean Council is to

coordinate with the Secretary of State and the heads of other relevant agencies
on matters related to the policy issues that arise within the Intergovernmental Oceanographic Commission, International Whaling Commission, Arctic Council, International Maritime Organization, regional fishery management organizations, and other similar international organizations.

(p. 22) These are just some references to international law and cooperation in the national ocean policy and the Recommendations.
The United States has helped shape in the international arena some of the concepts that have in turn been adapted for national use in the new U.S ocean policy -- sustainability, coastal and marine spatial planning, large marine ecosystems, and ecosystem-based management among them. Whether that policy will shape international law in the next 65 years, to the extent the Truman Proclamation has in the last, remains to be seen.
First, we need to work on how the new policy will shape our response to the Deepwater Horizon incident.

Selden v. Grotius, a sequel

There's something about the law of the sea.
Teaching Public International Law has taught that although the law of the sea is among those furthest from the experience of the average student, the average student nonetheless finds in the law of the sea a kind of romance. Perhaps we all still long for our own turn on Treasure Island, our own Two Years Before the Mast.
Especially gripping is the battle of words between John Selden and Hugo Grotius (prior IntLawGrrls posts). Theirs was a prime politicolegal-philosophical struggle of the middle of the last millennium -- a battle over whether the sea/mare was clausum/closed, as England's Selden maintained, or liberum/free, as Holland's Grotius posited. It is, moreover, a struggle that many an intlaw casebook renders epic. (Caveat: Our colleague Edward Gordon has published a must-read study that adds considerable complexity to this binary account of the debate respecting law and oceans.)
That struggle undergirds the newest ASIL Insight, entitled "Climate Change and Guidelines for Argo Profiling Float." The authors -- oceans experts Aurora Mateos (below left) and Dr. Montserrat Gorina-Ysern -- thus open with the reminder that

the law of the sea remains affected by an ago-old controversy among scientists and diplomats over the dichotomy between 'freedom and regulation.'

The authors proceed to detail, 1st, how the Argo float, which promises to provide data on inter alia climate change is among the "oceanic research activities with new technologies, instruments, and equipment" that engenders "a fierce resistance to legal regulation of the high seas," and 2d, how that resistance "coexists in an uneasy compromise with a fierce protection of coastal States' sovereign rights to explore and exploit the natural resources of the continental shelf and the Exclusive Economic Zone (EEC)." (image credits here and here)
Bottom line:
► In Grotian fashion, coastal states near whose waters such research might be conducted by other states -- the Insight mentions Peru and Argentina -- maintain that the Argo float and similar research activities fall within the United Nations' regulatory structure established by the 1982 U.N. Convention on the Law of the Sea.
► But research-resource-rich countries like the United States (a nonparty to the 1982 Convention, as we've posted) lean toward considering such research activities the unregulable beneficiaries of Seldenian freedom of the high seas.
The Insight authors thus expose a politicolegal-philosophical struggle that offers intlaw profs -- at least those able to navigate the viral soup of acronyms epidemic in environmental law -- a contemporary application of the old Selden-Grotius standoff.

"One Ocean, One Climate, One Future"

In 2008, the UN General Assembly adopted Resolution 63-111, ¶ 171 of which declared June 8 to be World Ocean Day. Although the Resolution contains a laundry list of marine-related issues, it devotes an entire section to preserving the marine environment. In doing so, the General Assembly was recognizing the connection between "sustainable development and management of the resources and uses of the oceans and seas" and the United Nations Millennium Goals.
The Resolution urges states to act on the concerns raised by the UN Intergovernmental Panel on Climate Change about increasing sea temperature, rising sea level, and ocean acidification, (the projections are for reduction in average global surface ocean pH of between 0.14 and 0.35 units over the 21st century) and the critical role that oceans play in mediating global climate.
The Resolution also draws attention to destruction of coral reefs, ocean dumping, overfishing, and the myriad other environmental threats facing the world's oceans. Finally, the Resolution points out that most of the pollution load of the oceans emanates from land-based activities, calls upon States to implement the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities.
There are numerous international agreements purporting to protect the oceans. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates an international legal framework for all activities in the world's oceans and seas. With regard to the environment, UNCLOS Articles 192 and 194 impose duties "to protect and preserve the marine environment" and to "prevent reduce and control pollution of the marine environment."
Additionally, the International Convention for the Prevention of Pollution from Ships (MARPOL), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (with its 1996 Protocol which bans ocean dumping), the 2004 Ballast Water Convention, the Convention on Trade in Endangered Species, the Convention on Biological Diversity, as well as numerous regional fisheries agreements all seek to channel state action towards protecting rather than harming the marine environment. Confusion and conflicting reports during the search for the wreckage of the Air France flight 447 underscored just how polluted the oceans have become. Debris and an oil slick initially thought to be from the crash turned out to be routine and wholly unrelated pollution. Indeed, a vast swath of the ocean has become the world's largest trash dump, with plastics routinely killing vulnerable marine mammals, turtles and sea birds.
The United States has one of the world's largest coastline, and claims management jurisdiction over the world's largest exclusive economic zone. It is past time to ratify UNCLOS, and to take a leadership role in protecting and preserving the world's oceans as part of a comprehensive plan to preserve the earth and to promote the welfare of its inhabitants. We do indeed have "one ocean, one climate, one future."

