Nuclear moratorium

In "a change in tone over 24 hours" that Le Monde deems "spectacular," Chancellor Angela Merkel has declared a 3-month moratorium in Germany on old nuclear power plants.

Prompting the longtime proponent to halt production in certain plants is, of course, the nuclear disaster looming in Japan. There, plant explosions have led to a "much higher than normal level" of radiation in Japan since the 9.0 earthquake last Friday. (credit for map showing Japan's nuclear power plants)

In the United States, the Obama administration reportedly seeks "to reassure Americans that nuclear power is safe."

That effort contrasts with Merkel's announcement of plans for inspection of Germany's 17 reactors, some with designs much like that in Japan. (In similar vein, French President Nicolas Sarkozy expressed "disquiet" over the still-unfolding tragedy.)

Merkel described the catastrophe in Japan as a moment for reflection by "the entire world."

Let's hope that reflection entails robust application of the precautionary principle.

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.

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.

Precautionary principle, anyone?

2 things jump to mind about the "Swamp Tour" my family and I took years ago through Louisiana's bayous:
► Try though we did, none of us caught even a glimpse of a 'gator.
► Even back then, those wetlands were mighty fragile.
Today the bayous that buffer New Orleans from the Gulf of Mexico are under siege. More than 200,000 gallons of oil a day are spewing into the Gulf as a result of an offshore rig explosion on April 20. (prior post) That's 4 million gallons and counting.
Already the environment is harmed. Tar balls, "sticky, dark-colored blobs," are washing up on beaches. So too dead animals -- turtles, fish, dolphins. Fishing families are out of work. These and other effects will be felt for years.
Nor is any sure solution in sight. Rather, as Rebecca posted, what's heard is one "Maybe this'll work?" after another. Televised computer-modeled animations of the (to date, failed) efforts make MouseTrap (left) look like serious business.
Odd, then, that not much seems to have been said so far about the precautionary principle.
As international environmental lawyers well know, that principle has origins from this passage in the 1992 Rio Declaration on Environment and Development:

Principle 15
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.

In essence, the precautionary principle is a call for recalibration of cost-benefit analysis. When failure of an activity would cause a truly dire catastrophe, even the remotest possibility of that result requires the exercise of extra-special care. It's a rule of risk aversion.
But it can be costly, for its application may bar the activity, altogether or at least for the foreseeable future. And if the activity is something like drilling for oil, that obstacle means higher prices and lost profits.
Not surprising, then, that although the precautionary principle has retained some currency, it has not won full embrace.
It's positive law in City of San Francisco, but pretty much nowhere else in the United States. Westlaw cites only 10 federal cases that have used the term; none has applied it as a justiciable legal norm. Here's perhaps the fullest discussion, an explanation of why the court rejected a motion to dismiss that had invoked the principle:

The Plaintiffs' claims were based on the European Council's “Precautionary Principle” and the European Commission's “Science and Society Action Plan.” Neither document has been incorporated into domestic law, by international treaty or otherwise.

Sancho v. U.S. Dept. of Energy (D.Hawai‘i 2008).
And though the principle has applicability with regard to food, health, and the environment in the European Union, elsewhere abroad there's hesitation. What in 1992 was a "principle" has since been given a more discretionary phrasing -- "precautionary approach" -- by entities as varied as the International Law Commission, the International Tribunal of the Law of the Sea, and the WTO Appellate Body. (On the "subtle, but important, difference" between these terms, see Caitlyn's comment below.)
Approach? Principle? Whatever, the underlying idea seems like one that deserves consideration as the country reconsiders drilling in the wake of the Gulf Coast disaster. To be debated? A policy of requiring extra care before giving the go-ahead to something, when failure would cause damage too big to contain.
Call it Too Big to Fail.