Go On! "Arctic Sovereignty"

(Go On! is an occasional item on symposia of interest.)
Ice caps are melting.*
Polar bears are perishing.**
The Russians are coming.***
An oceans treaty remains LOST somewhere in the U.S. Senate.****
"Arctic Sovereignty: Cold Facts, Hot Issues," a conference on the law underlying these events, will take place 8:30 a.m.-5 p.m. On Friday, October 3, at Southwestern Law School in Los Angeles. Panels will cover a variety of topics – Territory & Security, Environment & Natural Resources, Indigenous & Human Rights. Among those presenting papers, which will be published in the Southwestern Journal of International Law, include: IntLawGrrls’ own Rebecca Bratspies; Suzanne Lalonde, Université de Montréal; Rosemary Cooper, Inuit Tapiriit Kanatami; Sarah Krakoff, Colorado Law School; Sophie Thériault, Université de Ottawa; and Angela Riley, Southwestern Law School.
Details and registration here.

* Climate change (here).

** Bears (here).

*** Back last summer (prior post here), and again, this week (see here).

**** Law of the Sea Treaty (here).

The Jolly Roger Still Flies

Much of the world is familiar with Grace O’Malley (transnational foremother of IntLawGrrl Diane Marie Amann), Jack Sparrow and Long John Silver, and those who’ve delved into the history of the Alien Tort Claims Act (or Statute) (see our ATCA posts here) know well the importance of piracy to universal jurisdiction. But today’s pirates seem to have gone largely unmentioned in the mainstream press, despite their having taken some 3200 sailors hostage over the last 10 years, which they’ve ransomed for millions of dollars (paid by the shipowners). In fact, total worldwide losses due to commercial vessel piracy are estimated at USD 13-16 billion per year. Just a little over a week ago, for example, Somalian farmers cum pirates took control of a French luxury liner, the Ponant, in the Gulf of Aden. The passengers had been dropped off and the ship was taken after it pulled out of port, as are many ships in this Gulf, where they’d apparently have to be racing along at 200 nautical miles/hour to escape capture. The 22-member crew was hostaged for a reported $2 million, but the French military operation managed to net 6 of 13 pirates and some of the booty. The legal questions now are: where will these 6 pirates be tried and how should such cases be handled in the future? International maritime law does not provide a complete answer: a state seizing a ship from pirates is authorized to prosecute the pirates (indeed, the law of nations upon which the ATCA was built required states to prosecute alleged pirates and put them to death if convicted). However, these 6 pirates were captured on land, in Somalia, then taken aboard a French vessel. The transitional government in Somalia is apparently not contesting France’s going ahead with prosecution, but France is proposing both Security Council action to provide not only “regular international surveillance” and a right to hot pursuit in the waters off Somalia, but also a revision of the definition of piracy contained in the United Nations Convention on the Law of the Sea (UNCLOS). Article 101 of that treaty defines piracy as occurring on the “high seas,” thus not in a state's territorial waters (a 12-mile-wide stretch off the coast). But poor states unable to take the measures necessary to combat piracy in their territorial waters may be willing to cede sovereignty over these waters, at least with respect to pirate patrols. Now, I realize it would be useless to sue a penniless pirate, but why after 10 years of hostage taking and ransom collecting have none of these people been sued under the ATCA? Has the ransom always been recovered or returned as part of the criminal process? Or, hard to believe, are these 6 Somalians the first modern pirates to be captured?

On December 10, ...

... 1981, the BBC reported on a "mystery disease" that was "causing increasing concern in the United States." It stated that "[t]he unknown condition, which consists of two separate diseases -- a form of pneumonia and skin cancer, has been found in 180 patients in 15 states since last July." The disease had "claimed around 75 lives so far in the US and," the report added, "up to 92% of the victims are homosexual men." The disease, of course, was AIDS, which since has killed "[a]round 24 million people" in the world, and has become "the leading cause of death in sub-Saharan Africa."
... 2007 (today), is celebrated Human Rights Day, in recognition of the adoption in 1948 of the Universal Declaration of Human Rights, as we've described here, here, and here. As indicated by the logo above, the Office of the U.N. High Commissioner for Human Right is already gearing up for a 60th anniversary next year for the Declaration, which, it states, "has the Guinness World Record for most translated document in the world," having been rendered in languages ranging from the 6 officials, Arabic, Chinese, English, French, Russian, and Spanish, "to Pipil, spoken by some 50 people in El Salvador and Honduras." Perhaps it's not surprising, then, that at least 3 other U.N. instruments have been opened for signature on this day: the Convention on the Law of the Sea in 1982; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984; and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women in 1999.

Will ITLOSe?

In a Halloween post available here (scroll down to the nicely named "Trick or Treaty?"), our Opinio Juris colleague Duncan Hollis predicted smooth sailing in the U.S. Senate for the U.N. Convention on the Law of the Sea, about which we too have posted. 'Fraid he might be mistaken.
True, the Foreign Relations Committee has voted "aye" by a 17-4 margin -- more progress than the 1982 Convention, which entered into force in 1994 and now has 155 states parties, ever has made in the United States. (History of U.S. involvement in negotiating the treaty and thereafter here.)
Yet as noted in a comment by our colleague Andreas L. Paulus, University of Göttingen, Germany, at least 1 Republican foresees failure in the full Senate. "This treaty will not be adopted. There aren't the votes to pass it," Sen. Jon Kyl (R-Ariz.) told the Associated Press. Echoing him in the same story was Sen. Trent Lott (R-Miss.), who's declared: "I am absolutely convinced it undermines U.S. sovereignty."
Lott's not alone in sounding the sovereignty alarm.
Presidential hopeful Mike Huckabee's called U.S. involvement in the treaty "'the dumbest thing we've ever done,'" and staked out treaty defeat as "'[o]ne of the defining issues of our time,'" Gail Collins reports in the New York Times. A quick Google search suggests that Huckabee has a corner of the virtual world on his side. What's more, Collins writes, many of Huckabee's rivals for the Republican nomination are falling in line with him, notwithstanding that the treaty's supported by the United States' Defense Department, the State Department, and incumbent President.
Might be time to run up that stormy weather flag.

Navigating the Law of the Sea Treaty hearings

Just in time for the hearing set for today before the Foreign Relations Committee of the U.S. Senate, the American Society of International Law's posted a trove of information on the 1982 U.N. Convention on the Law of the Sea. As we've posted, although the treaty enjoys widespread international support (155 states parties), efforts to secure U.S. ratification always have run aground. ASIL's databank indicates some division of opinion, notwithstanding 2 recent events have reinvigorated supporters: 1st, President George W. Bush's call for Senate approval; and 2d, Russia's deep-sea adventurism in the Arctic Ocean.
Witnesses on the agenda for Thursday's kickoff hearing are Deputy Secretary of State John D. Negroponte, Deputy Secretary of Defense Gordon England, and Admiral Patrick M. Walsh, Vice Chief of Naval Operations. The Committee plans another hearing in October, "at which time proponents and opponents, as well as ocean industry representatives, will be invited to testify." (photo courtesy of the Navy of Australia, a state party since 1994)

Chillin'

There's something so last-millennium about the news that explorers have planted the Russian flag at the North Pole; to be specific, more than 2-1/2 miles underneath the pole. The move of these latter-day conquistadors would bemuse if the stakes weren't so high.
It's intended to give Russia rights to exploit "oil, gas and mineral reserves" believed to lie in the claimed "vast swathe of territory in the Arctic." The reserves are more accessible, U.S. Coast Guard Academy Professor Scott Borgerson writes, on account of the warming of the Arctic. And Russia's not the only interested state: Borgerson names a half-dozen more that claim interests in the Arctic, and demonstrates that the potential for an ice rush, if you will, calls for some international cooperation.
Eventually there should be a comprehensive Arctic treaty, he writes, and even before that, bilateral agreements.
An obvious route for cooperation is the 1982 U.N. Convention on the Law of the Sea. As posted earlier, however, the United States remains outside that treaty regime, a fact that reduces its leverage on this issue. In May, President George W. Bush called for ratification. But, as in the past, ratification's become a topic of heated debate. Senate Foreign Relations Committee Chair Joseph Biden's among Democrats in favor of ratification, while folks generally supportive of Bush are weighing in on both sides. It remains to be seen whether the support of this President can propel this multilateral treaty through the U.S. Senate.
(photo of flags at North Pole during Robert E. Peary's 1909 expedition (c) 1910 Frederick A. Stokes Co.)

LOST no more?

Sorry, this is not a commentary on that survivalist series that seems to have taken couch potatoes by storm; check out that TV show if you must. But check out too a new ASIL Insight into another LOST: the Law of the Sea Treaty concluded in 1982, to which 153 other countries already belong. In their commentary our colleagues David D. Caron and Harry N. Scheiber explain how the opposition of a very few -- among them the late Jeane Kirkpatrick, 1st woman ever to serve as the United States' Ambassador to the United Nations -- stymied U.S. accession to a convention which enjoys the support of the

Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations.

In mid-May U.S. President George W. Bush urged the Senate to give its advice and consent. "Senate delay may prove costly since treaties without leadership can decay," Caron and Scheiber write, sounding a warning that can be applied to other contexts, too.
(For news of another ocean-related treaty regime, see above.)