Precautionary principle & wildlife treaties

My thanks to IntLawGrrls for this opportunity to guest-post on my article that is forthcoming in the Journal of International Wildlife Law and Policy:
"Adversaries or Partners? Science and the Precautionary Principle in International Wildlife Treaties."
As described in this prior IntLawGrrls post, the precautionary principle emerged from the sidelines to make a splash at the 1992 Rio Conference. Since making its debut on the international environmental law stage, the principle has been adopted in numerous international agreements, and has become an important principle of international environmental law. It has also experienced something of a backlash, however, with commentators arguing that it is incoherent and paralyzing or anti-scientific. My article identifies four themes that shed light on why the principle has become so contentious -- themes derived from examination of the work of four international treaties for the protection of wildlife:
► the Ramsar Convention on Wetlands;
► the Convention on Biological Diversity, or CBD (prior post);
► the Convention on Migratory Species, or CMS; and
► the Convention on International Trade in Endangered Species, or CITES (prior posts) (credit for logo above right).
In brief, the four themes show that the precautionary principle is primarily viewed as applicable where the parties agree that there are gaps in information or knowledge. Where the parties don’t agree on the level of uncertainty in an issue, however, contentious debates can occur, with some parties accusing those who favor applying the precautionary principle even where there is some information as anti-scientific. Finally, where parties to the treaties can agree that the precautionary principle should play a role, the trend is to link the precautionary principle to adaptive ecosystem management approaches that will be applied primarily by scientists and on-the-ground decision-makers.
Two concerns seem to be driving these themes:
► First, while parties might agree that the precautionary principle applies in cases of uncertainty, they do not always agree on how much uncertainty there is in a given situation.
► Further, the very notion that the precautionary principle asks us to question science can leave parties and commentators to fear that decision-making will now occur without any objective guiding principles.
It should not be surprising, then, that even when the principle’s role is acknowledged, the safest option seems to be to put it back in the hands of the scientists, bringing us back to the security blanket of quantitative scientific data on which we can base our decisions.
I argue in my article that this approach fails to appreciate the nature and level of uncertainty in conservation -- both temporary and stochastic. I propose that decision-makers recognize the pervasiveness of this uncertainty by developing a distinct role for the precautionary principle that allows it to act as a complement to science. The precautionary principle would both encourage scientific research and reliance on scientific data, while still allowing decision-making to evaluate that data with a background principle of caution and ensuring conservation. While this will result in some value judgments being brought to bear on decision-making, it should encourage these value judgments to be discussed openly and should provide incentives for decision-makers to seek out many sources of information and to rely on the very best scientific information available, rather than being satisfied with one or two sources of scientific data where more are available. To the extent this role takes the principle beyond its beginnings in Rio, I argue that this role is necessary as part of the process by which the precautionary principle will mature.

Groundwater law courses U.N. currents

We've posted in the past on issues related to water -- its scarcity, the inescapable need for it, claims of right to it, and increasing attention to same. Well worth noting, then, is the initiative featured in a new ASIL Insight by Kerstin Mechlem (left), Lecturer at the Transitional Justice Institute, University of Ulster, in Northern Ireland.
Mechlem underscores the adoption last month by the United Nations' 60-year-old legal research arm, the International Law Commission, of draft articles for an international framework convention on transboundary aquifers; that is, on groundwater sources that cross national frontiers. (The draft articles are expected soon to be available here.)
After outlining the scope of the problem and events leading to adoption, Mechlem points to key aspects of the draft articles:
► the principle of equitable and reasonable utilization of water resources;
► the imposition of an obligation not to cause significant harm; and
► the imposition of an obligation to cooperate, by sharing information about water and entering agreements to protect water resources.
One novelty in the draft articles is the recognition of "the need to protect aquifers against harm, resulting, for example, from fertilizers or pesticide use or industry discharge," she writes.
The articles stop short of embracing the precautionary principle. The Rio Declaration on Environment and Development stated:

Principle 15
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.

The Rio Declaration was proclaimed in 1992, and Principle 15 has gained currency since then. Nonetheless, in the view of the ILC, precaution has not yet become a principle of customary international law. Mechlem writes: "Thus, the draft articles refer in Article 12 to a 'precautionary approach' rather than to the 'precautionary principle.'"
Mechlem, who served from 2002 to 2006 as a Legal Officer for the U.N. Food and Agriculture Organization, concludes her ASIL Insight by stating:
"Despite their shortcomings the draft articles are a significant step in the protection of transboundary aquifers." She looks forward one day to entry in force of "binding framework convention." (groundwater image credit)